A federal judge on Monday issued an extraordinary ruling that concluded the Justice Department and private lawyers representing Donald Trump improperly had “a shared, unitary interest“ in purporting to settle Trump’s lawsuit against the Internal Revenue Service through the creation of the now-jettisoned “Anti-Weaponization” slush fund and immunity for Trump from tax-return prosecution.

“[T]he Court finds that this matter was brought for an improper purpose—to gain the imprimatur of judicial legitimacy for a ‘settlement’ that had no viable basis in law or fact,” U.S. District Judge Kathleen Williams wrote.

Williams, an Obama appointee, sanctioned Trump’s lawyers by referring Alejandro Brito to the Florida Bar and ordering that Daniel Z. Epstein not be allowed to practice in the Southern District of Florida for one year; ordered monetary sanctions as well; ordered that Monday’s opinion be sent to the State Bar of New York and District of Columbia Bar, where Acting Attorney General Todd Blanche and Associate Attorney General Stanley Woodward already face bar complaints; and prohibited any parties from holding out what they concocted as a settlement.

Williams found sanctions appropriate both under Rule 11 of the Federal Rules of Civil Procedure and the court’s inherent authority.

“The Parties used the existence of federal litigation as a means of conferring legitimacy upon a course of action that they were unwilling to subject to judicial review,“ she wrote in invoking the court’s inherent authority “to police the matters and litigants who avail themselves of its jurisdiction.“

Williams reviewed the matter before her in depth, clearly aware of the stark circumstances and, as she put it, “sui generis“ — one of a kind — nature of the case.

“This action was never about a party seeking judicial resolution of a legal issue or a factual dispute,” Williams wrote. “The nature of the suit itself and the conduct of the Parties and counsel from its filing make plain that this was an attempt to use the Court to provide some legitimacy to an agreement to confer immunity to people and entities affiliated with the President and to earmark billions of dollars from American taxpayers to redress grievances not defined in the law.”

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Williams issued the 56-page opinion and order after a group of retired judges had filed their own request to the judge to reopen the matter after Trump and DOJ purported to settle the lawsuit. The former judges, as Williams noted Monday, raised the request because of a concern that the case appeared to be “a fraud on the court.”

Although Trump’s lawyers had argued that Trump was filing the suit against the IRS in his “personal capacity” over the illegal disclosure of some of Trump’s tax returns by a contractor, Williams, an Obama appointee, wrote that “the Court declines to adopt or accept the credulous exercise of divorcing President Trump’s current job title from an understanding of what happened here.”

Before reaching the conclusion that sanctions were appropriate, Williams first detailed the facts of the case, her previously raised “serious concerns about whether [the court] had subject matter jurisdiction in a case where the Lead Plaintiff ostensibly had direct, unassailable control over Defendants,“ and the plaintiffs’ dismissal of the case days before they were to respond to Williams’ concerns.

That coincided with DOJ’s May 18 announcement of the $1,776,000,000 “Anti-Weaponization Fund” as part of the purported “settlement agreement,” which Blanche testified about before Congress the next day. Blanche also issued an addition to the “settlement agreement,” purporting to immunize Trump and related individuals from prosecutions coming out of any audits based on “tax returns filed before” May 19.

By June 2, Blanche testified that, as Williams wrote, “the Anti-Weaponization Fund would not be moving forward,” adding, “He did not, however, commit to a similar termination of the audit and immunity protections set forth in his Release Order.”

Getting to the question before her, Williams was incredulous. “Plaintiffs and Defendants are not adverse because one party controls this litigation,” she wrote. “[T]he Court determines that Plaintiffs improperly employed this lawsuit to justify a particular award in this matter—access to taxpayer funds and exemption from audits and other investigations—which was accomplished by leveraging control over Defendants.“

Quoting from the recent Supreme Court decision over presidential firing powers:

Plaintiffs cannot argue before the Supreme Court that Executive Branch actors “unquestionably exercise[] executive power, and must therefore be controlled by the Chief Executive[,]” Slaughter, 609 U.S. at 27, and then here, argue that the Parties are sufficiently adverse to establish an actual case or controversy.

Specifically regarding the actions of Blanche and Woodward — in the two top roles at DOJ currently — Williams was blunt and to the point.

Noting that Blanche had represented Trump in multiple key criminal matters and that Woodward had, among others, represented Trump’s co-defendant in the Mar-a-Lago documents case, Williams wrote, “Instead of either recusing because of their previous representations or vigorously defending this lawsuit as required to do so by DOJ policies and procedures, these lawyers agreed to a ‘settlement’ involving a staggering amount of money potentially benefitting former clients.”

Williams stated that she was, in particular, “extremely troubled“ by Blanche’s congressional testimony regarding why the purported “settlement agreement” was not “submitted to this Court for review.”

The behavior of all of the lawyers here was clearly a problem. As Williams wrote:

No sitting President has ever sued federal agencies completely subject to his control for monetary benefits, or any benefits that inure to him, his family, and associates. The failure of any attorney in this case to address, on this docket, the relationship of this Article II proscription with the benefits conferred by the “settlement” is a glaring omission that speaks to the control of the Lead Plaintiff.

Ultimately, the matter was simple.

“In sum, the facts before this Court demonstrate there was never adverseness between the Parties; there was never a case or controversy; and there was never a question as to who would prevail,” Williams wrote.

That is not our system, and, on Monday, Williams stood up for that system.

BREAKING UPDATE, JULY 10:

U.S. District Judge James Boasberg on Friday, from D.C., denied the request from the World Professional Association for Transgender Health, or WPATH, for a temporary restraining order blocking the Federal Trade Commission from proceeding with its enforcement action against WPATH in the Northern District of Texas.

Boasberg found that WPATH had not shown that the Texas action needs to be blocked to protect Boasberg’s jurisdiction over an order he issued previously protecting WPATH from needing to respond to an FTC Civil Investigative Demand or because that D.C. case and Texas action would be sufficiently duplicative.

Additionally, Boasberg found that that WPATH had not shown they will face irreparable harm if forced to litigate related matters in both D.C. and Texas.

The ruling is not a ruling on the merits of the FTC’s action filed in Texas, and Boasberg did not address that. It is, instead, solely an order on WPATH’s request to block the FTC from proceeding with the action in Texas.

That said — and the reason why this request was so hard-fought by both parties — the FTC action in Texas is before U.S. District Judge Reed O’Connor, a far-right judge with a history of anti-LGTBQ rulings. Further still, any appeals of O’Connor’s rulings go to the U.S. Court of Appeals for the Fifth Circuit, one of the more far-right appeals courts in the nation.

Given prior agreement between Boasberg and O’Connor on consideration of dueling requests going into the Fourth of July weekend, the parties are now to update O’Connor of Boasberg’s ruling.

O’Connor will then be free to proceed with considering the FTC case as he wishes.

This updated report was originally posted at 4:45 p.m. July 10 and expanded after initial publication, with the final edit at 5:15 p.m. July 10.

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Original report:

On Thursday afternoon, U.S. District Judge James Boasberg heard arguments in the federal courthouse in Washington, D.C. over whether he should temporarily block the Federal Trade Commission from continuing a lawsuit in the Northern District of Texas targeting the World Professional Association for Transgender Health, or WPATH.

It was the latest high-profile dispute over the Trump administration’s efforts to “end” the provision of gender-affirming medical care for transgender minors even in states where such care is allowed or even explicitly protected by taking actions against those providing or supporting such care.

After a hearing that lasted about an hour in his second-floor courtroom at the E. Barrett Prettyman U.S. Courthouse on Pennsylvania Avenue in between the Capitol and White House, Boasberg said he would issue a decision on Friday.

While sympathetic to WPATH’s concerns — he had already ruled for the group once in an opinion calling the FTC’s efforts likely retaliatory — Boasberg also expressed skepticism as to whether WPATH needing to litigate the questions in two different courts constitutes the “irreparable harm” needed for such emergency relief.

The questions before Boasberg, an Obama appointee, addressing two overlapping lawsuits — WPATH v. FTC, in front of him, and FTC v. WPATH, in Texas — involve important issues of federal agency authority, as Jonathan Cohen argued for the FTC, and the power of someone being targeted by an agency to challenge those efforts when they are improper, as Caleb Hayes-Deats argued for WPATH.

As cases and specifics multiply across the country, however, the bigger picture is whether the federal government can go after a discrete minority for unequal treatment repeatedly and on multiple fronts, forcing the targeted group — here, trans kids and those supporting them — to win in every challenge, while the federal government will just keep using its resources and authorities to try another angle.

Here, all of those angles are aimed at making it impossible for those medical providers and associated organizations supporting trans kids — and, potentially, all trans people — to keep doing so.

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Thursday’s hearing was before Boasberg because, after receiving a Civil Investigative Demand from the FTC in January, WPATH brought a lawsuit challenging that effort in D.C.

In early May, Boasberg issued a preliminary injunction blocking the FTC from “implementing or enforcing its previously issued Civil Investigative Demand” as to WPATH or, in a companion case, the Endocrine Society. In the pair of opinions, Boasberg concluded, as explained in the Endocrine Society opinion:

The Court believes that Plaintiff has established a likelihood that the CID was issued in retaliation for its First Amendment activity and that the FTC’s purported reason for its investigation bears little relationship to the extensive demand it issued.

Specifically as to WPATH, Boasberg wrote that “WPATH has presented circumstantial evidence sufficient to establish that retaliation for its protected speech motivated the FTC’s issuance of a CID.”

Following those May 7 injunctions, the FTC did not appeal. Instead, at least as to WPATH, on June 16 a WPATH member was served with a grand jury subpoena from the Northern District of Texas. The next day, the FTC, joined by four states, filed a civil lawsuit against WPATH. The case ended up before U.S. District Judge Reed O’Connor, a far-right George W. Bush appointee. That same day, the FTC withdrew its civil investigative demand as to WPATH. Days later, on June 22, the agency informed Boasberg.

On June 30, WPATH asked Boasberg to block the FTC’s Texas-based effort, arguing that “the Texas litigation raises the same issues as this case, involves the same parties, and implicates the same First Amendment rights that WPATH’s complaint seeks to protect,“ as well as “to ‘prevent the frustration’ of the preliminary injunction the Court has already issued“ in the D.C. case.

Although the parties initially discussed a plan for proceeding on that temporary restraining order motion and submitted a jointly signed proposed briefing schedule to Boasberg, the FTC then went to O’Connor, asking him to issue his own TRO blocking WPATH from continuing its challenge to the Texas case before Boasberg. WPATH then filed a second TRO request with Boasberg, noting the FTC’s Texas action.

Ultimately, and as covered previously at Law Dork, Boasberg and O’Connor acted in “consultation” with one another, concluding on July 3 that Boasberg would first consider the June 30 TRO request before O’Connor took further action.

At Thursday’s hearing, Boasberg made it clear that he and, presumably, O’Connor did not appreciate being put in this position, with Boasberg noting that the parties’ actions “left it to [him] and O’Connor” to figure out how to handle the piling of TRO requests.

Ultimately, Boasberg went first, with the FTC filing its opposition to WPATH’s June 30 TRO request on July 6, arguing that “[t]here is no colorable argument that the Enforcement Action [in Texas] is the ‘same’ as the CID Action“ challenged before Boasberg.

At Thursday’s hearing, however, Hayes-Deats countered that if WPATH were to succeed in its case before Boasberg, there would be “nothing left to decide in Fort Worth” because one of their requests in the case is for a ruling that the FTC does not have investigative authority over WPATH.

As such, he explained, the cases are sufficiently duplicative that Boasberg should block the Texas action.

In addition to the irreparable harm question, one of the areas where Cohen got the most traction from Boasberg was with concerns about the implications of a decision here for other agency investigations — even outside of the FTC.

As Boasberg asked Hayes-Deats, if this is allowed here and works for WPATH, would anyone being investigated “go to a favorable forum“ to try and cement in jurisdiction there.

Although Hayes-Deats attempted to note the FTC’s headquarters being in D.C. as a logical reason WPATH brought their lawsuit in D.C., Boasberg countered that it appeared that the decision was “somewhere on the spectrum between gamesmanship, tactics, and strategy.”

When, in rebuttal, Hayes-Deats expressed his concern about the FTC’s “blatant forum shopping” in going to Texas, Boasberg made clear, “I’m not missing that point,” either.

Law Dork will have more on Friday when there is a decision.

[Update, 12:20 p.m. July 14: Law Dork confirmed that funds totaling more than $5.62 million were transferred to E. Jean Carroll on Tuesday.

“Three years ago, a unanimous nine-person jury found President Trump liable for sexually assaulting and defaming E. Jean Carroll. Today, we are pleased to report that she has received the damages payment the jury awarded her as a result of that verdict,” Roberta Kaplan, Carroll’s lawyer, said in a statement.]

After a flurry of court filings on Wednesday, it appeared that E. Jean Carroll will finally get paid the $5 million, plus interest, that a jury decided Donald Trump owed her after they found in May 2023 that he sexually abused her decades earlier and defamed her in the time since.

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Earlier Wednesday, U.S. District Judge Lewis Kaplan ordered that Carroll get her $5 million plus interest after the U.S. Supreme Court denied Trump’s appeal in the case last week.

The order from Kaplan, a Clinton appointee who oversaw the case, directed the clerk of court to disburse the money, already put aside and in the court’s control, to Carroll’s lawyers.

Trump’s lawyers appealed and sought an immediate administrative stay from the U.S. Court of Appeals for the Second Circuit.

Given Trump’s appeal, Kaplan then issued an opinion to back up Wednesday’s order. The conclusion: Trump “has been stalling this case for years. ... It is time for him to ‘do equity’ and pay the judgment.”

