On the first day of his second term, President Donald Trump issued an executive order requiring the Bureau of Prisons to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” Issued alongside a record 26 other orders that day, it was an unsurprising development, because Trump had made this issue one of the centerpieces of his 2024 campaign.

The fate of that executive order, as well as the US Bureau of Prisons’ (“BOP”) memoranda implementing the order, is now before the Supreme Court in a case called Trump v. Kingdom. And, while this case obviously has high stakes for incarcerated transgender people specifically, the Court’s resolution of this case could potentially have far greater reach — cutting off many cis and transgender people’s access to healthcare while they are incarcerated.

That’s because one of the central questions in Kingdom — though this issue is not yet before the justices — is when the Constitution requires prisons to provide medical care to incarcerated people. In Estelle v. Gamble (1976), the Supreme Court held that the Eighth Amendment’s ban on “cruel and unusual punishments” imposes on the government an “obligation to provide medical care for those whom it is punishing by incarceration.” People in prison, after all, cannot simply drive themselves to the hospital if they get sick. If the prison does not give them adequate medical care, they will suffer untreated and potentially die.

For procedural reasons, the Court is unlikely to opine on whether Estelle requires prisons to provide gender-affirming care to trans people right away. But the question of when the Eighth Amendment requires prisons to provide medical care to incarcerated people is front and center in the Kingdom case, which means the Court could potentially use Kingdom to limit all imprisoned people’s access to healthcare — or even to undercut the Constitution’s protections against cruel and unusual punishments more broadly.

Ironically, this case also arises out of a famous political blunder by pro-trans advocates. In 2019, when then-Sen. Kamala Harris was seeking her party’s 2020 presidential nomination, the ACLU circulated a questionnaire to candidates that asked if they would use presidential authority “to ensure that transgender and nonbinary people who rely on the state for medical care — including those in prison and immigration detention — will have access to comprehensive treatment associated with gender transition, including all necessary surgical care?” 

Harris responded that she would, and also said that she “pushed the California Department of Corrections and Rehabilitation to provide gender transition surgery to state inmates” while she was state attorney general. 

Years later, during his 2024 debate with Harris, Trump claimed that the then-vice president “wants to do transgender operations on illegal aliens that are in prison.” And not long after, his opposition to gender-affirming care for trans people in prison became a key part of his campaign.

It’s unclear why the ACLU thought it was a good idea to shine a light on this issue in 2019 because, at the time, the BOP provided gender-affirming care to people in federal prison. The ACLU — which represents the pro-trans side in the Kingdom case — now argues that transgender people in federal prison have had access to at least some forms of gender-affirming care “since at least 1992.”

Indeed, Trump’s own administration concluded in a 2018 memo that the Bureau of Prisons’ “statutory mandate to provide basic medical and mental health care” to incarcerated people obligated it to provide “pharmaceutical interventions (e.g., cross-gender hormone therapy), hair removal and surgery (if individualized assessment indicates surgical intervention is applicable)” to transgender people in prison if their doctors determined that these interventions are “medically necessary care.”

In any event, regardless of why Trump fixated on cutting off trans healthcare for people in federal prison, Kingdom is now before the Court. That means that the fate of trans people in prison — and, if the Eighth Amendment issue eventually reaches the Court, all incarcerated people — is now in the hands of a Republican Court that is often hostile to trans litigants, and that has, at times, signaled that it wants to drastically roll back the scope of the Eighth Amendment.

What are the legal issues in the Kingdom case?

At least since Estelle, the Court has held that people who are incarcerated are not also sentenced to live and die without medical care. As the Court said in Brown v. Plata (2011), “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

Under Estelle and Brown, transgender people often have a right to gender-affirming care during their incarceration. As the US Court of Appeals for the Ninth Circuit held in Edmo v. Corizon (2019), such a person must show that they have a “serious medical need” for such care — typically by demonstrating that the care was prescribed to them by their health provider. But the Constitution does not permit prisons to deny medically necessary care to incarcerated people.

In Kingdom, the ACLU raised this Eighth Amendment argument in the lower courts, but those lower courts ruled in favor of transgender people in prison on different, much more technical legal grounds.

For over three decades, from at least 1992 to 2025, according to the ACLU’s brief to the justices, the BOP provided at least some gender-affirming care, including hormone therapy, to transgender people. This matters because, when a federal agency changes its policies, a federal law typically requires it to “examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” This explanation often must explain the agency’s justification for “disregarding facts and circumstances” that justified the previous policy.

Both the ACLU and the lower courts that heard Kingdom argue that the Trump administration did not comply with this obligation when it cut off care for trans people in prison. 

Among other things, the district court that heard this case determined that the administration cited “zero evidence from its own medical or mental health care professionals to support its conclusions” against providing transgender healthcare. While the Trump administration argues that providing gender-affirming care makes prisons less safe, the district court also noted that “the government has not cited a single instance of gender-affirming care giving rise to safety concerns despite having provided such care for many years.”

Is this a persuasive legal argument against the Trump administration’s new policy? I think it is. And so did three federal judges that previously heard the Kingdom case. But the fate of trans people in prison is now in the hands of a Supreme Court that rarely rules in favor of transgender litigants, and that has a history of handing down legally incoherent opinions that are inconsistent with the Court’s own precedents, and that also deny legal rights to trans people.

The current Court’s uncertain commitment to the Eighth Amendment

Because the lower courts that heard Kingdom did not rule on the Eighth Amendment question, Kingdom should not currently give the justices an opportunity to roll back Estelle. But, in the likely event that this Court rejects the ACLU’s argument that the Trump administration did not adequately explain its new policy, the case will return to the lower courts and the Eighth Amendment issue will be fully litigated — teeing up the Eighth Amendment question for the justices to decide in the near future.

This issue could arise, moreover, at the exact moment that some justices are pushing for sweeping changes to how their Court understands the term “cruel and unusual punishments.” Indeed, at least some of the Supreme Court’s recent Eighth Amendment precedents suggest that the Republican justices want a wholesale rewrite of the Court’s previous precedents laying out what constitutes cruel and unusual punishment.

Since the mid-to-late twentieth century, the Court has held that, in Chief Justice Earl Warren’s words, the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as certain forms of punishment grow more uncommon, they become more constitutionally dubious.

This “evolving standards of decency” framework is front and center in nearly every major Supreme Court decision interpreting the Eighth Amendment for the last five or six decades, including Estelle.

In Bucklew v. Precythe (2019), however, the Court’s Republican majority seemed to abandon this framework. Although decades worth of pre-Bucklew decisions established that a punishment is unconstitutional if it is considered cruel and unusual today, Bucklew suggested that a method of punishment is unconstitutional only if it “had fallen out of use” at “the time of the founding.” 

Bucklew did list some methods of punishment that fail this test, but they are things like “disemboweling” or “burning alive.”  

Thus, if taken seriously, Bucklew’s new approach to Eighth Amendment cases would dramatically expand the government’s power to impose harsh punishments. The late Justice Antonin Scalia, for example, argued that a Bucklew-like approach to the Eighth Amendment does not prohibit the government from executing most intellectually disabled offenders, and that it does not limit the government’s ability to impose excessive punishments for minor crimes.

In fairness, some of the Court’s post-Bucklew decisions are inconsistent with the framework the Court laid out in that case. So at least some of the justices who joined Bucklew may have since decided that it’s a bad idea to toss out the Court’s entire framework for Eighth Amendment cases. But Bucklew was one hell of a warning shot over the bow of the Eighth Amendment. And the mere fact that the Bucklew decision exists means that advocates for humane punishments must hold their breath any time this Court is asked whether a particular punishment is cruel and unusual.

In the worst-case scenario for people in prison, a case like Kingdom could inspire the Republican justices to overrule — or, at least, drastically limit — decisions like Estelle and Brown. That would mean that all incarcerated people, regardless of their gender identity, could lose access to medically necessary care unless the government decides to give it to them as an act of grace.

Inside Chief Justice John Roberts are two wolves.

The first wolf is a staunch conservative who spent much of his career litigating on behalf of corporate interests. This wolf looks at a series of climate change lawsuits that could potentially cost the oil industry billions of dollars or more, and recoils in horror.

The second wolf is a judge tasked with following the law wherever it leads. And that wolf seemed baffled by the oil industry’s arguments in Suncor Energy v. County Commissioners of Boulder County, a Supreme Court case where two oil companies are asking the justices to shut down dozens of climate change lawsuits.

The Court’s decision in Suncor is likely to shape the future of climate litigation in the United States. If the oil industry prevails, that will probably shut down climate change-related suits in state courts — and it may shut them down entirely because it is unclear whether federal law allows these suits to proceed in federal court. If the oil industry loses, by contrast, it could face dozens of suits in state courts across the country seeking billions of dollars or more.

And the outcome in Suncor is likely to turn on which wolf shows up to the justices’ conference on how to decide the case. Roberts, who asked the most ambiguous questions at Monday’s oral argument in Suncor, clearly wants these lawsuits to disappear. But he also appeared doubtful that the oil companies’ weak legal arguments will allow him to make that disappearing act happen.

Notably, Justice Samuel Alito, who owns stock in oil and gas companies, is recused from hearing the case. So, in the likely event that all three of the Court’s Democrats hold together against the oil companies, Roberts would split the Court 4-4 if he decides to join them. That would leave the Court unable to render a decision, and a lower court opinion, which rejected the oil companies’ bid for lawsuit immunity, would remain in effect.

That said, at least two other justices asked questions suggesting that their votes may potentially be in play. Justice Clarence Thomas, who otherwise appeared sympathetic to the oil companies, repeatedly asked whether his Court has jurisdiction to hear Suncor in the first place. Meanwhile, while most of Democratic Justice Elena Kagan’s questions seemed to favor allowing the climate change lawsuits to proceed, she did ask some questions at the end that indicated that she may be looking for a narrow reason to hand the oil companies a win.

The bottom line is that it is difficult to predict how this case will turn out, as more than one justice asked questions that suggest that their vote is, at least, in play. But the outcome is likely to hinge upon the tension within Roberts — who both signaled that he wants the oil companies to win, but who also expressed deep skepticism of their primary legal argument.

So what is Suncor actually about?

