Another Monday Morning Report
As covered on the Michael Patrick Leahy radio show and podcast today….
Thanks to the Tennessee Star (here)!
A. ABA and ERA: Why is the nation’s largest trade association for lawyers advocating a lawless position regarding a failed constitutional amendment that even judicial activist Ruth Bader Ginsburg rejected?
Congress proposed the ERA in 1972. That was 54 years ago. Think lava lamps, bell bottoms, and patchouli oil. Elvis was still alive. The proposed amendment would have added these words to the Constitution: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The ERA would have made “sex”—like race–a suspect classification for Equal Protection purposes. Laws could not discriminate between men and women absent a “compelling state interest.”
Congress set a seven-year deadline for ratification. Thirty-eight of the states (3/4) needed to ratify the ERA by 1979. By 1977, only 35 states had ratified the ERA. Time was running out. Eagle Forum founder Phyllis Schlafly had organized a nationwide movement against the ERA, appealing to traditional women who did not want to be treated the same as men—for purposes of the military draft, serving in combat, family law, sexually-segregated facilities, etc.
Proponents feared the ratification deadline would pass without achieving the requisite approval by ¾ of the states (38), so they suggested “extending” the deadline, which was controversial. Though Congress voted to extend the ratification deadline by an additional three years, until 1982, no new states signed on during the extended ratification period. The last state to ratify, Indiana, did so in 1977. Thanks to Phyllis Schlafly, the ERA had lost its momentum. Complicating matters further, lawmakers in five states — Nebraska, Tennessee, Idaho, Kentucky, and South Dakota — voted to rescind their earlier support.
The ERA was a dead letter.
In 1982, following the expiration of the extended deadline, most activists and lawmakers accepted the ERA’s defeat. Prior to Virginia’s belated ratification in 2020, the U.S. Department of Justice’s Office of Legal Counsel issued a lengthy opinion firmly concluding that the ERA was dead. And the ERA is dead.
Even Ruth Bader Ginsburg, the leading proponent of the Equal Rights Amendment, conceded that it was not ratified by the requisite ¾ of the states within the ratification deadline, even as extended. In 2020, speaking at Georgetown University, Ginsburg stated that “she believes the U.S. should start over with the Equal Rights Amendment (ERA) ratification process, as the constitutional amendment has passed a decades-long deadline.” She also cited the five states that rescinded their ratifications: “‘There’s too much controversy about latecomers,’ Ginsburg said. ‘Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’”
When Virginia belatedly ratified in 2020, 38 years (!) after the ratification expired, it became the 38th state, only if one ignores the states that rescinded their ratifications with the ratification period. Lame-duck Joe Biden deemed the ERA ratified (possibly by Autopen), but that had no legal effect. Now, in 2026, the ABA is taking the absurd position that the ERA is valid, because Biden said so. The ABA is exposing itself as a fringe leftist organization embracing nonsensical radical positions.
Such is the sorry state of our legal establishment.
B. Biden-appointed KBJ is a deranged leftist moron (even Justice Kagan thinks so)
On March 31, the U.S. Supreme Court, in an 8-to-1 decision authored by Trump-appointed Justice Neil Gorsuch, held in Chiles v. Salazar that a Colorado statute forbidding licensed mental health counselors to engage in “conversion therapy” with LGBTQ minors—that is, encouraging biologically male patients to accept the fact that they are male, and encouraging biologically female patients to accept the fact that they are female—while at the same time allowing counselors to engage in “practices” that provide “[a]cceptance, support, and understanding for the facilitation of an individual’s . . . identity exploration and development” and allowing counselors to provide “[a]ssistance to a person undergoing gender transition.”
In other words, Colorado put its thumb on the therapeutic scales by encouraging the “trans-ing” of patients but prohibiting counseling the acceptance of their biological sex. (Twenty-five other states have similar laws.) A licensed counselor who engages in “talk therapy,” Kaley Chiles, challenged the law on First Amendment grounds as viewpoint-based censorship. Chiles, a Christian, complained that Colorado’s law censored her therapy practice. The majority ruled that:
Consistent with the First Amendment’s jealous protections for the individual’s right to think and speak freely, this Court has long held that laws regulating speech based on its subject matter or “communicative content” are “presumptively unconstitutional.”… As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express…. But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it. The law forbids her from saying anything that “attempts . . . to change” a client’s “sexual orientation or gender identity,” including anything that might represent an “effor[t] to change [her client’s] behaviors or gender expressions or . . . romantic attraction[s].”
All of the justices, including Justices Elena Kagan and Sonia “The Wise Latina” Sotomayor (both appointed by Obama), joined Gorsuch’s opinion, except for one: the dunce appointed by Biden (or his Autopen), Ketanji Brown Jackson. KBJ—who at her confirmation hearing couldn’t tell Sen. Marsha Blackburn what a “woman” was–dissented. KBJ’s solo dissent went on for 34 pages, and included such infelicitous (and trite) phrases and cliches as “the majority plays with fire,” “We are on a slippery slope now,” “The fallout could be catastrophic,” and “To do anything else opens a dangerous can of worms.” Who knew that a can of worms—as opposed to a Pandora’s Box—was dangerous? Scalia, she is not!
