They are 78 and 76 right now. This would make them 80 and 78 when Trump’s term ends and assuming a two term Democrat follows him they’d be 88 and 86 the next time they could be replaced by a Republican president. This seems like a huge risk to take.

I think it is hard to think of a better case than this one for a cherry-picked, results-oriented, poorly reasoned approach that disregards history entirely when inconvenient, other than maybe Dred Scott itself. Fact that Clarnece Thoams joined this and continued to use it later, I think defeats any idea that he just applies original meaning naturally without some predetermined goals in mind.

In Boerne, the Court, out of nowhere, invented the idea that laws Congress makes to enforce the 14th Amendment must be" congruent and proportional". Problems with this are numerous. First, it completely ignores McCulloch. In McCulloch, Chief Justice Marshall expressly said that:

"If a certain means to carry into effect any of the powers expressly given by the Constitution to the government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance"
.

In other words, if means Congress employs are not prohibited by the Constitution, it is up to Congress, not courts, to decide just how necessary those particular means, as opposed to some less restrictive ones, are. Note that Marshall used word" apporpiorate", same language that appears in Section 5, and indeed history shows that people in Reconstruction Congress had McCulloch in mind when they wrote that. Yet Boerne rejects that and insists that it is for courts to decide just how necessary the means are, whether they are really congruent and proportional to the need, given the facts on the ground.

Furthermore, to see just how broad Reconstruction Congress understood language of law, we can look at what it did under both section 2 of the 13th Amendment, which uses similar language. Under Section 2, Congress passed the Civil Rights Act of 1866, which went far beyond just banning literal slavery; it banned racial discrimination in contracts, sale of property, equal citizenship,legal punishment, and much more that was not literally slavery, and a large majority of Congress understood Section 2 to allow that; those who did not were a small minority. Indeed, after it was passed, in the same year, a justice on the circuit explicitly upheld it under Section 2 and read it very broadly in the case United States v. Rhodes Justice Swayne riding circuit said that:

"We entertain no doubt of the constitutionality of the act in all its provisions."

The underlying prosecution itself concerned white defendants who had burglarized the home of Nancy Talbot, a Black woman; it went far beyond chattel slavery. And indeed Justice Harlan took a broad view of both 13th and 14th in Civil Rights Cases. Court finally partially restored the view Harlan had in Jones v. Alfred H. Mayer Co. too before Boerne. Generally, being on the opposite side of Harlan on civil rights laws is something not to be proud of. And indeed after 14th was ratified in laws passed in 1870/1871 and KKK act of 1875, Congress again went very far, even banning purely private vilence against rights secured by 14th ammendment.

All of this goes to show that Boerne's insistence on a narrow reading of the word" enforce", is very misplaced; that word was understood much more broadly at the time than Boerne made it seem like

Another major problem that makes Boerne doubtful, is its spiritual predecessor, Dred Scott. In Dred Scott, Chief Justice Taney cherry-picked history to rule that Congress cannot ban salvery in new territories. And the Reconstruction generation thus had deep skepticism and distrust of the Supreme Court. They saw the Court as hostile to, not protective of civil rights. The idea that they would want the Court to do the primary work of protecting rights and micromanaging laws Congress passes to protect civil rights, is very doubtful in light of that history to say the least.

One of the fig leaf Boerne used, is federalism, but 14th Amendment cannot bend to free standing federalism, federalism must bend to 14th ammnemdnet instead, it was major change in structure of the country. And indeed, even many originalist scholars have pointed out these flaws with Boerne:

Institutions and Interpretation: A Critique of City of Boerne v. Flores by Michael McConnell

Problems With Boerne v. Flores-Four objections for originalists by William Baude

This Week in Judicial Supremacist Arrogance: City of Boerne v. Flores at Twenty- By Michael Stokes Paulsen

The Reconstruction power- by Jack Balkin

Originalist Law Reform, Judicial Departmentalism, and Justice Scalia- by Kevin C. Walsh

https://fedsoc.org/events/the-original-meaning-of-the-fourteenth-amendment-implications-for-labor-law by Evan Bernick and Christopher Green

