The DOJ can’t indict a ham sandwich these days. That old saying doesn’t ring as true as it used to now that most of the DOJ’s work is just vindictive prosecutions.
It’s not just cases being tossed because DOJ prosecutors weren’t legally appointed to their positions. This dates back to the early parts of last year when the DOJ was trying to turn anti-ICE protesters into convicted felons. Most notoriously, the government failed to secure an assault indictment against Sean Dunn, a DC resident who famously “assaulted” an ICE officer by throwing a literal sandwich at them.
Former Trump personal lawyer Lindsey Halligan did manage to secure indictments (after multiple attempts) against former FBI director James Comey and current New York Attorney General Letitia James. Those case are gone but not because the grand juries rebelled, but because the “rule of law” party ignored a lot of rules and laws.
In 2016, the most recent year for which the Justice Department has published data, federal prosecutors concluded more than 155,000 prosecutions and declined over 25,000 cases presented by investigators. In only six instances was a grand jury’s refusal to indict listed as the reason for dropping the matter.
Lindsey Halligan managed to rack up nearly half that amount in a single case:
A grand jury rejected one of three charges Halligan proposed against Comey. She initially secured an indictment against James, but after a judge threw that case out , two grand juries voted down new indictments.
She did this twice with the same proposed defendant. The DOJ surpassed this number of rejections less than halfway through 2025, as grand juries not only rejected the vindictive prosecution of the DC sandwich thrower, but dozens of other cases brought by prosecutors.
At one point earlier this year, [DOJ US Attorney Bill] Essayli’s office had managed to secure indictments in less than a quarter of the felony cases it brought in connection with protests or immigration raids, the Los Angeles Times reported.
We’ve spent plenty of time criticizing grand juries here at Techdirt. But something weird and quietly wonderful is happening all over the nation, which is returning grand juries back to their roots: a crucial part of the system of checks and balances.
They’re a carryover from the British Empire, but one the founding fathers felt actually had some merit, as former federal prosecutor Randall Eliason explained in post last year discussing the DOJ’s multiple failures:
The Constitution requires that every federal felony be indicted by a grand jury. This safeguard was inherited from the British legal system, where it dates back to the Magna Carta in the 13th century. To prevent the king from arbitrarily locking up people for improper reasons, British law required the Crown to present its evidence to a panel of residents of the local community to establish that criminal charges were justified. The case could only proceed if that group of citizens, the grand jury, approved the charges.
We’re dealing with a president who thinks he’s a king. And his DOJ is finding out that regular Americans not only don’t view him as a king, but aren’t willing to rubber stamp a bunch of vindictive prosecutions meant to remind citizens who’s in power.
Halligan went 1-for-3 in her attempted prosecution of James Comey. Former Fox commentator Jeanine Pirro did even worse when trying to prosecute an anti-ICE protester for assault.
Pirro’s office presented these facts to a D.C. federal grand jury and asked them to indict Reid for assaulting, resisting, or impeding a federal officer, a felony punishable by up to eight years in prison. When the grand jury refused, prosecutors tried again with a second grand jury. And then with a third. Each grand jury refused to return the indictment sought by prosecutors.
Now that this sort of thing is almost a daily occurrence, Trump loyalists like Pirro are blaming their inability to secure indictments on the public, rather than their own inability to read the room and discard felony charges jury members don’t seem to believe are warranted. That’s part of the reason why so many indictments are returned by grand juries: prosecutors who actually know what they’re doing (rather than the stunt casting that passes for federal agency appointments under Trump) will ditch cases that seem doomed to be rejected by grand jurors.
No one in the administration will learn anything from this. Bill Essayli will continue to scream at his underlings for failing to turn vindictive bullshit into prison sentences. Lindsey Halligan will continue to bumblefuck her way into an eventual firing for failing to fulfill Trump’s revenge fantasies. And other under-qualified former Fox b-listers will return to their former employer to complain their losses are just more evidence of a latent strain of liberalism that’s making America less great again.
“There are a lot of people who sit on juries and and they live in Georgetown or in Northwest or in some of these better areas, and they don’t see the reality of crime that is occurring,” Pirro said in August on “Fox News Sunday.”
Pirro also blamed that alleged indifference to crime for a grand jury’s refusal to indict Justice Department paralegal Sean Dunn for throwing a Subway sandwich at a Customs and Border Protection agent during a street confrontation earlier that month.
“The grand jurors don’t take it so seriously. They’re like, ‘Eh, you know, whatever.’ My job is to try to turn that around,” Pirro said.
Like many people in Trump’s orbit, Pirro is so divorced from reality she should be cutting it alimony checks every month. The grand juries are taking it seriously. It’s the DOJ prosecutors that are being glib, treating every ridiculous case like a foregone conclusion as they try to convert Trump’s desire for vengeance into criminal charges. Say what you will about grand juries, but it appears jurors aren’t willing to help the government strip people of their freedom just because it’s angry.
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With the current mess that the US is in, there has been plenty of talk of “what comes after” and how to think about the big structural changes needed to prevent another authoritarian from taking over and abusing all the levers of power for corruption and self-enrichment.
