That’s why the lawsuit that was filed by the State of Minnesota in Brownsville, Texas, on Tuesday deserves more attention than it has received. Minnesota Attorney General Keith Ellison has sued Governor Greg Abbott to compel him to sign a rendition warrant for Christian Castro, a former ICE agent charged with firing into an occupied home in Minneapolis who is currently in state custody in Texas. Abbott is refusing to sign the extradition warrant, at least until Minnesota “step[s] up and repay[s] the United States of America and Americans for all the fraud that they’ve committed in their state through federal programs.”

That’s just not how any of this works. As I explain in more detail below the fold, Abbott has no remotely viable legal argument—and he’s destined to lose Minnesota’s new lawsuit. Federal law provides governors with virtually no leeway to resist valid interstate extradition requests—a point the Supreme Court has reiterated every time the question has come up over the last 40 years. And although some might point to New York’s and California’s refusal to extradite doctors indicted by Louisiana for prescribing abortion-related medication via telemedicine, the constitutionally dispositive distinction is that, unlike Castro and Minnesota, those defendants weren’t in Louisiana at the time of their alleged offenses.

Instead, the messier issue is the timing—the distinct possibility that Abbott, perhaps with some help from the Fifth Circuit (and maybe the Supreme Court, too), is not trying to win, but rather is trying to run out the clock, which may expire as soon as next Wednesday.

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On Thursday, the en banc Fifth Circuit finally ruled on the long-pending Alien Enemies Act case that had reached the Supreme Court in April 2025 as A.A.R.P. v. Trump, but that has since been captioned W.M.M. v. Trump. To make a long story a bit shorter, the full court of appeals held that the important questions the case raised about the President’s authority under that 1798 statute had been mooted by the fact that the government had successfully removed the three named plaintiffs under other, more “ordinary” immigration authorities. Some right-wing commentators hailed the ruling as a “win” for the Trump administration, and in the narrowest sense, that’s not completely inaccurate. Given that it was the petitioners who appealed, the fact that their appeal was dismissed and the reason why it was dismissed (because these individuals were removed from the United States) certainly means that they didn’t “win.”

But I want to use today’s post to argue, to the contrary, that the denouement in W.M.M. quietly but emphatically drives home how badly the Trump Administration lost the Alien Enemies Act litigation writ large—as reflected in its clearly deliberate decision to moot these cases rather than defend the validity of President Trump’s March 14 proclamation invoking the act against members of Tren de Aragua (a Venezuelan gang).

Clever lawyering on the government’s part may have allowed it to avoid a precedential holding that the March 14 proclamation is invalid—which, as I’ll explain below, is a problem unto itself. But the reality is that, ever since the famous planes that didn’t turn around on March 15, 2025, every public indication is that no one has been removed from the United States under the AEA. And as problematic as I believe (and have argued) so much of the Supreme Court’s behavior on the emergency docket over the past 18 months has been, I also have to admit, as I explain below, that the justices were key players in the failure of the Trump administration’s misbegotten AEA enterprise. Folks can spin last week’s Fifth Circuit ruling however they want; the real bottom line is that this is how the AEA litigation seems destined to end—with a procedural whimper, not a substantive bang.

More on all of that below. But first, the news.

On the Docket

There was a single ruling by the full Court last week—Thursday’s denial of a stay of execution to Tennessee death row prisoner Anthony Hines, over no public dissents. Justice Kagan also issued a very brief administrative stay in the latest iteration of the long-running litigation between Apple and Epic Games—one that she dissolved herself in denying Apple’s application in chambers on Thursday.

This week will necessarily be busier—if for no other reason than because we expect the second of the Court’s three “regular” summer Order Lists at 9:30 ET this morning. We may also get a ruling on the two pending emergency applications respecting President Trump’s effort to interfere with mail-in ballots via executive order. And as expected, the administration also filed an emergency application last week (#36 if you’re scoring at home—or even if you’re by yourself) in the White House ballroom case. Besides the substantive significance of that case, the application includes 10 brand-new factual declarations by various government witnesses (beyond the declarations submitted in the lower courts)—raising the recurring (and problematic) issue of the factual “record” that’s before the justices on their emergency docket. (Chief Justice Roberts ordered a response by noon ET tomorrow, so this one may move quickly.)

In less significant news, the Court has also released the argument calendar for its November 2026 sitting—a whopping seven cases over five days. I wrote in April about how the Court could decide the same total number of cases each term without an April argument sitting by filling more of the slots earlier in the term; here’s a good example of those slots sitting open.

The One First “Long Read”:
The AEA Litigation … Ends?

I wrote a lot last spring about President Trump’s invocation of the Alien Enemies Act on March 14, 2025 as part of an apparent attempt to engage in mass, summary removals of at least some non-citizens the administration simply deemed to be members of Tren de Aragua—a Venezuelan drug gang that the government claimed had deep connections to the Maduro regime. Without rehashing all of the details, it may be useful to provide a brief procedural recap—to underscore the Supreme Court’s role in at least indirectly thwarting the administration’s (apparent) plan to utilize the AEA as a way of depriving a large number of non-citizens of the ordinary administrative and judicial process before they could be removed.

Round 1: J.G.G.

The litigation started, of course, in the D.C. federal district court in the case captioned J.G.G. v. Trump. On Saturday, March 15 (the same day that the President’s AEA proclamation was actually made public—by which point efforts were already well underway to remove hundreds of non-citizens from the country pursuant to that proclamation), Chief Judge Boasberg issued a pair of TROs—the first one blocking the removal of the named plaintiffs; and the second blocking the removal of any member of a nationwide class of individuals otherwise subject to the proclamation.

It’s worth pausing for a moment to flag the substantive point: the proclamation is based on the view that the United States is subject to a “predatory incursion” by Venezuela because of drug trafficking by gangs like TdA. Leaving aside the dubiousness of the factual predicate (one that the Trump administration’s own intelligence agencies rejected), the whole theory turns the AEA on its head—since that statute was meant to deal with nationals of countries with which the United States is in an actual war, like German, Italian, and Japanese nationals during World War II. Whatever else one might say about drug trafficking, or about the Maduro arrest operation, we were not then, and are not now, at war with Venezuela.

Anyway, the government defied (yes, Judges Katsas, Rao, and Walker—defied) those TROs by refusing to turn around planes that were already in the air, and it also appealed the TROs and sought emergency relief from them first in the D.C. Circuit and, when that failed, in the Supreme Court.

On April 7, 2025, the Supreme Court stayed Boasberg’s TROs by a 5-4 vote, with Justice Barrett joining the three Democratic appointees in dissent. The actual legal basis for the stay was the majority’s (deeply contestable) assertion that challenges to AEA removals had to be brought as habeas petitions, rather than, as in J.G.G., in a single, nationwide action under the Administrative Procedure Act. And because habeas petitions typically have to be brought in the districts in which the petitioners are actually detained, that meant these cases would have to be re-filed in Texas. As I detailed at the time, however doctrinally inconsistent (and wrong) that conclusion may have been, it had the intended and direct effect of channeling AEA claims into district-by-district habeas petitions.

But perhaps because of the stridency of the dissenting opinions in J.G.G., both the unsigned majority opinion and Justice Kavanaugh’s concurrence went out of their way to preemptively reject the Trump administration’s more extravagant claim—not that these cases had to be brought as habeas petitions, but that the petitioners were entitled to vanishingly little process in challenging their potential removals under the AEA.

Instead, the majority opinion in J.G.G. specifically emphasized that “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” And Justice Kavanaugh buttressed that point in his concurrence, explaining that “all nine Members of the Court agree that judicial review is available.” In other words, even as the Court (wrongly, in my view) channeled AEA claims into a series of distinct, multi-district habeas petitions, it emphasized that such habeas review would be—and would need to be—meaningful. If anything, the way the Court handled the emergency application in the Abrego Garcia case just days later provided further evidence that the justices were contemplating a vigorous role for judicial review even for those who had already been removed from the United States—and not just a rubber stamp.

Round 2: A.A.R.P.

Less than two weeks after J.G.G., the strength of the Court’s commitment to that kind of meaningful review was tested in the A.A.R.P. case. That case was the lead district-wide habeas class action brought on behalf of AEA detainees in the Northern District of Texas—the only district court to hear such a case that did not immediately enjoin or otherwise block AEA removals pending the notice and hearing that the Supreme Court had required. When it appeared that the government was going to remove a group of detainees from the Northern District without abiding by J.G.G., the Supreme Court issued its only grant of emergency relief to date against the second Trump administration—handing down a short but unusually emphatic order shortly before 1:00 a.m. ET on Saturday, April 19 that directly barred the removal of any member of the putative class (that is, any AEA detainee in the Northern District of Texas) while that litigation proceeded. The order came over only two public dissents (from Justices Thomas and Alito), and was backstopped with a more complete opinion on May 16.

As I suggested at the time, the Court’s machinations in A.A.R.P., like its ruling in J.G.G., had two sides. On one hand, here was the Court moving quickly and aggressively to preserve its own mandate in J.G.G., and to communicate, as clearly as it could, that it meant what it had said on April 7 about notice and an opportunity to be heard. On the other hand, rather than pretermitting all of this messy, chaotic, and high-stakes litigation by addressing the substantive merits of President Trump’s March 14 proclamation, or saying anything about the government’s misbehavior in J.G.G., the Court’s moves had been entirely procedural—ensuring a meaningful role for the courts (and the Court) at some future point in answering that question.

Round 3: W.M.M.

With A.A.R.P. quashing any thought of trying to remove folks under the AEA anyway, the Trump administration pivoted to litigating those questions—and to doing so only in the Fifth Circuit (since, under J.G.G., those questions could only be addressed where AEA detainees were being held). This led to the three-judge Fifth Circuit panel’s decision in W.M.M. (what had been the A.A.R.P. case) on September 2, 2025. Over a … lengthy … dissent from Judge Oldham, the court of appeals, in an opinion by Judge Southwick, held that the proclamation was in fact unlawful—principally because Tren de Aragua’s activities did not constitute an “invasion” or “predatory incursion” absent at least some military action.

At that point, rather than take the case to the Supreme Court, the Trump administration decided, instead, to seek en banc review in the Fifth Circuit. That move was another in a series of efforts by the Solicitor General’s office to avoid Supreme Court review on the merits of the President’s AEA proclamation—or, at the very least, to delay it. It’s one thing to delay such review when you’re winning. But recall that the status quo here was a de facto nationwide block on AEA removals. In that posture, not trying to get before the Supreme Court faster was a pretty clear tell. Indeed, it certainly appeared that the government had decided that it wasn’t likely to prevail on the merits if and when the case returned to the Supreme Court—and so the best-case scenario was to (1) vacate the adverse, precedential Fifth Circuit panel ruling; and (2) buy time to pursue other avenues for removing the named plaintiffs in W.M.M. Otherwise, there was no reason to seek further review in the Fifth Circuit rather than immediately petitioning for certiorari in the Supreme Court.

Unsurprisingly, the Fifth Circuit was perfectly happy to oblige—granting rehearing and vacating the panel opinion on September 30, 2025. As last Thursday’s unsigned ruling by the en banc court of appeals explained, “after oral argument before the en banc court, we learned that the government has removed all three named petitioners under the Immigration and Nationality Act—that is, not the AEA.” The result was to moot these petitioners’ appeals. And although the ACLU had asked the Fifth Circuit to substitute other detainees (who are still in U.S. custody) to allow the case to proceed, the court of appeals denied that request in a separate order (albeit without prejudice to the district court allowing the same).

To be sure, the dismissal was accompanied by a pair of thinly-veiled Supreme Court auditions qua concurring opinions from Judges Oldham and Ho trying to salvage the government’s position on the merits (with Oldham reupping his panel dissent and Ho going off on “invasions”). But the fact that those (deeply problematic) analyses came as separate concurrences proves the point: the majority of the en banc court went the procedural route and dismissed the petitioners’ appeals as “moot” rather than giving any credence to the substance of the government’s position.

So now what? I’d be very surprised if the three specific petitioners in W.M.M. try to pursue this litigation any further. Of course, the ACLU may well seek to have other plaintiffs substituted in the district court to continue the challenge, but if the government is bent on mooting those cases, too, it will likely be able to do so. There is also, of course, the ongoing litigation in the D.C. district court over the government’s defiance of Chief Judge Boasberg’s TROs in the J.G.G. case. But on the merits, that case, too, has long-since been mooted. And so far as I know, there are no other live, pending cases in which the government is appealing an adverse AEA ruling by a district court. For now, at least, this appears to be the end of the line for President Trump’s March 14 proclamation—and for whatever plans the Trump administration had for using the AEA as part of its immigration policy. (And for the conspiracy theorists among you who might worry that this was all just a ploy to get out from under the Supreme Court’s A.A.R.P. rulings, specifically, but not to give up on AEA litigation at least for now, let me just say that I don’t think the justices would be especially … impressed by such a maneuver.)

The upshot of all of this, of course, is that there is no adverse, precedential ruling holding that the proclamation was unlawful—and so there’s nothing to stop this administration (or a future one) from trying to rely on this proclamation, or the theory behind it, in future cases. In that respect, the AEA litigation has become the poster child for what Professor Andrew Coan has called “the appellate void”—when the government can effectively frustrate appellate review of rulings blocking a policy simply by not appealing them. Without universal injunctions (mostly foreclosed by the Supreme Court in CASA), nationwide APA relief (expressly foreclosed in the AEA context by J.G.G.), or nationwide class actions (implicitly foreclosed in the AEA context by J.G.G.), the government can litigate in a number of district courts, and then not be bound in any other cases when it loses those. As I suggest in my forthcoming Harvard Law Review Foreword, the Supreme Court bears direct responsibility for exacerbating this phenomenon over the last 18 months, and the AEA litigation is the textbook illustration of how it has done so.

And yet, for as unsatisfying as the AEA litigation has been substantively, it’s worth coming back to the practical bottom line: procedurally, it has been wildly successful from the perspective of the countless non-citizens who might otherwise have been subject to AEA removals. Yes, some of those folks, like the petitioners in W.M.M., have been removed anyway, but only under authorities that were already established. It’s not a “win” for the Trump administration to use its existing powers; if anything, that proves only that the extraordinary claim of new authority may never have been necessary—to say nothing of whether it’s legal.

Instead, the bottom line is that not a single person has been removed from the country under the AEA since March 15 of last year. The first three weeks of that can be traced directly to Chief Judge Boasberg’s TROs. But credit for the remainder has to be given to the Supreme Court, including the three justices in the majority in both J.G.G. and A.A.R.P. (the Chief Justice, Justice Gorsuch, and Justice Kavanaugh)—who went out of their way to (1) insist on notice and a meaningful opportunity to be heard in J.G.G.; and (2) back that up in A.A.R.P. Those were clearly meaningful moves in retrospect, even if their formal effect was to put off (potentially, indefinitely) conclusive judicial review of a patently lawless executive action.

The Court’s more ardent defenders have already held up the AEA litigation as one of the most meaningful examples of this Supreme Court standing up to Trump. I’ve always thought that claim was both slippery (compared to what?) and badly overstated given what the Court didn’t do in either J.G.G. or A.A.R.P. (i.e., reach the merits). But even if that claim is overstated, the trajectory of the AEA litigation since April 2025, potentially culminating in last Thursday’s en banc Fifth Circuit ruling in W.M.M., increasingly demonstrates that it isn’t wrong.

SCOTUS Trivia: A Correction on Last Week’s Trivia

I wrote last week about President Washington’s August 1795 recess appointment of John Rutledge as the second Chief Justice—and how Rutledge doomed his confirmation chances by giving a fiery speech in opposition to the Jay Treaty. But I got something importantly wrong—writing (in a brain fog, apparently) that Rutledge had been the first recess appointment to the Supreme Court.

In fact, that “honor” goes to Justice Thomas Johnson, the first justice to be appointed to the Court after the “original six” (take that, NHL!).1 As my friend (and incomparable Supreme Court historian) Maeva Marcus pointed out, Johnson received a recess appointment in August 1791 (although he didn’t take the oath until September 19), before being formally confirmed by the Senate on October 31. Indeed, Johnson’s recess appointment may be the answer to another puzzle—why the Supreme Court itself has apparently changed its mind about who the shortest-serving justice was, with the Court’s website now (correctly) identifying James F. Byrnes after it had, for a time, identified Johnson.

But this also gives me a chance to share my favorite Thomas Johnson trivia—the letter he sent to President Washington when he resigned from the Court so shortly after joining it. Like many of his contemporaries, Johnson hated circuit riding—and he wasn’t afraid to let Washington know about it, writing, among other things, that “I cannot resolve to spend six Months in the Year of the few I may have left from my Family, on Roads at Taverns chiefly and often in Situations where the most moderate Desires are disappointed: My Time of Life Temper and other Circumstances forbid it.”

Those were the days.

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This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there, especially from unlawful executive proclamations.

Rather than skip a week, though, I thought I’d try something a little different and a lot lighter—a more meta, pre-written post about the history of the newsletter as we are (quickly!) approaching our 500th post (this is #471); and, slightly more slowly, our fourth anniversary. Taking a page from my Letterman-watching youth, I thought I’d do a top-ten countdown of the most widely read posts in this newsletter’s history, drawn from the readership numbers on my end of the Substack dashboard. Mostly, I was just curious to see what the actual answers were (I knew what was #1, but I just don’t check this data often enough to keep tabs on the rest).

Three brief caveats. First, the dashboard data counts cumulative view totals (as of Thursday, August 6)—so they’re not adjusted for how long a post has been up; something from 2023 has had a lot more time to find readers than something from this spring. Second, I’ve counted only written posts, which means the audio episodes and Substack Lives are out, including one that would otherwise have landed at number four. Third, although it should be obvious, views measure attention, not quality (or even whether folks read the whole thing). Some of the posts I’m proudest of are nowhere close to this list (especially some of the earliest posts of the newsletter—when the subscriber base was much … smaller), and at least one entry below is one that I banged out in about ninety minutes (no spoilers).

One more thing worth saying up front, because I suspect it’ll jump off the page: all of the top ten posts were published after January 20, 2025 (which is why I included, as an honorable mention, the pre-2025 post with the most total views). At the end, I reflect a bit upon why that’s happened—and why it’s meaningful.