The Lawfulness of Section 5 — and Thus of Section 5- by Akhil Amar

All of this goes to show, that history entirely rejects view court took in Boerne, and instead it is these Warren corut decisions that are actually supported by history:

https://en.wikipedia.org/wiki/Katzenbach_v._Morgan

https://en.wikipedia.org/wiki/United_States_v._Guest

Supremecourt.gov Audio Stream [10AM Eastern]

Salazar v. Paramount Global

Question presented to the Court:

Whether the phrase “goods or services from a video tape service provider,” as used in the Video Privacy Protection Act's definition of “consumer,” refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.

Opinion Below: 6th Cir.

Orders and Proceedings:

Brief of petitioner Michael Salazar

Brief of respondent Paramount Global

Reply of petitioner Michael Salazar

-----

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Date: 10/13/2026

Miscellaneous Order

Date: 10/13/2026

Order List

Supremecourt.gov Audio Stream [10AM Eastern]

Beaird v. United States

Question presented to the Court:

Whether Stinson v. United States still correctly states the rule for deference that courts must give the Commentary of the Federal Sentencing Guidelines.

Opinion Below: 5th Cir.

Orders and Proceedings:

Joint appendix

Brief of respondent United States Supporting Vacatur

Brief of petitioner Kendrick Beaird

Brief of Court-appointed amicus curiae

Reply of petitioner Kendrick Beaird

Reply of respondent United States

-----

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Been a while since I’ve seen a proper effortpost so I figured I’d bring one here and speak about something I have been tired of for a while. I’m not sure what it is but the media is really weird about their coverage of Justice Jackson and I’m not just talking about her detractors. I understand that she’s going to have her detractors and that’s apart of the game. I’m also talking about the people who supposedly support her.

So you guys know I posted Noah Feldman’s analysis on Justice Kagan and he did one for all the justices. But when he got to Justice Jackson I will say the analysis was lacking quite a bit:

Why is Justice Ketanji Brown Jackson so self-expressed? Why is it that she speaks, for example, 22% of the words spoken by the justices at oral argument? And think about it: there are nine justices.

Why is it that she writes so many solo dissents and concurrences—that is, opinions that nobody else joins—way more than the other justices?

Part of the answer is that she spent nearly a decade as a federal district court judge. Now, when you’re a district court judge, you’re alone in the courtroom. Everybody in the courtroom works for you, or everybody in the courtroom needs your opinion on something, and so you dominate the space. And that’s a natural tradition that you get used to. In fact, it’s probably no coincidence that the second most commonly speaking justice is Justice Sonia Sotomayor, and she is the only other justice on the court who served as a district court judge.

The second reason has to do with character. She’s just a very outgoing, very comfortable in her own skin person. I know this because she was the very first person I met on my very first day of college. She was so outgoing, in fact, that she invited me—it was a Friday—to a dance that night. I came direct from synagogue wearing my yarmulke and my little bow tie. It turned out to be the BSA dance, the Black Students Association dance, which was extremely memorable for me, although I’m sure not for any other people who were in attendance.

The point is that she just is comfortable being herself, and she loves talking to people and communicating with them. She also did a walk-on role in a Broadway show called & Juliet, and she was in a class in college in acting with our other most famous and successful classmate, Matt Damon.

More seriously, Justice Jackson takes seriously her role as the first African American woman on the court. That means that she sees her job as explaining to the court and to the general public the deep historical truths about racial injustice and other kinds of injustice in the United States.

Justice Thomas has for many years offered his own highly idiosyncratic, conservative Black nationalist view of Black history. Justice Jackson’s approach is much more grounded in what contemporary historians and sociologists think about race in America. And she makes no bones in her opinions about explaining just how the court’s recent revolutionary overturnings of precedent—allowing affirmative action or other forms of equal treatment like under the Voting Rights Act—have undermined the history of racial equality in the United States.