Suncor is one of many lawsuits brought by state or local governments (in this case, the plaintiff is Boulder, Colorado) who’ve sued oil companies claiming that those companies should be liable for the harms caused by climate change within those governments’ jurisdictions. In this particular case, the defendants are Exxon Mobil and Suncor, a company that operates two oil refineries in Colorado. 

The lawyer for these two companies, Kannon Shanmugam, told the justices that there are about 60 similar cases brought by municipal governments throughout the country. And, in one of his more pro-oil moments during Monday’s oral argument, Roberts predicted that if Boulder wins in the Supreme Court, there will be numerous other copycat lawsuits filed by other municipalities.

The question in Suncor is whether state courts, including Colorado’s own courts, are forbidden from hearing these sorts of climate change lawsuits.

As Roberts pointed out in one of his less pro-oil moments during Monday’s argument, “there are a lot of familiar situations where conduct outside of a state has broad effects on other states…and yet we allow the state courts in a particular state to bring litigation.” He pointed to “mass tort” suits and “complaints about operations of the internet” as two examples where state courts hear lawsuits involving harms that arise across state borders.

The oil companies’ primary argument is that suits involving air and water pollution are special. But their evidence supporting this argument is confusing and difficult to parse. 

Briefly, the oil companies point to several cases, many of which were decided more than a century ago. These cases held that, before Congress enacted the Clean Air Act in 1963, states could sometimes sue other states for cross-border pollution, even though no federal law forbade such pollution. The Supreme Court created “federal common law” permitting these suits, and the oil companies claim that this federal common law preempted any state lawsuits that covered a similar subject matter.

This federal common law, they now argue, has itself been displaced by the Clear Air Act and its partner statute, the Clean Water Act, but the principle that state suits involving air and water pollution are preempted is somehow still in effect. Although there is no provision in the text of the Constitution that supports this argument by the oil companies, those companies claim that their argument is implicit in the “structure of the Constitution.”

The oil companies’ primary legal argument is difficult to understand

If you are confused by all the arcane history and logical leaps contained in the oil companies’ argument, don’t worry. So were most of the justices. Only Justice Brett Kavanaugh, who repeatedly claimed that his Court’s precedents bar Boulder’s lawsuit, seemed to buy what the oil companies are saying without reservation. Most of the other justices expressed at least some reservations.

Justice Amy Coney Barrett, for example, argued that even under the older “federal common law” regime, states still retained some authority over environmental lawsuits, although she noted that the Court’s previous decisions do not really define the scope of that authority. Kagan pointed out that the many suits challenging climate change are similar to past litigation against tobacco and opioid manufacturers. But those suits were heard by state courts.

Many of the justices appear bothered that these lawsuits exist, but the most skeptical justices couldn’t agree on a legal theory they could use to shut them down.

It seems unlikely, in other words, that there are five votes for the oil companies’ convoluted claim that the “structure of the Constitution” somehow bars state courts from hearing climate change lawsuits. But several of the justices did appear troubled by what could happen if dozens of state courts reach conflicting judgments on who is responsible for climate change and who should receive compensation because of it. And some of these justices floated alternative theories for how to hand the oil companies a win. 

At one point, for example, Barrett floated the possibility that, if the plaintiffs lose in Suncor, they might file a new suit under the now-defunct federal common law that existed prior to the Clean Air Act. Kagan, meanwhile, suggested that perhaps the Clean Air Act could be read to preempt these suits like Suncor. According to Kagan, that law “sets up an extremely complicated scheme about how regulations of emissions should operate,” and allowing states to hear lawsuits like Suncor would “get in the way of how Congress decided to regulate greenhouse gases.”

And Roberts didn’t so much offer a legal argument in favor of the oil companies’ position as express incredulity of what would happen if those companies lose. “Presumably if you prevail,” before the Supreme Court, Roberts told Kevin Russell, the lawyer for Boulder, “the next day a municipality in every single state will file a lawsuit, copy your pleadings, and then there will be at least 50…how do you think that will work out on the ground?”

All of which is a long way of saying that the outcome in Suncor is uncertain. The oil companies led with a weak legal argument, and only Kavanaugh seemed to fully embrace that argument. Many of the justices appear bothered that these lawsuits exist, but the most skeptical justices couldn’t agree on a legal theory they could use to shut them down.

For what it is worth, the oil companies actually do make a strong policy argument that it is a bad idea to allow state courts to do so. As they argue, climate change is a global problem caused by many polluters (and companies like Exxon that supply the oil burned by polluters) throughout the world. It could be impossible to determine which specific companies caused the specific problems caused by climate change in Boulder, Colorado. And even if this obstacle can be overcome, there are many thorny questions about which state’s law should apply when pollution from one state crosses over into another, not to mention the difficult diplomatic issues that could arise if a state court orders a foreign company to pay a large sum of money.

But under our Constitution, the proper solution if the oil companies want federal law to preempt state court suits like Suncor is that they can lobby Congress, and Congress could then draft a statute that balances these companies’ interest in avoiding many conflicting legal decisions with the interests of plaintiffs like Boulder who say they are experiencing real harms from climate change. Congress has the power, for example, to combine all of these state lawsuits into one grand federal lawsuit, where a single proceeding could determine how to portion out the costs of climate change to various energy companies, and how to divide whatever these companies are ordered to pay among the various plaintiffs.

But that solution would undoubtedly require compromises that companies like Exxon will not like. So, instead, they’ve asked the Supreme Court to give them the legal regime that they want, despite the fact that they could not articulate a persuasive legal argument for that outcome. It remains to be seen whether this Court will give the oil companies a win anyway.

The Supreme Court ruled on Friday that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election. This decision should surprise no one because, about two weeks ago, the Supreme Court ruled that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election.

That second decision, moreover, followed an even earlier one by Justice Brett Kavanaugh, which ruled that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election. In that matter, Kavanaugh acted alone under a process that allows a single justice to dispose of a case — a process that the justices rarely invoke unless they view a case as so one-sided that there’s no need to formally refer it to their colleagues.

So, for those keeping track at home, that’s three times that the Supreme Court needed to decide the same exact question in less than three weeks. 

This happened because of an extraordinary round of defiance by Republican judges in the lower courts. Just minutes after Kavanaugh determined (for the first time) that Missouri cannot use the Republican gerrymander, a Trump-appointed judge in Missouri tried to countermand Kavanaugh’s decision. Then, after the full Court reaffirmed Kavanaugh’s decision, a panel of three Republican appellate judges again tried to reinstate the new maps that the Supreme Court had already twice rejected.

These judges’ behavior is disturbing. But it is also potentially a window into the future of the Supreme Court — at least if Republicans keep winning elections that allow them to fill seats on the federal judiciary.

The lower federal courts are gravid with ambitious Republican judges who reach conclusions that are either too extreme or too partisan for the current Supreme Court — such as the ones they reached in this case. These courts are also full of plausible candidates for a Supreme Court nomination who have shown unwavering loyalty to Trump, the MAGA movement, or the Republican Party — regardless of whether there are legal arguments supporting the GOP’s preferred outcomes.

Indeed, one lower court, the US Court of Appeals for the Fifth Circuit, now functions as a kind of think tank for MAGA legal theories that less partisan judges would scoff at in disgust. This is the same court, for example, that attempted to pull the abortion medication mifepristone from the market. It’s a court that declares entire federal agencies unconstitutional. Or that orders thousands of lawfully cast ballots thrown in the trash after the Republican Party asks them to do so. The Fifth Circuit is also frequently reversed from the left by the Supreme Court.

That means that, if Republicans hold onto the Senate after the upcoming 2026 midterm elections, Trump will be able to easily identify and confirm Supreme Court nominees who make Justice Samuel Alito, the most partisan member of the current Court, look like an icon of disinterested fairness. And many of these ultra-partisan judges are young enough that they will remain viable Supreme Court candidates in future Republican administrations.

Eliminating judicial filibusters transformed who gets nominated to federal judgeships

About 13 years ago, the Senate fundamentally changed how federal judges are confirmed. Prior to late 2013, senators in the minority party could use the filibuster to block any judicial nominee who couldn’t find 60 senators who would support their confirmation. But the Senate voted in November of 2013 to allow judges to be confirmed by a simple majority vote.

Both parties have their own narratives blaming the other for this development. Republicans often claim that Democrats’ decision to filibuster a handful of President George W. Bush’s lower court nominees — before the second Bush administration, judicial filibusters were rare — was a major escalation in the partisan war over judicial confirmations. Democrats, meanwhile, blame Republicans for a significant uptick in judicial filibusters under President Barack Obama.

In any event, Senate Democrats eventually decided to allow judges to be confirmed by a majority vote after Republicans filibustered all of Obama’s nominees to three vacant seats on the powerful US Court of Appeals for the DC Circuit. That broke a logjam that otherwise would have prevented Obama from filling any of these seats, but it also created a new world where lawyers who wished to become federal judges or justices no longer needed to worry about winning votes from senators in the other party.

This new world was apparent immediately after Trump took office the first time in 2017. There was a vacant seat on the Supreme Court, largely because Senate Republicans had held it open for a year until Trump could fill it. 

During his first term, Trump largely delegated the task of picking judges to the Federalist Society, a kind of bar association for right-wing lawyers. And the Federalist Society was obsessively focused on weakening the power of federal agencies to regulate private business. 

Trump’s eventual nominee for the open seat, now-Justice Neil Gorsuch, secured his new job by advertising his eagerness to advance the conservative legal movement’s top priority. Shortly before his nomination, Gorsuch wrote a pair of opinions laying out his plan to make federal agencies subservient to the judges. And one of these opinions, according to the journalist David Kaplan, “proved decisive in clinching” the nomination for Gorsuch.

In the pre-2013 world, judges with Supreme Court ambitions often avoided making their most controversial views public out of fear that doing so would antagonize other-party senators who they might need to support their confirmation to a higher court. In 2011, for example, Kavanaugh, then a judge, was assigned to a panel considering the constitutionality of Obamacare. But he dodged the key issue in the case, instead claiming that he lacked jurisdiction to rule on whether Obamacare is lawful.

