Early History

The idea that a source of law is not “trapped” or “frozen” in amber dates back at least to the 1960s, but the most salient early instance occurred in the 1974 case Richardson v. Ramirez. The Supreme Court, per then-Justice Rehnquist, upheld the constitutionality of felony disenfranchisement laws through an analysis often viewed as originalist. In brief, the court held that felony disenfranchisement could not in itself violate the equal protection clause because that practice not only existed at the time of the clause’s adoption but also was explicitly contemplated in Section 2 of the 14th Amendment.

In dissent, Justice Thurgood Marshall, joined by Justice William Brennan, wrote: “But ‘constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber.’” The quotation there is from Dillenburg v. Kramer, an influential 1972 U.S. Court of Appeals for the 9th Circuit ruling by Judge Shirley Hufstedler. In deeming the issue of felony disenfranchisement serious enough to convene a three-judge court, Hufstedler had argued that the equal protection clause encoded a dynamic principle whose implications could change over time, particularly with respect to voting rights. All three of these jurists – Marshall, Brennan, and Hufstedler – were leading liberals of the era.

From then on, the amber metaphor made regular appearances within the literature on felony disenfranchisement, which was where I first encountered it. The metaphor also appeared occasionally in some other legal contexts. For instance, law professor Akhil Amar invoked amber as a way of criticizing some of Justice Antonin Scalia’s overly stringent forms of Fourth Amendment originalism. Amar instead favored an approach that would allow for greater flexibility and afford more power to juries.

Eventually, in 2021, a footnote in a separate opinion by Justice Neil Gorsuch quoted Professor Stephen Sachs’ use of the metaphor. As Gorsuch related, Sachs has the view that the rules of personal jurisdiction are general law and so adjustable by Congress, rather than “fixed in constitutional amber.” Like Amar, Sachs is an originalist scholar, and he used an amber metaphor to describe a source of law that vested decisional authority at least partly in non-judicial actors who could update for new events.

Apart from some scattered exceptions, the metaphor was essentially absent from judicial opinions, and it went decades without appearing in the Supreme Court. The amber metaphor, we might say, had itself become frozen in amber.

Amber Escaping

In United States v. Rahimi, in which the court uphold a bar on guns for those with domestic-violence restraining orders, the Supreme Court loosened its Second Amendment analysis, embracing “principles” and “common sense” rather than the strict historical analysis that had apparently guided recent originalist rulings. To capture its new approach, the court, per Chief Justice John Roberts, used a vivid metaphor: “[S]ome courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” The chief justice cited nothing for that statement, raising the question of whether he knew of the metaphor’s history.

So far as I am aware, Rahimi was the first time that the amber metaphor appeared in a Supreme Court majority opinion. And not only did it appear, but it featured in a critical passage describing the court’s pivot away from stringent originalism.

Other justices immediately seized on this expression. In Rahimi itself, Justices Sonia Sotomayor, Neil Gorsuch, Ketanji Brown Jackson, and Amy Coney Barrett all penned concurrences that quoted the majority’s amber metaphor. Following the majority, three of those justices (Sotomayor, Jackson, and Barrett) cast law trapped in amber as self-evidently bad. Gorsuch, by contrast, wrote of “the people’s directions in the Constitution—directions that are ‘trapped in amber.’”

The metaphor’s importance was not lost on the lower courts. Before Rahimi, lower court decisions on whether the law was “trapped” or “frozen” in “amber” numbered in the dozens. Now, just a few years after Rahimi, they number in the hundreds. Legal scholars have followed suit, with “amber” references and quotations spawning in law reviews nearly as fast as the flies of summer. The amber metaphor then reappeared in Trump v. CASA (concerning whether district courts could issue nationwide injunctions), with both the majority and the dissenters agreeing that equity is not trapped in amber.

The Amber Term

Something new happened this term. By my count, the amber metaphor recently appeared in six different Supreme Court cases, including two majority opinions. Every instance cited Rahimi or a case quoting Rahimi.

The most important example came in the Federal Reserve case, Trump v. Cook: “We see no reason … why our central bank ought to be trapped in amber any more than any other aspect of our constitutional scheme.” Not only did this metaphor-based argument attempt to explain why the unitary executive theory did not apply to the Federal Reserve, but it also suggested that the amber metaphor is applicable to “any other aspect” of constitutional law.

Another example came earlier in the term and, interestingly, involved a statute. Barrett wrote for the court in Watson v. Republican National Committee, the mail-in ballot case: “But historical practice, detached from statutory text, is not controlling. Statutes do not ‘tra[p] in amber’ every contemporary practice on the same subject matter.” So the amber metaphors can help decide statutory cases, too.

A third important example arose in Trump v. Barbara, the birthright citizenship case. Justice Brett Kavanaugh’s partial concurrence and partial dissent concluded that the court could recognize new exceptions to the principle of birthright citizenship. As he wrote: “This Court’s constitutional precedents do not treat the 1791 or 1868 exceptions as a closed set ‘trapped in amber.’” Of all the recent examples, this one may come closest to Justice Marshall’s early use of the metaphor in Richardson. In both instances, a practice that had once been fixed in amber-like law might be so no longer.

Three dissenting opinions this term also discussed amber. In the Federal Trade Commission removal case Trump v. Slaughter, Justice Sonia Sotomayor’s dissent asked a sensible question: “When, exactly is our law ‘“trapped in amber,”’ and when is it not?” (Sotomayor was quoting Cook, which in turn quoted Rahimi.) In Cisco Systems v. Doe, where the court held that the Alien Tort Statute did not create new rights of action to remedy violations of international law, Sotomayor cited Rahimi but implicitly invoked Watson’s use of amber in a statutory case, writing: “There also is no indication that Congress intended to ‘tra[p]’ the ATS ‘in amber.’” Finally, Jackson in Wolford v. Lopez used the metaphor to impugn the court’s approach in a Second Amendment case as resulting “in a ‘law trapped in amber.’”

If the law is not trapped in amber, the Supreme Court seems to be.

Metaphorical Meanings

The amber metaphor is powerful not just because it is vivid, but also because of its ambiguity. Of course, any metaphor invites interpretation. But the amber metaphor is extra indeterminate because the court deploys it negatively, yielding an indirect argument. The court tells us what the law is not, without quite telling us what it is.

A comparison might be drawn with the rhetorical trope of litotes or understatement. Rather than assert that “she’s the best in the class,” someone might say, “She’s no slouch.” Understatement is effective in part because it is indirect, inviting the listener to join in a shared understanding without provoking quibbles about details.

