July 20, 2026 | Volume 33, Issue 20
This Report summarizes opinions issued on June 30, 2026 (Part I).
Opinions
Trump v. Barbara, 25-365.
By a 6-3 vote, the Court struck down President Trump’s Executive Order denying birthright citizenship to persons born in the United States to parents unlawfully or temporarily present—with a five-Justice majority holding that the order violates the Citizenship Clause of the Fourteenth Amendment. The Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Title 8 U.S.C. §1401(a), enacted by Congress as part of the Immigration and Nationality Act (INA), uses similar language. On the first day of his second term in office, President Trump issued Executive Order No. 14160, titled Protecting the Meaning and Value of American Citizenship. The Order withheld automatic birthright citizenship to those whose parents were either unlawfully in the country or only granted temporary legal status, reasoning that such children were not “subject to the jurisdiction” of the United States. Several parents filed suit in federal court contesting the validity of the Order. The district court provisionally certified a nationwide class of children who would be denied citizenship by the Order and preliminarily enjoined the Order’s enforcement, which it found unlawful under the Fourteenth Amendment and the INA. In an opinion by Chief Justice Roberts, the Court affirmed on constitutional grounds.
The Court ruled that children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are therefore citizens at birth under the Citizenship Clause. To reach this conclusion, the Court explained the context of the Fourteenth Amendment’s ratification and the long common-law history of birthright citizenship. Prior to the American founding, English common law held that children “born within the [sovereign’s] dominions” owed a natural “allegiance” to the sovereign, who owed them a reciprocal duty of protection. This citizenship based on birthplace, known as jus soli, applied equally to those children whose parents were subject to expulsion or exclusion from the nation’s territory. It was subject to only a few enumerated exceptions where the “fiction of extraterritoriality” applied, such as children of foreign ministers or foreign invaders who had temporarily deprived the sovereign of control over a portion of territory. This well-settled concept of citizenship took root in the colonies and was adopted by every state following American independence, except with regard to the quasi-sovereign Indian tribes subject to the fiction of extraterritoriality. This prevailing view was consistently applied (even to children of those present in the U.S. on a “temporary sojourn”) from the founding until the 1850s. Then, in the infamous case of Dred Scott v. Sandford, 19 How. 393 (1857), the Court abandoned the common law of birthright citizenship and adopted the novel view that those descended from slaves could not be citizens based on their blood/race. Against this backdrop and in the aftermath of the Civil War, Congress sought to repudiate Dred Scott and return to the traditional common-law principles governing birthright citizenship—a step urged by Lincoln’s Attorney General and noted abolitionist Frederick Douglass. This process developed first through the Civil Rights Act of 1866 and culminated in the Fourteenth Amendment.
The Court then turned to the language of the amendment. It found that the dual requirements that a child must be “born . . . in the United States” and must be “subject to the jurisdiction” of the United States directly mirror the common law’s relationship between territorial origin and sovereign authority over a citizen. Indeed, the principal author of the amendment viewed its language as “simply declaratory of the common law’s preexisting understanding of citizenship.” Both contemporary dictionary definitions and case law from the 1860s made clear that the operative phrase “subject to the jurisdiction thereof” meant that an individual was subject to American law, and stemmed from the sovereign’s right to control its own territory. The Court explained that this understanding of the amendment was adopted by case law and the executive branch for two decades following ratification, subject only to those limited exceptions in which extending birthright citizenship would “degrade the dignity” of “foreign sovereigns.”
