This is the eighth and final piece in a series on what I believe the court can, and should, do better.***Every year, each justice hires four law clerks. Under the current practice, the justices will hire young lawyers with sterling credentials who secured two or three prior clerkships from “feeder” judges. Often, interviews are scheduled while applicants are still in law school, and before they have even started their first clerkship. Justices have built elaborate screening networks with former clerks, as applicants have to traverse multiple rounds of interviews. The justices would acknowledge that for every clerk that is hired, there are many more equally qualified candidates. Getting the job is like winning the gold medal at the Olympics – you are the best of the best but conditions have to be just right.During the term, the clerks are privy to most things that happen at the court. The information they learn makes them extremely valuable. Accordingly, clerks are handsomely rewarded. Some law firms pay signing bonuses in excess of $700,000, even as former clerks are barred from practicing before the court for two years. Invariably, these former clerks often become the biggest boosters for their justice and the court itself.I have been critical of this law clerk cartel. Far too much power is granted to people with so little experience. As a thought experiment, I proposed how Congress could phase out Supreme Court law clerks altogether. This plan is extremely unlikely. But perhaps the justices can constrain their own process.Justice Ketanji Brown Jackson has taken some important first steps. For starters, she only considers applicants who have already completed an appellate clerkship. This step eliminates the unusual phenomenon in which law students are applying for Supreme Court clerkships before actually completing, or even starting, their first clerkship. Moreover, Jackson limits the application process to the submitted materials. There are no backdoors or secret paths to the clerkship. The notice states clearly that “[n]o information will be considered outside of the formal application process.” And references are barred from contacting the justice: “Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application.” If there are any doubts, the penalty is stated clearly: “Failure to follow this instruction may disqualify an application from further consideration.”Good for KBJ. Perhaps as the newest member of the court, she is still able to assert control over the hiring process before it explodes beyond her control. Other justices could have followed her lead, but they apparently have not.I would adopt all of Jackson’s preconditions and go several steps further. First, the justice should ask all of their clerks, following their clerkship, to work for two years in government service, for a non-profit, or some other public interest work. Implicit in this commitment is a postponement, or even rejection, of the gratuitous signing bonus. The justice would make clear that they are looking to hire clerks with an eye towards public interest. Moreover, these clerks will likely get far more practical experience following their clerkships outside of the private sector, where they can do far more good.Second, I have proposed that the justices should spend part of their time working in the courthouses across the country. Their law clerks should join them. This project is mostly about keeping the judges grounded, but I do think there is value in keeping the law clerk’s feet planted on the ground. Working in a marble palace can distort any sense of reality. Perhaps law clerks could spend part of the year in the home chambers and part of the year at the Supreme Court. Or some law clerks could spend all of their time in either location. Or perhaps a justice could go to D.C. without any law clerks.The third proposal will perhaps be the most draconian: the clerks should be barred from talking about cases with anyone in other chambers. Books and exposés about the Supreme Court recount how law clerks will often engage in shuttle diplomacy between the chambers. Documents about the so-called “Shadow Papers” may have leaked from someone who kept clerkship records from 2016. The law clerks become part of the deliberations. This approach may be useful and convenient for the justices, but I think it can distort the power structure. The clerks should be reminded that the justices are in charge, and they are just helpers. If the clerks are unable to talk with other chambers, then perhaps the justices would be forced to talk to each other more. And that is a very good thing.***This concludes my eight-part series on unilateral Supreme Court reform. The first installment proposed eliminating the summer recess. The second installment urged the justices to hold regular press conferences. The third installment called on the justices to hold oral argument outside of Washington, D.C. The fourth installment considered how the chief justice could share much of his power. The fifth installment would restore the practice of the justices riding circuit. The sixth installment would enhance the Supreme Court minority’s procedural powers. And the seventh installment proposed empowering the Supreme Court’s supermajority on substantive matters.My sincere hope is that this series will generate discourse and debate. Unlike most proposals for court reform, these ideas should garner bipartisan support. None of them purport to change how many justices there are and how they decide cases. All of these proposals would maintain the independence of the court. Indeed, many of these ideas could be adopted by the justices unilaterally. Ultimately, the justices should not be bystanders in debates about SCOTUS reform. If the justices take the initiative to adopt reforms on their own, the impetus for external reform will decline. These changes would not only be good for the court but society as a whole.