Carroll’s lawyers, led by Roberta Kaplan (no relation), then opposed Trump’s Second Circuit request, and Judge Eunice Lee, a Biden appointee to the appeals court, denied the administrative stay request in a brief order issued at 9:53 p.m.

As of 11 p.m., there is no notification of any Supreme Court filing.

Law Dork will have more on this developing story as appropriate.

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[Update, 2:25 p.m. July 9: The application discussed below, from a student seeking a stay of removal to Indonesia, was denied by Justice Elena Kagan, acting as circuit justice, on Thursday with no reasons given.]

There are regularly U.S. Supreme Court shadow docket filings from people seeking stays of removal — deportation — and they are almost always denied without explanation.

I do think, in this moment, that it is worth looking at one of these. On Tuesday, the Supreme Court Public Information Office provided journalists with a copy of one such request, as is the normal practice. It is not available on the Supreme Court’s public docket, so I have uploaded it.

Tuesday’s case involves a person who is a citizen of Indonesia and has been in the U.S. since 2011 on a student visa. Okky Ficrada Jaya was diagnosed with paranoid schizophrenia at some point in 2021, had problems while adjusting to the diagnosis, and was placed into removal proceedings because of a belief that he had stopped attending classes. He was challenging the removal effort, however, and was released on bond in 2022.

Then, the second Trump administration began. At that point, this is what Jaya’s lawyer explained happened:

The request later stated, “Petitioner Jaya is not a criminal; he should not be detained by ICE any longer; and he should not be removed from the United States,“ adding:

[H]e should be allowed to return to California to continue his university studies and medical treatment for schizophrenia. California State Polytechnic University, Ponoma (CalPoly Ponoma) has recently documented that Petitioner Jaya was admitted in Fall 2023 as a student and is eligible to take classes upon his release from ICE detention.

Although the immigration judge — not an Article III judge, but rather a Justice Department employee — found that Jaya was a danger to his community and flight risk based largely on a 2021 incident, Jaya’s lawyers explained that that incident had been considered when Jaya was granted release on bond in 2022:

That was then. Further, Jaya’s lawyer noted that:

Prior to his detention [in 2025], his schizophrenia was being adequately treated by a team of medical professionals in Southern California; when he was receiving proper medications—viz., prior to his detention by ICE—Petitioner Jaya posed no danger to anyone.

A student diagnosed with schizophrenia while in school who was receiving treatment and seeking to remain in the U.S. was detained when he appeared at an ICE check-in and has remained detained since for more than a year.

It’s highly unlikely that the Supreme Court will grant relief here, given the extremely wide latitude the government has when making these determinations.

And yet.

This as an example of the sort of cases reaching the Supreme Court that almost never get any news coverage, yet have extreme implications for those involved. It also is yet another example of the unnecessary cruelty the Trump administration is putting people through in service of its anti-immigrant extremism.

Appeals court upholds academic freedom

Closing my tabs

For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.

This Tuesday, these are the tabs I am closing:

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On this Fourth of July, I am thinking about how important it is for the United States that we have leaders willing to speak forthrightly about our past and ambitiously about our future in order to make it through the treacherous present.

On June 30, Justice Ketanji Brown Jackson did both, illustrating perfectly what is needed from our leaders.

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In the birthright citizenship case, as I covered earlier this week, Jackson did the work that was needed to put the facts of history in the record in spite of Justice Clarence Thomas’s effort to the contrary.

Jackson’s telling of that history in Trump v. Barbara was not the hateful parody of anti-Americanism that the Trump administration insists that proponents of diversity represent. Instead, it was a beautiful celebration of the Reconstruction Amendments as “an anticaste, antisubordination reset for the Nation.”

Her discussion of the Colored Conventions alone — with reference to available documentation — was a critical example of how important Jackson’s work on the court is for the country. After discussing some efforts to encourage freed Black people to “self-deport” — a hateful phrase that felt very intentionally used — she moved forward to the effort to “guarantee[] liberty and justice for all,“ writing:

In the decades leading up to the ratification of the Fourteenth Amendment, Black Americans organized and gathered at more than 600 local and national conventions across the country.¹⁸ There, delegates erected the political and intellectual scaffolding for the Fourteenth Amendment and, later, for the Black Civil Rights Movement more generally.¹⁹

In doing so — in this brief paragraph alone — Jackson opened a path for all to greater exploration of this moment through the work of Manisha Sinha, James Fox, and Erica Bell. As I noted earlier this week, she did so throughout her opinion in an important way for the court and helpful way for all of us.

Jackson’s equally important ability to provide the needed forward-looking voice was also on display on June 30. In her other opinion that day — in West Virginia v. B.P.J. — Jackson showed an awareness of a greater way of living beyond the anti-transgender spirit that appears to be animating the majority of justice on the Supreme Court currently.

While the litigation decision in the case over West Virginia’s trans sports ban not to challenge the definition of “sex” in Title IX as meaning anything beyond “biological sex” meant that the three Democratic appointees agreed with the Republican appointees that Becky Pepper-Jackson’s Title IX challenge to West Virginia’s law failed, Jackson was not done. She authored a three-page solo opinion to add an additional, important discussion into the mix.

After describing that conclusion regarding the Title IX challenge in the B.P.J. case, she wrote, “But there is reason to doubt the soundness of the concession that Title IX’s reference to ‘sex’ means only sex assigned at birth.“

It was an essential comment, and the three paragraphs that followed spoke ambitiously about what the United States could be if its laws were, as she wrote, “properly construed.”

Jackson explained that civil rights laws like Title IX are to be construed “broadly” and that the court has noted that, within the context of sex discrimination laws, they are aimed “at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.“

From there, she explained what that means and why it matters in a way that concluded with a path forward.

Jackson made clear that even in the midst of this anti-trans moment we can and must look ambitiously toward a better world.

“Title IX makes room for individuals to live in the gender they choose; it cares not just about sex assigned at birth but also about individuals’ ability to match (or not) their gender presentation to their gender identity,” she explained directly.

That was not the view that succeeded this week, but, as Jackson made clear in Barbara, sometimes the most important work takes time.

As one of the two youngest justices on the bench, Jackson is also 25 years younger than the president. She has made it clear this term repeatedly that she is regularly not writing for today but, rather, is writing for the future United States in which she hopes to live.

Two-hundred-and-fifty years into this experiment, Justice Ketanji Brown Jackson might very well be the exemplar of what this nation can be today because of the generations of people who learned from all that it wasn’t and were willing to change. She also appears to be seeking to carry that lesson forward, learning from the past and charting a more inclusive future.

This Fourth of July, I can celebrate that.

The Trump administration apparently found a way to go so far afield of appropriate litigation tactics that even U.S. District Judge Reed O’Connor has agreed to put a case before him on hold.

In a late-night filing on Thursday, Federal Trade Commission lawyers, joined by lawyers from Texas and Iowa, asked O’Connor to issue an extraordinary and manipulative order in the FTC’s lawsuit targeting the World Professional Association for Transgender Health, Inc. (WPATH) for what they claim are its “deceptive practices” regarding the provision of gender-affirming care for minors.

The Thursday night request sought an order from O’Connor — a far-right George W. Bush appointee in the Northern District of Texas — barring WPATH from “seeking relief in this matter from courts other than this Court, the United States Court of Appeals for the Fifth Circuit, and the United States Supreme Court.“

It was a blatant effort to make an end-run around another court and another case involving WPATH and the FTC, before U.S. District Judge James Boasberg in Washington, D.C.

By Friday afternoon, however, O’Connor announced that his consideration of the FTC’s request was on hold following “consultation” that O’Connor held with Boasberg.

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What is going on?

O’Connor issued a similar order earlier this year to the one requested by the FTC on Thursday, in conjunction with the challenge to DOJ’s administrative subpoena issued against Rhode Island Hospital. There, the order was absurd, but it did at least follow a factual scenario — as bad as it was — where the initial litigation in the case about the Rhode Island hospital was in Texas.

This time, however, WPATH had filed its own lawsuit against the FTC in February. The case was filed in D.C. — where the FTC is headquartered — and the case was assigned Boasberg, an Obama appointee.

The FTC’s lawsuit, on the other hand, wasn’t filed in the Northern District of Texas until June 17 — more than a month after Boasberg had issued a preliminary injunction and associated opinion in the WPATH-brought case.

Because of that, on June 30, WPATH filed a motion (and memorandum of law) before Boasberg seeking to block the FTC “from litigating the claims asserted in FTC v. WPATH, 4:26-cv-748-O (N.D. Tex.), except as mandatory counterclaims brought before this Court.“ As part of that filing, in discussing other grand jury subpoenas issued relating to gender-affirming care, one of WPATH’s lawyers acknowledged that one of its members had received a grand jury subpoena out of the Northern District of Texas on June 16 — the day before the filing of the FTC’s lawsuit there but still well after the initial injunction in the case before Boasberg.

Following that June 30 filing, the parties conferred and submitted a proposed briefing schedule, which Boasberg approved on Thursday.

This is where the FTC lawyers went awry (beyond their whole anti-trans investigation being awry), asking O’Connor to, in effect, retroactively bar consideration of the request pending before Boasberg with his own jurisdiction-stripping temporary restraining order.

Here are the FTC lawyers who signed this motion and memorandum of law:

O’Connor quickly ordered a response by July 6 and set the matter for a hearing on July 7.

WPATH’s lawyers, led by Abbe Lowell, did not wait. Instead, they immediately went to Boasberg, informing him of what happened and seeking their own emergency TRO.

The WPATH lawyers then — still on Thursday — informed O’Connor of the filing in D.C.

All of that brought us to Friday’s developments. In a pair of orders from O’Connor and Boasberg, “in consultation,” it was made clear that the FTC’s legal shenanigans failed — at least for now.

O’Connor cancelled the July 7 hearing on the FTC’s TRO request and will not be considering it further until after the parties “file a status report … following a ruling by Chief Judge Boasberg.“

Boasberg then denied WPATH’s emergency TRO request as moot given O’Connor’s agreement.

The hearing on WPATH’s original June 30 TRO request — seeking an order barring the FTC case will remain as scheduled for Thursday, July 9.

Now, it’s important not to read too much into this. It’s entirely possible that the “consultation” here included Boasberg telling O’Connor he had a TRO ready to sign to deal with the FTC’s shenanigans and O’Connor’s agreement, essentially, just prevented that. But, O’Connor did go a step further by agreeing to let Boasberg rule on WPATH’s request pending in D.C. — that could have the effect of preventing the FTC’s case to proceed before O’Connor at all — before O’Connor moves forward with the FTC’s case.

On Thursday, U.S. District Judge Casey Pitts barred the Justice Department from seeking invasive information about transgender patients who received gender-affirming medical care at the Lucile Packard Children’s Hospital at Stanford.

The preliminary injunction came in a lawsuit resulting from DOJ’s escalated effort to obtain such information by way of grand jury subpoenas issued in the Northern District of Texas after administrative subpoenas issued last summer have consistently been quashed, at least as to the patient-identifiable information, when challenged.

Thursday’s order from Pitts, a Biden appointee in the Northern District of California (where Stanford is located), came after patients sued and is the second such order blocking DOJ’s grand jury effort. The first came out of a grand jury subpoena issued to NYU Langone Health.

Pitts took particular umbrage at DOJ’s effort to go all over the country — to far-flung places — to act on its efforts investigating gender-affirming medical care for trans minors that ultimately are in service of the Trump administration’s efforts to “end” such care altogether.

“DOJ’s protestations about comity and separation-of-powers principles are unavailing,” Pitts wrote, because “[a]ny risk of conflicting court orders or interference with criminal investigations has been manufactured by DOJ itself.”

He continued:

The unavoidable conclusion is that DOJ issued its grand jury subpoena to avoid another loss and force Packard and its patients to pursue any challenge to DOJ’s demands in a forum that DOJ deems friendlier. This is hardly DOJ’s first such ploy. … DOJ cannot reasonably invoke comity and the separation of powers as cover for its forum shopping.

Pitts granted a classwide injunction as to Packard patients — provisionally certifying that class — but did not grant the patients’ request for a statewide class, finding that “the preliminary record before the Court does not support plaintiffs’ assertion that every California hospital providing gender-affirming care to minors is subject to DOJ’s demands for identifying patient records.“

In Pitts’s opinion, he laid out the factual background discussed above, then put the situation in the context of the U.S. Supreme Court’s 2025 decision, U.S. v. Skrmetti, addressing such care:

In Skrmetti, the Supreme Court held that the responsibility for resolving those debates falls on state legislatures. That is because the Constitution “afford[s] States ‘wide discretion to pass legislation in areas where there is medical … uncertainty,” which the Supreme Court held includes the use of “puberty blockers and hormones … for minors.”

The Trump administration, he continued, is handling matters differently.

“Despite the Supreme Court ‘underscor[ing] the need for legislative flexibility in this area,’ id., its counterparts in the Executive Branch have displayed significant antipathy for the choice of some state legislatures not to ban gender-affirming care for minors,” he wrote.

He went on to describe DOJ’s escalation, detail the effort’s new-found home in the Northern District of Texas, and reference U.S. District Judge Reed O’Connor’s role — with citation to a Federalist Society speech O’Connor gave in September 2024, during the Biden administration, in which he derisively referred to DOJ as a “frequent forum shopper.“

As to the claims, Pitts then granted provisional class certification as to the Packard patients:

Before addressing the merits of the Packard class’s claims, Pitts initially addressed DOJ’s argument that, “regardless of the merits of plaintiffs’ constitutional claims, their assertion of those claims here is improper.”

