A Justice Souter Anecdote, or “Seeing a World in a Grain of Sand”

Mark Tushnet

Editors of constitutional law casebooks scramble at the end of each Term to edit the Court’s important opinions of the Term into a supplement available for use in the fall semester. The task is exacerbated by the Court’s tendency to clump important opinions in its last few opinion days. In the pre-electronic early 1990s the best you could do, at least if you didn’t go to the Court to pick up slip opinions, was to use the US Law Week, which typically published opinions on the day they were released and was available from the library the next day.

The Court released its opinions in Lee v. Weisman on June 24, 1992. I edited it the next day, including substantial excerpts from Justice Souter’s concurring opinion, which offered his views on the original understanding of the First Amendment’s religion clauses. His opinion contained a footnote contrasting Thomas Jefferson’s articulated views and his practice as president. Arguing that Jefferson’s articulated views better expressed the original understanding, the footnote added after its description of Jefferson’s practice, “Homer nodded.”

Or so I thought—and so I included in the edited version appearing in the supplement and then, simply reprinted, in the next edition or two of our casebook. Then, perhaps seven or eight years later, for reasons that I no longer recall, I went to the U.S. Reports to check the accuracy of my editing. And lo and behold, there was footnote 5, but without “Homer nodded.” I found it hard to believe that I had imagined it but my efforts to locate the actual slip opinion or the Law Week version failed.

So I went to the source, writing Justice Souter about the issue. After a while he replied. The substance of his letter, which I don’t have at hand, was this. He had indeed included the phrase in his opinion and so in the slip opinion from which Law Week worked. But, when the Reporter’s office went to work on preparing the bound volume (505 U.S., if you care), someone concluded that the phrase was a typographical error and removed it. Justice Souter reviewed the opinion as prepared for publication in the bound volume and directed that the phrase be restored. For some reason, though, the Reporter’s office ignored the instruction and Justice Souter never checked.

Having received my letter, Justice Souter notified the Reporter of the error, and at 535 U.S. i appears an erratum, directing that “Homer nodded” be inserted—eight or nine years after the opinion was delivered.

What’s the “grain of sand” point here? “Homer nodded” comes to us from the Roman poet Horace via two English poets from the turn of the seventeenth and eighteenth centuries, John Dryden and Alexander Pope. It’s been widely observed that Justice Souter seems to have been more comfortable in some earlier century, though the seventeenth seems to me a bit too far back. Justice Souter’s writing style was more ornate, more nineteenth century, than the pared down (Hemingway-influenced?) contemporary opinion style.

“Homer nodded” was part of Justice Souter’s store of cultural knowledge—but not, apparently, part of the store of such knowledge in the Reporter’s office. Justice Souter could write “Homer nodded” as easily as Justice Scalia could refer without citation to Broadway lyrics or Justice Kagan (with citation!) to Dr. Seuss. When I retired from classroom teaching I had just about played out my string on cultural allusions that my students could understand (“The Princess Bride” was hanging in there by a thread), and my guess is that that experience is near-universal (we age, the students we deal with in the classroom remain young).

If there’s a larger point here, and maybe there isn’t, it is something like this: We all carry cultural knowledge with us but what that knowledge is changes—not for any individual, but for the population composing our institutions—and analysis may go at least a bit off the rails if “we” (the older among us) use our cultural knowledge as the predicate for our evaluation of the performance of today’s institutions.Or, I suppose, for our evaluation of the performance of yesterday's.

How to Avoid Accountability

David Super

     The cuts and chaos generated by the Orwellian-named Department of Government Efficiency (DOGE) have done lasting damage to the federal government’s ability to meet the nation’s needs.  The arbitrary arrests, deportations, and renditions of immigrants and those perceived to be or associated with immigrants have both caused immense, unnecessary hardship in the short-term and debased this country’s moral authority for decades to come. 

     Yet beyond all this devastation, these actions have had an additional destructive effect:  distracting journalists and the public from transformative legislation making its way through Congress.  Even among politically engaged people, few are aware that the most important social legislation since at least the Affordable Care Act is on track to gut the most important parts of the social safety net, reverse the central achievement of the Affordable Care Act, and so vandalize our nation’s finances that major social initiatives may be effectively unaffordable for a generation to come.  This obscurity of President Trump’s “big beautiful bill” is very much part of the plan:  everything about it has been designed to remain in the shadows until it becomes too late. 

