Dorf on Law

About Those Driverless Cars and the Political Power Play Behind Them

2026-08-07T16:59:20.168-04:00

At the end of "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 1 of 2)" yesterday, I wrote that I would publish Part 2 of that column today. Upon reflection, however, that topic seems like an unnecessary (and unwelcome) heavy lift on a Friday afternoon, so I have decided to move Part 2 to next week. Instead, I will end this week with a brief update on a policy matter that is not exactly light reading, but it at least is not about threats to democracy and the rule of law in the United States. (I have updated yesterday's column accordingly.) As I like to say, arguably too often): You're welcome.

In any event, this is a good time to revisit the subject of driverless cars, aka autonomous vehicles. One of my current favorite YouTubers is a guy named Dan Toomey at Good Work, whose videos are almost always equal parts informative and hilarious. Last week, he posted "The fight over driverless cars is here," which offered an appropriately cynical update about the efforts by Waymo (Google/Alphabet's driverless car subsidiary) to shove a dangerous technology down the public's collective throat. The bottom line is that Waymo's financial muscle has led spineless local and state politicians to give the go-ahead to a public safety nightmare that is simply not ready for prime time (or even late-late night).

My previous columns discussing driverless cars include "A Mindless Attack on Driverless Cars" in 2016, and "Driverless Cars and Other Emotional Coping Diversions" in 2023. In the former, I was a bit of a naif who was touchingly optimistic about a new technology. In my defense, many people at the time were similarly googly-eyed (pun shamefully intended), for the simple reason that the hoped-for end game here is a world in which people do not have to deal with car ownership's many expenses. Oh, and also perhaps it could lead to a reduction in the 40,000-plus deaths by automobile per year in the United States alone. Again, that is per year.

This, moreover, did not appear to be a matter of hoping for some fantastical tech-Eden solution. There is a very straightforward story in which driverless cars become feasible -- under assumptions that certainly do assume technological advancements, but not of the sort that are imagined with "Terminator 2"-like melting and reshaping robots -- after which it could be a relatively straightforward matter of redeploying federal transportation funding to allow driverless cars to interact with street signs and tech embedded in roadways.

The utopian vision here -- and again, there is a huge difference between utopian and impossible -- is a world in which road rage, drunk driving, falling asleep at the wheel, texting while driving, and all the rest have given way to a level of safety similar to air travel. The numbers are stark: "The 2023 death rate for air passengers was 0.003 deaths per 100 million miles. The rate for car and truck passengers was 0.53." Moreover, the air travel deaths broke down in a way that makes the case for driverless cars even stronger, because about three-fourths of deaths during air travel "involved on-demand air taxis, which are small planes of 10 seats or fewer," while commercial air travel had only one fourth of those deaths. That means that there were five deaths -- 5!! -- in 2023 by air travel that did not involve people running small, dangerous flight operations, compared with over 40,000 deaths by car.

I suppose it is an entirely different matter to note that "[t]he highest rate of fatalities was via motorcycle, which had a rate of 30.6" -- almost 58 times higher than cars and trucks and 10,200 times higher than air travel. After all, the dudes who think that motorcycles are for Real Men are hardly going to go for driverless Harleys. But one thing at a time.

And speaking of 'Murica, I suppose it is also worth pointing out that the occupants of driverless cars will suddenly have their hands free to use their God-protected guns (with an ownership rate of more than one firearm per person in the US, by far the highest number in the world) as they please. I do not want to imagine the shooting galleries that Florida's highways will become. So perhaps that will offset some of the lives saved by technology, but again, one issue at a time.

It is, however, essential to point out that we might never in fact reach that tech-savior world. It is not only because the world's most reviled tech bro has continuously over-promised the arrival of fully autonomous cars but that there truly might be insuperable barriers that will make fully person-independent driving impossible. That is where Toomey's video ends as well: It would be great if it could happen, because it truly would be one of the most important public health breakthroughs in human history, but it is long past time to be skeptical about the notion of tech inevitability.

The central point that Toomey emphasizes in that video, however, is much more in the here and now. As I noted above, Waymo is being unleashed on Americans when the tech is clearly not ready. Why? Here is a line from my 2016 piece, which might count as my most innocently optimistic comment ever:

None of this is to say that politicians and regulators should simply let the companies write the rules. Of course the companies will "balk at regulation[."] There is always a need for public policy to constrain the excesses and arrogance of people (an especially plentiful breed in Silicon Valley) who view themselves as the geniuses who will save humanity. But again, vague assertions that politicians seem excited about driverless technology are hardly proof that they are going to roll over and allow Google to sell [unsafe driverless] cars.

To be sure, I have already mocked myself for that statement, writing in my 2023 column that "Pollyanna had nothing on me!" But the point is worth emphasizing again and again, because we have in fact learned in the intervening ten years that politicians will in fact "roll over and allow Google to sell [unsafe driverless] cars."

In that 2023 piece, I also compared my relative optimism about driverless cars to my oft-repeated equanimity regarding corporate ownership of homes. That is, there is nothing inherently wrong about allowing corporations to own single-family homes and rent them to willing lessees, any more than there is a reason to think that apartment buildings should always and only be condos or co-ops. What matters is that the legal framework within which profit-seeking businesses operate must be appropriately calibrated to prevent vulture capitalists from running amok.

Having lived in pleasant rental apartments as well as in hellholes, I doubt that the difference lies in the hearts of the owners to whom I sent my monthly checks. As my financial situation has improved over the course of my lifetime, I have been able to put myself into situations with relative balance between the contracting parties. But owners of relatively high-end housing are responding to legal rules that people like me have the political clout to create and enforce.

As it stands, then, both driverless cars and corporate ownership of single-family homes are the latest examples of what goes wrong when we let the chaos of the Wild West rule the day. That is not at all a reason to give up on politics, which would simply allow the exploitative insanity to get worse. The only response to unbalanced policy choices by politicians is to pressure those politicians to create a fair and sustainable equilibrium.

And that, as it happens, is a nice place to end this column, because in its way today's discussion sets the table for the conclusion of my more overtly political "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy" column next week.

- Neil H. Buchanan

Now We'll See Whether the Democratic Establishment Truly Cares About Democracy (Part 1 of 2)

2026-08-06T16:30:03.326-04:00

Even though the subject matter of today's column is anything but funny, I will begin with a humorous pop-culture reference. In one of the (few) scenes in the movie "Animal House" that is still amusing and inoffensive, one of the Delta fraternity brothers takes the floor at a disciplinary hearing at which his house has been (accurately, albeit vindictively) accused of violating all kinds of Faber College rules. Here is the end of his speech:

But you can't hold a whole fraternity responsible for the behavior of a few, sick twisted individuals. For if you do, then shouldn't we blame the whole fraternity system? And if the whole fraternity system is guilty, then isn't this an indictment of our educational institutions in general? I put it to you, Greg - isn't this an indictment of our entire American society? Well, you can do whatever you want to us, but we're not going to sit here and listen to you badmouth the United States of America.

That evasive non-defense is hilarious because it lampoons a common trope on the right in US politics, where Republicans absurdly expand an accusation to damn as traitors everyone who disagrees with them. The shortest-hand version of that move is: "Why do you hate America?" I have even used that movie reference before on Dorf on Law, in a 2022 column referring to Fox's former "I'm just asking questions" guy. The trope amounts to deflecting specific and directed criticism by pretending that the criticism is a broader insult to good and decent folks everywhere.

Why bring it up again now? Leading up to the primary for US Senate in Michigan this week, the Democratic party establishment's candidate was Haley Stevens, a "moderate" (scare quotes to be explained in Part 2 ~~tomorrow~~ next week) congresswoman who was heavily backed by record-setting amounts of money (along the lines of $60 million, for a single Senate primary). Her opponent, Abdul El-Sayed, is a critic of the Netanyahu government's actions in Gaza, a stand that guaranteed that a ton of the money pouring into Stevens's campaign was from the American-Israel Public Affairs Committee (AIPAC).

Both the Democratic electorate in Michigan and the American people in general have notably turned against the Netanyahu government in the last year or so. More to the immediate point, AIPAC's public image has become so toxic that it has resorted to creating front groups with innocuous names, such as Elect Chicago Women and the Chicago Progressive Partnership, very non-progressive shell organizations that attacked a female candidate in an Illinois congressional primary earlier this year. Whatever the merits (or lack thereof) regarding the policies at stake, it is hardly a surprise that a candidate would highlight and criticize AIPAC's support of his opponent.

But here is the galling punchline (as reported last weekend in The Guardian): "And in a Twitter post this week, Stevens criticized a video where El-Sayed criticized Aipac, with Stevens saying: 'Everyone in America understands you want to blame all of your problems on Jewish Americans.'"

Again, this is the unfunny echo of the rant from "Animal House." El-Sayed says AIPAC is bad news. Stevens responds that he is attacking "Jewish Americans." I put it to you Greg, I will not stand here and listen to you badmouth ... . Ecchhh.

As most readers have likely heard by now, El-Sayed won that primary, despite the forces that opposed him. But it is important to note that those who fought against his nomination were not merely AIPAC but essentially the entire establishment of the Michigan and national Democratic Parties. Chuck Schumer, Hakeem Jefferies, and James Clyburn (and Michigan Governor Jennifer Whitmer and Senator Gary Peters) energetically supported Stevens. More importantly, they continued to do so even after she issued that unbelievably sleazy tweet! So far as I know, she did not pay any price, and the people backing her did not bat an eye.

Was that primary hard-hitting? Sure. But one notable difference arose when some of El-Sayed's supporters started to mock Stevens's exaggerated "down home" Midwestern accent. As it happens, I grew up just across the Michigan border in Ohio and went to law school at the University of Michigan, and I am here to say that Stevens was clearly cranking up the folksiness. People who have lived around this part of the country know authenticity, and that was not it. Even so, El-Sayed asked his supporters to knock off the mockery, a gesture that was similar (in kind, though not degree) to John McCain's famous (if a bit inadequate) 2008 rebuke of a supporter who said that she did not trust Barack Obama because he was "an Arab."

Why does Stevens's attack on El-Sayed bother me so much -- beyond its noxious dishonesty, that is? Writing in The Contrarian last month, Jennifer Rubin noted that internecine battles in primaries are inevitable but must not get out of hand such that they hamper the ultimate nominee in the general election. She was writing about the 2028 presidential election, but the idea applies to Michigan 2026 as well: "Above all, the greater pro-democracy coalition must remember that — whenever the nominee is chosen — past grievances must be put aside. Our democracy’s future depends upon it." Stevens handed the Republicans a ready-made smear to use against El-Sayed, one that would not be as powerful if it merely came from the Republicans' in-house smear factory. Stevens had no business doing that, because even though "grievances must be put aside," some attacks do damage beyond the primary.

This is hardly a new phenomenon among establishment Democrats. During the 2020 Democratic primaries, for example, I was incensed that Pete Buttigieg attacked one of his fellow Democrats on health care policy by amplifying a Republican talking point about taxes, even though he could have made his point without feeding the other side's agenda. And the "blame all of your problems on Jewish Americans" distortion leveled against El-Sayed is so, so, SO much worse.

Suffice it to say, then, that I was unhappy that Stevens attacked her opponent in that way, and it was shocking but not surprising that the party's so-called moderates let it pass. Even setting aside what I take to be a defining moment in that campaign, however, the larger story is about the people who predictably attacked yet another exciting, progressive candidate. Rubin's piece in The Contrarian yesterday included this welcome assessment:

An El-Sayed victory also would be another reminder that Senate Minority Leader Chuck Schumer (D-NY) is remarkably inept when it comes to evaluating the campaign skills and the public appeal of candidates. A Stevens loss (in the wake of Maine Gov. Janet Mills’s spectacular failure to knock off Graham Platner during the primary) would no doubt add momentum to those calling for a Senate leadership makeover.

Indeed. I ended my Dorf on Law column earlier this week by reminding readers that

Chuck Schumer ma[de] up a fictional couple that he "consults" about policy, but he has imbued his creations with Reaganite views and says that they voted for Trump.
... Democrats in general are much too quick to say that anyone with a non-defensive-crouch policy agenda is UNELECTABLE. I will have much more to say about that in my column on Thursday.

So let us take up that discussion about electability here. Rubin, in her column yesterday, went on to argue correctly that "'electability' in today’s politics may turn out to be something more than ideological inoffensiveness." Inoffensiveness? She is right that Schumer et al. think about electability in that way, but what they are willing to support is itself ideologically offensive, as I will explain in Part 2 ~~tomorrow~~ next week. They are, in fact, quite happy to offend people. Which people? The ones that Schumer's crowd fears will take "their" party away from its rightful owners.

Even though those party leaders have a terrible track record and habitually slam anyone to their left, it is nonetheless important to engage with the question of whether their preferred candidates would indeed be less likely to lose in the general election. Because I am a progressive, I want candidates I support to have a good answer to the electability attack.

Unfortunately, they do not always deliver. For example, in a friendly interview on Zeteo, Mehdi Hasan asked Francesca Hong, the progressive candidate for Governor of Wisconsin, about electability, and she offered this weak tea: "The person who wins the most votes is the most electable." When she then tried to blather on about her campaign's events, Hasan had the good sense to cut her off and re-ask the question. Her second stab at an answer was only slightly better, saying that her Trumpist opponent is so bad that anyone could win against him: Beating such an extreme right candidate, she said, "isn't a matter of if. It's a matter of how much."

With respect, that is not good enough. And the sad thing is that there is an evidence-based answer that is more than good enough, an answer that moreover is anything but a heavily guarded insider secret: motivating the base. Hong could have said that the difference between going with the "safe" and supposedly inoffensive candidate reliably kills enthusiasm among Democratic voters, while trying to appeal to supposedly moderate voters by not being progressive does not make up the difference.

That argument is obviously based on an empirical prediction. Is it defensible? Do the data support it? New York Times columnist Thomas B. Edsall (who could never be accused of being a shill for the left) asked that very question in "Is It Really True That Socialism Is a Threat to the Democrats?" earlier this week. Although Edsall gives far too much oxygen in the piece to establishment talking points, he was at least skeptical enough to keep asking questions in an effort to separate cant from honest analysis. After a long "one side says this, the other says that" buildup, he brought it home with something extremely important:

Adam Bonica, a political scientist at Stanford, is a leading skeptic of claims that left-wing candidates can significantly undermine Democratic prospects. He wrote by email: “Who wins these primaries matters much less for November than either side of the debate assumes. Control of Congress will be decided by the national environment and the lean of each seat. The electability argument is being fought over effects an order of magnitude smaller than what actually decides majorities.
“Wave elections are made by turnout swings and economic conditions, and those swings are largely set nationally, not by who the nominee is in any given district or state.”
Bonica acknowledged that he and two colleagues have found “0.5 to 1.0 points for nominating a moderate over a progressive. The effect is there.” But, he added, “it is also far too small to carry the argument being built on top of it.”
Bonica cited separate research showing “that nominating a progressive increases Democratic turnout by about 1 percentage point. A more progressive nominee does cost you some swing votes, and it does buy you some turnout. But both effects are small, they point in opposite directions, and on net they seem to cancel.”
Put another way, Bonica wrote, “centrists touting their electability are advertising a 1 percent interest rate on a savings account that charges a 1 percent annual fee.”

Honestly, I would have thought that the numbers would not have been a wash, but Bonica's data-driven response certainly makes the point that all of this crazy talk about progressives being a drag on other Democrats -- both in individual races and by tainting establishment Democrats with what is apparently supposed to be their progressive stink -- does not reflect the real world.

I wrote the headline to this column ("Now We'll See Whether the Democratic Establishment Truly Cares About Democracy") after it became clear that El-Sayed was going to win his primary in Michigan. The party leaders who supported his opponent and then looked the other way when she libeled El-Sayed have, so far, made the right noises about uniting to hold that Senate seat. As I will explain in Part 2 of this column ~~tomorrow~~ next week, however, there are reasons to worry about their sincerity.

- Neil H. Buchanan

Precedent and Personnel: When the Justices Change so Does the Constitution

2026-08-05T07:45:06.318-04:00

Readers of this blog know that I am a harsh critic of the Roberts Court (to say the least). The current GOP justices have dramatically altered the constitutional law of abortion, affirmative action, gun control, separation of powers, free speech and free exercise, among many others, in a short period of time. Partisanship is a much more important factor to the Roberts Court than fidelity to precedent, text, or history, and it is not close.

The Court's utter disregard for prior cases, however, has long been a feature of Supreme Court decision-making. Constitutional law changes substantially in this country when the justices’ politics and values change, and often for no other reason. The Supreme Court has never been an institution that puts law in any form above the justices' aggregate policy preferences.

This disregard of prior law is not a 21st-century problem. A dramatic story rarely told that unfolded more than 150 years ago reveals the true character of the Supreme Court. It is a story not taught in most constitutional law classes or discussed at legal conferences. But it should be.

On February 25, 1862, Congress passed the Legal Tender Act, which made paper money legal tender to pay private debts. Prior to that law, gold and silver were used for this purpose. The dramatic change was strongly supported by Secretary of the Treasury Salmon Chase because of the North’s desperate financial situation. The North had to pay for the Civil War, and the government was almost out of money.

After the government printed paper money, debtors could pay pre-existing obligations with these new “greenbacks” instead of gold or silver, which helped debtors but harmed creditors as the paper money’s value depreciated. As years passed, more greenbacks were printed by the federal government to wage the Civil War. By the time the constitutionality of the Legal Tender Act reached the Supreme Court in 1870, Samuel Chase was now the Chief Justice. He probably should have recused himself from deciding on the validity of a law he worked so hard to pass but he did not take himself off the case. The justices' questionable ethics practices are not a new problem.

Although it might seem obvious today that Congress has the power to make paper money legal tender, the issue sharply divided the country at the time.

The Court’s first decision on the question held that Congress acted unconstitutionally. By a four-to-three vote in Hepburn v. Griswold, the Court, in an opinion ironically authored by Chief Justice Chase, held that Congress did not have the power to make paper money legal tender for debts existing prior to 1862, the year the law was passed. The majority held that there was no express provision in the Constitution authorizing Congress to make paper money legal tender (the Constitution only mentions “coin”). Moreover, because many of Congress’s enumerated powers involve money, the justices said that it would prove too much to say that Congress had the implied power to make paper money legal tender. The Court also found that the Act was inconsistent with the “spirit” of the Constitution in that it interfered with pre-existing contracts. The dissenting Justices disagreed vehemently with just about every aspect of the decision.

The Court handed down Hepburn on February 7, 1870. That day there happened to be two vacancies on the Court. Almost a year earlier, the Republican Congress had increased the size of the Supreme Court to nine (Congress had altered the number of justices several times for partisan reasons prior to settling on nine). President Grant nominated two new Justices on the very same day that Hepburn was announced (it appears the Administration was told of the result prior to its publication. Leaks are not new either). It is likely the timing was not coincidental.

Eventually, William Strong and Joseph Bradley were confirmed, giving the Republicans a majority on the Court. It was widely known that Grant would only nominate men who would affirm the Legal Tender Act. Opposition to the Hepburn decision was likely a litmus test for any nominee, just as opposition to abortion rights was a litmus test for President Trump.

Before discussing what happened next, it is necessary to pause and consider the importance of the Hepburn decision. A legal commentator writing in 1929 said that the Hepburn case was “argued and reargued by numerous and distinguished counsel. It is probable that never in the history of the Court has any question been more thoroughly considered before decision.” The case was not only important for its specific result, but it was a major statement on the limited powers of Congress. Much of the Court’s rationale was inconsistent with Chief Justice John Marshall’s pro-congressional reasoning in his landmark opinion in McCulloch v. Maryland.

The result in Hepburn was short lived. Just over one year later, the two newly confirmed Republican justices joined the three dissenters in Hepburn and reversed the decision in Knox v. Lee. The majority relied on the government's need to raise money to fight the war and on a much broader view of Congress’s implied powers. Those were the same arguments that were expressly rejected by the justices only fifteen months earlier. The Court reversed itself on one of the most important and hotly debated questions it ever had to decide for no other reason than the people on the Court changed.

The commentators who favored the first decision did not hide their contempt for its reversal. The New York World newspaper said the following: "The decision provokes the indignant contempt of thinking men. It is generally regarded, not as the solemn adjudication of an upright and impartial tribunal, but as a base compliance with Executive instructions by creatures of the President placed upon the Bench to carry out his intentions." Of course, similar language was used by many critics of the Dobbs decision, which overturned Roe v. Wade.

This disregard of precedent by the Court has continued ever since in numerous areas of constitutional law, which often changes solely because the people on the Court change. That pattern is obviously true today but was also true in 1871, when the Court overturned one of the most important decisions in American history after only one year simply because the justices changed. As I’ve said many times on this blog, stealing from Richard Posner, if changing judges changes law, do we even know what law is?

When it comes to the Supreme Court, that thorny jurisprudential thicket is not a 21st-century problem but an old one built into the institution by its structure and traditions. Without due respect for precedent, the justices are essentially free to change the law whenever a majority desires to do so. It is one of many reasons that the Supreme Court of the United States does not act like a real court, and its justices do not act like real judges. It is well past time that the American people understand that reality, as the Legal Tender Cases starkly revealed so long ago.

--Eric Segall

When Constitutional Amendments Change Background Assumptions: 22nd Amendment Edition

2026-08-04T07:00:00.000-04:00

As I noted here on the blog last week, I'll be spending the day tomorrow with lawyers, a judge, a journalist, and several other law professors discussing the most recent Supreme Court Term at the Practicing Law Institute's annual Review. One of the cases that will undoubtedly receive a great deal of attention is Trump v. Slaughter, in which the Court invalidated good-cause removal protection for members of the Federal Trade Commission and, by clear implication, nearly every other independent federal agency. When Slaughter was decided, I wrote a highly critical analysis of the opinion. I stand by my analysis but in today's essay I want to consider another ground for criticizing the ruling that was offered last week by my former colleague, Columbia Law Professor Jeffrey Gordon. In an essay last week on Balkinization, Professor Gordon argues that Slaughter is wrong in light of the 22nd Amendment.

Readers will recall that the 22nd Amendment is the one that Donald Trump keeps threatening to violate by running for a third term. It is also relevant to the president's removal power, Professor Gordon argues, for two reasons.

First, Slaughter and related cases that invoke the unitary executive theory rest on the claim that the president must be able to supervise and thus fire agency heads because the president is politically accountable in ways that agency heads are not. However, even if that was true before the 22nd Amendment, it is not true during a second-term president's second term. Thus, the 22nd Amendment changed a vital assumption that underwrites (or if you believe the Slaughter majority's history lesson, underwrote for the framers) the notion that making agency heads serve at the pleasure of the president enhances democratic accountability.

Second and more broadly, Professor Gordon explains that the 22nd Amendment was proposed and ratified during the heyday of independent agencies by people who saw independence from the president--especially one claiming a plebiscitary mandate in the way that FDR did--as a vital check on executive overreaching. Professor Gordon writes:

As put by one of the principal architects of the Twenty-Second Amendment, Rep. Earl C. Michener, chairman of the House Judiciary Committee, in the speech that introduced the operative resolution in the House: “Over a period of 12 years a President can secure a firm control over the enormous and powerful machinery of Federal administration, including the so-called independent agencies.” . . . The goal of the Twenty Second Amendment is to limit presidential power even as the scope of government expanded. Its immediate mechanism is term limits but those term limits are meant to gain force through interaction with pre-existing constraints on presidential power, including the protection of “for cause” removal for the commissioners of independent agencies.

