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Panel I: Challenging Trump

Cato Institute — 25th Annual Constitution Day Conference

Panelists:

• Carmen Iguina González, Deputy Director for Immigration Detention, ACLU National Prison Project
• Erik Jaffe, Partner, Schaerr Jaffe LLP
• Jeffrey Schwab, Senior Counsel and Director of Litigation, Liberty Justice Center

Moderated by Molly Nixon, Senior Fellow in Executive Power, Cato Institute

Opening Remarks

Tommy Berry: Hello and welcome everyone, both here in person and online, to our twenty-fifth annual Cato Constitution Day Conference. Every year on Constitution Day, we celebrate the Constitution by releasing a new edition of the Cato Supreme Court Review, and here we have it, hot off the presses — the first and fastest volume of legal scholarship on the Supreme Court’s just-completed term. And for the third year in a row, we have also released our Illustrated Supreme Court Review. Here we go — boom — whose editor is James Craven.

My name is Tommy Berry. I’m editor-in-chief of the Cato Supreme Court Review and director of the Robert A. Levy Center for Constitutional Studies here at the Cato Institute. As always, at our Constitution Day Conference, we’ll have three panels on the just-completed term, one panel looking ahead to the next term, and our keynote, which this year will be delivered by Tara Grove, the Vinson and Elkins Chair and Professor of Law at UT Austin School of Law. For those of you following online, you can join the conversation on social media using the hashtag CatoSCOTUS — C‑A-T-O-S-C-O-T-U‑S.

Here at Cato’s Constitutional Studies Department, we freely confess our biases. We view the Constitution from a Madisonian perspective as a document that protects individual rights against government overreach and that strictly separates the powers of government so that they check and restrain one another. We also reject the tired dichotomy of judicial activism versus judicial restraint. We urge judges to engage with and follow the law, which includes, most importantly, the Constitution. If that means invalidating a statute or a regulation, it’s the judiciary’s duty to do so without putting a deferential thumb on the scale in favor of the elected branches. At the same time, judges should not be outcome-oriented. Some decisions may lead to a bad policy outcome, but that’s not an argument that the decision was legally wrong. Indeed, we think any rigorous legal philosophy must sometimes lead to policy outcomes a judge doesn’t prefer, or it’s not really a legal argument at all.

But we don’t want the Cato Supreme Court Review to be an echo chamber. Not every author you’ll hear from today would necessarily self-describe as an originalist. Certainly not everyone would self-describe as a libertarian, and that’s as it should be. If we wanted the Review to say exactly what Cato thought on every issue, we could just reprint the amicus briefs and op-eds that we’ve written throughout the year. Instead, we invite a stellar lineup of authors, give them the freedom and trust to write what they want on this year’s biggest cases, and as always, they did not disappoint.

Both this edition of the Cato Supreme Court Review that you hold in your hands and this conference took an enormous amount of work from many, many people. I want to first and foremost thank all of our authors, most of whom had literally one month, start to finish, to write a law review article, which is basically unheard of. Also, the primary thanks within Cato go to our managing editor, Laura Bond, and Carmen, who put in more time than anyone on making the Review a reality. Thank you to my colleagues Clark Neily, Walter Olson, Dan Greenberg, Molly Nixon, Matthew Cavedon, and Mike Fox, who all provided great help in editing the Review and in picking up the slack for me on other work while I was buried in edits and unitalicized periods. Thank you to legal associates Samuel Rutsek, Kimberly Coleman, Harrison Prestwich, Garrett Flynn, and Samara Hassan for their work in editing and site-checking. Thank you to Cato research associates Arpit Rao and Mira Harris, and Cato intern Miles Clutter, for their work on editing and typesetting as well. We also relied on wonderful editing from the many copy-editing professionals at Pubs Pros, and the physical book that you hold in your hands, believe it or not, was all typeset and printed within just the last week by the amazing printing professionals at R.R. Donnelley. Thank you to Eleanor O’Connor in Cato’s publishing department, Brandy Dunn in our marketing department, and May MacLeod, who put together the cover, which some of you might notice, if you’re repeat attendees, has been refreshed this year with a picture of the Supreme Court on it for the first time — we think it’s a nice, modern spin.

This conference also came together through the tireless efforts of many Cato staff: Ryan Moore, Kiana Graham, Moi Saint Ong, David Tassy, Jonathan Fields, Darren Walker, Elcid de Monteverde, Roshni Asher, John Myers, Linda Osu, Cecil Sherman, Savannah Beatley, Sam McKinney, Jose Medina, Alex Frank, Kevin McKinney, and many more.

Now, a few logistical notes before we get started. Lunch will be served in the conference rooms — those are one level up from here — at noon, directly after this next panel. If you just follow the person in front of you, you’re unlikely to get lost. There are single-stall bathrooms here on this floor, but there are larger bathrooms both one level up and one level down, so if there’s a traffic jam here, please consider trying another floor. And as you get our tasty snacks and drinks throughout the day, please be aware food and drink are not allowed here in the auditorium — it was renovated relatively recently, and we’re still trying to keep it looking nice for at least a couple more years. Also, because we live-stream our panels on a two-minute delay, every panel will actually start two minutes early here in the auditorium — so the first panel will be starting, for example, at 10:43, not 10:45. One minute from now.

So, in a nutshell, you’re going to hear about cases coming up challenging the Trump administration. I’ll set the table a little bit by suggesting that a lot of the media’s coverage this year of the big cases boiled down to simply one question: who won? Did Trump win, or did Trump lose? And for most people, that’s as deep as the analysis goes. Some people might like it if Trump wins, some people might like it if Trump loses, but when you dig a little bit deeper, I think you see that there’s a lot more going on in these particular cases, and you really have to ask more nuanced questions. Is what the administration was trying to do completely novel? Is it unheard of? Is it a claim to a truly unprecedented exercise of presidential power, or was the Supreme Court’s decision perhaps in line with a trend it had already been going in?

For example, later on, we’re going to hear on my panel about the FTC v. Slaughter case, about presidential removals and the so-called unitary executive theory. That’s a case where, although the headline again was “Trump won,” in fact the reasoning was very much in line with cases that the Supreme Court had been deciding under both the George W. Bush and even the Barack Obama administrations — not so much unique to President Trump, either in the arguments of the administration or in the majority opinion. So these are just some of the running themes to think about as you hear about the cases going on.

I’ll now call up our scholar in executive power, Molly Nixon, who will be moderating the first panel on challenging Trump. Molly?

Panel Introduction

Molly Nixon: Thank you, Tommy, and thank you everyone for coming. Thank you everyone watching online, and thank you to our panelists for taking the time to join us today. We’ll be discussing three cases in which the plaintiffs — some of whom were represented by people on this stage — challenged the government, and we will jump into those after I introduce our panelists.

To my immediate right, we have Jeffrey Schwab. He’s Senior Counsel and Director of Litigation at the Liberty Justice Center, where he focuses on enforcing constitutional limits on government power, particularly in cases involving free speech, economic liberty, and the rights of ordinary Americans and small businesses. He was lead counsel at the Court of International Trade and the Federal Circuit in V.O.S. Selections v. Trump, challenging the administration’s emergency tariffs, and counsel at the Supreme Court, where the case was consolidated with Learning Resources v. Trump. Jeffrey received his BS in Business Management from Grove City College and his JD from the University of Michigan Law School.

To his right is Erik Jaffe. Erik is a partner at Schaerr Jaffe LLP. Jaffe has been involved in appeals on a broad range of legal issues. He has been involved in over two hundred Supreme Court matters, including filing thirty cert petitions, representing half a dozen parties on the merits, and filing over one hundred and fifty amicus briefs at both the cert and merits stages — including as counsel of record on behalf of Neutral Principles in its amicus brief in the birthright citizenship case, Trump v. Barbara. Erik graduated from Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit and to Supreme Court Justice Clarence Thomas.

To my far right, we have Carmen Iguina González. She’s Deputy Director for Immigration Detention of the ACLU National Prison Project, where she plans, manages, and helps direct litigation efforts and strategies on issues related to immigration detention. She was counsel for one of the respondents in the temporary protected status terminations case, Mullen v. Doe, which she’ll be discussing today. Carmen clerked for U.S. Supreme Court Justice Sonia Sotomayor, Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit, and Judge Kiyo Matsumoto of the U.S. District Court for the Eastern District of New York, and graduated from New York University School of Law — my alma mater as well.

So let’s jump right in. I should also note, before we start, that if you have questions as the panelists are speaking, please take a minute to jot them down, because we will have time for questions later. So we’ll jump right into Learning Resources v. Trump with Jeff.

Learning Resources v. Trump — Tariffs

Jeffrey Schwab: Well, thanks, Molly. I appreciate the invitation from Cato, and I’m here to talk about tariffs, and I guess where we’ve been in the last year and a half, which is — we’ve come a long way and used a lot of statutes to impose tariffs in unique and unprecedented ways.

But let’s take you back to April of 2025. If you’ll remember, “Liberation Day,” when the president imposed tariffs on the whole world at between ten and fifteen percent. His justification for doing so was a statute called IEEPA, the International Emergency Economic Powers Act. IEEPA does not say anything about tariffs, so what was the justification from the president? Well, IEEPA uses the term “regulate importation,” and the president thought that meant impose tariffs. Now, if you think about it, and you see in the Constitution that Congress both has the power to impose tariffs and also the power to regulate, and those are two separate things, you might think that this case should have taken about thirty seconds to decide, and that would be it. But unfortunately, that was not the case. There’s a little bit of history that makes it somewhat complex.

Although I’m not an economist or an economic historian, I’ll try to get into this history and hopefully explain it in a way that makes sense to everybody, because it’s a little bit dense. Back in the ’70s, after President Nixon took us off the gold standard, we had an emergency economic problem, and the president imposed tariffs without really thinking about what justification he had for doing that. So people sued, and they won in the district court — at the time, a different court. The court said, “Well, what’s your justification for this?” The president sort of justified it, back-end, by saying, “Well, there’s a statute called TWEA” — which allows the president to impose, or to regulate importation, in wartime. Relevant to this case, the most recent case, TWEA also contained the language “regulate importation.” So although the lower court said that was wrong, the predecessor to the Federal Circuit said, “We’ll give you a pass this time — it was kind of important, and we don’t really want to relitigate this. We’ll let it slide, but this is kind of a one-time thing. Don’t do this again.”

In the meantime, Congress did a lot of stuff. It revised TWEA to only apply in wartime. It enacted the International Emergency Economic Powers Act, which was supposed to apply in peacetime. Neither of those things were supposed to allow tariffs. But it did enact another law called Section 122, which did allow tariffs in limited circumstances. So Congress responded to the president’s need after the fact — that’s one of the reasons, by the way, that the predecessor to the Federal Circuit said, “We’ll let this pass this time,” because Congress had passed Section 122.

The reason that’s relevant is because, as I said, “regulate importation” — the predecessor to the Federal Circuit said that was okay for imposing tariffs. So that gave the administration some sort of precedent to say that, well, in IEEPA, where it has the same language as TWEA, that can mean impose tariffs. So that’s where we were.

I think this is a pretty straightforward question, because, one, the issue was different in the Nixon administration in that it was limited to a specific period of time. By the time it actually got to the court, those tariffs had been revoked. President Trump’s argument under the Liberation Day tariffs was that he could impose any tariffs he wanted under IEEPA, at any rate, at any time, for any reason — and if you’ll recall the time period after Liberation Day, he kind of did that. He changed them all the time for all kinds of weird reasons, and he just basically assumed that IEEPA gave him an unlimited tariff power. I think that’s one of the reasons the court was so skeptical: because Congress generally doesn’t just give the president all of its constitutional power in words that don’t actually explicitly say that.

So that’s where we were. The Supreme Court decided this case in February of this year, which is a very quick timeline. We went from the Court of International Trade — when we filed the case in April of 2025 — to the Supreme Court decision in February of 2026. Super fast timeline. I know maybe for non-lawyers that seems like almost a year, that’s a pretty long time, but in the legal world, that’s lightning quick.

Chief Justice Roberts wrote an opinion that pretty clearly says “regulate importation” does not actually mean “impose tariffs,” for various reasons, including that those are two different words, and it can’t mean that Congress sort of gave all of its power to the president. I think Chief Justice Roberts’s opinion is pretty readable and pretty straightforward — it’s about twenty pages. You might think, “Okay, well, I looked at the opinion, and it says it’s a hundred and eighty pages in the PDF. How in the world did you get from twenty pages to a hundred and eighty pages?” Well, that’s because a hundred and sixty pages of the opinion are concurring opinions and dissenting opinions, and I’d say about three-fourths of those are a very intense discussion about what the major questions doctrine actually means. That was actually one of the reasons I was interested in the case — Ilya Somin, a professor who writes at the Volokh Conspiracy, had written about this case and said, “Oh, I think actually this could implicate major questions and non-delegation,” and I like those things, so I reached out to Ilya, and he joined our lawsuit as a lawyer.

Molly Nixon: Do you want to give a quick explanation of the major questions doctrine and non-delegation, for—

Jeffrey Schwab: Yes. I will. The major questions doctrine basically says: when Congress delegates some sort of power of vast economic or political significance, it’s got to be basically clear — if it’s a major question, something of vast economic and political consequence, then Congress has to be very clear about that. Obviously, a tariff on the whole world is of pretty vast economic consequence, so we thought that’s pretty clearly applicable. The non-delegation doctrine is similar — it says Congress doesn’t delegate all of its power unless it’s very clear that it’s intending to do that. They’re sort of related.

So I kind of felt like a kid at Thanksgiving when you bring up a political topic, and then all the adults argue for like fifteen minutes — sort of like, “Oh, sorry I brought up the major questions doctrine,” because it was a lot of discussion. Actually, most of that was Justice Gorsuch’s concurring opinion, basically saying, “Aside from the Chief Justice, you guys are all hypocrites about the major questions doctrine” — calling out both the liberal side of the court, for saying it didn’t apply in this case but refusing to apply it in other cases, and the conservative justices in the dissent, for having generally joined major-questions cases and then basically rejecting it here.

So that’s the in-the-weeds discussion. But I actually think the case is pretty simple when you think about it. It’s just a question of whether “regulate importation” means “impose tariffs,” and I don’t think it does. I should mention another reason why it doesn’t: it says “regulate,” and then there’s actually a word in between — it’s “importation or exportation.” Well, you can’t regulate exports — even Congress can’t do that. So it seems unlikely that the term “regulate” means “impose tariffs,” since that would mean imposing tariffs on exports.

Molly Nixon: And they can’t do that under the Constitution, right? Even Congress can’t do it.

Jeffrey Schwab: Yeah, under the Constitution, so they can’t delegate that power to the president. I’ve heard the Gorsuch concurrence described — I think aptly — as a Frank Costanza, Festivus-in-Seinfeld moment, where he says, “I’ve got a lot of problems with you people, and here’s the concurrence where you’re all gonna hear about it,” and just went after everyone.

All right — I’ll turn it over to Erik.

Trump v. Barbara — Birthright Citizenship

Erik Jaffe: Sure. Hi, thank you for having me back to Cato — a longtime friend of the organization. I’m probably the person who provides the least intellectual diversity for Cato; I tend to agree with them on so many things, I’ve had them as clients. I’m quite both conservative and libertarian, but most importantly, I’m an old-school textualist, and that’s somewhat how me and my organization, Neutral Principles, got involved in the Trump v. Barbara case.

I find so many cases these days not to be that complicated. They’re actually quite simple, and are made complicated by people sort of forgetting the lessons of Judge Bork and Justice Scalia and all of us old-school Fed Soc folks who thought we had a revolution going on how one approaches language. In Trump v. Barbara, President Trump decided he didn’t like the long-standing precedent of what it means to become a citizen. To become a citizen under the Fourteenth Amendment, you need to be born or naturalized — but in this case, let’s just stick with born — in the United States, and subject to the jurisdiction thereof. The whole fight in Trump v. Barbara is not about where you were born; no one disputes that the folks being targeted for perhaps not having citizenship were born in the United States. The question is whether they were subject to the jurisdiction of the United States.

Now, an old-school person like Scalia would say, “Okay, I’ve got this phrase, ‘subject to the jurisdiction of the United States.’ What do I do with that? Well, I look back and see how that phrase was understood at the time, was used at the time, whether there are other examples of its being used. I try to see if there’s consistency in how one interprets that, see if there’s a novel reading of it that doesn’t really apply.” You ask all those questions, and I think those are the right questions to ask, and then you come to a conclusion. In this case, that’s not what happened — we had a result, and then we had a conclusion that was used to back it up. There’s lots of academic work out there that tries to do these historical and textual analyses; I think many of them are flawed.

But anyway, the president signs an executive order saying folks born to illegal immigrants and some others, temporary visitors, don’t count because they are not “subject to the jurisdiction” of the United States — reading that phrase as meaning subject to the complete political jurisdiction of the United States and owing allegiance to the United States and to no other country. You’ll notice there are a lot of words there — “complete,” “not subject to other people,” “owing no allegiance” — that modify “subject to the jurisdiction” and somehow got left out of the Fourteenth Amendment.

So this goes to court. The court smacked this down based on the Supreme Court precedent Wong Kim Ark, which addressed this question for the child of Chinese citizens who had been residing in California but then went back to China. There was a debate, and the court said, “Yes, that person’s a citizen.” There’s some dispute over what role domicile did or did not play, versus the mere fact of being born here and not subject to certain exceptions to jurisdiction. There was a nationwide injunction imposed on the order. The case then goes up on an emergency appeal about the form of the remedy, not the substance of the case — whether one court could tell the whole world, the entire United States government, what it had to do everywhere, even beyond the jurisdiction of that particular court. That goes to the Supreme Court. The Supreme Court says, “No, these universal injunctions go too far — one little court in one district of the country can’t tell every other district what to do.” So it goes back down, the parties modify their relief, and then finally we get to the merits, and it goes up again.

The administration loses over lots of dissents, and it gets to the Court. Ultimately, the administration loses on the constitutional question — five-four on the result, six-three on… the difference between the five-four and the six-three is Justice Kavanaugh, who would have decided it on statutory grounds but would have gone the other way on the constitutional question if he’d been squarely presented with it, or at least strongly suggests he would have. He doesn’t fully reach it, but gives a lot of hints. Chief Justice Roberts writes the opinion — a very long opinion that talks about Roman law, this law, that law, and then in its second substantive part says, “Oh, and by the way, here’s what the words meant,” and here’s a bunch of cases about what the words meant, and then, “Let me just talk about history and what Congress was really trying to do at the time.” Then the dissents — Justice Thomas writes a very interesting dissent tracking the history. I think he at least goes through the steps of what you’d understand to be textualism: what did people understand these words to mean at the time? What does it mean to be “subject to the jurisdiction”? Does it imply complete jurisdiction? Total political allegiance? Non-allegiance to someone else?

He goes through those and rests very heavily on history and what I’d describe as legislative history of the Fourteenth Amendment — people making comments about what they interpreted the phrase to mean. And if anyone in this room has a passing familiarity with Justice Scalia’s entire jurisprudence, this kind of thing ought to make a traditional textualist’s head explode. Last time I checked, I didn’t really care what Senator X or Senator Y wanted this to say, or thought it said, or tried to manipulate by making a floor statement. What I cared about was some more objective evidence of what these phrases mean — not in the immediate context of trying to manipulate the results, but as they’ve been used and publicly understood. I thought that piece of Justice Roberts’s opinion — if it were me, I might have considered writing that short two-page piece and then stopping there, not bothering with the rest of it, and pointing out that it doesn’t really fit our methodology for interpreting textual instruments like the Constitution or statutes. He didn’t, and all the dissents spent a lot of time talking about the history, the policy implications, why you would ever want to do this — things that, to my mind, ought not play a role in the judicial enterprise. They’re great policy decisions. They’re great reasons you might want to amend the Constitution, or clarify it, or even pass a statute that might have bearing on the phrase “subject to the jurisdiction of.” But that doesn’t necessarily tell you what the phrase means.

So we wrote a brief — my organization, Neutral Principles, a relatively new organization, largely founded by me and two friends, with the purpose of saying, “Look, we used to know what conservative legal interpretation meant, and I’d like to continue doing that, even if the results may not be conservative or right-wing‑y in their substance and policy.” We argued that the phrase “subject to the jurisdiction of” has a long historical and understood meaning — it was actually used a lot in statutes and treaties, and it was understood to mean subject to the judicial authority of a nation. It was not understood to mean subject to political allegiance, or exclusive jurisdiction — you could be subject to the jurisdiction of more than one entity.

The best examples were things like American businessmen traveling abroad — in Thailand, in China, other foreign countries — where we’d have a treaty with those countries saying whether or not those people were or were not subject to the jurisdiction of the host nation. Sometimes they were not, and if that occurred and somebody committed a crime, they would not go to a local court, would not be arrested — instead, they’d be taken to the U.S. consulate, and the U.S. government would adjudicate whether they’d committed a crime, even if it was a local crime. They were subject to the exclusive jurisdiction, in that instance, of the United States, and not subject to the jurisdiction of the host country. Here, of course, visitors and illegal entrants are subject to this notion of territorial jurisdiction — and you see Justice Thomas talk about territorial versus political jurisdiction. Our argument was that, historically, the bare phrase “subject to the jurisdiction of” a country was the territorial version, not the political version — not the allegiance version. That was really the gist of our argument. I think it’s not cited, not reflected as well as I would have liked, but it basically embodies part two of Chief Justice Roberts’s reasoning.

Now, what does that tell us about litigating against the Trump administration? We could go into whether the case was right or wrong — I think the result was right, I think some of the reasoning was troubling. I think Kavanaugh’s approach — well, Wong Kim Ark made some exceptions, so we can make some new ones — is so anti-textualist, I don’t even know what to do with it. But even among the people who voted for a result I agreed with, I kind of didn’t like the way it came out, because it implied that all these extra-textual factors mattered, and I don’t think they do. This is Scalia’s famous point — we have a written Constitution for a reason. It’s written down, and if you think they made a mistake, if you think they didn’t write down precisely what they wanted to do, too bad, so sad — you got what you got, and if you think it didn’t properly convey what you want, amend it, or do something more substantive to change it into what you really wanted, versus what you actually said.

So what does this tell us about litigating against the Trump administration? I think not a lot. One, it tells us the Trump administration is willing to run to the Supreme Court at every possible opportunity — hence the emergency relief on the nationwide injunction. It’s not that nationwide injunctions aren’t a real problem — they are — the question is whether we needed to make it an emergency. It tells you the administration is trying to change the facts on the ground. You hear this in wartime situations a lot — once you’ve changed the facts on the ground, whatever the rule is later is sort of moot, or may be moot, because you’ve already done the damage, and unwinding the damage is incredibly difficult. See the tariffs, right — where they changed the facts on the ground, and one of the arguments for interpreting the statute incorrectly was, “Well, it’d be so hard to give back refunds, and that would be terrible.” Again, changing the facts on the ground. It shows a litigation approach that I’m not saying is unique to the Trump administration — I just point out you see quite a bit of it, and a greater willingness to run up to the Supreme Court to speed the plow, rather than wait for the ordinary process of litigation, which often takes longer than a year, or six months, or two days, or whatever it is. So that’s an interesting thing for litigators.

The other thing is an extreme willingness to challenge existing precedent. Under this old case of Wong Kim Ark — which had been around for a long time — the administration is quite willing to challenge precedent. You see that in many other cases. You see it in the unitary executive context. You see it in New York Times v. Sullivan, where there are calls to overrule that, by him and some of his supporters and administration. So I suppose it tells you they were not overly concerned with precedent. Now, I clerked for Justice Thomas — I’m not overly concerned with precedent either. I try to get to the right answer rather than monkey around with precedent that may have been tragically wrong. Whether Wong Kim Ark was tragically wrong is a very different question — I don’t think it was. I think parts of it were wrong, in thinking that Native Americans born in the United States were not subject to the jurisdiction of the United States. I think that piece of our history of who is and isn’t a citizen is vaguely racist, and I would have thought Justice Gorsuch would have been sensitive to the notion that that exception is bizarre, given that the federal government most certainly asserted jurisdiction over Indians in the United States — whether they exercised it is a different question, but they certainly claimed the power to do so.

The last thing I think is interesting is that, unlike traditional conservative administrations — or more so than past conservative administrations — policy factors are driving a lot of the legal argumentation. There’s much more reliance on “what a terrible result this would be,” so you have to close your eyes and blink at the text because, oh my God, the world will end, everybody’s gonna die, we’ll be overrun by the children of visitors. That’s happened in administrations in the past. My personal view is it tended to happen in administrations that had a different, less text-focused approach to the Constitution — a more “living constitution” approach. I don’t mean to say they don’t have arguments, and that’s a nice theoretical and intellectual debate, but in that framework, those kinds of things matter. In a hard textualist framework, those kinds of things not only don’t matter, but are precisely what folks like Bork were trying to squeeze out, because those decisions get made by judges who really aren’t the people who ought to be driving these big policy decisions.

So I’ll leave it at that. That’s the case, and those are the implications I have — I’m sure we’ll chat more about what it’s like and what it means to litigate against this administration compared to others.

Mullen v. Doe — Temporary Protected Status

Carmen Iguina González: Good morning. Thank you so much for having us and inviting us to talk about Mullen v. Doe, the case decided this Supreme Court term about the reviewability, basically, of determinations concerning temporary protected status.

I’m actually going to start a little bit further back from what the dispute in the case was, because — unlike tariffs and birthright citizenship — I think there’s kind of a surface-level knowledge of what TPS is, temporary protected status, but not actually a lot of the details and the history of what that humanitarian relief and protection is, where it comes from — which I think inform the debate here.

Temporary protected status is a form of humanitarian relief granted by the Secretary of Homeland Security to eligible foreign-born individuals who are unable to return to their home countries because of conditions or circumstances that prevent their country from adequately and safely having them return — for example, an ongoing armed conflict, an environmental disaster, an epidemic. Those are some of the circumstances under which administrations in the past have granted temporary protected status. It’s a form of humanitarian relief that had been used for over three decades by Democratic and Republican administrations alike, to prevent the return of people — say, after a massive earthquake, when countries were just unable to have individuals return, administrations in the past said, “We will grant this temporary status to individuals until conditions improve in their home country.”

Now I want to pause for a second, because I often get asked, “Is TPS similar to Deferred Action for Childhood Arrivals, DACA?” And the answer is no. TPS is rooted in statute — Congress passed that statute in 1990, setting out exactly how the Secretary was going to go about evaluating whether to designate a country for TPS in the first place, and then what’s called the period of temporary review. It doesn’t just say “grant TPS” and that’s the end of it. Because it’s a temporary form of status, it says grant TPS, and at least every eighteen months, you have to review it to determine whether conditions in the country have changed so that the individuals here in the United States can go back.

Importantly, Congress passed that statute in 1990 precisely to replace a system where the executive, without any guidance or criteria, on its own decision, would grant a similar form of relief called “extended voluntary departure” — and that’s very explicit. There’s a D.C. Circuit court opinion ruling on what the administration at that point had done with respect to people from El Salvador and whether to grant extended voluntary departure. Congress passed a statute to overrule that case. So we know very clearly that Congress wanted to get rid of a system where the executive is just arbitrarily deciding who gets to stay and who doesn’t.

