On Monday, in an unsigned order, the justices returned State Board of Election Commissioners v. Mississippi State Conference of the NAACP and Turtle Mountain Band of Chippewa Indians v. Howe to the lower courts to be reconsidered in light of the Supreme Court’s recent decision in Louisiana v. Callais. In that 6-3 ruling from late April, the Court narrowed the ability of states to use race as a determining factor under the Voting Rights Act’s Section 2 in creating election districts.

In his majority opinion in Callais, Justice Samuel Alito wrote that any use of race in considering the composition of voting districts needed to meet the Court’s most demanding test: strict scrutiny. Justice Elena Kagan called the majority ruling “the latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”

The unsigned order will start the process of integrating the Court majority’s thinking from Callais into how the lower courts may consider when private parties can file claims of racial discrimination in election redistricting cases.

The question of private enforceability of the Voting Rights Act

The Turtle Mountain Band of Chippewa Indians and Mississippi State Conference of the NAACP cases were argued in different courts, but they dealt with same issue: Who can file a voting district discrimination claim under the Voting Rights Act or Section 1983, a powerful civil rights statute dating back to the Reconstruction era? In the Turtle Mountain Band case, the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe, and three Native American voters sued the North Dakota Secretary of State, alleging that new district election boundaries discriminated against their rights under the Voting Rights Act’s Section 2.

While a district court ruled in the Turtle Mountain Band’s favor, the Eighth Circuit Court of Appeals reversed that decision. The appeals court said that only the attorney general, and not private parties, could seek to enforce Section 2 violations. It also held that the plaintiffs could not cite Section 1983 as allowing them to pursue a claim in court.

In the Mississippi NAACP case, a three-judge panel for the United States District Court for Southern District of Mississippi Northern Division agreed with the plaintiffs that the state’s 2022 state legislature redistricting maps violated Section 2 of the Voting Rights Act as racial gerrymanders. The state appealed to the Supreme Court, claiming private parties may not sue to enforce Section 2 of the Voting Rights Act or seek Section 1983 action to pursue a claim.

The precedents about private enforceability

The big question in the Turtle Mountain Band and Mississippi NAACP cases is the fate of the precedents about the implied rights of private parties to pursue their own Voting Rights Act or Section 1983 enforcement actions. In Turtle Mountain’s writ of certiorari to the Supreme Court, the petitioner cited data from various sources that, nationally, private plaintiffs brought approximately 91 percent of all Voting Rights Act Section 2 challenges between 1982 and 2024. “Section 2 has always been enforced primarily by private litigants. The Eighth Circuit’s decision thus deprives voters in seven states of the ability to protect their own rights under Section 2,” they argued in their petition.

The petitioners also claimed that the Eighth Circuit’s ruling conflicted with the Supreme Court’s precedent of Morse v. Republican Party of Virginia (1996), where the Court agreed that a private right of action existed to enforce Section 10 of the Voting Rights Act. They also cited another precedent, Gonzaga v. Doe (2002), which allows for statutory tests for causes of private action under Section 1983.

Among the arguments against private enforceability of the Voting Rights Act is the decision from a divided Eighth Circuit in 2025 that cited its own recent precedent in Arkansas State Conference NAACP v. Arkansas Board of Apportionment (2023). In that decision, a divided panel upheld a district court ruling that “the Voting Rights Act lists only one plaintiff who can enforce Section 2: the Attorney General.”

North Dakota’s secretary of state Michael Howe, in his response to the Turtle Mountain Band’s petition, argued that the courts have not fully considered private enforceability questions. “Until very recently, few courts appear to have actually analyzed whether vote dilution claims are properly enforced by private parties, whether directly under Section 2 or through Section 1983. And long-held assumptions—especially about whether Congress intended to allow statutory claims to be privately enforced—have proven to be unfounded once the Court takes a closer look.”

Howe cited Medina v. Planned Parenthood (2025), where a divided Supreme Court decided that the Medicaid Act’s "any qualified provider" provision did not create a private right of action that individuals can enforce in federal court under Section 1983.

The Supreme Court’s order calls for the two lower courts to consider the Callais decision as a factor in deciding who can bring a Voting Rights Act or Section 1983 challenge about voting districts. The new stricter evidence requirements from Callais would also require higher levels of proof of present-day intentional racial discrimination to pursue a claim. For now, the two cases are starting over in the lower courts, but they may not stay there for long.

In his concurring opinion in Brnovich v. Democratic National Committee (2021), Justice Neil Gorsuch noted that “our cases have assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under Section 2. Lower courts have treated this as an open question.” While that question was not at the Court in Brnovich, it will be in front of justices soon.

As for Monday’s order, it was issued with objections from Justice Ketanji Brown Jackson. The two cases presented “only the question of Section 2’s private enforceability, which our decision in Louisiana v. Callais did not address,” Jackson wrote in Monday’s order. She would have affirmed the Mississippi decision and reversed the Turtle Mountain Band decision.

Scott Bomboy is the editor in chief of the National Constitution Center.

Oliver Wendell Holmes Jr. was born in Boston on March 8, 1841. His father, Holmes Sr., was famous throughout America and Europe for his poetry and medical prowess. Young “Wendell,” as Holmes Jr. was then known, grew up in the shadow of his celebrated father, fueling a lifelong rivalry between them. Navigating these paternal tensions, Holmes grew up as a member of Boston’s elite, learning history, mathematics, Greek, and Latin at a small private school run by Epes Dixwell, a family friend. Like so many of Boston’s young patricians, Holmes found himself at Harvard before long, matriculating in the fall of 1857.

In April 1861, the Civil War began when Confederate forces from South Carolina, the first state to secede from the Union, attacked the small Union garrison at Fort Sumter. Holmes was in his senior year at Harvard. Motivated by abolitionist sympathies and a strong sense of martial honor, Holmes left for Fort Independence to enlist in the Army. After briefly returning to Harvard to take his final exams and claim his degree, the young Holmes headed south as a lieutenant in the recently formed 20th Regiment.

Holmes was lucky to survive the Civil War. During his military service Holmes was shot in his stomach, chest, neck, and foot. The two musket balls lodged in his chest at the Battle of Ball’s Bluff were only a few inches from his heart and lungs. Each injury was life-threatening and required him to briefly travel home to recover before returning to the war. He went home for good in 1864, beleaguered and undoubtedly traumatized. As biographer Gary J. Achele notes, after the war, “[n]othing ever seemed quite right again” to Holmes. He was haunted by the “faces of his fallen comrades,” and attempted to “justify his life by achieving some great success.”

Before His Supreme Court Tenure

Holmes enrolled in Harvard Law School in the fall of 1864. In those days, legal education consisted largely of reading major treatises such as William Blackstone’s Commentaries and absorbing mountains of case law. As was not uncommon, Holmes left Harvard after two years to clerk for Robert Morse, a well-respected lawyer.

After passing the bar in March 1867, Holmes devoted much of his time to his law practice but remained strongly drawn to scholarship. Holmes seized the chance to become coeditor of the American Law Review, publishing six essays and around 60 notes over his three-year tenure. His first groundbreaking intellectual work came in 1880 when he was asked to deliver the Lowell Lectures, which he famously published under the title The Common Law. In analyzing the history of the common law, Holmes began to develop a philosophy of law often referred to as “legal realism”: the idea that law is shaped as much by how it operates in practice as by statutes and formal legal rules. In Holmes’ words, “[t]he felt necessities of the time … have a good deal more to do than the syllogism in determining the rules by which men should be governed.”

The Common Law earned Holmes a reputation as a legal scholar. He briefly accepted a post as a professor at Harvard Law School before being appointed to the Massachusetts Supreme Judicial Court in 1882. Alongside his judicial duties, Holmes continued to publish articles and speeches. Perhaps the most important of these came in 1897 in a dedication address at Boston University School of Law entitled The Path of the Law. In the speech, Holmes asked his audience to consider law from the perspective of a hypothetical “bad man.” “If you want to know the law and nothing else,” Holmes argued, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.” This thought experiment was meant to dispel the “confusion between morality and law,” and offer to lawyers the ability to see the law as mere “prophecies of what the courts will do in fact.”