     Even the choice to proceed with one bill, which President Trump and Speaker Johnson forced on an unwilling Senate, sought to cut in half the news coverage it would receive.  The steady roll-out of extreme executive actions and a skeletal spending outline for the next fiscal year further serve to push the major legislation from the headlines. 

     The Congressional Budget Act requires the House and Senate to agree on a budget resolution – a fiscal blueprint for the next decade – as a pre-condition to accessing the special parliamentary advantages of “budget reconciliation”.  Differences between House and Senate positions have derailed many budget resolutions in the past and have provided opportunities for public debate on the country’s direction. 

     This year, however, House and Senate Republicans agreed upon a budget resolution in name only.  It does not even unite the chambers behind a single broad overview of the budget.  Instead, the resolution directs the House to pass massive, devastating cuts to Medicaid, nutrition assistance, and student loans.  The budget resolution then sets far lower, though still quite harmful, targets for the Senate.  What will the final legislation look like?  The budget resolution allows everyone to imagine whatever they want.  House Republicans can vote for devastating cuts with the promise that the cuts will be moderated in the Senate.  Senate Republicans can vote for profligate upper-income tax cuts with the promise that they will be paid-for with unspecified “savings” that the House will pass. 

     The House committees assigned to achieve these cuts have been very close-lipped about what they are planning.  In both Medicaid and food assistance, the vast majority of the savings will come from one of two approaches.  First, they plan to purge unemployed people from the programs.  And second, they will shift enormous costs onto state governments – which, in turn, will likely deny aid to even more vulnerable people. 

     When people hear about “work requirements”, they imagine that agencies will assign unemployed people to jobs and continue benefits to those that appear.  In fact, the “work requirements” envisioned here simply deny aid to people who cannot prove to an overwhelmed bureaucracy that they are working more than some arbitrary threshold of hours per week.  If their employer is unwilling to cooperate with verification, if they are combining several part-time jobs and cannot document sufficient hours, if they lack the skills to work effectively with the bureaucracy, or if they simply cannot find enough work, they are automatically terminated.  And the huge cost-shifts to states will translate into even more threadbare social service agencies, even more unreachable by phone and even less able to process this tsunami of work verifications. 

     Shifting vast costs to state and local governments is precisely the sort of thing conservatives used to abhor.  Newt Gingrich’s Contract with America led to the Unfunded Mandates Reform Act and Chief Justice Roberts warned in NFIB v. Sebelius against the devastating effects of losses of federal funds, especially Medicaid funds, on state budgets.  A sudden, dramatic rewrite of the fiscal constitution is hardly a way to bring power closer to the people or to invigorate “laboratories of democracy”. 

     Republicans are drawn to cost-shifts that they can argue they are fulfilling their promise not to hurt recipients of Medicaid or food assistance.  Only the most gullible took that vow seriously:  purging millions of recipients who cannot find jobs certainly hurts recipients.  Moreover, the distinction is illusory:  states cannot and will not absorb cuts of this magnitude without cutting eligibility and benefits for vulnerable people beyond the cuts in the federal legislation. 

     Low-income working families – a group Republicans traditionally have praised – are likely to take the brunt of the eligibility losses if Congress shifts costs onto states.  Proposed reductions in the federal share of costs for the Affordable Care Act’s Medicaid expansion could drive states to cancel that expansions and return to the days when incomes as low as one-quarter the poverty line disqualified parents of children from coverage.  And states suddenly forced to start paying for part of food assistance benefit costs – which have been entirely federal for over half a century – likely will abandon rules adopted after the 1996 welfare law to cover working families previously disqualified by the vehicles they drove to work. 

     What precise mix of eligibility cuts, benefit reductions, and cost-shifts remains hotly contested within the House Republican Caucus.  With many Members loathe to vote for these measures to partially fund huge upper-income tax cuts, the leadership is doing everything it can to hide what it is doing until it becomes effectively too late to stop it. 

     First the leadership delayed votes in the three most important committees:  Energy and Commerce (Medicaid), Agriculture (food assistance), and Ways and Means (tax cuts) until next week.  It has also kept details of their proposals under close wraps until the deadlines under the committees’ rules set for releasing text.  Even when those “chairmen’s marks” appear Sunday or Monday night, however, they will tell us far less than it appears.  The chairmen’s marks will only contain provisions Members are comfortable defending.  More politically repellant provisions will be included in substitute amendments the chairs will offer and push through in the midst of the committee meetings.