To many justices and readers, a “law trapped in amber” is clearly bad. But why? Amber is a beautiful substance and widely prized. To be “trapped,” however, is not good. And to be trapped “in amber” connotes a more specific image: an insect or other small creature encased, long dead – and forever observed.

The chief justice’s use of the metaphor in Rahimi connotes this image subtly, without spelling it out. Perhaps he could do so because, thanks to movies like Jurassic Park, many of us readily envision what Judge Hufstedler specified in the 1970s – namely, “insects” that have been “frozen” and “trapped in Devonian amber.”

Because the amber metaphor operates indirectly, it invites the reader to imagine its antithesis. Presumably a law that is not “trapped in amber” is free and at large. It may be capable of moving, growing, reproducing, learning – even stinging. It is not just observed and beautiful but doing things. It is alive.

The amber metaphor thus appears to be an understated way of describing a “living” law – or, more familiarly, a “living Constitution.” That interpretation comports with the metaphor’s 1970s association with liberal jurists, but it is also jarring when associated with the most conservative Supreme Court in many decades. Scalia, for instance, was fond of saying that the Constitution is “dead, dead, dead.”

Perhaps the court is embracing the amber metaphor because it conveys the same meaning as the idea of a living Constitution without clearly connoting liberalism. It is a discreet way for right-leaning jurists to embrace ideas they and their allies have long opposed. I have argued that conservatives engaged in legal realignment often borrow ideas from liberals of prior generations. The chief’s use of a metaphor once deployed by Justice Marshall can likewise be viewed as a form of intergenerational borrowing.

Yet understatement matters, and the amber metaphor is not quite the same as a full-throated endorsement of living constitutionalism. Because it is ambiguous and indirect, it leaves the court room to differentiate itself from the liberals of the past. Perhaps the court really means that while the law is not entirely “trapped in amber,” parts of it might be. The meaning or principle of the law could be fixed in legal amber, whereas its applications are not. But because the metaphor does not in itself tell us what, if anything, is fixed, it remains highly interpretable.

Ultimately, the amber metaphor is more evocative than illuminating. If it meant only to disclaim the view that law is totally dormant, then it would provoke little controversy. But to the extent the metaphor suggests a buzzing insect, it makes the “living tree” of Canadian jurisprudence seem placid by comparison. By inviting interpretation, the amber metaphor effectively substitutes for legal analysis. In that respect, it resembles the court’s recent invocations of “common sense.”

The amber metaphor may turn out to be a mere placeholder. It helps jurists reach agreement while slightly dazzling their readers – all without taking any specific stand. Once the court figures out more directly and precisely what it means to say, it may find the metaphor less useful. Only then would the justices themselves break free, leaving their metaphorical amber behind.

Cross-posted from SCOTUSblog.

The Constitutionality of Inter-Branch of Appointments, by Chad Squitieri. An originalist defense.

And my Hall Lecture, Beyond Tit-for-Tat, is finally up in draft written form. From the setup:

Constitutional law is about setting rules of the game – rules that bind or empower one faction or party just as much as they will empower the next one, and ideally rules that help ensure that our society is a democratic and free and prosperous one.

These rules exist across all kinds of constitutional law. Legislative power: if it takes 51 or 60 votes to pass legislation when one party has the majority, it should take that many votes to pass legislation when another party has the majority. Executive power: the powers that one party’s president has to act in the absence of legislation are the same powers the other party’s should have as well. Judicial power: if one administration’s initiatives can all be enjoined as unlawful by the district judges in a single courthouse in one part of the country, the same should be able to happen to the next administration’s. Free speech: if enemies of the regime are constitutionally protected from retribution, so too should be the enemies of the next regime. And so on.

Now of course, the reality is that our government does not always live up to those ideals. Sometimes people break the rules. But this is a particular challenge in constitutional law, because unlike in other kinds of law, there are no “separation of powers police” to enforce the separation of powers. Constitutional law is supposed to constrain the police themselves. And yes, there are courts, but they are part of the separation of powers too, and many of the same questions go to what the courts can do and who must listen to them, and what happens when they don’t.

What is more, we have political parties, and often the members of our government care more about their political party than they do about the separation of powers. This leads to the challenge: sometimes one “side” violates a constitutional rule, or a constitutional norm, and has enough power to get away with it, at least for a while.

But only for a while. One day, the other “side” regains some power, and has to decide what to do about the norm. Give up and declare the norm abolished? This approach rapidly reduces constitutional law to the lowest common denominator.^[8] Few constitutions could survive it. Forgive and forget, giving the devil the benefit of law even if he would never do so for you? This approach famously lets “activists vote twice,” and if repeated – with one side unbound by any norms while the other side unilaterally respects them – might be one of the few things lower than the lowest common denominator.

My topic here is a strategy that tries to respond to these problems. Although, as you’ll see, I worry it may create problems of its own. This strategy is a common refrain that I hear more and more when I talk to scholars, lawyers, and government officials on both sides of the aisle about the current state of things, and that refrain is, “tit-for-tat.” Limited retaliation, even in violation of a norm, might be the way to vindicate the norms we wish to see in the long run.

The potential examples for this logic are as wide-ranging as our constitutional norms. Perhaps you believe, for instance, that all Supreme Court nominees ought to receive an up-or-down vote from the U.S. Senate or at least ought not to be denied one solely because of the President who appointed them. Perhaps you believe that should be the norm. But if Republicans violated that norm to defeat the nomination of Merrick Garland, what should happen to them the next time a Republican nominee faces a Democratic senate? Tit-for-tat. An eye for an eye.

Or perhaps you believe that the government should not tell private platforms what speech they should carry, even when the government hides the threat of retaliation behind a veil. But if Democrats violated that norm to push conservative claims off of social media, what should happen to them when Republicans hold power over the FCC and have the power to push a liberal comedian off the airwaves? Tit-for-tat? An eye for an eye?

Perhaps you believe that judges should follow stare decisis – letting previous decisions stand even if they believe the cases were wrongly decided. But what if you are a judge, and watch your colleagues overturn a decision you thought was profoundly right, and are then confronted with a decision you think is equally wrong. Tit-for-tat? An eye for an eye?

In each of these cases – and the many others you can imagine – I must emphasize that the retaliator is not necessarily being cynical. The promise of tit-for-tat, as we will see, is that it might be the best hope of restoring long-term cooperation.

I have encountered these tit-for-tat arguments increasingly in recent years, made by people I know believe strongly in constitutional norms. I heard them from principled colleagues on President Biden’s Commission on the Supreme Court. I hear them again from principled friends serving in the Second Trump Administration. It is because they believe strongly in principles that they are upset by the violations of them, and willing to temporarily violate their own principles in the hopes of one day restoring them.