So, as I said, the statute very tightly constrains who is eligible for TPS. It grants relief to people from countries stricken by armed conflict, natural disaster, and other extraordinary and temporary conditions. You get employment authorization — while you’re here, you’re protected from removal and detention, and you get a work permit so that during the duration of your stay you can engage in the economy and contribute. It’s very limited as to who qualifies: it only applies to people who are in the United States at the time the designation is made. It’s not an invitation for people to come over — so if there’s an earthquake in a foreign country, and there are people here in the United States at the time, TPS says you are protected from removal and deportation for this period, you can stay here, but we’re not opening our doors for everyone to come over. And it doesn’t provide a pathway to permanent residence or citizenship, which is why it’s temporary — a temporary status until conditions in your country change.

Now, I had mentioned the period of review, which is what’s at issue here. The statute again is very clear: Congress sets very specific criteria, very specific timelines, a very specific procedure that the Secretary has to follow to make a determination about whether to renew, terminate, or extend a previous designation of TPS — and only allows for termination where the conditions in the country have now ceased to exist. If the Secretary finds those conditions are no longer true, the statute says you terminate. If that determination is not made, the default is actually extension. Congress said if you can’t determine that the country is safe for people to return, the default in the statute is that the designation is extended for six months; the Secretary can extend it longer. But again — periodic review.

So what was the challenged action of the Trump administration here? It was very clear, even before taking office, that TPS was going to be a target for the new administration. The then-candidate Trump talked about eliminating the program as a priority of his, because, in his view, it is not legal. Again — this is a statute Congress has passed. It’s not like DACA, where there are debates in the courts about the executive’s authority to extend that type of relief. This is a statute codified by Congress. On his first day in office, he passes an executive order mandating that TPS be limited in scope, with the purpose of reducing the number of people in the country illegally — including people who have TPS status in that category, despite the fact that Congress has said those people are actually in the country legally. Secretary Noem then takes office; during her confirmation hearing, she again confirms that terminating TPS is going to be a priority for the administration — and that’s exactly what happens. Over the next year, every single determination about whether to extend or terminate TPS that comes before her results in a termination — every single one, for thirteen countries.

And again, these are designations that, for over three decades, Democratic and Republican administrations alike, upon evaluating country conditions and consulting with the Department of State, have determined some of these countries are still not safe to return to. I’m not saying this happens with every TPS designation — there have been plenty of TPS designations where a country gets designated, conditions improve, and the designation terminates without a challenge. But here we’re talking about periodic review after periodic review where the Secretary determines “safe to return, everyone go back.” And all of these have a lot in common. One, it becomes very clear that, despite the statute mandating that the Secretary consult with the Department of State about country conditions, that hasn’t been done. We know that even without looking at the record, because the Department of State travel advisories for those countries make it very clear the Department of State has determined those countries are not safe. Syria, for example — Doe itself was a termination of TPS for people from Syria. The State Department has the highest-level travel alert for Syria — do not travel, and if you’re going to go, execute your will, leave a DNA sample. That’s how dangerous Syria is; there’s no part of the country that’s safe. That’s what the State Department is saying. And here’s the Secretary of Homeland Security saying, “Actually, the conflict is done, everything is safe, people from Syria can go back.”

The other thing that’s clear is that the Secretary is relying on criteria that are not in the statute. Congress told you what to consider, and Congress was actually very clear — the termination notices, published in the Federal Register, cite criteria that are just not what Congress told the Secretary to do. So, unsurprisingly, as these termination notices get published, individuals start filing suit. And when I take a step back, even though all of these terminations have all of this in common, they’re not litigated together, because the terminations are issued when each country’s periodic review period comes up, meaning they’re on different timelines — Venezuela is one of the early cases, Syria is still at earlier stages.

I mention this because we’re talking about litigating against the Trump administration and the use of the emergency docket. The path to the Supreme Court in this case: it comes to the Court through the emergency docket, on a stay of a preliminary injunction that’s issued on an oral decision — right, so this was an emergency application because the statute was terminated and people were going to be deported to Syria (again, execute your will, leave your DNA). People go to court, ask for a preliminary injunction, the court holds a hearing and issues the decision on the record. The administration chooses that case to appeal to the Supreme Court and asks for cert before judgment, which is a very uncommon practice — usually you want a fully developed record, you want the court to be able to engage on the issues, you want a reasoned opinion, not an oral order — you want the full picture when a case reaches the Supreme Court. They chose this case to take up, despite the fact that, for example, the Venezuela case had a fully developed record and a fully reasoned opinion on its way to the Supreme Court just a short time later. So they chose this case, with a very limited record and very limited reasoning, to be the case the Court hears to determine whether these terminations are legal.

And the Court granted cert. I will race you through the timeline — about a year from filing to decision. The case comes to the Supreme Court on an emergency application for a stay at the end of February, briefing happens in March, the Court hears argument in April, it’s decided by June. That’s how truncated it was — if you’re not a Supreme Court practitioner, maybe that sounds reasonable, but it’s not; it’s just so fast, and there really wasn’t the opportunity for advocates in affected communities to weigh in and explain their view on the statute and on the reviewability of these decisions. There just wasn’t the space and time for advocates to do that.

So I laid a lot of background — the case is about the challenge to the process, not about the substantive determinations. The challenge in Doe is not saying the Secretary was wrong that Syria is safe to return to — she was wrong, but that’s not the legal challenge. The challenge is about whether she followed the procedures Congress told her to follow. Very simple: Congress told you what to do — did you do it? Did you do the consultation with the State Department that Congress told you to do? Did you follow the criteria Congress told you to follow? And if you do all those things and still decide to terminate, we concede there’s no judicial review, because there’s a statute that says there’s no judicial review of determinations to designate and/​or terminate TPS.

But on process, there’s actually pretty clear precedent making the distinction that process-based claims are still reviewable, despite those types of statutes that bar judicial review of the ultimate determination. Even if you can’t review the substance — the decision about country conditions — you can still review the process. And it wasn’t just based on that precedent; it was also based on the statutory text itself. The judicial review bar at issue in the case — the government was saying, “You just can’t review this, Congress has told you our determination about terminating TPS is completely outside the jurisdiction of what courts can hear” — the statute actually talks about a bar on judicial review of “determinations,” and the word “determination” in that provision is used over and over again to talk about country conditions, not about the ultimate termination decision. So a pretty solid argument based on the text of the statute, based on how administrative law generally works, and based on Supreme Court precedent that had interpreted this exact same language this way — to say process-based claims are different from substance-based claims, even if substance-based claims are barred.

And unfortunately, the Court disagreed. Justice Alito writes an opinion focusing on the dictionary definition of “determination,” and — in my view — ignoring the context in which the term is used, saying, “ ‘Determination’ just means what we think it means — it means a decision.” So the Secretary makes a decision not to consult with the State Department — that’s a determination. The Secretary makes a determination not to use the criteria Congress told her she needed to use — that’s a determination too. And it’s all barred; there’s no judicial review of any of these claims. Which, when you take a step back — what the government is asking the Court to decide is that Congress went through the trouble of overruling the prior system, setting a very clear statute, telling the Secretary exactly what she needed to do, only to then say, “But never mind — all of this is not reviewable, not enforceable, there’s nothing anyone can do if you fail to follow” very specific — and I should say very mandatory-sounding — language in the statute. “The Secretary shall do this. They shall evaluate. They shall consult with relevant agencies.” Which is just a really extraordinary claim about the limits of judicial power. And if you listen to the oral argument, the Solicitor General concedes the Secretary could have been pulling countries out of a hat — Syria gets TPS, Haiti doesn’t — that’s fine. Could have used a Ouija board — that was one of the examples raised during argument. Could she use a Ouija board? The Solicitor General says, totally fine.

So ultimately, the consequences of what this means, and the arguments the administration is now going to make based on this precedent about the breadth of executive power and the limits of not only what Congress has told it, but what courts can do to intercede — I think are quite extraordinary. Thank you.

Panel Discussion

Molly Nixon: I have lots of questions, but I want to open it up first, if anyone on the panel has either a response or a question for one of the other panelists about the case they discussed, or anything they said during that.

Erik Jaffe: I just have one comment, which is that the theme I see running through a lot of this is not a function of any of these individual cases, but a challenge to — and a potential reconceptualization of — the separation of powers. You see this in the unitary executive, you see it in this notion of judicial deference: we’ve decided that executive power is utterly expansive, almost regal, as some people would accuse it of being, in its scope and unreviewability. The judicial power — which doesn’t take a lot to read into the Constitution, and which seems like it should be equally balanced if we think of a balance of powers — is narrow, almost non-existent, and can be encroached upon and eliminated by the legislative power. I find that personally fascinating — again, from a textualist perspective: we wrote these three powers in, with some sense that one couldn’t infringe upon the other. There’s some structural reason to believe that.

And yet this administration — perhaps more than past administrations, not that past administrations haven’t asserted a lot of executive authority and tried to expand their authority base, but they did it incrementally, on the edges, on the margins, in more subtle ways, and backed off when they were smacked in the head — sometimes, not always, and I say that of both parties — here there is just a complete and unrelenting demand that the executive power means “I can do anything,” the judicial power means “you can do nothing,” and the legislative power is irrelevant. That phrase, “faithfully execute the laws” — irrelevant too. I think that drives all of this as an underlying theme that helps explain some of the litigation strategies going on, and some of the ways one might have to litigate against the administration, by taking a step back and understanding the scope of these fundamental powers conferred by the Constitution.

Molly Nixon: Anyone else?

Carmen Iguina González: No, I think that’s exactly right. Sometimes we get so focused on this particular text and this particular dispute, and it is, I think, so powerful to take that step back and think about what we’re actually asking here. I had this example come up — actually, the term I was clerking at the Court, we had a case about whether you needed a warrant to search a rental car. You get there and it’s the Fourth Amendment, and the history of the Fourth Amendment, and how it’s been applied — and then, all of a sudden, during argument, someone just took a step back and said, “Well, really what you’re asking us here is whether the police just want to be able to search cars without having to tell us why.” It’s sometimes powerful to take that step back and say, we have this very important constitutional protection that we’ve written into this founding document, and we have applied it, and then we get so bogged down in the details. But if you take that step back, it actually gives you the perspective of what this means — what are you actually asking me here? And I think in all of these cases, there’s a pretty extraordinary interpretation of what the executive can do.

Molly Nixon: Yeah. I don’t know if this is contrary to what you were saying, Erik and Carmen, but at least in Jeff’s case, and in the Trump v. Barbara case, you have two cases here where executive power is generally thought to be at a high point — foreign policy, arguably, at least with the tariffs, and immigration — and the administration took that maximalist position, and the court kind of took a step back and said, “What are we talking about here? It’s not foreign policy, it’s tariff power. And regardless of whether this is immigration, we’ve got a text that we’re going to turn to.” I’m curious for each of you: was there anything in the opinions, the concurrences, or the dissents that really surprised you? Carmen, maybe perhaps obviously, since — as you said — the opinion didn’t come out your way. I’ll start with Erik, though, because you mentioned all the legislative history in the majority opinion — I don’t know if it surprised you, but you mentioned it, so I’m wondering what you take away from that, and whether there’s anything else in Trump v. Barbara that surprised you.

Erik Jaffe: You’re right — well, it didn’t surprise me. It annoyed me, I guess, is the real answer. I’m not surprised anymore that you’d use the tools in your toolbox, even if at different points you may have suggested those tools ought not be used — they’re the tools of the day, you use them, and I’m not surprised. I would hope for, and wish for, and argue for a more narrow use of tools that I think are illegitimate or that don’t really bear on the question before you, but that’s not what happened here.

I’m a little more surprised by Kavanaugh’s opinion. Not that I disagree with his treatment of statutory history as ratifying the state of the law at the time, but more so with the “well, Wong Kim Ark made up some exceptions, so we can too,” without greater attention to whether the exceptions noted in Wong Kim Ark were indeed consistent with the Fourteenth Amendment’s text. Like I said, I think the diplomat example is very consistent, the invading-army example is very consistent — they’ve literally conquered territory and removed the civil authority of the government they’re attacking. I think the Indian example is terrible — just terrible — and the notion that you’d allow a terrible example from an old precedent to become the thin edge of the wedge for as many new examples as you want, no matter what — that bothered me quite a bit, and I think it’s mistaken. Like I said, I’m not so wedded to precedent, but I’d like to understand which parts were right and which were wrong, and not just take it or leave it in toto. I think the Indian part was just wrong. So that’s what I take away from those tools and their uses, and the surprises.

I was once schooled — I had written a memo for one of my old bosses that said, “Here’s what the case law says, here’s what this says, here’s the way it’s been done for the last fifty years.” And I was told, “Did you bother going back and reading the text of the statute, the constitutional provision, this and that?” And why would I keep running the train off the cliff in the wrong direction rather than try to steer it back to what the text actually says? I had to go rewrite the entire memo, because I hadn’t even asked myself that question, and I kind of wish that question got asked more. If the answer is Congress had no authority to limit the president in this way — well, then challenge the statute. Don’t pretend the statute doesn’t mean what it says. Go to the fundamentals. I think Congress probably did have the authority to do what it did — I don’t know all the details of what it actually said. What does the judicial power mean? Can Congress actually tell the courts, “You can’t review this”? Maybe some lower courts that Congress created — but the Supreme Court? I’d kind of doubt that, personally, if the Supreme Court is interpreting and exercising the judicial power vis-à-vis the Constitution, which Congress has no right to render a nullity by removing any conceivable remedy for violating the Constitution. I’m not a fan of the political question doctrine. I’m not a fan of all these ways for courts to pretend the judicial power is in fact smaller than it probably is. That’s what I take away from some of these cases — and what surprises me is that there’s not greater consideration of that, without the lens of “we’ve always done it this way, so it’s okay to ignore the judicial power because we’ve always ignored the judicial power.”

Molly Nixon: Okay. Jeff, anything in the majority or the dissents in your case surprise you?

Jeffrey Schwab: Not really, in the sense that I think a lot of people, including us, sort of figured what the vote would be, and it came out that way. I did mention the Gorsuch concurring opinion — I appreciate the sentiment, which is, look, you’ve got to be principled here. You can’t just decide major questions applies whenever you like the statute and doesn’t apply when you don’t. I think that’s his criticism of the dissenting justices, and I think it’s a really good criticism. And the criticism of the more liberal justices — “it seems like you’re actually using major questions, but you say you’re not, because you didn’t want to apply it in other cases.” I like that a little bit, and I really think, especially now, having principles is important. I think too many people are just like, “Well, who’s in charge? Okay, then my decision is based on that.” I do think many courts don’t do that — a cursory review of Supreme Court justices might make you think that, but if you get into the details, it’s not always that clear, and I think more people ought to be principled about things and worry less about who’s in charge.

Molly Nixon: Carmen, did anything in the majority or the dissent in your case surprise you? And also, maybe I missed it — was there an equal protection part of that case? If you could summarize that quickly and whether the decision there surprised you or not.

Carmen Iguina González: Yes, yes. So I talked primarily about the Doe case, which was focused just on whether the Secretary followed the procedures based purely on the statute — that’s the case concerning the termination of TPS for about 6,000 people from Syria. There’s a separate case that comes on the same path, very preliminary, no administrative record, about the termination of TPS for about 350,000 people from Haiti. That case raises the same claim — you didn’t consult with the State Department, you’re considering criteria you’re not supposed to — but in addition, it has a claim about equal protection. The argument is that the termination of TPS for Haiti in particular is based on racial animus, and the evidence is statements by the president himself and by members of his administration about why they’re targeting Haitians and terminating TPS for Haiti in particular.

What I found surprising, on the jurisdiction question and the statute, is just how little attention the majority dedicated to both the context — looking at how, yes, we looked to the dictionary, but if Congress tells you what a word means by using it a particular way, you usually look to that context — and to precedent. It looks at other cases that had interpreted this exact same language and just dedicates two paragraphs to saying those cases are about something else. Which, yeah, we all agree — if you had determined this statute, we wouldn’t be here — but it still didn’t give the analysis it deserved.

On equal protection, the Court rejects the equal protection challenge as well, and the reasoning is, essentially, that none of the statements pointed to are based on racial animus. It doesn’t list them in the majority opinion — it doesn’t mention what those statements are — it just says they’re not based on racial animus, and that what you’re really telling us is that the administration just doesn’t like TPS, doesn’t like non-citizens, and that’s what’s animating the decision, not racial animus.

That was really striking, and I really appreciated Justice Kagan’s dissent — joined by Justice Sotomayor and Justice Jackson — on all of it, but in particular on equal protection. I’m quoting here: “The evidence they have offered includes statements by the president so repellent and racially inflected that the majority declines to put them in print. Indeed, one measure of the president’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.” And then she lists some of those statements: Haitians “eating the dogs,” “eating the cats,” “eating the pets of the people that live in Springfield, Ohio”; “Haitians are also eating other things too that they’re not supposed to be”; “Haitians in the United States probably have AIDS”; “Haiti is a shithole country, which is filthy, dirty, and disgusting”; “Haitian immigration is like a death wish for our country”; “Haitians, along with some others, are poisoning the blood of our country.” There’s a whole other paragraph listing out statements like that, and I really appreciated her doing it. These are really hard to hear — really painful for members of the Haitian community to be talked about this way and to see it reflected in a Supreme Court opinion. But just speak the truth — these are the statements; explain why they’re not racially motivated, rather than saying, in one sentence, that they’re not. Engage with the actual language. So I appreciated Justice Kagan putting them in print, as painful as they are to read, to really call it out and say, “If you want to say this is not racially animated, actually engage with it.”

Molly Nixon: I did think that was one of the most interesting parts of the oral argument, actually — there were a lot of questions from Alito trying to drill down into what it means to say something’s racially animated, and there were two cases, right — Syrian and—

Carmen Iguina González: Right — and Haitian.

Molly Nixon: Right. I thought that was a really interesting ten or fifteen minutes in the oral argument, listening to it.

Erik Jaffe: What I found interesting about this — look, proving discrimination, animus-based discrimination, is complicated, given our precedent on that, and we’ve tried not to delve into the minds of folks, because these things are unknowable, this and that. But just contrast it with the cases about religious free exercise and religious discrimination, where passing comments that suggest hostility toward religion — look, I do a lot of religious liberty work, and I’m routinely arguing that different statutes and actions by state and federal actors interfere with and discriminate against religion. Could you imagine if you substituted the word “Catholics” for “Haitians” in those statements — if those sentences had been “Catholics do this” and “Catholics do that” — there’s no question in my mind what the result would have been on a First Amendment challenge, that this was discriminatory against religion and its exercise. I’m not saying I know the answer to how far one delves into the minds of decision-makers and how one does that. What I do know is we have a long understanding that decisions motivated by bad reasons — racially discriminatory, religiously discriminatory, viewpoint-discriminatory in the First Amendment context — you have to understand motivation under that theory. And the notion that the judicial power doesn’t let you probe that question, but the executive power insulates it notwithstanding the public statements, is again a problem of the separation-of-powers issue — an overstatement of executive authority and an understatement of judicial power.

Audience Q&A

Molly Nixon: So we’ve got some good questions coming in online, and I’ll remind everyone you can submit questions online via the events webpage, Facebook, YouTube, or on X, with the hashtag CatoSCOTUS. But if anyone in the room has a question, I’d like to start with the people in the room — I think we have microphones available. Yes — great, let’s start in the front row, right here. Good morning.

Audience member (Steven Keet): All right — my name is Steven Keet. Despite the hat, I’m a U.S. citizen. I’m also fairly active in the ACLU. I believe Erik Jaffe was talking about how the Trump administration runs to the Supreme Court frequently. What do we do if, on election day, the Trump administration — as it has not ruled out — sends ICE, sends troops, sends the National Guard, whatever, to the polling stations? What do we do if they go and seize ballot boxes, as Trump has said he regrets not doing when he lost to Joe Biden? And if there then are court opinions ruling against him, and — unlike these recent opinions — he just ignores them? Thank you.

Molly Nixon: Thanks. Erik, we’ll start with you, but if anyone else wants to jump in after, that’d be great.

Erik Jaffe: I guess my answer is: you do run to the courts, you do follow the right processes in our country, and if those processes are ignored and we then have a massive constitutional crisis where the executive branch has decided it doesn’t need to obey the judicial branch — if, at the end of the day, it goes all the way up and the Supreme Court says, “Give back the ballot boxes, don’t touch them,” and they say, “Too bad, so sad” — well, that ceases to be a legal problem anymore. That becomes an existential problem that will get resolved the way past existential problems have gotten resolved: by war, by revolution, by violence. I’m not saying that’s a good thing — I’m not saying I want that. But once law has broken down to that extent, where those in charge of the guns and the troops have stopped obeying those who make and interpret the laws, you’ve given us the nightmare scenario, and I don’t know what we’d do. All I know is that anything I do as a lawyer has ceased to matter. I hope and think it will not come to that — and if I’m wrong, well, I hope no one drops a nuke on us tomorrow either, and if I’m wrong about that too… That’s the best answer I can give, because it’s so far outside the plausible scope of the Constitution that I don’t really know what we’d do.

Carmen Iguina González: If I may, just very quickly on your last point about running to the Supreme Court and what to expect — it is true, they do run to the Supreme Court a lot, and there have been some decisions on that emergency docket that have been deeply disappointing to me. Vasquez Perdomo, permitting racially targeted stops in Los Angeles — we now know, we see the videos, we’ve seen what they were actually doing, but at that time the Court just said, “No, we’re going to stay that injunction.” Deeply disappointing. But that doesn’t mean they win every time, and the Court does step in to put limits on what the administration is doing. They just did that recently with the USPS mail-in ballots decision. They did that with the use of the Alien Enemies Act. So the Court will step in. As disappointed as I am by some of the other decisions, they will step in, and the administration — at least so far — has abided. And places like the ACLU, and lawyers across the country, will continue to go to court to make sure that keeps happening.

Molly Nixon: Carmen, you mentioned the USPS case — there are a couple of questions online touching on the idea of the presumption of regularity. This is the doctrine by which, if the Department of Justice, on behalf of the government, makes a representation in court, the court will generally accept that as true for purposes of the case. There’s been a lot of talk in the media about whether that presumption has shifted. Maybe you could talk about whether you think that played a role in your cases — was there skepticism of the motivations behind the tariffs, for instance, or in immigration, which has been coming up a lot, probably even more so at the district courts, where things are happening quickly? Do you think there’s been a change there, and has it played a role in your cases or others you’ve been watching? Jeff, maybe we’ll start with you.

Jeffrey Schwab: Yeah. Well, the thing about the tariff case is that it really isn’t about the tariffs — there wasn’t really any question about whether tariffs are good policy; I think they aren’t (my justification for that is a Scott Lincicome T‑shirt, which pretty much decides it for me). It’s really about whether the executive has the power. The Trump administration’s position was basically, “We can do whatever we want, you can’t even question us.” There’s a provision in IEEPA that only allows the president to act in “unusual and extraordinary” circumstances, and the administration’s position throughout the litigation was, “We can decide whatever is unusual and extraordinary — you can’t even second-guess it in court.” I thought that was pretty extraordinary.

Molly Nixon: But not unusual — for the government.

Jeffrey Schwab: Not unusual. But I think there was skepticism of that, because taken to its logical conclusion, we’d effectively have a king, since nobody could question the president. So I think there’s some pushback on how far the administration has taken it.

Molly Nixon: Anyone else?

Erik Jaffe: You’ve certainly seen a number of judges question the presumption of regularity. I, of course, wouldn’t have created that presumption at all, because the executive is an agent, and I don’t presume that my agent is obeying my commands — it’s like Reagan’s “trust but verify.” I don’t really trust him that much, but I’m certainly going to verify. There used to be a joke — and I apologize deeply to all the DOJ officials who take their oath seriously to the Constitution and the laws of the United States — but the joke used to be that the SG’s office would lie in the text and tell you the truth in the footnotes: they’d say something outrageous and false, and then in the footnote say, “Well, except for this, this, and this,” which made the initial statement completely ridiculous. Today, I don’t think the footnote exists. That’s not to say every DOJ lawyer is like that — I honestly don’t mean it that way — it’s just that I see it popping up more and more, particularly in high-political-valence cases, where the notion that you have an obligation to the other branches to faithfully execute the laws, to candidly report to a court, conflicts with this notion of absolute executive authority: “you can’t make me do anything.” The norm that has existed, certainly post-Nixon, that the DOJ is an independent force that owes loyalty to the Constitution rather than to the president — that norm may have been more aspiration than reality at times in the past. But I think, with the unitary executive, we should all understand that norm is broken. Nobody believes it anymore — everyone now believes the loyalty of an executive branch official is to the executive themselves, and this notion that your oath is to the Constitution rather than to your president has fallen by the wayside. Not for everyone — you’ve seen some people resign from positions because they were asked to do things contrary to the proper role of a DOJ attorney or prosecutor; I won’t name names, but you can look it up. Anyway, I think that norm is broken. I think some judges are beginning to recognize it. I think litigators litigating against this administration should push back hard on any notion — not simply that this administration doesn’t deserve that kind of deference, but that no administration deserves that kind of deference anymore. There isn’t that presumption at this point. Show me the money. Show me the proof.

Molly Nixon: Carmen, the ACLU litigates a lot in district courts, in immigration and detention cases. What’s your experience with that presumption — was it ever real to begin with? Has it changed? Is it changing only in certain cases with political valence? What are your thoughts?

Carmen Iguina González: I’m glad you asked about the district court cases. On the Doe case, certainly, they didn’t hide it — it was clear they just didn’t like TPS. It wasn’t as though they were saying one thing but meaning another. I think I agree that you’re seeing a lot more judges starting to question the presumption. It comes up a lot in the context of new policies about mandatory detention — who’s subject to detention pending removal proceedings, based on new interpretations of the statute — when you transfer people out of the jurisdiction, if a judge grants habeas and they don’t get released, the justifications the government gives for that. So you are seeing judges starting to question it, and I think it’s partly a change in — you know, sometimes you can tell the attorneys are saying, “This isn’t coming from me, I just can’t give you a different answer.” I think for a lot of our cases, it’s also a change in the agency itself and how it’s perceived — the client that the DOJ attorneys are representing in court. When I started doing this work, very few people knew what immigration detention looked like — how many people were in detention, what a detention center looked like inside, who was subject to mandatory detention. That’s very different today. What people think about when they think about ICE is very different now than it was even just last year. So for our cases, at least for mine, it’s a combination of both a change in the lawyering and a change in the client.

Molly Nixon: I think that’s a really good point — that DOJ lawyers are like any other lawyer standing up before the court with a client, and there’s sometimes a gap between what you get from a client and what the lawyer says to the court.

