We will hear argument first this morning in Case 23-1197, Landor versus Louisiana Department of Corrections and Public Safety. Mr. Tripp. ORAL ARGUMENT OF ZACHARY D. TRIPP ON BEHALF OF THE PETITIONER
“This is a purely procedural, administrative statement announcing the case and inviting counsel to begin argument. It carries no emotional valence whatsoever.”
Mr. Chief Justice, and may it please the Court: It is undisputed that my client has alleged an assault that is just brazenly illegal. He was at Respondents' mercy in federally funded custody when he handed them a copy of controlling precedent holding that RLUIPA protected his right to keep his hair long. They threw it away, handcuffed him to a chair, and shaved him bald. It is the poster child for a RLUIPA violation, and the law provides a damages remedy. This is spending legislation, so I want to go right to that and make two points about clarity and constitutionality. So, first, on clarity, the whole point 1 of this law is to restore pre-Smith rights and remedies. Damages were available before Smith. They're available under RFRA. And RLUIPA uses identical language. They're like twins separated at birth. They clearly mean the same thing. The individual capacity action is especially clear. On the face of the statute, it expressly authorizes suit against an official or any other person acting under color of state law. That obviously means individual capacity. And then, once you see there's an individual capacity action, the rest of it falls into line because damages -- the whole point of individual capacity is to have damages; damages are presumptively available against a non-sovereign; and without damages, officials can literally treat the law like garbage. On constitutionality, it is undisputed, Respondents admit, they must comply with RLUIPA within the scope of their work as officers in a federally funded state prison. And this Court has already held in Salinas that officers in a federally funded state prison can 1 be held individually liable for misconduct that threatens the integrity or proper operation of the program, and that describes this case to a "T." So RLUIPA is clear, it's constitutional, and we're asking the Court to reverse. I welcome the Court's questions.
Do you have examples of causes of action for damages that are viable as a result of the spending -- exercise of the spending power?
“The Justice is genuinely asking for examples to understand the scope of damages actions under the Spending Clause, which is primarily a clarifying question seeking concrete information. There is also an element of intellectual engagement as the Justice probes the legal landscape, with mild skepticism in the implication that such examples may be limited or difficult to identify.”
I mean, I think there's -- there's many statutes that have causes of action under the Spending Clause. I mean, under Talevski, this Court held that it was enforceable under Section 1983. We also give a long list in our brief of Spending Clause actions that include civil liability running all the way back to the founding. I mean, we give an example of a 1789 law, the false claims --
How do you -- how would you get to the authority under the Spending Clause to create these damages actions 1 that you suggest?
“The Justice is probing the legal basis for the petitioner's damages theory under the Spending Clause, suggesting doubt about whether that constitutional provision actually grants such authority. The 'how would you get to' phrasing signals skepticism about the argument's foundation, though it also has a clarifying dimension as the Justice seeks the specific legal pathway the petitioner is relying upon.”
So I think there's sort of two -- two paths in -- in --
In -- in this case, I think there's two paths to do it. One is to follow the path that this Court has set forth in -- in Salinas in particular, Salinas, Dixson, Laudani, and Hess, and to just hold that --
Salinas was about an officer in a federally funded state prison who accepted a bribe to provide preferential treatment.
And isn't there a difference between a bribe and a lawsuit for dam -- individual damages?
“The 'isn't there a difference' phrasing is a classic skeptical rhetorical question, probing whether the petitioner's argument improperly conflates two distinct legal concepts (bribery vs. individual damages lawsuits). The Justice appears to be challenging the equivalence the petitioner is drawing between these two scenarios.”
Well, he was being held individually liable for criminal penalties, which I think is something that clearly requires the Necessary and Proper Clause in addition to just ordinary civil --
But I thought the 1 argument there was that if -- if you provide the -- the funds, you have a right to protect it?
“The phrase 'But I thought' signals mild skepticism, implying the justice is probing whether counsel's argument aligns with a previously understood principle about funding rights. The question also has a clarifying dimension as the justice seeks to test or confirm their understanding of the underlying argument.”
I mean, I -- I think that protection of funds -- well, maybe sort of two things. First, in Salinas, when the Court was describing the thing that -- that was the -- the -- was interfering with the proper operation of the program, it wasn't the acceptance of the bribe. It was the preferential conjugal visits. It was the misconduct itself and so just applying the test that Salinas set forth. And I think, actually, my friends don't --
To make that clear, there were no federal funds at issue. The bribe was going into a correction officer's pocket, correct?
“The Justice is explicitly seeking to establish a clear factual premise about the case ('To make that clear...'), confirming that no federal funds were directly involved and the bribe went to a corrections officer. This is a neutral clarifying question aimed at pinning down the specific facts before proceeding with legal analysis.”
That's right. There was -- there was no -- no diversion of federal funds.
So no risk to the government's money?
“The terse, pointed question 'So no risk to the government's money?' strongly suggests skepticism — the Justice appears to be probing or challenging the petitioner's position by highlighting what seems like an implausible claim that there is no financial risk to the government. There is also an element of concern about fiscal implications.”
No risk to the 1 government's money?
“The terse, pointed question challenges the petitioner's apparent claim that government money faces no risk, suggesting the Justice doubts this position. The rhetorical brevity implies skepticism, though it could also be seeking clarification on this specific point.”
That's -- or at least certainly not direct. If anything, it was prophylactic. And, here, I think it's really much more direct.
The question there then was the risk to the government program, correct?
“The Justice is confirming their understanding of a prior case's central question, seeking verification of a factual/legal point. The 'correct?' tag signals a clarifying intent to establish shared understanding of precedent before building further argument.”
And, here, the risk is to what?
“This brief, pointed question appears to be genuinely seeking clarification about the nature of the risk being argued, asking counsel to specify or define what is at stake. The terse phrasing carries a slight skeptical undertone, as it may challenge the petitioner to articulate their argument more precisely.”
To the government program to accommodate religious liberty. I mean, that's -- that's the heart of this program under RLUIPA, is, if you want federal funds for state prisons, you need to accommodate religious liberty.
Now, going back to Justice Thomas's question about other statutes that are at risk if we were to hold that you 1 can't bind third parties, I have dozens of them cited by you and the government where we've permitted -- or causes of action with damages, Title IX, Title VI, the Federal Nursing Home Reform Act, the Emergency Medical Treatment Act, the antifraud statutes, there's a long list of statutes where we said the statutes can bind third parties, correct?
“The Justice is referencing prior case law and a list of statutes to confirm that binding third parties is an established legal principle, seemingly supporting the petitioner's position by cataloging precedents in their favor. The 'correct?' at the end seeks confirmation rather than challenging the argument, blending clarification with mild approval.”
Counsel, the basis for state liability here is, of course, an agreement with the federal government, right? In other words, they've cut a deal, get the money, and they're going to be -- have to comply with these conditions. But there was no such arrangement with the defendant in this case, right?
“The Justice is probing the logical basis of the petitioner's argument by distinguishing the state's liability (based on a federal funding agreement) from the defendant's situation (no such arrangement), suggesting skepticism about extending the same liability framework. The 'right?' confirmations indicate the Justice is building toward a challenge while also seeking clarification of the factual/legal distinction.”
They didn't have a direct relationship with the federal government. They didn't get directly any federal financial assistance. So you don't have the same basis for liability as we do in 1 the other typical Spending Clause case, right?
“The Justice is probing the weakness in petitioner's argument by pointing out the absence of a direct federal relationship and direct financial assistance, ending with a rhetorical question ('right?') that challenges the basis for liability. This is classic skeptical questioning designed to expose a gap in the petitioner's legal theory.”
Right. It's indirect, right, because the officer -- and -- and what this Court said in -- in Rust is that if a person goes to work for a federally funded program, then they take the job subject to the conditions that Congress has attached to the funds. And, of course, I think they're -- they're already admitting, again, that they're bound by the substantive condition really by virtue of their choice to voluntarily work as officers in a federally funded program. And so I think it's that sort of the -- the -- the chain of privity is the thing that makes this case sort of considerably easier, I think, than a case like Sabri or some others where you're trying to reach somebody who's a member of the general public, because these -- these are not members of the general public. They're state officers. They voluntarily accepted this job. They each have all of their own employment contracts, and they take it subject to that condition. I think one thing that's also sort of 1 relevant is that as state officers in -- in a prison, individual capacity damages are the norm for them. The -- we have an amicus brief from former corrections officials who talk about how, of course, this is something that they're all trained on, everybody understands this because, under Section 1983, individual capacity damages are -- they're just the paradigmatic remedy --
But the -- the hard part, as I see it, for your case for me is that you need a clear statement, and "appropriate relief," you know, is not as -- as clear as it could be in encompassing damages. So how do you deal with that? I -- I don't want to water down our precedent on that on -- but, at the same time, I want to hear your response to how you -- how you get there.
“The Justice explicitly identifies a core weakness in petitioner's argument—the need for a clear statement that 'appropriate relief' encompasses damages—while signaling genuine struggle with the issue. The phrase 'the hard part for your case' and reference to not wanting to 'water down precedent' reflects skepticism about petitioner's position, though the Justice's acknowledgment of wanting to hear the response shows some openness and engagement rather than outright hostility.”
Yeah. I -- I -- I think it's sort of -- the -- the first thing, and -- and I'd love for you to look at it, is just to lay eyes on the individual capacity action. It's in the Pet. App. At 41(a). It's got a cause of action. It's titled Judicial Relief, is the name of the statute, and then subsection 1 (a), Cause of Action. A person may assert a violation of this chapter as a claim or defense in a judicial proceeding to obtain the appropriate relief against the government. Who is the government? You go in a few pages and it says an official or any other person acting under color of state law. And -- and that's just obviously individual capacity. Tanzin already says this. It says that it provides a clear answer, and the text is identical. And then I think, once you see there's --
Well, on -- on Tanzin, I'm not sure it quite says clear answer. I think it says it's the best answer, it's a traditional answer. I'm not sure it quite says --
“The Justice is carefully parsing the precise language of Tanzin, pushing back on what appears to be counsel's characterization of the case as giving a 'clear answer,' suggesting skepticism about that framing while also genuinely clarifying what the case actually said.”
Sorry. One -- one -- one -- sorry, one -- one step. On individual capacity, it says --
Yeah. Oh, yes. I'm talking about damages.
“This is a brief, procedural clarification where the Justice confirms what topic they are addressing (damages). The casual affirmative tone ('Yeah. Oh, yes.') suggests a neutral to mildly clarifying intent with no emotional charge.”
Yes. And then, once you see there is individual capacity --
-- because I think it's express on the face of the statute, then --
I'm asking about damages.
Right. Then, at that point, the -- the Franklin presumption kicks in because you have a cause of action against a non-sovereign, and -- and the ordinary rule at that point is, where there's a right, there's a remedy, right? There's a right. Congress has created expressly the cause of action, and damages are presumptively available unless Congress says otherwise. It then taps into the very deep tradition that Tanzin sets out of individual capacity liability that goes all the way back to the early republic. That's what these have always been for, is to obtain damages. And if you can't obtain damages, the individual capacity action is totally meaningless. You can already enjoin them in their official capacity. So the only thing you get is damages. And then I think also, I think, you 1 know, when -- when you look at just the operation of this statute, the -- the -- the statute just doesn't actually provide its promised protection in a large set of cases if damages are not available. And it's not just this case. I mean, I think, if you go through the amicus briefs, there are -- are many situations, some -- some very ugly ones, where, effectively, the -- the -- the statute is ineffective, and I think one of the things particularly troubling about the way Respondents' rule would work is that the very officers who are, like, violating the law can also basically unilaterally decide to turn it off by transferring the prisoner to a different facility.
Sorry, go ahead. Please finish.
“This is a purely procedural/courteous statement where the Justice apologizes for an interruption and invites counsel to continue speaking. It carries no substantive judicial sentiment beyond basic courtroom decorum.”
So -- so, even in a case where injunctive relief might be helpful, they -- they can moot it out by transferring the person, and I think --
All right. On -- on that point, and then I want to get back to the Chief Justice's question, as I understand it, the circuits are unanimously against you and have been for many, many, many years. So saying that something awful is going to happen, it's -- whatever has happened has happened, right?
“The Justice is directly challenging the petitioner's argument by pointing out that unanimous circuit court precedent against them undermines their 'parade of horribles' concern — this is classic skepticism. The rhetorical framing 'whatever has happened has happened' dismisses the dire consequences argument, showing doubt about its validity without crossing into outright hostility.”
That -- that's correct. It's happening, yeah.
Okay. Yeah. And it's been -- it's been this way for a very long time in every circuit in the country.
“The Justice appears to be acknowledging or affirming a point made by counsel, noting that the legal practice or interpretation has been consistent across all circuits for a long time. This suggests mild approval or agreement, while the casual 'Okay. Yeah.' indicates a somewhat neutral, conversational acknowledgment.”
Yeah. And on the Chief Justice's question, I -- I -- I -- I'm struggling -- where I'm struggling is, where did the defendant, the individual defendants agree to the -- with the federal government to be bound and what notice did they have? And I understand your point earlier to the Chief that they're -- they're subject to state regulations and -- and -- and with their contract with the state. And, of course, an 1 agent can be liable to its principal for violating what the principal dictates. But the agent isn't normally liable to a third party for a breach of the principal's duties with respect to a third party. So, even when the agent causes the breach, even when the agent negotiates the contract, he's not liable to the third party. He's only liable to the principal. So, if we're looking to background contract principles, to the extent they're relevant, and maybe you're going to tell me they're not, that's fine, but to the extent we would, it wouldn't seem to encompass these defendants, and every circuit in the court -- every circuit court in the country would appear to be correct.
“The Justice is actively probing the petitioner's argument by walking through agency/contract law principles that appear to undermine the petitioner's position, suggesting individual defendants wouldn't be liable to third parties under background contract principles. The concluding observation that 'every circuit court in the country would appear to be correct' (i.e., against petitioner) signals strong skepticism, while the extended legal reasoning also reflects genuine intellectual engagement with the doctrinal framework.”
Yeah. I think what that's missing, and we traced this out in our opening brief, is that contracts are extraordinarily flexible and you can and people do --
Ah, yes. Okay. Your brief does go into that, that -- that 1 Congress could have easily written a statute that does this and says that those individual officers have to agree with the federal government to be bound under federal law. I agree, it could have done that. And -- and you say it could have done this in 15 different ways in your brief. I agree with you. My -- my -- my concern is it had -- it didn't do that. It could do that, but it didn't do that. It left it to the states.
“The Justice explicitly acknowledges agreement with parts of counsel's argument ('I agree with you') while expressing a substantive concern about what Congress actually did versus what it could have done. The repeated 'my concern is' signals worry about the statutory interpretation implications, and the skepticism arises from the Justice probing whether the argument holds given that Congress chose not to include explicit language.”
And I think that's really where I fundamentally disagree.