In 1899, Holmes succeeded Walbridge A. Field as chief justice of the Massachusetts Supreme Judicial Court. Holmes had been slowly increasing his workload, and, by this point, he was a seasoned jurist. His time in the post did not last long, however, as he was soon considered for a seat on the U.S. Supreme Court.

Holmes on the Supreme Court

In June 1902, Justice Horace Gray announced his plan to retire. Gray had himself served on the Massachusetts court where Holmes was then serving as chief justice. Holmes was recommended to President Theodore Roosevelt by Sen. Henry Cabot Lodge, who wrote to the president that “he is our kind right through.” It took a meeting between Holmes and Roosevelt at Oyster Bay to seal the deal. Oliver Wendell Holmes Jr. took the oath of office to join the Supreme Court in December of 1902.

In the 1905 Supreme Court case, Lochner v. New York, the Court invalidated a state law limiting work hours for bakers. The majority relied on “liberty of contract,” the right of an individual to freely sell his or her labor. In one of the most famous dissents in the Court’s history, Justice Holmes argued for judicial restraint and claimed the majority had read their own economic views into the Constitution. To Justice Holmes, his own “agreement or disagreement” with a given opinion “has nothing to do with the right of a majority to embody their opinions in law.” The Constitution, argued Justice Holmes, is not “intended to embody a particular economic theory” but is rather “made for a people of fundamentally differing views.”

During World War I, the Court upheld three convictions for anti-war speech under the 1917 Espionage Act. Justice Holmes wrote all three majority opinions, reasoning in Schenck v. United States that such speech presented a “clear and present danger” of obstructing military recruitment. Yet when a similar question was soon presented in Abrams v. United States, this time involving communist anti-war leaflets, Holmes did something remarkable: He changed his mind. As historian Thomas Healy has uncovered, through conversations with up-and-coming scholars Harold Laski and Felix Frankfurter, Holmes reconsidered his position, reimagining First Amendment jurisprudence in the process.

Justice Holmes’ Abrams dissent provided a powerful rationale for robust free speech protections based on the marketplace of ideas. “[W]hen men have realized that time has upset many fighting faiths,” wrote Justice Holmes, “they may come to believe … that the ultimate good desired is better reached by free trade in ideas.” The “best test of truth” does not come from government intervention but the “power of the thought to get itself accepted in the competition of the market.” In the estimation of Robert Post, Justice Holmes’s opinion “virtually invents First Amendment doctrine.”

The darkest blot on Justice Holmes’s legacy came in 1927 with the case Buck v. Bell. Justice Holmes wrote the majority opinion upholding a Virginia law allowing forced sterilization in mental health institutions. The decision is indefensible, even as a product of its time. As Victoria Nourse notes, by 1927 the “intellectual heyday” of eugenics had already passed, and multiple lower courts had rejected “eugenic sterilization.” The Justice’s opinion is, quite simply, lawless, motivated by prejudice rather than constitutional principle. It is hard to ever fully separate the rest of his life and career from the tragedy of Buck v. Bell.

Oliver Wendell Holmes Jr. retired from the Court in 1932, stating in his brief letter of resignation that “the time has come and I bow to the inevitable … My last word should be one of grateful thanks.” He passed away three years later. Scholarly interest in Holmes has hardly waned in the near century since his death. Once almost universally venerated, Holmes has been endlessly debated—labelled arrogant, heroic, nihilistic, and genius. In the words of G. Edward White, Holmes has been “all things to all commentators.” A flawed man who attempted to vindicate his survival of war by making something of his life, Holmes unquestionably succeeded in leaving his mark.

Tristan Worsham is a National Constitution Center content fellow and a graduate of the University of California, Berkeley.

References:

Abrams v. United States, 250 U.S. 616 (1919)

Gary J. Achele, Oliver Wendell Holmes, Jr. (Twayne Publishers, 1989).

Buck v. Bell, 274 U.S. 200 (1927)

Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (Metropolitan Books, 2013)

Oliver Wendell Holmes Jr., The Common Law (Little, Brown, and Company, 1881).

Oliver Wendell Holmes Jr.,  “The Path of the Law,” Harvard Law Review 10, no. 8 (1897): 457-478.

Lochner v. New York, 198 U.S. 45 (1905)

David Luban, “The Bad Man and the Good Lawyer: A Centennial Essay on Holmes's The Path of the Law,” New York University Law Review 72 (1997): 1647-1543.

Victoria Nourse, “Buck v. Bell: A Constitutional Tragedy from a Lost World,” Pepperdine Law Review 39 (2011): 101-117.

Robert Post, “Writing the Dissent in Abrams,” Seton Hall Law Review 51 (2020): 21-39.

Schenck v. United States, 249 U.S. 47 (1919)

Edward White, “Looking at Holmes in the Mirror,” Law and History Review 4, no. 2 (1986): 439-465.

Currently, one case in front of the justices as part of its interim or emergency docket is the fate of mail-order access to mifepristone, a medication used as part of a regimen to end pregnancies. Two current emergency petitions, GenBioPro v. Louisiana and Danco Laboratories v. Louisiana, are under consideration this week on an expedited basis.

While merits cases at the Supreme Court take time to develop, the expedited mifepristone cases are typical of the current state of the emergency docket. Critics of the growing number of emergency applications to the Court refer to this set of cases as the Court’s “shadow docket,” a term coined by law professor William Baude in 2015 to describe what he called “a range of orders and summary decisions that defy its normal procedural regularity.” Not everyone agrees with that term and its definition, but the mifepristone cases will be front and center in the docket debate.

The GenBioPro v. Louisiana and Danco Laboratories v. Louisiana petitions come in the aftermath of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which sent the issue of abortion regulation back to the states. After Dobbs, the Biden administration allowed the Food and Drug Administration (FDA) to expand access to mifepristone through online prescriptions without an in-person doctor visit. In October 2025, the state of Louisiana sued the FDA, claiming the medication had not been adequately tested and resulted in abortions considered as illegal in the state.

On May 1, 2026, the Fifth Circuit Court of Appeals issued a ruling in Louisiana v. FDA that agreed with Louisiana’s claims; however, three days later, the Supreme Court justice with responsibility for the Fifth Circuit, Samuel Alito, granted an administrative stay, which allowed continued mail access to mifepristone while the Court considered the matter. Two drugmakers, Danco Laboratories and GenBioPro, claimed various harms from the Fifth Circuit ruling.

Merits cases versus Non-Merits matters

Many people are familiar with what are considered “merits” cases as considered by the Supreme Court. These cases come from several different paths to the Court and typically involve a disagreement, or split, between decisions by federal circuits and state supreme courts, alleged violations of the Constitution and its precedents, or in some cases, disagreements between states. Public arguments are heard at the Supreme Court after briefs are filed by the parties involved and friends of the court. And the Court hands down its decisions after internal deliberations, with opinions attached.

Non-merits matters are all other appeals and requests considered by the Court that are not merits cases. The most common of these are petitions for writs of certiorari, or requests made to the Court to hear appeals. Various estimates of these “cert” petitions range from 4,000 to 8,000 per year, with 80 or so accepted by the Court for arguments each term. The Court also handles procedural orders about how cases are filed and time extensions for arguments.

The other major part of the Court’s non-merits matters docket are emergency orders involving requests for injunctive relief and stays. For parties seeking injunctions, they may seek a preliminary injunction, which is issued early in the legal process to preserve the status quo as a case makes its way through the courts and develops a record. A stay is an action taken by a court to pause a government action. Parties asking for a stay pending appeal often want the Supreme Court to pause an injunction issued by the lower courts while the appeals case is litigated. These are seen as temporary relief actions, unlike permanent injunctions that remain in place until a court decides a case on the merits.

According to the Congressional Research Service, the interim docket consists of cases involving preliminary injunctions and stays pending appeal. If parties on the interim docket seek expedited consideration claiming imminent practical harm, the cases are considered “emergency matters” that have been labeled as the "emergency docket or, by some scholars and commentators, the “shadow docket.”