For fun, I’ll put #s 10-6 above the fold, and #s 5-1 (and the honorable mention) below the fold. Away we go (links to the posts are embedded in the titles if you want to go back and read/re-read them):

#10: 151. The Supreme Court’s (Alien Enemies Act) Patience is Wearing Thin

127,090 views — May 16, 2025

This Friday afternoon post followed up on my earlier state-of-play post about the many cases challenging the effort to use the Alien Enemies Act of 1798 to remove, on a mass and summary basis, individuals the government claimed were Venezuelan members of Tren de Aragua. This post focused on the “per curiam” ruling the Supreme court handed down in the A.A.R.P. case (after the initial order the justices had issued after midnight on Saturday, April 19), especially the majority’s pointed rejection of the dissent’s characterization of what happened in that earlier ruling—a pretty sharp elbow by the Court’s standards—and on the continuing erosion of the presumption of regularity in the Court’s Trump-related rulings.

#9: 145. Justice Alito’s Misbegotten Dissent in A.A.R.P.

127,561 views — April 21, 2025

Speaking of A.A.R.P., this post took a closer look at the dissent Justice Alito filed from the original, April 19 order (somewhat after the fact), joined by Justice Thomas. My view was that the tone was relatively mild for an Alito emergency-docket dissent, but that the substance bespoke a justice grasping for ways to justify not granting the relief the applicants sought rather than genuinely struggling with the relevant procedural questions—and that it portended nothing good for those justices’ votes in future emergency applications.

#8: 200. Five Questions About the Maduro Arrest Operation

134,803 views — January 3, 2026

This is one of the “five questions about” explainer posts I’ve written a bunch more of since last January. I wrote this one while there was still a great deal we didn’t know about the military operation in Venezuela that appeared designed to secure the arrest of Nicolás Maduro and his wife, both apparently under indictment along with four co-defendants. I worked through the administration’s apparent theory that the operation was in support of extraterritorial criminal arrests, and through the objections Maduro would likely raise—head-of-state immunity, foreign official immunity, and the act of state doctrine among them.

#7: 208. The Fifth Circuit Jumps the Immigration Detention Shark

142,356 views — February 7, 2026

Rather than rehash the background and legal arguments I had covered in my December 2025 overview of the broader debate over the Trump administration’s attempt to dramatically expand “mandatory” immigration detention, I used this post to explain two things I wasn’t sure would be well-covered elsewhere: how the administration got this nationwide issue in front of the Fifth Circuit specifically, and what would happen next. Both answers ran through the Supreme Court. Reno v. AADC and Trump v. J.G.G. together closed the door to classwide relief, which is why more than 15,000 individual cases (and counting) have had to be filed challenging the mandatory detention policy.

#6: 156. Federalizing the California National Guard

143,140 views — June 8, 2025

I put out an extra issue that evening in response to the presidential memorandum federalizing 2,000 members of the California National Guard to support DHS activities in and around Los Angeles. My central point was that, even if it was validly invoked (and the Supreme Court would suggest in December that it wasn’t), 10 U.S.C. § 12406 supplies no substantive authority the federal government didn’t already have, so nothing in the memorandum let those troops conduct their own immigration raids or make their own arrests—only to protect federal personnel and property.

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Five weeks after losing at the Supreme Court, President Trump on Thursday signed two new executive orders once again purporting to limit birthright citizenship. Trump has made no bones about his displeasure with the decision in Trump v. Barbara (which he loudly promised to ask the Court to rehear, only to … not follow through). But his and the White House’s efforts to describe these new orders as mere “adjustments” are, perhaps not surprisingly, deeply misleading. The new executive orders reflect a series of efforts to attempt to extend, solely by presidential fiat, the scope of the narrow exceptions to birthright citizenship that the Court reaffirmed on June 30.

As I explain below, although some parts of these new executive orders are likely to survive judicial review either because (1) they’re conditional; or (2) they merely restate what existing law already provides, the important parts are in direct conflict not just with the Fourteenth Amendment itself, but with Barbara’s reaffirmation of the breadth of the Citizenship Clause.

More on all of that in a minute. But first, the news.

On the Docket

The Court, at least as such, made virtually no news last week. There were no decisions by the full Court, and no new major emergency applications were filed. We are, of course, still waiting for the Court to rule on the emergency applications filed by the Trump administration and a group of red states in the mail-in ballots litigation—which I covered in more detail here, and which have been fully briefed since Tuesday. It’s entirely possible that we get that ruling sometime (anytime) this week, although it’s just as possible that we … don’t.

Speaking of emergency applications, we may also get one from the Trump administration this week in the ballroom case, given the 2-1 ruling by the D.C. Circuit on Friday reaffirming “(i) Congress’s full constitutional control over federal property and the funding of its maintenance and development, (ii) the absence of any express or implied authorization for the ballroom construction, and (iii) express statutory limitations that the ballroom construction violates.” In the same ruling, the panel denied as moot the Trump administration’s request for a stay pending appeal, but it also paused its ruling for 14 days to give the government time to ask the Supreme Court for the same relief. After a relatively quiet period with regard to emergency applications from the Justice Department, we may be entering a new, busy one.

Finally, although it’s not really news, Justice Alito gave another “interview” in the Wall Street Journal with James Taranto. This one doesn’t have quite the same stunners as the one from 2023 (in which Alito argued, with a straight face, that “no provision in the Constitution gives [Congress] the power to regulate the Supreme Court”). But it’s still an interesting read, even if it’s also a good reminder of how infrequently the justices are confronted with questions they don’t want to answer. (Now there’s an idea for a future post…)

The One First “Long Read”: Déjà Vu, All Over Again

On June 30, in Trump v. Barbara, a 6-3 majority of the Supreme Court affirmed that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth. Justice Kavanaugh concurred in the judgment and dissented in part; Justices Thomas, Gorsuch, and Alito each dissented.

More important than the vote count is the reasoning. Chief Justice Roberts grounded the Citizenship Clause in the common-law rule the Reconstruction Congress meant to constitutionalize: “the status of citizenship” is “fixed by the place of nativity, irrespective of parentage,” subject to a limited exception for “the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.” Those exceptions were limited (to three) and narrow: children born in lands the sovereign did not control, children born in areas temporarily outside the sovereign’s control, and children of foreign ministers—the last “by a fiction of extraterritoriality.” The Court also said, specifically, that aliens who come here for “business or pleasure” get no exemption from U.S. jurisdiction, and that their children born here are citizens.

What ties those exceptions together is sovereignty—not on the part of the non-citizen, but on the part of the U.S. government. Each asks whether the United States actually had legal authority over the place and the person at the moment of birth. That was the whole point of the Reconstruction rule. It replaced tests based on parentage or on somebody’s judgment about worthiness with a territorial rule officials would have little room to manipulate. Being “subject to the jurisdiction” of the United States meant being born inside a legal order that could protect you, regulate you, and punish you, no matter who your parents are.

On August 6, the President signed two orders. The first, “Continuing to Protect the Meaning and Value of American Citizenship,” directs federal agencies not to issue or accept documents recognizing citizenship for certain U.S.-born children where neither parent is a citizen. The second, “Ending Birth Tourism,” directs State and DHS to deny visas to suspected birth tourists. Agencies have 30 days to issue implementing guidance.

Everything in the first order hangs on six words from Barbara: “for whom no extraterritorial fiction applie[s].” The White House fact sheet says the new categories are exceptions “the Supreme Court recognized.” Here is the sentence they come from: “Any child who was born ‘under the protection of’ the United States—that is, any child for whom no extraterritorial fiction applied—was made a citizen.” Roberts wrote that to explain why the rule is broad. The order wrongly reads it as authority to make the rule narrower.

Before getting to the unconstitutional parts, let’s start with the parts of the orders that don’t change anything. This is an important baseline, because it allows the administration to say that “some” of the order is “merely” reaffirming settled law:

The accredited-diplomat core. Barbara affirmatively reaffirmed an exception for “the children of foreign ministers,” and existing regulations already implement it: under 8 CFR 101.3, a child born here to “a foreign diplomatic officer accredited to the United States” is not subject to U.S. jurisdiction and is not a citizen. The reason is not complicated. Accredited diplomatic agents are immune from U.S. criminal jurisdiction and largely from civil and administrative jurisdiction, so American law does not reach them in the ordinary way. On this much the order restates settled law, and nobody will sue over it. The problem is how it purports to build out from the foreign ministers themselves. More on that below.

Territories. The order also reaches births in U.S. territories and territorial waters where citizenship isn’t conferred by statute. As of today, that’s exactly one territory: American Samoa. And as I’ve written about before, both the Tenth and D.C. Circuits have held (wrongly, in my view) that the Citizenship Clause doesn’t apply to American Samoa, either (see also this 2017 Harvard Law Review Note)—which means the new executive order merely reflects existing law. The other territories are all covered—Puerto Rico under 8 U.S.C. § 1402, the U.S. Virgin Islands under § 1406, Guam under § 1407, and the Commonwealth of the Northern Mariana Islands under the 1976 Covenant. Congress could repeal those statutes, of course. But the executive order doesn’t (and can’t) do it for them.

Thus, with respect to the territories, the order does … nothing.

Just about everything else is attempting to enlarge, by executive order, one of the existing historical exceptions. The foreign-employee provision widens the diplomat exception. The alien-enemy provision widens the enemy-occupation exception. The surrogacy provision tries to manufacture an extraterritorial fiction out of a private contract. The fraud provision tries to turn misconduct (which could provide the basis for denaturalization) into an absence of jurisdiction. Under Barbara, each should turn solely on where the birth happened and whether American sovereign authority applied at that time. It should not turn on whether officials can pin a disqualifying label on a parent.

“Foreign government employees” beyond accredited diplomats. This provision is easiest to mistake for existing law. It is not. The order does not stop at those diplomats who are outside the jurisdiction of the United States because they enjoy diplomatic immunity. Rather, it purports to create a broader “foreign government employee” category, including an embassy employee who is a national of the country he works for. It also reaches employees of international organizations with international-organization immunity—never mind that international-organization immunity is meaningfully distinct from diplomatic immunity.

This all sweeps well past the current rule. Under settled practice, a child born to a consular officer, a locally hired embassy staffer, or an administrative employee without full diplomatic immunity is a U.S. citizen at birth. So the substitution matters. The existing exception rests on actual immunity from American law; the order rests on foreign employment. But the extraterritorial fiction exists only because the parent is formally beyond the reach of American courts and police. A consular officer who can be prosecuted, sued, and regulated here is subject to U.S. jurisdiction in precisely the sense that Chief Justice Roberts meant in Barbara. As applied to everyone other than the foreign ministers with diplomatic immunity, the order would violate the Fourteenth Amendment.

Surrogacy. The order also purports to deny citizenship to children born in the United States whose parents “engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth.” This may be the weakest provision in the package. The problem is not only that surrogacy appears nowhere in the historical exceptions. The trouble runs deeper: it has nothing to do with why those exceptions exist in the first place. A surrogate physically present in the United States is subject to American law in every respect (unless, I guess, the surrogate is a foreign ambassador with diplomatic immunity). Again, the order reasons by analogy: diplomats are treated by fiction as outside territorial jurisdiction, so perhaps a private contract can do similar work. But the constitutional question is not whether an arrangement is commercial or even evasive. It is whether the birth happened under American sovereign authority. To sustain this, the government would have to convince a court that a surrogacy contract does the same jurisdictional work as diplomatic immunity. That was a non-starter even before Barbara.

“Commercial transactions” and fraud. The order also covers parents who “engaged in a commercial transaction to purchase or access birthright citizenship.” That includes paying to get the mother here to give birth. The theory seems to be that fraud somehow generates an extraterritorial fiction. But again, we come back to the same problematic move: A rule about people formally outside American sovereign authority becomes a rule about people who allegedly lied their way in. But Barbara held that visitors here for business or pleasure remain subject to U.S. jurisdiction. A child born in Houston is no less within American authority because of what her mother paid a middleman (like, you know, a travel agent).

A mother’s intent. The order also reaches babies of mothers who lie about their reasons for visiting while pregnant. Consider what that means in practice. A child’s citizenship would depend on a federal official’s after-the-fact judgment about what her mother was thinking at a port of entry sometime before the child was born. Folks have already pointed out that it’s not clear how any of this could be enforced. This isn’t a drafting glitch; it’s what happens when constitutional status rests on an unprovable fact about somebody else. To be sure, there are existing authorities to pursue denaturalization of naturalized citizens who obtained their citizenship through fraud. But even in the most supportive hypothetical, a child born on U.S. soil isn’t obtaining their citizenship from their parents’ fraud; they’re obtaining their citizenship from being born on U.S. soil. They’re not naturalized citizens; they’re birthright citizens.

“Alien enemies.” Finally, this last category deserves more care than it has received, because the exception does have a genuine historical pedigree. Barbara acknowledged an enemy-related exception. It discussed the old rule that if enemies “possess” a “castle or fort,” children born there were not born under the sovereign’s allegiance. So a child born to British parents in an area under British control during the War of 1812, say, would not have been a birthright citizen (even if the Citizenship Clause existed then).

But the order tries to dramatically expand this category to include any parent who belongs to a designated Foreign Terrorist Organization under 8 U.S.C. § 1189, or who is a Specially Designated Global Terrorist under IEEPA and Executive Order 13224. There is a massive gap between the foreign-occupation exception to birthright citizenship and membership in a designated FTO or designation as an SDGT. Indeed, it is entirely possible for groups/individuals to end up on those lists without doing anything in the United States. Even knowingly funding an organization the individual has reason to believe may be engaged in acts of international terrorism is still not within a country mile (or, really, ocean) of being an occupying power on U.S. soil.

Just to put the matter directly, part of why the British child during the War of 1812 couldn’t be a citizen is because he couldn’t be arrested, prosecuted, sanctioned, and deported; he was outside U.S. jurisdiction both formally and practically. Given how regularly the government uses the FTO and SDGT designation processes to impose consequences on U.S. soil, it should be obvious how these processes involve an entirely different category of behavior than what the historical exception was meant to encompass. This goes well past nibbling at the margins; it’s taking the historical exceptions and twisting them into pretzels.

***

It’s pretty obvious that these expansions can’t be reconciled with Chief Justice Roberts’s opinion in Barbara. It’s worth noting, though, that they also can’t be reconciled with Justice Kavanaugh’s opinion concurring in the judgment and dissenting in part. Kavanaugh may believe that Congress can expand the exceptions by statute, but his opinion was unambiguous that the President can’t do it by himself—which is why he agreed that the January 20, 2025 executive order is unlawful (because it’s inconsistent with the current statutes respecting birthright citizenship). The same would be true here.

If the relevant parts of the executive order are almost certainly to be struck down by the Supreme Court, then why go through the motions? Indeed, Stephen Miller called this one of the most important immigration reforms of the presidency.

I have two theories. The first is procedural: Unlike with regard to the January 20, 2025 birthright citizenship order, it’s not as immediately clear who can sue to challenge at least some of these provisions—e.g., the efforts to expand the alien enemy exception. And even with plaintiffs with standing, Trump v. CASA sharply curtailed universal injunctions, so a plaintiff who wins may protect only herself unless she can proceed as a class (which, again, may be only one provision at a time), or find another route to systemwide relief. Barbara itself was a class action, but a challenge to this order may take five or six class actions on behalf of different groups (or an attempt at universal relief by states, who would be stuck trying to figure out how to implement this mess if it ever goes into effect). I still think this will get sorted, but it’s more complicated—and the administration may be planning to battle adverse lower-court rulings on procedural grounds, as much as on substance.

My second theory is that at least part of the goal isn’t to win here, but to continue moving the Overton Window on citizenship—and to more generally try to muddy the waters when it comes to describing categories of non-citizens. Diplomats become indistinguishable from foreign employees. Enemy occupation gets blurred with statutory sanctions listings. Diplomatic extraterritoriality somehow morphs into a template for surrogacy contracts. And sovereign jurisdiction is converted into a subjective after-the-fact judgment about fraud or a mother’s motives. Each move uses a specific historical exception as a justification for executive branch line-drawing. If that works, citizenship stops being a fact fixed at birth and becomes an administrative conclusion reached afterward based upon shifting executive branch priorities. The question would no longer be whether a child was born under American sovereignty. It would be whether officials can pin a disqualifying label on her parent. It’s ugly; it’s wrong; and it’s already succeeding more than I would’ve expected 18 months ago.

That brings me to one last point: President Trump defended all of this by saying the Fourteenth Amendment “was for the babies of slaves” and that people are now building businesses around it, and by claiming the United States is “just about the only country, period,” that does birthright citizenship. The second claim is utterly false; there are at least 32 other countries that recognize a similar rule, and 50–60 more that recognize birthright citizenship in at least some form.

The first claim attempts to be a history lesson, which is what makes it so dangerously misleading. The Citizenship Clause was indeed written to repudiate Dred Scott, the 1857 Supreme Court decision holding that Black people could never be citizens. But the Reconstruction Congress did not swap one caste rule for a narrower one; it extended the promise to “every free-born person in this land.” The idea wasn’t just to retroactively protect “the babies of slaves”; it was to prospectively forestall all future efforts to deny citizenship based on whatever other non-sovereignty-based criteria might be politically popular in any given moment. That is the principle the Supreme Court just reaffirmed in Barbara—a principle that is fundamental to what it means, constitutionally, to be an American, no matter what President Trump, Stephen Miller, or even certain Supreme Court justices might prefer.

SCOTUS Trivia:
The First SCOTUS Recess Appointment

I’ve written before about the phenomenon of “recess” appointments to the Supreme Court—when presidents have temporarily installed justices during formal recesses of the Senate. The first of those happened 231 years ago this Wednesday, when President Washington appointed John Rutledge to be the nation’s second Chief Justice (so that Rutledge could preside over the Court’s August term). In the process, Rutledge became the first justice to ever serve two non-consecutive terms on the Court (Charles Evans Hughes is the only other person to do it).

Unbeknownst to Washington, in late July, Rutledge had delivered a blistering attack on the Jay Treaty with Great Britain at a public gathering in Charleston, South Carolina. In the speech, he said, among other things, that he would rather see the President die than sign it. The Senate had ratified that treaty three weeks earlier, by the barest two-thirds margin. The Federalists who supplied those votes were in no mood to hear it trashed by the man now sitting in Jay’s old chair. Soon, treaty supporters spread word that the speech was proof Rutledge was losing his mind, and pressed Washington to withhold the commission. Washington kept his promise anyway, and Rutledge took his seat.

