Two questions are teed up in the cert petition. The first is about whether the Ninth Circuit wrongly upheld contempt sanctions for Apple for violating the “spirit” of an injunction. The second is about whether the Ninth Circuit ignored Trump v. CASA, Inc. by affirming an injunction benefiting all app developers, not just the plaintiff, Epic Games.

On both questions, I’m inclined to think the Ninth Circuit got it wrong. But they are somewhat different in their suitability for review by the Supreme Court.

The first question is about contempt. The background is that Epic Games sued Apple to challenge its app store policies, including its fee structure. Apple won on most of the counts, but Epic Games won on its claim that it was anti-competitive for Apple to prohibit developers from linking from their apps to their own payment methods. The district court enjoined Apple from prohibiting links from a developer’s app to a developer’s own site; the injunction did not make any mention of commissions. Apple responded by allowing links but requiring developers to pay 27% of any revenue generated within seven days from a customer clicking on an outbound link.

In the district court, the contempt question boiled down to whether Apple’s 27% commission was a violation of the district court’s injunction against prohibiting links. The district court said yes—Apple was violating the injunction’s “spirit” though not its “letter”—and held Apple in contempt.

Last year, when the case was before the Ninth Circuit, Professors Andy Hessick and Michael Morley and I filed an amicus brief in support of neither party. The gist of our argument was that the district court was wrong to impose contempt sanctions on this violation of the “spirit” of the injunction, but that the court should have dealt with Apple’s response by modifying the injunction. The Ninth Circuit disagreed, and it affirmed the contempt sanctions.

Now I think the Ninth Circuit affirmance on this point was erroneous: instead of holding Apple in contempt, the district court should have modified the injunction so it referred to commissions and clarified what Apple could and could not do, and then that modified injunction could have supported contempt sanctions but only if, going forward, there was a violation of the modified injunction. And in addition to correcting an error below, a cert grant would ameliorate discrepancies in the circuit courts, because different circuits require different degrees of clarity in an injunction before its violation can be the basis for contempt sanctions.

Yet there are also some obstacles to a cert grant on the first question.

One is that there aren’t—and in my view shouldn’t be—a lot of overly crisp rules for interpreting injunctions. Injunctions don’t have the specialized body of interpretive rules that are characteristic of statutes, for example.1

It’s true that the district court’s overt reliance on the “spirit” of the injunction was an unforced error. But it’s not as though the right response is, like Bizarro Jerry, to do the opposite. Injunctions must provide notice of what is being prohibited, but to insist only on the “letter” of the injunction would be an overcorrection. For contempt is available when parties try to opportunistically subvert a court’s power to resolve a case and see it through, even when there is no “letter” at all.2

And the Ninth Circuit was correct to note the import of McComb v. Jacksonville Paper Co., which is that injunctions should not be read so narrowly and literally that an enjoined party can engage in a game of cat-and-mouse with the court, making the injunction useless. Maybe at bottom this is just a difference in views of the facts: is 27% equivalent to a total ban, as the Ninth Circuit seemed to think? Not obvious to me, though that’s a factual question about the industry and its economics that I’m not qualified to address.

In short, I think the Ninth Circuit erroneously affirmed the contempt sanctions (in line with the views expressed in the amicus brief with Professors Hessick and Morley). Yet a cert grant on the first question would steer pretty close to error-correction, and the error correction would tend to be limited to the instant case, since the area is not congenial to the pronouncement of crisp rules. So there are plausible arguments in both directions as to a cert grant on the first question.

On the second question presented, however, I think the Ninth Circuit error calls for a different response. The district court’s injunction ordered Apple not to prohibit developers from linking out from their apps to their own sites—an injunction by its terms benefitting all developers, not just the plaintiff, Epic Games. The scope of the district court’s injunction was certainly understandable, because it was issued before CASA rejected universal injunctions. But the Ninth Circuit decision came after CASA.

So how can the Ninth Circuit affirmance be squared with CASA? It can’t. The injunction at issue was a universal injunction—it went further than was needed for the protection of the plaintiff or plaintiff class. In fact, it gets worse. Some other app developers sued Apple on a similar theory but did so in a class action, and that class action settled.3 So that class of developers got the class settlement (in the suit they were in) and also got the full benefit of Epic’s injunction (in the suit they were not in). Perhaps one could argue that the injunction should reach non-party game developers who link out from their apps to Epic’s own game store—because that non-party scope would directly benefit Epic. But the injunction sweeps much more broadly and controls Apple’s relationship not just with all game developers everywhere, but with all app developers everywhere, regardless of whether there is any association with Epic or intertwined benefit.

And it is no help to say that CASA was a public law case. It was, but it relied heavily on Grupo Mexicano, which was a private law case. And CASA is a holding about the equity jurisdiction of the federal courts, traceable to the Judiciary Act of 1789, which is a unified jurisdiction applicable in public law and private law cases.

To distinguish CASA, in a single paragraph (46a-47a in the appendix to the cert petition), the Ninth Circuit offered several unpersuasive reasons:

• First, the Ninth Circuit cited one of its own cases that distinguished CASA on the grounds that “the scope of a permanent injunction following a finding of antitrust liability is hardly comparable to that of a preliminary injunction on a constitutional question.” But CASA is not just about preliminary injunctions and not just about constitutional law. The Ninth Circuit’s offered distinction brings to mind Karl Llewellyn’s famous quip that a court could read an “unwelcome” precedent as holding only for “redheaded Walpoles in pale magenta Buick cars.”4

• Second, the Ninth Circuit noted that CASA was not interpreting the Clayton Act. Correct, but beside the point. CASA was about the equitable jurisdiction of all federal courts in all kinds of cases. And while it is true that a statute may, within limits, alter the default equitable jurisdiction of the federal courts, Congress must speak clearly whenever it changes the traditional rules of equity.5 None of that analysis of congressional clear statement was done by the Ninth Circuit.

• Third, the Ninth Circuit said the district court’s broad injunction was simply “complete relief . . . molded to the necessities of this particular case, which centers on anticompetitive conduct by Apple and aims to restore the information to consumers that is necessary to foster competition” (alterations and internal quotation marks omitted). But this argument from the Ninth Circuit has two problems. First, it ignores what CASA says about complete relief, including that it is a ceiling not a floor and that it is about complete relief to the plaintiff. Second, the Ninth Circuit’s description of the violation is about Apple and the world, and not about the actually litigated harm to the actual opposing litigant. Again, that description would be understandable if the Ninth Circuit decision had been written before CASA, but it was written after CASA.

And with those arguments, the Ninth Circuit panel concluded that “[t]he underlying Injunction is not an impermissible nationwide injunction” (47a).

I don’t see any way to square the Ninth Circuit’s decision with CASA. So to me, the second question presented looks like a straightforward case for summary reversal. Regardless of what happens on the first question presented, the Ninth Circuit should be required to reconsider the scope of the injunction in light of CASA.

Unprincipled Adjudication, by Richard Re. Speaking of tributes and dedications, a very fitting tribute to Fred Schauer (and interesting in its own right).

