Eugene Volokh's Blog, page 141

[Josh Blackman] The Next Best Defense Of Justice Barrett: She May Disagree With Justice Thomas A Lot, But You Better Learn To Deal With It, Because She Will Be Here For A Long Time

On Monday, I wrote about Mike Fragoso's defense of President Trump's decision to appoint Justice Barrett. Fragoso has now published a second installment, which defends Justice Barrett's record on the Court. Fragoso, to his credit, acknowledges that Justice Barrett votes differently than Justice Thomas. He chalks Barrett's different voting patterns to what he calls the Justice's "apolitical proceduralism." Fragoso has written what I think are the best defenses of Barrett's appointment and her record on the bench. Ultimately, I think his essay backfires, and furthers my case.

First, we can start with the merits docket. Fragoso writes, "Most importantly, Barrett got rid of Roe v. Wade." True enough, but there is more than meets the eye. The New York Times reported that Barrett changed her vote to deny cert in Dobbs. That the case was granted was due to Justice Kavanaugh, and not Justice Barrett. Pulling back, every judicial conservative has understood for nearly half a century that Roe had to be overturned. Should we really be celebrating a decision like Dobbs that was so clearly right? And in Moyle, an important follow-up case to Dobbs, Justice Barrett was not with Justices Thomas, Alito, and Gorsuch.

Second, Fragoso praises Barrett's record on the Seventh Circuit. "Her time on the Seventh Circuit demonstrated a record of clarity and analytical rigor that followed precedent and—where appropriate—urged the court to better align its jurisprudence with the original understanding of the Constitution." Fragoso does not cite any cases here. But one case worth mentioning, that did not appear on Barrett's SJC questionnaire, was St. Joan Antida High School Inc. v. Milwaukee Public School District. I described the case back in 2023:

But one case Barrett did not list was St. Joan Antida High School Inc. v. Milwaukee Public School District. In this case, a Catholic high school contended that the government's bussing policy treated religious schools unequally. Judge Barrett joined the majority opinion, which found that the government may have had a "rational basis" to impose additional requirements on the Catholic school. The panel did not rule outright for the District. Rather, the court remanded the case to the lower court to determine more facts. Judge Diane Sykes, who was on the original Trump shortlist, dissented. She wrote that "this discriminatory treatment cannot be justified," even on the current record.

Barrett's vote in St. Joan presaged her position in two pandemic-era cases involving the  and South Bay United Pentecostal Church. At the time, California prohibited singing in houses of worship. Justices Thomas, Alito, and Gorsuch were able to conclude that the record favored a ruling for the church. Justice Barrett, as well as Justice Kavanaugh, suggested that the singing ban may be unconstitutional, but on the limited record, she would not enjoin the policy. Like in St. Joan, Justice Barrett favored hesitancy in the face of alleged religious discrimination. Ditto for Fulton. What Will Baude describes as "look before you leap" is Barrett's consistent level of caution--a caution that Justices Thomas and Alito lack.

Fragoso repeatedly describes Catholic support of Barrett, though this case did not get the attention it warranted.

Third, Fragoso defends Justice Barrett's refusal to overrule Smith in Fulton:

To begin, she is very clearly a textualist and an originalist. This has presented some problems for the right, such as when she refused to overturn Employment Division v. Smith because the proposed relief was fundamentally non-originalist.

In Fulton, Barrett wrote that she was not persuaded by Professor McConnell's originalist research:

While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances.

Rather, she was motivated by arguments based on "text and structure."

In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Barrett's Fulton opinion was not originalist. I think Professor McConnell has made the case that Smith is wrong as an originalist matter. Justice Barrett apparently disagrees. But she did not offer anything close to an originalist account of the Free Exercise Clause. She simply listed some random questions that really didn't matter much. And in the wake of Fulton, she has shown no interest in the answers to those questions. And if Fragoso is right, should we believe that Justices Thomas, Alito, and Gorsuch favored a "fundamentally non-originalist." Of course not. This argument doesn't hold up.

Fourth, Fragoso celebrates Barrett's concurrence in Biden v. Nebraska:

But it has also yielded some great analysis, like when she responded definitively to Justice Kagan's endless trolling about the supposed non-textualism of the Major Questions Doctrine in a masterly concurrence in Biden v. Nebraska.

This defense backfires. Fragoso acknowledges that Barrett is acceding to Kagan's trolling. It's true. Justice Kagan has had a palpable influence on Barrett, and has convinced her on a number of topics. That is not something that should be praised. But what Fragoso omits is more important. In Nebraska, Barrett rejects Justice Gorsuch's conception of the major question doctrine from West Virginia v. EPA. The Gorsuch-version of the doctrine is premised as an avoidance doctrine with regard to the non-delegation doctrine. Gorsuch is right! But Barrett disagrees Gorsuch (and the other conservatives) in a concurrence that only academics could love about interpretive canons.

Fifth, Fragoso turns to the emergency docket:

In the wake of the promiscuous expansion of the universal injunction over the last decade, that's changed. Now cases don't have time to percolate. District judges decide matters quickly for the whole country, usually in a hand-picked circuit likely to agree with them, thus forcing the Supreme Court to step in quickly and resolve the question on an imperfect record.

Barrett clearly thinks this is no way to run a railroad, although she hasn't necessarily said it in so many words. One of the issues with the emergency docket is that orders aren't necessarily justified publicly, so the main evidence we have is her seeming reluctance to grant relief on an emergency posture.

Justice Barrett's biggest areas of disagreements with Justices Thomas and Alito come on the shadow docket. I documented more than a dozen cases where Barrett was opposite Alito and Thomas. Fragoso describes Barrett's votes as a "seeming reluctance." I think it far more useful to see how Justices Thomas and Alito describe their own colleagues. From my Civitas Outlook column:

Since 2022, these criticisms have continued. In another abortion case, Justice Alito wrote that Justices Kavanaugh and Barrett have "simply lost the will to decide the easy but emotional and highly politicized question." Alito added that his colleagues "do[] not want to tackle this case" and instead "duck[]."  Just last month, the Court declined to review a school's policy that encouraged students to transition their gender without parental consent. Justice Alito faulted Justices Gorsuch and Barrett for "succumbing to the temptation to . . . avoid[] some particularly contentious constitutional questions."