Pitts quickly rejected DOJ’s claims that “sovereign immunity bars” patients’ claims and that the patients have “no private right of action” to bring their claims, finding an equitable claim likely is available to the patients, before examining the DOJ’s argument that Federal Rule of Criminal Procedure 17 — addressing subpoenas — bars any equitable action the patients might otherwise be able to bring.

“This issue is closer than the first two,“ Pitts acknowledged. “[A] traditional equitable remedy remains available unless ‘Congress has demonstrated an “intent to foreclose” that form of relief.’ There is good reason to doubt that Rule 17 precludes the equitable relief plaintiffs seek.“

Noting that Rule 17 would likely bar an effort to quash the grand jury subpoena in his court, Pitts continued:

Ultimately, Pitts concluded, “A conclusive answer [as to whether this effort is allowed] must await fuller briefing on a non-expedited schedule. At this early stage, however, the Court concludes that Rule 17 likely does not foreclose such remedies.“

Finally, Pitts wrote, “DOJ argues that even if the Court has discretion to review plaintiffs’ claims for equitable relief, it should decline to do so based on comity and separation-of-powers concerns. Neither rationale is convincing.“

Pitts was not having it, explaining that “plaintiffs’ requested injunction does not terminate DOJ’s criminal investigation in the Northern District of Texas. It narrowly prevents DOJ from obtaining private health information that, as the Court explains below, has no apparent relevance to any crime indictable in Texas.“

To the larger point, he wrote, “Plaintiffs received care in this district from a hospital in this district, and unless Rule 17 forbids it, they may seek protection for the resulting medical records in this district.“

On the merits of the patients’ claim, Pitts found that “Plaintiffs are likely to succeed on the merits of their informational-privacy claim” because “the provisional class’s privacy interests likely outweigh DOJ’s interest in obtaining class members’ sensitive health information.“

As to the heart of the matter — the claimed need for this information — Pitts calls DOJ’s bluff.

In any event, he continued, the information sought “has no discernible relevance to any federal healthcare offense or other fraudulent billing or insurance-claim practices,“ crediting other courts for having “ably explained” this previously.

“The record before the Court thus establishes that there is little to no possibility that the patient information DOJ demands will be of any relevance to the grand jury investigation in Texas,“ he concluded.

Finding the patients showed irreparable hard and that the balance of equities “tip sharply” in the patients’ favor, Pitts granted the preliminary injunction as to the provisional Packard class.

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A look into the dismissed charges in the “judge shopping” inquiry

[Note: This report is the latest development in the Alabama “judge-shopping” investigation, which Law Dork began reporting on in May 2024, including two in-depth reports that provide substantial background on the happenings since 2022.]

A federal court confirmed in June that the indictment from last year against a LGBTQ legal organization lawyer charged with making a false statement to a panel of judges investigating “judge shopping” has been dismissed.

Not much more is known the end of the case against Carl Charles, a lawyer with Lambda Legal Defense and Education Fund.

A pair of orders from U.S. District Judge Cecelia Altonaga in June referenced the earlier dismissal of the case against Charles, including a June 23 order that “modified” the dismissal by allowing the sealed dismissal to be disclosed to certain parties. (Altonaga is a federal judge from Florida who was assigned to Charles’s now-dismissed criminal case after all of the federal judges in the Middle District of Alabama recused themselves from hearing it.)

The dismissal has been widely reported, but, as part of Law Dork’s coverage, here is a look into what happened and what we still don’t know about this broader story.

The order dismissing the indictment (identified in Altonaga’s orders as Docket No. 30) and four other docket numbers do not even appear on the docket, suggesting significant action happened out of the public’s eye since an October 2025 pretrial conference in the case.

Given the docket, the dismissal happened sometime between February 11 and June 1.

The June 1 entry, Docket No. 31, is a request from Charles’s lawyers to file a sealed request to modify the “Order Dismissing Indictment,” which it refers to as “Sealed Doc. 30.“

Charles had been working on litigation challenging Alabama’s ban on gender-affirming care for trans minors and was later caught up an an extremely unusual mutli-year investigation by all three districts of Alabama’s federal courts into accusations of “judge shopping” initially raised by U.S. District Judge Liles Burke, a Trump appointee who was later given the authority by the investigating judges to assess whether sanctions were merited against the lawyers involved.

Burke ultimately issued sanctions against three lawyers involved, including referring Charles, who is transgender, to the U.S. Attorneys Office for the Middle District of Alabama. The trio’s appeal of Burke’s sanctions order is ongoing. Arguments in that appeal were supposed to be heard at the U.S. Court of Appeals for the Eleventh Circuit in August, but the case was removed from the calendar in May with no reason given. Although that order stated that the case “will be reassigned at a later date,“ arguments have not been rescheduled as of Thursday.

It’s an altogether disconcerting reality, not just for those involved but for anyone who cares about this alarming series of events that have transpired in this inquiry over the past four-plus years.

SCOTUS rejects reporter’s request

Also on Thursday, the U.S. Supreme Court denied a stay to reporter Catherine Herridge, who now faces a daily $800 civil contempt fine for refusing to name her sources in an ongoing Privacy Act lawsuit in which she was not sued but was called as a third-party witness.

Justice Brett Kavanaugh noted that he would have granted Herridge a stay.

This means Kavanaugh is the only justice who publicly stated he would have protected the reporter while she argues in litigation — a request for the Supreme Court to hear her appeal — that the First Amendment should protect a reporter against revealing sources.

The U.S. Supreme Court’s birthright citizenship ruling — authored by Chief Justice John Roberts — was an undeniably good result.

It is a solid opinion affirming the unanimous view of every other court at every level of the federal legal system to consider the question: President Donald Trump’s January 20, 2025 executive order seeking to end birthright citizenship violates the Fourteenth Amendment.

As Roberts concluded in Trump v. Barbara:

It was also — literally — the least the court could do to keep the United States of America on a constitutional path. Roberts’s 5-4 decision on the constitutional question — with support from Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson — was an alarming reminder of how the far-right’s political aims can quickly become the far-right justices’ aims.

And, let there be no doubt, the disgusting charade that anti-immigrant forces used to get the four votes they got on the constitutional question — in part with the help of the so-called scholars who, at best, have sought to use others’ hate to put them in good standing with the Trump administration or otherwise advance their career — was politics.

Even the year and a half it took to get a ruling on the unconstitutionality of this executive order was politics — with the “universal injunction” ruling in the middle of that.

But, on Tuesday, when a ruling did come, five justices stood up for the Fourteenth Amendment and birthright citizenship.

Those four votes against, though, are worthy of investigation — from Justice Brett Kavanuagh, who concurred with the majority’s judgment on statutory grounds, and dissenting Justices Clarence Thomas, Sam Alito, and Neil Gorsuch — to understand the different ways in which that is playing out on the Supreme Court.

Kavanaugh’s basis for deciding the Fourteenth Amendment question is virtually unbelievable given, for example, his majority opinion in West Virginia v. B.P.J. that same day. In Barbara, Kavanaugh wrote:

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

He went on to conclude that the children of undocumented people and temporary visitors are “relevantly similar” to traditional exceptions to birthright citizenships — such as the children of diplomats — and, hence, would appropriately be new exceptions to birthright citizenship.

Kavanaugh presenting a “living Constitution” argument for ending birthright citizenship is either an effort that highlights limitations of his reasoning skills or a troll. It’s hard to see it any other way.

To read Alito’s dissent, meanwhile, was to — as is increasingly the case — read a Tucker Carlson monologue with a few case cites thrown in.

“As interpreted by the Court today,” Alito wrote in the second sentence of his 39-page dissent, “the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of ‘birth tourists,’ women who come here solely for the purpose of giving birth to a child and then promptly return home.“

After eight pages of a Laura Ingraham immigration segment later in his dissent, Alito made it clear he was ready to retroactively declare people no longer citizens — unless Congress chose otherwise:

But, Alito’s screed was not Roberts’s primary focus. The four mentions it got in Roberts’s opinion for the court dwarfed the 16 times Roberts reference the “principal dissent” — authored by Thomas. Thomas’s dissent also prompted a concurrence from Jackson to address Thomas’s “narrow vision of the Fourteenth Amendment.“

Thomas’s 91-page novella dissent, in which he was joined by Gorsuch, sought to do so by presenting a narrow history of the amendment’s passage. Thomas also used those pages to express his derision for those who have used the amendment more expansively in the years since its 1868 adoption.

Addressing Tuesday’s decision, he wrote:

The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens. In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support. Because many potential applications of the President’s Order are consistent with the original public meaning of the Citizenship Clause, I respectfully dissent.

After 50 pages of history, Thomas “proceed[ed] to the merits” and wrote more specifically that he believed Trump’s executive order was “consistent with the original meaning of the Citizenship Clause, at least insofar as it applies to children born to parents, here lawfully or unlawfully, who are not domiciled in the United States.“ Because of that, he explained, the order could not be facially unconstitutional.

Dropped in a footnote was an even more extreme position:

Thomas then highlighted how “[t]he Government and several scholars have suggested some reasons why, they believe, illegal aliens can never be domiciled here,“ but then also noted that “many others understandably have suggested that long-term resident illegal aliens satisfy the elements of domicile because they reside here with the intent to permanently remain.“

Thomas’s rare decision to hold back there might have been a requirement for him to keep Gorsuch on the dissent, because, and as Thomas noted, Gorsuch also wrote separately to address this issue. In a brief, three-page dissent that made three concise points, two of which were also made by Thomas — in other words, the only new position was the discussion in this, the third point — Gorsuch wrote:

That is, undoubtedly, important, but that was just a Post-It note from Gorsuch voicing potential — potential — disagreement in comparison to Thomas’s tome, on which they were in complete agreement.

In concluding, Thomas returned to his narrow vision for the Fourteenth Amendment.

“The Fourteenth Amendment was enacted in the wake of the Civil War, ‘with the one pervading purpose’ of securing equal citizenship for the freed slaves,” he wrote. “This Court has time and again denied Americans that promise,“ he continued, citing decisions relating to gun rights and segregation before citing Brown v. Board of Education as a “narrow[]” correction of that “profound error” and quickly turning to criticism of busing, affirmative-action, and redistricting decisions. Then, the ending of the final opinion he authored in his 35th term on the court:

Thomas’s dissent not only prompted repeated responses from Roberts in the court’s opinion but also, as noted above, from Jackson, who explicitly wrote “to respond to some of the themes in the principal dissent.”

Thomas’s dissent, she wrote, presented a “narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification.“ More importantly, though, she added, “Even worse, JUSTICE THOMAS’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.“

From her first footnote, Jackson made clear her position. Referencing Thomas’s comment that the court “has time and again denied Americans that promise,” Jackson wrote:

Of “those who championed the Fourteenth Amendment,” she wrote, “Their work product used ‘language that transcended race and region,’ and thereby ‘changed and broadened the meaning of freedom for all Americans.’² Instead of the limited salve the principal dissent makes it out to be, the Citizenship Clause reflects this universalist approach.“

The second footnote direct readers to Eric Foner’s 1988 book, Reconstruction: America’s Unfinished Revolution 1863–1877.

Jackson goes on to discuss colonization, Black Laws, Black Codes, violence and the formation of the Ku Klux Klan, and the Colored Conventions — with similar references throughout.

All to advance her point: Those advocates settled on “universalist appeals.” Quoting Thomas again (this time, with Thomas quoting Frederick Douglass), she wrote:

Yes, Black Americans had suffered a singular wrong. And yes, they had “‘fought and bled’” for the Union, paying a steep price for their freedom. But the delegates did not rest on these laurels. Rather, they drew upon the moral and political force of the universal principles that were already core to the Nation’s identity.

Going on to discuss the Civil Rights Act of 1866 and the Fourteenth Amendment’s Citizenship Clause, Jackson concluded, “When ratified, the Citizenship Clause … vindicated the universalist vision of the delegates at the Colored Conventions and their allies in Congress.“

It was, she wrote, “a new font of legitimacy and vitality” for the United States.

It is an important — and comparatively brief — 20-page concurrence, joined in that history discussion by Sotomayor.

In addition to its importance in Trump v. Barbara, I highlight it here because it also serves to provide an excellent reading list for all who might wish to use this Fourth of July holiday to better understand the United States and how “[t]he [Fourteenth] Amendment caused a paradigm shift in the trajectory of our Nation.“

On a 5-4 vote Tuesday, the Supreme Court kept the country on the trajectory. Barely.

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Law Dork all over the media

It’s the end of term, so, I’ve been all over.

Here’s me talking with Sam Seder on Monday about last week’s immigration decisions over temporary protected status and “metering,” as well as some other Supreme Court happenings:

Here’s my discussion with Imara Jones from Tuesday about Tuesday’s West Virginia v. B.P.J. decision upholding trans sports bans:

And, finally, on Wednesday morning, I was at Georgetown Law, and I’ll share video of that excellent Supreme Court term in review discussion when available.

The U.S. Supreme Court on Tuesday held that states can bar transgender girls and women from playing on girls and women’s sports teams.

In an opinion by Justice Brett Kavanaugh that was extensively focused on the “sports context,” the court held that neither the Equal Protection Clause of the Fourteenth Amendment nor Title IX of the Education Amendments of 1972 (in light of the sports-specific language of 1974’s Javits Amendment1) bar the Idaho or West Virginia laws.

On the equal protection front, Justice Sonia Sotomayor dissented in West Virginia v. B.P.J., joined by Justices Elena Kagan and Ketanji Brown Jackson. (The trio also would have held the Idaho case, Little v. Hecox, to be moot, unlike the majority, but that is ultimately a factor that doesn’t matter for the analysis of the laws.)

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Although the court’s ruling is itself harmful and could have implications for other cases, it was not as wide-ranging of a ruling as anti-trans forces would have wanted. It also was written at points with a softer tone — urging “respect” for all and denouncing vilification — as was suggested at oral argument.