The AI-Accommodations Dilemma in Legal Education, by Richard Luedeman: “the more that faculty embrace GAI-resistant assessments, the more accommodation obligations those assessments trigger; and the more burdensome those obligations become, the stronger the temptation to retreat to unsupervised formats that GAI has already compromised.” Luedeman argues that “federal law grants law schools more flexibility to solve this challenge than they typically exercise in this domain.” More on this topic to come, I hope.

We open with the usual grab bag—the "foot fault" pun buried in a Justice Thomas opinion, reading Justice Alito's clerk-hiring tea leaves, and a detour into the metaphysics of conditional resignations and whether you can be confirmed to a vacancy that doesn't exist yet. Then to the merits: Keathley v. Buddy Ayers Construction, a 9-0 judicial-estoppel case that lets us ask where the doctrine even came from (Tennessee, 1857, apparently), and Abouammo v. United States, the venue case about a former Twitter employee who fabricated a document while the FBI sat downstairs. The venue talk wanders, happily, into the Yellowstone "zone of death," a C.J. Box thriller, Jim Comey's second career as a novelist, and an extended appraisal of watch brands.

Thanks for the kind reviews on iTunes, and always feel free to comment below (including next week when opinions drop).

As a matter of current blackletter law, the answer is yes. The Supreme Court approved of judicial appointment of contempt prosecutors in a 1987 case called Young, and Rule 42 of the Federal Rules of Criminal Procedure authorizes a court to appoint non-governmental attorneys to prosecute contempt when “the interest of justice requires.”

But that blackletter answer has come under increasing pressure. Several justices and courts of appeals judges have criticized Young’s holding and reasoning, and they have suggested that the prosecution of contempt is a core executive power. These critiques have appeared, for example, in Justice Gorsuch’s dissent from the denial of cert in Donziger v. United States, Judge Menashi’s prior dissent in the same case, and Judge Katsas’s concurrence in J.G.G. v. Trump.

There are a number of thorny questions here about the Appointments Clause. For example, are prosecutors for contempt inferior officers, and if so may their appointment be vested by law in the courts, and if so has their appointment been so vested? There are also questions about constitutional principle and the separation of powers, and what powers are, as an analytical matter, core to each of the branches. And there are questions about what it means to “prosecute” contempt in the first place. Is criminal contempt totally distinct from civil contempt? Is criminal contempt a crime? Is its prosecution an executive function? If so, is investigating and ascertaining whether there is contempt also an executive function?

The tack that Aditya and I take is essentially historical. We trace two questions through time—whether federal courts have an “inherent” power of contempt (and what that means), and what distinguishes criminal contempt from civil contempt. On each point, we offer new sources and analysis.

Our view is that federal courts possess an inherent power of contempt enforcement. On this point, we distinguish two different things that could be meant by saying that a contempt power is “inherent”: (1) that federal courts have a power of contempt enforcement by default, unless changed by Congress; and (2) that federal courts have a power of contempt enforcement that cannot be changed by Congress. Our historical discussion includes letters between Jefferson and his attorney general, Ex parte Merryman, and cases from the early Republic through Michaelson; at least three of these important episodes involve federal courts considering whether to hold generals in contempt (including Major General Andrew Jackson).

We conclude that the contempt power is inherent partly in the first sense and partly in the second. That is, the contempt power is available by default in federal courts by virtue of their constitution as courts; and there is a core to the contempt power that cannot be taken away by Congress.

And we found that to determine who can prosecute criminal contempt, we had to dig into what criminal contempt actually. We therefore trace the emergence of the distinction between “civil contempt” and “criminal contempt.” Contempt of court was well recognized at the Founding and was the subject of two extensive classificatory schemes in Blackstone’s Commentaries, but “criminal contempt” was not distinguished as a separate category. We follow the trail for the civil/criminal distinction back to the NY codification in 1828 and a Chancery case in 1831. The latter case, Wellesley, is wild: an MP who was a friend of Lord Byron kidnapped his own daughter, who just happened to be a ward of Chancery at the time. He was held in contempt.

It takes a while for the distinction to solidify in the United States and in England, but the emergent distinction is between disobedience to judicial orders (civil contempt) and interference with the administration of justice (criminal contempt). Even as the labels “civil contempt” and “criminal contempt” took hold in the late nineteenth and early twentieth centuries, the Supreme Court recognized that the “criminal” label was somewhat fictive. A criminal contempt was not a crime in the ordinary sense (contra the novel and anachronistic statement of the Warren Court in Bloom).

These two lines of historical development come together in Part IV of our article, where we show that the contempt power is judicial, not executive. The ascertainment of contempt, declaration of contempt, and imposition of sanctions for contempt are judicial powers inherent in courts, and have historically been understood as essential to courts’ enforcement of their orders and protection of their processes.

We note various limiting principles as well. These sound in both the limits of the judicial power and in the prudent exercise of the judicial power (as illustrated by Ex parte Merryman). And the judicial power of ascertaining, declaring, and imposing sanctions for contempt does not extend to running prisons for contemnors: Alexander Hamilton was right that the judiciary is ultimately reliant on the executive branch for the enforcement of its judgments.

In other words, the judicial power of contempt does run out, but the question is where. As a historical matter, we conclude that ascertaining contempt and imposing sanctions for it are on the judicial side of the line, and that contempt “prosecutors” are really assistants that help the court in carrying out its thoroughly judicial power of contempt. They are not exercising executive power.

In our view, then, non-governmental attorneys appointed to prosecute contempt pursuant to Rule 42 either (1) are not inferior officers at all or (2) are inferior officers lawfully appointed by courts. In the draft, we briefly note the evidence supporting the first proposition, though we do not resolve the choice between these propositions and it ultimately does not matter: either way, it is lawful for courts to appoint contempt prosecutors pursuant to Rule 42.

As a matter of constitutional theory, lots of different answers could be given to whether a court may appoint a prosecutor for criminal contempt. As a matter of history, however, the better take is that an attorney appointed to prosecute contempt is exercising judicial power. We welcome thoughts, reactions, and corrections. We hope there’s much more in the article that will interest scholars of federal courts, separation of powers, and equity. Tolle, lege!

After puzzling over an interesting follow-up question about Pitchford v. Cain, we unpack a summary vacatur in Whitton v. Dixon. We then spend a while breaking down the latest developments in Allen v. Milligan line, in which we discuss the future of the Purcell principle and whether the Court should be unusually attentive to public appearances in election cases. We finish with Sripetch v. Jarkesy, where the Court rejects a requirement that the SEC prove victims suffered pecuniary loss before seeking disgorgement, with specific attention to the interesting Seventh Amendment question raised in Justice Thomas’s concurrence.

As always, comments are welcome below.

Litigation Finance Disclosure and the Federal Rules’ Generalism Principle, by William Marra (“If the Court and the Advisory Committee wish to enact a third-party funding disclosure rule, they should consider a blanket rule requiring the disclosure of all forms of third-party funding. But the proposed disclosure rules would pick favorites among litigants and causes of action, making precisely the sorts of substantive policy distinctions that should be made, if at all, by the political branches.”) Not sure about this one either, but again a good topic.

And of course there is Richard’s What is the Business of the Warren Court? with a startling reminder that the battle lines on various issues were not firmly drawn 50-70 years ago in the way they obviously are today.