To be sure, the text of the 22nd Amendment says nothing about the president's removal power, but, then, one must recall, neither does the rest of the Constitution, subject to one exception: officers may be removed by impeachment. Based on the text alone, one might think that the only means by which officers can be removed is impeachment and that therefore there are no limits on Congress's ability to provide good-cause protection against presidential removal. The Slaughter Court read the history of the early Republic as reflecting a contrary assumption by the framers and ratifiers that Article II's Vesting Clause and its Take Care Clause should be taken to limit good-cause removal protection. That reading of U.S. history is tendentious (as the Slaughter dissenters explained), but even if one accepts it, one can say that the 22nd Amendment changed the assumptions underlying how power is distributed.

A useful analogy might be the Court's 11th Amendment jurisprudence. There, the Court has held that the 11th Amendment did more than what its text literally says. Instead, in Hans v. Louisiana, the Court held that the 11th Amendment essentially adopted the view of the dissenters in Chisholm v. Georgia, adhering to what the Hans Court called the "spirit" of the Constitution. One can think, as I do, that Hans was wrong in light of how the text of the 11th Amendment parallels the text of Article III, without denying that a constitutional amendment can alter background assumptions even without expressly referring to them.

The Court has not always been attentive to such changes in background assumptions that constitutional amendments work. For example, in The Civil Rights Cases, the Court read the 14th Amendment narrowly, refusing to recognize that it reflected a dramatic shift in power from the states to the federal government. Professor Reva Siegel has argued that the Court might have located its sex equality jurisprudence in the 19th Amendment, which reflected shifts beyond the literal prohibition on sex-based restrictions of the franchise. Professor Akhil Amar once suggested that the Court's grant of full First Amendment protection to race-based hate speech neglected the possibility that at least some hate speech might be regulable as a badge or incident of slavery under the 13th Amendment.

I am not endorsing (or criticizing) any of these particular moves by jurists and scholars. What I am saying is that Professor Gordon's suggestion cannot be dismissed as pie-in-the-sky speculation by an academic. The notion that a constitutional provision can be transformative beyond its literal text is well established in both case law and scholarship.

I am thus persuaded by Professor Gordon's second point: even if we assume the Slaughter Court correctly interpreted the pre-22nd Amendment Constitution, it should have recognized that the Amendment rejected key assumptions on which that interpretation rested, rendering it incorrect as a reading of the current Constitution.

I am somewhat less persuaded by Professor Gordon's first point, however. Even before the 22nd Amendment, there was a longstanding norm according to which second-term presidents did not seek a third term. Professor Amar has noted three ambiguities concerning the scope of the norm: whether it barred all third terms or only consecutive terms; how to count partial terms; and whether the norm was defeasible for emergencies. But even recognizing these uncertainties, in the usual case, a president serving the second consecutive full term in normal times would have been unaccountable to the People long before the 22nd Amendment. In that sense, the 22nd Amendment didn't reflect much of a change in the Constitution as it existed from 1789 through 1941 (when FDR began his unprecedented third term).

Meanwhile, even setting aside the two-term norm, prior to the adoption of the 20th Amendment in 1933, every president who had either lost a bid for re-election or chosen not to run for another term was a lame duck for roughly four months: from Election Day in early November through March 4 of the following year. Even now, we have a lame duck period of two-and-a-half months, which can be the basis for considerable unaccountable mischief by an outgoing president. Thus, the 22nd Amendment did not create something entirely new in the form of a president who would not face the voters again.

However, these caveats do not provide a reason to reject Professor Gordon's first argument. Instead, I offer them as a friendly amendment. The argument as Professor Gordon frames it goes like this: Even if the pre-22nd Amendment Constitution made the president democratically accountable in the way the Slaughter Court presupposed, the post-22nd Amendment Constitution does not, and thus the Slaughter rule does not fit with the current Constitution. I would recast the argument this way: Under the two-term norm and given the long lame-duck period, the Constitution never made presidents nearly as democratically accountable to the People as the Slaughter Court presupposed, and thus the Slaughter rule was never justified, but it became even less justified after the 22nd Amendment converted the two-term norm into a rule.

Finally, I should emphasize that all of the foregoing is in addition to the other reasons the Slaughter dissenters and commentators (including me) have given to explain why the decision is wrong in principle and will likely lead to terrible consequences.

-- Michael C. Dorf

We Must Not Forget that Trump and Reagan Both Became President by Accident

2026-08-03T16:59:23.590-04:00

I should state up front that this column can be added to the "failing to remember history, doomed to repeat it" file. There is nothing new, of course, to the admonition that it is important to understand history. Although that is indeed an old point, it nonetheless needs to be repeated again and again, because too many people forget. And because history inescapably gets longer, while attempts to rewrite it -- especially in this era of pathological lying from the Oval Office -- are part of an ongoing disinformation campaign, the specifics matter.

As I will argue below, there is an alarming kind of retroactive triumphalism about Trump's 2016 and 2024 electoral outcomes that is disconnected from reality, a triumphalism that we can also see in contemporary commentary about Ronald Reagan. Those two accidental presidents are now treated as all but inevitable by people who have simply decided to impute their own spin on what "the American People" said with their votes in those elections. That is dangerous, especially in our current moment.

It has long been clear that people across the political spectrum and throughout the various media ecosystems are intent on changing the story of the 2024 US presidential election. Although I quite enjoy late-night comedian Seth Meyers's political satire, I am sad to report that he is still stuck on the idea that Donald Trump won for an affirmative reason, that is, because voters trusted Trump to improve the economy. In a Dorf on Law column this past December 19, I transcribed this bit from a Meyers "Closer Look" segment:

(6:34 mark): "Voters gave Donald Trump a second term because they were mad about the economy, and they were hoping he would fix it, despite the fact that last time he was in office, he broke it."

(7:01 mark): "The reason voters gave Trump another shot is because he made it clear he wouldn't just bring prices down, he would do it ASAP."

(15:33 mark): "So why is Trump calling the central issue of American political life -- the thing that got him elected, and the number one things voters say they care about -- a hoax?"

(16:41 mark): "Voters gave Trump a second term because they believed him when he said he'd bring down prices, and now every poll suggests they regret it."

As I put it at the time: "That is a lot of confidence in a story that exists in people's imaginations but not in reality." I am also sad to report that Meyers now offers some version of that misreading of 2024 on a regular basis -- so much so, in fact, that I simply no longer even bother taking note of when he goes back to that toxic well. As I have argued many times, I understand why well-meaning people like Meyers think that this is a useful trope, because they can now use it to point out that Trump "broke his promises to the voters." But that does not make it any less dangerous.

Indeed, this tendency to credit why "the American people voted for Trump" has the additional defect of making it seem that the 2024 election was somehow not a toss-up. "Americans were overwhelmingly unhappy about the economy," and Trump won, which apparently all but begs us to conclude that "Americans overwhelmingly voted to return Trump to the White House." In my December 19 column linked above, however, I ran through the numbers and showed that Trump's win was anything but "sweeping" or "decisive" or any such nonsense.

Not only did Trump barely squeak by -- performing marginally better than in 2020 and 2016, but still a nail-biter of an election that looked until the last minute as though it was going to go to Kamala Harris -- but the Democrats minimized their Senate losses on an impossibly challenging map, and then even picked up a seat in the House. Yet there are people to this very day screaming at each other about the Democratic Party's "autopsy" and wringing their hands about how badly they did in that election.

The 2024 election was achingly close. (I will go back to the 2016 election later in this column.) It would have been better if Trump had never become President again, but his win was most definitely not definitive. Even so, I almost lost my mind when I read a column last Fall by The Guardian's Marina Hyde, who is this generation's Maureen Dowd -- and no, I do not mean that in a good way (as if there is a good way to mean that). Hyde, who is based in the UK, was talking about Trump's attempt to sue the BBC, but hold on tight to see where she goes with it:

Were Trump to sue the BBC in our courts, the US president’s case against would presumably be based on the notion that he – a convicted felon found guilty on 34 counts of falsifying business records in a hush money case; a civil case loser found to have sexually abused a woman and been ordered to pay her $83m – had reputational damage done to him by the editing of a clip in a documentary that aired in another country, which no one noticed at the time, shortly before he won a landslide presidential election victory. Righto.

What? Is that what even snarkily anti-Trump commentators now believe? This kind of nonsense has seeped into the political discourse in a way that Trump and his enablers use to justify his depredations. He won big! Americans voted for all of this. Righto.

Trump benefited in 2024 from extreme sanewashing (note that my column in that hot link does quote a very good comment from Seth Meyers in that regard). More generally, Trump is getting a pass because of people's unwillingness to look at actual data to see who swung toward Trump from 2016 to 2020 to 2024. I will come back to that in a moment, but it is now time to talk about Ronald Reagan.

There is a generally good YouTube channel called "How Money Works" (HMW) that ran a co-produced piece earlier this year with the enticing title: "Why is One Man Always Blamed For Everything Wrong With America?" That one man is Reagan, and the 21-minute video comes with a thumbnail of a graph showing everything going wrong -- incarceration, wage stagnation (productivity contrasted with wages), inequality, and union membership -- starting just about when Reagan became President in January 1981.

The HMW video does have some virtues, although nothing stands out to make it worth watching. What is worth pulling apart is two elements of their story about Reagan: (1) How he became president, and (2) Why the economy improved during his two terms in office. The video's analyses of those questions are superficial at best, but the story is actually much worse than that, because it airbrushes and justifies Reagan in ways that echo today in how Trump is being given a freebie even by his critics.

(1) The HMW video explains Reagan's win in 1980 by saying that he was an engaging speaker and that he was able to deflect claims that his policies were anti-worker by pointing to his stint as head of the Screen Actors Guild in the years after WWII. That is pretty much their entire story: likable guy who could win an argument. But that too-cute story completely misses two fundamentally important aspects of that election.

First, there is no mention at all that the Republican establishment was all but soiling itself when Reagan become the presumptive nominee in the Spring and Summer of 1980. And they had good reason to panic, because Reagan was simply a joke. People in the party were so worried about it, in fact, that they tried to draft former President Gerald Ford for a rematch against President Jimmy Carter. Their fear was that Reagan was so unhinged, such an obvious lightweight, and such a loose cannon that he would drag down the entire party with him. Ford declined the effort, mostly because it was too late by that point to derail Reagan's nomination, but that does not change the fact that the real Reagan was anything but the retconned version: the smooth, broadly acceptable bloke that the HMW video (and, to be clear, nearly every political commentator in the country at this point, no matter their ideological views) imagines.

Second, there is the rather huge gap in failing to emphasize the enormous impact of the Iranian hostage crisis on the Carter reelection effort. In particular, there is no mention of the allegation that the Reagan camp secretly negotiated a deal with the new Iranian revolutionary government to prevent the hostages from being released before Election Day in November 1980. Congressional inquiries later concluded that there was insufficient evidence to conclude definitively that that had happened, but it is fair to say that evidence does exist, including statements from people who were there.

But even if that were no conspiracy, the failure to focus on perhaps the only time in history that a foreign policy crisis arguably changed a US election is a rather serious error. Again, conveniently skipping over that part of the history makes it seem that "the American people wanted" what Reagan was peddling, which quite clearly was not the case.

(2) The HMW video then explains the Reagan economy by making brief reference to his tax cuts and some spending policies, concluding that those policies were something like adrenaline, that is, something that can be good for a short time and in small doses but can be deadly if overused. The narrator intones: "He inherited a genuine crisis and applied genuine solutions. Those solutions worked in the short term, and that short-term success was real. But those short-term solutions became permanent policy, and permanent policy created structural damage that has compounded over four decades."

It is obvious, then, that HMW was not writing a puff piece about Reagan. The problem is that their economic analysis is simply wrong, and in a way that matters greatly. Specifically, we hear nothing about what was in fact happening in those years. Carter appointed a monetary policy hawk, Paul Volcker, to be Fed Chair, and Volcker inflicted extremely high interest rates on the economy that voters hated in 1980 (again, Reagan's win was not about his supposed likability). Volcker also engineered a recession early in Reagan's first term that was the worst downturn the US had suffered since the Great Depression. When Volcker changed monetary policy soon thereafter, Reagan received credit for the recovery.

What about Reagan's tax cuts and spending increases? Were they not the short-term boost that HMW's video claims? No, because the tax cuts were heavily loaded at the higher end (shock: Republican tax policy helps the rich) and thus had virtually no impact on short-term economic performance, while his spending increases were mostly for military equipment (the "600-ship Navy") that also is not economically stimulative.

The story that the video tells, however, is that Reagan was a widely respected, likable guy who swept into power on his own merits and then dealt effectively with a crisis. We now are to believe that Americans wanted Reagan and received a good economic outcome, at least in the first few years. That allows Republicans now to claim that their hero is an all-time great, whereas his track record simply does not support that claim.

To bring this back to Trump, I suggested above that the now-conventional story about his first Electoral College win follows this pattern. Contrary to reality, we now hear that "people were alienated by bad trade policy," or whatever, so they chose Trump. Even leaving aside his popular vote loss -- which one might think would count toward figuring out what "American voters wanted" -- how could anyone fail to mention Russia or James Comey's last-minute interventions in that election? Even if Robert Mueller was unwilling to claim that there was a winnable criminal case for collusion between Trump and Putin, there is no doubt that what Russia did -- with our without coordination with Trump's campaign -- had an enormous impact on the election.

Moreover, Trump's opponent that year was Hillary Clinton, who had been so beaten up by Republicans and the press for the previous quarter-century that large numbers of Democrats and independents said that they would stay home rather than vote for her -- because they thought that she was obviously going to win big, even without their vote, against an obvious buffoon like Trump. And as I pointed out shortly after that election, "the Democrats had picked up six House seats and two Senate seats in 2016—contradicting the nonstop Democrats-as-losers meme that has become all but required in 2017 news coverage."

As they had with Reagan in 1980, in 2016 Republicans were sure that their primary process had misfired badly and had saddled them with an indefensible candidate who would harm their party. Circumstances conspired to allow two men who were widely considered to be unelectable to become President. And as I noted above, in 2024 the return of Trump was as narrow as possible, and with the winner having negative coattails (again).

So, are those who cannot remember the past condemned to repeat it? Yes, but it is worse than that, because even the people who oppose the Reagan and Trump agendas not only cannot remember the past but continue to convince themselves that the past was something entirely different. This leads to crazy things like Chuck Schumer making up a fictional couple that he "consults" about policy, but he has imbued his creations with Reaganite views and says that they voted for Trump.

It also means that Democrats in general are much too quick to say that anyone with a non-defensive-crouch policy agenda is UNELECTABLE. I will have much more to say about that in my column on Thursday.

- Neil H. Buchanan

Fauci Fifth Follow-up

2026-07-31T07:00:00.000-04:00

Yesterday on this blog I discussed Dr. Anthony Fauci's invocation of his Fifth Amendment right against self-incrimination when testifying before the Senate Committee on Homeland Security and Governmental Affairs. I explained why it's not clear that Fauci had such a right, given: (1) that there is no privilege with respect to "anticipatory perjury"; (2) his pardon from President Biden on federal charges for pre-January 20, 2025 conduct; and (3) the implausibility that anything he said would tend to incriminate him for state crimes not covered by the presidential pardon.

In response, a number of readers pushed back on (3), pointing to the fact that almost immediately after Fauci's testimony, Florida Attorney General James Uthmeier took to X to announce: "Fauci's lack of candor to Congress is unbelievable. My office is launching an investigation into Dr. Fauci. It's past time we get the truth of what happened during COVID." To state the obvious, an investigation that was launched after Fauci took the Fifth before Congress and in apparent response to his doing so cannot have been the basis for Fauci fearing prosecution in Florida before he announced that he was taking the Fifth.

Still, my critical readers might have pointed to earlier indications that Fauci was under scrutiny by state prosecutors. In February of last year, 17 Republican Attorneys General announced that they were opening an investigation into what they called Fauci's false statements about the origins of the COVID-19 virus and alleged mismanagement of the government's response. Yet neither that statement nor any subsequent one referred to any specific state law crimes the red-state AGs suspected Fauci committed. And the thrust of the February 2025 statement--styled as a letter to House Speaker Mike Johnson and Senate Majority Leader John Thune--was an effort to spur Congress to investigate further and to share information. Among other things, the AGs accused Fauci of having given misleading testimony to Congress--which would be a crime if the statements were intentionally false and material, but a federal crime, not any state crime.

That is not to say that the sorts of conspiracy-theory-peddling characters who serve as Attorneys General in various red states could not find something with which to charge Fauci. I'm not an expert in the law of any of the states whose AG signed the February letter, and while I am extremely dubious that a good-faith investigation would find that Fauci violated any state laws as ordinarily understood, the AGs are not acting in good faith, and at least some of them would be likely to advance charges based on very novel legal theories.

But that conclusion is based on the miserable character and conduct of the AGs at issue, not on any announcements they have made. The case law in the Supreme Court and lower courts requires that a party invoking the privilege have a "real" and "substantial" fear of prosecution, although there need not be a pending indictment. Generally, an active investigation will suffice. Whether what the state AGs announced is an active investigation is not clear. It might well have been mere political grandstanding. Nonetheless, viewed in retrospect given the Florida AG's tweet on Wednesday, we can say that whatever the threat was, it has not grown stale since February 2025.

Upon reflection, I'm inclined to think that the February 2025 statement of the state AGs probably was enough to substantiate Fauci's fears. The Supreme Court has said that to discount a witness's fears of self-incrimination for Fifth Amendment purposes, it must be "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken" in apprehending a criminal prosecution risk and that the answers the witness would give to questions "cannot possibly have [a] tendency to incriminate." (Internal quotation marks omitted.)

Since February 2025, the state AGs who announced their investigation do not appear to have taken any further steps against Fauci, but they haven't gotten any less nakedly partisan, vindictive, or aggressive. Accordingly, my considered view is that Fauci probably was legally justified in invoking the privilege based on the fear of state prosecution. Even though Florida AG Uthmeier's tweet is not strictly relevant to the ex ante reasonableness of Fauci's fears before taking the Fifth, it does tend to vindicate his apprehensions based on the February 2025 statement (which his predecessor as Florida AG signed). Uthmeier thus inadvertently undercut Senator Paul's contempt case against Fauci.

Finally, AG Uthmeier is not the only Republican politician unwittingly undermining the prosecution/persecution of Dr. Fauci. Just over a year ago, Senator Paul himself sent a letter to then-AG Pam Bondi renewing previous requests that the DOJ open an investigation into Dr. Fauci for allegedly lying to Congress. In that letter, Paul questioned the validity of Fauci's pardon based on reporting that President Biden had used an autopen to sign it. If July 2025 Paul is right that Fauci's pardon is invalid, then July 2026 Paul is wrong in asserting that Fauci can't assert his Fifth Amendment privilege (even setting aside the fear of state prosecutions).

-- Michael C. Dorf

Was Dr. Fauci Entitled to Invoke the Fifth Amendment?

2026-07-30T06:30:00.000-04:00

In response to a subpoena, yesterday, Dr. Anthony Fauci appeared before the Senate Committee on Homeland Security and Governmental Affairs. Citing the fact that Senator Rand Paul is out to get him, Fauci invoked his Fifth Amendment right against self-incrimination. Fauci's characterization of Paul was not fanciful. Paul has said Fauci should be behind bars, and on the eve of Fauci's appearance before the committee, Paul released over 1,100 pages of Fauci's diaries from the latter's time in office. (The diary entries were found on computers in the Department of Health and Human Services and turned over by RFK Jr. to Paul, who chose to release them to the public.)

Hold on! Didn't President Biden give Fauci a pardon just before he left office? Indeed he did. So what was Fauci afraid of?

The most straightforward answer might be that between receiving his pardon in January 2025 and invoking his Fifth Amendment right on Wednesday, Fauci committed a crime he had reason to fear he would be asked to testify about. Let's imagine that Fauci is the thus-far-undiscovered mastermind of the Louvre heist and the godfather of a multinational art theft organization. If so, and if he had reason to fear that he would be questioned about his art theft masterminding, then he would have been plainly entitled to invoke his Fifth Amendment rights.

That doesn't seem very likely, though. In fact, we can be pretty confident that Fauci does not believe himself to be guilty of any post-pardon crimes. So what does he have to fear?

Here's another possibility: because the pardon applies only to federal crimes, perhaps Fauci fears that under aggressive questioning from Senate Republicans he would make statements that would tend to show him guilty of some state crime. However, that seems about as far-fetched as the supposition that Fauci is secretly a jewel theft mastermind.

One might think that Fauci is worried that he would say something that could be the basis for a perjury prosecution, but the Supreme Court has made clear that there "is no doctrine of 'anticipatory perjury.'" In other words, a witness cannot invoke the possibility that something he is about to say would subject him to a perjury prosecution for that very statement. A witness can invoke the fear of a prosecution for perjury only if the worry is that by testifying truthfully now, the witness will reveal that what he said in prior testimony was false and that he will thus be subject to a perjury prosecution for that past testimony. But that's not a possibility for Fauci because until yesterday, the last time he testified before Congress (or anywhere) was in 2024, and his pardon prevents a perjury prosecution for anything he said then.

Suppose that Fauci testified truthfully but in the course of his testimony he made an error or got confused so that he ended up saying something that contradicts either past testimony, something in his diaries, or something in his book or other public statements. And suppose further that Senator Paul then referred the matter to the Justice Department, which, acting in bad faith, brought a perjury prosecution. Fauci might eventually beat the rap, but his decision to testify truthfully but potentially mistakenly in one or another respect would have been a contributing factor to his prosecution. Should that be a sufficient basis for Fauci to invoke the Fifth?

Maybe, but to the best of my knowledge (after some legal research), it isn't--at least not yet. The lower federal courts are uniform in applying the Supreme Court's no-anticipatory-perjury rule without exception. However, I hasten to add that while no case accepts an argument for a bad-faith-prosecution exception to the no-anticipatory-perjury rule, neither does any case expressly reject such an argument. In other words, the federal courts have not squarely addressed a case like Fauci's, in which the witness reasonably fears that truthful testimony will result in a bad-faith perjury prosecution for that very testimony.

If I were to predict how the lower federal courts and Supreme Court would address such a case, I'd say they probably wouldn't fashion a bad-faith prosecution exception for two basic reasons. First, conservative jurists are unlikely to expand the scope of the privilege against self-incrimination. Second, conceptually, a bad-faith prosecution exception is an awkward fit with the privilege, which has been understood as a right to avoid making statements that tend to incriminate. A truthful statement that nonetheless leads to a bad-faith prosecution is not a statement that tends to incriminate.

And maybe that's the right answer. After all, as we have seen in the absurd prosecution against James Comey for his seashell Instagram post, the current administration doesn't need a perceived enemy or critic to testify under oath to manufacture a bad-faith prosecution against him. The privilege against self-incrimination is designed to protect against compelled incrimination, not bad-faith prosecution.