In one of the eight times the Kavanaugh invoked the “sports context,” for example, he explicitly disclaimed a broader interpretation of Tuesday’s opinion.

“Sports are different from, say, a typical employment or educational opportunity where equal protection often may require that the government generally treat an individual without regard to the individual’s sex,” he wrote. “In the sports context, by contrast, everyone agrees that the States may maintain separate women’s and men’s teams—in other words, that the States may make distinctions based on sex—because of the inherent physical differences between women and men.“

The case also did not address or resolve questions about state laws allowing trans girls and women to compete on women’s teams, as Kavanaugh noted in a footnote:

That is not to disclaim the significance of the ruling, however, coming just one year after the Supreme Court also upheld Tennessee’s ban on gender-affirming medical care for trans minors in U.S. v. Skrmetti.

In Kavanaugh’s opinion, he never once calls the people involved in these cases “transgender girls” or “transgender women,” despite that being who he was failing to protect on Tuesday. He generally — at least 13 times — instead referred to “biological males who identify as” girls or women. Even when referring to transgender people, it was by using a non-gendered term like “transgender athletes” or “transgender students.” This erasure is stigmatic, despite his effort at other points to put forward a softer tone.

On the legal front, there were three questionable moves that could have consequences for later cases.

The opinion also went further than it needed to go in the Title IX section. Kavanaugh wrote, “The term ‘sex’ in the 1972 Title IX statute, the 1974 Javits Amendment, and the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex,” despite that the student challenging the West Virginia law on the basis of Title IX was “not disputing in this case that West Virginia can have its definition of sex” as “biological sex.”

As Sotomayor noted, while she and the other Democratic appointees agreed on the Title IX front in this case in the sports context because of the Javits Amendment, it also was because Becky Pepper-Jackson, the West Virginia plaintiff referred to as B.P.J. in court filings, “does not dispute that, for the purposes of this case, ‘sex’ in Title IX means ‘biological sex,’ or sex identified at birth.“ Because of that, Sotomayor wrote that the court didn’t need to decide that here:

Kavanaugh also made a jumble of certain aspects of sex-discrimination law, as Sotomayor detailed at length in her opinion’s dissent, where she wrote that the “majority badly errs in two ways” on that front alone and added that “this Court’s equal protection precedents require a very different approach to B.P.J.’s claim than the one the majority follows today.“

To give one key example, in an extended discussion of the people affected by the laws, a “subclass” in the challengers’ sex-discrimination claim, Kavanaugh and Sotomayor presented contrasting visions for equal protection — only one of which was based in past precedent (the one pressed by Sotomayor).

According to B. P. J., transgender girls and women who both receive gender-affirming treatment and have never experienced endogenous male puberty neither possess any inherent athletic advantage nor pose any safety risks because of their sex identified at birth. As B. P. J. tells it, this distinct subclass is thus similarly situated to cisgender girls and women and yet is still being excluded. It is this overbreadth, she argues, that leads to the equal protection violation.

For the dissenters, Sotomayor argued that the court should have — as the U.S. Court of Appeals for the Fourth Circuit sought to do — sent the case back to the district court for further factual development related to that claim.

That’s not what Kavanaugh or the court did. Instead, while calling the subclass discussion “a useful construct,” he employed it here to dismiss the claim:

[I]f a State’s interests do not apply to an especially large subclass within the class specified by the State’s law, then that fact may demonstrate that the relationship between the State’s classification and the State’s interests is not close enough. But as long as the relationship is sufficient as a general matter, the State is not constitutionally required to grant individualized exemptions to specific athletes or subclasses.

That is not, Sotomayor countered, what the law has stated with respect to sex discrimination claims.

“To the majority, the fit here [between the state’s claimed interests and the ban] is simply good enough,” she wrote. “In so concluding, the Court elevates the reasoning of earlier dissents and lowers the State’s burden for justifying the use of sex classifications in potentially all cases.”

Finally, Kavanaugh noted that the court “need not definitively resolve whether rational basis review or intermediate scrutiny applies to transgender classifications” because, he had already explained that the court viewed the law as surviving intermediate scrutiny under the sex-discrimination claim. Even there, though, Kavanaugh flubbed. He wrote:

This isn’t even the weak argument Chief Justice John Roberts made in Skrmetti. It’s a next-level argument that gives itself away in the “[b]y contrast” sentence, where Kavanaugh referred to his hypothetical law as containing a “distinct transgender classification.” There is no reason why a law can’t classify based on both sex and transgender status, and the laws before the court showed that.

There is much more to be said and written about West Virginia v. B.P.J. — including Justice Clarence Thomas’s hateful concurrence and Justice Ketanji Brown Jackson’s illuminating opinion looking toward a better time — but the first-line news Tuesday is this: The Supreme Court ruled against transgender people again, and Justice Kavanaugh did so in a way that will make certain arguments more difficult and was sloppy at points, but, despite that, there is hope for future cases in different contexts.

On Monday, Chief Justice John Roberts issued two major decisions addressing presidential firing powers of so-called independent agencies — the second protecting the Federal Reserve’s independence even as the first, addressing the Federal Trade Commission, purported to lay out a broad principle ending the independence of such agencies by holding that removal protections are unconstitutional.

When the two are considered together, Roberts — by writing both decisions — showed the emptiness of the project. Even from 30,000 feet, the two opinions show how simple it was for Roberts — with support from Justice Brett Kavanaugh — to save the Fed’s independence from the rule he had just laid out in allowing President Donald Trump to fire Rebecca Slaughter as an FTC commissioner for no reason.

“Last August, for the first time in the Federal Reserve’s 111-year history, the President attempted to fire one of its Governors,“ Roberts began the opinion for the court denying the Trump administration’s request to stay a lower court’s injunction keeping Lisa Cook in office as a governor of the Federal Reserve during litigation. This was not subtle. With 22 words, Roberts told everyone that the court couldn’t believe what Trump had done. Everything that followed fit with that opening.

Compare that to the opening of his opinion rejecting the for-cause removal protection for FTC commissioners.

“Nearly 250 years ago, the Framers decided to vest ‘[t]he executive Power’ in one person—‘a President of the United States of America,’” Roberts wrote. In the 480-word introductory section, Roberts does not once mention the firing of Slaughter. He also did not mention Humphrey’s Executor v. United States, the 1935 Supreme Court decision upholding the FTC’s for-cause removal protection that Roberts and the 2026 Supreme Court was about to overrule.

Ultimately, Roberts wrote:

The FTC unquestionably exercises executive power, and must therefore be controlled by the Chief Executive, in whom such power is vested. It follows, then, that Slaughter served as the President’s subordinate at the FTC—and that the President was entitled to cut her tenure short.

The decision significantly expands Trump’s power — and could, as Law Dork has covered previously, change the country.

Justice Sonia Sotomayor authored the liberals’ dissent in Trump v. Slaughter, and, as she did last week, she read from her dissent from the bench on Monday.

“For most of this Nation’s history, Congress and the President together have decided that some Government functions should operate at a distance from partisan politics,“ she opened the dissent, noting that the Supreme Court had “affirmed” that understanding in Humphrey’s Executor. Of the majority’s action on Monday, she then wrote, “Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong.”

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There are many problems with Monday’s Slaughter ruling.

As Sotomayor explained in describing the “chaos” that the majority’s ruling “promises to unleash,” the ruling set up — but did not address — the implications or reach of its ruling.

“With remarkable steadfastness, the majority simply refuses to explain where its theory leads or where it ends,” she wrote.

For his part, Justice Neil Gorsuch highlighted, in an opinion concurring with Roberts’s decision, a separate — but related — problem that will follow Monday’s decision in Slaughter given the time that passed between Humphrey’s Executor and Monday:

Apparently relying on the assumption that it can afford their leaders some protection against presidential removal, Congress has not just assigned executive law-enforcement power to independent agencies. It has delegated extensive lawmaking and adjudicative functions to them as well. Today’s decision may not have occasion to address those delegations directly, but it carries weighty consequences for them. Open-ended delegations of legislative power have not gone away; now they will just be exercised by agency officials who answer to the President. The power to write new regulatory crimes still exists, but now the pen ultimately rests in the President’s hand. The ability to judge disputes in-house remains, but now the house is white.

In short, all of the independent agencies created by Congress in reliance on Humphrey’s Executor now exist in a way that Congress had not wanted: in the hands of the president.

As to Sotomayor, she noted several of the unanswered questions about the reach of Monday’s Slaughter decision.

First, she noted that the majority “suggests that its rule might not apply to adjudicatory agencies, including non-Article III courts like the Tax Court.” To that, she wrote, “That is welcome news, but why is it so?”

Second, what about “inferior officers and civil-service employees”? Noting that the majority “studiously ignores” that huge question, Sotomayor cited the 1886 ruling, United States v. Perkins, allowing protections against at-will removal for inferior officers. Then, though, she wrote:

Until today, however, Perkins and Humphrey’s were the “two exceptions to the President’s unrestricted removal power” this Court had recognized. Seila Law, 591 U. S., at 204. With one of those exceptions now wiped away, the majority’s silence on the other one provides cold comfort. Nor is there much in the majority’s logic that supports drawing a line at principal officers. Inferior officers (and likely many employees within the civil service) wield some executive power.

Finally, Sotomayor pointed to Roberts’s other opinion on Monday.

“Perhaps most strikingly, the Court today also makes clear that, whatever the logic of its decision, there are some ad hoc historical exceptions to its totalizing view of Article II, at least for the Federal Reserve,” she wrote.

I’m not sure Sotomayor went far enough.

The ad hoc exception that Roberts wrote about on Monday in upholding the for-cause removal protection for Fed governors in Trump v. Cook showed why Slaughter is insupportable and should not stand the test of time.

Addressing Justice Clarence Thomas’s dissent in the Fed case, Roberts wrote:

This is Roberts at his best and worst.

It is, he acknowledged, “a vastly more complex economy in a vastly more complex world” today. He went on to acknowledge that government need not be “trapped in amber” based on practices in a far less complex time and that we “look to history … to give essential content to undefined provisions in the frame of our government.”

That’s the good.

But then, in the middle of that, Roberts insisted that “[w]hat matters” is that the Fed is “consistent” with the First and Second Banks and their commitment “that monetary policy should not be subject to political interference.”

That claim is only necessary because to excise that would be to obliterate his Slaughter decision.

If you take out that one sentence from the above paragraph, the understanding of Roberts’s Cook decision would change dramatically.

What that paragraph would then say is that the First and Second Banks show that our longtime constitutional understanding is that Congress — under its constitutional authority — can create entities as it desires, so long as they accord with their constitutional powers to create those entities.

There is no constitutional reason to limit that independence to “monetary policy” just because John Roberts cares about the independence of monetary policy. The legal, constitutional point it proves is that Congress can create that independence.

Ironically, it is Thomas, in dissent in Cook, who most clearly illustrated the incompatibility of Roberts’s pair of opinions. Of Slaughter, Thomas wrote:

Any statute that limits “[t]he President’s power to remove—and thus supervise—those who wield executive power on his behalf ” is unconstitutional. Seila Law, 591 U. S., at 204 (plurality opinion). This principle admits no exceptions: “The Constitution places all Executive power in the hands of the President.”

Of the Fed, he then wrote (quoting Slaughter), “The Board ‘unquestionably exercises executive power, and must therefore be controlled by the Chief Executive, in whom such power is vested.’ … The President, therefore, may remove Cook for any reason that he wants and by any procedure that he wants.“

That’s not what happened. As Thomas wrote, quoting both of Roberts’s Monday opinions:

Instead, the Court endorses a contradiction: “the Constitution vests the whole executive power in the President alone,” Slaughter, 609 U. S., at ___ (slip op., at 21) (internal quotation marks omitted), but the Board can exercise executive power “independen[t] from Presidential control,” [Cook], at 22.

Thomas is wrong in his analysis, concluding that Roberts was right in Slaughter and wrong in Cook, but he is right that there is a contradiction.

The problem is that Roberts refused to let his reasoning in Cook light the way for a decision affirming Humphrey’s Executor — and allowing the federal government to continue to operate is it has for the past 100 years.

Instead, the courts — and country — will now face the questions that Sotomayor (and Gorsuch) detailed and that Roberts left unanswered.

This is expected to be — but does not necessarily need to be — the final week of opinions for the U.S. Supreme Court this term.

There is no rule, let alone law, laying out when the court needs to finish, but the expectation is that opinions in any of the final eight cases will be handed down before the Fourth of July holiday. Unless something unexpected happens — like a case being held over for reargument next term — that means there should be seven opinions handed down this week.

The only decision day announced thus far is Monday, but it is likely that there will be one additional decision day this coming week (or two?) before all of those decisions are handed down.

Once that’s done, I’ll have more to say — big picture — about where we’re at and going, but, for now, I want to just lay out what’s left.

The cases remaining raise challenges to:

• Birthright citizenship, by way of President Donald Trump’s effort to end the right via executive order

• Presidential firing powers, both as to for-cause removal protections for Federal Trade Commission members and as to the way the Trump administration has sought to limit what for-cause removal protections mean as to a Federal Reserve Board governor

• Transgender sports bans, via two cases, one out of Idaho and the other out of West Virginia (only one opinion is expected)

• State election laws allowing ballots mailed by Election Day but received in the days after then to still be counted

• Federal campaign finance laws limiting coordinated party expenditures

• Geofence warrants

That’s it, and any or all of them could be extremely important decisions, depending on what the court resolves them.

Whatever happens, I’ll be there — reporting live at 10 a.m. ET and then reading and writing full reports for Law Dork.