Now you might be tempted to disregard this kind of argument as a form of hypocrisy. “Give me chastity and celibacy,” Augustine supposedly said, “but not just yet!” But I don’t think that’s entirely fair. Peace is better than war, but George Washington told us that “to be prepared for war is one of the most effectual means of preserving peace.” The appeal of tit-for-tat is that it promises both retaliation and cooperation. A punishment, and then a restoration. War, for peace’s sake.

You might also think this kind of argument simply doesn’t apply to constitutional law. Aren’t you a textualist originalist, Professor Baude? What has game theory to do with the supreme law of the land? But as many scholars have observed, what we might call “norms” or “conventions” are an important part of our constitutional law, and practice, strategy, and equilibria tells us about when such conventions survive or die. Moreover, even beyond norms, some rules of constitutional doctrine are premised in part on the promise of consistency or fairness over time. That’s true of content and viewpoint neutrality, of equal protection, and so on.

And even more fundamentally, even to a textualist, even to an originalist, the efficacy and legality of our constitution itself comes from practice. If the Constitution doesn’t coordinate our behavior in some way, it isn’t really the supreme law of the land after all. Just ask the Articles of Confederation or the British Empire in the American colonies. At bottom, compliance with the law is just another norm. So if we don’t have a good understanding of when our other constitutional norms survive, die, or change, we won’t have a good understanding of the fate of the constitutional order itself.

We're back from vacation and chipping away at the summer backlog. Before the substance: listeners weigh in on our AI-generated cover art, Claude's new prediction scorecard grades our respective forecasting records, and Justices Kagan and Barrett take the Court's budget request — and some docket-terminology talk — to Congress. Then we spend the rest of the show on T.M. v. University of Maryland Medical System Corporation, in which the Rooker-Feldman doctrine, pronounced dead in the Green Bag two decades ago, proves alive enough to reach state-court judgments still on appeal. We try to figure out what the doctrine actually is, whether § 1257 or § 1331 is doing the work, and why the Court's committed formalists split down the middle. Along the way: insider trading as a University of Chicago virtue, a concurrence that may be playing a long game on federal habeas, and a dissent that's "exactly correct and not the law."

Comments welcome!

Is this court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? You know, yes. But is this court the kind of puppet for the current administration? I think definitely not.

I don’t see this as a court that is just like, ‘We’re just going to rubber stamp what the current administration does.’ You know, quite the opposite. I think that that is a bad rap.

To my mind, this is exactly the right way for someone who is left of center to evaluate and criticize the Supreme Court. To wit: “Two different things are true: (i) the Supreme Court is very conservative, and (ii) the Court, in tandem with the rest of the federal judiciary, has substantially checked the Trump Administration.”

I have suggested that many people have trouble “seeing two things at once” in this context. It is often easier to flatten this Court or render it unidimensional, rather than grapple with its tensions and even contradictions. Partisans, moreover, often have good rhetorical reasons for taking stark positions.

Fortunately, Justice Kagan is showing that it is still possible to argue about the Court in a way that is both nuanced and accurate.

Overruled from The Chair: A Study in Umbesetzung. Tom Smith joins the anti-Erie chorus. Partly written by AI, and strange — knowing Smith, I am not sure if the two are related!

Two from Zach Price: Attempted Administrative Entrenchment in Trump’s Second Term, and Symmetric Federalism — both, in different ways, on the what-goes-around-comes-around principle in structural constitutional law.

My chapter is entitled “A Court of Two Crises,” and it reflects on the twin challenges recently faced by the Supreme Court and the judiciary as a whole. One crisis has to do with the risk that a populist presidency might shatter the rule of law. The second crisis stems from the courts’ need to preserve their own legitimacy even as they too are caught up in political and legal polarization.

Here is the gist of where the argument goes:

[If the Supreme Court’s] critics respond by weakening the courts, they may only set the stage for even greater populism and attendant disregard for the rule of law. For it is hard to deny that the federal judiciary, overseen by the Supreme Court, has repeatedly checked the present administration. Sometimes the justices themselves have acted; other times, they have left lower court rulings intact. Examples have involved free speech, due process, deportations, national guard deployments, birthright citizenship, partisan impeachments, tariffs, the Federal Reserve, and still more measures not even attempted under the judiciary’s watchful eye. So even if the courts could have done more, they have certainly done quite a bit.

For all its faults, then, the federal judiciary has come to play a critical counter-majoritarian role within an increasingly majoritarian government. …

On reflection[,] each crisis offers a way out of the other. If it can navigate our time of polarized populism, the judiciary may thereby solve its own legitimacy problem. Scholars have argued that judicial independence largely springs from the long-term incentives of partisan actors. Parties in power today anticipate relying on the judiciary once they are out of power tomorrow. And, again, courts have lately offered respite for the loyal opposition. If that pattern persists and political tides turn, the judiciary may emerge stronger than ever.

Co-blogger Steve Sachs also contributed an entry, entitled “The Living Hand.”

I encourage you to page through the whole volume or check out one of these webpages on the project. I leave you with this enticing, amusing blurb from Professor Michael McConnell:

This thought-provoking collection of 62 short essays — some of them odd, some provocative, some insightful, and some even beautiful — is a remarkable gift to the nation on its 250th birthday.

Coordination, Conflict, and the Laws of Time, by Hamilton and Hemel. More on this from me, from a constitutional perspective, coming this fall.

Henry Martyn Robert and the Popularization of American Parliamentary Law, by Don Doyle — via JStory only, as it’s in 32 Am. Q. 3 (1980), but this is the fascinating story of the “Robert” behind Robert’s Rules of Order. Via my colleague Saul Levmore, who has (as always) written a paper on this.

This led me down the rabbit hole to A Law Professor’s Guide to Parliamentary Procedure, by Jonathan R. Siegel — both a study of the unwritten parliamentary principles of faculty meetings and a handy guide, including the case against “friendly” amendments.

The majority, in broad strokes, relied on its view that it was quite plausible that the administration would have taken the relevant actions anyway, in a counterfactual world where a country with a different racial makeup were up for review. The dissent highlighted the majority’s unwillingness to acknowledge what was actually going on. These positions might seem to replay some well-known cases from previous eras, such as Trump v. Hawaii, Palmer v. Thompson, etc.

But upon closer inspection, Mullin contains two striking wrinkles, which might be related.

The first is that the majority opinion does not just say that there could be a race-neutral explanation for Haiti’s status termination. Though the introduction to the opinion does say that, asserting “a strong, race-neutral explanation for Haiti’s termination,” the body of the opinion makes a different and perhaps stronger claim: that there is “a strong, race-neutral explanation of these officials’ statements” (emphasis added). The difference here is between a legal action and the statements regarding those actions. Rather than admitting that the President expressed racist viewpoints but also implemented a legitimate policy choice, the majority suggests it is unproven that the President’s expressed viewpoints are even racist. This could be, not unfairly, charged as an example of the majority’s extreme efforts to avoid impugning the President. Even more cynically, the Court could be viewed as twisting the record in order to rule in favor of the President’s immigration policies.

