Mark Joseph Stern

@mjsdc.bsky.social

172789 Followers 806 Following

Senior writer at Slate covering courts and the law. Co-host of the Amicus podcast. Dad.

Hello, I’m writing to let you know that I just canceled my DashPass because of DoorDash’s disgraceful campaign against D.C. home rule. DoorDash is urging Congress to nullify a new D.C. law imposing a 20 percent tax on food-delivery services—not merely by overturning that law, but by prohibiting the District from enacting any new tax without prior congressional approval. That is an extraordinarily sweeping assault on D.C.’s right to govern itself and an odious insult to the District’s residents. I am especially disgusted by DoorDash’s public claim that it is somehow defending D.C. residents while actively seeking to strip us of our right to govern ourselves through our own democratically elected lawmakers. Please do not pretend that disenfranchising District residents is an act undertaken on our behalf. I intend to publicize DoorDash’s attack on home rule as widely as possible and urge everyone I know to boycott the company. Shame on you.
Just a few weeks ago, Justice Thomas, writing alone, asked lower courts to reexamine the constitutionality of 18 U.S.C. § 922(g) under the Commerce Clause. See United States v. Hemani, 146 S. Ct. 1677, 1694 (2026) (Thomas, J., concurring). Already, our court answers the call. Today, we grant a petition for rehearing in what was a Second Amendment as-applied challenge to § 922(g)(1), now reframed as a facial1 Commerce Clause challenge. So, rather than clarifying our § 922(g)(1) as-applied precedent to provide fair notice to people in Louisiana, Mississippi, and Texas about whether they can lawfully own guns, see, e.g., United States v. Cockerham, 162 F.4th 500, 518 (5th Cir. 2025) (Higginson, J., dissenting), we imperil much of the United States Code. 2
Me and CF
Conservative: I have been censored for my conservative views Me: Holy shit! You were censored for wanting lower taxes? Con: LOL no...no not those views Me: So...deregulation? Con: Haha no not those views either Me: Which views, exactly? Con: Oh, you know the ones
So far the Bluesky response to my NYT op Ed has been: 1) Lyman has bad tweets 2) cancel Lyman 3) it's good birth rates are falling 4) nobody should have kids Notably missing as a response: Any evidence my thesis is wrong.
The Somali community is a scourge on the republic. I have been saying this for years. The rampant fraud is just icing on the cake. We should indeed be reviewing if Somalis e.g. lied on naturalization forms, and deport any with deportable offenses.
The Somali community is a scourge on the republic. I have been saying this for years. The rampant fraud is just icing on the cake. We should indeed be reviewing if Somalis e.g. lied on naturalization forms, and deport any with deportable offenses.
The Population Forecasts Are Grim. Theyre Still Too Optimistic. By Lyman Stone
ORDER IN PENDING CASE 25A1448 HERRIDGE, CATHERINE V. CHEN, YANPING, ET AL. The application for stay presented to The Chief Justice and by him referred to the Court is denied. The motions for leave to file the application and reply under seal are granted. The order heretofore entered by The Chief Justice is vacated. Justice Kavanaugh would grant the application for stay.
Photo of the U.S. Capitol from the MSNOW studio
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Baude: I agree that we are in unprecedented times, maybe even a constitutional crisis, but if we survive it, the court deserves no small share of the credit. Vladeck: Exactly the same credit we might give to the arsonist who shows up with a fire extinguisher.
First, significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated. And the Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to (i) those foreign citizens who violate U. S. immigration law and illegally enter or overstay and then have children in the United States over (ii) those foreign citizens who follow U. S. immigration law and have children in their home countries while seeking to lawfully immigrate to the United States. Nor presumably would they have wanted to grant constitutional birthright citizenship to children of foreign citizens unlawfully in the country while simultaneously denying constitutional birthright citizenship to children of tribal American Indians. So too, the issue of temporary visitors who give birth in the United States presents a new and different circumstance than in 1868 given the significant changes in immigration laws and travel.
Viramontes v. Cook County Docket No. 25-238 Op. Below 7th Cir. Term October Term 2026 SCOTUS Page Issue Whether the Second and 14th Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.
