NYSRPA v. Bruen

Video by Audrey Jung

Article by Elise Spenner

On Thursday morning, the Supreme Court ruled 6-3 along ideological lines in New York State Rifle and Pistol Association v. Bruen, holding that the Second Amendment protects a right to carry guns in public for self-defense. More specifically, the Court held that New York’s method of granting licenses for concealed carry is unconstitutional because it does not allow the average person with “ordinary self-defense needs” to exercise their Second Amendment right. Instead, it requires applicants to prove a special need or “proper cause” to possess a gun and gives discretion to local officials to make that determination. 

Together, Justice Clarence Thomas’ majority opinion, the three concurrences, and the dissent from Justice Steven Breyer are 135 pages. By all means, read them here. However, below, I’ve offered brief summaries of the majority’s argument and pulled out significant excerpts from the majority and dissent for those that wish to spare a few hours (or days) parsing the document. 

Evaluating Gun Regulations:

Lower courts may not judge the viability of gun regulations using means-end scrutiny. In the ten years since Heller, lower courts employed a two-step process when dealing with gun regulations. First, they weighed whether and how much a gun law infringed on the Second Amendment. Second, if the law touched the core protections of the right, courts applied strict scrutiny to evaluate if the government could prove that the law was narrowly tailored to a compelling interest. If not, judges used intermediate scrutiny to establish if the regulation was “substantially related” to a key government interest. The conservative majority tossed this methodology out the window, arguing that Heller v. District of Columbia foreclosed this type of “interest-balancing” that waters down the importance of a fundamental right. What else, then, are judges supposed to do, if not balance competing interests and use reasoning to evaluate whether a legislative solution infringes unfairly on one interest? According to Thomas, the only way to ascertain the constitutionality of a gun law is to determine whether a gun law “is part of the historical tradition” by scouring history for evidence of analogous regulations. 

Finding historical analogs:

Thomas acknowledged that “the Founders created a Constitution—and a Second Amendment— ‘intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.'” New guns, he wrote, also receive the protection of the Second Amendment. But when considering whether a modern regulation would be lawful under the Second Amendment, the Court requires an analogous — or near analogous — historical precedent. Restricting guns to those with a special need to protect themselves is not legal because there are no analogous historical regulations, but an AR-15 may be, although the founders could not have imagined that such a weapon would ever exist. 

Justice Samuel Alito’s Concurrence:

“Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator. 

“What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?”

Justice Steven Breyer’s dissent opened with a litany of statistics to prove the irreparable impact of gun possession and gun violence on communities across the United States. He did so to express the government’s interest in protecting the public from rampant gun violence through regulation. As seen above, Justice Samuel Alito took umbrage at what he sees as the dissent’s concocted and irrelevant attempt to pull at their audience’s heartstrings. 

According to Alito, the majority’s conclusions will have no bearing on “who may lawfully possess a firearm” or “the requirements that must be met to buy a gun.” Yet, Justice Thomas’ opinion clearly forecloses the use of means-end balancing tests to evaluate the constitutionality of gun regulations, requiring that gun laws that do regulate who can own or possess a firearm must have a close historical analog in order to withstand muster. Secondly, Thomas’ opinion draws zero distinction in constitutional significance between keeping arms in the home and carrying them outside the home. Both factors uproot the way that lower courts have examined gun regulations in the wake of Heller, and will have far-reaching implications beyond New York’s “proper cause” regime.  

Justice Brett Kavanaugh’s Concurrence:

“Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States…Second, as Heller and McDonald established and the Court today again explains, the Second Amendment ‘is neither a regulatory straightjacket nor a regulatory blank check.’ Properly interpreted, the Second Amendment allows a “variety” of gun regulations.”

Notably, Justice Brett Kavanaugh, joined by Chief Justice John Roberts, wrote a concurrence that many lower courts may see as “controlling” — because the majority opinion would not be a majority without their votes, the concurrence of Roberts and Kavanaugh helps to delineate a more limited scope of the Court’s opinion. In the excerpt above, Kavanaugh wrote that shall-issue regimes that impose objective prerequisites for those wishing to possess a gun may stand. He also reasserted that “long standing” gun regulations — like prohibiting guns in sensitive places or barring formerly incarcerated individuals and the mentally ill from carrying guns — are not in danger. 

Justice Steven Breyer’s Dissent:

“Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies, such as legislatures. It requires consideration of facts, statistics, expert opinions, predictive judgments, relevant values, and a host of other circumstances, which together make decisions about how, when, and where to regulate guns more appropriately legislative work. That consideration counsels modesty and restraint on the part of judges when they interpret and apply the Second Amendment.”

While the majority advocated a full-blown historical approach to analyzing modern Second Amendment rights and regulations, Justice Breyer argued that judges should take a step back, and hand over significant leeway to legislatures to do their job properly — consider complex evidence, weigh counter-balancing interests, and craft reasonable legislation that suits the specific needs of their constituents. Rural areas have different needs than urban ones; different guns require different regulations; not all may-issue regimes are the same and neither are all shall-issue laws. After legislatures act, courts can step in to ensure that they haven’t veered too far off course in their interest-balancing, he implied.

Now that the Court has abandoned means-end scrutiny in favor of historical analysis, Breyer accused the majority of failing to provide guideposts for how lower courts are supposed to examine and reach conclusions based on such a vast historical record. Moreover, Breyer asserted that the majority did not clarify what qualifies as an adequate historical analog for a modern law, especially when that law may attempt to deal with circumstances not remotely similar to the time of the founding.

Reading the Dissent: Dobbs v. Jackson Women’s Health Organization

by Elise Spenner

This morning, the Supreme Court ruled 6-3 in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The conservative majority held that the Constitution does not protect a right to an abortion but rather states and legislatures possess the individual power to regulate reproductive rights.  

Much has been said about the majority opinion, authored by Justice Alito, which concludes that both Roe and Casey are “egregiously wrong” and, even in the face of stare decisis, must be overturned. I turned my attention to the joint dissent authored by the three liberals: Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor. 

Throughout their dissent, the three liberal justices adamantly defend the rationale of Roe and Casey. So what did those decisions hold? Roe ruled that the Fourteenth Amendment’s concept of “personal liberty” extended to individual decision-making, including the choice to terminate a pregnancy. But Roe acknowledged the state interest in regulating a fetus, and said that laws could ban abortion after viability. The Casey Court was less eager about abortion rights. A bare plurality abided by stare decisis to uphold Roe, while adding that before viability, states could impose regulations that encouraged childbirth but did not place an “undue burden” on access to abortion.

But back to Dobbs. The dissent begins by contradicting the majority’s claims that the Constitution does not protect the right to abortion because it is not deeply rooted in the history and tradition of the country. At the time of ratification and when the 14th Amendment was introduced, the vast majority of laws criminalized abortions, the dissent admits. But it remains that the values of bodily autonomy and self-ownership are “embedded in core constitutional concepts of individual freedom.” 

Generally, the dissent addresses the majority like they are children unfamiliar with the fundamental thrust of the Constitution — that it is “designed to apply to ever-changing circumstances over centuries” and that examining the status of women’s rights only at ratification and in the Dark Ages disrespects the intent of the founders.