Once the Senate returned in December, however, it voted 14–10 against him—the first time it ever refused a Supreme Court nominee. After 138 days, Rutledge resigned on December 28 (even though he probably could have served until the end of the Senate session the following year—when his recess appointment expired), and he remains both the shortest-serving Chief Justice and the only recess appointee to the Court whom the Senate declined to confirm.

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Then, on Monday, Florida Attorney General James Uthmeier asked Congress to open an impeachment inquiry into Eleventh Circuit Judge Nancy Abudu, not for anything she has done as a judge, but for what he suspects she knew during her prior employment at the Southern Poverty Law Center. His theory appears to be that a sitting judge “should not be able to escape impeachment for wrongful conduct occurring prior to her appointment,” even though the evidence of both SPLC’s “wrongful conduct” and Abudu’s responsibility for it both … leave something to be desired.

The complaint about Burroughs is, at bottom, a complaint about procedure: whether a district judge may use an unlabeled interim device to hold a policy in place while she sorts out whether a claim can survive. That’s a fair question, and it’s one I’ve been writing about for years—because, contra what so many right-wing lawyers and commentators have been insisting, district judges did the exact same thing during the Biden administration. If anything, their behavior was, in various respects, even more troubling.

One can say the same thing about the rest of the bill of particulars currently being leveled against the lower courts: From litigants shopping for friendly judges to judges allowing suits against the federal government to go forward based on thin standing arguments to judges issuing creative forms of relief, most of the procedural critiques one hears from the right these days describe behaviors that we saw at least as much—if not more—of between 2021 and 2025. I was critical of much of that behavior then (unlike many of today’s critics) and I remain opposed to much of it today. But the one thing it isn’t is “novel.”

The Abudu letter is a different animal. It isn’t about a ruling; Uthmeier doesn’t cite one. He’s arguing that a sitting federal judge should be removed from office because of where she worked before she was confirmed. And by pretending that the real story is the not-so-novel behaviors we’re seeing in lower courts, right-wing commentators are obscuring what is new—the unprecedented volume of defiance of court orders; the sustained efforts to attack and delegitimize lower federal court judges; and the very real threats that those efforts have engendered. (If you haven’t already read Joanna Slater’s story about Chief Judge McConnell in yesterday’s Washington Post, you should.) In short, we’ve gone from criticizing rulings to seeking to impeach the judges who write them, filing misconduct complaints against them, and listening to the Deputy Attorney General announce that his Department is at “war” with the district courts.

The purpose of today’s post is to document both of these points—how the procedural critiques so often being leveled from the right these days all relate to behaviors that were just as prevalent, if not more problematic, during the Biden administration; and how what’s actually different about this moment is the scale (and source) of these sustained efforts to undermine so many different federal judges, if not the lower federal judiciary itself. I know you’re shocked to hear this, but the same folks who said nothing when district courts engaged in these procedural behaviors during the Biden administration (and who now claim they’re “novel”) have had remarkably little to say about what really is novel—the profoundly dangerous delegitimization campaign in which they are, however unwittingly, necessarily participating.

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I’ve heard a lot over the past few weeks, especially from conservative defenders of the Supreme Court, about just how “independent” the Court is—how the fact that it ruled against President Trump in (exactly) four significant cases this term should somehow serve as a complete defense to all criticisms of the Court’s behavior, and should stand, instead, as conclusive proof of the Court’s legitimacy. In a New York Times roundtable in which I participated, University of Chicago law professor Will Baude suggested that “this is one of the most independent courts I can imagine at this stage of the second Trump administration.” Cato’s Doug Bandow devoted a column to “The Virtue of Judicial Independence.” A USA Today columnist predicted that “[s]uch independence will surely be forgotten the next time they rule in the president’s favor by those who wish to undermine the court’s legitimacy.” And even Justice Kagan gave a bit of a nod to these arguments in her remarks at the Ninth Circuit Judicial Conference, calling the charge that the Court has been too deferential to this President “a bad rap,” and agreeing that the Court has not been “a puppet” for this administration.

There are two different—but equally significant—problems with this framing, and today’s “Long Read” elaborates upon both of them. First, however much folks want to make out of the Court’s rulings in the tariffs, birthright citizenship, Lisa Cook, and Illinois National Guard cases, there’s still that pesky little denominator—the massive amount of allegedly unlawful behavior by this administration that the Court has green-lit, especially through unsigned and thinly explained orders on the emergency docket. Not only did the Court grant 22 consecutive applications by the federal government last year, but as I argue in my forthcoming Harvard Law Review Foreword, it has gone even further in those rulings and elsewhere to limit the ability of lower federal courts to push back against systemic lawlessness by this administration—and to thereby enable executive branch mischief, even if and when it isn’t affirmatively endorsing it. So even on its face, holding the Court out as a bulwark against Trump is factually contestable, at best.

But even to those who find the “independent Court” framing more descriptively persuasive notwithstanding the contrary evidence, there’s a much deeper second problem: Judicial independence is not, and is not supposed to be, an end unto itself; it is a means to an end. As Justice Anthony Kennedy memorably put it at a 2007 Senate Judiciary Committee hearing, “Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must.”

The central problem with this Court, as I’ve argued (ad nauseam) before, is that this Court does what it pleases, when it pleases—because it has become completely unaccountable. An independent Court, like a stopped clock, may still be “right” every once in a while. But a Court that continues to arrogate power from the other branches; that continues to aggrandize the role of lower federal courts (and then doesn’t defend them from external attacks); that continues to overrule prior precedents solely because of its disagreements with them; and that continues to assert that it isn’t (and ought not to be) accountable to anybody is a Court that will only continue to lose public support—and, thus, lose its ability to stand up to other government institutions when it actually needs to—no matter how “independent” it is.

To trumpet the Court’s “independence” as the relevant yardstick is to deeply misunderstand the entire purpose of the enterprise—and the gravity of the danger the Court’s recent behavior has created, and is creating, for itself. Independence may make it possible for the Court to rule against the other branches of government, but it isn’t why the other branches have to comply.

More on all of that below. But first, the news.

On the Docket

The Court issued three orders last week—all of which were denials of stays of execution respecting Florida’s “double execution” on Tuesday of James Duckett and Dominick Occhicone. There were no public dissents from the three orders—the 102nd, 103rd, and 104th full-Court rulings on emergency applications during the October 2025 Term.

Turning to this week, nothing formal is expected from the Court (the next set of summer housekeeping orders isn’t expected until August 17). But it seems distinctly possible, if not likely, that we’ll get some movement on the two emergency applications (including one from the Trump administration) in the mail-in ballot cases—which I covered in detail in last Thursday’s bonus issue.

Finally, for readers who might be prospective applicants for a clerkship in Justice Jackson’s chambers, I’m posting (as I did last year) a letter from her chambers with respect to the process for applying for the October 2027 Term (i.e., 2027-28). I appreciate and commend Justice Jackson’s efforts to provide broader public access to this information—and, whether through this newsletter or more official media (like the Supreme Court website), I hope her colleagues will follow suit.

The One First “Long Read”:
One-and-a-Half Cheers for the “Independent” Court

As I previewed above, my own view is that there are two distinct critiques of the “independent Court” narrative—one descriptive and one normative.

The Descriptive Critique: Is the Court Really “Independent” of Trump?

Those playing up Trump’s losses at the Court this term have a remarkable tendency of playing down his wins. Yes, the Court rejected President Trump’s IEEPA tariffs in February; yes, it struck down his birthright citizenship order in June; and yes, it refused to let him fire Fed Governor Lisa Cook without any process at all. (The fourth ruling in this camp is the denial of a stay in the Illinois National Guard case from December.) But it also gave him Trump v. Slaughter—overruling Humphrey’s Executor outright and subjecting the heads of more than 20 formerly independent, multimember agencies to the President’s whim—and Mullin v. Doe, which cleared the way to strip legal status from roughly 350,000 Haitian and Syrian TPS holders while holding that a district court couldn’t even review most of how the Secretary got there (a ruling that implicates as many as 1.5 million noncitizens who have never committed a crime and who face pretty terrible conditions if/when returned to their home countries). The President’s victories changed the law and the structure of the executive branch permanently, in Trump’s favor, and in ways that no future president is likely to give back. To be sure, Trump’s losses weren’t irrelevant. But other than the Fourteenth Amendment holding in the birthright citizenship case, they were at least legally modest.

Then there’s the emergency docket. This administration has filed 35 emergency applications in roughly 18 months—against 19 from the Biden administration across four years, and just eight from Bush and Obama combined across sixteen years. It has won almost all of them. Bloomberg Law found the justices granting relief in 24 of the first 27 administration-related orders (including, in my own data, 22 in a row). This past term alone, the Court wiped out more than 20 preliminary injunctions and TROs entered against the government. Justice Sotomayor has called the volume “unprecedented in the court’s history.” If you put that number—two dozen-plus, mostly unexplained, mostly unsigned—up against the four losses described above, the claim of “independence” becomes quite a bit murkier (all the more so given the doctrinal moves the justices have made to support those results—which, as I’ve explained, have been Trump-specific).

The interventions have also tended to facilitate much more widespread activity by the executive branch—usually without any suggestion that the activity is legal. With respect to restructuring the executive branch, the Court effectively blessed the government-wide reduction-in-force order in July 2025 (Justice Jackson’s “wrecking ball”); it cleared the dismantling of the Education Department, and it let Trump remove officials at the NLRB, MSPB, and CPSC well before Slaughter explained why. With respect to appropriations, the justices allowed the termination of more than $700 million in NIH grants and then unblocked the first “pocket rescission” in half a century, freeing the President to withhold roughly $4 billion Congress had appropriated—what Justice Kagan called “a presidential usurpation of Congress’s power of the purse.” Andwith respect to immigration, the Court let the administration end TPS for more than 300,000 Venezuelans and stayed an order barring roving patrols in Los Angeles from targeting people by apparent ethnicity, language, and occupation—with only a solo (and deeply problematic) concurrence from Justice Kavanaugh trying to explain why. In each case, the Court’s interventions are what made the policies operative—policies that produced, and continue to produce, massive real-world effects.

Beyond the specific behavior that it has enabled, the Court has also spent much of the last 18 months making it harder for lower courts to halt systemic executive branch lawlessness. Last June’s ruling in Trump v. CASA largely took universal injunctions off the table. Trump v. Boyle told district judges that they are bound not just by what the justices hold but by what they can be inferred to have meant in cryptic orders—a point Justice Kavanaugh restated in Cook, where he wrote that “as a matter of vertical stare decisis, the lower courts have no choice but to follow our lead.” Trump v. J.G.G. foreclosed APA review in a wide swath of immigration cases (especially those arising under the Alien Enemies Act of 1798)—channeling those cases into messy district-by-district habeas litigation. And the Court has also read new constraints into the Tucker Act that has forced countless spending-cutoff suits out of district courts and into the Court of Federal Claims—which generally lacks the power to issue coercive relief (like injunctions).

All of this is coming at the same time as the Court is granting emergency relief even in cases in which the Trump administration had defied the district court; as Justice Gorsuch has chastised lower courts for “defy[ing]” the justices; and as the Court has declined to provide any broader defense of lower-court judges despite withering and deeply personal attacks from the executive branch and its supporters. One might have expected the Supreme Court to be the lower courts’ shield against a program of systemic executive lawlessness, or, at the very least, against unprecedented executive branch attacks on (and defiance of) lower courts. My Foreword argues, to the contrary, that it has been a significant part of the problem.

Against that backdrop, the four big rulings against Trump look considerably smaller than they did on the days they came down. The Guard order was a denial of a stay “at this preliminary stage.” The tariffs ruling closed one statutory door and the administration promptly walked through others. Cook held only that Trump owed Lisa Cook process before firing her, and sent the case back so the government could try to fire her with process. And the birthright citizenship ruling invalidated an order that had never taken effect, because every judge to look at it had already said it was flagrantly unconstitutional. Those decisions aren’t insignificant, but they also aren’t the whole waterfront. A Court isn’t independent just because it rules against the President every once in a while; one also needs to consider what he is able to do anyway—and who let him do it.

The Normative Critique: Should “Independence” Be the Goal?

Regardless of how you slice the data, there’s a deeper problem with the way folks are arguing about this: they’ve turned judicial independence into the benchmark, when it never has been, and isn’t supposed to be, the reason for having an independent judiciary. Independence is instrumental. It matters because of what it produces—a judiciary free to rest its rulings on law rather than on the identity or the preferences of the party in front of it or the threats the judges face if they rule the “wrong” way. Alexander Hamilton’s point in Federalist No. 78 was not that independence is intrinsically valuable but that the judiciary, holding “neither force nor will, but merely judgment,” would need something other than force or will to make its judgments stick.

That authority was to come from diffuse public support—a general willingness, accumulated across decades and across ideological lines, to accept the Court’s rulings as binding even when one strongly disagrees with them. Political scientists have spent forty years documenting that such a base of existing support is what distinguishes such durable judicial authority from specific, transactional approval of particular outcomes. They’ve also argued, that entire time, that this kind of capital is far harder to rebuild than it is to spend. The popularity (and legitimacy) that creates that authority is not something the Court possesses inherently or by structural design; it is something it earns from the public, only over time. That’s why treating independence as a self-justifying good gets the causation backwards, and it lets the Court off the hook for spending down its limited capital—for whether its behavior is continuing to provide the public with reasons to obey it.

When President Eisenhower sent the 101st Airborne into Little Rock in September 1957, he was not acting out of deep agreement with Chief Justice Warren’s opinion for the Court in Brown—he had been conspicuously unenthusiastic about Brown and said so. He acted because defiance of a federal court order by a governor, televised nightly, had become intolerable to a country that took the Court’s word as law. As he put it in a televised address to the nation on September 24, 1957, “[t]he very basis of our individual rights and freedoms rests upon the certainty that the President and the Executive Branch of Government will support and insure the carrying out of the decisions of the Federal Courts, even, when necessary with all the means at the President’s command.” Indeed, Eisenhower continued, “[u]nless the President did so, anarchy would result.”

And when President Nixon released the tapes in response to United States v. Nixon, he did so on the advice that resistance was politically unsurvivable—a unanimous Court, including three of his own appointees, had told him to comply, and there was no constituency for defying it. Neither President obeyed because the Court was “independent.” Both obeyed because the Court was respected enough that disobedience would have cost them more than compliance did. The Court’s power didn’t flow from its independence; it flowed from popular support for its authority.

Last month, in contrast, Gallup found only 33% of the public approves of the Court—the lowest in the 26 years it has asked the question, down from a prior floor of 39% a year earlier—and Republican approval fell from 79% in September 2025 to 58%. The numbers may be sharper among Democrats, but the decline among Republicans should be just as disconcerting to anyone who cares about the Court’s forward-looking authority. Marquette’s pollsters attribute part of it to a “broad perception that the court has sided with the president on more issues than it’s opposed him.” That’s certainly part of it.

But whatever has caused the downturn in public support for the Court, more “independence” isn’t the solution. A Court that wants to regain public trust is a Court that tries to earn that trust back. It’s more than a little difficult to look at the October 2025 Term (or any other recent session of the Court), or the justices’ behavior off the bench, and see any visible evidence of any concerted effort in that direction. Thus, even if the Court rules against Trump more in the years to come (in both absolute and percentage terms), that won’t solve the problem, either. The answer, as ever, is a Court that is responsive, and acts as if it ought to be responsive, to the other institutions of government—with justices, to go back to Justice Kennedy, who do what they must, not what they please.

SCOTUS Trivia: The Rump Docket

Today’s the First Monday in August. From 1790 until 1838, that would have made it the opening day of a Supreme Court Term—one at which, by statute starting in 1802, a grand total of one justice was expected to show up.

I’ve written about this before, but it remains my favorite bit of Supreme Court arcana, and it comes from a pair of terrific 2006 articles by Professor Ross Davies: “The Other Supreme Court” in the Journal of Supreme Court History, and “A Certain Mongrel Court” in the Minnesota Law Review. Davies’s name for the institution is the “rump Court,” and the short version is that the Supreme Court came in two flavors from 1802 to 1838: the familiar en banc February Term, and a summer sitting at which a single justice returned to Washington and constituted the Court all by himself.

The Rump Court was a byproduct of a sustained interbranch row. After the Election of 1800, the lame-duck Federalist Congress passed the Judiciary Act of 1801—the “Midnight Judges Act”—and the incoming Democratic-Republicans repealed it in March 1802. The companion Judiciary Act of April 29, 1802 consolidated the Court’s work into a single annual February Term—conveniently postponing Marbury for fourteen months—while providing that one justice could hold a session each August.

As Davies notes, nobody at the Court ever objected that this was in tension with Article III’s command that the judicial power be vested in “one supreme Court.” The justices were at that very moment writing furious letters to each other about the constitutionality of the repeal and the restoration of circuit-riding. On the rump Court, they were, as Davies put it, perfectly untroubled. Both the en banc Court and the one-justice August Court were simply treated as versions of the same institution.

Part of that may have been because, at most of the August sittings, nothing of consequence happened. A contemporary newspaper account quoted by Davies reported that “[f]or many years past, the business of this court has been entirely pro forma.” But not always. In August 1838, Chief Justice Taney—sitting alone—heard argument and delivered an opinion on an order to show cause in Ex parte Hennen, a case the full Court would go on to decide at the January 1839 Term. Davies makes the persuasive case that this only makes sense if Taney understood himself to be acting as the Court rather than as the Fourth Circuit’s Circuit Justice. He also reprints Taney’s unreported August 1838 opinion in full—which is reason enough to read the article.

Taney’s move drew attention to the whole strange arrangement, and Congress abolished the August Term in February 1839, with only vague gestures toward “efficiency” by way of explanation. Which brings me to Davies’s larger point: for 37 years, Congress subdivided the Supreme Court into two differently constituted bodies, and no one—not the justices, not the litigants, not the bar—thought “one supreme Court” forbade it. Whatever you make of the current proposals to restructure the Court, the early Congresses plainly believed they had more latitude here than we tend to assume. They may have been right.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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The underlying question in these cases is indeed a massively important one: whether President Trump had the power, as he purported to exercise back in March, to order the U.S. Postal Service to refuse to deliver mail-in ballots to anyone not on a federal citizenship list built and maintained by the Department of Homeland Security and the Social Security Administration (a list that will fail to account for countless citizens who are legally registered to vote in states that allow mail-in voting—including those who live in states that have refused to cooperate with administration demands for their voter rolls).

