On Friday, the big news was that the Trump administration was dropping its Reflecting Pool vandalism charges against former Olympian David Hearn.

“[I]nformation show[s] that the damage“ to the Reflecting Pool “was the result of a botched installation and not vandalism as initially represented by [the Department of the Interior],“ D.C. U.S. Attorney Jeanine Pirro and an assistant told the court in a Friday filing.

That big news, however, is just the beginning. Pirro might have been addressing the Reflecting Pool renovation, but Friday’s development is already making a big splash — and is going to have continued, expanding ripple effects.

Only the second Trump administration could find a way to get so bogged down in such a shallow pool.

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The felony indictment that Pirro’s office brought alleged that Hearn had caused more than $1,000 worth of damage to the Reflecting Pool. It was a facially absurd claim when it was made on July 2 in a Pirro press conference that was roundly mocked at the time.

Unsurprisingly, the indictment did not stick.

Less than a month later, Pirro and Assistant U.S. Attorney Michael P. Spence filed Friday’s motion to dismiss the indictment against Hearn.

Although not nearly the most important — or most harmful — development of the past 18-plus months, the 20-page filing might be as remarkable a document as we’ve seen in the second Trump administration.

On Friday, Pirro and Spence wrote that “additional documents“ provided by the Interior Department subsequent to Pirro’s decision to seek indictment of Hearn “indicat[ed] that damage to the Lincoln Memorial Reflecting Pool in June 2026 was the result of flawed installation by the contractor, Atlantic Industrial Coatings (‘AIC’), and the rush to complete the project prior to events associated with the America 250 celebration in the weeks surrounding Independence Day 2026.”

This, of course, is exactly what it appeared to be.

But, instead, Pirro led her July 2 news conference addressing monument vandalism, or, as she called it, “an affront to the dignity of our shared history.” Insisting it was a day of “accountability,” Pirro addressed the felony indictment against Hearn by saying that Hearn made “a deliberate act to damage the Reflecting Pool“ and alleged that he did so “forcefully and violently.”

The day she brought the case, NBC News’s Ryan Reilly asked about pre-existing problems with the renovation and Pirro waved him off, saying, “Irrespective of whether or not we think that there is some situation that preceded it, we can state and prove beyond a reasonable doubt that he caused damage and that damage is over $1,000.”

On July 31, Pirro and Spence told the court the opposite.

Explaining that they got significantly more information from Interior after seeking and getting the indictment, they stated that, after reviewing that information, it was clear that “[t]he rush to complete the project led to hasty and botched work that was not remediated before the project was finished and the fencing removed.“

The pair continued:

Pirro and Spence told the court of damage “even in the middle of the pool,” concluding that it is “difficult to attribute the widespread damage” to vandalism, “let alone to establish that fact beyond a reasonable doubt.“

In other words, they concluded that they could not “prove beyond a reasonable doubt that [Hearn] caused damage and that damage is over $1,000,“ as Pirro said they could do on July 2.

As such, they asked for the case to be dismissed without prejudice — meaning they could seek another indictment if circumstances change again.

This is, to be sure, a story about the Justice Department beclowning itself yet again.

But, there are a number of other key points here. First:

• The grand jury: As we have seen in other cases, courts are becoming increasingly more willing to open up grand jury proceedings to investigation, given the Justice Department’s behavior in the second Trump administration. NBC News’s Reilly had reported earlier in the week that Hearn would have been seeking to do so here.

• The new counsel: Hours before the motion to dismiss the case was filed, Michael Bromwich made an appearance in the case. Senior counsel at Steptoe, Bromwich is a prior inspector general at the Justice Department whose firm bio notes that, in recent years, he has “represented dozens of clients in two special counsel investigations, multiple inspector general investigations, and in numerous investigations conducted by federal regulatory agencies such as the Office of Special Counsel.” Bromwich’s presence immediately made clear that Hearn was ready to play hardball here.

Related to both of those factors, it’s important to see how wholly Pirro’s office sought to throw the Interior Department under the bus. It’s almost unbelievable to read.

Friday’s motion addressed pre-indictment information:

On July 1, 2026, United States Attorney Jeanine Pirro and senior USAO-DC supervisors met with DOI employees, including NPS and USPP personnel, at the Reflecting Pool, which remained filled with water, making it difficult to observe the condition of the floor of the entire pool, which was mostly obscured as it covered with water. The DOI employees directed USAO-DC personnel to the particular area related to the defendant’s conduct, but none of the DOI employees suggested that the poor condition of the Reflecting Pool was largely the result of failures during the process of installing the liner.