Because in 1868, those who passed the Fourteenth Amendment failed to regard women and people of color as people. And since then, it has been the duty of the Court and the legislature, the dissent writes, to expand “the sphere of protected liberty” rather than shrink it. Women have made great strides toward equality in the last 50 years, the dissent emphasized, but both equality and equal citizenship rely on reproductive rights. To fulfill that promise for each citizen — as the ratifiers of the Fourteenth Amendment did not intend to do — is to grant women the right to choose.

More broadly, many fundamental rights the Court now recognizes — and argues are not at threat here — including the right to same-sex and interracial marriage and the right to use contraception were not protected by law before the mid-20th century. These rights were certainly not rooted in the nation’s history and tradition. 

The majority (barring Justice Clarence Thomas) claims that their decision that abortion does not have a place in the Constitution will not soon extend to other protected liberties (same-sex marriage, contraception…) because these other freedoms do not clash with a state interest in protecting a fetus. But the joint dissent is skeptical. The liberal justices argue that the majority’s analysis does not actually concern itself with the state interest in regulating the fetus, that the only interest relevant to the Court is the interest that does not exist — the female right to an abortion. Because this is the Court’s sole rationale, the dissent says, why wouldn’t they apply the exact same reasoning to other substantive due process rights?

The bulk of the dissent systematically breaks down the majority’s purported loyalty to stare decisis. The dissent argues that most cases overruling prior precedent do so because there is an evolution in legal doctrine, the facts have changed, or people do not rely on the decision. None of the above occurred in the wake of Roe and Casey. The facts remain very much the same: carrying a pregnancy to term remains far more dangerous than getting an abortion and “imposes large-scale financial costs” on a woman, especially given the limited access to health care or paid family leave in America.

In Mississippi, where the 15-week ban on abortion is in effect, those risks and hardships are amplified. Women have little access to health care or leave, can suffer discrimination because they are pregnant, and risk high maternal mortality rates. 

The factual continuity around abortion and pregnancy, the dissent writes, is the opposite of the massive factual changes that preceded cases overruling precedent. In Brown v. Board of Education and West Coast Hotel Co. v. Parrish, the Court’s precedent was clearly untenable, inflicting massive harm in the form of Jim Crow laws and the Great Depression, respectively.

Just as the implications of pregnancy have remained the same, so too has the need for abortions and the reliance on Roe and Casey. Women count on abortion to ensure that they may “participate fully and equally in the Nation’s political, social, and economic life.” And not everyone benefits from — and will suffer from the absence of — Roe and Casey equally. Women below the poverty line seek abortion care more frequently than wealthy women, yet are the ones who lack the means to travel to another state to get that care.

Furthermore, the dissent asserts, both the viability and the “undue burden” standard are workable because they examine the severity of the obstacle the State places in a woman’s way and the State’s interest in implementing the regulation. The dissent cuts through the majority’s “unimpressive” examples of circuit disagreements caused by the undue burden standard, asserting that circuits reached different conclusions only because the laws they considered were different or the fact-finding varied. 

The majority claims that both Roe and Casey are egregiously wrong. But believing that an entrenched ruling is “egregiously wrong,” the dissent asserts, is no more than saying you do not agree with your predecessors. With this turn of phrase, the majority “substitutes a rule by judges for the rule of law.”

Opinion Summary: Shoop v. Twyford

by Audrey Jung

A court order sanctioning prisoner transport for neurological testing in a search for new evidence is invalid, ruled the Supreme Court this Tuesday.

The petitioner in Shoop v. Twyford is Raymond Twyford, a man on death-row for aggravated murder. In 2003, Twyford filed a habeas petition, alleging that his trial counsel was ineffective and his detention therefore violated his constitutional rights. Citing a head injury from a failed suicide attempt as well as physical mistreatment and drug use, Twyford argued that he might suffer from neurological impairment, which his counsel did not investigate in court. He then moved for transportation to a medical center for evaluation, which the District Court granted under the All Writs Act. The Sixth Circuit affirmed.

Stretching back over two hundred years, the All Writs Act functions as a wide-ranging legal order. It grants courts the power to issue writs — written orders requiring action — so long as they are “necessary and appropriate” in aid of their jurisdictions and accord with the “usages and principles of law.” Though once commonly invoked, the act is now narrowly applied. It’s typically reserved for established or extraordinary circumstances, where the law does not already provide an answer for the situation in question.

A divided Court struck down the order on the grounds that Twyford did not prove that evidence gained from testing would be admissible in his habeas proceedings. In the majority opinion, Chief Justice John Roberts cited the Antiterrorism and Effective Death Penalty Act (AEDPA), which bars a federal habeas court from considering new evidence. There are exceptions to this rule, but even should his evidence qualify, Twyford must prove that upon inspection of “the desired evidence,” a “reasonable factfinder” would not have convicted him of his charges. §2254(e)(2)(B) 

The Court expressed doubt that Twyford could meet this burden. Twyford’s statement that the evidence could “plausibl[y]” support his argument of ineffective counsel and mental incompetency was weak ground to stand on. Nor did he explain how his test results would be admissible at court. Meanwhile, the Court noted, the search for ultimately inadmissible evidence would “needlessly prolong” proceedings and pose unnecessary risks (Shinn v. Martinez Ramirez, 1996; Price v. Johnston, 1948).

In a dissent joined by Justices Sonia Sotomayor and Elena Kagan, Justice Stephen Breyer argued that the Court of Appeals did not have jurisdiction in the case because it was an interlocutory appeal (an appeal launched before the trial court makes its final decision). As such, he did not believe that the Court should rule on the merits of the case. 

In a separate dissent, Justice Neil Gorsuch cautioned, as Breyer had, against the Court’s extension of the collateral order doctrine, which allows the court to rule on a small class of interlocutory appeals. 




Opinion Summary: Carson v. Makin

by Elise Spenner

The outcome of Carson v. Makin is no surprise to anyone who has followed the Roberts Court over the past five years, nor to anyone who listened to December’s oral argument in the case. But knowing the result of a case before it comes down — as we likely do in Dobbs v. Jackson Women’s Health, NYSPRA v. Bruen, and Kennedy v. Bremerton — makes it no less startling when the Court releases the opinion in one of its 10-minute intervals. 

The Maine case is a product of an unusual circumstance. Because much of Maine is sparsely populated and rural, more than half of the school districts do not operate a secondary school, leaving students without a public high school option. Instead, the government offers to send tuition assistance payments to a private school of the parents’ choice, so long as it is “nonsectarian.”

Because of this exception, the Court held that the law violated students’ free exercise rights by refusing to fund their education solely on the grounds that it would be a religious one. 

For Chief Justice John Roberts and the five conservatives who joined him, precedent ruled. In her piece previewing Carson v. Makin, Audrey Jung detailed four prior cases that would serve as the basis for the Court’s reasoning in Carson: Zelman v. Simmons-Harris, Locke v. Davey, Trinity Lutheran Church of Columbia, Inc. v. Comer, and Espinoza v. Montana Department of Revenue.

Let’s look at how the majority used these four cases.

Zelman held that a state may offer public funding to religious schools without violating the Establishment Clause. The majority relied on Zelman to prove that the Establishment Clause was not relevant in Carson, and that Maine’s law acted not to separate church and state but to discriminate based on religion.

Locke held that the government could bar college students from using publicly funded scholarships to major in theology. Roberts wrote that Locke had little relevance to Carson; it touched on a specific concern about the state paying to prepare students for the ministry.

