"If the question of the Postal Service’s power were before us in something other than the context of an ultra vires claim..."

".... the Government’s argument would present a difficult question. But here the question is different. In order to assert an ultra vires claim, the plaintiffs must show that the challenged regulation of envelopes here is 'entirely "in excess"' of the power to govern collecting, handling, transporting, delivering, forwarding, and returning of mail. The same is true of the requirement to pass along information about each recipient of ballot mail. At the very least, the Postal Service did not act '"contrary to a specific prohibition"' in enacting the rule... [T]he plaintiff States’ statutory claim is based on a contestable reading of a broadly drawn statute empowering the Postal Service to regulate the mail."

Writes Justice Alito, dissenting, joined by Justice Thomas, in United States Postal Service v. California.

Here's the NYT: "Two Conservative Justices Would Have Allowed Trump’s Mail-In Ballot Rules/Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, called the challenge to the restrictions a 'Hail Mary pass' that was unlikely to prevail because of the Postal Service’s broad authority to regulate the mail" (gift link).

NPR got something very right and wrong or just very very wrong.

But if you go to the link now, you get this:

Is this what Justice Thomas was so jovial about yesterday?

The Supreme Court is about to hand down its last decisions of the term.

Here's the live blog at SCOTUSblog.

And here's where to get the text of the opinions immediately, starting in a few minutes, at the Supreme Court's website.

UPDATE: West Virginia v. B.P.J.: "Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex, and West Virginia has permissibly maintained female sports for biological females consistent with Title IX." Kavanaugh has the opinion joined by Roberts, Thomas, Alito, Gorsuch, Barrett. Thomas and Gorsuch have concurring opinions. There's an opinion concurring in the judgment in part and dissenting in part, by Sotomayor that is joined by Kagan and Jackson, and then Jackson has an opinion concurring in the judgment in part and dissenting in part. To what extent is this unanimous? 

From the Kavanaugh opinion: "In short, States are not required to conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males in order to satisfy intermediate scrutiny. Intermediate scrutiny permits a sex-based classification that, as here, is 'not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.”

UPDATE 2: "FECA’s political-party coordinated-expenditure limits violate the First Amendment." The case is National Republican Senatorial Committee v. Federal Election Committee. Another Kavanaugh opinion. It's joined by the 5 you'd expect to join, and the 3 dissenters are then, as you'd know, Kagan, Sotomayor, and Jackson. 

UPDATE 3: Birthright citizenship survives. Here's the opinion, Trump v. Barbara. Roberts writes the majority opinion and is joined by Sotomayor, Kagan, Barrett, and Jackson. Kavanaugh writes an opinion concurring in the judgment in part and dissenting in part. Thomas, Alito, and Gorsuch all write their own dissenting opinions, with Gorsuch also joining the Thomas opinion. 

From the Roberts opinion: "If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design. Words appearing frequently in the Executive Order—'mother,' 'father,' 'lawful,' 'temporary'—are absent from the Clause. For a simple reason: they did not matter. And while the Clause does ensure state citizenship attaches for U. S. citizens in 'the State wherein they reside,” Amdt. 14, §1, the explicit invocation of residence for state citizenship only highlights its absence from the criteria for U. S. citizenship. See Slaughter-House Cases, 16 Wall. 36, 74 (1873) (a person can 'be a citizen of the United States without being a citizen of a State'). When the principal dissent does grapple with the operative legal text—'subject to the jurisdiction' of the United States—it has little to say...."

Also from Roberts: "Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to 'every free-born person in this land.”' Cong. Globe, 39th Cong., 1st Sess., at 600 (Sen. Trumbull). We keep that promise today."

UPDATE 4: From SCOTUSblog: NPR is announcing that Alito is retiring -- but still has not been confirmed... "Justice Samuel Alito, who wrote the Supreme Court's opinion reversing Roe v. Wade, is retiring, the court announced Tuesday."

"The Supreme Court on Thursday allowed the Trump administration to end humanitarian protections that have permitted hundreds of thousands of people from Haiti and Syria..."

"... to live and work legally in the United States. President Trump has pushed to terminate the program, known as Temporary Protected Status, as part of his broader crack down on immigration. The program was created by Congress with bipartisan support in 1990 to provide temporary legal status to people whose home countries were deemed unsafe because of war, natural disasters or other crises."