They then added, “USAO-DC was not in possession of any information from DOI indicating that any damage to the Reflecting Pool was caused by anything other than the actions of the defendant and other vandals who damaged the pool’s lining.“

They went on to note the subsequent developments:

On July 17, 2026, as a defense expert inspected the now-drained Reflecting Pool, United States Attorney Pirro and senior USAO-DC employees once again visited the site and this time immediately noted extensive damage throughout the now-drained pool. It was at that time that USAO-DC first became aware of the significant damage throughout the pool and accordingly requested all documents from DOI concerning the how the pool was lined and all records regarding the installation of the lining.

They explained that, in response, “USAO-DC received 695 megabytes of additional documents from DOI, which took days to review.“ This, they insisted, “was the first time that DOI made USAO-DC aware” of the “rushed and flawed installation process” that led to “repeated failures of the lining” and “extensive peeling of the lining.“

Of course, there’s no mention of reporting prior to that that should have made it apparent to anyone that these questions existed. Further, there is no explanation of how, even if they “immediately noted extensive damage” on July 17 and not before than, it took them two weeks to address this in Hearn’s case.

Ultimately, however, they did conclude that “these recently-produced materials significantly undermine the evidentiary basis for the indictment“ and asked for the case to be dismissed.

Which brings us to the next issue.

They did so, of course, knowing that this directly contradicted President Donald Trump’s longstanding, ridiculous claims about how his Reflecting Pool renovation was stymied by vandals — not by his and his staff’s own incompetence.

Trump, unsurprisingly, lashed out.

Trump posted that he “disagree[s] 100% with Jeanine Pirro … on the Reflecting Pool,” going on to talk about and post a picture of attempts to “emblazon[]“ 86 47 on the grass on the National Mall.

So, why did Pirro and Spence do all of this?

The answer was shoved in one paragraph on page 18 of Friday’s filing:

Jeanine Pirro and Michael Spence essentially argued in the motion to dismiss the Hearn case that any legal or ethical fallout from this indictment should lie with the Department of the Interior, not with them.

That is how bad Pirro and Spence realize this is.

Friday’s motion to dismiss the David Hearn case is more likely an opening — rather than the closing — salvo in this matter.

[Note: This report was updated and expanded to include the latest district court developments regarding the challenge to the effort to end Ethiopia TPS, with the final update at 10:20 p.m.]

Continued fallout from the U.S. Supreme Court’s June decision severely limiting challenges to the Trump administration’s efforts to end temporary protected status for many immigrants was being seen across the country this week.

A federal appeals court issued an order on Wednesday that would allow the Trump administration’s effort to end TPS for more than 4,500 people in the United States from Ethiopia to go forward, although a district court’s temporary order — that goes into effect in the aftermath of the appeals court’s order — is keeping the Ethiopia TPS in place for now.

The brief order from the U.S. Court of Appeals for the First Circuit on Wednesday reversed a district court order from April that had put the administration’s Ethiopia-related plans on hold.

Noting that the Supreme Court held that “non-constitutional claims” based on a decision to end a TPS designation were not allowed, the unsigned order stated, “Claims of that nature were the only basis for the postponement order on appeal“ here. As such, the lower court’s April order was reversed.

The order was issued on behalf of Judges Julie Rikelman (Biden), Seth Aframe (Biden), and Joshua Dunlap (Trump) — the three newest judges on the New England-based appeals court.

Although that ruling went into immediate effect, U.S. District Judge Brian Murphy is also addressing an amended complaint that the challengers filed in the wake of the Supreme Court’s June ruling. In that complaint, the challengers raise equal protection and due process claims, along with a claim that only the attorney general — not secretary of homeland security — can terminate TPS.

As a result of that and a request for an immediate administrative stay from the court, Murphy, on July 24, issued an order granting the request “as follows,” as he wrote:

To preserve the status quo, the effective date of termination of the designation of Temporary Protected Status for Ethiopia (the "Termination") will be STAYED, subject to further order of this Court or higher courts, pending resolution of Plaintiffs' renewed motion for postponement. During the period of the stay of the Termination, the Termination shall be null, void, and of no legal effect. This Order is effective immediately upon this Court's receipt of the First Circuit's mandate in African Communities Together v. Mullin, No. 26-1376.