Trinity Lutheran and Espinoza served as the bedrock for the Court’s opinion. In each, the Court struck down state regulations that denied funds to playgrounds (Trinity Lutheran) and schools (Espinoza) because they were controlled by religious entities. Roberts found little difference between Carson and these two recent precedents. Like in Trinity Lutheran and Espinoza, the majority applied strict scrutiny to Maine’s law because it violated an enumerated constitutional right to free exercise. 

However, both Maine and the First Circuit claimed that their law was not foreclosed by Trinity Lutheran and Espinoza for two reasons: 

  1. While Espinoza and Trinity Lutheran struck down laws that barred funding based on a school’s association with a religious entity, Maine’s law prohibits funding for schools if they use it for religious education and indoctrination. Using funds for religious purposes is far more threatening to the Establishment Clause than having a religious identity. 

But Roberts ignored possible Establishment concerns that arose from religious use of public funds, focusing instead on how religious discrimination is just as harmful whether based on use or status. Further, he wrote that splitting hairs between use and status could give rise to discrimination based on the religious a school favors and how it “pursues its educational mision.”

  1. Because Maine’s law only applies when no public school is available in the district, the point of the funding is to offer an education comparable to a public one; if the education is sectarian, it is inherently not. 

Again, Roberts disagreed. Maine clearly does not attempt to mimic a public school education. It imposes few requirements for the school of the parent’s choice — the school can be anywhere in the world, the teachers need not be accredited, the parents may still have to pay some of the tuition, and the curriculum does not have to meet strict public school guidelines. But the school must be secular. 

Justice Steven Breyer, joined in dissent by Justices Elena Kagan and Sonia Sotomayor, hammered the Chief Justice for ignoring the Establishment Clause while embracing the Free Exercise one. Because the Free Exercise and Establishment Clause are closely intertwined and often clash, their relationship must allow for “play in the joints” — a state must have some freedom to “further antiestablishment interests” without violating the free exercise clause. State law does not need to be either required by the Establishment Clause or required by the Free Exercise Clause; there can be a middle ground. In simpler terms, there must be a way for the state to take action that avoids both religious sponsorship and religious interference. 

According to Breyer, Maine succeeded in doing so with its law. Legislators wanted the law to be religiously neutral, but they did not want taxpayers to think their money — intended to fund free, public school education — was supporting religious schools. But the rigid, bright-line approach employed by the majority failed to understand that nuance.

To distinguish Trinity Lutheran and Espinoza from Carson, Breyer emphasized use vs. status. Funding playground resurfacing at schools owned by a religious entity (Trinity) does not create the same Establishment Clause concerns as funding the teaching and promotion of religious ideals. The core purpose of the Establishment Clause was to avoid sponsoring religious activity — a concern that Maine’s law, but not the Missouri Constitution in Trinity Lutheran or the law in Espinoza, directly aims to prohibit. Instead, Breyer writes, Carson is similar to Locke, in which the state refused to fund a religiously integrated education because of what the school or student would do with that money. 

Justice Sonia Sotomayor added a short and piercing dissent. She criticized the Court’s actions in the past five years, arguing that Trinity Lutheran and Espinoza steeply eroded Establishment Clause protections while “revolution[izing] Free Exercise doctrine.” Sotomayor wondered at the Court’s willingness to ignore Maine’s desire to provide the closest thing possible to a secular, public school education.

Opinion Summary: Denezpi v. United States

by Bekir Hodzic

Photo Courtesy of High Country News


The Double Jeopardy Clause holds that “[n]o person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” Though this language may seem simple (the government can’t try you for the same crime twice), it has proven murky in practice, birthing several jurisprudential oddities, inconsistencies, and exceptions. Chief among these is the dual-sovereignty doctrine. This legal regime allows separate sovereigns — each possessing distinct jurisdictional authority — to prosecute someone for the same act without violating the Constitution. 

Usually, dual-sovereignty doctrine arises in disputes around state and federal power; yet conflict between these forces and Native tribes can also lead to dual-sovereignty discussion. Yesterday, by releasing an opinion in Denezpi v. United States, the Supreme Court waded into those arguments, further clarifying the doctrine’s specifics, both generally and in the tribal context.


The Ute Mountain Ute — a Native tribe — occupy a reservation in Colorado, New Mexico, and Utah that spans hundreds of thousands of acres. As with many other tribes, the federal government provides the Ute with various services, ranging from healthcare coverage to law enforcement assistance. But the government also supplies the Tribe with a more intangible service: justice. Since 1883, it has administered “Courts of Native Offenses” (called CFR courts) for numerous tribes like the Ute, with these bodies enforcing tribal and federal criminal codes and adjudicating law violations on Native land. Today, most tribes have replaced their CFR courts with independent justice systems. But some, including the Ute, have not. 

This fact became critical when, during a 2017 visit to a friend’s house in the Ute reservation, Merle Denezpi raped his girlfriend. She promptly fled and reported him to tribal authorities. Federal officers then charged Denezpi with three crimes: terroristic threats, false imprisonment, and assault and battery, with federal regulations defining the first two and a Ute tribal ordinance defining the last. These charges, however, didn’t last. As Denezpi’s case proceeded, the government dropped the federal complaints, leaving only the tribal offense, and in time, the Ute CFR court sentenced him to 140 days imprisonment. 

That verdict apparently dissatisfied federal officials. Months after Denezpi’s initial conviction, the Justice Department prosecuted him again, now under the Major Crimes Act for aggravated sexual assault. A federal grand jury soon indicted Denzepi, and a federal district court eventually convicted and sentenced him to 360 months imprisonment — 30 years and an almost 8000% increase from his previous term.

Throughout this process, Denezpi has challenged his prosecution on double jeopardy grounds. He argues that CFR courts, like federal courts, draw their adjudicatory authority from federal wellsprings as they are created, organized, and staffed through federal decision-making processes. Thus, these institutions are but federal agencies. And since (so Denezpi continues) both the Double Jeopardy Clause and the dual-sovereignty doctrine disallow dual prosecution from officials who derive jurisdiction from the same sovereign source, Denzepi claims that the government cannot continue prosecuting him. 

Though his arguments failed in the Tenth Circuit Court of Appeals, Denzepi brought his fight to the Supreme Court, which, in February 2022, heard the case. On Monday, the Court finally released its decision. It affirmed. 


Justice Barrett, writing for a 6-3 majority, accepted Denezpi’s starting contention — that the Ute CFR court and the government both wielded federal authority in trying Denezpi — for simplicity’s sake, but found that making that assumption didn’t matter. Why? Because, as text and precedent have long held, the Double Jeopardy Clause only prevents “successive prosecutions ‘for the same [offense].’” 

As Barrett explained, the Ute, as a semi-autonomous Native tribe, constitute a sovereign separate from the United States. Due to this, by adopting a tribal ordinance punishing assault and battery, the Ute exercised a unique tribal authority that removed that law from the national government’s purview. Therefore, even if the CFR court was a federal entity, it was only a vessel through which defendants could be tried for a tribally-defined crime, meaning that Denezpi’s following prosecution (in federal court) was for a different, federally-defined crime. So, though the same enforcer (the federal government) may have prosecuted him twice, he was never prosecuted for the same offense twice.