There are many different issues to address, but we should be thinking creatively about how to redesign our institutions to be more resilient to the abuses we’re witnessing.
One area ripe for creative rethinking is the federal judiciary, particularly the Supreme Court. Because right now, we have a system where individual judges matter way, way too much. Rather than the minor reforms and incremental changes some are suggesting, I think the solution is to go big. Really big. Expand the Supreme Court to at least 100 justices, with cases heard by randomized panels.
I’ll explain the details below, but the core philosophy is simple: no single Supreme Court Justice should ever matter that much.
President Trump has found a powerful but obscure bulwark in the appeals court judges he appointed during his first term. They have voted overwhelmingly in his favor when his administration’s actions have been challenged in court in his current term, a New York Times analysis of their 2025 records shows.
Time and again, appellate judges chosen by Mr. Trump in his first term reversed rulings made by district court judges in his second, clearing the way for his policies and gradually eroding a perception early last year that the legal system was thwarting his efforts to amass presidential power.
The actual figures are damning. Trump’s appellate appointees voted to allow his policies to take effect 133 times and voted against them only 12 times. That’s 92 percent of their votes in favor of the administration.
When Chief Justice John Roberts responded to Trump’s criticism of an “Obama judge” back in 2018, he insisted that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
The data suggests Roberts was either naive or lying.
The Times analyzed every judicial ruling on Mr. Trump’s second-term agenda, from Jan. 20 to Dec. 31 of last year, or more than 500 orders issued across 900 cases. About half of rulings at the appellate level were in Mr. Trump’s favor — better than his performance with the district courts, though worse than his record at the Supreme Court, where the rulings on his agenda have almost all been on a preliminary basis in response to emergency applications.
And there it is. The higher you go up the judicial food chain, the better Trump does. District courts ruled in his favor 25% of the time. Appeals courts: 51%. The Supreme Court: 88%.
Now, some will argue this is the system working as designed—higher courts correcting overzealous lower court judges. And sure, that’s part of what appeals courts do. But the pattern here isn’t just about legal merit. It’s about how much individual judges matter, and how vulnerable the system is to ideological capture.
The uniformity of the judges’ votes is reason for serious concern, said Mark L. Wolf, a former federal judge nominated by President Ronald Reagan. Judge Wolf recently retired so he could speak more freely about what he has characterized as the threat that Mr. Trump posed to the rule of law.
“If you’re an impartial judge, the same party is not going to win every time,” he said. “Because the facts are different, the law is different, and so the result is often going to be different.”
This gets at the fundamental problem. When you have a small number of judges with lifetime appointments, whose ideological leanings are known quantities, those individual judges become enormously powerful. A single justice retiring or dying at the wrong time can reshape American law for a generation. That’s insane. No single person should have that kind of power over the constitutional rights of 330 million people.
And it gets worse. The Times found that three Trump appointees on the D.C. Circuit—Judges Gregory Katsas, Neomi Rao, and Justin Walker—accounted for more than half of all pro-Trump votes from Trump’s appellate appointees. Three judges. In one circuit. Exercising “outsized influence.”
Combined, Judges Gregory G. Katsas, Neomi Rao, and Justin R. Walker voted 75 times in favor of the administration — slightly more than half of the pro-Trump votes from Mr. Trump’s appointees logged by the Times analysis — and only three times against.
So what do we do about this?
The typical response from Democrats when they’re in power is to either accept the status quo or propose modest reforms that don’t actually address the structural problem. Republicans, meanwhile, have been playing the long game on judicial appointments for decades, understanding that packing the courts with ideologically aligned young judges is one of the most effective ways to entrench their policy preferences beyond electoral accountability.
We need to think bigger. Much bigger.
Here’s my proposal: Expand the Supreme Court to at least 100 justices, with cases heard by randomized panels of 9 justices. High-profile or particularly important cases could be reheard en banc by a larger panel or the entire court, similar to how it’s currently done in appeals courts.
Before you dismiss this as just another “court packing” scheme, let me explain why it’s fundamentally different from what FDR tried to do in 1937.
FDR’s plan was explicitly designed to shift the ideological balance of the court in his favor. He wanted to add up to six new justices precisely because the existing court kept striking down New Deal programs. The goal was partisan advantage, and everyone knew it. That’s why it failed—even FDR’s own party largely opposed it as a power grab.
What I’m proposing is the opposite. By expanding to at least 100 justices, you’re not packing the court in any ideological direction. You’re diluting the power of any individual justice—or any ideological bloc—to the point where it doesn’t matter nearly as much who gets appointed or when they retire or die. And unlike some reform proposals that would require a constitutional amendment, this one doesn’t. The Constitution doesn’t specify the size of the Supreme Court—Congress has changed it before, from as few as five justices to as many as ten.
Think about it this way: Right now, replacing one justice out of nine can shift the balance of the court from 5-4 one way to 5-4 the other way. That’s an enormous swing from a single personnel change. But if you have 100 justices, and cases are heard by randomized panels of 9, the ideological composition of any given panel becomes much more variable, and the overall composition of the court becomes much more stable over time.
No single president appointing one or two or even ten justices can fundamentally reshape the court. No single justice dying at an inopportune moment can throw constitutional law into chaos. The incentive for presidents to appoint ideological extremists diminishes because no individual justice will be important enough to matter that much.