     Even these substitutes will not tell the true story.  The committee-approved bills will go to the House Budget Committee, whose role is largely ministerial:  bundling together the various committees’ proposals.  But then the Budget Committee’s bill will go to the House Rules Committee, which can add odious provisions that could not have passed the substantive committees.  The Rules Committee also can allow the leadership to offer a further substitute on the House floor at the last minute, further obscuring what the legislation actually does until after the Members have cast their votes. 

     And then even after passage, the inconsistent budget resolution will allow House Republicans to insist that they opposed many provisions of the legislation but were merely voting to “move the process along”, confident that the Senate would moderate the final result.  Senators, in turn, can remove any provisions that draw political criticism knowing that they can accept the same provisions in conference with the House. 

      The House Republican leadership has been negotiating with Members of the Freedom Caucus (demanding deeper cuts in safety net programs), Northeastern and California Members (demanding a return to more generous deductions for their relatively high state and local taxes), self-identified moderates (concerned about some of the Medicaid and food assistance cuts), Republican governors (worried about cost-shifts and seeking greater latitude to cut eligibility and benefits to offset those losses), and numerous individual Members serving special interest groups (seeking more goodies in the tax package). 

     Reaching consensus among all these varied interest groups with incompatible agendas is obviously impossible.  Accordingly, the leadership plans to order the committees to meet and dare any Republican Members to vote “no”.  So far this Congress, neither “moderates” nor Freedom Caucus Members have shown any real willingness to do so.  A similar ultimatum surely awaits House Republicans when the bill reaches the floor. 

     With Republicans leery of discussing this deeply unpopular legislation with their constituents, the leadership has tried hard to prevent its content from being known and amendable during congressional recesses.  They have been racing to pass their bill through the House prior to Memorial Day.  If enough Republicans balk, they may miss that deadline and declare that they are going back to the drawing board to deflect the criticism their Members would otherwise face over the Memorial Day recess. 

     Senate Republicans, if anything, are even more ardently seeking invisibility.  They do not plan to consider reconciliation legislation in committee at all.  Instead, they will put the House bill directly onto the floor and reshape it with amendments.  This will allow Republican senators to vote for numerous moderating amendments before casting their votes for final passage.  If the House’s consideration drags on into June, the Senate may be unable to finish before July 4.  That could mean a House-Senate conference committee convenes in late July or early August. 

     Procedurally, congressional Republicans can afford to take this long.  Politically, however, enacting massive cuts in Medicaid and food assistance as the economy slips into a Trump-induced recession will take a good deal of explaining back home.  Perhaps Members’ fears of primaries against Trump-backed challengers will cause them to walk that plank.  We shall see.  Some tax bill will surely pass this year, but it need not be this one.

     @DavidASuper.bsky.social @DavidASuper1

Picking a Book Cover

Gerard N. Magliocca

Let me take a moment to explain why I picked this cover for my new book. I rejected a standard portrait of a Justice enrobed. Instead, this is a photo of Jackson testifying before Congress in 1937. 

With this choice, I wanted emphasize the importance of Congress in the Youngstown concurrence and in general. I also wanted to make the point that proper governance involves thought and wide consultation for what Jackson described as the necessity "the law be made by parliamentary deliberations" 

What Did “Subject to the Jurisdiction of the United States” Mean in the Oregon Citizenship Legislation of 1872?

Guest Blogger

Michael L. Rosin

In a recent Balkinization post Gerard Magliocca noted that he could find no example in federal law of “subject to the jurisdiction” not meaning “’subject to the law’ … or ‘subject to legal authority’ of the United States.” This post discusses the use of “subject to the jurisdiction” in an 1872 statute granting citizenship from birth. This was the first such citizenship legislation enacted into law after the drafting of the Fourteenth Amendment. It demonstrates that the phrase “subject to the jurisdiction” meant “subject to the legal authority of the United States.” If the phrase had meant “and not subject to any foreign power,” (the interpretation the Trump Administration gives to the phrase in the Fourteenth Amendment), the 1872 legislation would have had no effect.

The Ordinary Meaning of "Subject to the Jurisdiction"

Gerard N. Magliocca

The phrase "subject to the jurisdiction" appears many times in federal law. It's in the 18th Amendment. It's in a slew of federal statutes. I can find no example where the phrase is used to mean "allegiance" or any equivalent. Instead, the phrase is always used in its ordinary sense to mean that the object (either people or places) is "subject to the law" of the United States or "subject to legal authority" of the United States.