But with the passage of the Chinese Exclusion Act towards the end of the 19th century, the State Department sought to deny birthright citizenship to those it viewed as holding dual or secondary allegiance, relying on scholarship advancing an international law alternative to the common-law theory of citizenship. But the Court addressed and squarely rejected this approach in United States v. Wong Kim Ark, 169 U.S. 649 (1898). Wong Kim Ark concluded that no “rule of international law” had supplanted or limited “the ancient rule of citizenship by birth within the dominion.” It rebuffed the government’s position that natural born citizenship was conferred through the Fourteenth Amendment based on allegiance and that the Constitution had abandoned the common-law concept of jus soli. Rather, “[w]hat the Court held in Wong Kim Ark was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States,” including the children of aliens who traveled to the United States for “business or pleasure.” Following Wong Kim Ark, the Court consistently applied this rule for 128 years. It refused “to depart from that view” here.
The Court rejected the Government’s and principal dissent’s contention that “[d]omicile is the key concept that creates” the type of “primary allegiance” necessary to confer natural-born citizenship in the United States. Rather, domicile has always been a distinct concept from “natural allegiance” or “implied allegiance” inherent in jus soli. The Court explained that scant evidence supported the “revisionist” view that “the United States’ conception of allegiance”—at some unspecified point in time—broke “from Great Britain’s.” Indeed, the Court found “no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868.” As to the congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment, the Court was more persuaded by the “frequent and explicit. . . statements embracing the common law” than by “a handful of ambiguous floor statements referencing ‘temporary sojourners’ and ‘foreigners.’”
The Court also described the dissents’ interpretations as atextual and unworkable. Where a parent intends to permanently settle can be difficult to discern, and domiciling in a new nation does not sever ties and obligations of allegiance to an old one. The task of ascertaining the sincerity of an individual’s attempt to resettle finds no support in the text and risks denying citizenship to the children of all foreign-born parents. Finally, the Court was unpersuaded by attempts to narrow Wong Kim Ark. The dissents relied on that opinion’s references to the domicile of Wong’s parents, but the underlying reasoning of the holding itself is irreconcilable with a domicile requirement—a limitation favored by the dissent in that case. To the contrary, Wong Kim Ark‘s exhaustive examination of the Citizenship Clause’s history found it consistent with the common-law rule.
Justice Jackson wrote a concurring opinion, joined in part by Justice Sotomayor. She joined the majority’s constitutional analysis in full but wrote separately to respond to the principal dissent’s claim that the purpose of the Fourteenth Amendment was limited to granting citizenship and its attendant rights to former slaves. She highlighted the historical contributions of abolitionists and freed African Americans in ensuring that the Citizenship Clause contained “universalist” language “that transcended race and region.” She described the reconstruction amendments as ”an anticaste, antisubordination reset for the Nation,” intended to broadly extend the rights of citizenship to marginalized individuals, including immigrants. She also noted the tension between the dissent’s circumscribed view of the Citizenship Clause and “the notion of a ‘color-blind’ Constitution, which has loomed large in the Court’s Fourteenth Amendment jurisprudence.”
Justice Kavanaugh authored an opinion concurring in judgment and dissenting in part. He would have resolved this case based on the INA. Although the language of §1401(a) mirrors that of the Fourteenth Amendment, it was enacted in 1940—after the Court’s holding in Wong Kim Ark. He explained that Wong Kim Ark had “adopted a general rule of birthright citizenship for those born in the United States—with four disparate exceptions for ‘children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory’ and ‘children of members of the Indian tribes.’” Thus, “the statute has long been interpreted to adopt Wong Kim Ark’s general rule of birthright citizenship, subject to the exceptions identified in that case.” Because Congress had not created any further exceptions, the statute did not allow the President to do so via executive order. This was especially true because “from the time of those statutory enactments in 1940 and 1952 all the way through 2025, the Executive Branch consistently interpreted §1401(a) to encompass only those Wong Kim Ark exceptions to birthright citizenship.”
But Justice Kavanaugh disagreed with the majority that the Citizenship Clause inherently limited Congress’s authority to regulate birthright citizenship to only a “closed set” of four exceptions identified in Wong Kim Ark. Instead, he asserted that “[t]he Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments.” Thus, he argued, the Fourteenth Amendment retained Congress’s power to reasonably apply its underlying principles to modern circumstances “unknown or unanticipated by the Constitution’s Framers.” In his view, the creation of new exceptions to birthright citizenship designed to address emerging problems from transient presence of foreigners, birth tourism, and illegal immigration are “consistent with” the Fourteenth Amendment, but must be enacted by statute.