I think Justice Barrett has acceded to the relentless drumbeat about the nefarious shadow docket. Defenders can chalk her votes up to "caution" or "reluctance," but the fact remains that she consistently denies relief in cases that will never make their way to the merits docket. If she coupled her parsimonious denials on the shadow docket with more grants on the merits docket, perhaps Barrett's behavior can be justified. But she simply denies across the board. It is caution all the way down.

Sixth, Fragoso defends Barrett's vote in the USAID case:

TROs, of course, are generally not appealable, but the government needed some recourse because it claimed it couldn't, in fact, comply with the order—even as a technical matter. John Roberts provided relief in the form of an administrative stay, which he then lifted—thanks to Barrett's vote—after the preposterous deadline passed.

This isn't right. The deadline passed, but it remained in effect. The Court quietly ordered the district court to hold a hearing, even after denying relief. I still think this was an advisory opinion. And it doesn't help Fragoso's case to lump in Barrett with the Chief Justice's creative alternative dispute resolution. What does it say that Justices Thomas, Alito, Gorsuch, and Kavanaugh were on the other side? Were they not principled originalists or textualists or whatever other label you wish to use?

Seventh, Fragoso suggests that Justice Kavanaugh is the center of the Court, and not Justice Barrett:

More globally, some evidence suggests that it's actually Kavanaugh who holds the fulcrum post on the Court. But if you've spent the last couple weeks on X, you've heard that it's Barrett.

Fragoso cites a SCOTUSBlog article from May 2021, several months into Barrett's term. That is not particularly current evidence. I think Barrett started off more conservative as Kavanaugh started off more liberal. Over the past few years, they have reversed places. I made this point with regard to the shadow docket. And Adam Feldman brings the receipts on the merits docket:

In the 2020 and 2021 Terms, Barrett's voting pattern placed her firmly in the conservative bloc. The differences were notably large, particularly in 2021, when her agreement with Justices Alito (-33), Roberts (-32), and Kavanaugh (-32) showed a strong conservative lean. This suggests that in her early tenure, she was ideologically closer to her conservative colleagues than to Kagan by a significant margin.

However, in the 2022 Term, Barrett's alignment appeared to shift slightly. While she remained closer to conservatives overall, the differences between her agreement with Kagan and the conservative justices narrowed. Notably, her difference with Alito reached zero, indicating equal agreement with both him and Kagan. Similarly, her alignment with Gorsuch (-2) and Thomas (-4) showed a more moderate stance compared to the previous terms.

By the 2023 Term, Barrett's ideological position remained conservative but showed further moderation. The differences with Thomas and Alito (-12 each) and Gorsuch (-8) were smaller compared to earlier years. However, her gap with Kavanaugh (-21) remained more substantial, suggesting that while she continued to vote with conservatives, her alignment was not uniform across all cases.

These trends suggest that while Barrett consistently leans conservative, her level of agreement with her colleagues fluctuates over time, and in certain cases, she appears to take a more moderate stance.

I remain convinced that if Dobbs came to the Court in 2025, Justice Barrett would vote with the Chief. Her slide from earlier in her career is palpable. Don't forget, earlier in Justice O'Connor's career, she signaled she would reverse Roe. That is why Justice Scalia became so angry at her, and pushed her further away in Casey. That Barrett had so many important cases earlier in her career is significant, and I suspect she regrets some of those votes in hindsight.

Seventh, Fragoso acknowledges that Barrett has, on occasion, voted with the Court's three liberals in 5-4 cases:

To see how Barrett aligns with the liberal justices in close cases I tracked the number of times Barrett has voted on the same side as at least two of the liberal justices in 5-4 decisions since she joined the Court. It happened once so far this term in City and County of San Francisco v. EPA where Barrett dissented along with Justices Kagan, Sotomayor, and Jackson. In another environmental case, Ohio v. EPA from OT 2023, the justices' voting alignment was the same.

This happened in five other cases making six of the 30 total 5-4 decisions between OT 2020 and OT 2023 or 20% of the time. The other cases were Bittner v. US, National Pork Producers v. Ross, Ysleta Del Sur Pueblo v. Texas, Becerra v. Empire Health, and Goldman Sachs v. Arkansas Teachers' Retirement System making for one case in 2020, two in 2021, two in 2022, and one in 2023 showing no great increase over her time on the Court.

I do have to address one unusual statistic. Jed Rubenfeld at the Free Press wrote "In not a single 5–4 case from 2022–2024 did Barrett join the three liberal justices to help form a majority." That is a very gerrymandered statement. Rubenfeld excluded Barrett's cases in 2020, 2021, and 2025, three of her six years on the Court. In 2021, Justice Barrett wrote the dissent with the three liberals in HollyFrontier Cheyenne Refining LLC v. Renewable Fuels Association. In 2023, Barrett dissented with the three liberals in Ohio v. EPA. In 2025, Barrett dissented with the three liberals in San Francisco v. EPA. Plus there were death penalty cases and other shadow docket matters where this 5-4 lineup appeared.

Eighth, Fragoso tells conservatives to stop complaining, and instead find ways to persuade Justice Barrett:

The fact that there are six Republican appointees on the Supreme Court doesn't relieve conservative litigants of the need to convince five justices to agree with their position. . . . Well, assuming for the sake of argument that this is correct, then the conservative legal movement needs to figure out how to litigate cases to Barrett, and those in the judicial-selection business need to take the reality of her fifth vote—and her life tenure—into consideration when picking appellate judges.

Where have I heard this before? From my post on March 14:

In the bad old days, Erwin Chemerinsky used to joke that if he could put Justice Kennedy's photo on the front cover of a brief, he would. But as I observed two years ago, briefs are now being directed to Justice Barrett.

Indeed, I think the analogy between Justices Kennedy and Barrett goes further. Fragoso argues that no one else could have been nominated to fill Ginsburg's seat before the election. Barrett was a candidate of necessity. Sound familiar? After Judge Robert Bork was Bork'd, and Judge Doug Ginsburg's nomination went up in smoke, there was another crisis. We were told that only Judge Anthony Kennedy could be confirmed in that climate. Even Laurence Tribe endorsed Kennedy! And what did that candidate of necessity get us? Casey, Lawrence, Obergefell, and much more. We do not do well with candidates of necessity. Indeed, George W. Bush elevates Roberts to the Chief seat only because Rehnquist died suddenly. Had Rehnquist held on for a few months more, we might have a Chief Justice Alito. Decisions made under poor time constraints seldom work out well. That is why having the right short-list in advance is critical.

