Author: TSA Press

President
Donald
Trump’s
attacks
on
diversity,
equity,
and
inclusion
have
finally
hit
home
for
Biglaw
attorneys
thanks
to
a
new
executive
order.

In
a
move
that
could
seriously
disrupt
the
very
ecosystem
within
which
Biglaw
firms
exist,
Trump
has
directed
the
chair
of
the
Equal
Employment
Opportunity
Commission
to
“review
the
practices
of
representative
large,
influential,
or
industry
leading
law
firms
for
consistency
with
Title
VII
of
the
Civil
Rights
Act
of
1964.”
Specifically,
per
the

executive
order,
Trump
wants
the
EEOC
to
determine
the
following:

[W]hether
large
law
firms:
reserve
certain
positions,
such
as
summer
associate
spots,
for
individuals
of
preferred
races;
promote
individuals
on
a
discriminatory
basis;
permit
client
access
on
a
discriminatory
basis;
or
provide
access
to
events,
trainings,
or
travel
on
a
discriminatory
basis.

On
top
of
that,
Trump
has
asked
that
Attorney
General
Pam
Bondi
partner
with
the
EEOC
and
state
attorneys
general
to
to
investigate
Biglaw
firms
“who
do
business
with
Federal
entities
for
compliance
with
race-based
and
sex-based
non-discrimination
laws
and
take
any
additional
actions
the
Attorney
General
deems
appropriate
in
light
of
the
evidence
uncovered.”

While
this
section
of
the
order
doesn’t
name
the
law
firms
being
targeted,
in
remarks
given
from
the
Oval
Office
during
the
signing,
Trump
asked
an
aide,
“You’re
looking
at
about
15
different
firms?”
to
which
the
response
was,
“That
or
more
sir,
yes.”
Which
Biglaw
firms
may
be
at
the
top
of
Trump’s
list
when
it
comes
to
his
crackdown
on
all
things
DEI?
We
suppose
we’ll
find
out
soon.

In
the
meantime,
one
of
the
15
firms
that

is
being
specifically
targeted
is
Perkins
Coie,
which
brought
in
$1,211,295,000
gross
revenue
in
2023,
putting
it
at
No.
43
on
the
most
recent
Am
Law
100.
In
fact,
the
executive
order’s
name
is
“Addressing
Risks
from
Perkins
Coie
LLP,”
and
references
the
firm’s
alleged
“dishonest
and
dangerous
activity.”
Similar
to
what
happened
with

Covington
&
Burling,
where
certain
attorneys
lost
their
security
clearances,
the
order
“suspend[s]
any
active
security
clearances
held
by
individuals
at
Perkins
Coie,”
in
what
seems
to
be
a
retaliation
for
its
representation
of
past
presidential
candidate
Hillary
Clinton
and
its
reported
connections
to
the
Steele
dossier.

Trump
then
takes
a
deep
dive
on
Perkins
Coie’s
alleged
“racial
discrimination”
within
the
firm:

In
addition
to
undermining
democratic
elections,
the
integrity
of
our
courts,
and
honest
law
enforcement,
Perkins
Coie
racially
discriminates
against
its
own
attorneys
and
staff,
and
against
applicants.
Perkins
Coie
publicly
announced
percentage
quotas
in
2019
for
hiring
and
promotion
on
the
basis
of
race
and
other
categories
prohibited
by
civil
rights
laws.
It
proudly
excluded
applicants
on
the
basis
of
race
for
its
fellowships,
and
it
maintained
these
discriminatory
practices
until
applicants
harmed
by
them
finally
sued
to
enforce
change.

A
spokesperson
for
Perkins
Coie
said
that
Trump’s
executive
order
is
“patently
unlawful,
and
we
intend
to
challenge
it.”

What
will
this
mean
for
Biglaw
firms
going
forward?
As

previously
noted
by
Kent
Zimmermann,
principal
at
legal
strategy
firm
Zeughauser
Group,
“most
law
firm
leaders
do
not
want
to
unnecessarily
antagonize
or
become
a
target
for
the
administration.”
While
Biglaw
firms
certainly
remain
committed
to
diversity
and
inclusion,
some
have
already
begun
quietly

purging
diversity-related
language
from
their
websites.
While
we
don’t
know
for
certain
in
what
other
ways
firms
will
respond
under
these
circumstances,
what
we
do
know
is
that
Trump’s
war
on
diversity,
equity,
and
inclusion
is
likely
to
do
deep
damage
to
Biglaw
as
a
whole.

Addressing
Risks
from
Perkins
Coie
LLP
[White
House]

Trump
Targets
Law
Firms
Over
Steele
Dossier,
Diversity
Moves
(1)
[Bloomberg
Law]

Trump
Order
Calls
For
DEI
Policy
Review
of
‘Leading
Law
Firms’
[National
Law
Journal]

---

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

Supreme
Court
oral
arguments
are
more
than
just
legal
debates—they’re
a
high-stakes
battleground
where
justices
reveal
their
philosophies,
test
the
strength
of
arguments,
and
sometimes,
subtly
try
to
persuade
their
colleagues.
Among
the
most
compelling
contrasts
on
the
bench
today
are
Justices
Amy
Coney
Barrett
and
Ketanji
Brown
Jackson,
two
sharp
legal
minds
who
approach
cases
from
strikingly
different
angles.
Barrett,
ever
the
methodical
conservative,
zeroes
in
on
legal
thresholds,
intent,
and
the
fine
print
of
doctrine—her
questions
sharp,
strategic,
and
focused
on
keeping
legal
claims
tightly
contained.
Jackson,
in
contrast,
takes
a
big-picture
approach,
weaving
history,
civil
rights,
and
real-world
stakes
into
her
questioning.
She
challenges
assumptions,
pressing
lawyers
to
grapple
with
broader
systemic
consequences
and
the
lived
experiences
behind
the
law.
While
Barrett
drills
down
on
precedent
and
precision,
Jackson
expands
the
lens
with
analogies
and
probing
hypotheticals.
Their
exchanges
in
oral
arguments
offer
more
than
just
legal
analysis—they
reveal
two
distinct
visions
for
how
the
law
should
function
and
who
it
should
protect.
Whether
shaping
debate
through
meticulous
legal
reasoning
or
sweeping
historical
framing,
both
justices
bring
intellectual
firepower
that
shapes
the
Court’s
direction
in
ways
both
subtle
and
profound.

One
clear
distinction
is
in
their
total
engagement
at
oral
argument.
The
two
graphs
below
track
the
Justices’
word
counts
across
all
argument
in
the
2023/2024
Term
and
those
already
completed
in
this
2024/2025
Term.

These
show
how
Justice
Jackson
dominates
Justice
Barrett
(and
all
of
the
other
justices)
in
total
speech.
It
does
not
convey
the
direction
and
depth
of
their
questions
and
comments
though
which
are
at
the
heart
of
this
article.
The
remainder
of
this
piece
proceeds
by
breaking
down
and
comparing
their
argument
styles
across
eight
oral
arguments,
four
from
the
2023/2024
Term
and
four
from
the
2024/2025
Term.

2023/2024
Term

* Tools
for
analysis
included
Tableau
and
R
Toots
(QDap,
TM,
and
tidytext)
along
with
Jake
Truscott’s
parsed
transcripts.