I think Congress did do it. What it said in this statute is that, first of all, obviously, the states need to accommodate religious liberty, and then it is clear as day --
-- it -- it -- that if you agree to be an -- an officer or other person acting under color of state law in this statute and you deprive a person of their religious liberties, in violation of this statute, then 1 you are subject to suit or you will be the defendant in a cause of action for appropriate relief. That is on the face of the statute. And the individual officers, they can agree to take the job or not. They can demand higher wages. They can demand indemnity, like Louisiana gives it. And I think one of the things that really breaks down in their argument is they admit that it applies to them. They admit that they need to comply within the scope of their work. And it comes not just with a substantive condition but also with a remedial one. And then I also do want to just come back to, in this Court's precedents, it's made clear that the Court -- that Congress can combine the spending power with the Necessary and Proper Clause to -- to -- to impose liability, I mean, criminal liability in Salinas and --
No, I -- I -- I don't doubt it could and -- and I don't doubt that when it's -- when it's protecting its money, as in some of those cases, Salinas, that that interest is -- is clear. What I'm struggling with is did it, not could it, did 1 it?
“The Justice is openly acknowledging the theoretical possibility of the argument ('I don't doubt it could') but pressing on whether it actually occurred in this case, signaling skepticism about whether the factual predicate has been established. The phrase 'What I'm struggling with' combined with the did/could distinction indicates genuine probing doubt about the sufficiency of the argument as applied.”
Did -- did -- did these individual defendants have notice? Did they agree?
“The rapid-fire repetitive questioning style ('did-did-did') suggests the Justice is probing a potential weakness in the argument regarding individual defendants' notice and consent, which reflects both skepticism about the argument's validity and a genuine need for clarification on a key legal point.”
Would you agree that the -- the individual defendants have to have notice?
“The question 'Would you agree that...' is primarily seeking to establish a point of agreement or clarify the petitioner's position on notice requirements for individual defendants. It reads as a clarifying probe to pin down a legal premise, though slight skepticism exists as it may be testing whether counsel will concede a potentially limiting principle.”
I think, as the -- the way this Court's precedents work, the notice runs to the state. And then, as defendants --
So -- so the defendants don't have to have notice?
“The 'So--so' stutter signals surprise or disbelief at the implication being drawn, suggesting the Justice finds the argument troubling. The question probes a potential weakness—lack of notice for defendants—which raises due process concerns and challenges the petitioner's position.”
But why don't they -- why -- why don't they have notice if they have to --
“The interrupted, fragmented question ('But why don't they -- why -- why don't they have notice') signals both skepticism about the petitioner's argument regarding notice and some clarifying intent. The repetition and self-interruption suggest the Justice is pushing back on a claimed lack of notice while also trying to articulate the precise question.”
Well, no, if I might just finish, I'm sorry.
“This utterance is largely procedural, with a Justice politely but firmly asserting the floor to finish their point. The 'Well, no' suggests mild pushback or correction, with slight hostility signaled by the interruption dynamic, but the apologetic 'I'm sorry' softens the tone considerably, making this predominantly neutral/procedural.”
Do -- do the defendants have to have notice, yes or no?
“The blunt 'yes or no' framing signals impatience and pressure on counsel to commit to a clear position, suggesting skepticism toward an evasive or complex answer being given. However, the core question is also genuinely clarifying, seeking a definitive legal answer on the notice requirement.”
If I could be clear -- if 1 I could be clear, it depends on which -- which way you think about it. The one way to think about it runs all the way through consent and then, of course, they need notice because they took the job, they have to take it subject to the conditions.
Do -- counsel, it's just really simple. Do the individual defendants have to have notice?
“The Justice is directly asking a simple yes/no question to pin down the petitioner's position on whether individual defendants need notice. The phrase 'it's just really simple' suggests mild frustration or impatience, but the primary intent is to clarify a key legal question rather than challenge the argument.”
They -- they have to have notice of the condition when they sign up to it.
Okay. And do they have to consent to the -- the conditions?
“The Justice is asking a straightforward clarifying question about whether consent is required for conditions, seeking to understand the mechanics of the legal framework being argued. The 'Okay' opener and direct question indicate genuine information-seeking rather than skepticism or challenge.”
I mean, they consent by virtue of taking the job, yes.
Just do -- do they have to consent?
“This is a short, direct question seeking a specific factual or legal clarification about whether consent is required. The phrasing 'Just do -- do they have to consent?' suggests the Justice is cutting to the core of an issue to get a clear answer, indicating genuine clarification-seeking behavior.”
By -- by taking the job, yes.
Is that a -- do they -- is that a yes, they have to consent, or is that no, they don't?
“The Justice is straightforwardly seeking a direct yes/no answer to clarify whether consent is required, indicating they found the counsel's previous answer ambiguous or unclear. This is a quintessential clarifying question with no evident emotional valence.”
I mean, under this Court's -- sorry, I just want to be clear about 1 this.
I just want to know what your answer is.
“This phrase suggests mild frustration or impatience, indicating the counsel may be evading or overcomplicating their response. While primarily seeking clarification, the 'I just want to know' phrasing carries a slightly sharp or impatient tone that hints at hostility or skepticism toward the counsel's responsiveness.”
My -- my answer is that they did consent here, that if you're going to think about this purely as a matter of consent, which we trace through in our opening brief, then, of course, they need to consent.
I think this Court's cases go farther. Mr. Sabri did not consent.
-- I understand the -- the -- the -- the -- the fraud cases. But I'm asking do they need to consent, and I'm hearing --
“The Justice is cutting through counsel's answer to refocus on a specific question about consent, indicating frustration that their question isn't being directly answered. The interruption and 'I'm asking' signals mild hostility/skepticism, but the primary intent is clarifying — the Justice wants a direct answer to their specific legal question about consent requirements.”
Not under this Court's cases.
This Court's cases go farther.
But can -- can I 1 follow up with that just on the facts of this case because, as I understand your argument, we do have both notice and consent under these circumstances given that these individuals as third parties are not just people in the world, they are employees of the recipient of federal funds. And so, to the extent that the recipient of federal funds has made clear with the federal government that it's going to require its employees to comply with RLUIPA and not violate people's rights, then, when those employees decide, choose, consent to accept a job with that employer, they are thereby consenting to follow those agreements. Is that right?
“The Justice is primarily seeking to clarify and confirm their understanding of the petitioner's argument regarding notice and consent for third-party employees, summarizing the logic chain and asking 'Is that right?' - a classic clarifying move. There is a slight hint of approval in how the Justice reconstructs the argument favorably, and some engagement in exploring the logical structure.”
That -- that is exactly right. And I think that's why, when this Court has had these cases, Salinas, Dixson, Hess, Laudani, it's a whole line of cases involving officers, agents, employees, subcontractors, where there's this chain of privity --
-- every time, the Court has -- has I think actually seen this, in 1 Salinas, said there was no serious doubt. This is not a hard case.
Because chain of privity is -- is a classic contracts concept so that even if you thought that contracts was governing this, we have individuals who, for example -- I mean, I -- I -- I suppose -- let me just give you a hypothetical -- what if the prison in this situation actually appends to its employment contract all of the conditions that it has agreed to with the federal government. And, of course, the prison can only operate under its employees' direct -- not direction but because there are employees. In other words, the prison doesn't have its own activity. So, to the extent that it agrees with the federal government that it's going to comply with RLUIPA, it's saying I and my employees, the agents that I employ, are going to do this. And so let's say the prison actually appends to its employment contract all of the conditions that the federal government requires for the receipt of federal funds, so the person 1 is -- who is choosing to be an employee is totally apprised of what it is that is required as a condition of employment. I understand your argument to be that that would be sufficient even if we assume that there has to be notice and consent to satisfy any such agreement?
“The Justice is constructing an elaborate hypothetical to explore whether notice and consent requirements could be satisfied through contractual chain of privity, showing deep intellectual engagement with the legal theory. The final question seeking confirmation of the petitioner's argument ('I understand your argument to be...') indicates a clarifying intent while the elaborate hypothetical construction reflects genuine engagement with the legal concepts.”
Of -- of course. And I think what this Court has said -- if I could --
-- in Rust versus Sullivan and then in Alden versus Maine as to state officers specifically is, when you go into this job, when you go into this line of work and you voluntarily agree to be an officer in a federally funded state program, then, yes, you -- you -- you implicitly -- you necessarily take it subject to the conditions that Congress has attached to the funds.
Thank you, counsel. Your answer that you've just given to my colleague is based on a legal fiction, right? If you're hired as a prison guard in 1 Louisiana, you don't sit down and -- I don't even know if Louisiana does -- saying, oh, here's our agreement with the federal government, which probably goes on for I don't know how many pages, and you should look at it carefully because you're bound by it. That's not what happens as a matter of practice. And I don't think when the prison guard is hired, he says, well, I want to see the federal conditions that you agreed to under the contract.
“The Justice directly challenges counsel's argument as a 'legal fiction,' expressing strong doubt about the practical reality of the legal theory being advanced. The rhetorical questioning and dismissive framing ('that's not what happens as a matter of practice') signal clear skepticism about the argument's real-world applicability, with a slight edge of hostility in calling it a 'legal fiction.'”
I mean, I -- I certainly doubt that anything like that happens, but we do have the amicus brief of the former corrections officials that talks about how there is training on compliance with federal law, that individual capacity damages are the norm, and, again, they're not disputing that they need to comply with RLUIPA's substantive condition in the scope of their work. And I think what they haven't come up with is any kind of reasoned explanation why Congress can impose the condition on them but then can't enforce it, especially through civil liability, when this Court in Salinas, Dixson, 1 Hess, and Laudani has -- has already done that and actually gone farther, and I think Sabri goes considerably farther.
Thank you, counsel. Justice Thomas?
“This is a purely procedural statement — thanking counsel and yielding the floor to Justice Thomas — with no emotional valence or substantive content whatsoever.”
Are we to analyze this any differently under the Spending Clause than we would under -- would under another -- under one of the enumerated powers?
“The justice is genuinely probing whether a different constitutional framework applies, seeking to understand the doctrinal distinction (or lack thereof) between Spending Clause analysis and enumerated powers analysis. This is primarily a clarifying question with intellectual engagement, testing whether the petitioner's argument hinges on a specific constitutional clause or applies more broadly.”
I think that the Spending Clause, of course, impacts the analysis. I think it impacts the textual --
How -- how does it impact it?
“This short, direct question ('How does it impact it?') is a genuine request for elaboration or explanation, indicating the Justice is seeking to understand the mechanics of an argument. The hesitation ('How -- how') suggests the Justice is genuinely trying to formulate a clarifying question rather than challenge the argument.”
Well, I think from this -- this Court's cases in, like, Dole, among other things, that there needs to be clear notice, which is why I started there, and I think it's been fully provided.
Do we throw out on that -- in that analysis the contract analogy or framework?
“The Justice is genuinely seeking clarification about whether the contract analogy/framework should be abandoned in the analysis being discussed. The phrasing 'do we throw out' suggests intellectual curiosity about the proper analytical framework rather than hostility or strong skepticism.”
I think the contract analogy is a helpful framework, I think, for 1 understanding the scope of the Spending Clause alone, but this Court has made clear -- and Respondents are not asking you to overrule any of your precedents. This Court has made clear repeatedly that Congress can also combine spending with necessary and proper. And I think one of the things that's unusual about this case is that -- is that this is within Congress's power either way you look at it because the chain of privity gets you there on consent, and then Salinas gets you with necessary and proper -- I mean, Salinas is criminal liability, which is never available via contract, whereas this is just civil. This is an ordinary remedy available as a matter of contract. I think this is really much more in the heartland of Congress's power.
Just out of -- excuse me -- just out of curiosity, did this prison shave the heads of all of the prisoners?
“The justice explicitly frames this as a curiosity question ('just out of curiosity'), indicating genuine intellectual interest rather than challenge or concern. The question seeks factual clarification about the prison's general practices, likely to contextualize the specific treatment at issue in the case.”
As I understand it, yes, that was the rule for --
They shaved the heads? They didn't allow any type of even a short 1 haircut?
“The Justice appears to be genuinely seeking clarification about the specific facts of the case — whether complete head shaving was required versus allowing short haircuts. The follow-up question suggests the Justice wants to understand the precise nature of the restriction before forming a view, making this primarily a clarifying inquiry with some concern about the severity of the policy.”
I guess I -- I -- I can't speak to the length. As I -- as I understand it, the -- the rule across the board was everybody who comes in gets their hair cut, and I think it's really the paradigmatic example of the kind of inflexible and unyielding rule that Congress, in enacting this statute, was trying to get states to stop if they wanted to accept federal funds, that they needed to accommodate religious liberty.
If the language of RLUIPA was not clear enough to abrogate sovereign immunity in Sossamon, why is it clear enough to satisfy the Spending Clause?
“The Justice is directly challenging the petitioner's argument by drawing an apparent contradiction between two legal standards—using the Court's own prior ruling in Sossamon to probe whether RLUIPA's language can simultaneously fail one clarity test while satisfying another. This is a classic skeptical rhetorical question designed to expose a logical inconsistency in the petitioner's position.”
I think it's really two answers. The -- the first is, as Tanzin explained and -- and this Court has said many times, you -- you always understand text in context. And the context of what's appropriate in a suit against a sovereign is very different than the context of what's available against an individual. This Court said this in Sossamon. It also said it in Tanzin. The tradition as to a sovereign, of 1 course, is you don't get damages, but as to an individual, this is a tradition that runs all the way back to the founding. I mean, damages have always been available in -- in -- in that context. And so I think the context is -- is probably the clearest answer. I think there's also some suggestion, if you compare Franklin and Sossamon, that the clear notice standard on the spending side is not as demanding as the sovereign immunity, but I think you don't need to get into that because the -- the contextual difference is so -- is so clear.
Well, why should it be less demanding under the Spending Clause? When the question is whether Congress has abrogated sovereign immunity, the question is whether Congress has done something to itself. When the question is whether Congress has imposed a condition on the state, the question is whether Congress has done something to another sovereign. Why shouldn't the standard be at least as strong --
“The Justice is directly challenging the petitioner's position by questioning why the Spending Clause standard should be less demanding, using a logical contrast between Congressional action on itself versus on another sovereign. This reflects strong skepticism toward the argument that a lesser standard applies, while also showing intellectual engagement in exploring the structural reasoning.”
-- when it is doing 1 something to another sovereign, to the employees of another sovereign?
“The Justice appears to be probing the limits of the petitioner's argument by focusing on the specific scenario of one sovereign acting against employees of another sovereign. The interruption marker ('--') suggests the Justice is pressing on a key distinction, combining clarifying intent with some skepticism about whether the argument holds in this particular sovereign-to-sovereign context.”
So, on -- on that -- first of all, Sossamon was as to another sovereign, right? It was as to the state. And I'm not fighting --
Okay. I understand that, yes.