This is the core principle: No single Supreme Court justice should ever be important enough to matter.
We shouldn’t care who any individual justice is. We shouldn’t have national freakouts when an 87-year-old justice refuses to retire. We shouldn’t have presidents salivating over the actuarial tables of aging justices. The system should be robust enough to absorb personnel changes without lurching wildly in one direction or another.
How would this work in practice? There are several possibilities.
One approach would be to elevate existing appeals court judges to the Supreme Court. This could happen all at once or gradually over time. Given that there are currently around 180 active appeals court judges, drawing from this pool wouldn’t be difficult from a numbers perspective.
Another approach would be a rotating system where appeals court judges serve temporary terms on the Supreme Court. This would actually align with how many other countries structure their highest courts and would create a more fluid relationship between the appellate and Supreme Court levels.
Either approach could be combined with term limits—say, 18 years—for Supreme Court justices. Term limits address a different but related problem: the arbitrary power that comes from lifetime appointments combined with advances in life expectancy. When the Constitution was written, justices served an average of about 15 years. Now they routinely serve 25, 30, or more. Term limits would make appointments more predictable and reduce the incentive for presidents to appoint the youngest possible ideologues who might serve for four decades.
There are additional benefits to this approach beyond diluting individual power.
First, the Supreme Court could actually hear more cases. The court has been steadily shrinking its docket for decades, from around 150 cases per year in the 1980s to around 60-70 today. With multiple panels operating simultaneously, the court could address far more legal questions, reducing the enormous backlog of important issues that never get resolved.
Second, it could help rationalize the federal circuit system. The Ninth Circuit, for example, is a behemoth that covers nine states plus Guam and the Northern Mariana Islands, with more than twice as many judges as the smallest circuits. With a reorganized Supreme Court drawing from an expanded pool of appellate judges, there would be an opportunity to realign the circuits into more sensible and equally-sized units.
Third, randomized panels would undermine the strategic timing that currently shapes which cases reach the court and when. Right now, advocacy groups wait for favorable court compositions before pushing major cases. The Dobbs decision that overturned Roe v. Wade didn’t happen by accident in 2022—anti-abortion activists had been deliberately holding back their most aggressive challenges for years, waiting until they knew they had a 6-3 anti-abortion majority locked in. With randomized panels drawn from 100 justices, that kind of strategic patience becomes pointless. You can’t game a court composition you can’t predict.
Now, there are legitimate questions and criticisms of this approach.
Some will argue that a 100-justice court would produce inconsistent rulings—different panels reaching different conclusions on similar issues. This is a real concern, but it’s manageable. En banc review could resolve circuit splits and ensure consistency on the most important questions. And frankly, we already have inconsistency—different circuit courts regularly reach contradictory conclusions that take years to resolve. Also the Supreme Court’s composition continually changes over time, and we still accept the results from different panels. No one sees a problem with relying on cases from half a century ago even though none of the Justices who made those rulings is even alive, let alone on the court, any more.
The most serious objection is political: any expansion would be seen as partisan court packing regardless of intent. This is true. Republicans would scream bloody murder if Democrats expanded the court by 91 justices, no matter how the new seats were filled. But Republicans are already screaming bloody murder about the courts whenever they don’t get their way. The question isn’t whether a reform will be controversial. The question is whether it will actually fix the problem.
The status quo isn’t neutral. A system where individual justices wield enormous power is a system that advantages whoever is best at the long game of judicial appointments. For the past several decades, that’s been Republicans.
Refusing to change a broken system because change might be controversial is just accepting permanent disadvantage while pretending to take the high road. Indeed, for anyone who (falsely) claims that this plan is “packing the court” (a la FDR), it’s the opposite. The Republicans and the Federalist Society spent decades plotting out things to get us where we are today, with a court that is “packed” in favor of their interests.
This is about unpacking the court.
The data from the Times analysis should alarm everyone who cares about an independent judiciary. When 92 percent of a president’s judicial appointees vote in his favor, that’s not impartial justice. That’s a rubber stamp. And when that pattern intensifies the higher you go in the judicial system, culminating in an 88% success rate at the Supreme Court, you have a system that’s been captured.
The solution isn’t to try to capture it for the other side. The solution is to build a system that’s resistant to capture in the first place.
Make the Supreme Court so large that no president can pack it. Make individual justices so interchangeable that none of them become celebrities or villains. Make the system boring. Make it work.
Because right now, we have a Supreme Court where everyone knows exactly who the swing vote is, where entire advocacy organizations are built around influencing specific justices, where presidential elections are decided partly on who might die in the next four years.
That’s not how a functional judicial system in a modern democracy should work. It’s time to unpack the court.
Last May we noted how Verizon was lobbying the Trump administration to eliminate rules making it easier to switch mobile providers (and bring your phone with you). And as usual with the pay-to-play Trump administration, the Trump FCC is tripping over itself to give Verizon what it wants.