Acheson
Hotels:

This
case
examined
whether
an
ADA
“tester”
has
Article
III
standing
to
sue
a
hotel
for
failing
to
provide
required
accessibility
information
on
its
website,
even
if
the
tester
has
no
intention
of
staying
at
the
hotel.

Barrett:
756

Justice
Barrett’s
questions
explored
the
prudential
and
strategic
aspects
of
mootness,
standing
for
disability-related
discrimination
claims,
and
the
relevance
of
a
plaintiff’s
intent
and
need
for
accommodations.
Her
questions
sought
clarity
on
the
threshold
for
standing
and
whether
a
plaintiff
can
claim
an
Article
III
injury
without
intent
to
use
the
service,
pushing
for
a
better
understanding
of
how
to
define
a
valid
injury
in
ADA
cases.
By
emphasizing
strategic
behavior
and
focusing
on
plaintiffs’
intent,
she
encouraged
a
narrower
view
of
standing,
potentially
influencing
others
to
consider
whether
plaintiffs
who
don’t
intend
to
use
services
should
still
have
standing
based
on
their
motivations.
Her
emphasis
on
intentionality
in
using
services
and
the
connection
to
discriminatory
harm
suggested
she
leans
toward
a
more
restrictive
view
of
standing,
prioritizing
those
plaintiffs
whose
injury
is
directly
linked
to
their
need
for
accommodations.

Jackson:
1543

Justice
Jackson
critically
examined
issues
of
mootness,
standing,
and
the
distinction
between
different
types
of
legal
testers
in
the
context
of
a
case.
She
challenged
the
necessity
of
additional
judicial
work
when
both
parties
agree
a
case
is
moot
and
probed
the
implications
of
the
mootness
doctrine,
particularly
the Munsingwear remedy.
She
also
delved
into
the
concept
of
tester
standing,
drawing
historical
comparisons
to
civil
rights-era
lunch
counter
sit-ins
to
explore
whether
an
individual
can
claim
discrimination
without
directly
seeking
a
service.
Her
questions
probed
the
logical
reasoning
behind
the
mootness
argument
and
whether
established
legal
principles,
such
as Munsingwear,
should
apply,
indicating
an
effort
to
clarify
procedural
consistency.
By
framing
mootness
as
the
ordinary
course
of
action
and
questioning
why
the
Court
should
take
additional
steps,
she
subtly
challenged
the
necessity
of
further
judicial
intervention,
shaping
how
others
might
view
the
case’s
resolution.
Her
comparisons
to
historical
civil
rights
testing
and
hypothetical
analogies
suggested
skepticism
about
distinguishing
Laufer’s
standing
from
past
tester
cases,
implying
a
potential
inclination
toward
recognizing
her
claim
as
legitimate.

Comparison:

Justice
Barrett’s
approach
was
more
focused
on
the
direct
and
intentional
aspects
of
standing,
questioning
whether
a
plaintiff’s
injury
is
tied
to
their
intent
to
use
a
service.
She
also
considers
strategic
behavior
in
shaping
legal
outcomes.
In
contrast,
Justice
Jackson
emphasizes
broader
systemic
issues,
such
as
discrimination
and
accessibility,
and
is
more
open
to
recognizing
harm
beyond
direct
intent,
supporting
a
wider
interpretation
of
standing,
particularly
in
ADA
cases.

Votes:
Both
to
vacate
as
moot

Grants
Pass
v.
Johnson:

This
case
examined
whether
a
city’s
enforcement
of
anti-camping
and
anti-sleeping
ordinances
against
involuntarily
homeless
individuals,
when
no
adequate
shelter
is
available,
violates
the
Eighth
Amendment’s
prohibition
on
cruel
and
unusual
punishment.

Barrett: 1492

Justice
Barrett’s
questions
focused
on
defining
the
scope
of
the
ordinance
in
question,
its
implications
for
criminalizing
homelessness-related
conduct,
and
the
constitutional
boundaries
of
punishing
involuntary
actions
tied
to
homelessness
under
the
Eighth
Amendment.
She
also
explored
practical
enforcement
challenges,
the
distinction
between
status
and
conduct,
and
how
municipalities
define
their
responsibilities
in
addressing
homelessness.
Her
inquiries
aimed
to
clarify
the
scope
of
the
law,
questioning
whether
it
criminalized
basic
survival
activities
like
sleeping
with
a
blanket
and
how
it
intersected
with
broader
constitutional
principles,
particularly
regarding
status-based
punishment
under Robinson
v.
California.
By
pressing
on
the
difficulty
of
drawing
legal
lines
between
conduct
and
status,
Barrett
framed
the
issue
in
a
way
that
emphasized
the
potential
enforcement
challenges
and
policy
implications,
possibly
steering
the
discussion
toward
a
narrower
interpretation
of
Eighth
Amendment
protections.
Her
focus
on
the
pre-enforcement
challenge,
the
necessity
of
individualized
determinations,
and
the
practical
limits
of
law
enforcement
suggests
she
may
be
skeptical
of
broad
constitutional
protections
against
municipal
regulations
on
homelessness
but
open
to
specific
challenges
where
enforcement
disproportionately
punishes
status.

Jackson:
2072
words

Justice
Jackson’s
questions
primarily
focused
on
the
distinction
between
conduct
and
status,
and
the
implications
of
that
distinction
for
the
application
of
the
Eighth
Amendment.
She
sought
to
clarify
the
nature
of
this
distinction
by
asking
why
certain
actions,
such
as
sleeping
or
eating
in
public,
should
be
considered
conduct
and
whether
these
acts
could
still
be
deemed
criminal
when
performed
by
people
without
other
options.
Her
questions,
particularly
the
hypothetical
about
eating
in
public,
encouraged
others
to
reconsider
how
laws
that
penalize
the
homeless
might
disproportionately
impact
those
without
shelter,
subtly
guiding
them
to
recognize
the
importance
of
treating
homelessness
as
a
status
rather
than
criminal
conduct.
Overall,
her
line
of
questioning
suggested
a
focus
on
the
fairness
and
constitutionality
of
punishing
people
for
engaging
in
universally
human
activities,
like
sleeping
or
eating,
when
they
are
unable
to
do
so
privately,
which
may
point
toward
a
more
protective
stance
for
those
experiencing
homelessness
and
against
criminalizing
basic
survival
actions.

Comparison

Justice
Barrett
and
Justice
Jackson
approach
the
criminalization
of
homelessness
from
different
angles.
Barrett
focused
on
the
ordinance’s
scope,
the
constitutional
limits
of
punishing
involuntary
actions,
and
enforcement
challenges,
favoring
a
narrower
Eighth
Amendment
interpretation
and
individualized
enforcement.
Jackson,
in
contrast,
emphasized
the
fairness
of
penalizing
basic
survival
acts
like
sleeping
or
eating
in
public,
arguing
for
recognizing
homelessness
as
a
status
rather
than
conduct
and
opposing
the
criminalization
of
essential
human
activities.