At least for now, though, the dispute in front of the Supreme Court involves who can challenge Trump’s order and when—not whether the order is legally valid on its face. Thus, even if the Supreme Court grants either or both of the applications filed this week, all it will be doing is putting off resolution of the merits (and, depending upon what the government does, perhaps only for a matter of weeks).

For reasons I explain below the fold, my own view is that such a move would still be problematic in its own right. Either the Trump administration is going to take meaningful steps to implement this executive order before the election (at which point, the standing and ripeness issues necessarily go away) or it isn’t (in which case, it’s impossible to see how the federal government is suffering the kind of irreparable harm that is supposed to be necessary to obtain emergency relief from the Supreme Court). The key point for present purposes is that, whatever headlines it may generate, even a full grant of relief in Trump v. California would almost certainly leave the federal government’s authority to interfere with mail-in voting unresolved—not settled in Trump’s favor.

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One of the quieter casualties of the Court’s just-completed term is the modern descendant of a 1789 statute that, for nearly half a century, was used to allow victims of torture and other grave human rights abuses to walk into a federal courthouse and ask for a remedy. In Cisco Systems, Inc. v. Doe I, a majority comprising all six Republican appointees effectively shut that door—and, as I’ll explain, it did so by overruling a unanimous 2004 precedent without ever fully acknowledging that that’s what it was doing, and through reasoning that says a lot more about this Court’s (lack of) regard for its own past decisions than it does about the relevant clause of section 9 of the Judiciary Act of 1789—known today as the Alien Tort Statute (“ATS”).

To that end, today’s “Long Read” traces how the ATS went from a “legal Lohengrin” to a human rights workhorse and back again; why Justice Barrett’s account of the statute in Cisco doesn’t hold together; and why one case the majority conspicuously ignored—the Abu Ghraib litigation out of the Fourth Circuit—shows just how much we all stand to lose when the Supreme Court closes the courthouse doors to these kinds of lawsuits.

More on that below. But first, the news.

On the Docket

The Supreme Court issued the first of its regular summer order lists last Monday—adding one case to the merits docket for the upcoming term, and denying a number of rehearing petitions (and re-filed applications). Those were the only full Court rulings to come down last week. Speaking of rehearing, although President Trump has publicly committed to seeking rehearing of the Supreme Court’s June 30 decision in the birthright citizenship case, the deadline for filing such a petition is today (technically, it was Saturday, but that bumps it to today). It’s President Trump, so you never know. But I’m not holding my breath.

The One First “Long Read”: The ATS, Then and Now

There are exactly 33 words in the Alien Tort Statute (as amended), and for most of the two centuries after Congress enacted it as part of the Judiciary Act of 1789, they received little attention. The statute gives the district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” That was it. It doesn’t expressly provide a cause of action; it doesn’t list specific, covered wrongs; and there is next to no legislative history to help illuminate why Congress included it in the federal judiciary’s founding charter. Nor did history help; for nearly 200 years, the statute mostly sat on the shelf. Courts invoked it a handful of times, but nobody was quite sure what it was supposed to do.

The modern history of the statute starts with Filártiga v. Peña-Irala, in which a Paraguayan family found their son’s torturer living in Brooklyn and sued him under the ATS for his 1976 killing back home. In 1980, the Second Circuit held that the statute reached the claim—that deliberate torture by a state official violated the law of nations, and that federal courts were open “for adjudication of the rights already recognized by international law.” The court read the ATS not as manufacturing new rights but as providing a domestic forum for a wrong the world had already condemned, and it grounded that reading partly in foreign relations, reasoning that claims “fraught with implications for the nation as a whole” belonged in federal court rather than being left to fifty different state courts.

Filártiga set off a wave of human rights litigation—including significant rulings from at least three different federal courts of appeals (the Second, Ninth, and D.C. Circuits) in the 1980s and 1990s. It also led to an enormous and sustained debate among academics—who fought bitterly over the extent to which U.S. courts could (and should) provide remedies for violations of “customary international law,” i.e., international legal principles and norms that were not part of statutes or ratified treaties, and thus were not (at least obviously) the law of the land for purposes of the Constitution’s Supremacy Clause.

Even as that debate raged on, the Supreme Court didn’t weigh in for almost a quarter of a century. And when it finally did, in Sosa v. Alvarez-Machain, it landed on a compromise that would govern ATS litigation for the next two decades. Justice Souter, writing for the Court, agreed that the ATS is “strictly jurisdictional” and creates no causes of action on its own—but rejected the argument that this made the statute “stillborn.” The First Congress, the Court reasoned, understood that courts would recognize a modest set of common-law claims for violations of international law as well defined and universally accepted as the paradigms the drafters had in mind in 1789 (offenses against ambassadors, violations of safe conduct, and piracy—what the Court now calls the “Blackstone three”).

Going forward, Sosa held, courts could recognize new claims, but only for norms of comparable “definite content and acceptance among civilized nations,” and only with great caution. That was Sosa’s famous second step: narrowing the scope of ATS claims relative to the most extreme lower-court rulings, but leaving federal courthouse doors unmistakably open. Justice Scalia wanted those doors shut altogether, but he didn’t get five votes (or even four). Only Chief Justice Rehnquist and Justice Thomas took the narrowest view of the ATS in 2004.

The Court spent the next two decades narrowing that opening, but it kept declining to overrule Sosa itself. In its 2013 ruling in Kiobel v. Royal Dutch Petroleum, the Court initially granted certiorari to decide whether corporations could be proper defendants under the ATS, but then held, on re-argument, that the ATS wasn’t available in “foreign-cubed” cases—those in which foreign plaintiffs sued foreign defendants for conduct on foreign soil. Only if the claims “touch and concern” U.S. territory “with sufficient force to displace the presumption” against extraterritoriality would Sosa’s framework be available.

Then, in its 2021 decision in Nestlé USA, Inc. v. Doe, the Court held that “general corporate activity”—operational decisions made in U.S. boardrooms—was not enough domestic conduct to let former child laborers sue two American companies over forced labor on Ivorian cocoa farms. That was enough to decide the case, and tellingly, Justice Thomas’s effort to go further and hold that Sosa should be scrapped entirely, couldn’t hold a majority; Chief Justice Roberts and Justice Barrett pointedly declined to join it, with Justice Sotomayor noting separately that such an approach “would overrule Sosa ‘in all but name.’”

Then, on June 23, and without any attempt to reconcile their prior adherence to Sosa, the Chief Justice joined Justice Barrett’s opinion for a six-justice majority in all but relegating Sosa to the scrap heap. In Cisco, plaintiffs alleged that Cisco and two of its executives had helped the Chinese government build the “Golden Shield” surveillance system used to identify, detain, and torture Falun Gong practitioners, and they sued under both the ATS and the Torture Victim Protection Act. Justice Barrett, writing for herself, the Chief Justice, and Justices Thomas, Alito, Gorsuch, and Kavanaugh, held that federal courts “may not create new causes of action” under the ATS at all—including for aiding and abetting—and that the TVPA likewise does not reach those who aid and abet torture. The three Democratic appointees all dissented from the ATS holding, and Justice Sotomayor dissented from the TVPA holding.

Formally, Cisco doesn’t eviscerate the ATS. But it takes a huge bite out of it (and Sosa), by eliminating the power of courts to recognize new international-law claims that were not available in 1789. What’s left is what Scalia wanted in his Sosa concurrence and what Thomas pressed for in Nestlé: the ATS as a jurisdictional grant and nothing more, good for the three offenses Blackstone catalogued in 1789 and, well, that’s it. Justice Sotomayor called this what it is—a “sub silentio overruling of Sosa” that “marks yet another low point in this Court’s esteem for its precedents”—and she’s right. The whole significance of the compromise in Sosa was the Court leaving the door open for ATS suits for offenses other than the “Blackstone three.” By cabining the ATS to those three offenses and nothing more, Cisco renders Sosa a dead letter.

In many respects, reading the opinions in Cisco is like re-reading the opinions in Sosa. It’s the same debate about the relevance of the same sources and arguments to the interpretation of the same statute. And that’s what really bothers me: the majority never really explains why Sosa had to go. Sosa was unanimous on the point that courts retain some power to recognize international-law claims. It was 20 years old. Litigants, human rights advocates, and lower courts had built two decades of doctrine on top of it. Under any of the versions of stare decisis the current justices have professed to follow, that combination usually counts for something.

The Cisco majority engages with almost none of that. Its two stated reasons—that Sosa’s second step was “narrow at the outset,” and that judicially implied causes of action are disfavored today—are arguments about why Sosa was wrong (again, just read Scalia’s Sosa concurrence), not reasons why a wrong-but-entrenched precedent must now be abandoned. Those are different questions, and the Court has spent years insisting they are different questions. “We now think the 2004 Court got it wrong” is not a special justification; it is just disagreement, and disagreement with a prior Court has never been enough, by itself, to justify tossing out its ruling. Beyond its implications for human rights litigation in the United States (about which more in a moment), this is the most alarming part of Cisco: stare decisis really is, as the hosts of Strict Scrutiny so often put it, for suckers.

The other major move in Cisco is Justice Barrett’s suggestion that recognizing ATS claims carries an inherent risk to American foreign relations—that letting these suits proceed invites the courts to meddle in matters the Constitution assigns to the political branches. Especially given how Kiobel and Nestlé had already narrowed the ATS to minimize its impact in cases with foreign implications, that move seems underdefended at best—all the more so in light of a high-profile case that the Court didn’t even discuss: Al Shimari v. CACI Premier Technology.

Al Shimari is the Abu Ghraib case. Four Iraqi men, arrested and detained by the U.S. military in 2003 and later released without charge, alleged that interrogators working for CACI—a Virginia-based government contractor—conspired with soldiers to torture them. After 16 years and five trips to the Fourth Circuit, the case was pared down to two ATS claims, and in 2024 a jury found CACI liable for conspiracy to commit torture and cruel, inhuman, and degrading treatment, awarding the three remaining plaintiffs a total of $42 million. On March 12, 2026—three months before Cisco—the Fourth Circuit affirmed. And it directly confronted the foreign-relations worry that animates Barrett’s opinion. Because Congress had itself endorsed torture claims under the ATS and its companion statutes, the court explained, “allowing this case to proceed lacks any potential to negatively affect foreign relations.” If anything, the court said, the opposite is true: “nothing would be more offensive to the arena of foreign relations than to proclaim that courts of the United States may not provide a remedy to foreign nationals who were tortured by members of the U.S. military.”

The existence of cases like Al-Shimari (and Al-Shimari itself) is, to me, the critical point Justice Barrett’s opinion elides. The foreign-relations objection has at least some force in “foreign-cubed” suits like Kiobel, where U.S. courts are asked to referee a dispute among foreigners over conduct abroad. It has almost no force where the defendant is an American company and the alleged wrong is torture carried out under color of U.S. authority in a manner that, per Kiobel, “touches and concerns” U.S. territory. In those cases, refusing to hear the claim doesn’t protect American diplomacy—it announces to the world that the United States offers no forum when its own contractors and companies are accused of grave human rights abuses. Al Shimari shows how this is supposed to work. There, you had an ATS suit that went to a jury after years of litigation over jurisdictional and procedural predicates. The case not only produced a verdict, but it survived every foreign-relations and separation-of-powers objection that CACI raised. In other words, Al-Shimari illustatres the very accountability that the ATS was revived to provide, delivered without any of the diplomatic ramifications that Justice Barrett’s majority opinion just assumed are inevitable.

Whether Al Shimari itself survives is now an open question—CACI is already arguing that Cisco forecloses the plaintiffs’ aiding-and-abetting theory, and the plaintiffs are countering that torture, like piracy, sits within even the narrowest reading of the 1789 statute. (Perhaps needless to say, I’m deeply sympathetic to the plaintiffs here.) But however that case comes out, its stakes will be deeply significant. For 46 years, the ATS gave torture survivors somewhere to go when no one else would hold their abusers to account—all the more so when the abusers were Americans or American corporations. Cisco has taken most—if not all—of that away. The problem isn’t just what Cisco means for human rights plaintiffs, real as that is. It’s how little work this Court now thinks it has to do before walking away from a precedent it no longer likes—something that the same 6-3 majority would do two more times in the seven days between Cisco and the last hand-downs of the October 2025 Term.

SCOTUS Trivia: The Fifth Seal

For … reasons, I was recently watching a (bad) old West Wing episode (from the sixth season, by which point everything had gone to pot), where Vice President Bob Russell keeps telling his completely unfunny joke about how, if he looks at the Vice President’s seal just so, it kinda looks like it says “President of the United States.”

Somehow, that got me thinking about the Supreme Court’s seal—including its history and evolution. Here’s an image of the current version:

As it turns out, the current seal is the Court’s fifth in its history. On Wednesday, February 3, 1790—during the very first sitting of the Supreme Court—the Court ordered “that the Seal of this Court shall be the Arms of the United States, engraved on a circular piece of Steel of the Size of a Dollar, with these words in the Margin ‘The Seal of the Supreme Court of the United States.’” That original die served the Court for four decades; its last known use came in August 1831, on the papers in Worcester v. Georgia.

Four successive redesigns followed, culminating in the larger, less ornate version the Court ordered in May 1904 and adopted on May 4, 1905—the one still in use today. The symbolism is derived from the Great Seal of the United States, as are most of the design elements. Indeed, besides the Court’s name, the only detail that’s specific to the Court’s seal is also the one with the most meaning: beneath the eagle’s claws sits a single star, representing the “one supreme Court” that Article III creates—a not-so-subtle reminder that the Constitution mandates exactly one such body and leaves control over the existence, size, and scope of the rest of the federal judiciary to Congress.

The seal remains in the custody of the Clerk of the Court, who stamps it on official papers—including the admission certificates issued to new members of the Supreme Court bar and, as I’ve learned the hard way, the official judgment handed down 32 days after a merits case has been decided.

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This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there—especially from human rights abuses, for which there are increasingly few remedies in U.S. courts.

That behavior was on display again late Tuesday, when the en banc Fifth Circuit granted the Trump administration’s unprecedented request for a “precedential stay” of three consolidated district court decisions in the latest dispute over the government’s novel and controversial immigration detention policies. Even though the full court of appeals had already agreed (without even being asked) to rehear a panel decision that had recognized constitutional limits on how long the government can detain certain noncitizens pending their removal before providing them with a bond hearing, it apparently concluded that further intervention was warranted.

As a result, in its unsigned, unexplained order, the Fifth Circuit acted in a way that seems at least outwardly intended to deter district courts in cases other than the three under full court review from providing bond hearings to any of the tens of thousands of other noncitizens currently in immigration detention in Louisiana, Mississippi, and Texas. To get there, the court of appeals had to turn the entire concept of an emergency application on its head—and accept, without any analysis, the Trump administration’s deeply disingenuous arguments about what the district courts in these specific cases had actually done. And the Justice Department is already claiming (wrongly) that this unexplained order somehow resolves the constitutional question at issue—perhaps in an effort to distract from what the Fifth Circuit actually said (i.e., nothing):

All of this may seem hypertechnical, but as I explain below the fold, it comes at an enormous cost. A bond hearing is not—as Brett Shumate asserted—“a constitutional right to roam free”; it allows a noncitizen to demonstrate that they should be released pending their (potentially years-long) removal process—based upon an individualized judicial determination that they pose no threat to themselves or others, and no risk of flight. Without even being eligible for bond hearings, everyone from children to the elderly would be forced to remain in indefinite immigration detention for the duration of their removal proceedings (and pending their removal), even those who have never committed a crime—in conditions that, according to a growing number of reputable accounts (including DHS’s own Inspector General), are increasingly inhumane. That’s problematic enough in the abstract; it’s even more galling when it comes through unexplained and undefended procedural chicanery.

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Welcome back to “One First,” a newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.

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For as long as I’ve taught National Security Law, the Alien Terrorist Removal Court (“ATRC”), a specialized national security court that Congress created in 1996, has been a recurring curiosity of mine. The idea was to provide a judicial mechanism like the one provided by the Foreign Intelligence Surveillance Act (FISA), in which the government could simultaneously (1) obtain meaningful judicial review in a deportation case while (2) keeping the (classified) evidence secret. Indeed, in a 2014 book chapter, my now-colleague David Cole and I held out the ATRC procedure as a potentially useful illustration of the “cleared counsel” model of national security litigation—in which, instead of providing the subject of an enforcement proceeding with the classified information on which the proceeding depends, the government provides it to a lawyer for the subject (albeit in only a subset of cases before the ATRC). As the chapter reflects, the ATRC had remained an academic curiosity—because it had never actually been used. Until last week.

On Friday, Seamus Hughes (the truly indispensable editor of “Court Watch,” among many other things) broke the news that the Trump administration had filed the first-ever application before the ATRC, leading to the first order in that court’s 30-year history (and its hasty creation of a website). We don’t know much beyond what Seamus has already reported (and what’s now on the ATRC’s website). But as someone who has spent more time thinking about the ATRC than, I suspect, 99.99% of the population, now seems as good a time as any to introduce the court; to flag the constitutional questions its statutory structure raises; and to reflect on how alarming it is that the Trump administration has, after all this time, activated it.

Skipping to the punchline, much like the FISA Court, the ATRC reflects a series of imperfect compromises. And there are reasons to worry about some of the benefits that the ATRC process provides to the government. But—and this is the important part—it also has some protections baked into it that are not currently available (or, at least, not immediately available) to many non-citizens in the “regular” removal process, primarily the robust role of Article III district judges—as opposed to Justice Department immigration judges—in administering it. I have at least some concerns about why the Trump administration is dusting it off now. But there’s no universe in which the ATRC will allow the administration to pursue the kind of mass, summary deportations that it has thus far been unable to achieve through any other immigration authorities. If there’s something nefarious afoot, it’s meaningfully smaller than that.

More on all of this below. But first, the Supreme Court-specific news.