On Tuesday, the Supreme Court ruled that the first sentence of the 14th Amendment means exactly what it says: Birthright citizenship is the nation’s fundamental law, and Donald Trump cannot repeal it via executive order. The vote was 5–4. This outcome is, of course, a relief. But the margin is a scandal. It is nothing short of stunning that Trump came one vote away from convincing the Supreme Court to repeal the bedrock of the Reconstruction Amendments based on a brazenly partisan contortion of their text and history. A view held only by fringe, far-right nativists until very recently has secured support from four of the nine members of the court: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. This is a shocking development that should upend all expectations that this Supreme Court can be trusted to apply the most basic constitutional guarantees when a Republican president seeks to nullify them. If a theory flatly rejected by all serious legal scholars and historians can come one vote away from success, no rights are safe. Everything is on the table.
Almost to flaunt the point, the analysis gives pride of place to JUSTICE THOMAS’s dissent in that case; if only the rest of the majority had been there to join him! See ante, at 23. Today’s decision thus can join the parade of those recently overruling established law because of a new majority’s new outlook on a consequential matter.
Second, we do not accept the dissent’s assumed monopoly on understanding the effects on individuals involved in disputes over transgender athletes. We are acutely aware of the difficulties sometimes faced by boys who identify as girls (and by girls who identify as boys) in middle school, high school, and beyond. And we greatly admire the desire of all students, including transgender students such as B. P. J., who want to participate in sports. But in conducting the equal protection inquiry, we must also account for the effects on girls who are forced to compete against biological males in sports.
In these cases, we need not definitively resolve whether rational basis review or intermediate scrutiny applies to transgender classifications. In either event, the classification here readily satisfies rational basis review or intermediate scrutiny for the reasons already explained at some length above. The States’ interests in ensuring safety and competitive fairness amply justify the States in maintaining women’s and girls’ sports for biological females. Under the Equal Protection Clause, therefore, schools may determine eligibility for women’s and girls’ sports based on biological sex.
In Bostock, again, no one doubted that firing someone because of his biological sex qualified as “discrimination” under Title VII. See 590 U. S., at 681. Here, though, we face the question whether it qualifies as discrimination under Title IX for a federal funding recipient to sponsor sports teams restricted to biological women or girls alone. And for the reasons just laid out above and explored in depth by the Court, it does not.
I saw lots of folks claim online yesterday that Slaughter is a good thing (or, at least, that it has a silver lining) because it will make it easier for the next Democratic president to simply clean house-and fire many, if not most, individuals who were appointed/hired/installed by President Trump. That may be true in the short term, but that comes at the enormous expense of (1) Congress, which will find itself increasingly hamstrung in trying to exert any control over how the executive branch exercises the powers Congress authorizes and delegates; and (2) the American people, who will find themselves subject to executive branch agencies doing the bidding of the incumbent administration rather than the goals Congress set for them by statute. That may feel good when we like the current administration, but it's a recipe for instability and for the elimination of expertise in almost every facet of governmental regulation. And in the interim, it also gives even more power to the courts (the Supreme Court, in particular), to sort out all of the subsidiary questions that Slaughter has already raised.
This is sloppy and highly misleading. It addresses only principal officers. Even Chief Justice Taft, in Myers, accepted that the appointment of inferior officers can be vested in the department heads and they can be granted removal protections, creating the civil service. This decision doesn't even come close to touching that issue. Barb McQuade & @BarbMcQua...•20h The Slaughter case, overturning precedent, returns us to a spoils system where a president can "clean house" every four years, destroying our professional, independent civil service.
On what basis could Roberts and Kavanaugh possibly allow Trump to purge Democratic appointees from the rest of the administrative state while zealously protecting members of the Fed? Roberts barely bothered to explain. After recounting the various permutations of a central bank throughout American history, he concluded that the Fed’s independence constitutes a “special arrangement sanctioned by history.” What does that mean? Kavanaugh, in a concurrence, added his own gloss, reiterating the court’s previous declaration that the Fed is a “quasi-private, uniquely structured entity” with a “distinct historical tradition.” But its board of governors is not actually quasi-private or unique, except in the sense that all federal agencies have some unique origin story. So, again: What is the constitutional distinction that allowed the court to spare the Fed from its otherwise categorical execution of agency independence?