But there is another consequence of, and thus perhaps a second explanation for, the majority’s reaching for this point, and it relates to another criticism made by the dissent — namely, the majority’s failure to follow the letter of Arlington Heights. (The parties had also debated whether traditional equal protection principles applied at all, or whether a much looser standard like that in Trump v. Hawaii applied instead.)

Under the Arlington Heights test, formally speaking, there are two steps. At the first step, the plaintiffs have the burden of showing that race was “a motivating factor” in the government’s decision. If they show this, the burden shifts to the government to show that “the same decision would have resulted even had the impermissible purpose not been considered.” Some points in Mullin may indirectly speak to that inquiry, such as when the Court posits that the administration is critical of TPS and, in fact, has terminated every TPS designation that has come up for renewal. Nonetheless, Mullin’s analysis seems to stay at the first step, to the extent that it applies Arlington Heights at all.

Now here is how the two points intersect. If the majority is right that there is a race-neutral explanation not only for the policy, but for the putatively racist statements themselves, that would justify deciding the case at Arlington Heights step one. Deciding the case at step one allows the Court to avoid venturing into territory that was not really briefed by the parties. It is also a doctrinally lighter lift, because the plaintiffs bear the burden at step one while the government bears it at step two. So the Court’s framing decision also may ultimately be driven by a conviction that the administration should or would have won at step two.

The Court’s equivocation could be viewed as a kind of strategic ambiguity. Readers are introduced to both rationales, but neither is clearly relied on. Indeed, for the casual reader they are not even clearly disentangled. The Court is able to reach what it regards as the legally correct result, without antagonizing the President. This ambiguity may be a product of uncertainty about the extent to which immigration should be subject to ordinary constitutional principles. It may reflect internal disagreement among members of the majority. Or it may be a product of the interim docket — although the Court issued a signed published opinion after oral argument, in form it adjudicated only the plaintiffs’ likelihood of success on the merits. But whatever their source, the equivocations in Mullin make the opinion’s precedential import in future cases quite unclear.

We picked two immigration decisions from the same day over the transgender-sports case because — Dan’s protests notwithstanding — that’s where the interesting law is. In Mullin v. Doe the Court lets the administration terminate temporary protected status for Haiti and Syria, holding the statute’s no-judicial-review bar swallows the procedural challenges and that the equal-protection claim fails on the merits — with a genuinely odd move: skipping the jurisdictional question the way Steel Co. says you can’t. In Mullin v. Al Otro Lado a fight about asylum-metering collapses onto a single preposition — whether a migrant stopped at the border “arrives in” the United States — and the majority says no. Along the way: brown M&Ms and Van Halen riders, whether Congress can strip review of constitutional claims without turning in a circle and sprinkling salt on the ground, Bolling v. Sharpe as a candidate for the worst decision ever, and why there’s no White Somalia to run a controlled experiment.

Comments welcome!

Was the Court justified in reaching out so far in both Barbara and Cook? This question is especially pointed for the Chief Justice, who has long been associated with principles of judicial minimalism, gradualism, and restraint.

To wit, the Chief has for decades endorsed “a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Being a prudent judge, however, he has also—albeit less often—recognized that “there are cases that warrant an exception.”

It seems implausible that it was “necessary to decide more” in Barbara or Cook, given the narrower grounds available “to dispose of” those cases. Again, Barbara featured a statutory basis for decision that was at least as easy to reach as the Court’s grander constitutional rationale. And, in Cook, the Court could easily have deemed the executive’s removal process faulty without opining on an issue not even pressed by the president. In both cases, in fact, separate opinions complained about the gratuitous breadth of what the majority was doing. So both cases would have to fall within “an exception.”

Perhaps an exception can be made whenever the Court is sufficiently confident of the correctness of its result. But that carve-out threatens the rule itself and also seems at odds with minimalism’s ethos of humility and restraint. A more likely and compelling account would focus on pragmatic concerns. As Cook itself put it: “How much to say” in various contexts is “ultimately a matter of prudence.”

And what are the prudential interests at play? Here is what Cook says:

In this extraordinary case, we have had the benefit of not only amici and oral argument but months of internal consultation and deliberation. We see no reason to leave the public in limbo, or to sow doubt as to the status of one of our Nation’s (and the world’s) most important financial institutions. Although we appreciate that others may see matters differently, we would not so quickly unsettle this “special arrangement sanctioned by history.”

This passage hits a few different notes. The Court has engaged in adequate “deliberation,” suggesting both that procedural fairness has been achieved and that the Court is confident in its ruling. The Court also emphasizes the stakes. The case is “extraordinary,” the “public” might be left “in limbo,” and the fate of “one of our Nation’s (and the world’s) most important financial institutions” hangs in the balance. As Justice Kavanaugh elaborated in his concurrence, he “would not risk destabilizing the U. S. economy just so that we can further mull over” the issue.

Similar points could be made about Barbara. The constitutional issue had been well ventilated, yielding procedural fairness and adequate confidence. In addition, legal citizenship is very important. Figuring out who is a citizen is a basic task of the state, implicating many aspects of private life and public administration. If the Federal Reserve and the global economy are important enough to make an exception, so too are the precious individual rights associated with citizenship.

Are these decisions compatible with another principle of gradualism, namely, the doctrine of one last chance? One might think not, on the theory that these major constitutional rulings came down without affording adequate notice.

Yet the doctrine of one last chance does not apply to these cases, for their constitutional holdings preserved settled practices. Notice is critical before a destabilizing decision. By contrast, the logic of gradualism does not counsel against—and may even support—a rushed decision that shores up the status quo ante. Normally, reservations are evidence of judicial caution. But to reserve either the Fed’s independence or the constitutional foundation of citizenship would have been destabilizing.

Consider some of the hazier writings in these cases. In Barbara, Justices Gorsuch and Thomas might have afforded citizenship to many (most? almost all?) children of unlawful immigrants born in the United States. But we don’t know for sure, because they reserved that rather consequential issue. Likewise in Cook, Justices Alito, Gorsuch, and Barrett voted on relatively technical, factbound grounds that say little about the Federal Reserve in general. Even as separate writings, these opinions created some uncertainty. Had they been majority opinions, they would have yielded a frenzied scramble.

