Dorf on Law

The US Supreme Court's just-completed term will go down as another bloodbath for American constitutionalism, for the rule of law, and even for basic decency.  In yesterday's Part One of this two-part column, I explained that my goal is not to provide a "summary of the term" analysis along the lines that Professor Dorf has already done so well.  Instead, I have collected a few stray threads within various cases that might provide useful ways to think about what is happening and is likely to happen in the near future. Yesterday's entry promised a long list of such stray threads, but in fact my first two examples were more than enough to fill a column (and then some).  Those two examples included a good outcome ( Chatrie v. U.S. , a Fourth Amendment case the Professor Matthew Tokson nicely analyzed in three posts on this blog) and one with a very bad outcome ( Mullin v. Al Otro Lado , in which the Roberts Six played with words to negate a duly enacted statute). To ...

How bad was the latest US Supreme Court term?  Plenty bad, especially for anyone who cares at all about democracy or the rule of law.  There were a few relatively pleasant surprises, but even those cases (as I will demonstrate shortly) can have worrisome lead linings hiding inside.  But the truly awful decisions dominated the Court's output once again in 2025-26. For readers looking for a relatively traditional "summary of the term"-style analysis, one could hardly do better than to click on Professor Dorf's recent " Is the Roberts Court Hyperopic or Willfully Blind? " (first posted on SCOTUSblog ).  Because constitutional law has never been my day job or even my hobby, I am not pretending to be able -- or even inclined to try -- to offer that kind of overall assessment of the Court's work.  Instead, my approach here and in tomorrow's Part Two of this column will be eclectic, discussing a few notable points within cases that strike me as having been ...

I've been blogging here  ( and here ) recently about Chatrie v. United States , the Supreme Court's landmark Fourth Amendment case decided late last month.  Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. In today’s post, I'll talk about which theories of Fourth Amendment law the Court adopted in Chatrie  and which it didn't. First, I’ll explore why Justice Gorsuch hasn’t gained any support over the past eight years for his property-centered approach to Fourth Amendment searches. Second, I’ll look at the bigger picture of the Court’s embrace of privacy and rejection of traditional measures in applying the Fourth Amendment to the modern world.  What Happened to the New Property Era in Fourth Amendment Law? Justice Gorsuch wrote separately in Chatrie , concurring in the result. He argued that the Court should discard th...

A recent Fifth Circuit decision, Texas Tobacco Barn v. US Dep't of Health & Human Services , was handed down two years to the day after the Supreme Court decision it applied to hold that agency proceedings within the FDA resulting in civil penalties violate the Seventh Amendment. After providing a bit of background for those readers who don't have the misfortune to follow the Supreme Court's convoluted federal jurisdiction rulings as closely as I do, I'll use the case as an opportunity to compare and contrast the historical analogy approach the Roberts Court has taken to the Second and Seventh Amendments. For those readers already put off by the subject, here's the bottom line: the Court's purported use of historical analogies is mostly a mask for its normative preferences. Now, that background: In its 2024 decision in SEC v. Jarkesy , an ideologically divided 6-3 Court held that the Seventh Amendment requires jury trials whenever the government seeks civil ...

Last week, I blogged here at Dorf on Law about Chatrie v. United States , the Supreme Court’s first major Fourth Amendment case in eight years. Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. Chatrie was a huge win for digital privacy, and it substantially expanded the scope of the Fourth Amendment. In today’s post, I’ll explain what Chatrie means for Fourth Amendment law going forward. The Chatrie opinion potentially transformed Fourth Amendment search law in several ways. In 2018’s Carpenter v. United States , the Supreme Court held that requesting cell phone location data over a seven day period in order to track a suspect’s movements was a Fourth Amendment search requiring a warrant and probable cause. It discussed several factors that contributed to its decision, but the three that lower courts have used most frequently in the wake of ...

Not having been brought up on soccer/football, I have only in the last twenty years or so learned anything at all about the World Cup.  This year is the men's version, and even with my years of living outside of the US at least temporarily behind me, I have been paying fairly close attention to the tournament and everything around it.  Not that I have actually watched any matches, mind you, given the stranglehold that Fox has on the broadcast rights, but I have certainly followed the results and surrounding news carefully enough to have formed three thoughts that I will share here to end the week. Actually, it is not so much three thoughts as two thoughtlets and one angry observation. Thoughtlet #1 : As soon as I learned that this year's tournament had been expanded in both the number of teams and by adding a Round of 32 to the knockout rounds, I had no doubt that the commentary would lapse into one of my longstanding pet peeves: meaningless "first evers."  I have com...

[N.B. The following essay was first published on SCOTUSblog . The version below includes one additional paragraph and some formatting that do not appear in the SCOTUSblog version.]  Speaking at a Federalist Society event the day the Supreme Court wrapped up its latest term, attorney  Kannon Shanmugam described  an “emerging theme” in the case results. “On issues of . . . broader significance,” the head of Davis Polk’s Supreme Court and appellate practice group said, “the, quote-unquote, ‘conservative’ side is typically winning. On issues that are more specific to this administration, the outcomes are sometimes different.” I agree with Shanmugam’s view about the Court’s conservatism with respect to the issues of broad significance – what I would call issues of longstanding interest to conservatives. In the term just completed, LGBTQ advocates lost cases involving  conversion therapy  and  transgender athletes . The Court validated Second Amendment claims in ...