Speech Tyrants Would Seek To Suppress

Yes, if I were king, I would not allow people to go about burning the American flag.  However, we have a First Amendment, which says that the right of free speech shall not be abridged.  And it is addressed, in particular, to speech critical of the government.  I mean, that was the main kind of speech that tyrants would seek to suppress.

Burning the flag is a form of expression.  Speech doesn’t just mean written words or oral words.  It could be semaphore.  And burning a flag is a symbol that expresses an idea -- "I hate the government," "the government is unjust," whatever.

-- Supreme Court Justice Antonin Scalia (1936 - 2016) in an interview on Piers Morgan Live (18 July 2012), discussing his vote to protect flag burning as speech in Texas v. Johnson, 491 U.S. 397 (1989) (via CNN)

Sleek, Simple, Utopian

One persistent strand in utopian thinking, as we have often mentioned, is the feeling that there is some set of principles obvious enough to be accepted by all men of good will, precise enough to give unambiguous guidance in particular situations, clear enough so that all will realize its dictates, and complete enough to cover all problems which actually arise.  Since I do not assume that there are such principles, I do not presume that the political realm will whither away.  The messiness of the details of a political apparatus and the details of how it is to be controlled and limited do not fit easily into one's hopes for a sleek, simple utopian scheme.

-- Robert Nozick (1938 - 2002), American libertarian philosopher and Pellegrino University Professor at Harvard University, Anarchy, State, and Utopia (1974) Ch. 10 : A Framework for Utopia; Utopian Means and Ends, p. 330

Constitutional Harms

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation.  The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.  In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.  These gerrymanders enabled politicians to entrench themselves in office as against voters' preferences.  They promoted partisanship above respect for the popular will.  They encouraged a politics of polarization and dysfunction.  If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

And checking them is not beyond the courts.  The majority's abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims.  Those standards satisfy the majority's own benchmarks.  They do not require -- indeed, they do not permit -- courts to rely on their own ideas of electoral fairness, whether proportional representation or any other.  And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process.  But yes, the standards used here do allow -- as well they should -- judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms.  In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland.  In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

-- Supreme Court Justice Elena Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, dissenting in Rucho v Common Cause (27 June 2019) in which they anticipated the escalating gerrymanders attempted by Texas and threatened by California this year

The Basic Right

In 1957, as the leader of the majority in the United States Senate, speaking in support of legislation to guarantee the right of all men to vote, I said, "This right to vote is the basic right without which all others are meaningless.  It gives people, people as individuals, control over their own destinies."

-- President Lyndon B. Johnson, remarks in the Capitol Rotunda at the Signing of the Voting Rights Act (6 August 1965, 60 years ago today), Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1965. Volume II, entry 394, pp. 811-815

Horrific

It's the most truthful and easiest thing to say that Oct 7th in Israel was horrific and all hostages must be returned, but so is the genocide, humanitarian crisis, and starvation happening in Gaza.

But a Jewish U.S. Representative calling for the continued starvation of innocent people and children is disgraceful. 

His awful statement will actually cause more antisemitism.

-- Representative Marjorie Taylor Greene (R-GA), in an X post condemning Representative Randy Fine (R-FL), who earlier tweeted "Release the hostages.  Until then, starve away." (28 July 2025)

Opposed By Watchful Men

I am a member of a party of one, and I live in an age of fear.  Nothing lately has unsettled my party and raised my fears so much as your editorial, on Thanksgiving Day, suggesting that employees should be required to state their beliefs in order to hold their jobs.  The idea is inconsistent with our constitutional theory and has been stubbornly opposed by watchful men since the early days of the Republic.