Barrett then dismissed several counterarguments. Denezpi first asserted that the Double Jeopardy Clause requires a court to consider an offense’s enacting authority and enforcing authority. Barrett, however, found that because the provision’s wording does not, through a textual or historical eye, consider a prosecutor’s identity, there was little reason to adopt that limiting definition. Denezpi also looked to precedent. He cited language in prior opinions which seemingly supported the idea that a prosecuting sovereign’s identity “matters under the dual-sovereignty doctrine.” These bits of dicta didn’t convince Barrett. She found them unhelpful, as they came from cases that addressed unrelated double jeopardy issues (specifically, ones that didn’t involve “a single sovereign successively prosecuting its own law and that of a different sovereign”); plus, even if applicable, they were at best “imprecise,” lacking the unambiguous legal sway needed to overcome the overwhelming evidence against Denezpi’s position.

On the flip side, Justice Gorsuch, joined by Justices Kagan and Sotomayor, dissented. Responding to the majority, he first characterized the CFR courts as federal creatures (agreeing with how Denezpi depicted them) and then challenged Justice Barrett’s “different offenses” argument. Gorsuch pointed out that the regulations governing the Ute CFR court say that anyone who violates a tribal ordinance on the reservation is guilty of “an offense under the Interior Department’s Law and Order Code.” In other words, these guidelines turn tribal law violations on Ute land into federal ones. And because “Denezpi’s first crime of conviction (assault and battery) is a lesser included offense of his second crime of conviction (aggravated sexual abuse),” he was tried twice by the government for near-identical federal offenses — something the Double Jeopardy Clause clearly prohibits.

Gorsuch, in closing, critiqued the majority’s for exalting “form over substance.” By narrowly focusing on offense background, the Court used reasoning that could allow a State (or the federal government) to prosecute someone twice for the same offense under state and federal law. That, Gorsuch carried on, is a “parsimonious and easily evaded understanding” of a key constitutional protection.


Between the blurred lines demarcating tribal and federal sovereignty lies an obscure legal arena filled with competing interests, broken promises, and truncated history. Confusion often rules here, a natural symptom of our government’s ham-fisted treatment of Native American communities. For some, Denezpi v. United States partially clears away this uncertainty; for others, it only increases it. That disagreement serves as a testament to the difficulty that comes with this area of law, which likely won’t dissipate anytime soon. And for a Court that has shown a growing willingness to confront the complexities underpinning Native law (with mixed results), this haphazardness can only mean more divided rulings containing conflicting judicial narratives. Indeed, several similarly-rooted cases now lay before the Justices. Let’s see where they take us. 

Arizona v. City and County of San Francisco and the DIG

by Elise Spenner

If you’re anything like me, you anxiously refresh Supreme Court results at 10 minute intervals between 10 and 11 am EST. So when, a little after 10:40 on Wednesday morning, the opinion you received was just four pages and the first sentence read “The writ of certiorari is dismissed as improvidently granted,” your first reaction may have been disappointment. 

However, the nine-word per curiam dismissal in Arizona v. City and County of San Francisco belies the significance of the case and of the Court’s refusal to reach a decision in it.  

As a general matter, a case is dismissed as improvidently granted (DIG) when the Court grants certiorari but then regrets doing so, and instead declares that the lower court’s ruling will be final. When a case is DIGed, the blame falls on the law clerk who recommended that the Court hear the case in the first place. A bit of background: all of the justices (except for Samuel Alito and Neil Gorsuch) participate in the cert pool. When a petition for certiorari reaches the Court, a random law clerk is assigned to write a summary of the case and recommend whether the justices should grant certiorari. While the justices don’t necessarily listen to the recommendation of the memo and often instruct their own clerks to independently analyze the case, clerks fear the looming threat that one of their cases will be DIGed by the justices.

Returning from that brief tangent, Arizona v. City and County of San Francisco concerns the definition of a “public charge.”

When immigrants are refused visas or lawful permanent residence in the United States, the reason often falls under the “public charge” rule, enacted in 1882, which declares that immigrants who cannot “take care of himself or herself without becoming a public charge” may be denied entry. Although the statue has remained in place for 140 years, the definition of “public charge” evolved with changing administrations and court rulings. In 1915, the Supreme Court held that a public charge was someone who “by reason of poverty, insanity, disease or disability would become a charge upon the public.” 

Under President Clinton in the 1990s, to meet the definition of a “public charge,” someone had to be primarily reliant on the government for subsistence, often in the form of social security checks or state and local cash assistance. But notably, Clinton’s administration dictated that reliance on non-cash benefits like Medicaid, food stamps, child care credits, or unemployment insurance could not be grounds to deny entry into or lawful residence in the United States under the “public charge” rule. 

Given President Trump’s resistance to immigration, it wasn’t a surprise when the U.S. Citizenship and Immigration Services expanded the definition of “public charge” in 2019, midway through his presidency. Under Trump’s administration, immigrants already in the United States who were seeking lawful permanent residence could be considered a “public charge” if they used any public benefits — including Medicaid and public housing assistance — for more than twelve months. 

But the Trump Administration quickly ran into obstacles in court, as various district courts entered injunctions blocking the expanded “public charge” definition. The Administration appealed to circuit courts around the country, and one appeal eventually reached the Supreme Court.

Before the justices could hear oral argument or rule in the case, the Biden Administration entered the white house in early 2021, and attitudes toward immigration performed a complete 180. New officials saw no reason to continue defending the expanded “public charge” definition in lower courts or at the Supreme Court level, and so proceedings abruptly grinded to a halt. However, the Biden administration chose to leave one ruling in place: a decision in the Northern District of Illinois that ruled against the 2019 “public charge” rule. Officials used this ruling as carte blanche to repeal the “public charge” definition of the Trump Administration and replace it with Clinton’s less expensive one. 

13 states rose up to protest the Biden Administration’s voluntary forfeit, taking the responsibility upon themselves to defend Trump’s public charge rule in court. Too fast, said the liberty Ninth Circuit: states couldn’t simply assume the position of the federal government if the government chose not to continue appeals in the case. That’s when the Court stepped in for a second time, aiming to decide whether the states could defend the rule, and once and for all whether Trump’s “public charge” definition was constitutional.

However, as Chief Justice John Roberts noted in his concurrence to the DIG, various procedural questions make it challenging, if not impossible, for the Court to rule on those two questions. Namely, Roberts cited the failure of the Biden Administration to engage in “notice and comment” before taking agency action to change the “public charge” definition, raising viable concerns. 

When the government creates, edits, or repeals administrative regulations (rules), the agency must notify the public and accept comments. Notices are published in the Federal Register, and the public is given 30 days to offer supplemental or contradictory data and arguments. Although the agency does not have to accept the comments, they must respond to and consider them. With their swift action regarding “public charge,” the Biden Administration circumvented the notice-and-comment process, leaping straight to repealing the rule. 

It’s unclear whether the other justices agreed with Roberts’ reasoning; he was joined only by Justices Alito, Gorsuch, and Thomas in his concurrence. Perhaps, the others thought it was merely not worth their time or effort to answer an ambiguous question that really was no longer relevant, given that the Biden Administration had repealed and replaced the rule already. 

Opinion Summaries: Johnson v. Arteaga-Martinez and Garland v. Gonzalez

by Elise Spenner

The Supreme Court heard Johnson v. Arteaga-Martinez and Garland v. Gonzalez on the same day in January. Today, the Court released their opinions in the companion cases, holding in Arteaga-Martinez that certain detained non-citizens are not entitled to bond hearings, and in Gonzalez that district courts lack jurisdiction to offer class-wide relief to those in detention.