The mandate was issued at 4:13 p.m. Wednesday, per the First Circuit’s docket, but it does not yet appear on the district court docket.

In either event, when Murphy’s court gets that mandate — reversing his April order — this new order will go into effect. At the same time, however, DOJ is seeking to have the amended complaint dismissed and has opposed the challengers’ request for interim relief.

The roughly 4,500 people directly affected from Ethiopia is not as big a number as the more than 350,000 people affected by the termination of Haiti’s TPS or the 7,000 people involved in the ending of Syria TPS — the two countries at issue in the Supreme Court’s decision — but it shows the continued and expanding harm that will likely befall any group the Trump administration decides to treat this way.

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As CBS News made clear on July 26, through Trump administration sources, the plan is “to ramp up operations to arrest and deport Haitian migrants“ now that they are free to do so. The issue, as Bloomberg put it, is that:

Or, as the Trump administration’s own State Department put it, more than two weeks after the Supreme Court’s ruling:

On the upper right, those aren’t subway lines. Those are highlighted warnings regarding crime, terrorism, civil unrest, health, and kidnapping/hostage taking.

It is a similar picture for Syria:

And, though the State Department provided the next lower risk level as to Ethiopia overall, it is important to note the highlighted crime, terrorism, civil unrest, kidnapping/hostage taking, and other risks and that the State Department does warn “Do Not Travel” to several regions throughout the country:

The horror of this is not only the global implications for those affected. Before that, there are first the inhumanity and impossible choices being forced upon these people in the United States.

As The Haitian Times covered on Monday, the questions are immediate:

“What happens to my child going to school in September, if I go?” the story quoted one person as asking.

A Monday story from WDTN 2 News — the local NBC News station that covers Springfield, Ohio — discussed the question being faced by Haitians in the city about whether to “self-deport” in light of the administration’s plans.

The Department of Homeland Security responded with the sort of immoral hate for which its social channels have become known.

In Springfield, the city whose immigrant population has been viciously targeted by President Donald Trump and Vice President J.D. Vance, the response is different.

On Wednesday, WDTN’s latest report focused on how “local organizations are stepping up to help,” highlighting a gathering in which “faith leaders prayed for and expressed solidarity with those previously living under TPS” and how “G-92, the non-profit organization made up of area churches, is asking for money and food to help families previously living under TPS.“

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On Monday, a series of developments showed the difficulty, even for Donald Trump, of using the courts to threaten journalists and manipulate the federal government to his ends.

In a trio of cases that Trump brought in federal courts in Florida, the limits of Trump’s powers were made plain.

In his defamation lawsuit against the BBC, U.S. Magistrate Judge Enjoliqué Lett, in the Southern District of Florida, ordered the Donald J. Trump Revocable Trust to turn over significant financial information the BBC subpoenaed as part of discovery in the lawsuit. The trust challenged the subpoena, but Lett rejected the trust’s arguments on Monday. Finding that the subpoena was not improper, disproportionate, or unduly burdensome, Lett ordered that:

Per Lett, the subpoena seeks, among other documents, “financial documents that reflect the Trust’s holdings and value, including documents such as Trust instrument copies, documents relating to the Trust’s financial interests, the Trust’s schedules of assets, inventories, and lists of properties held, along with documents reflecting real property held.“

Under Lett’s order, the first “substantial” production is to happen in 10 days.

In Trump’s defamation lawsuit against The New York Times and others, Trump and his lawyers will have one last chance to save their case from being dismissed, following an order U.S. District Judge Steven Merryday issued Monday in the Middle District of Florida.

In opposing the Times’s motion to dismiss, Trump’s lawyers argued that “should the Court be inclined to grant Defendants’ Motion to Dismiss,” he should be allowed the chance to “amend his Complaint to cure any such deficiencies.“

Merryday, a George H.W. Bush appointee who already struck Trump’s initial complaint, took them up on that on Monday, citing that part of Trump’s opposition, and ordering:

The plaintiff’s motion for leave to amend the complaint is GRANTED, and no later than AUGUST 27, 2026, the plaintiff may amend the complaint.

After that, the Times will have three weeks to stand on their earlier arguments or supplement their motion to dismiss. If they supplement their motion, Trump will have two weeks to respond.

Finally, in Trump’s lawsuit against the Internal Revenue Service, the former government officials who challenged Trump’s attempted “settlement” of the lawsuit filed a motion asking the court to award “$39,000.00 in attorneys’ fees for work performed by counsel from Democracy Forward Foundation.”