As many SCOTUSblog readers are likely aware, there are some blockbuster criminal law cases set for the Supreme Court’s upcoming term. Bans on AR-15 and similar semi-automatic rifles. Whether juries in criminal cases must always be 12 persons. Whether seizing a plane for the unlawful transport of a six-pack of beer is an unconstitutional “excessive fine.”In fact, 11 of the 25 cases already granted for review are, by my calculation, criminal law and related (what I call the court’s “CLAR” cases). They won’t all be headline-grabbers, but 40% of the court’s docket is a very healthy chunk. And the court will surely grant some more after its Sept. 28 “long conference.” I provide more details on the 11 already granted below. But first:The court can and should take more criminal casesBefore discussing the merits of the current 11 CLAR cert grants, I want to point out that the court could do much more. Last month the Congressional Research Service put out a 68-page report on “Circuit Splits from 2025.” That little-reported document details almost 100 cases in which lower courts have disagreed (just in 2025?) on significant federal points of law. The Supreme Court has statutory jurisdiction to address such lower court “splits,” whether from federal or state courts. The Supreme Court’s Rules 10(a) and (b) expressly note that lower court “splits” on federal questions – that is, cases from different courts that disagree on some important point of federal statutory or constitutional law – are a reason for the court to grant review. And granting Supreme Court review on lower court splits makes sense, as national uniformity on federal issues is a major, and one of the oldest, reasons for having (as Article III of the Constitution begins) “one supreme Court.” What’s more, I have to believe that the CRS report did not come out of the blue but was prepared with the knowledge of (and perhaps even encouragement from?) folks in the solicitor general’s office.By far, the largest category of unresolved such “circuit splits” listed by CRS is criminal law and procedure, with 28 cases – three times larger than the next category, civil procedure. The report provides case citations for all 28 of these (at least one from every circuit except the U.S. Court of Appeals for the 5th Circuit). Just a few examples of important questions that need settling: Is embezzlement a continuing offense that extends the statute of limitations? Is car-jacking a violent felony when the state statute also reaches extortion? Is criminal forfeiture limited to property a defendant has actually acquired (here a cert petition may be pending)? What intent is required for a civil rights violation on a county road?To make an oft-repeated point, the Supreme Court used to decide as many as 150 cases per term. But during the 2025-26 term the justices heard argument after full briefing in only 58. According to a Federalist Society report that has often been repeated, in 2012 Chief Justice John Roberts said that the court could hear “100 cases without any stress or strain, but the cases just aren’t there,” and he “emphasized that circuit splits are far and away the most important consideration.” The capacity of the justices to handle more cases is not an issue – more grants of review to provide national uniformity in criminal cases ought to be a priority.Criminal-law-and-related cases already set for the 2026-27 termThe court has issued argument calendars for the last three months of 2026. As detailed below, there are two CLAR cases set for argument in the October sitting and three for the November sitting. The blockbuster AR-15 and criminal forfeiture cases will not be heard until Dec. 1 and 2. The case where I expect the court will rule, non-textually but universally, that serious criminal case juries must always have 12 and not six jurors is still unscheduled and so will not be argued until 2027.Below are my relatively brief descriptions and observations on the 11 CLAR cases set for argument so far in the coming term. The hyperlink for each takes you to the SCOTUSblog page for the case, where you can then find links to all the filings and other information about it. I address the three “biggest” cases first, and then the other eight in order of their scheduled oral arguments. Keep in mind that more criminal cases are likely to be granted after Sept. 28.Semiautomatic rifles, 12-person juries, and excessive finesViramontes v. Cook County (Dec. 2, consolidated with Grant v. Higgins): Like another nine states, Connecticut and Cook County, Illinois, have laws that ban possession of what they call “assault weapons.” The term is defined to include semi-automatic rifles like the AR-15 (and the Second Amendment Foundation petitioners do not challenge fully “automatic or burst fire” weapon bans). The question whether legislatures may ban semi-automatic weapons has been brewing for years, and last term Justice Brett Kavanaugh wrote that the court would “soon” address it. The solicitor general has now asked to join the oral argument over whether such “categorical” bans are consistent with the Second Amendment. The case will attract huge media attention and the one hour scheduled for oral argument is likely to go much longer.Because these consolidated cases will attract much attention from other columnists, I won’t go into much detail. The U.S. Courts of Appeal for the 7th and 2nd Circuits both denied the firearm owners’ challenges, finding procedural flaws in each case. But the question – narrow, in the sense that even if the court reverses, a remand for specific application will be necessary – remains: Does the Second Amendment allow bans at all on semiautomatic rifles? I will add only the following textualist thought, about a small-but-radical change between the language of District of Columbia v. Heller and now.The 2008 Heller decision, which changed precedent to find a Second Amendment right to own handguns for self-defense, was decided 5-4. To me (and others) it is clear that Justice Antonin Scalia had to include various qualifiers in his opinion, or he would have lost one or two of his five votes and Heller would have come out differently. Part III of the opinion was clearly added to capture, or keep, the narrow but earth-shattering majority, and ought to be viewed as the binding judgement of the court. Specifically, in addition to listing various “longstanding prohibitions on the possession of firearms” left undisturbed, part III said we “recognize another important limitation on the right to keep and carry arms. ... the sorts of weapons protected were those ‘in common use at the time’” (quoting United States v.Miller, a 1939 precedent upholding bans on machine guns). I add emphasis on “at the time,” because the Viramontes briefing all but ignores what the court said was this “important limitation.”As the solicitor general’s brief notes, “the AR-15 rifle was developed in 1956,” And the first semiautomatic rifle of any kind was sold in 1903. Thus, while they may be the “most commonly owned rifle[] in America” today (albeit by less than 10% of all Americans), semi-automatic rifles were undisputedly not in common use “at the time” the Second Amendment was adopted in 1791. Indeed, as the SG’s brief also explains, it is the modern technological developments in the AR-15 that makes it popular today. (This is also why they are commonly used in mass-shootings.) Rather, the solicitor general’s Viramontes brief subtly changes the language, saying (on page 21) that the proper Second Amendment test is whether AR-15s “are in common use” today (again, my emphasis). This radically departs from the doctrinal limits that were essential to cementing the Heller result. In his 2025 dissent from denial of certiorari, Kavanaugh (joined by Justice Samuel Alito) adopted this same semantic transfiguration of Heller (changing “were” to “are”) – an error (or strategy) presaged in Kavanaugh’s 2011 Circuit judge dissent when Heller was remanded in 2011. Many folks will be listening on Dec. 2 to see whether a majority of justices will agree that Heller did not actually mean what it appeared to say.Kian v. Florida (unscheduled): Unlike Viramontes, Kian will be, I think, easy for the court, even if non-textual. So easy, it appears to me, that the parties and the court have agreed that an appendix presenting the underlying record is unnecessary. Whether the Sixth Amendment’s right to a “jury” trial for all criminal prosecutions requires a 12, rather than six, person jury, has been pushed by Justice Neil Gorsuch for years: in his view, when the framers wrote “jury” they understood this to mean it consisted of 12 members. Amicus professor Akhil Amar agrees, saying that “[a] proper criminal jury means twelve good persons, nothing less. In 1791 and 1868, the number twelve was implicit in the word ‘jury’.”To rule for Kian, the court will have to overturn a divided 1970 precedent (Williams v. Florida) that upheld Florida’s six-person jury practice, over Justice Thurgood Marshall’s dissent that a jury of 12 is required. Williams reviewed the Sixth Amendment’s history and concluded that “precisely 12” was an “accidental feature” of juries at the time. But decades earlier, the court had seemed to hold that 12 persons are required. Then Gorsuch’s opinion in 2020’s Ramos v. Louisiana overruled a similar jury trial precedent allowing non-unanimous criminal conviction verdicts. As Alito suggested in his Ramos dissent, that decision seems to lead directly to a similar implied rule: that a criminal trial “jury” means, constitutionally if also implicitly, 12 persons. The case for overruling Williams has been around for years, and I think it will pose little difficulty for a majority in Kian.Former Solicitor General Seth Waxman (confession: also my former law-practice colleague) will argue for Kian, and it should be lively whenever it occurs. A more difficult question – whether Kian should