“This is a brief acknowledgment indicating the Justice has understood a point made by counsel. The phrasing 'Okay. I understand that, yes.' is a standard procedural affirmation with no strong emotional valence, suggesting neutral comprehension rather than approval, skepticism, or any other charged sentiment.”
I think I'm comfortable with it being the same standard, I mean -- but I think we have the clarity. It's drawn from context. And I think one of the things that's very different about this case than this Court's other recent cases in this area is this is not an implied right of action. There's nothing implied here. This is not implied enforcement through Section 1983. This is an express right, an express remedy. It expressly runs against an individual. And as -- as Tanzin said, the distinction from the sovereign context is obvious.
To the extent that prison officials have been doing things that violate RLUIPA but wouldn't violate the Free Exercise Clause, who's -- who is to blame for 1 that?
“The question probes the logical implications of RLUIPA going beyond the Free Exercise Clause, suggesting some skepticism about who bears responsibility for compliance gaps. It also has elements of concern about systemic consequences and engagement with the underlying policy question.”
The -- the conduct on the ground?
Well, who is to blame for the situation that allows that to happen?
“The question 'who is to blame' signals skeptical probing, challenging the petitioner's position by implying there may be a culpable party whose responsibility undermines the argument. The framing also carries concern about the consequences of 'that situation,' suggesting the Justice is troubled by implications of the petitioner's position.”
I mean, I think, under -- under this -- this Court's decision in Employment Division against Smith, there is -- there is some daylight. And the -- the crux of this law, I think, is that Congress wanted to ensure that any state prison that accepted federal funds -- this is the heartland of the law -- provided greater accommodations, provided pre-Smith protections, and damages were vital to the pre-Smith scheme, as Tanzin made clear.
I -- I see the issues here on two levels. The first is, is it clear that an individual is bound by the statute? Is there an express cause of action? And that's clear. It says anyone can bring a suit against a government official or someone acting under color of state law, correct?
“The Justice is laying out their understanding of the statutory framework and seeking confirmation, signaling genuine clarification of the legal structure. The 'correct?' at the end invites agreement, suggesting the Justice is mapping the issues rather than challenging counsel's position.”
So the second step is, is it clear that the cause of action includes money damages? That's the next step of the analysis, right?
“The Justice is seeking confirmation of the analytical framework being applied, using 'right?' as a check that they are correctly understanding the logical steps of the argument. This is a straightforward clarifying question aimed at ensuring mutual understanding of the analytical structure.”
And your argument, I believe, is that Tanzin says that appropriate relief against individuals always includes damages. So does Franklin and a long list of our -- of our jurisprudence, correct?
“The Justice is summarizing and confirming the petitioner's argument while also referencing supporting precedents (Tanzin, Franklin), suggesting some approval or alignment with the position. The 'correct?' tag invites confirmation, making this partly clarifying, but the framing with supportive case law implies a degree of approval of the argument's legal grounding.”
That's correct. That's the traditional rule, is that damages are available unless Congress says otherwise.
So those two things are clear. So, in terms of contract principles or causes of action, this is clear. Now what my colleagues -- and I think that was Justice Gorsuch's question, slightly different, which is do we need to create special rules under the Spending Clause because, generally speaking, if you're a prison official, you know you're working in a prison and you are bound by law to pay damages if you violate the law. 1 Do you get an out because what? I think the consent question means what? Or notice and consent means what? And I don't know, meaning we're all presumed to know the law when we take our jobs. The correction officer's -- know he can't accept money. Citizens know they can't pay the money. We don't expect them to consent to that Spending Clause condition, do we?
“The Justice is actively probing the logic of the Spending Clause notice-and-consent framework, questioning whether special rules are truly needed when general legal obligations already apply. The rhetorical questions ('do we need to create special rules,' 'We don't expect them to consent...do we?') signal skepticism toward the argument while also showing intellectual engagement with the broader doctrinal implications.”
I -- I think one of the things that makes this case so much easier is that the -- is that you -- you have the consent of -- of the person to become an officer in a federally funded program.
I -- I agree, but I don't know why you need that.
“The Justice begins with partial agreement ('I agree') suggesting approval, but immediately pivots to questioning the necessity of the argument ('I don't know why you need that'), indicating skepticism about whether the argument is required or relevant to the case. The combination creates a probing, clarifying skepticism rather than hostility.”
I think that's what you were saying, which is we never think of needing some express consent to -- to say I'm bound by the law.
“The Justice appears to be restating and affirming counsel's argument about consent and legal obligation, suggesting approval and agreement with the position. The phrasing 'I think that's what you were saying' indicates both confirmation of understanding (clarifying) and implicit endorsement of the logic that law doesn't require express consent to bind parties.”
I think, really, the hard question in most of the Court's Spending Clause cases is, can Congress impose the condition on that person? That's really the question in, 1 like, Sabri. Can Congress actually impose the condition on that person? That can be a hard question, but it's not -- not here. They admit at page 46 of their brief that they are bound by the substantive condition. So the --
Your point is, if they're bound to the injunctive and declaratory judgment relief, then they're bound to the money damages?
“The Justice is paraphrasing and confirming their understanding of the petitioner's logical argument—that binding precedent on injunctive/declaratory relief necessarily extends to money damages. This is a classic clarifying restatement seeking confirmation of the counsel's position, with mild engagement in testing the logical extension of the argument.”
It -- it -- it's an exceedingly small step. And this Court has gone --
It's not even a step. It's --
“The dismissive correction 'It's not even a step' with the trailing dash suggesting an interruption or emphatic cutoff strongly signals hostility and rejection of the opposing argument. The fragmentary nature and negation ('not even') indicate strong disagreement with how counsel characterized their argument.”
Yeah. This Court has gone well beyond it, and I think you can easily get there as a matter of even just -- as contract principles.
Mr. Tripp, the questions you've been getting, you know, is there enough consent, is there enough notice, I presume -- tell me if I'm wrong -- would -- 1 would those questions apply just as well to any 1983 suit against a state employee?
“The Justice is seeking clarification by summarizing the questions posed to counsel and testing whether those concerns extend more broadly to all §1983 suits against state employees. The 'tell me if I'm wrong' phrasing signals genuine inquiry and intellectual engagement rather than skepticism or hostility, with a slight approving undertone in framing the broader argument for counsel.”
I mean, I think the -- the -- a lot of the notice questions are going to the sort of Spending Clause layer, which --
Yeah, but, of course, 1983 we've said applies when a statute is based on the Spending Clause power. We said that most recently in Talevski, and there are other cases. So, if we take ourselves out of the RLUIPA context for a second and we just put ourselves into the context of a Spending -- some other Spending Clause statute with a -- where -- which doesn't have its own cause of action but where the cause of action is 1983, presumably, you would have the exact same questions about, I don't know, does the state employee know about this? Has the state employee consented to it? And yet we've never thought about those questions in that context, have we?
“The Justice is probing the logical consistency of the petitioner's argument by drawing an analogy to other Spending Clause statutes enforced via §1983, suggesting that the petitioner's concerns about consent/notice haven't arisen in those contexts—implying the argument may be flawed or overstated. The rhetorical closing question ('have we?') signals skepticism rather than genuine inquiry, though the tone remains intellectually engaged rather than hostile.”
That's right. I think you don't -- you don't ask that follow-on question. And there was -- there was no additional question about notice in Salinas. There was no 1 additional question about notice in Sabri. I don't think there was either in -- in Dixson, Hess, Laudani, like, as you -- as you run down the line of the other cases.
Yeah. I'm just sort of saying that out of the RLUIPA context, just 1983 statute, the 1983 statute used to enforce Spending Clause statutes, I mean, we just take for granted that, of course, you can bring a suit against a state employee.
“The Justice appears to be thinking aloud and exploring a comparative legal framework, drawing an analogy between the RLUIPA context and the general 1983 statute to clarify or reinforce a point about suits against state employees. The 'Yeah' and 'just sort of saying' signals casual intellectual engagement rather than hostility or strong skepticism.”
Yeah. That -- that's correct, that the -- the -- the --
It would -- and then it's like why would the rule be any different under RLUIPA?
“The Justice is questioning why the rule would differ under RLUIPA compared to another framework, suggesting skepticism toward the petitioner's argument that a distinction exists. The rhetorical 'why would the rule be any different' probes the logic of the petitioner's position while also carrying some clarifying and exploratory elements.”
I -- I don't think it should be.
Well, in fact, in Medina, we said the Spending Clause adds a layer to 1983. And in terms of notice and consent, suppose a federal statute said something like this: If a coach at a federal funds-receiving university allows biological 1 men on a women's sports team, a female trying to make the team could sue for a million dollars. Or a federal employee -- an employee of a federal funding recipient in the state agency dealing with family affairs gets an abortion, the father can sue the employee for a million dollars. I think, on your theory, those are perfectly fine without any particular notice to the individual employee or any particular consent by the employee.
“The Justice is constructing extreme hypotheticals to expose what they view as problematic implications of petitioner's theory—that individual employees could be sued for enormous sums without notice or consent under Spending Clause statutes. The rhetorical framing ('I think, on your theory, those are perfectly fine') signals skepticism about the argument's logical reach, while the provocative examples also reflect concern about the broader consequences of accepting petitioner's position.”
Maybe I can come back to one of the answers I gave before. The rule we're articulating has four ingredients. You need to have a valid condition that applies to the person.
They need to be an officer --
And then it needs to threaten the integrity of the program.
I think, under your hypotheticals, the real question is the first one. Can you actually attach the condition to that --
Let's assume you can -- let -- let's assume you can. Let's assume they're germane. And they might be germane, you know, in terms of, for example, the -- the student athlete. They might well be germane to a concern about discrimination against women that -- that a federal funding program might well take into account under Title VI, for example, or the employee for -- for the Health and Human Services, that might -- a pro-life Congress might well think that germane and we might well find it so. So take -- take -- take as given that they're germane.
“The Justice is actively working through hypotheticals and conceding a point ('take as given that they're germane'), showing intellectual engagement and partial approval of the argument's premise. The repeated 'let's assume' and exploration of various scenarios reflects curious, constructive engagement rather than skepticism or hostility.”
I can come up with other examples if you want maybe --
“The Justice is offering to generate additional examples to support or explore the discussion, indicating active intellectual engagement and curiosity. The collaborative, exploratory tone suggests the Justice is intellectually invested in the conversation rather than challenging or opposing the argument.”
No. I -- I -- I just -- I just want to be clear that the -- the -- this Court's Dole -- Dole test is already sort of 1 addressing these concerns, right? So there is obviously the -- the relatedness requirement, but then you also can't be coercive, but then you can't have an independent constitutional bar.
Suppose -- suppose there's no --
“The fragment 'Suppose -- suppose there's no --' is a truncated hypothetical setup, strongly suggesting the Justice is beginning an intellectual exploration or thought experiment. The repetition indicates the Justice is formulating a hypothetical scenario mid-thought, which is characteristic of engagement rather than any directed skepticism or hostility.”
-- constitutional problem with these.
“The fragment references a 'constitutional problem,' indicating the Justice is flagging a concern or issue with the petitioner's position. The phrasing suggests worry about constitutional implications rather than mere curiosity, leaning toward concern with some skepticism about the argument's validity.”
And -- and then, if these people --
-- qualify as officers, which it's --
-- not clear to me that they will --
-- then it would -- then -- then yes.
Because the answer would be -- well, yeah, sorry, hold on.
So -- so the 1 Spending Clause --
“This appears to be an interrupted or incomplete utterance where the Justice is beginning to reference the Spending Clause, likely seeking clarification or transitioning to a new line of questioning. The repetition ('So -- so') and trailing dash suggest either an interruption or the Justice organizing their thought, making it predominantly neutral/clarifying in nature.”
Sorry, I think I missed one step. And then -- and then, within the scope, which I think you have, and then it would need to threaten the integrity and proper operation of the program.
And I think it is telling you that if -- if -- and this is the big if --
I think, Mr. Tripp, where you're winding up is the Spending Clause is no different than the Commerce Clause.
“The Justice is characterizing the logical endpoint of counsel's argument in a reductive way, suggesting skepticism that the Spending Clause and Commerce Clause are being conflated or treated identically—implying this conclusion may be problematic or overly broad. The framing 'where you're winding up' signals the Justice is probing an unintended or uncomfortable implication of the argument.”
I -- I really don't think that's correct, Your Honor, because the -- the -- the -- the -- first, the crux, the most important condition on the Dole side is you can't have coercion, right? The state needs to go into it eyes wide open. And I believe, in your hypotheticals, the person needs to take the job eyes wide open. And so there are two -- those are very significant checks that mean this is never going to get to the same --
Both exist -- both of those checks exist in my hypotheticals and Congress could pass such laws. And that's 1 quite a stretch of the Spending Clause. We've never before said anything like that.
“The Justice is pushing back on the argument by pointing out that the checks referenced already exist in the hypotheticals presented, and then directly challenging the breadth of the Spending Clause interpretation by noting the Court has never endorsed such a reading. The phrase 'quite a stretch' and the reference to lack of precedent signal clear skepticism about the legal theory being advanced.”
I mean, if this Court wants to cut back on some of the sort of front-line sort of scope, maybe you could do that in some future case like in the hypotheticals.
No, I'm not talking about cutting back anything. I'm talking about what the -- what nine circuits have uniformly done since RLUIPA's passage about 30 years ago.
“The Justice is correcting/pushing back on the counsel's characterization ('No, I'm not talking about...'), which signals some hostility or assertiveness, while also invoking the unanimous circuit court consensus as a challenge to the petitioner's position — a classic skeptical move to undermine the argument by pointing to contrary authority.”
Yeah. And I -- and I want to be clear that once Congress are -- are -- are -- I'm not going to back down on this at all. Once Congress can impose the condition on the person --
I wouldn't expect you to, Mr. Tripp. (Laughter.)
“This is a lighthearted, humorous remark directed at counsel that elicits laughter, indicating a friendly, collegial tone with no adversarial intent. It carries a mildly approving or warm quality but is largely neutral procedural banter.”
Yeah. Once they can impose the condition within the scope of their work, and that can be a hard question -- that's a hard question, but, here, it's not. And once they can impose the condition, they can enforce it. 1 And that's -- that's the only step that we're asking about here. We're not asking you to change any law on the front end about what Congress can and cannot do in the first instance.
Back to the question on clear authorization regarding damages in particular, now you rely heavily on Tanzin for that. But, even after Tanzin, to pick up on Justice Gorsuch's point about the courts of appeals, the courts of appeals has -- have continued to reject the position you're articulating here even in the wake of Tanzin. I think Chief Judge Sutton's opinion in -- in Ali is probably emblematic of that and says, even after Tanzin, you still don't have the clear, express, unequivocal, unambiguous authorization for damages. And so my question really is just why are judges, to Justice Gorsuch's question, misreading the precedents that are out there in your view?