On the Docket

There was only a single full-Court ruling out of the Court last week—Tuesday’s denial, over no public dissents, of a stay of execution to Florida prisoner Dennis Sochor. The only other big news out of the Court last week was Tuesday appearances by Justices Kagan and Barrett at House and Senate budget hearings—the first public testimony by sitting justices since 2019, and their first appearance in the Senate since 2011. I’ve written before about the myriad reasons why this really ought to go back to the annual routine that it used to be; hopefully Tuesday’s hearings were a first step in that direction.

Finally, as I noted in last Thursday’s bonus issue, I’ve been a bit busy with Court-related work myself—and posted to SSRN a draft of my Foreword to the Harvard Law Review’s Supreme Court issue for the October 2025 Term, tentatively titled “The Court Against the Courts.” As I noted in Thursday’s post, I’d welcome your feedback!

The One First “Long Read”: Unpacking the ATRC

In 1996, as part of the Antiterrorism and Effective Death Penalty Act (and as quickly amended in the Illegal Immigration Reform and Immigrant Responsibility Act), Congress created the ATRC—a tribunal largely modeled on the FISA Court, and which was intended to be able to handle individual deportation hearings in cases involving highly sensitive national security information. Although the statutory procedures are quite complex, the Federal Judicial Center has a helpful summary:

The statute authorize[s] the Attorney General to draft an application for removal of a suspected alien terrorist [a term defined by statute], and to submit the application to the removal court under seal. A single judge may grant the application upon a finding that the alien in question has been identified correctly as an alien terrorist present in the United States and that removal under other available legal means would pose a risk to national security. Upon granting a removal application, the court must hold a public removal hearing at which the accused has the right to be represented by counsel and the government bears the burden of proving that the accused is an alien terrorist. To avoid the disclosure of classified information, the government must prepare an unclassified summary of such information which the judge must find to be sufficient for the alien to prepare a defense. If the government meets its burden of proof at the hearing, the court will order the alien removed from the United States.

As for the judges, the ATRC is composed of five already-serving Article III district judges “assigned” by the Chief Justice to also serve on that court, the only criterion for which is that they come from five different circuits. (For more on the Chief Justice’s assignment powers, see the trivia, below). Under the 1996 statute, the Chief Justice may assign to the ATRC judges who are also serving on the FISA Court, but he doesn’t have to (all five of the current ATRC judges are also FISA judges, but that hasn’t always been true). The Attorney General can appeal a judge’s denial of an application under the statute, and either the Attorney General or the non-citizen at issue may appeal the decision of the judge after a removal hearing. Unlike the FISA process (where there’s also a specialized appeals court—the FISA Court of Review), the 1996 statute gives the ordinary D.C. Circuit exclusive appellate jurisdiction over the ATRC.

I started with the judges and the appeals process because this is probably the most important point about the ATRC: The compromise it reflects is one in which the government’s benefits involve the protection of classified information and the burden of proof (about which more shortly), but in which the costs sound almost entirely in who is reviewing these cases. (There are also some more pro-government rules respecting detention of the subject of the hearing both beforehand and afterwards, but the daylight between those rules and the rules in “ordinary” cases has shrunk quite a bit since 1996.) Unlike immigration judges housed within the Justice Department’s Executive Office of Immigration Review (who are less and less independent by the day), the ATRC is staffed not just by Article III district judges, but (especially today) by those with experience handling the only comparable kind of litigation—classified applications and other proceedings brought under FISA.

The ATRC’s Chief Judge, Judge Joan Ericksen (a senior judge on the District of Minnesota), made this abundantly clear in the order she publicly issued on Thursday. Here’s the relevant text:

On July 15, 2026, the United States filed an Application to the United States Alien Terrorist Removal Court pursuant to 8 U.S.C. § 1531 et seq. to remove the respondent in the above-captioned matter from the United States. On July 16, 2026, the Court held a hearing as contemplated by § 1533(c)(1), at which the Court heard attorney argument but no sworn testimony was taken. During the hearing the United States offered to supplement the record with information, and the Court had questions about the nexus that the government alleges between the actions of the respondent and the specific sections and subsections it invokes with respect to those actions. The answers persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration.

In other words, the ATRC is not going to be a rubber stamp.

That said, it’s also worth highlighting the constitutional concerns militating in the other direction, most of which were flagged (and carefully analyzed) in an excellent 2008 student note in the Duke Law Journal by John Dorsett Niles. The biggest ones involve the evidence. If the cost to the government of the ATRC process is an Article III judge and a D.C. Circuit appeal, the benefit is the ability to rely entirely on evidence that will remain classified—and be presented in most cases only to the judge and only in camera.

If the judge, after considering the evidence on the record as a whole, finds that the Government has met its burden [i.e., that a preponderance of the evidence shows the non-citizen to be an “alien terrorist,” as that term is defined by statute1], the judge shall order the alien removed and detained pending removal from the United States. If the alien was released pending the removal hearing, the judge shall order the Attorney General to take the alien into custody.

In other words, the statute authorizes the government to remove someone from the country based on evidence they never see and don’t meaningfully have an opportunity to contest. As Niles’s note points out, this raises quite severe due process questions—especially for those non-citizens whose due process rights most closely approximate those of citizens, i.e., lawful, permanent residents (LPRs, or “Green Card” holders).

Mindful of those concerns, Congress provided a special procedure for cases in which the subject of the proceeding is an LPR. Under 8 U.S.C. § 1534(e)(3)(F), the court in such a case must appoint a “special attorney to assist the alien,” “by reviewing in camera the classified information on behalf of the alien, and . . . by challenging through an in camera proceeding the veracity of the evidence contained in the classified information.” In other words, an LPR is entitled to have a lawyer challenge the evidence being used against them, even if the lawyer can’t actually consult with the subject of the proceeding. This approach is obviously not perfect, but it reflects at least a genuine attempt on Congress’s part to balance the government’s interest against that of the non-citizen.

At the other end of the spectrum, for better or worse (my own view skews toward the latter), non-citizens with far weaker claims to comparable due process protections (including those who have never had lawful immigration status) can be removed from the country under this provision without ever being told why; other than the government, only the judge assigned to the case (and the D.C. Circuit) would ever know the reasons. And in the middle, perhaps the hardest cases are those in which the subject is a non-citizen with substantial lawful connections to the United States, just not LPR status. Those individuals would have the strongest argument, in my view, that the statute fails to accord them the constitutionally required process—because they don’t get the benefit of the “special attorney” even though they have substantial due process rights.

As Niles notes, the seriousness of these constitutional concerns is almost certainly a big part of why, across 30 years, the government had never previously utilized this procedure. And we have no way to know what it is that prompted the Trump administration to change course now. But it seems worth flagging three things that we do know—which ought to bear on both how big a story this is and how alarmed we should be by it.

First, on its face, the statute contemplates a robust and meaningful role for the district judge—in lieu of the subject and their attorney in most cases. And Thursday’s order by Chief Judge Ericksen is a promising sign that she, at least, takes that role seriously. Courts could do a lot, in this context, to mitigate the constitutional concerns by ensuring not only that the government is held to the statutory requirements in every particular, but that its evidence that the subject really is an “alien terrorist” is robust and substantial.

Second, because of the meaningful (if secret) judicial review the statute contemplates, there is no universe in which the ATRC could become a vehicle for mass, summary deportations along the lines of what the Trump administration has already attempted—including through the Alien Enemies Act of 1798. The ATRC is exactly what the executive branch-dominant process before immigration judges and the Board of Immigration Appeals is not—it’s insulated from political pressure. However the ATRC’s judges come out in individual cases, the substance and timing of the review the statute contemplates would be deeply antithetical to any attempt to use its procedures in a large number of cases at any one time. It’s a scalpel, not a bazooka.

Third, and militating in the other direction, the fact that the government had never previously used this process in the 30 years it’s been on the books speaks to the discomfort that just about everyone who’s ever looked carefully at the statute has come away with. Democratic legal systems abhor secret evidence—not just because of the grave fairness concerns it can create but because of the corrosive effects of having these kinds of decisions made out of the public eye, no matter how faithful to the relevant legal criteria they may be. The FISA process may affect a heck of a lot more people, but no one is being removed from the country based solely on a secret decision made by a FISA judge based upon secret and uncontested evidence.

Even in a world in which the five ATRC judges are doing their level best to put the government through its paces, and to look out for the interests of the non-citizen whose liberty is at issue, it is more than a little difficult to have faith in such a process—no matter what we think of the administration that’s invoking it. All the more reason, in my view, for abolition of the ATRC—or, at the very least, substantial reform—to be added to the laundry list of lower court-directed measures that will be sorely needed the next time we have a Congress that cares. Until then, here’s another envelope-pushing move by the Trump administration to which we’ll have to pay close attention, and another example of Article III district judges serving as the principal and most meaningful check to hold the executive branch accountable.

SCOTUS Trivia: The Chief Justice’s Assignment Power

One of the Chief Justice’s more interesting statutory authorities is the power to “assign” (a verb that has intentionally different legal implications from “appoint”) already serving Article III judges (and justices) to temporary service on other courts. The ATRC is one of four distinct courts (or panels) staffed entirely by Chief Justice assignments; the FISA Court, the FISA Court of Review, and the Judicial Panel on Multidistrict Litigation are the other three. But the Chief Justice also has the (oft-used) authority to assign active and senior district and circuit judges (and retired justices) to temporary service on other courts. (This practice is generally referred to as “sitting by designation.”)2

Chief Justice Roberts’s approach to these assignments has come under some fire in the past, including in a July 2013 New York Times study by Charlie Savage that raised questions about whether Roberts’s assignments to the FISA Court had skewed toward judges appointed by Republican presidents to a meaningfully greater degree than the assignments made by his predecessors. I’ll just say that, for all of the criticisms directed toward the Chief Justice these days, the current compositions of these courts reflect a pretty impressive cross-section of highly regarded judges appointed by presidents of both parties. There are plenty of problems with the ATRC (and the FISA Court, while I’m at it). But in my view, the identity—and quality—of the judges is pretty far down the list.

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This week’s bonus issue will drop on Thursday. As ever, I hope you are all staying safe out there.

For better or worse, I have the honor and privilege of having been invited to write the Foreword for this year’s Supreme Court issue, covering the October 2025 Term (to be published in November 2026). And now that I have a completed draft, I thought I’d use today’s bonus post to introduce (and share) the draft, and, below the fold, to reflect a bit on both (1) the evolution of the Foreword in general; and (2) the specific reasons I settled on the focus of this year’s piece.

To spoil the punchline, here’s the abstract:

The Supreme Court sits atop a judicial system on which it is deeply dependent. It lacks the capacity to superintend more than a fraction of the cases filed each year, and it relies on the “inferior” courts beneath it to develop records, sharpen issues, and enforce compliance with coercive orders. The Chief Justice (of the United States, not just the Supreme Court) is steward of that whole system—not merely of the Court at its apex.

Since President Trump returned to office in January 2025, that system, and federal district courts in particular, has been subjected to a sustained, multi-front assault without precedent in American history: a historic flood of litigation, rhetorical and impeachment-based attacks from the political branches, escalating threats against judges and their families, and mounting executive defiance of court orders.

One might have expected the Supreme Court to be the lower courts’ shield. In this Foreword to the Harvard Law Review’s Supreme Court issue for the October 2025 Term, I argue that it has instead been a significant part of the problem. Through an accelerating series of emergency-docket interventions—and through its merits rulings, its rhetoric, and its silences—the Court has stayed, narrowed, or vacated district court orders, often without full briefing, argument, or reasoned explanation, while treating trial judges’ considered factfinding and legal conclusions as provisional placeholders to be revisited at the justices’ discretion. Using seven sets of cases from the past eighteen months, I show that the Court has done significant damage to the formal, practical, and moral authority of federal district courts to hold the federal government to account—all while arrogating much of that same authority to itself, with respect to factfinding, law-finding, the timing and scope of appellate review, and the balancing of the equities.

The cumulative effect has been to recast the district judge from an Article III adjudicator whose orders bind the United States into something closer to an adjunct of the justices. That transformation, I contend, is best understood as one more expression of the judicial aggrandizement—and, ultimately, the “autocratic judging”—that has come to define the Roberts Court, and it poses a serious threat to the rule of law. Re-empowering the district courts, accordingly, should be central to any serious program of court reform. The story of the Supreme Court since early 2025 is, in the main, a story about the Court against the courts.

And for those who would like to read more (warning: it’s … long), the full draft can be downloaded from SSRN at this link. Needless to say, I’d welcome any and all feedback!

For those who are not paid subscribers, we’ll be back Monday with our continuing coverage of the Supreme Court. For those who’d like to know a bit more about the Foreword in general and my contribution, in particular, please read on.

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Given the paucity of news out of the Supreme Court last week, I’m devoting today’s newsletter to an ongoing and increasingly messy litigation battle between the Trump administration and hospitals providing gender-affirming care to transgender minors, and the related litigation between the Federal Trade Commission (FTC) and the World Professional Association for Transgender Health (WPATH)—the professional body whose Standards of Care shape how gender dysphoria is treated worldwide.

This litigation did not arise in a vacuum. Rather, it’s the latest development across nearly eighteen months in which the Trump administration has made ending gender-affirming care an explicit policy goal and directed federal agencies to investigate the doctors and organizations that (legally) provide or support it. But the Trump administration’s animus and shady litigation behavior does not make every criticism WPATH has faced baseless, nor does it resolve the underlying, genuinely contested questions about the evidence behind WPATH’s guidelines. The goal of today’s post is thus to provide enough of a background on what’s going on in these cases for folks to (hopefully) reach their own conclusions. And before diving in, let me express my thanks and appreciation to one of my superstar research assistants, Abby Liman, for truly superlative assistance with this post.

Background

WPATH is a nonprofit professional association that has, for more than fifty years, published the “Standards of Care” (SOC) that much of the world’s clinical, insurance, and legal infrastructure treats as the authoritative guide to treating gender dysphoria. On the other side are the Justice Department the FTC—a federal agency tasked, among other things, with certain consumer protection responsibilities, which has been investigating WPATH and peer organizations, including the American Academy of Pediatrics and the Endocrine Society, over their public statements on gender-affirming care for minors.

Back in 2022, WPATH had published the eighth edition of its Standards of Care and, in doing so, dropped the specific age limits that prior editions had attached to hormones and certain surgeries. That editorial decision—and internal documents about how it was made—has become the centerpiece of the criticism against the organization. But it also became fodder for the Trump administration, which has made hostility to gender-affirming care—and to transgender rights more broadly—an explicit policy priority. On January 20, 2025, the President issued an executive order announcing that the federal government would recognize only two sexes and enforce “all sex-protective laws” accordingly; eight days later, a second order, “Protecting Children from Chemical and Surgical Mutilation,” declared it federal policy not to “fund, sponsor, promote, assist, or support” the “transition” of minors and to “rigorously enforce all laws” limiting such care.

Those orders set the tone, and the enforcement agencies followed. In April 2025, Attorney General Pam Bondi issued a memorandum accusing clinicians of deploying “junk science” to justify “maiming and sterilizing children” and directing DOJ components to investigate providers; a June 2025 Civil Division memo made those investigations a stated priority, and DOJ’s own press release announcing the first wave of subpoenas quoted Bondi vowing that “medical professionals and organizations that mutilated children in the service of a warped ideology will be held accountable.”

That context matters for two reasons. First, it is the evidentiary backbone of the retaliation and improper-purpose findings that courts would repeatedly make about those subpoenas: judges did not infer animus from thin air but from the administration’s own words—including a DOJ lawyer’s concession in one hearing that “the executive branch wants to reduce or eliminate gender-related care to minors,” and FTC Chairman Andrew Ferguson’s memorandum promising to “fight back against the trans agenda” by investigating “the doctors, therapists, hospitals, and others who deceptively pushed” such care. Second, it is precisely what makes the two sides’ conduct so hard to sort: an administration that has openly announced its goal of ending a category of medical care, and then deploys investigative tools against the providers and professional bodies that support it, invites the suspicion that any given enforcement action is pretextual—even in the instances where the underlying legal theory might otherwise stand on its own.

One last note before seguing to the nationwide litigation: I’ve seen the FTC/WPATH imbroglio described elsewhere as “multidistrict litigation,” but it is not an MDL in the technical sense of a single consolidated proceeding under 28 U.S.C. § 1407. Instead, what’s happening is a campaign playing out across multiple districts at once. The geographic sprawl is not an accident, and is itself one of the central features (and, to my mind, problems) of the underlying dispute.

The Trump Administration and the Nationwide Losses It Incurred

The litigation kerfuffle began in July 2025, when the Department of Justice issued more than twenty administrative subpoenas to hospitals providing gender-affirming care, demanding the identities and medical records of minor patients. Those efforts met with near-uniform objections from district courts across the country, most finding they had been issued for an improper purpose.

Judge Chun in the Western District of Washington set aside the subpoena to Seattle Children’s Hospital, citing the government’s “threadbare justification” and “strong evidence” of improper purpose. Days later, Judge Joun in the District of Massachusetts quashed the subpoena to Boston Children’s Hospital, pointing to the administration's own executive orders and memoranda as evidence of its objective. Judge Whitehead, also in the Western District of Washington, quashed a subpoena in the QueerDoc matter, concluding that the government “issued the subpoena first and searched for a justification second.” Judge Kearney in the Eastern District of Pennsylvania quashed a demand for children’s medical and psychological records, finding the link between patient identities and any fraud theory “tenuous at best.” Judge Bissoon in the Western District of Pennsylvania granted a motion to quash in the UPMC matter, writing that the government’s demand carried “more than a whiff of ill intent.” Magistrate Judge Chung in the District of Colorado recommended that a subpoena to Children’s Hospital of Colorado be held unenforceable as a “smokescreen,” expressly “join[ing] the chorus” of courts before him. And Judge Rubin in the District of Maryland quashed the subpoena to Children’s National Hospital as “a pretext to fulfill the Executive’s well-publicized policy objective.”