The defendants in both cases brought similar stories to the Court. Both Antonio Arteaga-Martinez and Esteban Aleman Gonzalez attempted to enter the United States and were subsequently apprehended and deported multiple times. While in detention, each non-citizen requested “withholding of removal.” While asylum offers permanent protection to immigrants and a path to citizenship, “withholding of removal” grants non-citizens the temporary ability to remain in the United States because they fear persecution or violence in their home country. Withholding decisions can only be made by an immigration judge in immigration court, and only after an officer from Homeland Security determines that the non-citizen’s claims are legitimate. While these drawn-out proceedings took place, the defendants were detained for over six months.

Gonzalez concerned whether Statute 1231 requires that non-citizens detained for over six months receive a bond hearing and places the burden of proof on the government in that hearing. A 8-1 majority, authored by Justice Sotomayor, said no. Notably, Justice Breyer dissented alone.

The most applicable precedent is Zadvydas v. Davis, in which the Court held Statute 1231 to implicitly limit post-removal detention to a “reasonable” period. However, the ruling is entirely separate from the case at hand, Sotomayor wrote. According to the canon of constitutional avoidance, when a statue can be read in more than one way, courts should adopt the interpretation that conflicts the least with the Constitution. That is why, in Žadvydas, the Court interpreted the statute to prohibit indefinite detention — ruling otherwise would conflict with due process rights. However, the text is unambiguous when it comes to the bond hearing requirement: there is none in Section 1231. The statute makes an “oblique reference” to terms of supervision for released non-citizens, but fails to detail bond-hearing guidelines. 

Sotomayor read the statute plainly. The government may still provide bond hearings, but the text doesn’t require it, and non-citizens may still come forward with constitutional challenges to their detention, but can’t protest the unavailability of bond hearings.

Although Justice Thomas agreed with the Court’s decision given the available precedent, he challenged much that the majority took as a given in their reasoning. First, he argued that the Court didn’t have jurisdiction to review the case. Second, he claimed that non-citizens don’t have a right to Due Process protections. Third, he asserted that Zadvydas relied on “manufactured ambiguity” to arbitrary cap detention periods.

Justice Breyer dissented, finding that Zadvydas should control the decision here. According to Breyer, Zadvydas held that after six months — and if the non-citizen is not likely to be removed in the near future — the Government holds the burden of proof to show that detention is necessary. Either way, if the Government must release a non-citizen after a reasonable length of detention, wouldn’t a bond hearing be advantageous for the Government, as it offers them a chance to make their case for detention before a judge?

The Court’s decision in Johnson answered the initial question in Gonzalez. But when granting certiorari, the justices added a second, broader question to the docket in Gonzalez.

Whether, under 8 U. S. C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.

As discussed above, non-citizens that apply for withholding of removal relief often languish in detention for long periods of time while their cases are adjudicated. During this detention period, the non-citizens in Gonzalez filed writs of habeas corpus, asking for injunctive relief from their respective District Courts to require that the Government provide bond hearings. They also asked the District Courts to recognize a new “class” — individuals detained for at least six months who will not get a bond hearing — and provide injunctive relief for all members of that class. The courts did so.

Justice Alito, writing for the six conservatives, found that Provision 1252 prohibited the District Court from entering class-wide injunctive relief. Justice Sotomayor dissented, joined by Justice Kagan and Justice Breyer.

The case turned on two questions.

  1. What did Congress mean when it wrote that courts could not “enjoin or restrain the operation” of the statute?
  2. In writing that “an individual” non-citizen can seek judicial review related to the statute, did Congress authorize class-wide injunctive relief?

Referring to the “operation” clause, respondents argue that Provision 1252 only restricts injunctions that stop the Government from following the statute lawfully, but Justice Alito disagreed. The “operation” of a statue can be both lawful and unlawful, he said, and the start of the provision even says that claims are prohibited “regardless of the[ir] nature.” Furthermore, respondents’ interpretation just doesn’t make sense. First, it would mean that Provision 1252 applied very rarely, and second, it would be impossible to know if a court had jurisdiction to hear the claim before the court ruled on the merits (the legality of the Government’s actions). 

On the other hand, Sotomayor agreed with the respondents, finding that the provision only bars injunctions that would stop or prohibit — ”enjoin” — the operation of the statute. Sotomayor also took umbrage with Alito’s argument that the “operation” of a statue could be unlawful. When a statute “operates,” it works and functions properly; “a statute does not operate in conflict with itself.” In this case, the injunction does not stop the statute from operating. Instead, it simply orders the Executive Branch to do what the statute says and stop ignoring the law. 

And while Alito foresaw multiple problems with this interpretation of “operation,” Sotomayor found these concerns to be misplaced. If read as respondents intend, the statute wouldn’t only restrict constitutional claims, and those claims could still be heard on an individual basis. It is also common, she said, for courts to weigh the merits of a case before knowing if they have jurisdiction to consider the issue. 

On the second question, respondents ask the Court to read Provision 1252 plainly. If Congress wanted to ban class-wide relief, they would have done so explicitly, and they failed to, saying only that the suit must begin with “an individual.” But again, Alito disagreed. The absence of a direct reference to class-wide relief doesn’t mean the statue allows it, he said. 

But in interpreting the second part of the provision, Sotomayor found that a class is no more than a collection of individuals. In the past, Sotomayor said, a unanimous Court ruled that when a statute gave “any individual” the right to judicial relief, it also obliquely allowed for classwide relief. And when the government wants to prohibit class-wide injunctions, it does so loudly and clearly. This case was an example of the former.

Moreover, Sotomayor criticized the Court for writing a “purportedly textualist opinion that, in truth, elevates piecemeal dictionary definitions and policy concerns over plain meaning and context.” She argued that the majority’s reasoning defined words in isolation rather than considering the provision as a whole or the broader statute it was written within. 

Sotomayor also critiqued the practical implications of the ruling. From their flawed interpretation, the majority concluded that every noncitizen must bring individual habeas action before district courts. Rather than benefit from a class action, every non-citizen must now secure additional counsel and navigate an incredibly complicated immigration system on their own, Sotomayor wrote. In effect, the majority’s decision deprived “many vulnerable noncitizens of any meaningful opportunity to protect their rights.”

2021 Data Breakdown: Gender Diversity

by Elise Spenner

In the October 2021 term, Supreme Court advocates appeared 163 times before the Supreme Court in 63 cases on the merits docket. Men argued before the Court 124 times, while women argued 39 times in front of the justices, making up just 24% of advocates. Because more men make repeat appearances before the Court, if your calculations consider only the unique litigators that appeared, the gender disparity shrinks slightly: 88 men (74%) and 31 women (26%) argued this year. 

Year-on-year, it’s an improvement. When I analyzed gender diversity among advocates last year, only 21% of litigators were women. A 5% improvement is a marked one, but the headline is still dismal: women are far less likely to appear before the Court, and even less likely to make repeat appearances before the Court. 

Where did women make up the most ground in 2021? 

Among rookie advocates. While just 21% of first-time advocates were women in the October 2020 term, women made up 34% of this year’s rookie advocates. 44 advocates debuted at the Court this year, and 15 of them were women. As a measure of comparison, 75 litigators had argued before; and 16 of the 75 were women. 