Thus, I conclude: (1) Dr. Fauci probably was not entitled to invoke the Fifth Amendment; (2) Senator Paul may therefore be able to successfully refer Fauci to the DOJ for a contempt prosecution, as he has said he hopes to do; (3) that's ironic, to say the least, because Fauci would have had a very good defense against a perjury prosecution if he had testified truthfully but was charged based on some minor inconsistency with past statements, but the contempt case will be easier for the government to prove.

Accordingly, I question the wisdom of the lawyers who advised Fauci to invoke his Fifth Amendment right against self-incrimination. They traded the risk of enduring bad-faith perjury charges that might not even have made it out of a grand jury and, if they did, would almost certainly result in an acquittal for the risk of facing much more solid contempt charges.

-- Michael C. Dorf

How Did a Very Weak Seventh Amendment Claim Make it to the Supreme Court?

2026-07-29T08:10:27.166-04:00

One week from today and for the 28th consecutive summer, I will participate in the Practicing Law Institute's 28th Annual Supreme Court Review. As in other years, I'll be on most of the panels during the day, sometimes commenting on cases others present and sometimes presenting cases myself. I've got some "big" cases to present but also one pretty small onet: FCC v. AT&T.

The end of the Term last month was a busy time for me. In addition to writing about the big cases for this blog, Verdict, and SCOTUSblog, I was hard at work on updates to my casebook. As a result, I didn't get around to reading FCC v. AT&T until yesterday. Although the outcome of the case is clearly correct given the Court's premises (as I'll explain momentarily), it is somewhat puzzling how the case even got to the Supreme Court. By the end of this short essay, I'll offer my best guess. But first, I'll discuss the merits.

To oversimplify somewhat, the Federal Communications Commission (FCC) conducted administrative proceedings against AT&T and Verizon for the companies' alleged improper handling of their subscribers' location data. They resulted in administrative findings and penalties of $57 million and $47 million, respectively. Under the governing statutes, at that point, the companies had a choice: (1) either pay the fines and go to a federal appeals court to contest the order under the standards of the Administrative Procedure Act (APA) in a case without a jury; or (2) do nothing and wait up to five years for the FCC to bring its own suit against the company in federal district court where there will be a trial de novo before a jury.

Both AT&T and Verizon paid their fines and went the APA appeals court route. There they argued that the scheme violates their Seventh Amendment rights to a jury trial. The Fifth Circuit (in the AT&T case) agreed, while the Second Circuit (in the Verizon case) disagreed. SCOTUS took the case to resolve the circuit split and, in an 8-1 opinion by Chief Justice Roberts, found that there was no Seventh Amendment violation.

If you were paying attention to what you just read, you're probably wondering how the case ended up in the Supreme Court at all. How did the Fifth Circuit reach a contrary decision? And why was the case not 9-0? After all, the companies chose to pay and appeal rather than to exercise their jury trial rights. It's as though a party waives jury trial and then complains that there was a Seventh Amendment violation because there was only a bench trial. Actually, it's not as though what I just wrote. It simply is that. And that is essentially what the Roberts majority opinion says.

To make sense of the existence of a dispute, let's start with the dissent by Justice Thomas. Under the influence of constitutional avoidance, he agrees with the majority that 47 U.S.C. § 504 entitles companies like AT&T and Verizon to challenge FCC penalties in a trial de novo at which they would have a jury trial. However, he says, at the time that the companies had to decide whether to challenge the FCC penalties under the APA or wait for the FCC to sue, some lower courts had held that, notwithstanding the text of § 504 ("any suit for the recovery of a forfeiture . . . shall be a trial de novo"), when the FCC sues to enforce a penalty, the courts would be required to defer to the agency in one way or another. And, he says, the FCC had sufficient discretion in deciding where to sue that it could have chosen a district court where trial de novo meant something less than a full do-over. Thus, he says, the companies didn't freely waive their right to de novo jury trial because, when they made the decision how to proceed, they were not assured that they had such a right.

The majority responds in a footnote that it need not consider Justice Thomas's objection by noting that the parties themselves did not raise it. That's fair enough, I suppose, but that then got me wondering how it is that the Fifth Circuit ruled for AT&T's Seventh Amendment claim. So I read the Fifth Circuit opinion (authored by Trump appointee Judge Kyle Duncan). Most of it is devoted to rejecting the FCC's efforts to distinguish the Supreme Court's opinion in SEC v. Jarkesy by arguing that there's no Seventh Amendment jury trial right in a case of this sort in the first place. Although I thought that Jarkesy was wrongly decided, I find the Fifth Circuit opinion reasonably persuasive in rejecting the distinctions the government offered.

But that's not to say that the Fifth Circuit opinion is persuasive overall. It isn't.

The government also argued in the Fifth Circuit, as it later did in the Supreme Court, that any Seventh Amendment defect in an APA challenge to the FCC assessment is cured by the party's ability to litigate in a trial de novo by simply awaiting government action. In rejecting that argument, the Fifth Circuit did not rely on the argument Justice Thomas offered. It did not say that trial de novo isn't really a trial de novo.

Rather, the Fifth Circuit said that the FCC's internal proceedings resulting in an assessment of a fine carry sufficient consequences that they violate the Seventh Amendment, regardless of what comes afterwards. The Fifth Circuit said that assessments "are not mere suggestions—to the contrary, they have real-world impacts on carriers," but the real-world consequences to which it pointed are hardly the stuff of Seventh Amendment rights. They include "reputational" damage to a carrier. Yet, as the Supreme Court majority pointed out, the initiation of proceedings and many other actions can have reputational consequences without triggering the Seventh Amendment right.

In the end, then FCC v. AT&T is less about the scope of the Seventh Amendment than it is about the competition among lower court judges to establish their extreme right-wing bona fides so that President Trump will nominate them to the Supreme Court should a vacancy soon occur.

Postscript Bonus: As a panelist at the PLI Supreme Court Review session next week, I am entitled to two free passes for guests. I'm happy to distribute mine to DoL readers who expect to be in NYC, have a day free, and need the CLE credits. If I receive multiple requests, I'll prioritize friends, former students, and lawyers over readers who don't fall into any of those categories. Otherwise, first-come/first-served. Email me (michaeldorf@cornell.edu) if you're interested.

-- Michael C. Dorf

Is It Safe for Professors to Go Back to Florida? (Spoiler Alert: No. No, it is not.)

2026-07-28T15:26:10.685-04:00

Earlier this month, a divided panel of the Eleventh Circuit surprised many people -- most definitely including me -- with a ruling that Florida-based journalist J.C. Bruce hailed in The Tropic Press with this headline: "A victory for the First Amendment: DeSantis' pet project--the Stop WOKE Act--is shredded." The Chronicle of Higher Education (CHE) offered a more muted headline: "Are 'Divisive Concepts' Laws on the Ropes?" Notwithstanding their different tones, both articles made it clear how important the Eleventh Circuit's ruling is.

The majority opinion was written by Trump appointee Britt Grant, and her language was colorful, to say the least. Bruce was obviously having a great time directly quoting the majority's handiwork, including these gems:

"Florida's salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State's own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth."
"[I]n this context the First Amendment trusts students to ﬁgure it out for themselves."
"The State asks us to consider its rules a means of targeting discrimination. But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind."
"Because the government pays the professors’ salaries, Florida says, their speech is the State’s speech. Emphatically no. The Florida defendants cannot 'put together half a donkey and half a camel, and then ride to victory on the synthetic hybrid'."
"Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them."

Longtime readers of Dorf on Law might recognize the "Stop WOKE Act" for a number of reasons. One of those reasons might be my repeated references to that law (e.g., here) as I explained why I had negotiated an early retirement deal from the University of Florida's law school only four years after I moved there as a chaired professor. The governor signed the law in 2022, and it went into effect on July 1 of that year. Even though then-Chief Judge Mark E. Walker of the federal Northern District of Florida blocked the law four and a half months later, calling it "positively dystopian," that did not stop the law from being an absolute bombshell.

Except in the most extraordinary circumstances, a bill's path to becoming a law takes months or even years to traverse, such that a law taking effect on July 1 will have been covered in the media and discussed long before its effective date. And because this particular ill-conceived law was such a key part of Florida Republicans' attack on their own university system, there was nothing secret about what was going on.

Unsurprisingly, faculty meetings in the 2021-22 academic year were dedicated to trying to determine how to respond to the governor's attempt to dictate what we taught. Administrators at the university level sent us "Guidance for teaching controversial topics" and created material with titles like "Teaching in the Era of 'Divisive Concepts.'" (Access to such resources is limited to the relevant university affiliates, of course, so even if I were inclined to share the content -- which I am not -- I would not be permitted to do so.)

Why was the law a big deal? As I explained in a Dorf on Law column in February of 2023 (early in my efforts to find an exit strategy from the Sunshine State):

[The] Stop WOKE Act," signed last year, ... treats as legal discrimination any training of students or employees that "espouses, promotes, advances, inculcates, or compels such student or employee to believe" any on a list of eight sloppy and vague categories of offense, for example:
7. A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.

Nothing vague or overbroad there, eh? As a grimly amusing aside, note that WOKE in that bill's title is a backronym for "Wrongs to Our Kids and Employees," so DeSantis et al. were purporting to stop kids and employees from being wronged by becoming uncomfortably aware of their country's history of racism and bigotry in general. As Bruce deadpanned in his Tropic Press piece: "[I]t bears remembering that Florida is a state that still celebrates 'heroes' of the Civil War—Robert E. Lee, Jefferson Davis, and Confederate soldiers," adding the amusing non sequitur "that, under former governor and now U.S. Sen. Rick Scott, [Florida] banned the use of the phrase 'climate change.'"

It ought to be amazing that even one Eleventh Circuit judge voted to keep that law alive, but we are well beyond the point where anything can amaze. In any event, Florida's insane attempt to "puppeteer[] every university professor in the state" is dead. Yes, it could be revived by an en banc ruling or by the US Supreme Court, but let us imagine for now that the current ruling will be undisturbed and that the Stop WOKE Act is thus not merely dead but really most sincerely dead.

If so, is it safe to go back in the pool? My exit agreement includes a no-backsies requirement, but if it were possible to return, would I feel comfortable attempting to return to Florida? Should other professors feel that the death of the Stop WOKE Act is an all-clear signal?

Obviously not. For one thing, even though the law was put on ice in November 2022, professors across the state were understandably complying in advance, not only with the law itself (which might have been reinstated any day) but in response to the obvious anti-reality chill coming from the state capitol. And of course reasonable professors would do that. As I put it in my February 2023 column:

If you were teaching in Florida right now, and you cared about your job security and had been accused of violating that provision, would you reply breezily that you never said that anyone "must" feel any of those things? Again, the anti-intellectual forces are not going to go after the conservatives in the Econ department or anywhere else. This is about owning the libs -- where "owning" in this case means "having the power to take away the financial security of."
Speaking of job security, one of the moves from the state's political leaders changes the rules in a way that retains tenure in name only. Final changes to the university's regulations appear to be ready to go (if, in fact, they are not already in force) that create post-tenure review procedures for all professors every five years. Again, this is not going to be wielded against professors randomly.

Those changes did indeed go into effect, which means that professors in Florida's public universities can have, at most, tenure in name only. That professors are working under five-year renewable contracts, with spot-checks possible at any time by administrators who have been put in place by hostile Republican politicians, means that there is no way to call Florida's professors free to teach about "divisive concepts." Again, being "divisive" means "saying something about the country's past that Florida's most powerful bigots would rather people not know."

How hostile are they? The CHE piece ended with this:

[T]he DeSantis administration sharply criticized Tuesday’s decision on social media.
"This is a clear and unfortunate example of judicial overreach," DeSantis said. "The Constitution does not block us from fighting back against these ideological fads and from ensuring that our institutions stand on a solid intellectual foundation."
James Uthmeier, Florida's attorney general and a DeSantis appointee, said the majority opinion effectively declares that "public-university professors have a First Amendment right to teach white supremacy and critical race theory, and the Legislature cannot pass laws that say otherwise."
"Totally incoherent and inconsistent with the intent of the First Amendment," he added. A spokesperson for Uthmeier declined to elaborate on the attorney general's legal reasoning.

If you were trying to hold onto your job in a state where the governor and AG are willing to spout that kind of nonsense, what would you do? More importantly, what would you not do?

More broadly, CHE also added this:

Keith E. Whittington, a professor at Yale Law School who studies constitutional law and academic freedom, ... cautioned against viewing [the decision] as a death knell for classroom-content restrictions. ...
"Academic-freedom advocates shouldn't be overly optimistic about what's going to happen in the next round of this kind of litigation."
Even if the Eleventh Circuit has concluded that state legislatures cannot directly dictate what professors may say in the classroom, Whittington said, university governing boards and presidents often retain broad authority to shape curriculum and academic policy. In other words: Administrative interventions like those unfolding in Texas may present different legal questions than statutes like Florida’s "Stop WOKE Act."

I will address the insanity in Texas another time, but suffice it to say that the politicians who are taking control of the minutiae of higher education in red states across the country are not shy.

To put it more directly, these Republican politicians are relentless, and they will be messing with their universities with every fiber of their beings for as long as they are in power. Even an excellent outcome like the Eleventh Circuit's decision merely removes one medium-sized warhead from their arsenal of weapons of mass educational destruction.

- Neil H. Buchanan

Habeas Shmabeas Says the Second Circuit (in a Footnote)

2026-07-27T07:00:00.000-04:00

In my most recent Verdict column, I offered some thoughts about a strange invitation for amicus briefing from the Board of Immigration Appeals (BIA). The BIA asked for views about whether it is bound by Supreme Court precedent "even in situations where an application of that precedent would require the Board to find a statute or regulation unconstitutional." As I explained in the column, of course the BIA is generally bound by Supreme Court precedent, but in certain circumstances that restriction can conflict with a prohibition on the BIA declaring acts of Congress unconstitutional. My column explained that there can be a conflict in cases involving as-applied challenges to federal statutes, depending on how broadly or narrowly one construes Supreme Court precedent.

In order to explore what I took to be an interesting question, my Verdict column took the BIA amicus invitation at face value, but I cautioned at the end that one must be mindful that the BIA could well be acting in bad faith, as it is now packed with Trump appointees. In today's essay, I'll say a few words about the case that appears to have triggered the BIA invitation.

The BIA invitation apparently arises out of removal proceedings involving Mohsen Mahdawi, a U.S. permanent resident who argues that Secretary of State Marco Rubio determined Mahdawi's continued presence in the U.S. was contrary to the country's foreign policy interests as retaliation against Mahdawi for his pro-Palestinian speech while studying for a master's degree at Columbia University. My best guess is that the BIA wishes to reject Mahdawi's First Amendment argument on the ground that accepting it would require it to declare a federal law or regulation unconstitutional, notwithstanding Supreme Court precedent limiting the government's power to engage in retaliation for free speech.

Because I regard the Trump/Rubio policy of removing lawfully present non-citizens in retaliation for free speech as unconstitutional, I would want the BIA to conclude with respect to Mahdawi's case that it is indeed bound by Supreme Court precedents regarding retaliation for free speech. I thus considered accepting the BIA's invitation and filing a short amicus brief to that effect. However, as I noted in the column, the stakes of the general question the BIA posed are mixed:

If the BIA seeks to avoid honoring immigrants’ statutory rights (and thus to defy Congress), it could broadly favor its obligation to follow precedent and downplay the prohibition on finding laws unconstitutional; it would then rule that it is merely applying binding precedent in refusing to honor statutory rights it deems unconstitutional.
Conversely, if the BIA seeks to defy judicial precedent recognizing constitutional rights that override some statute, it could broadly favor the prohibition on declaring laws unconstitutional and announce that the relevant judicial precedents are distinguishable from any case before it.

Accordingly, I'm not going to file with the BIA, although any lawyers reading this essay or the Verdict column are welcome to borrow any parts of my analysis they might find useful.

The Verdict column concludes by observing that any ruling by the BIA on the question it posed in its amicus invitation would be reviewable by the courts. But in the meantime, the courts--that is, a federal district court and the U.S. Court of Appeals for the Second Circuit--have already been involved. Upon his arrest, Mahdawi filed a successful habeas petition and was released from custody after spending 16 days in detention in the spring of 2025. The government appealed that release order, and last week the Second Circuit held that the habeas petition was improper.

The court said that 28 U.S.C. § 1252(b)(9) makes appellate review of a final order of removal the exclusive means by which Mahdawi can challenge the Rubio determination's constitutionality in federal court. In so ruling, it agreed with the Third Circuit's decision in Mahmoud Khalil's case. Then, two days after the Second Circuit decision in Mahdawi's case, a 2-1 panel of the Fourth Circuit reached a contrary decision in Suri v. Trump. Because there is now a clear Circuit split, a Supreme Court cert grant in one of these cases is reasonably likely. For now, I'll focus on the Mahdawi case, but the balance of this essay is relevant to the common issue in all of these cases.

In light of the text of § 1252(b)(9) alone, the holding of the Second Circuit (and of the Third Circuit) is reasonable. However, Mahdawi also invoked the Supreme Court's 2018 decision in Jennings v. Rodriguez, which held (en route to a decision unfavorable to the immigrant respondents) that § 1252(b)(9) should not be read to block federal court adjudication of every case in which an attempt to remove a noncitizen is the but-for cause of the challenge. The Second Circuit distinguished Jennings, concluding that the Rubio determination in Mahdawi's case was more closely intertwined with his habeas petition than the claims in Jennings. That too is plausible, although a closer question.

The question is closer still, and the Second Circuit strikes me as incorrect, in light of a further point Mahdawi raised in a footnote that the Second Circuit in turn addressed in its own footnote: relegating detainees to raising their constitutional claims only by means of a challenge to a final order of removal could violate the Suspension Clause; thus, the argument goes, the court should have invoked constitutional avoidance to read § 1252(b)(9) as not to preclude a habeas challenge to detention pending removal. To my mind, this objection should have been persuasive.

The Second Circuit nonetheless rejected the Suspension Clause avoidance argument. That was partly because the court thought that the footnote in Mahdawi's brief was inadequate to raise the issue for appellate review, but the court also opined on the merits of the argument. It denied that there is "any ambiguity in § 1252(b)(9)" that could be construed to avoid the constitutional question. That strikes me as wrong, given that the Jennings Court has already said that § 1252(b)(9) does not apply to every conceivable case.

The no-ambiguity reading is also belied by the fact that the Fourth Circuit in Suri thought that the best reading of § 1252(b)(9) does allow habeas actions challenging detention on First Amendment grounds. The dissent in Suri said that an avoidance argument rooted in the Suspension Clause was "[l]urking in the majority's analysis," but the Suri majority did not expressly rely on constitutional avoidance or the Suspension Clause. If two appeals courts can find that the same language means different things, that bespeaks ambiguity.

Meanwhile, the Second Circuit approach is at odds with the practice of the Supreme Court to find ambiguity in seemingly categorical language when Suspension Clause issues are raised. For example, in INS v. St. Cyr, the Court applied constitutional avoidance to allow a habeas petition by a noncitizen challenging removal notwithstanding statutory language that seemed to preclude it, prompting a dissent by Justice Scalia accusing the majority of "fabricat[ing] a superclear statement, 'magic words' requirement." Section 1252(b)(9) contains at least as much ambiguity as the statute at issue in St. Cyr.

Echoing the Third Circuit and presaging the Fourth Circuit dissent, the Second Circuit's footnote offered an additional reason for rejecting the Suspension Clause argument. Even where there is a constitutional right to habeas under the Suspension Clause, the court noted, Congress may provide an adequate substitute for habeas. Mahdawi, the court went on, had not met his burden of establishing that the opportunity to file a petition for review of a final order of removal is an inadequate substitute.

One might think that makes sense in a case like Mahdawi's, because he is not currently in detention. He will be able to present the argument that his detention and removal violate the First Amendment in his petition for review of his final removal order. That petition is currently pending in the First Circuit.

Mahdawi was originally detained in Vermont, which is why his habeas case ended up in the Second Circuit. His petition for review is in the First Circuit because the immigration proceeding was in Massachusetts. There might be reason to doubt that it can proceed now, given that there may still be administrative proceedings (as evidenced by the BIA invitation of amicus briefs), but those precise details need not concern us now. The important point is that whenever there is a final removal order, Mahdawi will have an opportunity to challenge its constitutionality in federal court. That, the Second Circuit, Third Circuit, and the dissent in the Fourth Circuit all say is an adequate substitute for habeas.

But they're all pretty plainly wrong about that. Yes, Mahdawi is not currently in custody, but if the Second Circuit is right, then even when he was in custody, he should have had no ability to file habeas or its equivalent to challenge the lawfulness of the custody. And under the logic of the Second Circuit (and the Third and the dissent in the Fourth), that would be true whether the detained immigrant remained in custody pending removal for 16 days, 16 weeks, 16 months, or 16 years.

Finally, no one contends that process within the executive branch is an adequate substitute for habeas. The Second Circuit, the Third Circuit, and the dissenting judge in the Fourth Circuit all contend that the petition-for-review process is the adequate substitute. But because that comes only after a final order of removal, it inevitably delays consideration of a petition for months or years after the initiation of proceedings. Immigrants detained for any substantial amount of time during that period have no ability to challenge their detention as such, even where, as in these cases, they present very strong constitutional objections. That's hardly an adequate substitute for habeas.

--Michael C. Dorf

Bad Argument Follow-Up: They Actually Believe It

2026-07-24T11:05:26.477-04:00

In Professor Buchanan's "Veganniversary" essay yesterday, he referred to a variety of bad arguments against veganism, locating them within the larger culture that of late celebrates what many readers (and this writer) still regard as toxic masculinity. As it happens, I recently had occasion to encounter another familiar bad argument, which I'll describe as a way of making a point about the nature of strong beliefs.

I've just completed a six-day bicycle tour of Counties Kerry and Cork in Ireland. It was part of an organized trip that included me, one of my adult daughters, two guides, and seven strangers who soon became friends. We all got along very well and had a splendid time. At various shared meals, I was given different food items from the standard fare, so it quickly became known that I'm a vegan. Mostly this went unremarked but at one point during the middle of the trip, one of the other cyclists, who, I should emphasize, is a very smart person with good values, said to me, unprompted: "I feel like I shouldn't eat meat because those are animals . . . [long pause] . . . but then I think that animals eat animals."

Not wishing to be that vegan, I nodded and smiled. As gently as possible, I said "okay, but the animals humans eat tend to be herbivores." The topic didn't come up again.

Now, if I were teaching a class in which someone said it's morally unproblematic to eat animals because animals eat animals, I might have asked whether they generally take their ethical cues from the behavior of nonhuman animals. Various nonhuman animal species routinely practice infanticide, rape (including via traumatic insemination), cannibalism, and other horrors. Presumably ethical people would not think that would justify any of those practices by humans.

I bring up this conversation only because it's very recent. I have encountered the animals-eat-other-animals justification for human consumption of nonhuman animals many times before. There's a whole chapter on this argument in Sherry Colb's 2013 book, Mind if I Order the Cheeseburger? It is such a bad argument that one wonders whether the people who make it actually believe it or if it is simply a self-serving rationalization. And that brings me to my main point: They believe it, and it is a self-serving rationalization.