“The Justice is strongly challenging the petitioner's reliance on Tanzin by pointing to consistent circuit court rejection of their position, including Chief Judge Sutton's opinion in Ali, and pressing counsel to explain why multiple courts have disagreed with their reading of precedent. This reflects substantial skepticism toward the argument while also showing intellectual engagement with the circuit split and the legal question.”
Yeah, I -- I -- I'm glad 1 you asked that. Maybe -- maybe two points where I think Judge Oldham has -- has the better of this with all due respect to Judge Sutton. And, honestly, the first thing that I said, Judge Sutton, if you look at his opinion in Ali and also his prior opinion in Haight versus Thompson, he does not ask the question of whether there's an individual capacity action. He goes -- he goes right into the sort of appropriate relief analysis. And I think that is just a critical step because, once you see that there's an individual capacity action, then you have an express right, an express cause of action, it is expressly against a private party. And then, whether damages are appropriate relief, I mean, that -- that's the norm. That's what individual capacity actions are for. If you don't have it, the -- the -- the -- the -- the individual capacity adds nothing. It's totally meaningless. And I think it's because Judge Sutton sort of overlooked that first step in the analysis that I think Judge Oldham has the better of it. I also think that when you're 1 asking --
-- once you're actually turning to the question of, okay, we have the individual capacity action, we're trying to figure out what is appropriate relief, another thing that Judge Oldham hit really hard, which is very powerful, is the whole point of this law, which everybody knows, is to go back to the pre-Smith scheme and provide the same rights and remedies that were available, including in the original RFRA, which this Court said, it made clear must include damages against state officials. And so I think that the parallel -- I mean, these -- these are hardly even separate statutes, right? Like, RFRA and RLUIPA, they, like -- they work together as an integrated whole. And so, to understand them, I think that, really, the only way to understand their operation together is as providing the same rights and remedies within their scope. I mean, RLUIPA -- Congress was crystal-clear in RLUIPA about the places where it needed to trim its sales because this was 1 spending legislation. It's on the face of the statute. It's not referred to. It's the Religious Land Use and Institutionalized Persons Act. It only applies to institutions that accept federal funds. That's on the face of the statute. It's clear as day. But, if you look in at the substantive provisions and the remedies and you look, well, how have those changed because this is spending legislation, the answer is not at all. The rights and the remedies are the same. There -- it is -- the whole point of this statute is to get back to the pre-Smith scheme.
The whole point of the Spending Clause jurisprudence is you need more of a clear statement to get all the way there for damages. I mean, at least --
“The Justice is challenging the petitioner's argument by invoking Spending Clause jurisprudence's clear statement requirement, suggesting the petitioner hasn't met that high bar for damages. The 'I mean, at least --' trailing off suggests the Justice is pressing a skeptical point mid-thought, indicating doubt about the sufficiency of petitioner's argument.”
I -- I -- and I think, really, what I'm saying is that, and this Court has said this many times, is -- the question is, is it unambiguous? And to answer that, there's no magic words requirement. You read text in light of context, like you always do. And if you do that and you start by asking is there an individual capacity action, it's 1 clearly yes.
And -- and just to summarize your position, individual capacity action with appropriate relief --
“The Justice is explicitly summarizing counsel's position to confirm understanding, using the phrase 'just to summarize your position,' which is a classic clarifying move. There is no emotional valence indicating skepticism or approval, simply an attempt to accurately restate the argument.”
-- equals clear authorization for damages, correct?
“This appears to be a Justice completing or summarizing a logical chain ('equals clear authorization for damages, correct?'), seeking confirmation of counsel's position. The 'correct?' tag indicates either clarifying the argument's logical conclusion or setting up a skeptical follow-up challenge, making both clarifying and skepticism roughly equal in probability.”
What I'm saying is, if a first step is individual capacity action, you have it, and then the question becomes, well, what's appropriate relief in an individual capacity action, I think the answer to that is clear. It's actually -- Tanzin says -- I -- I know it's not applying a clear statement rule, but its language bespeaks clarity each step of the way, said that Congress made clear that RLUIPA must -- or sorry, that RFRA must provide damages, that there was no doubt damages were available before Section 1983, that it was going back, and then, again, the distinction to the sovereign context, where damages are not available really because of a special rule in the context of suits against sovereigns, right? The whole -- the crux of Sossamon was that it could distinguish Franklin, it 1 distinguished the Franklin presumption because it doesn't apply to sovereigns.
Mr. Tripp, how could it have been clear to states when every circuit -- as Justice Gorsuch pointed out, every circuit had said that there were not damages actions available against non-recipients under RLUIPA, that's also true under the Title IX context, so it's hard to see how it could be clear to the states that were accepting the money or the prisons accepting the money that it was a clear condition when all of the law went the other way. What would your response to that be?
“The Justice is strongly challenging the petitioner's position by pointing out that every circuit court ruled against damages actions under RLUIPA and Title IX, making it difficult to argue that the condition was 'clear' to states accepting funds. The rhetorical framing ('it's hard to see how') and the citation of circuit consensus signals deep skepticism toward the petitioner's argument, though the closing question maintains a degree of openness.”
I think a couple responses. The first -- what this Court has demanded every time, and I've said this before, is unambiguous text in light of the context. And this Court has never applied any kind of, like, canon of adverse possession where, if the courts of appeals are saying something --
If you were a lawyer 1 to the states and you -- that was the state of the law and the state asks you about that, what would you have said?
“The Justice is posing a hypothetical scenario asking counsel to place themselves in the role of a state's attorney, which is a classic form of intellectual engagement designed to test the practical implications of the legal position. The framing is exploratory rather than adversarial, though it may have mild skeptical undertones by probing what advice counsel would have given.”
I think the key here is to look at the time when the statute was enacted, right, and -- and -- which is the -- the key question, right, is what did it mean when it was enacted, and if you look at it when it was enacted and you pick it up and you read it, I think as just a -- a state officer working in -- in a fed -- in --
And it's so obvious that every single circuit to look at the question went the other way?
“The rhetorical question directly challenges the petitioner's position by highlighting that every circuit court ruled against them, suggesting their argument is obviously flawed. The sarcastic framing of 'so obvious' indicates strong skepticism bordering on hostility toward the petitioner's position.”
It's hard to see how it's clear if every circuit is coming out differently.
“The Justice is directly challenging the petitioner's argument by pointing out that circuit splits undermine any claim of clarity, using a rhetorical formulation ('It's hard to see how') that signals doubt about the argument's validity. This is classic skepticism probing the weakness of the position.”
The -- and I think this is actually an important point because the -- the prevailing rule in the circuits, including in the Fifth Circuit below, where this case is coming from, they didn't deny that there was clear notice. They said it would be unconstitutional because they -- they thought 1 that the -- that the -- the officers were, like, they treated them as non-recipients even though they're basically indirect recipients, and it didn't sort of see that they fit within the --
Well, not every circuit brought up the constitutionality question, but putting that aside, can you identify -- putting aside the bribery cases, can you identify any cases in which a non-recipient of funds was held individually liable under a federal statute?
“The Justice is probing a key weakness in petitioner's argument by challenging whether non-recipient individual liability exists under federal statutes, while also dismissing a prior point ('putting that aside'). The request for specific case citations signals skeptical probing of the legal foundation, though it also has a genuine clarifying dimension in seeking to understand the scope of precedent.”
I mean, in -- in -- I think, in -- in Grove City College versus Bell, you're reading -- reaching an indirect recipient. In Salinas, Dixson, Hess, and Laudani, those are all situations where you're reaching --
I mean, you can just -- you can just say that, yes, it would be a different factual scenario.
“The Justice appears to be pressing counsel to simply concede a point about a hypothetical factual scenario, suggesting mild impatience or skepticism at counsel's apparent reluctance to make a straightforward acknowledgment, while also functioning partly as a clarifying nudge.”
I -- I don't have a case that's on this exact factual scenario, I admit that, but I think, actually, this is, like, a lesser included of Salinas and it's way inside 1 Sabri. I mean, it's more --
Well, but I -- but I said to put aside the bribery cases, so the ones under --
“The Justice is redirecting the counsel back to a prior instruction ('I said to put aside the bribery cases'), indicating a clarifying/corrective intent to keep the argument focused on the specific framing the Justice had established. There is mild frustration implied by the repetition, but the primary purpose is clarification.”
If I could push back on that a little bit, I think that's important when the -- the crux of this program is to provide federal funds to prisons that accommodate religious liberty.
Well, no, I -- I asked you to put them aside because I wanted you to put them aside and look at the civil liability context for a minute.
“The Justice is redirecting counsel back to a specific analytical framework they had requested, showing mild frustration ('Well, no') at counsel's deviation from the requested focus. The primary intent is to steer the discussion toward civil liability context, reflecting engaged exploration of a specific legal issue rather than hostility.”
I think that Sabri and Salinas are the best cases for you, particularly Sabri. I -- I take that. But, if those are distinguishable, I wanted to ask you the other question, and I think the answer is no. And I think -- and I just kind of want to clarify your answer to Justice Gorsuch. Look, the facts of this case are egregious. So, if on the facts we were looking for a case in which there should be money damages, this is it. 1 Justice Gorsuch asked you a series of harder facts, harder factual scenarios, in which we might think, oh, I'm not sure if money damages as a policy matter make as much sense in that context. You never really gave him an answer yes or no. And so I just want to say -- I want you to give me an answer, yes or no, on Justice Gorsuch's hypotheticals, and don't fight the hypothetical about the conditions and all that. Your theory means that, yes, the coach, the doctor, could be held liable?
“The Justice begins with some approval of the petitioner's case law arguments, but pivots to pressing for a direct yes/no answer on difficult hypotheticals the counsel had previously evaded, showing skepticism about the breadth of the petitioner's theory and concern about its implications in harder factual scenarios. The insistence on not fighting the hypothetical signals frustration and a desire to pin down the logical extent of the argument.”
If -- but if -- let me be clear about this. If but only if --
Yes or no? Yes or no?
“The repeated insistence on a yes/no answer with no elaboration signals frustration and an attempt to corner counsel, cutting off nuanced responses. This forceful, repetitive phrasing is characteristic of hostility, as the Justice is pressuring counsel to give a simple answer and implicitly dismissing the complexity of their prior response.”
Take his hypo -- no, no, no, no.
“The repeated 'no, no, no, no' is a strong dismissive interruption signal indicating rejection or disagreement with the direction of argument, which research associates with hostility. The partial reference to a hypothetical suggests some engagement, but the sharp cutoff dominates the sentiment.”
Mr. Tripp -- Mr. Tripp, he asked you to assume that the conditions that it was -- it was perfectly consistent with this Spending Clause. So yes or no, would your theory say that -- let's talk about the coach under Title IX on Justice 1 Gorsuch's hypothetical.
“The Justice is redirecting counsel back to a specific hypothetical posed by Justice Gorsuch, pressing for a direct yes-or-no answer while engaging intellectually with the Spending Clause and Title IX scenario. The tone reflects active engagement and an attempt to clarify the scope of the petitioner's theory rather than outright skepticism or hostility.”
If the condition is valid, the -- yes.
Yes, yes, yes, he said all that. Yes.
“The dismissive, impatient repetition of 'yes, yes, yes' signals mild hostility and frustration, suggesting the Justice finds counsel's argument either repetitive or unimpressive. The tone implies the Justice wants counsel to move on, which is a form of dismissal rather than engagement or approval.”
Then I'll say yes. If the condition attaches, Congress can enforce it. And I think the crux of the question is can the --
Okay, but just say yes or no.
“This is a directive to simplify an answer to a yes/no response, suggesting mild impatience or frustration with an overly elaborate answer. The 'Okay, but' phrasing signals slight dismissiveness of what was said, but the overall tone is largely procedural with some minor hostility.”
You don't want to say yes or no. Just -- just take the consequences. It's totally fine if those are the consequences, but I think you have to follow the logic where it leads. And the logic where it leads is that, yes, under Title IX, say, Congress could pass a statute or Congress could say that it's going to rely on its spending power to hold the coach liable under the -- the hypothetical Justice Gorsuch gave you, right, yes?
“The Justice is pressing counsel to commit to the logical consequences of their argument, showing skepticism about counsel's evasiveness ('You don't want to say yes or no') while also intellectually engaging by pushing the argument to its logical conclusion. The mild hostility stems from frustration with counsel's reluctance to answer directly, but the overall tone is more of firm skeptical probing than outright hostility.”
If -- if -- but if -- but I think this is a --
I just don't see how you could say no given the assumptions he asked you to make about the Spending Clause.
“The phrase 'I just don't see how you could say no' signals strong pushback on petitioner's position, indicating the Justice finds it difficult to accept the counsel's argument given the Spending Clause assumptions posed. This is primarily skeptical with mild hostility due to the dismissive framing, though the reference to 'assumptions he asked you to make' suggests some engagement with the hypothetical framework established.”
But -- but I want -- I want to be clear. One of -- one of the reasons I've been articulating this rule under Salinas, right, which is these four ingredients, valid condition, officer within the scope, and threatening the program, is it doesn't require you to address, I think, some of these. There are harder hypotheticals about --
Well, but, Mr. Tripp, every time we decide a case, we have to think about what it's -- you know, in Salinas and Sabri, you know, if it had -- if they had looked ahead to this case, might have said, yeah, this might be where the logic leads or you take a few steps from here and this is where it goes. But we can't decide a case just 1 based on these facts. So you just need to own it.
“The Justice is pushing back on the petitioner's argument by insisting they must 'own' the broader logical implications of their position, referencing prior cases (Salinas, Sabri) to challenge the counsel to accept where the reasoning leads. The phrase 'you just need to own it' has a mildly confrontational tone (slight hostility) but is primarily skeptical, pressing the advocate to acknowledge the full reach of their argument rather than limiting it to specific facts.”
-- if you own it. I just don't understand why you're not owning it.
“The phrase 'I just don't understand why you're not owning it' signals frustration and disbelief at counsel's apparent reluctance to embrace a position, combining skepticism about the argument's coherence with a mildly hostile tone conveyed by the blunt, direct challenge. The clarifying element is present as the Justice is also genuinely pressing for an explanation.”
I -- I -- I -- I want to be clear about that. But what I'm saying and the reason why, especially in our reply brief, we're -- we're relying heavily on Salinas is you've already said all of this, and so we're -- we're not asking the Court to -- to break new ground.
But -- but you're not making -- well, okay.
“The Justice appears to begin a contradiction ('But you're not making...') suggesting skepticism or mild hostility, but then abruptly stops and concedes with 'well, okay,' indicating a withdrawal of the objection. The truncated nature and self-correction point to a mix of brief skepticism and resignation, ultimately settling toward neutral acquiescence.”