Jeffrey Schwab: Molly, can I make one quick point on that too? I should mention that, although we won in the Supreme Court, there are still tariffs — because the administration has moved on to other sections that supposedly give it tariff power. One area where this will come up: before the Court of International Trade this month, there’s a case about Section 301 tariffs. The administration says it’s imposing tariffs under Section 301 because other countries haven’t done a great job of stopping the importation of forced-labor inputs into their own countries, and that affects U.S. commerce — apparently ninety-nine point four percent of all our imports come from those countries, and therefore the president imposed ten-to-twelve-and-a-half-percent tariffs. Basically, he’s doing the same thing he did under IEEPA, but under Section 301, under the pretext of forced labor inputs. The interesting question will be whether the Court of International Trade will actually defer to the administration on whether that was actually their motivation, or whether they’re just using a different statute to do what they wanted to do under IEEPA. There’s not great precedent in the Federal Circuit on that, so it’ll be interesting to see if the precedent changes, in that case or another one.

Molly Nixon: I think we have time for at least one more question in the room. And I utterly failed in my moderator duty earlier, so I should say: please speak clearly and directly into the microphone, announce your name and affiliation, and make sure all questions are asked in the form of a question. I see one hand back there.

Audience member (Matt Bowman): Hello — Matt Bowman, with Alliance Defending Freedom. I wonder if the panel could compare the outcome in Mullen with the outcome in Cook. We seem to have had a presidential determination where, in one case, the court said “not reviewable,” and in the other case, the court said there was some review available and remanded. Cook is the case — some people in this room are probably familiar with it as the Slaughter decision — where the president has the constitutional authority to remove executive branch actors regardless of whether Congress puts provisions in place to protect them. In Cook, for the Federal Reserve, they said there’s a different historical tradition, and that the for-cause removal provision can stand up against constitutional scrutiny. Does anyone have any thoughts on that question?

Erik Jaffe: I have a bit of a thought, which goes back to the theme I’ve been beating: I don’t know if the answers are right or wrong — I haven’t followed these cases closely enough to go into the weeds. But what I do know is that the answer to those questions lies in what we correctly understand to be the scope of the executive power and the scope of the legislative power, and whether the notion that the executive is obliged to faithfully execute the laws gives Congress some control over what it’s allowed to execute and how. I don’t think there are enough people asking that question as an originalist matter, as opposed to just waving their hands and pointing to precedent saying the president could do whatever he wants. I’m sort of a student of Justice Thomas — precedent doesn’t move me as much as it moves other folks. I’d like to know the right answer first, and then I’ll answer the precedent question. I see a lot of “well, we did it this way for a long time” going on, and I’m just not sure that’s the right question.

Carmen Iguina González: I would say the issues are quite different — in Mullen, the question is about what the statute means and its scope, and how that’s informed by administrative law, versus in Cook, which is more about a line of precedent and historical practice. But I agree that the theme that unifies it is the scope of executive power, and I think the answer is — as disappointing as the outcome was in Mullen — that the Court is willing to set some limits and say there are lines that have to be respected, not only in the cases my fellow panelists have talked about, but in other cases this term.

Molly Nixon: That’s an amazing answer that got us right to the end of the countdown. So — please, please thank our panelists for joining us today.

This transcript was generated using AI automation and may contain minor formatting or transcription errors. Please refer to the original audio to verify specific quotes or context.

Panel II: Criminal Justice

Cato Institute — 25th Annual Constitution Day Conference

Panelists:

• Mike Fox, Legal Fellow, Cato Institute
• John Wrench, Assistant Director of the Center for Judicial Engagement, Institute for Justice
• Jonathan Wroblewski, Lecturer on Law, Harvard Law School

Moderated by Laura Bondank-Harmon, Manager of Legal Programs and Managing Editor of the Cato Supreme Court Review, Cato Institute

Panel Introduction

Laura Bondank-Harmon: Thank you all for joining us today, and thank you to our panelists for being here and participating in today’s conversation. Before I introduce our esteemed panelists, I want to let the audience know that we’ll have time at the end for audience Q&A, both in person and online, so start thinking about your questions.

This panel, as you can probably tell from the title, is about criminal justice. Last term, the Supreme Court ran the gamut on cases regarding the rights of criminal defendants. It decided cases implicating police search authority, common plea bargaining practices, and the government’s power to prosecute a marijuana user for owning a firearm. Our panelists here will discuss those three cases today.

First, I’d like to introduce the person directly to my right, John Wrench. John is Assistant Director of the Center for Judicial Engagement at the Institute for Justice. His work focuses on educating the public about the role of courts in enforcing constitutional limits on government. His Fourth Amendment scholarship examines the relationship between history and modern doctrine, and his article, “The Original Meaning of ‘Searches,’ ” is forthcoming in the University of Pennsylvania Journal of Constitutional Law. Wrench was counsel of record on IJ’s amicus brief supporting the petitioner in Chatrie v. United States. Previously, Wrench spent five years litigating constitutional cases at IJ, including a challenge under the Iowa Constitution to suspicionless rental home inspections. His writing has appeared in SCOTUSblog and The Dispatch, and he hosts IJ’s Unpublished Opinions podcast. Wrench received his JD from Case Western Reserve School of Law.

Next is Jonathan Wroblewski. He is a lecturer at Harvard Law School and directs its Semester in Washington program. From 2008 to 2024, he served as Director of the Office of Policy and Legislation in the Criminal Division of the Department of Justice. In that capacity, he oversaw a team of attorneys and policy experts in developing and evaluating national crime, sentencing, and corrections policy. He has also served on the U.S. Sentencing Commission, the Judicial Conference of the United States’ Advisory Committee on Criminal Rules, various other policy boards, and as Acting Assistant Attorney General for the Office of Legal Policy. He began his legal career as a public defender, then later served as a prosecutor for the Department of Justice’s Civil Rights Division. He has taught as an adjunct professor at George Washington and George Mason law schools, and he manages the Sentencing Matters Substack and serves as co-managing editor of the Federal Sentencing Reporter.

And last but not least is Mike Fox. Mike is a legal fellow in the Cato Institute’s Project on Criminal Justice. His areas of interest include the role of juries, overcriminalization, police accountability, and coercive plea bargaining. Before joining Cato, Fox served as a Colorado public defender and worked for the Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Government Operations and Border Management. He received his BS in political science from Northeastern University and his JD from Suffolk University Law School.

Welcome, you guys, and thank you again for being here. Now, John, I’d like to start with you — you’re here to talk about the Supreme Court’s decision in Chatrie v. United States.

Chatrie v. United States — Geofence Warrants

John Wrench: Yeah, so thanks, Laura, and thanks to Cato Institute. It’s great to be here to celebrate Constitution Day. I’m going to be discussing the Court’s decision in Chatrie. Chatrie was a significant Fourth Amendment decision that came down in the last couple days of the Court’s term, and the question there was whether police officers violated the Fourth Amendment by accessing, through a geofence warrant, a Google user’s location history information. There’s a lot packed into that, and I’ll touch on it as I dig into the case. I’ve written a piece in connection with this that’s in the Cato Supreme Court Review — if anyone’s interested, I go into some of the nitty-gritty there in more detail. It’s titled “Chatrie and the Roberts Court’s New Cats.”

So Chatrie arose out of a 2019 robbery of a credit union in Midlothian, Virginia. A guy walked in, brandished a firearm, and walked out with a little bit less than $200,000. Detectives hit a dead end after a few weeks, but they noticed there was some video surveillance footage outside the credit union that appeared to show the man talking on a cell phone as he walked up. So they thought, “We’ll apply for a geofence warrant.” A geofence warrant is a unique kind of warrant designed to compel companies like Google to produce their users’ location history information.

A little bit about what Google location history is: it’s an optional service Google users can activate — you have to opt in on your device — and once you do, it tracks your movements about every two minutes and places you within about 20 meters of the device. Google users could access their own location history to look it up and review it — for various reasons, like “I went to a restaurant, I want to see what restaurant that was, I forgot the name,” things like that. Once activated, though, everybody’s location history information was stored, at the time (until about July of 2025), in a centralized database on Google’s servers called SensorVault. SensorVault contained every user’s location history information — so you can see why a detective might be keen on accessing a centralized, searchable database containing hundreds of millions of users’ precise location history information. And that’s exactly what geofence warrants were designed to do.

The thing with geofence warrants is they have a multi-step process that’s quite unusual for a warrant. Law enforcement officers started serving Google with geofence warrants; Google was the only company known to respond to them, and as they started receiving them, Google worked with law enforcement to create a three-step process. I won’t go into too much detail on the steps, but here’s what you need to know: the warrant in Chatrie was based on this three-step template. Essentially, law enforcement draws a circle around where the crime occurred — in this case centered on the credit union. The circle, the “geofence,” can be different sizes; this one encompassed the credit union, a nearby church, its parking lot, and a nearby wooded area. The multiple steps of the warrant compel Google to produce increasingly identifying information. At step one, officers get every device that fell within the geofence during a particular date and time — so you’re starting broad and narrowing from there to identify a suspect. In Chatrie, the geofence warrant covered half an hour before the robbery and half an hour after; nineteen devices fell within it, and at that first step, the information is anonymized. At step two, the officer has discretion — which might sound strange — to pick through the devices that came back at step one and ask for more information on some of them; here, they got more location information for nine devices. At step three, officers can compel Google to produce identifying information for a further subset of users — in Chatrie’s case, three different users whose names were revealed, one of whom was Okello Chatrie. He was charged with robbery and related firearms offenses and entered a conditional guilty plea.

Just to pause there — because you’re starting from a place and capturing everybody in it, if you were sitting in that nearby church, or in the parking lot, you were swept up in this investigation, and your location history was handed to law enforcement simply because you were in a particular place at a particular time.

So Chatrie argued that accessing his location history information violated his Fourth Amendment rights, in essentially three layers. First, that he has a constitutionally protected interest in his location history — under two theories, a property interest in it, and a reasonable expectation of privacy in it. Second, that because the government needed a warrant, and this warrant lacked probable cause and particularity, the warrant was invalid under the Fourth Amendment. And third, that the evidence obtained through it should be suppressed under the exclusionary rule.

I won’t trace Chatrie’s full path to the Supreme Court, though it’s extremely interesting and I’d encourage you to look at it — it was not clean, with lots of different rationales along the way. But I’d note that his case eventually reached the Fourth Circuit, which went en banc — meaning, for the non-lawyers, instead of being heard by a three-judge panel, it was heard by all the judges on that circuit — and the Fourth Circuit split seven to seven on whether accessing location history constituted a Fourth Amendment search. That split was largely due to disagreement over how to interpret the Supreme Court’s 2018 decision in Carpenter.

Carpenter looms large in the background of what the Supreme Court will ultimately say in Chatrie. In Carpenter, in 2018, the Court had held that people have a reasonable expectation of privacy in the whole of their physical movements, and that the government had invaded that interest by accessing seven days’ worth of historical cell-site location information — a different kind of cell phone location data. The Court in Carpenter also declined to apply the “third-party doctrine,” which, as a general rule, means you lose an expectation of privacy whenever you expose information to a third party — a bank, a phone company, or, the government would later argue in Chatrie, Google. Carpenter was a big deal, but it also left some things open. The Court called the decision “very narrow” and left open whether accessing less than seven days of cell phone location history would still implicate the Amendment — creating a bit of a puzzle: how many grains of sand does it take before you have a pile of sand? People came to call this the “mosaic theory,” which is very confusing, and Carpenter left it open without resolving it. The other thing Carpenter left open is what happens when someone takes an affirmative act — like activating a service — that results in sharing that information. Chatrie raised both of those problems.

The Court granted review and limited it to one of the questions presented: whether executing the warrant violated the Fourth Amendment. They didn’t take up the question of whether the exclusionary rule applies, which made it a bit of a cleaner case. The Court answers part of that question in its decision — whether accessing his location history information was a Fourth Amendment search — but remands to the Fourth Circuit the question of whether this particular warrant violated the Fourth Amendment.

The majority opinion is authored by Justice Elena Kagan and joined by Chief Justice Roberts and Justices Kavanaugh, Sotomayor, and Jackson — five votes for the rationale — although Justice Gorsuch files a concurrence in the judgment: he agrees with the outcome but for different reasons.

I think there are three big takeaways from Chatrie. It’s a deceptively simple decision — the Court presents it as just an application of Carpenter, but I think there’s much more going on than that.

The first big takeaway is methodological. Before the Court even gets to the Fourth Amendment analysis, it explains that it will apply Katz’s “reasonable expectation of privacy” analysis to determine whether Chatrie had a constitutionally protected interest in his location history. What’s important here is subtle — it’s something that first appeared in Carpenter eight years ago: in describing how it determines whether someone has a reasonable expectation of privacy, the Court in Carpenter, and now again in Chatrie, says, “We are going to look to founding-era principles that have always guided that analysis” — principles the Court describes as “protecting the privacies of life against arbitrary power” and “putting obstacles in the way of a too-permeating police surveillance.” The Court then points to a kind of growing canon of cases illustrating that approach in practice: Kyllo, a case about thermal imaging; Riley, which is actually not a reasonable-expectation-of-privacy case, but a different area of Fourth Amendment doctrine; and Chatrie adds Carpenter to that list. I think the interesting thing about the methodology is that the Court points to these cases as standing for the idea that it is confronting precedents and doctrine containing rationales the Court has declined to mechanically apply to new situations, because mechanically applying them would conflict with these founding-era principles it says are infused into the reasonable-expectation-of-privacy test. I find a lot of that laudable. I also think that when the Court says, in a footnote, that it’s been “faithfully applying Katz” for some sixty years, that’s maybe a little too clean. I think what’s actually going on is that the Court is, in a subtle but potentially seismic way, giving a slightly different account of how courts should determine whether someone has a reasonable expectation of privacy — nudging away from what’s often been criticized as an open-ended, subjective balancing test used to strike some perfect balance between constitutional rights and the needs of the police, toward something more like how the Court handles constitutional adjudication in other contexts: figuring out what your constitutional right is, without treating it as the Court’s job to determine whether that right makes the government’s job harder.

The second takeaway, which influences the rest of the opinion and I think will have a major impact on doctrine, is in how the Court answers what Chatrie has a reasonable expectation of privacy in. Instead of saying, as in Carpenter, “You have a reasonable expectation of privacy in the whole of your movements,” which seven days of CSLI invades, the Court says Chatrie has a reasonable expectation of privacy in location history information as a category. That’s a big deal, because it means that whether you accessed a minute of location history, or eighteen minutes, or two hours, or seven days is irrelevant — location history is protected by the Fourth Amendment as a category. This is a pretty big shift from how Carpenter described the interest, and it helps us understand Carpenter in retrospect too — it makes Carpenter more understandable as actually being a case about CSLI being protected as a category of information. One of the government’s main arguments was that accessing only two hours of location history didn’t rise to the level of “the whole of your physical movements” — but once you’ve defined the protected interest as being in the category of location history, it doesn’t matter how much you accessed; you needed a warrant in the first place. The Court isn’t playing a durational line-drawing game — was it a minute, is a minute constitutionally relevant, is ten minutes, is an hour? It says that’s not the question; the question is whether you have a protected interest in that kind of information. That will have a significant impact, especially on the fallout from Carpenter, where courts and litigants have been puzzling over what to make of it.

The third and final thing is how the Court deals with the third-party doctrine — the idea that what you expose to a third party, you lose a reasonable expectation of privacy in — and that’s quite significant. You might ask what’s left of the third-party doctrine after Chatrie, because the Court’s rationale isn’t “well, this information was automatically generated,” which was one of the rationales in Carpenter. Instead the Court says, essentially, “Look, it’s a phone, it has apps on it, I want to use the service, so I activated it.” Does that in itself provide some kind of knowing, voluntary consent that Google — let alone the government — is going to look through all of your information? The Court is operating from what a reasonable user believes they’re doing, and essentially saying: don’t overread what someone is doing by activating an app or engaging in a commercial transaction with a business. Often it’s for a limited purpose, and it’s certainly not someone surrendering all of their location history, potentially for years, to the government for any purpose. It’ll be interesting to see what’s left of the third-party doctrine after that.

And then, just in closing — I think one of the most interesting things about Chatrie, and really Chatrie and Carpenter together, if you zoom out, is that these cases give you an example of the Court thinking about the Fourth Amendment maybe a little more as it’s written — some might think that ironic if you don’t like the Katz test — thinking of the idea that the Fourth Amendment protects “the right of the people to be secure,” which is not limited to criminal investigations. It’s easy to think of Fourth Amendment cases as all being about motions to suppress, since that’s how most of them are litigated. But these cases draw you out of that, and I think what they show is that, especially in an era of mass surveillance, the Court is dealing with surveillance techniques that threaten the security of ordinary people going about their day — sitting at church, next to a credit union, or things like that. I think the Court is increasingly concerned that many of the decisions that predate the Roberts Court, if extended, are a threat to that right to be secure. My piece explores a lot of this in more depth, but I think the Court is going to keep exploring it over the next several years.

Laura Bondank-Harmon: Thank you, John. Now, Jonathan — we just heard a lot about what the police are allowed to do during the investigation part of a criminal case. But what happens after the defendant’s charged? How much power does the government have, especially in terms of something like plea bargaining? Can you tell us a little bit about what the court said?

Hunter v. United States — Plea Bargaining and Appeal Waivers

Jonathan Wroblewski: Yeah, I’m thrilled to be here, and happy to do that. But let me say first — thank you, Laura.

Laura Bondank-Harmon: Oh, of course.

Jonathan Wroblewski: And thank you to everyone at Cato for inviting me to be part of this conference, and to write for the Review — it’s a genuine honor.

I’m going to talk about a case called Hunter v. United States. It was decided in mid-June by the Supreme Court, eight to one. That looks like a pretty simple, straightforward, nearly unanimous case — I think it’s much more complicated than that. The folks at SCOTUSblog and lots of other commentators see this as, some have said, the most important criminal case of the term. Even they would say that’s not because of what was actually decided, but for what it tells us about what’s likely to happen going forward with the entire criminal justice process. Candidly, I’m not so sure it’s all that important, and I’m not so sure what these commentators say will happen will actually come to fruition — I’ll explain why over the next five or ten minutes. But first, a little about the case.

It involves a man named Munson Hunter, charged in the Southern District of Texas — Houston, which runs from Houston to Brownsville. The case itself is quite ordinary — nothing unusual about charging a man with fraud. He was charged with ten counts of fraud. Also not unusual: when prosecutors bring charges in the federal system, they rarely bring just one count — they’re always looking for more, since ten counts sounds a lot worse than one. There was one scheme Mr. Hunter was involved with, but they charged him with ten counts of bank and wire fraud. And, also not unusual, Mr. Hunter agreed to plead guilty. For those who don’t know much about the federal system: almost everyone pleads guilty. About sixty-five thousand people are charged with felonies and Class A misdemeanors in the federal system every year, and ninety-seven percent of them plead guilty. There are very few trials — a lot of people justify the plea bargaining process because we can’t have too many trials. In fiscal year 2025, there were a total of about fifteen hundred trials in the federal system. To give you a sense of what that means: there are around a thousand federal district court judges, active and senior. So every judge tried about one or two cases a year — not a month, not a week, a year. Our system is mostly about plea bargaining.

Mr. Hunter pled guilty, and there was a plea agreement — a typical one: “We will drop nine of the ten charges if you plead guilty to one of those charges.” Again, not unusual, and it included something called an appeal waiver. Part of the appeal waiver makes a lot of sense, and part of it is controversial — that’s what the Supreme Court ultimately took up. What’s not controversial: he’s admitting guilt, so he’s saying “I’m not going to file an appeal about my conviction.” That’s uncontroversial to me. But the appeal waiver also said he wouldn’t appeal anything related to his sentence. Remember, the guilty plea happens before the sentence — you don’t know what’s going to happen at sentencing, and you agree to give up your right to appeal it anyway. In years past that wouldn’t have been a big deal, because there wasn’t much law around sentencing. But over the last forty years, there’s now a lot of law around sentencing — the Constitution, of course, and it was actually involved in Mr. Hunter’s case; there’s the Sentencing Reform Act; the First Step Act; the Federal Sentencing Guidelines, which, if you haven’t seen them, run about 600 pages full of algorithms about criminal history and offense severity. There’s a lot of law and a lot of complexity at the sentencing phase. And Mr. Hunter agreed, again as part of a usual plea agreement, not to appeal what happened at sentencing.

But something happened at sentencing that he wasn’t happy with. He was sentenced to prison — again, very typical; 80 to 85 percent of federal defendants are sentenced to prison. But for those released from prison, you’re typically placed on a term of “supervised release” — you’re supervised by a probation officer, under conditions meant to help you behave, avoid trouble, and reintegrate into the community. When the judge was setting those conditions, he asked the probation officer what they should be. It turned out Mr. Hunter had a history with anxiety and depression — not unusual — and the probation officer noted that sometimes he doesn’t like to take his medication. So the probation officer, wanting things to go smoothly and wanting Mr. Hunter to get his treatment, asked the judge to order him to take his medication. The judge did. That didn’t sit well with Mr. Hunter — he objected vigorously at sentencing, the judge imposed the condition anyway, and he appealed to the Fifth Circuit.

The Fifth Circuit disposed of the case rather easily, with a flip of the hand: “Look, you promised you wouldn’t appeal — I’m holding you to the terms of your agreement. You can’t appeal.” Mr. Hunter said, “But it was an unconstitutional condition — I have a right to bodily integrity, a judge can’t force me to take medication.” The Fifth Circuit said, “I don’t care. Even if it was unconstitutional, the most important principle is that you agreed, and we’re going to hold you to your agreement.”

So Mr. Hunter took the case to the Supreme Court, which decided, eight to one, that the Fifth Circuit was wrong — not wrong that the condition was unconstitutional, but wrong that contract terms are the only thing that determines whether an appeal waiver will be enforced. Justice Kagan, writing for eight justices, said the courts themselves have an interest in whether to enforce an appeal waiver and in whether a case ultimately gets decided by an appellate court. Only Justice Thomas disagreed — he agreed with the Fifth Circuit: you made an agreement, there’s a contract, we have to abide by its terms. The other eight said no, there are other principles involved, and Justice Kagan wrote around the principle that the integrity of the courts — which are involved in the plea process from beginning to end — matters.

But then the decision took an interesting turn. Even though the integrity of the courts is at stake in deciding whether to enforce an appeal waiver, Justice Kagan said not every illegal sentence should cause the waiver to give way — only, in her terms, a “miscarriage of justice.” Which of course begs the question: what is a miscarriage of justice? She said, on behalf of those eight justices, that it’s not mere illegality — an illegal sentence doesn’t necessarily equate to a miscarriage of justice. What is one, then? We don’t know — it’s a very murky line. Is Mr. Hunter’s case one? The Court didn’t decide that either; it sent the case back to the Fifth Circuit.

So — pretty straightforward, kind of murky line, not particularly interesting on its face. Why do these commentators think it’s such an important case? Because of a concurring opinion by Justice Gorsuch, which is a must-read and, I’d argue, the most important part of the Court’s decision. He opens with a sentence I think frames not just the debate over appeal waivers but lots of other issues around plea bargaining and how our criminal justice process has moved: “In our times, the jury trial has given way to a conveyor belt of plea bargaining” — and a lot of the responsibility for that, he says, lies with the Supreme Court. From there, and through the rest of the opinion — which traces the history of plea bargaining, and the fact that, applying originalist principles, plea bargaining was unheard of at the founding and is now basically the entire federal criminal justice system and large parts of state systems — he points to all kinds of concerning things about the plea process and criminal justice practice more generally. From that, a lot of commentators say, “Okay, we’re going to really look at some of the fundamental aspects of the criminal justice process.”

Now, the reason I’m a little more skeptical is that he only got two other justices to join his concurrence — Justice Sotomayor and Justice Jackson. There was another concurring opinion by Justices Kavanaugh, Alito, and Barrett, who basically say, in just a few sentences, “We just need to react to Justice Gorsuch — okay, the opinion is narrow, it should remain narrow, we don’t think there are many cases that are going to meet this miscarriage-of-justice standard, calm down everybody.” So that’s three justices. Justice Kagan has the majority opinion; Chief Justice Roberts doesn’t write separately; Justice Thomas disagrees with the decision altogether. So really we have three justices very troubled by how criminal practice has developed — the “conveyor belt of pleas,” as Justice Gorsuch put it — and, at least in my view, three, or really four if you include Justice Thomas, who are not particularly concerned. And then there’s Justice Kagan and Chief Justice Roberts, where we don’t know what’s going to happen.

So it’s possible this will be the beginning of a real reexamination of criminal justice practice and plea bargaining — but it’s possible it won’t be. Here’s a little reason why I think it won’t be: Mr. Hunter’s case was decided in June; we’re sitting here in September. In those few months, the case went back to the Fifth Circuit, and within one month — by the end of July — the Fifth Circuit had already decisively ruled that what happened to Mr. Hunter, and that supervision condition the judge imposed over his objection, was not a miscarriage of justice. They disposed of it quickly. And there have been other cases decided since Hunter came down saying the same thing. I think it’s likely there will be relatively few cases that meet that standard, unless a case goes back up and that murky line becomes more defined and more inclusive, as Justice Gorsuch, Sotomayor, and Jackson would suggest.

Together with Lucian Dervan — a professor at Belmont University College of Law in Nashville, Tennessee — I wrote an article in the Review, and we make a number of points, a couple of which I want to raise now, because I think there’s a role for another entity beyond the courts in helping define what this miscarriage-of-justice standard really means: the U.S. Sentencing Commission. The Sentencing Reform Act gave the Commission a role in reviewing court decisions. The Supreme Court, in a very famous case called Booker v. United States — which found the sentencing guidelines unconstitutional as they were being applied — said the Commission has a very important role in reviewing appellate court decisions. So we argue in the Review that the Sentencing Commission should go through the lower courts’ decisions on what constitutes a miscarriage of justice, and should itself weigh in through its guidelines and policies about what it believes qualifies. In the opinion itself, Justice Kagan says clearly that the federal sentencing system is very complicated, with a lot of factors, and — this says a lot, and not a lot of very good things, about the system — that errors are “common” and “standard fare,” and don’t meet the miscarriage-of-justice standard very often. I think that’s an incredible statement about what she believes about the federal sentencing system. But which errors should or might meet that standard is something I think the Sentencing Commission should weigh in on. We also discuss in the article the history and research around plea bargaining generally, which we think is important as the lower courts — following up on Hunter — and then the courts more generally, review plea bargaining practices against both constitutional and statutory challenges.

So I think it’s an important case. I’m not sure it’s quite as important as SCOTUSblog and others think — but we’ll see, because the litigation is already happening in the lower courts over what meets the miscarriage-of-justice test. Thank you so much again, Laura, for having me be part of this.

Laura Bondank-Harmon: Thank you. That was extremely informative. Now, switching gears a little bit, Mike — your case is a little different. You’re covering United States v. Hemani, which is a case involving a recreational marijuana user and his ability to own a firearm without being prosecuted. Can you tell us a little bit about that case?

United States v. Hemani — Drug Use and the Second Amendment

Mike Fox: Yeah, certainly. So — this is guns and drugs. It’s hard to imagine a more libertarian-coded topic to discuss here.

Let’s start with the statute. There’s a statute called 922(g), which has numerous provisions prohibiting certain segments of people from owning firearms. One of them, 922(g)(3) — which I’ll read verbatim — prohibits “an unlawful user of, or one addicted to, a controlled substance” from possessing firearms. There’s a lot of words there that we don’t really know the meaning of, and that’s part of the problem with this case.