Finally, the 2025 Supreme Court Review is out! This volume is dedicated to my colleague Geof Stone, who has decided to retire from the journal after 35 years of dedicated service. Most of the pieces require academic journal access, unfortunately, but there are some great ones in there.

I have a new draft paper that explores this set of questions. The piece (“What is the Business of the Warren Court?”) is in dialogue with a characteristically astute essay by Professor Pamela Karlan that in turn reacts to my Foreword for the Harvard Law Review. Following Karlan, the new paper focuses on issues of race, democracy, and judicial strategy (as opposed to, say, religion).

Here is the abstract:

Today's Supreme Court is conservative whereas the Warren Court was liberal. Yet the substantive principles underlying these two Courts are more compatible than one might think. Conservativism and liberalism are dynamic terms whose meaning changes over time, and the two Courts faced different questions during their respective eras. Abstract principles of racial justice and pro-majoritarian democracy cannot sharply differentiate these Courts, and both Courts also made extensive use of the impassive virtues. Central examples include affirmative action and majority-minority districting. Partly for these reasons, the Warren Court is fading from our collective memory, with the present Court taking its place. The present essay continues a conversation in print with Professor Pamela Karlan and complements my Foreword for the Harvard Law Review, entitled "To a Conservative Warren Court.”

This is an in-progress draft, so comments are especially welcome.

The article’s chief example is Seven County Infrastructure Coalition v. Eagle County, where Justice Kavanaugh deplored the effects of the National Environmental Policy Act: “Delay upon delay, so much so that the process sometimes seems to “borde[r] on the Kafkaesque.” But three other cases, including FDA v. Wages & White Lion Investment (e-cigarettes), Trump v. CASA (nationwide injunctions), and Trump v. Wilcox (for-cause removal), also seem to fit:

Taken together, these cases afford the President greater managerial control over the administrative state and display a more deferential approach to judicial review of executive branch action than has been typical in recent years. That jibes with the abundance agenda’s interest in reducing procedural burdens and improving state capacity. For now, the Court’s embrace of abundance is tentative and selective. The cases probably say more about the Justices’ politics than they do about judicial principles. But there is something here to build on, if the Court wishes to build on it.

To be very clear, I don’t think for a moment that the justices have become advocates of the abundance agenda. Nor do I think the Supreme Court is—or ought to be—at the center of a reform movement whose energies should be directed at the state and local level, as David Schleicher and I have argued.

But I do think it’s worth noting when abundance-related themes pop up in places you might not expect. More to the point: the Court’s cases from last term offer an unusually good opportunity to reflect on what a “law of abundance” might be, especially when it comes to administrative law:

The core of “the administrative law of abundance” is a belief that America has wrongly elevated procedures and courts at the expense of politics and agencies. Understood that way, the law of abundance is not organized around any substantive policy commitments. It calls, instead, for more democratic churn. Proponents of the law of abundance wager—rightly, I think—that letting democracy rip would reduce artificial scarcity. Americans overwhelmingly want more housing, better infrastructure, and clean energy. But that’s a contingent fact about the world and could easily change. If it did, the law of abundance would have nothing to say about it.

The law of abundance is also about state capacity—roughly, the ability of the government to get stuff done. As Rick Pildes has rightly argued, “[p]olitical and legal theory, as well as debates about political reform and legal doctrine, give too little weight to the importance of effective government in the central values [that] democratic governments must aim to realize.” Without effective government, there’s no hope of achieving the democratic ambitions of the American public. And across too many institutions at too many levels, American government is not performing as it should.

The piece closes with a reflection on what a healthier and more democratic approach to administrative law might look like—and how that approach may have some affinity with Justice Barrett’s thinking:

She was the lone justice to call for deference in both Ohio v. EPA and Seven County. She also wrote Trump v. CASA and, anticipating the decision in White Lion, pushed in her Ohio dissent for a more forgiving harmlessness analysis. She has likewise signaled her discomfort with “universal vacatur” under the APA. Justice Barrett is not uniformly pro-deference: she joined the majority in overturning Chevron, for example, and has supported the strict application of the major questions doctrine. But administrative law in her hands appears to combine a hard look at an agency’s legal authority with a soft touch on arbitrariness review. That resonates with the approach sketched out by Jeff Pojanowski, her former colleague at Notre Dame, in Neoclassical Administrative Law.

You can find the piece here (gated, alas)!

Two years ago, Justice Breyer wrote a book impugning textualism. His marquee example involved a homely case related in a French newspaper article. A railroad had the following rule: “Passengers cannot bring animals on the train except in a basket, in which case they must buy a ticket for the animals.”

Did that rule apply when a passenger brought on the train snails contained in a basket? The point of this question was to show that the rule’s text, which seems to apply, cannot automatically control the result. Non-textual factors, like purpose and pragmatism, must come to bear.

Last year, Alana Frederick and Judge Kevin Newsom, two insightful and delightfully creative legal thinkers, emphatically rejected Breyer’s conclusion. They argued that the plain text should control and that Breyer’s pragmatism was bad. However, the authors did write a long footnote reserving some residual uncertainty, pending further research.

Now, Frederick and Newsom have written a new paper that takes a revised position in “the Great Snail Debate.” Based on a new theory of “contextual textualism,” the authors believe the snails should ride for free after all. So much for the plain text that the authors had studied just a year earlier.

Moreover, Frederick and Newsom have reversed course for reasons that resemble the ones that Breyer originally laid out. As the authors themselves put it: “perhaps most surprisingly of all, it just might turn out that the very considerations Justice Breyer viewed as bases for departing from the regulation’s text—purposes, consequences, etc.—are important constituents of a properly contextual understanding of the rule’s language.”

What is left, then, of textualism? Frederick and Newsom contend that their approach is different from Breyer’s because they remain ultimately trained on the statutory text and, more specifically, on how an ordinary person would understand it. But does that theoretical difference really matter, if they remain prepared to deviate from textual meaning in the face of non-textual factors? Indeed, in the face of much the same non-textual factors as Breyer?

At one juncture, the authors use Church of the Holy Trinity v. United States—a paradigmatically non-textualist ruling—as their foil. Their discussion trades on a supposed concession by the Court: “The Supreme Court all but admitted that the law would have been ordinarily understood to criminalize the church’s actions.” However, the Court did no such thing.

Yes, Holy Trinity did distinguish between the “letter” and the “spirit” of the law, consistent with centuries if not millennia of interpretive tradition. But in candidly acknowledging that the letter of the law cut against its result, the Court had not “effectively conceded” how the law would be “ordinarily understood.”

Instead, the Court was (roughly) distinguishing between literal meaning and a kind of non-literal meaning—which is something that Frederick and Newsom themselves do throughout their paper. The Holy Trinity majority even invoked the “common sense of man” — prefiguring Frederick and Newsom’s interest in “all manner of commonsense considerations.” (The current Court is wont to do the same.) Once the Court’s supposed concession is set aside, it is hard to see why Holy Trinity’s method is so different from “contextual textualism.”

To be clear, non-textualist approaches are not all the same, and I suspect that Frederick and Newsom would often reach different results from Breyer (or the Holy Trinity Court). Yet the main reasons for that divergence would not pertain to the dividing line between textualism and non-textualism.