If someone can find a contrary example, I'd be interested to hear about it. 

The Big Picture

JB

The New York Times asked 35 law professors for their assessment of the constitutional situation during Donald Trump's second term in office. They got many thousands of words, which they boiled down into an op-ed that appeared this morning.

The Times ended up using only a single sentence of what I wrote. So I publish here what I originally sent them about some of the deeper causes of our current problems.

* * * * *

For the past forty or so years the United States has been descending into a deeper and deeper constitutional rot. The signs are (1) increasing polarization; (2) increasing wealth and income inequality; (3) policy disasters like the Iraq War and the 2008 financial crisis that convince ordinary people that their government is unconcerned with their welfare; and (4) and loss of social trust--between politicians of different parties, between the public and the political classes, and between the public and almost every institution of social life, whether it be science, medicine, the media, sports, business, or the academy. Loss of social trust is the cancer of democracies.

Birthright Citizenship and DOJ's Appellate Briefs

John Mikhail

In its appellate briefs in the birthright citizen cases making their way through the courts, the Department of Justice claims that the original meaning of the Constitution’s Citizenship Clause supports President Donald Trump’s Executive Order limiting birthright citizenship to American-born children whose parents are either citizens or legal permanent residents (LPRs). Although these briefs from the government might seem at first glance to be scholarly and well-supported, a close look at them reveals that DOJ is grasping at straws. Many of the authorities on which the briefs rely are misleading or derivative, while other more pertinent sources are mischaracterized or ignored. In a post on Just Security, I discuss eight notable examples, focusing on the brief in Washington v. Trump. DOJ’s other appellate briefs seem to be virtually identical and subject to the same criticisms.

Religious Exemptions?: What the Free Exercise Clause Means

Andrew Koppelman

For those who are interested, the Civitas Institute has posted a somewhat specialized conversation between myself, Michael McConnell, and Vincent Phillip Muñoz on originalism and religious exemptions.

The Supreme Court and the Alien Enemies Act: The Limits of the Passive Virtues in Trump 2.0.

Jonathan Hafetz

The current challenge to deportations under the Alien Enemies Act of 1798 (AEA) operates on two levels: it presents an important test of due process guarantees in the United States and a barometer for assessing the Supreme Court’s approach to the Trump administration’s sweeping claims of executive power.

In its plan to carry out mass deportations, the Trump administration has seized on this rarely used Founding era statute to deport hundreds of individuals to the notorious Center for Terrorism Confinement in El Salvador. The administration says it is sending Venezuelan members of the Tren de Aragua gang, but it has deliberately avoided any judicial scrutiny of its claims and innocent people have been caught up in the dragnet.

On April 7, the Supreme Court ruled that legal challenges had to be brought through habeas corpus proceedings in the district where the individuals were confined rather than in Washington, D.C. under the Administrative Procedures Act. (I wrote more about this decision here). While this procedural ruling handed a temporary victory to the Trump administration, the Court was unanimous in ruling that individuals subject to removal under the AEA were entitled to notice and an opportunity to challenge their deportations. But the Trump administration effectively ignored the Court, instead shuttling people between detention centers before trying to remove them in the dead-of-night without anything approaching due process (giving them, for example, at most 24 hours to challenge their removal without telling them where or how, and doing so only in English, a language many do not understand).

This attempted end-run around the Supreme Court mirrors the administration’s actions in the case of Kilmar Abrego Garcia, the Maryland man who was illegally—and mistakenly—deported to El Salvador (albeit not under the AEA). On April 10, the Supreme Court, in an unanimous ruling, directed the Trump administration to facilitate Abrego Garcia’s return to the United States. Once again, the Court moved cautiously, noting the district court should proceed with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs” in implementing the Court’s ruling. But the administration then spurned this olive branch, stonewalling the district judge when she tried to get any information about Abrego Garcia and insisting it had no responsibility to do anything to right the wrong and bring him back to the United States. When the administration  moved for an emergency stay of the district court’s ruling that “facilitate” meant actually doing something, it prompted a blistering opinion from Fourth Circuit Judge J. Harvie Wilkinson III, who, in the panel's opinion denying the motion, called the administration’s position “shocking” to any sense of liberty and urged it to remember that the rule of law is “vital to the American ethos.”