Votes:
Barrett
for
Grants
Pass,
Jackson
for
Johnson

Trump
v.
US

The
case
revolves
around
whether
a
former
president
(Donald
Trump)
is
immune
from
criminal
prosecution
for
actions
taken
during
his
presidency,
with
Trump
arguing
that
he
cannot
be
prosecuted
unless
first
impeached
and
convicted,
and
the
court
addressing
whether
such
immunity
applies
to
alleged
conduct
related
to
the
January
6,
2021,
Capitol
attack.

Barrett:
1520
words

Justice
Barrett’s
line
of
questioning
delved
into
distinguishing
between
official
and
private
actions
of
a
president.
She
posed
scenarios
to
clarify
which
actions
could
be
deemed
private,
such
as
collaborating
with
private
attorneys
to
disseminate
false
election
claims
or
submitting
fraudulent
elector
slates.
By
seeking
agreement
from
counsel
that
these
were
private
acts,
Barrett
highlighted
the
delineation
between
official
duties
and
personal
conduct.
This
approach
suggests
she
was
probing
the
boundaries
of
presidential
immunity,
potentially
to
fortify
the
argument
that
immunity
should
not
extend
to
actions
outside
official
capacities.
Her
method
of
questioning
indicates
a
critical
examination
of
the
scope
of
immunity,
possibly
signaling
a
stance
that
favors
limiting
immunity
to
strictly
official
acts.

Jackson:
3088

Justice
Jackson’s
questioning
aimed
to
probe
the
boundaries
of
absolute
immunity
for
the
president,
focusing
on
how
official
and
personal
acts
should
be
distinguished.
She
expressed
skepticism
about
the
idea
that
private
actions
by
the
president
could
be
protected
under
absolute
immunity,
even
if
the
doctrine
were
applied
to
official
acts.
Her
questions
challenged
the
assumption
that
the
president
should
be
exempt
from
criminal
liability
when
performing
official
duties,
questioning
whether
this
would
embolden
future
presidents
to
act
without
consequence.
By
repeatedly
probing
the
rationale
behind
immunity
and
the
clear
statement
rule,
Justice
Jackson
sought
clarity
on
whether
the
president
should
be
held
to
the
same
legal
standards
as
others
in
positions
of
power,
reflecting
her
concern
about
potential
misuse
of
presidential
power
if
immunity
were
granted
too
broadly.

Comparison

Justices
Barrett
and
Jackson
approached
the
issue
of
presidential
immunity
from
distinct
angles.
Barrett
focused
on
distinguishing
between
official
and
private
acts,
emphasizing
that
actions
such
as
collaborating
with
private
attorneys
to
spread
false
election
claims
were
private
and
should
not
fall
under
presidential
immunity.
Her
questioning
suggested
a
preference
for
limiting
immunity
to
strictly
official
conduct,
potentially
advocating
against
immunity
for
actions
related
to
the
January
6
Capitol
attack.
On
the
other
hand,
Jackson
expressed
skepticism
about
granting
immunity
to
private
acts,
questioning
whether
such
immunity
could
embolden
future
presidents
to
act
without
consequences.
She
repeatedly
challenged
the
rationale
behind
immunity,
concerned
that
its
broad
application
could
lead
to
unchecked
misuse
of
presidential
power,
suggesting
a
more
cautious
stance
toward
granting
immunity
in
this
case.

Votes:
Barrett
for
Trump,
Jackson
for
United
States

FDA
v.
Alliance
for
Hippocratic
Medicine

This
case
involves
a
challenge
to
the
FDA’s
approval
and
regulation
of
mifepristone,
with
plaintiffs
arguing
that
the
FDA’s
2016
and
2021
actions
regarding
its
distribution
were
improper,
leading
to
legal
questions
about
standing,
the
legality
of
the
FDA’s
decisions,
and
the
appropriateness
of
granting
preliminary
relief.

Justice
Barrett:
929
words

Justice
Barrett’s
questioning
primarily
sought
to
clarify
legal
nuances
surrounding
the
conscience
protections
for
healthcare
workers,
the
standing
of
associations
in
legal
challenges,
and
the
implications
of
regulations
related
to
abortion
and
its
associated
medical
procedures.
Her
questions
aimed
to
gather
specific
information
about
whether
federal
conscience
protections
could
apply
to
doctors
in
healthcare
deserts
and
how
the
consequences
of
certain
actions,
such
as
performing
a
D&C
after
an
abortion,
should
be
understood
in
relation
to
the
definition
of
an
“adverse
event.”
She
also
pressed
counsel
to
distinguish
between
different
types
of
harms
and
resources
diverted
by
organizations
in
a
way
that
might
affect
their
standing
in
litigation.
Barrett’s
questions
sought
to
guide
others’
perspectives
by
emphasizing
practical
concerns,
such
as
the
impact
of
procedural
changes
on
doctors’
ability
to
properly
assess
pregnancies
and
the
implications
of
conscience
objections,
subtly
encouraging
a
more
restrained
interpretation
of
legal
protections
and
standing.
Her
line
of
questioning
suggests
that
she
is
interested
in
ensuring
that
legal
interpretations
are
grounded
in
practical
considerations
and
the
realities
of
medical
practice,
potentially
favoring
a
more
structured
and
cautious
approach
to
extending
protections.

Justice
Jackson:
1118
words

Justice
Jackson’s
questions
focused
on
the
mismatch
between
the
alleged
injuries
of
the
Respondents
and
the
remedies
they
sought,
while
also
probing
broader
concerns
about
the
role
of
courts
in
evaluating
scientific
and
medical
expertise.
She
asked
whether
the
remedy
sought
by
the
Respondents—an
order
preventing
access
to
a
drug
for
everyone—was
disproportionate
to
the
alleged
conscience
injury,
and
whether
exemption
from
participating
in
the
procedure
would
be
sufficient.
Jackson
also
inquired
about
the
potential
impact
of
a
ruling
on
the
statute
of
limitations
and
how
courts
should
approach
medical
expertise
when
evaluating
agency
decisions,
especially
regarding
the
safety
and
efficacy
of
drugs.
Through
these
questions,
Jackson
sought
to
challenge
the
scope
of
the
remedy
and
clarify
whether
the
Respondents’
claimed
injuries
could
be
addressed
more
narrowly
without
impacting
others,
indicating
a
cautious
approach
to
overbroad
remedies.
She
also
appeared
skeptical
of
the
necessity
for
courts
to
second-guess
medical
agencies
and
seemed
inclined
toward
respecting
the
FDA’s
expertise
in
such
matters.
Jackson’s
questions
suggest
a
practical
perspective,
emphasizing
judicial
restraint
in
matters
requiring
specialized
scientific
judgment
while
remaining
concerned
about
the
scope
and
appropriateness
of
legal
remedies.