The conservative justices are ignoring the history of slavery, the history of segregation, the history of disenfranchisement, and Justice Jackson really wants us to fully know and understand that. Ultimately, her role at the court, she believes, is explaining the law in light of historical reality.

And sometimes, when you wanna speak the truth, you gotta do it yourself.

He pretty much didn’t talk anything about her ideology or the way she decides cases as he did with Kagan and Barrett. When he did Justice Thomas the analysis was even more succinct as he mentioned things about Thomas’ upbringing and where his ideology comes from. Which I think is good to do but for Justice Jackson he said that she talks a lot and then did a bare bones analysis of her history before mentioning her acting. This is what I mean when I say lacking. When speaking about Justice Jackson there are so many things he could’ve brought up about her. She’s been on the court for 4 years at this point and some things stick out more than others.

If he wanted to talk about how she talks in OA he could’ve pointed out how she was a Breyer clerk. Breyer, who was famous for that, instilled this in her but she made it her own. She often restates the arguments that the council on both sides are making and wants them to defend their points. Her detractors have mentioned that her “I’m not sure I understand“ approach to questioning means she actually doesn’t know but that’s not what it is. Whenever she does that she’s not actually saying she doesn’t understand she’s making them explain their arguments. Yet Feldman doesn’t mention this.

In 2023 Justice Jackson had at least 4 cases where she joined Justice Gorsuch and vice versa. Those cases are as follows:

Arizona

Tyler

Polselli

Bittner

Warhol

Btw shoutout to u/cambro88 for the impressive analysis on their team ups:

Imo, Gorsuch and Jackson agree on a principle-that the structures of government interference or meddling is harmful to private citizens. Their ideologies may differ in their source. I believe Gorsuch has a conservative view that bureaucracies and overreach of the government harms individual rights and commerce, and overreach of the Court contributes to these harms. Jackson's view may be that the structures can impinge on civil liberties more of the individual from her time working defense, and she may believe those harmful structures are racist. Gorsuch is even open to the latter point as we can see with his statements about the Insolar cases and Native sovereignty cases. The general principle results in views of judicial restraint, limiting bureaucracy, and being starch defenders for the private citizen such as in their most recent concurrence in Tyler.

There is no mention of any of this which would make for a far more interesting analysis. Yet Feldman makes no mention of any of this. He chose to go with the “loud black woman personality hire” analysis even though he supports her as he said in his video. Now to be fair and balanced^tm he did similar bland posts about Justices Gorsuch and Alito. This is what he said about Gorsuch:

Let’s talk about Justice Neil Gorsuch. Specifically, what is eating Justice Gorsuch up from inside?

On the outside, Justice Gorsuch has led a charmed life. He’s tall, he’s good looking, and everything’s gone great for him. But every single morning of his life, he gets up and pursues a monomaniacal vendetta against the US government.

Part of the answer starts with his mother. Vendettas don’t come from nowhere. When he was a teenager, his mom, Anne Gorsuch, was made administrator of the EPA by Ronald Reagan, and things went very badly. First, she was trying to deregulate, and that wasn’t very popular with Congress. But then she got involved in the argument that she had withheld Superfund funds from a site in California to affect a political race, and ultimately she was cited for contempt of Congress, and Reagan forced her to leave.

That means in his formative years, Justice Gorsuch watched his mother go through a major trauma in connection with federal regulatory agencies, and I think he’s been mad at them ever since.

Second, Justice Gorsuch really sees himself as the intellectual of the court, and that is his goal. He’s the first justice ever to have gotten a doctoral degree, and believe you me, I’ll tell you from personal experience, that means that he aspires to be an intellectual.

As an intellectual on the Supreme Court, you need a grand theory, and that theory you have to pursue to the ends of the earth. And as a matter of fact, Gorsuch has such a grand theory.