The Trump FCC says it is eliminating rules requiring that Verizon unlock handsets 60 days after they are activated on its network. As part of its lobbying efforts, Verizon has falsely claimed that adhering to the 60 day unlocking requirements is somehow a huge boon to criminals, something Brendan Carr’s industry-coddling FCC parrots in the agency’s announcement:
“[The rule] required one wireless carrier to unlock their handsets well earlier than standard industry practice, thus creating an incentive for bad actors to steal those handsets for purposes of carrying out fraud and other illegal acts.”
This is, you’ll be surprised to learn, a lie.
Older folks might remember that Verizon used to be even more obnoxious on this subject of consumer freedom. Once upon a time, the company banned you from even using third-party apps (including basics like GPS), forcing you to use extremely shitty Verizon apps. It also used to be horrendous when it came to unlocking phones, switching carriers, and using the device of your choice on the Verizon network.
Two things changed that. One, back in 2008 when the company acquired spectrum that came with requirements that users be allowed to use the devices of their choice. And two, as part of merger conditions affixed to its 2021 acquisition of Tracfone. Thanks to those two events Verizon was dragged, kicking and screaming, into a new era of openness that was of huge benefit to the public.
Here you have both a major wireless company and U.S. regulators lying to your face, insisting that killing these basic protections help create a “uniform industry standard that can help stem the flow of handsets into the black market.”
Verizon used to sell phones that were already fully unlocked, but received a waiver from the first Trump administration in 2019 after the company again lied about how making it easier to switch carriers would make it harder to “prevent fraud.”
Ultimately, what Verizon (and its friends at the corrupt FCC) want is zero government oversight whatsoever, taking us back to the days when Verizon could impose any number of obnoxious restrictions designed to harm (device and app) competition and the public interest. They want to bring back the era where you were locked to one provider via locked phones and long-term contracts.
Given enough time and rope, they’ll inevitably push to be able to control what apps and services you can use (read: net neutrality). This desire to exploit telecom monopoly power operates a bit like the physics of running water; it only really goes one direction without functional government oversight.
Because U.S. journalism is a clown show, many outlets are taking Verizon and the FCC’s unsubstantiated claims of increased fraud and parroting them in headlines, like Reuters does here:
In exchange, Verizon obediently acquiesces to administration demands that executives remain quiet while the administration destroys democracy and civil rights, and occasionally makes an effort to try to be more sexist and racist. So far that corrupt symbiosis is working out well for both parties.
Welcome to year two of the unmitigated disaster that is RFK Jr. being in charge of Health and Human Services and its child agencies. To call Kennedy an anti-vaxxer is not remotely controversial any longer, and probably never was. To state that he’s a corrupt peddler of misinformation from which he has, likely still is, and will in the future profit should be equally uncontroversial. And if there is a single health issue on which Kennedy has staked his dubious claims more than any other, it certainly must be autism spectrum disorder.
Kennedy, and Trump right alongside him, have been all over the map when it comes to his claims about autism. Kennedy was one of those leading the charge for decades in claiming that thimerosal in childhood vaccines was responsible for rising rates in autism diagnoses. When thimerosal was removed from most childhood vaccines over two decades ago and autism rates didn’t decrease, rather than admitting they were wrong, Kennedy and his cadre of hapless buffoons simply pivoted to another vaccine ingredient: aluminum. That ingredient has also been deemed safe by countless studies and experts. You know, people who actually know what the hell they’re talking about.
Since then, Kennedy has discovered all sorts of other causes of the disorder. Male circumcision? Autism! Make American girthy again, I suppose. Use of Tylenol by pregnant women and/or for young children? Autism! Fevers are super hot these days, y’all. And, of course, he is still claiming it might be vaccines too, because why the hell not? It’s not like measles is everywhere or anything.
Kennedy’s alteration of the CDC page on vaccines and autism to suggest that there just might be a link between the two is particularly appropriate, as the FDA just also disappeared a webpage informing the public on the various snake oil style scams that are out there purporting to treat autism as well.
…under anti-vaccine Health Secretary Robert F. Kennedy Jr.—who has numerous ties to the wellness industry—that FDA information webpage is now gone. It was quietly deleted at the end of last year, the Department of Health and Human Services confirmed to Ars Technica.
The defunct webpage, titled “Be Aware of Potentially Dangerous Products and Therapies that Claim to Treat Autism,” provided parents and other consumers with an overview of the problem. It began with a short description of autism and some evidence-based, FDA-approved medications that can help manage autism symptoms. Then, the regulatory agency provided a list of some false claims and unproven, potentially dangerous treatments it had been working to combat. “Some of these so-called therapies carry significant health risks,” the FDA wrote.
The list included chelation and hyperbaric oxygen therapy, treatments that those in the anti-vaccine and wellness spheres have championed.
It should be obvious already that there is no evidence to suggest that these so-called autism therapies work in any way, shape, or form. That’s why the FDA had a page up warning against their use. In some cases, the danger in using them is no joke either.
Hyperbaric oxygen chamber use is probably the lesser of the two concerns. They won’t do anything for your autism, but they are typically found in facilities with staff who aren’t medical professionals and aren’t always trained well in their use generally. That’s how one five year old (!!!) that visited a wellness center that claimed to treat autism with hyperbaric chambers was incinerated inside it when a spark went off and all of that concentrated oxygen ignited. On the one hand, this person certainly doesn’t have autism any longer, though I don’t think that’s how the result is supposed to be achieved.