The Court has shifted from appealing to the quirks of Justice Kennedy to the quirks of Justice Barrett. I think that shift is inevitable whenever there is a single swing vote. The difficulty, however, is that whatever originalist or textualist tendencies Barrett may have, her caution pulls her back. If originalists can't persuade her in Fulton, Brackeen, and other originalist cases, what hope is there?

Vidal v. Elster remains Barrett's most significant decision. When she became convinced that Justice Thomas was wrong about the original meaning of the First Amendment, she reverted to a balancing test that Justice Kagan gladly joined. Are originalist lawyers supposed to just pretend it is a victory to have to make these sort of pragmatic arguments where Thomas is, but Barrett is not, convinced by originalism? That is not much of a victory.

I also don't understand Fragoso's point that we should appoint more appellate judges like Barrett. The first rule of being in a hole is to stop digging. So put down your shovel. No more Souters. No more Robertses. No more Barretts. There is a very deep bench, and we can do much better.

Fragoso concludes:

Conservatives should stop complaining when they lose and go about the business of figuring out how to win.

No. If we fail to discuss our errors in the past, we are doomed to repeat them. No matter how unpopular my writings may be in some quarters--especially those sipping from "dogma" mugs--I will continue shining a light on each and every decision that comes out of the Supreme Court. If my facts are wrong, tell me, I'll correct them. But I think the record is fairly solid at this point. And we cannot ignore the criticism that Justices Thomas and Alito offer of their own colleagues. We cannot pretend it does not exist.

The post The Next Best Defense Of Justice Barrett: She May Disagree With Justice Thomas A Lot, But You Better Learn To Deal With It, Because She Will Be Here For A Long Time appeared first on Reason.com.

[Ilya Somin] How Trump's Alien Enemies Act Deportations Violate the Due Process Clause of the Fifth Amendment

[The people deported are incarcerated in Salvadoran prisons without any due process whatsoever. ]

 

A prison guard transfers deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Most public debate over the Trump Administration's efforts to use the Alien Enemies Act as a tool for deportation have focused on whether the invocation of the AEA is legal, and the administration's apparent defiance of a court order blocking the deportation of some 137 Venezuelans under the Act. These are important issues. But not enough attention has focused on what is being done to the Venezuelans after their deportation: they are to be incarcerated for one year or more in El Salvador's awful prison system.

This is much worse than "normal" deportation of undocumented immigrants, which is bad enough. With conventional deportation, the government removes the migrants from the US, but then sets them free in their country of origin (or at least as free as they can be under the oppressive regimes that govern places like Venezuela). In this case, by contrast, the deportees are sent to prison in terrible conditions. And that's without ever being charged or convicted of any crime related to the ostensible reason for the deportation (supposed membership in the Tren de Aragua drug gang). The migrants in question did not get any opportunity at all to contest claims that they are members of TdA. All we have is the administration's unsupported word.  The government actually admits that "many" of the deportees do not have any criminal convictions of any kind. Moreover, publicly evidence suggests many of them are probably not actually gang members, and some even entered the US legally.

This policy is obviously unjust. Imprisoning people without any due process whatsoever is a cruel and evil practice usually used only by authoritarian states. And if the Trump administration gets away with it here, there is an obvious danger it will expand the practice. While the current AEA proclamation is limited to Venezuelan members of Tren de Aragua, if courts uphold it, it could potentially be expanded to other Venezuelans and migrants from other countries. And, of course, as already noted, the administration isn't giving any due process rights to those targeted for AEA deportation, which enables it to deport people simply by claiming they are gang members, even if they really aren't.

Legally, imprisonment without due process violates the Due Process Clause of the Fifth Amendment, which states that people may not be deprived of "life, liberty, or property, without due process of law." Imprisonment is an obvious deprivation of liberty, and here we have a complete absence of due process of any kind.

Like most other constitutional rights, the Due Process Clause protects all persons, not just citizens. If the US government arbitrarily imprisoned non-citizens within its territory, there is no doubt that would be unconstitutional. Some argue it does not apply to non-citizens outside the US. But legal scholar Nathan Chapman showed, in an important 2017 article, that in the Founding Era, the Due Process Clause was understood to apply even to foreign-citizen pirates captured in international waters. If so, it also obviously applies to deported immigrants.

Another possible rationale for not applying the Due Process Clause in this situation is that the imprisonment is being done by the Salvadoran government, rather than the US. But the Salvadorans are obviously doing it at the behest of the Trump Administration, which is paying them a $6 million fee for this "service." It would be perverse to allow the federal government to circumvent the Due Process Clause by paying a foreign state to do its dirty work. Licensing such subterfuge would create dangerous perverse incentives: the feds could potentially detain anyone they want without due process, simply by outsourcing the "job" to a foreign government willing to do it for the money, or to curry favor with the US administration.

It is true that current legal precedent and practice (wrongly) allows weaker due process protections for immigration detention than for most other deprivations of severe liberty. But here, the Administration is going beyond merely detaining illegal migrants until they can be deported. It is facilitating their imprisonment even after deportation - and without any due process whatsoever. Moreover, in ordinary deportation proceedings, the migrant in question generally is at least entitled to a hearing. Trump's AEA deportees didn't even get that.

There may be various procedural and practical obstacles to courts ordering the administration and El Salvador to release the imprisoned Venezuelans and allow them to return to the US. I won't try to go over them here.  But these technical legal issues don't change the reality that this imprisonment without due process is both unjust and unconstitutional.

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[Jonathan H. Adler] Sorry A.I., No Copyrights for You

[The D. C. Circuit concludes that software cannot be the author of a work for copyright purposes.]

The U.S. Court of Appeals for the D.C. Circuit waded into the question of whether software or A.I. can qualify as an author for copyright purposes. In Thaler v. Perlmutter, a unanimous panel concluded that such non-human entities cannot be authors.

Judge Millett wrote for the panel, joined by Judge Wilkins and Senior Judge Rogers. Here is her summary of the case and decision:

This case presents a question made salient by recent advances in artificial intelligence: Can a non-human machine be an author under the Copyright Act of 1976? The use of artificial intelligence to produce original work is rapidly increasing across industries and creative fields. Who—or what—is the "author" of such work is a question that implicates important property rights undergirding economic growth and creative innovation.