When someone offers a very bad reason for holding a belief, it is tempting to think they do not really hold that belief but are simply offering an excuse. That can be true but it often isn't, especially when the belief was not adopted in response to rational argument but was inculcated through practice, social pressure, and/or indoctrination. Religious belief typically works this way but so do all sorts of other beliefs, including the belief that it is morally unobjectionable to eat animals, which hits the trifecta: in our culture, the vast majority of people: (1) are fed animal products from early childhood; (2) receive constant social cues that eating animals is normal; and (3) are indoctrinated into the belief through stories and slogans (such as the "circle of life"). Thus, for the vast majority of people, anti-veganism (or speciesism, carnism, or call it what you will) is a very strong belief that is central to their identity.

"It is well known that people often resist changing their beliefs when directly challenged, especially when these beliefs are central to their identity." That's a quote from a 2016 academic paper published in Nature and reporting on a study that looked at the neurological basis for the phenomenon using fMRI. The study compared resistance to changing political versus non-political beliefs but did not look specifically at beliefs about eating animals. That's fine for my purposes here, because I want to segué to political beliefs. The study found that people were especially resistant to changing strongly held political beliefs in response to challenges (such as contrary evidence or arguments).

Putting all of this together, we see how people can sincerely believe very bad arguments. Suppose Peter strongly holds identity-defining belief X because it was inculcated through practice, social pressure, and/or indoctrination. Jane confronts Peter with evidence and arguments that call X into question. Peter resists Jane's evidence and arguments by constructing counterarguments that rationalize X. Peter believes these objectively bad counterarguments because of Peter's antecedent and sticky belief in X. This works whether X is Republicans will keep me safe, eating animals is morally acceptable, the Bible is a sensible source of moral guidance, or any other belief, so long as it is strongly held and identity-defining.

There is a substantial body of literature on how to overcome resistance to belief challenges. It mostly finds what one would expect: Try to present your evidence and arguments in a way that doesn't threaten your interlocutor's identity. I'm going to put that point aside today, although I think it's very important for advocates for any cause. My focus here is on the beliefs, arguments, and evidence in the first place.

Finally, I should offer an admission and a word about outliers. The confession is that I am sure what I have described applies to me as well. I like to think I subject my beliefs to rational evaluation and re-evaluation, but part of the phenomenon I've described is that it operates as a kind of filter, so I'm undoubtedly under-counting evidence that contradicts some of my own strongly held core beliefs.

Now the word about outliers: I have been considering how beliefs and resistance to belief change operate in most people. I am not addressing pathological liars, psychopaths, or bullshitters.

--Michael C. Dorf

Veganism, Year Eighteen: Disinformation and the Malign Motives of the Meat Men

2026-07-23T15:55:39.075-04:00

Eighteen years ago tomorrow, I published a Dorf on Law column announcing that I had become a vegan. Since that day, I have faithfully published yearly veganniversary columns -- 2025, 2024, 2023, 2022, 2021, 2020 plus followup, 2019 plus followup, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, as well as the original column in 2008 plus followup. What to say this year?

I continue to be amazed by how much invective is thrown at vegans. I have of course highlighted examples of such bile over the years, largely to point out that (as Professor Colb used to remind me) such attacks would not be happening if we vegans were having no impact. Usually, the invective comes from obviously ignorant sources, as I will discuss at length below, but sometimes it amounts to something akin to "friendly fire."

Because Stephen Colbert's show was yanked off the air by the Trumpists running CBS, I am hesitant to point out that Colbert was sometimes one of the more annoying people on the left who simply could not resist mocking vegans. I took aim at one example of that nervous tic in my 2017 veganniversary column, and earlier this year he unfortunately could not stop himself from going out on a sour note. A few weeks before his final show (on April 15), his monologue included this (starting at about the 2:14 mark, transcript from YouTube):

Ooh, there's uh there's more uh tough news to chew on. Beef is getting harder for Americans to afford ... . Prices prices are rising just as summer barbecue season is heating up. To which your vegan cousin said, "Well, well, well, I guess these tofu ribs don't look so bad after all." What's that? They still look bad and also weird because they are shaped like ribs even though they're made out of coagulated soy. Oh, fine. Be that way. Nut-based cheese, anyone? Cashew cheddar. [applause and cheering] It doesn't melt.

Talk about punching down! And of course, the audience's "applause and cheering" at his half-witticisms are exactly what motivates even smart comics like Colbert to be so lazy.

To be clear, Colbert in general was still very much at the top of his game before his firing, which differentiates him from his former boss Jon Stewart, whose retirement in 2015 was long overdue and whose 2024 return to "The Daily Show" to host on Mondays has merely made it all the more obvious that he is well beyond his best-by date. I mean, how much mugging and self-satisfied giggling is one poorly informed (albeit more often than not well-meaning) man allowed to smugly inflict on the world? (See especially my comments here and here about some of his recent worse-than-useless takes.)

So to be very, very clear, Colbert is/was not bad at all. Quite the opposite, in fact. Even so, take another look at what he said in his monologue above, which at least one of his writers came up with and which Colbert approved and delivered. What is the joke, exactly? That vegan food is "weird," apparently, because it is sometimes formed to look like something else but is "coagulated" and sometimes has a higher melting point.

Devastating. Yet as we all know, people will eat hot dogs, chicken "nuggets," "cheese product," "buttery popcorn topping" -- sometimes even making grim jokes about how they have no idea what is actually in any of those things -- but when anyone dares to suggest that maybe they should eat something that is not a part of an animal that was tortured and then killed, they get their backs up and say, "Hey, I care about what I put in my body!"

Of course, the truly bad faith arguments come from people who are lazy in a different way. That is, while Colbert would occasionally go for a cheap laugh from the "Hey, look at those freaks!" school of comedy, many malevolent people think that they have super-clever responses to veganism, only to come up with nothing. Even so, they somehow feel good about their failed efforts.

As an example, I happened upon a column on a pro-vegan website a few years ago that responded to a scene from the show "Yellowstone," about which I knew nothing at the time. I soon learned that that show and its creator have become popular on the American right for fighting the culture wars through gauzy (to say nothing of dishonest) depictions of American mythology. There was apparently an episode of the show in which a character is confronted by anti-meat protesters, and his version of a zinger was this:

You ever plow a field? To plant quinoa or sorghum or whatever the hell it is you eat? You kill everything on the ground and under it. You kill every snake, every frog, every mouse, mole, vole, worm, quail…you kill them all. So I guess the only real question is: how cute does an animal have to be before you care if it dies to feed you?

As the writer of the piece that responded to that comment noted: "The lead, Kevin Costner, gave a one-liner putdown of veganism that was presented as wise and grounded. The mostly-female protestors didn’t respond, weren’t given a response. It was a weak moment." The authored added:

Costner's point: that vegans only care about "cute" animals, that farming "quinoa or whatever you all eat" kills animals, is easy to reply to. We aren't trying to be perfect. We're trying to care, do ... what we can. Farming vegan foods may kill animals, and displace jungle/forest (which it doesn't need to)—but 85% of farmland and say 100% of ranchland is dedicated to growing crops for animals to be tortured and murdered, or directly for animals to be tortured then murdered. So want to spare the lives of 85-100% of animals? Eat lower on the food chain. Care.
And vegans, last I checked, show up in caring for all animals, not just cuties. And, ranchers aren't our enemy. Industrial ag is, factory farming is, and ranchers and small farmers also find common cause against Big Ag.

Living on the land is beautiful. But if we're truly living on the land, we're living with the land, in harmony, not subjugating it and torturing and killing Nature as we see fit.

I would not necessarily endorse everything in that response, but no one should expect vegans to agree on everything. It is reasonable, however, to expect that a big moment on a major TV show in which a character is given the opportunity to speak for the vegan-hating crowd might be ... persuasive, maybe, or somehow good, at least? I mean, this was not an actual encounter between humans who are taken by surprise and say things that are incomplete, off the cuff, or even inadvertently wrong. This is a scripted show with a large budget and months of lead time to get things right. Right wing websites that linked to that clip inevitably claimed that Costner's character "destroyed" some hapless lefties.

But seriously: "Everything you do has some negative side effect, so no one can oppose anything I do"? As one commentator said after Trump's big speech last week about imaginary 2020 election interference: This is all you've got?! And that response is just as apt here: You've had literally years to come up with your perfect takedown of vegans, and this is the best you could do?! Some failures are especially revealing.

Frequent readers of my columns here on Dorf on Law might recognize this broad phenomenon. It is only the most recent example of my fascination with the idea that people who make embarrassing arguments are unintentionally showing that they simply do not care about being persuasive, because they are able to get away with making claims that they would never accept from an opponent. For example, last week I ended my critique of John Roberts's opinion in the Slaughter case with this: "I often point out that one can easily sniff out the arrogance of power by paying attention to how weak an argument is. Roberts does not feel the need to defend his silly wordplay, because he has the votes." The arrogance of power is easy to identify when those who are exploiting weaker beings cannot even be bothered to make an argument that passes the straight-face test.

But it does not end there. The anti-vegan crowd, especially its most hostile members, does not limit itself to hippie-punching. They want to take away your freedom! Yes, I mean that seriously, but I will allow Paul Krugman to make the point. In one of his NYT columns two years ago, he addressed an effort by Florida Governor Ron DeSantis (who, amusingly in this context, was once the recipient of a Trump insult: the nickname "Meatball Ron") to prevent a "cultured meat" industry from ever coming into being, an effort that I also discussed in my 2024 veganniversary column. Krugman wrote:

But even if you're someone who insists that "real" Americans eat lots of meat, why must the meat be supplied by killing animals if an alternative becomes available? Opponents of lab-grown meat like to talk about the industrial look of cultured meat production, but what do they imagine many modern meat processing facilities look like?
And then there are the conspiracy theories. It's a fact that getting protein from beef involves a lot more greenhouse gas emissions than getting it from other sources. It's also a fact that under President Biden, the United States has finally been taking serious action on climate change. But in the fever swamp of the right, which these days is a pretty sizable bloc of Republican commentators and politicians, opposition to Biden's eminently reasonable climate policy has resulted in an assortment of wild claims, including one that Biden was going to put limits on Americans' burger consumption.
And have you heard about how global elites are going to force us to start eating insects?
By the way, I'm not a vegetarian and have no intention of eating bugs. But I respect other people’s choices — which right-wing politicians increasingly don't.

Is that not sad enough for you? Unfortunately, there is more. The anti-vegan movement is not something that simply popped into politicians' heads. There are, as unbelievable as it might seem, "Big Meat Influencers" on the right, as the YouTuber Rebecca Watson explored in a video in 2023. These are people who have spent the last few years spreading disinformation about how vegans are wimpy "soy boys" and all that nonsense. They try every trick in the propaganda playbook, from spouting junk science to asking "What about the children?"

More to the point, that anti-vegan public relations effort is part of the same ecosystem (although they would surely reject any concern about ecosystems!) as RFKJr's raw milk (and roadkill) obsession, along with the full range of panic about a supposed lack of manliness in modern America. Did you know that sperm counts are down by 50 percent? That is another lie, but the people who failed to laugh when Tucker Carlson was pushing "testicle tanning" are convinced that spermageddon is upon us and can only be fought by Real Men being Really Manly. Their arguments, however, are simply flaccid.

The overall point, then, is that the effort to discredit veganism is now part of the larger effort to suggest that only the most toxic, violent males deserve anyone's respect. Yes, there is a blindingly obvious double entendre regarding "Big Meat" as referring both to eating animals and being procreative. (But never use a French phrase with these dudes.) Overcompensation is overcompensation, and these weak men are frantically hoping that they can prove their virility by shouting to the world, as one of Trump's sons once claimed, "I’m pretty sure I ate 4 pounds of red meat yesterday."

Nothing pathetic about that.

- Neil H. Buchanan

The Supreme Court's Invented Color-Blind Constitution is a National Tragedy

2026-07-22T12:00:00.000-04:00

I do not know the best way to address the effects of centuries of legally sanctioned racist governmental policies. From slavery to Black Codes to segregation to red lining, our country imposed the opposite of color-blind policies on Black Americans for most of our history. These policies treated them first as property, then as indentured workers, then as people white folks did not want in their schools or their neighborhoods. Racist and oppressive government programs led directly to where we are today--a country where people are still judged by the color of their skin not the content of their character.

Black people represent about 13.5 percent of the population. Here are some alarming but not surprising data:

43% of Black people own their homes as compared to 72% of white people. In 1900, yes 1900, the gap was smaller. In that year, 48% of White people owned houses compared to 21% of Black people. The gap is larger now than when segregation was rampant and legal.

The median income of Black households is 36% less than white households.

In the first half of this year, Black unemployment went up while white unemployment stayed the same.

The Black student college graduation rate is 20 percentage points lower than the rate for white students.

There are currently only 5 Black Senators out of 100 possible seats in the Senate. In all of American history, there have been only 14 Black Senators.

21 states have never had a Black member of Congress.

There is currently only 1 Black Governor in the United States.

There are currently only 11 Black CEOs of Fortune 500 Companies.

There have been only 3 Black Supreme Court justices in all of American history.

I could go on and on, but I am confident you get the point. These statistics reveal how far away we are from a color-blind society. Black people simply do not get a fair share of our country's wealth, government/private sector jobs, and educational opportunities. In America, race still matters a lot.

Despite obvious racial disparities that still exist, the Roberts Court acts as if racism is a relic of the past. The Court has prohibited the use of all racial classifications by the government to try to address the effects of our racist past as if that past never happened.

In education and voting especially, the Roberts Court has prevented local, state, and national legislatures from choosing the tools they deem necessary to move us to a more racially just society. It would be one thing if the Constitution demanded that result, but it unequivocally does not. As I have written before, there is nothing in the Constitution's text or history that prevents the governmental use of racial classifications to bring races together or provide more economic opportunities for racial minorities:

The phrase color-blindness does not appear anywhere in the Constitution. One might think that for alleged textualists this void would be a problem. In fact, the word race does not even appear anywhere in the relevant texts the Court waves at in its cases imposing color blindness on every unit of government in America. There is simply no textual basis for the rule.
History fares no better. There is no persuasive account of the Reconstruction Amendments that suggests their original meaning was to prohibit the use of race to address longstanding legalized racial discrimination. The literature on that point is voluminous and persuasive, which probably explains why Justice Antonin Scalia, perhaps the loudest proponent of color blindness other than Justice Thomas, never addressed the question of the original meaning of the Reconstruction Amendments as it pertained to color blindness, even though he preached that rule in case after case.

The justices' insensitivity to current racial discrimination is reflected in the following quote from Justice Thomas, who wrote it in dissent in a voting rights case that just a few years later became the law of the land: "Perhaps an acceptable system is one in which the minority simply cannot elect its preferred candidates; it is, after all, a minority."

The people who drafted and ratified the Reconstruction Amendments would be shocked to hear that the Constitution must be interpreted in a manner in which "the minority simply cannot elect its preferred candidates." They would also be shocked to learn that the Supreme Court has outlawed the use by any governmental entity of all racial classifications to provide opportunities for the very people those Amendments were designed to help.

As I said at the outset, I do not know the best way to move to a more racially just society. Maybe as a matter of policy color-blindness is the best way to achieve that goal. But it is just as possible that we must use race to get beyond the centuries of legal racism the effects of which still haunt us today. But the Constitution's text and history do not answer that question, so it should be left up to the voters and their elected government representatives, not life-tenured judges who are imposing their own policy choices on all fifty states and the federal government.

Taking all racial tools out of the hands of local and national governments dominated by racial majorities is bad constitutional law and unjustifiable judicial aggression by a Court completely insensitive to the plight of Black people in America. It is not an overstatement to suggest that the Roberts Court is breathing new life into America's original sin. And that is a real tragedy.

-- Eric Segall

AI v. J.D.: Which One is More Ridiculous, Ignorant, Dangerous?

2026-07-21T16:13:18.802-04:00

Imagine a person who confidently and condescendingly tells you that he knows the answer to every question, except that he constantly gets facts wrong and cannot reason his way out of a paper bag. Oh, and he is almost as unlikable as Ted Cruz. Is he J.D. Vance, or is he AI? (Admittedly, AI is not a "person," but are we truly sure about J.D.?)

Early last month, I had some fun writing a couple of columns about large-language models -- which have, quite inaccurately, come to be called Artificial Intelligence (AI) -- and how bad they are. On June 3 and June 9, with reference to my lone previous column mentioning AI from last Fall, I stipulated that my critique was not based on tech expertise but simply on the fact that AI has been shown again and again -- no matter how much it has supposedly improved over time -- to be all but useless.

I captured the fundamental problem in a quote from a podcaster that I used in both recent columns: "If you presented a calculator to me and said, 'This'll do any calculation you want, but it'll get a bunch wrong, and you don't know how often, and you don't know which ones will be wrong, so you have to manually check them all anyway,' isn't that useless?" And that certainly applies to J.D., who will confidently spit out words upon words that can in no way be taken at face value. Worse than AI, however, people would be wise simply to assume that what J.D. is saying is always wrong.

Indeed, he openly admitted -- or, more accurately, proudly announced -- that he will lie whenever he feels like it: "If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that's what I’m going to do." This means that although AI is "dumb" in the sense that it naively accepts as fact anything that it scrapes from the internet, Vance deliberately steers away from the most reliable sources of facts and merely makes up things that he or the billionaires who created him would find useful.

Before going further with this comparison between the error-riddled automaton and AI, however, I should take a moment to offer a few relevant side notes.

First, I have complained in my previous columns that the "AI Overview" result at the top of Google searches cannot be turned off. Indeed, it is now apparently the plan to stop providing the results of old-fashioned searches entirely, although we will see about that. Even as it is, however, at best a person has to try to skip past the AI commentary at the top of the page without having one's attention caught by something possibly false, scrolling down to where the old-fashioned results begin. Happily, some tech types have come up with a workaround that only provides pre-AI search results. It is called "&udm=14 the disenshittification Konami code," and the link is here: https://udm14.com/. You're welcome.

Second, for those who would like to read a truly informative and insightful column explaining for laypeople (like me) why AI is not even supposed to be intelligent, the editors of The New York Times op-ed page pleasantly surprised me by having a very smart expert on its list of occasional columnists: Zeynep Tufekci, a Princeton sociologist whose "research revolves around politics, civics, movements, privacy and surveillance, as well as data and algorithms," according to her "about" page. In her most recent column (June 30, 2026), after offering a few amusing anecdotes involving super-silly AI errors, Tufekci lays it out clearly:

Large language models are not reasoning machines. They’re plausibility engines. It’s not just that they don’t test their outputs to make sure they’re correct or logical, or that they fail to do so in certain instances. They can’t, and they’ll never be able to on their own. They can only assess which answers are probable, based on the data on which the models have been trained. And that holds true whether they’re trained on the full breadth of human output or only on peer-reviewed scientific articles. It’s baked into the way they operate.

This helped me understand more precisely why the "improved" AI models never seem to improve. And Tufekci also makes it clear why the "data on which the models have been trained" is not the only inherent weakness of the technology.

On that data problem, I noted in my most recent column on this topic the now-infamous "MechaHitler" incident, which became the leading example of the fundamental garbage-in-garbage-out problem with AI, because that problem is fundamental to the internet itself.

I recently encountered this problem in a way that I had not seen before. I was visiting London, meaning that I was traveling on the Underground, which locals call the Tube. Because I am a hard rock-loving Baby Boomer, I cannot hear the words "the Tube" without thinking of this lyric from The Who's "Who Are You?" in which Roger Daltrey sings about a hungover morning after: "I took the tube back out of town, Back to the Rolling Pin." A few years ago, I wondered whether the Rolling Pin was a real bar and, if so, if it still exists somewhere in London. So I googled it.

On this most recent trip, I recounted to a loved one what I had learned when I researched that question online. It seems that although the guys in The Who came out of London, they (like most of the British Invasion bands of the 1960's) spent a lot of time in New York City. Although Daltrey (singing writer Pete Townshend's lyrics) used the words "the Tube," in fact the story happened in New York, with Daltrey returning to a local bar the morning after a bender. I thought that was interesting, and it was consistent with the way people use idioms in sometimes inaccurate ways.

The problem is that the story is apparently completely false, so when I wrote "in fact" in the paragraph above, I was wrongly repeating falsehoods that I had found on the internet. How do I now know that they are false? At this point, that is almost a metaphysical question, but I can at least note two things that I discovered after I had recounted my story to that admirably patient audience of one.

First, every possible search configuration that I used this time gave me the result that the story did happen in London. (That the opening lyric refers to "a Soho doorway" is genuinely ambiguous, however.) Second, not only is the current information inconsistent with what I found a few years ago, but the New York version of the story seems to have completely disappeared from the internet, as far as I can determine. To be clear, I am aware that one can have faulty memories or even be subject to the Mandela effect (or is it the Mengele effect?). My recollection of that story about the Rolling Pin, however, seems nearly impossible to explain with such phenomena. It is too specific and involved — and simply too counter-intuitive — to be a hazy memory with a few facts wrong, and it is certainly not an example of a Mandela effect, because it is not a false memory shared with others.

In any case, I found this whole thing especially illuminating, because it is not merely about bad information being available online. It also shows that information can come and go. In fact, now that I am publishing this anecdote here, the internet again has at least one searchable source in which "Who are You?" supposedly takes place in New York.

Again, however, it is not simply that AI will always have to rely on outside-generated data that (per Tufecki) it cannot possibly assess for accuracy. AI is also very bad at using what it regards as facts correctly, and when it is correct, it is repetitive. In my June 3 column, for example, I reproduced some of the lyrics from an AI-generated song that was created in response to a friend's prompt involving some of the key locations in my recent nomadic existence. The AI-generated lyrics repeatedly used certain phrases to refer to various places: Washington DC was "a tailored suit" and "marble"; Florida was "heat" and "gators"; and the lyrics kept going back to Amsterdam's "canals." In my penultimate paragraph, I was in full sarcasm mode:

Maybe AI will get much better at all of this over time, but maybe not. [I]t could be that AI will continue to be simply bad. It is, at the very least, not obvious that additional programming could make it choose nontrivial -- to say nothing of accurate -- shorthands for various places. If you knew one of those annoying people who constantly referred to New York as "the city that never sleeps" and gave him "the Big Apple" and "the city so nice they named it twice," he could probably use those three options interchangeably. That would not, however, make him interesting.

In some sense, however, my assessment was too kind, because the evidence to date suggests that the more likely path would be for an AI lyricist to refer to New York as "the Windy City" or "the Big Easy" as frequently as Gotham or "the city that never sleeps." AI is, as I suggested in today's headline, not only ridiculous but irredeemably ignorant and possibly dangerous.

All of which brings us back to J.D. vis-a-vis AI. Who likes AI? Some normal people do, I suppose, but at this point it is mostly down to a few creepy tech billionaires, because AI is useful to them. Who likes J.D.? Even fewer normal people appear to affirmatively like the VP, while everyone else seems to be completely turned off by him. But again, a few creepy tech billionaires think that he is useful to them.

This is because both are easily manipulable. AI sycophantically admits its errors and apologizes. J.D. changes his views without hesitation, and he says that his lies are for the greater good. He also, however, has an almost mystical capacity to make himself look ridiculous. Lecturing the Pope to "be careful" when speaking about theology is a self-own of biblical proportions (wink), and J.D. also says self-negating things out loud. As The Guardian recently reported, for example, Vance has admitted that he has no idea how diplomacy works:

On Friday Vance went on Fox where he expressed frustration with diplomatic protocols vis-a-vis Iran and said: "I’ve gotta be honest with you – I don’t really understand these things. [But] I’m trying to be respectful. Given my position in the last year-and-a-half, I have to care about diplomatic protocols all of a sudden."