Justice Thomas wrote a 91-page principal dissent, joined by Justice Gorsuch. He agreed that the Citizenship Clause was intended to rectify Dred Scott’s indefensible holding that African Americans could be permanently denied citizenship as “a subordinate and inferior class.” But he maintained that the Fourteenth Amendment “guaranteed citizenship to persons born and domiciled in the United States regardless of their race” not “to persons who were not domiciled in the United States.” Justice Thomas argued that throughout the history of the nation, a person’s permanent home and citizenship were “so linked as to be effectively synonymous” at both the state and federal level. Likewise, he explained that in the 19th century, an immigrant who established domicile within the United States was “considered no longer subject to any foreign power,” while a temporary visitor “remains subject to the power of his home country.” This is so even though citizens and visitors alike remain generally subject to the criminal laws of any jurisdiction in which they are present. Only the nation in which an individual is domiciled exercised full plenary jurisdiction over that person, including the right to tax, regulate/protect abroad, and control personal affairs such as marriage status, right to contract, and inheritance.
Based on these principles, Justice Thomas concluded that freed former slaves were entitled to citizenship because they were Americans, who had no other homeland and owed allegiance to no other nation. “The same could not be said for the children of foreign temporary visitors” who harbored no permanent bonds to the nation or obligation to defend it. He pointed to references to domicile in the Dredd Scott plaintiff’s argument and scholarly sources to show that domicile was “the foundation of jurisdiction over persons”; “Americans, consistent with their settler ethos, believed that citizens were the people who called a place home,” including children of American citizens born abroad. Justice Thomas also highlighted that naturalization statutes often included a residency requirement as further proof that “[t]he relationship between citizenship and domicile was a matter of general law.” Thus, while presence at birth could provide “prima facie” evidence of a child’s domicile (even if born to foreign parents), the pertinent factor for citizenship was where a person’s family intended to permanently settle, not merely the physical location of their birth.
In advancing this argument, Justice Thomas fundamentally disagreed that the American concept of citizenship enshrined in the Constitution adopted the British common-law understanding of jus soli. He described this notion of citizenship as “a medieval English ‘feudal’ principle” that stemmed from “perpetual servitude” owed by a subject to a lord or master. He stated that Americans unsurprisingly rejected this notion of feudal subjugation to a monarch and had consistently accepted that a child born on American soil of “a stranger or traveler passing through the country, or temporarily residing here,” was “not a citizen.” Justice Thomas further claimed that this understanding was corroborated by the phrase “not subject to any foreign power” in the Civil Rights Act and the Enforcement Act of 1870, both of which “excluded from citizenship children of foreign temporary visitors, who were subject to the power of their home nation.” He then provided several examples from the post-ratification era in which individuals born in the U.S. were denied citizenship by the executive branch and individual states because their parents were foreigners domiciled in foreign nations. Finally, Justice Thomas insisted that Wong Kim Ark “emphasized that its holding was limited to persons domiciled in the United States” and “left in place the same rule that existed before: A child of a domiciliary was a citizen, but a child of a temporary visitor was not.” And because the INA included the same language as the Citizenship Clause, it should be understood to include the same domicile requirement. Justice Thomas criticized the majority for taking the Fourteenth Amendment, “which was designed and understood to secure equal rights for the freed blacks,” and repurposing it “for political projects that the Reconstruction Congress did not support.”