In this case, a computer scientist attributes authorship of an artwork to the operation of software. Dr. Stephen Thaler created a generative artificial intelligence named the "Creativity Machine." The Creativity Machine made a picture that Dr. Thaler titled "A Recent Entrance to Paradise." Dr. Thaler submitted a copyright registration application for "A Recent Entrance to Paradise" to the United States Copyright Office. On the application, Dr. Thaler listed the Creativity Machine as the work's sole author and himself as just the work's owner.

The Copyright Office denied Dr. Thaler's application based on its established human-authorship requirement. This policy requires work to be authored in the first instance by a human being to be eligible for copyright registration. Dr. Thaler sought review of the Office's decision in federal district court and that court affirmed.

We affirm the denial of Dr. Thaler's copyright application. The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being. Given that holding, we need not address the Copyright Office's argument that the Constitution itself requires human authorship of all copyrighted material. Nor do we reach Dr. Thaler's argument that he is the work's author by virtue of making and using the Creativity Machine because that argument was waived before the agency.

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[Jonathan H. Adler] President Trump Targets Humphrey's Executor Directly

[President Trump acts to remove two Democratic commissioners from the Federal Trade Commission. Litigation is likely.]

The New York Times reports that President Trump has acted to remove two Democratic commissioners from the Federal Trade Commission.

President Trump fired the two Democratic members of the Federal Trade Commission on Tuesday, a rejection of the corporate regulator's traditional independence that may clear the way for the administration's agenda.

The White House told the Democrats, Rebecca Kelly Slaughter and Alvaro Bedoya, that the president was terminating their roles, according to statements from the pair. The F.T.C., which enforces consumer protection and antitrust laws, typically has five members, with the president's party holding three seats and the opposing party two. . . .

"I am writing to inform you that you have been removed from the Federal Trade Commission, effective immediately," said a letter sent to one of the commissioners, which was reviewed by The New York Times. "Your continued service on the F.T.C. is inconsistent with my administration's priorities."

This action , even more than the removal of National Labor Relations Board Chair Gwynne Wilcox, targets Humphrey's Executor v. United States as that case concerned the constitutionality of limits on the removal of FTC commissioners. As least one of the removed FTC commissioners has stated his plans to sue.

The removals leave the FTC with two sitting commissioners. Assuming that the President's action is upheld (either by overturning Humphrey's or distinguishing on the grounds that the FTC today exercises more core executive power than it did in the 1930s), this will free up the FTC to act in line with the President's policy priorities.

With four commissioners, the FTC was potentially deadlocked and was unlikely to reverse Biden Administration policies or adopt new initiatives and measures ought by Chair Andrew Ferguson. With only two commissioners of the same party, however, that is no longer a problem. Commissioner Holyoak is likely to agree with Chair Ferguson on most issues.

But can the FTC act with only two commissioners? Is that a quorum? Apparently it is under existing FTC regulations. 17 CFR § 200.41 provides:

A quorum of the Commission shall consist of three members; provided, however, that if the number of Commissioners in office is less than three, a quorum shall consist of the number of members in office; and provided further that on any matter of business as to which the number of members in office, minus the number of members who either have disqualified themselves from consideration of such matter pursuant to § 200.60 or are otherwise disqualified from such consideration, is two, two members shall constitute a quorum for purposes of such matter.

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[David Post] Partisan Ideology and the Judiciary

[It seems that "liberal" judges are no more likely to rule against the Trump Administration than "conservative" judges. ]

With all the talk of "Radical Left Lunatics" and "Crooked Judges" in the federal judiciary, all of whom "should be IMPEACHED!!!," [see  note ** at end], it's worth taking a look at some interesting analyses by Stanford political scientist Adam Bonica of the relationship between "judicial ideology"** and the outcomes in the many cases challenging Trump Administration policies.

The bottom line:

Judges across ideological lines are ruling against Trump at strikingly similar rates (84% liberal, 86% centrist, 82% conservative).…

Judicial ideology doesn't predict ruling outcomes [in these cases]. This isn't commonly the case—ideology is typically a moderate to strong predictor of case outcomes, making this ideological consensus particularly noteworthy. The pattern diverges from what Maya Sen and I found during Trump's first term, when judge ideology strongly predicted case outcomes. What changed? [emphasis added]

It's an important point. A judge's ideology is, usually, a "moderate to strong predictor" of case outcomes - but not here, not in the cases challenging Administration actions on constitutional or statutory grounds. [As noted before, there is a very useful compilation of these cases - now numbering around 155! - available here].

I'm sure that this fact will have no bearing whatsoever on the campaign by the folks calling the shots at the White House and on Capitol Hill in their attacks on the federal judiciary.

Bonica suggests that "what changed" between Trump's first term and today is that "today's cases pose more fundamental constitutional violations uniting judges across partisan divides," and that strikes me as, broadly speaking, basically correct.  One might expect - or at least hope - that the judiciary as a whole, liberal and conservative, would close ranks when faced with a serious threat to its power, and that may indeed be what is happening.

** If you're especially interested in the methodology by which "judicial ideology" is measured, there's a good discussion of the metric that Bonica uses in an earlier paper of his, available here. He uses the "DIME" database (Database on Ideology, Money in Elections), which uses data on political contributions to construct ideology scores for several hundred thousand US lawyers. legal academics, and judges. I'm no expert, but Bonica and others have been working with this database for about 10 years and it seems to be broadly useful and predictive.

**The Truth Social posting by the President of the United States read in its entirety as follows:

"This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President - He didn't WIN the popular VOTE (by a lot!), he didn't WIN ALL SEVEN SWING STATES, he didn't WIN 2,750 to 525 Counties, HE DIDN'T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I'm just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges' I am forced to appear before, should be IMPEACHED!!! WE DON'T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE AMERICA GREAT AGAIN!!!"

I know that we've all gotten used to the, um, tone that the President of the United States uses in his written communications with the nation, but it's good to remind ourselves, from time to time, just how outrageous and debased it is. We can argue all day about the merits of Judge Boasberg's ruling, and that's fine; but he is not a "Radical Left Lunatic," nor is he a "troublemaker and agitator," nor is he "Crooked." and that the President of the United States can assert otherwise and we all just roll our eyeballs is a sad commentary on where we're at these days.