Another important side note: Speaking of the Pope, his recent encyclical against AI was an example of moral leadership in its purest form. After what happened to Francis, we should all hope that Leo steers clear of Trump's Number Two.

But back to J.D. and Iran. This is the man who was supposed to be negotiating a diplomatic end to his boss's disastrous war of choice, and he said out loud on the TeeVee box that the whole diplomacy thing puzzles him. In addition, as Senator Chris Coons (D-Del.) reportedly put it at the time: "The easiest way to tell that even the White House knows this deal is a disaster? Instead of trumpeting it as his own deal, Trump is putting the eventual blame on" our hapless Vice President.

Again, AI is dumb for obvious technical reasons. J.D. is even dumber, however, because he combines factual ignorance with motivated reasoning and an inability to stop himself from saying unfiltered nonsense out loud. Although Margaret Sullivan, the astute media commentator, claims to see a method in his madness -- essentially an attempt by Vance to prove to Trump's base that he (Vance) is just as unhinged as they want him to be -- she provides example after example of "loony things" that Vance has said that cannot possibly serve that purpose, nor do they make him seem more human-like. Campaigning for Viktor Orban? Dismissing the importance of Watergate? Good calls.

Back when Antonin Scalia was alive, I occasionally heard this from his defenders: "You might not agree with him, but ya gotta admit that he's a great thinker." That was never true (as I explained in a 2022 column), but at least it had a certain prima facie plausibility to it. In the end, he was mostly bombast and overweening, unearned self-regard. Vance has all of that, but without even the most basic case for presuming that there is any brilliance lurking under the surface. (And no, going to an elite law school does not prove anything. At all.)

In the end, J.D. is the worst version of what AI would be if it were (slightly) more human.

- Neil H. Buchanan

Is the Supreme Court's Police Department Unconstitutional? A Question Inspired by the Testimony of Justices Kagan and Barrett

2026-07-20T02:00:00.000-04:00

Last week, Justices Barrett and Kagan appeared before a House appropriations subcommittee to explain the Supreme Court's request for a budget increase. As has been widely reported (e.g., here), the bulk of the requested increase is to address heightened security needs, as threats to Justices have increased in recent years. Both Justices Barrett and Kagan pointed to the Dobbs leak in 2022 as the point from which to measure the increase. Certainly there were security threats that one could specifically tie to that leak, most prominently the man who was arrested in June 2022 near Justice Kavanaugh's home with a gun, a knife, pepper spray, and burglars' tools.

Overall, however, I suspect that the threats being directed at the Justices are simply part of the larger trend of increased political violence more broadly. In general, that threat is greater from the right than from the left, although I don't know whether that's true with respect to threats directed specifically at the judiciary and Supreme Court justices. Needless to say (but I'll say it anyway), threats of harm to Justices and their families warrant condemnation, regardless of the ideology of the people making the threats or those at whom they are directed.

I now offer a few observations based on the hearing.

(1) Justice Kagan took the lead overall. Justice Barrett offered three stories from her own experience and that of her colleagues. First, she said she was at a loss how to explain to her twelve-year-old son why she needed a bullet-proof vest when one was issued to her. That does seem very rough, but I was actually more disturbed by the two other main stories she related. Justice Barrett mentioned that her home was SWATted, which is not merely a threat of violence but, given what has sometimes happened to others who have been SWATted, an actual attempt at violence. Justice Barrett also recounted that she and some of her colleagues sometimes receive unsought deliveries (presumably of things like pizzas) addressed to Daniel Salas. He was the son of Judge Esther Salas and was shot and killed by "a disgruntled lawyer posing as a delivery driver." There is no way to understand such acts except as a threat to murder a Justice's family members. What the hell is wrong with people?

(2) Some of the questions posed by the subcommittee members (especially the Democrats) had nothing to do with the Court's funding request. The topics that interested these members the most were the shadow docket and the possibility of stricter (or really any enforceable) ethics rules for the Justices, especially with respect to limits on gifts. Although I am sympathetic to the substantive positions taken by these subcommittee members, and the Justices tried to answer the questions, these lines of questioning fit very awkwardly into the hearing overall.

(3) Justice Kagan said that the bulk of the funding increase for security would go to paying to hire more Supreme Court Police. In response to a line of questioning about physical security measures at the courthouse, Justice Kagan said that she and her colleagues generally dislike fencing and other barriers that make it difficult for the public to gain access to the court because they want transparency. That struck me as at best ironic given how resistant the Court continues to be towards allowing cameras in the courtroom to livestream oral arguments. I say this less for me than for the general public. I'm very glad that the Court now livestreams the audio of its oral arguments. I don't need video because I recognize each Justice's voice and with audio-only I can listen while doing chores (or posting snark on BlueSky). But given the broader culture, video should also be streamed and available for the public generally.

(4) Justice Kagan explained repeatedly that the budget increase requested would be for the purpose of increasing the capacity of the Supreme Court Police because the Justices don't like having to rely on the U.S. Marshals Service, which is part of the Department of Justice. That got me wondering: Is the Supreme Court of the United States Police Department (SCUSPD), as it is officially known, unconstitutional following Trump v. Slaughter?

By law, SCUSPD officers can make arrests for violations of federal and state laws. That same law authorizes them to carry firearms. They thus appear to exercise pure executive power: law enforcement. Yet they are located within an agency, the SCUSPD, that is not headed by anyone who serves at the pleasure of the president. Rather, they answer to the Supreme Court Marshal, who, by law, is appointed by and removable by the Court.

Hold on. Doesn't the Court need its own police force?

That depends on what we mean by need. Justice Kagan and Congressman Steny Hoyer agreed that when one has a security detail, it's very helpful if the members of that detail develop a relationship with the person to be protected. Never having had (or needed) my own security detail, I take their word for that, but that seems an insufficient justification for locating the relevant personnel in the judicial branch. The same particular U.S. Marshals could be detailed to particular Supreme Court Justices even though those Marshals are within the executive branch.

The real reason for giving the Court control over its own police force is to ensure its judicial independence. Especially now, with a vindictive and petty president who has shown a willingness to withdraw protection from those he regards as his political foes, one can absolutely see the need for the personal safety of the Justices and their families not to depend on the executive branch of government, with which the Court and individual Justices are sometimes at odds. Put differently, there is a principled reason for the SCUSPD to be independent of the executive branch.

But . . . wait for it . . . wait for it . . . there are also principled reasons for Congress to have structured other agencies as independent of the executive branch. The Merit Systems Protection Board, the Federal Election Commission, and various other agencies that Congress insulated from direct presidential control with good-cause removal protection were made that way because Congress valued some combination of subject-matter expertise and distance from direct political control. Yet that was not enough to preserve independent agencies in Slaughter.

Except for the Fed. In Trump v. Cook, the Court recognized that central bank independence is extremely valuable for averting economic ruin. However, perhaps in tacit acknowledgment that this sort of functional justification was at odds with its destruction of all other independent agencies, the Court ultimately preserved Fed independence as a "special arrangement sanctioned by history."

But here's the thing. No similar history justifies an independent SCUSPD. In the realm of judicial security, there is nothing remotely similar in the early republic to the First and Second Banks of the United States. The Supreme Court had no police force whatsoever in the early republic. It did not get a Marshal until 1867. That is exactly the same year in which Congress enacted the Tenure of Office Act, which the Court in Slaughter treated as the paradigmatic congressional overreach. Thus, an institution with a pedigree extending only as far back as 1867 cannot render the SCUSPD a special arrangement sanctioned by history.

Indeed, things look even worse, history-wise. The Marshal circa 1867 provided security in the sense of keeping order in the courtroom, but the Court did not get an actual police force until 1935, the very same year that the Court decided the Humphrey's Executor case that it overruled in Slaughter. Simply put, whatever history makes the Fed an exception to the rule of Slaughter does not apply to the SCUSPD.

So, is the SCUSPD unconstitutional? In light of Slaughter and Cook, the answer seems pretty clearly yes. However, the Justices seem to really like having their own police force. Thus, the smart money says the Court would find anyone challenging the SCUSPD's authority to lack standing or, in the event it could not duck the merits, that it will invent some new exception for . . . uhm . . . reasons.

A Few Somewhat Random Reactions to the Court’s Latest Term, Part Two: Movement Conservatism Drops All Pretense

2026-07-17T13:33:20.283-04:00

The US Supreme Court's just-completed term will go down as another bloodbath for American constitutionalism, for the rule of law, and even for basic decency. In yesterday's Part One of this two-part column, I explained that my goal is not to provide a "summary of the term" analysis along the lines that Professor Dorf has already done so well. Instead, I have collected a few stray threads within various cases that might provide useful ways to think about what is happening and is likely to happen in the near future.

Yesterday's entry promised a long list of such stray threads, but in fact my first two examples were more than enough to fill a column (and then some). Those two examples included a good outcome (Chatrie v. U.S., a Fourth Amendment case the Professor Matthew Tokson nicely analyzed in three posts on this blog) and one with a very bad outcome (Mullin v. Al Otro Lado, in which the Roberts Six played with words to negate a duly enacted statute).

To emphasize how insane that latter case's holding is, one need only understand that Congress enacted a law providing that when a person comes to the US and asks for asylum, the US must process their claim. That is, a person who makes it through whatever harrowing journey was needed to arrive at the border can walk up and present themselves to US border officials and say, "I want to do this the right way, so I'm here to provide the information necessary for you to process my asylum request." The Court's MAGA-fied supermajority, however, held that if US border officials cleverly set up physical barriers such that the would-be applicant cannot say that he was ever "in" the US, then no such process is required by law. So much for all the work that Congress did in setting up and providing funding for processing such applications.

In any event, the outcomes of other cases this term were often at least as absurd and politically transparent. Picking up from where I ended with yesterday's first two examples, I will continue with two additional reactions here:

(3) Roberts's facile wordplay becomes even more ridiculous.

Just as it used to seem telling to point to the rank hypocrisy coming from conservatives regarding practically everything (so-called states' rights in abortion cases quickly giving way to calls for a nationwide ban post-Dobbs being the most obvious example), it once seemed useful to mock John Roberts's infamous and obviously disingenuous claim during this confirmation hearing that he would only "call balls and strikes." By now, however, revisiting that obvious lie feels as useful as pointing out that, say, Donald Trump used to promise that he would release his taxes.

What does still seem relevant is that the Chief Justice somehow manages to have reached age 71 without ever growing out of his sophomoric attempts at cleverness. In the terrible Slaughter decision (holding that Trump can fire any administrator without cause, even those whose positions were set up by statute to be politically insulated, a case that Professor Dorf analyzed here), Roberts gave us another example of his 15-year-old alter ego at work:

To "discharg[e] the duties of his trust," the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President's power are subject to removal by him.

Gee, what a naked policy argument from an avowedly principled conservative in a constitutional case! And, I might add, it is not even a very good policy argument, relying at best on wordplay deliberately confusing two meanings of the word “trust.”

To be a bit less sarcastic, the point is that there might indeed be good reasons for a President to be able to fire commissioners, but that is not what the Court should have been deciding in that case. And the fact is that any President can be "saddled … with those with whom he cannot work," for example when a Vice President loses the President's favor. And the Senate could continue to refuse to confirm nominees for any position, leaving the President with the choice of going without a confirmed appointee or working with someone the Senate deems acceptable but the President hates.

Heck, Roberts himself wrote the majority opinion in Trump v. Cook, which carved out an exception to Slaughter for the Federal Reserve. Why? Reasons. The bottom line, however, is that the President must now continue to discharge his duties of trust when it come to the nation's monetary policy while being "saddled with those with whom he cannot work." Trust me.

But all of that is a sideshow, because my point here is that Roberts apparently believes that he can use the word "trust" as if it has only one meaning: the president has "duties of trust," so he must be able to "trust" the people he works with. I wonder what Roberts thinks his Trusts and Estates course in law school was all about.

Moreover, am I the only person who heard echoes of another infamously dishonest Roberts line, from 2007's Parents Involved? For those who might have somehow forgotten, he intoned: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," and he followed up in 2023's Students for Fair Admissions with this: "Eliminating racial discrimination means eliminating all of it."

Right, because as so many people have noted (and returning to full sarcasm mode), all we have to do is ignore all of the discrimination in the world and then say that we have stopped discriminating. But that is the height of legal genius compared to Roberts’ trust/trust deception in Slaughter.

I often point out that one can easily sniff out the arrogance of power by paying attention to how weak an argument is. Roberts does not feel the need to defend his silly wordplay, because he has the votes. Even so, it does not say good things that he somehow feels the need to insult everyone's intelligence with drivel like this.

Roberts and his cohorts are what movement conservatism has inflicted upon us, and they feel so unfettered that they openly cited a 17th Century witch hunter when overturning women's reproductive rights. At least Roberts himself did not sign onto that one, but as Professor Dorf pointed out a few years ago, the other Bush v. Gore alums most emphatically did. Indeed, they apparently participated in adding it to the final decision. (And as long as we are still not sure whether Mitch McConnell has yet passed on, I would be remiss if I failed to note his role in creating this Court.)

(4) Living constitutionalism and birthright citizenship

In Trump v. Barbara, the birthright citizenship case, five justices said that the Constitution means what it says. The other four were willing to engage in atextual, ahistorical, and anti-precedential gamesmanship to find the opposite. The odd-man-out of those four was Brett Kavanaugh, who said that birthright citizenship is not required by the Constitution but is required by current statute. That is no less insane, because he can only get there by mangling the Fourteenth Amendment along with a longstanding precedent (1898’s Wong Kim Ark, a ruling that was not "egregiously wrong," by the way).

Here on Dorf on Law, in "We are All Constitutional Pluralists Now: Just ask Justice Brett Kavanaugh," Professor Segall wrote an excellent piece exposing Kavanaugh's opportunistic use of non-originalism in his Barbara concurrence/dissent. Ending that column, Professor Segall drew from some of his own scholarship and wrote: "Justice Kavanaugh's descriptive account of how judges decide constitutional cases is spot on. They apply old principles to new facts based on modern imperatives. ... If you do not believe me, listen to Justice Kavanaugh."

I would amend that conclusion in what I think is a very friendly way (although Professor Segall certainly can take the floor to respond, if I misunderstood). Here is my version of that last sentence: "If you do not believe me, listen to the version of Justice Kavanaugh who wrote in Barbara, a version that will disappear as soon as it's useful for him to pretend to be an originalist again."

On the substance, however, Kavanaugh is simply bad at trying to be a pluralist. His argument, if one can call it that, to show that the Fourteenth Amendment is not dispositive in the case is based on his observation that there are already some exceptions to who qualifies for birthright citizenship: children of foreign diplomats, of invading armies, and so on. He then claims that the Constitution must live and breathe, and therefore that the exceptions are not "a closed set trapped in amber" (internal quotation marks omitted), which in turn supposedly means that Congress could add to the list recognized in Wong Kim Ark.

This would be B+ work (maybe A-) from a 2L struggling to break free of fake originalism, so it is not terrible as a first stab. Where he goes wrong, however, is his claim that the exceptions — "for 'children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory' and 'children of members of the Indian tribes'" — are "disparate." He then claims that the "only apparent principle unifying the four disparate exceptions ... is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign."

OK, so the only unifying principle is that the parents are not US citizens, I guess. But the genuine unifying principle is found in the Fourteenth Amendment itself, which says that children who are subject to the jurisdiction of the United States are citizens. The children of foreign diplomats are not subject to US jurisdiction (as people who are harmed by them on US soil quickly learn to their dismay), nor are the children of occupying armies, nor are the children of indigenous peoples. And children "born on foreign public ships" fail even the "born or naturalized in the United States" premise of the Amedment itself. Kavanaugh tries to mock the majority's invocation of "the fiction of extraterritoriality," but in fact we engage in such fictions all the time. Territory itself is a legal fiction.

One supposes that Kavanaugh might be graded on a curve, because he clearly is often in over his head. After all, he is the author of the fateful words that are now being used to justify "Kavanaugh stops": "The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest." In other words, Kavanaugh is back at Day One of 1L, struggling to understand that recognizing "rights of the accused" is not tantamount to approving "the Purge." This is simply shocking, but it should no longer surprise. Kavanaugh surely spends his time with people who think that "only guilty people are arrested" and that the Warren Court wanted to set obviously guilty people loose on the populace.

Again, movement conservatism is on full display here. Kavanaugh's predecessor on the Court wrote a fantasy-land opinion in 2002 that claimed that people of course feel "free to leave" a bus that had been boarded by law enforcement agents, because the officers did not completely block the aisle or stand in the doorway. People will surely feel free to walk out, right?

These four examples of dangerous legal reasoning -- two in cases with good outcomes, two in bad -- are of course hardly an exhaustive list of what one can find in the most recent term's output from the six Republican appointees. Taken together, however, they offer an indication of just how much nonsense we can find in bad and good decisions alike. They also remind me why I am now almost completely on board with Professor Segall's long-held view that the US Supreme Court is not a court at all.

In other words, Amy Coney Barrett's assurance "that this court is not comprised of a bunch of partisan hacks" has never been more difficult to believe.

- Neil H. Buchanan

A Few Somewhat Random Reactions to the Court’s Latest Term, Part One: Opportunistic Formalism

2026-07-16T16:26:32.288-04:00

How bad was the latest US Supreme Court term? Plenty bad, especially for anyone who cares at all about democracy or the rule of law. There were a few relatively pleasant surprises, but even those cases (as I will demonstrate shortly) can have worrisome lead linings hiding inside. But the truly awful decisions dominated the Court's output once again in 2025-26.

For readers looking for a relatively traditional "summary of the term"-style analysis, one could hardly do better than to click on Professor Dorf's recent "Is the Roberts Court Hyperopic or Willfully Blind?" (first posted on SCOTUSblog). Because constitutional law has never been my day job or even my hobby, I am not pretending to be able -- or even inclined to try -- to offer that kind of overall assessment of the Court's work. Instead, my approach here and in tomorrow's Part Two of this column will be eclectic, discussing a few notable points within cases that strike me as having been overlooked or underappreciated.

I should add that the usual ConLaw suspects at Dorf on Law have published deep analyses of most of the top cases of the term, including the rulings on independent federal agencies (with guest Eric Berger's additional analysis of the same case), anti-transgender laws, birthright citizenship, another insane Second Amendment case, Article III versus the Seventh Amendment, and Matthew Tokson's especially illuminating three-part response to a major Fourth Amendment privacy law ruling. Anyone who wants to learn more about those cases will find plenty of reading material on this blog.

I will also not pretend to have a unifying theme here, so I will simply begin with the classic disclaimer "in no particular order."

In no particular order:

(1) A time bomb in the privacy case

We can start with Professor Tokson's excellent summary of that landmark Fourth Amendment case (Chatrie v. U.S.). Already contradicting myself after saying that these reactions are in no particular order, I in fact begin here because the case was a rare instance in this sad term of a very good decision. Unfortunately, however, the Court's analysis might not have the staying power for which one might hope.

To be clear, I agree with Professor Tokson's analysis in all respects, and his extensive discussion carefully walks us through how the 6-3 majority (but really a 5-4 majority on the important constitutional matters, because Neil Gorsuch's oddball analysis was rejected by all of the other eight justices, even as he concurred in the result) smartly rewrote privacy law for the smartphone age.

A key issue in the case was whether a standard opt-in screen on a cellphone app could be deemed to constitute a waiver of Fourth Amendment protections. Professor Tokson explains that the Court's majority completely rejected the idea that clicking "yes" on a cellphone's permission screen was a voluntary waiver. Happily, the majority took an approach wholly at odds with the usual contract formalism that legal conservatives use to justify tilting the playing field against weaker parties.

This was an especially welcome move in that the Court was willing at last to say that contracts of adhesion (form contracts) are inconsistent with the realities of life in a smartphone-centered world. In Professor Tokson's words near the end of his second column:

The Court rejected these arguments in favor of a more holistic, common-sense view of the modern world. Perhaps Location History, or Google Maps itself, is not essential to life in today’s world. But this is far too narrow a view of how life works. Cellphone users use apps, if not Google Maps then another app, and in doing so they inevitably disclose personal information to service providers. This is the “price of conventional cell-phone usage,” and cellphone usage is a pervasive and insistent part of daily life. In this sense, the disclosure of location information to some company or another is not voluntary in any meaningful sense, and it is certainly not a waiver of a person’s constitutional rights. It’s the inevitable result of living in the modern world.

How could that not be good? It is, yet I cannot help but think that a cynical response is also entirely realistic. Professor Tokson added that "[t]he Court also correctly noted that Google’s permission screen did not inform users about virtually any aspect of its data collection and use." I am not, of course, faulting Professor Tokson for this, because he is accurately and faithfully describing what the majority included in their opinion. It is the mischief that such dicta can cause that worries me.

And to be clear, the quoted words truly are dicta. Understood within the context of the overall opinion, it is merely an "oh, and by the way" kind of comment that could and should have been left out of the final draft. Why?

Imagine that you are a lawyer for Google or any of the other oligarchs. You look at that footnote, and what do you do now? Even in light of the majority's entirely welcome (to the point of jaw-dropping) rejection of contract formalism in digital "agreements," this is simply an invitation for the bad guys to grab onto that unnecessary dicta and say, "Well, the Chatrie decision said that we didn't provide information on our permission screens. Guess what we just did?"

But again, one might push back at my pessimism and say that an ideologically mixed majority joined an opinion that, properly understood, should result in anyone looking at my hypo and responding: "Come on! They essentially said that it didn't matter what was on the permission screen, because they surprised us all by admitting that clicking permission screens is not true permission in the relevant legal sense. Get over it." Why am I so stuck on this? I will offer an anecdote and then a general observation.

I have not been able to track down the case, but the Supremes in the 1990's wrote a 9-0 decision on Fourth Amendment searches that included a two-justice concurring opinion. That additional opinion offered a hypo that was not presented by the facts of the case, with the two justices suggesting that such a variation on the facts might -- might -- raise a more complicated issue at some point. None of the other justices signed that concurrence. Even so, I saw a district court judge soon thereafter ruling against a defendant on the basis that his facts were similar to those in that concurrence's hypo. Even after being reminded that the controlling opinion did not carve out any exceptions, the judge insisted on ruling against the defendant.

An anecdote is an anecdote, and we can surely find many examples of judges misapplying case law much more egregiously than in this example. Even so, seeing that example play out a quarter of a century ago has always stuck with me, precisely because the dicta was so flimsy yet served the judge's purpose of claiming not to be defying precedent. And in Chatrie, it is the majority itself that signed onto the dicta, not merely a subset of those justices. In a controlling opinion that was so well crafted, this stray footnote strikes me as sloppy at best, reckless at worst.

My general observation is that this Court in particular will not continue to be welcoming to modernist arguments of the sort that the Chatrie majority adopted. The conservative legal movement at its very foundation is opposed to realism, living constitutionalism, and all that. The Chicago School's scorn fueled a backlash against Cardozo's contract modernism, and this Court's six Republican-appointed justices show no inclination to revise that scornful dismissal except in one-off cases like this one. They certainly have no problem with arbitration clauses, much less with coerced confessions. Such a court is not to be trusted with any of this nonsense.