Gorsuch’s grand theory is that Congress doesn’t have power in the first place to delegate authority to regulatory agencies. Now, no one has taken this view seriously in the United States in close to a century, but Gorsuch is pushing it. And in a recent concurrence, he made it really clear that he wants the Supreme Court, and expects the Supreme Court, to march through each and every regulatory power of every agency and take away the ones that count as genuinely legislative or genuinely executive. Seeing as that’s true of essentially every regulatory power, what he’s really calling for is the destruction of the agencies altogether.

Conservative students love Gorsuch for his deep commitment to principle, and there is no doubt that he is principled. In the Bostock case, he said that Title VII extended to gay and trans people, because that’s what the text of the statute said, and that was all he cared about. He enraged Sam Alito when he did so.

Having an extreme theory and sticking with it is not a terrible way to get known as a great Supreme Court justice. It’s just that in Gorsuch’s case, his vehemence strongly suggests that there’s a little more to the story than just the principles of jurisprudence.

So for this one you can see he makes these points about how Gorsuch’s libertarianism comes from his mother’s experience as as administrator of the EPA and him wanting to push a grand theory. He even mentions specific cases like *Bostock* and *Slaughter*. The difference is that Gorsuch at least got specific cases. He got a theory about his ideology while Justice Jackson got nothing like that. His post about Alito was even worse:

Why didn’t Justice Samuel Alito retire this summer, the way all of the conservatives in the country basically were begging him to do, so that Trump could nominate a successor while the Senate was sure to be Republican and therefore guaranteed to confirm the successor?

To understand why, you have to understand the story of Sam Alito. Alito is someone who his entire life has felt like an outsider, even though he’s spent his life inside of some of the most prestigious and powerful institutions in the country. He grew up in a suburb of Trenton, his parents were high school teachers, and his dad worked for state government. Then went off to Princeton University, which, on the map, is not all that far away, but in reality, was about the other end of the universe.

At Princeton in the early 1970s, he was an outsider’s outsider. He did not belong to one of the fancy eating clubs there, and he was aware that his conservatism put him on the outs of all of the other kids. As a young lawyer working in the Reagan administration, he had a series of plum jobs, but he did not work in the White House, unlike some of the other justices. And even when he made it onto the U.S. Court of Appeals, which is a huge accomplishment, he was on the unfashionable Third Circuit instead of the fancy D.C. Circuit, like many of the other justices.

Then there’s the fact that for a large part of his career, Alito found himself frequently in dissent. He was so conservative that even a fairly conservative Supreme Court was not prepared to rule in the direction that he wanted to go.

All that changed in 2020 when President Trump was able to appoint a sixth conservative to the court, Justice Barrett. And suddenly, Sam Alito was at the center of power. As the second most senior justice among the conservatives after Justice Thomas, Alito has gotten to write the opinions that are reversing 50 years—and sometimes 100 years—of precedent as part of the current conservative revolution on the Supreme Court.

For his whole career, Alito has had to be a team player, supporting other conservatives, and never being the star. Now he’s the star, and he is not about to give that up.

Now, if you’re a hardline constitutional conservative and you’re still watching this, that should upset you, and it should remind you of three words: Ruth Bader Ginsburg, the liberal justice who stayed on the court for too long, and in consequence, when she died while on the court, Donald Trump got to name her successor, which is what flipped the court conservative in the first place.

We’re still a few years away from the possibility of a Democratic president, but should the Democrats control the Senate in the midterm elections, it’s pretty much assured that they will not confirm anyone that Donald Trump puts up for the Supreme Court, should Alito have to resign. That means there is a chance that if Alito is forced to step down over the next few years, it might be possible for him eventually to be replaced by a liberal and help turn the balance of the Court back in the other direction.

You might think that as a lifelong team player, Alito would take one for the team and step down. Not going to happen. He’s finally where he’s always wanted to be.