Comparison:

Justice
Barrett
and
Justice
Jackson
both
examined
the
scope
and
appropriateness
of
the
legal
remedies
sought
by
the
Respondents
but
approached
the
issue
from
different
angles.
Justice
Barrett
focused
on
the
practical
implications
of
the
conscience
objections
and
questioned
whether
the
Respondents’
requests
for
a
broad
remedy—prohibiting
access
to
a
drug
entirely—were
excessive
given
the
availability
of
narrower
remedies,
like
exemptions
for
individual
doctors.
She
also
showed
concern
for
the
consistency
and
clarity
of
federal
protections
for
conscience
objections.
In
contrast,
Justice
Jackson
emphasized
the
disconnect
between
the
alleged
injury
and
the
remedy
sought,
probing
whether
the
injury
could
be
resolved
by
more
targeted
actions,
like
individual
exemptions,
rather
than
a
sweeping
restriction
on
access
to
medication.
She
also
expressed
concern
about
judicial
overreach
in
second-guessing
expert
agencies
like
the
FDA
and
suggested
that
courts
should
be
cautious
when
evaluating
medical
expertise.
Both
justices
raised
concerns
about
proportionality,
but
Jackson’s
approach
leaned
more
toward
deferring
to
the
specialized
knowledge
of
agencies,
while
Barrett’s
questions
sought
to
clarify
the
limits
of
judicial
intervention
in
balancing
competing
interests.

Votes:
Both
for
lack
of
standing

2024/2025
Term

Free
Speech
v.
Paxton

The
case
examines
whether
Texas’s
H.B.
1181,
which
mandates
age
verification
and
health
warnings
for
websites
with
over
one-third
harmful
content
to
minors,
is
subject
to
“rational
basis”
or
“strict
scrutiny”
review
in
light
of
First
Amendment
protections
and
Section
230
of
the
Communications
Decency
Act.

Barrett: 1154
words

In
the
case,
Justice
Barrett
explored
the
complexities
of
applying
First
Amendment
protections
to
age-verification
laws
in
the
context
of
the
internet
versus
brick-and-mortar
settings.
She
questioned
whether
the
privacy
concerns
surrounding
online
content
are
more
burdensome
than
those
in
physical
spaces,
suggesting
that
the
digital
age
presents
unique
challenges
in
terms
of
content
filtering
and
accessibility.
Barrett
also
probed
whether
age-verification
laws,
which
protect
minors
while
still
allowing
adults
to
access
content,
could
be
subject
to
a
lower
level
of
scrutiny
than
strict
scrutiny,
as
they
do
not
prohibit
content
outright
but
impose
a
burden
on
access.
Her
inquiry
into
whether
the
state’s
interest
in
protecting
minors
could
justify
a
less
demanding
standard
reflects
her
caution
about
diluting
strict
scrutiny.
Overall,
Barrett’s
questioning
points
to
a
nuanced
approach
that
balances
the
state’s
compelling
interest
in
safeguarding
minors
with
the
need
to
preserve
robust
First
Amendment
protections,
indicating
a
preference
for
flexibility
without
completely
relaxing
traditional
scrutiny
standards.

Jackson:
2080
Words

Justice
Jackson’s
questions
primarily
focused
on
the
consistency
of
the
case
with
past
decisions,
particularly Reno and Ginsberg,
and
the
level
of
scrutiny
to
apply
to
age-verification
laws.
She
sought
clarity
on
how
the
petitioner’s
standard
for
applying
strict
scrutiny
aligned
with
past
precedents,
questioning
whether
such
laws
effectively
suppress
adult
speech
and
whether
the
burden
on
adults
was
disproportionate
given
the
state’s
interest
in
protecting
minors.
Her
inquiry
into
the
preliminary
injunction
and
the
likelihood
of
success
aimed
to
steer
the
conversation
toward
evaluating
the
correct
legal
standard
rather
than
addressing
the
merits
of
the
case.
Jackson’s
repeated
references
to Ginsberg and
her
focus
on
the
burden
imposed
on
adults
underlined
her
concern
for
ensuring
that
any
age-verification
law
does
not
unnecessarily
infringe
on
First
Amendment
rights
while
still
protecting
minors,
which
could
indicate
a
cautious
approach
in
balancing
these
interests.
Through
her
probing
questions,
she
seemed
to
push
for
an
understanding
that
strict
scrutiny,
not
rational
basis,
should
guide
the
analysis
in
light
of
the
potential
for
adult
speech
restrictions,
reflecting
her
possible
inclination
to
protect
adult
rights
against
overly
burdensome
age
verification.

Comparison:

In
this
case,
Justice
Jackson
and
Justice
Barrett
adopt
different
approaches
to
balancing
state
interests
and
constitutional
rights.
Justice
Jackson
focuses
on
the
need
for
strict
scrutiny,
concerned
with
the
potential
overreach
of
age-verification
laws
that
could
infringe
on
adult
First
Amendment
rights,
emphasizing
that
any
burdens
imposed
on
adults
should
be
necessary
and
narrowly
tailored.
In
contrast,
Justice
Barrett’s
approach
is
more
grounded
in
legal
precedents,
such
as Reno and Ginsberg,
where
she
seems
more
inclined
to
apply
rational
basis
review
and
supports
the
idea
that
the
state’s
interest
in
protecting
minors
may
justify
some
restrictions,
as
long
as
they
are
consistent
with
established
legal
standards.
Jackson’s
approach
leans
towards
protecting
adult
freedoms
from
excessive
state
interference,
while
Barrett
is
more
willing
to
accept
that
the
state’s
interests
may
justify
regulation,
provided
it
adheres
to
legal
frameworks.

No
decision
yet

United
States
v.
Skrmetti

The
case
examines
whether
Tennessee’s
law
restricting
certain
medical
treatments
for
transgender
minors,
based
on
their
sex,
violates
the
Equal
Protection
Clause
of
the
14th
Amendment.

Barrett:
1338
words

Justice
Barrett’s
questions
explored
the
nature
of
discrimination
in
the
case,
challenging
whether
the
law’s
equal
application
to
both
boys
and
girls
could
still
constitute
intentional
discrimination,
and
whether
the
lack
of
a
history
of
de
jure
discrimination
against
transgender
individuals
weakened
the
argument
for
classifying
them
as
a
suspect
class.
She
also
raised
the
possibility
of
future
medical
treatments
targeting
transgender
minors
and
questioned
how
this
could
impact
legal
arguments.
Her
questions
suggest
a
nuanced
approach
to
whether
transgender
status
should
be
treated
as
a
suspect
class.

Jackson: 2492
words

Justice
Jackson’s
questions
focus
on
the
characterization
of
a
law,
particularly
whether
it
draws
a
line
based
on
sex
or
age,
and
whether
this
classification
requires
heightened
scrutiny
under
equal
protection
principles.
She
questions
the
scope
of
classification
in
the
statute,
asking
whether
it
can
be
both
sex-based
and
age-based
simultaneously,
highlighting
her
view
of
the
importance
of
distinguishing
between
the
biological
sex
of
individuals
and
their
purposes
in
accessing
medication.
Her
inquiries
aim
to
clarify
the
law’s
structure,
urging
a
closer
examination
of
its
effects
on
different
groups.
These
questions
reveal
her
concern
that
the
statute
might
indeed
impose
a
sex-based
classification
that
could
trigger
heightened
scrutiny,
while
also
drawing
parallels
to
historical
cases
like Loving
v.
Virginia,
where
race-based
classifications
were
challenged
despite
similar
legislative
justifications.
The
questions
try
to
influence
perspectives
by
encouraging
careful
scrutiny
of
the
law’s
impact
and
its
constitutional
implications,
while
also
suggesting
that
the
Court
must
not
overlook
the
potential
for
discrimination
inherent
in
the
statute’s
provisions.
Jackson’s
position
appears
to
lean
toward
recognizing
the
statute’s
discriminatory
nature,
potentially
advocating
for
heightened
scrutiny
and
caution
in
upholding
such
laws.