This filing was a follow-on effect of U.S. District Judge Kathleen Williams’s July 13 sanctions order, as one element of the inherent sanctions she issued against Trump

Because “the Court expressly finds that Plaintiffs acted in bad faith,” Williams, an Obama appointee, concluded that “[t]he Court finds monetary sanctions appropriate under its inherent authority and prerogative to police the matters and litigants who avail themselves of its jurisdiction.” Specifically, she continued, two sets of amici — one group of former government officials and public interest organizations, as well as a group of former judges — “if they wish, may file, within fourteen (14) days of this Order, a memorandum regarding any appropriate reimbursement.”

One of those requests came in on Monday afternoon.

[Update, 10:25 p.m.: A second request, on behalf of the former federal judges amici, was filed on Monday night. They are seeking a smaller amount, including “nominal fees of $1 for each of the four firms that represented them,“ as well as $4,606.83 for out-of-pocket expenses incurred in the representation:

In their filing, they noted that “[a]n award is especially appropriate in this sui generis case, where there was a lack of adversity between the parties and the need for an independent entity to provide the Court with information and legal analysis is particularly acute.“]

Standing alone, these are just case developments like happen every day — although the order in the BBC case is significant and obviously Trump’s underlying actions in the IRS case are in a league of their own. But, Monday’s developments combined to serve as a reminder that, despite Trump’s dreams of intimidation and control, he can only do so much in our system unless the other branches help him along the way.

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 Monday, these are the tabs I am closing:

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The degradation of the Justice Department in the second Trump administration is clear, is having immediate effects, and will have long-term effects. Just how degraded DOJ has become was on full display in the Southern District of New York on Thursday.

To get why Thursday’s happenings are so central to understanding how bad things have gotten, know that the U.S. Attorney’s Office for the Southern District of New York is widely seen as one the preeminent U.S. Attorney’s Offices in the nation. Alumni of the office would say it was the key office, and it was openly (sometimes derisively) referred to as the “Sovereign District of New York,” due to the high view that members of the office held of the office.

Now, however, things look different. Over the past two weeks, the office tried to subpoena reporters from The New York Times and ensnared some of the reporters’ family members in a second set of subpoenas for phone records. When challenged, the office’s ability to carry out basic legal research and adhere to general ethical standards were called into question by U.S. District Judge Arun Subramanian in a sharp, hour-long hearing that ended with the Trump administration withdrawing the subpoenas rather than face the almost certain likelihood of Subramanian quashing them.

Inner City Press’s Matthew Russell Lee covered the hearing live on Bluesky, and Courthouse News Service covered the hearing as well, in addition to The New York Times’s report.

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It was an altogether horrifying appearance in court for Deputy U.S. Attorney Sean Buckley, as well as Kevin Sullivan, a lawyer in the office who was initially sitting in the gallery but who, Lee reported, Subramanian called up to sit at counsel’s table because he was “on all the pleadings” — apparently relating to the phone provider subpoenas.

From the opening of the hearing, though, Subramanian, an Biden appointee, made it clear where things were ending.

After Buckley initially said the government didn’t want to withdraw the subpoenas but instead preferred to keep them held in abeyance while the investigation continued, Subramanian shot back, “Either we can quash the subpoenas, or you could withdraw the subpoenas,” as reported by the Times’s Michael Grynbaum and Jonah Bromwich.

But, the more fundamental problem, as Subramanian soon thereafter noted, is that “[s]ubpoenas are the last step, not the first step, but the last step” when dealing with efforts to subpoena reporters, as Courthouse News’s Erik Uebelacker reported.

Subramanian specifically referenced The New York Times v. Gonzales, a 2006 decision from the U.S. Court of Appeals for the Second Circuit — where appeals from New York’s federal courts are heard — laying out standards for addressing efforts to subpoena reporters’ phone records. Addressing a qualified privilege for journalists, the government in Gonzales had attested that it had “reasonably exhausted alternative investigative means“ of getting the information sought. The Second Circuit held that at least that step — even under compelling circumstances — was necessary before seeking reporters’ records.

Here, though, in opposing The New York Times’s motion to quash the subpoenas, the government acknowledged that “there are particular investigative steps that the Government is seeking to take in the near term that the Government anticipates will be material to this Court’s assessment of application of any qualified reporter’s privilege here.”

Hence, Subramanian’s “not the first step, but the last step“ comment.

That, however, was not all.