These cases underscore the limits of Alexander Bickel’s “passive virtues” in judicial decisonmaking. For Bickel, courts could achieve better and more lasting results by taking small steps and ruling narrowly, rather than issuing sweeping constitutional pronouncements. But an incremental approach designed to foster interbranch dialogue only works when the branches are open to communication. It’s a dubious strategy for a president who, like Trump, treats such overtures as weakness and an invitation to assert power more aggressively.

Amicus Brief on the Tariffs

Gerard N. Magliocca

I was pleased to join this amicus brief arguing that the tariffs are unlawful. Thanks to Michael McConnell for taking on the role of Counsel of Record.

Why is Justice Alito so trusting of the Trump administration?

Andrew Koppelman

Who knew that Supreme Court Justice Samuel Alito was such a trusting person?  The ordinarily hard-edged jurist strained to take the Trump administration at its word in his dissent from the Supreme Court’s emergency order on Saturday prohibiting the Trump administration from deporting a group of Venezuelan migrants under the Alien Enemies Act (AEA).

I reflect on this puzzling phenomenon in a new column at The Hill.

Abrego Garcia Will Return When the Administration Needs Him

Gerard N. Magliocca

 Every week I get a call from a reporter asking if we are in a constitutional crisis. In this week's edition of "No," let me sketch out a scenario for the Abrego Garcia case. First, a brief history lesson.

After Worcester v. Georgia, Georgia refused to effectuate Worcester's release from jail. President Jackson did nothing. Chief Justice Marshall lamented that this was the end of the Constitution. After six months, though, Jackson faced a bigger problem. South Carolina was defying federal authority to impose tariffs. At that point, he needed the Court on his side. So he negotiated with the Governor of Georgia and Worcester was magically pardoned.

Abrego Garcia will probably be magically produced by El Salvador when the Administration loses one of the four cases now pending on the legality of today's tariffs. The Administration will then need the Court on its side. And it's clear that Trump cares a lot about tariffs. Being in the Court's doghouse when that case is brought on the emergency docket won't be worth keeping one guy erroneously deported.

The only reason I say "probably" is that, to quote Claude Rains, it's also possible that El Salvador will announce that Abrego Garcia "died trying to escape." 

The Bank of the United States and the Unitary Executive

Gerard N. Magliocca

I'm sure somebody must have said this before, but anyway.

Under the unitary executive theory, why was the Bank of the United States constitutional? The Bank was led by a Director who could not be removed by the President. It was the most "independent" independent agency in our history. This was, of course, one reason why the Bank was unraveled in 1836.

Perhaps the answer is that central banking is not part of the executive power. This would explain why the Federal Reserve also sits outside the unitary executive. But if central banking is not part of the executive power, what else falls outside of that category?

Can the Supreme Court Remove a Solicitor General?

Gerard N. Magliocca

I introduce the following as an interesting hypothetical. Rule 8 of the Supreme Court's Rules states:

1. Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, or has engaged in conduct unbecoming a member of the Bar of this Court, the Court will enter an order suspending that member from practice before this Court and affording the member an opportunity to show cause, within 40 days, why a disbarment order should not be entered. Upon response, or if no response is timely fled, the Court will enter an appropriate order.

2. After reasonable notice and an opportunity to show cause why disciplinary action should not be taken, and after a hearing if material facts are in dispute, the Court may take any appropriate disciplinary action against any attorney who is admitted to practice before it for conduct unbecoming a member of the Bar or for failure to comply with these Rules or any Rule or order of the Court.

Query: Could the Court therefore disbar a Solicitor General from practice before the Court? Or would that effectively be an impeachment and conviction of that officer that is beyond the Court's authority? In the hypo, the person would still hold the SG office but could not perform that office's main function.  

When "Good" Laws are Given to Bad People

Mark Tushnet

I'm about to "defend" the statute that's being used to remove Mahmoud Khalil from the United States. But I have to begin by saying as forcefully as I can that I don't believe for a moment that the Trump administration is using the statute in good faith. Yet I also don't believe that any judge, even one who deep down might share that view, would actually hold that the use was in bad faith (much less that two court of appeals judges would, much less that five Supreme Court justices would). So, as a matter of legal analysis, we're stuck with trying to see whether or how the statute might be found not to apply in the present circumstances, either as a matter of statutory interpretation or constitutional law.