Comparison:

In
this
case,
Justice
Jackson’s
approach
reflects
a
deep
concern
with
the
foundational
principles
of
equal
protection,
particularly
the
scrutiny
applied
when
laws
draw
distinctions
based
on
suspect
classifications,
such
as
sex.
She
seeks
to
clarify
the
legal
characterization
of
the
law,
emphasizing
that
both
age
and
sex
distinctions
could
be
at
play
and
arguing
for
heightened
scrutiny
if
a
sex-based
line
is
indeed
drawn.
Justice
Jackson’s
probing
questions
about
the
parallels
with
past
cases,
such
as Loving
v.
Virginia,
indicate
her
reluctance
to
allow
legislative
classifications
to
pass
without
rigorous
constitutional
scrutiny.
In
contrast,
Justice
Barrett’s
approach
seems
more
focused
on
the
state’s
prerogative
to
set
policy,
questioning
whether
heightened
scrutiny
is
necessary
when
the
law
draws
distinctions
for
medical
purposes
or
consistency
with
biological
sex.
Her
questions
focus
on
the
practical
implications
and
scientific
justifications
for
the
statute,
suggesting
a
more
deferential
stance
toward
state
decisions.
Both
justices
raise
fundamental
questions
about
constitutional
principles,
but
Justice
Jackson’s
perspective
leans
more
heavily
on
applying
strict
scrutiny,
while
Justice
Barrett
appears
more
open
to
legislative
discretion.

No
decision
yet

Garland
v.
VanDerStok

The
case
addresses
whether
the
Bureau
of
Alcohol,
Tobacco,
Firearms,
and
Explosives
(ATF)
exceeded
its
statutory
authority
under
the
Gun
Control
Act
of
1968
when
it
issued
a
2022
Final
Rule
redefining
“frame
or
receiver”
and
“firearm”
to
regulate
“ghost
guns.”

Barrett:
402
words

Justice
Barrett’s
questions
reflect
a
careful
analysis
of
statutory
language
and
intent,
focusing
on
historical
context
and
practical
implications
of
gun
regulations.
She
sought
to
clarify
how
specific
legal
definitions
might
apply
to
modern
challenges
(e.g.,
ghost
guns
and
AR-15
conversions),
suggesting
she
was
trying
to
understand
the
evolving
nature
of
gun
ownership
and
regulation.
Her
questions
aimed
to
gather
perspectives
on
the
potential
unintended
consequences
of
applying
older
laws
to
new
technologies,
indicating
she
may
be
cautious
about
overreaching
interpretations
that
could
criminalize
lawful
conduct.
Through
her
inquiries,
Barrett
appeared
to
engage
with
both
the
legal
history
and
practical
realities
of
firearm
regulations,
suggesting
a
preference
for
nuanced,
context-driven
interpretations.

Jackson:
943
words

Justice
Jackson’s
questions
focused
on
the
scope
of
the
agency’s
authority
to
define
firearms
and
the
extent
to
which
the
Court
should
intervene
in
agency
decisions
about
classification.
She
sought
clarification
on
how
the
agency’s
interpretation
of
statutory
terms
should
be
evaluated,
asking
whether
a
mere
disagreement
with
the
agency’s
definition
would
constitute
an
overreach
of
authority.
Her
questions
aimed
to
influence
perspectives
by
framing
the
issue
as
one
of
statutory
delegation,
urging
consideration
of
whether
the
agency
had
reasonably
exercised
its
delegated
power
rather
than
whether
the
Court
disagreed
with
the
agency’s
interpretation.
Jackson’s
approach
suggests
that
she
may
favor
a
more
deferential
stance
toward
agency
expertise
and
its
ability
to
make
determinations
within
the
framework
of
congressional
intent,
emphasizing
the
need
to
respect
the
agency’s
discretion
in
making
determinations
based
on
real-world
factors.

Comparison

Justice
Barrett
and
Justice
Jackson
approached
the
case
from
different
perspectives,
focusing
on
different
aspects
of
the
agency’s
authority
and
statutory
interpretation.
Justice
Barrett’s
questioning
tended
to
scrutinize
the
practical
implications
of
the
agency’s
definitions,
particularly
regarding
the
regulatory
framework
around
firearms
and
the
real-world
application
of
these
terms.
She
was
concerned
with
how
the
agency’s
decisions
may
affect
lawful
owners
and
the
potential
unintended
consequences
of
its
interpretations.
In
contrast,
Justice
Jackson’s
questions
were
more
focused
on
the
scope
of
the
agency’s
authority
and
whether
the
Court
should
intervene
in
the
agency’s
interpretation
of
statutory
terms.
She
emphasized
the
importance
of
respecting
the
agency’s
expertise
in
making
determinations
based
on
real-world
factors
and
was
concerned
with
ensuring
that
the
Court
does
not
overstep
by
substituting
its
own
judgment
for
that
of
the
agency.
Jackson’s
approach
suggested
deference
to
the
agency’s
role,
while
Barrett’s
questions
hinted
at
a
more
cautious
stance
about
potential
overreach
or
unintended
consequences
of
regulatory
definitions.

No
decision
yet

Food
and
Drug
Administration
v.
R.J.
Reynolds
Vapor
Co.

This
case
questions
whether
a
manufacturer
can
file
a
petition
for
review
in
a
circuit
where
it
neither
resides
nor
has
its
principal
place
of
business,
based
solely
on
the
involvement
of
a
seller
of
its
products
located
within
that
circuit,
in
the
context
of
the
FDA’s
denial
of
applications
to
market
e-cigarettes.

Barrett:
553
words

Justice
Barrett’s
questions
primarily
focused
on
the
prudential
considerations
of
addressing
venue
and
joinder
issues,
as
well
as
the
interpretation
of
terms
like
“adversely
affected”
and
“aggrieved”
within
the
Administrative
Procedure
Act
(APA)
and
broader
legal
contexts.
She
sought
to
understand
the
risks
of
prematurely
deciding
the
venue
issue
without
sufficient
lower
court
development
and
highlighted
the
potential
for
broader
repercussions
beyond
the
specific
case.
Her
inquiries
also
delved
into
the
specialized
meanings
of
terms
like
“adversely
affected”
in
administrative
law,
emphasizing
that
such
terms
should
carry
a
consistent,
capacious
interpretation
unless
the
statute
at
issue
expressly
overcomes
it.
Through
her
questions,
she
encouraged
a
cautious,
reasoned
approach,
reflecting
a
preference
for
judicial
restraint
and
careful
consideration
of
the
broader
legal
implications
of
any
ruling,
especially
when
key
issues
remain
underdeveloped
in
lower
courts.