Stepping back, it is remarkable that Justice Breyer is so in synch with contemporary conservative legal thought. His snail example closely resembles the fact pattern that opens Sam Bray’s brilliant discussion of the mischief rule. (Both Breyer and Bray found examples involving not just animals, but also trains!) Meanwhile, originalists are embracing Breyeresque purposivism, while Breyer’s enthusiasm for balancing also finds new supporters among conservative scholars. And then, of course, there’s the major questions doctrine….

The legal realignment continues.

I will leave to election law scholars the tangle of whether Callais requires this rapid reversal, and whether the three-judge court took sufficient notice of the new direction in Callais. But I want to call attention to the application of the Purcell doctrine in the per curiam opinion. The application comes in a single paragraph:

The State has also made a strong showing of irreparable harm and that the equities and public interest favor it. We have repeatedly cautioned that lower federal courts should not “alter the election rules on the eve of an election.” Republican National Committee v. Democratic National Committee, 589 U. S. 423, 424 (2020) (per curiam). Here, the District Court interposed itself into Alabama’s ongoing efforts to conduct its imminent 2026 congressional elections under maps that its elected representatives selected. Its view that conducting the elections under court-imposed maps would be more convenient for the State was not a valid justification for that intervention. While federal courts should not impose changes close to an election, ibid., States are free to decide for themselves whether last-minute changes to an election are in their best interests.

Three brief observations:

First, the Court is treating the Purcell doctrine not as a separate doctrine outside of the equitable analysis, but rather as part of the ordinary equitable analysis for an injunction. That is, the Court is locating Purcell in “irreparable harm and . . . the equities and public interest,” which are conventionally the last three factors of the preliminary injunction and stay tests. This “normalizing” or “naturalizing” or “assimilation” of Purcell is nowhere more obvious than in the fact that the per curiam does not cite Purcell; all the citations are in the dissent. This observation aligns with Derek Muller’s post about a month ago on Abbott v. LULAC, where he concluded: “Abbott v. LULAC shows that Purcell is a refinement of equitable principles in the context of elections.”

Second, the Court is expressly treating Purcell as a one-sided doctrine not a two-sided doctrine. That is, it is a restriction on late-breaking actions by federal courts, but without taking into account late-breaking actions by state legislatures. Now previous decisions from the Supreme Court already had that pattern of differentiation, but Allen III puts a sharp point on it in the last quoted sentence above.

The effect of the Court’s formulation in future cases could be to shut down opportunistic timing of suits by litigants who challenge state election changes, but to green-light the opportunistic timing of election-law changes by states. Yet perhaps that line is just dicta. After all, here the state legislature may have moved as quickly as it could have, given the injunction. Indeed, in this case, deciding whose actions are “late-breaking” is actually complicated, because of Callais and the fallback quality to the latest Alabama legislative action. And it also depends somewhat on Alabama law: the dissent notes various ways Alabama’s hands might be unclean (and unclean hands is relevant), and an additional way might be the possibility that the legislature was violating Alabama law (cf. McClintock’s Handbook of the Principles of Equity: “Almost always the violation of any statute will make a party’s hands unclean.”). Yet all of this is pretty complicated.

Whether there was bad faith here by the legislature, or unclean hands, is not something on which I have formed an opinion—I would need to dig more into the record. But note that all this factual complication simultaneously (1) makes the Court’s action more permissible while also (2) undermining the force going forward of the line that “States are free to decide for themselves whether last-minute changes to an election are in their best interests.” If the state legislature was not opportunistically delaying in order to avoid judicial review, for example, then Allen III can’t control cases where a state legislature is opportunistically delaying in order to avoid judicial review.

Third, these two developments are in tension. I think it makes a lot of sense to assimilate the Purcell principle to equity, treating it as a specific instantiation for election law of general equitable concerns. Within the preliminary injunction and stay tests, this probably fits best with the public interest as a concern for the orderliness of state elections. Late-breaking changes by federal courts, all else being equal, disserve the public interest. And where there is bad faith by one of the parties, that is certainly relevant for irreparable injury and the balance of the equities.

But the question of bad faith, ever-relevant for equitable relief, is a factual one, and it cannot be determined by appeal to presumptions. Any presumption of good faith for the state, in other words, must be defeasible, and whether the presumption is rebutted in any particular case is itself a factual question. (An astute reader of this post noted to me the parallel with Younger abstention: the federal courts will not usually enjoin criminal proceedings in state court, but that presumption of abstention is defeasible, and bad faith is one of the grounds for a federal injunction.)

Moreover, Purcell fits with equity’s concern, manifested in a number of doctrines and maxims, about the court not being manipulated or made an instrument of injustice. That is, Purcell reflects a legitimate concern that litigants challenging election laws can sandbag, hanging back and disrupting elections with last-minute challenges. Some cases in which the Purcell principle is now invoked are far distant from that concern, but the concern itself is legitimate.

But if the Purcell principle is going to be located within the ordinary equitable analysis, it will not fit how equity works to have it be one-sided and selective in its concern for opportunism. Equity is pervasively concerned with opportunism, as Henry Smith has shown in his fantastic article Equity as Meta-Law, which is the place to begin for understanding what equity means by opportunism. The myriad equitable doctrines and maxims that respond to equity are concerned with opportunism in the round.

Take laches, for example: laches will block or limit the equitable relief given to a plaintiff who unreasonably delays in suing, where that unreasonable delay causes harm to the other side. There is no laches doctrine especially restricting property owners, or especially restricting non-property owners. Laches reflects the sensitivity of a court of equity to how its relief is vulnerable to abuse (a theme I develop in The System of Equitable Remedies). But no one gets a free pass.

“No one” needs an asterisk: laches doesn’t usually apply to the government. But equity’s concern with opportunistic action still does apply to the government. Consider the unclean hands doctrine. It is true that it applies differently to the executive branch than it does to private litigants. But again there is no free pass: as Will Baude and I have shown, unclean hands doctrine does apply to the executive branch when it seeks equitable relief. And again consider the example of Younger: state judicial proceedings are treated differently in federal court, but bad faith prosecution is a way for a state to lose that special treatment.

In short, if the Purcell principle is going to be assimilated to equitable analysis, it will not cohere—to put it more sharply, the body of equitable doctrine will reject the transplant—if it is a doctrine that constrains opportunism by challengers and simultaneously green-lights opportunism by state legislatures. The concern for opportunism might play out differently for state legislatures than for challengers, but equity cannot give anyone a “Get Out of Jail Free” card.

Here’s how I put the point last year in Preliminary Injunction Realism, a festschrift piece for Doug Laycock:

The Purcell Principle could be seen as a timing doctrine specific to election law, or as an aspect of the public interest. See Richard L. Hasen, The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law, 134 YALE L.J. 1673 (2025); see also Brooks M. Chupp, Equitable Balancing in the Purcell Framework, 16 DREXEL L. REV. 507, 521–22 (2024) (listing other ways Purcell could intersect with equitable analysis). There is nothing wrong with equitable considerations outside the four factors, and it is appropriate for a judge’s preliminary injunction analysis to be sensitive to the policies of the substantive law. After all, “equity follows the law,” including election law. But timing-related doctrines in equity, preeminently laches, are alert to abuse by both parties; they appraise each party’s good faith. For the Purcell Principle to cohere with equity, therefore, it needs to be similarly alert to opportunism not only by the plaintiffs who challenge new legal norms, but also by the legislatures and executive officers who enact and enforce them.