Reporter’s privilege at SCOTUS

On Friday afternoon, Chief Justice John Roberts issued a temporary order keeping fines from accumulating against reporter Catherine Herridge while the U.S. Supreme Court considers her request to keep a contempt order on ice while she asks the Supreme Court to consider whether there is a First Amendment reporter’s privilege against testifying in court.

The appeal is over a 2024 contempt order issued by U.S. District Judge Christopher Cooper in a Privacy Act lawsuit filed by Yanping Chen in 2018 over the fallout from a longtime FBI investigation that led to no charges against Chen but did lead to a 2017 Fox News report about the investigation and subsequent claimed detrimental effects on Chen. Herridge was listed as the author of the print reports of the Fox News story and, in 2024 Cooper held Herridge in contempt after she refused to answer questions under a subpoena about her sources for the 2017 report. He put the civil contempt — a fine of $800 per day — on hold while Herridge appealed the order.

At the U.S. Court of Appeals for the D.C. Circuit, a three-judge panel — in an opinion by Judge Gregory Katsas (Trump), joined by Judges J. Michelle Childs (Biden) and Harry Edwards (Carter) — affirmed the contempt order in September 2025:

The full appeals court rejected Herridge’s request for en banc review on May 22. Then, earlier this month, Herridge’s lawyers asked for an order staying the issuance of the mandate — the formal order sending the case back to the lower court — while she asks the Supreme Court to hear the case.

Although the request to the appeals court was denied on June 23, her lawyers stated in that request that her certiorari petition to the Supreme Court would address “the scope of the First Amendment reporter’s privilege protecting journalists’ confidential sources.”

On Friday, at the Supreme Court, Herridge filed an application for a stay and to file the request under seal. As such, there is no public filing at this point on the Supreme Court docket.

However, there was one key fact made clear from the docket. Herridge has a new lawyer. Her counsel of record is listed as Paul Clement — one of the most prominent Supreme Court lawyers, a former solicitor general in the George W. Bush administration who has argued more than 100 cases at the high court.

Hours later, late Friday afternoon, Roberts issued the temporary stay of the mandate and ordered a response by noon Wednesday, July 1.

Closing my tabs

For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.

This Sunday, these are the tabs I am closing:

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On Friday, much U.S. Supreme Court-related attention — including from me — was on the 11th anniversary of the court’s decision in Obergefell v. Hodges. (In addition to Justice Sam Alito’s ridiculous claim that a “misunderstanding” led to his Thursday “rebuttal” to Justice Sonia Sotomayor.)

While Obergefell was the obvious moment — the rainbow White House photos will forever be a constant emblem that D.C. folks can pull out to show “I was here when” — my brain shifted back a dozen years earlier to then-Justice Anthony Kennedy’s first June 26 Supreme Court “gay rights” case opinion.

The decision, its reasoning, and the case that it overturned have a lot to teach us in and about this moment.

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In 2003, the Supreme Court, in Lawrence v. Texas, held that a state could not criminalize gay sex.

To do so, the court had to overturn the 1986 decision in Bowers v. Hardwick upholding Georgia’s sodomy law.

Forty years ago Tuesday, the Supreme Court issued Bowers. In announcing the court’s decision, then-Justice Byron White explained first what the court insisted the case was and was not about:

This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state-court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. The case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate.

But, what the decision was about was quickly made clear: Gay people — and what they do — is icky.

Noting the court’s history of privacy-related cases, which the U.S. Court of Appeals for the Eleventh Circuit had relied upon to strike down the Georgia law, White wrote bluntly, “[W]e think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent [Michael Hardwick].“

It was a short opinion, with White noting that Hardwick “would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy.”

His and the court’s response: “This we are quite unwilling to do.”

The Chief Justice of the United States at the time — Warren Burger — did not think that was enough, issuing a brief concurring opinion essentially to explain that the state could do whatever it wants to homosexuals because, history (and, again, because gay people — and what they do — is icky).

The coming years — in the midst of the height of the AIDS epidemic — involved expansive work from individuals and advocacy organizations to change the public’s view and work toward changing the law.

A dozen years after Bowers, John Geddes Lawrence and Tyron Garner were arrested, charged, and convicted in 1998 under a Texas law that remained constitutional following Bowers. In 2003, the challenge to that conviction — and law — reached the Supreme Court. Then-Justice Anthony Kennedy described the complaint and law as such:

After analyzing the history, practice, and precedent, Kennedy drew the first of two conclusions: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.“ It took 17 years, but Bowers was gone.

Then, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.“

Kennedy, often critiqued for his less-than-methodical resolution of these cases, then wrote one of his key paragraphs in his trio of June 26 “gay rights” decisions:

For all he got wrong — or failed to resolve — in his time on the court, I think this paragraph is one that will stand the test of time. This is the crystallization of the counterargument to originalism — specifically, to letting originalism work as an anchor aimed at holding the nation back.

In that era, then-Chief Justice William Rehnquist was left joining then-Justice Antonin Scalia’s dissent along with Justice Clarence Thomas, the latter two of whom joined the court after Bowers.

Fast-forward another 17 years, and a different era was beginning with the death of then-Justice Ruth Bader Ginsburg and confirmation of Justice Amy Coney Barrett in 2020.

Now, it was Chief Justice John Roberts at the court’s helm. Generally in the majority on the 6-3 right-wing and often reactionary court, Roberts wrote the court’s 2025 opinion upholding Tennessee’s ban on gender-affirming medical care for minors. If you’ve forgotten how Roberts did so in U.S. v. Skrmetti, here’s a refresher:

Roberts first held for the court that Tennessee’s law, S.B. 1, does not classify on the basis of sex. Instead, Roberts insisted, the law only classifies on the basis of age and what he called “medical use.”

“Under SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purposes,” Roberts wrote.

Such wordplay is disingenuous at best.

Roberts went on to hold for a five-justice majority that the law banning gender-affirming medical care for trans minors does not classify based on transgender status. Here’s what he wrote:

This constitutional-protections-by-wordplay was how Roberts wrote trans kids out of the Constitution.

If the current court — if Roberts’s facile, convenient thinking — were to have controlled in 2003, Texas’s law might have faced an easier time. Recall the law (above).

Here’s how Roberts’s Skrmetti opinion could have played when looking at Texas’s law:

Tex. Penal Code Ann. Section 21.06(a) does not criminalize any individual on the basis of homosexual status but rather removes one set of sexual activities—deviate sexual intercourse with another individual of the same sex—from the range of lawful sexual activity. Tex. Penal Code Ann. Section 21.06(a) divides people into two groups: those who might seek deviate sexual intercourse with another individual of the same sex, and those who might seek sexual intercourse that is either not deviate or not with another individual of the same sex.

Essentially, Roberts said the Tennessee law is not a status-based law because it’s just excluding somethings, not some people.

Roberts’s opinion in Skrmetti justified itself by noting that, while only trans people use the drugs at issue for cross-sex purposes, anyone — cis or trans — can use them for other, permitted purposes. With Texas’s law, a Roberts-minded jurist could do the same thing: While only gay or bi people might seek “deviate sexual intercourse with another individual of the same sex,” anyone is permitted non-deviate sexual intercourse.

Yes, go back and do the math. Anyone can kiss!

It would be a ridiculous argument, and that’s why such ill-suited “logic” wasn’t used by the court to uphold sodomy laws in 1986 and wasn’t a consideration when they were struck down in 2003.

In fact, it was then-Justice Sandra Day O’Connor — who had voted for Bowers and did not vote to overturn it in Lawrence — who quickly and succinctly dismissed that “logic,” such as it is, in concurring with the Lawrence decision. Explaining why the Texas law violated the Equal Protection Clause (an argument the majority called “a tenable argument“ but didn’t reach because the case was decided on Due Process grounds), O’Connor wrote:

The statute at issue here makes sodomy a crime only if a person “engages in deviate sexual intercourse with another individual of the same sex.” Tex. Penal Code Ann. §21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §21.06.

The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction.

Those harmed by this law are people who have a same-sex sexual orientation.

Reading those words and then reflecting on Skrmetti as we await the court’s decision in Little v. Hecox and West Virginia v. B.P.J. over Idaho and West Virginia’s trans sports bans, respectively, is to see the emptiness in John Roberts’s Skrmetti opinion and in his vision of constitutional equality.

Those harmed by these laws are minors who are transgender.

The good news, and the reminder of Lawrence, is that a relatively short time later — longer than it should have been, but short in constitutional terms — the court was able to acknowledge that “laws once thought necessary and proper in fact serve only to oppress.”

As Kennedy told us all, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

No matter what happens in the coming days, that is what we will have to do as we move forward from these times.

It was Justice Sam Alito’s big day at the U.S. Supreme Court.

He announced three decisions of the court on Thursday, all 6-3 decisions split along the same ideological divide that had loomed large over Tuesday.

He got to announce for the Supreme Court’s right-wing majority that President Donald Trump’s blatant racism regarding Haitians was not racism at all, that challenging decisions to end temporary protected status on statutory grounds is not allowed at all, that blocking people from stepping foot in the United States at the border is enough to relieve U.S. officials from needing to consider those people’s asylum claims at all, and that private property owners who generally open their property to the public can be forced to allow concealed carry holders on their property unless they explicitly prohibit it.

What’s more, he did it — in all three cases — in a very Sam Alito way.

If Alito was ever subtle — and, for the past 16 years that I’ve been covering the court in person, he hasn’t been — all subtlety was out the window on Thursday.

Outside of the cases decided on Thursday, the announcements highlighted another possibility that’s been bouncing around in my brain since January: Is Alito leaving?

I think he could be. (More on that at the end.)

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Asylum blocked

In the case over the “metering” policy that has not been in effect for several years, which prevented people arriving at a port of entry from crossing the border into the United States, Alito’s majority opinion for the court dropped a footnote that condescendingly characterized Justice Sonia Sotomayor’s lead dissent as being centered with “an impassioned argument” on policy, not law.

Sotomayor did not miss this slight, responding in a footnote of her own.

The matter carried over onto the bench. After Alito announced the court’s opinion, Sotomayor took the opportunity to read from her dissent. It was an extensive reading, but that fact was not particularly surprising. A justice reads from a dissent when they strongly disagree with the court’s decision and want to make a point of it.

Nonetheless, Alito on Thursday appeared to have been caught off-guard by Sotomayor’s lengthy bench dissent — or, at least, that is what he proclaimed when he took a step I have not seen in my time covering the court: He responded to Sotomayor’s bench dissent with a rebuttal statement of sorts.

It was, there is no other way to put it, really weird.

Insisting that, had he known Sotomayor was going to go on as long as she did, he would have read from more of his opinion, he then told the courtroom about how two prior administrations had implemented the metering policy and how they had decided it was the best approach to dealing with so-called border surges.

The closest example of anything similar happening that anyone in the pressroom Thursday morning could recall was when, as Mark Walsh recalled, then-Justice Antonin Scalia responded to then-Justice Stephen Breyer’s bench dissent in 2015’s Glossip v. Gross. There, however, Scalia had not authored the majority opinion — Alito had — and Scalia, in speaking up after Breyer, opened by noting that his concurrence was “responding essentially“ to Breyer’s dissent. In short, while unusual, the ordering of speakers made sense and appeared to have been decided ahead of time.

TPS gone

In the other immigration decision, Alito talked away racism in addressing the equal protection claim raised by those challenging the termination of Haiti TPS, and Justice Elena Kagan was the one who called him out.

Here’s how Alito described Trump’s comments about Haiti and Haitian immigrants:

After noting that those challenge the Haiti decision “also cite statements by former Secretary Noem,” Alito concluded:

Kagan was not having it, writing at the top of her dissent:

[T]he majority claims to see no evidence that race played any role in the Haiti decision. But the evidence is there, plain to see, in the President’s statements, which the majority (and for that matter, his own lawyers) cannot even bear to repeat.

Later, given that the majority failed to acknowledge reality, Kagan included evidence submitted by those challenging the Haiti TPS termination in the record.

“The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print,” Kagan wrote bluntly before stating, “So here are some of those statements.”

That was the dissent, though, and in both cases the court’s majority — through Alito’s words — was able to both further empower Trump’s anti-immigrant efforts and further shield those efforts from review.

Guns above property

In the final case, Alito got his go at addressing the problems in Justice Clarence Thomas’s 2022 New York State Rifle and Pistol Association v. Bruen decision, where Thomas held for the court that gun regulations can be upheld only if they are “consistent with the Nation’s historical tradition of firearm regulation.”

Alito’s answer was to go backwards — to the initial 2008 and 2010 cases redefining the Second Amendment as protecting an individual right. Notably, he did so in an outright Trumpian way, describing “the exceptionally high rate of violent crime in Washington, D.C.” as a part of the first case and the second case having been “brought by residents of Chicago, a city, like Washington, D. C., with a high rate of violent crime.“

Then, to get a little bit of paternalism in his opinion for the court — the law of the land — Alito cited to a decade-old concurrence he wrote about a case out of Massachusetts in order to take another weird step. In describing Hawaii’s law — which barred those with concealed carry licenses from carrying on private property open to the public (think, businesses) unless the owner explicitly allows it — Alito wrote that “Hawaii’s new default rule burdens those wishing to exercise their Second Amendment right.“ To explain this, he referenced that old case, which involved “a young Boston woman who wanted to carry a weapon to defend herself from a violent ex-boyfriend,” and then created “our hypothetical young woman“ to highlight what he saw as the problem with Hawaii’s “new default rule.”

Over the course of the next three pages — and, again, for the court — Alito referred to “our hypothetical young woman” repeatedly, for a grand total of six times. At some point in the middle there, it veered from weird to creepy.