After Gorsuch’s anti-regulatory opinions scored him a Supreme Court seat, however, lower court judges took notice. And the most ambitious Republican judges started looking for opportunities to prove their conservative bona fides to the Trump White House. Before 2017, for example, Kavanaugh had avoided taking a public position on abortion. Months after Gorsuch’s confirmation, however, Kavanaugh gave a speech to a conservative think tank signaling that he would be a vote to overrule Roe v. Wade if he were given a promotion.

The confirmation process, in other words, now favors candidates who audition for judicial jobs by demonstrating that they are dependable votes on issues that drive their political party. This is especially true for Republican judicial candidates, because the Trump White House has shown such favor toward candidates who are personally loyal to Trump. But Democrats who want a judicial appointment also have similar incentives. 

Gorsuch got his seat because Republicans, who controlled the Senate in 2016 when Justice Antonin Scalia’s death opened a vacancy on the Supreme Court, refused to confirm anyone that Obama nominated to fill this seat. It now appears, in other words, that no Democrat can get confirmed to the Supreme Court unless their party controls the Senate. So Democrats with Supreme Court ambitions also have no incentive to make nice with Republicans.

The way to get a high-powered judgeship is to convince your own political party that you will use that judgeship to advance its goals.

Republican judges are openly auditioning for the Supreme Court

Gorsuch and Kavanaugh are hardly the only judges who started advertising their ideological and partisan loyalty in an apparent effort to get ahead. The lower courts are now full of judges who write extreme and often needlessly provocative opinions that seem designed to catch the eye of someone in the White House.

The Ninth Circuit’s Lawrence VanDyke, for example, is a particularly vulgar judge who was reportedly on Trump’s short list for the Supreme Court during his first term. He’s best known for opinions mocking his colleagues and left-leaning litigants in a tone more often found on MAGA podcasts than in judicial opinions. VanDyke began an opinion about transgender women last March, for example, with the line “this is a case about swinging dicks.”

Or consider Andrew Oldham, a Fifth Circuit judge known for his opinions undercutting the First Amendment, attacking voting by mail, and standing up for vaping companies’ ability to sell bubblegum-flavored nicotine products — among other things. Oldham’s chambers is a factory pumping out decisions that even cause many of the Supreme Court’s Republicans to cringe — his vaping opinion was tossed out in a unanimous decision by Alito — but that also align perfectly with the Trump administration’s preferred policy outcomes.

The federal judiciary has become a partisan institution. And that means that the future of the courts is on the ballot every two years.

Or take Judge James Ho, Oldham’s colleague on the Fifth Circuit, who is also known for his trolly opinions attacking liberal shibboleths. Rather than attempt to summarize Ho’s jurisprudence, I will simply refer readers to my 2023 profile of him: “The edgelord of the federal judiciary.”

I could name more judges who behave similarly — I bring up these three largely because they’ve been discussed in the national media as potential Supreme Court candidates if Trump gets to appoint another justice. But there’s no need to belabor the point. The bottom line is that, if a vacancy does open up on the Supreme Court, Trump will have no shortage of judges who appear to have spent their judicial careers looking for opportunities to demonstrate just how eager they are to advance a MAGA agenda, even when that means moving several steps to the right of a Supreme Court dominated by conservative Republicans.

Indeed, the Missouri incident reveals just how widespread these sorts of judicial partisans are within the lower courts. None of the Republican judges who tried to reinstate the Missouri gerrymander after it was rejected by the Supreme Court, for example, have received the same attention that VanDyke, Oldham, and Ho have received as possible Supreme Court candidates. One of them, Judge James Loken, is an 86-year-old George H.W. Bush nominee with no prospects whatsoever of getting promoted.

But the culture in the lower courts has grown so open to partisan decisionmaking that he, along with two younger colleagues, literally tried to give the Republican Party an extra US House seat after the Supreme Court had told them not to do it twice.

Which isn’t to say that every Republican federal judge, or even every Trump appointee, is a partisan hack. One of the most pointed opinions rejecting Trump’s attempt to overthrow former President Joe Biden’s victory in the 2020 election, for example, was authored by Judge Stephanos Bibas, a Trump appointee. But, while Bibas’s opinion in Donald J. Trump for President v. Secretary (2020) was excellent, it also almost certainly guaranteed that he will never become a justice. And it absolutely guaranteed that he will never be nominated by Trump.

There’s no good solution to this problem

The biggest reason why America is stuck in this mess is that its two major parties have polarized on the proper role of judges. Even setting aside the youngest generation of hyperpartisan judges, it’s long been the case that any Republican nominated to the Supreme Court will be a reliable vote against causes like abortion rights, affirmative action, and the Voting Rights Act, and an equally reliable vote in favor of the “unitary executive” and for religious conservatives who seek exemptions from state and federal laws. Any Democrat, meanwhile, will take the opposite position on these, and a whole array of other issues where the two parties have consistent positions.

This is why restoring the old filibuster rules that existed prior to 2013 will not succeed in moderating the judiciary. If anything, allowing the minority party to filibuster judges again would mean that no one would ever be confirmed to the Supreme Court, because any nominee who is acceptable to one party would be radioactive in the other party.

Ultimately, the only effective way to keep people like Oldham, Ho, or VanDyke off the Supreme Court is to elect senators and presidents who do not want them on the Supreme Court. The federal judiciary has become a partisan institution. And that means that the future of the courts is on the ballot every two years.

In a 2016 opinion, authored one year before he became a Supreme Court justice, then-Judge Neil Gorsuch warned against lawyers who tempt judges to reach conclusions that aren’t supported by the Constitution’s text. “Ours is the job of interpreting the Constitution,” the future justice wrote. “And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.”

Gorsuch might have gazed into a crystal ball when he wrote this line, because it could have been written with a case that is now before Gorsuch’s new Court — Suncor Energy v. County Commissioners of Boulder County — in mind. 

In Suncor, city and county officials in Boulder, Colorado sued the oil behemoth Exxon Mobil, along with a company named Suncor that operates two oil refineries in Colorado. They sued in Colorado state court, seeking, in their own words, to require the two companies “to share a portion of the costs [Boulder] taxpayers face in coping with a climate altered” by the oil industry.

That alone makes Suncor, which the justices will hear on October 5, a hugely important case, because it could be the first of many lawsuits ordering oil companies to compensate the public for the costs of climate change. But the stakes in this case are even higher because of the audacity of the oil companies’ argument to the justices. 

Exxon and Suncor claim that their clients should be immune from this suit, not because any particular provision of the Constitution grants them immunity, but because state courts are forbidden from hearing climate change lawsuits under something called the “structure of the Constitution.” The oil companies claim that there’s a rule against many state environmental suits buried somewhere in this “structure,” even though it cannot be found in the Constitution’s text. 

This argument exists in an entirely different universe than the Supreme Court’s precedents governing environmental suits, which explicitly permit — and even sometimes require — state courts to hear lawsuits alleging that a company in another state or country caused pollution that migrated across state or international lines.

But there’s a bigger issue at stake here, too. If you take seriously these justices’ pledged allegiance to textualism — and its close cousin, originalism, which, in Justice Amy Coney Barrett’s words, claims that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative” — then Suncor should be an easy case. The oil companies’ failure to even articulate an argument rooted in constitutional text should be disqualifying.

But Exxon and Suncor clearly believe they can win the case while thumbing their nose at many of the justices’ purported allegiance to textualism and originalism. It’s not hard to guess why they would believe this. Increasingly, the same justices who evangelize for textualism and originalism ignore the Constitution’s text when necessary to achieve their political goals. 

There is no textual basis, for example, for the Republican justices’ claim that President Donald Trump may use the powers of the presidency to commit crimes. Similarly, the Court’s Republican majority recently invented something called the “major questions doctrine,” which allows the justices to veto federal regulations that they deem too ambitious, even though the full Court has never even attempted to justify this doctrine by citing the text of the Constitution or any federal statute.

Now, Suncor will be a test of just how far they will go, with big ramifications not just for climate lawsuits, but potentially for any lawsuit that seeks to declare a state or federal law unconstitutional..

What are the actual legal issues in Suncor?

Many of Boulder’s claims against the oil companies arise out of a tort law theory known as “nuisance,” which often allows someone who uses their property in a way that harms someone else to be sued. If your neighbor lights a trash fire in their yard that fills your house with noxious fumes, they have created a nuisance and you may have a viable lawsuit against them.

Often, these nuisance suits involve major environmental claims, and they also often involve claims that cross state lines or even international borders. In Ohio v. Wyandotte Chemicals (1971), for example, the state of Ohio sued chemical companies located in Michigan and Canada, claiming that they “each dumped mercury into streams whose courses ultimately reach Lake Erie,” thus poisoning Ohio’s waters. The US Supreme Court ruled that Ohio’s state courts should hear this lawsuit.

In Suncor, however, the oil companies claim that lawsuits arising out of climate change are special, and may not be heard by any state’s courts. Broadly speaking, these oil companies raise two arguments, one of which is easily refuted by quoting a statute; the other is their cockamamie claim that the “structure of the Constitution” prevents state courts from hearing Boulder’s lawsuit.

One of the oil companies’ claims is that Boulder’s lawsuit is “preempted” by the federal Clean Air Act. On the surface, this argument is at least plausible, as Congress does have the power to enact federal laws that effectively nullify a state law. The Constitution states that federal laws are “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 

But the oil companies’ claim that the Clean Air Act preempts climate change lawsuits in state courts is weak. That law states that “air pollution control at its source is the primary responsibility of States and local governments.” And it states that, at least with respect to stationary polluters like factories, power plants, or Suncor’s refineries, “nothing in this chapter shall preclude or deny the right of” states to adopt or enforce air pollution standards or laws, unless the state’s rule is less stringent than what federal law requires. (The Clean Air Act does sometimes preempt state suits involving pollution caused by mobile sources, such as airplanes.)

So it’s pretty clear that the Clean Air Act does not bar state nuisance suits such as Suncor.

Which brings us to the oil companies’ claim that the Constitution’s “structure” somehow bars this suit. Their brief makes the extraordinary claim that “the Court has long held that interstate pollution is an inherently federal area in which state law cannot govern,” a claim that is easily repudiated by the Wyandotte Chemicals decision, among others.

In the same brief, the oil companies claim that the structural principle that only federal courts can hear climate change lawsuits can somehow be derived from an unusual approach to environmental lawsuits that the Court invented more than 100 years ago, and that it abandoned many decades ago.