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[Sasha Volokh] Amicus Brief in Georgia Adult-Entertainment Case

[FIRE and FALA urge the Supreme Court to grant cert in Georgia Ass'n of Club Executives v. Georgia.]

A few weeks ago, I blogged (Parts 1 and 2) about the cert petition I filed in Georgia Ass'n of Club Executives v. Georgia, where we raised a First Amendment challenge to a state tax on adult entertainment establishments. Now, the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass'n (FALA) have filed an amicus brief supporting the cert petition. These are great organizations, who do good work in litigating free speech cases—I'm grateful for their help!

I'm reproducing the text of their brief below. The lawyers for the two organizations are Bob Corn-Revere, Ronnie London, Ed Rudofsky, and (my former student) Cory Conley.

Interest of amici curiae

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organi­zation that defends the rights of all Americans to free speech and free thought—the essential qualities of liberty.  Since 1999, FIRE has successfully defended First Amendment rights on college campuses nation­wide through public advocacy, targeted litigation, and amicus curiae filings in cases that implicate expressive rights. In June 2022, FIRE expanded its advocacy beyond the university setting and now defends First Amendment rights both on campus and in society at large. In lawsuits across the United States, FIRE works to vindicate First Amendment rights without regard to the speakers' views. E.g., Br. Amicus Curiae FIRE Supp. Pet'rs in No. 22-555 & Resp'ts in No. 22-277, Moody v. Netchoice, LLC, 603 U.S. 707 (2024); Br. Amicus Curiae FIRE Supp. Pet'rs, Free Speech Coal. v. Paxton, No. 23-1122 (filed May 16, 2024). FIRE is particularly opposed to government attempts to pass off content-based restrictions as regulations of conduct governed by intermediate or lesser scrutiny. See, e.g., Br. Amicus Curiae FIRE Supp. Pls.-Appellants, Alario v. Knudsen, No. 24-34 (9th Cir., filed May 6, 2024).

The First Amendment Lawyers Association (FALA) is a nonpartisan, nonprofit bar association comprised of attorneys throughout the United States and elsewhere whose practices emphasize defense of Freedom of Speech and of the Press, and which advocates against all forms of government censorship. Since its founding, its members have been involved in many of the nation's landmark free expression cases, including cases before this Court. See, e.g., Ashcroft v. Free Speech Coalition, Inc., 535 U.S. 234 (2002) (successful challenge to Child Pornography Prevention Act argued by FALA member and former president H. Louis Sirkin); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) (successful challenge to "signal bleed" portion of Telecommunications Act argued by FALA member and former president Robert Corn-Revere). In addition, FALA has a tradition of submitting amicus briefs to the Court on issues pertaining to the First Amendment. See, e.g., City of Littleton v. Z.J. Gifts D-4, LLC, 2004 WL 199239 (Jan. 26, 2004) (amicus brief submitted by FALA); United States v. 12,200-ft Reels of Super 8mm Film, 409 U.S. 909 (1972) (order granting FALA's motion to submit amicus brief).

Summary of Argument

This Court has long recognized that, under the First Amendment, content-based laws are "presump­tively unconstitutional," and subject to a rigorous form of strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Content-neutral "time, place, and manner" regulations, meanwhile, face the more forgiving standard of intermediate scrutiny. The reason is simple: content-based restrictions invite the government to play favorites with speech, an invitation the First Amendment firmly declines.

Laws that regulate speech based on its message or subject matter are rightly treated with extreme skepticism because they pose the greatest risk of government overreach. As the Court put it in Police Dep't of Chicago v. Mosley, "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." 408 U.S. 92, 95 (1972). On the other hand, content-neutral laws—those blind to the message being conveyed—earn more judicial breathing room because they don't put the government's thumb on the scale of public discourse. This is not a technicality; whether a regulation is content-based is the first question any court asks in a First Amendment case, and the answer often writes the conclusion before the analysis even begins. The content-based distinction is what keeps government from appointing itself the ultimate editor of American discourse, deciding what speech is safe, what speech is suspect, and ultimately, what speech survives.

But courts cannot referee effectively when the rules of the game are unclear. The "secondary effects" doctrine articulated in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and the broader "content-neutral justification" rule announced by Hill v. Colorado, 530 U.S. 703 (2000), allow governments to recharacterize content-based distinctions as merely incidental to content-neutral purposes. Reed, on the other hand, establishes a clear, administrable rule that gives full effect to the First Amendment: laws that regulate speech based on its content are subject to strict scrutiny, regardless of the government's benign motive or content-neutral justification. 576 U.S.at 163–64.

In this case, Georgia enacted a tax that, by any measure, is content-based. It specifically targets establishments based on expressive performances, the content of which must be evaluated in order to determine the applicability of the tax.  Ga. Code Ann. §§ 15-21-209, -201(1)(A).  To enforce the tax, government officers must examine whether dancing is nude, whether movements are sexual in nature, and whether these elements constitute "entertainment"—making the tax inherently content-based rather than content-neutral, like laws against public nudity alone.

Yet the Georgia Supreme Court assumed that under Renton intermediate scrutiny applied, and upheld the law after deciding the "purpose" of the tax was to address the "undesirable secondary effects" of the content at issue. Georgia Ass'n of Club Executives, Inc. v. State, 320 Ga. 381, 389 (2024). Other lower courts have felt similarly bound by Renton, or have extended both Renton and Hill beyond their original contexts, even when Reed would seem to stand in the way.

The Court should end the confusion and clarify that Reed means what it says: laws that distinguish based on content are content-based, regardless of the government's purported intent or justifications. The Court should in doing so explicitly acknowledge and resolve in favor of Reed the doctrinal inconsistencies that Renton and Hill introduced. This case offers an ideal vehicle for the Court to do so.

Argument

I. The Content-Based/Content-Neutral Distinction is the Most Important Inquiry in Protecting Free Expression

The First Amendment, "[p]remised on mistrust of governmental power," stands as a bulwark against "attempts to disfavor certain subjects or viewpoints." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010). And "as a general matter, the First Amend­ment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." United States v. Alvarez, 567 U.S. 709, 716 (2012) (Kennedy, J.) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)).   Thus, the first inquiry in any free speech case—and the most critical one—is whether the law in question is content-based or content-neutral.