Jackson:
1425
words

Justice
Jackson’s
questions
in
this
case
explored
the
nuances
of
the
retailer’s
interest
in
pre-market
versus
post-market
product
approval
and
the
legal
framework
for
suing
under
the
statute.
She
sought
to
clarify
the
distinct
nature
of
a
retailer’s
role
before
and
after
a
product
reaches
the
market,
asking
whether
retailers
would
truly
be
agnostic
to
products
in
development
or
if
their
interest
only
materialized
when
a
product
was
on
store
shelves.
She
also
questioned
the
interpretation
of
the
term
“adversely
affected”
by
raising
the
example
of
interest
groups
supporting
flavored
cigarettes,
testing
whether
such
groups
could
be
considered
harmed
under
the
statute,
even
if
their
perspectives
diverged
from
public
health
concerns.
Finally,
Justice
Jackson
delved
into
the
statutory
language,
particularly
regarding
venue
and
enforcement,
questioning
whether
Congress
intended
to
create
avenues
for
litigation
that
could
undermine
its
purpose
or
protect
defendants.
Through
these
questions,
Justice
Jackson
sought
to
probe
the
statutory
intent,
suggesting
that
Congress
did
not
intend
to
allow
retailers
to
sue
over
pre-market
issues,
and
she
appeared
to
emphasize
a
more
restricted
reading
of
the
statute
that
focused
on
the
interests
of
those
directly
harmed
after
products
reached
the
market.

Comparison:

In
this
case,
Justice
Barrett
and
Justice
Jackson
approached
the
legal
questions
from
different
perspectives.
Justice
Barrett
focused
on
the
procedural
aspects,
questioning
the
prudential
limits
of
statutory
interpretation
and
the
potential
consequences
of
expanding
standing
to
include
parties
who
may
not
traditionally
have
had
the
right
to
sue.
She
emphasized
caution
in
interpreting
“adversely
affected”
to
avoid
unintended
disruptions
in
legal
practice.
Justice
Jackson,
on
the
other
hand,
delved
into
the
statutory
text
and
the
specific
role
of
retailers,
questioning
their
interest
in
pre-market
versus
post-market
scenarios
and
whether
Congress
had
intentionally
limited
their
ability
to
challenge
denials
or
withdrawals
of
products.
While
Barrett
was
concerned
with
broader
implications
and
potential
overreach,
Jackson
was
more
focused
on
understanding
Congress’s
intent
and
the
retailer’s
concrete
interests
in
the
legal
framework.

No
decision
yet

Takeaway

Legal
battles
aren’t
fought
only
in
written
opinions—the
justices’
questions
during
oral
arguments
often
reveal
the
deeper
tensions
shaping
the
Court’s
decisions.
In
two
examples
above, Grants
Pass and Trump
v.
United
States,
Justices
Barrett
and
Jackson
took
sharply
different
approaches,
exposing
contrasting
views
on
constitutional
protections,
government
power,
and
individual
rights.

In Grants
Pass,
where
the
Court
considered
whether
punishing
homeless
individuals
for
sleeping
outside
violates
the
Eighth
Amendment,
Barrett’s
questioning
emphasized
legal
definitions
and
enforcement
challenges.
She
explored
the
line
between
conduct
and
status,
questioning
how
municipal
regulations
could
be
fairly
applied
without
sweeping
constitutional
protections
that
might
tie
the
hands
of
local
governments.
Jackson,
however,
framed
the
issue
in
terms
of
fundamental
fairness,
pressing
the
argument
that
punishing
people
for
existing
in
public
when
they
have
no
alternatives
criminalizes
status
rather
than
conduct.

A
similar
divide
emerged
in Trump
v.
United
States,
where
the
justices
debated
whether
a
former
president
is
immune
from
criminal
prosecution
for
acts
committed
in
office.
Barrett
focused
on
structural
concerns—how
federal
and
state
powers
intersect
and
whether
existing
legal
frameworks
provide
sufficient
guidance.
Jackson,
by
contrast,
honed
in
on
accountability,
questioning
whether
granting
broad
immunity
would
create
a
dangerous
precedent
allowing
future
presidents
to
evade
legal
consequences.
These
justices
came
out
on
different
sides
of
both
decisions
which
went
down
as
ideologically
split
votes.

Across
these
cases,
Barrett
and
Jackson’s
lines
of
questioning
reflect
two
distinct
judicial
philosophies—one
prioritizing
legal
precision
and
institutional
boundaries,
the
other
focused
on
real-world
impact
and
individual
rights.
As
the
Court
weighs
these
decisions,
their
approaches
could
shape
not
only
the
outcomes
of
these
cases
but
the
broader
trajectory
of
constitutional
law.

Read
more
from
Legalytics
here….

---

Adam
Feldman
runs
the
litigation
consulting
company
Optimized
Legal
Solutions
LLC.
Check
out
more
of
his
writing
at

Legalytics
and

Empirical
SCOTUS.
For
more
information,
write
Adam
at [email protected]. Find
him
on
Twitter: @AdamSFeldman.

Here’s
a
puzzle:
When
does
a
Supreme
Court
justice
believe
courts
can
review
executive
branch
decisions?
The
answer,
at
least
for
Justice
Alito,
appears
to
be
“whenever
a
Democrat
is
president,
but
only
then.”

There
is plenty of commentary making the
rounds regarding
yesterday’s 5-4
Supreme
Court
decision confirming
that
of
course
a
judge
can
issue
a
Temporary
Restraining
Order
to
maintain
the
status
quo
and
require
USAID
pay
out
the
money
that
it
owes
to
contractors
for
work
already
done.
But
beneath
the
straightforward
legal
question
lies
a
revealing
pattern
of
inconsistency
from
some
of
the
Court’s
conservatives.

The
eye-opening
thing
about
Alito’s
dissent
is
how
completely
it
contradicts
positions
he
took
just
months
ago.
And
not
in
subtle
ways
—
we’re
talking
about
fundamental
questions
of
judicial
power
that
Alito
seems
to
view
entirely
differently
depending
on
which
party
controls
the
White
House.

To
understand
this
claim
—
and
how
there’s
basically
no
other
explanation
—
we
need
to
look
at
what
actually
happened
here.
Elon
Musk
and
his
DOGE
crew
went
into
USAID
and
halted
nearly
all
payments,
which
created
an
interesting
legal
problem
that
had
been
mostly
theoretical
prior
to
the
current
administration.
Congress
has
“the
power
of
the
purse”
and
requires
the
executive
branch
to
spend
money
as
directed.
Not
spending
appropriated
money
(known
as
“impoundment”)
is pretty
clearly
illegal.

While
this
has
kicked
off
a
bunch
of
lawsuits,
the
one
at
issue
here
involves
two
contractors
—
AIDS
Vaccine
Advocacy
Coalition
and
the
Global
Health
Council
—
who
pointed
out
that
they
already
completed
the
work
for
which
they
have
contracts,
and
they
are
owed
money
on
those
contracts.
Musk
freezing
the
payouts
violated
the
law.

The
judge
in
the
District
Court,
Amir
Ali,
agreed
that
this
seemed
like
a
pretty
big
issue
and
issued
a
Temporary
Restraining
Order.
TROs
are
supposed
to
be
used
in
rare
situations,
mainly
to
return
things
to
the
status
quo
to
avoid
irreparable
harms.
In
this
case,
contractors
not
getting
paid
by
the
US
government
for
work
they
already
performed,
on
contracts
and
appropriations
already
blessed
by
Congress
and
the
executive
branch,
could
do
real
damage.
And
thus,
Ali
ordered
them
to
proceed
to
abide
by
the
contracts
and
the
constitutionally
required
situations
in
which
the
executive
branch
does,
in
fact,
pay
out
the
money
that
Congress
has
appropriated.