You have to piece together two provisions to get the full picture. The first states that noncitizens, including permanent resident aliens, can be removed (the current term for "deported") when the secretary of state has “reasonable grounds to believe” that the noncitizen’s continued presence or actions in the United States would have “potentially serious adverse foreign policy consequences.” The second provides that the foreign policy provision can't be invoked "because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest." 

Here's a scenario where these provisions make sense. Jair Bolsonaro fomented a failed coup in Brazil. He then came to the United States lawfully, that is, with some sort of visa. Suppose that while he was in the United States he continued to urge his supporters in Brazil to plan for some future antigovernment activities, including a possible coup. Assume that this counts as "mere advocacy" and not "incitement to imminent unlawful conduct" under US free speech law. The Brazilian government lets the United States know that it regards Bolsonaro's presence in the United States as a demonstration of US hostility to it. The Secretary of State concludes that Bolsonaro's statements are complicating US negotiations with Brazil over some important military or trade arrangements. (Remember, this is a hypothetical!). The Secretary finds (referring to the Brazilian government's objections) that Bolsonaro's continued presence has "potentially serious adverse foreign policy consequences," one of which is the negotiation difficulties, which "compromise a compelling ... foreign policy interest." (You can fill in other figures for Bolsonaro; older readers might say "the Shah of Iran" or "Martin Bormann" [though there's a separate provision dealing with Nazis].)

It seems to me clear that allowing Bolsonaro's removal under these circumstances might well be good policy and raises no substantial constitutional questions. Khalil is obviously different from Bolsonaro--an obscure graduate student rather than the former president of another nation. But it's not clear to me that the statute should be read to exclude Khalil from its coverage--and that notwithstanding the fact that the legislative history indicates that the provision should be applied sparingly (or that it originated in the notorious McCarren-Walter Act).

Take the "one obscure person" versus "former president" distinction. Foreign policy problems take lots of forms. Some can be created by a single person, but others can be created when a bunch of people--acting in concert or independently--do things that cause such problems. So, it seems to me, the statutory question is whether the Secretary of State has "reasonable grounds to believe" that Khalil's statements, taken together with those of others (both US citizens and noncitizens) compromises the (assertedly) "compelling" foreign policy interest in combating anti-Semitism. With questions of good faith put to the side (for reasons I've mentioned), it seems to me highly unlikely that the federal courts would (ultimately) conclude that the Secretary's decision was unreasonable.

Some, including apparently President Trump's sister when she was a federal judge have said that the statute was unconstitutionally vague because it fails to give those subject to potential removal fair notice of what activities will trigger their removal. That, though, seems to me the result of the fact that compelling foreign policy interests can cover a wide range and indeed can change from time to time. So, for example, gaining access to some rare mineral might be a compelling foreign policy interest today but not five years from now. Or, more pertinently, combating anti-Semitism might be a compelling foreign policy interest today but not when the person subject to removal received his or her visa (or green card). So, it seems to me, it would be difficult to write a statute that dealt with the problem to which this one is addressed in any more specific terms. The statute's as clear as the subject matter permits.

At least insofar as I've been able to follow the discussions that leaves the First Amendment. The relevant doctrine is that of unconstitutional conditions, and I confess at the outset that I don't have a firm grasp on what that doctrine actually is (nor, I think, does anyone else). The doctrine is triggered when a person seeks something that the government has discretion to grant or withhold. The government says that it will give you that thing only if you either say things the government likes or refrain from saying things the government dislikes. The idea behind the doctrine is something like this: The government can't leverage the discretionary power it has over the thing you want to get you to do something else. And, to the extent there's an explanation for that principle, it seems to be that the government can define the scope of its discretionary program, so it can indeed leverage its power to get you to do things consistent with the program's goals, but it can't get you to do things outside the program's scope.

Of course everything turns here on what the scope of the program is. For admission to the United States, it would seem to be something like: letting people in whose presence in the United States, whether temporarily or permanently, is consistent with the government's foreign policy goals. (I should note that scholarship on the unconstitutional conditions doctrine sometimes suggests some limitations other than "leverage on things outside the program's scope," but they are, in my view, even less likely to find judicial support in Khalil's case.)

And, if that's the scope of the program, I'd bet that the courts would hold that the "leveraging" effects of discretionary denial is within the program's scope. So, in the end, at least as a predictive matter I'd bet that Khalil's likely to lose his statutory and constitutional challenges (though he might have some interim victories, which might not be trivial in terms of their effects on generating general opposition to Trump's policies; in particular, I look forward to the effort to depose Marco Rubio to find out what exactly he "personally" knew about Khalil when he signed the document directing Khalil's removal).