Surprisingly, even as President Biden settled in and aimed to improve gender diversity across his administration, female advocates did not make up ground in the Office of the Solicitors General. Just 29% of advocates from the Solicitors General Office were female this year, on par with last year’s 28%. Prominent advocates representing the government included Colleen Sinzdak, Erica Ross, Nicole Reaves, and Solicitor General Elizabeth Prelogar. 

Generally, however, the Solicitors General Office is more progressive than private firms or organizations in striving toward gender diversity. Why? Administrations face public pressure to display lawyers that represent the nation, and influential male advocates aren’t able to control how cases are delegated in the Office of the Solicitor General. This year, the same was true: private law firms and organizations continued to lag behind the Office of the Solicitors General when it came to diversifying their slate of advocates. Just 18% of private advocates — those representing neither federal nor state governments — were women. 

Who were repeat players at the Court this year?

Judd E. Stone II, the Solicitor General of Texas, argued his first five cases before the Court this term. It seems almost unprecedented that a first-time advocate would go on to make five appearances in a span of just six months. And in controversial cases, as well: Whole Woman’s Health v. Jackson, US v. Texas, Ramirez v. Collier, Torres v. Texas Dept. of Public Safety, and Biden v. Texas

The only other advocate to appear five times this year was Solicitor General Elizabeth Prelogar, who was confirmed in late October, just after the term began.  

Paul Clement made his 102, 103, 104, and 105 appearances before the Court as a partner at Kirkland & Ellis, including notable advocacy in New York State Rifle and Pistol Association v. Bruen, regarding gun regulations for carry outside the home and Kennedy v. Bremerton School District, considering whether a public school coach can lead prayers on the football field. 

What law firms appeared most often before the Court?

Kirkland & Ellis, WilmerHale, and Latham & Watkins each sent advocates to the Supreme Court four times this term. Kirkland & Ellis failed to diversify its advocates, as Paul Clement represented the firm each time. Clement and Kirkland & Ellis are characteristic of the continued dominance of certain “super advocates” — often male — who hog Supreme Court advocacy at their respective firms. 

In contrast, WilmerHale sent a different avocate to the Court for every case — and three of them were women: Sarah M. Harris, Karla A. Gilbride, and Catherine M. A. Carroll. Harris, Gilbride, and Carroll are all rather green advocates, so WilmerHale could easily have handed each SCOTUS case to the more experienced Mark Fleming. But they didn’t, and it’s inspiring to see a law firm pave the way for up-and-coming female advocates.

What still needs to change at the Supreme Court bar?

In recent history, gender diversity on the Supreme Court bar has oscillated somewhere between 12 and 21%. By this measure, 2019 was an abysmal showing, with female advocates composing only 13% of the year’s appearances. But the October 2020 term was a good year — 21% of advocates were female. And the 2021 term only seems like further upward mobility, as female representation among advocates climbed to 26%. 

But in a society where gender parity is more and more often the norm, the Supreme Court bar continues to be an outdated institution. Our perception of diversity at the Supreme Court is grossly warped; I’m a teenage girl that follows the Court closely, and I’ve learned to celebrate when a quarter of all advocates are female. Something is fundamentally wrong with the legal institutions that produce and maintain these inequities. 

Placing a woman at the top of the Solicitors General Office is a big first step in changing how things work at the Supreme Court bar. And boutique firms like WilmerHale going out of their way to put women in important cases before the Court showcases the potential for diversity at the most elite levels of big law. But firms and offices that prioritize gender diversity remain the exception rather than the rule, and that needs to change.

Opinion Summary: Shinn v. Martinez Ramirez

by Elise Spenner

The Supreme Court ruled 6-3 on Monday to hamstring the ability of state prisoners to challenge their conviction in federal habeas court based on ineffective assistance of counsel. In Shinn v. Martinez Ramirez, the Court split along partisan lines, with Justice Thomas writing the majority opinion on behalf of the conservatives, and Justice Sotomayor penning the dissent for the liberal wing. 

Ramirez and Jones were convicted of heinous crimes by the Arizona Supreme Court. Both then petitioned for state post-conviction relief, relating to various concerns with their state trial. 

But, due again to incompetent attorneys at the post-conviction stage, Ramirez and Jones didn’t bring their claim of ineffective assistance before state court. When the original ineffective assistance claim was finally brought up at the federal district court level, the court found that it was procedurally defaulted — it ignored state court procedure.

Arguments for petitioners and respondents both concerned the extension of the Court’s 2017 ruling in Martinez v. Ryan. To get around procedurally defaulted habeas claims, a prisoner must prove that there is a reason to do so — “cause” — and that they would suffer from “actual prejudice” if the claim wasn’t heard. Martinez offered one exception: if you’re arguing that you had ineffective counsel at trial, the reason your claim wasn’t presented in state collateral proceedings can be that you had an ineffective post-conviction lawyer. But what about if you didn’t establish the evidence and develop the record needed for such a claim? 

Ramirez argued that “his state post conviction counsel was himself ineffective for failing to raise the trial-ineffective assistance claim and develop the facts to support it.” But according to Thomas’ majority opinion, Ramirez is out of luck. Defendants may not receive a new evidentiary hearing in federal court because they had ineffective counsel at the state court level. 

In doing so, Thomas drew a distinction between Martinez and the case at hand. While Martinez considered what happened when a claim wasn’t presented at all in state court, this case concerned the failure to develop evidence. And in this circumstance, Congress already offered instruction for when new evidence may be allowed into a federal habeas hearing; that’s Section 2254, which says that if a prisoner is “at fault” for the undeveloped state court record, there are only two rare exceptions for when new evidence can be let in. In this case, the defendants were “at fault” because they have no constitutional right to legal defense in state post conviction hearings, and neither defendant’s case fit Section 2254’s narrow exceptions. According to Thomas, it isn’t the place of the Court to arbitrarily alter or add on to Congress’ rules. 

Habeas proceedings are inherently intended to be rare and used sparingly; thus, the Court cannot create exceptions left and right to the rules around habeas, Thomas wrote. Moreover, the Court can’t dramatically extend the right to counsel to include state post-conviction proceedings, or allow defendants to move to federal courts without exhausting the state court system.

In dissent, Justice Sotomayor labeled the majority opinion “perverse” and “illogical”, claiming that the Court’s decision all but declared that Martinez was overturned, or at least stripped the precedent of any staying power. According to Sotomayor, it would have been a natural extension of Martinez to grant the defendant’s claims in this case. However, the Court did a complete u-turn, analyzing similar facts to reach the opposite conclusion in this case as they did in Martinez.

Sotomayor elaborated on Justice Thomas’ description of the combined cases brought to the Court, emphasizing that when the petitioners finally received competent counsel and a full evidentiary hearing, the new evidence proved grievous and gaping holes in previous trials. Allowing a federal court to hear new evidence, Sotomayor said, fits within the general thrust of Martinez

Like Thomas, Sotomayor agreed that Section 2254 governed when new evidence could be let into federal habeas hearings. However, Sotomayor held that the petitioners could not be “at fault” for failing to develop evidence. Just as they were not “at fault” in Martinez for not bringing the claim at all, so too here. It’s clear, Sotomayor said, that Thomas willfully ignored the precedent set in Martinez, explicitly citing Antonin Scalia’s dissent in his reasoning.