On Monday, the Supreme Court banished any doubt that it has claimed absolute authority to reshape the federal government as it sees fit. Its decisions in Trump v. Slaughter and Trump v. Cook are almost comically irreconcilable as a matter of logic: The court at once allowed the president to fire the heads of almost every independent agency while preventing him from removing a leader of the one agency it really values, the Federal Reserve. These rulings make sense only as one step in the court’s broader campaign of empowering the president—specifically this president, Donald J. Trump—to enact most of his agenda through executive action without becoming complicit in a catastrophic recession. But the biggest winner here isn’t even Trump; it’s SCOTUS itself. The court not only gets to establish sweeping new rules of American governance, but also to tweak those rules as necessary to favor presidential policies it prefers while quashing those it dislikes. Who could possibly call this a democracy?
Having rejected the Government’s view that the courts are to play no role in assessing the validity of a Governor’s removal, we may decide this application on narrow grounds. No matter the precise definition of cause, or the scope of our review of any such determination, the President failed to afford Cook the procedural protections to which she was entitled by statute. Without such protections, she could not properly dispute the charges the President laid against her. We thus need not address Cook’s constitutional due process argument, for the statute alone makes it unlikely that the Government will prevail on appeal as to the validity of the procedures used to fire Cook.
For all those reasons, we hold that police officers invade a cell-phone user’s reasonable expectation of privacy when they access his Location History. It does not matter if the time period scrutinized was only two hours. Nor does it matter that the materials obtained were handed over by a third-party tech company. When the government “accesses historical cell phone” location information—Location History as much as CSLI—it “conducts a search under the Fourth Amendment.” Carpenter, 585 U. S., at 300.
JUSTICE KAGAN delivered the opinion of the Court. In recent years, law enforcement officers have employed so-called geofence warrants to obtain information that technology companies collect about their users’ cell-phone locations. Suppose that investigators know a crime was committed at a particular place and time, but do not have a suspect. They may draw a “geofence”—a virtual perimeter—around the crime scene and get a warrant compelling a company to hand over data about the cell phones located in that area near the time of the crime. Following a process specified in the warrant, the company will turn over the cell-phone data and eventually identify by name one or more of the users thus disclosed
The Framers recognized the difficulty of crafting election laws “applicable to every probable change in the situation of the country.” The Federalist No. 59, at 362. So instead of constitutionalizing election law, they decided that “a discretionary power over elections” needed to be lodged “somewhere.” Ibid. Suffice it to say, that power was not lodged in this Court. The election-day statutes say nothing about ballot receipt, and we cannot add to the words Congress chose
JUSTICE BARRETT delivered the opinion of the Court. Three federal statutes set the day for the election of Representatives, Senators, and the President. A Mississippi law permits the counting of absentee ballots postmarked by election day but received up to five days later. We must decide whether the federal election-day statutes preempt Mississippi’s law. They do not.
When Smith was first placed in the cell around noon, Van Lanen told Smith that Smith could request a shower any time and that he would come back to discuss “‘clothing and stuff,’” but he never returned. Ibid. Three and a half hours later, Smith requested clothing, bedding, and a mattress from Lieutenant Timothy Retzlaff and asked to be moved to a warmer cell given the cold. Retzlaff said he would check with Van Lanen. Twelve additional hours went by with no word from Van Lanen or Retzlaff. Then, around 3 o’clock in the morning, a different officer told Smith that if he submitted to future wellness checks, he could have a smock, but that otherwise, “he would remain naked and cold.” Ibid. Smith declined. Another eight hours came and went without any word from Van Lanen or Retzlaff. Smith remained naked and frigid overnight as the temperature dropped below freezing to 25 degrees. After 23 hours, prison staff removed Smith from the cell. Smith later stated that he stayed on his feet for most of those 23 hours because it was too painful to sit, lie down, or sleep.
THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES ALAN M. DERSHOWITZ v. CABLE NEWS NETWORK, INC. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 25–770. Decided June 29, 2026 The petition for a writ of certiorari is denied. JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, dissenting from the denial of certiorari. Alan Dershowitz sued respondent, a major news network, alleging that it defamed him. Because Dershowitz is a “public person,” our precedents required him to prove not only the elements of common-law defamation, but also that the network acted with “actual malice.” See Gertz v. Robert Welch, Inc., 418 U. S. 323, 327–328, 342 (1974). Predictably, Dershowitz did not prevail under that exacting standard, which this Court created in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Dershowitz now asks this Court to overrule Sullivan and related precedents. The “actual malice” standard for public figures “bears ‘no relation to the text, history, or structure of the Constitution.’” Berisha v. Lawson, 594 U. S. ___, ___ (2021) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 2) (quoting Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251 (CADC 2021) (Silberman, J., dissenting); emphasis deleted); see also Gertz, 418 U. S., at 370–371, 380– 381 (White, J., dissenting); 153 F. 4th 1189, 1206 (CA11 2025) (case below) (Lagoa, J., concurring). Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby, 586 U. S. 1172, 1177 (2019) (THOMAS, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice
JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, dissenting from the denial of certiorari. Once again, this Court faces a case involving healthcare workers who “served on the front line of a pandemic” and were then “fired . . . for adhering to their . . . religious beliefs.” Doe v. Mills, 595 U. S. 1029, 1035 (2021) (GORSUCH, J., dissenting from denial of application for injunctive relief ); see also Dr. A. v. Hochul, 595 U. S. ___ (2021) (Dr. A. I ) (GORSUCH, J., dissenting from denial of application for injunctive relief ); Dr. A. v. Hochul, 597 U. S. ___ (2022) (Dr. A. II ) (THOMAS, J., dissenting from denial of certiorari). Their case raises an important and recurring question of federal law that warrants this Court’s attention. I The present “chapter in this grim story” involves a lawsuit under Title VII of the Civil Rights Act of 1964. See Dr. A. I, 595 U. S., at ___ (slip op., at 14). That statute makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” 78 Stat. 255, as amended, 42 U. S. C. §2000e–2(a)(1). And the law broadly defines “religion” to “includ[e] all aspects of religious observance and practice, as well as belief.” §2000e(j).
CERTIORARI GRANTED 24-1016 RISEANDSHINE CORP. V. PEPSICO, INC. 25-159 HOFFMANN, LEONARD W., ET AL. V. WBI ENERGY TRANSMISSION, INC. 25-840 INTERNATIONAL PARTNERS, ET AL. V. FERGUSON, GOV. OF WA, ET AL. 25-842 WASSILY, TAMER S., ET AL. V. BLANCHE, ACTING ATT'Y GEN. 25-1017 REPUBLICAN NAT. COMM. V. MI FAMILIA VOTA, ET AL. The petitions for writs of certiorari are granted. 25-1223 MONTOYA PALACIOS, KEVIN I. V. LIGGINS, VERNON, ET AL. The motion of Eva Daley, et al. for leave to file a brief as amici curiae out of time is denied. The petition for a writ of certiorari is granted
CERTIORARI GRANTED 24-1016 RISEANDSHINE CORP. V. PEPSICO, INC. 25-159 HOFFMANN, LEONARD W., ET AL. V. WBI ENERGY TRANSMISSION, INC. 25-840 INTERNATIONAL PARTNERS, ET AL. V. FERGUSON, GOV. OF WA, ET AL. 25-842 WASSILY, TAMER S., ET AL. V. BLANCHE, ACTING ATT'Y GEN. 25-1017 REPUBLICAN NAT. COMM. V. MI FAMILIA VOTA, ET AL. The petitions for writs of certiorari are granted. 25-1223 MONTOYA PALACIOS, KEVIN I. V. LIGGINS, VERNON, ET AL. The motion of Eva Daley, et al. for leave to file a brief as amici curiae out of time is denied. The petition for a writ of certiorari is granted.
CERTIORARI GRANTED 24-1016 RISEANDSHINE CORP. V. PEPSICO, INC. 25-159 HOFFMANN, LEONARD W., ET AL. V. WBI ENERGY TRANSMISSION, INC. 25-840 INTERNATIONAL PARTNERS, ET AL. V. FERGUSON, GOV. OF WA, ET AL. 25-842 WASSILY, TAMER S., ET AL. V. BLANCHE, ACTING ATT'Y GEN. 25-1017 REPUBLICAN NAT. COMM. V. MI FAMILIA VOTA, ET AL. The petitions for writs of certiorari are granted. 25-1223 MONTOYA PALACIOS, KEVIN I. V. LIGGINS, VERNON, ET AL. The motion of Eva Daley, et al. for leave to file a brief as amici curiae out of time is denied. The petition for a writ of certiorari is granted.