In our podcast Mike Seidman and I have been going back and forth on the question of whether it's politically helpful to challenge Trump administration policies on constitutional grounds (I think probably a bit sometimes, he thinks probably not). The Khalil case poses a different and in some ways more troubling problem. His removal is an obvious injustice but, I've strongly suggested above, the injustice is in some sense perfectly legal. (I'm reminded here of the last line of Grant Gilmore's Ages of American Law: "In hell there will be nothing but law, and due process will be meticulously observed.") 

What to do? Well, maybe get a bunch of judges willing to look realistically at the good faith of government officials. I won't hold my breath. Or listen to Thomas Jefferson (and hold your breath): "[O]ur present situation is not a natural one.... A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to it’s true principles." In short, don't elect witches.

Balkinization Symposium on Legal Pathways Beyond Dobbs-- Collected Posts

JB

 Here are the collected posts for our Balkinization Symposium on Legal Pathways Beyond Dobbs. 

1. Jack Balkin, Introduction to the Symposium

2. Cary Franklin, History and Tradition’s Equality Problem

3. Mary Ziegler, The History and Tradition of Criminalization

4. Michael C. Dorf, Enumerating a Post-Dobbs Pathway

5. Evan D. Bernick, Cthulhu and the Constitution

6. B. Jessie Hill, Abortion Rights as Health Care Rights as Equality Rights

7. Meghan Boone, The Question of Female Personhood

8. Kimberly Mutcherson, The Shared DNA of Roe and Dobbs: Potential Life as a Tool of Subordination

9. Laura Portuondo, Anti-Devaluation as Reproductive Justice

10. Douglas NeJaime, Biological Parenthood and Inequality

11. Neil S. Siegel, The Fate of Bostock’s Formalism After $215 Million Spent on Anti-Trans Ads

12. Courtney Cahill, The Other Footnote

The Other Footnote

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Courtney Cahill[1]

Some scholars say that constitutional equality law was built in the shadow of a footnote: “famous footnote four” from the 1938 Supreme Court decision United States v. Carolene Products Co.  If recent transgender jurisprudence is any indication, then constitutional sex equality law could deteriorate on the heels of a different footnote.

That footnote, footnote twenty from the 1974 decision Geduldig v. Aiello, was all-but-dead until the Supreme Court resurrected it in Dobbs v. Jackson Women’s Health Organization.  Dobbs is mostly about why abortion isn’t protected as a matter of due process, but in dicta, Dobbs also explains why abortion isn’t protected as a matter of sex equality.  Quoting footnote twenty from Geduldig, which held that pregnancy discrimination wasn’t sex discrimination, Dobbs posits that the regulation of a procedure or trait unique to one sex isn’t, in fact, sex discriminatory.  For Dobbs, footnote twenty was the “precedent” that “squarely foreclose[s]” the sex equality argument for reproductive rights.

Dobbs’ use of footnote twenty is a precedent manufactured in real time – and therefore, by definition, not a precedent at all – that lacks grounding in text, history, and actual precedent.  Nothing in the text of footnote twenty, the briefing history behind footnote twenty, nor the judicial interpretation of footnote twenty in any pre-Dobbs decision supports Dobbs’ reading of the footnote as an authority for why courts may effectively rubber stamp discrimination grounded in biological characteristics unique to one sex.  Dobbs’ footnote twenty revisionism was bad enough in Dobbs, but since Dobbs, lower and state courts have amplified Dobbs’ error by relying on footnote twenty (as read through Dobbs’ eyes) to uphold not just criminal abortion laws but also countless forms of transgender discrimination on the theory that discrimination is presumptively constitutional if it is tethered in some way, however remote, to ostensible sex-based differences.

The Fate of Bostock’s Formalism After $215 Million Spent on Anti-Trans Ads

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Neil S. Siegel 

Lacking theoretical ambition in the current moment, I want to make a point about methodological inconsistency that will include but extend beyond equal protection law in the context of sex, sexual orientation, and gender identity. 