Let's just -- why does it -- why -- logically speaking, why is it -- why does it have to be individuals or officers? Why couldn't you, for example, say that a -- a school district, schools that take federal money, if they do and we want to -- why couldn't liability extend, say, to parents who choose to send their kids to those schools? 1 Let's think about, like, if a -- if a child is transitioning, say, and the parent says, you know, no, I'm not going to facilitate that, I'm not going to call the child a different name or call the child by different pronouns, could there be some sort of cause of action that would allow, say, the child to sue the parent for civil liability? Why does it have to be an officer or an employee under your theory?
“The Justice is probing the logical boundaries of the petitioner's theory by pushing it to an extreme hypothetical (parents suing children, children suing parents), which signals both skepticism about the scope of liability under the argument and concern about the potentially sweeping implications of accepting such a broad theory.”
Because of the -- of -- of the consensual contractual nature of agreeing to work as an officer --
So contract works with --
“This appears to be an incomplete utterance where the Justice is beginning to reformulate or restate an argument about contracts, likely seeking to clarify or confirm their understanding of counsel's position. The fragmentary nature suggests active engagement in processing and restating the argument.”
-- for a federally funded program. It --
It -- right. And so I think, when you're reaching a member of the general public, which is what your hypothetical is talking about, it is a totally different set of questions that we're not remotely touching. I think that's what Sabri gets at, is how far can Congress go into reaching members of the general public. Those are hard questions, and 1 we're not asking you to go anywhere near them. These are --
And why doesn't your logic require it? Because you want to rely on the contract analogy for that point? Like, you're just sticking on the contract road?
“The Justice is pointedly challenging the internal consistency of counsel's logic, questioning why the contract analogy doesn't compel a broader conclusion. The colloquial phrasing ('sticking on the contract road') suggests mild impatience or exasperation, indicating skepticism with a slight edge of hostility toward the argument's coherence.”
Because of the contract road and they admit the condition applies to them. And it's because of the contract because they've agreed to take the job subject to this condition. And we know that that's voluntary all the way down, right? The state is voluntarily accepting the funds. They're voluntarily taking this job. A person who takes this job might want to demand higher wages or indemnity or things like that, but that's already the norm for them and they -- they already provide the -- you know, indemnity is the norm in the Louisiana law and most states and --
What about other contracts, though? I mean, what if you, you know, contract for services with the hospital because you're a patient? What if you contract -- I mean, I guess I don't understand 1 why it has to be an employee.
“The Justice is genuinely probing the boundaries of the petitioner's argument by raising hypotheticals about other contract types (hospital patient), suggesting skepticism about why the argument is limited to employees. The phrase 'I guess I don't understand why it has to be an employee' signals both a clarifying intent and mild skepticism about the logical limitations of the petitioner's position.”
I -- I think the -- the piece about being an employee -- and this is what's picked up in Rust versus Sullivan and Alden versus Maine as to state officers in particular, who also take an oath to comply with the federal Constitution and laws -- is that you are sort of taking the job sort of subject to the conditions, the sort of terms that attach to the work. It's different than being just like a stranger to the counterparty in a contract. I know that in Hess, United States, Marcus ex rel. Hess, that's a situation where you're reaching somebody who's a subcontractor through sort of the chain of privity. And so the Court has addressed that in some other cases. But, again, I think this one's easier because of just the nature of the work.
Okay. Speaking of the layers of consent -- this is just a technical question -- the Fifth Circuit talked about the warden and the Secretary of State. Were the guards actually defendants because, here -- are the guards before us?
“The Justice explicitly labels this 'just a technical question' and asks about the procedural posture regarding which parties are actually before the Court — a straightforward clarifying inquiry about the record with no adversarial tone.”
We don't have their names. They're -- they're -- they're John Does.
They're the John Does? But the -- but the Fifth Circuit didn't talk about them. The Fifth Circuit talked about the warden and the Secretary of State saying they couldn't be sued in their individual capacities?
“The Justice is primarily seeking clarification about who the John Does are and how the Fifth Circuit's ruling applies to them versus the named defendants, signaling some skepticism that the petitioner's characterization may not align with what the Fifth Circuit actually decided.”
The -- the -- the warden is -- is the -- I mean, the factual allegations in the complaint involve the warden specifically.
Okay. And the warden -- so the warden knew your -- okay. So the -- the -- the Does are not before us? It's just the warden?
“The Justice is clearly trying to clarify who the actual parties are before the Court, with the halting, fragmented phrasing ('the -- the -- the') suggesting genuine effort to sort out procedural facts. This is a straightforward clarifying question about standing/party composition with no emotional valence.”
I mean, no, the Does -- the Does are before you. We don't --
You know, it was dismissed.
We don't -- we don't know who they are. Yeah.
We don't know their names. Yeah.
And in terms of layers of contract, is the contract with the State of Louisiana or with LDOC or with the prisons?
“The Justice is asking a straightforward factual question about the contractual structure, seeking to understand the precise nature and parties involved in the agreement. This is a genuinely clarifying question with no apparent adversarial or skeptical intent.”
So the way RLUIPA works is the Department of Corrections, the -- is the --
That -- that's just -- yeah. That -- that -- I just wanted to understand how that worked. Thanks.
“The Justice explicitly states they 'just wanted to understand how that worked,' indicating a clarifying intent, and the 'Thanks' suggests satisfaction with the answer received. The halting, informal language ('That -- that's just -- yeah') suggests the Justice's curiosity was resolved, making this largely neutral/clarifying in nature.”
So can I invite you to reflect back to Justice Thomas's question, and you said that there were two paths to getting to your result, and you mentioned Salinas is one, and I think I might have heard the other, but let me just give you the opportunity to explain what those two paths are.
“The justice is politely inviting counsel to elaborate on their earlier answer, explicitly giving them an opportunity to clarify their two-path argument. The phrasing 'let me just give you the opportunity to explain' is cooperative and neutral in tone, primarily seeking clarification while showing genuine intellectual engagement with the argument.”
Yeah. In -- so, in Salinas, I think because it's criminal 1 liability, the Court is very clearly relying on a combination of the Spending Clause to attach the condition and then the Necessary and Proper Clause to enforce it because you can't do criminal under -- under contract. But I think, in this case, because we have civil liability and it's this chain that runs down to the officers, you don't even need the -- the Necessary and Proper Clause. I think this is an unusually easy case because -- because of the way that just sort of --
So the -- the chain of privity is the second?
“The justice is seeking to confirm their understanding of the argument's structure by identifying 'the chain of privity' as the second point, which is a straightforward clarifying question with no negative valence.”
Because the chain of privity --
-- is the second. So I think you could come at it either way. And, you know, I represent a private litigant. I -- I don't really care which one you do so long as you reverse, of course.
So do you view Louisiana's constitutional argument as turning on the contract analogy? I mean, do we have to sort of accept that the Spending Clause and 1 Spending Clause legislation is subject to characterization as a contract in order to -- to buy their argument?
“The Justice is probing the logical structure of Louisiana's argument by asking whether it depends on a contract analogy, showing genuine intellectual curiosity about the argument's foundation. The phrasing 'do we have to sort of accept' suggests mild skepticism about whether this characterization is necessary or valid, but the overall tone is exploratory and clarifying rather than adversarial.”
I -- I'm not sure -- I mean, maybe they can speak for themselves on -- on that. I think the -- the Spending Clause is properly understood as being -- the Spending Clause alone, I think --
-- is -- is consensual in nature. That's -- I think this Court has been clear about that. But then the question of what --
But we've also been -- I just want to be clear about this. I mean, we've also expressed pretty significant, in many cases, doubts about whether the contract analogy totally governs.
“The Justice is signaling skepticism toward the contract analogy being relied upon by petitioner's counsel, citing the Court's own prior doubts about that framework. The phrase 'I just want to be clear' adds a clarifying tone, but the substantive content is clearly pushing back on the argument's foundational premise.”
But -- yeah. And then that's what I was about to say because it --
-- it doesn't get -- this Court has also been clear -- and they're not asking to overrule any of your precedents -- the Court can -- that Congress can invoke the 1 Necessary and Proper Clause to protect its spending prerogatives. I mean, look in our reply brief. We have the example of the statute that makes it a crime to arson a federally funded institution, right? That's the use of the Necessary and Proper Clause in conjunction with the Spending Clause. And which, as I understand their brief, they're saying that that's off the table, whereas I think what we're saying is, because this is officers, you know, within the scope, it's a valid condition and it's conduct that threatens a sort of core operation of the program, then it's just controlled by Salinas and you don't need to break any new ground.
So -- so how much precedent would we undo if we held that RLUIPA's individual capacity cause of action for money -- money damages is unconstitutional? I mean, is this a big deal case or -- or not so much?
“The Justice is exploring the practical scope and consequences of a ruling against RLUIPA's individual capacity damages, which reflects both engagement with the legal question and some concern about the breadth of the ruling's impact on existing precedent. The candid 'is this a big deal or not so much?' phrasing signals genuine intellectual curiosity rather than hostility or strong skepticism.”
I mean, I -- I -- I certainly think it's a big deal case. And we've -- we've included a -- I mean, I -- I think there are these, like, five or six 1 precedents from this Court that I just don't see how they can square their position with, Salinas, Hess, Laudani, Dixson, Grove City College versus Bell, and Sabri. And then just above and beyond the Court's cases, I mean, we traced through a history of statutes that are similar to this running all the way back to 1789. The first Congress imposed individual -- they had a scheme for imposing individual liability on officers in a federally fund -- working in a federally funded state prison. False Claims Act of 1863, anti-kickback provisions that started in the 1930s. Title IX. Title VI, that's Grove City College versus Bell. Title X of the Public Health Acts, EMTALA, there's whistleblower provisions, Prison Rape Elimination Act, the arson statute that we were talking about, there's another one about blocking interference to federally funded programs. So it's -- it's a long list of statutes.
That could be imperiled by a --
“The phrase 'That could be imperiled by a --' suggests the Justice is raising a worry about something being threatened or undermined, indicating concern about potential negative consequences. The incomplete nature of the utterance (likely an interruption or trailing off) limits full classification, but the word 'imperiled' strongly signals concern about adverse implications.”
Yeah, where -- where -- 1 where -- where -- where Congress has traditionally protected federal program and I think, in particular, imposed conditions and enforced them as to people who are in this position of being in the chain of privity. They're -- they're officers, agents, employees or -- or -- or subcontractors of the grantee.
Thank you, counsel. Ms. Baird. ORAL ARGUMENT OF LIBBY A. BAIRD FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER
“This is a purely procedural utterance transitioning between counsel arguments. The 'Thank you' is a standard courtroom courtesy with no substantive emotional valence, and the remainder is simply an administrative introduction of the next speaker.”
Thank you, Mr. Chief Justice, and may it please the Court: RLUIPA clearly authorizes individual capacity damages suits against state officials. Tanzin held that RFRA authorizes individual capacity damages suits against federal officials, and RLUIPA is RFRA's sister statute and should be read the same way. Congress used materially identical text in RLUIPA to provide the same remedies as RFRA against state officials. Respondents 1 resist that simple conclusion because RLUIPA was enacted under Congress's spending power. But RLUIPA's language puts states on clear notice that state officials can be sued for damages in their individual capacity. And under the Spending and Necessary and Proper Clauses, Congress could create personal liability for state officials acting as agents of the state when they violate conditions on federal funding. Indeed, Salinas and Sabri upheld more expansive uses of Congress's power to impose criminal liability. I welcome the Court's questions.
Well, let's say that the state is under clear notice. Is a guard also privy to that clear notice?
“The Justice is using a hypothetical ('let's say') to probe how the 'clear notice' standard applies at different levels of the state hierarchy. This is primarily an exploratory, intellectually curious question testing the implications of the argument, with some clarifying intent to understand how notice to the state translates to individual officers.”
So, Justice Thomas, we don't think clear notice is required under the purpose of the Spending Clause because we care about the notice of the recipient, but I think the officers here clearly had notice. And I do think that qualified immunity --
Okay. So how do they get that notice and what was the notice?
“The question is a straightforward follow-up seeking factual clarification about the mechanism and content of notice. The 'Okay' opener signals acceptance of prior information and a move to probe specifics, indicating genuine information-seeking rather than skepticism or hostility.”
Well, I think the statute 1 clearly applies to them if you look at -- you know, Petitioner's counsel emphasized the text of the cause of action, it applies to a government defined as an official.
So do you think they were aware of the state's commitment to the statutory requirements?
“The question seeks to establish whether the relevant parties had knowledge of statutory commitments, which is a factual/clarifying inquiry. There is mild skepticism embedded in probing the petitioner's awareness argument, but the primary intent appears to be genuinely seeking clarification on what the parties knew.”
I -- I think that -- that we're all sort of held liable for what's in the -- the United States Code. And I think that this isn't surprising to -- to state officials.
So you think you have clear notice of everything that's in the United States Code?
“The question uses a reductio ad absurdum technique, implying that the petitioner's 'clear notice' argument is untenable given the vast complexity of the United States Code. The rhetorical framing strongly signals skepticism toward the petitioner's position on notice requirements.”
Well, Your Honor, I think that the officers here clearly had notice. Officers are used to facing 1983 liability and are liable for violation of all constitutional provisions. They know the -- that certain requirements apply to them when they accept employment in a federally funded prison. And I do think that qualified immunity is an important backstop because they can only actually be held liable if their conduct 1 violated clearly established law.
And they concede liability, right? I mean, in other words, they concede that these substantive provisions apply to them. So they must then know or, you know, their -- their response was not we -- we didn't have notice that we had to behave this way. Their response is you can't sue me individually for damages as a result of that.
“The Justice appears to be clarifying the respondent's conceded position while also probing the logical structure of the defense argument — acknowledging liability but contesting individual damages exposure. The tone is analytically engaged, partly clarifying the record and partly testing whether the petitioner agrees with this framing, with mild skepticism about the respondent's position embedded in the restatement.”
Exactly, Justice Jackson. At page 46 of their brief, Respondents admit that they are bound by the substantive condition. I think that that makes this a very easy case for purposes of the Spending Clause issue because they admit they can be sued in their official capacity for an injunction. I think that means, as Petitioner argued in -- in his brief, and I don't take Respondents to have disputed, that the -- that Respondents could be held for contempt.
And that can have personal consequences --
I'm sorry, finish your question.
“This is a purely procedural, polite interjection allowing counsel to finish their question. It carries no substantive emotional valence and is a standard courtroom courtesy gesture.”
Oh. They can be held for contempt, and that could have personal consequences. So I think that the Necessary and Proper Clause, if it means anything, it can mean that Congress can go one half-step further and say that we can reach these people in their individual capacities as a necessary and proper means to enforce the substantive condition of RLUIPA.
Well, I think the Necessary and Proper Clause may mean other things even if you're right, but -- so, in light of what you've said, your answer to Justice Barrett's questions is yes, right? They can be held liable whether they know, whether they don't know, quite -- quite across the board?