In striking down Hawaii’s law, Alito closed the opinion by discussing the importance of the Second Amendment to “vulnerable blacks.”

In discussing the relevance of the post-Civil War Black Codes “that aimed to perpetuate the subjection of blacks” to the “original understanding” of the right to bear arms in the wake of the Fourteenth Amendment, Alito dismissed it as an argument that “cannot be taken seriously.”

This time, it was Justice Ketanji Brown Jackson who responded in dissent.

“The Second Amendment’s plain text, informed by history, simply does not protect a right to go armed onto private property without the property owner’s express consent,“ Jackson noted in her broad response to the majority.

Later, in addressing the Black Codes, Jackson pulled back and asked big questions that today’s court — today’s country? — is unlikely to answer.

She explained two possible ways of examining this issue.

“First, it could be that the Black Codes regulated guns consistent with the Second Amendment but States chose to exercise their regulatory authority in a discriminatory fashion. … Under this framing, those gun regulations are not examples of an unconstitutional abridgment of the right to bear arms, but rather exemplify a violation of a different constitutional Amendment—the Fourteenth,” she wrote. “Alternatively, it could be that States did not have the constitutional authority under the Second Amendment to enact such regulations but did so anyway for discriminatory reasons. Under that framing, not only did the States violate the Constitution by acting on the basis of race; they also violated the right to bear arms.”

Here, however, Jackson concluded the court failed to explain itself.

Alito had the votes, though, so no explanation was necessary.

There are eight cases remaining, with seven opinions expected. The next opinion day will be Monday, June 29, and it is not expected that will be the last opinion day as Chief Justice John Roberts did not announce it as such.

A retirement?

Since January, I’ve held the opinion that Justice Sam Alito had tentatively settled on retiring at the end of this term. He’s just seemed more OK with not being a part of all of this — and, dare I say, more happy having reached that decision.

I still think that’s so.

I can see a world in which he wanted his last opinions for the court out of the way before announcing his retirement next week. (And in which he was characteristically annoyed when Sotomayor broke his rhythm on the bench with her lengthy dissent.)

Although this is obviously not a fact I am reporting, it is a thought that makes sense to me. (And, yes, you can tell me I was wrong if it turns out I am.)

As of next month, Sam Alito will have gotten his paycheck from the federal government for the past 50 years — when he started clerking for then-Judge Leonard Garth on the U.S. Court of Appeals for the Third Circuit in July 1976.

He could have decided that, after more than 36 of those years as a judge and more than 20 of those as a justice, it’s time to hang up the robe.

The possibility of two, six, or 10 more years on the bench might be too much for him to contemplate — and those possibilities have to be there in his head — because there is no way Alito wants to be replaced by a Democratic president. (Of course, this is also true of Justice Clarence Thomas, but I just don’t see him retiring now. I could be wrong about that, too. We will see.)

In any event, there is much still to come, but I couldn’t write about Thursday’s decisions without putting them in the context in which I’m viewing them.

On Wednesday morning, a federal judge granted patients’ request to block the Justice Department from seeking or obtaining invasive patient information about transgender minors who received gender-affirming medical care in New York City.

It was the first such ruling to block DOJ’s escalated effort to obtain the information through grand jury subpoenas as part of the Trump administration’s broader effort to “reduce or eliminate” such care altogether.

U.S. District Judge Katherine Failla found the classwide temporary restraining order to be necessary because, she said in announcing her ruling from the bench, DOJ’s request “shocks the conscience” by seeking the “most personal and sensitive information a medical provider could hold” without providing “any legitimate government interest“ that would justify the level of disclosure being sought by the government.

Failla, an Obama appointee, had held a three-hour hearing on Tuesday over the patients’ lawsuit, which was filed after NYU Langone Health, citing New York law, provided public notice that it had received a grand jury subpoena from the federal government ordering it to turn over the records. The patients are represented by the ACLU, New York Civil Liberties Union, and Lambda Legal Defense and Education Fund.

Failla noted that the only reason the patients even knew the government was seeking this information here was due to NYU Langone’s view that New York law required it to inform patients of the government request.

As Law Dork has covered in depth, the Trump administration has spent the past year seeking this detailed information from medical providers as one part of its broader anti-trans policy efforts. Where challenged, judges had blocked the Justice Department’s initial effort to obtain the information through administrative subpoenas. Then, this spring, DOJ turned to issuing grand jury subpoenas out of the Northern District of Texas to obtain the information. This led to another round of litigation, including the New York City case.

Following Tuesday’s hearing, Failla called the parties together at 11:00 a.m. Wednesday — and provided remote access to the public — to issue her decision on the plaintiffs’ request.

[Update, 5:40 p.m. ET June 26: The plaintiffs in the Lucile Salter Packard Children’s Hospital (Stanford) case filed the full transcript from Judge Failla’s New York City case decision announcement as a “statement of recent decision“ notice in the Stanford case on Friday, so it is now readily available.]

[Update, July 8: Judge Failla converted the temporary restraining order into a preliminary injunction, which would stand throughout the litigation.]

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The decision in depth

Reading the opinion from the bench — a process that took nearly an hour — Failla first laid out the facts established in the case, highlighting the importance of the context of the Trump administration’s actions since President Donald Trump returned to office in January 2025 and DOJ’s extensive efforts to obtain this information.

This is “worse than a game of wack-a-mole,” Failla said in describing the government’s shifting and secretive efforts, adding that it is forcing the patients to try and protect their medical records while “blind-folded.”

Citing the “reality of the timeline” involved, Failla also highlighted DOJ’s apparent effort to forum shop here, noting that the grand jury subpoena was issued in a “handpicked faraway jurisdiction.”

Failla’s presentation Wednesday was extensive and in-depth — impressive in general but all the more because she was only belatedly assigned the case on Monday after two other judges apparently recused themselves from hearing the case.

Attorneys Omar Gonzalez-Pagan from Lambda Legal and Chase Strangio from the ACLU made arguments for the patients on Tuesday, while DOJ’s Luke Miller represented the government and Zachary Cunha represented NYU.

Ultimately, Failla explained that she found she had jurisdiction to hear the request, citing the Declaratory Judgment Act (and Second Circuit precedent) and courts’ inherent equity authority, and subject matter jurisdiction to hear the plaintiffs’ claims raising both violations of statutory and constitutional rights. She additionally found that the plaintiffs had standing to bring the claims, given that they faced a “certainly impending” injury in fitting with Supreme Court precedent.

On the merits of plaintiffs’ request, Failla found that plaintiffs are likely to succeed in demonstrating violations of both the Fourth and Fifth Amendments.

While the government cited its effort to protect grand jury secrecy in declining to respond to many questions, Failla said that she failed to see “how any legitimate government interest” would justify seeking the patient requests at issue.

“I cannot conceive of a crime” that would require this disclosure, Failla said, concluding that the government’s interest does not likely outweigh the patients’ interest in privacy under the Fifth Amendment given the scope of the information sought and the fact that it is targeted at “a particularly and uniquely vulnerable group”.

As to the Fourth Amendment, Failla found that the patients “have an objectively reasonable expectation of privacy” in these records and that the government’s subpoena does not overcome those privacy rights.

Noting that NYU Langone has stated even anonymized data would provide incomplete protection to patient given the breadth of data sought, Failla concluded that it is impossible to guarantee anonymization of patients’ identity and that, under Supreme Court precedent, that data would provide an “intimate window into a person’s life.”

If turned over, the data would create “a sweeping profile of plaintiffs,“ Failla said, concluding that the plaintiffs are likely to succeed on their Fourth Amendment claim.

As to the other factors for granting the TRO, Failla easily found that the patients’ showed irreparable harm and that the balance of the equities are in their favor.

In addressing the scope of relief, Failla granted the plaintiffs request for provisional certification of a class of all people to have been provided with gender-affirming medical care in New York City and and subclass of those who did so at NYU Langone specifically.

Although Failla noted that DOJ argued this is too broad a scope of relief given the Supreme Court’s decision barring universal injunctions, Failla explained that the government “may have misperceived” that decision. Specifically, she noted that the Supreme Court there was addressing universal injunctions being used as a “workaround” to class relief. Here, however, class-based relief is exactly what the plaintiffs pursued.

Failla granted the class-based TRO on Wednesday, provisionally certifying the following class (and NYU subclass):

She then granted the following temporary restraining order against DOJ (and one directed at NYU, blocking it from turning over such information) as to not only the current grand jury subpoena at issue but all “substantially similar administrative or grand jury subpoenas“ part of DOJ’s claimed investigation into such care:

The TRO is now in effect. As TROs generally only remain in effect for 14 days, however, the case will now move forward quickly.

Failla concluded Wednesday’s opinion announcement by tentatively setting a preliminary injunction hearing for Wednesday, July 8. She also ordered the parties to submit a joint letter on the docket by the end of the day Friday regarding any additional discovery, motion practice, or briefing that they believe is needed for that consideration.

Two notes

A similar request seeking to block a similar DOJ grand jury subpoena — one issued to Lucile Salter Packard Children’s Hospital at Stanford — remains pending. The plaintiffs there have already alerted their judge — U.S. District Judge Casey Pitts — to Wednesday’s ruling.

One final matter should be noted.

Judge Failla on Wednesday highlighted DOJ attorney Miller’s reference on Tuesday to U.S. District Judge Reed O’Connor somehow being involved in this matter despite the facts that, as is usual, no judge had signed off on the grand jury subpoena at issue and DOJ has insisted it cannot even acknowledge the existence of the subpoena under grand jury secrecy rules.

O’Connor, a far-right George W. Bush appointee with a long record of anti-LGBTQ rulings, had overseen the same-day granting of DOJ’s request to enforce an earlier administrative subpoenas that had been issued in D.C. to Rhode Island Hospital, but there has been no public connection — until Tuesday — between O’Connor and the grand jury matter.

The biggest story out of the U.S. Supreme Court on Tuesday was not any individual decision — although some of the five decisions handed down are significant. It was, rather, the sharp reminder that the right-wing control of the nation’s highest court is absolute and can be exercised whenever and however the majority wants to do so.

Four of the five decisions Tuesday were issued along the court’s 6-3 ideological divide — moving the law further and further right, even in lower-profile cases.

As Justice Sonia Sotomayor wrote dissenting in one of those cases, “The Court’s decision today is yet another notch in its belt, unabashedly remaking the law in its preferred image.“

In that case, the court’s majority gutted the Alien Tort Statute, holding that courts cannot authorize lawsuits under the act for even “heinous and inhumane acts“ contrary to international law. The decision gets Cisco out of a lawsuit over allegations that it designed a surveillance system for the Chinese Communist Party that, the lawsuit claims, was used to enable the torture of religious minorities.

The court’s majority also gave Exxon a win by reading the Helms-Burton Act so expansively that the company doesn’t even need to show that one of the exceptions to the Foreign Sovereign Immunities Act applies to authorize its suit against to Cuban-owned companies.

The court’s majority made it harder to sue prison officials in their personal capacity for even flagrant violations of court decisions under the Religious Land Use and Institutionalized Persons Act. RLUIPA was passed under the Spending Clause, meaning that its obligations are a requirement to receive certain federal funding, and, as such, the court held that RLUIPA lawsuits are allowed only where the party consented to suit. Since the individual Louisiana prison officials who allegedly violated RLUIPA didn’t sign the federal contract, they hadn’t consented to being sued — and no suit is allowed.

Finally, the court’s majority made it easier to take green cards from some people with virtually no process at the border. Under the Immigration and Nationality Act, lawful permanent residents can generally return to the U.S. from elsewhere easily, unless one of six exceptions applies. One of those is for a person who has committed a crime of moral turpitude. The question was when the government needs to show that exception applies, and the majority decided that the government can just act on suspicion at the border and does not need to meet its burden to show the exception applies until a removal hearing at a later time.

“I worry that the Court has now handed the Government a massive blank check,“ Justice Ketanji Brown Jackson wrote in dissent.

It’s all in a day’s work when you have solid control of the court.

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There is one other note about the decisions Tuesday.

The decisions came from Justices Clarence Thomas, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — the five-justice majority that can, when it so desires, act without even needing support from Chief Justice John Roberts.

It most infamously did so to overturn Roe v. Wade four years ago Wednesday and, though Roberts was in the majority in all of Tuesday’s decisions, I couldn’t help but note the five-justice decision lineup.

Now, the truth is that the lineup likely means Roberts is working on the majority opinion in one or more of the remaining, more high-profile cases.

But, the possibility of a five-justice majority is worth remembering as we approach these final decisions. There are still 12 argued cases awaiting action, with 11 opinions expected in those cases — including over birthright citizenship, presidential firing powers, and transgender sports bans.

The next — but not final — day for decisions is Thursday.

On Monday, the federal court in Minnesota made public a court order issued last week that blasted the Trump administration — specifically, the Justice Department — for its efforts to seek a large amount of immigration-related information from state and local officials.

Chief Judge Patrick Schiltz was facing motions from Minnesota Gov. Tim Walz, Minnesota Attorney General Keith Ellison, Minneapolis Mayor Jacob Frey, St. Paul Mayor Kaohly Her, and Hennepin and Ramsey county commissioners to quash six federal grand jury subpoenas that had been issued January 20, 2026.

“Because the Court finds that the dominant purpose of the challenged subpoenas is to coerce Minnesota officials into assisting the federal government with enforcing civil immigration law and to harass and retaliate against them for failing to do so, the Court grants the motions to quash,“ Schiltz, a George W. Bush appointee, wrote.

Schiltz, who has called Trump administration officials to account for the federal government’s failure to comply with orders coming out of litigation resulting from Operation Metro Surge, made clear that this latest decision was not a particularly close call.