Cases on the Interim Docket

One of the recent controversies over the interim or emergency docket is the increase of cases using that pathway to the Supreme Court.

In the current term, 51 significant emergency appeals were submitted to the Court, according to a list compiled by SCOTUSblog. As of May 12, 2026, seven applications were pending, including two appeals seeking “to pause a ruling from the U.S. Court of Appeals for the 5th Circuit preventing mifepristone from being prescribed by telemedicine and delivered by mail.” The remaining appeals are part of cases that were argued in front of the justices on the temporary protected status of immigrants, the use of presidential powers to remove executive officers, and the redistricting of congressional election maps.

On May 11, 2026, three interim docket cases involving Alabama’s redistricting maps were decided as moot by Justice Clarence Thomas. Among the other applications this term, per SCOTUSblog, the federal government prevailed in Trump v. Orr (about transgender and nonbinary identification language on passports) and Trump v. Boyle (about the firing of three Consumer Product Safety Commission members).

The frequent appearance of cases on the interim docket in the second Trump administration has been much discussed. In July 2025, Erwin Chemerisnky of UC Berkeley School of Law noted that the number of interim docket cases grew from 44 in the last year of the Biden administration to 113 during the first six months of the second Trump administration.

In his book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” Steve Vladeck of the Georgetown University Law Center argued that the use of the interim docket has led to decisions from the Court with a significant impact on major cases with the benefit of full briefings, public arguments, and full written opinions from the justices.

In an online discussion with Vladeck in 2024, Trevor N. McFadden, a federal district judge of the United States District Court for the District of Columbia, noted that the use of the term “shadow docket” was problematic. “Using the term shadow docket when we’re really talking about the Court’s emergency docket is both confusing — because it’s over-inclusive — and misleading, because it conjures images of something sinister or foreboding. In reality, most courts have a docket to handle matters that require expedited treatment,” McFadden said.

To be sure, the debate over the interim docket, and the appropriate names of actions taken under its jurisdiction, will not be going away soon. In March 2026, Justices Ketanji Brown Jackson and Brett Kavanaugh spoke at an event in Washington when the subject of the interim docket came up, including in the context of the mifepristone cases.

According to an account from the New York Times, Kavanaugh said emergency requests were “not a new phenomenon” and had been growing during the Biden administration. Kavanaugh cited an emergency request by the Biden administration to keep mifepristone access in place during the appeals process.

Jackson believed the Trump administration was using the docket to approve new policies, citing the mifepristone cases. “I just feel like this uptick in the court's willingness to get involved ... is a real unfortunate problem," Jackson told an audience, according to various reports. “It's not serving the court or this country well.”

Scott Bomboy is the editor in chief of the National Constitution Center.

The Court started the current term on October 6, 2025, hearing arguments in Villarreal v. Texas, where the justices considered a Sixth Amendment case about an attorney from talking to his client during an overnight recess. It concluded on April 29, 2026, with Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a dispute over generic drug labeling and patent infringement.

The justices heard a total of 58 cases in seven months with 29 opinions released. The list of major cases already decided includes opinions on conversion therapy, the Voting Rights Act, and the president’s tariffs powers. Remaining are at least 10 major decisions, including birthright citizenship, mail-in voting, transgender athletes’ rights, campaign finance, the ability of the president to fire federal officers, the Fourth Amendment, and immigration. Here is a list of the major cases decided and those still to come.

Major Cases Decided

Tariffs

Learning Resources v. Trump

In a 6-3 decision, the Court ruled that the International Emergency Economic Powers Act (IEEPA) does not authorize the president to impose tariffs. In his majority opinion, Chief Justice John Roberts wrote that “against that backdrop of clear and limited delegations, the Government reads IEEPA to give the president power to unilaterally impose unbounded tariffs and change them at will. That view would represent a transformative expansion of the President’s authority over tariff policy.”

In the main dissent, Justice Brett Kavanaugh believed President Donald Trump could use IEEPA “in light of the statutory text, longstanding historical practice, and relevant Supreme Court precedents.”

Voting Rights Act

Louisiana v. Callais

A divided Supreme Court in a 6-3 decision narrowed the ability of states to use race as a determining factor in creating election districts. The decision focused on Section 2 of the Voting Rights Act of 1965 (or VRA), a landmark achievement of the Civil Rights Movement.

In his majority opinion in Callais, Justice Samuel Alito wrote a Louisiana law went against the purpose of the VRA. “Because the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8, and that map is an unconstitutional racial gerrymander,” Alito said.

In her dissenting opinion, Justice Elena Kagan was deeply skeptical of the majority opinion, which Kagan labeled as the “latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”

Conversion Therapy

Chiles v. Salazar

Colorado and 20 other states have laws prohibiting mental health professionals from using conversion therapy on minors because it is considered unsafe and ineffective. The purpose of conversion therapy is to change a person’s gender identity or sexual orientation. Talk therapy with that purpose fell under Colorado’s prohibition.

In an 8-1 decision, Justice Neil Gorsuch held that Colorado’s law regulated speech based on viewpoint, violating the First Amendment. “The First Amendment stands as a bulwark against any effort to prescribe an orthodoxy of views, reflecting a belief that each American enjoys an inalienable right to speak his mind and a faith in the free marketplace of ideas as the best means for finding truth,” he concluded.

In her dissent, Justice Ketanji Brown Jackson said “Colorado’s decision to restrict a dangerous therapy modality that, incidentally, involves provider speech is presumptively unconstitutional. In concluding otherwise, the Court’s opinion misreads our precedents, is unprincipled and unworkable.”

Cases Argued and Awaiting Decisions

Transgender Athletes

Little v. Hecox and West Virginia v. B.P.J.

In two cases scheduled heard separately on the same day, the Court considered the extent to which gender identity and biological assignment at birth can be used as factors in scholastic sports competitions. In Little, the Idaho Legislature enacted the Fairness in Women’s Sports Act, which bases competition on biological assignment at birth. The Ninth Circuit Court of Appeals ruled the law violated the 14th Amendment Equal Protection rights of “transgender women and girls.” In the case from West Virginia, a parent sued on behalf of her child, B.P.J., arguing that a state law banning biological boys who identify as girls from competing on girls’ teams was unconstitutional. The district court ruled in favor of the state on Equal Protection Clause and Title IX grounds. A divided Fourth Circuit Court of Appeals overturned the district court decision in favor of the student on the Title IX claim and ruled against the state on the Equal Protection questions.

The Second Amendment

Wolford v. Lopez

The state of Hawaii passed a law making it a crime for a person with a concealed carry permit to carry a handgun on private property unless they have been "given express authorization to carry a firearm on the property by the owner, lessee, operator, or manager of the property." The Ninth Circuit Court of Appeals ruled in favor of the state. The petitioners cite a Second Circuit ruling on the same question regarding a similar law that the court struck down.

United States v. Hemani

On a different Second Amendment question, the Fifth Circuit Court of Appeals invalidated a federal law that prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” concluding that the law violated the Second Amendment in most instances. The Solicitor General argued that the Supreme Court should uphold the law upheld because of “narrow circumstances in which the government may justifiably burden” firearms possession, including when “habitual illegal drug users with firearms present unique dangers to society.”

Presidential Removal Powers

Trump v. Slaughter

The Court is considering a dispute over the ability of the president to fire Federal Trade Commission (FTC) members. In March 2025, President Trump removed Rebecca Kelly Slaughter from her position as a commissioner for the FTC. Slaughter countered by suing Trump and others, claiming her dismissal violated the terms of the Federal Trade Commission Act.

The U.S. District Court for the District of Columbia found that Slaughter’s firing violated a precedent set in Humphrey’s Executor v. United States (1935), which established the constitutionality of the FTC’s removal protections. The questions at the Court are:

1) Whether the statutory removal protections for members of the FTC violate the separation of powers and, if so, whether Humphrey’s Executor v. United States should be overruled.