Now there is a way to resolve this, even if Purcell, or the doctrine formerly known as Purcell, still remains narrowly about the timing of actions by federal courts. First, the Court will need to say what the connection is between the public interest and the timing of actions by federal courts (e.g., is it, as I suggested above, the public interest in the orderly conduct of elections?). Second, the Court will need to be explicit that the scope of the public interest considerations are not limited to the Purcell principle. This is a statement of the obvious, but there is no reason there can’t be a Purcell principle about equity avoiding opportunistic timing by challengers and a Schmurcell principle about equity avoiding opportunistic timing by those they challenge.

If there were such a Schmurcell principle, there is no certainty it would apply in this case—again, perhaps the legislature moved as quickly as it could and is not acting opportunistically and trying, for example, to avoid judicial review of its actions. And there is no reason they have to be formulated the same way and apply with the same severity.

But however these principles are formulated, and however they might apply in this case, the point is that courts of equity need to be attentive to how their powers can be abused by litigants, and the threats never come just from one direction.

Meanwhile, another one from Funes, this time in the Yale Law Journal — The “Code American” and Law’s Empire, a review of Kellen Funk’s book. Also, of course, with a Hawaii application.

Also in the YLJ — Meaning, Understanding, and Contextual Textualism, an interesting and less literalistic turn from Alana Frederick and Judge Kevin Newsom.

And of course Richard and I have the post from SCOTUSBlog, cross-posted this morning, on the problem with judicial invocations of “common sense.”

Some examples

Major questions and tariffs

The most striking recent example of the commonsense turn is the tariffs case, Learning Resources v. Trump. As one of us described the key facts last month:

[Learning Resources] featured not just debate over the major questions doctrine but also dozens of references to “common sense” or “commonsense,” even though the case featured a 6–3 lineup and seven sharply divergent opinions. Many of these uses of “common sense” did not reflect the plain meaning of statutory terms but instead represented controversial intuitions about the proper operation of government. … Remarkably, every justice in Learning Resources authored or joined a “common sense” opinion.

The jurist most skeptical of the “commonsense” turn was Justice Neil Gorsuch, whose concurrence forcefully criticized Justice Amy Coney Barrett’s quasi-canonical invocation of common sense in her own Biden v. Nebraska concurrence. As he put it, “if common sense really does go so far as to embrace a rule counseling ‘skepticism’ of claims by executive officials that Congress has granted them extraordinary powers, that is common sense in name only.” Gorsuch nonetheless joined the portion of the chief justice’s opinion that repeatedly invoked “common sense.”

Learning Resources thus illustrates not just the rise of common sense judging, but also the emergence of resistance to it.

Standing and Diamond Alternative Energy

In the 2025 decision in Diamond Alternative Energy v. EPA, in which the court held that fuel producers had standing to sue the EPA, Justice Brett Kavanaugh’s majority opinion repeatedly emphasized common sense.

Consider the following passage, which uses “commonsense” in four successive sentences:

In cases of [a certain] kind, this Court’s analysis of causation and redressability has recognized commonsense economic realities. When third party behavior is predictable, commonsense inferences may be drawn. Importantly, EPA agrees that “commonsense economic principles” can be useful when evaluating Article III standing. In this case, those commonsense economic principles support the fuel producers’ standing.

In dissent, Justice Ketanji Brown Jackson recognized the court’s distinctively commonsensical mode of argument and responded in part by challenging it:

I have no quarrel with relying on common sense as a general matter. But we should acknowledge that what counts as a “commonsense” inference to the Justices on this Court may not be viewed as such by others.

In total, “common sense” or “commonsense” appear over a dozen times in the Diamond Alternative Energy opinions.

The Second Amendment and Rahimi

In 2024’s United States v. Rahimi, in which the court upheld a federal law banning persons subject to a domestic-violence restraining order from possessing a gun, the chief justice’s majority opinion also invoked “common sense,” noting that certain practices “confirm what common sense suggests.”

That statement paired well with the court’s turn toward “principles” discernible from history, rather than specific historical analogues. In that vein, Barrett’s separate writing quoted one of her own lower court opinions: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” (Though she did not explain which is doing the work – history, or common sense.)

Much has been written about the pliability of history and tradition in Second Amendment doctrine. But the other opinions in Rahimidemonstrate the pliability of common sense as well. Justice Sonia Sotomayor invoked commonsense, including by quoting Justice Stephen Breyer’s dissent in New York State Rifle & Pistol Association v. Bruen. Had the court adopted a “rigid approach to [] historical inquiry,” she worried, it would have made it “‘nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.’”

And Justice Clarence Thomas’ dissent used commonsense, too. “If self-defense is ‘the central component of the [Second Amendment] right,’ then common sense dictates that it matters whether you can defend yourself with a firearm anywhere, only at home, or nowhere.” (Left unanswered: whether a particular “sense” can truly be “common,” when it is conditioned on knowing a somewhat arcane point of constitutional law.)

More

Recent scholarship confirms that common sense reasoning is spreading throughout public law. A forthcoming article by Brian Murray addresses “Common Sense Constitutionalism and the Fourth Amendment.” A forthcoming article by William Aceves criticizes Kavanaugh’s invocation of “common sense” in Noem v. Vasquez Perdomo, as did a post by Jennifer Chacón. We understand that more common sense scholarship is in the pipeline.

Is “commonsense” judging good?

This commonsense turn is understandable. But ultimately, we think, problematic.

Part of the problem comes from the plasticity of assertions of common sense. In principle, “common sense” could refer to true consensus – a sense held commonly by all, across ideological and other boundaries. Universally held precepts are an important part of legal reasoning. Traditional legal principles like the absurdity canon and the “golden rule” employ them. Arguably forms of unwritten law such as natural law, general law, and customary law can also derive from various kinds of consensus – though these forms of law become much more controversial and of questionable authority the more contested the supposedly common ground.

But today’s common sense turn is not limited to true consensus. Rather the justices (like many other people) often invoke “common sense” when asserting controversial views. They may do so naively, because they erroneously believe that everyone agrees with them; or they might do it more tactically. As a rhetorical maneuver, invoking common sense has the advantage of distancing oneself from a complicated, highfalutin legal analysis. Rather than parsing subsections, multiprong tests, or obscure legal authorities, a lawyer or judge might try to cut through the muck by positing, “It’s just common sense that X, Y, and Z!” But if that common sense is controversial, not truly common, then the rhetorical maneuver amounts to a form of table-pounding rather than an argument.

For decades, adherents to textualism and other formalist methodologies fought to diminish legal maneuvers such as the use of legislative purpose, judicial creation of exceptions for special circumstances, and so on. They made arguments about rules, the perils of judicial discretion, the legal legitimacy of enacted texts, and more. Invocations of common sense allow a judge to soften these commitments without explicitly saying so – and perhaps without fully thinking through the nature of the softness.