A law is content-based if it "applies to particular speech because of the topic discussed or the idea or message expressed." Reed, 576 U.S. at 163.  And if it is, the analysis is straightforward—strict scrutiny applies. See, e.g., Alvarez, 567 U.S. at 724 (2012) (referring to it as "the 'most exacting scrutiny'" (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)).  Content-based laws allow the government to "pick and choose" among ideas, Perry Educ. Assn v. Perry Local Educator's Ass'n, 460 U.S. 37, 55 (1983)—something the First Amendment flatly forbids. Laws that fall into this category—whether by punishing disfavored viewpoints, limiting speech from certain speakers, or manipulating the information available to the public—are not just ill-advised. They are unconstitutional.

The Court has repeatedly, and emphatically, recognized that  content-based laws "have the constant potential to be a repressive force in the lives and thoughts of a free people." Ashcroft v. ACLU, 542 U.S. 656, 660 (2004). See Texas v. Johnson, 491 U.S. 397, 414 (1989) ("if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.).  As a consequence, "content-based regulations are presumptively invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). See also Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018) ("content-based regulations 'target speech based on its communicative content,' and are therefore 'presumptively unconstitutional.'") (quoting Reed, 576 U.S. at 163).

Ten years ago, in Reed, the Court delivered a forceful reaffirmation of the content neutrality principle, striking down a municipal sign code that imposed different restrictions on signs based on their message categories. Writing for the majority, Justice Thomas articulated an expansive definition of content discrimination, declaring that "a law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech." Reed, 576 U.S. at 165 (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)). The Court rejected the notion that seemingly innocuous distinctions between types of speech could escape strict scrutiny, firmly establishing that "a law that singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter" remains inherently suspect. Id. at 169. And the Court warned that "innocent motives do not eliminate the danger of censorship. Id. at 167–68.

The content-based distinction has real consequences. Because of the deliberately exacting and unforgiving nature of strict scrutiny review, when it comes to free speech challenges, the content-based/content-neutral distinction isn't just important; it is often the whole ballgame.  As this Court has acknowledged, the application of strict scrutiny to content-based regulations is typically fatal: "It is rare that a regulation restricting speech because of its content will ever be permissible." United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 818 (2000). See also Williams-Yulee v. Florida Bar, 575 U.S. 433, 434 (2015). (it is the "rare case[ ] in which a speech restriction withstands strict scrutiny.") In the real world of First Amendment litigation, then, the content distinction isn't a doctrinal nuance—it is the constitutional "toggle switch" that determines whether speech regulations live or die.

II. Renton and Hill Have Created Significant Uncertainty About What Is Content-Based and What Is Not

Despite Reed's reaffirmation that laws distinguishing speech based on its content must face strict scrutiny, the persistence of the Court's "content-neutral justification" doctrine injects troubling and unnecessary ambiguity into First Amendment jurisprudence by blurring the line between content-based and content-neutral regulations. The Court should take this opportunity to reaffirm that a regulation which, on its face, targets specific speech based on its content must be subject to strict scrutiny, regardless of governmental assertions about the regulation's purpose or intent.

In Renton, the Court upheld a zoning ordinance restricting the location of adult theaters, deeming it content-neutral despite its obvious focus on a particular category of speech.  According to the majority opinion, the city's "predominate concerns" were with the "secondary effects" of such theaters—crime, property values, and the "quality of urban life"—rather than the content of the films themselves, and thus, the ordinance could escape the rigors of strict scrutiny. 475 U.S. at 47-49. But what started as a narrow exception tailored to the unique context of urban planning has morphed into something much worse.  The "secondary effects" doctrine, which "rides roughshod over cardinal principles of First Amendment law," Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 85–86 (1976) (Stewart, J., dissenting), has become a handy escape hatch from strict scrutiny, inviting governments to recharacterize content-based regulations as content-neutral whenever they can point to some indirect effect of the regulated speech.

But if Renton opened a small crack in First Amendment doctrine, Hill v. Colorado, supra, 530 U.S. 703, drove a truck through it.  In Hill, the Court upheld a statute that prohibited approaching within eight feet of a person near a healthcare facility "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling." Id. at 707.  Despite this law's explicit regulation of specific types of speech (protest, education, counseling), the majority deemed it content-neutral.  The statute in Hill restricted speech based on what speakers were saying—precisely the kind of content-based regulation that should trigger strict scrutiny. Justice Kennedy's dissent summarized the problem aptly:

The Court's holding contradicts more than a half century of well-established First Amendment principles. For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk. If from this time forward the Court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and open discourse in a public forum.

Id. at 765 (Kennedy, J., dissenting).

Members of the Court have since signaled their discomfort with Hill. In McCullen v. Coakley, 573 U.S. 464 (2014), while declining to overrule the earlier case, the Court emphasized that buffer zone laws impose "serious burdens" on speech. Id. at 487.  In City of Austin v. Reagan Nat. Advertising of Austin, LLC, 596 U.S. 61 (2022), Justice Thomas, in a dissent joined by Justices Gorsuch and Barrett, proclaimed that "Hill is an aberration in our case law," 596 U.S. at 92, and declared Hill to be "defunct." Id. at 103. Most recently, in a dissent from a denial of certiorari this term, Coal. Life v. City of Carbondale, Illinois, 145 S. Ct. 537 (2025), Justice Thomas called on the Court to explicitly overturn Hill, noting that five justices have already stated in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), that Hill "distorted" the Court's First Amendment precedents. Id. at 287. Comparing Hill's degraded status to that of the long-abandoned three-part Establishment Clause test under Lemon v. Kurtzman, 403 U.S. 602 (1971),  Justice Thomas concluded that "Hill's abandonment is arguably even clearer than Lemon's." Coalition Life, 604 U.S. at 540.

These concerns reflect reality: the Court simply cannot square the clarity of Reed with the theoretical contortions of Hill and Renton. Under Reed's straight­forward analysis, the regulations in both Renton (singling out adult theaters) and Hill (singling out "protest, education, or counseling") would be plainly content-based and subject to strict scrutiny. Justice Kagan recognized this tension in her concurrence in Reed, noting the majority's sweeping approach might cast doubt on many "entirely reasonable" regulations that have been on the books for years. Id. at 178 (Kagan, J., concurring). While Justice Kagan worried about Reed's potential breadth, her concerns expose the fundamental incompatibility between Reed and Renton and Hill.