(2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

Trump v. Cook

The Supreme Court also will decide if it should stay a district court ruling preventing President Trump from firing Lisa Cook, a member of the Federal Reserve Board of Governors. Cook started serving a 14-year term in the board in 2023 and President Trump tried to fire Cook this year, alleging mortgage fraud by Cook before her appointment. Under the Federal Reserve Act, the president can only remove members of the Federal Reserve Board “for cause.”

Birthright Citizenship

Barbara v. Trump

In June 2025, the Supreme Court first considered the birthright citizenship question in the context of national injunctions related to President Trump’s executive order on birthright citizenship. The justices did not rule on the merits of Trump’s order then. But now the Court will consider the executive order’s claim that the Citizenship Clause of the 14th Amendment was adopted to confer citizenship on formerly enslaved people and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens. Wong Kim Ark and other precedents have held that a child born in the United States is entitled to all the rights and privileges of citizenship regardless of their nationality, with limited exceptions.

Absentee Federal Election Ballots

Watson v. Republican National Committee

This case considers whether a federal law or a state law determines when absentee federal election ballots can be counted if they are mailed before election day and arrive late. Under Mississippi’s statute, it requires that ballots for federal offices be cast— marked and submitted to election officials—by that day. Mississippi allows mail-in absentee ballots to be counted if they are received by election officials within 5 business days after election day. The Fifth Circuit Court of Appeals held that the federal election-day statutes require ballots be cast by voters and received by election officials by election day and Mississippi’s law was pre-empted by the federal statute.

Cellphone Data Access

Chatrie v. United States

A Virginia man claims a detective did not reasonably obtain the search warrants required by the Fourth Amendment to track down his cellphone location data. The government later used this data to convict him of a crime. Law enforcement had asked for a geofence warrant from a magistrate. Geofence warrants set a distance from a certain physical point from which service providers must provide data to law enforcement about mobile phones users’ activities.

While the Court is only asked in Chatrie to consider the specific execution of the geofence warrant in the case, its decision could shape the Fourth Amendment protections established for cellphone users in Carpenter v. United States (2018).

Immigration

Mullin v. Doe

In the case, the Supreme Court will decide whether the Trump administration can end the Temporary Protected Status (TPS) program for approximately 6,100 Syrian and 350,000 Haitian nationals.

The administration argues that federal law bars courts from reviewing any Department of Homeland Security determination regarding TPS terminations. The Syrian challengers argued that the DHS needed to follow the rules set by Congress, while attorneys for the Haitian challengers argued that the decisions were based on “racial animus towards non-white immigrants and bare dislike of Haitians, in particular.”

Scott Bomboy is the editor in chief of the National Constitution Center.

Sumner was born in Boston on Jan. 6, 1811, as the eldest of nine children. His father, Charles Pinckney Sumner, was a lawyer and county sheriff who harbored antislavery views unusual for his time and class. After graduating from Harvard College in 1830 and Harvard Law School in 1833, Sumner spent two years traveling and studying in Europe before returning to Boston to practice law.

Sumner initially devoted himself to reform causes rather than electoral politics, writing and lecturing on prison conditions, public education, and the peace movement. In 1845, he delivered a Fourth of July address in Boston attacking the Mexican-American War as an instrument of slaveholder expansion. “War crushes with bloody heel all justice, all happiness, all that is Godlike in man,” he said. “In our age there can be no peace that is not honorable; there can be no war that is not dishonorable.”^[2] Sumner aligned first with the Conscience Whigs and then with the Free Soil Party before a coalition of Free Soilers and Democrats elected him to the U.S. Senate in 1851.

Sumner’s Political Career

Sumner arrived in the Senate as part of a Free Soil-Democratic coalition and quickly established himself as the chamber’s most unsparing antislavery voice. In his 1852 speech, “Freedom National, Slavery Sectional,” he argued that the Constitution nowhere recognized property in man and that slavery was a purely local institution with no legitimate claim on federal protection, declaring himself “painfully convinced of the unutterable wrongs and woes of slavery” and that it could “find no place under our National Government.”^[3] When Congress passed the Kansas-Nebraska Act in 1854, repealing the Missouri Compromise and opening new territories to slavery, Sumner helped organize the opposition that coalesced into the Republican Party.

On May 19, 1856, Sumner rose in the Senate to deliver what would become the most consequential speech of his career. “The Crime Against Kansas” was a two-day assault on the pro-slavery violence convulsing the territory and the senators whom he held responsible. He described Southerners’ effort to force slavery on Kansas as “the rape of a virgin Territory” and mocked Sen. Andrew Butler of South Carolina for taking as a mistress “… the harlot, Slavery.”^[4] Two days later, Butler’s cousin, Rep. Preston Brooks, entered the Senate chamber and violently assaulted Sumner with a metal-tipped cane, leaving him with such severe neurological damage that he did not return to Congress for three years.

During the Civil War, Sumner argued from the first day of fighting that Lincoln had the authority to order emancipation under martial law. He met with the president frequently, pressing him to abandon proposals for gradual emancipation and to make the abolition of slavery the war’s central objective. In an 1864 letter to Lincoln, he wrote that “freedom once given could not be reclaimed, & that the country was solemnly bound to the immediate present freedom of every slave in the rebel states.”^[5] As chairman of the Senate Foreign Relations Committee, he drew on his long friendships with British liberals Richard Cobden and John Bright to navigate the Trent Affair, persuading Lincoln to release two captured Confederate diplomats and defuse a crisis that might have brought Britain into the war on the Confederate side.^[6]

Activities during Reconstruction

The Reconstruction era (1865-77) brought Sumner to the height of his influence and the outer limits of his radicalism. He fought for full civil and voting rights for freed people, insisting that the Constitution, read alongside the Declaration of Independence, demanded for African Americans the protections afforded to any citizen. His guiding conviction, which historian Eric Foner identified as central to the entire Reconstruction project, was that the federal government was “the custodian of freedom,” a direct rebuke to the antebellum view that states alone determined the rights of their citizens.^[7]

The culminating fight of Sumner’s career was the Civil Rights Act of 1875, which he had first introduced in 1870 and described as the “crowning work” of Reconstruction.^[8] The bill forbade racial discrimination in all forms of public accommodation — transportation, hotels, theaters, schools, and cemeteries — and criminalized the exclusion of Black citizens from jury duty. It was the most ambitious civil rights legislation the country had ever seen. One critic argued that Sumner’s legislation would force “social equality with an inferior race,” to which Sumner replied that if his belief in liberty and equality as the “God-given birthright of all men” was an error, then “it is an error which I love; if this be a fault, it is a fault which I shall be slow to renounce.”^[9]

Before he died in March 1874, Sumner’s final words to Frederick Douglass and others at his bedside were, “Don’t let the bill fail.”^[10] Thousands of mourners paid their respects at the Massachusetts State House, where his coffin rested before his funeral at King’s Chapel; the procession then followed his flower-draped coffin for the five-mile walk from Beacon Hill to Mount Auburn Cemetery. Among his pallbearers were Henry Wadsworth Longfellow, Oliver Wendell Holmes, Ralph Waldo Emerson, and John Greenleaf Whittier.

Congress passed a weakened version of the Civil Rights Act the following year, though it stripped out all references to equal and integrated education to make it more palatable to white voters. In 1883, the Supreme Court struck down the act’s public accommodations provisions entirely, ruling that the 14th Amendment restrained only the states, not private individuals. It would take another century and another civil rights movement to continue what Sumner had started.

Anna Salvatore is a Content Fellow at the National Constitution Center and a graduate of Princeton University.

Notes

^[1] Charles Sumner, quoted in C.N. Douglas, comp., Forty Thousand Quotations: Prose and Poetical (New York: Halcyon House, 1917), Bartleby.com, https://www.bartleby.com/lit-hub/forty-thousand-quotations-prose-and-poetical/authors/charles-sumner/.

^[2]  Excerpt taken from Charles Sumner, The True Grandeur of Nations: An Oration Delivered before the Authorities of the City of Boston, July 4, 1845 (Boston: American Peace Society, 1845).

