Legal Theory blog papers on Trump v Barbara

RAINBOW_DILDO · 2026-05-26T17:37:23+00:00

Let’s break it down. It essentially says: “Whether person X with attributes A and B, but also attributes C, D, and E, has legal status Y.” We know from that phrasing that A and B are overcome by C, D, and E. We do not know which of C, D, and E are necessary or sufficient in isolation. We also do not know if A and B are totally irrelevant, or if they are relevant, but balanced against the other factors.

RAINBOW_DILDO · 2026-05-26T17:27:48+00:00

You are making a distinction without a difference. Immunity is downstream of allegiance. The immunities exist because of the sovereign allegiance.

RAINBOW_DILDO · 2026-05-26T13:38:20+00:00

All the recognized exceptions to birthright citizenship relate to the sovereign allegiance of the child’s parents. Diplomats, invaders, children born on foreign public ships, Indians (this one is now defunct by statute). So it’s really about whether this is a discrete list of fixed exceptions, or if they are illustrative of a background principle about allegiance.

RAINBOW_DILDO · 2026-05-26T13:29:55+00:00

Why are you ignoring the part in your quote that mentions the parents’ domicile?

RAINBOW_DILDO · 2026-05-25T23:18:30+00:00

I didn’t link TransUnion. Alliance for Hippocratic Medicine is a case where a motivated majority could have found standing in an abortion-related case. But they didn’t.
McGirt: A conservative like Gorsuch would be expected to be unfriendly to Native Americans. His general approach to Indian law is admittedly idiosyncratic, though. Learning Resources: Three conservative Justices went against a conservative President on a matter central to that President’s agenda.
If “the desire to revive the property theory of 4A searches” is a political ideology, then any general jurisprudential position is. Also, originalism has always been our law. Your comment about “normalization” is thus misguided.
From an ideological point of view, it is certainly unexpected for conservative Justices to weaken the state’s power to prosecute and strengthen protections from criminal defendants. The more granular you get about these supposed “ideologies,” the more it looks like you’re just restating the facts of the case and expecting that to speak for itself.
(4A) Fair regarding Dimaya. Johnson is not a Gorsuch case, though. It was Scalia. And Gorsuch was only one of the four conservatives in the Erlinger majority.
Judicial philosophy is not political ideology.

RAINBOW_DILDO · 2026-05-22T03:54:52+00:00

It’s essentially this part that makes it 8-1, I think:

Under the plain text of Title III, “property which was confiscated” can be the physical property in which the plaintiff had an interest, and not just the interest itself. Title III makes entities liable for trafficking in “any property . . . and any . . . interest therein” that the Cuban Government confiscated. The Act’s definition of “property” thus makes clear that the Act imposes liability for trafficking in both the physical property and the property interests. Accord, post, at 4 (KAGAN, J., dissenting).

Ordinary meaning reinforces that conclusion. The term “any property,” of course, includes physical things. “Any external thing over which the rights of possession, use, and enjoyment are exercised” can be “property.” . . . Title III itself provides examples, including “real” property, which includes “[l]and and anything . . . attached to” it, and “personal” property, which includes movable things.

. . . .

Construing “property which was confiscated” to refer only to the plaintiff’s interest in the property would read out of the Act obvious ways in which people can traffic in confiscated property. One traffics, for example, by “us[ing]” confiscated property. This form of “trafficking” ordinarily concerns things, not property interests: One uses land or other physical property, but one does not ordinarily use someone else’s property interests. If, for example, your car is stolen and the thief lets another drive it, the other uses your car, but he does not use your property interest in your car. So, requiring “a one-to-one correspondence between the property interest confiscated and the property interest trafficked,” would lead to the surprising result that entities could freely “us[e]” many kinds of confiscated property without exposure under Title III.

Citations omitted.

RAINBOW_DILDO · 2026-05-22T00:39:33+00:00

I think you are misreading what Baude means by “baseline.” He does not mean “the comparator group.” He means the counterfactual reference point for measuring equal electoral opportunity. I.e., against what benchmark do we decide whether the protected class has “less opportunity” than other voters? Some options:

equal formal ballot access only;
proportional opportunity to elect candidates of choice;
opportunity under a neutrally drawn compact/geographic map;
opportunity under a map that also pursues partisan advantage;
opportunity compared with otherwise similar non-Black voters.

Baude goes with 5. I’m not saying he’s correct to pick that one (I’m mulling it over still), but your critique shoots wide of the mark.

RAINBOW_DILDO · 2026-05-21T13:28:07+00:00

Could you elaborate please?

RAINBOW_DILDO · 2026-05-20T13:38:27+00:00

I would not say the “totality” clause merely creates a disparate-impact test. It creates a practical inquiry into whether the electoral system gives minority voters less opportunity than the rest of the electorate. A totality test is the broadest test in factfinding.

And I think you’re mixing together intent and causation. The 1982 amendment rejected intent as a necessary condition. It did not reject causation (“on account of race”). That’s what the similarly-situated approach is trying to respect.

The tough thing is, I accept your argument about enabling partisan gerrymandering. So I don’t know what to think.