be applied retroactively as a “new rule” to challenge former six-person-jury convictions – may be discussed and even decided, but it’s unnecessary to resolve the question presented here.Jouppi v. Alaska (Dec. 1): One of my frequent, if nonsensical, classroom bon mots is that “facts make the law, not the other way around.” The soundbite facts of Jouppi are that Jouppi’s plane was taken by the state as a criminal forfeiture for illegally transporting a six-pack of beer. As my friends on Advisory Opinions note in their fun discussion of the case, there are other facts that might reduce one’s sympathy (such as nine gallons of beer in the back of the plane and that Jouppi’s passenger ran a bar in the area), but still this case looks like a “libertarian’s dream[].” And although Gorsuch has resisted the libertarian label, he seems to become a dispositive “wild card court” justice for the “little guy” when the government looks like a bully.All this suggests a ruling for Jouppi – but the question presented is more general: whether the Eighth Amendment’s no “excessive fines” provision should be applied “purely in the abstract” or by reference to a defendant’s specific wrongdoing. This distinction grows out of a 5-4 decision, 1998’s United States v. Bajakajian, which found a $357,144 fine for a currency reporting failure to be unconstitutionally excessive. Justice Clarence Thomas wrote that a fine is constitutionally excessive if “grossly disproportional to the gravity of a defendant’s offense.” His language there appears to have left room for argument now: did the justices mean the defendant’s offense specifically, or the gravity of that type of offense in general?There is a serious split here, among state as well as federal courts, and last term’s excessive fines case (Pung v. Isabella County) did not address it. Oral argument will likely be full of hypotheticals as to how any resulting constitutional test might be applied, even if the justices end up putting aside, perhaps with a grin or two, the forfeiture of Jouppi’s $95,000 plane for transporting a six-pack of beer as excessive under any test.All that said, forfeiture of instrumentalities of crime, things used to facilitate the crime itself, has long been a feature of criminal law. And deciding on the scope of forfeiture is generally thought of as more a legislative than a judicial task. The framers of the Constitution put only “excessive,” not all, forfeitures out of bounds, and left little guidance for precise application of the concept. Because Jouppi will provide significant guidance for thousands of criminal forfeiture actions, which not incidentally bring in billions of dollars for all levels of government, it will be one of the most significant criminal law decisions in the coming term.Another seven criminal-law-and-related cases next termSpace considerations and the attention span of even knowledgeable readers for this sort of thing counsels shorter descriptions here. The descriptions are my own, not necessarily the court’s. Argument dates and the criminal law topic are bolded. One case is set for argument in October, five in November, and one is still not scheduled.Beaird v. United States (Oct. 13): Is there a more nuanced way to describe the deferential standard for official commentary published by the U.S. Sentencing Commission to explain the federal Sentencing Guidelines? Must federal courts follow the Commentary even if it conflicts with an unambiguous Guideline? The solicitor general ended up supporting a ruling for the defendant here, so Anthony J. Dick, a former clerk to Alito, has been appointed to defend the 5th Circuit’s prior rulings on the question whether the strict deferential standard for Commentary announced by a 9-0 1993 decision (Stinson v. United States) is still correct. When it granted cert in this case, the court wrote its own short question for the parties to address, But its brevity – is Stinson still correct? – is deceptively simple.Maxwell v. Dinis (Nov. 2): Is a claim that a prisoner is entitled to release to a halfway house cognizable in a federal habeas corpus action? This case is a rare pro se prisoner petition granted for review. Once a response to the petition was requested by the court, a high-powered law firm arranged to represent him (Masha Hansford, who has previously argued nine cases as an assistant to the solicitor general). Another former clerk to Alito, Brian W. Barnes, has been appointed to defend the 5th Circuit’s ruling that release to a halfway house is not a release from custody subject to habeas relief, because the solicitor general said that position is “inconsistent” with prior Supreme Court cases.Younge v. Fulton County (Nov. 2): This is a civil procedure case involving the firing of a supervising prosecutor in a county district attorney’s office. May a civil defendant assert an affirmative defense well past the civil procedure Rule 16 deadline to support a summary judgement motion? Unlike