In Missouri v. Illinois (1906), the Supreme Court heard a claim that Chicago, Illinois was dumping sewage in a river that eventually flowed into Missouri. Despite the fact that there was no federal law governing water pollution at the time, the Court apparently concluded that there should be some process that states can use to sue other states that do what Illinois was accused of doing. 

The Court’s opinion in Missouri weighed the evidence in the case before ruling in Illinois’s favor. So Missouri seemed to suggest that federal courts have some power to hear environmental suits even in the absence of an act of Congress permitting them to do so.

Based on this and similar older cases that reached similar conclusions, the oil companies claim that Missouri created a “federal common law” that governed interstate environmental lawsuits in the absence of a federal statute. And they also argue that this judicially created “common law” preempted certain state environmental lawsuits. They also argue that this preemption remains in place even though federal laws such as the Clean Air Act and the Clean Water Act have now displaced this federal common law.

Needless to say, that’s a lot of logical leaps. The oil companies’ argument is that an extra-statutory workaround that existed many decades ago still preempts state environmental lawsuits, even though that workaround no longer exists and has been replaced by an act of Congress. They also claim that this rule against state environmental suits can be found somewhere in the “structure” of the Constitution, despite the fact that it is nowhere in the Constitution’s text.

Among other things, this confusing argument is inconsistent with a case the Supreme Court decided as recently as April. As the Court said in Hencely v. Fluor Corp. (2026), “there is no federal pre-emption in vacuo,” a Latin term meaning “in isolation,” “without a constitutional text or a federal statute to assert it.”

So the oil companies’ claim that the “structure of the Constitution,” whatever the hell that means, somehow precludes climate change lawsuits in state courts should be easily dismissed. Further, as the Court said in Hencely, a litigant making a constitutional preemption claim must cite the text of the Constitution — and the oil companies have not done that here. 

The oil companies’ brief actually makes a pretty good policy argument for only allowing federal courts to hear climate change lawsuits

Setting aside the oil companies’ risible legal arguments, they actually make a decent argument that, as a matter of policy, it would be best if climate change cases were heard in one grand federal lawsuit rather than dozens of piecemeal suits brought in state courts.

Many different fossil fuel companies in both the United States and abroad have contributed to climate change. It may be impossible to determine which company is specifically responsible for any climate change-related problems that arise in Boulder, Colorado. And, because some of the responsibility for climate change falls on foreign actors, allowing a state court to adjudicate climate change-related suits raises difficult questions of international diplomacy. 

Additionally, the fact that the Clean Air Act treats pollution from stationary and mobile sources differently complicates this case even further. How is a court supposed to determine to what extent climate change in Boulder was caused by pollution emitted from oil refineries or power plants, rather than cars or airplanes?

But these are arguments that the oil companies should present to Congress, not the Supreme Court. It is Congress’s job to decide when to preempt state law. And there’s no question that Congress could pass a law shutting down lawsuits like Suncor, while simultaneously creating a federal process that will allow Americans who are injured by climate change to seek compensation in federal court.

Passing a federal law, however, requires compromise. It requires lawmakers to weigh the concerns of voters who don’t want the same outcome that Exxon wants. And, especially given the likely outcome of the 2026 midterms, it would require the oil companies to work with Democrats to come up with a legal framework that would actually earn some bipartisan support.

Instead, the oil companies want to bypass all that by getting a Republican Supreme Court to declare lawsuits like Suncor unconstitutional. And they are apparently so confident that they can convince these justices to do so that they barely even managed to articulate a legal argument for their position.

If you felt a gust of wind late on Friday, it came from hundreds of immigration lawyers who simultaneously exhaled after the Supreme Court announced it would not hear a case known as Genalo v. Black. That case asked whether certain immigrants could be held in immigration detention facilities indefinitely without ever receiving a bond hearing or other opportunity to seek temporary release. And if the Court had decided this case, its recent immigration decisions suggest that most of the justices may have blessed indefinite detention.

The Black case originally concerned two lawful permanent residents of the United States who were arrested during the first Trump administration because of crimes the two men committed years before, and that they had already served prison sentences for committing. 

These immigrants were arrested because of a federal law, which provides that the federal government “shall take into custody” noncitizens who committed certain crimes or who are accused of involvement with terrorism so that the government may begin deportation proceedings against these individuals. This law does not allow these noncitizens to challenge their detention while their deportation case is pending. (Notably, the relevant federal law sometimes allows an immigrant to be detained without hearing if they are merely suspected of terrorism, which means the person could be detained indefinitely based on false allegations.)

Both men sued, claiming that it is unconstitutional to hold them for too long without some kind of hearing to determine whether they should be released after paying a bond. And a federal appeals court agreed, holding that “due process bars the Executive from detaining such individuals for an unreasonably prolonged period…without a bond hearing.” 

Thus, Black was more than just another flash point in America’s debates over immigration. It was a test of one of the most fundamental protections that a liberal society provides to its residents — the right not to be locked up, forever, without any way to challenge the basis of that detention. 

Now that the Supreme Court has removed the Black case from its own docket, this appeals court decision will not be formally repudiated by the Supreme Court. So immigrants who are detained indefinitely may still ask courts to give them a bond hearing — at least for now.

Still, the Court’s nondecision in Black leaves a cloud of uncertainty hanging over similarly situated immigrants. The Trump administration will no doubt continue to detain people for prolonged periods of time (most of whom won’t be able to obtain a gubernatorial pardon, like one of the men was in this case). And the question of whether these immigrants can be detained forever will remain unresolved until the Supreme Court takes up another case involving a similarly situated immigrant.

Why the case was dismissed 

Both men at the heart of the Black case spent significant amounts of time in immigration detention facilities years after serving sentences for crimes. One, a Jamaican citizen named Carol Williams Black, spent seven months in an immigration detention facility. The other, Keisy Guerrero Mariano, spent 21 months in detention without a bond hearing or other procedure that could allow him to seek release while his case was pending. These 21 months in immigration detention more than doubled the time he spent in New York state prison for his actual crime — he pled guilty to second-degree assault after he got into a fight outside a New York City restaurant.

But there is no longer a legal dispute about what should happen to either man — in the words of the law, both cases are now moot. Black has since been released from detention and says that he “made the difficult decision to leave the United States” and has no intention to return. And the Trump administration’s case against Guerrero Mariano went up in smoke in late August, after New York Gov. Kathy Hochul gave him a pardon — thus wiping away the conviction that allowed the Trump administration to detain Guerrero Mariano in the first place.

Guerrero Mariano is one of six individuals that Hochul pardoned at the time. In her official announcement, she said that she did so because these six people “have demonstrated remorse, exemplified rehabilitation and displayed a commitment to improving themselves and their communities.”

There’s also a great deal of evidence indicating that Hochul pardoned Guerrero Mariano in order to resolve his immigration case — and potentially keep the Supreme Court from deciding Black. Among other things, the actual pardon document signed by Hochul specifically states that it will grant Guerrero Mariano “relief from removal.” Guerrero Mariano’s lawyers had sought this pardon, and Hochul granted it mere days before his brief was due in the Supreme Court. 

That brief’s very first sentence, moreover, states that Hochul “granted Respondent Keisy G.M. a full and unconditional pardon of the state criminal conviction that is the sole basis for his removal,” and it urges the justices to dismiss the case as moot.

Last Thursday, Trump’s Justice Department joined a stipulation calling for the justices to dismiss the case against Guerrero Mariano, most likely because even they recognized that a lawful permanent resident with no conviction may not be detained. The Court granted that request on Friday.

So that’s good news for Guerrero Mariano, who presumably will now be able to live freely in the United States. 

Guerrero Mariano’s lawyers were right to fear a trip to the Supreme Court

It’s possible that the Supreme Court might have agreed with the lower court’s holding that immigrants who are detained for an “unreasonably prolonged period” have a constitutional right to a bond hearing — this Court has, on rare occasions, broken with the Trump administration in immigration cases. But those decisions are few and far between.

Among other things, this Court has allowed President Donald Trump to deport immigrants back to war zones. The Court’s Republican majority effectively nullified the Convention Against Torture, a treaty that is supposed to protect immigrants from being deported to nations where they will be tortured. The Court also blessed so-called Kavanaugh stops, which permit suspected immigrants to be racially profiled so long as their race or ethnicity isn’t the sole reason why they are stopped by law enforcement.

Moreover, while the US Court of Appeals for the Second Circuit’s decision in Black — the one holding that immigrants like Guerrero Mariano may receive a bond hearing if their detention is “unreasonably prolonged” — reached a plausible legal conclusion, this conclusion was not a slam dunk under the Supreme Court’s previous precedents. And that means that the justices could have easily come up with a reason to reverse that decision if they wanted.

On the one hand, the Court said in Zadvydas v. Davis (2001) that “a statute permitting indefinite detention of an alien would raise a serious constitutional problem.” On the other hand, the Court held in Demore v. Kim (2003) that an immigrant similarly situated to Guerrero Mariano may “be detained for the brief period necessary for their removal proceedings.” 

Read together, these decisions suggest that the government does have some power to detain people while their immigration case is pending. While Zadvydas indicates that this detention can go on for too long, the Court has never established when an immigrant’s detention has stretched too long. So that means that the justices would have a fair amount of leeway to allow prolonged detentions without defying any of their previous precedents.

So it’s clear why everyone from Guerrero Mariano’s lawyers to Hochul seemed concerned about what would happen if the Court decided this case. In the worst-case scenario for immigrants, Trump could have gained the power to lock many people up for years without any meaningful way to challenge their detention. In the best case, the Supreme Court may have reached the same conclusion as the Second Circuit — but even that decision was vague about how long an immigrant must be detained before they must receive a bond hearing.

In any event, the bottom line is that the Court’s decision to dismiss the Black case is good news for Guerrero Mariano. But that dismissal merely delays a reckoning for other immigrants who face prolonged detention while their case is pending.

On Monday evening, the Supreme Court handed down its long-awaited decision in United States Postal Service v. California — the case involving President Donald Trump’s attempt to sabotage voting by mail in the United States. 

If Trump’s attack on mailed ballots had succeeded, it would have given a significant advantage to Republicans in the upcoming midterms because Democrats were much more likely to vote by mail than Republicans in the last several US election cycles. 