-- Elwyn Brooks (E.B.) White (1899 - 1985), American essayist, columnist, poet, and editor, best known today for his work in a writers' guide, The Elements of Style, and for three children's books: Charlotte's Web, Stuart Little, and The Trumpet of the Swan, generally regarded as classics, Letter to the New York Herald Tribune (29 November 1947)

Affirmed

Article II of the Constitution establishes the scope of presidential powers.  The President has the power to issue executive orders if they "stem either from an act of Congress or from the Constitution itself," on matters that fall within that scope established by Article II.  But one power that the President was not granted, by Article II or by any other source, is the power to modify or change any clause of the United States Constitution.  Perhaps the Executive Branch, recognizing that it could not change the Constitution, phrased its Executive Order in terms of a strained and novel interpretation of the Constitution. 

The district court correctly concluded that the Executive Order's proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional.  We fully agree.  The Defendants' proposed interpretation of the Citizenship Clause relies on a network of inferences that are unmoored from the accepted legal principles of 1868.  This runs the risk of "‘extrapolat[ing]' from the Constitution's text and history ‘the values behind [that right], and then ... enforc[ing] its guarantees only to the extent they serve those underlying values.'"  We reject this approach because it is contrary to the express language of the Citizenship Clause, the reasoning of Wong Kim Ark, Executive Branch practice for the past 125 years, the legislative history to the extent that should be considered, and because it is contrary to justice.

-- Majority opinion of a 3-judge panel of the US Court of Appeals for the Ninth District, affirming a lower court injunction against President Trump's executive order denying citizenship to children born to undocumented immigrants (23 July 2025)

Human Material

Human material seems to have one major defect: it does not like to be considered merely as human material.  It finds it hard to endure the feeling that it must resign itself to passive acceptance of changes introduced from above.

-- Czesław Miłosz (1911 - 2004), Polish poet and essayist, 1980 Nobel laureate in Literature, The Captive Mind (1953) translated by Jane Zielonko (1990) 

Check That Lawlessness

This case arises out of the President's unilateral efforts to eliminate a Cabinet-level agency established by Congress nearly half a century ago: the Department of Education.  As Congress mandated, the Department plays a vital role in this Nation's education system, safeguarding equal access to learning and channeling billions of dollars to schools and students across the country each year.   

Only Congress has the power to abolish the Department.  The Executive's task, by contrast, is to "take Care that the Laws be faithfully executed." U. S. Const., Art. II, §3.  Yet, by executive fiat, the President ordered the Secretary of Education to "take all necessary steps to facilitate the closure of the Department." Exec. Order No. 14242, 90 Fed. Reg. 13679 (2025). Consistent with that Executive Order, Secretary Linda McMahon gutted the Department's work force, firing over 50 percent of its staff overnight.  In her own words, that mass termination served as "the first step on the road to a total shutdown" of the Department. 

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary's duty to check that lawlessness, not expedite it.  Two lower courts rose to the occasion, preliminarily enjoining the mass firings while the litigation remains ongoing.  Rather than maintain the status quo, however, this Court now intervenes, lifting the injunction and permitting the Government to proceed with dismantling the Department.  That decision is indefensible.  It hands the Executive the power to repeal statutes by firing all those necessary to carry them out.  The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution's separation of powers is grave.  Unable to join in this misuse of our emergency docket, I respectfully dissent.

-- Supreme Court Justice Sonya Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting in Linda McMahon, Secretary of Education, v New York, on application for stay, in which the majority allowed the Trump administration to move forward with depopulating the Department of Education (14 July 2025)

Odious

The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government.

-- Sir Winston Leonard Spencer Churchill (1874-1965), British politician and statesman, in a telegram (21 November 1942) by Churchill from Cairo, Egypt to Home Secretary Herbert Morrison; cited in In the Highest Degree Odious (1992), Simpson, Clarendon Press, p. 391

Uncontainable

"The accretion of dangerous power does not come in a day." Youngstown, 343 U. S., at 594 (opinion of Frankfurter, J.).  But "[i]t does come," "from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority."  Ibid.  By needlessly granting the Government's emergency application to prohibit universal injunctions, the Court has cleared a path for the Executive to choose law-free action at this perilous moment for our Constitution -- right when the Judiciary should be hunkering down to do all it can to preserve the law's constraints.  I have no doubt that, if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends.  Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.