As Lee reported, Buckley said the subpoenaing of the phone records of the mother of a Times reporter and spouses was “an error,” adding, “We own it. We used a public source database.”

At that point, Subramanian shot back, “It seems like the inadvertent errors and ‘we should’ve done things differently’ are piling up,” as Courthouse News reported.

Then, regarding the phone records subpoena, Subramanian called Sullivan up, and matters got worse …

“Later we did legal research.”

Subramanian went so far as to note, per Lee, that he would ordinarily issue an order to show cause why he shouldn’t issue sanctions in a situation like this. Buckley pointed to a footnote in their filing addressing the non-disclosure order sought in the matter, Subramanian called that insufficient to resolve his concerns, and Buckley promised it would never happen again.

Somehow, it still got worse. When Buckley then told Subramanian about finding the Gonzales case — after seeking and getting the subpoenas — the judge’s question and Buckley’s answer spoke volumes:

Judge: You were not aware of the leading case in this field?
Buckley: No.

There was also further discussion about DOJ’s non-disclosure arguments and blame-shifting surrounding them, given that, as Subramanian noted …

“[Silence].”

After Buckley a short recess, everyone came back and DOJ agreed to withdraw the subpoena.

But, that was not the end of it. In addition to DOJ lashing out at Subramanian and insisting “this investigation remains ongoing,” the government’s actions here did have consequences for the Trump administration.

Subramanian issued an order later that, first, confirmed on the record that the Government withdrew the subpoenas.

Additionally, though, he also issued three other provisions in the order.

In sum: DOJ is ordered to come to Subramanian if they want to try with these subpoenas again; Subramanian will retain jurisdiction over "any related matters in this investigation," subject to further briefing on the scope of that retention; and Subramanian ordered DOJ to provide the court with additional information about the non-disclosure request by July 27.

I wrote in March about how “DOJ is barely even a functional law firm at this point.“

Over the past four months, there have been countless examples that it is not a functional law firm. Thursday provided the clearest evidence, however, of the wide spread of that dysfunction and, further, the spread of lawyering that raises both ethical and competence questions.

A federal judge who has regularly clashed with the Trump administration over the past 18 months on Wednesday called out Defense Secretary Pete Hegseth’s recent “High-T Department of War” announcement, asking how those plans relate to and contrast with the administration’s ban on transgender service members.

In a two-paragraph order, U.S. District Judge Ana Reyes, overseeing one of the challenges to the administration’s anti-trans military ban, took judicial notice — essentially, put something in the record because its existence is a fact — of Hegseth’s July 15 video announcing the testosterone testing requirement and hormone therapy plan.

Among other questions, Reys has asked the Trump administration to explain “the [Defense] Department’s basis for treating trans men and other service members differently between this new policy and the Military Ban.”

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In the video, Hegseth announced mandatory annual testing of service members 30 and older for testosterone and voluntary testing for those younger, as well as the “choice” to receive “testosterone replacement therapy” (TRT) if recommended.

“This initiative, it is not about artificial enhancement, it’s about restoring and optimizing your natural capabilities, protecting your longevity, and ensuring you have the biological foundation required to sustain the fight,“ Hegseth insisted.

A week later, Reyes, a Biden appointee, had questions.

Noting in Wednesday’s order that “[t]he Military Ban states that ‘the Armed Forces must adhere to high mental and physical health standards...without the benefit of routine medical treatment or special provisions.’ Exec. Order No. 14183, 90 Fed. Reg. 8757, 8757 (Jan. 27, 2025),“ Reyes stated, “The Court must assess the impact of this newly announced policy on the parties’ positions.“

She then ordered the transgender people challenging the ban and the Trump administration to address six issues raised by Hegseth’s announcement in their already scheduled briefing:

• (1) medical guidelines associated with routine screening for testosterone deficiency in the general population and in individuals with symptoms and signs of testosterone deficiency;

• (2) medical guidelines for monitoring the administration of TRT;

• (3) the similarities and differences in administering TRT, both medically and logistically, for trans men compared to other service members, including cis individuals;

• (4) the medical costs associated with screening for testosterone deficiency and providing TRT to service members who do not identify as trans;

• (5) the Department’s basis for treating trans men and other service members differently between this new policy and the Military Ban; and

• (6) any other information or clarification the parties wish to present on this topic.

She also “invite[d] the parties” to rely on expert declarations to be submitted as part of their responses.