The NYT reports in "Supreme Court Lets Trump End Deportation Protection for Haitians and Syrians/President Trump has pushed to rescind Temporary Protected Status for hundreds of thousands of people from countries convulsed by humanitarian crises."

Here's the full opinion: Mullin v. Doe. Excerpt from the majority opinion, written by Justice Alito:

None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications. For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race. And a person without racial bias can provide a harshly unfavorable description of living conditions in some of the countries with TPS designations....Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago.... But whatever one may think of the cited statements, they are insufficient to show that the termination of Haiti’s TPS designation was based on the race of the Haitian people....

From the dissenting opinion by Justice Kagan:

The evidence [the Haiti plaintiffs] have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print....

"The court’s brief, five-paragraph order indicated that 'Texas is likely to succeed on the merits of its claim that the District Court committed at least two serious errors.'"

"Moreover, it added, the lower court 'improperly inserted itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.'"

From "Supreme Court allows Texas to use redistricting map challenged as racially discriminatory" (Scotusblog).

Here's the opinion. There's a long dissent by Kagan, joined by Sotomayor and Jackson, arguing for deference to the decision of the district court. Alito writes a concurring opinion, joined by Thomas and Gorsuch:

"From the start, everyone recognized that the purpose of Texas’s redistricting effort was Republican political advantage."

"The district court erred by inferring bad faith and racial intent because the Texas Legislature’s map did not (through some hypothetical means) transform the only Democratic district in Austin — an exceptionally Democratic city — into a Republican stronghold."

Wrote Texas Solicitor General William Peterson, quoted in "Alito lets Texas reinstate gerrymandered House map that could give GOP 5 more seats/Alito’s move allowing Texas officials to continue to prepare for primary elections under the new map came just after the state asked the Supreme Court for an urgent ruling" (Politico).

This is one of the "certain topics" I was talking about yesterday in "I feel as though unseen readers are leaning on me to write about certain topics that I see out there." Today is a new day, with Alito's stay of the lower court's order. But if you want to engage with the very lengthy and emotional lower court opinions, I recommend the discussion on the podcast "Advisory Opinions," here. Excerpt: 

"For the first time, my insides don’t feel like fire. They feel like warm, golden love."

Says Penelope, a child in the book "Born Ready," described by Justice Alito in the new Supreme Court case, Mahmoud v. Taylor:

The book Born Ready...  follows the story of Penelope, an apparently biological female who asserts “ ‘I AM a boy.’ ” Id., at 458a. Not only does the story convey the message that Penelope is a boy simply because that is what she chooses to be, but it slyly conveys a positive message about transgender medical procedures. Penelope says the following to her mother: 

“ ‘I love you, Mama, but I don’t want to be you. I want to be Papa. I don’t want tomorrow to come because tomorrow I’ll look like you. Please help me, Mama. Help me to be a boy.’ ” Id., at 459a.

Penelope’s mother then agrees that Penelope is a boy, and Penelope exclaims: “For the first time, my insides don’t feel like fire. They feel like warm, golden love.” Id., at 462a. To young children, the moral implication of the story is that it is seriously harmful to deny a gender transition and that transitioning is a highly positive experience....

A child's "insides" described as feeling like fire or, alternatively, warm, golden love! Quite aside from the topic of transgenderism, that is — if not blatantly sexual — too closely approximate to sexuality to belong in reading material for children. If I say I'm amazed that school authorities would adopt such a book for classroom instruction, I am sure commenters will scoff at me for being too naive to perceive the deliberate "grooming."

"The plaintiffs here are not asking the school to change its curriculum. They’re just saying, ‘Look, we want out.’ Why isn’t that feasible? What is the big deal about allowing them to opt out of this?"

Said Justice Alito, quoted in "Justices Seem Set to Allow Opt-Outs From L.G.B.T.Q. Stories in Schools/In a lively and sometimes heated argument, the Supreme Court’s conservative majority appeared poised to rule for parents with religious objections to storybooks with gay and transgender characters" (NYT).

Here's the transcript of the oral argument.

"The design brief provides... that the background of the flag must be colored 'buff'... and the flag should be 'so simple that a child can draw it from memory.'"

"It must also have a pine tree in the center and a blue five-pointed North Star in the upper corner, the brief said.... The contest rules specify that the design has to be an original work and not generated by artificial intelligence. The contest winner will not be compensated and the design can be modified by the secretary of state...."