Last Term, the U.S. Supreme Court decided United v. Rahimi, 144 S.Ct. 1889 (2024), holding that the Second Amendment permits someone found by a court to pose a credible threat to the physical safety of another to be temporarily disarmed. Justice Neil Gorsuch wrote a concurrence opining on the proper method of constitutional interpretation. “Come to this Court with arguments from text and history,” he wrote, “and we are bound to reason through them as best we can.” “Faithful adherence to the Constitution’s original meaning may be an imperfect guide,” he continued, “but I can think of no more perfect one for us to follow.” 

In writing those words, Justice Gorsuch appeared unembarrassed by their inconsistency with the reasoning of several momentous majority opinions he joined that term—none of which had a tenable basis in the text or original meaning of the Constitution or the statute at issue. See Trump v. United States, 144 S.Ct. 2312 (2024); Trump v. Anderson, 144 S.Ct. 662 (2024); Fischer v. United States, 144 S.Ct. 2176 (2024). The two Trump cases were instead based on structural inferences, consequentialist reasoning, and analogies to precedent. As the conservative originalist scholar William Baude opined, “Trump v. Anderson’s holding lacked any real basis in text and history,” and “[t]he court’s reasoning [in Trump v. United States] went well beyond any specific part of the Constitution or any determinate constitutional tradition.” As for Fischer, Justice Amy Coney Barrett wrote in dissent that the Court “does textual backflips to find some way—any way—to narrow the reach” of the criminal provision in question. 

There is a lesson here, and it also applies when President Trump does not benefit from the Court’s deviations from textualism and originalism. When the political stakes are high, most of the conservative Justices cannot be counted on to be methodologically consistent—to be principled. It can be frustrating to be a student of the current Court because an unprecedented number of Justices purports to assign first-class interpretive status to relatively strict versions of textualism and originalism and second-class interpretive status to structural, doctrinal, and consequentialist modalities of interpretation. It can be demoralizing to be a student of this Court because those same Justices do not appear to really mean it when the consequences of applying that proclaimed interpretive hierarchy are unpalatable.

Emergency?

Gerard N. Magliocca

This week on "Supreme Court ER" we have new requests on an erroneous deportation and (I would think) on overruling Humphrey's Executor. Next week we may see one appealing a TRO blocking tariffs.

My observation is that if any of these situations present genuine emergencies, the correct course of action would be for the Court to treat the request for relief as a petition for certiorari and grant review. (I have no opinion on what temporary relief, if any, is warranted if a case is granted.). If there is no emergency, then the request should be denied.

What the Court is doing instead strikes me as the worst of both worlds. They are not granting review, but they are commenting on this and that in a hasty fashion. I can understand that they want to avoid the circus (that they helped to create) for as long as possible, but I'm not sure they can or should.

Letter to the Brazilians, 1977

Andrew Coan

I have never signed an open letter, for the usual reasons people adopt this policy. But the recent proliferation of law faculty letters made me curious about their history and impact. So, as one does in 2025, I asked ChatGPT for a Deep Research report on this question. The most interesting example it turned up was the "Carta aos Brasileiros"--Letter to the Brazilians--of 1977. This episode, new to me, offers a thought-provoking case study for both sides of the current debate over the ethics and efficacy of such letters. It should also interest anyone concerned with democratic backsliding and the rule of law.

Drafted by Professor Goffredo da Silva Telles of the University of São Paulo, the "Carta" was cosigned by dozens of prominent legal scholars and declaimed by Prof. Goffredo before an audience of thousands in the university courtyard. It condemned the illegitimacy of any government “founded on force,” rather than the will of the people, and memorably defined dictatorship as a regime that “governs for us, but without us.” Goffredo was a well-known anti-Marxist and conservative, making him an especially effective messenger. The letter is often credited as a catalyst for Brazil’s gradual return from military dictatorship to constitutional government in subsequent years.

From the Arcades of Largo de São Francisco, the 'Free Territory' of the São Paulo Law School, we address all Brazilians with this Anniversary Message, which is the Proclamation of Principles of our political convictions. As heirs to the legacy received from our forebears, on the occasion of the 150th anniversary of legal education in Brazil, we wish to bear witness – for future generations – that the ideals of the Rule of Law (Estado de Direito), despite the circumstances of the present moment, live on and remain active, today as yesterday, in the vigilant spirit of our nationhood. We want to say, especially to the youth, that we are here, and we remain here, determined as ever to fight for Human Rights, against the oppression of all dictatorships. Our fidelity today to the fundamental principles of Democracy is the same that has always existed under the shadow of these Arcades – an unfailing and active fidelity that has inscribed the pages of Liberty in the history of Brazil.