The case started in Dallas, Texas, where a gentleman named Ali Hemani was being investigated by the feds, who alleged he and his family were involved in some terrorism-related activity. I don’t know what happened with that, but it clearly failed, because the best thing they could get him on was drug user in possession of a firearm. Mr. Hemani was super cooperative — he straight up admitted to federal investigators that he had a nine-millimeter handgun and that he used marijuana about every other day. They decided to charge him under the statute. He never actually went to trial — before trial, his attorney filed a motion to dismiss the indictment, arguing it violated the Second Amendment. The district judge agreed, and dismissed it. Occasionally the Fifth Circuit does get things right — this is one of those cases; they affirmed the dismissal.

Eventually the case reached the Supreme Court, and it’s difficult to envision a nine-zero ruling by a Court everyone likes to say is super political, in furtherance of Second Amendment rights — but that’s precisely what happened. The Court ruled that the federal firearms ban in Section 922(g)(3) is unconstitutionally overbroad, vague, and ahistorical, and affirmed that the Second Amendment right cannot be forfeited on account of someone simply using recreational marijuana. The government can regulate active impairment and immediate dangerousness, but it can’t use ambiguous, status-based categories to disarm people in their own homes. That’s an important distinction, because Mr. Hemani wasn’t using the firearm — he wasn’t even alleged to have touched it. It was simply in his home. It’s not as though he was going to the range while high, or doing anything involving impairment and firearms.

Rewind a couple of years, to 2024: the Supreme Court decided a case called Rahimi, which was a bit different. The issue there was whether Section 922(g)(8), which applies to people with active restraining orders — typically arising from domestic violence cases — could be used to disarm them. The Court held that it could, but there’s a key distinction: there was a judicial finding in those cases that the person was a danger to their intimate partner, and that’s why the restraining order was issued and why they could be disarmed. A judge made that finding. Whereas under 922(g)(3), the government just alleges, “You used drugs at some point” — so, “you can never own a firearm until you stop.” That’s logically not similar to Rahimi at all.

And in 2022, the Supreme Court decided Bruen, invalidating New York’s licensing requirement that you show “proper cause” to carry a concealed handgun. In striking that down, the Court also created a framework analyzing “text, history, and tradition” — whether the regulation at issue aligns with the nation’s historical regulation of firearms. This is where things get interesting in Hemani: the government relied on “habitual drunkard” statutes — note, habitual drunkard, not habitual drinker; there’s a substantial difference. Those statutes, at the founding and afterward, weren’t meant to go after people who’d come home from work (or the farm) and have a glass of whiskey — they targeted people who couldn’t stand up, couldn’t function in society, and were a danger to themselves, their families, and their finances. A habitual drinker is very different — if I went home tonight and had a drink, and again tomorrow night, under the government’s interpretation of the statute I’d be a “habitual drinker,” barred from owning firearms until I stopped drinking — provided, of course, that alcohol were illegal, which it was not at the founding.

And if you look at today: marijuana is still on Schedule I, still federally banned, but we’re living in a country where 24 states have legalized recreational marijuana in some form and 40 have some type of medicinal marijuana scheme.

Laura Bondank-Harmon: Mike, I actually just want to point something out — I do think the Supreme Court mentioned in their opinion that it was actually downgraded from Schedule I to Schedule III.

Mike Fox: That’s right. Yes — yeah, it was recently downgraded, so it’s still federally prohibited, but under a different section.

So, arguably, this decision — if it had gone the other way — would have swept in millions of Americans who simply, say, once a year — because the federal regulation defining “user” says it can be just one time in a calendar year — smoke marijuana once, on 4/20, and then simply possessing a firearm in their home (not while smoking) would be a federal crime. That’s categorically insane. Justice Gorsuch’s majority opinion explains how these drunkard statutes don’t align with the historical tradition of regulating drunkards at and after the founding, as applied to Mr. Hemani.

I also want to talk a bit about Justice Thomas’s concurrence, which is of particular interest to me as someone really interested in the doctrine of enumerated powers — the idea that the federal government has finite lawmaking authority; it doesn’t have plenary, general police powers like state governments do, and can’t just regulate anything at any time. The government here never alleged that Mr. Hemani sold the gun or moved it across state lines — it was just in his home; I don’t think they even knew or cared where it came from, since that wasn’t the issue before the Court. But Justice Thomas’s concurrence raises the point that federal power to regulate firearms under the Commerce Clause depends on the gun having, at some point, been offered for sale or moved across state lines — something that didn’t actually involve Mr. Hemani at all. That wasn’t the issue before the Court, but I found it really interesting, with potential future implications.

Another thing worth discussing is a different provision, 922(g)(1). That statute isn’t before the Court — I hope one day it will be, and I wonder if, after Hemani, the impetus for cert might be higher; my colleague Matt Cavanaugh has filed amicus briefs urging the Court to take up this issue, and I believe we’ll be filing another one soon. That statute says anyone ever convicted of a crime carrying a year or more in jail — not that they even served a year, just that they could have — is categorically banned for life from owning or possessing firearms. If you think about what the Court said in Hemani — that there has to be some kind of rationale, you can’t just say “this person used drugs at some point, so we’re stripping their Second Amendment right for the rest of their life” — there are largely two ways this could work. One, Congress could make a finding that some particular drug is really detrimental, really impairing, really dangerous — maybe PCP; I’m not a pharmacologist, but I could see that being a valid argument. The other is an individualized determination, like in Rahimi, where a court actually finds the person dangerous and unable to function safely with a firearm. The same, in my view, should apply to 922(g)(1)‘s categorical felon ban. Look — if my felony conviction involved a firearm, say several armed robbery convictions, I think the government has every right to prevent me from owning one. But look at the case of Brian Range in the Third Circuit — which, after the Third Circuit got it right, he’d been convicted of something like food stamp fraud thirty years ago, and was categorically banned for life from owning firearms. Thankfully the Third Circuit said, “This is unconstitutional, we’re not having this.” But there’s a circuit split, and I think, similar to the drug-user question, there has to be an individualized determination for felons too: is this person dangerous because they committed a serious violent crime, and if they’re still dangerous, why are they out? My view of the criminal justice system is: if someone’s dangerous, they should be locked up; if they’re out, they should be out with all their rights restored. Same with drugs — is this someone who smokes a joint every other day and isn’t impaired, or someone in psychosis, high out of their mind, smoking joints at the range? There are distinctions that need to be made, and painting everything with a broad brush, as the Court said in Hemani, doesn’t work — and I hope the same will be true for felon-in-possession cases eventually.

Panel Discussion

Laura Bondank-Harmon: Thank you, Mike. Before I ask some of my questions, I wanted to open up the discussion for you three — do you guys have any comments about the other two cases, or any questions for your fellow panelists?

Jonathan Wroblewski: Can I jump in?

Laura Bondank-Harmon: Yeah, of course.

Jonathan Wroblewski: So I’m very interested in Chatrie and the Court’s seeming reluctance to want to be — or to be seen as — too civil-libertarian. They really go out of their way to say, “We’re not doing anything here, we’re just applying precedent, Katz still applies, nothing to see here.” But at the same time, it seems like they’re doing something really significant, and in some ways doctrinally changing how courts are supposed to analyze Fourth Amendment protections. I’m curious if you see that, and why you think they might be going out of their way to frame it that way.

John Wrench: Yeah, so I think that’s a super interesting question, especially when you hold Carpenter and Chatrie up next to each other. Carpenter, as I mentioned, is self-described as very incremental — “nothing is happening here, maybe a little bit is happening here.” With the third-party doctrine: “no, we’re not overruling it, just making a narrow exception,” and “we’re not really inventing” a reasonable expectation in the whole of your physical movements — there were five justices you could pull together from the Jones opinions who’d said something like that already. So I think there is something going on in Carpenter that’s actually much more cautious. I’ll give it to Justice Alito here, in his Chatrie dissent — I don’t agree with him on the merits, but his view is that the majority is doing quite a lot, especially in Chatrie. So I’d say if Carpenter was self-described as an incremental, minimalist opinion, Chatrie has kind of dropped that mask. You could view Carpenter as a toe in the water, a signal of something to come — a lot of people viewed it, after it was decided, as potentially seismic, or as just this weird, particularly invasive set of facts. In retrospect, I think we can say Carpenter was a beachhead, and Chatrie shows that’s where the Court is going to keep working from, pushing the doctrine forward.

As for why: Chatrie still doesn’t formally overrule any cases, and I think that’s one of the reasons the Court applied Katz instead of doing something more like what Justice Gorsuch’s concurrence suggests — “blow up Katz,” which is what he said the Court should do in his Carpenter dissent, and what Justice Thomas has said before too. Even Justice Alito’s concurrence in Jones acknowledges that Katz is tough to apply, and sometimes it looks like courts are just applying their own intuitions about what’s reasonable. Despite that, the majority in Carpenter and Chatrie keeps applying Katz. Why, when there’s an alternative that could look to text or history, something more tangible? I think part of what’s going on is that if you’re the majority and your priority is “we’d really like to not overrule something unless we have to” — that’s a big one — you can narrow cases like Miller and Smith (the third-party doctrine cases) and Knotts (about tracking a vehicle) down to their facts, instead of treating them as the broad rationales they’ve been read as for decades. So the Court is saying, in effect, “to the extent these cases are problematic when applied to new situations, we can just narrow them down so they aren’t doing damage to the principles we think are at play.” I think the other reason the Court has stuck with Katz, and wants to signal that nothing too new is happening, is that Carpenter applied Katz — and if you want to say you’re basically extending Carpenter, you probably need to rely on the same methodology. If you’re a court that wants to be able to reach as many new surveillance techniques as possible, the majority’s approach is probably better suited to that than Justice Gorsuch’s — not that his approach couldn’t get there, it would just require more work and more cases to nudge the law along. I do think Chatrie is an opinion designed with a lot of new technology looming in the distance — geofence warrants, as such, can’t even be served on Google anymore by the time the Court decides the case — the Court is well aware that technology develops very quickly and can escape judicial review. So I think they wrote a decision that’s very oriented toward the future while still trying to say, “We’re not doing too much that’s new.”

Jonathan Wroblewski: Mm-hmm. Can I just —

Laura Bondank-Harmon: Oh, yeah.

Jonathan Wroblewski: It just strikes me that, since Jones — that was the case where law enforcement put a device on a car to track its location — it seemed like the Court sort of said, “Okay, the expectation-of-privacy thing doesn’t quite work, but we don’t know what to replace it with.” Justice Scalia says trespass; others have said trespass, but that doesn’t quite work either. So they’re not quite sure what to do. The only problem with this sort of doctrinal fuzziness we’ve been in — and it’s not just a few years, it’s been decades — is that these technologies, as you say, keep evolving. Now law enforcement is deploying AI, combining lots of different databases to track people, and it’s clearly freaking out the public — states are taking down Flock cameras everywhere. But how do you apply Fourth Amendment doctrine to AI analysis of a variety of different databases that weren’t connected before, but now miraculously can be, letting you track people and identify things that used to be private? I think that’s part of the problem with this “okay, we’re not quite sure, we’re moving forward” approach. Do you have any reaction to that?

John Wrench: Yeah. So one thing you said, which I think is looming in the background of all this — you could draw this back to Jones, the 2012 case, and say the Court is clearly trying to figure this out, testing ways of dealing with the problem. You could go back even earlier, to Kyllo, a case about using a thermal imager outside a home — a Justice Scalia majority opinion applying Katz, which I believe is the last time he was ever in an opinion applying Katz; I don’t think he joined one applying it again after that. What does he do? He formally applies Katz, but really narrows it, bobs and weaves around precedent — “yeah, these precedents’ rationales don’t really apply here, we have to adapt to new technology.” That’s one approach I discuss in my piece: use Katz to fix Katz-based decisions. Another approach was in Jones — “we’re actually going to circumvent all these decisions and have a parallel test looking at trespass or physical invasion.” And then you have what Justice Gorsuch has been pushing for in Carpenter and Chatrie — using Jones as a building block for something else, looking more at positive law rather than just physical invasions of property.

The reason I think Chatrie is such a big deal methodologically is that the Court has been looking at all these options — Carpenter was a selection of one, or synthesized them into one, using Katz to fix the areas of law it wants to fix — and Chatrie is a big deal because it formalizes a lot of that; it repeats what Carpenter says, it’s built on Carpenter. There are five votes for it, and only one for Justice Gorsuch’s opinion. It makes me wonder whether the next several years of Fourth Amendment doctrine will be the Court incrementally doing that, with Justice Gorsuch on the sideline saying, “You’re kind of doing what I’ve been saying you should do, but you’re maybe not acknowledging it,” which is basically what he said in his Chatrie concurrence.

Laura Bondank-Harmon: Speaking of where the justices fall on these three cases — I think all three are really good examples of interesting breakouts among different justices. Mike, for instance, your case is the only one up here with a unanimous decision, and it was on guns and drugs. And Jonathan, you described a very interesting split, where Gorsuch sided with Sotomayor and Jackson, and the dissenting justices were also an interesting mix. Can you both talk a little about what you think that signals, if anything?

Mike Fox: Yeah, I mean — if you look at the last case, Rahimi, it was eight-one, with just Justice Thomas dissenting, and his rationale was that the surety laws at the founding didn’t align well — in his view — with the ban, under 922(g)(8), on people with active restraining orders owning firearms. Obviously, that’s not the law, since the Court said otherwise. But this case was unanimous, and I think if you look at the framework Bruen adopted, the justices are simply applying the facts of the case to the framework and coming out with an outcome — it’s not hard to do that, and I think you largely see it in these cases. The reason I mentioned Justice Thomas’s concurrence isn’t just because it’s an interest of mine, which it certainly is — I’d go so far as to argue this entire statutory scheme, 922(g), is unconstitutional; it’s not something the federal government has the power to regulate at all. There was no commerce here, let alone interstate commerce, so the idea that the statute could even be sustained is crazy to me. But I think, had that been the issue actually before the Court, the case would have gone the other way, and certainly wouldn’t have been unanimous. So I think the Bruen framework just lets the justices plug the facts into the framework and come out with a conclusion — that’s what they did here.

Jonathan Wroblewski: Maybe one day. To me, what the Hunter opinion, and to some extent Chatrie and the discussion we were just having, bring to light is this notion — which lots of other people have talked about — of the division on the Court between institutionalists and those much more willing to throw things out and start anew, get it right as they see it. You see that in Hunter: Justice Gorsuch, who’s written about the jury trial right many times — and by the way, there’s another jury trial right case coming this term, about whether a twelve-person jury is required under the Constitution — he’s written about the jury right in the civil context, in administrative law, and he’s a passionate believer in it, ready to get to his answer today; he doesn’t need to go about it incrementally. Then you see the institutionalists on the Court much more inclined to say, “Let’s go slowly, one case at a time — we can all agree on a murky line, call it ‘miscarriage of justice,’ leave it to another day to figure out what that means, send it to the lower courts, take little steps.” I think they’re doing the same thing with the Fourth Amendment — “we’re not going to throw out Katz, we’re just making little incremental steps” — even though it’s pretty clear that the technologies we all carry in our pockets, and now AI and the ability to do all kinds of things with databases, really change things in a way that makes it hard to look back to the eighteenth century for answers. So that, to me, is the takeaway — I think those commentators who’ve talked about institutionalists versus the others are right, and I think that’s a lot of what this shows.

Jonathan Wroblewski: Can I ask Mike one question?

Laura Bondank-Harmon: You may ask.

Jonathan Wroblewski: So the thing I’m really interested in is your analysis of 922(g)(1), and what you think the Court should do. In the world I live in — sentencing — a number of academics and scholars have made the point that when the legislature says a particular crime carries a mandatory minimum sentence, that implicates a fundamental right, just like 922(g) does — the right to liberty. These scholars have suggested that sometimes a mandatory minimum will be appropriate, as you said — if you’re convicted of a violent crime, maybe you shouldn’t have a gun; if you’re convicted of fraud, maybe not. If you’re the armed robber, maybe you get the mandatory five years; but if you’re the girlfriend who drove the guy to the bank, maybe you shouldn’t. That kind of individualized analysis of individual cases is really interesting to me, and I’m curious whether you think the Court will actually go that route — suggest it has to be individualized — or take a simpler approach and just get rid of the whole thing because it’s overbroad.

Mike Fox: Well, if they got rid of the whole thing, that would be phenomenal, but I don’t think they’re going to do that. Just to back up, in case people forgot — 922(g)(1), which Jonathan just asked me about, is the categorical ban on anyone who’s a felon, or who was eligible for over a year in jail or prison, from ever owning a firearm. I’d love the Court to strike down the entire statute — maybe even on Commerce Clause grounds, that would be fantastic — but we don’t live in a world where that’s going to happen, or probably not. If they even grant cert — which we don’t know; they’ve rejected this several times, though there’s a circuit split, and I’m wondering if the impetus is higher now in light of Hemani — I think it’d be something like an individualized determination. And going back to the point about juries we were just discussing — I know Matt’s panel is going to talk about Erlinger later today — these are findings that should be made by juries, and juries should be informed of the sentence a defendant faces, and that should factor into whether they convict someone charged with a crime. Look, if I’m going to stick someone up at gunpoint, I think there’s a pretty reasonable argument I shouldn’t be able to own a gun. But say I was sitting in the car with my best friend, who I thought was just going in to get us both a coffee, and it turns out he pulls out a gun — should I really be banned from owning a firearm for the rest of my life because I was charged in relation to that? I don’t think so.

Audience Q&A

Laura Bondank-Harmon: Now we’ll be taking some questions, both from our online audience and our in-person audience. Please speak clearly and directly into the microphone so everyone in the room and online can hear your questions. Announce your name and affiliation, and please make sure all questions are asked in the form of a question. Yes — John Vecchione, we know John.

Audience member (John Vecchione): Thank you. Do you think that Chatrie could either weaken or eliminate the third-party doctrine?

John Wrench: Yeah, some could say, provocatively, that it did. If you go back to what the third-party doctrine is, and take a step back to how the Court treats it, I think Chatrie is good in two different ways. Doctrinally, I think it’s good because it reorients a lot of what the third-party doctrine, if it exists, should even be asking about. I’d encourage you to try this exercise: take the dissents in Miller and Smith, and put them next to the Chatrie majority opinion — I think you’ll see some glimmers of those dissenting opinions. Chatrie doesn’t accept that mere exposure to a third party triggers the doctrine — that you’ve somehow lost your reasonable expectation of privacy just by that exposure. Which means something else is required. And we also know what the Court says is not sufficient: just doing the kinds of things ordinary phone users do — which suggests that if you’re exposing information to a third party for a particular reason a reasonable person would understand, it would be absurd to say you’ve necessarily exposed it to the public, or the government, to be used against you. So I think what we’re seeing is: Carpenter was a narrowing, and Chatrie is an even more significant narrowing, and the open question is what’s left of the doctrine. It’s notable that Miller and Smith are basically recited as the origin of the third-party doctrine, and then never really engaged with again — you don’t see engagement with the actual facts of those cases after they’re mentioned. That makes me wonder whether the Court is setting them aside for execution, so to speak, or whether we’ll see them narrowed to some other circumstance.

There’s a second thing I like about what the Court did with the third-party doctrine. In these cases, it’s often conflated whether you lack a reasonable expectation of privacy because you never had one — it wasn’t your document or information in the first place — versus whether you lost it because you did something with it. I think Chatrie disentangles those a bit more than in the past — the Court, in its third-party doctrine analysis, points back to how it defined the protected interest, treats it as something more like property someone owns, and then separates that from the kinds of things you could do to lose the reasonable expectation of privacy in it. So I think the Court is doing both doctrinal cleanup and some doctrinal hygiene, which is helpful if you’re a lower court or a litigant dealing with these questions. In that sense — I really don’t know. It’s not clear what the third-party doctrine even is anymore, but I’m not sure what’s left of it either.

Jonathan Wroblewski: Can I jump in? I think that’s spot on. I think the Court’s going to do what it usually does, which is: we’re not really changing anything, but they have no choice but to change things, because every one of us has a phone in our pocket, and everything on that phone is sitting in a backup cloud somewhere. We’ve all given everything of ours to somebody else, and it’s sitting somewhere else. So they’re going to have to say — and they are already saying — “no.” It used to be that when you dialed a number on your phone, you gave Verizon the phone number, and that was it — no expectation of privacy in it. Well, not anymore. I just think they’re making the distinction; they’re just doing it slowly, because that’s the pace at which the Supreme Court works.

Laura Bondank-Harmon: Well — and correct me if I’m wrong — the Supreme Court’s never actually applied the third-party doctrine outside of Smith and Miller, have they?

John Wrench: I believe that’s right, because — this is kind of a funny thing about Carpenter and Chatrie — they always look back at Smith and Miller, and, you can read into this too much maybe, but I think it’s funny when the Court says “the so-called third-party doctrine,” as if it hasn’t been interpreted and applied as a doctrine by lower courts for decades and decades. So maybe you shouldn’t read too much into that, but maybe the Court is already, kind of preemptively, distancing itself, saying, “These are two cases about a specific set of facts — they don’t really stand for a doctrine.”

Just one more quick thing: I think if the Court really wanted to signal that it was staying narrow — that it wasn’t maybe getting rid of, or doing something to, the third-party doctrine — I don’t think it would say, as it does, that location history is like other things reasonable people believe they own, like emails or photos. That’s kind of inviting future cases and comparisons, which I’m not sure a court would do if it were really trying to preserve the doctrine to its full extent.

Laura Bondank-Harmon: All right — now, I think we have time for one more very brief question. Sorry for cutting the Q&A short. Anybody? This one — oh, I think — oh, yeah, in the back. Sorry, the camera was blocking you.

Audience member (Vikram): Thank you so much. My name is Vikram, I’m an undergraduate at Georgetown. My question about the Court’s criminal docket this term is about the remedies it granted. It seems like in every case, the Court decided the remedy was as narrow as possible — like in Hemani, they affirmed, they didn’t affirmatively dismiss. In Chatrie, obviously it’s going to be affirmed on remand on good faith —

John Wrench: I wouldn’t say — I wouldn’t say that’s obvious. Well, I think almost every judge except one on the Fourth Circuit ruled on good faith. I mean, I don’t think the good-faith exception is legitimate, but realistically, I think—

Audience member (Vikram): And then, as was said earlier, the Fifth Circuit has already reaffirmed its decision below, and, you know, this term they’ve denied every death penalty case. Do you think that’s like a new trend on the Court, where they’ll just do doctrinal cleaning but not affirmatively grant relief — and should we be worried about that, or is it not really a big deal?

Laura Bondank-Harmon: Okay, that’s a very good question. However, we are running out of time — so, if anyone would like to give a very quick, one-sentence answer.

John Wrench: Okay, I’ll give a two-word answer: faux modesty.

Jonathan Wroblewski: All right, that’s good, because mine was going to be about a case from last term, and it’s going to take too long — so we’re done.

Mike Fox: Yeah — happy to answer, but come find me after.

Laura Bondank-Harmon: Yeah. Okay — well, thank you again, all of you, for being here and contributing to this conversation. We will now take a brief break. Please join us back at 2:30 for our next panel, “Redistricting, Removals, and Speech Restrictions,” moderated by Thomas A. Berry, director of the Robert A. Levy Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review at the Cato Institute.

This transcript was generated using AI automation and may contain minor formatting or transcription errors. Please refer to the original audio to verify specific quotes or context.

Panel III: Redistricting, Removals, and Speech Restrictions

Cato Institute — 25th Annual Constitution Day Conference

Panelists:

• John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
• Christopher M. Kieser, Senior Attorney, Pacific Legal Foundation
• Robert Corn-Revere, Chief Counsel, Foundation for Individual Rights and Expression

Moderated by Thomas A. Berry, Director of the Robert A. Levy Center for Constitutional Studies and Editor in Chief of the Cato Supreme Court Review, Cato Institute

Panel Introduction

Thomas A. Berry: All right. Welcome back, everyone, to our third panel of the day, “Redistricting, Removals, and Speech Restrictions.” I’m Tommy Berry, director of our Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review.

Every year at Constitution Day, we have to divide nine cases into three panels, and some divisions are very obvious — criminal justice, you might have three admin law cases, that type of thing. Usually there’s one panel that gets a little closer to the potpourri — the less obvious connections between the three. I don’t like to call it potpourri; I like to find a more consistent connection. One we obviously found here — all three I could describe with words starting with “R,” so that resonated. But I think there’s also potentially some other connections. All three of these cases are about what might be called politicized, controversial, sometimes even culture-war topics. You have election law — hard to get more literally politicized than that. You have speech related to transgender therapy, so-called conversion therapy — obviously a major culture-war topic. And you have removal — a very political controversy over the president removing an official he disagrees with ideologically.

But I think what’s also potentially consistent across all three is that that’s just the surface-level appearance — when you dig into the reasoning behind these decisions, you see there are actually principles involved that cut both ways, that aren’t just a win for one side of politics or one side of the culture war, but could just as easily have important implications for laws favoring the opposite political party. Indeed, the win for the Trump administration in the removal case came by overruling a decision tied to the FDR administration — the exact opposite political party. So you’ll hear more about those cases from our three distinguished panelists.

Before I briefly introduce them — as always, we’ll be taking questions, not just in the room but also online, so please, if you’re watching online, submit your questions via our events webpage, Facebook, YouTube, or X, using the hashtag #CatoSCOTUS, and questions will be answered following the conversation.

So, briefly: first, to my immediate right, John Vecchione, senior litigation counsel at the New Civil Liberties Alliance, where he represents clients challenging the administrative state. He previously served as president and CEO of Cause of Action Institute, and has practiced at several Washington law firms. Vecchione was counsel of record for the Relentless petitioners in the landmark case Loper Bright v. Raimondo and in Relentless, Inc. v. Department of Commerce. He was also counsel of record for most of the individual respondents in Murthy v. Missouri, concerning social media First Amendment rights. He holds a BA from Hamilton College and a JD from Georgetown University Law Center.

To his right, Christopher Kieser is a senior attorney at Pacific Legal Foundation. He’s challenged regulations requiring employers to allow union organizers onto their private property, state claims to privately owned lakefront property, and admissions policies of K–12 schools that discriminated against Asian American families. Before joining PLF, he clerked for both the U.S. Court of Appeals for the Seventh Circuit and the U.S. District Court for the Middle District of North Carolina. He earned his undergraduate and law degrees from the University of Notre Dame, where he was articles editor for the Notre Dame Law Review.

And finally, Robert Corn-Revere is chief counsel at the Foundation for Individual Rights and Expression. Before joining FIRE, he was a partner at Davis Wright Tremaine and Hogan & Hartson, and served as legal adviser and later chief counsel to FCC Chairman James H. Quello. He’s regularly listed as a leading First Amendment and media law practitioner by legal magazines, and is listed in Washingtonian magazine’s Top Lawyers Hall of Fame for lifetime achievement.

So we’ll go down the line. We’ll start with John, talking about the removal cases.