Food emojis on flags
Pizza sign
No line to get into the fair despite preparation for a huge one
No line at all to enter the great American state fair despite preparation for a massive one
Hideous plaster Trump arch
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom
There are key problems with this argument, as Justice Ketanji Brown Jackson explained in dissent. First, Bruen ostensibly compels courts to figure out what conduct the Second Amendment protected when ratified; if a contemporary law infringes on that conduct, it is presumptively unconstitutional. But, Jackson wrote, “there is no right to carry a gun onto private property without the permission of the owner.” The majority did not even contest this point, because it is uncontestable. Instead, Alito ratcheted up Bruen’s level of generality: Rather than asking if Hawaiʻi’s law actually burdens a concrete, well-defined right, he merely asked if it “hampers” an individual’s ability to take their gun anywhere they want. Because it does, he concluded, it must be supported by appropriate “historical analogues.”
When I see stuff like this, I just think these people are so full of shit. Does Mark expect us to believe one side is nobly doing law and the other is exercising raw power? What about Obergefell—that incomprehensible drivel was nothing more than five justices wielding power.
These unanswerable questions, like Wolford itself, show what a doomed endeavor Bruen has been from the start as an attempt to do law. Far from restraining judges, the decision gives them maximum latitude to cherry-pick history in service of their preferred outcome—which, for Republican appointees, is usually a ruling against gun safety. This approach to the Second Amendment is wildly inconsistent with state sovereignty and self-rule, allowing unelected judges to topple democratically enacted gun restrictions based on dilettantish historical divination. There is no law to be found in Wolford. It reads not like the work of a court, but of a super-legislature imposing its ideological hostility to firearm regulations on a citizenry that never consented.
This is not to say that more originalism is the antidote to an unconstrained Judiciary. I am doubtful that originalism can be done right in any event because it is too easy for judges to selectively oversimplify the past, either when choosing examples or when drawing inferences from the historical record. Indeed, a “flawed” “historical account” is what started the doctrinal mess we find ourselves in today. See McDonald, 561 U. S., at 914 (Breyer, J., dissenting) (suggesting that Heller was wrongly decided in part based on poorly conceived historical analysis). The plot now thickens, for even selectivity when reviewing the historical record cannot get the majority to its desired result at step one. So the majority jettisons history here, confining its use to step two and freeing courts from the constraints that even an oversimplified understanding of the history might provide when interpreting the “plain text” of the Second Amendment.
The Court today holds that the Executive Branch may circumvent all these mandatory procedures by having U. S. immigration officers stand at the border and physically block noncitizens from setting a foot onto U. S. soil. They may do so even if the asylum seeker is at the threshold of a port of entry designated to receive all noncitizens who seek entrance into the country. Even if the port of entry has ample capacity to inspect that person, including an available asylum officer trained to process asylum applications. Even if the asylum seeker is certain to be persecuted, or killed, if she is turned away.
JUSTICE ALITO delivered the opinion of the Court. This case presents a straightforward question: whether an alien1 who seeks to enter the United States2 from Mexico “arrives in the United States” when he or she is still in Mexico. In the decision below, the United States Court of Appeals for the Ninth Circuit answered “yes.” That is wrong. In ordinary speech, no one would say that a person “arrives in” a place—for example, a house, a city, or a country—before the person enters that place. The context in which the phrase “arrives in the United States” is used in the immigration statutes at issue here supports an ordinary-meaning reading. So does the presumption against extraterritoriality. We therefore reverse.
For what it is worth, I think Bruen was wrongly decided. But if it is going to be our precedent, the majority should at least endeavor to apply it faithfully. I respectfully dissent because the majority has failed to do so here, and its analysis and conclusion only further bind the hands of modern legislatures attempting to balance and protect their residents’ interests. With this decision, the Court has now manipulated Bruen into a free-for-all that lets the Judiciary thwart the will of legislatures by privileging access to firearms above all else. Today’s decision makes one thing clear: The Court’s objective is protecting guns, not consistently preserving any principle of law.
But Durnell’s state tort claim would require Monsanto to add a cancer warning to Roundup’s label even though federal law requires Monsanto to use the EPA-approved label without a cancer warning. Because Durnell’s state tort claim would impose a pesticide labeling requirement “in addition to or different from” the label required by EPA, FIFRA expressly preempts Durnell’s claim.