other circuits, the U.S. Court of Appeals for the 11th Circuit has said yes if the plaintiff is not “prejudiced” by it.Guerrero v. Johnson (Nov. 4): This is a state death penalty case involving a claim of “intellectual disability,” a topic which has recently engaged the court. Here, a threshold issue is presented: is a “new rule” of constitutional law available for retroactive application in a habeas petition, if it could have been raised in a prior petition even though it was viewed as meritless at that time? The new-rule-doctrine is complicated; the question is what does a rule that was “previously unavailable” mean, as used in the habeas statute that governs state criminal convictions. The 5th Circuit ruled that it means “previously unavailable” (with a dissent from Judge James Ho to a 9-7 denial of rehearing en banc). The U.S. solicitor general has agreed in an amicus brief that the 5th Circuit’s interpretation is “unsound” – we’ll see if the SG asks to also participate at oral argument, since the habeas statute applicable to federal convictions has the same “previously unavailable” language.Nielsen v. Watanabe (Nov. 9): The real question here is will the court overrule Bivens v. Six Unknown Federal Narcotics Agents, a 6-3 decision issued in June 1971? Bivens was perhaps the last hurrah of the liberal Warren court – four months later both Justices Lewis F. Powell and William H. Rehnquist were confirmed to replace famed liberal Hugo Black and moderate John Marshall Harlan II. Bivens allowed a private cause of action for damages under the Fourth Amendment against federal agents who violate constitutional rights. That idea was extended in 1980 to Eighth Amendment claims for deliberate indifference to a prisoner’s medical issues, in Carlson v. Green. This case (Nielsen) involves a similar, but of course not identical, Eighth Amendment claim, and the U.S. Court of Appeals for the 9th Circuit – traditionally a red flag for conservative critics – upheld Nielsen’s claim (despite 10 en banc dissenters).Bivens has been criticized, but also applauded, since the day it was decided. The court has rejected similar constitutional damages claims consistently since Carlson, and in 2022 Gorsuch called Bivens a “misstep” that the court should step away from.Francis Nielsen is a federal prison paramedic who allegedly told an injured prisoner to “stop being a cry baby” and failed to treat his injury, leading instead to two months of solitary confinement without medical treatment for what turned out to be severe injuries. The 9th Circuit ruled that Watanabe’s claim against Nielsen and others could go forward on a Bivens/Carlson theory. Nielsen, who is represented by former Assistant to the Solicitor General Jeffrey A. Lamken, argues directly that Bivens should be overruled. As amicus, the solicitor general has asked to participate in oral argument, and suggests that the court might want to wait for a case decided under the Fourth Amendment like Bivens to consider overruling it.On Nov. 9, Bivens will likely be vigorously defended by the three liberal justices. A legal regime in which a person who is intentionally injured by a federal agent’s violation of a constitutional right and has no remedy for damages is undoubtedly in tension with the famous Marbury v. Madison idea that every violation of a right deserves a remedy. But the anti-Bivens handwriting seems to be starkly on the wall.Two cases presenting statutory “plain language” as well as circuit splits that the solicitor general agreed the court should resolveWassily v. Blanch (Nov. 30): This is another important immigration case, after five others decided by the court this past year. Are persons who were once “granted asylum” but whose asylum status was later terminated for serious criminal convictions categorically ineligible for adjustment to lawful permanent resident status? The statute says that “any alien granted asylum” may apply for such status, but the solicitor general argues that the 2nd Circuit was correct to rule that the statute is intended to apply only to persons who are presently in asylum status.Montoya Palacios v. Liggins (not yet scheduled): Can a successful habeas corpus action used to challenge immigration detention be eligible for an award of attorneys’ fees and costs under the Equal Justice Act? Habeas actions are filed as civil, not criminal, cases, and the statute says that “any civil action” other than those “sounding in tort” can qualify. But the solicitor general argues that habeas actions have been viewed differently than other civil actions in the past, and it’s true that Schlanger v. Seamans, decided in 1971, said that habeas cases are “not automatically subject to all the rules governing ordinary civil actions.” At the same time, that decision referred to “rules,” not “statutes.” Merits briefing has been extended into December so further analysis awaits.

Plus, a closer look at Clarence Gideon from Gideon v. Wainwright.