Justice Kagan dismissed her colleague’s sophomoric musings in a footnote to her concurring opinion (joined by Sotomayor):
JUSTICE JACKSON’s dissenting opinion claims that [content-based but viewpoint-neutral laws regulating speech in doctors’ and counselors’ offices] is a small, or even nonexistent, category. But even her own opinion, when listing laws supposedly put at risk today, offers quite a few examples. Her view to the contrary rests on reimagining—and in that way collapsing—the well-settled distinction between viewpoint-based and other content-based speech restrictions. See, e.g., Vidal v. Elster, 602 U. S. 286, 292–293 (2024) (explaining the difference).
KBJ opined throughout her dissent that the state has nearly carte blanche authority to regulate medical professionals, but she dissented from the 2025 Skrmetti decision, which involved state regulation of the medical profession! She is a trans activist in black robes!
Law professor Jonathan Turley pronounced that “The dissent in Chiles is only the latest example of the chilling jurisprudence of Justice Jackson, including a pronounced dismissal of free speech values.”
If Democrats ever regain control of the White House, expect future Supreme Court appointments to resemble KBJ.
C. Crazy rulings galore
Immigration
An Obama-appointed federal district judge in Massachusetts, Allison Burroughs, ordered President Trump to reinstate Biden’s unilateral grant of “parole” to nearly a million immigrants who were allowed to use an app (CBP One) to receive temporary legal status and work authorization while their cases were adjudicated. President Trump canceled the CBP One app on his first day in office and ended their legal status. From ABC News: “The Trump administration must restore the legal status of potentially hundreds of thousands of immigrants who came to the United States legally through a Biden-era pathway, a federal judge ruled Tuesday.
U.S. District Judge Allison Burroughs said the Department of Homeland Security acted unlawfully last year when it sent a notice telling many of the over 900,000 immigrants who used the CBP One app: ‘It is time for you to leave the United States.’” This is judicial insurrection.
The Trump administration will appeal.
White House Ballroom/Ballroom Blitz
As most people know, President Trump is replacing the decrepit east wing of the White House with a privately-funded $400 million ballroom large enough to accommodate major events without resorting to setting up tents on the White House lawn. His proposed design is gorgeous. He builds trophy properties for a living. The project is under budget, ahead of schedule, and being built at no cost to the taxpayer.
But in D.C., all it takes to halt progress is a partisan group filing a lawsuit before a rogue judge, which is what happened when the National Trust for Historic Preservation relied on “aesthetic standing” to challenge the project in federal district court in D.C. A 76-year-old George W. Bush appointee, Richard Leon, ordered the project to halt, absent Congressional approval. President Trump will appeal, and the decision will likely be reversed. Since when does an offended observer have “standing” to block the action of the POTUS regarding a modification of the White House?
Two days after senior Judge Leon’s activist ruling, the National Capital Planning Commission, the agency that signs off on construction on federal property in the Washington region, voted 8-1 to approve the ballroom. The Commission has more authority over the ballroom project than a random NGO or a rogue federal judge. The judicial insurrection is becoming an embarrassment to the nation as well as a threat to the rule of law.
Leon’s 35-page opinion contains a record number of exclamation points—not often seen in judicial decisions. At least 18 exclamation points! Four times, Judge Leon started his refutation of an argument made by the defendants with “Please!” This is jejune, sophomoric behavior by a senior status judge, or more likely his fresh-out-of-law school clerks.
President Trump called the National Trust “a Radical Left Group of Lunatics whose funding was stopped by Congress in 2005.”
Legal Insurrection concluded: “In the end, this is less about a ballroom than it is about power — who wields it, and who gets to obstruct it. The injunction may slow the project, but it’s unlikely to stop it. If anything, it underscores how readily the courts are being used to challenge presidential authority at every turn. Whether the ballroom rises or not, this clash is just one more chapter in a broader struggle that is unlikely to end anytime soon.” Wake up, America!
D. Potpourri
Nullification died in the state Senate (again). Many Republicans voted for a nutty bill that our excellent AG correctly opined was unconstitutional. This does not reflect well on the conservative movement in Tennessee.
SB1958, the bill that would rescind the disastrous mistake enacted in 2018, T.C.A. 1-3-121, was passed in the General Assembly. Sen. John Stevens’s bill was supported by Attorney General Jonathan Skrmetti and Tennessee Right to Life, but—bizarrely–opposed by many “conservative” groups, including the Williamson County GOP, the Beacon Center, Tennessee Stands, and some single-issue gun groups. Again, this does not reflect well on the conservative movement in Tennessee.
Birthright Citizenship was argued in the Supreme Court. The case is a long shot, but the fact that it is before the Supreme Court shows that longstanding “conventional wisdom” can be re-evaluated in light of originalist legal scholarship. It is amazing to think that the WSJ, an anti-Trump publication that advocates open borders, ran an opinion piece by Randy Barnett with the title “Trump Is Right on Birthright Citizenship.” If the Court rules against Trump’s EO, Congress should eliminate birthright citizenship pursuant to Section 5 of the Fourteenth Amendment.
AG Pam Bondi got sacked. U.S. Attorney General is the toughest job in President Trump’s cabinet. Ask Jeff Sessions and Bill Barr. DOJ is a huge bureaucracy loaded with liberal activists, operating in a federal judiciary engaged in Massive Resistance. Pam Bondi has some faults, but President Trump’s expectations of criminal prosecutions of his protagonists (John Brennan, James Comey, Leticia James, Adam Schiff, Jack Smith, Liz Cheney, etc.) are unrealistic. D.C.’s bench and jury pool are no longer part of the U.S.