“The Justice is pressing the petitioner to confirm a broad implication of their argument ('quite across the board'), while also briefly pushing back on one of their claims about the Necessary and Proper Clause. The question seeks to pin down the logical consequence of the petitioner's position, combining clarification with skeptical probing of how sweeping their liability theory is.”
For government officials, yes. As to the hypos, I think that one of Justice Gorsuch's hypos which Justice Barrett followed might have included private parties. The government doesn't take a position as to how this would cash out in terms of private parties. I think, as Petitioner's counsel 1 noted, I think there's obviously different issues of consent, especially when we're talking about reaching a member of the general public. But, in terms of reaching government employees and agents, we think that they can clearly be reached.
I do agree with him that --
-- so, even though we require pretty express consent by a state before they're bound under the Spending Clause, we don't require that with respect to the individuals?
“The Justice is drawing a contrast between how states must expressly consent to Spending Clause conditions versus how individuals are treated differently, implying an inconsistency or tension in the petitioner's argument. The rhetorical structure ('even though... we don't require') signals skepticism by highlighting an apparent asymmetry that could undermine the petitioner's position.”
Your Honor, no. I think what -- what matters for purposes of the Spending Clause is clear notice to -- to the states who accepted funds. And, again, this isn't surprising to individual officers. They're --
So you're saying -- does the same standard apply to the individual employees?
“The phrase 'So you're saying' followed by a direct question about how the standard applies to individual employees indicates the Justice is seeking clarification on the scope of the petitioner's argument, rather than challenging or expressing skepticism about it.”
No, I do not think under the Spending Clause that they need to have 1 clear notice. And --
I think that's -- that's got to be the implication of your position, is that both clear notice and consent this Court has said time and time again are required for states to be bound, and you're saying neither of those apply when it comes to state employees.
“The Justice is pressing the petitioner by asserting the logical implication of their position conflicts with established precedent requiring clear notice and consent for states to be bound, using the framing 'that's got to be the implication' to challenge the argument's consistency with prior rulings. This is classic skepticism directed at the petitioner's position, with mild hostility in the assertive tone.”
So I guess I should clarify my answer that I do think it depends on what power the Court relies. I think, if the Court were to --
If the Court were to say only the Spending Clause, then I do think that -- that you would have to have consent of the state official, and I do think we have that here.
Whoa, whoa, whoa, whoa, whoa. Let's back up. We're talking about a spending power statute, okay, and -- and you -- everybody has to agree, I think, that consent and notice are required for -- for a state to be bound, right?
“The 'Whoa, whoa, whoa' interruption signals mild hostility and a need to halt and redirect the argument, while the subsequent restatement of foundational legal principles (consent and notice for spending power statutes) reflects a clarifying intent to establish common ground before proceeding. The tone is assertive but primarily aimed at resetting the framework of the discussion.”
And are you saying those are or are not required for the state employee to be bound?
“The Justice is directly asking for clarification on the petitioner's position regarding whether certain requirements apply to state employees, seeking to pin down the argument rather than challenge it. The phrasing 'are you saying those are or are not' is a straightforward request to understand counsel's stance.”
So, under the Spending Clause, I think that the sort of privity argument that we've been talking about today --
Right. So no is the answer because it works for the state and, because the state employs these individuals, they're necessarily bound?
“The Justice appears to be paraphrasing and probing the petitioner's argument with some skepticism, suggesting the logic is circular or overly convenient ('it works for the state... they're necessarily bound'). The rhetorical framing implies doubt about the sufficiency of the reasoning, though there is also a clarifying element as the Justice seems to be confirming their understanding of the argument.”
I -- I do think that's right. And I think that --
Okay. So no consent and no -- no notice is required for the employees?
“The Justice appears to be confirming their understanding of the petitioner's position regarding employee consent and notice requirements, with a tone that could be either genuinely clarifying or subtly skeptical. The repetition of 'no' and the framing suggests mild disbelief or probing of the implications of this position.”
That has to be the logic of your view.
“The phrase 'That has to be the logic of your view' suggests the Justice is pressing the counsel on an implication of their argument that the Justice finds follows necessarily—often used to expose an uncomfortable or problematic logical consequence, signaling skepticism. The assertive framing ('has to be') carries a mildly confrontational tone that edges toward hostility but primarily functions as skeptical probing.”
I think not as a formal matter in terms of under the Spending Clause, but I think the reason that this is such an easy case under either the Spending Clause --
Okay. What do we do if that's true -- and I think it has to be, 1 right, and I -- I appreciate the candor -- with the fact this Court has always said that, you know, contract is the analogy, and it's certainly true that an agent is liable to its principal for violating the principal's rules, here, the employee to the state. But it has never been the case -- well, never may be strong -- but, certainly, if I look at the Restatement, an agent isn't responsible to a third party with whom the principal has a contract. Privity doesn't run like that. It runs between the principal and the agent, not a third party. What do you do about that?
“The Justice is actively probing the petitioner's argument by noting a tension between contract/agency law principles (privity) and the position being advanced, while acknowledging partial agreement ('I think it has to be'). The rhetorical challenge 'What do you do about that?' signals skepticism about how the argument survives the privity problem, though the tone remains intellectually engaged rather than hostile.”
Yes, Justice Gorsuch. Well, I would strongly resist that the contract analogy applies to answer --
-- every question that arises in Spending Clause legislation.
That -- that -- that's -- that's an answer, is just ignore the contract analogy. Fair enough.
“The stuttering repetition and 'that's an answer' phrasing suggests the Justice finds the counsel's response somewhat dismissive or evasive—acknowledging it as technically responsive while implying skepticism that it fully resolves the issue. 'Fair enough' has a mildly sardonic tone, indicating the Justice is not fully satisfied but moving on.”
Well -- well, I think that -- well, I think what the Court's cases 1 say is that the contract analogy is important for purposes of determining notice. It's did the recipient --
Notice and consent, yeah.
-- did the recipient have notice. I think, here, it makes it an easier case under the Spending Clause, unlike all of the cases where the Court has considered like in Medina --
But you're asking us to ignore contract principles when it comes to the employees, right? I mean, that has to be right.
“The phrase 'you're asking us to ignore contract principles' signals strong skepticism about the petitioner's legal position, while 'that has to be right' is a rhetorical challenge pressing counsel to concede a potentially damaging characterization. The confrontational framing borders on mild hostility but primarily functions as probing doubt.”
No. We just don't think that -- that the contract analogy answers the question. We think the Court --
-- needs to sort of tick through the constitutional analysis and ask, you know, is this a necessary and proper means of enforcing the substantive RLUIPA condition. And we think it is.
But we have -- we have to look outside the contract analogy 1 because it wouldn't get to the employee here. It wouldn't. I mean, there's no privity between the employee and the federal government.
“The Justice is pushing back on the contract analogy being used by counsel, pointing out a specific logical flaw (lack of privity between employee and federal government). The repetition of 'It wouldn't. I mean...' signals skepticism toward the argument's sufficiency, while the intellectual exploration of why the analogy breaks down suggests some engagement.”
There is not. But, again, the Necessary and Proper Clause gives Congress the power to enforce a condition that's validly imposed. So, once we have a valid condition that has been imposed and to which the state consented, surely, Congress can take the half-step further to enforce that condition against the people --
-- who are most likely to violate it.
-- now, Ms. Baird, so it sounds to me like you want to use the contract analogy to limit the scope of this argument because you keep saying, well, no, this is privity, this is privity, and that's why we don't need to take a position on whether it would reach a member of the general public, right? But then you're moving away from the contract analogy when Justice Gorsuch is asking you about, well, do these principles of 1 contract law apply? I don't understand. It seems like we're slipping in and out of the contract analogy.
“The Justice is directly challenging the internal consistency of counsel's argument, pointing out that she selectively invokes the contract analogy when convenient and abandons it when pressed, saying 'I don't understand' and 'slipping in and out.' This is primarily skeptical probing of logical inconsistency, with a clarifying element as the Justice tries to pin down the actual position.”
Yeah. So let me try to be clear, Justice Barrett. I think that the contract analogy applies to determine whether there is notice. I think this Court's cases are clear that the notice that matters is the state's notice. I do think that the officers can be fairly held to account for notice here. I think, under the Spending Clause alone, this is an easy case because officers consent to work at a federally funded state prison. I think, when we add in the Necessary and Proper Clause, you know, the farthest this Court has ever gone is Sabri, which reached a member of the general public. There was no consent there. I think that the Necessary and Proper Clause allows Congress to enforce valid conditions. There may be hard questions about can Congress impose the condition in the first place, but I think, once Congress has imposed the condition -- and, again, Respondents don't 1 dispute that they're bound by the substantive RLUIPA condition, and courts of appeals have upheld the substantive condition under the Spending Clause -- Congress can go one half-step further and enforce it against individuals --
But that half-step has to include members of the general public because you're relying not just on the contract because the answers about the contract are that it does not need to give clear notice to the employee. So they're getting their notice from the statute, right?
“The Justice is probing a logical gap in the petitioner's argument by questioning whether their reliance on the statute (rather than the contract) means the general public must be included, revealing skepticism about the internal consistency of the argument while also seeking clarification on how the notice framework operates.”
Yes, I think they have notice from the statute. And, again, I think qualified immunity is an important backstop for -- for officers. I guess, with -- what I would say about members of the general public is I think, conceivably -- and the reason we're not taking a position on sort of how this nonparty liability issue cashes out there, because I think there conceivably could be different analysis under the Necessary and Proper Clause. I think, here, it's necessary --
What would that analysis look like?
“This short, open-ended question seeks to understand how counsel would apply a particular analytical framework, reflecting genuine curiosity and a desire for clarification rather than skepticism or hostility.”
Well, so let me just walk through what the analysis is like for individual officers, and then, as I'm doing that, we can sort of see how it would be different. But, here, it's necessary to enforce it against individual officers because, otherwise, the condition would go unenforced in a significant category of cases. And the facts as alleged here are a good example of that, facts of one-time abuses --
You can finish your answer.
“This is a purely procedural statement allowing counsel to complete their response. It carries no emotional valence and represents standard courtroom management by the Justice.”
Thank you, Mr. Chief Justice. That Congress clearly had on its mind in RFRA and RLUIPA, you know, the destruction of a Bible, et cetera. It's also proper because this is a longstanding traditional remedy, and it's against state officials who are most likely to violate the condition. These are the people through whom the state acts. A state otherwise doesn't act but through its officials. 1 And so I think that necessary and proper analysis could look a lot different when we're reaching a member of the general public. And I think there could be other safeguards. I mean, there are other limits on Spending Clause power too, and I think those would equally apply.
Thank you, counsel. Justice Thomas? Justice Alito?
“This is a purely procedural statement thanking counsel and passing the floor to other justices for questioning. It carries no emotional valence whatsoever and is standard administrative courtroom language.”
In determining whether there was clear notice, what is the relevant point in time?
“This is a straightforward clarifying question seeking to establish a specific legal parameter—the relevant point in time for determining 'clear notice.' There is no rhetorical challenge or hostility; the Justice is genuinely seeking to understand how the petitioner's legal framework operates procedurally.”
So I think it would be what is the notice as provided by the statute. In Medina, I think it was Footnote 8, the Court said we care about notice as provided by Congress. So --
No, what date? What is the date?
“The Justice is sharply seeking a specific factual answer (a date), with the repeated 'What date? What is the date?' suggesting mild impatience or urgency but primarily a clarifying intent to pin down a specific piece of information.”
So when RLUIPA was enacted in -- in 2000. And we care about what the --
It's not the time -- it's not the point at which the state accepts 1 the money?
“The Justice appears to be questioning or correcting the petitioner's framing of when a critical triggering point occurs, seeking clarification about whether the relevant moment is when the state accepts federal money rather than some other point in time. The question has a mild skeptical undertone but is primarily clarifying in nature.”
Yes, but I think -- so -- so, yes, we care about the state's notice at the time they accepted the funds, but I think --
And what was -- what is the relevant date there?
“The question is a straightforward request for a specific factual detail (a date), indicating the Justice is genuinely seeking clarification about a timeline or deadline relevant to the case, with no apparent adversarial or emotional tone.”
RLUIPA is tied to all sorts of federal funding. And so I don't have a specific date on which they accepted funds, but I imagine they're continually accepting federal funds. You can go to usa.spending.gov to see the different funds that they receive from the government.
Was it clear before Tanzin?
“This is a very short, direct question asking whether a legal point was clearly established prior to the Tanzin decision, which is primarily a clarifying inquiry seeking factual/legal information. It has mild engagement as the Justice is probing the development of the law.”
Yes, I absolutely do think it was clear because Tanzin is illustrative. I think Tanzin is helpful for us because it shows why the textual analysis comes out the way it does. I don't think it was necessary.
Even though all the courts of appeals had gone the other way, and 1 even without Tanzin, you think it was clear?
“The Justice is pointedly challenging the petitioner's position by highlighting that all circuits of appeals had ruled against them, implying that the legal question could not have been 'clearly established' when there was uniform adverse circuit authority. This is a classic skeptical probe targeting the weakness of the argument.”
I would say so, Justice Alito. And here's what I would say. I mean, in talking about the courts of appeals decisions, yes, they've all gone the other way. I agree with Petitioner not all of them said that the statute wasn't clear. I think that, really, there's no sort of how lopsided is the circuit split rule. It's odd to think that at time zero, a statute could not provide clear notice or -- or could provide clear notice, but then, at time one, when all of the circuits have gone the other way, it doesn't provide clear notice. There's just no administrable way to administer that rule. And so --
Well, Tanzin was decided, I think, 18 days before the event in question here, and maybe General Aguiñaga could answer the question. But, if funds were not received after that date, doesn't that make it more difficult?
“The Justice is probing a potential weakness in the petitioner's argument by noting that Tanzin was decided just before the relevant event and questioning whether the timing of fund receipt undermines their position. The rhetorical question 'doesn't that make it more difficult?' signals skepticism toward the petitioner's case, while also redirecting the question to another counsel, suggesting genuine inquiry mixed with challenge.”
I -- I don't think so, Your Honor. I think that timing is right from -- from what I understand the allegations to be in the complaint. But I -- again, I 1 don't think the -- the argument depends on Tanzin. The notice that we care about is the notice as provided by Congress. And text is the only reliable indicator of meaning. The other thing I'll say is sort of just as a basic principle, when Tanzin interpreted RFRA to make clear that individual capacity damages are available under RLUIPA too, that's not just what RLUIPA meant post-Tanzin. That's what RLUIPA has always meant. That's Rivers versus Roadway Express.
Okay. I -- I -- I understand the point. Could you address Justice Gorsuch's hypothetical about the coach? Let's just take that as an example. What is the position of the United States regarding that situation?
“The Justice acknowledges understanding the current point and redirects to seek a specific position on a prior hypothetical, indicating genuine curiosity and a desire to clarify the government's stance. The tone is neutral and inquisitive with no signs of hostility or skepticism.”