However,
after
doing
so,
the
White
House
ignored
the
order
and
did
not
pay
out
the
money.
Judge
Ali
brought
the
DOJ
back
into
court
two
weeks
later
to
ask
WTF,
followed
by
issuing
an
order
that
they
pay
out
the
money
they
owed
by
that
very
night.
This
is
when
the
DOJ
tried
to
appeal,
which
quickly
bumped
its
way
up
to
the
Supreme
Court.
With
little
time
to
spare,
Chief
Justice
Roberts
issued
an
“administrative
stay”
on
the
TRO,
basically
putting
it
on
hold.

This
administrative
stay
created
an
oddity
worth
examining.
The
whole
point
of
both
TROs
and
administrative
stays
is
generally
to
“preserve
the
status
quo”
while
the
court
can
look
at
things
more
closely.
But
which
status
quo?
The
one
where
the
government
follows
the
law
and
pays
its
bills
to
contractors
who
already
did
the
work?
Or
the
one
where
Musk’s
DOGE
team
is
illegally
impounding
funds
denying
lawfully
contracted
work
from
being
paid
for?
It
sure
feels
like
the
former
is
the
only
status
quo
worth
preserving.

After
sitting
on
the
issue
for
nearly
a
week,
the
Court
finally
ruled
5-4
in
support
of
Judge
Ali’s
basic
position,
though
they
told
him
to
come
up
with
a
new
implementation
plan
since
the
original
payment
deadline
had
passed.
But
the
really
appalling
part
isn’t
the
majority
ruling
—
it’s
Alito’s
dissent,
which
reads
like
it
was
written
in
an
alternate
universe
where
a
bunch
of
other
opinions,
many
of
which
Alito
supported,
don’t
exist.

Alito’s
dissent
starts
with
what
might
charitably
be
called
selective
amnesia,
both
of
the
facts
of
this
case,
as
well
as
recent
Supreme
Court
jurisprudence
that
he
supported:

Does
a
single
district-court
judge
who
likely
lacks
jurisdiction
have
the
unchecked
power
to
compel
the
Government
of
the
United
States
to
pay
out
(and
probably
lose
forever)
2
billion
taxpayer
dollars?
The
answer
to
that
question
should
be
an
emphatic
“No,”
but
a
majority
of
this
Court
apparently
thinks
otherwise.
I
am
stunned.

Stunned,
are
you?

Let’s
pause
here
and
note
what
Alito
is
doing.
He’s
framing
this
as
a
question
of
judicial
power
over
executive
spending.
Which
would
be
a
reasonable
framing,
if
not
for
two
rather
enormous
elephants
in
the
room:
First,
Congress
has
already
directed
this
spending,
as
its
power
under
the
Constitution.
Second,
Alito
himself
has
repeatedly
insisted
that
courts
must
enforce
such
congressional
directives
against
presidential
overreach
—
at
least
when
Democrats
are
in
office.

Look,
I
know
some
people
(including
Chief
Justice
John
Roberts)
will
get
mad
that
I
suggest
Alito
is
an
extreme
partisan,
but
that
paragraph,
combined
with
some
recent
rulings
that
went
in
the
other
direction
when
Joe
Biden
was
President,
seem
to
make
it
pretty
clear
that
Alito’s
guiding
philosophy
is
“When
Republicans
are
in
power,
the
president
is
a
king;
When
Democrats
are
in
power,
presidents
have
no
power
at
all.”

Let’s
call
out
two
previous
rulings,
both
written
by
the
Chief
Justice,
but
to
which
Alito
readily
signed
on.
First
was
Biden
v.
Nebraska,
the
case
in
which
the
Supreme
Court
said
that the
President
has
no
authority
to
cancel
student
loan
debt without
an
act
of
Congress.
In
that
case,
the
Court
repeatedly
made
clear:
the
executive
branch
has
zero
authority
to
reinterpret
or
ignore
an
act
of
Congress,
especially
involving
funds.

As
Roberts
wrote
in
that
case,
and
which
all
of
the
Justices
in
the
dissent
on
yesterday’s
case
agreed
to:

The
dissent
is
correct
that
this
is
a
case
about
one
branch
of
government
arrogating
to
itself
power
belonging
to
another.
But
it
is
the
Executive
seizing
the
power
of
the
Legislature

Fast
forward
to
the
present
USAID
case,
and
suddenly
Alito
is
“stunned”
that
a
district
court
would
prevent
the
Executive
from
seizing
Congress’s
power
of
the
purse.
The
contradiction
couldn’t
be
more
glaring.

So,
in
the
student
loan
case,
Alito,
Thomas,
Gorsuch
and
Kavanaugh
were
insistent
that
the
executive
branch
may
not
“seize
power”
from
the
Legislature.
The
same
ruling
also
stated:

Among
Congress’s
most
important
authorities
is
its
control
of
the
purse. U.
S.
Const.,
Art.
I,
§9,
cl.
7;…
It
would
be
odd
to
think
that
separation
of
powers
concerns
evaporate
simply
because
the
Government
is
providing
monetary
benefits
rather
than
imposing
obligations.

And
yet
in
the
current
case,
these
same
justices
suddenly
find
it
“stunning”
that
a
court
would
enforce
Congress’s
power
of
the
purse
against
executive
overreach.
Did
Alito
and
the
others
just
forget
the
Biden
case?

Or
how
about
this
part
of
that
same
ruling:

…
our
precedent—
old
and
new—requires
that
Congress
speak
clearly
before
a
Department
Secretary
can
unilaterally
alter
large
sections
of
the
American
economy.

Does
that
not
apply
equally
in
this
case?
Then
why
is
Alito
somehow
stunned
that
the
lower
court
made
the
same
ruling
that
Alito
agreed
to
less
than
two
years
ago?

Okay,
so
maybe
that’s
too
far
back
in
history.
Let’s
consider
last
summer’s ruling
in
the
Loper
Bright
case,
that
got
rid
of
Chevron
deference.
This
case
was
also
about
separation
of
powers
and
whether
the
judiciary
has
the
right
to
step
in
and
overrule
the
executive
branch.

In
this
case,
which
again
came
out
just
months
ago,
Alito
enthusiastically
endorsed
the
judiciary’s
authority
to
check
executive
power.
Yet
now
he’s
“stunned”
that
a
district
court
would
enforce
congressional
appropriations
law
against
executive
impoundment.
Even
more
tellingly,
Alito’s
dissent
summary
in
his
opening
paragraph
strategically
omits
crucial
facts
—
that
Congress
had
appropriated
these
funds,
contracts
were
signed,
and
work
was
completed
—
instead
framing
it
as
a
judge
arbitrarily
“compelling”
government
payment.

Stunning!
But
not
the
way
Alito
thinks.
It’s
Alito’s
blatant
partisanship
that
should
be
seen
as
stunning.