Justice Alito wrote a separate dissenting opinion. As he saw it, the determinative factor defining eligibility for birthright citizenship is allegiance owed, not parental domicile. Specifically, he argued that “the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.” Conversely, he criticized the majority’s interpretation as a “serious mistake” that erroneously “confers citizenship on virtually everyone who happens to be born in this country, including the children of ‘birth tourists,’ women who come here solely for the purpose of giving birth to a child and then promptly return home.” Justice Alito agreed with the principal dissent that the English concept of “birthright servitude” turned on medieval loyalty owed to the king, which was repudiated by the Declaration of Independence. He found no founding-era evidence that America had adopted the common-law rule of birthright citizenship, which would have been inconsistent with the exclusion of slaves and indigenous tribes. In Justice Alito’s view, the issue remained unsettled until the Civil War. Thereafter, Congress enacted a new national rule that sought to ensure that freed African Americans would be treated as citizens. He argued that any ambiguity in the phrase “subject to the jurisdiction of” is clarified by the Civil Rights Act’s “substantively identical” phrase “not subject to any foreign power.” Thus, the term “jurisdiction” as used in the Fourteenth Amendment does not mean merely the ability to regulate an individual within the nation’s territory, but instead refers to “exclusive” jurisdiction “that is not in any way limited by any power possessed by any foreign country.” This interpretation, he contended, was supported by the legislative debates, in which “the authors of the two major provisions defining United States citizenship agreed that birthright citizenship required complete allegiance.” Justice Alito explained that under this interpretation, many children of foreign immigrants would not be citizens because their parentage automatically made them citizens owing allegiance to foreign nations—including Mexico, Guatemala, and El Salvador.
Justice Alito next addressed the post-enactment precedent. He highlighted Elk v. Wilkins, 112 U.S. 94 (1884), which held that the Citizenship Clause requires “not merely” that a person born in the United States be “subject in some respect or degree to the jurisdiction of the United States,” but that he be “completely subject to [the United States’] political jurisdiction” and owe the country his “direct and immediate allegiance.” He acknowledged that Wong Kim Ark “provides the strongest support for” the majority’s decision but would not interpret the Citizenship Clause based on its “dubious dicta.” In his view, Wong Kim Ark addressed the citizenship of a child born in the U.S. to parents who legally and permanently resided here and “had done everything within their power to express their desire and intent to become Americans.”
Finally, Justice Alito discussed the negative practical impact of the majority’s decision. He recounted the rise of illegal mass migration since the 1970s, attributing this to a combination of economic factors and policy decisions that dissuaded aggressive enforcement of federal immigration law and allowed certain jurisdictions to offer self-proclaimed sanctuary from such laws. He also framed birthright citizenship as a national security issue, whereby “a strategic adversary or enemy of the United States” could send a mother to give birth in the U.S. “then quickly return[] to her native country” where the child was then “inculcated with hatred of this country.” On the other hand, Justice Alito rejected the notion that his interpretation would lead to “inhumane” results by arguing that Congress maintained the power to statutorily extend natural-born citizenship to the blameless children of illegal immigrants who possessed “a strong moral claim to be able to remain in the land where they grew up.”
Lastly, Justice Gorsuch penned a brief dissenting opinion. He wrote separately to explain that the facial challenge in this case required plaintiffs to show that the Order was unconstitutional in every application. But while he found the Order constitutional as applied to children of those visiting the U.S. temporarily, he expressed doubts that it could lawfully deny citizenship to those whose parents violate immigration law but intend to permanently remain in the U.S.
West Virginia v. B.P.J., 24-43;
Little v. Hecox, 24-38.