The U.S. Supreme Court — over the objection of the Democratic appointees — allowed the trans military ban to go into effect in May 2025 as litigation proceeds, although it gave no reasoning for its decision. Reyes is overseeing one of those cases.

The U.S. Court of Appeals for the Fifth Circuit on Monday agreed to have the full court review the constitutionality of the federal ban on firearm possession by a person previously convicted of a felony.

It will not, however, be a Second Amendment argument. Instead, the court will be considering whether the ban violates the Commerce Clause.

If you’re confused, don’t worry. Judge Stephen Higginson has you covered.

After a panel upheld the law against a Second Amendment challenge in early June, the defendant, Curtis Squire, on June 16 asked for the full court to rehear the matter and consider a Commerce Clause argument that the panel had noted was “foreclosed” by circuit precedent.

Two days later, the Supreme Court handed down its decision about a different part of the law — 18 U. S. C. §922(g)(3) — that had barred occasional marijuana users from possessing firearms. In holding that that particular use of the law is unconstitutional under the Second Amendment, as I wrote at the time, Justice Clarence “Thomas, unsurprisingly, would go further. He wants a Commerce Clause case challenging all of §922(g).“

At the end of June, the federal prosecutor’s office in New Orleans opposed the request for en banc review, noting, “The panel correctly held that Squire’s Commerce Clause challenge was foreclosed. Squire fails to show the panel’s decision conflicts with a decision of this Court, the Supreme Court, or any other court of appeals.“

On Monday, a majority of the Fifth Circuit announced they were going to consider the matter anyway. (Thanks to Gabriel Malor for noting the order.)

As Higginson, an Obama appointee, made clear, this is a wild escalation of how quickly courts are seeking to move the law rapidly to the right. As I put it on Bluesky, they're apparently not even waiting for a new case to take up Thomas's reactionary requests any longer.

Centering state supreme courts

On July 17, Slate’s Mark Joseph Stern highlighted a July 15 Hawaii Supreme Court opinion that is getting some attention for its treatment of the U.S. Supreme Court.

The opinion from Justice Todd Eddins is an important decision about how courts — specifically in the case, Hawaii’s Constitution — should treat challenges to scientific evidence that had been relied upon at a trial but was later discredited. The court held that it should be treated as false evidence, not “new” evidence. The ruling makes overturning a conviction secured using that evidence easier.

But, and as Stern detailed, Eddins took a disagreement with the concurring justices to raise “a much broader critique“ about its suggested reliance on the U.S. Supreme Court.

As Stern explained:

Eddins accused the concurrence of trying to graft the U.S. Supreme Court’s interpretation of federal due process onto the Hawaiʻi Constitution, then widened the lens to explain why Hawaiʻi should reject SCOTUS’s conception of more than just due process. “What this court has done to constitutional rights, democratic institutions, and the rule of law,” Eddins wrote, “explains why Hawaiʻi’s Constitution takes no instruction from it.”

Eddins continued, and I strongly suggest that anyone interested check it out at pages 70-80 of the opinion. For our purposes, I want to pull out one quote from Eddins that explains why he was doing this:

Reading this, I was struck by — pared away from the specificity of the moment — how much this passage reminded me of the work of another jurist: Judge Jeff Sutton.

The judge on the U.S. Court of Appeals for the Sixth Circuit, who is taking senior status on October 1, literally wrote the book on “State Constitutional Law” (and taught me about it while I was in law school).

As the summary of the casebook notes, “A central theme of the book, explored in the context of a variety of constitutional guarantees, is that state constitutions provide a bountiful source of rights independent of the federal constitution ….“

Although Sutton and Eddins undoubtedly would disagree on how those rights are interpreted, they both, surely, would agree on the importance of that judgment being an independent one.

After reviewing the actions of the 6-3 U.S. Supreme Court, Eddins wrote, “That’s not all life tenure and zero accountability have produced lately. But it’s enough,” concluding, “Article I, section 5 [of the Hawaii Constitution] needs no part of this. The Hawaiʻi Constitution was built to stand on its own. And so it does.“

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 Monday, these are the tabs I am closing:

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More than 30 years after the Clinton administration successfully pressed Congress to give it more authority to use classified information to deport people it suspected of terrorism, the Trump administration took the first case to the Alien Terrorist Removal Court this past week.

Under the law, the Justice Department’s application to the court is submitted under seal and without notice to the person who they are seeking to deport.

In this first application ever filed to the ATRC, the federal judge assigned to sit on the court concluded after a July 16 hearing that the administration had more work to do — despite the substantial powers given to the administration under the law that established the court.