The District of Columbia litigation belongs in the same story but occupies a distinct branch of it. Where the seven quashals concerned the DOJ’s administrative subpoenas, the D.C. cases challenged a different instrument—the FTC’s civil investigative demands (CID)—and three organizations brought parallel suits there: the Endocrine Society, the American Academy of Pediatrics, and WPATH. The doctrinal frame also differed: rather than resting on the “improper purpose” standard that governs subpoena enforcement, Chief Judge Boasberg analyzed the CIDs as likely First Amendment retaliation, granting a preliminary injunction in the Endocrine Society case on May 7 and, the same day, enjoining the WPATH CID by relying on that companion opinion. Yet the two branches were expressly linked: Boasberg grounded his reasoning for enjoining the CIDs in the rulings by a “slew of courts” that had already characterized the DOJ’s subpoenas as a "smokescreen" for pressuring providers to abandon gender-affirming care, citing the Colorado and Western District of Washington decisions among them. The connection ran the other way too—the Rhode Island Child Advocate, in turn, leaned on the same cross-district consensus in its own motion to quash. What ultimately set the D.C. cases apart was how they ended: not in a merits ruling but in the FTC's withdrawal of the CIDs on the day it filed a new lawsuit in Texas, which mooted the preliminary-injunction motions in D.C.

Shopping for Chief Judge O’Connor

Indeed, it was only after this unbroken run of losses that the government turned to the Northern District of Texas—and the Fort Worth division, specifically, without ever actually explaining why that’s where this nationwide investigation has been centered. (Although Fort Worth is not technically a “single-judge division,” the two judges who hear 90% of the civil cases filed there—Reed O’Connor and Mark Pittman—are both … pretty far to the right end of the ideological spectrum, at least as federal judges go.)

To remind folks, O’Connor, a George W. Bush appointee who became chief judge in 2025, has for years been one of the go-to judges for conservative litigants, a reputation built in part on the outsized power of one-judge divisions where a plaintiff can effectively choose its jurist (including the Wichita Falls division in which O’Connor hears 100% of new civil cases). He has authored some of the highest-profile district-court rulings of the last decade—striking down the Affordable Care Act and portions of the Indian Child Welfare Act among them—and has himself publicly defended the existence of single-judge divisions (and the judge-shopping it invites), blasting the judiciary’s leadership for “caving to political pressure” when it moved to curb the practice. (I published a response to O’Connor’s speech here.)

Importantly, it’s not quite accurate to refer to what the government is doing in Fort Worth as “judge-shopping” (since Fort Worth isn’t a single-judge division). But once one of these cases was assigned to O’Connor, the federal government appears to be have been relying on the claim that all of these other disputes are “related” to produce the same result—having O’Connor handle all of the nationwide litigation relating to the Trump administration’s investigations of gender-affirming care for minors.

The conduct that has drawn the sharpest “exceeded his power” criticism is not the handling of the WPATH litigation (which we’ll come back to in a moment), but a companion episode: the DOJ’s subpoena to Rhode Island Hospital, which kicked off the latest maneuvering in Fort Worth. On April 30, 2026, DOJ filed a petition to enforce its administrative subpoena against Rhode Island Hospital, demanding five years of records on every minor who received gender-affirming care—including patient names, Social Security numbers, diagnoses, and family details, and asserting that its investigation was “being carried out in the Northern District of Texas.” Chief Judge O’Connor granted the motion to compel that same day, without opposition and without notice to the hospital, ordering production within fourteen days. After the District of Rhode Island separately quashed the subpoena, O’Connor on May 18 ordered the hospital to turn over all responsive records to his court for in camera “safekeeping” pending appeal, accusing it of trying to “circumvent the authority of this Court and the Fifth Circuit”; the hospital’s appeal and emergency-stay request to the Fifth Circuit were denied.

O’Connor pressed ahead anyway, and—most controversially—barred the hospital from seeking further relief in any court other than his own, the Fifth Circuit, or the Supreme Court. In effect, O’Connor issued an injunction aimed not at the executive branch or the plaintiffs, but at another federal court, a maneuver for which, as one commentator put it, “[n]either the Constitution nor any statute comes close to awarding O’Connor, or any other judge, this power.”

At the same time, enforcing an administrative subpoena is a bread-and-butter judicial function, and O’Connor grounded his order in a finding that the government was “engaged in a legitimate investigation” acting “pursuant to its statutory authority.” He also ordered the records produced to the court itself, to be held privately, rather than handed straight to the government—a protective measure, not a wholesale disclosure (which is why the First Circuit ultimately refused to intervene in the Rhode Island case).

The Fort Worth venue engineering is not a one-off, which is part of why it has drawn such scrutiny. Beyond the Rhode Island case, DOJ began issuing grand-jury subpoenas out of the Northern District of Texas to reach other hospitals thousands of miles away—Stanford’s Packard Children’s in California and NYU Langone in New York—even though nothing about those investigations was local to Texas. Judges in both places said so bluntly. Judge Pitts in the Northern District of California found that the government had “issued its grand jury subpoena to avoid another loss and force Packard and its patients to pursue any challenge . . . in a forum that DOJ deems friendlier,” and that DOJ “cannot reasonably invoke comity and the separation of powers as cover for its forum shopping”; Judge Failla in the Southern District of New York likewise granted emergency relief to a class of minor patients. As she put it in ruling from the bench, “[t]he subpoena, expressly targeting members of a particular and uniquely vulnerable group, both shocks the conscience and rises to the level of the most egregious official conduct.”

Perhaps because of the wall of resistance it met in trying to enforce these subpoenas, the government finally resorted to another tack on June 17—when the FTC and four states filed a standalone lawsuit against WPATH and, the same day, withdrew the D.C. CIDs. The FTC then moved for a TRO and preliminary injunction asking O’Connor to bar WPATH from seeking relief in any court other than the Northern District of Texas, the Fifth Circuit, or the Supreme Court. That gambit produced the one moment of restraint: on July 3, after WPATH sought emergency relief in D.C., O’Connor issued a docket order stating that, “[a]fter consultation with Chief Judge Boasberg (D.D.C.),” he would defer ruling on the TRO to permit “orderly consideration” of the parallel injunction requests—a de-escalation that, as one observer noted, O’Connor had conspicuously declined to extend to the Rhode Island Hospital dispute.

Meanwhile, just last Friday, Chief Judge Boasberg rejected WPATH’s attempt to use its D.C. injunction to freeze the FTC’s new Texas enforcement suit, explaining that his May order “did not protect WPATH from complying with all information-seeking processes—only the CID that the Court held was likely retaliatory,” and that his role was not “to prejudge every permutation of the FTC’s future actions as unconstitutionally retaliatory.” Alas, it’s hard to disagree with Boasberg’s conclusion; once the FTC pulled the CIDs and refiled its theory as a standalone lawsuit in Texas, the D.C. injunction had little left to bite on, since it had enjoined a specific administrative demand that no longer existed—not all enforcement action by the FTC writ large.

***

Stepping back from the details, the upshot is that, for more than a year, district judges across the country reached a remarkable, largely unprompted consensus that these subpoenas were pretextual—a form of horizontal dialogue that lent the judiciary’s conclusions real institutional weight. But venue engineering of the kind on display in the Rhode Island and grand-jury episodes threatens to override that consensus altogether: if a single, reliably sympathetic forum can absorb every dispute and insulate the government’s preferred outcome from the accumulated judgment of a dozen other courts, that horizontal consensus becomes largely irrelevant to how these cases actually resolve. (Folks might recall that these were some of the loudest arguments against “nationwide injunctions,” arguments the Supreme Court endorsed last June, at least in that specific context, in CASA.) That’s not to say that the end result of all of this procedural maneuvering by the federal government is inconsistent with the rules as they currently stand; my own view is that it isn’t. But the above account seems like a pretty strong argument for why it should be.

The mischief caused by this kind of venue engineering is compounded by the fact that the FTC itself no longer operates with the independence from the White House it once had, following the Supreme Court’s Slaughter decision—raising the prospect that agency enforcement actions like the WPATH suit become a recurring tool rather than an isolated episode, and that the ability to judge- and forum-shop will only increase the politicization and ideological extremism of these disputes.

Three Takeaways

All of this leads me to what I see as three takeaways from what’s going on in these cases—one about the executive branch; one about the underlying merits; and one about the courts.

First, the combination of FTC forum-shopping and direct political control is a troubling one. Indeed, there are serious questions about the government’s litigation conduct in these cases, to say nothing of the FTC’s attempt to assert enforcement authority over noncommercial speech by a nonprofit like WPATH. The specter of the government playing “heads we win, tails you lose” by withdrawing the CIDs only after it filed its deceptive practices lawsuit in a cherry-picked forum is not an especially becoming one, regardless of where one comes down on the merits. Not that long ago, we could’ve taken some solace from the fact that government lawyers could generally be trusted to turn square corners. But for better or worse, the combination of the Trump administration’s behavior and the direct control over the FTC the President now enjoys thanks to Slaughter ratchet up the appearance—if not the reality—of some truly sketchy behavior by the executive branch.

Second, and militating at least a little bit in the other direction, the government has gone to great lengths to suggest that concerns about WPATH’s Standards of Care are more than frivolous. The UK’s Cass Review—commissioned by the National Health Service, not by U.S. culture warriors, albeit still deeply contested—found that WPATH’s SOC8 was a low-quality clinical guideline (and that most international guidelines trace back to WPATH or the Endocrine Society, rather than independently support it). Similarly, several European health systems have restricted these procedures on evidentiary grounds. WPATH’s First Amendment objections to the FTC’s investigation may have been vindicated by Chief Judge Boasberg in the D.C. litigation, but its science remains at least somewhat under challenge.

That said, even reasonable evidentiary disagreement (if that’s what this is) is not the same as fraud, and the picture here strikes me as, at best, contested rather than settled: WPATH has argued with more than a little force that the Cass Review is itself an “outlier,” and that a draft German guideline developed with Austria and Switzerland—under review by 27 professional societies—broadly aligns with SOC8 and does not restrict puberty blockers. The Cass Review has also been subject to its own significant academic criticisms. And even for those who find the Cass Review and arguments based upon it more persuasive than I do, “the evidence is somewhat weaker than you said” is a very different accusation against WPATH than “you knowingly deceived consumers for profit,” which, contra the FTC’s allegations, this ain’t.

More fundamentally, WPATH’s core legal position—that a nonprofit professional association’s clinical guidance and advocacy are protected speech, and that a consumer-protection agency should not be policing a live scientific debate—is not a dodge. It is a serious First Amendment argument that a serious judge (Boasberg) found likely to prevail. WPATH’s stated defense that it “supports individualized patient care, not a ‘one size fits all’ approach,” and that its guidelines rest on “established scientific standards, expert consensus, and patient-centered values,” is a legitimate framing of what guidelines are supposed to do—offer clinical judgment, not consumer advertising. And the associational-privacy stakes of the FTC’s original records demand—compelled disclosure of members’ internal communications—are precisely the kind of intrusion the First Amendment has long guarded against, which is why the chilling effect Chief Judge Boasberg credited should worry even those who distrust WPATH’s science.

Third, and finally, one of the real problems created by forum- and judge-shopping is the concern that these kinds of questions are being steered to the judges most likely to answer them in a particular way, and not necessarily in a way that reflects the median viewpoint of neutral Article III jurists. I’ve long suggested that one of the most important ways to curb the most extreme forms of judge- and forum-shopping is for Congress to provide clearer guidance on where these kinds of lawsuits can be brought—and, indeed, to require some degree of randomness in cases with true nationwide implications.

To date, most of the focus of that conversation has been on suits against the government, but especially after Slaughter, it seems increasingly clear that government-initiated suits can also raise the same suite of concerns. After all, if the Trump administration can run nationwide administrative enforcement proceedings through a single division in the Northern District of Texas, then a future Democratic administration could do the same through the Northern District of California, or the District of Massachusetts, or … you get the point.

I don’t imagine I’m going to persuade anyone about who’s right on the science, medicine, or policy here. Indeed, I’m not entirely sure myself. But if nothing else, perhaps folks can (finally?) be persuaded that this kind of strategic litigation behavior makes it harder to have faith that the best answer is “the courts.”

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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This week’s bonus issue will drop on Thursday. As ever, I hope you all stay safe out there—especially from subpoenas issued by the Northern District of Texas.

Of course, that means the Court still has ~60% to go—and one of the things that’s missing from the docket to this point is Trump-related cases. To be sure, I count eight cases among the 24 already on the docket in which the federal government or one of its officers is a party. But none of those eight are really about major Trump administration policies/political disputes.

So which Trump cases are coming? Today’s bonus post identifies three (sets of) cases that I expect to reach the Supreme Court during OT2026—all of which will be, for obvious reasons, among the highest-profile cases the justices are likely to end up deciding next term: (1) those arising from the administration’s immigration detention policies; (2) a battery of appropriations/spending disputes; and (3) in a world in which Democrats retake either chamber of Congress in November, a rash of high-profile disputes over the inevitable congressional subpoenas that will follow.

But whether or not these specific predictions hold, the larger point is that the highest-profile decisions of OT2026 are, I suspect, going to come from cases that aren’t yet on the docket. In other words, if you want to know what we’ll be looking back at a year from now as the biggest cases of OT2026, don’t look at what the Court has already agreed to hear; look at what’s coming that it won’t want (or be able) to avoid.

For those who aren’t paid subscribers, we’ll be back Monday with our regular coverage of the Court. For those who are, please read on.

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Usually, I use the Monday issue of the newsletter to cover both the news of the past week (“On the Docket”) and a deeper dive into either one of the news stories or some broader historical point about the Court (the “Long Read”). But given just how much news the Supreme Court made last week, I thought I’d use today’s issue for the rest of the news—the developments out of the Court last week that didn’t generate the same headlines as, e.g., Tuesday’s birthright citizenship or transgender sports rulings or Monday’s rulings in Slaughter and Cook, three of which I covered to some degree in last Thursday’s bonus issue.

Plenty of these other developments would have gotten a lot more attention at any other point in the news cycle. But one of the problems of covering the Court is that there’s only so much oxygen/ink that can be consumed by news out of One First Street—which tends to come down in fits and spurts, especially in the days leading up to the justices’ summer recess. So consider today’s issue an extended “On the Docket”—and my attempt to fill out all (or, at least, most) of the “other” news that the justices made last week. (Okay, there’s docket-number trivia at the end, too.)

Bucket #1: The Other Merits Rulings

NRSC v. FEC (June 30)

In a 6-3 decision by Justice Kavanaugh, the Court struck down the Federal Election Campaign Act’s limits on “coordinated party expenditures”—the caps on how much party committees can spend in coordination with their own candidates—as a First Amendment violation. The ruling overruled the Court’s 2001 decision in FEC v. Colorado Republican Federal Campaign Committee (“Colorado II”), which had upheld those same limits—the second time in two days that the same 6-3 majority scrapped a decades-old precedent.

The heart of Justice Kavanaugh’s opinion was the claim that the only constitutionally sufficient basis for campaign-finance restrictions is preventing quid pro quo corruption, and that existing safeguards already address that concern. Justice Kagan dissented, joined by Justices Sotomayor and Jackson. Among other things, Kagan’s dissent flagged not only that the majority was dramatically underselling the other legitimate grounds for campaign-finance restrictions, but that getting rid of the limit on coordinated party expenditures would encourage more quid pro quo corruption, too. What’s more, Kagan’s dissent warned (almost certainly correctly) that the majority’s reasoning reopens a route for donors to channel far larger sums to candidates through party committees than the remaining direct contribution limits would otherwise permit. Just what we need…

Watson v. Republican National Committee (June 29)

In a 5-4 decision, the Court upheld Mississippi’s law counting mail ballots postmarked by Election Day and received within five days, holding that federal law does not prohibit such grace periods simply by defining Election Day as the first Tuesday after the first Monday. Justice Barrett wrote for the majority (joined by Roberts, Sotomayor, Kagan, and Jackson); Justice Alito dissented for four justices.

Watson is a good example of a case that would have been even “bigger” had it come out the other way. At it stands, it preserves similar grace-period laws, while also sparing election officials a last-minute overhaul just before the midterms and protecting military, overseas, and rural mail voters. It also marks a notable rebuke to the Trump administration’s broader campaign against voting by mail—which may have atmospheric consequences, even if not doctrinal ones, in some of the other pending lawsuits.

Chatrie v. United States (June 29)

In a 6-3 decision, the Court held that law enforcement’s use of a “geofence warrant” to obtain cell-phone location-history data is a Fourth Amendment search. Justice Kagan, writing for the majority (joined by Roberts, Sotomayor, Kavanaugh, and Jackson, with Gorsuch concurring in the judgment), reasoned that individuals retain a reasonable expectation of privacy in location data, even when shared with third parties like Google. The Court remanded the question of the particular warrant’s validity to the Fourth Circuit. Justice Alito dissented (joined in part by Thomas and Barrett), calling the decision an “irresponsible escapade.” For now, the ruling narrows the third-party doctrine and could extend Fourth Amendment protection well beyond location data to the broader universe of app-generated records users share with tech companies. But as with Watson, the Court largely avoided any “bigger” ruling (including by leaving the warrant’s validity in this case open), so its practical reach remains unsettled.

Bucket #2: The Important Orders

There were two different Order Lists last week, along with a significant separate denial of an emergency application:

The June 29 Order List (from the June 25 Conference)

In Monday’s “regular” Order List, the Court added seven new cases to the October 2026 Term merits docket—on topics ranging from election law to parental rights.1 Among the notable grants:

• Republican National Committee v. Mi Familia Vota: A challenge to Arizona’s requirement that voters using the state registration form must show documentary proof of citizenship, and whether the National Voter Registration Act lets states remove noncitizens from voting rolls within 90 days of a federal election. This case could reshape how far states may go in imposing citizenship-verification requirements and conducting voter-roll purges, with direct consequences for registration practices (to say nothing of the ability to vote of eligible voters without easy access to the relevant documents) nationwide.

• International Partners for Ethical Care v. Ferguson: Whether parents have standing to challenge Washington laws that let licensed youth shelters provide mental-health services, including gender-transition-related care, to runaway minors without parental notice or consent. The grant puts parental-rights and gender-transition questions back before the Court, and its standing holding could set the terms for how parents can challenge state policies that displace their decision-making role.

• Wassily v. Blanche: Whether noncitizens who receive asylum that is later terminated can still become lawful permanent residents, or are instead permanently ineligible. The outcome could determine the immigration-status pathway for asylees whose protection is revoked—a recurring question with significant stakes for affected noncitizens.