Then there’s chelation therapy, a process by which chemical injections into the body are performed, so that these chemicals can bind to metals within a person’s bloodstream, allowing them to be excreted through waste. Chelation actually does have legitimate uses, such as when someone has heavy metal poisoning, typically from mercury, lead, or arsenic. Using chelation therarpy to remove non-approved minerals, however, can have negative health outcomes, including death. And, of course, one of Kennedy’s minions is David Geier. Geier is an anti-vaxxer who joined HHS to “find” the cause of autism and has long been advocate for chelation therapy.
To address this nonexistent problem, anti-vaccine activists have touted chelation as a way to remove metals delivered via vaccines and treat autism. One of the most notorious of these activists is David Geier, whom Kennedy hired to the US health department last year to study the debunked connection between vaccines and autism. David Geier, along with his late father, Mark Geier, faced discipline from the Maryland State Board of Physicians in 2011 for, among other things, putting the health of autistic children at risk by treating them with unproven and dangerous hormone and chelation therapies. Mark Geier was stripped of his medical license. David Geier, who is not a scientist or doctor, was issued a civil fine for practicing medicine without a license.
So why is all of this being done? Money, of course! Kennedy has surrounded himself with these “health guru” snakeoil salesmen, both in government and out, and the lot of them have made buckets and buckets of money doing this sort of thing.
Generally, my experience is that people think RFK Jr. is one of two things. One common belief is that he’s a health savior, finally sticking it to a corrupt medical industry and telling the truth about the real causes of real disorders like autism. That’s incredibly wrong for a million different reasons. The other common belief is that Kennedy’s views on vaccines and health are super wrong, and that he’s very dumb, but also that he’s a true believer.
That’s wrong, too. This is a grift and always has been. A money-making scheme built on the backs of illness and death for those who listen to him, all while he collects a government paycheck. That he was confirmed as Secretary of HHS at all was profane. That our government has allowed all of his bullshit to go unchecked and unaddressed, however, is perverse.
The Supreme Court released a few decisions this week. All of them are important for the parties involved, and ultimately for everyone, but not to the immediate degree that some of the other pending cases are (like the tariffs case). But one of the decisions is worth calling out, not for the decision itself, but for what Justice Gorsuch said in his concurrence and how it bears on electronic surveillance and the crisis we find ourselves in where the Fourth Amendment (along with the rest of the Constitution) is providing none of its promised protection.
The decision at issue is Case v. Montana where a unanimous Court agreed that the Fourth Amendment did not actually apply. The justices agreed that earlier precedent still held: it will not violate the Fourth Amendment for police officers to enter a home without a warrant if they have an “objectively reasonable basis for believing” that someone inside needs emergency assistance. It is a rule that on its face does not necessarily look unreasonable. The problem, though, is that, over time, courts have found more and more rules describing circumstances when it is ok to supersede the Fourth Amendment’s own clear rule that the people should be “secure in their persons, houses, papers, and effects” from warrantless searches and seizures. As a result, over time the public has gotten less and less secure as fewer and fewer warrants have been needed by the government.
In his concurrence Justice Gorsuch agreed with the specific holding—that this sort of emergency rule exists, even in the shadow of the Fourth Amendment, and that it applied in this case—but he took some time ruminate on why it is a reasonable exception to the Fourth Amendment’s usual warrant requirement.
Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more Justices of this Court happen to believe that such entries are “reasonable”? Or is this exception more directly “tied to the law”? Carpenter v. United States, 585 U. S. 296, 397 (2018) (GORSUCH , J., dissenting). The answer, I believe, is the latter.
The reason it is “tied to the law,” he explains, is because such an “emergency” rule would have been recognized in common law, and that rule would forgive anyone’s trespass for the purpose of giving aid, including the police’s:
Today’s decision echoes both the common-law emergency aid rule and its limitations. It does so, to be sure, in the context of a law enforcement officer, not a private citizen, who sought to enter another’s home. But on this point as well the common law has spoken, long providing that officers generally enjoy the same legal privileges as private citizens. See, e.g., Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (C. P. 1765); 1 J. Chitty, Criminal Law 36 (1819); 2 M. Hale, Historia Placitorum Coronae 91 (1736). And, reflecting the common law here again, this Court has held that the Fourth Amendment usually permits officers lacking a valid warrant to “take actions that any private citizen might do without fear of liability.” Caniglia v. Strom, 593 U. S. 194, 198 (2021) (internal quotation marks omitted).
The emergency of course does not give them carte blanche, however. Police excused from needing a warrant to respond to an emergency “normally may do ‘no more’ than that.”
Contrary to Mr. Case’s argument, King v. Coate, Lofft. 73, 98 Eng. Rep. 539 (K. B. 1772), does not establish that the common law demanded an exacting showing of actual necessity to defeat a claim for trespass. True, Lord Mansfield explained that any necessity defense in that case would need to “stand the strictest test,” with the “necessity manifestly proved.” Id., at 75, 98 Eng. Rep., at 540. But Coate involved an effort to involuntarily “confin[e] a person in a madhouse” for two months, not a claim over a home entry. Id., at 74, 98 Eng. Rep., at 539. And it is hardly surprising that the common law would demand a good deal more to justify a serious deprivation of liberty than to excuse an invasion of property rights aimed at protecting human safety.