So, assuming the coach, this is a public entity and the coach is a -- a government employee, yes, there could be a cause of action there, but, again, I think the difficult part -- and I'm not going to fight the hypothetical -- I think yes, but the difficult part is, can Congress impose the condition in the first place? And there are 1 serious limits on what Congress can do under the Spending Clause. There's not just Dole, but there's other principles that the Court has laid out, in Gordon --
Yeah, and what would be -- that's what I'm asking. What would be the limitations?
“The Justice is pressing for clarification on what limitations would exist, indicating a mix of genuine inquiry and mild skepticism about whether sufficient constraints exist. The phrasing 'that's what I'm asking' suggests persistence in seeking a clear answer, pointing primarily toward clarifying intent with some concern about the breadth of the argument.”
Sure. So there's several. I mean, the Dole factors, obviously. There's the unconstitutional --
Well, would the Dole factors be met in this -- in that situation?
“The question asks whether specific legal factors (Dole factors) would be satisfied in a hypothetical scenario, suggesting the Justice is either seeking clarification on how the petitioner's argument applies to a specific situation or intellectually exploring the legal framework. The tone is exploratory rather than hostile or skeptical.”
Well, you know, I don't -- I don't want to take a position on sort of the outer reaches of the Spending Clause because this case is really about enforcement. And so I don't want to get ahead of the United States on very difficult questions about how far does the Spending Clause go. I think the important thing is that there are limits. The Dole factors, there's the unconstitutional conditions doctrine, Congress can't condition funds on someone giving up their constitutional rights. There's coercion. And then I think the remedy itself 1 has to be constitutional. It has to comply with due process. And then, as I was talking with Justice Barrett about, it also has to be necessary and proper. So there may be some instances in which a remedy is not necessary to enforce a condition or a proper means of enforcing the condition, and those requirements can have teeth.
Well, you're taking -- you're asking us to take an important step. It would be helpful if we had an idea about where this road is leading, but you don't want to provide an answer to that.
“The Justice expresses clear skepticism about the petitioner's argument by noting they are asking for an 'important step' without providing guidance on implications, and the pointed observation that counsel 'don't want to provide an answer' carries a mildly hostile or accusatory edge. There is also underlying concern about where the legal ruling might lead without clear limiting principles.”
Well, Justice Alito, I think because it's not presented in this case. I think that when the Court has a Spending Clause case about how far Congress can go in imposing the condition, then I'm sure we'll be up here as a party talking about that with you. I think that the United States hasn't sort of taken a position on that question because --
How often -- how often has this Court held that Congress has imposed 1 an impermissible condition under the Spending Clause?
“The Justice is probing the rarity of successfully invalidating a Congressional Spending Clause condition, implying skepticism toward the petitioner's claim by highlighting how infrequently such challenges succeed. The repetition of 'how often' underscores the pointed nature of the question.”
I mean, NFIB is an example.
Alliance for Open Society, there's a First Amendment violation there. There are real limits. I think in Printz said that there wasn't -- it was a necessary and proper case -- said that it wasn't a proper means of enforcement. So I think that -- that the Court can, if it wants, address that in a -- in a separate case. I think, really, the question here -- and I'm not trying to frustrate the Court, but the question is really just, can Congress enforce a condition that is validly imposed? The hard question in Your Honor's hypothetical is whether Congress can impose the condition. And at page 46, they admit that they are bound by the condition. The only question is one of enforcement. And Congress can certainly -- again, if these officers can be held for contempt and subject to personal consequences, Congress can 1 surely hold them accountable in their individual capacity for damages, which everyone knows that that is what RLUIPA was trying to do.
A new road by us would be to rule for Respondent, correct?
“The justice is seeking to clarify the legal landscape by confirming whether ruling for the respondent would constitute new ground for the Court. While there is some skepticism embedded in probing the novelty of the legal question, the primary intent appears to be clarifying the precedential implications of the case.”
I would say so, Justice Sotomayor, yes.
It would put at risk dozens of federal statutes, correct?
“The Justice is challenging the petitioner's argument by highlighting the broad destabilizing consequences it would have on dozens of federal statutes, signaling both skepticism about the argument's viability and concern about the wide-ranging implications of accepting it.”
I think so. If the Court says that neither through the Spending Clause or the combination of the Spending and Necessary and Proper Clause Congress can't do this, then I think that would be ground-breaking, yes.
Similarly ground-breaking is a requirement that somehow, when individual damages are at risk, that Congress has to be more specific than using appropriate relief, because we've approved 1 damages under appropriate relief in other statutes, haven't we?
“The Justice is challenging the petitioner's argument by pointing to precedent where 'appropriate relief' has been interpreted to include damages, suggesting the argument that Congress must be more specific is 'ground-breaking' and unsupported. The rhetorical question at the end signals skepticism toward the petitioner's position while drawing on prior case law to undermine it.”
Well, and Franklin's a good example of this because, in Franklin, there was --
-- there was not even an express cause of action. So, if we're concerned about clear notice and what clear notice is, here, we have an express cause of action that expressly applies to these officials and expressly provides for appropriate relief.
When -- when you just said, Ms. Baird, ground-breaking, could you hum a few more bars on that? I mean, ground-breaking how? Ground-breaking, what would happen, what would follow?
“The Justice is asking counsel to elaborate on the meaning and implications of the term 'ground-breaking,' using the colloquial phrase 'hum a few more bars' which signals genuine curiosity and intellectual engagement rather than skepticism or hostility. The tone is conversational and exploratory, seeking clarification on what consequences or precedent the term implies.”
Sure. Well, I mean, I 1 think Petitioner's brief laid this out nicely, but there's sort of a long history of Congress being able to reach outside of the strict privity between the federal government and an entity that receives funds. I think all of that could be called into question. I think we've cited some sort of on-point statutes in our brief where employees or agents can be held liable. That's the Federal Nursing Home Reform Act, EMTALA, Title X. And then I think, if -- if the Court accepts Respondents' arguments on the constitutional issues, I think that could call into question Section 666, the bribery statutes, and Sabri. I think that this case is such an easy case because this case does not even approach the outer limit that this Court has recognized in Sabri as permissible. And I think all the Court has to do, the Court does not need to extend Salinas and Sabri. I think all it has to do is cite those cases, say that no one has asked us to overrule them, case closed.
On -- on Salinas and Sabri, I mean, one of Respondents' arguments is 1 that those cases are different because the federal government's interest in funding was more directly involved, that what they really were all about was ensuring that the federal government could make sure that the recipient didn't fritter away the federal government's own funds. So why is that true or not true?
“The Justice is presenting the respondents' distinguishing argument about Salinas and Sabri and asking the petitioner to address why that distinction is or isn't valid. This probes the petitioner's position by surfacing a counterargument, combining genuine clarification-seeking with mild skepticism about whether those precedents actually support petitioner's case.”
Yes. So we would strongly resist that RLUIPA isn't about protecting federal funds. It absolutely is. The federal government gives money to prisons, to state prisons, on the condition that they won't violate religious free exercise. When they do that anyway, the government is not getting what it pays for, which is institutions that respect religious exercise. So I do think that this is about protecting the funds. I'll also say that in Salinas and Sabri, the Court was concerned about more than just protection of the actual funds at issue. And I think you can see this because neither case required any nexus with the federal funds. It's most obvious in Salinas, where 1 the Court there described the threat to the federal program was the deputy sheriff who was giving preferential treatment to the inmate. The -- it was clear as day that that was the threat that the Court was talking about. And I think, here, the -- the federal program is similarly threatened when officers can violate conditions on federal funds with impunity.
So, in -- in -- in those cases, what the Court was really saying is that the federal government has every right to deal only with institutions that are not generally corrupt. And, here, it's the same except the end of the sentence would be not generally rights-violating.
“The Justice appears to be actively engaging with and possibly helping to articulate the petitioner's argument by drawing an analogy to prior cases, suggesting intellectual curiosity and some approval of the legal framework being developed. The constructive parallel being drawn ('not generally corrupt' vs. 'not generally rights-violating') indicates engaged exploration rather than skepticism or hostility.”
I think that's right, Justice Kagan. The government -- the federal government does not want to be a party to egregious violations of religious liberty like the facts alleged in this case. I mean, the -- the federal government has the power when it says it's giving federal funds on the condition to enforce that condition, and the state can always say no.
I take your point that a holding that -- that said that Congress could never pass a statute conditioning employees making them follow RLUIPA because that would exceed necessary and proper bounds would be quite a holding, but the same would go for the coach too on the Title IX recipient. It would be quite a holding for us to say Congress couldn't do that. I take that point, but I think it would apply to the coach as well. And I also think it's very different to say whether Congress could or couldn't do it, it didn't provide the clear statement that's required. And there's nothing novel about that. We just did that last year in Medina for crying out loud, right --
“The Justice acknowledges the petitioner's point ('I take your point') while simultaneously redirecting and challenging its applicability, suggesting the same logic applies to the opposing side and pivoting to a clear statement doctrine argument supported by precedent (Medina). The 'for crying out loud' signals mild exasperation and strong engagement, with underlying skepticism about whether the argument is as strong as presented.”
-- at the government's urging, right?
“The phrase 'at the government's urging, right?' suggests the Justice is pressing counsel to confirm or acknowledge a point that may undermine their argument, with the tag question 'right?' indicating a skeptical challenge rather than genuine clarification. The interruption-style dash at the beginning also hints at some forcefulness.”
Well, Your Honor, yes, I think that was right.
Okay. All right. 1 And then --
“This is a brief procedural acknowledgment with no emotional valence, likely transitioning to the next point or question. The 'Okay. All right.' phrasing is standard conversational filler during oral argument proceedings.”
And -- and -- and then -- well, go -- if you want to finish, if you want to add, feel free.
“This is a procedural, administrative statement inviting counsel to continue or finish their point. The stuttering and deferential phrasing ('if you want to finish, if you want to add, feel free') reflects standard courtroom courtesy with no emotional valence or argumentative content.”
Oh, I was just going to to say there's a really important difference between this case and Medina which I've sort of mentioned a couple times, which is this case involves an express cause of action, so I think, in Medina, the hard --
I understand that. The question is to whom and -- and whether there's clear notice. And simply saying it's not clear notice and there isn't consent, there's nothing novel about that. We did that in Dole, we've done that in Medina, we've done it not in -- but, in a lot of other cases, we've done that, right?
“The Justice is pushing back on the petitioner's argument by citing precedent (Dole, Medina) to challenge the notion that there's anything novel about finding lack of clear notice or consent, suggesting the petitioner's position isn't as distinctive as claimed. The rhetorical 'right?' at the end signals skepticism toward the argument while also seeking agreement with the Justice's own framing.”
I -- I -- I think that's right. But I do think --
-- there's clear notice here, Justice Gorsuch, and I'm happy to --
I understand -- I 1 understand you think that. No, I -- I -- on the clear notice point, you say, well, it was -- it was obvious even before Tanzin, right?
“The Justice appears to be probing the 'clear notice' argument with mild skepticism, restating counsel's position back to them in a way that questions whether that position holds up — 'you say it was obvious even before Tanzin' suggests the Justice is testing or doubting this claim. The repetitive 'I understand' combined with the restatement signals both clarification-seeking and underlying skepticism about the argument's strength.”
What do we do about the federal government's representation in Tanzin itself that RLUIPA does not clearly authorize these suits against individual employees in a state?
“The Justice is pointing to a prior government representation that contradicts or complicates the petitioner's position, using it to probe a weakness in the argument. The reference to Tanzin and the federal government's own statements suggests skepticism toward the petitioner's claim, while also seeking clarification on how counsel reconciles this tension.”
Yes, Your Honor. That's a fair question. So we were a party in Tanzin. We took a shot at the text, what we thought was a -- a good interpretation of the text. And, admittedly, we had an interest there in defending federal officers against damages suits, but, hey, we lost and we lost very badly. It was 8-0.
Well, that was RFRA, and, absolutely, you lost badly. But you said with respect to state officials and RLUIPA that it doesn't authorize. And now you're asking us to believe that it was clear even though you got it wrong?
“The Justice is strongly challenging the petitioner's credibility by pointing out that their prior legal position was decisively wrong ('you lost badly'), then using that failure to undermine their current claim that the law was 'clear.' The phrase 'you're asking us to believe' signals deep skepticism, while 'you lost badly' carries a dismissive, almost hostile edge.”
So, Justice Gorsuch, we've 1 taken to heart this Court's decision in Tanzin. And I think that Tanzin's analysis really does --
-- help the Court decide the question. It doesn't govern squarely, but I think it does illustrate why the text means what it does here.
You agree that the Spending Clause statute must unambiguously authorize damages in order for damages to be available, correct?
“The Justice is seeking confirmation of a foundational legal premise before building further argument, which is primarily a clarifying move to establish common ground. The 'correct?' tag signals an attempt to pin down the petitioner's position on an established legal standard rather than expressing doubt or hostility.”
Yes, I think that's the clear notice requirement.
Okay. And do you have any differences with Petitioner on why you think this statute, RLUIPA, clearly authorizes damages?
“The Justice is asking the respondent to elaborate on their specific reasoning for why RLUIPA authorizes damages, distinguishing it from the petitioner's position. This is primarily a clarifying question seeking to understand the party's distinct legal argument, with some engagement in exploring the statutory interpretation issue.”
I mean, I think Petitioner put it about as good as I could. I think that it -- it's really important to start with the -- the individual capacity action. I think, if you look at this text, it is clear as 1 day that it applies to officials in their individual capacity. It applies to an official or any other person acting under color of state law. I grant you that if we weren't looking at appropriate relief in isolation, I think it would be a much harder question, but we're not. The -- the question that Tanzin started with and I think the Court should start with here is, who is the defendant? And that makes all the difference between Sossamon and this case because, in Sossamon, the context of a sovereign defendant, there's absolutely no history of that. Damages are extremely inappropriate against a sovereign, whereas -- and Tanzin lays out this history in -- in a really helpful way -- in the context of individual officers, damages are the norm.
And I'm not saying whether I agree with this or not, but just to get the order of potential operations on the table, if we were to conclude that this statute does not clearly, unambiguously authorize damages, that avoids all the ground-breaking 1 issues that you've been discussing, correct?
“The Justice explicitly disclaims taking a position ('I'm not saying whether I agree with this or not') while exploring a potential analytical shortcut — finding the statute doesn't clearly authorize damages to avoid broader constitutional or novel legal issues. This is classic engagement, intellectually exploring the logical order of operations in deciding the case, with some clarifying intent to map out the argument structure.”
Well, I think you -- you would also want to consider sort of downstream consequences with respect to RLUIPA if the Court says that the text isn't clear.
I understand that. My specific question was the ground-breaking consequences you were discussing. That would be put off for another day, correct?
“The Justice is seeking to pin down the scope and timing of the argument's consequences, specifically clarifying whether the broader 'ground-breaking' implications would be deferred to a future case. The phrase 'I understand that' signals acknowledgment before redirecting to a precise clarifying question, making this primarily a clarifying inquiry with mild engagement.”