In
Loper
Bright,
the
conservative
wing
of
the
Supreme
Court
was
unanimous
that
the
judiciary
must
always
check
the
executive
when
it
exceeds
authorities
granted
by
Congress.
In
that
ruling,
which
again
Alito
joined,
Roberts
emphatically
made
clear
that
the
judicial
branch
is
the
interpreter
of
the
laws:

The
Framers
also
envisioned
that
the
final
“interpretation
of
the
laws”
would
be
“the
proper
and
peculiar
province
of
the
courts.”
Id.,
No.
78,
at
525
(A.
Hamilton).
Unlike
the
political
branches,
the
courts
would
by
design
exercise
“neither
Force
nor
Will,
but
merely
judgment.”
Id.,
at
523.
To
ensure
the
“steady,
upright
and
impartial
administration
of
the
laws,”
the
Framers
structured
the
Constitution
to
allow
judges
to
exercise
that
judgment
independent
of
influence
from
the
political
branches.
Id.,
at
522;
see
id.,
at
522–524;
Stern
v.
Marshall,
564
U.
S.
462,
484
(2011).

This
Court
embraced
the
Framers’
understanding
of
the
judicial
function
early
on.
In
the
foundational
decision
of
Marbury
v.
Madison,
Chief
Justice
Marshall
famously
declared
that
“[i]t
is
emphatically
the
province
and
duty
of
the
judicial
department
to
say
what
the
law
is.”
1
Cranch
137,
177
(1803).
And
in
the
following
decades,
the
Court
understood
“interpret[ing]
the
laws,
in
the
last
resort,”
to
be
a
“solemn
duty”
of
the
Judiciary.
United
States
v.
Dickson,
15
Pet.
141,
162
(1841)
(Story,
J.,
for
the
Court).
When
the
meaning
of
a
statute
was
at
issue,
the
judicial
role
was
to
“interpret
the
act
of
Congress,
in
order
to
ascertain
the
rights
of
the
parties.”

And,
as
the
ruling
(again,
I
need
to
stress,
this
was
from
just
a
few
months
ago)
states,
the
Judiciary
often
has
to
say
no
to
the
Executive:

The
views
of
the
Executive
Branch
could
inform
the
judgment
of
the
Judiciary,
but
did
not
supersede
it.
Whatever
respect
an
Executive
Branch
interpretation
was
due,
a
judge
“certainly
would
not
be
bound
to
adopt
the
construction
given
by
the
head
of
a
department.”
Decatur,
14
Pet.,
at
515;
see
also
Burnet
v.
Chicago
Portrait
Co.,
285
U.
S.
1,
16
(1932).
Otherwise,
judicial
judgment
would
not
be
independent
at
all.
As
Justice
Story
put
it,
“in
cases
where
[a
court’s]
own
judgment
.
.
.
differ[ed]
from
that
of
other
high
functionaries,”
the
court
was
“not
at
liberty
to
surrender,
or
to
waive
it.”

Alito
signed
on
to
that
opinion
just
months
ago.
And
now
he’s
“stunned”
that
a
judge
is,
indeed,
independently
determining
that
the
executive
branch
is
violating
the
law.

There’s
a
broader
point
here
worth
considering.
The
Supreme
Court’s
role
in
our
constitutional
system
isn’t
just
about
deciding
individual
cases
—
it’s
about
establishing
clear,
consistent
principles
that
lower
courts
and
other
government
actors
can
rely
on.
When
those
principles
shift
dramatically
based
on
which
party
controls
the
White
House,
it
undermines
the
entire
project
of
constitutional
law.

Consider
what
message
this
sends
to
lower
court
judges.
If
you’re
a
district
court
judge
facing
an
executive
branch
that’s
defying
Congress
by
refusing
to
spend
appropriated
money,
what
are
you
supposed
to
do?
Follow
the
guidance
from
the
student
loan
case
that
says
you
must
vigorously
check
executive
overreach?
Or
follow
Alito’s
(thankfully
minority
opinion
for
now)
guidance
from
yesterday
that
says
you
should
be
“stunned”
at
the
very
idea
of
telling
the
executive
branch
how
to
spend
money?

The
answer,
apparently,
is
to
check
the
party
affiliation
of
the
current
president
first.
Which
is
exactly
the
kind
of
outcome
the
Founders
were
trying
to
avoid
when
they
created
an
independent
judiciary.

But
there’s
an
even
more
troubling
aspect
to
all
this.
By
making
such
nakedly
partisan
distinctions,
Alito
and
his
colleagues
are
effectively
creating
two
different
constitutions:
one
that
applies
when
Democrats
are
in
power
(featuring
strict
separation
of
powers
and
aggressive
judicial
review)
and
another
for
Republican
administrations
(featuring
expansive
executive
authority
and
judicial
deference).

This
isn’t
just
about
Alito
being
inconsistent.
It’s
about
whether
we
can
maintain
any
coherent
theory
of
constitutional
law
when
Supreme
Court
justices
treat
identical
legal
questions
differently
based
purely
on
partisan
considerations.

What
we’re
witnessing
is
not
principled
judicial
philosophy
but
raw
partisan
power
dynamics.
The
judicial
doctrines
these
justices
claim
to
revere
—
textualism,
separation
of
powers,
judicial
independence
—
appear
to
be
selectively
deployed
based
on
who
occupies
the
White
House.
The
message
couldn’t
be
clearer:
Republican
presidents
deserve
kingly
deference,
while
Democratic
presidents
require
constant
judicial
constraint.

Which
brings
us
back
to
Chief
Justice
Roberts,
who
continues
to
insist
it’s
unfair
and
inappropriate
to
suggest
his
colleagues
might
be
motivated
by
partisan
considerations
rather
than
consistent
legal
principles.
Perhaps
he’s
right
that
we
shouldn’t
question
the
motives
of
Supreme
Court
justices.
But
when
those
justices
write
opinions
that
directly
contradict
their
own
recent
precedents
based
on
nothing
more
than
which
party
holds
the
White
House,
what
other
conclusion
are
we
supposed
to
draw?

Alito
“Stunned”
By
Court
Exercising
Judicial
Power
He
Championed
&
Expanded
Just
Months
Ago

More
Law-Related
Stories
From
Techdirt:

Detroit
PD
Sued
Over
Yet
Another
Bogus
Arrest
Based
On
An
Unverified
Facial
Recognition
‘Match’

Incoming
CBS
Boss
Jeff
Shell
Pressuring
Underlings
To
Settle
With
Trump,
Trample
Journalistic
Freedom,
And
Kiss
Authoritarian
Ass

The
LA
Times’
Political
Rating
“AI”
Is
A
Silly
Joke
Aimed
At
Validating
Wealthy
Media
Ownership’s
Inherent
Bias

*
Trump
orders
DEI
review
of
“leading
law
firms”
in
full
Dick
the
Butcher
moment.
[National
Law
Journal]

*
Meanwhile,
firms
don’t
need
DEI
to
have
diverse
offices
say
employment
lawyers
preparing
to
bill
for
innovative
“IDE”
advice
[ABA
Journal]

*
Georgetown
Law
responds
to
conspiracy
crank
Ed
Martin
claim
that
he
won’t
hire
from
schools
with
diversity
programs.
[The
Hill]

*
Law
firms
sitting
on
piles
of
cash
are
telling
media
they’re
concerned
about
the
uncertain
economy
—
in
other
words
they’re
not
giving
raises.
[Reuters]

*
Goodwin
embeds
first-years
with
clients.
[Bloomberg
Law
News]

*
The
administration
is
creating
a
strategic
fake
money
reserve
for
some
reason.
[Law360]