But what is most interesting about Gorsuch’s analysis is not how he applied the common law rule here but his larger argument that it is common law rules that should be applied to the Fourth Amendment analysis generally and not the line of precedent that has resulted since the Court decided Katz v. US in 1967. Those subsequent decisions have instead emphasized that whether there was a “reasonable expectation of privacy” is key to determining whether the Fourth Amendment has been violated. So while Katz itself had the immediate effect of expanding the protective reach of the Fourth Amendment, as Gorsuch had earlier complained in his dissent in the Carpenter v. US case, it set subsequent precedent down a path that largely narrowed it. As he wrote then:
Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence. Smith and Miller are only two examples; there are many others. Take Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), which says that a police helicopter hovering 400 feet above a person’s property invades no reasonable expectation of privacy. Try that one out on your neighbors. Or California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), which holds that a person has no reasonable expectation of privacy in the garbage he puts out for collection. In that case, the Court said that the homeowners forfeited their privacy interests because “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” Id., at 40, 108 S.Ct. 1625 (footnotes omitted). But the habits of raccoons don’t prove much about the habits of the country. I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager. Making the decision all the stranger, California state law expressly protected a homeowner’s property rights in discarded trash. Id., at 43, 108 S.Ct. 1625. Yet rather than defer to that as evidence of the people’s habits and reasonable expectations of privacy, the Court substituted its own curious judgment.
Even in a case like Carpenter, which the government basically lost, Gorsuch still had dissented from the decision apparently because he felt the rationale was so poisoned by the post-Katz reasoning that had subsequently emerged in so many cases since. As he wrote then:
In the end, what do Smith and Miller add up to? A doubtful application of Katz that lets the government search almost whatever it wants whenever it wants. The Sixth Circuit had to follow that rule and faithfully did just that, but it’s not clear why we should.
One unfortunate way that Fourth Amendment protection has been narrowed since Katz is in the context of electronic surveillance. In case after case it has been an uphill battle to challenge programs that give the government so much information about people’s lives. Indeed, as Gorsuch had earlier worried in Carpenter, as long as the rule excusing an intrusion into what the Fourth Amendment would protect hinges on whether it invades a “reasonable expectation of privacy,” then there is effectively no protection to be had, because it simply isn’t a durable standard. As his comment in this recent case about the “five or more Justices of this Court” harkened back to, it is subjectively dependent on the whims of the judges hearing the case. As he also wrote then:
Maybe, then, the Katz test should be conceived as a normative question. But if that’s the case, why (again) do judges, rather than legislators, get to determine whether society should be prepared to recognize an expectation of privacy as legitimate? Deciding what privacy interests should be recognized often calls for a pure policy choice, many times between incommensurable goods—between the value of privacy in a particular setting and society’s interest in combating crime. Answering questions like that calls for the exercise of raw political will belonging to legislatures, not the legal judgment proper to courts. See The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). When judges abandon legal judgment for political will we not only risk decisions where “reasonable expectations of privacy” come to bear “an uncanny resemblance to those expectations of privacy” shared by Members of this Court. Minnesota v. Carter, 525 U.S. 83, 97, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Scalia, J., concurring).
The case this week was not an electronic surveillance case. But it is worth noting that Gorsuch is still holding fast to his insistence that the common law is still the correct lens to use to evaluate potential Fourth Amendment violations, and not the “reasonable expectation of privacy” lens that has emerged since Katz.
It should come as no surprise that our decision today might accord with the accumulated learning of the common law—just as it should come as no surprise that our application of the Fourth Amendment ought to be informed by the common law’s lessons rather than mere intuition.
Because even if building off of Katz can sometimes result in even more protection, too often it has resulted in less, despite the Fourth Amendment’s articulated protection and history.
For a period, to be sure, the miasma created by this Court’s Katz era led some to think the scope of the rights guaranteed by the Fourth Amendment depend on nothing more than current judicial instincts about “reasonable expectations of privacy.” See Carpenter, 585 U. S., at 394–395, 405–406 (GORSUCH , J., dissenting). But that confusion cannot last forever, for no one should think the rights of Americans hang on so thin a thread. Instead, and as Justice Story recognized, the Fourth Amendment is made of sturdier stuff, representing “the affirmance of a great constitutional doctrine of the common law.” 3 Commentaries on the Constitution of the United States 748 (1833).
But his concurrence here may be more than just academic; it seems like it could be read to suggest that it may be time for litigants to take another swing at challenging the government’s warrantless electronic surveillance, especially given his callback to Carpenter, a case that implicated it. Because this time, he is intimating, the Court should get the analysis right, to find such surveillance anathema under the Fourth Amendment, by using more timeless common law principles than the courts since Katz have been free to use. Because even if the lower courts have been stuck with the “reasonable expectation of privacy” framework, the Supreme Court is not. And this concurrence reads as a clear call for the Court to revisit it.