The decision is a rout. Trump didn’t just lose; the Court’s brief order slips in a line indicating that Trump exceeded his authority and cannot implement such an attack on voting by mail under any circumstances. Not one member of the Court, including the dissenting justices, argues that Trump had the power to shut down voting by mail in the way he attempted to. Trump, in other words, found a line that even this Supreme Court would not let him cross.

The decision in USPS is also the second Supreme Court decision in less than a week that shuts down a Republican Party effort to skew the 2026 midterms in its favor. Last week, the Court ruled that the state of Missouri must use the same congressional maps it used in 2024 (which elected two Democrats), instead of new maps that were expected to elect seven Republicans and only one Democrat.

All of this, from a Court where Republicans hold six of nine seats, and where that Republican majority is often unafraid to go out on a limb to benefit the GOP and its leaders. This is, after all, the same Court that held that Trump is allowed to use the powers of the presidency to commit crimes. 

So what’s going on?

The short answer is that, as the Court moves rightward, the mix of cases that reaches the Supreme Court also changes. Liberals and Democrats — or, at least, savvy liberals and Democrats — stop bringing lawsuits that rest on legal theories that right-leaning judges are unlikely to accept. Republicans, meanwhile, grow more brazen and start bringing cases that would be summarily rejected by a less friendly bench. And red-state lawmakers decide to roll the dice on laws that would be immediately declared unconstitutional if the federal courts were less Republican.

As Dartmouth political scientist Brendan Nyhan wrote after the Court (despite its Republican majority) had an unusually liberal term in 2015, “the court’s recent decisions may reflect a change in the cases being considered by the court rather than a shift in the preferences of the justices.”

Eventually, however, lawyers and policymakers who raise dubious legal theories or who enact clearly illegal policies will do something that is so beyond the pale that the justices will start to push back, and that’s what happened in USPS. Republican lawyers and policymakers will undoubtedly make more attempts to skew the midterms in the coming weeks. At the very least, the USPS decision shows that there are some limits to what this Court will tolerate.

Trump lost, badly

Trump’s attack on voting by mail wasn’t just illegal; it also imposed such heavy burdens on state election officials so close to the 2026 election that it likely would have been impossible for many states to comply with Trump’s new policy.

USPS concerned a wide range of new restrictions on mailed ballots that the Trump administration announced in late August, just weeks before states needed to start mailing those ballots to voters. Among other things, the new rules required states to mail ballots in envelopes that include several federally mandated design features. These envelopes were to be preapproved by a federal official, and the Postal Service would refuse to deliver ballots that do not comply.

The new rules also required state officials to enter certain voter data into an online platform that doesn’t actually exist yet, but that the Trump administration has insisted will be available anytime now.

Many of the new rules appeared designed to make it impossible for states to distribute ballots by mail. One new requirement, for example, was that mail ballot envelopes must be individually scanned in a process that the Trump administration claimed will take “less than a minute per mailpiece.”

But, as several states that sued to block the rules pointed out in their complaint, California alone needs to mail 23 million ballots to voters. So that adds up to as much as “23 million minutes…or more than 43 years” that state officials would need to spend just to comply with one small part of the new regulations.

Trump had claimed that vague statutes that permit the Postal Service to adopt rules governing the “collection, handling, transportation, delivery, forwarding, returning, and holding of mail” or to make rules “as may be necessary in the execution of its functions” allow him to effectively shut down voting by mail throughout the United States.

Broadly speaking, the Court could have blocked these new requirements in two ways. They could have either concluded, as several lower courts already have, that the Trump administration lacks the legal authority to issue the new rules. Alternatively, the Court could have concluded that it would not be “equitable” to allow the new rules to go into effect during the 2026 election, given the high likelihood that states could not comply with them.

A majority of the justices, however, decided to go with both options. Though the Court’s order is brief — only three sentences long — it states both that Trump is “unlikely to succeed on the merits” of his claim that the new rules are legal, and also that “the equitable factors applicable for obtaining emergency relief from this Court do not favor” Trump. 

Translated from the legalese, that means that most of the justices concluded both that the new rules cannot be implemented in 2026, but also that they most likely cannot be used in any election because the Trump administration lacks the authority to implement them. 

Justice Samuel Alito is the Court’s most reliable Republican Party partisan, and so he did write a dissent, joined by Justice Clarence Thomas, that would allow Trump’s attack on mailed ballots to take effect. But it’s notable that even Alito doesn’t try to argue that Trump’s rule is legal. Instead, Alito makes a convoluted procedural argument that, he claims, allows Trump to dodge judicial review of his new rules — at least for now.

Briefly, Alito argues that federal law makes it relatively easy for plaintiffs to challenge Postal Service rules governing “the mailability of matter,” but much harder to challenge rules that do not concern what can be mailed. He also claims that Trump’s new rules do not count as restrictions on “mailability,” even though those rules would forbid the Postal Service from delivering ballots that do not comply with a labyrinth of new restrictions.

Alito, in other words, is clearly much more willing to excuse weak arguments from the leader of his own political party than are many of his colleagues. But the biggest takeaway from the USPS decision is that not all of the Court’s Republicans are incapable of shame. 

The Court’s Republican majority is extraordinarily tolerant of Trump’s antics. They gave him the right to commit crimes. They ruled that Trump may order the Justice Department to bring “sham” investigations and prosecutions against his perceived enemies. They’ve largely immunized ICE officers from the law, and blessed “Kavanaugh stops” that target suspected immigrants because of their race.

But there is apparently still a line that most of the Republican justices will not allow Trump to cross. And shutting down voting by mail a couple of months before an election crosses that line.

Wow, that was quick.

At 10:03 am ET, according to the Supreme Court’s docket, a group of Republican plaintiffs filed a brief asking the Court to bless a GOP gerrymander in Missouri. Less than half an hour later, the Court issued a brief order telling these Republicans no — a rare scolding from this Court for the Republican Party, and a rejection of the party’s latest effort to skew elections in its favor.

The decision is notable for this Court, but it isn’t particularly surprising. Earlier this week, Justice Brett Kavanaugh denied a similar request from another set of Republican litigants. But, minutes after Kavanaugh did so, a Donald Trump-appointed federal judge issued a new order that would have forced Missouri to use the Republican Party’s maps anyway. 

The Court’s new decision in People Not Politicians v. Onder places that judge’s decision on hold. As a practical matter, this means that, in the upcoming midterm elections, Missouri will almost certainly use the same maps it used in the 2024 election — which elected six Republicans and two Democrats to the US House — rather than the new maps, which were designed to give Republicans an extra seat. 

Reading between the lines of the Court’s order in People Not Politicians, it appears that the justices were quite frustrated by the Republican Party’s tactics in this dispute. When Kavanaugh previously denied the GOP’s request to use its new gerrymandered maps, he did so using a process that allows a single justice to dispose of a case — a process the justices rarely use unless they view a matter as so one-sided that it’s not worth formally involving their colleagues.

Similarly, the Court’s new order was issued almost immediately after the Republican plaintiffs filed their brief — so fast, in fact, that it’s unclear whether the justices even had time to read that brief. And the order also appears to be unanimous. No justice indicated that they dissent (although it is possible that one or more justices disagree with the order but decided not to make that disagreement public).

This is how the Court behaves when they want to send a clear signal that a litigant’s arguments are entirely without merit. It’s the judicial equivalent of a spanking.

More broadly, the litigation over the Missouri gerrymander should give some assurance to Democrats, and to supporters of liberal democracy more broadly, that this Court isn’t wholly subservient to President Donald Trump or his Republican Party. The Court has a 6-3 Republican majority, and it often hands down decisions benefiting the GOP that cannot be defended using the traditional tools of legal reasoning — such as its 2024 decision holding that Trump may use the powers of the presidency to commit crimes. 

But it appears that there are some lines that this Court won’t allow the Republican Party to cross.

Republicans created a “disaster” in Missouri and then demanded that the Supreme Court fix it

It is likely that the Supreme Court’s decision in People Not Politicians will lead to some serious short-term chaos in Missouri, although all of that chaos should be blamed on Republican officials within Missouri.

In September of 2025, the state’s Republican legislature enacted the new maps, as part of a broader Republican Party effort to gerrymander red states in order to give the GOP an edge in the upcoming midterm elections. But Missouri’s constitution permits opponents of a new law to put the law on hold if they collect enough signatures to trigger a ballot referendum — if a referendum is triggered, the state constitution provides that the law will not take effect unless it is approved by voters in the next election.

Opponents of the new maps submitted their petitions seeking a referendum in December of 2025, but Missouri’s Republican secretary of state, Denny Hoskins, sat on those petitions for months — and then rejected them on the last possible date permitted under state law, August 4, 2026. As it happens, this was the same date that Missouri held its congressional primaries. So one consequence of Hoskins’s delay tactic is that many voters who voted in one district during the primary will vote in a different district in this November’s general election.

Hoskins was able to delay litigation over whether the petitions seeking a referendum are valid because a state law provides that lawsuits concerning such a referendum must be filed within 10 days after the secretary of state rules on whether a referendum should take place.

In any event, because of Hoskins’s delay, the Missouri Supreme Court did not rule on the referendum until September 3, when it determined that Hoskins was wrong to reject the petitions. That means that the law enacting the new maps is not in effect and Missouri must use its old maps in the 2026 general election — even though that means that election officials must scramble to sort voters into their proper districts before November.

In an extraordinary act of chutzpah, Hoskins argued in both the Missouri Supreme Court and the US Supreme Court that the state court’s decision came too late and should not take effect because reimplementing the old maps would be too disruptive. He even told the federal justices that “a federal-election disaster is unfolding in Missouri.” 

But, as the state supreme court said in its opinion, this argument is “particularly misplaced given the secretary’s delay created the confusion, expense, and practical difficulties of which he complains.”

Given this background, the most surprising part of this case may be that a federal district judge then attempted to put the new maps in place, despite Hoskins’s tactics and despite the fact that Kavanaugh had already ruled against Missouri Republicans once. The Supreme Court’s new order technically only puts that district judge’s decision on temporary hold, but the hold should last through the 2026 election — thus ensuring that the old maps will be used in that election.