Even opinions that are seemingly huge wins can, therefore, invite bad-faith responses. If I were a betting man (one who had somehow not already lost everything on prop bets), I would bet the house that that one sentence from Chatrie will be its (our) undoing.

In the larger scheme of things, however, even the worst-case version of how this case could unravel is nothing compared to what the six-justice majority has been doing to the country with its other rulings.

(2) Legalistic lawlessness in the "other' immigration case

Most of the focus among legal commentators on June 25 was on Mullin v. Doe, the horrendous decision in which the usual six suspects allowed the Trump Administration to remove so-called Temporary Protected Status (TPS) from ~~brown and black people from shithole countries~~ thousands of Syrians and hundreds of thousands of Haitians living in the US. The Dorf on Law columns that I mentioned above by Professors Berger and Dorf both described just how bad that decision was.

A second case announced that day, however, is also worth thinking about for a moment. As the American Immigration Council (the Council) explained, "Mullin v. Al Otro Lado, endorses a policy dating back to the last months of the Obama administration which [italics sic] permitted border officials to turn away asylum seekers arriving by land to ports of entry along the U.S.-Mexico border." Recalling that President Obama was justifiably criticized at the time as the "deporter-in-chief," the seeming bipartisanship of the current Court's ruling is much less benign than it might seem at first glance.

In any event, the Council summarizes the predictable 6-3 opinion:

U.S. law provides that any person who is physically present in the United States or who “arrives in” the United States may apply for asylum. Congress further directed that immigration officers must “inspect” any noncitizen who “arrives in” the United States to determine if they should be admitted to the country — a function U.S. Customs and Border Protection (CBP) officers carry out thousands of times per day at ports of entry. ...
Today, the Supreme Court ... overturn[ed] a 9th Circuit decision which had found that CBP had an affirmative obligation to process people who arrive at ports of entry but who have not yet stepped on U.S. soil after CBP officers have blocked their passage. The Court found that there was a difference between “arrives in” and “arrives at” the border, and declared that only those individuals who have physically set foot in the United States have a right to be inspected and apply for asylum.

Judas Priest!! Two of the justices who in Chatrie were seemingly so realistic about modern life and who were unwilling to go with the formalistic idea that clicking yes on a "permission screen" granted genuine permission returned to their dishonest roots and said with straight faces that so long as an agent can physically block a potential asylum seeker from putting a toe on US soil, the law requiring them to be processed does not apply.

As the dissenters wrote, their six benighted colleagues preposterously "bless[] the Executive Branch’s decision to slam the door shut on all who are fleeing persecution, despite the detailed inspection and asylum system that Congress enacted and commands." Or more pointedly, the Court's now-openly MAGA supermajority allows a tendentious literalist interpretation of a word in a statute to negate the rest of the statute. "We, Congress, are setting up a system by which potential asylees will be processed. But because we wrote 'in' rather than 'at,' we obviously are allowing any president to ignore the whole thing."

Interestingly, this is another instance in which it feels like I have seen this movie before. When I was clerking, one of the largest categories of cases was from federal prisoners who would file pro se petitions (that is, legal documents that the prisoners wrote on their own, not with the assistance of an attorney). Although almost all such petitions were ultimately denied -- no matter the content, this being the US criminal justice system after all! -- every decision that we drafted cited the long-established requirement that pro se pleadings must be "liberally construed."

What does that mean, and why does it make sense? In standard legal proceedings, with all sides represented by counsel, courts understandably hold advocates to very strict standards. For an amusing recent example of this, note this anecdote in Professor Dorf's column yesterday:

I once wrote an amicus brief in support of the respondent in a Supreme Court case, with support from a law firm that agreed to print it. Under the Court's rules, the cover was supposed to be dark green. The firm produced a cover that was kinda sorta dark green but also kinda sorta brown--and also, weirdly speckled. The firm filed the brief without showing me the cover first. The clerk rejected it as not sufficiently green. Luckily, there was still time to re-file with a different, more conventionally dark green cover.

Again, one can see why courts would be extremely picky about such things, because of course every exception runs the risk of opening the floodgates to more and more deviations from standard protocols. All very sensible. By contrast, in pro se cases, and especially where the pro se litigant is in prison, no reasonable person could countenance summary denials of submissions that did not meet every tiny requirement of a court's rules of procedure.

But there are, of course, unreasonable people out there, many of them in judicial robes. In one case, a judge in my circuit floated an opinion in which he wanted to deny a pro se litigant's request on the most technical of grounds. When the other judges (most likely wondering whether their colleague had been smoking something) pointed to the "pleadings must be liberally construed" standard, the undaunted judge (a Bill Clinton appointee, by the way) replied in essence: "Aha, but that only applies to pleadings, and they aren't pleadings until they've been accepted by the clerk of court. The clerk, in turn, is required to turn back all submissions that are not jot-and-tittle perfect!"

Again, the other judges in that case had no intention of actually granting a federal prisoner the relief sought. God forbid. This guy, however, made it clear that he was tired of even pretending to take the pro se petitions seriously.

The column by Professor Dorf from which I quoted just above ended with an excellent discussion of legal analogies, and he showed that there are often difficult calls when drawing analogies. Here, however, there is no difficulty. A Tenth Circuit judge says, "I don't have to give these weak people any respect, because I can redefine 'pleadings' in a way that erases the minimal protections provided by the law." And now six Supreme Court justices say: "We don't have to give those weak people any respect, because we can redefine 'in' absurdly to make it impossible for any of those weak people to receive any protections provided by law."

In the end, then, both a good outcome (Chatrie) and a terrible one (Al Otro Lado) provide windows into the ways in which being unrealistic sticklers can -- and too often does -- allow courts to strip rights from the least powerful people in society. With this Supreme Court majority, we can expect more of the latter (already bad) and fewer of the former (only potentially bad) cases in the future

I will add some thoughts on other recent cases in Part Two tomorrow.

- Neil H. Buchanan

Chatrie and the Supreme Court's Embrace of Privacy Doctrine

2026-07-15T07:00:00.000-04:00

I've been blogging here (and here) recently about Chatrie v. United States, the Supreme Court's landmark Fourth Amendment case decided late last month. Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. In today’s post, I'll talk about which theories of Fourth Amendment law the Court adopted in Chatrie and which it didn't. First, I’ll explore why Justice Gorsuch hasn’t gained any support over the past eight years for his property-centered approach to Fourth Amendment searches. Second, I’ll look at the bigger picture of the Court’s embrace of privacy and rejection of traditional measures in applying the Fourth Amendment to the modern world.

What Happened to the New Property Era in Fourth Amendment Law?

Justice Gorsuch wrote separately in Chatrie, concurring in the result. He argued that the Court should discard the Katz test, i.e. the “reasonable expectation of privacy” test, and instead resolve the case on the basis that Chatrie had a property right in his Google Location history. I discussed the profound ambiguity of the property question in one of my previous posts, and indeed there is little in existing law to suggest that an internet user would have a property right in data compiled by Google, stored on Google’s servers, and likely used exclusively by Google.

But perhaps the most remarkable thing about Justice Gorsuch’s concurrence is that, just as in Carpenter, he is writing it alone. Since 2018, when Gorsuch suggested a property-based approach to Fourth Amendment law, the membership of the Court has changed substantially, with Justices Barrett and Kavanaugh replacing Justices Ginsburg and Kennedy. Gorsuch’s approach is (at least nominally) grounded in textualist and traditional understandings of the Amendment rather than evolving notions of privacy, and thus was well suited to appeal to the new Court. A host of legal scholars and other legal actors have proposed property-centered and positive-law-centered approaches to Fourth Amendment law in recent years. The lead argument in Chatrie’s merits brief was that Chatrie had an affirmative property right in his Google Location History. Adam Unikowsky, who argued Chatrie’s case before the Supreme Court, focused almost exclusively on this position during oral arguments. Chatrie was almost a perfect case for the property argument, because Location History is especially accessible to users compared to other forms of digital metadata, and Google went out of its way to characterize this data as belonging to the user, who could access and delete it as they chose.

But Justice Gorsuch picked up exactly zero votes for his approach. Meanwhile, the privacy-based framework of Carpenter has gained Justice Kavanaugh’s vote—indeed he voted for the expanded version set out in Chatrie—as well as Justice Barrett’s vote, as she noted in a short dissent. Barrett believed that Chatrie had voluntarily exposed his movements to Google, but she “ha[s] no quarrel with Carpenter v. United States.”

There may be several reasons why the property approach has failed to catch on, but the primary reasons are likely that it would make Fourth Amendment law even less clear than it has been under the Katz test and would underprotect digital data if applied rigorously. Grounding modern Fourth Amendment law in actual property rights works poorly because property law is complex and uncertain, with numerous forms of ownership that are divisible and combinable across people and time. The property law of digital data is even less certain, and related forms of positive law like privacy torts are far less developed than Fourth Amendment law, with its decades’ worth of precedents at all levels of the judiciary. Property rights are also malleable, and governments can manipulate them in order to facilitate pervasive surveillance. Property just doesn’t work as the basis for a wholly different body of law, and making it the center of Fourth Amendment rights would create a tangled doctrinal mess.

Justice Gorsuch’s concurrences in Chatrie and Carpenter suggest that courts should apply property law capaciously, extending it beyond its current bounds to cover things like Location History stored on Google’s servers and even cell site data compiled by cell service providers from which cell phone users are wholly excluded. But a more rigorous application of property law would likely underprotect digital data, the target of much of modern surveillance. Sensitive forms of modern information like web surfing data, communications metadata, medical and biometric data, and more are unlikely to be protected by a property-based Fourth Amendment approach.

There are other problems with Justice Gorsuch’s supposedly textual and historical approach, which is only partially faithful to the original text and fails to reflect the Founders’ well-documented concern with privacy as well as property rights. But the problems of administrability and limited applicability to modern contexts are likely fatal for Gorsuch’s attempted reimagining of Fourth Amendment law in any event. The push by Gorsuch to make the Fourth Amendment turn on property concepts seemed like the next big thing. After Chatrie, it seems more like a lone Justice’s misguided theory.

The Triumph of Privacy in Modern Fourth Amendment Law

At a higher level of abstraction, Chatrie also indicates that the Court is pursuing a privacy-centered Fourth Amendment jurisprudence, one that is flexible enough to preserve digital privacy in the modern era. Future cases will present different problems, and the Court may not always approach them with the sophistication and depth of Chatrie. But at least in general, the Court will not anchor the Fourth Amendment to the fading past of the pre-digital era, or address novel contexts on the basis of distant analogies to familiar ones.

More traditional approaches to Fourth Amendment law are falling to the wayside as surveillance technologies and practices continue to advance. This transformation of Fourth Amendment law and theory is necessary if the Fourth Amendment is to continue to provide meaningful protections against government intrusions in the modern era. To its enormous credit, the Court has shown itself willing to change Fourth Amendment law accordingly, at least in the limited contexts it has addressed over the past decade or so.

In doing so, it has preserved the original spirit and function of the Fourth Amendment while updating it for a new world. And it has rejected more traditional approaches that would otherwise provide fewer and fewer meaningful constraints on intrusive government surveillance over time. Justice Alito’s dissent gives a eulogy of sorts for the old approach. He contends that Chatrie would have come out differently under historical Fourth Amendment precedents or “traditional search-and-seizure principles.” He laments that, “until Carpenter, this Court held that the Fourth Amendment protected a person’s security in only his own papers and effects, not those of a third party.” He grudgingly accepts Katz’s expansion of the Fourth Amendment to cover wiretaps and bugs, but only because of what he alleges was a cautious implementation and limited impact.

The Chatrie majority rejects all of these points. It embraces a robust application of Katz and leans heavily on Carpenter. Its guiding star is Justice Brandeis’s famous dissent in Olmstead v. United States, a 1928 case that applied the traditional principles of the Fourth Amendment to reach a disastrous holding that ushered in the J. Edgar Hoover era of widespread surveillance abuse. As the Chatrie court writes, the Framers of the Fourth Amendment could not have anticipated the telephone or the wiretap, but they did understand the “transcendent importance” of privacy against government surveillance. In its adoption of this idea, and even more so in the holdings of the opinion itself, Chatrie embraces privacy as the core principle of Fourth Amendment protection, unfettered by the specific rules of prior technologies.

In the scholarship of the Fourth Amendment, an influential approach counsels proceeding by analogy to physical world contexts when applying the Fourth Amendment to digital data. Most fully explicated by Orin Kerr in his recent book The Digital Fourth Amendment, this approach would depart from non-digital paradigms only when new developments “dramatically” expand or curtail government power. Kerr attempts to translate between online data and physical space, drawing analogies between forms of digital information and their superficially similar albeit functionally different real-world predecessors. Following this analogical approach, he concludes that the contents of online communications should generally be protected while non-content data like location information or to/from message metadata should generally be unprotected. Kerr specifically addresses geofence surveillance in his book, arguing that it should not be protected to any degree by the Fourth Amendment because cellphone users voluntarily disclose their data to Google.

The Supreme Court rejected this specific argument in Chatrie, and it has also departed from the broader approach. This is the second case in a row where the Court has extended Fourth Amendment protection to non-content metadata generated by a cellphone or app. Rather than adopting the rules of pre-internet surveillance, or cautiously expanding existing law, the Court has departed from existing paradigms in order to firmly protect privacy against new forms of surveillance. It has focused directly on privacy and the appropriate balance between it and law enforcement interests, and less on adjusting old laws while hewing closely to them.

This is all the more remarkable given the general conservatism and affinity for tradition of the current Court. But there is a reason for it. The traditionalist paradigm struggles to effectively address the complex questions posed by modern technology, and the Supreme Court has increasingly left it behind. A more modern conception of privacy, developed in cases like Carpenter and a substantial scholarly literature, has, instead, carried the day.

--Matthew Tokson

Historical Analogies in Second and Seventh Amendment Cases--And Analogies More Generally

2026-07-14T13:12:46.077-04:00

A recent Fifth Circuit decision, Texas Tobacco Barn v. US Dep't of Health & Human Services, was handed down two years to the day after the Supreme Court decision it applied to hold that agency proceedings within the FDA resulting in civil penalties violate the Seventh Amendment. After providing a bit of background for those readers who don't have the misfortune to follow the Supreme Court's convoluted federal jurisdiction rulings as closely as I do, I'll use the case as an opportunity to compare and contrast the historical analogy approach the Roberts Court has taken to the Second and Seventh Amendments. For those readers already put off by the subject, here's the bottom line: the Court's purported use of historical analogies is mostly a mask for its normative preferences.

Now, that background: In its 2024 decision in SEC v. Jarkesy, an ideologically divided 6-3 Court held that the Seventh Amendment requires jury trials whenever the government seeks civil monetary penalties in a case that is analogous to a civil action available under the common law circa 1791, so long as the case does not fall into one of a short list of exceptions for so-called "public rights" cases. Most of what I'll discuss today concerns that first inquiry: the analogy. However, I'll first say a word about public rights.

Article III of the Constitution assigns the judicial power to life-tenured judges and justices, but from early in the Republic, Congress has assigned adjudicatory tasks to non-Article III personnel. It still does so today, with Social Security Administration disability determinations alone dwarfing the number of adjudications by the Article III judiciary. If all such cases needed to be decided by Article III judges and justices, the life-tenured judiciary would need to be expanded enormously. Thus, since relatively early in our history, the Supreme Court has recognized that Congress can assign some adjudicatory responsibilities to non-Article III federal adjudicators.

Which responsibilities? What has become the canonical formulation was given by the Supreme Court in 1856 in Murray's Lessee v. Hoboken Land & Improvement Co.: "there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper."

What makes a case a matter of "public rights?" The Court has given various formulations over time. It certainly includes cases brought against the government for money, partly because in such cases, the government enjoys sovereign immunity and thus can waive such immunity on condition of adjudication on its terms. Cases involving tariffs have also generally fallen within this category. I won't get much into it now except for two observations.

First, the public rights category originated as a means of deciding which cases could be assigned to non-Article III adjudication as an interpretation of Article III. Only later, in the 1989 case of Granfinanciera, S.A. v. Nordberg, did the Court import its public rights jurisprudence into its approach to the Seventh Amendment.

Second, and notably, Granfinanciera and other late-20th-century cases restricting congressional power to assign cases to non-Article III adjudication lacked a clear partisan valence or were arguably tinged liberal. Justice Brennan wrote the majority opinion in Granfinanciera as well as the plurality opinion in the 1982 Northern Pipeline case that adopted a formalistic and fairly restrictive view of congressional power to utilize non-Article III adjudication. However, over the last couple of decades, the Roberts Court has discovered that by narrowly construing public rights in both Article III and Seventh Amendment cases, it can limit the adjudicatory power of agencies. What began as a neutral or plaintiff-protective set of doctrines has become one of the deregulatory tools of the Roberts Court. That's why Jarkesy was 6-3 on ideological grounds.

Turn now to the first part of the Jarkesy test: whether a statutory claim by the government is sufficiently analogous to a 1791 common law claim to implicate the Seventh Amendment. In Jarkesy itself, the Court said that the SEC's enforcement of securities fraud laws were akin to fraud suits under the common law in the founding era. In Texas Tobacco Barn, the Fifth Circuit said that FDA civil penalty proceedings against the defendant for selling vape products without authorization was akin to a "trespass-on-the-case . . . against the 'unwholesome practices' of selling 'bad provisions or wine'" (quoting Blackstone) and to "the common law cheat action" available to one who has been "'defraud[ed]' by false affirmations that something was of 'superior Quantity or Quality than it [was]'" (quoting an 1803 treatise on English common law).

I confess to not knowing enough about the common law of the late 18th century to specify the various ways in which modern securities fraud is similar to and different from trespass on the case (which is a cause of action I remember learning about in law school) or cheat (which I had never encountered before reading Texas Tobacco Barn). I do know that there was a dissent in Texas Tobacco Barn. That dissent (which treated the historical analogy question as relevant to the public rights question, but that need not concern us) argued that enforcement of the FDA's limits on selling unauthorized vapes is similar to the common law actions the majority identifies only at a very high level of generality.

There was also a dissent in Jarkesy. It mostly objected to the majority's application of the Granfinanciera framework to a case brought by the government to enforce a statutory obligation, arguing that the majority's approach was inconsistent with the 1977 Atlas Roofing case. In the course of that argument, however, the Jarkesy dissent did observe that modern securities law differs from common law fraud in at least one critical respect: the latter, unlike the former, requires that there must be "actionable harm to an individual" for a case to proceed.

Now for some crass legal realism. The two Fifth Circuit judges in the Texas Tobacco Barn majority are Republican appointees, while the dissenter is a Democratic appointee. We see the same ideological pattern in the Supreme Court alignment in Jarkesy. Perhaps this is explained by some tendency of conservatives to see similarities and liberals to see differences?

Nope. For one thing, there's no reason to expect such tendencies. For another, we see exactly the opposite set of tendencies in Second Amendment cases. There, pursuant to NYS Rifle & Pistol Ass'n v. Bruen, the question whether a law regulating firearms currently in common use is valid turns on whether it is sufficiently analogous to laws regulating firearms in the founding era (or possibly around 1868, when the Fourteenth Amendment was ratified). And lo and behold, in those cases, when the Court divides ideologically, it is the Republican appointees who say the current laws are disanalogous and the Democratic appointees who say they are analogous.

Thus, no general view about what makes a modern law analogous to founding-era (or Reconstruction-era) laws can explain the ideological pattern. When finding analogies allows Republican appointees to stymie agency regulation (as in Jarkesy), they do so; when finding disanalogies allows Republican appointees to stymie firearms regulations (as in Bruen and its progeny), they do so. And vice-versa for the Democratic appointees.

However, to be fair to the Democratic appointees on the Supreme Court, in the relevant cases, they repeatedly object that the determination whether current law A is analogous to 1791 (or 1868) law B is highly manipulable. Justice Jackson has been particularly vociferous in objecting to the historical test as no real test at all. And that's apart from the fact that, as Professor Segall has argued repeatedly (and most recently here) on this blog, the very idea that we would determine what gun regulations are permissible today by asking only what gun regulations were widespread in the very different world of 1791 (or 1868) makes no sense.

There I would conclude, but I want to consider the possibility that the objection I have raised proves too much because it calls into question analogical reasoning in all settings. That would be problematic because analogical reasoning is quite common in the law. Justice Thomas's Bruen opinion actually captured the point pretty well:

When confronting . . . present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”

So far, so good. Specifying a relevant metric is a normative enterprise, but sometimes there will be consensus about what the relevant normative move should be. In Second Amendment cases, the Bruen opinion continues, there are "at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense." If one accepts that finding historical analogues is the right way to measure the constitutionality of contemporary firearms regulations, that's sensible enough. It responds to a question of the sort "do we care about color or function?"

However, the Thomas response doesn't answer a different question about analogical reasoning: how similar?

Suppose we decide we care about color. I once wrote an amicus brief in support of the respondent in a Supreme Court case, with support from a law firm that agreed to print it. Under the Court's rules, the cover was supposed to be dark green. The firm produced a cover that was kinda sorta dark green but also kinda sorta brown--and also, weirdly speckled. The firm filed the brief without showing me the cover first. The clerk rejected it as not sufficiently green. Luckily, there was still time to re-file with a different, more conventionally dark green cover.

When it comes to color, there are clearly going to be edge cases. That's even more true with respect to historical analogues. Moreover, there will be level-of-generality questions. In this past Term's decision in Wolford v. Lopez, the majority said that founding-era laws excluding armed persons from entering private land were about preventing poaching, a different why from the challenged Hawaii law at issue in the case. Justice Kagan, in dissent, said this:

The “why” is sufficiently close. Both sets of laws respond to the dangers and harms that someone with a gun can cause on another person’s property. That the old laws had a special (though by no means exclusive) concern with poaching does not matter.

Bruen and later Second Amendment cases say that an analogue need not be a "twin" or a "dead ringer" but they do not say how close the similarity must be, except in generalities that are normatively disputed.

I do not dispute that analogical reasoning has an important place in the law. However, where values are contested--as they are with respect to the administrative state and firearms--the fact that we see ideology-based decision making is strong evidence that the judges and justices are deciding first and drawing analogies or disanalogies second.

-- Michael C. Dorf

What is Fourth Amendment Law Going Forward?

2026-07-13T07:00:00.000-04:00

Last week, I blogged here at Dorf on Law about Chatrie v. United States, the Supreme Court’s first major Fourth Amendment case in eight years. Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. Chatrie was a huge win for digital privacy, and it substantially expanded the scope of the Fourth Amendment. In today’s post, I’ll explain what Chatrie means for Fourth Amendment law going forward.

The Chatrie opinion potentially transformed Fourth Amendment search law in several ways. In 2018’s Carpenter v. United States, the Supreme Court held that requesting cell phone location data over a seven day period in order to track a suspect’s movements was a Fourth Amendment search requiring a warrant and probable cause. It discussed several factors that contributed to its decision, but the three that lower courts have used most frequently in the wake of Carpenter are: 1) how revealing the information is, 2) how much information is sought, and 3) whether the target voluntarily disclosed their information to a third party. In hundreds of cases decided after Carpenter, lower courts have used some or all of these factors in resolving unsettled Fourth Amendment issues. As I have argued, these factors can constitute a Carpenter test that courts can expressly adopt in frontier Fourth Amendment cases.