I'm reading "Maine Accepting Designs for a New State Flag/Maine is seeking design ideas before voters in November determine whether to adopt a new, more distinctive flag" (NYT).

Maine is one of the many states with a flag based on the state seal. These flags are way too cluttered, the polar opposite of something a child could draw from memory. Central to Maine's flag, however, is a pine tree, and the contest requires continued focus on the pine tree. There's also a well-placed desire to return to something like Maine's 1901 flag, which is seal-free and seems to adhere to good principles of flag design:

 

But a pine tree at this screwy moment makes us think of trumped-up controversy surrounding Samuel Alito's wife:

"Supreme Court Upholds Broad Access to Abortion Pill/The justices unanimously rejected a bid to sharply curtail access to a widely available abortion pill, finding that the plaintiffs did not have standing to sue."

The NYT reports.

I made that a free-access link.

In a unanimous decision, written by Justice Brett M. Kavanaugh, the court held that the plaintiffs lacked standing to challenge the F.D.A.’s actions....

When the court overturned Roe v. Wade in 2022, it indicated that it was getting out of the abortion business, leaving the issue to the elected branches. The abortion pill decision vindicated that promise, at least for now....

When the case was argued, Justice Alito said he was troubled that it seemed no one had standing to challenge the F.D.A.’s action. Justice Kavanaugh wrote that not every dispute was for judges to decide: “Some issues may be left to the political and democratic processes.”

"On one side or the other — one side or the other is going to win. I don’t know. I mean, there can be a way of working — a way of living together peacefully..."

"... but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you are going to split the difference."

Said Justice Alito, quoted in "Justice Alito Caught on Tape Discussing How Battle for America 'Can’t Be Compromised'" (Rolling Stone). 

Alito made these remarks in conversation at the Supreme Court Historical Society’s annual dinner on June 3.... His comments were recorded by Lauren Windsor, a liberal documentary filmmaker.... She asked questions of the justice as though she were a religious conservative.... 

The recording... captures Windsor approaching Alito at the event and reminding him that they spoke at the same function the year before, when she asked him a question about political polarization. In the intervening year, she tells the justice, her views on the matter had changed. “I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” Windsor says. “I think that it’s a matter of, like, winning.”

Alito responded "I think you're probably right" and then said the lines quoted above. I consider his remarks anodyne. When people are ideologically polarized, they don't go in for compromises. They keep fighting. Just like Rolling Stone is keeping fighting with this article and its inflammatory headline. Alito doesn't use the word "battle" or say anything about a "Battle for America." He just responds to the instigator Windsor by observing that ideologues are not compromisers.

Alito talks about sides without putting himself on one of the sides. He doesn't join Windsor in the use of the pronoun "we." His words are neutral: "one side or the other," "there can be a way," "it’s difficult," "there are differences," "They" (meaning the "differences"). It must have been frustrating to Windsor. And yet, here's Rolling Stone serving them up as if Alito had declared himself a bitter ender battling for Christian Nationalism. Ludicrous!

"Mr. Trump’s musings on his planned prosecutions serve an immediate political purpose, highlighting his argument that his conviction in New York..."

"... was the product of an effort by Democrats to keep him from being elected again and providing the red meat of prospective retribution to his base. But they also have the effect, partly incidental and partly calculated, of undermining faith in the integrity of the criminal justice system, a development that could have profound effects in a nation where the rule of law has been foundational. Mr. Trump and his supporters have argued that the system is already politicized, pointing to the four criminal prosecutions against him as irrefutable evidence — an assertion rejected by those who say that no one, including a former president or leading presidential candidate, is above the law.... The president can certainly instruct his attorney general to investigate given individuals. In his 1960 presidential campaign, for instance, John F. Kennedy pledged to target Jimmy Hoffa, the labor leader.... "

Writes Adam Liptak, in "Trump’s Vows to Prosecute Rivals Put Rule of Law on the Ballot/Donald Trump’s promise to seek retribution challenges long-established norms. The election could hinge in part on what kind of justice system the country believes it has now and wants in the future" (NYT).