JUSTICE ALITO delivered the opinion of the Court. When taxpayers fall behind on their property-tax bills, federal, state, and local governments alike have long used foreclosure and sale as a collection method. In Tyler v. Hennepin County, 598 U. S. 631 (2023), we held that the Fifth Amendment Takings Clause requires the government to return any surplus proceeds from tax foreclosure sales, i.e., the difference between the sale price and the taxpayer’s debt. The question presented here is whether the government must pay more when the sale price falls below the property’s hypothetical fair market value. In other words, is the constitutional baseline for “just compensation” the actual tax-sale price or the price that someone would pay for the property in a hypothetical open-market transaction? We conclude that the proper baseline under the Takings Clause is the price obtained in a tax sale, at least when the sale is fairly conducted in light of our country’s history of tax sales. We also hold that, following a tax sale, the Eighth Amendment Excessive Fines Clause does not require the government to return more than the surplus proceeds.
This severance of rights and remedies is a sleight of hand; it comes by way of the majority’s full-throated endorsement of a contract analogy even though what secures the rights at issue is not a contract but a law. Today’s decision magically transforms a federal statute into an invitation to be accepted or declined, deemed binding only if each particular defendant has explicitly agreed to be penalized. No matter that laws, as opposed to contracts, don’t ordinarily work this way. The trick here is the majority’s effortless conflation of law making and agreement making—two different sources of binding authority. The majority’s analysis is spellbindingly straightforward: Spending Clause statutes are contracts, and contracts bind only those who consent. Ante, at 6–8. But pulling this rabbit out of the hat requires misconstruing the Spending Clause and the Necessary and Proper Clause, and ignoring decades of precedent affirming Congress’s authority to use the power of the purse to govern. In the end, the Court reduces some of Congress’s greatest legislative achievements—federal laws that secure civil rights, environmental stability, healthcare, and more—to nothing more than the wheelings-and-dealings of an especially wealthy private party. Because I would not so trivialize a federal statute or the constitutional powers pursuant to which it was passed, I respectfully dissent.
The Court’s decision today is yet another notch in its belt, unabashedly remaking the law in its preferred image. The majority jettisons two decades of settled precedent and breathes new life into two decades of rejected legal theories. It does all this in the name of respecting Congress and the separation of powers. Yet in fixating on the separation of powers, the majority ignores the foundations of its own and shakes the public’s confidence in the stable and predictable development of the law. Because resolving this case did not require inflicting these wounds, I respectfully dissent.
Petitioner Cisco Systems, Inc., allegedly knowingly designed and intentionally built a mass-surveillance system for the Chinese Communist Party to use to identify, track, arrest, and torture thousands of religious minorities. As all agree, if respondents’ allegations were to be proved true, then that would mean Cisco violated universally recognized norms of international law. Respondents thus sued Cisco in a federal action under the Alien Tort Statute (ATS), which vests jurisdiction in district courts over “any civil action by an alien for a tort only, committed in violation of the law of nations,” 28 U. S. C. §1350. In Sosa v. AlvarezMachain, 542 U. S. 692 (2004), this Court held that the ATS permits federal courts to find implied causes of action authorizing plaintiffs to sue defendants who violated international law. The Court nonetheless closes the courthouse doors not just to respondents, but to virtually every future litigant seeking redress for a violation of international law under the ATS. It thus overrules Sosa, without even acknowledging that it is doing so. Today’s decision marks yet another low point in this Court’s esteem for its precedents.
JUSTICE BARRETT delivered the opinion of the Court. The Alien Tort Statute grants federal courts jurisdiction to hear cases involving violations of the law of nations. While conceding that the ATS is “strictly jurisdictional,” we have also said that courts have narrow authority to create causes of action under it. Sosa v. Alvarez-Machain, 542 U. S. 692, 713, 724–725 (2004). These positions are in obvious tension with one another. More significantly, however, asserting such authority would intrude on both Congress’s prerogative to provide rights of action and the power of the political branches to direct the Nation’s foreign policy. It is therefore unsurprising that this Court has never created an ATS action. The authority to do so, always described as slight, is more accurately described as nonexistent. Today, we close the door that Sosa cracked and hold that courts may not create new causes of action for violations of international norms. We also hold that the Torture Victim Protection Act of 1991, which contains an express cause of action, does not provide for aiding-and-abetting liability.