The inconsistencies between Reed, Renton, and Hill have also created a doctrinal quagmire for lower courts. When faced with a regulation that appears content-based on its face, but might be justified by reference to secondary effects or other purportedly content-neutral concerns, which precedent controls?

Some courts have treated Reed as implicitly overruling aspects of Renton and Hill. See, e.g., Free Speech Coal., Inc. v. Att'y Gen. U.S., 825 F.3d 149, 160 (3d Cir. 2016) (holding that in light of Reed, the recordkeeping, labeling, and inspection requirements of the Child Protection and Obscenity Enforcement Act were content based and subject to strict scrutiny under First Amendment, reversing its previous holding applying intermediate scrutiny.) Others continue to apply these earlier precedents, particularly in contexts similar to their original applications. See, e.g., BBL, Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015) (refusing to "upend established doctrine" and continuing to apply Renton to adult business zoning despite Reed); Price v. City of Chicago, 915 F.3d 1107, 1119 (7th Cir. 2019) (adhering to Hill, despite acknowledging that Hill is "incompatible with current First Amendment doctrine as explained in Reed"). Still others have applied Hill even in cases with facts similar to those presented in Reed.  See, Act Now to Stop War & End Racism Coal. v. Dist. of Columbia, 846 F.3d 391, 403–04 (D.C. Cir. 2017) (citing Hill and applying intermediate scrutiny to uphold an ordinance that set different rules for lamppost signs depending on whether or not the signs were event-related) And more generally, appellate courts have demonstrated an alarming willingness to engage in doctrinal gymnastics to avoid applying strict scrutiny in speech cases. See, e.g., Free Speech Coal., Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024) (classifying Texas's law requiring age verification for sexual material as content-neutral by focusing on the overarching purpose of protecting minors rather than the law's facial content discrimination).

The Georgia Supreme Court's opinion in this case is a clear application of the Renton/Hill doctrine that exemplifies its contradiction with Reed. Although the Georgia statute explicitly taxes "adult entertainment establishments" based on the sexually expressive nature of their entertainment—clearly a content-based distinction—the court nevertheless classified the tax as content-neutral, relying solely on the state legislature's purported intention to address the establishments' negative "secondary effects." Georgia Ass'n of Club Executives, Inc., 320 Ga. at 387. The court emphasized the legislature's stated purpose to regulate not the expressive conduct itself but only its indirect consequences, allowing the law to evade strict scrutiny under the guise of intermediate scrutiny. This epitomizes precisely the danger Justice Kennedy warned against: the elevation of a government's purported "justification" over the clear textual targeting of speech. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring). ("The fiction that this sort of ordinance is content neutral—or 'content neutral'—is perhaps more confusing than helpful …. It is also not a fiction that has commanded our consistent adherence.")

But even on its own terms, the zoning rationale articulated in Renton is fundamentally incompatible with tax-based regulations like Ga. Code Ann. § 15-21-201(1). Renton permitted zoning ordinances targeting adult establishments to be treated as content-neutral if their primary purpose was addressing secondary effects rather than restricting the expressive content itself. Extending this rationale to taxation misapplies Renton's reasoning. Taxation inherently targets economic activity directly tied to expressive content, thereby creating an explicit and unavoidable content-based distinction. And there are no "secondary effects" of the kind contemplated in Renton that a tax might address.

Neither Georgia nor any other state should be permitted to weaken the protection of the First Amendment by cloaking a content-based regulation in content-neutral clothing. Without intervention by this Court, such reasoning will perpetuate the very ambiguity and uncertainty that Reed sought to eliminate.

III. Resolving This Uncertainty is Especially Important as Courts Are Using Hill and Renton to Justify Restrictions Beyond Adult Businesses and Abortion Clinics

What began as narrow exceptions in specific contexts has morphed into something more troubling—a roadmap for governments to evade strict scrutiny in contexts never contemplated by this Court. Lower courts are now applying Hill and Renton beyond their original domains of abortion clinics and adult businesses, creating a permission structure for content-based restrictions that threatens to swallow the First Amendment's core protections.

The Ninth Circuit's decision in Project Veritas v. Schmidt, 125 F.4th 929 (9th Cir. 2025), exemplifies this expansion. There, the court upheld a ban on non-consensual surreptitious recordings that explicitly distinguished between recordings of law enforcement (allowed) and recordings of everyone else (prohibited)—a textbook content-based distinction under Reed. The court, sitting en banc, held Oregon's law was content-neutral because the government's purpose wasn't to suppress speech. Id. at 950. But that's a misreading of Reed—and an overextension of Hill. The key question isn't what the government intends but whether the law, on its face, treats speech differently based on its content. Enforcing Oregon's law required the government to listen to the recording and determine its content. A secretly recorded chat with a Public Records Advocate? Illegal. A conversation with a police officer? No problem. In other words, it is content-based regulation in its most straightforward sense.

Similarly, the Fifth Circuit, in Siders v. City of Brandon, Mississippi, 123 F.4th 293 (5th Cir. 2024), upheld a city ordinance that restricted public protests and demonstrations near a public amphitheater, holding the regulation was content-neutral under Hill. The court rejected a challenge from a Christian evangelist who sought to engage in expressive activities near the venue, holding that intermediate scrutiny applied, and that the ordinance was justified by public safety concerns and left open alternative channels for communication. Id. at 304–09. The court relied on Hill to support its conclusion that a restriction on speech based on location rather than message is not content-based, even though the ordinance specifically regulated "public protests and/or demonstrations," singling out a category of speech based on its communicative impact. Id. at 304–05. In other words, Hill has escaped the abortion clinic context to become a generalized tool for restricting protest speech.

Finally, in Blythe v. City of San Diego, 2025 WL 108185 (S.D. Cal. Jan. 14, 2025), a district court upheld a sweeping ban on "First Amendment activity" within 100 feet of "health care facilities, places of worship, and school grounds." The court leaned heavily on Hill, treating it as controlling precedent despite the fact that the San Diego ordinance reached far beyond abortion clinics to restrict speech near any "place of worship" or "school grounds." Id. at *7. In doing so, the court transformed Hill's already problematic framework into a blank check for governments to create speech-free zones around virtually any "sensitive" location.