I think Trump's campaign rhetoric is mostly designed to force his adversaries to proclaim principles that support his own arguments. Liptak acknowledges that as he contends that what Trump is threatening to do to his political opponents is different from what they are doing to him. Trump's political enemies will appreciate the asserted difference. His supporters won't. And what is it? The most obvious difference is that Trump's opponents are currently deeply engaged in prosecuting him, but Trump did not prosecute his enemies in his first administration and he's only referring to the potential to do so the next time around. He's issuing a credible threat in a game of tit-for-tat that he did not start. Won't we need to see what charges his next administration brings (if there is to be a next administration)? These might be solid charges that rest on the proposition that no one is above the law... as Trump's opponents like to say about the charges brought against him.

Liptak quotes something Justice Alito said in the oral arguments in the case about presidential immunity:

"So if your wife flies a flag you don't like and you can't work it out, your choices are to let her continue flying the flag and stay married or get divorced..."

"... or move out in some other capacity. And if your wife's language is flags and she's angry, and so she's decides to fly this distress flag that had been used by the George Floyd protestors by the stop the steal protestors, basically by protestors across the ideological spectrum. And you're like, Hey, but sweetheart, they're going to think that you are associating yourself with Stop the Steal. And then she goes into some sort of rant about how dare you accuse her of that. And that flag's staying up because you know what? They called me, they followed me in front of my home and their car and called me the C word. And then she like goes to bed and refuses to take down the flag.... What are you supposed to do?... This is like a feminist rant for me.... [T]his is private conduct by a private individual who is married to a Supreme Court justice. Why isn't she entitled to that?.... Think he should recuse because we can't prove that he wasn't involved?"

Says Sarah Isgur in the new episode of the "Advisory Opinions" podcast.

David French insists that he wouldn't allow a flag he didn't agree with to fly in front of his house, and the two go back and forth about how a man would physically accomplish the removal of the flag his wife insisted on flying.

For reference, here's what Alito wrote:

"Any pretense of seriousness evaporated last week with the New York Times's expose of the Alitos' breach of flag etiquette...."

"While Justice Alito has stated that he had nothing to do with this flag hoisting, the incident, we are told, somehow amounts to evidence that the Alitos supported Donald Trump's 'stop the steal' campaign. Where does that connection come from? A search of the Factiva news database turns up no articles containing the phrases 'stop the steal' and 'upside down flag' before the Times report on May 16. Rather than retreat in humiliation, the Times doubled down this week with a follow-up report of yet another flag... spotted at the Alitos' vacation home in New Jersey. The left tells us that the 1775 Pine Tree flag was spotted among Jan. 6 protesters! And moreover, that its catch phrase, 'an appeal to heaven,' derives from a radical character —John Locke. The Times somehow fails to let readers know that the flag is a longtime symbol of independence; that it was designed by George Washington's secretary; was flown on ships commissioned by Washington; has been honored, commemorated and flown over state capitols; and is the official maritime flag of the Commonwealth of Massachusetts...."

Writes Kimberley A. Strassel, in "A Flagging Campaign Against Justice Alito/The ‘ethics’ attack having failed, the left turns to flag etiquette" (Wall Street Journal).

"Writing for the majority, Justice Samuel A. Alito noted many predominantly Black precincts in Charleston were moved out of one district and into another."

"But 'because of the tight correlation between race and partisan preferences, this fact does little to show that race, not politics drove the legislature’s choice,' he wrote. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Justice Elena Kagan, writing for the justices nominated by Democrats, said the majority got it 'seriously wrong'.... Kagan warned that the majority opinion sends a message to lawmakers and mapmakers to use race as a proxy to achieve partisan ends. 'And so this "odious" practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue,' she wrote. 'In the electoral sphere especially, where "ugly patterns of pervasive racial discrimination" have so long governed, we should demand better — of ourselves, of our political representatives, and most of all of this Court.'"

From "Supreme Court allows disputed South Carolina voting map/At issue was whether the map was an unconstitutional attempt to divvy voters up by race -- or was permitted partisan gerrymandering" (WaPo).

"Whether Alito was participating in the boycott matters, moreover, for one of the several reasons it matters why there was an upside-down American flag flying at his house on Jan. 17, 2021...."

"...as The New York Times reported earlier this week, and what he knew about that.... Participating in a boycott is undeniably a political statement. And there are pending cases for which participation in an anti-trans beer boycott could be seen as his having a finger on the scale of justice on the side of the anti-trans advocates supporting — and in some cases, defending — these laws such that recusal could be required...."