Such challenges would also come not a moment too soon (assuming they are not already too late) given how the government’s data collection practices are now having immediate, direct, and horrific effect on people’s liberty writ large. It is not just personal information currently being seized but actual people, aided by the warrantless collection of their data. Or, in other words, and as it seems Gorsuch understands, what is happening is exactly what the Fourth Amendment was supposed to forestall. Thus it seems time for litigants to try again, to tee up before the Supreme Court the Fourth Amendment question that electronic surveillance implicates so that the Court can back up and try again, this time directing our subsequent Fourth Amendment jurisprudence down a different path from where it strayed post-Katz, and instead lead to one where the rights of Americans, particularly with respect to their electronic data, no longer “hang on so thin a thread.” It seems there’s already at least one justice on board with finding that the Fourth Amendment precludes what the government has been doing of late, and probably more.
Postscript: It is not the point of this post, but it is worth spending a moment to also digest Justice Sotomayor’s concurrence. In it she cautions that this decision should not be taken as a blanket rule that a police officer can always rush in without a warrant when they anticipate an emergency situation. Indeed, she notes, rushing in has the tendency to create the emergency, especially given the proliferation of firearms, and that danger should count heavily on the side of the ledger against the warrantless intrusion. Nevertheless, she continued, as in this case there can be factors counterbalancing those concerns and nevertheless justify the intrusion, which is why she joined the decision. But she was careful to emphasize in her concurrence that the rule here is not that all warrantless entrances in case of emergency are allowed; rather, the rule is that an assessment of whether there is an “objectively reasonable basis” for entering needs to always be made before such a warrantless intrusion can potentially be excused.
That conclusion, on the facts of this case, does not mean it will always be objectively reasonable for officers responding to a mental-health crisis to make a warrantless entry. A different mix of information [in this case here] might have led to the conclusion that the officers’ entry itself would put the occupant (and officers) at a greater risk of escalation and serious injury. Because the “objectively reasonable basis” test, as reaffirmed by the Court today, demands careful attention to the case-specific risks that attend mental-health crises, and requires officers to act reasonably in response, I join the Court’s opinion in full.
Ever since Trump took office and turned over immigration enforcement to someone who killed pets more often than she’s experienced moments of joy, the world has been shrinking. It America vs. everyone else at this point, with the Trump administration adding hefty amounts of imperialism to its heady blend of white Christian fascism.
To be non-white is to be less than 2/3rds of a human, which is something I thought we might have moved past during the last 100 years or so. But everything old is new again, especially the stuff that should just be the relics of a shameful history, rather than the latest thing getting gilded by the administration’s ex-Fox News turd polishers.
After an Afghan refugee shot some National Guard troops, Trump and his DHS placed an indefinite pause on immigration applications from a total of 19 countries, including (of course) Afghanistan, a country we hastily exited and turned over to the Taliban.
For no discernible reason, another 20 countries have been added to the immigration ban. Unsurprisingly, none of these countries are mostly white. Here’s NPR with the details on the administration’s latest burst of xenophobia:
U.S. Citizenship and Immigration Services, or USCIS, in a memo released Thursday, said it would pause the review of all pending applications for visas, green cards, citizenship or asylum from immigrants from the additional countries. The memo also outlines plans to re-review applications of immigrants from these countries as far back as 2021.
The list, which is composed mostly of countries in Africa, includes Angola, Nigeria, Senegal, Tanzania and Zimbabwe.
Wow. Imagine that. There’s a pattern developing here, and it’s exactly what you think it is. Here’s the full list of countries whose residents are subject to an indefinite ban on immigration applications:
Afghanistan, Angola, Antigua and Barbuda, Benin, Burkina Faso, Burundi, Chad, Congo, Cuba, Dominica, Equatorial Guinea, Eritrea, Gabon, Haiti, Iran, Ivory Coast, Laos, Libya, Malawi, Mali, Mauritania, Myanmar, Niger, Nigeria, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, The Gambia, Togo, Tonga, Turkmenistan, Venezuela, Yemen, Zambia, and Zimbabwe
Here’s what that looks like:
So, we’ve got more than half of Africa on the blocklist. It will never reach 100% because South Africa is home to some pretty feisty white colonials the president seems to personally appreciate despite (or because of) their white nationalist leanings.
Give it a few more months and the rest of that continent should be colored in. And while this government will pretend this is about national security and/or thwarting the international drug trade, it’s safe to assume any national security threat posed by autocrats Trump likes (Putin, Bukele, Orban, Erdogan) will be ignored to keep them, um, whitelisted. And any other nation that poses no threat one way or another but happens to be heavily populated by people with more skin pigmentation will find their immigration privileges suspended until at least January 2029.
We’re no longer part of the free world. We’re a nation that’s hastily and deliberately backsliding into the worst version of itself, thanks to the irrational hatred of those in power. We may not have forgotten our history, but we’re being ruled by people who want to doom us to repeat it.
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We all know that the US can be hypocritical, but this all seems a bit over the top.