“The Court has no doubt that they were,“ Schiltz continued, noting, in describing the factual record, that the Trump administration has regularly “taken aim at so-called ‘sanctuary’ jurisdictions” and that “President Trump has repeatedly insulted Minnesota generally and its Somali population in particular,” among other points.

It is “beyond reasonable dispute,” he wrote, that “the subpoenas were a part of a broader campaign to coerce state and local officials in Minnesota to assist the Trump administration in its enforcement of immigration laws.”

This, Schiltz explained, runs counter to “the Tenth Amendment’s ‘anti-commandeering’ rule,” under which — quoting the Supreme Court — the federal government “may not ‘command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.’”

Because of that, he wrote, [T]he subpoenas are directed to investigating activity that is not only legal, but constitutionally protected from interference by the very federal government that issued the subpoenas.”

Looking at the “asserted investigatory purpose,” Schiltz found the government’s claims lacking and concluded, "The fact that connections between the information sought in the subpoenas and any possible criminal violation range from extremely weak to nonexistent only adds to the overwhelming evidence that these subpoenas were not issued to investigate, but to harass, coerce, and retaliate.”

With that, the subpoenas were quashed.

Schiltz’s order was a remarkable one. For a federal judge to block a grand jury subpoena takes a lot. As Schiltz himself noted — quoting the U.S. Court of Appeals for the Eighth Circuit, his appeals court — “[A] grand jury subpoena issued through normal channels is presumed to be reasonable, and the burden of showing unreasonableness must be on the recipient who seeks to avoid compliance.”

That presumption was overcome, easily, here.

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For this to have happened once is a big deal — a blow to the Justice Department.

In 2026, however, this is becoming the norm.

In D.C., there was the effort to subpoena the Federal Reserve — another target of Trump’s wrath. There, Chief Judge James Boasberg quashed those two subpoenas with a March order.

Highlighting “one of at least 100 statements that the President or his deputies have made attacking the Chair of the Federal Reserve and pressuring him to lower interest rates,” Boasberg, an Obama appointee, wrote that the case asked: “Did prosecutors issue those subpoenas for a proper purpose?” Finding that they had not done so, Boasberg wrote, “There is abundant evidence that the subpoenas’ dominant (if not sole) purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed Chair who will.“

In Schiltz’s order, he quoted from Boasberg’s decision — a new example of the practice Quinta Jurecic described in The Atlantic earlier this month of judges “building upon one another’s work to adapt criminal law to an era when the federal government cannot be trusted.“

In New York, U.S. District Judge Katherine Failla on Monday scheduled a hearing for 2:30 p.m. Tuesday1 on a group of patients’ request to prevent NYU Langone and any medical care provider in New York City from needing to comply with a grand jury subpoena issued in the Northern District of Texas for records relating to the provision of gender-affirming medical care for minors. The patients’ request also seeks an order barring the Justice Department from seeking or receiving the information.

In that case, one of the patients’ arguments to the court is: “DOJ’s bad-faith investigation and utter lack of legitimate purpose demand the conclusion that the Subpoenas are oppressive and unreasonable.“ In seeking invasive, patient-identifiable information from providers in states where such care is legal, the patients explained, the effort is “[e]ffectuating the Administration’s mission to ‘end’ this necessary care.”

This, as Law Dork has covered in depth, is, itself, an escalation of DOJ’s yearlong effort to seek such information, initially through administrative subpoenas, as part of the Trump administration’s attack on gender-affirming medical care for minors and its broader attack on trans people.

All of those administrative subpoenas challenged have been quashed, in whole or in part, with judges finding that they, too, were issued for an improper purpose. As one of those judges — U.S. District Judge Jamal Whitehead, a Biden appointee — put it, “No clearer evidence of improper purpose could exist than the Government’s own repeated declarations that it seeks to end the very practice it claims to be merely investigating.“

The National Mall was not crowded on the first day of Summer 2026.

The three main — and overlapping — attractions at the Lincoln Memorial end of the Mall were the effort to prevent algae from retaking control of the Reflecting Pool, the varying law enforcement entities preventing whatever it is they’re allegedly preventing in service to President Donald Trump, and the small but dedicated group of “TEAM ALGAE” protesters.

The whole endeavor has been a painfully simple metaphor, a speed-run encapsulation of what happens with virtually every move in Trump’s second term: Unnecessary actions followed by embarrassing public failure — often raising questions of corruption — that spurs some sort of overreaction.

I walked down to the Reflecting Pool on Sunday to see it all for myself. I missed the high-algae days, but what remained was its own set of embarrassments.

I think seeing a member of the U.S. Marshals Service Fugitive Task Force spending his Sunday assigned to protecting the water from former Olympians and other similar people in order to keep Trump happy was probably the low point.

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This was not how I would have liked to have spent this Sunday afternoon.

I doubt it’s how any of those involved wanted to spend this Sunday.

But, because this is where we are at, that is where I was at.

And so, being at the Reflecting Pool, I reflected.

Four years ago today, I launched Law Dork. This is how I opened that first post:

There will be news.

As we enter Summer 2022, that seems to be one of the few things that I’d be willing to bet on.

As the 6-3 conservative — and ever-more-reactionary five-justice majority — Supreme Court nears the end of its term and the January 6 Committee continues its hearings and the far right goes after drag queens (and continues to attack trans people), the coming months could be increasingly complicated at best and dangerous at worst for many people across the country.

I will be using this space to cover those developments and more.

But I need your help. I want to do this independently. I want to talk to the people who I think are essential to understanding what’s happening and tell you what I think matters and why. And I want to do so in a way that will allow this to become my job. That means I need subscribers and, ultimately, it means I need paid subscribers.

I think that opening note holds up quite well, both as to what was important to cover and as to what I have prioritized in my coverage — 862 posts at Law Dork over the past four years.

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The past 17 months — the second Trump administration — have featured 343 of those posts, with a coverage focus on the Supreme Court, Trump and democracy, and the attack on transgender people and LGBTQ people more broadly.

It’s what I told you I was focused on on day one, and it’s where I’m focused now.

Of course, there has been, is, and will be much more that I cover here — and that is being covered elsewhere. I’ve spent significant time focused on the post-Roe landscape, immigration issues, and criminal justice and the death penalty. I imagine that other topics will come to the fore in year five of Law Dork as well.

It is a difficult time for countless people — and for the United States — but a remarkable number of people are working in and out of court trying to make things right. I am glad that so many of you trust me to be a part of helping you to understand what is happening in this moment.

I am so grateful that more than 80,000 people have subscribed to Law Dork and that enough of you have supported this work with a paid subscription to make this possible. As I rode the train to Baltimore earlier this month for a hearing on the Justice Department’s trans care subpoenas, as I went to the Supreme Court last week for opinions, as I walked to the Mall today, and countless other times in between, I have found myself full of gratitude that people have supported me doing this work and doing it independently.

As we head into the fifth year of Law Dork, I do want you to take a moment and make sure that you are supporting this work with a paid subscription if you can do so. I sincerely appreciate it, and I know that so many people who can’t afford to pay for Law Dork’s coverage but need it appreciate those who make this possible.

Aside from that, it’s going to be a busy week at the Supreme Court, with opinions expected both Tuesday and Wednesday. Twelve of the 13 cases I discussed last week remain outstanding — including those over birthright citizenship, presidential firing powers, and trans sports bans. In total, there are still 17 argued cases awaiting action, with 16 opinions expected in those cases.

There will be news, and I will be there.

The U.S. Supreme Court on Thursday held that the federal government cannot, under the Second Amendment, use a federal criminal law to bar occasional marijuana users from possessing firearms.

There were no dissents, but, as is regularly so with gun cases, there was some underlying drama.

Every two years, it seems, the justices will take another stab at fixing Justice Clarence Thomas’s 2022 opinion for the court in New York State Rifle and Pistol Association v. Bruen, where he held for the court that gun regulations can be upheld only if they are “consistent with the Nation’s historical tradition of firearm regulation.”

On Thursday, it was Justice Neil Gorsuch’s go at it.

It does not appear he will be the last justice to do so.

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Even in 2022, it was clear that Thomas’s Bruen majority would have difficulties going forward.

Given that it was a 6-3 decision, there was a majority. And yet, the concurrence from Justice Brett Kavanaugh, joined by Chief Justice John Roberts, suggested a limiting principle on Thomas’s opinion. Despite being a concurrence — meaning they were stating full agreement with Thomas’s opinion — their votes were necessary to making Thomas’s opinion a majority, so their writing on “two important points about the limits of the Court’s decision” was essential to understanding how the opinion should be read.

Some courts, including the U.S. Court of Appeals for the Fifth Circuit, ignored that.

And so, two years later, Roberts issued the court’s 2024 decision in U.S. v. Rahimi, reversing the Fifth Circuit and upholding the federal law (18 U. S. C. §922(g)(8)) banning firearm possession by a person with a domestic violence order out against them. Although Roberts insisted that “some courts have misunderstood the methodology of our recent Second Amendment cases,” Thomas — the author of Bruen — dissented that day, strongly suggesting Rahimi should at least be seen as a narrowing refinement of Bruen.

Although it was an 8-1 decision — so, a clear majority — there was, again, disagreement underlying the near-unanimity.

As I wrote at the time, “Beneath Roberts’s opinion presenting a united front against Thomas’s thinking, though, every justice in the majority, save for Justice Sam Alito, also wrote separately or joined one of the 49 pages of concurring opinions.“

On Thursday, Gorsuch was given his chance to help lower courts — and governments — that might “have misunderstood the methodology” of Bruen.

Addressing another part of the same federal law that was at issue in Rahimi, Gorsuch was writing in U.S. v. Hemani about 18 U. S. C. §922(g)(3), which bars any person from possessing a firearm:

This time, the case was about the government’s effort to use that law to prosecute Ali Hemani for possessing a gun while admitting to using marijuana “about every other day.” That was it. The government chose to pursue this prosecution, arguing that the ban as applied to someone like Hemani is sufficiently similar to “habitual drunkard” laws in existence from the nation’s founding to be upheld under the Second Amendment.

No court below agreed, and no justice bought the argument, either — meaning that, this time, the Fifth Circuit’s decision below was affirmed.

Gorsuch tried mightily to explain how the court “determine[s] when the government infringes the Second Amendment,“ drawing the contours of Bruen’s “historical tradition“ test and Rahimi’s clarification that no “historical twin” is needed and that “analogy” is sufficient to finding a “relevantly similar” historical regulation before adding his own peculiarity to the test:

In short, applying that to the prosecution of Hemani, Gorsuch wrote, means the government fails:

[T]he habitual drunkard laws on which the government relies here differ dramatically from §922(g)(3)’s unlawful user provision on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways.

It is, as Gorsuch explained, a “narrow” decision. The court did not address any other part of §922(g); did not even address the “addict” part of §922(g)(3); and — further still, Gorsuch wrote — did “not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others.“

Nonetheless, and yet again, several divergent opinions were issued, signaling that, yet again, the majority opinion is more of a “for now” ruling than some settled resolution.

Notably, five justices issued or joined writings that offer a different path — now or in the future — than the one offered by Gorsuch on Thursday.

Two justices — Alito and Justice Elena Kagan — did not even join Gorsuch’s opinion, with Alito instead writing an opinion solely concurring in the judgment in the case (as in, affirming the Fifth Circuit). The pair essentially wrote that this is a pot case, it’s absurd for the government to claim this prosecution would be like the “habitual drunkard” laws, and that’s all the court needs to do here.

In short, neither Alito nor Kagan — and likely for different reasons — see a need to join Gorsuch’s Bruen-take-three take in order to resolve this case.

The two concurrences, representing the views of three justices, are somehow even more divergent from Gorsuch’s opinion — despite their having joined it.

Thomas, unsurprisingly, would go further. He wants a Commerce Clause case challenging all of §922(g):

Calling for stricter application by the court of restrictions on Congress’s use of the Commerce Clause to justify legislation, Thomas lamented, referencing U.S. v. Morrison, “It has now been 26 years since a party has received relief in this Court based on a Commerce Clause challenge.”

In an “appropriate case,” Thomas wrote, “the Court, and lower courts, should revisit the constitutionality of §922(g).”

For her part, Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, would prefer to be done with the “unworkable” Bruen standard altogether. The pair are looking beyond Bruen:

They, too, are looking toward “a future case” — but, for them, it would be one where the court could “consider whether to retire the failed Bruen experiment.”

On Thursday, though, there were no dissents, and Hemani’s prosecution is not allowed.

The Trump administration’s effort to end gender-affirming medical care for transgender people in federal prison is blocked again after a short lapse in protections on Wednesday.

About noon Wednesday, the U.S. Court of Appeals for the D.C. Circuit issued a 2-1 order that for two-and-a-half hours technically allowed the Trump administration to begin implementing the Federal Bureau of Prisons’s plan to “taper” — with a goal of ending — the provision of hormone therapy for transgender people in federal prison.

About 2:30 p.m., though, U.S. District Judge Royce Lamberth granted a request that had been pending from the plaintiffs challenging the BOP policy and issued a new preliminary injunction blocking the plan.

This was not the actions of a “rogue” judge or anything like that. The appeals court judges had even noted that the district court request was pending, but Judges Karen Henderson, a George W. Bush appointee, and Justin Walker, a Trump appointee, nonetheless issued the ruling on Wednesday — over the dissent of Judge Cornelia PIllard, an Obama appointee.

The D.C. Circuit move effectively forced Lamberth, a Reagan appointee, to act quickly if he wanted to keep the protections he had ordered in place.

He did so — continuing his role as the federal judge most clearly protecting the rights of trans people in prison.

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What is going on?