The Supreme Court on Monday declined to allow the U.S. Postal Service to carry out parts of a new rule on mail-in voting. In a brief, unsigned order, the justices left in place a ruling by a federal judge in Boston that bars the USPS from implementing aspects of the rule.Justice Brett Kavanaugh penned a one-paragraph concurrence in which he agreed with the decision to deny the government’s request. He suggested that, in his view, the Postal Service might have the power to issue the rule. But even if it does, he continued, election officials “do not have sufficient time to reasonably implement the rule before” the November elections.Justice Samuel Alito dissented from the court’s ruling, in an opinion joined by Justice Clarence Thomas. He argued that some of the challengers in the dispute do not have a legal right to sue, known as standing, “while the remainder are pursuing a claim that this Court has recently called a ‘Hail Mary pass’ that ‘rarely succeeds.’”The court’s order comes less than two months before the midterm elections in November. At least two states – North Carolina and Alabama – have already begun to send out ballots by mail.As part of his administration’s broader effort to combat alleged voter fraud, President Donald Trump in March signed an executive order that directed federal agencies to take a series of steps on mail-in voting. For example, it required the Department of Homeland Security to send each state a list of the adult U.S. citizens in that state at least 60 days before a federal election and instructed the U.S. attorney general to investigate and prosecute state officials who allow people who are not eligible to vote to cast ballots.A group of 23 states, led by California, and the District of Columbia went to federal court in Massachusetts to challenge the government’s efforts to implement the executive order. They argued that the order clashes with provisions in the Constitution that give states the power to determine voter eligibility and to set the “Times, Places, and Manner” of holding congressional elections.U.S. District Judge Indira Talwani agreed. In an order on June 25, she temporarily prohibited the federal government from implementing parts of Trump’s executive order on or before the upcoming November elections in California, the states joining the lawsuit, or D.C.On Aug. 24, the Supreme Court put Talwani’s order on hold, allowing the Trump administration to begin implementing the executive order. The majority explained that the states’ challenge had come too soon because the order had not yet been carried out – and, therefore, the states had not suffered the kind of injury that would allow their lawsuit to go forward.Three days later, Talwani issued a new order that prohibited the Trump administration, for 14 days, from requiring states to comply with several provisions of a new rule issued by the U.S. Postal Service to implement Trump’s executive order – for example, imposing requirements for the design of the envelopes used to mail ballots and for the submission of voter data into a USPS portal.The Trump administration returned to the Supreme Court on Sept. 3, asking the justices to pause Talwani’s second order. U.S. Solicitor General D. John Sauer withdrew that request three days later, after Talwani issued a preliminary injunction, which replaced her Aug. 27 temporary restraining order and barred the Trump administration from requiring states to comply with provisions of the USPS rule indefinitely while the litigation continues.Sauer instead filed a new request with the Supreme Court, seeking to block Talwani’s preliminary injunction. He argued that Talwani’s “continuing prejudgment of the rule is baseless,” and her rationale is “simplistic,” and he rejected any suggestion “that the Postal Service is trying to federalize the rules for mail-in voting.” Instead, he wrote, “the Postal Service’s final rule imposes only modest envelope-design and addressee-information requirements for federal-election ballots sent via U.S. Mail.” Without a stay of Talwani’s order, Sauer continued, states will be able to mail out ballots that do not comply with the new rule.California and the other states countered that “USPS’ unprecedented experiment with our Nation’s most cherished franchise—the right to vote—is unlawful.” And they suggested that the effects of a stay could lead to “chaos,” with some states unable to comply with the rule by the November elections, “meaning that millions of voters would be unable to vote by mail and some would not be able to vote at all.” Moreover, they added, “even if state and local officials were somehow able to implement the new rule perfectly, there is a high risk of technical breakdown, ineptitude, and delay on the part of USPS.”A “friend of the court” brief filed by state and local election officials – including Republican secretaries of state from Kentucky, North and South Dakota, Georgia, New Hampshire, and Kansas – echoed this caution. They told the court that “[a]ttempting to implement the Rule now will almost certainly lead to mistakes, delays, and confusion for both voters and election officials.”A brief filed on Wednesday by the League of Women Voters and other civic groups, which had filed their own challenge to one part of the rule, also urged the court to leave Talwani’s preliminary injunction in place. The groups told the justices that “Congress charged the Postal Service with delivering the mail nationwide, subject to a scheme of narrow exceptions for specified categories of material that Congress itself—not USPS—has deemed ‘nonmailable’ and subject to rules of general application such as sufficient postage. Mail ballots fall outside those congressionally prescribed exceptions.”In an order issued on Monday night, the court indicated that the “Government is unlikely to succeed on the merits of its challenge to” Talwani’s order – a key factor in determining whether to grant the relief that the government was seeking. “And the equitable factors applicable for obtaining emergency relief from this Court” – such as whether the government will be permanently harmed if Talwani’s order is not put on hold – “do not favor a stay,” the court added.In dissent, Alito contended that the Trump administration “has made the showings necessary for a stay.” First, he reasoned, the civic groups challenging the rule had relied on “cryptic filings” to assert their right to sue. But they must “make specific allegations establishing that at least one identified member had suffered or would suffer harm,” Alito stated, and provide that member’s name.As for the states, Alito continued, the dispute boils down to “whether the Postal Service has statutory authority to promulgate the rule.” In this case, Alito asserted, the challengers must meet a high bar, but they cannot do so, because the USPS “has broad authority to regulate the mail.”Alito agreed with the Trump administration that it would suffer permanent harm if Talwani’s order is not put on hold while the litigation continues, because it would not be able to implement the rule in time for the November elections even if her injunction is ultimately reversed. “[T]he Government,” Alito emphasized, “has a strong interest in enforcing the rule.”By contrast, although Alito made clear that he took “th[e] problem” of “the practical effects of implementing the rule close to the midterm elections” “very seriously,” he concluded that “it is not enough to convince me to deny the application.” Some states, he noted, support the rule and say that they can comply with it during the November elections. Moreover, he suggested, the challengers and the courts “bear a substantial share of the blame” for the delay in the implementation of the rule.