Sotomayor also contradicted Thomas’ claim that ruling in favor of Martinez and Jones would allow defendants to bypass the state court system. In Sotomayor’s view, these defendants would have brought trial-ineffectiveness claims at an earlier stage, but the state failed to provide them with competent counsel. Ultimately, Sotomayor concluded that the need to respect state-court judgements and preserve the rarity of habeas cannot be more important than safe-guarding the guarantee of the Sixth Amendment.

Kelo v. City of New London: When imagination becomes the limit

I am so excited to announce that High School SCOTUS has a new contributor. Arhon Strauss is a student at Phillips Exeter Academy, Class of 2023. He does Mock Trial, competes in Moot Court, and edits for The Exonian (the school newspaper). He became interested in law through his experiences in Mock Trial and more directly, Moot Court. Below, Arhon offers his first contribution to the blog, a deep dive into the history behind and legal reasoning of Kelo v. The City of New London.

89 years. In 89 years, Wilhemina Dery never budged from the small house in Fort Trumbull, Connecticut where she was born. A mother of two, Wilhemina lived in that house from 1918 through a polio epidemic, a flu pandemic, two economic crashes, and two world wars. In her last years alive, Wilhelmina had a simple wish: she wanted to live out her final days in the only home she knew. This wish to keep her home resulted in an eight year-long court battle, sparking a nationwide debate about property rights, eminent domain, and the meaning of a public use. 

The story of this battle begins in 1998. That year Pfizer built a plant right next to Fort Trumbull, a neighborhood located in New London, Connecticut and co-owned by a variety of citizens. Not long after, the New London Development Corporation (NLDC), a non-profit, took advantage of the neighborhood’s recent economic woes and proposed a redevelopment plan. The idea presented to the City of New London was to build new living and work spaces that would revitalize the community. However, the NLDC’s plan was based around Pfitzer’s requests with the intent to boost their new plant’s profits. Regardless of any potential public gain, the primary purpose of the redevelopment was to help Pfizer as evidenced by the NLDC’s close ties to them and the benefits Pfizer would reap from redevelopment. 

Yet in a controversial use of eminent domain — defined as the power to take property for public use — the city transferred the ownership of Fort Trumbull from the citizens living on it to the NLDC. The city stated that the transfer served the public use of “economic growth.” The affected citizens disagreed. Susette Kelo, along with Wilhelmina Dery and five other families living on the land, sued the city arguing that their actions were outside the scope of a public use and could not qualify for eminent domain. Not only was the supposed economic benefit speculative, it was also unspecific and extremely beneficial to a single private party: Pfizer. Despite these conditions, the Supreme Court of the United States ruled 5-4, agreeing with the city in a case now known as Kelo v. The City of New London (2005). The court justified the decision with misinterpreted precedent that was based in racial and economic discrimination. The unconstitutionality of the Supreme Court’s decision in Kelo set a dangerous precedent for the power of eminent domain, prompting both local and federal legislatures to combat the ruling.

To understand the power of Kelo v. City of New London and the public response to it, it is important to look at the precedents Kelo relies on. The primary cases involving similar situations were Hawaii Housing Authority v. Midkiff (1984) and Berman v. Parker (1954). Berman was an eminent domain case brought by two store owners in the District of Columbia, Max Morris and Goldie Schneider. The city used the powers of eminent domain to target the block they lived on, composed mostly of Black and Jewish people and one of the few racially harmonious locations in the city, as a slum for redevelopment. The Supreme Court unanimously ruled in favor of the city holding that the redevelopment and the possible sale of the redeveloped land was a public use. The court went on to state, “Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area.” Essentially, the Berman ruling eliminated the requirement for direct government use of the land in order to qualify as eminent domain, dramatically expanding its power. 

Moreover, the court skirted the constitutional questions raised in Berman by following the New Deal mindset, developed during Franklin Delano Roosevelt’s presidency, of not criticizing the government’s socio-economic legislation. Notably, the New Deal, while revolutionary in its employment of public housing, led to discrimination against black families through restrictive covenants, prejudicial real estate practices and redlining, forcing many to live in substandard housing. This substandard housing was subsequently targeted by redevelopment acts. The cycle is clear: Black and/or poor individuals were forced into blighted buildings, which created slums that could then be taken for redevelopment using public use and eminent domain as a justification. It may be impossible to say whether supporting the cycle was the government’s true intention, but the ruling in Berman v. Parker undoubtedly sustained this discriminatory process as it set the precedent allowing the government to broadly classify almost anything, including redevelopment by a private enterprise, as a public use.

The Supreme Court hammered down on their definition of eminent domain in Hawaii Housing Authority v. Midkiff. The case involved redistributing land from large landowners in Hawaii to the lessees living on the land. The court in an unanimous decision held that the government acted lawfully because in their words, “The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals, but to attack certain perceived evils of concentrated property ownership in Hawaii — a legitimate public purpose.” The Midkiff ruling firmly established that a government needed a definite intention to benefit the public. Kelo did not meet the bar set in Midkiff because not only did it transfer rights to the NLDC, a private non-profit corporation, it also primarily benefited Pfizer, a private for-profit corporation. Furthermore, in using Midkiff as defense for Kelo, the Court ignored the core conditions of the original case. In Midkiff the government transferred property rights of a few landlords to many lessees, which made sense in the context of a public purpose because the act helped people in the general populace acquire land. The act in Kelo did the opposite, transferring the property rights of many to a singular private party. So contrary to the court’s opinion, Midkiff implied that the government actions in Kelo were unlawful. 

Despite these opposing indicators, the Supreme Court applied both Midkiff and Berman as well as the rational basis test to Kelo, concluding that the City of New London lawfully used eminent domain. The court deemed the government’s use of the NLDC was irrelevant because Berman asserted that the government has discretion to choose the means by which to achieve a public purpose. In this case, the government may rely on a non-profit corporation to achieve redevelopment and economic growth. In following the precedent of Berman, the Supreme Court ignored the racial and economic discrimination often inherent in urban renewal programs, avoided discussion on the destruction of historic buildings and ignored the resulting concentration of extreme poverty. More importantly, Justice Stevens, who wrote the Court’s opinion in Kelo, admitted that he and the Court interpreted precedent incorrectly. Berman still supports the ruling, but Stevens concedes that “more than a century” of precedent rebutting the ultrawide definition of public use outweighs that singular ruling. Although it was not unprecedented, it was exceedingly rare for a Supreme Court Justice, especially the one that wrote the majority opinion, to admit that their reasoning was flawed. Not only was Stevens’ admission a testament to the incorrectness of the decision, but it undermines the credibility of any argument reaffirming Kelo.

The court’s decision to use the rational basis test in the case was also invalid. A rational basis test determines whether a law is constitutional by evaluating if it is rationally related to achieving a legitimate government interest. Rational basis is the least demanding standard of review, and may only be applied to rights not enumerated in the Constitution. Since Kelo explicitly addresses the Fifth Amendment, a rational basis test was not in order. The Supreme Court mistakenly implemented it in their ruling.

Unsurprisingly, the dissenting Supreme Court Justices recognized that the Kelo ruling misinterpreted precedent, emphasizing that it could effectively destroy limits on eminent domain powers. Dissenting for the minority, Justice Sandra Day O’Connor stated, 

“Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings for public use is to wash out any distinction between private and public use of property and thereby effectively to delete the words for public use from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.” 