These points may also provide a retroactive justification for the Court’s decision to presage its views on the Federal Reserve in Trump v. Wilcox, even though doing so was dicta. Wilcox was decided in May 2025. So, when it comes to the Federal Reserve, judicial minimalism has been suspended for over a year.

Interestingly, Barbara suggests that the Court’s zeal for maximalism may lately have increased. In Trump v. CASA, the liberal dissenters objected that the Court should have reached the issue of birthright citizenship right away. But the majority instead deferred the merits for about a year. Do these events suggest initial impassivity or temporization in the face of a powerful and alarmingly destabilizing chief executive? Now, as the president’s reelection recedes into history, perhaps the time is ripe for bolder action.

In short, Barbara and Cook together suggest the following maxims. Extremism in defense of stability is no vice. And minimalism in the pursuit of constancy is no virtue.

In the past eight years, the chief justice has occupied three different institutional roles. Before 2020, and especially after Justice Anthony Kennedy’s retirement in 2018, the chief justice enjoyed being a swing justice. Then, after Justice Amy Coney Barrett joined the court in 2020, the chief became a moderate dissenter. Finally, from about 2023 onward, he adopted a new approach. Inverting the Obama-era trope of “leading from behind,” the chief began to moderate from the front.

In other words, the chief has recently been moderating or slowing down his five conservative colleagues where feasible, including by assigning himself majority opinions; and where moderation is infeasible, he has jumped on these five justices’ bandwagon. This picture is consistent with the chief being both conservative and institutionalist. It also aligns with the self-interested desire to be a great chief justice (or, at least, not a failed one).

Whether the chief’s approach is justified is a harder question, much as questions about judicial strategy and impassivity are generally hard. But the answer is plausibly yes.

I. Before 2020

When confirmed, the chief was widely thought to be both conservative and institutionalist, in the sense of caring about restraint and stability. In tandem, these traits led him to be more moderate than most of his conservative colleagues. The chief oversaw gradualism in cases involving campaign finance and the Voting Rights Act, as in 2007’s FEC v. Wisconsin Right to Life, Inc. and 2009’s NAMUDNO v. Holder. But by far the most famous (or infamous) example is the chief’s surprise vote to sustain the Affordable Care Act in 2012’s NFIB v. Sebelius.

Yet Sebelius was an unusual case, for Kennedy was the normal swing vote in that era. Normally, that is, Kennedy was less conservative than Roberts. The chief could play the role of the swing-vote moderate in NFIB only because Kennedy had sided against the Affordable Care Act’s constitutionality.

Once Kennedy retired in 2018, however, the chief became the court’s most moderate conservative and, therefore, the usual swing justice. The most famous example is probably the 2019 census case Department of Commerce v. New York, in which the chief cast the key vote against the first Trump administration in its attempt to add a question on whether respondents were U.S. citizens.

So, for the first 14 years or so of his tenure, the chief’s behavior was consistent with his being a conservative institutionalist.

II. 2020 to 2022

Things changed rather dramatically when Barrett joined the court, replacing Justice Ruth Bader Ginsburg. This event yielded a six-justice conservative voting bloc, which is widely referred to as the “conservative supermajority.” The chief justice was no longer the median vote on the court. Now there were five justices to his right.

At first, the chief justice continued to vote as a moderate or institutionalist conservative, much as in the prior several years. The starkest examples of this pattern are two cases involving abortion: 2021’s Whole Woman’s Health v. Jackson and 2022’s Dobbs v. Jackson Women’s Health. In both cases, the chief justice broke from five-justice conservative majority opinions, placing him at least partially in step with the court’s liberals.

During this period, however, the chief appeared to have lost control of the court that often bears his name. Perhaps he believed that he could peel off another vote in these cases, if only he proposed the right compromise, or else if he drew a line in the sand. But events proved that hope to be in vain.

At this point, the chief faced two problems. First, he appeared unable to moderate his conservative colleagues in key cases, yielding outcomes that he viewed as both legally wrong and practically harmful. Second, he confronted the possibility of being remembered as a failed chief justice, one who stood uselessly athwart his colleagues. The great chiefs, by contrast, are the likes of John Marshall and Earl Warren – both of whom commanded their courts.

So, at this point in the story, the chief still looked like a conservative institutionalist, but he was no longer a happy one.

III. 2023 to today

During the last few years, the chief has adjusted his behavior in light of his being the sixth member of a supermajority.

No longer does the chief split off in the vain hope of attracting a conservative defector with him, as he did in Dobbs. Instead, the chief tends to write or at least join in the big cases. Sometimes that means ruling in ways consistent with institutionalism, such as in this year’s cases on tariffs (Learning Resources v. Trump) and birthright citizenship (Trump v. Barbara). At other times, however, it means authoring or joining big conservative blockbusters. That pattern is partly a result of his assignment power: as the most senior justice, he always has the authority to give himself the majority opinion when he is part of the majority. The deeper question, however, is why he is making such dramatic use of this power.

Part of that new approach is probably self-interested. The chief, like most of his predecessors and colleagues, has always enjoyed plum assignments. By authoring major rulings like Students for Fair Admissions v. Harvard, striking down affirmative action in college admissions, the chief is ensuring that he will play a prominent role in the history books and, what is more, that he will be remembered as a leader of his court. One might say that, by leaning into his conservativism, the chief has lately been sacrificing some of his institutionalism.

Yet there is also an institutionalist logic to this approach. For by jumping on the conservative bandwagon, the chief has given himself a significant place in shaping the jurisprudence of the last few years. He is probably better able to moderate the supermajority as the author of its major opinions, rather than as a dissenter. Thanks in part to his distinctive role, which affords him seniority, the chief is not just part of the conversation but a focal point for decision-making.

My claim here is necessarily somewhat speculative, because the chief has not (and, realistically, will not) announce this strategy. Let me nonetheless suggest a perhaps surprising example: the presidential immunity decision Trump v. United States. The chief wrote a majority opinion mostly joined by all the conservatives but as to certain important sections not joined by Barrett. The chief thus became the face of an extraordinarily controversial conservative precedent.

But did the chief spearhead the push for maximal presidential immunity? Available evidence suggests that the answer is no. The majority opinion contained several important reservations, yielding a final product akin to pea soup. Why?

Presumably so that presidential immunity maximalists, such as Justices Clarence Thomas and Samuel Alito, could form a majority along with the more moderate conservatives, including the chief. Most saliently, the opinion reserves whether all official presidential acts trigger presumptive or absolute immunity. If that question is eventually posed, the chief and another majority member (perhaps Barrett) may split off to join the three liberal dissenters.