This is the fifth of seven introductory articles on the relevance for constitutional law and the Supreme Court of the “born free and equal” clauses, which appeared in the Declaration of Independence and in six out of 12 state constitutions when the federal Bill of Rights was ratified in 1791, in 24 out of 37 state constitutions when the 14th Amendment was ratified in 1868, and is in 37 out of 50 state constitutions today. The “born free and equal” clause of the Massachusetts Constitution of 1780, for example, provided that:Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.In my initial articles, I showed that the “born free and equal” idea is deeply rooted in American history and tradition as that phrase is used in such correctly decided cases as Washington v. Glucksberg (rejecting a right to assisted suicide), McDonald v. City of Chicago (recognizing that the Second Amendment’s right to own a handgun for self-protection extends to the states), and Dobbs v. Jackson Women’s Health Organization (overturning Roe v. Wade). In the second and third article, I argued that while the 14th Amendment does not give rise to a “right to privacy,” it does through the privileges or immunities clause constitutionalize the “born free and equal” clauses, subject to rational basis review, which justifies the outcome, although not the opinions in 1965’s Griswold v. Connecticut (holding that states may not criminalize the use of contraceptives by married couples) and in 2003’s Lawrence v. Texas (holding that states may not criminalize same-sex “sodomy”). And in my fourth article, I examined the application of the “born free and equal” clauses to yet another famous “right to privacy” case: 2015’s decision in Obergefell v. Hodges, which correctly found a national constitutional right to same-sex civil marriages.Today I turn to one of the most atrocious rulings in Supreme Court history: the 1927 case of Buck v. Bell, in which the court, 8-1, upheld a model eugenics statute. Specifically, a Virginia act allowed the compulsory sterilization, for the supposed “protection and health of the state,” of anyone who was deemed by a “social worker” to have genes resulting in feeblemindedness, unfitness, or an intellectual disability. Only a perfunctory hearing was allowed to those who were compulsorily sterilized.This statute did not come out of nowhere. Rather, such eugenics laws were first championed in 1883 by the social Darwinist Sir Francis Galton, a second cousin of Charles Darwin who chillingly believed that there were many different human “races” on the earth and that those races of human beings were competing for what psychologist and philosopher Herbert Spencer called “the survival of the fittest.”Galton, who was fascinated by the concept of animal breeding of dogs and racehorses, dreamed of applying this to human beings so as to promote the most intelligent, physically strong, and beautiful or handsome of them. (Darwin himself had hinted at such an idea in “The Origin of Species,” and mentioned it in his 1871 book “The Descent of Man.”)Support for eugenics laws became an orthodox staple of the creed of the Progressive Era. In one letter, President Theodore Roosevelt stated that:Society has no business to permit degenerates to reproduce their kind … Any group of farmers who permitted their best stock not to breed, and let all the increase come from the worst stock, would be treated as fit inmates for an asylum … Some day we will realize that the prime duty, the inescapable duty of the good citizens of the right type is to leave his or her blood behind him in the world; and that we have no business to permit the perpetuation of citizens of the wrong type. The great problem of civilization is to secure a relative increase of the valuable as compared with the less valuable or noxious elements in the population … The problem cannot be met unless we give full consideration to the immense influence of heredity.Woodrow Wilson, the other major Progressive politician of the first part of the 20th century, signed a eugenics bill into law as governor of New Jersey. Other famous eugenicists included William Howard Taft; Margaret Sanger (the founder of Planned Parenthood); and Winston Churchill. Indeed, as home secretary from 1910 to 1911, Churchill argued for eugenic government intervention regarding people categorized at the time as “feeble-minded” or “insane.”In addition, major early philanthropic foundations like the Carnegie Institution and