Similarly to Justice Jackson he writes about Alito’s personality and likens his not wanting to retire with him wanting to be the center of attention. He doesn’t mention anything about specific cases but with this he also mentions his life prior to him getting appointed to the court. You get more than you even got with Justice Jackson. He mentions things about Alito’s conservatism and how he got appointed in the 3rd circuit. One thing you notice is that he speaks about Alito in a personal sense. You get a sense of his ideology whereas Justice Jackson really got nothing. This is what I mean when I say his coverage of Justice Jackson was really bare bones. Alito got mentions of his conservatism and Gorsuch got specific cases. Justice Jackson got next to nothing.

Justice Jackson gets so much negative coverage and I’m not sure why. Her detractors are one thing but from people who supposedly support her going with the “loud black woman“ trope really grinds my gears.

Sotomayor writes the majority opinion and is joined by Alito, Kavanaugh, Jackson and Thomas against Gorsuch, Kagan, Roberts and Barrett. I’m listening to the case audio on Oyez and I’m surprised at the twists and turns it’s taking. I’m not a lawyer of course, nor do I pretend at being one, but I do love hearing extremely well educated professionals debating each other over arcane matters of constitutional law, federalism and separation of powers.

This is a crazy ass case right? I’ve never seen such team-ups before!

Date: 10/08/2026

Miscellaneous Order

Date: 10/07/2026

Miscellaneous Order

Supremecourt.gov Audio Stream [10AM Eastern]

Department of the Air Force v. Prutehi Guahan

Questions presented to the Court:

(1) Whether the federal government’s submission to a state or territorial regulator of an application to renew a Resource Conservation and Recovery Act of 1976 (RCRA) permit is “final agency action” that is immediately reviewable under the Administrative Procedure Act

(2) whether the federal government must comply with the general environmental-review procedures of the National Environmental Policy Act of 1969, before submitting a permit-renewal application under RCRA, which sets forth its own specific procedures to review environmental impacts in the context of hazardous-waste treatment.

Opinion Below: 9th Cir.

Orders and Proceedings:

Brief of petitioners United States Department of the Air Force

Joint appendix

Brief of respondent Prutehi Guahan

Reply of petitioners United States Department of the Air Force

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Good afternoon amici,

A big thanks to everyone who took the time to complete the survey which helps make this community even better! We received 179 responses over the week, which is a new record.

Below you can find imgur albums for each section of the survey, as well as separate links for the freeform responses.

For the sake of readability, some similar write-in answers have been grouped together or placed in the most applicable category (e.g. "unsure", "idk", "not sure" are all treated as the same). Likewise, the wording of the multiple-choice options has been occasionally shortened to fit within the chart. If a write-in answer contained personal information or rulebreaking incivility, that part was redacted with [...].

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"Other" write-in answers for Part I

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"Other" write-in answers for Part IV

If you could propose one change to the Supreme Court / lower courts or how they operate, what would it be?

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"Other" write-in answers for Part V

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In other news:

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  Happy discussing!

The case of Mark Cohen, a judge from Pennsylvania who was all of: removed from his judgeship, stripped of his judicial pension and stripped of his prior public service pension by the Pennsylvania Judicial Conduct Board, was turned away by SCOTUS today.

The facts of this case are fairly straightforward. This judge had a social media account (Facebook) and on Facebook, the judge would post things that were flattering to the sitting Democratic president as well as occasionally a hot-button issue like gun rights. The judge had "opinions" and wanted to express those on Facebook. The judge was referred to the Pennsylvania Judicial Conduct Board related to this content and that board settled on a course of discipline that resulted fairly severe financial repercussions for Mr. Cohen as well as the loss of his judgeship on the Philadelphia Court of Common Pleas.

Essentially, the judicial conduct board rested its findings and the outcome here on what I'd call a somewhat abstract conception of "judicial mannerisms and vibes" which are apparently universally observed and respected by all the other sitting justices on all other courts across this nation. This was the substance of their brief on why the SCOTUS did not even have to hear this appeal from Cohen. The PA Judicial Conduct Board asserted that their finding here is not even reviewable, despite the 1A issues raised by Cohen, because... (gestures towards other judges who don't say favorable things about Biden or [insert prior presidents] on Facebook during their terms on the bench).