Trump v. Slaughter — Removal Power

John Vecchione: Sure, I’ll be potpourri for five minutes. I think Slaughter — it’s Trump v. Slaughter — is really what I call a coup de grâce case. It’s a case everybody saw coming. The principle of insulating federal agencies, certainly their principal officers, from being fired by the president had been undermined constantly, starting with Justice Scalia’s dissent in Morrison v. Olson, the independent counsel case. He said, “Look, you can’t have a prosecutor doing all these big things — prosecuting major political cases — not under the control of the president, because that’s an executive function. He has all the executive power, and he has to make sure the laws are faithfully executed. How can he do that if somebody totally outside his control is running around independently?” So that wolf came as a wolf, and it had been — the principle of independence had been salted throughout many agencies over many years, starting really with the FTC, back in the progressive era.

So here’s what happened: there was a case called Myers, back in the ’20s, decided by Chief Justice Taft, who’d been president himself — he knew the president had to be able to fire people, so Myers held that, of course, the president can fire principal officers. A few years go by — not very many, eight or nine — and then Humphrey’s Executor comes along. What happened there? Humphrey was a rabid Republican — like, absolutely rabid; he woke up in the morning and went to the union club and thought all day about being a Republican. FDR fires him. Humphrey says, “No, you can’t fire me — Congress has given me protections, I can only be fired for cause.” Humphrey dies, but his estate carries on the case to determine whether FDR could fire these people — not for any particular reason, just because FDR wanted to. And some of the same justices — the “Four Horsemen” trying to stop the New Deal, trying to contain the president — say, even though Myers had just held otherwise, “Well, it’s a multi-member body, it’s quasi-judicial and quasi-legislative.” Well, what’s it doing in the executive branch? No explanation — nobody ever really said. But they held he could be protected because the body isn’t “really” executive, and Congress has the power to do this.

That set off a chain reaction — Congress now knows it can do this, and starts making multi-member agencies where you can only fire commissioners for cause, staggering their terms so no president can really run the outfit. That starts to be a problem, and people start noticing. So the Supreme Court starts taking it up: in Seila Law, they say no, that principle doesn’t hold — the president can fire that guy. Then in Free Enterprise Fund, an organization under the SEC — well, that’s the executive branch too, so he can fire those officers. Then—

Thomas A. Berry: The CFPB?

John Vecchione: Yeah, the CFPB — that was the culmination of all these agencies with all their acronyms. What they did with it was pull away the multi-member structure entirely, threw every kind of power into this one agency, and put one guy at the head of it — the guy Elizabeth Warren, who sponsored it, wanted running the thing. So what happens? The Supreme Court says, “No, you can’t do this — the president has to be in charge.” They found you couldn’t put removal protections on that guy either.

But still, Humphrey’s was wandering around — Humphrey’s dead, but his ghost is haunting all the agencies, because we still don’t know whether they can be fired or not. So this term, President Trump fires Slaughter, and he fires Bedoya — I think favorably to all of us, Bedoya decides he wants to go into the private sector, so he’s out of the case. We get a case called Slaughter. And Slaughter absolutely eliminates any protection against the president firing officers at these agencies, for the reasons I’ve already explained: the president has to take care that the laws are faithfully executed, and he has all the executive power. The only thing the Court makes sure everybody knows — just like in Loper Bright, where they said, “Chevron is overruled” — that’s a good sentence — here they say, “If anything is left of Humphrey’s Executor, it is hereby overruled.” No bones about it.

So Slaughter is an important case, but it doesn’t give the president any more power. I think it reaffirms the power he already had, by the decision of 1789 — George Washington, sure, advice and consent of the Senate to confirm, but you can fire him. I think we’ve returned to that, and it’s only a personnel matter — not about the power of the presidency otherwise.

Thomas A. Berry: Excellent, and under ten minutes. All right, Chris, you’ll be talking about the redistricting case.

Louisiana v. Callais — Voting Rights and Redistricting

Christopher M. Kieser: Yeah, thanks. So I’m here to talk about Louisiana v. Callais. Everybody today always says Congress doesn’t do anything, but the Voting Rights Act was one of the most consequential pieces of legislation Congress ever passed. In 1965, after a hundred years of the Fifteenth Amendment not being enforced, Congress finally decided there would be some teeth to federal enforcement of voting rights, particularly for Black voters. If you don’t follow these cases closely, you might not be aware of what’s happened over the last sixty years, but when the Court decided Callais, a lot of commentators said, “The Supreme Court just gutted the Voting Rights Act.” So what actually happened? Did the Court read the Voting Rights Act out of existence?

I argue in my piece in the Cato Supreme Court Review that it actually did more to recalibrate the Act back to its initial focus — protecting the individual right to vote and prohibiting discrimination against individuals — and away from a disparate-impact interpretation focused on group rights. Along with the 2021 case Brnovich v. DNC, I think it should ultimately lead to decreased salience of race in government decision-making, which I think we’d all agree is a good thing.

To explain how this happened, I need to get into the concept of vote dilution — you all know about gerrymandering. When a state gerrymanders a map, it typically spreads out the voters of the party it favors, to win as many districts as possible, while compacting the other party’s voters into a few districts they can win and no others. Vote dilution is a similar concept, but the idea is that the system dilutes the power of a particular racial group. These claims are brought under Section 2 of the Voting Rights Act, which, after being amended in 1982, prohibits any voting procedure that results in a denial or abridgment of the right to vote on account of race or color. That amendment was passed specifically to overrule a Supreme Court case, City of Mobile v. Bolden, which had required showing discriminatory intent to bring a Section 2 claim. Under the amendment, even without discriminatory intent, if a state draws a map that dilutes the voting power of Black voters, that’s a Voting Rights Act violation.

But you can see the problem: it essentially assumes voters vote as racial blocs, and that representatives represent racial blocs rather than individuals. Supreme Court precedent for a long time actually enabled this group-based approach — the seminal case is Thornburg v. Gingles, from 1986, decided at a time when the Court didn’t pay much heed to the actual text of statutes and largely quoted legislative history to reach its holding. The holding of Gingles is essentially just a Senate committee report from the 1982 amendments. It adopted three preconditions for a vote dilution claim: that a minority group is sufficiently large to form a majority in a reasonably compact district; that there’s typically racially polarized voting, with a majority of the other racial group voting against that bloc; and that the majority of the group claiming discrimination would vote for a different candidate. So, essentially: racially polarized voting, and enough minority voters concentrated in an area. Once you cleared that bar, Gingles said you then had to weigh a bunch of factors under a “totality of the circumstances” test to show a denial or abridgment of the right to vote — factors like a history of official discrimination and socioeconomic disparities, things that exist in every jurisdiction. So, practically speaking, once you cleared the three preconditions, it was pretty easy to threaten a vote dilution claim if you hadn’t drawn a sufficient number of majority-minority districts. Even though the Supreme Court only heard about three vote-dilution cases after Gingles, it became virtually universally accepted that certain districts had to be drawn on the basis of race to comply with Section 2.

That’s how Callais started — with a vote dilution claim in a case called Robinson, where the district court applied the Gingles framework and ordered Louisiana to draw a second majority-Black district, saying that otherwise it would violate the Voting Rights Act. Louisiana drew that map, and then another set of plaintiffs said, “Wait a second, that’s a racial gerrymander, which violates the Fourteenth Amendment” — because the court had ordered Louisiana to do exactly that, draw a second majority-Black district because of race. That set up a clear conflict between the Equal Protection Clause’s prohibition on racial discrimination and the prevailing interpretation of Section 2, which required states to consider race in redistricting. The question became whether the state could satisfy strict scrutiny by claiming a compelling interest in complying with the Voting Rights Act.

The Supreme Court had a few choices once the three-judge district court held the map was a racial gerrymander. It could have said compliance with Section 2 is never a compelling interest, and affirmed the racial-gerrymander finding on that ground. It could have said the map wasn’t narrowly tailored. Instead, it chose a different path: it said compliance with Section 2, properly interpreted, would be a compelling interest — but that the Robinson district court, following what courts had done for the past four decades, had misinterpreted Section 2. Louisiana actually didn’t need to draw a second majority-Black district to comply with the Voting Rights Act.

Callais did this by reimagining the three Gingles preconditions so that they don’t automatically trigger every time racially polarized voting and a substantial minority population are present. Instead, the Court sought to separate racial discrimination from permissible districting criteria — which now includes political considerations. Instead of requiring a challenger to show only that there are enough minority voters in an area to draw a reasonably compact district, Callais said the challenger must provide a map with an additional majority-minority district that also satisfies all the state’s other legitimate political goals, including incumbency protection and partisan advantage. And, importantly, the Court emphasized that a challenger must be able to disentangle race from party. In the days of the old white primary, when the South was a one-party state, it was easy to show that white Democrats wanted to discriminate against Black Democrats by keeping them out of the Democratic primary. But in a two-party system, where Black voters tend to vote Democratic and white voters tend to vote Republican, a political gerrymander can look just like a racial one. So the Callais majority places the burden on the challenger to isolate race from party — meaning you can’t just bring a political-gerrymandering claim and mask it as a vote-dilution claim anymore.

Callais didn’t overrule Gingles, but it took a big step away from reading Section 2 to require proportional representation in redistricting. It refused to elevate race above all other considerations, or to treat racial groups as blocs that must be assumed to vote together. The Equal Protection Clause prevailed over an interpretation of federal law that required considering race. So the result — which I think we should all agree is a good thing — is that there should be less consideration of race in districting going forward, consistent with the Fourteenth Amendment’s prohibition on racial discrimination. Thank you.

Thomas A. Berry: Excellent. And then, Bob, you’ll be discussing the free speech counseling case, Chiles v. Salazar.

Chiles v. Salazar — Professional Speech and Conversion Therapy

Robert Corn-Revere: Thank you, thank you — I’ll try to hold it to ten minutes. This is a case that I think meets Tommy’s qualifications for the importance of principle in cases with culture-war implications about as well as any I can imagine — and I think the Court stepped up to the challenge.

This was a case involving a constitutional challenge to Colorado’s Minor Conversion Therapy law, which prohibited various forms of “conversion therapy” for gender identification and sexual orientation. That really does hit the bullseye of culture-war issues, and these laws have a dark history — a number of the therapies they were reacting against involved things like drugs, electroshock therapy, aversion therapy, and so on. But this law was written very broadly. I’ll read the actual language, to give you a sense of why the decision came out the way it did: it prohibited any practice or treatment that attempts to change an individual’s sexual orientation or gender identity, including any effort to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions toward individuals of the same sex. But the law specifically allowed counselors to provide “acceptance, support, and understanding” for identity exploration and development, and to assist people undergoing gender transition. So the state was taking a position on what’s the right view, and on whether counselors could even talk about the other one.

The plaintiff was a counselor named Kaylee Chiles, who wanted to engage in talk therapy — none of the aversion-therapy stuff. She described her objective as letting clients come to her and express what they wanted to achieve, whether that was staving off feelings of gender identification that made them uncomfortable, or affirming those feelings — same with sexual orientation. She was simply there as a counselor, using only talk. Her motion for a preliminary injunction was denied by both the district court and the Tenth Circuit, on the theory that this wasn’t a regulation of speech but a regulation of conduct — merely regulating what medical treatments could be provided in Colorado — so no First Amendment issue was implicated, and the law only needed to meet rational basis scrutiny. Rational basis scrutiny basically just means the law isn’t crazy — almost anything can meet it, which makes First Amendment challenges go away.

The case reaches the Supreme Court, and in an eight-to-one vote, the Court reverses the lower courts and holds that yes, this does involve a First Amendment problem — and a pretty profound one. The opinion is written by Justice Gorsuch, who had a very good year in First Amendment terms across several cases, but this one especially. He says the lower courts got it wrong for three main reasons. First, the category of “professional speech” isn’t something you can set aside as unprotected, nor can you treat it like commercial speech, which gets a lesser level of protection. The fact that Chiles is a licensed professional doesn’t mean she’s entitled to less First Amendment protection. Second, the state can’t justify the regulation as merely regulating conduct — just because the state classifies something as a “treatment” or “modality” doesn’t mean it isn’t regulating speech, when what’s actually happening is talk therapy. In a phrase from the decision I think will be widely quoted — I’ve already used it in two briefs — he writes, “The First Amendment is not a word game. You can’t simply reclassify what something is and then say you’re not regulating speech” — which is exactly what governments try to do all the time: “Who’s regulating speech? We’re not regulating speech.” Well, yes, indeed you are. The paradigmatic case Justice Gorsuch cites is Cohen v. California — every law student’s favorite First Amendment case — the “Fuck the Draft” case, where a young man was arrested for disturbing the peace for wearing a jacket with that slogan on it, and the state said it wasn’t regulating speech, just regulating his conduct of wearing the jacket inside a courthouse. Word game? The Supreme Court decided fifty years ago that yes, that was a regulation of speech, and the “conduct” framing was just the state’s excuse.

And third — the clearest, most profound principle applied here — this is classic viewpoint discrimination. If anything is a per se violation of the First Amendment, it’s viewpoint discrimination; there’s no valid government interest in choosing one viewpoint over another and deciding which one gets government approval. Justice Gorsuch raised this at oral argument and repeats it in the opinion: what if the state simply got to decide what the correct viewpoint was? What about the DSM — the diagnostic manual for psychiatric conditions? What if it said, as it did in 1974, that homosexuality is a disorder — would that let a state, on a rational-basis theory, prohibit counselors from talking to gay people either to affirm or to dissuade them regarding sexual orientation? The Colorado Solicitor General, to her credit, admitted at oral argument that yes, a state would be able to do that if the Court upheld the Tenth Circuit. The Court said, essentially, “No, we’re not going to let the state put its thumb on the scale that way.”

Those are the three main points of Justice Gorsuch’s majority opinion. There’s an important concurrence by Justice Kagan, joined by Justice Sotomayor, agreeing with the Court but not completely — she says there still has to be room for content-based but viewpoint-neutral regulations: certain regulations may touch on content and would normally get strict scrutiny, but if they’re content-based and viewpoint-neutral, there may be a way to uphold them, particularly in medical care. She didn’t give a clear example of when that would apply — it’s a little hard to imagine — the case she cited was a trademark case about whether you could require an individual’s permission before incorporating their name into a trademark, which doesn’t overlap much with this case. But it’s still an important qualifier, even in a solid eight-to-one opinion. Justice Kagan’s concurrence also raised, as came up at oral argument, the question of mirror-image laws: if states can prohibit counseling that tries to dissuade someone from their gender identity or orientation, as Colorado wanted, does that mean states could also prohibit any discussion of gender-affirming care, without a First Amendment problem? The combined opinion answers that the government, as in all First Amendment cases, must remain neutral — which is why this is such an important culture-war case: it doesn’t let the state legislature control the culture this way.

The one dissenter was Justice Jackson. I could spend another ten minutes on that dissent, but I’ll leave it with just its opening line, which basically says it’s been true for over a hundred years that states can regulate medical care, and no one has a right to hold a medical license regardless of their speech — harkening back to an 1893 opinion from the Massachusetts Supreme Court, where then-state-Justice Oliver Wendell Holmes wrote that a man may have a right to talk politics, but he doesn’t have a right to be a policeman. That view of the First Amendment has long since been eclipsed — even Holmes himself changed his views by the time he reached the Supreme Court — and doctrines like the unconstitutional-conditions doctrine have overridden that kind of thinking over the years. It’s a long dissent, but I don’t think it adds much to the discussion. Thanks very much.

Panel Discussion

Thomas A. Berry: So I’ll invite our panelists — any reactions or questions raised by what your co-panelists said?

John Vecchione: I did have one thing. I could see a speech-neutral prohibition on talk therapy — I don’t know if you’ve ever seen Sam Kinison’s bit where he does “therapy,” stands really close to someone and yells expletives at them to get them to change whatever they’re doing — I think a legislature might say you can’t do that.

Robert Corn-Revere: And that was the only thing I thought of when you said that — actually, Bob Newhart had a similar bit, though not with as many expletives as Sam Kinison — his “treatment” was just to say, “Stop it. Don’t do that,” whenever someone came to him with a problem that bothered them.

Christopher M. Kieser: Well, it seems like you rarely have truly viewpoint-neutral, content-based laws, because some side or the other wouldn’t like it. You could imagine a law that said, “No therapy related to sexual orientation or gender identity whatsoever — no pro, no anti, no affirming, no disaffirming, no cis, no trans, whatever” — but which party would support that? Everybody would dislike part of it, which is part of why you always see viewpoint discrimination creeping in.

Robert Corn-Revere: And it’s why legislatures are always trying to sneak in some kind of viewpoint discrimination one way or another, and then call it something else — regulation of conduct, for example.

Thomas A. Berry: I do have one question — did they touch at all, in Callais, on the issue of whether there’s a private right of action to bring these claims?

Christopher M. Kieser: Yeah, that wasn’t brought up at all. There are certainly cases floating around in the lower courts about whether there’s even a private right of action to enforce Section 2 — it’s not something I’ve written on, but it could certainly come up again. I do think there are going to be fewer Section 2 claims overall as a result of both Brnovich and Callais, so that issue might end up less salient than it otherwise would have been.

Thomas A. Berry: John, I’m curious whether you think there’s any principled distinction between Cook and Slaughter — I’d like to know.

John Vecchione: You have to say what Cook is.

Thomas A. Berry: Yeah, I will. One thing I’ll say is I’m pinch-hitting for Oliver Dunford, who has an article in the Review co-authored with Charlie Brandt, our former legal associate—

John Vecchione: Well, I want to hear your view — not Oliver’s.

Thomas A. Berry: I know, but I’ll say this — he notes that Slaughter may make the executive too powerful, because now he’s got all this power that Congress had thrown into these agencies with no protection against removal.

John Vecchione: On Cook, here’s where I differ with NCLA. We put in an amicus brief saying the banks aren’t any different at all — I’m not so sure of that. I think the national bank controversies of the early nineteenth century do touch on this as a matter of history, but here’s what I think is going to happen: the Federal Reserve may be constitutional in some areas — regulating interest rates, all of that — but they also get to penalize people. So I think that’s where it may end up — that the way you make both cases cohere—

Thomas A. Berry: And just to be clear, Cook upheld—

John Vecchione: Yes, Cook upheld—

Thomas A. Berry: —the protections for the Fed chairman and officers.

John Vecchione: Right. In fact — whether you like the rate rise that just happened or not, it wouldn’t have happened if Cook had come out the other way. That’s my very strong opinion. But I do think banks are different — not for that reason, though. When the Fed is setting rates, or lending money, that’s one thing. But when they came after an individual for violating one of their rules and fined him, that part of it — an individual attacking that piece of Federal Reserve power — has to be differentiated from the early national banks. So what you’re going to get is something closer and closer to the first and second national banks.

Thomas A. Berry: Interesting. Okay.

Robert Corn-Revere: I just wanted to pick up on the point John made about too much power being vested in the executive in the wake of Slaughter — that’s a point Justice Gorsuch touched on in his concurrence, where he talked about maybe having to rethink how much power these agencies can wield. It’s a good thing that the majority says, under this rule, you know who to fire — if the executive is making bad decisions, that’s something voters will work out. But in the meantime, you’re left with all this vast executive power that was sitting in these supposedly independent agencies, now just arms of the presidency. So the question becomes: what does that do, in constitutional terms? Justice Gorsuch talks about the FCC in particular, and about Brendan Carr threatening Jimmy Kimmel on air, and says someone might be able to weather that storm, but what if all the power of these other agencies gets brought to bear? And he adds, “Maybe it’s time to return all the way to the Constitution” — meaning we’re going to have to take constitutional limits on these executive functions much more seriously, which, in my estimation, is a good argument for why Loper Bright was correct. If the FCC starts leaning on broadcasters because the president and the chairman don’t like what’s being broadcast, you should have a constitutional remedy for that — and fortunately it’s in the statute: Section 326 of the Communications Act says the FCC has no power of censorship, which simply implements what the First Amendment requires anyway, but as a statutory command. So Congress has already spoken on this, and the question is just whether we’ll allow remedies for violations.

John Vecchione: I’d also say the other thing you mentioned was unconstitutional conditions — it’s a license, and they’re really threatening the license, for speech, which strikes me as an unconstitutional condition.

Robert Corn-Revere: Yeah — well, they’re saying it’s for another reason.

John Vecchione: Yeah, that’ll be worked out in the litigation.

Thomas A. Berry: Well, the Brendan Carr example is a really interesting one, and it’s relevant to kind of the political science question of whether removal actually matters for changing an agency’s behavior, or whether it’s only about accountability — because Brendan Carr was doing very politicized things, things Trump loved, even before Slaughter was decided.

Robert Corn-Revere: Well, yeah — I think he was basking in the umbrella of White House approval, and I think he still is, for now, so long as he can be seen as serving the president’s interests. Right now ABC is in court challenging the licensing proceeding — if that case goes the way I hope, and holds that the FCC doesn’t get to do whatever it wants to licensees even before a final decision, we’ll see how much longer Chairman Carr stays useful to the president. It sort of shows that the president is still, at minimum, influencing things based on who he picked — especially since the chairman was appointed by him. Before Slaughter, he had some plausible deniability — “I can’t fire him,” “I don’t control what he’s doing, it’s an independent judgment.” Not anymore.

Thomas A. Berry: John — some have said this decision is unfair, that it takes one leg out of the stool but not another; that Congress never would have created these agencies if it had known they’d eventually be under the president’s control. What do you make of that argument?

John Vecchione: So I just gave a talk to the Alexander Hamilton Institute, and what I really think the problem is — is Chadha.

Thomas A. Berry: Okay — you’ll have to say what Chadha is.

John Vecchione: Oh, yeah. What I didn’t really realize until I got into these cases is — you kind of think of the ’30s and ’40s as huge Democratic majorities just doing whatever Roosevelt wants, but that’s not really what happened. What actually happened is that when they created these agencies, they attached a legislative veto — if Congress didn’t like a regulation, one house could veto the agency’s action. The federal government operated under that for about seventy years, and then in 1983 — INS v. Chadha — the Court says, no, Congress can only act through legislation and presentment to the president. I think that may be right, but it’s a huge problem when you come to that conclusion seventy years after creating all these agencies — because, as Gorsuch points out, it’s now very hard for Congress to take back the power it had, since the legislative veto is gone, and most of these agencies were built in through the ’30s, ’40s, ’60s, and ’70s under the assumption that Congress could check them that way. And right as that structure gets built out, the Court says, “Congress, you can’t control any of them through a legislative veto — but we’ll be kind and not strike down the whole statute, or send it back for you to redo now that you know the rules. We’ll just cut off the veto, and all the other powers stay in place.” That caused an enormous problem in our tripartite structure — I think you’re going to need another Calvin Coolidge or Ronald Reagan, somebody who actually cares about the constitutional structure as president, or you’ll need Congress to get so fed up that it overrides it. Because I don’t think Slaughter is unjust — I think it makes enormous sense. The problem is we had a hundred years of screwing up the balance first.

Thomas A. Berry: Do you think that, now that these are effectively all executive agencies even though they weren’t intended to be that way, that creates a non-delegation problem too? Is that a possible avenue?

John Vecchione: The question is whether there are any non-delegation problems now that are actually enforceable. I mean — should there be? Yes, obviously there should. But the fact is, we were all excited — I think everyone here at Cato was excited — about Gundy, which was 4–5, about whether this unbounded executive power to categorize crimes — sex offenses, mainly — could exist without Congress giving an intelligible principle for how to make those decisions. Gundy was 4–5, and Alito went the other way because it was criminal. And I’ve just seen nothing come of the non-delegation movement since. Gorsuch is basically saying, “We’ve got to be careful.” What they did come up with instead was the major questions doctrine — “we’re not doing this anymore, we’re not giving you broad policy power in the executive unless you show us, on the dotted line, where Congress gave it to you.” That’s Loper Bright, and that’s major questions. Kavanaugh thinks major questions has solved all this, but no — non-delegation was there, and it should be there again. I think it has to be, but I don’t see it coming. Stay tuned for the next panel, though — there’s a case called Fasano pending on cert at the Supreme Court about a BLM director creating crimes on national parks, so we’ll see. I think in the criminal context you’ve got a stronger case for non-delegation than in, say, the admin law context — maybe the Court will come around to that.

Thomas A. Berry: Chris, I wanted to ask you — and we’ll get to audience questions shortly — it feels like gerrymandering is becoming an increasing war of one-upmanship on both sides, with little end in sight; you’ve got mid-cycle redistricting, states saying, “If a red state creates four new red seats, we have to create four new blue seats just to stay even.” Does this decision feed that fire, or is there any hope it has a better effect?

Christopher M. Kieser: My own view is that it’s almost entirely separate, because the way vote-dilution cases were being brought before Callais, they weren’t really anything but challenges to political gerrymanders — that’s essentially what they’d always been, especially over the past twenty or thirty years, where it’s a pretty slender reed to argue that discrimination from the ’60s still controls. The pre-Callais interpretation of Section 2 was really only surviving on that kind of analysis. I think gerrymandering now, with Rucho v. Common Cause — which I think was correctly decided — both parties have the incentive to go all the way, and they’re not really going to be constrained by Section 2, nor should they be. Gerrymandering is a political problem that demands a political solution. It can’t be solved by claiming these are secretly racial gerrymanders when they were actually political gerrymanders in the first place.

Thomas A. Berry: And tell me if I’m wrong, but this decision could cut both ways in terms of who it helps. The context here was the creation of a new majority-Black seat that would have been a Democratic seat — but this also means that if a Democratic legislature intentionally creates an extra majority-Black seat beyond proportional representation mainly to create a new Democratic seat, you also can’t challenge that just because the new seat happens to be majority Black and disproportionate. Is that right?

Christopher M. Kieser: Sure — you’d have to make a racial-gerrymandering argument under the Fourteenth Amendment, and the current standard requires showing race was the predominant factor — not party, not just one of several factors. I’ve argued in the past that standard is probably too weak, but with Callais now demanding that you isolate race and party, I think it’ll be a lot harder, even in the racial-gerrymandering context — as opposed to the Section 2 context — to show this wasn’t just a partisan gerrymander. If they’re doing it for party, not race, it’s really hard to disentangle the two, especially in Southern states where race and party are so intertwined. That’s not true in every state, so it won’t play out the same way everywhere — but certainly in the states where Section 2 claims have been more common, that’s always been the case.

Thomas A. Berry: Bob, you mentioned professional speech, and I want to make sure we emphasize that point, because I think it’s crucial — people may be underestimating how far Chiles could reach. The Court is saying pretty explicitly, “If your job is talking, that doesn’t make it ‘conduct’ just because it’s your job or because you have a license for it.” We’ve been involved in a case called Upsolve, about the unauthorized practice of law — obviously sometimes lawyers do things with binding legal effect, but sometimes people are just providing advice. What does this mean going forward for restrictions on jobs that are essentially about talking?

Robert Corn-Revere: I think there will continue to be pressure and litigation over these questions, and I think the line will end up being drawn around minimum qualification requirements — do you have to be a member of the bar to practice law, for instance — where that may be an example of a content-based-but-viewpoint-neutral law the Court would affirm.