the Rockefeller Foundation provided extensive financial grants to eugenics organizations, such as the Eugenics Record Office at Cold Spring Harbor Laboratory, under the direction of leaders and trustees who subscribed to the pseudoscience of the era.This extended to the universities as well. James Rowland Angell, who was president of Yale from 1921 t0 1937, and Charles William Eliot, who was president of Harvard from 1869 to 1909, were outspoken and virulent eugenics supporters. (Elliott served as a vice president to the first International Eugenics Congress held in London in 1912.)The court itself perhaps most prominently embraced this movement in Buck v. Bell.In upholding Virginia’s compulsory sterilization law, Justice Oliver Wendell Holmes, Jr. wrote for the majority that:It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. ... Three generations of imbeciles are enough.In the wake of the Supreme Court’s ruling, 70,000 Americans were compulsorily sterilized, and 32 states ended up adopting compulsory sterilization statutes like Virginia’s. Nazi jurists and race hygienists studied U.S. sterilization statutes, such as California’s eugenics programs, as well as the Buck v. Bell decision. These laws inspired Adolf Hitler’s Nazi government to pass a German eugenics law in July 1933 entitled a “Law for the Prevention of Offspring with Hereditary Diseases” a few months after the Nazis came to power. Ultimately, 400,000 people were sterilized by the German law. The same racist ideology that led to these compulsory sterilizations in Hitler’s Nazi Germany undoubtedly helped fuel the ideas behind the Holocaust.Such ideas could not be in greater contrast to the Lockean principle that “All men are born free and equal.” That idea was thriving in the 1780’s when the Constitution was adopted; it was thriving during Reconstruction and in President Abraham Lincoln’s Gettysburg Address; but by 1912 it had effectively died out. The “born free and equal” idea only reemerged in 1948 as an Article I right in the Universal Declaration of Human Rights after the horrors of the Nazis and the Holocaust began coming to light.***Buck v. Bell was egregiously wrong not only as a matter of morals, but under the “birthright equality” principle that underlies the citizenship clause of the 14th Amendment. Citizens, as I explained in my prior articles, are born equal (i.e., they are born to be neither slaves nor lords). The citizenship clause grants equal rights unto the feeble-minded and the geniuses of this world alike.The right to have children, like the right to marry (the purpose of which is often to have children) is obviously deeply rooted in American history and tradition. The Preamble of our Constitution states that one of the six purposes of that document is: “To secure the Blessings of Liberty to ourselves and our Posterity”. It goes without saying, I think, that a government which is compulsorily sterilizing its citizens based on a social worker’s finding of feeblemindedness is not securing the “Blessings of Liberty to ourselves and our Posterity.”The landmark 1823 decision of Corfield v. Coryell, which I have previously said is the 14th Amendment’s version of the “born free and equal” clauses, stated that:The inquiry is, what are the privileges and immunities of citizens in the several states? … They may … be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole [people].As noted, Americans cannot “enjoy … life and liberty” or “pursue and obtain happiness and safety” if they face the risk of compulsorily sterilization. But can such laws then be justified under Coryell’s rational basis test (in bold), i.e., that such laws are “just” and are enacted for the “general good of the whole [people]?” Certainly not. A government that could compulsorily sterilize the feeble-minded would also be able to compulsorily sterilize any population that has fallen out of favor, whether Jewish or Black people, Native Americans, or Latinos. Nor, even if such a policy for the “feebleminded” was justified, could it be properly implemented (as was true in Buck’s very own case).The Supreme Court distinguished but did not overrule Buck v. Bell in 1942’s Skinner v. Oklahoma after it became terribly apparent what eugenics led to. Someday, the Supreme Court should formally overrule this terrible precedent.In the meantime, Harvard Law School should cancel its annual, prestigious “Oliver Wendell Holmes Lecture.”Three generations of Holmes Lectures are enough.