^[3] Charles Sumner, “Freedom National, Slavery Sectional,” speech delivered in the United States Senate, August 26, 1852, EmersonKent.com, https://www.emersonkent.com/speeches/freedom_national_slavery_sectional.htm.

^[4] Charles Sumner, “The Crime Against Kansas,” speech delivered in the United States Senate, May 19–20, 1856, in The Works of Charles Sumner, vol. 4 (Boston: Lee and Shepard, 1875).

^[5] Charles Sumner to Abraham Lincoln, November 20, 1864, Manuscript Division, Library of Congress, reproduced at United States Capitol Visitor Center, https://www.visitthecapitol.gov/artifact/letter-charles-sumner-abraham-lincoln-november-20-1864.

^[6]  “Charles Sumner,” Encyclopaedia Britannica, https://www.britannica.com/biography/Charles-Sumner.

^[7] Eric Foner, “The Strange Career of the Reconstruction Amendments,” Bloomberg, August 17, 2010, https://ericfoner.com/articles/08172010bloomberg.html.

^[8] “Civil Rights Act of 1875,” Encyclopedia.com, https://www.encyclopedia.com/social-sciences-and-law/law/law/civil-rights-act-1875.

^[9] Charles Sumner, speech on the Civil Rights Bill, United States Senate, 1866, autograph quotation reproduced at Raab Collection, https://www.raabcollection.com/american-history-autographs/sumner-famous-speech-civil-rights-bill.

^[10] “Landmark Legislation: Civil Rights Act of 1875,” United States Senate Historical Office, https://www.senate.gov/artandhistory/history/common/generic/CivilRightsAct1875.htm, citing David Donald, Charles Sumner and the Rights of Man (New York: Alfred A. Knopf, 1970).

Stevens was born in Danville, Vermont on April 4, 1792 to Baptist parents from Massachusetts. He was named for Tadeusz “Thaddeus” Kościuszko, a Polish general who had moved to North America to serve in the Continental Army in 1776. When Stevens’ father abandoned the family under mysterious circumstances, his mother moved the family to a neighboring town and enrolled Stevens in the Caledonia Grammar School.

Stevens’ early career

After graduation, Stevens moved to western Vermont to study at Burlington College. His time there was cut short by the arrival of Army troops during the War of 1812, who seized the college’s main building to defend against a potential invasion from British Canada.^[2] He transferred to Dartmouth College for his sophomore year, where he participated in a conference on the subject: “Which has been more deleterious to society—war, luxury, or party spirit?” A roommate there recalled that he “was then inordinately ambitious, bitterly envious of all who outranked him as scholars, and utterly unprincipled,” though he admitted that Stevens showed unusual promise as an extemporaneous debater.^[3]

Stevens studied law in Vermont; once he passed the bar exam, he opened a law practice in Gettysburg, Pennsylvania in 1816. Of the first 10 local cases to reach the state supreme court after he had begun his practice, Stevens was involved in all 10 and won nine.

Stevens came to regret his participation in Butler v. Delaplaine, an 1821 case in which he helped Maryland enslaver John Delaplaine reclaim Charity Butler and her daughters. According to biographer Hans L. Trefousse, he had not taken a stand on “the slavery question” until the case, but “shortly afterward, he denounced the ‘peculiar institution’” and offered his services to those escaping from slavery.^[4] His toast at an Independence Day celebration on July 4, 1823 made his conversion clear: “The next President—May he be a freeman, who never riveted fetters on a human slave.”^[5]

Stevens’ first major political crusade was not slavery, but anti-Freemasonry, a populist movement against the Masons—an exclusive fraternal order—that had coalesced into an organized political party by the mid-1820s. His prominence in the movement helped him gain election to the Pennsylvania House of Representatives in 1833, where Stevens was the champion of a plan to introduce free public schooling to Pennsylvania. But his aggressive 1835 investigation of high-ranking Masons in the state helped cost him reelection to the House the following year.

His involvement with the abolition of slavery

The abolitionist movement was young but steadily growing in the mid-1830s, and Stevens became an increasingly vocal opponent of the “peculiar institution” he had defended as a young lawyer. In 1837, he refused to endorse the new Pennsylvania constitution because it would disenfranchise Black men. And in 1842, after moving from Gettysburg to Lancaster, he turned a hidden cistern outside his house into a station on the Underground Railroad. Yet Stevens would not call for the immediate and universal abolition of slavery until the outbreak of the Civil War, as he argued that the Constitution still protected slave states’ internal affairs from federal interference.

In 1848, Stevens was elected to the U. S. House of Representatives from Pennsylvania’s 8th congressional district. He actively opposed the Compromise of 1850, a package of federal laws that would admit California as a free state in exchange for permitting the residents of new states Utah and New Mexico to decide whether to permit slavery. It would also settle a Texas boundary dispute, abolish the slave trade in Washington, D.C., and provide for passage of the Fugitive Slave Law of 1850. While the Compromise’s supporters hoped that it would avert a sectional crisis over slavery’s expansion, Stevens warned it would be “the fruitful mother of future rebellion, disunion, and civil war.”^[6]

Stevens refocused on his law practice in Lancaster when he was not reelected for the 1852 term. Upon his return to Congress in December 1859, this time as a Radical Republican, he leapt quickly into the “rapid-fire exchange of insults and general acrimony between Southern representatives and House Republicans.”^[7]

Stevens entered the Civil War convinced that the Confederacy had forfeited any constitutional protections by taking up arms. As chairman of the House Ways and Means Committee, he introduced a bill for a war loan within a day of his appointment. In July 1861, Stevens secured passage of an act to confiscate rebel property, including the enslaved, and in November he introduced an unsuccessful resolution to free all enslaved persons outright. “Abolition—Yes! abolish everything on the face of the earth, but this Union,” he declared in 1862. “Free every slave—slay every traitor—burn every rebel mansion if these things are necessary to preserve this temple of freedom.”^[8]

Stevens and other Radicals grew frustrated with Lincoln’s pace. As late as March 1862, the most that Lincoln had publicly supported was gradual emancipation in the border states, with slave owners compensated for the loss of their property by the federal government. Stevens wrote privately in April, “As for future hopes, they are poor as Lincoln is nobody.”^[9] Lincoln, for his part, called Stevens and fellow Radical Republicans Charles Sumner and Henry Wilson “the unhandiest devils in the world to deal with – but after all their faces are set Zion-wards.”^[10]

The Reconstruction Era (1863-1877) brought Stevens to the fore of public life. He proposed confiscating the estates of the largest 70,000 southern landholders and distributing plots of 40 acres to freed families, warning that without such measures the southern states would send former rebels to Congress who would undo emancipation. When President Andrew Johnson moved to block land reform and restore former Confederates to power, Stevens organized resistance in Congress, arranging for southern electees to be excluded from the roll call when the House convened in December 1865. He also co-chaired the Joint Committee on Reconstruction, which investigated widespread violence against African Americans and Union loyalists across the South, and steered through the legislation that divided the South into five military districts. “This is not a ‘white man’s Government,’” he thundered.^[11]

Stevens died on August 11, 1868, having never seen the full promise of Reconstruction realized. He chose to be buried in a Lancaster cemetery that admitted people of all races because, as he wrote, he wished to “illustrate in my death the principles which I advocated through a long life, equality of man before his Creator.”^[12]

Anna Salvatore is a Content Fellow at the National Constitution Center and a graduate of Princeton University.

Notes

^[1] Eric Foner, "Thaddeus Stevens and the Imperfect Republic," Pennsylvania History: A Journal of Mid-Atlantic Studies 60, no. 2 (1993): 140, https://www.jstor.org/stable/27773614.

^[2] "Propaganda and Pestilence," Vermont History 64 (1996), https://vermonthistory.org/journal/misc/Propoganda_pestilence_vol64.pdf

^[3]"Thaddeus Stevens: School Years Shaped by Peacham Education," North Star Monthly, https://www.northstarmonthly.com/profiles/thaddeus-stevens-school-years-shaped-by-peacham-education/article_12277c70-bf1e-11e6-9bca-1fbe729c2188.html.