The same list included some notable denials of certiorari (some with dissents): The Court denied review in President Trump’s appeal of the $5 million judgment in the second of the two E. Jean Carroll cases (which I covered in a prior issue). Justice Thomas (joined by Gorsuch) dissented from the denial in Alan Dershowitz’s defamation suit against CNN, indicating yet again that he would like for the Court to reconsider New York Times v. Sullivan. And Justice Sotomayor (joined by Justices Kagan and Jackson) dissented from a cert. denial in a qualified immunity case, calling the Seventh Circuit’s grant of immunity “clearly wrong,” and flagging, yet again, the asymmetry in the Court’s approach to qualified immunity rulings—where “clearly wrong” denials of immunity are summarily reversed, but “clearly wrong” grants of immunity are … left intact.

The June 30 Order List (from the June 29 “Clean-Up” Conference)

The Court dropped a second Order List on June 30—this time, from the “Clean-Up Conference.” Among other things, the Court granted and consolidated two Second Amendment cases—Viramontes v. Cook County (from the Seventh Circuit) and Grant v. Higgins (from the Second Circuit)—to decide whether bans on AR-15-style semiautomatic rifles violate the Second Amendment. The cases were consolidated for one hour of argument, likely in the fall, on the question presented in Viramontes; the Court left the related large-capacity-magazine cases on hold, keeping the dispute focused on the rifles themselves. This is the Court’s first plenary look at “assault weapon” bans since Heller and Bruen, and the decision could very well reshape firearms regulation nationwide.

The clean-up list also included a grant in Grand v. City of University Heights. That case involves an Ohio homeowner’s claim that city officials violated his constitutional rights by requiring a permit before he could host a neighborhood prayer group in his home. The case raises religious-liberty and property-use questions about how far local governments may regulate religious gatherings in private homes

In the same list, the Court also denied the Trump administration’s long-pending (and long-deferred) emergency application in Blanche v. Perlmutter, leaving in place a lower-court injunction that restored Shira Perlmutter to her position as Register of Copyrights after the Trump administration attempted to remove her. Perlmutter had argued that her removal was unlawful because only the Librarian of Congress may remove the Register, and that then-Deputy Attorney General Todd Blanche was not lawfully serving as Acting Librarian when he purported to fire her.

The Court had deferred action since November 2025, holding the application pending Trump v. Slaughter and Trump v. Cook. That never made a lot of sense, in my view, since the issue in Perlmutter is a very specific statutory question—whether the “Library of Congress” is an “executive branch agency” for purposes of the Federal Vacancies Reform Act. That answer has nothing to do, of course, with the questions the Court ultimately decided in Slaughter and Cook.2 If the point of the deferral was merely to play for time, well, I guess it worked. There were no public dissents from the order—which stressed (entirely unnecessarily) that “The denial of the application is not a ruling on the merits of the legal issues presented in the litigation.” It’s interesting that the Court feels impelled to provide those kinds of caveats when ruling against Trump—and in very few other contexts.

The Stay Denial in Herridge (July 2)

The Court issued a single ruling last week after rising for its summer recess—denying former Fox News reporter Catherine Herridge’s emergency application to stay a lower-court order forcing her to either disclose a confidential source or pay $800 a day in civil-contempt sanctions. (Chief Justice Roberts had issued an administrative stay the previous Friday.) In a brief, unsigned order with no reasoning or vote count, the justices left the sanctions in place; only Justice Kavanaugh noted that he would have granted the stay.

The underlying dispute arises from 2017 Fox News stories Herridge wrote about a scientist investigated by the FBI but never charged; the scientist sued the government over the leak alleging a violation of the Privacy Act, and sought to compel Herridge to identify her sources. Herridge invoked a First Amendment reporter’s privilege, but the district court and D.C. Circuit held that the privilege was overcome by the plaintiff’s specific interest in establishing a Privacy Act violation here.

Bucket #3: Miscellaneous

Financial Disclosures

Eight of the nine justices released their 2025 financial disclosures on Monday, June 29; Justice Alito (yet again) received an extension, so his will follow later in the year. The annual disclosures continue to draw scrutiny amid ongoing debate over Supreme Court ethics and transparency, and Alito’s extension has perhaps the unintentional result that his filing will be watched even more carefully when it eventually arrives—versus coming right in the middle of the news cycle of last Monday’s rulings in argued cases. (Fix the Court has a lot more here.)

The Alito Non-Retirement Story

Not long after the Court literally left the bench on Tuesday morning, NPR published—then quickly retracted—a story reporting that Justice Alito was retiring. Veteran legal correspondent Nina Totenberg had apparently misheard Chief Justice Roberts announcing upcoming staff retirements as she was leaving the Court, and NPR pressed “publish” on a lengthy, pre-written career recap under an erroneous headline before pulling it. NPR issued an on-air correction and an apology; Totenberg called it “the worst professional mistake of my more than 50 years in journalism” and personally apologized to Alito.

Because people like gossip, there has been an inordinate amount of speculation online about how the mistake actually happened (and skepticism from too many people who ought to know better as to whether Totenberg is telling the truth). I’ll just say that I emphatically agree with the piece Dahlia Lithwick and Sonja West published in Slate, which argues that the episode is “not really a press story at all—it is a story about court transparency and hubris.”

As Lithwick and West note (and as I’ve flagged here before), the Supreme Court is the only branch of government that bars cameras; it refuses to release same-day transcripts or audio of opinion announcements; and it forces reporters to rely on hurried, in-person observation in a room where electronic devices are restricted. (Someone who sat in the Courtroom last Monday, for instance, wouldn’t have known the Court had carved out the Federal Reserve from Slaughter until the justices had finished reading Slaughter; everyone else knew immediately, because the Court handed out—and posted to the internet—the two rulings simultaneously, a move that, whether intentional or not, avoided spooking the markets.) Indeed, I noted last week that Totenberg’s error would not have been possible (or, at least, would not have led to NPR publishing an Alito retirement story) if we all had live access to the same audio that the press corps can already hear from the Court’s press room (and that members of the Supreme Court bar can hear from the attorneys’ lounge). Why shouldn’t the public at large (or producers in newsrooms) be able to hear the same things at the same time as the folks who make it into the Courtroom on hand-down days?

Instead, as Lithwick and West argue, all of these self-imposed obstacles set the press corps up to fail. And when the inevitable error occurs, the pile-on lands on the journalist rather than on the institution whose opacity made the mistake possible. The same lack of transparency, they rightly note, let Justice Alito “go rogue” in response to Justice Sotomayor’s oral dissent in Mullin v. Al Otro Lado with almost no public notice (something I flagged last week). Meanwhile, when a justice makes an error in a published opinion (even a biggie), it can be quietly corrected in-house—a very different accountability standard than the one everyone’s applying to NPR. Maybe accountability ought to be a two-way street for everyone, here?

Internal Tensions

Finally, all of this landed the same week as reporting from James Romoser in the Wall Street Journal of rising internal tensions at the Court, with several current justices said to privately miss the presence of retired Justice Stephen Breyer “both as a friend and for his ability to lower the temperature.” Breyer, according to Romoser’s sources, “could be counted on to help keep the peace,” in part by “lightening the mood” using “anecdotes about modern architecture and knock-knock jokes he learned from his grandchildren.” His embrace of collegiality “helped contribute to a sense that the court was a functional, collaborative institution, even when it was divided over tough cases.” What’s especially telling is the unspoken insinuation—that this sense is no longer … present. It may be inside baseball, but the less the justices are getting along, the harder it is for them to forge the kinds of compromises that might allow the Court to rise above the politics of the moment—something it repeatedly failed to do this term, as I argued last week. It’s hard to view these points as wholly unrelated.

SCOTUS Trivia:
The Resetting of the Docket Numbers…

Speaking of “inside baseball,” last Wednesday brought with it the annual resetting of the Court’s docket numbers—with 26-1 and 26A1 both being docketed the day after the justices rose for their summer recess.

I’ve written before about why the Court picks the (arbitrary) day after the justices rise for their summer recess to reset docket numbers (TL;DR: Until 1980, the Court formally adjourned when it rose for its summer recess, bringing the current Term to an official close). But however logical that numerical practice may have been until 1980, it’s completely anachronistic today (when the Court remains in session—and hands down lots of big rulings—over the summer). And the absence of any remaining direct justification exposes a practice that is otherwise both (1) arbitrary (since it depends on the unpredictable day that the justices rise for their summer recess); and (2) openly misleading when it comes to the data-gathering errors it provokes. The Court’s docket numbers should reset to 26-n, 26An, and 26Mn either on the day the October 2026 Term actually begins or on January 1, 2026—and not some random and otherwise irrelevant day in late June/early July.

This really shouldn’t be hard. Then again, it’s the Supreme Court.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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This week’s bonus issue will drop on Thursday. As ever, I hope you all stay safe out there—especially from overcrowded news cycles.

In that roundtable, I already offered one of the two major arguments against this thesis—that it’s an assessment of the numerator without regard to the denominator, and that a full account of the Court’s behavior throughout OT2025 suggests that the Court behaved even more politically during the current term than during even the previous (highly politicized) one. Just to take one of many data points, last term (OT2024), there were six rulings in argued cases in which all six Republican-appointed justices were in the majority and all three of the Democratic appointees were in dissent (along with a slew of such rulings on the emergency docket). This term, there were … 13. (Along with two 6-3 summary reversals and 10 rulings on the emergency docket from which the three Democratic appointees all dissented.)

Today’s bonus issue addresses the flip side of that coin. In particular, below the fold, I identify four different moments in which the justices could have acted in ways to specifically defuse charges of political behavior—and opted instead to lean all the way in. As much as end-of-term narratives focus on what the Court did, and on the takeaways from individual rulings, consider today’s post an attempt to identify opportunities that the Court missed, as well. At least in the examples discussed below, by opting for the outcome that made the Court look more transparently political, the Court inflicted a series of (unnecessary) credibility wounds on itself.

For those who aren’t paid subscribers, we’ll be back Monday with our regular coverage of the Court. For those who are, please read on.

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As I noted a few weeks back, we’ve launched a new feature through … today where, on each day that the Supreme Court hands down a ruling in an argued case, we’ll be providing a short video summary of what the case was about, what the Court ruled, and what (if any) broader significance the ruling has going forward.

Today’s video covers the three maj…

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There is already a lot to say about yesterday’s decisions (some of which I said in last night’s “Decision Day Summary” video for paid subscribers); and there will be a lot to say about whatever is coming today. But to both briefly hit on the biggest headline from yesterday and to set the table for today, I thought I’d offer three brief observations:

I. Slaughter is a Nuclear Bomb for the Separation of Powers

I wrote a lot last summer about the problems with the “unitary executive theory” in general, and with what Justice Kagan called a “bespoke exception” for the Federal Reserve in particular. Now that those “interim” (LOL) rulings have become permanent, it’s worth underscoring just how massively important yesterday’s ruling in Trump v. Slaughter is (and will be)—and how modest Trump v. Cook is.

To my mind, Slaughter is the most important separation-of-powers ruling of the twenty-first century—and, by far, the most important decision of the current term. It embraces a remarkably strong form of the unitary executive theory. It runs roughshod over a heck of a lot of sophisticated, persuasive scholarship arguing that Founding-era understandings were far more nuanced and complicated about the sharing of power across the branches. It doesn’t distinguish inferior officers, civil servants, or administrative adjudicators; it merely asserts that it isn’t resolving the constitutionality of protections for those executive branch employees—even though, as Justice Sotomayor’s dissent points out, it isn’t at all clear why its analysis wouldn’t cover them, too. It makes all kinds of absolutist claims without even trying to persuade readers that the simultaneous carve-out for the Federal Reserve adopted in Cook is somehow consistent with that absolutism. And it does all of this at the exact moment in American history in which the most troubling implications of the unitary executive theory have never been more visible or immediate.

I saw lots of folks claim online yesterday that Slaughter is a good thing (or, at least, that it has a silver lining) because it will make it easier for the next Democratic president to simply clean house—and fire many, if not most, individuals who were appointed/hired/installed by President Trump. That may be true in the short term, but that comes at the enormous expense of (1) Congress, which will find itself increasingly hamstrung in trying to exert any control over how the executive branch exercises the powers Congress authorizes and delegates; and (2) the American people, who will find themselves subject to executive branch agencies doing the bidding of the incumbent administration rather than the goals Congress set for them by statute. That may feel good when we like the current administration, but it’s a recipe for instability and for the elimination of expertise in almost every facet of governmental regulation. And in the interim, it also gives even more power to the courts (the Supreme Court, in particular), to sort out all of the subsidiary questions that Slaughter has already raised.

Cook, in contrast, is a footnote. It’s a major ruling for Wall Street because of how it carves out the Fed, but that writing has been on the wall since last May. And it is a decidedly modest win even for Cook herself—who could still easily lose on remand if the administration actually has meaningful evidence of misconduct or malfeasance on her part. All the Court held yesterday is that for-cause removal requires more than just the executive branch’s assertion that cause exists, and so Trump isn’t entitled to a stay of a lower-court ruling that blocked Cook’s removal. That’s a (potentially fleeting) win for Cook, but about as modest and thin a victory as the Court could’ve provided—and even that was 5-4.

II. Barbara Won’t Change the Broader Narrative of the Term

Turning toward today’s decisions, there’s a remarkable degree of consensus as to how all four are likely to come out. Most Court watchers expect the Court to side with the National Republican Senatorial Committee in the campaign finance case; to side with Idaho and West Virginia (and against the transgender athletes) in the transgender discrimination cases; and to rule against President Trump in the birthright citizenship case. If that happens, the headlines will obviously gravitate toward the last of those results—and the claim that the Court delivered some kind of major smackdown to one of President Trump’s most visible immigration initiatives.

I’ll be the last person to suggest that the birthright citizenship decision won’t be important. But we should be careful not to give it outsize weight just because it comes last. By my count, birthright citizenship would be only the fourth real loss for Trump at the Court this term—alongside the Chicago National Guard ruling from December; the tariffs ruling from February; and the Lisa Cook case from yesterday. But that’s against Slaughter (which, again, dwarfs these other cases with regard to immediate and long-term importance); last week’s immigration cases; and, beyond cases in which the federal government is a party, the Court’s sustained … misadventures … with voting rights and redistricting over the last two months. With regard to the significance of these decisions, this term should go down alongside OT2021 (the Dobbs/Bruen/West Virginia term) for the volume of major victories the Supreme Court has handed down for right-coded and/or visibly Republican legal positions. That some of those positions (like in the mail-in ballots case) were too extreme for the “middle” of the Court doesn’t somehow prove that the Court is, in fact, “moderate”; it just suggests that, for as emboldened as right-wing litigants have become, the Court isn’t all the way there yet. That’s an important narrative, but it’s not one for which the justices deserve a participation trophy.

III. The Term Doesn’t Actually End Today

Finally, and to beat a drum I’ve pounded before, traditional coverage of the Supreme Court treats today as the “last day” of the Court’s term. That’s incorrect as a matter of fact—and, increasingly, as a matter of reality. The October 2025 Term doesn’t formally end until the October 2026 Term begins—when the Court gavels into session on Monday, October 5. Today just marks the end of the Court’s disposition of cases argued during the current term.

Not that long ago, that might’ve been a distinction without a difference. But as the emergency docket has become more significant and more active, the summer has become an increasingly significant part of the Court’s work, too. My rough math counts nine significant decisions by the full Court on emergency applications last summer—from Boyle and Slaughter on who President Trump could fire to Vasquez Perdomo on ICE raids to … well, you get the gist. It’s hard to imagine that this summer will be quite as busy as last summer (given how much less active President Trump’s pen has been), but it’s also hard to imagine that it will be as quiet as the summers that typified the Court’s docket as recently as a decade ago. As I wrote last fall, we shouldn’t really “close the book” on the Court’s term until the term, you know, ends.

I’ll be covering today’s decisions in real time for paid subscribers through Substack’s chat feature; and later today in the next “Decision Day” video feature. And, of course, we’ll have our regular “bonus” issue on Thursday and our full coverage of the Court next Monday. What can I say? I have no life (especially with the girls off at summer camp).

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As always, stay safe out there, y’all.

As I noted a few weeks back, we’re launching a new feature, from now until at least the end of this term, where every day that the Supreme Court hands down a ruling in an argued case, we’ll be providing a short video summary of what the case was about, what the Court ruled, and what (if any) broader significance the ruling has going forward.

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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, please consider becoming one—and upgrading to a paid subscription (for which we just launched new bonus features) if your circumstances permit:

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A lot of the focus on last week’s Supreme Court rulings has gravitated toward Mullin v. Doe (the “Temporary Protected Status” or “TPS” cases), and for good reason. There’s quite a bit to say about Justice Alito’s whitewashing of President Trump’s racism toward Haitians (much of which was said by Justice Kagan in her dissent, and also by Adam Serwer in The Atlantic), and, more generally, about picking this moment in American history to read ambiguous language in a statute to foreclose judicial review of statutory challenges to executive branch decisions that directly implicate, as in the Haiti case, the lives and livelihoods of hundreds of thousands of individuals.

But I wanted to use today’s “Long Read” to pick up on a piece of Justice Alito’s opinion that hasn’t gotten a lot of attention—Part III-A, in which he purports to explain why the Court could reach the merits of the plaintiffs’ constitutional challenge to the revocation of TPS for Haiti (that it was motivated by unconstitutional racial animus) without deciding if it had jurisdiction to do so. Hard though it may be to believe, this may be the most transsubstantive part of the decision—even though it’s also the most technical. (Major kudos to my former Civil Procedure student—and rising Georgetown 2L Paul Michaud—who flagged this passage before I’d focused on it.)

Across four (very-lightly-cited) paragraphs, Alito argues that, when appellate courts are reviewing grants or denials of “interim” relief (including, one presumes, grants or denials of emergency relief), they can reach the merits without resolving whether they have jurisdiction to do so—at least so long as it doesn’t affect the outcome (that is, so long as the party that would’ve won on jurisdiction also wins on the merits).

This theory has a name: “hypothetical jurisdiction.” And it has been emphatically and repeatedly rejected by the Supreme Court ever since Justice Scalia’s 1998 opinion for the Court in Steel Co. v. Citizens for a Better Environment. To adopt it in the context of “interim” or “emergency” relief is not only impossible to reconcile with the entire theory of Steel Co., but would empower the Supreme Court (and courts of appeals) to be even more aggressive when it comes to emergency relief by empowering them to grant relief in contexts in which they literally lack jurisdiction to do so. Indeed, Alito’s opinion has echoes of his March concurrence in the Malliotakis case—where he offered a highly problematic explanation for why the justices could reach all the way down to stay a state trial-court ruling before the state supreme court had had a meaningful opportunity to do so.