By a 6-3 vote, the Court held that state laws that prohibit biological male students from participating on female sports teams do not violate either Title IX or the Equal Protection Clause. In 2021, West Virginia enacted the Save Women’s Sports Act, which prohibits biological male students from playing on female teams. Respondent B.P.J. is a transgender girl who sought to participate on the girls’ cross-country and track-and-field teams at her middle school. B.P.J. sued West Virginia and the relevant officials for allegedly violating Title IX and the Equal Protection Clause. The district court granted summary judgment for the state on both claims. The Fourth Circuit reversed on the Title IX claim and remanded for further fact-finding on the Equal Protection Clause claim. Similarly, in 2020, Idaho enacted the Fairness in Women’s Sports Act, which prohibits biological male students from participating on female teams. Respondent Hecox is a transgender woman who attends Boise State University. She previously played on the women’s club soccer team and tried out for women’s Division I track and cross-country teams. Hecox sued Idaho and the relevant officials, alleging that they violated the Equal Protection Clause. The district court enjoined the enforcement of the Idaho law, and the Ninth Circuit affirmed. In an opinion by Justice Kavanaugh, the Court reversed and remanded in both cases.
The Court first held that “Title IX permits schools to maintain women’s and girls’ sports for biological females.” The Court reasoned that “[t]he term ‘sex’ in the 1972 Title IX statute, the 1974 Javits Amendment, and the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term ‘sex’ at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context.” The Court added that “the Title IX regulations allowed separate sports teams precisely because of the biological differences between the sexes—namely, the inherent physical differences between biological women and biological men.” B.P.J. argued, though, that “schools must make an exception to that general rule for biological males who identify as female and have taken puberty blockers or hormones.” In particular, she pointed to the Javits Amendment’s direction that a federal agency adopt “reasonable provisions considering the nature of particular sports.” The Court disagreed.
The Court reasoned that, “[w]ith respect to safety, allowing biological males to play on women’s and girls’ sports teams can put women and girls at significant risk of injuries. The safety risks are particularly severe in contact sports. And as to competitive fairness, allowing biological males to play on women’s and girls’ sports teams can put female athletes at a serious disadvantage. That is because sports are generally zero sum.” The Court also rejected B.P.J.’s contention that the school policy effectively excludes B.P.J. from participating on any competitive team at the school, finding that Title IX only guarantees “equal athletic opportunity.” Finally, the Court rejected B.P.J.’s reliance on Bostock v. Clayton County, 590 U.S. 644 (2020), which held that Title VII’s prohibition of employment discrimination “because of . . . sex” forbids firing an employee “for being gay or transgender.” The Court ruled here that Bostock and Title VII are irrelevant to the topic of sports, which is a “vastly different” context than employment.
The Court next turned to B.P.J. and Hecox’s equal protection claims. The Court concluded that the two states’ laws “make a sex-based classification that triggers intermediate scrutiny.” The Court noted the states’ interests in separating the sexes with respect to sports: (1) “prevent[ing] serious physical injuries to female athletes and (2) preserv[ing] opportunities for female athletes to fairly compete and succeed.” The Court had little difficulty in holding that these interests are important and that the sex-based distinction is substantially related to those interests. The Court turned to B.P.J. and Hecox’s contention that this does “not justify excluding a relatively small subclass of biological males—namely, those biological males who identify as female and have taken puberty blockers or hormones.” The Court ruled that none of its “’gender-based classification equal protection cases have required that the statute under consideration must be capable of achieving its ultimate objective in every instance.’” Rather, the “’validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct.’” Further, observed the Court, “[n]ot every biological male athlete is bigger, stronger, faster, or otherwise more athletically able than every biological female athlete. Some percentage of biological males who identify as male possess physical and athletic capabilities that fall within (or below) the range of typical female physical and athletic capabilities. But the plaintiffs acknowledge that States may still exclude those biological males from women’s and girls’ sports, given the general physical differences between males and females.”
The Court also addressed the plaintiffs’ claim that they are asserting an as-applied challenge to the states’ laws. The Court responded that this “as-applied argument is in essence a backdoor argument for strict scrutiny, which requires a much tighter relationship between the State’s classification and the State’s asserted interests.“ The Court added that, “[e]specially in the sports context, . . . an enormous practical and administrability problem would arise if courts suddenly had to make such individualized exemptions. How would courts draw those lines? Individuals come in all shapes and sizes, with different height, weight, muscle mass, heart capacity, lung capacity, strength, speed, endurance, jumping ability, and so on.”