^[4]Hans L. Trefousse, Thaddeus Stevens: Nineteenth-Century Egalitarian (Chapel Hill: University of North Carolina Press, 1997).

^[5] "Thaddeus Stevens in the Limelight: Public Life in Pennsylvania," Danville Vermont Historical Society, https://danvillevthistorical.org/thaddeus-stevens-in-the-limelight-public-life-in-pennsylvania/.

^[6] Foner, "Thaddeus Stevens and the Imperfect Republic," 143.

^[7] "A Remarkable Radical: Thaddeus Stevens," Humanities 33, no. 6 (November/December 2012), https://www.neh.gov/humanities/2012/novemberdecember/feature/remarkable-radical-thaddeus-stevens.

^[8] Michael Birkner, "Thaddeus Stevens at Gettysburg," Civil War Faculty (Gettysburg College), https://cupola.gettysburg.edu/cgi/viewcontent.cgi?article=1064&context=cwfac.

^[9] Michael Burlingame, Abraham Lincoln: A Life, vol. 2, chap. 27, https://www.knox.edu/documents/LincolnStudies/BurlingameVol2Chap27.pdf.

^[10] "Lincoln on Radicalism," The Atlantic, May 2011, https://www.theatlantic.com/national/archive/2011/05/lincoln-on-radicalism/238377/.

^[11] "On Juneteenth, This Moment Rings a Bell," Herald-Tribune, June 19, 2020, https://www.heraldtribune.com/story/opinion/columns/2020/06/19/on-juneteenth-this-moment-rings-bell/112608184/.

^[12] Foner, "Thaddeus Stevens and the Imperfect Republic," 152.

The decision in Louisiana v. Callais focused on Section 2 of the Voting Rights Act of 1965 (or VRA), a landmark achievement of the Civil Rights Movement. Section 2 prohibits voter discrimination on the basis of race, color, or membership in language minority groups. In the Court’s prior term, it considered arguments in Callais without reaching a decision. It ordered Callais re-argued in the current term, over the objections of Justice Clarence Thomas.

On October 15, 2025, the Court heard new arguments in Callais about the constitutionality of a Louisiana redistricting law. In 2022, Louisiana redrew its congressional districts, but a federal court in Robinson v. Ardoin ruled the new map likely violated the Voting Rights Act because it did not include an additional majority Black district. But when Louisiana drew a new map, SB8, that contained such a district, the new map was challenged as a racial gerrymander.

The justices were considering whether Louisiana’s intentional creation of the second majority-minority congressional district in SB8 violated the 14th or 15th Amendments to the U.S. Constitution.

The majority opinion

In his majority opinion in Callais, Justice Samuel Alito wrote that SB8 went against the purpose of the VRA. “Because the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8, and that map is an unconstitutional racial gerrymander,” Alito explained. Joining Justice Alito’s majority opinion were Chief Justice John Roberts, and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

“Section 2 of the Voting Rights Act of 1965 … was designed to enforce the Constitution— not collide with it. Unfortunately, lower courts have sometimes applied this Court’s §2 precedents in a way that forces States to engage in the very race-based discrimination that the Constitution forbids,” Alito wrote.

Alito framed the case as confronting a “long-unresolved question whether compliance with the Voting Rights Act provides a compelling reason that may justify the intentional use of race in drawing legislative districts.”

“For over 30 years, the Court has simply assumed for the sake of argument that the answer is yes. These and other problems convinced the Court that the time had come to resolve whether compliance with the Voting Rights Act can indeed provide a compelling reason for race-based districting,” the decision reads.

Alito’s decision made it clear that the Court’s majority believed that any use of race in considering the composition of voting districts needed to meet the Court’s most demanding test: strict scrutiny. In this instance, Alito said the test required “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.”

Alito stated the Court’s majority decision in Callais did not conflict with Thornburg v. Gingles (1986), a previous case where the justices determined that a North Carolina General Assembly redistricting plan violated Section 2 of the VRA by diluting the impact of Black voters in five of the state’s six electoral districts.

Alito also said that other Court precedents and social conditions in the past 40 years changed the framework stated in Gingles. He cited four examples: vast social change throughout the country and particularly in the South; a correlation between race and party preference; partisan-gerrymandering claims being "repackaged" as racial-gerrymandering claims; and the use of computers to create alternative maps to produce racial balance, if possible.

“Under the updated Gingles framework, the facts of this suit easily require affirmance. Louisiana’s enactment of SB8 triggered strict scrutiny because the State’s underlying goal was racial,” he concluded.

In a concurring opinion, Justice Thomas wrote, “[T]his Court should never have interpreted §2 of the Voting Rights Act of 1965 to effectively give racial groups ‘an entitlement to roughly proportional representation.’”

Justice Kagan’s Dissent

In her dissenting opinion, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, was deeply skeptical of the majority opinion, which Kagan labeled as the “latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”

“Under the Court’s new view of Section 2, a State can, without legal consequence, systematically dilute minority citizens’ voting power. Of course, the majority does not announce today’s holding that way,” she wrote.

“The majority claims only to be ‘updat[ing]’ our Section 2 law, as though through a few technical tweaks. But in fact, those ‘updates’ eviscerate the law,” Kagan argued, citing what she called classic examples of vote dilution.

“Without a basis in Section 2’s text or the Constitution, the majority formulates new proof requirements for plaintiffs alleging vote dilution. Those demands, meant to ‘disentangle race from politics,’ leverage two features of modern political life: that racial identity and party preference are often linked and that politicians have free rein to adopt partisan gerrymanders,” Kagan said.

Kagan called the Callais decision “part of a set” of rulings, explaining that, in her view, “[f]or over a decade, this Court has had its sights set on the Voting Rights Act.” For Kagan, one key example was Shelby County v. Holder (2013), which, she said, “made a nullity of Section 5” of the VRA. Shelby eliminated the act’s preclearance formula for regions, where areas with a history of racial discrimination had to seek federal approval for voting changes. The Shelby majority said the preclearance requirement didn’t relate to current conditions in areas where discrimination was once rampant.

She then referenced Brnovich v. Democratic National Committee (2021), where Kagan said the “Court did half what was needed to raze” Section 2 of the VRA. In Brnovich, the Court considered a question related to Section 2 of the VRA. The case involved a law passed in 2016 that made it illegal for someone to collect and deliver another person’s mail-in ballot. In a 6-3 decision, Justice Alito said Arizona had the right to establish time, place, and manner requirements for voting, and its voting policies were “not enacted with a racially discriminatory purpose.”

Kagan also said Callais conflicted with another recent Court decision Allen v. Milligan (2022). “For just three Terms ago [in Allen] the Court upheld a vote-dilution challenge to a districting map in a case much like this one—preserving Section 2 as a tool to prevent racially discriminatory redistricting.” She concluded that “today’s decision renders Section 2 all but a dead letter. In the States where that law continues to matter—the States still marked by residential segregation and racially polarized voting—minority voters can now be cracked out of the electoral process.”

In effect, the Callais majority decision narrows the instances where racial gerrymandering clams can be contested in court. The Court majority argued that its reframed interpretation “is the best reading of the statutory text and ensures that section of the Voting Rights Act does not exceed Congress’s authority under Section2 of the Fifteenth Amendment.”

Kagan condemned the decision because, in her view, “the Court betrays its duty to faithfully implement the great statute Congress wrote,” the VRA, and because “the Court’s decision will set back the foundational right Congress granted of racial equality in electoral opportunity.”

To be sure, there will be broader public discussion of the Callais decision during an already deeply contested election year, especially amidst claims about its impact on future elections.

Scott Bomboy is the editor in chief of the National Constitution Center.

John Marshall was born in September 1755 in Fauquier County, Virginia. His paternal ancestors were typical working-class landowners. Marshall’s father, Thomas Marshall, became a successful surveyor and spent several years in local and state government. On his mother’s side, Marshall was the descendant of the Scottish and English upper classes, connecting him with the wealthy Jeffersons and Randolphs. Unlike his well-to-do relatives, Marshall had a humble upbringing on the Virginia frontier.