-- Supreme Court Justice Ketanji Brown Jackson, dissenting in Trump v CASA, in which the majority ruled that federal district courts cannot be allowed to enter nation-wide injunctions (27 June 2025)

USAID

Background
The US Agency for International Development (USAID) is the largest funding agency for humanitarian and development aid worldwide. The aim of this study is to comprehensively evaluate the effect of all USAID funding on adult and child mortality over the past two decades and forecast the future effect of its defunding.

Findings
Higher levels of USAID funding -- primarily directed toward low-income and middle-income countries (LMICs), particularly African countries -- were associated with a 15% reduction in age-standardised all-cause mortality and a 32% reduction in under-five mortality. This finding indicates that 91 839 663 all-age deaths, including 30 391 980 in children younger than 5 years, were prevented by USAID funding over the 21-year study period. USAID funding was associated with a 65% reduction in mortality from HIV/AIDS (representing 25·5 million deaths), 51% from malaria (8·0 million deaths), and 50% from neglected tropical diseases (8·9 million deaths). Significant decreases were also observed in mortality from tuberculosis, nutritional deficiencies, diarrhoeal diseases, lower respiratory infections, and maternal and perinatal conditions. Forecasting models predicted that the current steep funding cuts could result in more than 14 051 750 additional all-age deaths, including 4 537 157 in children younger than age 5 years, by 2030.

Interpretation
USAID funding has significantly contributed to the reduction in adult and child mortality across low-income and middle-income countries over the past two decades. Our estimates show that, unless the abrupt funding cuts announced and implemented in the first half of 2025 are reversed, a staggering number of avoidable deaths could occur by 2030.

-- Daniella Medeiros Cavalcanti, PhD et al, The Lancet "Evaluating the impact of two decades of USAID interventions and projecting the effects of defunding on mortality up to 2030: a retrospective impact evaluation and forecasting analysis" (30 June 2025)

Eligible And Qualified

All right.  So what do I tell 663,000 people in 2 years or 3 years when President Trump breaks his promise by pushing them off of Medicaid because the funding is not there anymore, guys?

I think people in the White House, the amateurs advising the President, are not telling him that the effect of this bill is to break a promise. ...

It is inescapable that this bill, in its current form, will betray the very promise that Donald J. Trump made in the Oval Office or in the Cabinet room when I was there with Finance, where he said: We can go after waste, fraud, and abuse on any programs. ...

I am telling the President that you have been misinformed.  Your supporting the Senate mark will hurt people who are eligible and qualified for Medicaid.

-- Senator Thom Tillis (R-NC), speaking on the Senate floor during debate on the "Big Beautiful Bill", quoted from the Congressional Record, p. S3646 (28 June 2025)

Narrow Escapes

It is happening here.  Democracy in America has been a series of narrow escapes.  We may be running out of luck, and no one is coming to save us.  For that, we have only ourselves.

-- Bill Moyers (5 June 1934 - 26 June 2025), American journalist and political commentator, We Hold This Truth to Be Self-Evident: It’s Happening Before Our Very Eyes (5 June 2020)

Rewarding Lawlessness

In matters of life and death, it is best to proceed with caution.  In this case, the Government took the opposite approach.  It wrongfully deported one plaintiff to Guatemala, even though an Immigration Judge found he was likely to face torture there.  Then, in clear violation of a court order, it deported six more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel.  An attentive District Court’s timely intervention only narrowly prevented a third set of unlawful removals to Libya.

Rather than allowing our lower court colleagues to manage this high-stakes litigation with the care and attention it plainly requires, this Court now intervenes to grant the Government emergency relief from an order it has repeatedly defied.  I cannot join so gross an abuse of the Court’s equitable discretion. ...

The Due Process Clause represents “the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.”  By rewarding lawlessness, the Court once again undermines that foundational principle.  Apparently, the Court finds the idea that thousands will suffer violence in farflung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled.  That use of discretion is as incomprehensible as it is inexcusable. Respectfully, but regretfully, I dissent.

-- Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting, in Department of Homeland Security, et al. v D.V.D., et al., on application for stay (23 June 2025)

Retreating

To give meaning to our Constitution's bedrock equal protection guarantee, this Court has long subjected to heightened judicial scrutiny any law that treats people differently based on sex.  If a State seeks to differentiate on that basis, it must show that the sex classification "serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives."  Such review (known as intermediate scrutiny) allows courts to ascertain whether the State has a sound, evidence-based reason to distinguish on the basis of sex or whether it does so in reliance on impermissible stereotypes about the sexes.

Today, the Court considers a Tennessee law that categorically prohibits doctors from prescribing certain medications to adolescents if (and only if) they will help a patient "identify with, or live as, a purported identity inconsistent with the minor's sex."  In addition to discriminating against transgender adolescents, who by definition "identify with" an identity "inconsistent" with their sex, that law conditions the availability of medications on a patient's sex.  Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

Tennessee's law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny.  The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee's categorical ban on lifesaving medical treatment so long as " ‘any reasonably conceivable state of facts' " might justify it.  Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review.  By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.  In sadness, I dissent.

-- Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting in US v Skrmetti, Attorney General for Tennessee, in which the majority upheld a Tennessee law denying gender-affirming care to minors (18 June 2025)

Not A Caucus

Democracy is not a caucus, obtaining a fixed term of office by promises, and then doing what it likes with the people.  We hold that there ought to be a constant relationship between the rulers and the people.  "Government of the people, by the people, for the people," still remains the sovereign definition of democracy.

-- Sir Winston Leonard Spencer Churchill (1874-1965), British politician and statesman, speech in the House of Commons (11 November 1947), published in 205 The Official Report, House of Commons (5th Series), 11 November 1947, vol. 444, cc.

Be Ashamed

Be ashamed to die until you have won some victory for humanity.

-- Horace Mann (1796 - 1859), American education reformer and abolitionist, Address at Antioch College (1859)

Extraordinary Intervention

Today the Court grants "emergency" relief that allows the Social Security Administration (SSA) to hand DOGE staffers the highly sensitive data of millions of Americans.  The Government wants to give DOGE unfettered access to this personal, non-anonymized information right now -- before the courts have time to assess whether DOGE's access is lawful.  So it asks this Court to stay a lower court's decision to place temporary and qualified limits on DOGE's data access while litigation challenging DOGE's authority to access the data is pending.  But the Government fails to substantiate its stay request by showing that it or the public will suffer irreparable harm absent this Court's intervention.  In essence, the “urgency” underlying the Government's stay application is the mere fact that it cannot be bothered to wait for the litigation process to play out before proceeding as it wishes.

That sentiment has traditionally been insufficient to justify the kind of extraordinary intervention the Government seeks.  But, once again, this Court dons its emergency-responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them.

-- Supreme Court Justice Ketanji Brown Jackson, joined by Justice Sotomayor, dissenting in Social Security Administration v AFSCME, on application for stay, in which the majority, on the emergency docket, granted a stay of a lower court ruling that limited DOGE access to Social Security data as this case makes it way through litigation (6 June 2025)

Background Circumstances

Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin.  Under our Title VII precedents, a plaintiff may make out a prima facie case of disparate treatment by showing "that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 253 (1981).

The question in this case is whether, to satisfy that prima facie burden, a plaintiff who is a member of a majority group must also show " 'background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.' " 87 F. 4th 822, 825 (CA6 2023) (per curiam).  We hold that this additional "background circumstances" requirement is not consistent with Title VII's text or our case law construing the statute.  Accordingly, we vacate the judgment below and remand for application of the proper prima facie standard.

-- Justice Jackson, for the unanimous Supreme Court of the United States in Marlean A. Ames, Petitioner v Ohio Department of Youth Services, in which the court ruled that cases of reverse discrimination require no higher standard of proof than other discrimination cases (5 June 2025)