Significantly, O’Connor refers to the NLDC’s redevelopment of the property as “an ordinary use,” because redevelopment is the primary business for NLDC and in turn standard practice.  Looking at the circumstances from this angle, the City of New London’s public use rationale becomes increasingly far-fetched as they employed no unique use of the property. Notably, O’Connor chooses not to mention the clear benefits to Pfizer, implying that the taking fails to meet the bar of “public use” before even considering NLDC’s ulterior motives. Thus, there were two layers to the unconstitutionality of the court’s opinion,:the broadness of their interpretation of a public use and the taking’s benefit to a private party. Both charges prove that the final decision in Kelo was erroneous.

Taking a different approach, Justice Clarence Thomas, wrote a separate dissent. Thomas’ reasoning relied on originalism — a theory of judicial interpretation that examines the founding father’s initial intent in writing the Constitution. He pointed out that the specific wording of the Constitution suggests that a government taking must involve a direct public use of the land. In other words, the government can not use private corporations to develop the land for them. Thomas’s opinions were radical, but reflective of the overwhelming weight of arguments contradicting the Court’s ruling in Kelo.

Additionally, in his concurrence, Justice Anthony Kennedy, a supporter of the ruling, contradicted the opinion he attempted to reaffirm:

A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. 

Kennedy’s statement, by warning against poor uses of eminent domain, indicates that Kelo could result in unconstitutional takings. Further, the situation in Kelo disproportionately benefited Pfizer, which is the exact scenario that Kennedy declared unconstitutional. So Kennedy’s words beg the question: why did he concur with the ruling? Put simply, he thought the situation in Kelo was not extreme enough to be excluded from eminent domain, a bizarre conclusion given the similarities between it and the type of situation he describes as unconstitutional. Yet, the mere fact that Kennedy attempted to draw a line between Kelo and more extreme circumstances demonstrated the fragility of the court’s argument in favor of the city. 

While the Supreme Court followed racist precedents and faulty logic to rule in favor of the City of New London, the court of public opinion arrived at a different verdict. Polls showed that over 80 percent of people at the time disapproved of the court’s ruling. The case was so unpopular that there was bipartisan opposition to it. Judge Stevens said it was the “most unpopular opinion that any member of the Court wrote during” his 34-year term. All of this outcry did not prompt the Court to revisit Kelo, but did pressure 45 states and Congress into passing a variety of preemptive and responsive laws to counter the Kelo ruling. Along that same line, 36 states tightened definitions of public use and 25 states regulated the type as well as amount of property that was allowed to be redeveloped.

For example, Utah preemptively enacted a statute restricting lawful uses of eminent domain for redevelopment purposes three months before the final decision. The statute created criteria requiring all redevelopment plans to receive approval by the State Board of Education. This minimized the damage of Kelo by simply not addressing the legal precedent and making the bar for redevelopment, the main concern, much higher. Utah’s approach was similar to other states’ legislation that came in anticipation and reaction to the ruling.

The federal legislature also reflected Utah’s actions with more flamboyant language. First, the House of Representatives adopted Resolution 340 in a 365 to 33 vote, urging state and local governments not to “construe Kelo as justification to abuse the power of eminent domain.” But this act was toothless as it had no binding power.  Congress’s next act utilized their strongest weapon: the wallet. House Resolution 3058 restricted federal agency funding for eminent domain in cases involving the transfer of property between private parties. The resolution stated, “public use shall not be construed to include economic development that primarily benefits private entities.” While the wording of Congress’s acts were strong and symbolized the national backlash to Kelo, the essence of the acts still avoided the legal precedent of Kelo by attacking solely the ability to conduct a taking. Put simply, the newfound power of eminent domain remained untouched, albeit with restrictions on the government’s ability to use that power.

Indeed, because the federal government could not fully counter the decision, local and state governments fought the Kelo ruling to varying degrees. The dangers posed by this situation are best explained by Dana Berliner, the Litigation director at Institute for Justice and primary representative for the homeowners in Kelo

Do we want the right to free speech, or the right to be free from unreasonable searches and seizures, to vary by state, with some states providing strong protection and others virtually none? Highly varied and uneven protections would certainly allow for an interesting comparison of different policy approaches. But having such variability in the treatment of significant rights would defeat the purpose of having a federal constitution. 

Berliner struck at the core of Kelo’s threat: its potential to alter the mindset of the American court system. He insinuated that the ease with which Kelo brushed aside property rights could put constitutional rights as a whole in danger of the same treatment. Contrary to Berliner’s warning, the ruling was relatively benign; the ruling in Kelo did not immediately seize the land of Americans across the country. Kelo bore its fangs once it was released into the jungle of the American circuit system. Just as Berliner worried, private parties, usually corporations, exploited the inconsistent legislative responses in low level federal courts. 

For instance, in one of the first cases after Kelo, Seafood Co. v. United States, the Fifth Circuit used Kelo to justify the taking of family business even though that application of eminent domain wholly benefited another private family. Later on, in Whittaker v. Cnty. of Lawrence, the Third Circuit used Kelo to uphold economic development as a public use in spite of the state legislature prohibiting it as a justification for eminent domain. This ruling had the potential to make many state restrictions useless. Further, the Second Circuit, in Goldstein v. Pataki, allowed the government to deploy the eminent domain power when transferring land to a private company for redevelopment. In doing so, the Second Circuit ignored the fact that the company quickly disregarded the proposed public purpose of their plan. These cases displayed the negative influence of Kelo on eminent domain by showcasing some of the worst ways its precedent can be wielded by corporations to acquire land and in turn profit.

More recently, Eychaner v. The City of Chicago proved the Supreme Court’s resistance to overruling past precedent. In the case, Chicago transferred Fred Eychaner’s property to a politically-connected private business for redevelopment in order to secure that company’s support for a new zoning law. The city reasoned that the property’s risk of becoming slum was enough to qualify the move as a public use. Beyond the notional justification, the city verifiably bribed a private corporation with the property of a citizen, an act which stretched the meaning of public use further even than Kelo. Realizing this, Eychaner sued Chicago with the assistance of the Cato Institute. He argued that Chicago’s taking of his land did not qualify as a public use and filed an amicus brief requesting that the Supreme Court overrule Kelo. The court denied both parts of his petition. Eychaner v. The City of Chicago not only spoke to the continued abuse of Kelo, an abuse Justice Kennedy warned against, but also exemplified the way that abuse has continued to amplify the power of eminent domain.

The unconstitutionality of the Supreme Court’s ruling in Kelo set a dangerous precedent for the power of eminent domain, prompting both local and federal legislatures to combat the ruling, often with varying degrees of effectiveness. The Supreme Court’s decision erred in both their application of cases like Berman v. Parker, a case rooted in racial and economic discrimination, and their misintepretation of precedents, like in Midkiff v. Hawaii Housing Authority and United States v. Carolene Products. As such, the ruling was neither morally or legally correct, exemplifying the Court’s predilection to rule in favor of corporations and for the ‘big guy’ as opposed to ‘little guy.’ But even with rampant exploitation of Kelo in increasingly outlandish scenarios, the Supreme Court has refused to overrule it. This persistence to uphold precedent raises a disconcerting question: How far will the government and the courts stretch public use before the Court decides it’s gone too far? Having examined the aforementioned statements, the answer seems to be that the government’s imagination is the limit.