In 1775, when news of the battles of Lexington and Concord spread throughout the colonies, Marshall was just 19 years old. At that time he was second in command in the local militia, and was called upon to rally and drill his men. He soon joined the newly established Virginia Minute-Men, becoming first lieutenant of the Fauquier Rifles. Marshall traveled north to join George Washington’s Continental Army in January 1777 where he served during the terrible winter at Valley Forge. Marshall weathered the storm, and by the end of the war he was not only promoted to captain but was selected by George Washington to serve as deputy judge advocate of the Continental Army.

An early career of public service

After concluding his military service, Marshall enrolled in law lectures with George Wythe, a course of study which would shape the mind of the future chief justice. Under Wythe, Marshall read seminal works like Blackstone’s Commentaries on the Laws of England, participated in moot courts, and produced a remarkable 238-page commonplace book filled with all he had learned as a student. After completing his studies, Marshall successfully ran for a seat in the Virginia House of Delegates in 1782. Marshall would resign from his government post in 1785 to focus on his law practice, but he rejoined the House in 1787 due, in part, to his concern about the state of the nation in the aftermath of Shays’ Rebellion, a violent protest against high taxes and oppressive debt collection that highlighted the weakness of the Articles of Confederation.

Marshall was reelected to Virginia’s House of Delegates in 1787 which allowed him to join the fight in Virginia over ratification of the Constitution in March 1788. While the major debates played out between James Madison, Patrick Henry, and Edmond Pendleton, Marshall’s speeches offered succinct articulations of core Federalist arguments such as the importance of the states’ banding together for mutual security. In perhaps his most important speech, Marshall defended the federal judiciary. “If [Congress] were to make a law not warranted by any of the powers enumerated,” argued Marshall, “it would be considered by the Judges as an infringement of the Constitution which they are to guard. . . . They would declare it void.” This statement, which foreshadows Marshall’s greatest decision as chief justice, emphasized his belief that federal courts exist to safeguard the Constitution. After much debate, the final vote was 89 to 79 in favor of ratification.

Following Virginia's ratification of the Constitution, Marshall focused on his law practice in Richmond, even turning down appointments to be U.S. attorney of Virginia and Attorney General. Marshall did eventually agree to join a special delegation to Paris in 1797 in an attempt to negotiate a new treaty. The French ambassadors, labeled X, Y, and Z by their American counterparts, demanded a bribe. The Americans refused to pay, but the situation became a public scandal, known as the XYZ Affair, which increased hostilities with France. After returning to America, Marshall briefly served in the Sixth Congress before accepting an appointment as Secretary of State to John Adams in May 1800.

Marshall on the Supreme Court

In January 1801, President John Adams signed the commission making John Marshall the fourth Chief Justice of the United States. The Supreme Court on which Marshall found himself was not yet a coequal constitutional actor. His first acts subtly strengthened the Court as an institution and his preeminent place within it. Beginning in 1801, whenever the Court convened, Marshall saw to it that they all stayed in the same place, a decision which led to greater unanimity and camaraderie among the justices.

The first major case of his tenure, Talbot v. Seeman, is important not for its facts but for the manner in which the Court chose to express itself: for the first time, the decision was labelled “Opinion of the Court.” Before this case, the Court wrote seriatim opinions, meaning that each justice would write separately and there was no one majority opinion. Chief Justice Marshall ensured that the Court spoke with one voice.

“It is emphatically the province and duty of the judicial department to say what the law is,” wrote Chief Justice Marshall in Marbury v. Madison. The controversy behind the case began when the outgoing President John Adams signed a commission appointing William Marbury to a judicial post. The Jefferson administration refused to deliver Marbury’s commission. Marbury asked the Court to issue a writ of mandamus, essentially an order, to compel the Secretary of State to deliver the commission. In 1803, the Court dismissed the case for lack of jurisdiction and, in so doing, established that the Supreme Court had judicial review over acts of Congress.

While the concept of judicial review was nothing new, and the Court had considered the constitutionality of an act of Congress in Hylton v. United States, the Court never fully articulated or used this power before Marbury.

In this step lies Marshall’s legal genius. Judicial review, argued Marshall, was necessary to maintain the separation of powers. Without this power, the Constitution would give to Congress “a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits.” Furthermore, judicial review is incidental to deciding cases “arising under the Constitution.” Could it be possible, asked Marshall, “[t]hat a case arising under the constitution should be decided, without examining the instrument under which it arises?” In the estimation of biographer Jean Edward Smith, Marshall’s opinion in Marbury remains “one of the greatest constitutional documents in American history.” The Chief Justice’s incisive logic, which made judicial review seem both obvious and necessary, has withstood the test of time.

Alongside Marbury, McCulloch v. Maryland is undoubtedly one of the most important (and quoted) decisions of the Marshall era. In 1818, Maryland imposed a tax on bank notes aimed at the Bank of the United States, a financial institution chartered by Congress to handle the federal government’s finances. The case raised the question of whether Congress had the power to establish the Bank.

In finding that Congress had the requisite authority, Marshall set down timeless principles that influence our government even today. He wrote that when one looks at the words of the Constitution, express terms such as “bank” or “corporation” do not exist, but instead powers “to lay and collect taxes,” “to borrow money,” “to regulate commerce” are present. To enumerate these powers, Marshall concluded, implies the means to carry them out, lest the Constitution is merely “a splendid bauble” devoid of effect. This doctrine, often called “implied powers,” has paved the way for numerous modern constructions of national power. In the estimation of biographer Kent Newmyer, McCulloch is “possibly the most far-reaching decision ever handed down by the Supreme Court.”

In David Currie’s searching study of constitutional law, he found that, in the 35 years John Marshall served on the Court, there was “but one constitutional case in which the Chief Justice recorded a dissent” and “only a handful in which he did not deliver the Court’s opinion.” For over three decades the Court was led by one man, almost always speaking in his voice and following his vision.

Chief Justice Marshall died in January 1835. It is said that the Liberty Bell, while ringing out in his honor, cracked. While this story is likely apocryphal, it gives a measure of the significance of Marshall’s death. Justice Joseph Story wrote a touching discourse on his life: “He was one of those, to whom centuries alone give birth; standing out, like beacon lights on the loftiest eminences, to guide, admonish, and instruct future generations, as well as the present.”

Tristan Worsham is a National Constitution Center content fellow and a graduate of the University of California, Berkeley.

References:

David Currie, The Constitution at the Supreme Court: The First Hundred Years, 1789-1888 (1985)

Charles F. Hobson, “Defining the Office: John Marshall as Chief Justice,” 154 Pennsylvania Law Review (2006)

Michael J. Klarman, “How Great Were the “Great” Marshall Court Decisions?,” 87 Virginia Law Review (2001)

John Marshall, The Life of George Washington (1804)

Jean Edward Smith, John Marshall: Definer of a Nation (1996)

On Tuesday, the full United State Court of Appeals for the Fifth Circuit, in a 9-8 decision in Nathan v. Alamo, held that a state law, S.B. 10, requiring the 10 Commandments classroom display does not violate the First Amendment’s Establishment Clause or Free Exercise Clause. These clauses read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Link: Read the Decision

The Fifth Circuit majority considered a Supreme Court precedent set in Stone v. Graham (1980), where a divided Court ruled that a Kentucky law requiring the Ten Commandments in public classrooms violated the Establishment Clause. Instead, the Fifth Circuit majority cited the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District as rendering the Stone precedent as obsolete. The court’s minority held that only the Supreme Court can overturn its own precedents, and the Texas law violates the “most basic First Amendment principles.”

The majority decision in Texas

The Fifth Circuit Court of Appeals was considering the Texas law in conjunction with a similar law passed in Louisiana that was contested in Roake v. Brumley. A three-judge Fifth Circuit panel considering Roake ruled that Louisiana’s 10 Commandments law was unconstitutional. The full Fifth Circuit bench vacated Roake in February 2026 as a premature challenge, but it determined that the Texas case was eligible to be heard by the full appeals bench.