The chief’s opinion also included equivocating language on the key issue of presidential bribery prosecutions. At oral argument, the chief had supported a robust immunity, but he also made comments that cut in favor of preserving bribery prosecutions, as Professor Akhil Amar has noted. The final opinion lost Barrett’s support on this issue, and what the majority opinion said on that topic is charitably described as cryptic.

These ambiguities probably resulted from tensions within the majority coalition, with the chief playing a moderating role. In part for institutionalist reasons, he may have wanted to ensure the existence of an opinion for the court. (Though commentators often assume the opposite, the authors of divided opinions can be the shakiest votes for the result, having been chosen for the task precisely in order to hold the majority together.)

In that regard, Roberts might be compared with Chief Justice Warren Burger, who is often remembered for assigning himself majority opinions even after he had voted the other way at the justices’ conference – a ham-handed means of exerting influence that provoked conflict.

But Roberts’ behavior is more subtle and defensible, in part due to his greater ideological affinity with the majority. When he authors or joins a conservative opinion, he credibly agrees with both its reasoning and its result. To the extent that he slows down or blunts his colleagues, however, he may still generate friction in the building. Some expressions of frustration by other conservatives, such as Thomas, may hint at that tension.

IV. An impassively virtuous chief?

Even if the chief remains a conservative institutionalist, his approach would be questionable. Should the chief want to be part of a team, or care about being its leader? Would the chief exhibit greater integrity or courage by dissenting in favor of institutionalism? Perhaps he would ultimately garner even greater influence and renown by charting a solitary path. Rather than looking to bold leaders like Chief Justice Warren as his role models, for instance, he might instead strive to emulate moderating dissenters like Justice John Marshall Harlan II.

These questions and possibilities call to mind many related debates about judicial strategy, resistance, and dissent, including Alexander Bickel’s brilliant discussion of the “passive virtues,” or the art of avoiding combustible decisions. To my mind, Bickel’s label is a bit misleading. A more accurate and candid label would be the “impassive virtues,” because the traits that Bickel had in mind can be disturbingly callous or apathetic. Far from being merely “passive,” strategic delay is itself a kind of activity – and a potentially harmful one at that.

Roberts can be viewed as adapting the impassive virtues to his role as chief. Bickel focused on the court’s pattern of withholding judgment and eschewing decisions on the merits, so as to garner greater social influence over the long term. In a similar spirit, the chief may be suppressing dramatic dissents of the kind he wrote in Whole Woman’s Health in exchange for a somewhat greater ability to inject ambiguity, gradualism, and restraint into the court’s decision-making, as he did in Trump v. United States. In 2023’s Allen v. Milligan, for instance, he wrote a decision sustaining majority-minority districting in fairly strong terms – only to join Alito’s opinion in Louisiana v. Callais this term effectively overruling that precedent.

The chief’s impassivity also strengthens the court as an institution by strengthening its sense of leadership. And leadership within the third branch has been especially critical in recent years, as federal judges have been threatened with impeachment or worried about defiance of their orders. In the face of a strong or over-strong president, the judiciary can well use a chief justice who is both strong and savvy.

So perhaps the chief is employing a distinctive form of impassive virtue – one that some observers may not view as virtuous at all.

Cross-posted from SCOTUSblog.

After a quick check on the Nina Totenberg embargo kerfuffle and one more revelation from Justice Thomas’s memoir, we devote the episode to Chatrie v. United States, the Court’s first major Fourth Amendment decision in years. We trace how the geofence-warrant ruling builds on — and goes beyond — Katz, United States v. Jones, and Carpenter v. United States, and what’s left of the third-party doctrine and the mosaic theory. Will explains the positive law model of the Fourth Amendment; Dan tries to claim Justice Gorsuch’s separate opinion for his general-law approach. We close with the dissents, the advisory-opinion objection, and whether the Court should be saying more about the Fourth Amendment or less about everything. Along the way: Venmo heroin deals, smart microwaves, whether Will has genuinely forgotten his passcode, and a field-trip assignment for Chicagoland listeners.

Two different things are true: (i) the Supreme Court is very conservative, and (ii) the Court, in tandem with the rest of the federal judiciary, has substantially checked the Trump Administration.

This combination of facts creates cognitive dissonance for many (most?) members of legal culture, for conservativism is now linked to the Administration. So many of us have trouble keeping both of these important facts in view at the same time.

One way to resolve the dissonance is to focus on the Court’s conservativism and downplay or ignore all the many ways that it has preserved the rule of law. ‘Sure, the Court blocked deportations under the Alien Enemies Act, stopped National Guard deployments, invalidated tariffs, preserved traditional birthright citizenship, safeguarded the Federal Reserve, and more – But don’t believe your lying eyes!’

A lot of progressive commentators are taking this approach.

Another way to avoid hard thinking is to do the opposite: train attention on all the ways the Administration has been stymied. ‘Yeah, the Justices vastly expanded the President’s power within his branch, stopped majority-minority districting, green-lighted immigration-enforcement efforts, offered expedited relief from lower court injunctions, and more – But don’t believe your lying eyes!’

A lot of conservative commentators are taking this approach.

Apart from resolving cognitive dissonance, these two strategies can be explained by self-interested and public-interested rationales. Many of these commentators have audiences and constituencies who expect a certain narrative. It would be personally hard for these commentators to pivot and costly to embrace nuance.

More selflessly, many commentators earnestly believe in their causes. They want progressivism/conservativism to win completely. And someone rallying troops does not often pause to give a sympathetic account of the adversary. Instead, the adversary must be depicted as not just wrong but completely awful.

I suspect that many people in each of these two groups are not cognizant of the other group. In other words, people who mainly absorb progressive media may not realize how many conservatives have been furious at the Court during the past year or so. And, likewise, many who digest conservative media may not appreciate how angry many progressives have been. Or perhaps each side does know about the other but still has a hard time seeing past its own sense of grievance—which would itself be a problem with seeing two things at once.

Now, nothing I’ve said here disproves arguments from progressives or conservatives in favor of reforming the Court or changing the law. Sometimes when two sets of partisans disagree, one of them is correct. Maybe the Court has done much too little, or else much too much. Or maybe a combination of both.

In addition, nothing I’ve written here suggests that the Court is moderate, as judged by either legal or political standards. Again, what I’ve described is a conservative Court that has also checked the Trump administration. The Court has played that complex role in part because it is a relatively old-school conservative court and Trump is a relatively new-school conservative president.

Yet finding a way to see two things at the same time can inform or change how we think about the Court, the law, and proposals for reform.

One upshot is that audiences should make sure that the arguments they’re hearing in favor of various proposals are conscious of the dual role that the Court has played in recent years. Arguments that paint the Court in a one-sided way are inaccurate, even if they offer good rhetoric and effective troop rallying.