Here’s what actually happened: the UK’s communications regulator Ofcom opened an investigation into whether X violated the country’s Online Safety Act by allowing Grok to create and distribute non-consensual intimate images (NCII). This isn’t some theoretical concern—as I detailed last week, Grok has been churning out sexualized images at an alarming rate, with users publicly generating “undressing” content and worse, in many cases targeting real women and girls. UK Technology Secretary Liz Kendall told Parliament that Ofcom could impose fines up to £18 million or seek a court order to block X entirely if violations are found.
Enter Sarah B. Rogers, the Trump-appointed Under Secretary of State for Public Diplomacy, who decided this was the perfect moment to threaten a close US ally. In an interview with GB News, Rogers declared:
I would say from America’s perspective … nothing is off the table when it comes to free speech. Let’s wait and see what Ofcom does and we’ll see what America does in response.
She went further, accusing the British government of wanting “the ability to curate a public square, to suppress political viewpoints it dislikes” and claiming that X has “a political valence that the British government is antagonistic to.”
This is weapons-grade nonsense, and Rogers knows it.
The UK isn’t investigating X because they don’t like Elon Musk’s politics. They’re investigating because Grok is being used to create sexualized deepfakes of real people without consent, including minors. Unless Rogers is prepared to stand up and argue that generating non-consensual sexualized imagery of real people—including children—is somehow quintessential “conservative speech” that the US must defend, she’s deliberately mischaracterizing what’s happening here. Is that really the hill the State Department wants to die on? That deepfake NCII is conservative speech?
As UK Prime Minister Keir Starmer’s spokesperson put it:
“It’s about the generation of criminal imagery of children and women and girls that is not acceptable. We cannot stand by and let that continue. And that is why we’ve taken the action we have.”
But here’s where the hypocrisy becomes truly spectacular: just this week, the Republican-led Senate unanimously passed the DEFIANCE Act for the second time. This legislation would create a federal civil cause of action allowing victims of non-consensual deepfake intimate imagery to sue the producers of such content. No matter what you think of that particular bill (I have my concerns about the specifics of how the bill works), it’s quite something when you have the State Department’s mafioso-like threat being issued to the UK if they take any action to respond to what’s happening on X at the same time the MAGA-led US Senate is voting unanimously to move forward on a bill that could have a similar impact.
So let’s review the US government’s position:
Banning an entire social media platform because China might access data (that they can already buy from data brokers anyway)? Perfectly fine, rush it through SCOTUS.
Allowing victims to sue over non-consensual sexualized deepfakes? Great idea, unanimous Senate support.
Another country investigating whether a platform violated laws against generating sexualized deepfakes of minors? UNACCEPTABLE CENSORSHIP, NOTHING IS OFF THE TABLE.
The MAGA mindset in a nutshell: performative nonsense when it fits within a certain bucket (in this case the “OMG Europeans censoring Elon”) no matter that it conflicts with stated beliefs elsewhere.
It’s important to consider all of this in light of the whole TikTok ban fiasco. When the Supreme Court blessed Congress’s decision to ban an app based on vague national security concerns—concerns so urgent that the Biden administration immediately decided not to enforce the ban after winning in court and which Trump has continued to not enforce for an entire year—America effectively torched its moral authority to criticize other countries for restricting platforms.
As I wrote when that ruling came down, we essentially said it’s okay to create a Great Firewall of America. We told the world that if you claim “national security” loudly enough, with sufficient “bipartisan support,” you can ban whatever app you want, First Amendment concerns be damned. Chinese officials have pointed to the US’s TikTok ban to justify their own internet restrictions, and now we’re handing authoritarian regimes another gift: the US will threaten retaliation if you try to enforce laws against platforms generating sexualized imagery of children.
When you blow up the principle that countries shouldn’t ban apps based on content concerns, you don’t get to suddenly rediscover those principles when it’s your billionaire’s app on the chopping block.
And make no mistake about what Rogers is really defending here. Grok continues to generate sexualized content at scale. Elon Musk continues running X like an edgelord teenager who knows he’s rich enough to avoid consequences, and women—especially young women—continue facing harassment and abuse via these tools.
The State Department’s threats aren’t about defending free speech. They’re about protecting Musk’s business interests. It’s about maintaining the double standard that got us here: American companies can do whatever they want globally, but foreign companies operating in America face existential threats for far less.
The UK is investigating potential violations of laws against generating sexualized imagery of minors and non-consenting adults. If the State Department thinks that’s “censorship,” they should explain why the Senate just voted unanimously to let victims sue over exactly that conduct.
Look, the UK’s investigation may or may not lead anywhere. Ofcom may find violations, or it may not. They may impose fines, or they may not. They may seek to block X, or they may not. But the one thing the US government absolutely cannot do with a straight face is threaten them for even considering it.
You don’t get to ban TikTok and then act outraged when other countries contemplate similar actions against American companies. You don’t get to pass unanimous legislation allowing lawsuits over deepfake NCII while your State Department calls investigations into that same deepfake NCII “censorship.” You don’t get to spend years claiming that national security justifies any restriction on platforms and then suddenly discover that “free speech” means other countries can’t enforce their laws.
There are no principles here, only sheer abuse of power. And Sarah Rogers’s threat to the UK makes that abundantly clear: the rules we claimed justified banning TikTok apparently only apply when we’re the ones doing the banning.