The GOP’s legal arguments in People Not Politicians were weak

Setting aside Hoskins’s bad behavior, Republicans made very similar arguments in both Hoskins and Onder, and those arguments were weak. I lay those arguments out in more detail here, but the short version is that they asked the Supreme Court to revive a discredited doctrine that it has rejected many times over the course of more than a century. And they also asked the justices to create a new right to vote in the same congressional district during both a primary and general election.

In light of the Court’s new order in People Not Politicians, it appears that none of these arguments persuaded the justices.

Again, that’s a reassuring sign for Democrats that this Court will not give Republicans literally anything that they ask for in an election-related case. Although it remains to be seen how the Court will rule on several other major election cases that are currently pending before the justices, including one that could potentially shut down voting by mail in many US states.

For several minutes on Tuesday evening, Democrats thought they’d actually scored an important legal victory — and in an election case to boot! But then a single Trump-appointed judge cast a cloud of doubt over that victory, and potentially threw Missouri’s upcoming congressional elections into chaos.

Last Thursday, the Missouri Supreme Court effectively halted a 2025 state law that would have redrawn the state’s congressional maps to give Republicans an extra seat in the US House. Republicans, along with Missouri’s Republican Secretary of State Denny Hoskins, immediately ran to the US Supreme Court, hoping that the Court’s 6-3 Republican majority would order the state to use the new, more GOP friendly maps.

But the Court didn’t just reject the GOP’s request, it did so in the most dismissive way possible. The Court’s order was exactly six words long — “Application (26A304) denied by Justice Kavanaugh” — and it notably was only attributed to one justice, Brett Kavanaugh. The Court’s procedures sometimes allow a single justice to dispose of a case, but the justices rarely invoke this process unless they view the matter as so one-sided that there’s no need to formally involve their colleagues.

This case is known as Hoskins v. von Glahn.

But then, just minutes after the ruling, Judge Stephen Clark, a federal district judge in Missouri, ordered the state to use the GOP-friendly maps after all. Though Clark’s case involves different parties — the lead plaintiff in Clark’s case is a Republican member of Congress, not Hoskins — the legal issues in both cases are virtually identical. And Clark’s opinion even acknowledges that, shortly before he ruled, Kavanaugh denied Republicans the very same victory that Clark wants to give them.

Clark’s case, which is currently on appeal to the US Court of Appeals for the Eighth Circuit, is known as Onder v. Missouri.

It’s the latest round of chaos to emerge from what is likely to be an unusually chaotic round of preelection litigation. Both Missouri cases arise out of the Republican Party’s decision to launch a gerrymandering war in advance of those midterms, a war that Democrats have fought back against with limited success. Meanwhile, President Donald Trump and his administration have also implemented several new policies that appear designed to skew the election toward the GOP, including Trump’s attempt to sabotage voting by mail, which is currently pending before the Supreme Court.

It’s a terrible time, in other words, to be an election official. State election administrators should expect to spend the next two months buffeted by competing court orders, uncertain rules, and new policies that cannot possibly be legal. They should expect both Trump administration officials and state and federal judges to bombard them with commands that a ballot must be altered, or voters must be denied their right to vote — only to have those commands contradicted by new court orders that may themselves be tossed out on appeal.

For now, for example, it’s unclear which maps Missouri is supposed to use in the upcoming midterms. And the final result in this case will likely turn on why Kavanaugh issued such a dismissive order in the Hoskins case.

Kavanaugh may have ruled against Hoskins because Hoskins created the problem he wants the Court to solve

In both Hoskins and Onder, Republicans raise three separate constitutional arguments that, they claim, require Missouri to use the new maps in this year’s midterms. The Hoskins case, however, is unique in that Denny Hoskins, the Republican elected official who formally sought the Supreme Court’s review in that case, may be the worst possible person to make such a request.

Hoskins opens his brief to the Supreme Court with an alarming statement: “A federal-election-administration disaster is unfolding in Missouri.” But as the state supreme court determined, this problem is entirely Hoskins’s fault. The man literally asked the US Supreme Court to save Missouri from a “disaster” that he created.

Missouri’s Republican legislature enacted the new maps on September 12, 2025. However, under the state constitution, Missouri voters could trigger a ballot referendum on these new maps, provided that they submit “petitions signed by five percent of the legal voters in each of two-thirds of the congressional districts in the state” by a certain deadline. Opponents of the new maps met this deadline, submitting their petitions on December 9, 2025. 

Significantly, the Missouri Constitution also provides that once a referendum is triggered, the law that is subject to the referendum does not take effect, and will not take effect unless it is approved by a majority of the state’s voters. So, under the state constitution, the new maps are not law, and they will not become law unless voters approve them in the upcoming general election.

Thus, as the state supreme court noted in its unanimous opinion in Hoskins, “this case involves a straightforward question of law.” The state constitution prevents laws subject to referendums from taking effect (with limited exceptions that don’t apply here), the state law creating the new maps are subject to a referendum, therefore that law is not in effect. QED.

But why did it take so long for the state supreme court to reach this straightforward result? The short answer is that opponents of the new maps asked the state court to rule sooner, but in a May 12, 2026 opinion, the Missouri Supreme Court determined that it could not rule on whether the new maps are in effect until after Hoskins issued his own ruling on whether a referendum was properly triggered — pointing to a state law that permits lawsuits to be filed in the 10 days after the secretary of state rules on the referendum.

That May decision, however, also warned Hoskins that if the “petition filing is ultimately determined to be sufficient,” then that would mean that the new maps cannot be used in the 2026 election because the law authorizing those maps is not in effect.

Nevertheless, Hoskins waited until August 4, the last possible date that he could rule on the petitions seeking a referendum — and also the date of the state’s primary election — to issue a ruling against the referendum. The state supreme court’s opinion from last Thursday holds that Hoskins was wrong to reject the petitions, and thus the new maps never took effect.

We are now just two months from the November election, yet the state supreme court abruptly required Missouri to use different maps than the ones it used during the recent primary election. This situation is genuinely very bad, because it will be difficult for the state’s election officials to reshuffle voters into their correct congressional districts before the election takes place. 

It also means that, assuming that the Missouri Supreme Court’s decision stands, some voters will vote in a different district than the one they voted in in the recent 2026 primary election.

Incredibly, Hoskins actually argued in the state supreme court that it could not suspend the new maps so late in the game. As Judge Ginger Gooch wrote in response, this argument is “particularly misplaced given the secretary’s delay created the confusion, expense, and practical difficulties of which he complains.”

So one possible explanation for Kavanaugh’s unexplained order ruling against Hoskins is that Kavanaugh did not believe that Hoskins had any business asking the Court to fix a problem that he created. Courts often rule against litigants who have “unclean hands,” meaning that they contributed to the problem they want the court to fix.

But, if that’s the case, then it’s still possible that Republicans could prevail in Onder, because the plaintiffs in that case did not personally create the problems that the GOP now complains about.

Alternatively, Kavanaugh may have ruled against the GOP because he thought their legal arguments are garbage

The other possible explanation for Kavanaugh’s decision in Hoskins is that the justice believed that the GOP’s legal arguments were weak.

Republicans make three arguments in favor of their preferred maps, two of which overlap considerably.

Their first argument rests on a discredited legal theory known as the “independent state legislature doctrine” (“ISLD”). In its strongest form, this doctrine claims that state legislatures have virtually unchecked power to set the rules governing federal elections, and that this power cannot be limited by a state governor’s veto, by a ballot referendum, by a state constitution, or by a state court.

But the Supreme Court first rejected this theory in 1916, and it has done so many times since then — most recently in its 2023 decision in Moore v. Harper (though Moore did open the door to a weaker version of the ISLD that does not apply to either of the Missouri cases). Notably, even Clark rejected the GOP’s ISLD argument in his Onder opinion. So that is, hopefully, a sign that this particularly radical argument is unlikely to prevail in any court.

Clark, however, accepted the GOP’s other arguments, both of which claim that it is unconstitutional for Missouri to sort voters into different districts during a general election than the districts they voted in during the primary election. Clark’s opinion points to US v. Classic (1941), which held that “[w]here the state law has made the primary an integral part of the procedure of choice, … the right of the elector to have his ballot counted at the primary” is protected by the Constitution. 

He also claims that switching voters from one district to another is unconstitutional discrimination because it “creates two classes of voters: those who happen to stay in their HB 1 congressional districts, and those who do not.”

Neither of these arguments is particularly persuasive. Classic held that voters cannot be denied their right to vote in the primary, but no one claims that any of the votes that were lawfully cast during that primary were not counted. And Clark cites no legal authority that supports the proposition that the Constitution forbids discrimination on the basis of which district someone voted in during a primary election.

All laws engage in discrimination of some sort. Criminal legal codes discriminate against criminals and in favor of law-abiding individuals. Welfare laws discriminate against rich people and in favor of poor people to determine who receives benefits. Government employers may discriminate against unqualified applicants and in favor of job seekers who are well-suited for the job they seek. The mere fact that Missouri’s unusual situation sorts voters into “two classes” does not mean that this situation violates the Constitution.

Indeed, it’s not even all that unusual for the winner of a primary election to not appear on the ballot during the following general election — just ask Graham Platner. Like many states, Missouri law permits parties to replace the winner of a primary election on the ballot if their nominee “dies, is disqualified, or voluntarily withdraws.” But, if Clark is correct that the Constitution guarantees every voter a right to vote for the winner of the primary election in their same district, that means that this law is also unconstitutional.

Kavanaugh, in other words, may have looked at the GOP’s three substantive arguments in the Hoskins case and concluded that they were all so weak that he could simply dispose of the case without formally asking his colleagues to weigh in. If that’s true, Republicans should expect to lose again if the Onder case reaches the Supreme Court.

In the meantime, however, we can only guess why Kavanaugh ruled the way that he did. And Missouri election officials are stuck in limbo, unable to actually prepare for the upcoming election until they know which maps to use.

The Republican Party is once again asking the Supreme Court to change the rules governing US elections in order to make it easier for GOP candidates to prevail in future elections. And this Court, with its 6-3 Republican majority, will likely give the GOP what it is asking for.

National Republican Congressional Committee v. Brown concerns a federal statute that requires broadcast television and radio stations to allow candidates to buy campaign ads at a highly discounted rate. 