Thus one can see the turn to commonsense as a feature of our ongoing legal realignment. Justices long associated with more rigid judicial philosophies are pivoting to more discretionary modes of decisionmaking. Or, more modestly, even if there is not a complete realignment one could see the common sense turn as reflecting the way various rigid doctrines had overextended themselvesthrough exaggerated rigidity and must be modestly trimmed back. Either way, common sense can seem attractive. It provides an unobtrusive cover for a retreat or realignment without coming to terms with what is going on.

In our view, commonsense judging is becoming too common. Even if judges should indeed have a good measure of common sense, and should use it sometimes, it has gone too far. Invocations of common sense have submerged important questions about legal interpretation – if textualism or standing doctrine need a nudge, it is probably time for the court to say so explicitly. The justices have obscured real disagreements with empty rhetoric, and as a result passed up opportunities to forge meaningful compromises.

The act of translating one’s own views (including common sense intuitions) into legal arguments can be difficult, in part because it is disciplining. When justices (or judges, clerks, lawyers ...) are tempted to invoke common sense, they should pause and reflect on what claim they really intend to make. An assertion of consensus? (And if so, is it really true?) A tweak of a too-rigid doctrine? (And if so, what tweak, and with what possible downstream consequences?) A distracting bluster? (And if so, distracting from what?)

And when all of us hear unconvincing assertions of common sense, we can gently push back. “Have you thought about how I might think about this?”, one might ask. “And if we disagree, what legal rule supports your sense over mine?”

Cross-posted from SCOTUSBlog.

The multifactor test appears to date to the middle of the twentieth century. An article by Mitchell Johnston suggests the 1960s was the key date for the emergence of multifactor tests that have a series of steps. I found a similar phenomenon with the four-factor test for the preliminary injunction (p. 827 here). And now they are everywhere, in substantive law, procedural law, and remedial law. Like the great article title by Gary Lawson, we seem to be faced with “the rise and rise” of multifactor tests.

But there is something odd about this apparent success of multifactor tests—success, that is, in a Darwinian sense. What does the existence of the multiple factors actually do?

The plaintiff says that all the factors favor her. And the defendant says that all the factor favor her. By itself, that polarized pairing might not seem so odd, but then there’s this: the court decides the case, concluding that all the factors favor one party or the other. Sure, there are occasional exceptions. But they are rare. Usually all the factors line up. Yet the factors are supposed to have some independence, or else what’s the point of having a multifactor test?

In trademark law, two decades ago Barton Beebe found that “judges stampede specific factor outcomes to conform to or support the overall test outcome. The data suggest that judges determine the test outcome based on a limited number of core factors and then adjust the rest of the factor outcomes to accord with that result.” Thus, in Beebe’s telling, “This represents strong evidence of coherence-based reasoning in the courts.”

Two decades earlier still, Dick Fallon offered a “constructivist coherence theory” for interpreting the Constitution. He noted the phenomenon that for an interpreter of the Constitution in any particular instance, all of the familiar kinds of constitutional argument—text, framers’ intent, larger purpose, precedent, and justice or social policy—will tend to point in the same direction.1 As Fallon put it, “within our legal culture, it is the rare judicial opinion, the anomalous brief, the unusual scholarly analysis that describes the relevant kinds of arguments as pointing in different directions.” To be sure, Fallon was not describing a multifactor test per se—rather, a set of multiple kinds of argument, which do not have a clear order of operations. Even the most dominant argument, the argument from constitutional text—the one argument on which every successful constitutional litigant must at least fight to a draw—does not have to be the first one considered by a court.

More recently, I have diagnosed a collapse of the preliminary injunction test, with the single factor of the prediction of the merits often deciding whether a preliminary injunction will or will not be granted (see here and here). Which is not good, since the point of the PI is not to decide the merits, but to preserve the court’s ability to later decide the merits. To be sure, however, that collapse has not been total, and there are decisions from the Supreme Court that emphasize the provisional and jurisdiction-saving quality of the preliminary injunction (see, e.g., Lackey v. Stinnie).

So we seem to be in a long phase of multifactor decadence, where multifactor tests and their fellow travelers seem to be everywhere and nowhere; they seem to be formally present but not really doing much operational work. (I reserve judgment on how much multifactor tests used to do work; I will say that for preliminary injunctions, the equities used to be more important than the merits prediction.)

This seems to be an existential failure: it’s supposed to be multifactor, but it turns out to be a kind of unifactor test. What’s happening?

One answer is that the factors are analytically interconnected, and that the reasoning process is iterative, with the factors gradually converging in a deliberative equilibrium. This is Fallon’s account, and he emphasizes the interconnectedness of the types of constitutional argument with respect to values.

Although there is force to Fallon’s argument, I don’t think it is a full explanation. For one thing, the relative strength of the different constitutional arguments has shifted since the 1980s, and arguments drawing on history have waxed as some others have waned. An article describing our practice of constitutional interpretation today would probably not, as Fallon’s article did, use cognates of value 255 times.

For another thing, a lot of multifactor tests don’t seem to rely on an iterated process of interpretive deliberation. When Fallon wrote his article on constructivist coherence interpretation, it was thirty years before the shadow/interim docket became so central to the Court’s work. Criticisms of that docket will fault, among other things, the lack of deliberation. Whenever someone endorses a particular action by the Court on the interim docket, the argument tends to be not that there’s been so much deliberation, but rather that an emergency situation called for the Court to act without the ordinary deliberation. Justified or not, any particular action by the Court on the interim docket does not look much like Fallon’s process of consideration and reconsideration, with reciprocal influence of the arguments and iterated reassessment of their force. At a minimum, Fallon’s analysis does not fit what is happening with stays of preliminary injunctions.

Amid this multifactor malaise, perhaps there is another way to think about what multifactor tests do. In our adversarial system, the plaintiff needs to tell a story and the defendant needs to tell a story. What the multifactor test does is establish what plot points the story must contain. Tell your story and make sure you hit all these points. You can’t leave any of them out. But it is the story that persuades the judge or doesn’t persuade the judge. That is, the persuasion happens at the level of the story as a whole, not the plot point. And then, persuaded by one story or the other, the judge then writes out that story, hitting all the same plot points required by the multifactor test.

I don’t mean to suggest this is how all multifactor tests work all the time. Nor do I mean to suggest an unvarying approval or unvarying disapproval of this kind of narratival function for the multifactor test. But I am suggesting, descriptively, that the tests can work this way.

Even when this narrative explanation fits, we still don’t want stories with just a single plot point. If the multifactor test is going to do any work, the plot points should not collapse together. But then, even when the plot points are independent, it shouldn’t be surprising when courts usually find that all the factors wind up pointing in the same direction.

Prosecuting Contempt, by Sam Bray and Aditya Bamzai. A defense of the judicial appointment of prosecutors for contempt as part of the judicial power — contrary to the growing revisionist take. (With a rethinking of the criminal/civil contempt distinction along the way.)

In Search of University Democracy, by Daniel Hemel and David Pozen. This is not how I would want my university to be run, but anything co-authored by these two is worth reading asap.

We are joined by guest co-host Professor Pam Karlan at the American Law Institute Annual Meeting for the last live show of season 6. We work through a busy stretch of the interim docket: the Alabama GVR in Allen v. Caster and what Callais has done to Section 2; the denied stay in the Virginia redistricting fight, Scott v. McDougle; and the mifepristone cases, Danco and GenBioPro v. Louisiana, where Thomas rides the Comstock Act alone and Alito takes it personally. Then a turn to executive power and the term's looming merits decisions—birthright citizenship, the Federal Reserve, Humphrey's Executor—before audience questions on state voting rights acts, fixing the single-member-district statute, and whether you can wish yourself more wishes.