Alito was wrong then, and he’s even more wrong now. That may explain why Justices Gorsuch and Barrett didn’t join this part of the opinion (which thus spoke only for a four-justice plurality of the Court), but it’s more than a little disturbing that both Chief Justice Roberts and Justice Kavanaugh, who often claim to be sticklers about such things, did.

More on why this is such a big deal below. But first, the (loads of other) news.

On the Docket

The Merits Docket

The Court handed down nine rulings on the merits docket last week (this is one of the challenges of trying to provide comprehensive coverage of the Court in late June; there’s just too much to cover). I’m going to reduce those rulings to incredibly superficial summaries here, but I hope to come back to many of them in future issues. (There’s also Thursday’s “Decision Day Summaries” video for paid subscribers.) And I’m putting in bold the names of the seven of the nine rulings that sorted the justices into their (alas, far-too-usual) 6-3 ideological/political camps:

1. Cisco Systems, Inc. v. Doe: In a 6-3 ruling written by Justice Barrett, the Court dramatically narrowed the scope of the Alien Tort Statute, holding that it reaches only the narrow set of international-law claims Congress recognized when it enacted the statute in 1789. Justice Sotomayor’s dissent objected that the decision “closes the courthouse doors” to virtually every future victim of even the most egregious human rights violations, even those for which U.S. corporations are responsible. An 8-1 majority (everyone except Justice Sotomayor) also held that the Torture Victim Protection Act of 1991 doesn’t authorize aiding-and-abetting liability—making it harder to sue defendants who provide indirect support for torture.

2. Exxon Mobil Corp. v. Corporación Cimex, S. A. (Cuba): For the same 6-3 majority, Justice Kavanaugh held that the Helms-Burton Act abrogates the sovereign immunity of Cuban agencies and instrumentalities, so plaintiffs suing those entities under the Act need not separately satisfy one of the Foreign Sovereign Immunities Act (FSIA)’s enumerated exceptions. Justice Kagan wrote for the three Democratic appointees in arguing that the better reading of the relevant statutes (and the Court’s foreign sovereign immunity jurisprudence) is that the FSIA’s exceptions should still govern.

3. Landor v. Louisiana Dep’t of Corrections and Public Safety: I already covered Justice Gorsuch’s deeply significant opinion for the same 6-3 majority in last Thursday’s bonus issue—so I won’t rehash that here.

4. Pung v. Isabella County: Justice Alito wrote for an effectively unanimous Court in holding that the proper baseline for “just compensation” after a fairly conducted tax-foreclosure sale is the auction sale price rather than the property’s hypothetical fair market value, and that the Eighth Amendment’s Excessive Fines Clause does not require the government to return more than the surplus proceeds.

5. Blanche v. Lau: For the usual 6-3 majority, Justice Thomas cleared the way for immigration officers to more readily treat returning lawful permanent residents (green card holders) as applicants for admission—holding that the Immigration and Nationality Act does not require clear and convincing evidence that a green-card holder committed a disqualifying crime before doing so. Justice Jackson wrote for the dissenters, arguing that the ruling will let the government strip returning residents of their admitted status first and justify that decision later—undermining the statutory protections attached to lawful permanent residence. NYU law professor Nancy Morawetz has much more about what she describes as the Court’s “highly disingenuous” ruling here.

6. Monsanto Co. v. Durnell: For a 7-2 majority, Justice Kavanaugh held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempts a state-law failure-to-warn claim that would have required Monsanto to add a cancer warning to Roundup’s EPA-approved label. Justice Jackson dissented, joined by Justice Gorsuch, objecting that the preemption ruling wrongly forecloses state tort remedies for injured plaintiffs by reading into the statute preemptive effects that Congress could never have reasonably intended.

7. Wolford v. Lopez: For the usual 6-3 majority, Justice Alito struck down under the Second Amendment Hawaii’s “no-carry default” law, which made it a crime for concealed-carry permit holders to bring firearms onto private property open to the public without the property owner’s express consent. Justice Jackson’s principal dissent argued that the Hawaii law simply applies the property-law “right to exclude” and does no harm to the Second Amendment. More generally, the dissent went to some length to argue that the Court has inserted even more subjectivity into the deeply controversial (and malleable) “history and tradition” test for Second Amendment claims that it first articulated in Bruen. Indeed, Wolford’s significance is probably more about how the majority explains the Bruen test than its specific application here, but it’s a big deal either way.

8. Mullin v. Al Otro Lado: For the usual 6-3 majority, Justice Alito held that a noncitizen who is stopped at a port of entry in Mexico does not “arrive in the United States,” so the Immigration and Nationality Act neither entitles such a person to apply for asylum nor requires an officer to inspect him—allowing officials to turn back asylum seekers at the southern border. Justice Sotomayor wrote for the dissenters, warning that the consequences for asylum-seeking refugees would be “predictable” (including that “more people will die,” and that “more people will attempt to cross the border illegally, and some will make it while others will not”). Of especial note, Sotomayor read parts of her dissent from the bench—which prompted an unprecedented verbal retort from Justice Alito. As NPR’s Nina Totenberg reported, Alito said “There is much that I would have added to my bench statement had I known there would be a dissent read.” He then offered a short, extemporaneous rebuttal—something that … doesn’t happen. On Friday, the Court issued a statement to NPR—that “Justice Alito was notified in advance by Justice Sotomayor’s chambers that she would be reading a dissent from the bench. It was a misunderstanding on Justice Alito’s part.” It was also a highly unusual breach of protocol—and, not for nothing, gives us yet another example of why the Court should be live-streaming its opinion hand-down announcements; sometimes, the announcements themselves are newsy.

9. Mullin v. Doe: The last of Thursday’s rulings was also, in my view, the most significant. Writing again for the same majority, Justice Alito held that the TPS statute’s bar on judicial review is broad and plain, so courts cannot postpone the terminations of TPS based on even meritorious statutory objections to the government’s behavior. As for the Haitian plaintiffs’ constitutional objection, the same majority held that the plaintiffs had failed to establish that the government’s actions toward Haiti were based on race. Justice Kagan, who was joined in full by Justices Sotomayor and Jackson, wrote a strident dissent—objecting that the statute still permits review of whether the Secretary followed mandated procedures; that the evidence of racial animus in the Haitian case was manifest; and that “hundreds of thousands of lives will be uprooted” while the litigation proceeds. More on Doe in a moment.

Just one overarching note about all of these rulings: Even before the final eight decisions this week (as many as five of which, I fear, could split the justices the usual way), last week’s rulings brought to 12 the number of 6-3 rulings from the Court in cases argued this term, 10 of which had the Republican appointees in the majority and the Democratic appointees in dissent. That’s already three more than last term (and the number will go up), without even getting to the emergency docket. However we define “big” cases, and whichever cases we do and don’t count, any claim that the defining characteristic of the Supreme Court isn’t this 6-3 split is an increasingly tired canard.

The Court also handed down yet another summary reversal as part of last Monday’s Order List—its ninth(!) of the term, and another ruling from which the Democratic appointees were the only visible dissenters. Specifically, in McCarthy v. Hernandez, the justices reversed a grant of federal post-conviction relief to an (infamous) New York state prisoner on the ground that it was never clear that the Court’s 2004 ruling in Missouri v. Seibert (about so-called “mid-stream Miranda warnings”) has any applicability to jury instructions.

The Emergency Docket

There were two emergency docket rulings of note last week: On Thursday, the Court denied a stay of execution (over no public dissents) to Florida death-row prisoner Dusty Spencer, who was executed later Thursday night. And late Friday afternoon, Chief Justice Roberts, in his capacity as circuit justice for the D.C. Circuit, issued an “administrative stay” of the mandate in the case of Fox News reporter Catherine Herridge, who was held in contempt for refusing to identify the government employee who leaked information to her in claimed violation of the Privacy Act. The D.C. Circuit had held on appeal that the plaintiff in the Privacy Act case had overcome Herridge’s qualified First Amendment privilege against revealing her source, and affirmed the contempt citation. Herridge is asking the Court to keep that decision on hold while she seeks plenary review. The Chief Justice ordered the plaintiff to respond to Herridge’s application by noon ET on Wednesday, so we may well get a ruling one way or the other this week.

The Week Ahead

Buckle up, because this week is going to be a doozy.

Here’s what we know for sure: The Court will hand down a regular Order List at 9:30 ET this morning. And the justices will take the bench at 10 ET to hand down some (but not all) of the eight rulings that are still outstanding in cases argued earlier this term. (We know we’re not getting all of them because the Chief Justice did not announce on Thursday that today is the last day.)

We also know two other things, albeit without the specifics. First, we know the Court will have at least (and, my guess, exactly) one more decision day—most likely either tomorrow or Wednesday. We’ll know more at the end of today’s public session, when either the Chief Justice or the Marshal will let us know when the next day is (and, if the next day is the last day). Second, we also know that the Court will hand down orders from the justices’ “Cleanup Conference” likely in the afternoon on the same day it hands down its last rulings from the bench, and no later than the following morning.

And that Order List often has a lot of quietly important stuff on it, including summary reversals; grants of certiorari for next term; and/or long-outstanding denials of certiorari, often accompanied by lengthy separate opinions. In other words, in addition to the eight remaining rulings in argued cases, the Court could (and likely will) make quite a bit of other news this week, too—before the justices head off on their summer recess.

Of course, it doesn’t have to be this way. But I digress.

The One First “Long Read”:
Hypothetical Jurisdiction and “Interim” Relief

As I (try to) teach my Civil Procedure students every fall (and then try to re-teach my Federal Courts students every spring), Article III federal courts are courts of “limited subject-matter jurisdiction,” one of the consequences of which is that they must always be assured of their own statutory and constitutional authority to resolve the case before them—authority that can neither be waived by the parties nor assumed by the judges.

For a time, some lower courts tried to get around this ironclad rule through something they called “hypothetical jurisdiction.” To be fair, the theory wasn’t crazy; imagine a case in which there is (1) a difficult jurisdictional question; and (2) an easy merits question, the resolution of which will favor the party opposing jurisdiction. It would necessarily conserve scarce judicial resources for a court to simply assume, without deciding, that it had jurisdiction—in order to quickly resolve the merits in a way that produced the same ultimate victor. Put another way, if the plaintiff is going to lose either way, and the merits issue is straightforward, why spend pages puzzling through a thorny standing or jurisdictional question?

In 1998, Justice Scalia answered that question on behalf of the Court—and he wasn’t subtle about it. Scalia’s central objection in Steel Co. was constitutional, not prudential. A court without Article III jurisdiction has no power to declare the law, so anything it says about the merits is, by definition, ultra vires. In his memorable phrase, “[h]ypothetical jurisdiction produces nothing more than a hypothetical judgment—which comes to the same thing as an advisory opinion,” and the justices have rejected their authority to provide such rulings since 1793.

To be sure, Steel Co. drew one careful line—it distinguished merits questions like “does this statute create a cause of action” from true Article III questions like standing and subject-matter jurisdiction, and held only the latter must always come first. But on the core point, it was unambiguous: a court must decide whether it has subject-matter jurisdiction before it decides the merits. For 28 years, that’s been the catechism, even as lower courts have repeatedly tried to wriggle around it.1

That brings us to Thursday’s ruling in Doe. The core of Justice Alito’s opinion interpreted the relevant provisions of federal immigration law to foreclose jurisdiction over non-constitutional challenges to any decisions relating to the granting, terminating, or revoking of TPS. Thus, the district court lacked the power to block the revocations of TPS for Haiti and Syria on statutory grounds (e.g., that Secretary Noem violated statutory procedural requirements). My own view is that Justice Kagan’s dissent has the better of the statutory arguments here, but that’s for another day.

The Haitian plaintiffs (unlike the Syrian plaintiffs) also challenged Secretary Noem’s revocation of TPS on constitutional grounds—arguing that it was motivated by racial animus, and thus violated the equal protection principles the Supreme Court has read into the Fifth Amendment’s Due Process Clause. The same majority rejected that claim on the merits, but only after a … curious … passage in which Justice Alito explained why the Court could reach the merits without deciding if the courts had jurisdiction to even reach them.

Specifically, in Part III-A of his opinion, Alito purported to distinguish Steel Co. on the ground that Doe came to the Court on appeal from a grant of a preliminary injunction—that is, on review of an award of interim relief, not a final judgment. Thus, he argued, the cardinal rule from Steel Co.—that a court “may not consider the merits of a claim without first making a firm determination that it has jurisdiction”—is a rule only about final decisions. “When interim relief is sought,” he wrote, “a court does not make a final decision on any matter necessary to the ultimate judgment”; it makes “only a predictive—not a final—decision about the outcome of the case.” Because both “the likelihood that the court has jurisdiction” and “the likelihood that the claim is meritorious” feed into the same likelihood-of-success calculus, he concluded that “courts may consider both”—and “need not always start with the jurisdictional ground if the claim for interim relief would also fail on the merits.”

To me, there are four problems with this passage, in escalating order of seriousness. First, it is awfully light on authority. The only relevant citation in the entire passage is to the Sixth Circuit’s opinion in Arizona v. Biden, which … doesn’t actually analyze the question of whether federal courts can assume jurisdiction when reviewing grants of interim relief. In other words, Alito’s only external support for the distinction on which this entire section depends is an opinion that neither articulated nor defended that distinction.

Second, as Will Baude noted in a thoughtful post over at Divided Argument, Alito’s “fails on either ground” framing runs into a probability problem that becomes obvious once you put real numbers on it. Recall that, at the interim stage, a court is not deciding anything for certain; it is estimating the odds—the likelihood that it has jurisdiction, and the likelihood that the plaintiff is right on the merits. Now suppose a court thinks the plaintiff is probably right on each question, but not certainly so—say, 71% likely to have jurisdiction and 71% likely to prevail on the merits. Because those are two separate hurdles, the plaintiff’s real chance of winning might be viewed as the two probabilities multiplied together: 0.71 × 0.71, or roughly 50%. (Professor Kevin Clermont has argued against this approach to the math, but that’s for another time.) In other words, a plaintiff who is more likely than not to clear both hurdles can still be, on the whole, no better than a coin flip to actually win—and yet, under Alito’s logic, a court could grant interim relief without ever satisfying itself that it has the power to hear the case at all—and an appellate court can reach the merits based on the same math. Alito’s opinion has nothing to say about how this scenario undermines his reasoning; its entire defense rises and falls on the thinly defended assertion that appellate review of interim relief is somehow “different” from review of relief after a final judgment.

But that brings us to the deeper problem:

Third, Steel Co.’s objection to hypothetical jurisdiction wasn’t that a final merits ruling without jurisdiction is an advisory opinion while a predictive one is fine. Scalia’s objection was about power. A court that lacks jurisdiction lacks the authority to “declare the law” at all—and a prediction about the merits is still a pronouncement on the meaning of federal law, even, as in Doe, when it comes as part of an appeal from a grant of preliminary relief. Indeed, Scalia’s whole point was that even a tentative or hypothetical judgment “comes to the same thing as an advisory opinion.” If anything, an interim ruling on the merits is more exposed to that critique, because the court is opining about a legal question it may never have had the power to touch. Even if Doe were an emergency docket ruling (and it isn’t), it seems like Steel Co. should apply, at a minimum, to any ruling that might have precedential value—because the whole point is that it can’t and shouldn’t have such effects if the court didn’t actually have jurisdiction to reach the merits. (I’ll also flag that Alito’s emphasis on “interim” relief in a merits case only reinforces several of the problems with the “interim docket” renaming enterprise.)

Fourth, and most importantly, if appellate courts “need not always start with the jurisdictional ground” when reviewing interim relief decisions in the lower courts, consider how much modern litigation against the federal government, specifically, runs through exactly that posture. Preliminary injunctions, stays, TROs, administrative stays, and the Court’s burgeoning emergency docket are all “interim relief”—so this is no narrow carve-out. Instead, Alito’s opinion would open the door to the Court jumping over jurisdictional questions to reach the merits in most of the high-stakes, fast-moving cases that define this era. (And given that most jurisdiction-stripping statutes involve claims against the federal government, it would provide the justices with yet another way to rule for the Trump administration, in particular, that shouldn’t be available under current law.)

Nor is this concern limited to Doe. As I noted above, in Malliotakis, the Court granted a stay of a state trial-court injunction in a context in which it clearly did not have jurisdiction under 28 U.S.C. § 1257 (and with Justice Alito’s concurring opinion openly distorting the procedural posture to make it seem like the Court did have that jurisdiction). In a world in which Alito’s “interim relief carve-out” to Steel Co. were a thing, the Court could have granted emergency relief on the merits even if it lacked jurisdiction to do so. That is, for lack of a better term, nuts.

The asymmetry cuts in a predictable direction. The shortcut is most useful when a court wants to deny relief to a challenger, because it can declare the claim meritless without confronting whether it ever had the power to hear it—the precise Steel Co. problem, except now the resulting pronouncements become precedents on questions like whether noncitizens have any equal protection rights at all. In that world, decisions about the scope of federal judicial power and the substance of constitutional rights will get made more often in the hurried, lightly-reasoned setting that emergency litigation invites. In other words, Part III-A of Doe would give the Court even more power not just in preliminary relief appeals, but on the emergency docket, because the formal constraints on its power would become less dispositive.

The good news is that Justices Gorsuch and Barrett, who joined every other word of Alito’s opinion in Doe, didn’t join Part III-A. That creates a bit of a lacuna, since neither explained how or why the Court could hold what it held in Part III-B, even though they must have had some theory for why there was jurisdiction to reach the merits of the Haitian plaintiffs’ equal protection claim. (That theory might have been difficult to articulate, since it’s hard to read the same statute to foreclose statutory claims but allow constitutional ones, and the only alternative would be a much more significant claim that the statute is unconstitutional insofar as it forecloses judicial review of constitutional challenges.)

But it also means, for now, that Alito’s attempt to revive hypothetical jurisdiction in Doe is not binding precedent on the lower courts. It shouldn’t be persuasive authority, either—because it just isn’t persuasive.

We’re already approaching the length limits of a Substack post, so we’ll skip the trivia for this week. Even without trivia, I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to email me. And if you liked it, please help spread the word!

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