The question in Brown is whether political party committees such as the DNC or the RNC are also entitled to this discounted rate. A federal appeals court determined that they are not, as the relevant statute only extends this rate to “a legally qualified candidate for any public office,” and not to that candidate’s political party. The GOP now wants the justices to give its party committees this discounted rate anyway. If the justices agree, that would give Republicans an advantage in future elections, because the GOP tends to raise more money through its party organizations than Democrats do.

While individual Democratic candidates often outraise their Republican opponents, Republican donors tend to be much more generous to party committees than their Democratic counterparts. As of late June, for example, the RNC had nearly $130 million in cash, while the DNC was in debt.

A Republican victory in the case would also increase the significance of another win the Supreme Court handed the GOP in June 2025, in National Republican Senatorial Committee v. FEC (2026). Federal law previously placed strict limits on a party organization’s ability to coordinate with candidates on messaging, ad placement, and similar tactical decisions. NRSC abolished many of those limits, thus making money raised by party committees more potent because those committees may now work closely with candidates to plan how that money is spent.

Brown, meanwhile, could make any dollar that a party committee spends on ads stretch much further than it otherwise would.

The GOP’s argument that federal law allows party committees to buy ads at a discount is not persuasive. Again, the relevant federal statute gives a discount to candidates and not to parties. 

But that’s unlikely to matter because the GOP’s brief to the Court does make a plausible procedural argument that would allow the justices to wipe away the lower court decision ruling against the Republican Party. If that happens, it would leave the question of whether parties may buy ads at a discount to the Federal Communications Commission (FCC), which Republicans control.

It will be fairly easy, in other words, for the Court’s Republican majority to rule in favor of their political party in Brown, in the likely event that those six justices are inclined to do so. And that means that the RNC’s money advantage over Democratic groups is about to matter a whole lot more.

A GOP victory in Brown would augment the party’s recent victory in NRSC

Brown is part of a broader Republican Party legal strategy, which seeks to make money donated to the party itself as fungible as possible with money given to individual Republican candidates. The GOP’s recent victory in NRSC is also part of this strategy.

Federal law limits the amount of money donors may give directly to candidates — the cap on these donations is currently $3,500. It also restricts how much money donors may give to party committees such as the DNC or the RNC, but that cap is much higher. It is $44,300 per donor per year in the current election cycle.

Campaign finance law also used to prevent party committees from coordinating their political spending with individual campaigns — the idea was to prevent big donors from laundering donations that exceed the $3,500 cap on donations to candidates through party committees like the RNC. But, in NRSC, the Republican justices repealed most of the restrictions on coordination between party committees and individual candidates. 

So the upshot of that decision is that party organizations may still seek donations from wealthy donors that are an order of magnitude larger than what candidates may raise from those same donors. But now, there are far fewer restrictions on these party organizations’ ability to work with candidates to devise a joint strategy for spending their combined funds.

But, because party organizations are not themselves candidates, the language of the statute at issue in Brown indicates that these organizations must pay significantly higher rates to run these ads than the campaigns the party hopes to coordinate with. 

This statute essentially requires broadcast stations to charge their lowest ad rate to candidates. Often, major advertisers buy ads in bulk, and receive a significant discount for doing so. By law, broadcast stations must give the same discount to candidates for public office that they give to advertisers who buy ads at the cheapest rate offered by that station. So, if a local TV station allows Budweiser to buy ads at a 50 percent discount because the beer maker runs hundreds of ads on that station, then it must give this same 50 percent discount to political candidates, even if those candidates only run a handful of ads.

The legal term for this discounted rate is the “lowest unit charge” or “LUC rate,” and these discounts can be quite substantial. A somewhat dated report by the Congressional Research Service estimates that bulk ad discounts are as high as 30 percent, while a more recent news article by the congressional newspaper Roll Call estimates that occasional ad buyers may pay “two or three times” as much per ad as an advertiser who secures the best discount.

So, the Supreme Court has already given the GOP greater ability to coordinate strategy and tactics with individual campaigns. And now it wants the much-larger donations that party committees can raise from wealthy donors to go even further than they already do.

Republicans want Trump’s FCC, and not the courts, to decide who gets the discounted rate

The Republican Party’s primary argument in Brown is that two procedural quirks in this case work together to prevent federal courts from enforcing the statute as it is written (although the GOP does also argue that the statute gives party committees the same discounted rate as candidates).

Last March, while NRSC was still pending before the justices, Trump’s FCC issued a “Public Notice” declaring that political parties are, in fact, entitled to the discounted ad rates that federal law guarantees to candidates. Four Democratic candidates, including US Senate candidates Sherrod Brown, Roy Cooper, and Jon Ossoff formally asked the FCC to reverse that policy in April, but the FCC sat on their request without acting on it.

With the 2026 election looming and no action from the FCC, these candidates then asked the US Court of Appeals for the Fourth Circuit to intervene in late June, and, in a late August decision, the Fourth Circuit agreed with the Democratic candidates that the FCC’s interpretation of the law governing ad rates is wrong.

Republicans, meanwhile, argue that the Fourth Circuit decided this case prematurely. If the Supreme Court agrees with the GOP’s argument, that would mean that the FCC’s interpretation of the statute would go back into effect — and party committees would be allowed to buy ads at a discount, at least during the 2026 election.

The Republican Party’s jurisdictional argument is plausible, but far from airtight. While a federal law does permit the Fourth Circuit to review the FCC’s “final orders,” the GOP argues that the FCC’s Public Notice does not count as a final order, and the Fourth Circuit cannot hear this case until after the FCC rules on the Democratic candidates’ April request to reverse the policy announced in that notice.

There is some legal support for the Republican Party’s position. Among other things, a different federal appeals court, the DC Circuit, said in a 2013 opinion that a federal agency’s “statements of policy” that do not go through the rigorous rulemaking process that agencies must conduct before they issue a new regulation are typically not subject to judicial review. So that decision cuts in favor of the Republican Party’s position, even though a DC Circuit decision is not binding on the Supreme Court.

The Fourth Circuit’s decision in Brown, meanwhile, offers a strong rebuttal to this argument. It points to the FCC’s failure to act on the Democratic candidates’ April request, and it cites a different DC Circuit decision establishing that, “when administrative inaction has precisely the same impact on the rights of the parties as denial of relief,” then a federal court is allowed to intervene.

If this rule did not exist, then the GOP-led FCC could effectively prevent courts from hearing Brown forever, simply by refusing to take any action at all on the Democratic candidates’ April filing.

In any event, it is safe to say that the question of whether these Democratic candidates must wait until the FCC acts before they can seek relief in federal court is not definitively resolved by prior precedents. Both the Republican Party and the Democratic candidates can cite court decisions that favor their position, and that means that the justices can choose whichever outcome they prefer.

The Supreme Court’s Republican majority, moreover, often hands down dubious jurisdictional rulings that benefit Republicans or other conservative causes. Just this week, for example, five of the Republican justices ruled that Trump may build his White House ballroom — even though a federal statute prohibits Trump from doing so. They reached this result by claiming, on far-fetched legal grounds, that federal courts lacked jurisdiction to hear the challenge to Trump’s ballroom in the first place.

The Republican Party’s jurisdictional argument in Brown is hardly a slam dunk, but it is much stronger than the argument the Court just used to deny jurisdiction in the ballroom case. So, if the Court’s Republican majority wants to let Republican organizations buy ads at a discounted rate, they’ll probably find it easy to write an opinion that reaches their preferred outcome.

For a brief moment last week, it appeared that an ICE officer, who allegedly shot a man during the early 2026 occupation of Minneapolis and then lied about it, might actually face legal consequences for his actions.

Christian Castro, the now-suspended ICE officer in question, was confined to a Texas jail and potentially faced two sets of criminal charges. Minnesota prosecutors charged him with four felony counts of assault and one count of falsely reporting a crime, and sought his extradition from Texas, where he ordinarily lives, to Minnesota. Federal prosecutors, meanwhile, were reportedly planning to charge Castro with a criminal violation of a federal civil rights law.

Castro’s case was on track to become an encouraging example of how the American system can bring rogue law enforcement officers to account — a federal officer facing clear consequences for allegedly breaking the law in the unpopular and violent wave of ICE raids in Minnesota.

But all of that now appears to be in limbo. According to the New York Times, the federal charges, which had to be approved by officials in Washington, DC, “fell apart in the final hours for reasons that remain unclear.” Castro, meanwhile, may never return to Minnesota — and may even flee to Mexico — thanks to a federal court decision permitting Texas’s Republican Gov. Greg Abbott to effectively sit on Minnesota’s request to extradite Castro until after a state law required Castro’s release.

It’s the latest chapter in an ongoing saga where Trump administration officials, federal courts eager to shield federal law enforcement officers from justice, and now Texas state officials all work together to ensure that ICE and other law enforcement personnel involved in Trump’s violent crackdown in Minnesota face no legal consequences for their actions. 

If Castro gets off scot-free, he will owe his freedom to an unusual combination of federal and state officials who appear to have taken extraordinary measures to shield Castro from accountability. But while his case is unusually dramatic, it is hardly unique. An array of MAGA sympathizers and movement conservatives in state governments, the federal judiciary, and the Trump administration have all pushed to place ICE and similar agencies above the law.

What is the legal fight over Castro about?

Castro allegedly fired his gun through the door of Julio Sosa-Celis’s Minneapolis home in January, striking him in the leg. Although the Trump administration initially claimed that Sosa-Celis and his roommate attacked ICE officers with a broom and shovel, that allegation fell apart after prosecutors viewed video of the incident. Castro was suspended from his job at ICE without pay.

In May, a Minnesota prosecutor filed charges against Castro, and Castro was later arrested in Texas pursuant to an arrest warrant arising out of those charges.

That arrest should have guaranteed that Castro would be returned to Minnesota for trial. The Constitution provides that “a Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” Minnesota Gov. Tim Walz formally sought Castro’s extradition on June 2.

Rather than comply with this request, however, Abbott took two actions that may prevent Castro from ever being tried for his alleged crimes. Abbott initiated an investigation, claiming, on dubious legal grounds, that he may not be able to extradite Castro because Castro does not meet the legal definition of a “fugitive.” Abbott also sent his lawyers to federal court to argue that the court could not order Texas to comply with the Constitution’s mandatory extradition provision.