As always, feel free to post your thoughts below!

The Good: Strangely, since we are supposedly living in the age of textualism, I have not seen that much written about whether Callais provides a plausible or even good account of the text of Section Two. In my view, this is actually one of the strongest points for the opinion.

Here is the text of Section Two:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

That is a big wall of text. But some key phrases that emerge are that this is a test based on the “results” of the state voting law (rather than its intent), where "results” are then specified to ask whether the processes leading to the primary or election are “equally open to participation by members of a class of citizens protected by subsection (a).” And equal-openness is in turn specified as asking whether members of that class “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

So this is a comparative results test — there is some baseline opportunity to participate and elect chosen representatives, and the statute requires protected groups to have at least those same opportunities.

Of course, comparative results tests always prompt the question: what is the baseline? It is a famous critique of such tests that there is no a priori, naturally-given baseline. A baseline must be chosen and defended.

One possible baseline would be proportional representation — members of a protected class should presumptively elect candidates in proportion to their population in the state. This may be somewhat intuitive, but it does run into the final proviso: "That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”

Now there are still ways to try to reconcile the provision and the proportionality principle (for instance the proviso speaks about the race of the elected officials rather than the race of the voters), but in any event it is worth asking whether there are other sensible baselines.

Another possible baseline would be a “similarly-situated” analysis. It would ask whether members of the protected class have the same opportunities as other citizens who share similar characteristics except for race. If so, then any negative “results” would not be “on account of” race, but on some other account.

An analysis like this is especially potent because people vote for the losing side in elections all the time — sometimes quite persistently — and sometimes for reasons that do not make their losses unlawful. It might be that the person has an unpopular view like libertarianism; it might be that the view is popular but that other people who share the view are distributed or concentrated in various ways; and so on. The question is how to read the VRA to isolate whether being on the losing side is the result of race.

A version of this baseline was described almost twenty years ago in a Seventh Circuit opinion written by Judge Frank Easterbrook. And it is a version of this baseline that the Court seems to adopt in Callais. And it seems to me to be a natural way to understand the text of Section Two of the VRA.

The best objection to this bottom line, I think, comes not from the text of the VRA but from the four decades of precedents interpreting it. Stare decisis in such areas is always fraught, but throughout those four decades other areas of the Court’s public law jurisprudence have been trending more and more towards a general principle of government colorblindness. Indeed, election law scholars have pointed out for decades that election law was anomalous in being an exception to this general principle. Callais goes some distance toward resolving the anomaly.

The Bad: Despite the defensible textual interpretation at the heart of Callais, the opinion is quite confusingly and strangely drafted in many other respects. To name just a few:

• The opinion implausibly and confusingly claims not to overrule Allen v. Milligan, even though more or less the same basic claim was made in that case, just in a much more confusing fashion. The subsequent GVR in Allen v. Caster exacerbates this problem.

• The opinion can be read to say that the discriminatory results test is really just a way of looking for an ultimate form of discriminatory intent. It can also be read not to say that. In the part of the opinion that responds to this charge from the dissent, the Court is so ambiguous that I suspect the ambiguity is intentional.

• The opinion is confusing in its gloss of the Shaw v. Reno standard. The cases had previously said that race discrimination in redistricting provoked strict scrutiny only if it “predominated.” Callais is ambiguous about whether it retains the predominance test.

• The opinion is also somewhat confusing in its treatment of the question of whether adherence to Section Two of the VRA constitutes a compelling interest that can justify race discrimination. It says several times that in previous cases this interest was assumed and that in this case they will finally have to decide whether it is a compelling interest. But it is hard to find the part of the opinion that actually does decide it, although the opinion says it decides it.

• Finally, this is the least of the issues, but the opinion is also somewhat confusing in its gloss on the strict scrutiny precedents. As of Students for Fair Admissions, the Court said that there were three compelling interests that could justify race discrimination under strict scrutiny — diversity in higher-education, remediating specific instances of illegal discrimination, and avoiding imminent risks to human safety. In Callais the Court reduced this list to the last two (remediation and safety) before adding adherence to the (properly interpreted) VRA. This would make sense if SFFA had held that diversity in higher education is not a compelling interest and that Grutter, Fisher, etc. were thereby overruled. But SFFA did not say that, at least in so many words. It would also make sense if one thinks that SFFA must be read to say that implicitly, and thus the Court is now making explicit what SFFA left implicit. But Callais simply does not address this, making it unclear whether it is implicitly endorsing this implicit reading, or just unaware of the ambiguities in the case law.

None of these points necessarily undermines the core textual analysis in Callais, but on the other hand, none of them is necessary to Callais’s holding either. They seem like unforced errors.

The Ugly: But in my view the most troubling thing about Callais is none of the above. It is the Court’s treatment of the role of partisanship in districting, and of the ability of avowed partisan gerrymandering to defeat any claim of racial gerrymandering. It is one thing to say that one must control for compactness, geographic distribution, etc. in deciding whether there has been a discriminatory effect under the VRA. But to say that one must also control for partisan goals may allow the dismantling of every blue majority-minority district in a red state.

There are many varieties of partisan gerrymandering — some focus on incumbent protection, some protect seats with a high margin of safety, some accept a lower margin of safety in exchange for a chance at more seats. This gives gerrymanderers many degrees of freedom in justifying a map against a VRA challenge. Additionally, many have pointed out that voters choose parties in part for reasons related to race. This makes the opposition of partisan gerrymandering to racial effect potentially artificial.

To be sure, there is some logic to Callais’s treatment of partisan gerrymandering. If districting for partisan purposes is just as permissible and just as legal as districting for any other traditional purpose, then the similarly-situated analysis would seem to extend to partisanship. And Rucho v. Common Cause famously (or infamously) eliminated constitutional claims against partisan gerrymandering.

But Rucho did not quite say that districting for partisan purposes is just as permissible and just as legal as districting for any other traditional purposes. It held that there were no justiciable objections to those partisan purposes — which is not the same thing as saying that they are totally cool and totally lawful. The slide from saying that partisan gerrymandering is non-justiciable to saying that it can defeat other justiciable challenges is seemingly technical, but it supercharges the effect of Callais.

Now that slide may have been an inevitable consequence of Rucho. There is not an easy space in constitutional doctrine for the category: “this purpose in no way invalidates legislative action but cannot be used to justify legislative action.” And the slide did not begin with Callais — Justice Alito’s 2024 opinion for the Court in Alexander v SC NAACP began with a similar claim about the lawfulness of partisan gerrymandering and its ability to rebut claims of racial gerrymandering.

So while there is something very disquieting about extending Rucho in this way, maybe there is no alternative if Rucho is correct. It does highlight, perhaps, the appeal of the old regime managed by Justice Kennedy under Vieth, in which partisan gerrymandering claims would never in practice succeed, but were never ruled out in theory. While intellectually unsatisfying and maddeningly uncertain, that regime had the advantage of keeping partisan gerrymandering in the “not-invalidating-but-not-justifying” box.