The application, which requires a certification from the attorney general or deputy attorney general that the requirements of the law are met, was submitted to the court on July 15 — the same day that Deputy Attorney General Todd Blanche, the acting attorney general and President Donald Trump’s nominee for attorney general, was testifying before the Senate Judiciary Committee regarding his nomination.

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On Friday night, Seamus Hughes — who runs CourtWatch — caught the filings and later wrote about it here. Over at Politico, Kyle Cheney and Josh Gerstein followed with a report earlier Saturday.

The court — created as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) — consists of five district court judges who are selected by the chief justice. Under the law establishing the ATRC, the Justice Department needs to show three elements to proceed to a removal hearing and they need to be certified to “by the Attorney General or the Deputy Attorney General.” They are:

“An application under this section shall be submitted ex parte and in camera, and shall be filed under seal with the removal court,“ the law continues.

If a judge on the court “finds that there is probable cause to believe“ that DOJ showed those three items, then they “shall” grant the application, which then leads to an “expeditious” and “public” removal hearing at which the person who is targeted for deportation does have some limited rights. If the judge denies the application, they are to “prepare a written statement of the reasons for the denial.“ Any appeals go to the U.S. Court of Appeals for the D.C. Circuit.

But, again, the court’s jurisdiction had never been invoked until July 15.

There is a good reason for that: Many people have thought that the law created an unconstitutional court, at least in some circumstances. One of the first law review articles published about the law, from David P. Kopel and Joseph Olson, opened with a not-so-subtle quote:

The quote comes from Leo Tolstoy’s War and Peace. Substantively, the article, “Preventing a Reign of Terror: Civil Liberties Implication of Terrorism Legislation,” went on to detail concerns with the ATRC, including that “[n]o evidence may be excluded because it was illegally obtained, no matter how flagrantly the law was broken.”

As even a 1998 Senate majority staff report, issued under Republican Sen. Jon Kyl, acknowledged — while criticizing DOJ’s “failure” to use the court even then as “disappointing” — “the wrong case“ brought to it “could mean the constitutional nullification of the ATRC.“

The report went so far as to detail, via footnote, what the “most likely constitutional challenge” would be:

The criticism did not die down — despite the fact that it was not being used. Fifteen years after the law’s passage, Stephanie Cooper Blum wrote, “Many scholars have argued that the ATRC deprives aliens of procedural due process under the Fifth Amendment; hence, its non-use may reflect a fear that if it was used to remove aliens based on classified evidence, it may be struck down as unconstitutional. In this respect, it may be a case of ‘use it and lose it.’“

In addition to the constitutional questions, legal changes — including the passage of the PATRIOT Act in October 2001 — decreased the need to rely on the hypothetical use of the ATRC.

Until, apparently, this past week.

In response to DOJ’s application, filed on July 15, Judge Joan Ericksen, the chief judge of the ATRC, held a hearing the next day. At the hearing, however, DOJ failed to convince her to grant the application. Instead, she wrote in the order, issued on June 16, that DOJ’s “answers persuaded the Court that the Government could benefit from the opportunity for more thoughtful consideration.”

Ericksen, a George W. Bush appointee to the District Court of Minnesota, went on to order DOJ to “supplement its Application” with “any further factual or legal analysis” by Wednesday.

In the meantime, there is still no public information about who is the subject of the application.

The ATRC‘s makeshift website is its own sign of the court’s disuse. It posted the public portion of DOJ’s application — which is simply information that it was filed on July 15 by the Justice Department’s National Security Division — and Ericksen’s order in the case on the simple website below the “Court Rules and Procedures” section, which is itself simply a link to the same statutory provision website Law Dork linked to above. The bottom of the site notes, “This site is maintained by the United States District Court for the District of Columbia on behalf of the Alien Terrorist Removal Court of the United States.”

The Federal Judicial Center, however, still does not reflect the latest development. In its description of the court, it states, “As of 2026, the removal court had never received an application from the Attorney General for the removal of an alien terrorist, and had therefore conducted no proceedings.”

This was expanded after initial publication to provide more information about the Alien Terrorist Removal Court and DOJ’s application, with the final update at 1:50 a.m. July 19.

If you know more about the Justice Department’s use of the Alien Terrorist Removal Court, please reach out to Law Dork, via Signal, at crg.32

Law Dork on MS NOW

I was on MS NOW on Saturday morning, discussing this week’s congressional testimony from Justices Elena Kagan and Amy Coney Barrett, which was ostensibly about the court’s budget request but became about bigger court issues and questions — including ethics.