Thomas A. Berry: But what might be different is that courts are starting to actually recognize the First Amendment is implicated here—

Robert Corn-Revere: Well, that’s right — a couple of decades ago they’d have said, “What are you talking about, bringing up the First Amendment in a licensing case?” It was a long time coming, because for a long time there was no such thing — you didn’t even see the phrase “professional speech doctrine” in the cases, and then, within the last twenty years, it started cropping up, usually discussed as an offshoot of the commercial speech doctrine — which really relates to proposals for commercial transactions or advertising. That gets First Amendment protection, but not quite as much. Courts initially began equating professional speech, just because you’re in a profession, with commercial speech — but the two aren’t the same thing.

Thomas A. Berry: And you put your finger on why that’s a distinction — the value of cases like this, and NIFLA v. Becerra before it, is that they pull those concepts apart and say, no, we’re not talking about the same thing when we talk about commercial speech versus professional speech — and professional speech isn’t a doctrine that lets you protect speech less than you would in other contexts.

Robert Corn-Revere: Right — NIFLA was a case where California tried to force so-called crisis pregnancy centers, which try to dissuade people from getting abortions, to post signs saying where the nearest abortion provider was — against their own priorities — and the Supreme Court said that’s compelled speech; it doesn’t matter that you’re licensed or that we’re dealing with healthcare specifically.

Audience Q&A

Thomas A. Berry: I want to remind our online audience you can submit questions on our events webpage, Facebook, YouTube, or X using #CatoSCOTUS. Let’s see if there are any questions in the room — we have one here in the front row.

Audience member (Steven Keet): Steven Keet, a retired U.S. diplomat and retired economist — not a lawyer, I’d emphasize that. On Humphrey’s — you may not agree with me; I’m not going to comment on its legal strength, but having seen various agencies with representatives from both parties on them, I think that did a lot of good. Is there a constitutional way of reestablishing something like Humphrey’s, short of a constitutional amendment, which seems unlikely to pass anytime soon?

John Vecchione: The thing that hasn’t been decided is whether laws requiring bipartisan boards — commissioners from different parties, or non-affiliated — are still valid; the Supreme Court hasn’t struck those down, and they’re still live. What happens instead is presidents just don’t appoint anyone, so there’s no quorum, and the agency can’t do anything — that’s what’s happening right now at the Federal Election Commission.

Thomas A. Berry: The NLRB, too.

John Vecchione: The NLRB — though I think the NLRB’s back up to snuff now. But that’s the mechanism: presidents get around the bipartisan requirement by just never filling the seats, so there’s no quorum. That’s been going on for about ten years now — first Trump, then Biden, now Trump again — and they’re probably never getting the FEC back up to full strength. So far, at least, that doesn’t appear to be a constitutional problem — I haven’t brought any of those cases myself, but presidents seem to be able to get away with it that way.

Thomas A. Berry: More questions — I see one back in that corner.

Audience member (George Burch): George Burch — I’m a retired federal employee from an independent agency whose chairman was removed without cause. My question: is there a rationale that would maintain removal protections for federal employees generally, against a spoils system, on the theory that they’re purportedly necessary to faithfully execute the laws?

John Vecchione: Before Slaughter, I was actually designing a case to test exactly what the standard is for every kind of employee — I wanted a case with a principal officer, a sort of medium-level guy between the politicals and the career GS-7s and GS-8s, and then a mail-room employee Trump fires for, say, dating his daughter, so you’d get the whole spectrum of what’s actually required. I think for principal officers, they’re out — no protection. Below that, it’s going to depend, I believe, on how much power and discretion the position carries. That’s roughly where things stand now, though civil service protections generally are already somewhat under attack. As you probably know, civil service protections were put in because everyone knew the old system had become corrupt, and massive Republican majorities, with Republican presidents, said, “We have to have a regular civil service.” I don’t think, as a constitutional matter, the Court is going to strip protections from lower-level employees where it doesn’t matter much who holds the job so long as they’re doing it — those protections aren’t some creation of the Progressive Era or Woodrow Wilson, they go back further than that. So I think some of them will last; I just can’t tell you where the cutoff is.

Thomas A. Berry: As I read the opinion, it seems like they’ve only definitively ruled on what might be called principal officers, in the Appointments Clause sense — basically directly below the president. Everyone below that — say, an assistant attorney general — could maybe be fired by the attorney general, not necessarily the president directly; the Constitution doesn’t require that it be the president himself. Is that how you read it?

John Vecchione: So far, yeah. So far — but I don’t know, I mean, the president could just tell the attorney general to fire everyone in line, sort of a “midnight massacre”—

Thomas A. Berry: You mean the Saturday Night Massacre.

John Vecchione: Right — until they find a Bork to fire everybody. Richard Nixon didn’t like what his attorney general was doing, so he just kept firing the next one in line.

Thomas A. Berry: Which raises an interesting question — the Supreme Court has never actually held that the president can do something himself, despite the Take Care Clause. It’s just that he can fire people down the chain until he finds someone willing to do it.

John Vecchione: That’s true, too. And by the way, he can’t even fully do that — presidents have all these offices, we’ve got so many ambassadorships sitting empty in really important countries, because I don’t think any president really wants to have to personally fire everybody down the chain to get his way.

Thomas A. Berry: Some libertarians might want exactly that.

John Vecchione: Yes.

Thomas A. Berry: I saw another hand — we have one over here in the front row. Oh — did we have one back there first? Sure, we’ll come to you. Behind the cameras — go ahead.

Audience member (Jack Brown): Hi — Jack Brown, Pacific Legal Foundation. The commercial speech doctrine came up earlier in the context of Chiles — I’m curious what your thoughts are on potential reforms, or elimination, of the commercial speech doctrine.

Christopher M. Kieser: I don’t see the commercial speech doctrine going away. What I’d like to see is the Supreme Court clarifying the Zauderer doctrine — Zauderer v. Office of Disciplinary Counsel — a decision that said you can require commercial disclosures if there’s a risk something would otherwise be misleading. When you think about it, it’s actually a less-restrictive means than banning speech outright — false commercial speech is a kind of fraud, and one way to allow speech to happen anyway is to require a brief disclosure of the actual terms. In Zauderer itself it was about legal representation — when you say “no fee unless we win,” you have to disclose that you may still have to pay costs, even if not legal fees. But there’s been mission creep under Zauderer for twenty years — governments using it not just to prevent misleading commercial speech, but to require disclosures for all kinds of things. And Zauderer actually provides less First Amendment protection than the regular commercial speech doctrine, so governments have been trying to stretch it into non-commercial speech contexts too. It would help a lot if the Court clarified that Zauderer is really limited to disclosures addressing the risk of false commercial speech, and can’t be expanded beyond that — there’s constant pressure to do exactly that expansion.

Thomas A. Berry: They use the phrase “purely factual and non-controversial” for what can be required—

Christopher M. Kieser: Right — like “this product is known to the State of California to cause cancer.” If you go to California, every wall has that sign. And if everything causes cancer, nothing causes cancer — it starts to feel unrealistic. But you’re exactly right. We’ve done amicus briefs in cases about things like conflict diamonds — forcing disclosure that a diamond came from a war-torn country—

Robert Corn-Revere: Or where meat came from — there was a case about that in the D.C. Circuit.

Christopher M. Kieser: That’s right — political, culture-war stuff. That one was upheld, and the D.C. Circuit was guilty of allowing exactly this kind of Zauderer mission creep.

Thomas A. Berry: I saw a question up here in the front row — Richard Coleman, retired bureaucrat.

Audience member (Richard Coleman): Culpable behavior or protected speech — these robocalls that continue to plague us. Seems to me a decade or two ago we were supposed to be able to fine people, or go to court for $500 against whoever made this possible. Obviously it’s still not being curbed. How does this come down constitutionally?

Thomas A. Berry: You’ve hit on the least popular suits in America — I’ll let FIRE defend this one.

John Vecchione: No, I think — there was actually one interesting case last term. There’s a law that you couldn’t send faxes to people — this came from back when people would send paper faxes, and your paper would run out, so Congress passed a law letting you sue for $1,000 a fax. Well, now faxes come over email — they don’t run your paper out, you can just delete them. So the question was whether that law could still be enforced against emails, and the Court said, “Yeah, that’s still a fax.” It really ran up the bills.

Robert Corn-Revere: Well, although that question may get reopened in the wake of Loper Bright, because those interpretations have come from FCC decisions stretching how far a law can extend beyond the terms Congress actually used — and there was a decision just last week on that, not on telemarketing specifically, but on whether an FCC interpretation can survive changed technological conditions when Congress used particular language.

With respect to the Do Not Call issue specifically — I have to take some responsibility, not just in my capacity at FIRE, but because in private practice I represented telemarketers. I can tell you, from a First Amendment perspective: you can represent people accused of being terrorists, you can represent pornographers, and people don’t bat an eye. You represent a telemarketer, and people come after you. But the problem with the Do Not Call list, as configured back in 2002, was that it drew distinctions between what kinds of calls could go on the list — certain commercial calls, but not certain charitable calls, and so on—

Thomas A. Berry: Certain political calls—

Robert Corn-Revere: Right, certain political calls were exempt too—

Audience member (Richard Coleman): That explains why I’m getting so many of those.

Robert Corn-Revere: —and that was considered content-based discrimination. The Court’s solution was to strike the exemption rather than the underlying law. We lost that case, I’ll have you know.

Thomas A. Berry: We have an online question I’m obligated to take, because it’s from Bob Levy, the namesake of our center — it’s for John. He writes: Article I says Congress can make all laws necessary and proper for carrying into execution the powers vested in the president. So why couldn’t Congress limit the president’s removal power? Article I would seem to trump the amorphous “faithfully execute the laws” power. He says he’s seen this argument from originalist scholars — what’s your response?

John Vecchione: The idea that taking away his ability to appoint the right person makes him run the executive branch better is like saying that by not letting him direct the generals, he’ll run the war better. If Congress said, “The president shall no longer be able to direct the generals” — would the war be run better? It’s not literally war, obviously, but I don’t think the Necessary and Proper Clause trumps the removal power for that reason — it doesn’t make sense. Now, here’s the thing: what Congress could normally do is defund whatever agency is doing the bad thing — but they’re kind of out of that business too, in practice. I also think Federalist 51 is relevant — Madison talks about the “departments,” meaning the House, the Senate, the executive, and the judiciary, and how they can’t overlap or interfere with each other’s powers and abilities, can’t control each other’s emoluments, and so on. There’s a lot in the Federalist Papers cutting against that argument. Since I know the Supreme Court reads those, I’m skeptical.

Thomas A. Berry: More questions — I see one back there, Christine.

Audience member (Christine Marsden): Hi, Christine Marsden, Alliance Defending Freedom. On Chiles — you talked about how legislators like to be sneaky about how they define things. In the wake of the decision, Colorado has tried to re-legislate the issue and re-ban what it calls conversion therapy or sexual-orientation/gender-change efforts, this time framed as a medical malpractice issue — so if it’s not speech, and it’s not “conduct” exactly, now it’s malpractice. I’m curious what you think of that.

Robert Corn-Revere: That’s a perfect example of trying to shift categories and say, “We’re going to regulate it a different way.” Justice Jackson touched on malpractice a bit in her dissent, but so did the majority — saying you simply can’t reclassify these things that way. We actually have another case going on where a plaintiff is arguing a pollster being too far off in its results is “malpractice” that a newspaper subscriber should be able to sue over — you can imagine how broad that concept of liability would get. It just doesn’t make sense. But it’s a good example of the kind of reaction you get when people try to reinterpret around these principles.

Thomas A. Berry: More questions? We’ve got one over here — and there’s one in the back, Tommy — back there.

Audience member (J.B. Hogan): J.B. Hogan, independent writer — hogant​wo​cents​.com. You brought me back to a question earlier, from the namesake of this place. If the president has veto power and Congress has the power to do things, doesn’t Congress’s power have to be able to trump his veto power in some ways — a president can act up until Congress uses its power to override the veto, so it’s not necessarily a 51 percent power in every situation; it might need two-thirds. I’m just wondering—

John Vecchione: So, first — the supermajority, it depends how they do it. Let’s say they have a supermajority — they can’t just pass a “sense of the Senate” or “sense of Congress” resolution; those let everyone go on record being on the right side of apple pie and motherhood, but they have no actual power — you could get 100 percent of the vote and it wouldn’t do anything. If the president says — I’ll play to the Cato audience — “I’m taking out Iran,” and Congress says, “No, you’re not,” and passes a “sense of the Congress” resolution saying he can’t, that does nothing to the ships or anything else already moving. What they have to do is say, “We’re providing no money for what you’ve just ordered” — that’s it, that’s what they can actually do. Or, more controversially, they could pass a criminal law making it a crime for anyone to engage in warfare against Iran under those circumstances — and then everyone down the chain who engaged in it would be criminally liable. That would require a supermajority too, and I don’t see it happening — but sure, they can, if they’re all acting together. It’s just very unlikely — look, how many members voted against the president on the last one, maybe three?

Thomas A. Berry: More questions — was there one back—

Audience member: Yeah, that’s who I meant.

Thomas A. Berry: It’s hard to see behind the cameras. Go ahead — thank you for the correction.

Audience member (Jan Volcker Leonberg): My name is Jan Volcker Leonberg, I work in the cruise industry — the business side. My question is about gerrymandering. Basically, I work on a ship — if there’s a problem, we look for a solution. So what’s your recommendation to prevent this kind of gerrymandering? Do we need a constitutional amendment, or do laws need to be written differently to prevent this from happening?

Christopher M. Kieser: I think states can experiment with all sorts of things — some states have gone with independent redistricting commissions and so on — but I don’t think there’s necessarily a solution coming from the federal courts. Congress could pass something, but the problem is there’s no real baseline for what a map is “supposed” to look like. People say “fair maps,” but what counts as fair is a pretty subjective question — is it partisan balance, incumbency protection, something else? There are lots of different maps that could all be called fair. And the underlying problem is that this is an inherently political process, and politicians are very unlikely to pass laws limiting their own discretion over the most political process there is. That’s why gerrymandering has been a thing since the beginning of the Republic, and will probably keep being one. Even states that experimented with independent commissions, like California, have started rolling them back once they realized the other side was gerrymandering and they weren’t — nobody wants to unilaterally disarm. There’s really not much the federal courts can do about that. I’ll say Virginia has a pretty good commission — there was an attempt to get rid of it that failed — but the pressure is always there. State courts can enforce their own restrictions on political gerrymandering, even after Rucho, since that was only a federal non-justiciability ruling — so I think the best hope, if there is one, is at the state level. Both Virginia and New York’s state courts have stopped attempts like that under state law.

Thomas A. Berry: And it’s worth mentioning federal law is what requires single-member districts everywhere, if I’m not mistaken—

Christopher M. Kieser: Correct — so states would otherwise have more freedom to experiment or get creative, but the federal government isn’t currently letting them. The problem is multi-member districts were traditionally used in ways that limited Black voting power specifically, so they’re inherently suspect now — though they’re not necessarily bad in themselves, there’s nothing sacrosanct about requiring single-member districts. Congress could also pass a law saying you can only redistrict once every ten years — I’d support that, to stop mid-decade redistricting — but again, it’s political, so it’s hard to get both sides to agree to it at any given moment.

Thomas A. Berry: Now, Chris, to your point — you said you don’t see help coming from the federal courts, or “help” is maybe a loaded word — the status quo won’t be changed by the federal courts. That raises the question: is this decision the end of a line, where the Court had been getting closer and closer to a big decision and now this is it, everything settled — or are there still more chips to fall? Alito writes it almost like, “This whole doctrine’s been a mess, and we’re cleaning it all up right now.”

Christopher M. Kieser: I think, as far as Section 2 is concerned, it’s going to calm the waters — the same thing happened with Brnovich in 2021, in the vote-denial context. The standard is clear now, and you’re actually going to have to bring facts showing an inference of discrimination to win one of these claims. Where things are still unsettled is the Fourteenth Amendment racial-gerrymandering claims themselves — what you have to show to actually prove one, since it’s all intertwined with race, party, and everything else. But as far as Section 2 goes, yes, I think this is a culmination. There will still be claims out there, but not like there used to be.

Thomas A. Berry: Fantastic. Well, I learned a ton from this panel — I’m really grateful to all of you for being here. Let’s show our appreciation for our great panel.

This transcript was generated using AI automation and may contain minor formatting or transcription errors. Please refer to the original audio to verify specific quotes or context.

Panel IV: Looking Ahead — October Term 2026

Cato Institute — 25th Annual Constitution Day Conference

Panelists:

• Anastasia Boden, Constitutional Scholarship Director and Senior Legal Analyst, Pacific Legal Foundation
• Darpana Sheth, General Counsel, Center for Individual Rights

Moderated by Matthew Cavedon, Director of the Project on Criminal Justice, Cato Institute

Panel Introduction

Matthew Cavedon: Thank you very much for joining us, and thank you for sticking it out to this late part of the afternoon. This is an especially fun panel — it’s also going to be an especially fast-paced one. This is our preview of the upcoming Supreme Court term. We have two distinguished panelists joining us: Anastasia Boden is the Director of Constitutional Scholarship at the Pacific Legal Foundation, and a Cato Institute alumna as well. And Darpana Sheth is General Counsel at the Center for Individual Rights. Thank you both for being here.

As a reminder — you can submit questions as audience members via the event page at cato​.org, Facebook, YouTube, or X, using the hashtag #CatoSCOTUS. Questions will be answered following the conversation. We have some work to do, because it’s shaping up to be a very busy term. I’d like to begin with Darpana — tell us about the Viramontes case, and then we’ll go back and forth and try to cover as many of the high-profile cases as we can briefly, and dig into more detail after that.

Case Previews

Darpana Sheth: Sounds good. So before I talk about Viramontes, I want to say that I think the theme running through this term especially is that it’s a term about the machinery of litigation. A lot of these cases aren’t about what the law forbids, but about who can complain, in what forum, and at what stage. Half the cases already granted are precisely about the machinery of litigation, and even the headline cases, like Viramontes, might turn on it.

I’ll start with maybe the term’s marquee case, probably close to the hearts of many in this audience: the consolidated Second Amendment cases out of Cook County, Illinois, and Connecticut. For eighteen years, the Court has said who has the right to bear arms, in Heller; where and how arms can be carried, in Bruen and Wrenn; and who may be disarmed, in Rahimi. But it’s never decided which arms are protected — and that’s this case: whether AR-15s and similar semiautomatic rifles are protected by the Second Amendment. Both the Seventh and Second Circuits upheld the bans, but under very different rationales. The Seventh Circuit took a shortcut and said AR-15s are basically like M‑16s under its own precedent, so not a protected arm at all — it never confronted the fact that millions of Americans own one. The Second Circuit said, yes, it’s a protected arm, yes, it’s in common use, but the ban stands anyway because there’s a historical tradition of regulating unusually dangerous weapons. That opinion, in my view, is probably the more candid one, and harder to answer — remember what Heller did with handguns: the Court didn’t ask whether handguns were unusually dangerous, even though they’re used in most gun crimes; it said handguns are what Americans overwhelmingly choose for self-defense, and that was the end of it. Common use decided the case. But if the Second Circuit is right, common use becomes just a factor, not the test — something the Court weighs against its own judgment about how dangerous a weapon is. And weighing a right’s value against its risk is precisely what the Court, in Bruen, said courts shouldn’t be doing. On the other hand, Heller did carve out “dangerous and unusual” weapons, and common use as a test can be circular — machine guns are rare because they were banned nearly a century ago, and common use can’t be a one-way ratchet where higher sales figures automatically immunize a weapon. So the Court has to decide whether popularity is the test, or just the start of the inquiry. One last point, tying back to the “machinery” theme: Cook County says the record has no instance of lawful self-defense with these kinds of rifles, which is a ready-made reason for the Court to write narrowly if it wants to.

Matthew Cavedon: Anastasia — let’s say somebody’s charged with illegally possessing a firearm. How many people have to decide whether they’re guilty, and what does that have to do with — we’ve had some argument in-house about this — “Key-en,” “Kai-en,” “Kian,” however you want to pronounce it?

Anastasia Boden: I’m going with “Kian” today. But first, I wanted to say I’m so happy to celebrate Constitution Day with a group of fellow Constitution-lovers — I’m from California, where I think my company would be a little less Constitution-loving. I was an intern at the Cato Institute, so it will never not be cool to me to be on this stage. And I’m very flattered Cato has tasked Darpana and me with the most cases in the least amount of time, so we’re going to move quickly — I’ll be a jane of all cases, master of none.

With Kian, you’ve all seen 12 Angry Men — the famous jury debating the guilt of the defendant. What about six angry men — is that constitutional? That’s the issue in Kian. The Sixth Amendment guarantees a trial by jury, but doesn’t spell out what comes with that right — and on the number of jurors required, the Supreme Court ruled in 1970 that twelve was “a historical accident, wholly without significance except to mystics.” In that case, Florida had reduced its twelve-member jury requirement to six in all but capital cases after the Civil War — there’s some debate about why; some contend it was meant to disenfranchise Black jurors, though Florida today contends there are race-neutral reasons for preferring six over twelve. Whatever the case, the Court in 1970 said six jurors can accomplish a jury’s tasks just as well as twelve, so the Sixth Amendment doesn’t require a dozen. Most states still require twelve; some, including Florida, require fewer — Florida still requires six.

But in the fifty-five years since that decision, the argument that six is as good as twelve has been substantially undercut by a huge body of research. On representation: the Court had said cutting from twelve to six wouldn’t much affect getting an accurate cross-section of the community — but statistically, when there are wide disparities in the relevant community, based on politics, ideology, religion, race, whatever, cutting from twelve to six actually significantly reduces representation. On deliberation: the Court said six “should probably be large enough to promote group deliberation” — but research shows twelve-person juries deliberate longer, have more vigorous discussion, remember evidence more accurately, and are less likely to be dominated by a loud voice; minority viewpoints find it easier to stand up to the majority with twelve than with six. And on reliable fact-finding: the Court said reliability “hardly seems to be a function of size” — but it turns out to be very much a function of size; larger juries produce sounder verdicts, tending to award damages closer to what the general population, when surveyed, would award, whereas six-person juries more often produce radically high or radically low awards.

But set all that empirical evidence aside, because what really undercuts the 1970 case is that the justices today are far more interested in the text of the Constitution. That decision rested on the justices simply deciding six was as good as twelve — full stop. Today’s justices are interested in the meaning of the word “jury” at the time the Sixth Amendment was adopted, and what they find, going back to the common law, is that juries have historically always been composed of twelve people. It doesn’t matter whether the justices think six can do just as well; that’s what the founders intended, and it doesn’t matter if that seems arbitrary or “known only to mystics” — that’s what the Constitution requires. Justice Gorsuch has been a big proponent of this theory for a long time, urging the Court in dissents from denial to take the issue up — he’s sort of taken up the mantle of Justice Thurgood Marshall, the original dissenter in the 1970 case, a great trial attorney who understood the importance of a jury to assuring justice at trial. It’s been fun to see Justice Gorsuch vindicated, and the Court finally take this up. Given the Court’s renewed interest in text and historical tradition, I think it’s quite likely that old case gets overturned. And it’s not without precedent — the Court recently overturned another case with the same functionalist approach to the Sixth Amendment, holding that unanimity actually is required, even though it had historically said unanimity wasn’t necessary; in that case, Justice Alito, joined by the Chief Justice and Justice Kagan, dissented, accusing the majority of giving stare decisis rough treatment. So we’ll see whether those justices continue valuing stare decisis over text.

Matthew Cavedon: Arithmetic, history, social sciences — that all sounds pretty elementary to me. Talk to us a little about schooling and education in the St. Mary Catholic Parish case.

Darpana Sheth: Sure. This is a case involving the Free Exercise Clause and the future of Employment Division v. Smith. For those who may not know: the First Amendment says government may not prohibit the free exercise of religion, but the hard question has always been what happens when an ordinary law isn’t aimed at religion but still burdens someone’s faith. In Smith, involving the religious use of peyote, the Court said that if a law is neutral and applies to everyone, you don’t get a religious exemption even if it burdens your faith. This case involves Colorado’s universal preschool program, which pays about $6,300 per child through public and private providers, including faith-based ones — but because Catholic preschools wouldn’t accept the program’s sexual orientation and gender identity mandates, they were excluded. That involves more than thirty preschools and about fifteen hundred children excluded from the program.

Smith has never been popular, but the Court hasn’t overruled it — it keeps finding ways around it. In Fulton, Philadelphia had cut off a Catholic foster agency, but the city’s contract let officials grant exemptions whenever they chose, so the rule didn’t really apply to everyone. Similarly, in Tandon, California treated home Bible studies worse than hair salons, so again there was no truly universal application. Both times a religious claimant won, and Smith survived. St. Mary’s asks: how far does that go? Colorado’s program gives enrollment preferences to kids with disabilities, Head Start students, employees’ kids, and siblings. The Catholic preschools say, “Colorado makes exemptions for all of them, but not for us.” Colorado says every preference still has to comply with the nondiscrimination rule — nothing in the catch-all exemption lets anyone discriminate — and the unanimous Tenth Circuit agreed.

My concern is that almost every government program has some exemptions, and if having just one exemption is enough to keep Smith on the books, then almost no program will ever satisfy the “truly neutral and generally applicable” test either — which is really overruling Smith without saying so, and tells legislatures every accommodation they write is a litigation risk. If Smith is wrong, the Court should just overrule it. There’s also a second path: under Carson v. Makin, once a state funds private schools, it can’t exclude religious ones. Colorado says it’s excluding no one — forty faith-based preschools participate — but the parishes say a rule that forces them out is still an exclusion. If the Court agrees, it could rule for the Catholic parish without ever reaching the Smith question.

Matthew Cavedon: If that all sounds like a lot of requirements — perhaps an excessive number — segue, segue: the Excessive Fines Clause. Let’s talk about Jope.

Anastasia Boden: Yeah, this is one I actually know how to pronounce — Jope v. Alaska, which Advisory Opinions today called the most libertarian case of the term, so that’s something to get excited about, I suppose. This involves 82-year-old Ken Jope, a former Air Force mechanic who worked on B‑52s before getting his pilot’s license and moving to Alaska, where he now runs a one-man air taxi service — in remote parts of Alaska, you can’t just hop in an Uber, sometimes you need an air taxi. In 2012, he committed the heinous crime of letting a passenger board his plane with some beer in her luggage, destined for a dry town in Alaska where alcohol is prohibited. He never made it there — while loading the plane, state troopers arrived, searched it, and found the contraband. He said he didn’t know about it, but they said at least one six-pack was visible if you looked hard enough. They charged him with a misdemeanor, jailed him for three days, fined him $1,500 — and then seized his entire plane as an additional penalty. He contends the plane seizure is an excessive fine under the Eighth Amendment, since the fine must fit the gravity of the offense, and this was just two cases of Budweiser and four six-packs total — at most he could have seen one six-pack poking out.

The Alaska Supreme Court held that whether a fine is excessive should be measured against the general harm the statute is trying to prevent, not the harm actually caused by this defendant. So the question is: must courts evaluate harm in the abstract — what was the legislature trying to prevent, here, large-scale alcohol importation into dry communities that could flood the town and devastate it — or the harm this specific person actually caused, which here was minimal, or would have been minimal even if he’d completed the trip? Courts are divided on that question. I’d argue the Eighth Amendment is an individual right, belonging to us as individuals, requiring courts to look at individual circumstances — the harm actually caused, proportionality to that specific harm, and the individual’s ability to pay: will this fine bankrupt someone, leave them unable to provide for their family? That’s inherently a specific inquiry, not a categorical one based on the statute’s general purpose.