Chatrie modifies or destabilizes the latter two of these three factors. In doing so, it is likely to transform the law that lower courts apply to new Fourth Amendment questions. It establishes what is essentially a “Chatrie test” that courts can apply going forward. Below, I explain how Chatrie has preserved or changed the three factors of the Carpenter test.

First, the Court still plainly considers the revealing nature of data to be of paramount importance. It leads its substantive discussion of the case with a discussion of how precise and revealing Location History data is. It traces back the importance of this factor to Carpenter, characterizing it as one of the things “Carpenter relied on to find that law enforcement officers conducted a Fourth Amendment search.” It also provides several details regarding the precision of Location History, which “provides an even more fine-tuned picture of a person’s movements” than the cell site data at issue in Carpenter, tracking them to within 20 meters rather than one-eighth to four miles. The Court concludes that Location History is far more precise, and therefore far more threatening to privacy, than the surveillance in Carpenter.

The second Carpenter factor was the amount of data sought, and here the Court departs sharply from Carpenter. That prior case was replete with references to the amount of data at issue and the duration of surveillance (which is closely related in practice to the amount of data captured). In Chatrie, the Court echoes much of this language, expressing concern that the government can track someone “every moment of every day," warning against “tireless and absolute surveillance,” and noting that a person subject to warrantless retrospective surveillance (i.e. surveillance that reaches back into the past) “has effectively been surveilled [for a] boundless time.” However, the Court frames these points as more of a concern about retrospective surveillance than long-term surveillance. And it expressly criticizes the idea that some Fourth Amendment protections may kick in only once an intrusion goes too far or goes on for too long. It even contends, in a footnote, that caring about how long surveillance lasts or how much it gathers would create substantial line-drawing problems. These two concepts, that tireless surveillance is a concern and that courts should not consider how long surveillance goes on for, conflict somewhat, and they fit together oddly in the same opinion. But they can be reconciled, at least in large part.

The most faithful reading of the opinion is likely that the Court is adopting a very pro-privacy approach to the amount question. As proposed in a 2013 article by David Gray and Danielle Citron, this approach would essentially say that what matters is not how much information is gathered but whether the technology at issue has the potential to facilitate extensive and revealing surveillance. So long as a technology like geofencing might allow the police to engage in invasive long-term surveillance, then it should be treated as doing so—even if the actual duration of the surveillance in a given case is only a minute. This appears to be what the Court has in mind when it discusses the potential for boundless surveillance via geofence and then says it does not matter how long the actual geofence surveillance lasted. The Gray and Citron approach also addresses the administrability concerns the opinion raises.

Finally, there was the third Carpenter factor, which looked toward whether a person voluntarily disclosed their information to a third party. The Chatrie opinion implicitly downplays the importance of this factor, much like the Carpenter opinion, which spent only a paragraph discussing it. But Chatrie does not entirely do away with the voluntariness inquiry. Instead it transforms that inquiry. Carpenter emphasized that cellphone use was basically inescapable in modern life, and that cellphones automatically disclosed location information to cell service providers whenever they were switched on. In Chatrie, the government argued in favor of a strict, literal application of both these points. It noted that Chatrie checked yes on a permission screen during app setup and so his information disclosure was not entirely automatic. And it noted that one could easily get by in modern life without activating Google Location History.

The Court rejected these arguments in favor of a more holistic, common-sense view of the modern world. Perhaps Location History, or Google Maps itself, is not essential to life in today’s world. But this is far too narrow a view of how life works. Cellphone users use apps, if not Google Maps then another app, and in doing so they inevitably disclose personal information to service providers. This is the “price of conventional cell-phone usage,” and cellphone usage is a pervasive and insistent part of daily life. In this sense, the disclosure of location information to some company or another is not voluntary in any meaningful sense, and it is certainly not a waiver of a person’s constitutional rights. It’s the inevitable result of living in the modern world.

What, then, is left of the voluntariness prong of Carpenter? It remains somewhat uncertain, but it seems that few information disclosures will be deemed sufficiently voluntary as to threaten Fourth Amendment rights, at least based on the language and logic of Chatrie. The voluntariness inquiry after Chatrie is best interpreted to ask whether someone has disclosed their data so broadly or openly as to constitute a waiver of their rights. Perhaps overtly waiving one’s constitutional rights (not just overtly saying yes to information disclosure); or posting something for all the internet to see; or freely choosing to turn data over to the government itself would be considered sufficiently voluntary to erode a person’s constitutional protections. But simply disclosing data in the course of using the internet or a smartphone will not threaten Fourth Amendment rights.

Going forward, we can identify a “Chatrie test” to guide future cases. The test looks to three factors: 1) how revealing the information at issue is; 2) whether the surveillance technique at issue has the potential to subject people to extensive surveillance; and 3) whether the person disclosed their data so broadly or openly as to constitute a waiver of their rights. The relative importance of these factors is largely still to be determined, but revealing nature is likely to remain the most important of the three factors, as it was under Carpenter. In practice, more and more of the action of Fourth Amendment cases will be courts asking, how revealing is this surveillance practice of the details of a person’s life?, especially if we imagine the practice being used extensively for a more-or-less unlimited time. This is a very favorable inquiry for defendants arguing that the Fourth Amendment should cover a new surveillance practice. Indeed, Chatrie marks a new era in Fourth Amendment law, one characterized by robust Fourth Amendment rights in new digital contexts, and a flexible, realistic approach to data disclosures.

--Matthew Tokson

Flawed Country, Inconsiderate Guests: What Being "Pro-Working People" Truly Means

2026-07-10T09:50:16.036-04:00

Not having been brought up on soccer/football, I have only in the last twenty years or so learned anything at all about the World Cup. This year is the men's version, and even with my years of living outside of the US at least temporarily behind me, I have been paying fairly close attention to the tournament and everything around it. Not that I have actually watched any matches, mind you, given the stranglehold that Fox has on the broadcast rights, but I have certainly followed the results and surrounding news carefully enough to have formed three thoughts that I will share here to end the week.

Actually, it is not so much three thoughts as two thoughtlets and one angry observation.

Thoughtlet #1: As soon as I learned that this year's tournament had been expanded in both the number of teams and by adding a Round of 32 to the knockout rounds, I had no doubt that the commentary would lapse into one of my longstanding pet peeves: meaningless "first evers." I have commented on this in the context of both college football and the NFL, where everyone acts as if it is a big deal when a season-long record falls after games are added to the season. And sure enough, teams that made it into the Round of 32 were being lauded for "making the knockout round for the first time ever," and players' goals in knockout games (individual goals and contributions toward goal totals) will rise as a matter of course but still be called HISTORIC. Oy. I saw it coming, but it is still annoying.

Thoughtlet #2: After the Trumpists managed to ruin any good feelings from the Winter Olympics by hijacking the men's hockey gold and disparaging the women's hockey gold (and women in general), it was a relief not to see anything like that happening in the World Cup. Yes, it was ugly to see how the Trump Administration was selectively using immigration enforcement in unprincipled ways, but the vibe of the football itself had not been ruined by any White House actions.

As everyone now knows, however, Trump managed to turn the entire world against a perfectly likable (albeit high-mid in talent, at best) American team. How? Trump called the guy who came up with the FIFA Peace Prize and then awarded it to Trump last year, convincing him to allow the best US player to play after he had been disqualified by a red card in the previous game. That was bad in every way, but it at least did provide some comic relief when Trump claimed to know the game very well but then said that he was surprised that red cards resulted in disqualifications from subsequent matches.

At best, Trump's rambling statement amounted to saying that a core rule of international football should be changed, because it did not make sense to him to penalize a player for subsequent games. To be clear, the US has such rules, including the college football rule that a player who is called for "targeting" must sit out the first half of the next game. That rule has been tweaked over time, but there is nothing weird about sports rules that extend punishment past a particular contest. But Trump? Well, it just didn't make sense to him. So even though the rule exists, it should not be enforced, he blithely asserted, because who would write such a rule?

The analogies to the way Trump thinks about elections and the legal system more generally are obvious. Even so, I was greatly amused that he had done the equivalent of saying: "What is this rule where basketball players can get called for traveling? Why should anyone have to bounce the ball?" or "False starts on a track? He started before everyone else, which makes him smart"; or "Fifteen yards and a loss of down? What kind of commie scum would think that made sense?"

Angry Observation: One of the YouTube channels that I watch that is generally lighter in content is called Feli from Germany, on which a very perky now-30ish German woman posts the familiar run of culture clash videos, with listicles like "12 Things you NEED TO KNOW before traveling to Germany! *in 2026*." She moved to the US about ten years ago and became an American citizen, but last year she and her new American husband moved back (in her case) to Germany. Even then, her "reasons why" video only vaguely scraped up against anything political. She does occasionally take on slightly heavier topics, but she is not a go-to source for depth (and I doubt that she would find that assessment troubling).

In any case, she recently posted a video about non-American fans' reactions to being in the US for the first time: "World Cup tourists discover everything AWESOME about the USA! (German-American Reacts)." Most of the video was the expected light fare, gathering much of the content that has made the rounds of social media, including things like non-Americans' surprise at the enormous serving sizes in restaurants, shock at the idea of free drink refills, and on and on. Most everyone has by now heard that Europeans in particular have somehow decided en masse that Ranch Dressing is the greatest thing ever, to the point (according to Feli's video) where US manufacturers have rushed flight-friendly take-home cases of ranch onto the market. All good fun.

My angry observation, however, involves these visitors' reactions to the tipping expectations in the US. That is a culture shock that people talk about all the time, and because it has a tax law angle, I have even written about it here on Dorf on Law, such as this column during a trip to Australia and New Zealand in 2016.

Yes, tipping is a foreign idea to foreigners. As Feli pointed out, however, the current crop of ecstatic visitors to the US who are delighted and surprised by the big-but-not-so-bad-it-turns-out USA suddenly become quite surly when the topic turns to tipping. She added a section to her video to point out that they are wrong to do so, and in the latter stages of the 36-minute video she also corrects some politics-tinged hot takes from non-US visitors.

What is it about this surly reaction that is making me angry? Feli put up example after example of people saying, in one way or another: "Hey America, pay your workers a fair wage, like we do! It's not my responsibility to pay your workers for you." What rot. Actually, it is much worse than that: perhaps I should call it rot-plus.

To be clear, I of course agree that the US should increase the minimum wage (and enforce it) nationwide; and I have long argued that the very notion of a "sub-minimum wage" (a logical impossibility, but that is hardly the important point here) for service workers should be abandoned. That is not the rot-plus. What infuriates me, of course, is the sense of entitlement from people who say, "Not my problem," while taking advantage of a system that can only work if it is their problem. Should that system change? Yes. Does it exist in bad form now? Emphatically yes.

Any number of analogies could make this obvious point, but the most vivid one that I have been able to conjure is to picture a bunch of Americans who have fallen off a boat and need life preservers to survive. A boat of Europeans pulls up and (after taking advantage of whatever the US boat has to offer) then pulls away without helping the drowning people, shouting as they steam into the sunset: "Why should we pay for life preservers when the US government should have made the boat safer in the first place? We don't fall off of our boats!"

To be clear, the free refills and huge portions that the visitors to the US are ooh-ing and aah-ing about are offered at lower prices specifically because the restaurants and pubs continue to lobby the US federal and state governments to offload the cost onto customers. That should change, but unless it does, the "Let the employers pay for it, not me" sneering retort more accurately means: "I don't care that you're telling me that the employers won't pay for it, even if it means that the people bringing us plate after plate of cheap fatty foods are working for nothing."

The reason I am bothering today to emphasize what should surely be an obvious and immediate response to the "Not my problem, Jack" attitude is that it uniquely exposes a lack of ... what to call it? ... class solidarity, human compassion, or simply not being a jerk.

In my column earlier this week regarding the spectacular Graham Platner mess in the US Senate race in Maine, I faulted Democratic progressives who hide behind the ideas of "being for the people" and "promoting economic justice" while backing an obvious liar (and now credibly accused rapist) because he is supposedly a Regular Guy™, which ended up meaning that they think that Regular Guys™ are irretrievably -- ahem -- "rough around the edges."

As I argued on Tuesday, that is the ultimate in condescension, treating working class people as though they all are so uncouth (at best) that they must be coddled. Or, as one commenter on Michelle Goldberg's New York Times column discussing that fiasco put it: "And the left wing has insulted many working class folks by assuming a person of Platner’s character was representative of their values."

Two paragraphs above, I put "being for the people" and "promoting economic justice" in scare quotes. That is not to disparage either idea, of course, because I enthusiastically support both goals. Instead, I want to make it clear that everyone should support those ideas in reality and not merely as rhetorical cover.

And the visitors to the US are claiming that they support US workers, but only by saying that they deserve a different set of laws under which everyone could work for a fair wage. Wonderful. Great. But the servers who are working in this reality are being stiffed with $0 tips on $700 checks from customers who had them running for hours. I forget who said "I like the people, it's just that I don't like people," but "I support workers unless it ends up inconveniencing me" is not even that deep.

As the title of this column summarizes it, the US is indeed a country with many flaws, but guests who enjoy the benefits of those flaws and then harm the very workers they self-righteously claim to support are, to put it bluntly, inconsiderate sh*ts.

- Neil H. Buchanan

Is the Roberts Court Hyperopic or Willfully Blind?

2026-07-09T12:20:11.382-04:00

[N.B. The following essay was first published on SCOTUSblog. The version below includes one additional paragraph and some formatting that do not appear in the SCOTUSblog version.]

Speaking at a Federalist Society event the day the Supreme Court wrapped up its latest term, attorney Kannon Shanmugam described an “emerging theme” in the case results. “On issues of . . . broader significance,” the head of Davis Polk’s Supreme Court and appellate practice group said, “the, quote-unquote, ‘conservative’ side is typically winning. On issues that are more specific to this administration, the outcomes are sometimes different.”

I agree with Shanmugam’s view about the Court’s conservatism with respect to the issues of broad significance – what I would call issues of longstanding interest to conservatives. In the term just completed, LGBTQ advocates lost cases involving conversion therapy and transgender athletes. The Court validated Second Amendment claims in two separate cases (although even the liberal justices went along with the result in one of them). The conservative super-majority continued its long-running project of dismantling the Voting Rights Act in a ruling that was handed down just in time for Republicans to further gerrymander their congressional districts before the upcoming midterm elections. By the usual 6-3 vote, the conservatives invalidated a provision of federal campaign finance law. And perhaps most significantly, the Court struck down statutory restrictions on the president’s power to remove the leaders of nearly all independent federal agencies.

I also agree with Shanmugam about the most administration-specific case of the past term. In rejecting President Donald Trump’s effort to impose sweeping and unprecedented tariffs under the International Emergency Economic Powers Act, the Court relied on workaday tools of statutory construction and (for a plurality) the ideologically conservative major questions doctrine to achieve an ideologically conservative outcome. Trump’s love of tariffs runs contrary to the traditional conservative preference for free trade and opposition to taxes of any sort. The case thus fits Shanmugam’s paradigm quite well.

However, it would be a mistake to read the term just concluded as proving that the Supreme Court’s conservative super-majority are traditional conservatives rather than MAGA conservatives (and, to be clear, I do not attribute that mistaken view to Shanmugam or anyone else; I consider it because it might seem a logical inference from the pattern of decisions). In the major cases in which the Trump administration lost, the outcome would have been different were it not for the votes of the liberal justices. Moreover, in validating longstanding conservative positions, the Court handed the Trump administration in particular enormous power.

No traditional conservative majority

Supreme Court pundits will disagree about what counts as a major ideologically freighted case, but by my count, the Trump administration lost five such cases in the past term: on tariffs, mail-in ballots, mobile phone location searches, birthright citizenship, and Federal Reserve independence. In each case the outcome would have flipped if not for the votes of liberal justices.

The Court’s rejection of the administration’s narrow reading of the citizenship clause of the Fourteenth Amendment illustrates the fact that the Supreme Court is not dominated by a traditional conservative, anti-MAGA majority. Consider the fact that four of the six Republican appointees thought the Trump executive order limiting birthright citizenship constitutionally valid in at least some of its applications. That hardly paints a picture of traditional conservatives standing against Trumpism.

On the contrary, the divisions on display in Trump v. Barbara might signal that limiting who counts as an American and hostility to undocumented immigration are becoming standard conservative positions. That interpretation is bolstered by the administration’s two big wins for its restrictive immigration policies. The Court allowed the president broad power to end Temporary Protected Status (TPS) and read a federal statute to permit the administration to block asylum by physically blocking asylum seekers. Both decisions were by an ideologically divided 6-3 margin.

The Federal Reserve case is also illustrative. Traditional business-friendly conservatives surely value an independent central bank as essential to address the risk of disastrous monetary policy. Politicians too often will favor low interest rates to stimulate the economy in the short term to create what economists call a sugar high. But the long-term impact of a too-accommodative monetary policy is sustained high inflation or even catastrophic hyper-inflation. In pressuring the Fed to lower interest rates in the face of persistent above-target inflation, Trump demonstrates the precise reason for Fed independence.

And yet Trump v. Cook was decided by a mere 5-4 margin, with only two of the Court’s six conservatives voting to reject Trump’s pretextual effort to fire a member of the Federal Reserve Board of Governors.

Missing the trees for the forest

The cases that are best explained as fulfilling longstanding conservative goals squarely undermine any notion that the Court is resisting Trump’s agenda. In those cases, the Court is most charitably described as hyperopic. Whereas people experiencing myopia see only what is immediately before them rather than the big picture, hyperopia is the opposite: one sees objects in the distance but not those up close.

The Supreme Court’s most hyperopic decision in recent years came in Trump v. United States in 2024. The conservative justices gave sitting and former presidents sweeping immunity against criminal prosecution for acts within the “outer perimeter” of their official responsibilities for fear that the possibility of criminal liability might prevent them from taking necessary bold actions. The Court worried about a hypothetical future risk even as it ignored the not-at-all-hypothetical reality of a once-and-future president who, thanks to the Court’s conferral of immunity, was able to completely avoid accountability for fomenting an attempted coup.

The most hyperopic decision of the 2025-26 term was Trump v. Slaughter, in which the Court overruled the 1935 precedent of Humphrey’s Executor v. United States and invalidated good-cause removal protection for members of the Federal Trade Commission. True, conservative scholars and justices had been championing the unitary executive theory on which the Slaughter decision relied since well before Donald Trump became a politician. And earlier Roberts Court rulings had narrowed Humphrey’s. Thus, one could have imagined the Court handing down Slaughter during any administration (although it is easier to imagine the case coming down during a Republican administration than during a Democratic one). Nonetheless, by seizing the opportunity to achieve the long-term goal of eliminating independent agencies at this particular moment, the Court ignored the very real dangers the second Trump administration poses.

During his current presidential term, Donald Trump has appointed lackeys and cranks to key government positions. For example, Bill Pulte has used his perch at the head of the Federal Housing Finance Agency to dig up dirt on the president’s political enemies while ignoring evidence of the exact same conduct by administration officials. For his fealty, Trump made Pulte Acting Director of National Intelligence, a job for which he has no apparent qualifications. Trump appointed Robert F. Kennedy, Jr. to head the Department of Health and Human Services, where he has replaced medical experts with quacks. And Trump’s former personal lawyer Todd Blanche has used his position as Acting Attorney General to weaponize the Department of Justice, all the while cynically claiming to be acting in response to (imagined) weaponization by the prior administration.

Given how Trump’s appointees have weakened the ability of executive agencies to perform their statutory functions while abusing the powers they have, this would appear to be the worst possible time to give the president control over federal agencies that Congress designed to act independently of direct presidential supervision. And yet that is exactly what the Court did in Slaughter.

Indeed, the dangers the current administration poses to democracy are so apparent that hyperopia may be too charitable a description of the Court’s approach. Willful blindness might be a better descriptor. If so, then Mullin v. Doe, the TPS case, would be most emblematic of the past term.

After concluding that the TPS statute precludes judicial review of non-constitutional claims, the Court went on to reject the respondents’ argument that the decision to end TPS for Haitians was racially motivated. In dissent, Justice Elena Kagan pointed to Trump’s description of Haiti as a “shithole” country as well as his calumnies that Haitians in Ohio were eating people’s pets, “probably have AIDS,” and are “poisoning the blood” of our country. The majority failed to mention any of those or any other statements, writing that “[n]one of the cited statements by either the President or [former Homeland Security Secretary Kristi Noem] was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” Justice Samuel Alito, who delivered the lead opinion, did not say what policy view Trump was expressing by accusing Haitians of eating the cats and dogs of Springfield, Ohio.

* * *

In iconic statuary, Lady Justice is blindfolded to symbolize the ideal of impartiality: all persons are equal before the law, which should be administered without favor to rich or poor, friend or foe. The Roberts Court has evidently drawn a different lesson from the image of blind justice. Its decisions are blind to the consequences of handing ever more power to an authoritarian president with precious little regard for democracy, the Constitution, or even basic decency.

-- Michael C. Dorf

We are All Constitutional Pluralists Now: Just ask Justice Brett Kavanaugh

2026-07-08T07:00:00.000-04:00

Twenty-eight years ago, I wrote an article summarizing a pair of essays written in 1900 by Arthur Machen, Jr., in the Harvard Law Review. Machen was the first person to use the phrase the "living Constitution" in a legal essay. He framed the issue as follows (please forgive the long quote):

As the period of the formation of the American Union becomes more and more remote, it becomes constantly more important to inquire to what extent the decision of a question of federal constitutional law may properly be affected by the many changes in language, customs, morals, and in individual and national environment which have taken place since the adoption of our fundamental law. . . . Political opinions have changed: the doctrine of national unity has almost completely demolished its once mighty antagonist--the theory of state sovereignty. Commerce, instead of being conducted by stagecoaches and sail-boats, is carried on by railways, telegraphs, and ocean liners. Ideas of morality have changed: lotteries and duelling, once regarded as praiseworthy, are now thought pernicious and immoral. The effect of all these changes upon our system of constitutional law is surely an interesting and important matter for legal inquiry. . . . The present paper deals with the problems which arise when a constitution, the letter of which remains unchanged, is to be applied by the courts to an altered state of facts.

Machen argued that, while the Constitution's original meaning does not change, judges can decide the same case differently over different eras if facts and circumstances materially change. I summarized his work as follows in my conclusion:

An ever-changing society governed by a vague foundational document will require judicial decisions that apply new circumstances to old rules. History and custom will be important to that application, but not decisive. Judges do not have to choose between a Living Constitution and the dead hand, but they must inevitably make difficult judgments about competing institutional roles and fundamental rights and liberties. Those are the truly hard questions of constitutional law, and it is time that we face them without the baggage of an old and unhelpful debate about the relationship between original meaning and constitutional interpretation.

In the birthright citizenship case decided this term, Justice Brett Kavanaugh, a self-avowed originalist, detailed his method of constitutional interpretation. It might sound familiar:

The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the meaning of rules is constant...[but] their application to new situations presents a novelty.