A careful argument for reform might acknowledge: “The Court has sometimes been helpful, or even good on net—but we can do better.” As I hope I’ve made clear, both the left and the right can plausibly have that attitude.

Finally, seeing both aspects of the Court’s recent performance can create room for compromise. If everyone has some reason to appreciate the justices, then so much the worse for proposals that would break the third branch or render it toothless. Instead, proposals that more carefully calibrate or check judicial power may find bipartisan support—and actually come to pass.

Even if we can’t see two things at once, we can at least remember to alternate our perspective, briefly seeing things as others do.

Here’s Jonathan Green, What The Declaration Didn’t Do: “Whether the Declaration actually created thirteen "Free and Independent States" on July 4, 1776, turned on whether, before 1776, Britain's American colonies had their own constitutional rights against the Crown--that is, corporate rights that were conceptually severable from the rights of their English contemporaries. Because that question was essentially insoluble, the Declaration's legal effects weren't clear in 1776. By extension, whether there were an independent, self-directing American ‘People’--one that could corporately agree to a set of shared principles and announce them in the Declaration--wasn't clear either.”

And The Declaration’s Judiciary, by Tyler Lindley — discussing judicial-power exclusivity, judicial independence, and the civil jury.

Meanwhile, in the aftermath of Trump v. Barbara I came across this interesting article in the National Security Law Journal on the children-of-diplomats exception: Violating the Constitution and Risking National Security: How the Children of Foreign Diplomats Born in the United States Become U.S. Citizens in Contravention of the Fourteenth Amendment.

I once took an excellent Historiography class, and the readings included a book called After the Fact: The Art of Historical Detection, by James West Davidson and Mark Hamilton Lytle. The book reprints Thomas Jefferson’s recollection of a story told him by Ben Franklin. Jefferson had drafted the Declaration of Independence, and his draft, painfully to Jefferson, was being revised by others. So Franklin told Jefferson why you should never put yourself in this position—never write something that other people are going to edit. Here is Franklin’s story:

I have made it a rule, whenever in my power, to avoid becoming the draughtsman of papers to be reviewed by a public body. I took my lesson from an incident which I will relate to you. When I was a journeyman printer, one of my companions, an apprentice Hatter, having served out his time, was about to open shop for himself. His first concern was to have a handsome signboard, with a proper inscription. He composed it in these words: ‘John Thompson, Hatter, makes and sells hats for ready money,’ with the figure of a hat subjoined. But he thought he would submit it to his friends for their amendments. The first he shewed it to thought the word ‘hatter’ tautologous, because followed by the words ‘makes hats’ which shew he was a hatter. It was struck out. The next observed that the word ‘makes’ might as well be omitted, because his customers would not care who made the hats. If good and to their mind, they would buy, by whomsoever made. He struck it out. A third said he thought the words ‘for ready money’ were useless as it was not the custom of the place to sell on credit. Every one who purchased expected to pay. They were parted with, and the inscription now stood ‘John Thompson sells hats.’ ‘Sells hats’ says his next friend? Why nobody would expect you to give them away. What then is the use of that word? It was stricken out, and ‘hats’ followed it, the rather, as there was one painted on the board. So his inscription was reduced ultimately to ‘John Thompson’ with the figure of a hat subjoined.

Never let others edit your work, Franklin says—and then he proceeds to tell Jefferson an ironic story in which all the edits make the work better. Which Jefferson of course understood.

A Happy Fourth to all readers of Divided Argument!

My answer was about constitutionalism:

The challenge of setting up America was how to establish rules of governance among people who disagreed about so much—commerce, religion, slavery, and more. How can those who disagree about what to do agree about who should do it? The answer was a written Constitution, buttressed by principles of law, which attempted to separate fundamental law from ordinary politics. It did so through specific mechanisms such as federalism, the separation of powers, and individual rights, but the separation of fundamental law from ordinary politics is the more basic idea that makes these mechanisms possible. This separation is what helps us hold our country together even as we disagree about what it should stand for.

And here was Sam’s:

The United States is an “experiment entrusted to the hands of the American people,” according to the first inaugural address. In that address, President Washington questioned whether we could preserve “the sacred fire of liberty” and a “Republican model of Government,” which he said would require “virtue,” “duty,” and “honest and magnanimous policy.” Fifty years later, President Jackson called time: “Our Constitution is no longer a doubtful experiment.” But Jackson was wrong and even today Washington is still right. Experiments are uncertain. They require learning and responsibility. And the outcome of our great experiment depends on what we demand of our leaders and cultivate in ourselves.

You can read all of the others at the law school website.

It’s the last opinion day of the term, and the big one landed: Trump v. Barbara, the birthright-citizenship case. We read the majority as the rare easy case and spend most of the episode on why the four dissents each end up somewhere different — and trying to figure out exactly where they actually land. Along the way: a bogus Nina Totenberg story, a Landor GVR that might quietly unsettle a chunk of Spending Clause criminal law, and whether the professors who defended the order deserve the “legal scholarship police.”

Don’t worry, the pace should slow down soon (but not stop) as we get into the Dog Days.

The big opinions are coming fast and furious as the Term ends. This episode, we take on two related cases from the penultimate opinion drop day: Trump v. Slaughter, which overrules Humphrey's Executor and clears away for-cause protection for the independent agencies, alongside its interim-docket companion Trump v. Cook, where the very same logic somehow spares the Federal Reserve. The big question: if the President can fire an FTC commissioner at will, what actually makes the Fed different — is "history" doing the work, or is the Court just saving the bond markets? Along the way: Heidegger's "always already," whether the metaphor of a living tree is consistent with originalism, a Goldilocks definition of "cause," the Chief leaning on his own unworkable precedents, the Ex parte Young mystery that keeps escaping the Court's grasp, and the first appearance of the "interim docket" in the U.S. Reports.

The birthright citizenship episode will be up soon. In the meantime, comments are open!

The Supreme Court’s turn to “history and tradition” raises the critical question of what to do about “bad traditions.” If the customs of yore were driven by racial prejudice, for example, what weight should they carry in interpreting the Constitution? In the Second Amendment case Wolford v. Lopez, the Court confronted this question. Justice Alito’s majority, Justice Barrett’s concurrence, and Justice Jackson’s dissent offered divergent responses. The back-and-forth brought the problem of bad traditions into sharp relief and highlighted the uneasy place of moral evaluation in traditionalist analysis.

In Wolford, a Hawaii law banned people carrying firearms from entering, without express authorization, private property open to the public. The Court, after determining that Hawaii’s restriction fell within the text of the Second Amendment, asked whether Hawaii’s law was consistent with the historical tradition of firearm regulation. One historical analogue Hawaii invoked was an 1865 Louisiana statute making it unlawful “for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor, other than in lawful discharge of a civil or military order.”