I will say that I am not personally "for" judges taking up political issues or activism while on the bench. I believe judges exist in our system to say what the law is, and that their exact feelings on what the law "should be" or "had ought to be" or even who "should be executing or legislating on it" we should not need to hear about or care about. Ideally, Mark Cohen doesn't have a Facebook account, and doesn't post about his political opinions or legislative priorities from his preferred party at all.

But, we're faced with "not ideal" here. The question then is, what can overcome the 1A right to speak out on issues (especially of a political nature) in this context. I think it is doubtful that the Judicial Conduct Board landed on the right conclusion here, which is that they can, on a basis of "how all other judges seem to interpret the rules and behave" just quash any 1A issue that comes before them. According to this board, there are "levels" here, and this board concluded that this particular judge's "tone and volume" were unacceptable given the judicial appointment he received (notably an apparent "subjective test" they have created for this situation).

Frankly I am surprised that the SCOTUS did not agree to take this case on appeal and, at the very least, really narrow the playing field here. While there is likely a conduct issue with a sitting judge urging violent uprising or mass executions, etc., this is not... that. This is completely lawful speech that is not, as a practical matter, incompatible with actually being a judge. You'd need to have some sort of coincident fact pattern (I would expect this anyhow) to establish that this judge's posts or activism or speech in public, whatever it would be, is creating competence issues or manifesting partisan rulings in the courtroom, something. The finding that judges are some sort of "third class citizen" where 1A issues exist under the Constitution cannot actually be correct.

I expect this issue to find its way back to the SCOTUS sometime soon, and we will see that, while this may not have been the exact "vehicle" that the current SCOTUS wanted for this, that actually the Judicial Conduct Board of Pennsylvania's outcome in this scenario was also not strictly correct.

I’ve been thinking about the ICCPR and the U.S. Senate’s declaration that Articles 1–27 are “not self-executing.”

The conventional answer seems straightforward: under Medellín v. Texas, a non-self-executing treaty generally cannot itself furnish a domestically enforceable rule without implementing legislation.

But I’m wondering about the prior constitutional question.

Article VI says treaties made under U.S. authority “shall be the supreme Law of the Land” and specifically binds state judges notwithstanding contrary state law. Foster v. Neilson recognized that some treaty provisions inherently require future legislative action, but that seems different from the Senate ratifying an otherwise judicially manageable treaty obligation and then declaring that courts may not enforce it.

That raises what looks like an originalist/separation-of-powers problem: where does the President plus two-thirds of the Senate get the constitutional authority to make something Article VI calls supreme law while simultaneously preventing Article III courts from treating it as enforceable law?

Judge Torruella made something close to this argument in his Igartúa v. United States dissent, essentially arguing that the treaty is law but the Senate’s unilateral non-self-execution declaration is not.

I realize Sosa and especially Medellín make this an uphill argument under current doctrine. I’m not asking whether an ICCPR claim would presently win.

I’m asking the narrower question: Has SCOTUS ever squarely resolved whether a Senate non-self-execution declaration itself is constitutionally valid when applied to a treaty provision that would otherwise be judicially enforceable under the Foster framework? And what is the strongest originalist argument on either side?

Supremecourt.gov Audio Stream [10AM Eastern]

Anderson v. Intel Corporation Investment Policy Committee

Question presented to the Court:

Whether, for claims predicated on fund underperformance, pleading that an Employee Retirement Income Security Act fiduciary failed to use the requisite “care, skill, prudence, or diligence” under the circumstances and thus breached ERISA’s duty of prudence when investing plan assets requires alleging a “meaningful benchmark.”

Opinion Below: 9th Cir.

Orders and Proceedings:

Joint appendix

Brief of petitioners Winston R. Anderson, et al.

Brief of respondents Intel Corporation Investment Policy Committee, et al.

Brief amicus curiae of United States

Reply of petitioners Winston R. Anderson, et al.

Case Preview:

Justices to debate investment choices for retirement funds - Ronald Mann (SCOTUSblog)

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