Kavanaugh cited two of the most famous originalist judges in American history, Robert Bork and Antonin Scalia, to support this method of constitutional interpretation. Bork said, "it is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know. We must never hesitate to apply old values to new circumstances." And here is Justice Scalia: "the application of existing principles to new phenomena—either new because they have not existed before or new because they have never been presented to a court before—is what I would call not ‘evolution’ but merely routine elaboration of the law.”

Kavanaugh used this framework to argue that even if the Supreme Court was correct in the late 19th century in United States v. Wong Kim Ark to find only a few limited exceptions to the Fourteenth Amendment's rule that people born on United States soil are American citizens, further exceptions may be recognized by judges if "the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the...Wong Kim Ark exceptions."

Kavanaugh then argued that changes in immigration laws and practices allow Congress to amend current law to carve out from the Fourteenth Amendment's citizenship promise new exceptions for children of undocumented immigrants and temporary foreign visitors. Congress, however, has not passed such a law, and Kavanaugh believed Trump's challenged executive order was inconsistent with a current federal statute on the subject, so he concurred in the judgment overturning the executive order. But under his analysis, Congress could itself create the exceptions that Trump desires.

I have no issue with how Justice Kavanaugh explained constitutional interpretation, and neither would liberal non-originalist judges. The Constitution lays down both specific directives (such as the president must be thirty-five and there must be two senators from every state), and imprecise general principles (such as equal protection, due process, and the bans on unreasonable searches and cruel and unusual punishments). We do not need originalism for the self-defining parts of the Constitution. We just need to be able to read. But those parts of the Constitution do not get litigated. Phrases like "subject to the jurisdiction thereof," which was the key language at issue in the birthright citizenship case, are not self-defining and need to be fleshed out over time as society changes. (Notably, both the majority and the principal dissent in the birthright citizenship case claim that the other side improperly reads a new meaning into the term "jurisdiction." The majority says the dissent relies on a revisionist view from the late 19th century that arose to justify nativist laws restricting Chinese immigration; the dissent says the majority's view reflects a 20th century repurposing of the citizenship clause. Neither of those could have happened if the term were self-defining.).

Our collective response to Justice Kavanaugh's argument that judicial application of the phrase "subject to the jurisdiction thereof" can change over time should be "of course." Machen made similar arguments 126 years ago. But once we accept Kavanaugh's framework and apply it consistently across cases that implicate imprecise constitutional text (virtually all litigated cases), then we can see that the idea that the Constitution has a fixed meaning at ratification that judges must apply, a sentiment repeated all the time by originalists, does no actual work in real constitutional cases. We all agree that freedom of speech is a constitutional right and a good thing to boot, but we disagree over its application to specific problems.

No constitutional right is absolute, which is why the phrase "Congress shall make no law abridging the freedom of speech," does not prevent Congress from making perjury, bribery, and true threats federal crimes even when those activities are pure speech.

Let's assume that the original meaning of either the Second Amendment or other parts of the Constitution such as the Ninth Amendment support a constitutional rule that we have the right to own guns. Next term the Supreme Court will decide whether states can ban assault weapons. That ruling will also apply to Congress should it enact a similar ban. Let's assume that as an original matter the Constitution protects the right to own guns subject to the exceptions to that rule that existed in 1791, which were many.

Judges today have to determine whether there are other exceptions given changed circumstances, such as the more deadly nature of weapons today than those in existence in 1791 and the much greater density of urban areas such as Times Square than similar locations in 1791. This framework requires judges to make decisions based on modern facts and values. The only way to determine if the underlying principles supporting original meaning apply to today's problems is to engage in a normative, not historical enterprise. We can call that originalism but virtually all constitutional actors agree with that approach, which is exactly what Justice Kagan meant when she said at her confirmation hearing that "we are all originalists." We apply precise text as written but general principles must be extrapolated over time with an eye on contemporary needs and problems.

Unfortunately, the Republican Party, the Federalist Society, and most "originalist" judges, legal scholars, and pundits use the label "originalist" to argue that they just "find" the law whereas living constitutionalist judges "make" the law. Originalists also routinely argue that only reliance on text and history can constrain judges. But those kinds of appeals are nonsense. As Kavanaugh, Bork, and Scalia recognized, constitutional litigation is the application of general principles to new circumstances. We must apply the First Amendment to the internet, the Second Amendment to assault weapons, and the Fourth Amendment to high tech police searches totally unknown to the founding generation. That analysis inevitably requires the judicial balancing of conflicting constitutional values, not the study of text and history, even if that balancing goes unstated.

There were important 6-3 cases this term divided along ideological and partisan lines but not because the justices employed different methods of constitutional interpretation. They are all constitutional pluralists who engage with text, history, precedent, and consequences. The liberal and conservative justices disagree over most important litigated constitutional cases because they have different values, not because some are originalist and some are not.

The legal community needs to move on from the tired, misleading, and functionally irrelevant debates over living constitutionalism and originalism. Justice Kavanaugh's descriptive account of how judges decide constitutional cases is spot on. They apply old principles to new facts based on modern imperatives. Judges disagree about the imperatives, which is where the debate needs to take place. As I wrote over a quarter of a century ago:

The academic debate over the legitimacy of originalist and non-originalist constitutional interpretation has not progressed materially since Professor Machen's article. Furthermore, a review of his work teaches us that originalism does not lead inevitably to active or passive judicial review; that questions about originalism as an interpretive tool are largely irrelevant to how judges decide real cases; and that there is little reason for scholars to continue to argue about the proper role of original meaning in constitutional interpretation. That role should be as clear to us as it was to Professor Machen--judges refer to the original meaning of the Constitution to provide an important link to our past culture and traditions, but the original meaning rarely dictates results in real cases because the context within which that meaning is applied is constantly changing.

If you do not believe me, listen to Justice Kavanaugh.

Liars Lie: The Mess in the Maine Senate Race Was Easily Foreseeable and Avoidable

2026-07-07T14:05:36.390-04:00

Maya Angelou's famous warning is in serious danger of becoming stale: "When someone shows you who they are, believe them the first time." I risk adding to its overuse here because it so perfectly fits the big political story coming out of the State of Maine, where a man won the Democratic Party's nomination for US Senate in last month's statewide primary. His name is Graham Platner, and we should have believed him the first time.

Platner's cakewalk in the primary (taking 71.9 percent of the vote) set him up to face the incumbent Republican Susan Collins, who is infamously "concerned" at all times about her party's extremism -- but never quite so concerned that she does anything about it. Collins is an embarrassment, and the Democrats' extremely slim hopes of retaking control of the US Senate cannot possibly go anywhere without taking that seat. Maine is a blue state, and it should not be difficult for Democrats there to win a seat against a 30-year Washington insider whose track record is a joke.

As I write this column, here is the state of play in that race, according to The New York Times: "Abandoned by Allies, Platner Faces Pressure to End Senate Campaign." He is, in a word, toast. The forcing event is the revelation that one of Platner's ex-girlfriends has now credibly accused him of rape. (He denies it.) This followed a flurry of revelations that came out shortly before the primary regarding other women accusing him of sexual abuse, but those revelations were batted away by Platner's supporters as mere "oppo research," and Platner apparently told his most important backers that there would be no more shoes to drop. Count this as an LLBean 8" Duck Boot.

I would not be writing about this situation, however, if it were simply a politically unfortunate situation in which a guy turned out to be a creep and a liar -- oh, and an accused rapist, too. I say "simply" because at this stage the story is pretty clear-cut: guy lies, people believe him, his lies blow up at an unfortunate time, everyone feels betrayed and tries to figure out what to do next. It is not a yawn, but it kinda is. In any case, there is nothing new or interesting to say about these latest damning details.

What is interesting is not, however, new. One of my favorite YouTubers is a mostly science-based commentator named Rebecca Watson, who goes by the name Skepchick. She has moved into some overt political commentary over the years, mostly talking about how powerful men (especially in academia) get away with horrible treatment of women, especially younger women. Her interests have trended more toward the political of late.

Watson was on the Platner case last Fall, when he was dealing with a controversy about a tattoo on his chest that was a Nazi "totenkopf," an image that "resembled a specific symbol of Hitler's paramilitary Schutzstaffel, or SS, which was responsible for the systematic murders of millions of Jews and others in Europe during World War II." Platner had the tattoo for eighteen years before he very recently had it covered up with another tattoo.

Platner obviously survived that controversy, but the way he did so was disturbing and instructive. Watson posted a video on November 13 of last year -- that is, almost eight months ago. The title of the video: "Graham Platner is an Embarrassing Liar." She was right.

To this point, I have left out perhaps the most politically relevant part of the story. Platner is a political neophyte, a US military veteran who espouses views about Medicare for All, LGBTQ+ rights, and other issues that are solidly on the left side of the American political spectrum, not merely compared to Republicans but compared to the Democratic establishment embodied by the infuriating likes of Chuck Schumer and Hakeem Jeffries. Given my own progressive views and my extensively documented contempt for my party's so-called centrists, people with Platner's views ought to appeal to me. The same is true for Watson, who identifies as a progressive.

Her video is 28-and-a-half minutes long, but she moves things along quickly, making the piece an easy watch. She ends the piece with this:

Do I think Platner is a Nazi? an antisemite? Honestly, I don't know. I don't think so. I do know that he is a walking PR disaster and platforming him removes prominent leftists' ability to rightfully call out antisemitic dog whistles and outright fascist bullhorns on the right, at a time when those things are only getting worse, and making life much more dangerous not just for Jews but, just like during the Holocaust, for all marginalized people. Which is probably why it's only been marginalized leftists I've seen speaking out against Platner.

That last point refers back to an earlier part of the video in which Watson calls out the relatively high profile progressives and leftists who jumped to Platner's defense, the mostly White commentators who believed and amplifed his claims that he was merely a military grunt who got drunk with his buddies and got what looked like a bad-ass tattoo. That defense of Platner was enough to pull in the progressives who are now jumping ship, including people I truly admire like Elizabeth Warren.

The idea among the terminally online left, it seems, was that Democrats need to stop having litmus tests and must start to accept Regular Guy™candidates who are real, flawed, and "exactly who we need to stop being seen as elitists." Platner's man of the people cred included a bunch of hateful social media posts over many years, which he later said was part of a dark time in his life. Having watched his videos, I found that explanation at least plausible, but not the bigger story.

Again, Watson is onto something important in pointing out that the lefty media types who wanted to welcome Platner were very much not joined by left media types who focus on marginalized people. The idea, it seems, is that "we" should not be too quick to judge people who have led tough lives. So far, so good. But where do they go with that? Watson nicely exposes the hypocrisy of the "Let's not be elitist" types by showing this social media post from a high-profile progressive woman:

How many people get tattoos that they thought looked cool, but didn't understand the meaning of?
How may vets took mercenary work for a period because the US doesn't support them?
How many young men have shitposted online?
Do we want an authentic working-class party or not?

Golly, I sure would hate to be against "an authentic working-class party"! No seriously, I am completely in favor of the Democrats becoming such a party. The problem is that the word "authentic" is doing something very bad here, and Watson's droll response captures it: "Hey, I thought we all agreed it was wrong to imply that the working class is stupid and racist. Whatever." She then runs through some bald-faced lying by Platner on other medium-sized issues, but she nails the case when she shows a clip from a famous-ish lefty podcaster saying this:

My own personal opinion is that he probably figured out what [the tattoo] was several years ago but was also like ... whuh ... you know ... it's not like ... "I can justify this to me!" you know, speaking to himself. "And anyone who knows me knows I'm not a Nazi, uh, so am I really gonna go and pay for this thing to get all screwed up?" Uh, that's my guess.

To be clear, Platner's story was that he went for eighteen years without ever knowing that he had a Nazi tattoo on his chest. This is beyond impossible to believe, for the reasons that Watson includes in her video and also in light of headlines like this from CNN: "Graham Platner can’t explain why ex-girlfriend knew tattoo’s Nazi link before he says he did." That article notes that there are now "on-record claims from [the ex] that he was aware of the tattoo’s meaning years ago." And Platner's evasions would put a gymnast to shame. (That CNN piece is much more recent than the Watson video, but the drip-drip-drip against Platner's "I had no idea" explanation has been out there all along.)

Again, however, Watson had exactly the right response to the lefty podcaster's explanation of Platner's possible thought process:

So you agree? You agree that Graham Platner is probably lying about not knowing he had a Nazi tattoo. [The podcaster] comes to the same conclusion I did, but he doesn't go the extra mile -- the extra twelve inches -- to wonder what it means to support a politician who lies that easily about a Nazi tattoo. He knew he had a Nazi tattoo. He knew he would face no consequences for it. And then he lied about it when he was finally facing consequences. That's your guy?

Anyone who has read my body of work over the years knows that I rarely spend time calling out the left, because there is so much going on that is so much worse from the right. But there are times when the political operatives on the left stop acting truly lefty and start being condescending to the "genuine" people they think they are helping. "We" had to stick with Platner because we need to stop being such purists? Watson: "[Platner's lefty defenders] were saying: 'It's fine. Stop being so weird about Nazi tattoos.'"

Honestly, anyone who thinks that there can be no genuine working-class party unless we just get over ourselves and stop rejecting people who lie about Nazi stuff has no respect for genuine working-class people. Again, Watson tried to warn everyone in mid-November, but the train had left the station, and everyone else held on in the hope that Platner would stop needing to be defended. The political mess that he leaves behind could have been avoided.

He showed us who he is. More people should have believed him.

- Neil H. Buchanan

Breaking Down Chatrie v. US, the Supreme Court’s Landmark Fourth Amendment Decision

2026-07-06T07:00:00.000-04:00

Last week, the Supreme Court issued its first major Fourth Amendment case in six years: Chatrie v. United States. Chatrie is a massive victory for digital privacy. It holds that geofence searches, which use cellphone data to track all cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. It sharply limits the “third-party doctrine,” which held that data disclosed to a third party service provider lost all Fourth Amendment protection and could be obtained by the government without a warrant or cause. More than that, Chatrie definitively establishes that Fourth Amendment law in the digital era will be appropriate to that era, and not anchored to traditional property concepts or distant analogies to non-digital contexts. The future of Fourth Amendment law has never been brighter.

The Chatrie case involved the investigation of a bank robbery. On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a bank in Midlothian, Virginia. Witnesses and surveillance cameras observed him using a cellphone. Police officers served Google with a geofence warrant, and obtained information on several cellphones in the area at the time of the robbery. These included Okello Chatrie’s phone, and he was eventually identified as the culprit. Chatrie challenged the validity of the geofence warrant, arguing that it was unconstitutionally overbroad. A Fourth Circuit panel held that geofence searches were not covered by the Fourth Amendment and did not require a warrant in the first place. The en banc Fourth Circuit split 7-7 on the issue.

The Supreme Court’s decision in Chatrie’s favor was 6-3. Justice Kagan wrote the majority, joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Jackson, with Justice Gorsuch concurring in the result. There were two big questions in Chatrie. First, is geofence surveillance a Fourth Amendment “search” even though it only collects a few hours’ worth of a suspect’s location data, as opposed to the seven days found to be a search in 2018’s Carpenter v. United States? Second, is geofence surveillance a Fourth Amendment “search” even though Chatrie clicked “yes” on a permission screen when setting up his cellphone, allowing Google to collect his location data with his apparent consent? The Supreme Court answered yes to both of these questions, and in doing so substantially expanded the scope of the Fourth Amendment in the digital world.

The Court acknowledged that Chatrie was only tracked for a few hours. But it ruled that this did not preclude Fourth Amendment protection, for several reasons. Importantly, the surveillance in this case was retrospective, meaning that the government could obtain data about anyone at any previous time it chooses. Although the actual surveillance only covered a few hours, the time period of potential surveillance was “boundless.” In Justice Kagan’s elegant phrasing:

The sweep of the official invasion is not made less because the government, with the benefit of hindsight, can pinpoint exactly which few hours of movements it wants to review. That feature of accessing location data is, indeed, more a practical benefit to the government than a limit on its intrusive powers.

Moreover, in the geofence context, even short-term monitoring can reveal sensitive information, because the government can precisely track those who travel to “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, [or] the by-the-hour motel.” The Court also emphasized that geofence searches could reveal when people and their cellphones were inside private residences; the Court has previously held that tracking devices that go inside the home violate the Fourth Amendment.

The Court went even further, critiquing the very idea of making Fourth Amendment law turn on exactly how long a given surveillance practice extends. It likewise pointed, in a footnote, to the line drawing issues that might arise from such an approach. The Court may have been a bit overzealous in this part of the opinion. As I argue here, it makes sense to ignore how long the government tracks someone’s location when the surveillance is retrospective, because retrospective surveillance subjects people’s entire lives to monitoring. But the idea that the Court should never take duration into account is misguided and likely to harm privacy in future cases where a few moments of observation is clearly lawful (a police officer taking a photo of a house from a public sidewalk) but a longer period of observation may not be (police setting up a sophisticated hidden camera on a utility pole to monitor a house and yard for months or years at a time). Hopefully the Court can reexamine its short but unfortunate detour in a future case, when the importance of duration becomes clearer.

Likely the most important aspect of Chatrie is the sharp limits it places on the third-party doctrine, and its rejection of the government’s claim that Chatrie waived his Fourth Amendment rights by voluntarily disclosing his location data to Google. In Carpenter, the Court declined to apply the third-party doctrine because cell phone data were automatically and unavoidably shared with cell phone providers whenever a cell phone was turned on. The Chatrie Court extended Carpenter to situations where users affirmatively chose to use a cellphone app, even if they gave permission for the app to collect their data. The Court did so for a common-sense reason: cellphone users are obviously going to use popular apps like Google Maps and are generally going to give those apps their data because that’s how apps work. Using apps is basically the reason why people have smartphones. The Court rejected an “app-by-app, feature-by-feature method of granting Fourth Amendment protection.” Rather, it concluded that smartphone users retain Fourth Amendment rights in their data when they use apps on their smartphones. In a world where “[p]retty much everything a person does on a smartphone requires some kind of opt-in,” it would be inappropriate to withhold constitutional protections for sensitive data just because a user discloses their information to a service provider. So long as cellphone use, or the use of any technology, is a part of life in the digital era, the Court will no longer penalize its users by stripping away their Fourth Amendment rights.

This portion of the opinion is momentous, a sea change in how the Court assesses voluntary disclosure. Going forward, if a person is engaged in a common activity that they could in theory avoid and which results in the disclosure of their information to a third party, they will nonetheless not be deemed to have voluntarily exposed their information. Not only would this cover a wide variety of activity on a cellphone, but also a vast swath of internet activity, and likely also non-digital activity like failing to put up a privacy fence around one’s home or walking on public sidewalks pervasively monitored by facial recognition cameras. The third-party doctrine is, if not entirely dead, on life support. It is increasingly confined to a handful of old cases decided prior to the digital era and preserved largely via stare decisis. The Court, in other words, is discarding old doctrines no longer suitable to the modern world and preserving meaningful Fourth Amendment protections in the digital era.

The Court also correctly noted that Google’s permission screen did not inform users about virtually any aspect of its data collection and use. And the Court made clear that it did not care if only a relatively small portion of users disclosed their data to a given app; those users that did would still retain a Fourth Amendment right in the data.

Finally, the Court remanded the case to the Fourth Circuit to rule on whether the warrant obtained in the case was supported by probable cause and sufficiently particularized. (Justice Jackson wrote a concurrence arguing that it was not particularized enough.) The Fourth Circuit panel had not reached that issue, finding instead that there was no search and therefore no constitutional limits on geofence searches in the first place. It is worth noting that the panel’s endorsement of a maximalist power to surveil people via Google data backfired, and not only because its holding was ultimately reversed by the Supreme Court. Following oral arguments before the Fourth Circuit panel, Google almost immediately changed how it stores geofence data, essentially ending Google geofence searches and depriving police of a valuable investigative tool they could have used by obtaining a warrant. The government’s attempt to secure an unfettered, easily abused power to surveil cellphone users ended up making it more difficult to carry out valid law enforcement functions.

The concurrences and dissents were, in their own way, almost as interesting as the majority opinion. Justice Gorsuch wrote separately to argue that the Court should discard the longstanding “reasonable expectation of privacy” test and instead resolve the case on the basis that Chatrie had a property right in his Google Location history. Gorsuch contended that Chatrie owned the data, compiled by Google and stored on Google’s servers, because he could access, export, or delete it. He also pointed to positive law as a source of property rights in Location History, noting that Virginia’s Computer Crimes Act refers to computer data as a form of property under the statute. It is possible that Chatrie’s Location History data was literally his property, but there is no authority on point to indicate that it is. As the majority pointed out, the Court has been applying the “reasonable expectation of privacy” test for roughly sixty years. That body of law is far more developed than the law of property rights in obscure forms of digital data that most users are unaware exists and which is generally not the subject of trespass litigation.

Justice Alito’s dissent had two very different parts. He lodged a reasonable disagreement, noting that the surveillance at issue in Chatrie was far less extensive and revealing than the long-term surveillance at issue in Carpenter. He advocated for the traditional third-party doctrine and argued that cellphone users should have no Fourth Amendment rights in their Location History data because they voluntarily disclose it, in the sense that they can easily live without Location History. This granular approach to voluntariness (“can a user go without this particular app or service?”) is less realistic and appropriate than the majority’s holistic approach (“can a person realistically use their cellphone without using apps or disclosing data?”). In the digital world, making everything turn on voluntariness is a bad approach in any event. But Alito’s argument here is colorable.

Justice Alito’s discussion of whether the Court should have taken the case in the first place was, by contrast, a bit wild. He argued that the Court should not have granted cert on the Fourth Amendment search issue because the Fourth Circuit also resolved the case on good faith exception grounds, meaning that the police relied in good faith on a search warrant. Because Chatrie will inevitably lose on the same grounds on remand, Alito wrote, the Court’s opinion is “advisory,” albeit not in the jurisdictional sense because Alito concedes that it is a “case or controversy” that the Court can properly hear. It is difficult to make sense of Alito’s argument. As the majority noted, the seminal good faith exception case said that courts should feel free to resolve merits questions before good faith exception questions, in order to guide future action by police officers. Alito also seemed to argue that the Supreme Court should never review Fourth Amendment cases involving novel issues, i.e., cases where the good faith exception applies, and should permanently bar defendants from obtaining relief in such cases. He would not have granted this case because “it would be nearly impossible for Chatrie to prove that the police here ... acted in bad faith.” It’s impossible because “this Court has never provided guidance” on the relevant issues. But there’s a Catch-22 here. Alito’s argument is that the Court should acknowledge that defendants can never win on novel Fourth Amendment issues and that the Court should never grant cert to resolve novel Fourth Amendment issues. To adopt this approach would be to abdicate the Court’s responsibility to say what the law is.

In a complex and novel case involving digital technology, the majority of the Court got Chatrie right, finding that geofence surveillance is a Fourth Amendment search requiring a warrant and probable cause. Resolving such a case correctly is no mean feat. Perhaps the Justices are both tech-savvy and wise. Perhaps they just checked their phones and found they had Location History switched on, as the vast majority of Google Maps or Google Assistant users in the US likely do. In any event, they preserved meaningful Fourth Amendment rights in the digital age and charted the course of Fourth Amendment law for years or decades to come.

-- Matthew Tokson