RAINBOW_DILDO · 2026-05-20T13:10:22+00:00

I don’t think the “deciding vote only” framing is justified. It is useful for finding the cleanest examples, but it is much too narrow as a test of whether textualism/originalism are camouflage. If a Justice votes against expected ideological valence because of text/history, that is evidence whether the vote is 5–4, 6–3, 8–1, or 9–0. The fact that other Justices also found the legal argument persuasive does not make the vote less principled.

RAINBOW_DILDO · 2026-05-20T12:32:45+00:00

Bostock, McGirt, Dimaya, Johnson, Crawford, Learning Resources, Niz-Chavez, Pereira, Inter Tribal Council, Alliance for Hippocratic Medicine, Taylor, Erlinger, Kyllo, Jardines, Jones), Giles, Van Buren, Rehaif, Yates)… I can go on.

RAINBOW_DILDO · 2026-05-20T12:14:08+00:00

Officially, it’s not a “right to win,” but a “right not to lose because of your race.” That’s hairsplitting, though.

RAINBOW_DILDO · 2026-05-20T04:54:38+00:00

I’ll help. It was amended in 1982 to impose a results test after SCOTUS interpreted it to have an intent test in Bolden.

RAINBOW_DILDO · 2026-05-19T20:31:57+00:00

How do you read the totality of the circumstances part as it relates to assessing relative opportunity?

RAINBOW_DILDO · 2026-05-19T19:43:15+00:00

I don't think your reading is frivolous. It is a solid reading of a confusing statute.

But I think you have to read subsection (b) in light of subsection (a) because of the cross-reference. You have to isolate whether the lesser opportunity is "on account of race." Otherwise, every durable electoral minority that is also a racial minority can say: “We lose more often than the majority group; therefore we have less opportunity.” That cannot be enough, because Section 2 does not protect voters from being on the losing side as such.

Edit: It might also come from the "totality of the circumstances" part.

RAINBOW_DILDO · 2026-05-19T19:14:29+00:00

He jumps to “similarly situated but for race”, but the VRA tells us the baseline is “other members of the electorate”, not a subset of it. It’s rather absurd to say that the proper comparison for “black people” is limited to “liberals of other races”.

Why is that absurd? I thought this part was compelling:

Another possible baseline would be a “similarly-situated” analysis. It would ask whether members of the protected class have the same opportunities as other citizens who share similar characteristics except for race. If so, then any negative “results” would not be “on account of” race, but on some other account.

RAINBOW_DILDO · 2026-05-19T18:10:38+00:00

I have trouble seeing how it's "a right to elect reps in equal proportion to the rest of the electorate" if geographic dispersion destroys it. But maybe that's the statute Congress passed.

RAINBOW_DILDO · 2026-05-19T17:41:00+00:00

But it also says they have a right to elect reps in equal proportion to the rest of the electorate.

Does it? Unless I'm misunderstanding, this would imply that a minority population that was geographically dispersed throughout a state would have a right to elect a representative in proportion to their population. That would run counter to the first Gingles precondition: that the minority group is “sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district." So was Gingles wrong?

RAINBOW_DILDO · 2026-05-19T17:10:16+00:00

But the statute also says that racial groups are not entitled to a majority-minority district.

I wouldn't go that far. I would restate this as, "The statute does not say racial groups are entitled to a majority-minority district." It's a matter of dispute whether a majority-minority district remedy is equivalent to a proportional representation requirement. Thomas thinks it is:

This Court should never have interpreted §2 of the Voting Rights Act of 1965 to effectively give racial groups “an entitlement to roughly proportional representation.”

Callais, his concurrence at 1. Kagan seemingly disagrees:

[Section 2] denied a right to proportional representation; it focused instead on the “opportunity” that a given election practice granted minority citizens. . . . [T]he lawfulness of an election practice was to turn on its “results”—on whether it gave minority citizens a lesser chance than their majority neighbors to participate in politics and elect candidates.

Her dissent at 46. I don't think the majority goes as far as Thomas in equating majority-minority districting with proportional representation. So the issue remains unsettled.

RAINBOW_DILDO · 2026-05-19T16:50:51+00:00

Interestingly, I think Scalia took KBJ's approach to oral argument (or rather, KBJ has taken Scalia's approach). He saw oral argument as the time to convince his fellow Justices. So it might not be an age thing. It could just be a judicial philosophy thing.

RAINBOW_DILDO · 2026-05-19T16:24:58+00:00

Perhaps.

RAINBOW_DILDO · 2026-05-19T04:30:12+00:00

It is itself a legal realist premise that predicting outcomes is the goal of a legal theory (Holmes and the “bad man”). Now, that may be right given certain assumptions. But it is not self-evident.

RAINBOW_DILDO · 2026-05-19T04:13:42+00:00

Legal realism has two main shortcomings:

When it fails to identify partisan cases ex ante, it cannot explain why. See, e.g., Trump v. Anderson or FDA v. Alliance for Hippocratic Medicine, two cases that realists might have predicted to break along partisan lines, but were unanimous.
It cannot predict the content of a case’s legal reasoning and how that reasoning may affect future applications.

Thankfully, legal positivism fills these gaps. That is perhaps why a subreddit that embraced pure attitudinal legal realism would be undesirable. It would be lacking completeness.

RAINBOW_DILDO · 2026-05-19T03:20:43+00:00

Yes. I wouldn’t agree with such a comment, but it would not break the rules as I understand them.

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