Finally, the Court rejected B.P.J. and Hecox’s contention that the states’ laws unconstitutionally discriminate against transgender people. The Court found that under United States v. Skrmetti, 605 U.S. 495 (2025), the state laws classify on the basis of biological sex, not transgender status. Further, even if the law had classified based on transgender status, “we need not definitively resolve whether rational basis review or intermediate scrutiny applies to transgender classifications. In either event, the classification here readily satisfies rational basis review or intermediate scrutiny for the reasons already explained at some length above.” The Court added that the “scientific premise of the plaintiffs’ entire equal protection argument”―“that at least some biological males who identify as female and take puberty blockers or hormones do not retain physical advantages over biological females”―“is the subject of ongoing medical and scientific debate and is not settled in their direction at this time.”
Justice Thomas filed a concurring opinion to emphasize his view on two issues. First, he said that transgender status is not a suspect class requiring heightened or intermediate scrutiny because transgender people are not a “discrete group.” Second, he addressed the language used in these cases. “Men and boys with gender dysphoria are not women or girls, even if they believe that they are.”
Justice Gorsuch filed a concurring opinion. He wrote separately on the Title IX issue to make two observations. First, Congress wielded its powers under the Spending Clause to enact Title IX, and Congress must “clearly and unambiguously” state the conditions it places on its funds. Yet Title IX does not clearly and unambiguously say that schools are prohibited from restricting women’s and girls’ sports teams to female athletes. Secondly, Justice Gorsuch asserted that Bostock supports the majority’s opinion. Bostock held that discrimination against an employee for being homosexual or transgender “entails discriminating against that person at least in part because of his biological sex.” The Court employed the same reasoning here to discuss biological sex as written in Title IX. But Title IX, unlike Title VII, allows for sex discrimination in some cases, thereby explaining the outcome of this case.
Justice Sotomayor filed an opinion concurring in the judgment in part and dissenting in part, which Justices Kagan and Jackson joined. While she agreed with the Court’s Title IX holding, she asserted that the Court “badly erred” on equal protection. She maintained that the “Court has held that a sex classification violates equal protection when there is an incongruity between the sex classification in general and its application to a discrete subclass.” For example, in Caban v. Mohammed, 441 U.S. 380 (1979), the Court found a state’s regulation to be overbroad when applied to an individual harmed by the regulation because of his discrete difference from the average members of the male sex who normally went unaffected. See also Lehr v. Robertson, 463 U.S. 248 (1983). “Similarly here, B.P.J. contends that even if the use of the sex classification substantially furthers the State’s interests when it prevents cisgender boys from playing on girls’ teams, it does not substantially further the State’s interests when it prevents transgender girls who have never experienced an endogenous puberty and who receive gender-affirming treatment from doing the same. As in Caban and Lehr, it matters if she is right.”
Justice Sotomayor relied on Caban, Lehr, and other cases to maintain that “[i]f a State includes a discrete subclass in an overbroad classification when exempting them would not unnecessarily jeopardize the government interest the State wishes to further, that can show that the State’s choice to use the classification is not actually in service of those interests, but rests on discriminatory generalizations instead.” Justice Sotomayor pushed back on the majority’s deference to the legislature on topics of scientific uncertainty. The majority cited Skrmetti—a case decided by the rational-basis standard of review—as a source for deference to the legislature. Justice Sotomayor said that the majority should have taken a “hard look” at the legislature’s choices instead of “thoughtlessly defer[ing]” to the state. Justice Sotomayor noted that “B.P.J. ultimately may not be able to show that the science is sufficiently on her side; this dissent takes no position one way or another on B.P.J.’s odds of success.” But she believed B.P.J. should have been given the chance.