Writes Chris Geidner, in "Exclusive: Justice Alito sold Bud Light stock amidst anti-trans boycott effort/Alito did not respond to questions about the sale, but its timing raises fair questions — particularly in light of other recent ethical questions" (Law Dork).

Why would selling the stock reveal an anti-trans bias? If anything, it reflects a belief that the stock will go down because other people are biased. To participate in the boycott would be to decline to continue to buy Bud Light beer. There's no evidence that Alito was a Bud Light consumer. I googled Does Alito drink beer and I found this 2006 article in the Princeton Alumni Weekly, "A Tiger on the Court: Sam Alito ’72 at Princeton":

"Would pulling a fire alarm before a vote qualify for 20 years in federal prison?"

From yesterday's argument in Fischer v. United States, the case about charging January 6th defendants with violating a federal statute that arose out of the Enron scandal and was aimed at the destruction of documents.

What fits the statute under the government's interpretation?

JUSTICE GORSUCH: Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify, or at the state of the union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?

The fire alarm scenario must allude to the Jamaal Bowman incident, but of course, the Solicitor General proceeds smoothly and professionally, and calls it a "hypothetical":

GENERAL PRELOGAR: There are multiple elements of the statute that I think might not be satisfied by those hypotheticals, and it relates to the point I was going to make to the Chief Justice about the breadth of this statute. The -- the kind of built-in limitations or the things that I think would potentially suggest that many of those things wouldn't be something the government could charge or prove

"How can Mr. Smith persuade 12 jurors that no reasonable doubt exists that Mr. Trump knew he was lying?"

"The prosecution will, no doubt, barrage the jury with reams of testimony showing that he was repeatedly told by every reputable adviser and administration official that no credible evidence of widespread electoral fraud existed and that Mr. Pence had no choice but to certify Mr. Biden as the winner. But there also will probably be evidence that fervent supporters of Mr. Trump’s efforts fed his narcissism with bizarre false tales of result-changing electoral fraud and frivolous legal theories justifying interference with Mr. Biden’s certification as president-elect...."

Writes NYU lawprof emeritus Burt Neuborne in "There’s a Good Chance Trump Will Be Found ‘Willfully Blind’" (NYT).

Neuborne offers the 2011 Supreme Court case, Global-Tech Appliances v. SEB as the solution:

I can't remember ever seeing the term "judicial activist" to refer to anyone other than a judge supposedly engaging in "judicial activism."

But here's The Washington Post using the term to refer to a political activist who concerns himself with the judiciary: "Judicial activist directed fees to Clarence Thomas’s wife, urged ‘no mention of Ginni’/Leonard Leo told GOP pollster Kellyanne Conway to bill nonprofit, then use money to pay spouse of Supreme Court justice."*

Who's Leonard Leo? The first sentence of the piece calls him "Conservative judicial activist Leonard Leo," and the third paragraph calls him "a key figure in a network of nonprofits that has worked to support the nominations of conservative judges." He's not a judge, and he's not, at least not openly, a proponent of judicial activism.

In the 18-year archive of this blog, Leo's name has come up exactly once, back in 2006, when the NYT invited various legal writers to offer questions that could be asked of Samuel Alito at his confirmation hearing. I wrote:

Leonard A. Leo, the executive vice president of the Federalist Society, asks the one that Robert Bork gave his most damaging answer to: "why do you want to be on the Supreme Court?" (Bork said he thought it would be "an intellectual feast.")

"Justice Samuel A. Alito Jr. just wants you to know: The leaker didn’t come from the conservative wing of the court...."

Writes Ruth Marcus in "The aggrieved Justice Alito points fingers but offers no proof" (WaPo).

Alito didn’t name names but freely assigned motive. “It was part of an effort to prevent the Dobbs draft … from becoming the decision of the court,” he said. “And that’s how it was used for those six weeks by people on the outside — as part of the campaign to try to intimidate the court.” 

Nice work, because this is the kind of inchoate smear that is impossible to defend against....

Ah! Can we have a general rule against inchoate smears?! They're impossible to defend against, so it's scurrilous to make them. Think hard before agreeing to the rule. How will you feel when it's used against you or someone you like? And what about the unintended side effects? If smears must be not be inchoate,* then sometimes, instead of blind items or silence, you'll get names.