One other alternative to the current combination would have been to say that while partisan gerrymandering is not a forbidden criteria, it also does not count as a “traditional” districting criterion under the gerrymandering cases. Note, for example, that the Easterbrook opinion linked above, written pre-Rucho, did not describe partisan gerrymandering as one of the possible districting criteria one should control for. The summary-affirmance in Cox v. Larios could also be read to stand for the not-justifying-even-if-not-forbidden proposition.

It could be that the combination of Callais and supercharged partisan gerrymandering is legally correct. But it is not a pretty sight.

A Functional Theory of State Action, by Garrett West. “The state-action doctrine is a functional tool to manage the interaction between constitutional and subconstitutional law, … which suggests that constitutional interpretation must integrate theories about the other legal regimes that it sometimes preserves and sometimes displaces.” Very intriguing, even to a formalist.

Judicial Appointments Before Vacancies, by Vasan Kesavan. Speaking of formalism! A defense of nominating and confirming candidates to not-yet-existing vacancies, so long as they are not commissioned. The click-bait title would have been “Is Justice Jackson constitutional?”

Writing for the Holmes Devise, by Robert Post — Post explains and defends his choices in writing the Taft volumes for the Oliver Wendells Holmes Devise History of the Supreme Court (against this critique/self-explanation by Mark Tushnet)

Popular Conceptions of Fourth Amendment Curtilage, by Orin Kerr and Matthew Kugler. “This Article presents the results of three empirical studies, involving 600 participants each, in which members of the public were asked what places count as curtilage and what visits to homes are covered by implied license. . . . We found that the courts have curtilage wrong but implied license right.” I am not sure Fourth Amendment doctrine should depend on surveys, but I am always happy to see the open fields doctrine questioned. Anyway, a great collaboration.

Speaking of Fourth Amendment revisionism, let me also flag the IJ cert petition and Sacharoff amicus brief in Mendenhall v. Denver, which asks the Supreme Court to revive the original meaning of the oath-or-affirmation clause (“no Warrants shall issue, but upon probable cause, supported by Oath or affirmation”).

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In my view Boerne is right about a couple of high-level points. Congress’s Section Five power is to “enforce” the rest of the Fourteenth Amendment; and the power to enforce, even under the broad sweep of McCulloch v. Maryland, is not the same as the power to alter, revise, or change. So the Section Five power is limited to the power to enforce the Constitution, not the power to change it.

Boerne is wrong, however, to the extent that it equates the meaning of the Constitution with the Court’s understanding of the Constitution. The Constitution and the Supreme Court are not the same thing. Still, under the standard departmentalist view, while Congress is entitled to interpret the Constitution in the exercise of its own powers, the Court is entitled to interpret the Constitution in the exercise of its own powers, so judicial review of Section Five legislation would still proceed from the Court’s view about what the Constitution means.

These are two of the building blocks of Boerne. But even if one accepts the basic distinction between defining a congressional power versus carrying into effect, I think there are several subsequent issues that Boerne does not handle well.

One is how to think about doctrines that expound a general right in more specific terms -- i.e. what we might call decision procedures, implementing rules, or doctrinal specifications. Courts expound such things all the time, and that may be fine, even for originalists. But even if courts have authority to do this, congressional legislation need not expound the doctrine in the same way, nor is it necessarily invalid because it fails to do so. We’d need to know more about the doctrine in question.

Additionally, in many cases the courts’ doctrine is specifically based on separation of powers concerns that courts should avoid certain kinds of line-drawing or decisionmaking; in those cases it would be especially unlikely that Congress should have to follow the same doctrine. That is at the core of the McConnell critique of Boerne. And since so much of Section One of the Fourteenth Amendment is abstract, this is a ubiquitous problem.

A second issue with Boerne is how to think about enforcement legislation. Boerne seems to say that even for legislation that is in the enforcement category rather than the interpretive category, the Court still gets to review the scope and nature of the enforcement quite substantially. That is part of congruence and proportionality. But that seems to be significantly stricter than the McCulloch standard, or than the 1868 gloss on the McCulloch standard.

Third there is the issue of certainty and clarity. When deciding whether a state has violated Section One, courts regularly give the state at least a little bit of a presumption of constitutionality, especially once we get beyond race discrimination and violations of the bill of rights to other kinds of discrimination and to unenumerated rights. But the states should not get the same kind of presumption once there is a statute enacted under Section Five. Indeed, if anything the presumption of constitutionality should now point in the other direction, leading courts to defer to Congress under Section Five just as they would have deferred to the states under Section One. This is Chris Green’s critique.

Now if one thinks all constitutional questions should be decided with zero presumption in favor of legislative or executive action, maybe this issue would disappear, but Boerne does not state such a rule and the Court certainly does not employ one in all Fourteenth Amendment cases.

Perhaps one could supply an account of all three of these problems in which there would still be substantial judicial review of Congress’s enforcement power. But I don’t think I’ve read one, and I don’t think the results would look that much like Boerne.

Finally, it is also worth thinking about the lesson of the Thirteenth Amendment’s enforcement power. Many of the proponents of the Fourteenth Amendment thought that the Thirteenth Amendment justified the Civil Rights Act of 1866. (Not all, of course — importantly, both Andrew Johnson and John Bingham did not think so, which is one reason we ended up with Sections One and Five of the Fourteenth Amendment.) For the Thirteenth-Amendment-Civil-Rights-Act position to be even plausible, let alone correct, one would need a broader view of the Thirteenth Amendment enforcement power than the view taken in Boerne. And the Fourteenth Amendment’s is written the same way.

Now, it may well be that the Thirteenth-Amendment-Civil-Rights-Act position was not right, and it might even be that it was not plausible. David Currie reports that the arguments for broad enforcement power under the Thirteenth Amendment were made only after the ink was dry on the Amendment, and suggests that they were post hoc rationalizations rather than the meaning of the Amendment as it was ratified. But even if that is true, these Thirteenth Amendment arguments were made before the Fourteenth Amendment was passed. So even if the arguments came too late to convince us of the scope of the Thirteenth Amendment, they might still inform the meaning of the Fourteenth.

Merits Positions and Supreme Court Voting on Stays and Injunctions, by Greg Goelzhauser (also the author of The Applications Docket). “This paper presents empirical evidence that Supreme Court voting on stays and injunctions is associated with justices' expected preferences for resolving the merits. This result is especially pronounced when the merits remain pending before a lower court.”

The Interim Docket, by me. My take on the transformation of the Shadow Docket, both in name and substance, with some suggestions about what has been lost and might be recovered. Still waiting on SSRN approval, but you can download the PDF here.

The Court’s latest Voting Rights Act decision, Louisiana v. Callais, narrows Section 2 in a way that could reshape redistricting, weaken majority-minority districts, and intensify the fight over how race and partisanship interact in elections. … We walk through the statutory text, the long-running collision between the Voting Rights Act and the Court’s racial gerrymandering cases, and the practical consequences for future election-law litigation. … The conversation also covers the Court’s emergency procedural move after judgment, Justice Kagan’s forceful dissent, and the broader question of whether the decision is likely to help one party more than the other in the short run.

Comments welcome!