It was great to join Jacob Soboroff, along with Hofstra School of Law Professor James Sample, on Connect to discuss this issue, which I’ve covered repeatedly over the years here at Law Dork.

Also, I must say it’s great for Jacob to have a show like this, that can really spend some time on important issues like this that don’t get the coverage they deserve and need.

Check it out!

You did not need to watch Wednesday and Thursday’s Senate Judiciary Committee hearings over Acting Attorney General Todd Blanche’s nomination to be attorney general to know that he should not be confirmed as attorney general.

President Donald Trump’s former criminal defense lawyer, Blanche has been involved in many of the Justice Department’s actions that were political goals aimed at pleasing Trump, inappropriate legal moves, or some combination of the two. From his first day on the job, Blanche has made it clear he is in office to serve Trump, not the people.

What’s more, since then-Attorney General Pam Bondi left office on April 2 and Blanche took over as acting attorney general, his auditioning for the permanent job showed just how pliable he plans to be — calling news conferences regularly and issuing reports to get Trump’s attention and show just how loyal he is to Trump, with little to no regard for the law.

Blanche is, as he said Wednesday, “his lawyer.”

Of course, that loyalty had reached a crescendo with his May 18 announcement of the “Anti-Weaponization” slush fund and his follow-up purported immunity grant. As U.S. District Judge Kathleen Williams put it on July 13, referring to Blanche and Associate Attorney General Stanley Woodward:

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.

More broadly, of DOJ’s actions, she concluded:

In abdicating its responsibility to zealously defend the interests of the United States, the Government entered into a “settlement” that deviated from its litigation posture in similar actions, disregarded DOJ policies, and accomplished objectives beyond those authorized, as well as those specifically prohibited, by law.

These are not the actions of or advanced by an attorney general. These are the actions of a lap dog.

Like Emil Bove before him (and others since), however, Trump seeks to reward his lawyers. While others got judgeships, Blanche has proven to Trump that he can handle one of the most important roles in Trump’s effort: To help run a government of Trump, not of laws.

House Speaker Mike Johnson has made it abundantly, embarrassingly clear that he is merely a stand-in for Trump — an abdication of his responsibility to his office, to Congress, and to the United States — but he luckily has no role here.

The Senate does have a role, however, and it is a key one. A majority must stop Todd Blanche from becoming attorney general.

As if the stakes weren’t clear enough, Trump himself is working overtime to do so, having scheduled a prime-time speech for Thursday night relating to “election integrity revelations,” as Steve Bannon put it. Republicans are “scared shitless” about Trump will say, as Politico reported, given Trump’s tendency to veer off script and into unhinged rants lying about the outcome of the 2020 election.

Beyond that fear, though, is the very real question about the script — and what election-related efforts Trump might be prepared to announce that would require the defense of the Justice Department in any litigation and would likely involve DOJ employees, including from the FBI.

Although they are limited in what they can do and although, as suggested, there will be challenges to anything that goes beyond the federal government’s authority, Blanche’s nomination — and loyalty to Trump — is particularly relevant and a factor that should not be glossed over when Trump does give his speech.

And that’s something Trump is willing to unveil while Blanche’s nomination is before the Senate Judiciary Committee. Just imagine what Trump might put to the compliant Blanche if confirmed.

Senate Republicans should stop Blanche. They likely won’t, though.

If they don’t, the voters will have to respond accordingly. Then, the next Congress will have to reassert its role in the constitutional order — holding Trump, Blanche, Bove, and others accountable for their actions.

The Trump admin is going after law enforcement

On Thursday, the Justice Department filed its opposition to D.C.’s motion to dismiss the Trump administration’s lawsuit challenging the District’s bans on AR-15 semi-automatic rifles and silencers.

In D.C.’s motion to dismiss, the District made clear that DOJ’s scheme in this litigation is to misuse a federal law aimed at addressing police misconduct to advance their pro-gun aims:

On Thursday, however, DOJ doubled down in its lawsuit against the Metropolitan Police Department of D.C. Here’s the introduction:

Law Dork is following this case, along with the cases the U.S. Supreme Court granted for review next term addressing similar bans in Cook County, Illinois, and in Connecticut, and will have more reporting as appropriate.

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 Thursday, these are the tabs I am closing:

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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.