The Supreme Court issued landmark rulings that faced resistance from lower courts, and the Court declined to intervene.
Randy Barnett and I are close to finishing the Fifth Edition of our Constitutional Law casebook. We’re still awaiting the final batch of June decisions to wrap up a few chapters. The previous edition appeared in 2021. Needless to say, a great deal has changed, though much of the book remains familiar. This process, however, has underscored the gap between how constitutional law is taught in classrooms and how it unfolds for practitioners in the field.
In class, we study the defining rulings that reshaped the national legal landscape: Bruen introduced a stringent framework for evaluating gun-control statutes; Dobbs shifted the abortion issue back to the states; Students for Fair Admission effectively curtailed affirmative action; and so forth. Students reading these 2022–2023 decisions might come away with the impression that constitutional law altered overnight on guns, abortion, and racial preferences. The reality, however, is more nuanced.
Less than a year after Bruen, Rahimi moderated the so-called “analogue” test. Gun laws have stayed largely as before. Blue states have permitted shall-issue carry regimes, albeit with numerous obstacles and burdens. Moreover, the Court has rejected every case addressing the scope of sensitive places and the kinds of arms protected by the Second Amendment. The two cases argued this term (Hemani and Wolford) tackle fringe questions that will matter little to the average gun owner.
The same goes for affirmative action. In the wake of SFFA, the Court declined to hear Boston Parent Coalition for Academic Excellence Corp. v. The School Committee For the City of Boston (2024). This case presented a clean challenge to an affirmative-action policy at an elite public school that appeared to sidestep SFFA. Justices Thomas and Alito would have granted certiorari. Justices Gorsuch, Kavanaugh, and Barrett remained silent. A recent Manhattan Institute report notes that the share of racial minorities admitted to elite colleges has stayed roughly constant, despite doomsday forecasts from Harvard and other groups. Recall Justice Kagan’s hypothetical about Harvard admitting zero Black students? In my view, these figures suggest universities found clever ways to evade SFFA, though the data are not crystal. I doubt the Supreme Court will re-enter this debate.
The abortion issue is somewhat more intricate, but the pattern is similar. After Dobbs, doctors began delivering mifepristone to red states, while blue states enacted shield laws to protect those doctors. Dobbs held that abortion policy is for the states to decide, yet pro-life states are powerless to stop doctors from introducing abortion pills into their borders. In fact, abortion rates have risen in red states since Dobbs. The shield-law question has not yet reached the Court, but I expect the Court will stay out of it. And just tonight, the Court once again avoided ruling on mifepristone.
The Court, in what looked like a 7–2 decision, granted a stay of the Fifth Circuit in Danco Laboratories v. Louisiana. There is no explanation offered. I am old enough to remember when the Court’s liberal Justices complained about unexplained stays. Yet Justices Sotomayor, Kagan, and Jackson joined the order, as did Justices Gorsuch, Kavanaugh, and Barrett. In 2023 I wrote that Justice Barrett tends to grant emergency relief only when the Fifth Circuit takes a conservative path. The pattern endures.
Why did the Court grant a stay of the reasoned ruling by Judge Duncan? Was it about a lack of state standing? Did the Court conclude that Louisiana is unlikely to prevail on the merits? Perhaps the Court determined that Danco had the equities in distributing a product that is illegal? Who can say? The Court offered no explanation at all.
Of course, this might be a rare instance in which all three of Trump’s appointees voted exactly as the President would have wished. The President has clearly signaled that he does not want the shipment of mifepristone blocked. He has been explicit about this from the start. There have been no prosecutions under the Comstock Act. The FDA has refused to revisit the Biden-era REMS. The FDA did not even file a brief in this case! It seems Trump was hoping the Supreme Court would rescue him, and the Court delivered.
The only Justices willing to speak on the matter were Justices Thomas and Alito. Thomas laid out the obvious point: the distribution of mifepristone is illegal. How can Danco and GenBioPro be “irreparably harmed by a court order that makes it harder for them to commit crimes”? Imagine a gun manufacturer seeking an injunction to ship into a blue state where it is illegal. Does anyone think the equities would tilt in favor of those shipping firearms? Of course not. And really, no need to imagine. I once represented Defense Distributed, which was enjoined from placing files online that could be downloaded by someone in blue states. Do you think the federal judge in Washington cared about lost profits there? Let’s be real.
Justice Alito, true to form, stated what needed to be said: blue states are flouting Dobbs, and the Court will do nothing to stop it.
The Court’s unexplained stay order in this case is remarkable. The fundamental question is whether it is an attempt to undermine our decision in Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215 (2022), which returned to each State the authority to regulate abortion within its borders. Some States responded by making abortion even more accessible than before, which is their prerogative. Others, including Louisiana, restricted abortion to narrow circumstances. See, e.g., La. Rev. Stat. Ann. §40.1061 et seq. But Louisiana’s efforts have been thwarted by certain medical providers, private groups, and States that oppose such laws and seek to undermine their enforcement.
In earlier days, Justice Kennedy had prevented Louisiana from banning abortions within its borders. Now, the government of New York can impose a comparable burden on state sovereignty. Has much truly changed since Dobbs? Justice Kavanaugh’s Dobbs concurrence ventured into whether women could travel from red states to blue states, but it overlooked the simplest answer: mail-order abortions. Why travel when the pills can be delivered by the Postal Service?
As for the equities, Louisiana simply aims to restore Danco to the position it held before the 2023 REMS regime. They were profitable under the old framework and can remain so.
I will continue teaching Bruen, SFFA, and Dobbs. Yet students should recognize that the Justices did not intend for any of these rulings to be fully enforced.
I expect we will soon include Kennedy v. Bremerton on this list. Judge Duncan’s en banc opinion for the Fifth Circuit applied the history-and-tradition test to Texas’s Ten Commandments Law in a faithful manner. I suspect the Chief Justice will author the majority opinion and declare, “Well, we didn’t really mean what we said.” As noted earlier, the casebook will be updated, but the fundamentals of constitutional law remain largely unchanged.