Meanwhile, a deadline loomed over Minnesota’s request. Though Castro was incarcerated in a Texas jail, Texas law only permitted the jail to hold Castro for 90 days, at least without an order from Abbott saying that Castro must be extradited. During his incarceration, Castro also made several phone calls to his romantic partner in Mexico, and they discussed Castro’s desire to move to that country. 

So Minnesota quite reasonably feared that, if the 90 days were allowed to expire, Castro would flee the country.

Nevertheless, last Wednesday a Trump-appointed Judge Fernando Rodriguez Jr. backed Abbott’s play. His opinion in Walz v. Abbott rests on an extraordinarily credulous interpretation of Abbott’s treatment of Castro.

Briefly, Rodriguez’s opinion claims that it is too soon for a court to order Abbott to extradite Castro because Abbott has not yet formally “denied the request for a rendition warrant.” Instead, Rodriguez notes that Abbott asked Texas’s secretary of state to investigate whether Castro should be surrendered to Minnesota, and suggests that Minnesota must wait for that “investigation” to play out.

Oddly, Rodriguez’s opinion also includes a footnote indicating that he believes Abbott’s supposed investigation is baseless. The premise of that investigation is that Castro may not count as a “fugitive” because he moved to Texas after ICE directed him to do so. But, as Rodriguez notes, the Supreme Court defined who counts as a fugitive more than a century ago, and the Court’s definition does not exclude people who move because of a job, federal or otherwise.

So, to summarize Rodriguez’s decision, he ruled that Texas may delay complying with Minnesota’s extradition request, based on an investigation into a legal question that the Supreme Court has already resolved, and that it may delay compliance until state law requires Texas to release Castro. Castro was released on Thursday.

Thanks to this decision, it is now unclear whether Castro will ever face charges. Even if he remains in Texas, and even if Abbott eventually decides to comply with the extradition request, Texas authorities will now have to find Castro again and rearrest him. And Castro may flee to Mexico. While Minnesota can formally request Castro’s extradition from Mexico, that process could take years.

And, in case there is any doubt, there’s now strong evidence that Abbott’s “investigation” was a sham, and that Abbott was always motivated by hostility toward Minnesota’s attempt to prosecute Castro. One day after Rodriguez issued his decision, Abbott posted on X mocking Minnesota Attorney General Keith Ellison, which said that Ellison and his legal team “are such bad lawyers.”

The post also labeled Minnesota a “sanctuary state” and threatened to bus immigrants from Texas to Minnesota.

Even if Abbott had complied with the Constitution, Minnesota prosecutors faced an uphill battle in their case against Castro

Even if Castro had been delivered to Minnesota authorities without incident, or even if he is arrested in Minnesota at some point in the future, it’s far from clear whether state prosecutors may bring charges against a federal law enforcement officer who allegedly violated Minnesota’s criminal law while carrying out his official duties. And the biggest obstacle standing against such a prosecution is a fairly sensible Supreme Court decision that long predates modern political fights over immigration enforcement.

The Court’s decision in In re Neagle (1890) arose from a wild incident where a former chief justice of the state of California attempted to kill a sitting Supreme Court justice. David Terry, the former state justice, married a woman who claimed that she was entitled to a share of a US senator’s fortune. After Justice Stephen Field ruled against Terry’s wife, Terry threatened Field’s life, and so Field was assigned a deputy US Marshal named David Neagle as his bodyguard.

Some time after Field’s decision against Terry’s wife, the justice was traveling by train in California, and he was attacked by Terry. Neagle shot and killed Terry. And California attempted to charge Neagle, the federal bodyguard, with murder. 

The Supreme Court tossed out this prosecution, and that decision has long been read to limit state governments’ power to prosecute federal officers who commit a state law crime while engaged in their official duties.

That said, the Court’s more recent decision in Martin v. United States (2025) suggests that Neagle may not be a total bar to state prosecutions of ICE officers. Martin read Neagle fairly narrowly, to say that federal officials are protected from state prosecutions only when their actions “were ‘necessary and proper’ in the discharge of their federal responsibilities.”

So that suggests that, if Castro is tried for violating Minnesota law, the question of whether he is immune from prosecution is likely to turn on whether courts determine that his alleged decision to fire a shot through Sosa-Celis’s door (and, potentially, to lie about Sosa-Celis’s actions) was a “necessary and proper” way for Castro to carry out his responsibilities as an immigration enforcement officer.

It’s hard to predict, however, how the courts would rule on this question. The Martin decision is fairly new, and the rule Martin seems to apply to federal officers charged with state crimes is vague. 

Federal law also provides that Castro’s trial, should it happen, must occur in federal court — although this federal court may still hear a state-law prosecution. And that means that any decision allowing Castro’s prosecution to move forward would appeal to the US Court of Appeals for the Eighth Circuit, which is one of the most conservative appeals courts in the federal system.

Of course, if Minnesota lost in the Eighth Circuit, it could potentially bring the question of whether Castro may be charged with violating a Minnesota criminal law to the Supreme Court. But, while the Martin decision suggests that Minnesota may have a chance of prevailing before the justices, several of the Court’s other precedents indicate that this Court is unlikely to rule against a federal law enforcement officer.

The slow death of Bivens

Separately from the legal question of whether someone like Castro can be charged with a crime, there is also the question of whether the victim could sue. It used to be the case that people who are victimized by federal law enforcement officers could sue those officers directly, but the current Supreme Court has virtually shut down these suits. The Court’s treatment of this question is a window into their expansive view of immunity for federal law enforcement.

More than five decades ago, the Supreme Court established in Bivens v. Six Unknown Names Agents (1971) that federal officers who violate the Fourth Amendment’s ban on “unreasonable searches and seizures” may be sued and potentially ordered to compensate their victim.

But the Court’s current majority is extremely hostile to Bivens, and has walked right up to the edge of overruling it. In Hernández v. Mesa (2020), the Court’s Republican majority held that a Border Patrol agent who allegedly fatally shot a Mexican teenager in the face was immune from a lawsuit brought by the teenager’s family. More recently, in Egbert v. Boule (2022), the Court declared that federal law enforcement officers are immune from suit if there is “any rational reason (even one)” to justify giving them immunity.

In November, the Court will hear the Nielsen v. Watanabe that could potentially overrule what little remains of Bivens.

The Supreme Court’s Republican majority, in other words, has spent the last several years immunizing federal law enforcement officers like Castro from civil lawsuits. That doesn’t necessarily mean that it will also immunize Castro from criminal charges brought under state law, should his case somehow wind up before the justices, but it isn’t a hopeful sign for Minnesota prosecutors.

And that’s, of course, assuming that Minnesota law enforcement somehow manages to take custody of Castro. Abbott’s gamesmanship, and Rodriguez’s decision to bless that gamesmanship, may ultimately mean that Castro is never apprehended by Minnesota officials.

Welp, the Supreme Court has decided that President Donald Trump gets to build his ballroom. The decision in National Park Service v. National Trust for Historic Preservation is 5-4, with Republican Chief Justice John Roberts joining the three Democratic justices in dissent.

Notably, no member of the Court argued that Trump’s ballroom, an enormous structure that the president plans to build on the former site of the White House’s East Wing, is legal. As Roberts points out in dissent, a federal law prohibits the construction of any “building or structure … on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” And, as Roberts writes, “Congress has not passed any law resembling ‘express authority’ for the Executive’s construction of” Trump’s ballroom.

Nevertheless, the five Republicans in the majority manage to rule in favor of Trump by effectively immunizing his ballroom from federal lawsuits.

Their opinion highlights two of the most troubling things about the current Supreme Court: its reluctance to impose limits on Trump’s imperial-style presidency, and the frequent incoherence of its reasoning, especially in Trump cases.

Their opinion suggests that no one is allowed to sue to challenge Trump’s decision to destroy and replace much of the White House. But it is short, does not explain key points of its argument, and relies on several distinctions that do not make any sense.

As a general rule, no one is allowed to file a federal lawsuit unless they can show that they were injured in some way by the defendant they are suing — a requirement known as “standing.” But the Court has long held that plaintiffs suing under conservationist laws that seek to preserve a pristine, sacred, historical, or otherwise beautiful site have standing to bring a suit enforcing such laws against defendants who would damage or destroy such a site’s beauty.

In Lujan v. Defenders of Wildlife (1992), for example, the Court said that “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest” that can be asserted in federal court. Similarly, the Court held in Friends of the Earth v. Laidlaw Environmental Services (2000) that “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.’”

So that’s how standing worked right up until Monday afternoon, when the Court handed down its latest opinion. The new rule is…well, it is difficult to parse.

The plaintiff in National Park Service is a conservationist organization whose members include a retired professor who would frequently walk by the White House and who admired its beauty. Under decisions like Lujan and Friends of the Earth, that was enough to give her standing to sue in order to challenge the ballroom.

The five Republicans in the majority, however, falsely claim that this individual merely argued that she is offended by Trump’s construction project, and that past decisions have involved “more than mere offense.” The Republicans note that, in Friends of the Earth, the plaintiffs not only wanted to view a river, but also to fish and swim in it and to camp nearby. But they don’t really even attempt to distinguish Lujan beyond a vague statement that Lujan requires a plaintiff’s injury to be “concrete and particularized.”

Thus, because the majority opinion is so poorly explained, it is hard to tell what its implications will be. If the Court had explicitly overruled its past decisions holding that a plaintiff may often sue to challenge the destruction of something beautiful, that would be an existential threat to countless environmental, conservationist, and historical preservation laws that all exist to preserve natural or historic beauty. 

But the Court’s failure to explain why Lujan does not require them to rule against Trump leaves lawyers and judges to guess at what the Court just did to the rules governing standing. Perhaps this is a one-off decision intended solely to do a favor for Trump. Or maybe it’s the harbinger of a future decision setting much of America’s environmental protection regime on fire. The five justices in the majority barely explain themselves, so we cannot yet know what National Park Service means.

But one thing that is clear is that the decision makes no sense. As Roberts writes in dissent, “it now is the case that ‘I want to look at a crocodile’ can adequately answer the ever-critical ‘what’s it to you?’ question of Article III standing, while ‘I want to look at the White House’ cannot.” But the justices in the majority couldn’t even be bothered to explain why.