In fairness, if the Supreme Court’s conservative supermajority really committed itself to rigid colorblindness, there would be some benefits for racial minorities. The court could, for instance, stand guard against government persecution of Black and brown communities that’s rooted in the “racial stereotypes” Alito bemoaned. Alas, when presented with this opportunity, the Republican-appointed justices whiffed: In September, they threw out a lower court decision that had limited Immigration and Customs Enforcement’s ability to detain Latinos on the basis of ethnicity. Justice Brett Kavanaugh’s notorious concurrence insisted that the Constitution does not prohibit immigration officers from using “apparent ethnicity” as a factor in deciding whom to stop and interrogate. So the court’s newfound colorblindness appears to be a one-way ratchet. It appears whenever the supermajority needs to shoot down race-conscious remedies for discrimination against minorities. And it vanishes whenever the Trump administration seeks permission to target Latinos because of their race.
We have said that our “‘Constitution is color-blind.’” Students for Fair Admission, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 230 (2023). It “almost never” allows government actors to treat persons differently based on their race. Louisiana v. Callais, 608 U. S. ___, ___ (2026) (slip op., at 17). And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a “perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike.” Shaw v. Reno, 509 U. S. 630, 647 (1993). It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups. Here, the special treatment helped the individual; in other situations it will not. See Buck v. Davis, 580 U. S. 100, 119 (2017).
An officer approached Carter and asked him if he was carrying a weapon. When Carter said “no,” the officer asked, “[d]o you mind hiking your pants for me real quick?” App. to Pet. for Cert. 34a. As Carter complied, another officer standing a few feet away saw an L-shaped bulge in the front of Carter’s pants. The officer pointed out the bulge, which Carter said was his phone. That officer nonetheless frisked Carter, and, after a brief struggle, the officers recovered a stolen firearm hidden among Carter’s multiple pairs of compression shorts. Carter was charged with firearm and theft offenses. He moved to suppress the gun and a statement that he had made after his arrest. He argued that the officer seized him in asking him to hike his pants and that the officer lacked reasonable suspicion or probable cause at that time. The D. C. Superior Court denied the motion. The D. C. Court of Appeals (DCCA) reversed. After concluding that the officers’ conduct did not enable the court to “objectively determine” whether Carter was seized, the
After a thorough investigation, experts for both Saldaño and the State analyzed Saldaño’s IQ scores and other evidence of intellectual disability, including declarations from over a dozen individuals who have known Saldaño throughout his life. Assessing this evidence, all three experts (two for Saldaño and one for the State) concluded that Saldaño meets the standard for intellectual disability established by Atkins. In addition to his IQ scores, which all three experts agreed reflected significantly subaverage intellectual functioning, the evidence showed severe deficits in adaptive functioning. For instance, from childhood, Saldaño was perceived as “‘slow,’” and he had to repeat sixth grade. App. to Pet. for Cert. 97–98 (Pet. App.). He had difficulty bathing, feeding, and clothing himself. He once “‘spent two days without food, a bathroom, or anything else’” inexplicably waiting outside his uncle’s house even though other family members lived nearby. Id., at 96. He was also twice struck by cars because he could not grasp his family’s explanations of how to avoid cars in the street.
The State’s evidence as to Hernandez, who has a limited IQ and a well-documented history of mental illness, consisted entirely of his asserted confessions— particularly two recorded confessions obtained by law enforcement after seven hours of questioning in an eight-by-ten-foot windowless room in a police station, during which detectives intentionally chose not to provide Hernandez with Miranda warnings or to turn on installed video recording equipment. Hernandez asked repeatedly to leave during that session, telling agents he was there against his will and that he wanted to go home. After seven hours, Hernandez finally gave the officers what they had made clear was the only way for the interrogation to end: a purported confession to a crime he did not commit. Only then did law enforcement provide Miranda warnings and turn on the video recorder, after which the detectives led Hernandez through the same purported confession again.
Kekai Watanabe (“Watanabe”), an incarcerated individual at Federal Detention Center (“FDC”) Honolulu, was brutally assaulted during a gang-related fight in July 2021. Watanabe sustained severe injuries, and he later learned that his coccyx had been fractured and bone chips had entered the surrounding soft tissue. Instead of transporting him to a hospital or permitting him to be examined by a specialist, the nurse at FDC Honolulu treated him with nothing more than over-the-counter medication for his pain.
Kevin Sabet @KevinSabet•4h X BREAKING: Expect more pot psychosis casualty events. S Smart Approaches to Marijuana 4,.7h "The research could not be more glaring: combining supercharged marijuana with firearms endangers families, law enforcement, and communities."...