Is this really the most libertarian case? The facts feel libertarian — libertarians are fun — but the plaintiffs aren’t seeking to abolish dry counties; this case is never going to end that. It’s just about ensuring fines are proportional to the specific offense actually caused, which reduces the incentive to police for profit.

Matthew Cavedon: Continuing with cases with hard-to-pronounce names — we have Sun Valley Orchards. I thought it was “Sun Valley,” but okay.

Anastasia Boden: So, this is a case about agency adjudication after Jarkesy, and what the Seventh Amendment requires. Sun Valley Orchards is a New Jersey farm that brought in seasonal workers through the federal H‑2A guest worker program. The Labor Department found a series of violations — housing with no hot water, undisclosed meal charges, unsafe vans with unlicensed drivers, workers pushed out before their contracts ended — and ordered about $212,000 in penalties and $345,000 in back wages, all decided by the agency’s own administrative judge — no federal court, no jury. Two years ago, the Supreme Court, in SEC v. Jarkesy, said the SEC couldn’t impose penalties for securities fraud in its own in-house proceedings — fraud claims look like the kind of lawsuits courts have always heard, and when the government seeks money on that kind of claim, the Seventh Amendment guarantees a judge and jury. But Jarkesy kept an exception for so-called “public rights” — matters like collecting taxes, running immigration, or handing out benefits, historically handled by the executive, which Congress can keep in-house.

Sun Valley asks where that line falls. The Third Circuit put this case on the court side: strip away the labels, and the Labor Department is suing over broken employment promises — essentially a breach-of-contract claim, the kind courts have heard for centuries — so it belongs in federal court, and the jury comes with it. The government’s best argument is that this is a voluntary program — nobody has to hire foreign workers, but if you do, you accept the government’s terms, and immigration is a classic public-rights area. The farm’s answer: if opting in is enough, Congress can call almost any regulated business a “program” and keep enforcement in-house, which would swallow the rule of Jarkesy whole. There’s some irony here too — the administration that’s attacked agency adjudication elsewhere is defending it here; not that surprising, since institutional litigants tend to defend institutional power. But the stakes go well beyond farms, since many agencies decide money claims in their own tribunals, and the line between “public” and “private” rights is carrying an enormous amount of weight for a distinction nobody’s ever stated crisply.

Matthew Cavedon: On the flip side of the government coming after you is you bringing suit against the government. Anastasia, would you tell us about Nielsen v. Watanabe?

Anastasia Boden: My favorite hobby. And this one also has a hard name — as a person named Anastasia, I sympathize with difficult-to-pronounce names. This case asks a fairly basic question: if a federal official violates your constitutional rights, can you sue him for money damages? You might assume the answer is yes — that’s very cute. If a state or local official violates your rights, Congress created a cause of action under Section 1983 — and even then, there’s an endless list of obstacles: qualified immunity, standing, ripeness, mootness, deference, and so on — but at least you can try. Section 1983 doesn’t apply to federal officials at all. So in 1971, the Supreme Court decided Bivens v. Six Unknown Named Agents, involving federal narcotics agents who entered a man’s home without a warrant, searched it, and handcuffed him in front of his family. The Court let him sue for the Fourth Amendment violation even though Congress never expressly created that cause of action, reasoning — quite sensibly, I think — that there are no rights without remedies, so there must be an implied right of action. The Court later recognized a couple more Bivens-type claims, including Carlson v. Green, allowing a suit based on deliberate indifference to a federal prisoner’s serious medical needs under the Eighth Amendment.

But after that, the Court spent the next forty years regretting the whole thing and limiting those cases to their facts. Today, unless your case is nearly identical to one of the originally recognized ones, courts say it presents a “new context” and decline to extend the remedy — the Court basically never goes out of its way to recognize a new one. Which brings us to Watanabe: he was attacked during a gang riot in a federal detention center in Hawaii, repeatedly sought medical treatment, but the prison nurse, Francis Nielsen, refused to send him to a hospital. Seven months later, doctors discovered a fractured tailbone with bone fragments that had spread into surrounding tissue. He sued the nurse for deliberate indifference under the Eighth Amendment, just like Carlson. The Ninth Circuit agreed this was effectively a Carlson claim. Nielsen argues the context is different because the injury is different, the mistreatment is somewhat different — basically, any slight difference means it doesn’t apply — and also that Congress has provided other remedial avenues, particularly within prisons, so this is fundamentally a separation-of-powers argument: courts shouldn’t create new causes of action, that’s for Congress. Under Nielsen’s reading, Carlson survives, if at all, on a very narrow factual island. Watanabe argues the relevant context is the constitutional wrong itself, not the specific facts.

I think the Court has three options: rule narrowly that this case differs from Carlson because of the injury — leaving the whole scheme in place but giving Watanabe no relief; affirmatively hold that Carlson is limited to its facts; or, worst of all, formally overrule Bivens and its progeny entirely — which is, in fact, what Nielsen has expressly asked the Court to do. We’ll see which way it goes; I hope it doesn’t trend that way, since it’s already difficult enough to sue the government, but the trend isn’t great.

One postscript: Watanabe will be heard November 9th. A week before, the Court hears a case out of the Fifth Circuit involving another federal prisoner who filed a habeas petition seeking transfer to a halfway house. Because he wasn’t seeking release from custody, the Fifth Circuit said habeas was the wrong vehicle — he should be seeking damages via a Bivens suit instead, since conditions-of-confinement claims belong in a suit for damages. The Solicitor General says that route is far-fetched, for the reasons I just described. So if both prisoners lose, you’ll have a whole category of federal prisoners holding rights with nowhere to go to vindicate them. As a further postscript — as of the appellate oral argument, several years after the case was filed, Watanabe still hadn’t been taken to see a doctor.

Matthew Cavedon: Our next suit is another tort suit, but a private one this time — or is it? Suncor Energy.

Darpana Sheth: Full disclosure, CIR has filed an amicus brief supporting the petitioners here. In 2018, Boulder County and the City of Boulder sued Suncor and ExxonMobil in Colorado state court — not under any federal climate law, but ordinary state-law nuisance, trespass, and consumer protection claims. Their theory: these companies knew their products were causing climate change, kept selling them, misled the public, and should pay a share of Boulder’s climate-adaptation costs. There’s been years of litigation just over which court hears the case — the Supreme Court sent it back once and turned it away once, the Colorado Supreme Court held federal law doesn’t preempt these claims, and there still hasn’t been a trial.

The companies argue that carbon emissions don’t respect borders — the emissions supposedly harming Boulder come from every state and every country on Earth, and for a century, cross-border pollution disputes have been governed by federal law, not whichever state happens to be downwind. In International Paper v. Ouellette, the Court said a state can’t apply its own nuisance law to pollution from another state; in AEP v. Connecticut, states tried suing power companies over greenhouse gas emissions under federal common law, and the Court said no — Congress gave that job to the EPA through the Clean Air Act. So the companies ask: if a federal court can’t impose climate liability this way, how can a Colorado jury, applying Colorado law, impose liability for essentially worldwide emissions? Boulder’s response is that this isn’t about regulating emissions at all — it’s about deception and local harm, and the remedy is money, not emissions limits; once Congress displaced the old federal common law, nothing federal is left to override state tort law.

But there’s a twist, back to the “machinery” theme: the Court added its own question nobody asked — does it even have the power to hear this case? The Court narrowly reviews state cases only after final judgment, and this one hasn’t even gone to trial. It also asked whether a damages award against just two companies could really redress an injury caused by global emissions. This matters because it’s the Court’s third look at Boulder’s suit — the first two also turned on procedure — and there are more than two dozen similar suits pending nationwide. So if the jurisdictional question decides this case, then the case the energy industry has been waiting a decade for ends without a word on preemption, the Colorado ruling stands, and the dozens of similar suits keep going.

Matthew Cavedon: Who gets to sue, and over what, is also at issue in Katibi, Anastasia?

Anastasia Boden: That’s right — and this one’s actually a pending petition, in the “long conference,” the first conference the Court holds after summer, when it decides which cases to take up. It’s my case, so I’m happy to talk about it — and happy it’s grouped among cases already granted, because I’m willing it into being granted. Our client is Dr. Azadeh Katibi, an ophthalmologist who fled Iran for freedom in America. She now has a practice and also teaches continuing medical education — highly technical courses on things like retinal tumors. The state doesn’t write these courses for her, doesn’t review or edit them, doesn’t deliver or fund them. Still, in 2022, they added a new requirement: every CME course, even highly technical ones on retinal tumors, must address implicit bias and its asserted role in healthcare disparities. Dr. Katibi doesn’t want to devote the very limited time in her courses to that divisive, contested political topic, so we challenged the mandate as unconstitutionally compelled speech.

The Ninth Circuit held that because this speech occurs within a highly regulated profession — medicine — her speech, when delivering these courses, is actually government speech, which is free of First Amendment scrutiny, the same way the government’s own speech can say whatever it wants. So it dismissed us: no claim, it’s government speech. We think that’s extremely dangerous — states regulate nearly every occupation pervasively now, and if being in a highly regulated industry makes all speech by regulated professionals government speech, the government can control speech in every regulated profession. Three judges dissented from denial of rehearing, and now it’s headed to the Supreme Court. We got an amicus brief from twelve states — it’s rare for states to say, “No, we don’t want this much power,” but here they were on our side, urging the Court to take the case because it’s a dangerous power for government to have. The Court has called for a response from the California defendants, which is a good signal for a cert grant — so, will it into being. And of course the logic wouldn’t stop with doctors — look at this room, full of lawyers — Cato’s amicus brief pointed out the consequences for other professions; many states, including California, require bias training for lawyers too.

Matthew Cavedon: Let’s keep talking about the possible cert docket. Can you talk about the cluster of immigration detention cases that have caused a circuit split?

Darpana Sheth: Definitely. There’s a lot before the Court, both already granted and coming up through the emergency docket or cert petitions. The first block concerns immigration detention. Immigration detention is a civil, not criminal, proceeding. Most people in removal proceedings are held under one of two provisions — under one, an immigration judge can set bond and release someone while the case proceeds; under the other, detention is mandatory, no bond hearing, no release however long the case takes. Which provision applies is the whole fight. For twenty-five years the Court has circled the question of whether holding someone for months or years without a bond hearing violates due process, and this term it finally granted a case on it, Genalo v. Black — then added a mootness question nobody raised, because one detainee had left the country, and on September 11th dismissed the case as moot after the other detainee was pardoned by New York Governor Hochul in August, making him no longer deportable at all. That’s now at least the third time the Court’s come close to answering this question and walked away — previously by reading a reasonable time limit into detention after a removal order, by upholding mandatory detention for the “brief period” necessary to finish proceedings, and by rejecting statutory readings while expressly reserving the constitutional question. So, eight years later, still reserved — but the question isn’t going away, and there’s a broader version of the same fight already at the Court. Genalo was about people with criminal convictions, a narrow group Congress singled out for mandatory detention. But last September, the Board of Immigration Appeals adopted a much broader position: anyone who entered without inspection counts, in the government’s words, as an “applicant for admission” — the legal fiction being that they’re standing at the border asking to come in — so they, too, must be detained without a bond hearing for the entire case. That reaches people who’ve been here ten or twenty years, with jobs, homes, even citizen children, who until last fall got bond hearings and were often released by immigration judges. Nine circuits have rejected that reading; two, the Fifth and Eighth, have accepted it; the government has petitioned from the Second and Sixth Circuits, with one petition set for the long conference on September 28th.

That’s detention — whether the government can hold you while your case is decided. The Court’s other immigration case asks a different question: asylum status — not whether you can be held, but whether you can stay. That’s the Wassili case — an Egyptian Coptic Christian who came here in 1993 and was granted asylum in 2000. Years later, he was convicted of stalking and child endangerment, and the government terminated his asylum — asylum can be revoked for fraud, changed conditions back home, or a serious crime here. The question is what happens next: federal law says someone who “has been granted” asylum may apply to become a lawful permanent resident. Does that phrase describe a status you have to currently hold — so losing asylum ends eligibility — or a completed past event that stays true even after the grant is revoked? “Has been granted” sounds like a completed event, and Congress didn’t write “who has asylum status” — but the rest of the provision is written in the present tense, so this comes down to statutory interpretation. The Fifth Circuit says people like Wassili remain eligible; the Second and Fourth Circuits say they don’t. So today it depends on where you live — and it matters more than it used to, since the government has said it will re-review asylum grants going back to 2021.

One last, related case may decide whether any of these issues get litigated at all — because people in immigration detention have no right to appointed counsel, and almost no one can pay for a lawyer. In Montoya Palacios, the question is whether a lawyer who wins a detention case can recover fees from the government under the Equal Access to Justice Act. The Second, Third, and Tenth Circuits say yes; the Fourth and Fifth say no. So whether a detainee can even find a lawyer at all depends on where the government chose to detain him.

Matthew Cavedon: All right, we’ve got a little less than twenty minutes left, three more cases, and I want to leave time for the floor — so let’s keep the last couple a bit shorter. Let’s talk about Kalshi, the prediction market — Anastasia.

Anastasia Boden: Oh, this is a fun one, since we’re talking about what the Court might grant and might not. This is another pending petition, not yet accepted, though I think there’s a good chance it will be. New Jersey has asked the Supreme Court to take up the fight over prediction markets — companies like Kalshi and Polymarket, which let people bet on the future: sports, elections, earthquakes, weather, box office numbers, how many times the president will say “Sleepy Joe” this week, how many hot dogs Joey Chestnut will eat, whether Costco will raise the price of its hot dog combo — a lot of hot dog bets, apparently. Unlike a casino, where you bet against the house, here you’re buying futures against an event; the price isn’t set by a “house,” it’s set dynamically by the market, and you can sell your position before the event happens to another buyer — you’re trading with other takers, not betting against the company hosting the trades.

Naturally, people want to regulate this, so states and the federal government are fighting over who gets to. States, across party lines, want to regulate prediction markets the same way they regulate sports betting — they say it’s the same thing. But these companies, backed by President Trump, say they’re federally regulated financial exchanges under Dodd-Frank, reporting only to a federal agency, not the states — which matters because it’s the states trying to regulate and shut them down. It’s also worth noting casinos clearly don’t want this competition, so they’re pushing states to regulate and help shut it down. There’s a circuit split: the Third Circuit said federal law — Dodd-Frank — preempts state regulation; the Ninth Circuit ruled the other way, that states, in that case Nevada, can regulate. That creates havoc for these markets, since depending which circuit you’re in, you report to the state or just the federal government. I think it’s quite likely the Court takes this up.

Best argument, one sentence each side: for Kalshi, Congress gave the CFTC authority to regulate “swaps” — a specific term, financial trades contingent on future events, very different from casino gambling, because you’re trading with other people, not against a house with fixed odds, and you can exit before the event happens. For New Jersey: come on, Congress enacted Dodd-Frank to regulate Wall Street derivatives — this is gambling, let us regulate it as gambling.

Matthew Cavedon: Darpana, if you’d give us a quick look at the Corporate Transparency Act, and then Anastasia for one more quick summary, and then we’ll open the floor.

Darpana Sheth: This is one of CIR’s petitions — there are two separate challenges to the Corporate Transparency Act, and CIR represents Texas Top Cop Shop. For those who don’t know: the Act requires roughly thirty-two million entities — LLCs, small corporations, even nonprofits and civic organizations — to report their beneficial owners to a law enforcement bureau at the Treasury Department, including names, birth dates, home addresses, and identification numbers, all going into a federal law enforcement database. Failure to report carries civil penalties and even criminal exposure. And the trigger isn’t selling anything, shipping anything, or crossing state lines — it’s simply filing formation papers with a state. The statute exempts large operating companies and regulated industries, so the burden falls on the smallest entities — the two-person LLC, the neighborhood association.

The issue is whether this exceeds Congress’s Commerce Clause power. Congress can regulate the channels of interstate commerce, its instrumentalities, and activities that substantially affect it. Even Raich, the broadest of these cases, was about the activity of growing and consuming a commodity. But the Corporate Transparency Act doesn’t regulate any activity — it regulates the mere existence of a company. Incorporate, and you owe the report, whether or not you ever open a bank account or make a sale. The government’s answer is that entities are inherently economic, anonymous shell companies are a favored vehicle for laundering money across borders, and requiring disclosure of ownership is ordinary economic regulation. And here’s the part that fits the term’s theme: the Treasury Department has retreated. In March 2025 it issued an interim rule exempting domestic companies and U.S. persons, and last month made that rule permanent — so the government is now telling the Court there’s nothing left to review. But the statute is still on the books, foreign companies registered here still have to report, repeal bills in Congress have failed, and what an agency exempts by rule, it can un-exempt by rule — the classic voluntary-cessation problem: a party can’t moot a case just by promising, for now, not to do the challenged thing. So we have a statute that reaches thirty-two million entities that may never actually be tested — not because it’s constitutional, but because the executive has decided, for now, not to enforce most of it.

Matthew Cavedon: And last but not least, Mi Familia Vota.

Anastasia Boden: Yeah — first, a postscript on prediction markets: you can actually bet on Polymarket on whether the Supreme Court takes the Kalshi case — Kalshi itself won’t let you bet on its own case, so go to Polymarket for that one. Also, I don’t want to be unfair to the government and chalk this all up to states responding to casinos wanting to shut these things down — there are real concerns about these markets. There’s been some self-dealing: George Santos, for instance, bet on whether he himself would attend the State of the Union. There was reportedly a high military official, with knowledge of future national-security events, betting on whether the U.S. would invade Venezuela. And a Trump teleprompter operator bet on how many times a word would appear in an upcoming speech. So there are real self-dealing concerns, which is part of where the push for regulation comes from — though the companies are trying to get ahead of it; they did ban George Santos for life. It’s really a question of who’s in the best position to regulate, and how much.

Anyway — Republican National Committee v. Mi Familia Vota. After last term — birthright citizenship, Humphrey’s Executor, conversion therapy, transgender athletes, voting rights, digital surveillance, tariffs — some people think this is a “sleeper” term, since it’s hard to compete with that. But it actually has plenty of consequential cultural cases too, and this one, about voting rights, is probably going to get a lot of attention.

The facts: Arizona, like all states, only allows U.S. citizens to vote in federal elections. States set eligibility for federal elections, but Congress has power to regulate the manner of federal elections, and under that power created a federal voter registration form requiring only an attestation of citizenship — no additional proof. The Supreme Court has previously held the National Voter Registration Act requires Arizona and other states to accept that federal form, with no additional corroboration required. Arizona, however, does require proof of citizenship for state elections. So what happens if someone submits the federal form without proof of citizenship? Arizona calls that person a “federal-only voter” — accepted for federal elections, as it must, but not for state elections. Arizona also has its own state form requiring proof of citizenship, which, if used properly, registers you for both state and federal elections — but if someone uses that state form without attaching proof of citizenship, Arizona rejects the application outright, rather than treating them as a federal-only voter. Arizona’s argument is that the Supreme Court only addressed the federal form — it didn’t dictate what happens with the state form, and Congress’s power extends only to the manner of federal elections. So this is Arizona’s way of trying to work around the earlier decision forcing it to accept voters without additional citizenship proof, at least when they use the state form.

A group of challengers sued, arguing Arizona is just trying to skirt federal law, and also challenged a separate Arizona process removing confirmed noncitizens from the rolls during the 90-day “quiet period” before an election — the National Voter Registration Act requires states to complete any systematic program to remove ineligible voters at least 90 days before a federal election, to prevent chaos and give time to fix errors. The Ninth Circuit held Arizona can still remove someone based on an individualized investigation — if it confirms someone is a noncitizen, it can remove them — but can’t run a systematic purge that close to an election. So it’s an interesting case touching voter ID, state authority, federal authority, and separation of powers.

Audience Q&A

Matthew Cavedon: We have about seven minutes for questions — we’ll open them up online and in person. Online, submit questions via the event webpage, Facebook, YouTube, or X, using #CatoSCOTUS. In person, please speak clearly and directly into the microphone, announce your name and affiliation, and end all questions with a question mark. Sir, on my right.

Audience member (Peter Humphrey): Peter Humphrey, an intelligence analyst and former U.S. diplomat. Ms. Boden — I’m wondering if I can bet on Kalshi on whether Kalshi gets picked up by the Supreme Court, and whether they win. But what I really want to ask: isn’t it possible to benefit from expanding a jury to, say, eighteen members, statistically taking advantage of all that research you described, but only require fifteen to find guilt — getting past the objection too? Seems like a no-brainer to me. Your comment?

Anastasia Boden: On the first one — actually, it’s Polymarket that lets you bet on Kalshi’s case; Kalshi itself has said you can’t bet on its own case. On the jury question: the Sixth Amendment only sets a floor — twelve is the minimum, and unanimity is required in certain cases — but if states want to go beyond that, I think they can. Surely there’s a point where the benefits run out — where it gets to be too many jurors, too expensive — but right now I don’t see that being a huge problem. If anything, the problem we’re seeing is these six-person juries, which have been well documented as problematic.

Audience member (Peter Humphrey): And what about a unanimous jury?

Anastasia Boden: Well, in cases where it has to be unanimous, you can’t just add jurors and say now you only need twelve of fifteen, or something — that would defeat the point. And there are only five states with a less-than-twelve requirement in the first place.

Matthew Cavedon: All right, next question — gentleman with the golden tie at the end of the row, you’re the next contestant.

Audience member (Pat Spann): That’s my West Point tie. Pat Spann, retired government employee. I’m wondering — it’s been pending for a few years now, ever since 2015 when women were allowed into the infantry and armor — is the case about women registering for the draft coming up?

Anastasia Boden: I’m not sure — not that I know of. There’s such a long list of interesting pending cases, if I could just give you one word for each — there’s a “Let’s Go Brandon” case, where a kid wore a sweater his mother gave him with that on it and was punished for it. There’s an armband case pending too. There are cases about the speech rights of people here legally but who aren’t citizens.

Darpana Sheth: We’ll find out a lot of that soon, because so many of those are pending for the long conference on the 28th — so October 5th is when we’ll know a lot more. There’s a DOGE case. There’s Trump v. Carroll. There’s going to be Lisa Cook follow-ups. There’s a Ten Commandments case, on whether it’s constitutional to display them in schools. There’s the White House ballroom case. There’s a lot pending — and when I was doing my research, I didn’t come across a draft-registration case at the moment.

Anastasia Boden: I haven’t seen a petition on that one either — not to say there isn’t one out there, but I haven’t seen it.

Matthew Cavedon: Front row — Richard Coleman, retired government employee.

Audience member (Richard Coleman): What’s the presumption of guilt that allows ICE to round people up and put them in a box, denying them normal human care? Where does that authority come from, and how does this persist in our country for so long?

Darpana Sheth: You’re exactly right — there is none, there’s no presumption of guilt, and there are a lot of challenges now against ICE, both over how it’s treating individuals and over how it’s trying to stifle transparency by treating people who record and broadcast that activity as though they’re committing a crime themselves — which, of course, is protected by the First Amendment, so I’m sure we’ll see cases percolate on that. I know my former employer, FIRE, has one, and there are others around the country brought by the ACLU. There are also cases being litigated right now in the lower courts challenging the use of ethnicity, appearance, and occupation as bases for immigration stops — those are Vasquez Perdomo and United Farm Workers, both originating in California district courts. There’s also a case about immigration arrests, rather than stops, based on the same factors — that one’s called Escobar Molina, and Cato will be filing an amicus brief in it. We also filed in United Farm Workers — you can learn more about both at cato​.org.

Matthew Cavedon: All right, we’re coming up close on time, so I want to be mindful of that — we’re going to take a break, and then at 5:15 is the annual B. Kenneth Simon Lecture, by Tara Grove, Vinson and Elkins Chair in Law and Professor of Law at the University of Texas at Austin School of Law. So go ahead, do whatever you need to do to be ready for that, and we’ll begin shortly. Thank you all very much.

This transcript was generated using AI automation and may contain minor formatting or transcription errors. Please refer to the original audio to verify specific quotes or context.

Annual B. Kenneth Simon Lecture: The Fragility of Judicial Independence

Cato Institute — 25th Annual Constitution Day Conference

Speaker: Tara Grove, Vinson & Elkins Chair in Law and Professor of Law, University of Texas at Austin School of Law

Introduced by Clark Neily, Senior Vice President for Legal Studies, Cato Institute

Introduction

Clark Neily: Good evening. Good evening. I’m Clark Neily, Senior Vice President for Legal Studies here at the Cato Institute. Appreciate all of you turning out — it’s been a great day of interesting conversation, and we really appreciate your interest. Now it’s my tremendous honor and pleasure to introduce our B. Kenneth Simon lecturer this evening, Tara Grove, professor at the University of Texas School of Law — my alma mater — and holder of the Vinson & Elkins Chair there. Tara is one of the nation’s leading scholars on federal courts, constitutional law, and separation of powers. She clerked for Judge Emilio Garza on the Fifth Circuit Court of Appeals, and was a DOJ appellate lawyer for a number of years as well. I could go on and on, but you’re here to hear her, not me — the less I talk, the more she gets to communicate with you. There’ll be questions at the end, and we’re going to hear about, I believe, judicial independence and the importance of it. Tara.

Lecture

Tara Grove: So thank you so much — thanks very much to Cato for inviting me. I’m delighted to be here on Constitution Day. I love the United States Constitution — I’ve been trying to make Constitution Day happen in my own family. I give my kids ice cream and cookies, I kid you not, on Constitution Day, because I want them to feel this is like Halloween, Christmas — this is great.

So, earlier this week, the Supreme Court weighed in on a case involving mail-in ballots. As you may know, the president had issued an executive order on the topic, and the U.S. Postal Service eventually came up with a plan saying, essentially, “For any mail-in ballots, they need to be in this kind of envelope, and we need information about voters, or we’re not going to deliver the ballots.” A federal district court enjoined that postal service rule. It went up to the U.S. Supreme Court, and the Court left the injunction in place on its emergency docket. Well, the President of the United States did not take kindly to this judicial interference. Just to quote a few of his comments: he called it “a shockingly bad ruling.” He said the Supreme Court had “been bullied and cajoled by the radical left.” He added, referring to his own nominees — Justices Gorsuch, Kavanaugh, and Barrett — “These are not the people I interviewed to serve on the U.S. Supreme Court. They are merely a shadow of their original selves.” And combining that with recent decisions against his administration on tariffs and birthright citizenship, President Trump said, “This is a court that will go down as having rendered some of the most destructive, hurtful, and damaging decisions in our country’s history.”

So that was the president’s reaction earlier this week. But what’s important is not just that reaction, but what Attorney General Todd Blanche said the very next day. He went in front of the press and said, “We disagree with this decision, we think it’s bad” — but, quote, “Of course, we’re going to comply with the Supreme Court’s decision, as we always do.” I’m not going to weigh in on the merits of the mail-in ballots case — I mention this example because it’s an example of judicial independence. The president made clear he despised the Supreme Court’s decision and the district court’s decision, and yet the administration said, “We will comply with it.” That’s a crucial example of judicial independence. But what I want to suggest is that we should not take this kind of independence for granted. You can call my talk today “the fragility of judicial independence,” or you can call it “does the federal judiciary really have any friends left?”