In his majority opinion, Circuit Judge Stuart Kyle Duncan said the Fifth Circuit majority properly discarded the Stone precedent since it relied on a prior Supreme Court precedent, Lemon v. Kurtzman (1971). Under Lemon, the Supreme Court created a three-part test to determine if a law violated the Establishment Clause.

However, in Bremerton, Justice Neil Gorsuch established a new method to replace the Lemon test. In his majority opinion, Gorsuch cited the “shortcomings” associated the Lemon test’s “abstract, and ahistorical approach to the Establishment Clause. “

“This Court long ago abandoned Lemon and its endorsement test offshoot,” Gorsuch wrote in Bremerton. “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’

“Mercifully, the Supreme Court jettisoned Lemon and its offspring some years ago,” Duncan wrote. “With Lemon extracted, there is nothing left of Stone,” Duncan wrote. Applying the Bremerton test, Duncan asked if the Texas law conflicted with the Founding-era understanding of “religious establishment.” Duncan stated that in the late 18th century, the establishment of religion “was a familiar institution: a polity’s official church or religion.” He did not see conflict with S.B. 10.

“S.B. 10 looks nothing like a historical religious establishment. It does not tell churches or synagogues or mosques what to believe or how to worship or whom to employ as priests, rabbis, or imams. It punishes no one who rejects the Ten Commandments, no matter the reason,” Duncan believed.

Duncan also disagreed with arguments that S.B. 10 conflicted with a recent Supreme Court decision, Mahmoud v. Taylor (2025), where a divided Supreme Court held that parents could opt their children out from public school instruction they believed violated their free exercise of religion rights.

“S.B. 10 authorizes no religious instruction and gives teachers no license to contradict children’s religious beliefs (or their parents’). No child is made to recite the Commandments, believe them, or affirm their divine origin,” Duncan concluded. He cited the Supreme Court’s pledge of allegiance precedent in West Virginia State Board of Education v. Barnette (1943), where public school students who were Jehovah’s Witnesses were permitted to not salute the flag or say the pledge as instructed by their parents.

Circuit Judge James C. Ho concurred with the majority opinion. “No challenge to either Texas or Louisiana law could possibly succeed, because neither law comes close to imposing either an establishment of religion or a prohibition on the free exercise thereof, as originally understood by the Founders or articulated by any governing Supreme Court precedent,” Ho wrote.

The dissent objects on basic grounds

In a dissent joined by six other judges, Circuit Judge Irma Carrillo Ramirez stated S.B. 10 as written clearly violates the Establishment Clause and the Free Exercise Clause. “Legislation requiring the permanent fixture of religious rules in public-school classrooms, with no ‘educational function,’ violates these most basic First Amendment principles,” she argued.

Ramirez objected to Judge Duncan’s claim that the Supreme Court has overruled the Stone precedent. “Although Kennedy abandoned Lemon and its endorsement test offshoot, it did not cite, much less purport to ‘abandon’ or overturn, Stone—despite the opportunity to do so,” she claimed. “Whatever the fate of Stone may be ‘as an inferior court,’ we must ‘adhere strictly to’ it until the Supreme Court says otherwise. And under Stone, S.B. 10 is unconstitutional.”

Ramirez also held that under Bremerton’s historical test, the Texas law was still unconstitutional. She repeatedly cited the Supreme Court’s precedent in Lee v. Weisman (1992), where a divided court ruled that including prayers from a rabbi at a public-school graduation was a subtle and indirect religious coercion because students felt compelled to stand during the recitals.

“Defendants assert that, under Kennedy, there are six identified ‘hallmarks’ of religious establishments that the Establishment Clause was adopted to prohibit, and if a challenged practice does not resemble one of these hallmarks, there is no constitutional violation,” Ramirez reasoned.

“Kennedy specifically placed coercion along the lines of that found in Lee among those ‘foremost hallmarks,’” Ramirez concluded, noting the Supreme Court’s long history of “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”

In a separate dissent, Circuit Judge Leslie H. Southwick believed parts of the Lemon test were still viable for consideration in First Amendment cases. “In my view, the [Lemon] test was disassembled, and one part discarded — but other parts of what had been fused remain usable.”

Circuit Judge Stephen A. Higginson also objected to the majority decision. “The Framers intended disestablishment of religion, above all to prevent large religious sects from using political power to impose their religion on others,” he believed. “The majority defies foundational First Amendment concepts, ignores the harms students will face, and usurps parents’ rights to determine the religious beliefs they wish to instill in their own children.”

In a statement issued after the Fifth Circuit ruling, the American Civil Liberties Union of Texas said it anticipated appealing the decision to the Supreme Court.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

When President Dwight Eisenhower in 1953 appointed Earl Warren, the former governor of California, chief justice of the United States, Warren inherited a divided and fractious court. Richard Kluger, author of the brilliant history of the Brown decision, Simple Justice, described the court as “perhaps the most severely fractured court in history.”

Brown was argued twice in the high court, first in 1952 when Fred Vinson was chief justice, and again in 1953 after Vinson’s death and Warren’s arrival. Warren, a Republican, was not only a three-term former governor but had also served as California’s attorney general and had been involved in local government offices.

Historians tell us that Warren wanted a unanimous opinion in Brown and achieving it required all of his persuasive and political skills. Up until the last moment, it appeared that Justice Stanley Reed would be the lone dissenter. But Reed, and no one is certain why, changed his prior position and joined his colleagues in a unanimous decision.

Chief Justice John Roberts Jr. has an ideologically divided court and does not have the political pedigree of Warren. Roberts’ persuasive skills were honed in a very different arena, as a successful appellate court lawyer.

But two constitutional law professors—brothers Akhil Amar of Yale Law School and Vikram Amar of UC Davis School of Law—argue in an amicus brief in the recently argued birthright citizenship challenge, that a unanimous decision against the Trump administration is warranted here.

The citizenship case, Trump v. Barbara, challenges President Donald Trump’s 2025 executive order that, if the justices approve, would change Americans’ more than a century-old understanding of birthright citizenship. That understanding is that if you are born in America and “subject to the jurisdiction thereof” ( the text of the Citizenship Clause in the 14th Amendment and a 1952 statute), you are an American citizen. The Trump executive order makes citizenship dependent on the legal status of a parent or parents.

The justices have at least two paths to affirming the common understanding of the Citizenship Clause if they rule against Trump. They can rely on the actual text of the clause or on a 1952 federal law incorporating that text.

The Amar brothers urge the court to rule against Trump by answering the constitutional question. Federal laws, like the 1952 statute, may be repealed or amended. A constitutionally based ruling ensures that a future Congress could not try to retroactively repeal the 1952 act, they explain. And, if the court rules with the kind of breadth and depth as it did in Brown, they wrote, it also would be an important reminder to all citizens of their rights and their responsibilities to each other.

The Amars conclude by explaining why they believe this case is “the most important case of the century (so far?).” They offer three reasons but perhaps most importantly because it is “uniquely fundamental.”

“The basic issues at stake go to the very foundation of the Constitution. At root, citizenship is the right to have rights, and the right to belong. All constitutional issues are important, but few rival the constitutional issues in this case: Who is an American?”

For that reason and others, they wrote, they hope the court will rule not just correctly, “but will do so for the best and deepest reasons—ringingly—and will also do so unanimously, at least in outcome, and ideally in exposition.”

After the April 1 arguments, a unanimous decision did not seem likely for either Trump or the challengers, but a majority asked many more skeptical questions of Trump's lawyer. Only two justices, Clarence Thomas and Samuel Alito, appeared somewhat receptive to the Trump Administration’s arguments in defense of its reinterpretation of the Citizenship Clause.

But much can happen between the time arguments end and a decision is issued. Roberts himself reportedly changed his position during deliberations on the first Obamacare challenge. And Justice Stanley Reed, for whatever reason, did the same in Brown. Time will tell.

Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.