But even when the government loses a First Amendment case, there is pressure on courts to integrate the "secondary effects" rationale where it does not, and could not, apply. This is because governments continue to make far-flung arguments rooted in the secondary effects doctrine. For instance, in Free Speech Coal., Inc. v. Skrmetti, 2024 WL 5248104, at *14 (W.D. Tenn. Dec. 30, 2024), Tennessee argued that intermediate scrutiny should apply under Renton even to a statute that issue imposed content-based restrictions by requiring operators of websites comprised of 1/3 content deemed harmful to minors to verify that each visitor was at least 18 years old. It did so even though the law only addressed content, not secondary effects. This Court has previously rejected such attempts to extend the secondary-effects rationale to direct content-based restrictions. See Reno v. ACLU, 21 U.S. 844, 868 (1997) (holding the secondary-effects doctrine inapplicable where the law directly targeted the primary effects of online content).

This expansion creates precisely the danger this Court has repeatedly warned against: that the government will "effectively drive certain ideas or viewpoints from the marketplace," Simon & Schuster v. Members of NY State Crime Victims Bd., 502 U.S. 105, 116 (1991), by selectively restricting speech based on its content. When courts allow governments to recast content-based laws as content-neutral by invoking Hill and Renton beyond their original contexts, they gut the First Amendment's most basic protection—its prohibition on content discrimination.

Conclusion

This Court should grant the petition for a writ of certiorari.

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[Josh Blackman] Today in Supreme Court History: March 19, 1891

3/19/1891: Chief Justice Earl Warren's birthday.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Orin S. Kerr] Jack Goldsmith on the "Not Simple" Merits Issue Before Judge Boasberg

[A useful overview. ]

In trying to understand the many constitutional issues raised by Trump 2.0, I have found Jack Goldsmith to be a particularly informed guide.  Jack's substack, Executive Functions, has become essential reading.  Jack has a wide-ranging post today on the case before Judge Boasberg that has been so much in the news lately. Although the public attention on the case has covered a lot of different ground, I thought it worth flagging Jack's overview of the legal merits of how the Alien Enemies Act does—or doesn't—apply. Jack's take: On the merits, the issue is "not so simple."

The AEA provides (with emphasis added): "Whenever … any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government" who are at least 14 years old, unnaturalized, and within the United States "shall be liable to be apprehended, restrained, secured, and removed as alien enemies."

The statute further authorizes the president "to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom." And it makes clear that the president is "authorized" when the statutory criteria are satisfied "to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable," as well as "the manner and degree of the restraint to which they shall be subject and in what cases."

This is a very broadly worded authorization to the president in an area of the president's core constitutional power. The fact that the statute is "obscure" or old is irrelevant to the authority it confers. In the context of the TdA matter it raises at least three legal issues.

First, is TdA perpetrating, attempting, or threatening an invasion or predatory incursion against the territory of the United States within the meaning of the AEA? The president in the proclamation finds and declares that it is, and adds that "TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela." This issue will turn on the facts and the meaning of "invasion or predatory incursion," but the "predatory incursion" criterion could be satisfied based on TdA's damaging and persistent criminal activities inside the United States.

Second, and hardest for the government, is whether the incursion (if it is that) "is perpetrated, attempted, or threatened against the territory of the United States by [a] foreign nation or government." The proclamation states that TdA "is closely aligned with, and indeed has infiltrated," the "regime" of Venezuela's president, Nicolás Maduro, and is part of a "hybrid criminal state," whatever that means. A brief on appeal says that TdA is so "intertwined" in "Venezuela's state structures," that it is "a de facto arm of the Maduro regime." It adds, as an "independent rationale," that TdA is "a de facto government in the areas in which it is operating."

I do not think one can know for sure at this stage how this issue should be resolved. The administration's factual basis for its claims have been thin. Yet there are many contexts in domestic and international law where "private" individuals or organizations are deemed to be an arm of the government or state, and the president has the exclusive power to recognize states or governments. The test for whether an action is "by [a] foreign nation or government" under the AEA is, I believe, one of first impression, and will depend on the proper legal framework (there are a few possibilities), and more factual development.

The third issue, also complex, is the scope of judicial review. This is the issue that gave Judge Boasberg most pause in the Saturday hearing. The president ordinarily gets significant deference in national security contexts, especially ones related to deportation. And the Supreme Court in 1948 in Ludecke v. Watkins ruled in the context of a wartime AEA removal that the AEA precludes judicial review of at least some AEA-related presidential determinations. But as Judge Boasberg pointed out, Ludecke in footnote 17 stated that some elements of AEA removal—"whether the person restrained is in fact an alien enemy fourteen years of age or older"—are subject to judicial review. It did not bar all judicial scrutiny of presidential AEA findings.

Some national security statutes provide for presidential interpretive discretion. The 2001 Authorization for the Use of Military Force (AUMF) says that the president "determines" one element of the law's scope, and the Insurrection Act turns in part on "[w]henever the President considers" certain criteria to be triggered. The AEA contains no express delegation of interpretive power to the president. Moreover, the government acknowledges that habeas is a proper context for AEA removals. Yet Boumediene v. Bush, decided long after Ludecke, itself a habeas case, placed novel constitutional constraints on Congress's ability to limit habeas review of executive detentions. That makes it hard for the government to argue against judicial review under the AEA, at least in a properly filed habeas case.

Nothing in the above analysis speaks one way or the other to the validity of Judge Boasberg's TRO. He described it as "status quo"-preserving, and it turned primarily on the non-merits irreparable harm to the plaintiffs and the balance of the equities, both assessed at a very early stage. The government has filed a full-throated motion to vacate the TRO in the court of appeals, which will sort the matter out. My point for now is simply that, as Judge Boasberg said on Saturday, the issues on the merits (including the scope of judicial review) "are not easy issues."

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[Jonathan H. Adler] Chief Justice Roberts' Remarks on Threats to Judges

[In 2020, the Chief Justice condemned Senator Schumer's "dangerous" remarks.]

In March 2020, Chief Justice Roberts issued the following statement after Senator Schumer and others held a rally in front of the Court.

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that "You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions." Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

Here is how the statement was covered by Politico and the AP.

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