Judicial independence was a big deal to the framers. This is the 250th anniversary of the country, as well as Constitution Day — the Constitution itself isn’t quite 250 years old, but let’s go back to the Declaration of Independence. Thomas Jefferson drafted it to list a bunch of reasons for breaking from Great Britain, and one of them was that the king did not respect judicial independence. Jefferson wrote that the king had “made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries.” That was one of the reasons for the revolution. In a couple of minutes I’ll talk about how much Jefferson actually lived up to those words, but it’s still part of our system, and part of the constitutional scheme that came later.

So what is judicial independence? I’m going to talk about two different parts. The first is the one we think about most: decisional independence — the idea that a court can rule in a case without fear the judge might lose their job, without fear of violence, without fear the court itself will be attacked. The judge can just say, “This is what I think,” and others will listen and obey, not attack. That’s decisional independence. The other part is perceived independence — the faith of the entire community that judges will actually rule on the law, not because a particular political party or figure wants a particular outcome. Judges need decisional independence, but for the judiciary to have legitimacy, it also needs perceived independence. And I want to suggest we have that today, and it comes from a few different places — but it is by no means guaranteed.

So where does our judicial independence come from? One place is Article III of the Constitution — remember Jefferson’s concern about tenure and salaries? Article III seems to take care of that: judges serve during “good behavior,” which we’ve interpreted to mean, over time, for life — I’ll give you an exception later — and their salaries can’t be reduced during their term. Great, judicial independence, awesome. But the Constitution doesn’t say much else. Judicial independence in our country actually depends on a whole bunch of other things. One is norms. The example I mentioned — compliance with federal court orders — is actually a norm of our legal system, not a constitutional command. Another norm: you can’t be removed from office as a federal judge except through impeachment. A third: you can’t be impeached just because you issued a decision somebody doesn’t like. Another: we don’t expand or contract the size of the Supreme Court because of disagreement with its decisions. And judges don’t have to face violence for issuing an unpopular decision. These are crucially important norms, but they’re not the only protection. Another has been what I’ll call the “backup system” — throughout much of our history, some political party has liked the judiciary and defended it. That’s changed a lot over time as the Court’s decisions have changed, but there’s usually been someone in that role. And I’m going to suggest that all of this is potentially in trouble.

So first, let’s talk about how long it actually took for judicial independence to take hold — starting with Mr. Jefferson. For all the Hamilton fans, I’m going to talk about the Federalists and the Democratic-Republicans; for everyone else, I’ll catch you up. The election of 1800 was a highly fraught election — Federalist John Adams against Thomas Jefferson, with Aaron Burr thrown in, a huge mess. The Federalists and Democratic-Republicans hated each other; each was convinced the other side taking power would be the end of the country. I’m sure you can’t imagine that kind of partisan feeling in any world today, but that’s how they felt. In the election of 1800, the Democratic-Republicans trounced the Federalists — Jefferson won, and the Democratic-Republicans were about to take both the House and the Senate. The Federalists, still in power for a couple more months, thought this was the end of the world, so they did a bunch of things. One: they added lots of federal judges. After the election, but before Jefferson and the new Congress took office, they created sixteen new Article III judgeships — basically doubling the size of the federal judiciary. They also said the Supreme Court justices no longer needed to “ride circuit” — back then, justices also served as lower court judges and traveled the country — and if they weren’t doing that, they didn’t need six justices anymore, so they shrank the Court from six to five. And maybe, just maybe, the Federalists were trying to make sure Jefferson would have trouble appointing a Supreme Court justice. The Jeffersonians looked at all this and said, “Are you kidding?”

So when the Democratic-Republicans took over, they made it their mission to undo a good deal of it. In 1802, they enacted the Repeal Act and eliminated those Article III judgeships. Now — something often missed in the history books — there was a full year between the Federalists’ 1801 act and the repeal, and at least fifteen of those sixteen judgeships had actually been filled; those people served as judges for about a year before being repealed out of existence. The Federalists still in Congress said, “You can’t do that — Article III says they serve during good behavior, meaning life tenure, and you’re also taking away their salaries, you can’t do that either.” The Democratic-Republicans responded, I kid you not, on the legislative floor: “Don’t worry, we’re not firing anyone — we’re just abolishing their positions. Totally different.” So remember what Jefferson wrote in the Declaration about the tenure of judicial offices? Apparently, not so much — salaries gone. The judges actually went to the Democratic-Republican Congress and asked at least for the salaries they would have received. Congress said no, too expensive.

So they’d already removed a bunch of Article III judges despite what Article III says — but they didn’t stop there. The Jeffersonians reinstituted circuit riding and put the sixth seat back on the Supreme Court, adjusting its size yet again. And they still weren’t done — they were unhappy with the Federalists remaining on the federal judiciary, and thought, what better way to get rid of them than impeachment? They impeached a district judge in New Hampshire, John Pickering. Pretty much everyone agreed he wasn’t fit to serve — he was known as something of a drunk, not all there — and a lot of people thought he shouldn’t be on the bench. But everyone also agreed he hadn’t committed anything amounting to treason, bribery, or high crimes and misdemeanors, which under the Constitution are supposed to be the only grounds for impeachment and removal. The Democratic-Republicans impeached him anyway, and he was gone — seen as a precedent for going after other Federalists on the bench who’d been annoying them.

The next target was Justice Samuel Chase. One could see Chase as a victim in this story, but from the Democratic-Republicans’ perspective, he wasn’t — he’d engaged in absolutely partisan activity enforcing the Sedition Act, enacted by the Adams administration ostensibly to prevent criticism of the government but enforced specifically against Democratic-Republicans, and Chase seemed eager to enforce it while riding circuit as a lower court judge. They really hated him — but keep in mind, they were impeaching him because of his decisions, because of what he was doing as a judge. The impeachment went through the House, but on a very close Senate vote, Chase was not convicted or removed — which many took as a precedent that you can’t actually impeach a judge just because you don’t like what they’re doing as a judge.

Now, one might ask: why didn’t the Federalists stop all this? They knew firing Article III judges was unconstitutional — it was their own judges being impeached. They couldn’t stop it because there weren’t enough Federalists left in Congress, and the Federalist Party itself dissolved around the War of 1812. We actually had one-party, Democratic-Republican rule for several decades in the early nineteenth century — so there was no one left to defend the courts.

So how did we eventually develop these norms of judicial independence? Slowly, over time. The norm against impeaching judges for their decisions really did take hold after the Chase example. The others took much longer. Abolishing judgeships to get rid of judges was still seen as a viable — if controversial — method: it was used again in 1863, almost used again in 1911, and wasn’t really taken off the table until the 1930s, when people across both parties started to agree you can’t get rid of judges except through impeachment.

What about changing the size of the Supreme Court? That happened throughout the nineteenth century — the Court’s size went up and down quite a bit during the Civil War and Reconstruction — but many people think that by the time of Franklin Roosevelt’s 1937 court-packing plan, it was off the table. In fact, here’s the story usually told about that plan: this extremely popular president proposed it, everyone thought it was crazy and terrible, Democrats and Republicans alike rejected it, it went away, and Roosevelt hung his head. If you go to the Smithsonian’s American History Museum, the presidents section — that’s the story it tells. I saw it with my daughter. By the way, do you know who chairs the Smithsonian’s board? Chief Justice John Roberts. Very convenient story for him. It’s also not true — I wish it were. In 1937, there was some Democratic opposition and a lot of Republican opposition, but also tremendous support, including from people like Senator Hugo Black, who later joined the Supreme Court himself, and a lot of support from Southerners and others who hated the Court at the time for rejecting Roosevelt’s New Deal program. Roosevelt had overwhelming majorities in both chambers — he could lose a few Democrats and still have a majority; many House members owed their seats to the 1936 Roosevelt landslide. So yes, there was opposition, but with a filibuster-proof Senate majority, it could plausibly have passed — and at one point it looked like even adding four justices might get through — until the sudden death of Senator Joe Robinson, one of the plan’s Senate floor leaders, after which support dwindled fast. There was opposition, don’t get me wrong — but one other thing changed in 1937: the Supreme Court’s jurisprudence on the commerce power, the Due Process Clause, and other things completely transformed, and a lot of people doubt Roosevelt’s plan would have failed had the Court not changed course. We’ll come back to that.

After 1937, people got spooked about court packing, and starting in the 1950s, “court packing” became a political epithet used by both parties — anyone proposing a judicial reform you didn’t like, or nominating a judge the other side didn’t like, got accused of “trying to pack the Court,” even when a president was simply filling an existing vacancy. Democrats and Republicans both talked this way — Joe Biden, for instance, referred to Robert Bork’s nomination as an effort to “pack” the Supreme Court. Court packing became a political epithet you just didn’t do — and that held for decades.

What about compliance with federal court orders? Back in the days of the Marshall Court, when Jefferson was president, the Court didn’t assume Jefferson would adhere to everything it said — including in Marbury v. Madison. One reason the Court found it lacked jurisdiction to actually order the Jefferson administration to give William Marbury his job was that the justices assumed the administration would simply ignore any order it issued. So while Marbury is remembered today as this landmark judicial-review decision, the Court, in exercising judicial review, found it had no jurisdiction partly because it knew Jefferson’s administration didn’t care what it said. The reality of executive compliance with court orders came much later.

I expected, by the time I got to the civil rights movement of the 1950s and ’60s, to find a strong norm of compliance already in place. I figured segregationists would oppose Brown v. Board of Education but still say, “Of course you have to comply with federal court orders.” That is not what happened. When segregationists defied desegregation orders, yes, they were criticized by supporters of desegregation — but their defiance was openly supported by fellow segregationists. One example, from the Congressional Record: Senator James Eastland, a powerful Southern Democrat from Mississippi, referring to Governor Ross Barnett’s effort to keep James Meredith out of Ole Miss, said on the floor of Congress that Barnett had “courageously and boldly pressed himself forward, both as governor and as an individual, and obstructed an order of a U.S. court.” That was said approvingly, on the floor of Congress. The norm that we comply with federal court orders actually developed after that — I think in part because of Brown and the era of “massive resistance” to it. After people came to see Brown as one of the most important and revered decisions in American constitutional culture, they no longer wanted to be equated with the villains who’d defied desegregation orders, and so compliance became the norm. Even Nixon, during the tapes litigation, had an attorney who suggested the president might not comply with a Supreme Court decision — and Nixon was told by people in his own party, “If you don’t comply, you will be impeached and removed.” So he complied, and so did every subsequent president: George W. Bush wasn’t happy with the Court’s Guantanamo decisions but said, “I don’t like it, but of course we’ll comply.” Trump, in his first term, complied with injunctions on the travel ban and sanctuary cities. Biden complied on environmental law and student loans. And Trump, in his second term, has complied with most federal court orders — some took a little while, but as Attorney General Blanche says, the DOJ’s position is that we must comply. That’s become a hugely important norm.

Meanwhile, by the late nineteenth century we also had competing political parties, one of which tended to defend the federal judiciary at any given time. In the late nineteenth and early twentieth centuries, populists and progressives, mostly in the Democratic Party, hated what they saw as a pro-business federal judiciary and proposed all sorts of ways to strip its jurisdiction — while pro-business conservatives, mostly Republicans, said no. Fast-forward several decades, and it was social conservatives from both parties attacking judicial decisions in the wake of Brown, and on abortion and school prayer, while social progressives, again from both parties, said no, not acceptable. The courts, in other words, always had defenders somewhere.

So what about now? I mentioned court packing was a political epithet — until 2018. Starting then, more and more political leaders began saying, actually, expanding the Supreme Court might be a good idea. And notice: if you support it, it’s “expanding” the Court; if you don’t, it’s “packing” it — you can tell how people feel by which term they use. I served on President Biden’s presidential commission in 2021, so I’ve heard a lot of these debates. So — that norm is at least in trouble. Based on a poll I saw just this year, half the country is now at least open to expanding or packing the Supreme Court. I want to underscore what a stunning figure that is — it would have been tiny just a few decades ago.

What about impeachment for decisions? That norm is in trouble too. In 2025, after a federal district court issued an order in one of the many immigration cases, President Trump said the judge should be impeached and removed. Chief Justice Roberts actually responded, in a rare moment of public speaking for a Chief Justice, saying, no — for over 200 years we’ve said impeachment isn’t for this. But apparently no one listened, because in January 2026 there was a congressional hearing about impeaching “rogue judges.” And after the birthright citizenship case, a prominent member of Congress posted on social media something like, “We need to get rid of rogue activist judges — I’m looking at you, Justice Barrett.” People are now talking about impeaching judges not for treason, bribery, or high crimes and misdemeanors, but simply because of the decisions they issue.

What about compliance with orders? I’ve heard the sighs already about the current administration, and there have been real questions about compliance in immigration cases — but it’s not just this administration. After a federal district court issued an injunction against the use of mifepristone during the Biden administration, the decision was called “egregious” and issued by “an extremist judge,” and members of Congress said the Biden administration had the authority to simply ignore the ruling — even if the Supreme Court let it stand. (The Court ultimately rejected the case on jurisdictional grounds.) This is coming from both sides — people saying we can just defy federal court orders we don’t like.

And what about violence and threats? Those are way up too, by orders of magnitude. Many of you have probably heard that after the Dobbs draft opinion leaked, there was an assassination attempt on Justice Kavanaugh — it was thwarted, didn’t get far, but it happened. There’s also “doxing” — posting judges’ personal information online so people can find their kids, their homes. A number of judges, after hearing cases involving the executive branch, have reported receiving pizza deliveries they never ordered — “pizza doxing.” Why is that a problem? Free pizza, right? What the delivery is actually communicating is, “We know where you live.” In several of these cases, the delivery is placed in the name of a specific family member. Many of you may remember that in 2020, someone went to New Jersey District Judge Esther Salas’s house and murdered her son. In these pizza-doxing cases, whoever orders the pizza puts it in the name of that judge’s own son. It’s clearly meant to send that exact message. There’s also “swatting” — falsely reporting a crime at someone’s home to send police there. Justice Barrett has recounted this happening to her family: someone reported a crime at her house, and her teenage son opened the door to find a wall of police officers. Judges are terrified. This didn’t used to happen on any regular basis, and it seems to be increasing.

Meanwhile — which political party is defending the federal judiciary today? I’m looking. When I see criticism of Justice Barrett now, I actually have to read further to figure out whether it’s coming from the right or the left, because everyone’s angry. People used to say, “We don’t like some of the decisions, but overall the judiciary looks fine.” Now, many politicians are essentially saying, “If you don’t rule our way every single time, you don’t deserve to be part of the federal judiciary.” That is an extreme danger to judicial independence.

Now, when I talk about this, people often say, “What’s the big deal — they won’t actually remove judges, won’t actually impeach and remove them, won’t actually disobey a court order, won’t actually pack the Court. This is just a warning: ‘we’re watching you, we want good decisions.’ ” And people tend to say that’s fine, as long as they’re happy with the outcome. Remember Roosevelt’s court-packing plan — Roosevelt himself said he lost the fight but won the war, because in 1937 the Supreme Court’s commerce-power and due-process jurisprudence completely transformed and remains transformed to this day. Chief Justice Roberts is said to have switched his vote in NFIB v. Sebelius, the Affordable Care Act case, partly out of concern about repercussions. I know plenty of progressives who say, “Great, that’s exactly the kind of pressure we need.” What I want to suggest is that this kind of pressure, whatever your politics, can be deeply dangerous — because it can lead courts to balk exactly in the cases where we most need them to stand firm.

Back to the civil rights era: people celebrate Brown v. Board of Education, and they should — it held that segregated schools are inherently unequal. But look at what happened the next year. The Court in Brown didn’t issue a remedy; it scheduled reargument on remedy for the following year. In 1955, Thurgood Marshall, then an NAACP attorney, went back to the Court and argued for a firm desegregation deadline — September 1955, or September 1956 at the very latest — warning that anything mushier would let segregationists fight desegregation tooth and nail. He got some arguable support for that warning from, of all people, the attorney general of South Carolina, who argued the opposite — that desegregation couldn’t happen for decades, maybe not until 2045, ninety years out. So the Court got the message that setting a firm deadline risked outright disobedience. Instead of a firm date, it ordered desegregation “with all deliberate speed.” When I teach Brown, I tell my students: imagine I assign a paper due May 24th versus a paper due “with all deliberate speed” — when would you turn it in? The answer I get is usually “never,” which is roughly how desegregation actually proceeded until the Civil Rights Act of 1964.

Another example, also from 1955: the Court took up a challenge to Virginia’s ban on interracial marriage — the ban eventually struck down in 1967’s famous Loving v. Virginia. But this challenge came in 1955, and the lawyer argued that a ban on interracial marriage was obviously unconstitutional just one year after Brown. I think the Court actually agreed — but was terrified to say so that soon after Brown. We know this because we’ve seen the justices’ internal papers: Justice Frankfurter circulated a memo saying essentially, “We cannot rule on this while the Brown decision is still being fought over.” So the Court first dismissed the case by saying it couldn’t tell what the Virginia Supreme Court had actually ruled — and the Virginia Supreme Court essentially said, “Uh, yes you can” — and when it came back up, the Court dismissed it again, this time saying it didn’t present “a substantial federal question.” I want to underscore: at that point in its history, the Court didn’t have the broad discretion over its docket it has today — it was actually required to hear and decide that case, and it refused anyway, because it was afraid of the reaction.

So, yes, threats work — but maybe that’s not how we want an independent federal judiciary to operate. I’d rather it be independent. So how do we get there? Obviously there’s a lot working against the judiciary right now, just as there is against institutions generally — trust in institutions is way down, and we’re in a much more divided political moment, though we’ve had other periods of deep partisanship, so that alone doesn’t preclude judicial independence. But I do think we need to tone down the rhetoric. The Brennan Center, Berkeley Law’s Center on Justice, and the NYU Rule of Law Institute have all recently issued really important, deliberately bipartisan reports on threats to the federal judiciary — I recommend reading them — and they all say we need to tone down the rhetoric. I agree, and not just about violent threats. All the norms I’ve named — compliance with court orders, restraint on expanding the Court, restraint on threatening judges, restraint on calling for impeachment over decisions — are being tested right now, by rhetoric from both sides of the aisle. No matter what a judge does, someone will not just criticize the decision but call the judge an extremist, a rogue judge, and demand “we need to do something.”

So here’s what I want to suggest: turn down all of the rhetoric. No one should ever call for impeaching a judge, no matter how bad you think their decision or track record is. No one should ever call for or threaten violence against a federal judge. And — more controversially — no one should ever call for packing the Supreme Court just because you don’t like a decision.

But here’s the last thing I’ll say. We talk about judicial independence because it’s so important to our democracy and constitutional system — it is important, and today I’ve heard people talk about really important cases where they went to the federal judiciary saying, “Please check the executive branch,” or “check Congress,” or “check the states.” All very important. But here’s the thing — and I hope, if nothing else, I’ve convinced you of this — judicial independence rests on a whole bunch of political realities: whether we have a functioning two-party system, and norms that don’t come from the judiciary itself, but from the political branches. So I want to suggest to you: the judiciary can’t save our democracy. The judiciary can’t save our political system. Judicial independence can only exist — judges can only really issue decisions they know will be complied with, that they know won’t lead to sanctions — if we already have a reasonably well-functioning democracy and political system. I’ll stop there.

Q&A

Tara Grove: Yes — either one of you.

Audience member (Roger Pilon): Thank you very much.

Tara Grove: Yep.

Audience member (Roger Pilon): I’m Roger Pilon. I wonder how much of what you’re talking about is a function of the judges and justices themselves. Let’s go back to the court-packing era — is it your view that the “switch in time that saved nine” was itself a function of the Court responding to the landslide election of 1936, when all but two states, Maine and Vermont, went for Roosevelt, and the House was four-to-one Democrat? Is it conceivable that the Court made that switch because it realized that ruling otherwise would produce such a reaction in the country that it would give credence to court packing? We see this in other areas too — I’ll give one example: the Wisconsin Supreme Court election last cycle was an extraordinarily expensive race, and the Democratic nominee was right out in the open telling people, “This is what I will vote for once I’m on the court” — which of course raises judicial ethics questions of its own.

Tara Grove: So, on the history — this takes us back to 1936 and ’37. There’s a case, West Coast Hotel v. Parrish, that’s called “the switch in time” case. It’s not actually clear it deserves that label, because the Court had voted privately to uphold the state law at issue back in December 1936 — possibly influenced by the election, possibly not; maybe the lawyers’ briefs were just good. So I don’t personally assume that particular decision was caused by the court-packing plan. What’s much harder to ignore is the rest of what the Court did in the spring of 1937 — decisions from the very same justices that were just very different from what they’d been issuing barely a year before, suddenly quite favorable to Congress’s Commerce Clause power. Maybe it was better briefing, maybe better lawyers, that’s all possible — but when you look at the overall sea change, it’s hard not to think the justices were influenced. I’d add: when judges are influenced by external forces, I don’t assume it’s conscious. It’s genuinely hard for judges to admit to themselves that they’re deciding a certain way because of outside pressure. They clearly knew it, in the interracial marriage case in 1955. But in other cases, I think they just convince themselves “the law must be X” — and it sure feels convenient when X also happens to mean the Court won’t be attacked.

Tara Grove: Yes — J.B. Hogan.

Audience member (J.B. Hogan): You started out talking about the Democratic-Republicans trouncing the Federalists — but you didn’t mention that there had also been late-term appointments that ran contrary to the public will after the people had spoken. You mentioned it wasn’t treason — but if you’re asking judges to violate their oath to the Constitution through some interpretation, isn’t there some argument that violating your oath to the actual Constitution is itself grounds that need addressing? So — more on that point — were those Federalist appointments themselves late-term appointments violating the spirit of the republic? And today, we actually have people proudly saying they’re anti-Constitution — shouldn’t the bar be: if you’re against the Constitution, amend it, rather than getting elected to a job whose oath is to defend the Constitution?

Tara Grove: So — one of the things I was trying to point out about the Democratic-Republicans is that they had reason to be angry. They’d won the election, and suddenly the Federalists were packing the federal judiciary with appointees on their way out. Justice Chase was not exactly an ideal member of the federal judiciary. They had real reason to be angry — and I think it’s an important precedent, because people today think they have very good reasons to be angry too. If you talk to progressives who support court reform, they’ll say Merrick Garland should be on the Supreme Court and was denied even a Senate vote; that Justice Gorsuch sits in what they call a “stolen seat”; that Justice Barrett was confirmed at the last minute after both parties had said they wouldn’t do last-minute appointments — and they say that justifies their proposed remedies. One of my points is: I don’t think however badly you believe the other side has acted, that justifies eviscerating the judicial independence I think our courts should have. But it’s absolutely true that everyone believes the other side was so awful that it justifies extreme action in response — and that’s not unique to 2026, it was just as true in 1801 and 1802.

Tara Grove: Are there other questions? Am I missing anyone? All right — in the back, toward the front of the back.

Audience member (Molly Nixon): Thank you — that was fantastic. This is Molly Nixon, from Cato. I had a question about your research on executive branch compliance with judicial orders — whether you found compliance with the order itself tracking with compliance with the reasoning of the order, over time. Do those run in parallel? And do you think the latter is a norm now, and if so, is it as valuable a norm as compliance with the order itself?

Tara Grove: Right — so what I was trying to figure out historically was when there was a norm of complying with the orders themselves, not the reasoning. I gave “norm” a pretty high bar — if you violate it, people from your own political side need to actually criticize you for it, which, as I said, really didn’t start happening until the 1970s or so, even though most of the time people abided by federal court orders anyway, for lots of other reasons. You’re also asking about judicial supremacy — the idea that you have to accept not just the decision but all the reasoning within it. I think that’s a pretty broadly accepted notion in our country, though I don’t treat it as a “norm” in the same sense, because on both sides of the aisle, people say, “I have to obey the result of the Court’s decision, but I don’t have to agree with anything it says.” So I don’t think that’s developed into a norm — and personally, I hope it doesn’t, because I think each branch of government, and the states too, has an independent obligation to interpret the Constitution, and I think that’s a good thing. When I have students feeling pretty discouraged about our constitutional system — which varies depending on the political moment — they’re often reassured when I tell them, “I love the Constitution no matter what.” Some ask how, and I say: because I’ve never equated the Constitution with whatever the Supreme Court happens to say it means. In my mind those are two separate things. I believe in judicial independence, but that doesn’t mean I agree with everything the judiciary does — honestly, over the course of our history, I’d probably give it a B‑minus. But I still think having the judiciary, and listening to it, is crucially important, even when I don’t like much of what it says.

Tara Grove: Yes, in the front.

Audience member: I don’t think you can gloss over what Mitch McConnell did in terms of politicizing the Supreme Court, and why there’s so much popular support for — or, let’s say, lack of respect for — the Court’s independence. You’re asking for the Court’s independence — we’d love to have it, I personally would love to have it — but when you get a five-to-four decision on birthright citizenship, how does that comport with defending the Constitution?

Tara Grove: I think it’s always hard to think clearly about judicial independence when you’re upset about a particular decision. Did I think it was good that Merrick Garland never got a Senate hearing? No. And at the time, I’d already been researching court-curbing and judicial independence for a while, and I remember thinking this was going to be terrible for the federal courts, no matter what you think of any particular appointment — and indeed, it has been very bad for the judiciary. Did I think birthright citizenship would come out differently? Yes, I did. Though I’d point out something often overlooked: if you read Justices Thomas and Gorsuch’s dissents — especially Gorsuch’s — what they’re actually saying is that an undocumented immigrant is domiciled in the United States and therefore a birthright citizen. So it’s not quite five-to-four, or even six-to-three, as people describe it — arguably it’s seven-to-two on the underlying question of undocumented immigrants specifically. But does that mean I’m always happy with what the Supreme Court says? No. Here’s the thing about our constitutional system, though, and I’ll probably end on this: we have a separation of powers precisely so that Congress isn’t always in charge, the president isn’t always in charge, and the judiciary isn’t always in charge. Do I think there’s sometimes too much presidential power in our system? Yes. Would I like to see Congress doing more? Yes. Would I sometimes like the Supreme Court to do less? Yes. But I want to keep all these powers in place, checking each other — I think that was part of the framers’ design, and I’m grateful for it, and I want to keep faith that we have a constitutional system worth preserving and defending. Thank you.

Closing

Clark Neily: That was wonderful. Thank you, Tara. Let’s give a big round of applause for all of our panelists today, and all the Cato employees who made today happen. If you want to stay involved — if you want to keep coming to Cato events — our new project, Your Verdict Counts, will be holding an event on October 8th, from 6:00 to 8:30 PM, in Richmond, Virginia. You can get more information online at yourver​dict​counts​.org. For those of you joining us here in person, you can pick up an informational flyer out in the lobby — registration for that event is live now at yourver​dict​counts​.org. We invite everyone here in the auditorium to join us right now for a light reception out in the Winter Garden — that’s the space you’ve all been in during breaks. Thank you all again, both here and online, for joining us for the 25th Annual Cato Constitution Day.