Justice Jackson filed a separate short opinion concurring in the judgment in part and dissenting in part. She discussed B.P.J.’s Title IX claim. Justice Jackson wrote that the Court should have left “open the possibility that Title IX’s definition of sex is more capacious.” By referring only to sex assigned at birth, the majority has left no room for discrimination caused by gender-based stereotyping, and it “is wrong to suggest that the term ‘sex’ in Title IX ‘cannot plausibly be interpreted to refer to anything other than biological sex.”
National Republican Senatorial Committee v. Federal Election Committee, 24-621.
By a 6-3 vote, the Court held that the Federal Election Campaign Act’s “[l]limits on political parties’ coordinated expenditures violate the First Amendment.” The Court has previously held that parties are free to make “[u]nlimited independent expenditures during a campaign―that is, expenditures without coordinating with a candidate.” But parties’ coordinated spending has been limited by FECA, to prevent circumvention from donors to candidates. Coordinated expenditures are “[a] political party’s spending on campaign activities in coordination with candidates.” The constitutionality of coordinated expenditure limits was upheld in Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001) (Colorado II). In 2022, the National Republican Senatorial Committee, the National Republican Congressional Committee, JD Vance, and Steve Chabot sued the FEC, arguing that the coordinated-expenditure limits were unconstitutional under the First Amendment. The en banc Sixth Circuit upheld the expenditure limit as constitutional, relying on Colorado II. In an opinion by Justice Kavanaugh, the Court reversed and remanded.
The Court reiterated that “[t]he First Amendment’s protection of free speech has its ‘fullest and most urgent application precisely to the conduct of campaigns for political office.’” The Court then said that “[t]o understand the severity of the First Amendment problem caused by” the restriction at issue here, “one must first appreciate the important and traditional role of political parties during campaigns.” After describing the role of political parties and their necessary close relationships with their candidates, the Court found that “parties and candidates have traditionally coordinated during campaigns.” Indeed, this has formed “the essence of our Nation’s party system of government.” Colorado II, 533 U.S., at 477 (Thomas, J., dissenting). Yet “the modern congressional limits on political-party coordinated expenditures restrict that coordination and the party’s speech.” Thus, stated the Court, “[a]s a matter of text and history, [] the restriction on political-party coordinated expenditures would appear to violate the First Amendment.” After noting that Colorado II and other cases “cloud the issue,” the Court applied the “closely drawn” test for assessing the constitutionality of expenditure limits and found this one wanting.
The Court analyzed four different governmental interests supposedly supporting the coordinated-expenditure limits and found each inadequate. The first was for the “purpose of reducing what [Congress] saw as wasteful and excessive campaign spending.” Colorado I, 518 U.S. at 618. The Court noted that this interest was “entirely inadequate under the First Amendment” because the Court more recently has “consistently held that Congress may not restrict campaign-related spending simply to ‘reduce the amount of money in politics.’” The second potential governmental interest was preventing undue influence on a candidate by a political party. But “[s]uch a theory does not ‘make any sense’ given the thoroughly intertwined relationship of parties and their candidates.” Third, the Court considered a rationale used in Colorado II to uphold the expenditure limit, namely, preventing undue influence on a candidate by a donor. The Court rejected this interest, explaining that Congress cannot restrict spending because of a possibility that “[l]arge sums may garner influence over or access to elected officials.” Rather, Congress can only target quid pro quo corruption―that is “contributions in exchange for official action.”
Finally, the Court considered another rationale relied on by Colorado II: that coordinated expenditure limits are an anti-circumvention tool. The Court descibred that theory as follows: “An individual donor who wants to engage in quid pro quo corruption . . . might give a candidate’s political party large contributions above the existing limits on contributions to candidates. And the party might then spend that money in coordination with the candidate in order to support that candidate’s campaign.” The Court found that it rejected a similar theory in McCutcheon v. Federal Election Comm’n, 572 U.S. 185 (2014). “McCutcheon recognized that there ‘is not the same risk of quid pro quo corruption . . . when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly.’” Among other things, “[t]he party need not spend the money on the candidate of the donor’s choice,” and the party and its candidates have some different interests.