The Supreme Court rejected the Louisiana statute as a historical analogue, partly because it was part of Louisiana’s Black Code, a series of statutes adopted to subjugate Black people after the Civil War. According to the Court, the congressional Republicans who adopted the Fourteenth Amendment understood that “the right to keep and bear arms was crucially important for vulnerable blacks during this period.” “Unless we put history entirely out of our minds,” the Court indicated, “Hawaii’s claim that this tainted artifact [the Louisiana statute] illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

The Court has previously encountered the problem of tainted traditions. It has, for instance, pointed to the racist origins of non-unanimous juries in a decision invalidating that practice for serious criminal cases and has suggested that some traditions barring state support for religious schools should not shape interpretation of the Free Exercise Clause because they were rooted in anti-Catholic bigotry.

But why exactly should moral taint undermine a tradition’s constitutional significance? Supporters of history-and-tradition analysis frequently portray their method as an alternative to decisions based on judges’ moral or policy views. If traditions can be discounted based on their sordid origins, does traditionalism lose a key justification?

The Wolford majority’s explanation of why taint mattered was sparse, but the Court gestured at the view that taint bears on original public meaning. In the majority’s view, it seems, the congressional Republicans responsible for enactment of the Fourteenth Amendment (through which the Second Amendment came to apply to the states) could not have viewed the Black Codes as acceptable regulations of constitutional rights, including Second Amendment rights. Because Louisiana’s law was part of its Black Code, that law could not have been consistent with the understanding of the Second Amendment that governed when the amendment was made applicable to the states.

If this was the majority’s reasoning, then it involved fairly elastic inferences about original public meaning. Can we conclude from the Republican Congress’s general interest in protecting Black people’s rights—including their Second Amendment rights—that the specific restrictions on firearms instituted as part of Louisiana’s Black Code were inconsistent with the original public meaning of the Second Amendment as incorporated by the Fourteenth? Justice Jackson’s dissent raised a version of this objection (addressed below).

A fuller explanation of taint’s constitutional relevance appeared in Justice Barrett’s concurrence (joined in relevant part by Justices Thomas and Gorsuch). For a historical law to be analogous to modern-day firearm regulation, the Court has held, the provisions must be similar in “how” and “why” they restricted firearms. Why, Justice Barrett inquired, did Louisiana’s law restrict the carrying of firearms on private property? The state sought to limit freed Black people’s ability to hunt and provide for themselves without working on white-owned plantations. Hawaii’s current law clearly does not share that “why,” so the Louisiana law is not analogous.

Justice Barrett’s approach provided a coherent conceptual link between taint and the identification of relevant analogues. However, it is subject to the level-of-generality problem that often bedevils traditionalist analysis. At what level of generality is the “why” to be assessed? As Justice Jackson’s dissent observed, the “why” behind Louisiana’s law could also be described (at a higher level of generality) as an effort “to protect property rights and to prevent the harms that can follow from unauthorized armed entry.” Asking whether the justification for an old law matches the justification for a new law requires judges to decide how broadly the “why” should be framed. Justice Barrett’s approach also runs into the problem of multiple motivations: What if Louisiana’s legislature had sought both to oppress Black people and to protect public safety? There might then be a partial match in justification between the Louisiana law and Hawaii’s, and it is not clear that such an analogy should be completely repudiated.

Justice Jackson’s dissent (joined by Justice Sotomayor) critiqued the taint argument along related lines. The majority had not explained, she argued, why the tainted origins of Louisiana’s law affected the Second Amendment analysis, as distinct from simply demonstrating Louisiana’s violation of the Fourteenth Amendment’s equality requirements.

Insofar as taint is understood to bear on original public meaning—that is, to nullify Black Codes as evidence of original public meaning—Justice Jackson’s critique is persuasive. After all, perhaps Louisiana and other states sought to oppress Black people using a tool recognized at the time as an appropriate regulation of firearms. In that case, racist taint would not invalidate these laws as probative of the original public meaning of the Second Amendment.

But the taint argument may not truly be geared toward original public meaning. The real appeal of the taint argument may be more visceral—that it is wrong for American constitutional law to treat provisions driven by immoral views as affirmative indications of permissible government regulation. The Wolford opinions raise the important question of whether rejecting racially tainted provisions as legally probative is more or less redemptive in the sense of affirming current commitments to racial equality. Justice Jackson, for her part, seemed to suggest that wholly excising tainted laws from our tradition is less inclusive, as it fails to “value[] the historical experiences of Black people as targets of invidious race discrimination.”

Wolford leaves open many questions about how taint figures into history-and-tradition analysis. The immoral origins of the Black Codes are clear, but in some cases judges will face harder calls about the existence of taint and the correct moral judgment. Most of all, does the introduction of moral evaluation undercut history-and-tradition methodology?

In my view, the answer is no. Courts can employ a form of traditionalism that permits present-day moral ideas to affect the identification of relevant traditions. The moral ideas in question need not be derived from judges’ idiosyncratic preferences. Instead, they can be pegged to society-wide commitments, particularly those enshrined in constitutional provisions such as the Fourteenth Amendment. These equality commitments are part of American tradition. (I explore these points at much greater length in a recently published article.)

And these equality commitments display much greater continuity into the present day than the values embodied in the Black Codes. Continuity is a key measure of a tradition’s strength, because a tradition links past and present and extends into the future. Accordingly, racially tainted laws such as the Black Codes have a weaker claim to be part of a cognizable tradition.

Morally tainted practices, when they lack continuity, could thus be discounted for reasons internal to tradition itself. Odious history would not be ignored, and when past laws were driven by multiple forces, they would not need to be discounted in their entirety. But taint would reduce a practice’s claim to illuminate the contents of constitutional tradition today. Overall, the opinions in Wolford did not resolve the problem of bad traditions, but they pointed the way toward forms of traditionalist analysis that acknowledge the relevance of moral concerns.

We're in triage mode as the Court clears its end-of-term backlog. We run through the week's opinion dump before focusing on two cases that look unrelated but turn on the same question: when may a state rewrite background property law to limit a constitutional right? In Wolford v. Lopez, the Court strikes down Hawaii's rule requiring a property owner's express consent before a firearm may be carried onto otherwise-public premises. Then to Pung v. Isabella County, a takings case asking whether a homeowner whose property is sold for back taxes is owed only the sale proceeds or full fair-market value. Along the way: a theory about a Landor v. Louisiana flip, the week's run of 6-3 conservative wins, and a short detour into the perils of teaching Federal Courts.

Thoughts welcome!