The quick back-and-forth orders, though confusing procedurally, were a progression that all judges on the appeals court acknowledged was possible. Despite that, rather than just waiting for Lamberth to rule on the new request, the two Republican appointees on the appeals court who made up the majority stated that they wanted to issue a ruling now — likely in an effort to place new limits on district court judges in D.C.

The unsigned, per curiam order from Henderson and Walker stayed a May 26 preliminary injunction issued by Lamberth. The order stated:

Lamberth has — since the first month of the second Trump administration — been issuing orders protecting trans people in prison from having their medical care discontinued and, for a smaller number of trans women, from being transferred to men’s facilities. Due to the confines of the Prison Litigation Reform Act, preliminary injunction orders can only last for 90 days, so, while the cases were proceeding, Lamberth has issued multiple 90-day preliminary injunctions in succession.

During the course of the litigation — which was initially prompted by President Donald Trump’s January 20, 2025 executive order — the BOP issued a new “program statement” on February 19, 2026, which included the “tapering” policy.

When the plaintiffs filed a request for an updated preliminary injunction addressing the changes in the new policy, DOJ opposed the request and arguments were set for May 27.

At the same time, given the 90-day PLRA limit, the plaintiffs also asked for that earlier preliminary injunction to be renewed one last time — providing protection while the new preliminary injunction request could be considered. DOJ opposed that request, but Lamberth granted it on May 26 and held the hearing on the new request the next day.

Nonetheless, DOJ went to the D.C. Circuit on May 29, asking for that May 26 preliminary injunction to to be stayed. The appeals court did not grant DOJ its requested administrative stay and set a briefing schedule over the next week and the plaintiffs opposed DOJ’s request.

On Wednesday, Henderson and Walker granted the stay pending appeal — even as they acknowledged its practical effect in the case could soon be (and was) rendered moot.

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Why did the majority do this?

First, on the merits — the likelihood of success on the merits — the panel decided that Lamberth’s preliminary injunction order of May 26 “appears to have been an administrative injunction.” To that, they stated:

There does not appear to be any “discernible legal basis . . . for issuing administrative injunctions,” especially not in cases like this one involving the Prison Litigation Reform Act. Christopher D. Moore, So-Called “Administrative Stays” in Trump 2.0, 104 Tex. L. Rev. Online 1, 17 (2025); see also id. at 16–27 (canvassing potential legal bases); 18 U.S.C. § 3626(a)(2) (permitting the court to issue “a temporary restraining order or an order for preliminary injunctive relief,” not a standardless administrative injunction). Thus, the Government is likely to succeed on the merits of its challenge to this particular injunction.

Here is Moore’s article. Moore is a 2024 Harvard Law School graduated who clerked for Judge Andy Oldham, a Trump appointee on the U.S. Court of Appeals for the Fifth Circuit. He is currently a research fellow at University of Texas School of Law, per his LinkedIn.

Additionally, in addressing the irreparable harm factor, the majority — which included Walker — quoted from Walker’s dissent in the case over the Trump administration’s effort to end temporary protected status for people from Haiti.

In other words, with a different panel, Walker literally turned his March dissent into a June majority. (That said, his own actions show how irrelevant that might be.)

The reasons for this aren’t absolutely clear beyond what the order stated, but it could be as simple as the fact that this was a three-judge panel that had two Republican appointees. The pair might have used the chance to craft a majority that could be used elsewhere to restrict district court judges in the future. Relatedly, it could represent part of an ongoing dispute on the D.C. Circuit about how to address the significant number of district court injunctions that come out of the D.C. District Court.

The dissent

In dissent, Pilliard explained that this is about “maintain[ing] the status quo by requiring the Bureau of Prisons (BOP or Bureau) to continue providing medical care it has so far afforded to these plaintiffs” — a harm ignored by the majority.

“At bottom,” she continued, “BOP’s theory of irreparable harm is that the Executive is irreparably injured by a temporary delay in effectuating its new policy.“ That, she wrote, is not the rule in the D.C. Circuit:

[T]his court has already repeatedly declined to adopt that “broad and seemingly novel proposition”—particularly when the order at issue maintains the status quo. Miot, 2026 WL 659420, at *4; see Make the Rd. N.Y. v. Noem, 2025 WL 3563313, at *31-32 (D.C. Cir. Nov. 22, 2025); Fed. Educ. Ass’n, 2025 WL 2738626, at *3.

Notably, Miot is the Haiti TPS case — where Walker dissented.

Pillard went on to note how absurd the government’s irreparable harm argument is — and, accordingly, her colleagues’ decision to go along with it — in light of the fact “[t]he government never appealed the original March 2025 preliminary injunction of the Executive Order. Nor did it appeal when the district court renewed the preliminary injunction thrice thereafter.”

In short, she wrote, “I would not intervene on an emergency basis here, when everything suggests that the district court is expeditiously considering plaintiffs’ challenge to the new policy.“

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Lamberth, yet again

Despite the D.C. Circuit majority’s actions, Lamberth, yet again, came through to protect trans prisoners in a sharp opinion that is only technically a ruling on the Administrative Procedure Act claim brought by the plaintiffs but, in reality, cuts down virtually all of the Trump administration’s anti-trans arguments.

“With this Opinion, the Court has no intention of wading into the culture war being waged against transgender individuals,“ Lamberth wrote, insisting that “the Court simply decides whether the Bureau of Prisons followed mandatory administrative procedure when it issued its new policy concerning the provision of gender-affirming care to inmates diagnosed with gender dysphoria.”

And yet — this is what Lamberth did on Wednesday. In ruling that the plaintiffs will likely succeed in their APA argument that the program statement was arbitrary and capricious, he found three independent bases for this ruling:

1. “Despite providing gender-affirming care to inmates in its custody for years, the government cites in the Program Statement zero evidence from its own medical or mental health professionals to support its conclusions. Moreover, the government does not point the Court to evidence that gender-affirming care was ineffective or harmful to its own inmates diagnosed with gender dysphoria, or that providing this care previously led to security concerns at BOP facilities. … Post-hoc rationalizations during litigation1 cannot replace the type of reasoned analysis the government must undertake at the front end.”

2. “[The Program Statement] reaches a conclusion ‘so implausible that it could not be ascribed to a difference in view or the product of agency expertise,’ as evidenced by its explanation, which ‘runs counter to the evidence before the agency.’ … Instead of relying on BOP’s own medical or mental health professionals, the agency supports its new policy with a declaration by a doctor it retained specifically for this litigation, who has limited experience treating gender dysphoria, and who promotes a treatment for gender dysphoria that he himself acknowledges is not evidence based. … Banning evidence-backed care for an alternative that has no evidentiary support is an ‘implausible strategy’ to treat gender dysphoria … to say the least.”

3. “It is more likely, given the record before the Court, that the government disregarded significant evidence in its possession to reach the EO’s mandated result. The Court’s conclusions in subsections [1 and 2] provide further evidence of pretext. If the government intended to form a policy based on the evidence, one would expect it to have seriously considered its own experience providing gender-affirming care to inmates in its custody. … No length of consideration can convince the Court that a policy is anything other than pretext when the agency has not demonstrated that it considered the relevant evidence and drew a reasonable conclusion from that evidence.”

With that, Lamberth wrote, “Having found that BOP’s prohibition on gender-affirming care is likely arbitrary and capricious under the APA, the Court leaves Plaintiffs’ Eighth Amendment claims for another day.“

Additionally, in considering the question of irreparable harm, Lamberth examined “the efficacy of gender-affirming care,” after having described how the Trump administration is claiming there is a “debate” — scare quotes his — over the question.

Law Dork raised this precise point in the report on the May hearing.

After then going through the evidence presented, Lamberth’s ruling on this point is exceptionally simple — and extremely important:

Based on this record, the Court concludes that Plaintiffs have demonstrated that gender affirming care is the only effective treatment for gender dysphoria.

Ultimately, Lamberth issued his new preliminary injunction, protecting the class:

All in a days work for the 82-year-old senior judge — who is “not wad[ing] into the culture war being waged against transgender individuals,” mind you.

The Trump administration brought a new mass-indictment on Tuesday, charging 15 people for what Minnesota U.S. Attorney Daniel Rosen described as a “conspiracy to impede or injure federal officers” in those officers’ immigration enforcement duties as part of Operation Metro Surge and its aftermath.

The indictment from the federal prosecutor’s office that has lost many lawyers and faced court pushback describes events unfolding over several months, conveniently beginning on January 11 — four days after a federal officer killed Renee Good in the midst of the administration’s extremist immigration enforcement.

The indictment never names Good or mentions her killing, instead beginning the timeline laid out with, “On or about January 11, 2026, DAVIS moderated an event called ‘Emergency Meeting on Resistance to ICE Operation’ on Central Avenue Southeast in Minneapolis.”

There is no mention of why an “Emergency Meeting” might have been needed or called. When asked why these charges were being announced when no charges have been brought relating to the killings of either Good or Alex Pretti, Rosen simply said those investigations are ongoing.

This indictment, both Rosen and the unsealed indictment itself made clear, is an effort to go after the “antifa” boogeyman that members of the Trump administration have sought to turn into both an identifiable organization and a massive conspiracy — finding a handful of people to scapegoat with charges out of the mass protests that took over the Minneapolis-St. Paul region during that time. It also appeared to be an effort to find some new prosecution — any new prosecution — in the wake of the misconduct-related dismissal of the case against the Broadview Six in Chicago. (More on that below.)

The result appears to be a slipshod indictment that combines — even if as alleged — a handful of low-level disturbances to law enforcement (that could have been individually charged) with effective organizing and mass protest and throws in a bunch of MAGA fever-swamp paragraphs to create a 94-page indictment that was filed either with the prosecutor’s name redacted or the line left unsigned.

The alleged “conspiracy“ largely consisted of Signal chats identifying federal officials — who often were unidentified — and where those federal forces were going to violently take people off the streets and even out of their homes (regularly using unconstitutional methods) and related protests at the Whipple Federal Building that served as a primary ICE facility during Operation Metro Surge.

The indictment fails to note that the federal government’s actions at Whipple — the subject of the protests — were likely unconstitutional. A temporary restraining order was issued against the Trump administration on February 12, with a preliminary injunction issued on March 26. “Defendants chose to operate a detention facility, so ‘they must meet constitutional standards,’” U.S. District Judge Nancy Brasel wrote in issuing the TRO.

As Aaron Rupar noted, a part of the indictment that Rosen highlighted was a Facebook post that included the oft-used phrase, “[B]ecome ungovernable.”

Four of the 15 people face additional charges, but they, too, are less than they might appear. One person is charged with solicitation to commit a crime of violence and interstate threats; a person is charged with interstate stalking, assault on a federal officer, and destruction of government property; another person is charged with interstate stalking; and another person is charged with assault on a federal officer.

To highlight what these charges look like when examined more closely, here is what appears to be the entire foundation for one of the interstate stalking charges:

The destruction of government property charge, meanwhile, appears to be premised on a person having “kicked Government Vehicle 2 twice, causing dents.“

At the news conference announcing the charges, Rosen was asked if any law enforcement were injured in relation to the allegations in the indictment.

He had no answer.

Now, however, another group of defendants will have to secure lawyers and face down the federal government to contest these charges.

Already, though, the government effort to overcharge and overprosecute has faced its first pushback.

The government sought detention hearings for the defendants, and that was denied for all defendants who appeared before Magistrate Judge John Docherty on Tuesday, with personal recognizance bond being set instead.

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Probing the “Broadview Six” misconduct

Even as the Trump administration brought its new charges in Minnesota, the fallout from the grand jury-related misconduct that led to the dismissal of the charges against the Broadview Six — relating to protests outside the ICE facility outside Chicago — continued.

In a series of filings on Tuesday night, the former defendants made clear they are not done trying to hold the government accountable.

First, they revealed in connection with their request for attorneys’ fees and litigation expenses from the federal government (under the Hyde Amendment, which allows such payments where a government prosecution was “vexatious, frivolous, or in bad faith“) that the federal government “had decided it would not contest that Defendants are entitled to their legal fees, albeit ‘without admitting or conceding to the fact.’“

As criminal defense lawyer and former federal prosecutor Ken White put it bluntly, “Holy shit. The government is conceding it willl pay some amount of fees to the Broadview Six. They are DESPERATE to stop further inquiry into the case. Never heard of such a thing.“

More legally, he followed up: “Seriously, though, it’s VERY hard to make the showing to win fees on a Hyde Amendment motion, it’s very winnable for the government even when there’s bad misconduct, and it suggests that there is even WORSE stuff that hasn’t come out that they are willing to do ANYTHING to keep quiet.“

As the filing made clear, though, the former defendants did not think that admission should end matters — even as to the Hyde Amendment request. In their request, they had been seeking significant discovery about the misconduct at issue. This decision from the government shouldn’t be an end to that, they wrote:

[A]s noteworthy and rare as it is, the government’s acknowledgment that Defendants are entitled to recover their legal fees does not end the issue of discovery that is authorized under the Hyde Amendment. If anything, the government’s recognition that Defendants are entitled to their legal fees supports the need for fuller discovery.

Further, they filed two additional requests — seeking a hearing on the misconduct and asking for a special counsel to be appointed by the court to investigate matters.

In a statement provided to Law Dork, Christopher Parente, the lawyer for former defendant Brian Straw, said that the effort “is not just about six protestors who were targeted at one immigration facility.“

He continued:

It is about protecting our collective Constitutional rights, ensuring we understand the full scope and nature of the corruption within the Department of Justice at this time, and sending a signal to U.S. Attorney's Offices across the country that there will be consequences when they engage in corrupt actions. The transparency and accountability we seek today will be the foundation of a stronger democracy tomorrow.

Law Dork will follow both matters — in Minnesota and Illinois — as they develop.