Nor, held the Court, does this change if the contribution to the party is earmarked, meaning it is directed to support a specific candidate. That is because, first, “FECA treats an individual’s contributions to a party that are ‘in any way earmarked or otherwise directed through an intermediary or conduit’ to a federal candidate ‘as contributions from such person to such candidate’—and thus subject to the limits on contributions to candidates.” Further, found the Court, disclosure laws serve as strong deterrents from corruption, particularly because social media “provides a ‘particularly effective means of arming the voting public with information.’” The Court noted that “[t]he political-party coordinated-expenditure limits at issue here would operate as a fourth line of defense” (following contribution limits, earmarking rules, and disclosure requirements), and that “a ‘prophylaxis-upon-prophylaxis approach requires that we be particularly diligent in scrutinizing the law’s fit.’” But the limits at issue here “[i]mpose[] a severe and direct restriction on free speech and infringes fundamental First Amendment values.”
Finally, the Court disagreed that stare decisis justifies adhering to Colorado II. The Court described that decision as “akin to a three-legged stool where all three legs have already been knocked out—here, by post-Colorado II cases.” Turning to the traditional stare decisis factors, the Court found Colorado II’s errors to have been egregious: “Justice Thomas’s Colorado II dissent was persuasive in 2001 and has since been amply vindicated by this Court’s subsequent precedents.” The standard for campaign finance restrictions has changed from Colorado II’s “unskillful tailoring” to a stricter standard; and the Court has rejected the undue influence rationale. The Court added that Colorado II was based on an “apparent concern that political parties otherwise could exercise outsized influence in political campaigns and elections.” Yet time has eroded that concern: “since 2001, political parties’ relative power has substantially diminished in comparison to outside groups.”
Justice Kagan filed a dissenting opinion, which Justices Sotomayer and Jackson joined. Justice Kagan stated that the majority “[r]ewrites the rules, to allow circumvention of the contribution limits.” She described the decision as allowing a party to serve as a candidate’s “alternative checking account.” In Justice Kagan’s view, “[a] contribution limit of $7,000 will do no good if a donor can use a political party as a conduit to give the candidate hundreds of thousands more. Congress sought to prevent that kind of evasion through the limits on a party’s coordinated expenditures; and those limits are well-tailored to the statutory mission. That is all the First Amendment demands—which is why this Court upheld the same restriction against the same challenge 25 years ago in Colorado II.”
Justice Kagan used the example of a “’joint fundraising committee’—named, let’s say, the John Smith Victory Fund—consisting of his own campaign committee, the national party committee (the RNC or DNC), and party committees from each of the 50 States (or close to it).” All told, a single donor can contribute $551,300 to the Fund. Before the majority’s ruling, “the overwhelming majority of the contributions the John Smith Victory Fund collects . . . will go to party spending that only incidentally (even if meaningfully) benefits the candidate. The money may be spent, for example, on improving get-out-the-vote operations; covering the party’s administrative costs; or supporting down-ballot candidates. Or else the money may be spent on independently produced advertisements. But what the money is not helpful for is funding John Smith’s own campaign activities, of whatever kind. Today, that constraint disappears.”
Justice Kagan stated that the majority is dismissive of the “special justification” requirement to overrule precedent and rejected the three changed circumstances presented by the majority. Finally, she asserted that even apart from stare decisis, the majority decision would still be faulty because earmarking rules and disclosure laws are insufficient to prevent actual and apparent quid pro quo corruption.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel, Center for Supreme Court Advocacy
- Michael Butera, Supreme Court Fellow
- Reagan Dewey, Law Clerk, NAAG
- Ego McLain, Law Clerk, NAAG
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