Even though you think, and I take your point, and that's why I said I'm not saying whether I agree with this or not, there would be RLUIPA consequences.
“The Justice is acknowledging the petitioner's point while flagging potential RLUIPA consequences, suggesting concern about broader implications. The explicit caveat 'I'm not saying whether I agree with this or not' signals the Justice is exploring consequences rather than endorsing or rejecting the argument.”
Yes. I think there would be RLUIPA consequences because I think there would be a question about the alternative jurisdictional hooks of the Commerce Clause. I think you'd also call into question the alternative jurisdictional hooks in the land use context because there would a question of whether that interpretation governs those separate powers. And I think the Court should just sort of follow the text where it leads. This is a 1 legal question like any other legal question. We think the notice is clear. I do think that that would probably be less disruptive than sort of all of the other consequences I was talking about with Justice Sotomayor.
So I just wanted to clarify one point. You said that if there were not individual -- if there was not individual liability for damages available here, it would make it hard for the federal government to protect its money because -- this was in response to Justice Kagan.
“The Justice explicitly states 'I just wanted to clarify one point' and is referencing a prior exchange to ensure accurate understanding of counsel's argument, making this a straightforward clarifying question with no apparent adversarial intent.”
Because the federal government doesn't want to give money to prisons that are rights-violators essentially, right?
“The Justice appears to be restating or confirming their understanding of the federal government's rationale for the policy, essentially seeking confirmation that their interpretation is correct. The 'right?' tag at the end signals this is primarily a clarifying question seeking validation of the Justice's understanding, with some engagement in exploring the underlying logic.”
But the federal government, we usually say in the Spending Clause context that the remedy is for the federal government to pull the funds, right? 1 So it could do that?
“The Justice is probing the petitioner's argument by pointing to an established remedy in Spending Clause cases (federal fund withdrawal), suggesting skepticism that the petitioner's proposed remedy is necessary or appropriate. The question tests whether the existing remedy undercuts the argument while also seeking clarification on how the petitioner reconciles their position with standard doctrine.”
That is an option, Justice Barrett. I will say -- so -- and I'd have to go back to check every single case, but I believe that the cases in which the Court has said that, there's no express cause of action. And so, yes, I think the Court has said in a case like Medina, for example, when you're analyzing this hard question about can this right be enforced via 1983, I think there's a default presumption that Congress wants to enforce it by pulling the funds. But, here, Congress made a policy choice to enforce it through creating a cause of action. And this isn't unusual. We all know what Congress was trying to do. It was trying to restore pre-Smith rights and remedies and that had long been available under the First Amendment through 1983. So I think Medina makes clear that it's a policy choice whether to create a cause of action. Congress has done that here. And we think that should be respected.
So you think Congress couldn't pull the funds here?
“The question 'So you think Congress couldn't pull the funds here?' signals skepticism by implicitly challenging the petitioner's position — the phrasing 'you think' distances the Justice from the claim and probes its limits. There is also a clarifying dimension as the Justice may be pinning down the exact scope of the argument.”
Oh, no. I -- I think that that might -- that might be an option available to the federal government. We also have a cause of action for the federal government to enforce RLUIPA through injunctive and declaratory relief, but I guess what I'm saying is that the fact that that's a usual remedy, the Court has said that in cases without an express cause of action. And I think, you know, so is that the usual remedy? Maybe in those cases. I don't think that's the usual remedy here because Congress told you how it wants to enforce.
I see. I see. Is there any daylight between you and -- the question the government always gets --
“The Justice appears to be seeking clarification about whether there is any meaningful distinction between the petitioner's position and the government's position, which is a classic probing question. The 'I see, I see' opener suggests processing of prior argument, and the question about 'daylight' between the parties is a standard exploratory inquiry rather than overtly skeptical or hostile.”
-- do you stand with Petitioner all the way, or is there any difference in your positions?
“The Justice is straightforwardly asking whether the respondent/amicus fully aligns with the petitioner's position or holds a different stance. This is a procedural clarifying question aimed at understanding the scope of agreement between parties, with mild intellectual engagement in mapping the legal landscape.”
No, I don't think there's any daylight. There might be, like, if you drill down, like, there might be some small differences at the margins, but I don't think there's anything that would matter to the 100 Court's resolution of the case.
And one other question. So there's been a lot of talk about whether there has to be clear notice in the contract to the employees or whether the statute is enough. And the government and the Petitioner say the statute is enough. But the statute could have -- or -- or Congress could, in giving the funds, right, in the Spending Clause context, it could say to LDOC or whatever state prison system it's contracting with that it has to be a condition of the contracts that the guards would be liable or that individuals be liable for damages, right?
“The Justice is intellectually exploring an alternative statutory construction — suggesting Congress could have required explicit contract conditions for individual liability — rather than attacking or supporting either side's position. This is a classic hypothetical engagement, probing the logical structure of the Spending Clause argument while also seeking to clarify the boundaries of the notice requirement debate.”
Sure. I mean, yeah, Petitioner has laid that out and says this can all be done through contract. We agree with that. But I don't think that that means that what Congress did here is impermissible. I think that there's clear notice on the text of the statute. I think how a state responds, how a Department of Corrections responds, I think they should inform their officers. There are 101 briefs saying that officers are informed of the requirements that govern prisons. I do think that -- that officers expect this. This isn't surprising. They're not some disinterested third party. These are people who work in -- in prisons and know the conditions that apply to them.
So I guess I'm trying to understand how Congress could have said it any clearer. I mean, to the extent that we're puzzling over whether or not there's a clear statement in the statute, you know, it says, "A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." If that doesn't refer to money damages being brought by an individual for a violation of RLUIPA, what could Congress have meant by "appropriate relief" here?
“The Justice is challenging the opposing position by pointing to the statute's plain language as seemingly clear, expressing rhetorical skepticism toward arguments that the statute doesn't permit money damages. The phrase 'how could Congress have said it any clearer' signals doubt toward the counterargument, while also showing some approval of the petitioner's reading of the statute.”
I mean, we agree with you. We think it's clear, especially once you look 102 at the definition of a government, "appropriate relief against a government" becomes -- the word "appropriate relief" becomes clear in the context of who we're talking about here, which is individual officers. So we would agree with you.
And even broadening out the lens more, I mean, RLUIPA is applying to prisons in a circumstance in which the PLRA and other statutes make it very difficult for prisoners to get any other kind of relief, right? I mean, they can't get injunctive relief in any -- any sort of meaningful way.
“The Justice is actively exploring the broader statutory context of RLUIPA alongside PLRA limitations, showing intellectual engagement with the practical implications for prisoners. There's also an element of concern about the restricted avenues for relief, but the tone is more exploratory and potentially sympathetic to the petitioner's position.”
I think they could. I think prisoners could get injunctive relief under RLUIPA, and we would say that's another form of appropriate relief. But I do think that damages are necessary to complement, especially for instances like -- like the one alleged here, where there's a one-time abuse. I think it also comes up in cases of -- when claims for injunctive relief are mooted by release or transfer.
Or transfer, which 103 can happen all the time, so it's --
“This appears to be a Justice interjecting a quick point about transfer scenarios in what seems like an incomplete thought or interruption, suggesting engaged participation in the discussion rather than strong sentiment in any direction. The casual, exploratory nature ('which can happen all the time') suggests intellectual engagement or clarification rather than skepticism or hostility.”
Yes. And it's very -- very common.
And -- okay. You've said many times that this is an easy case, and I think it's because of the privity argument. I'm trying to kind of puzzle through it. The state can say no to the condition in this situation. It has notice. It's a part of the agreement that the state makes to accept the funds. So it can say no to the condition that it must follow RLUIPA. But then we have this other layer, which is the employees, I suppose, can say no to a state that has agreed to the condition, right?
“The Justice is actively working through the privity argument step-by-step, openly acknowledging they are 'puzzling through it' rather than challenging counsel. The utterance shows genuine intellectual engagement and clarification-seeking as the Justice traces the logical layers of the argument, with mild skepticism embedded in the exploration of potential complications.”
I think that's right. They have a choice whether to voluntarily accept employment in a federally funded program.
Against the backdrop of a clear cause of action against people in their position for violations of the law?
“The Justice is pointing to a 'clear cause of action' as a backdrop, which suggests skepticism toward the petitioner's argument by emphasizing that a legal remedy already exists, implying the petitioner's position may be inconsistent with established law. The rhetorical framing challenges the petitioner's stance rather than genuinely seeking clarification.”
Yes. I think the statute is clear as day that it applies to individual 104 officers, and in that context, appropriate relief clearly provides damages.
And don't we ordinarily hold people responsible, especially officials, for knowing what the law requires and following it?
“The rhetorical question 'don't we ordinarily hold people responsible...' strongly challenges the petitioner's argument by invoking a well-established legal norm, implying the official should have known and followed the law. This is a probing, skeptical challenge directed at undermining the petitioner's position, with mild hostility in its rhetorical framing.”
I think that's generally a presumption that -- that this Court has endorsed, yes.
Thank you, counsel. Mr. Aguiñaga. ORAL ARGUMENT OF J. BENJAMIN AGUIÑAGA ON BEHALF OF THE RESPONDENTS
“This is a purely procedural statement transitioning between counsel arguments, with no emotional valence or substantive content. It simply thanks the previous speaker and introduces the next advocate.”
Thank you, Mr. Chief Justice, and may it please the Court: The Court should resolve this case on either of two grounds. First, you should say, as Chief Judge Sutton has said both before and after Tanzin, that RLUIPA does not clearly and unambiguously create an individual capacity cause of action for damages. Or, second, you should say, as Judge Sullivan has said after Tanzin, that even if 105 Congress spoke with unmistakable clarity and created such a cause of action, Congress exceeded its constitutional authority. But however you affirm the judgment below, it is extraordinarily important that the Court reject Petitioner's attempt to radically expand congressional -- congressional power. His view of the Spending Clause would mean that foundational cases like Pennhurst and Cummings were confused, Mr. Chief Justice, because Congress can actually impose spending conditions on non-recipients too. And his view of the Necessary and Proper Clause would make Sabri look modest, Justice Thomas, because, on his view, Congress doesn't even have to pretend to be protecting federal dollars and cents from corruption before regulating members of the general public. Now, to be sure, I have a lot of friends on the other side of this case who have valid concerns about Congress's silence over the past 25 years when 10 federal courts of appeals have said that there's no individual capacity claim for damages under RLUIPA. 106 But the solution is not to distort this Court's existing precedents to try to change that status quo. It is instead to tell Congress to act exactly like it did in 1993 after Smith and in 2000 after City of Boerne, which is to pass new legislation, supersede Sossamon, and amend RLUIPA to allow for damages against the states, and then the states can decide, each state for itself, whether it accepts that express condition. The answer is across the street, not here. I welcome the Court's questions.
There's been quite a bit of reliance on Sabri and Salinas. Could you spend just a few moments giving us your argument as to why they -- these cases aren't dispositive?
“The Justice is asking counsel to address precedents raised by the other side, which is primarily a clarifying and engaged inquiry. There's mild skepticism embedded in asking why these precedents aren't dispositive, but the tone is inviting rather than challenging, suggesting genuine curiosity about the distinguishing arguments.”
Absolutely, Justice Thomas. So, if I could give you the one sentence that I think might be the most important in this Court's precedents for this case, that's the very last sentence of Section II in Sabri at page 608. This is the paragraph where this Court in Sabri rejected Mr. Sabri's Spending Clause challenge. He said that this 107 legislation is coercive. This Court said no, it's not Spending Clause legislation at all. This is not Congress's -- Congress's attempt -- 666 is not Congress's attempt to impose its will on states' choices about public policy. It's instead Congress's Necessary and Proper Clause authority to basically target those who convert public spending into unearned private gain. That's the line that the Sabri Court drew. And, Justice Thomas, I think that is exactly the line, the framework that you should keep in mind when asking what is RLUIPA. Is it more like 666, where you're targeting actual federal dollars and cents, or is it like true Spending Clause legislation, where what Congress is doing is imposing its own policy choices on the state recipients of federal funding?
But the actual dollars and cents weren't at issue in that case. What -- what the Court was upholding was the federal government's right to say we're not -- we're -- we're -- we shouldn't -- we need some strings in place to ensure that the money we 108 pay to a federal institution is going to an honest federal institution, an institution that won't be profligate with our money generally even though there's no nexus with the money here. And so too the government can say, you know, the integrity of the institution is -- has something to do with not taking bribes, and the integrity of the institution has something to do with not violating rights. And both of those things fall within the federal government's interests.
“The Justice appears to be actively constructing and articulating a legal argument that supports the federal government's position, drawing an analogy to prior precedent and reasoning through the logic affirmatively. This reflects both approval of the underlying principle and engaged intellectual exploration, rather than skepticism or challenge.”
And, respectfully, Justice Kagan, that's not consistent with Sabri. Look at page 606. This is the "money is fungible" paragraph that spans -- spans 605 to 606. The theory that the Court was articulating there to sustain statutes like 666 is to say, what is the articulated federal interest in this statute? And the very last sentence of that paragraph says the federal interest here are federal dollar thresholds that Congress embedded in the statute as its putative protection. Now I'll grant you, Justice Kagan, 109 that Sabri, I think, has to be the outer limit of Congress's Necessary and Proper Clause authority because what it was doing there really had no direct tie to the funds at all. But the theory that this Court cited in justifying reaching the result it did was to say we're going to look at the federal dollar thresholds in 666, we're going to say, well, Congress is at least pretending to protect those federal dollars --
I'm sorry, but it's the same thing here, meaning they're trying to protect their federal dollars from going -- from not supporting a program that violates religious liberty. So I'm not sure that that distinction makes any sense to me.
“The Justice explicitly states the distinction 'makes no sense' to them, directly challenging respondent's argument and expressing doubt about its logical coherence. The phrase 'I'm not sure that distinction makes any sense to me' signals clear skepticism, while the mild apologetic opener 'I'm sorry' softens but does not eliminate a degree of underlying hostility.”
Your Honor, that -- that's not correct because there's a very important difference between Congress protecting its constitutional authority to spend and its constitutional --
And it has constitutional authority to spend and give money to state prisons as well.
“The Justice appears to be exploring or affirming a point about Congress's constitutional spending power as it relates to state prisons, likely building a line of reasoning or testing the scope of federal authority. The declarative framing with 'as well' suggests intellectual engagement, possibly extending a prior point rather than challenging it.”
I mean, it -- it wasn't -- in those programs, it could spend on programs, but it didn't have to.
“The Justice appears to be clarifying or restating a point about discretionary spending in certain programs, suggesting the entity had the option but not the obligation to spend. The hesitant, self-correcting phrasing ('it -- it wasn't --') indicates genuine clarification-seeking rather than a pointed challenge, though there is mild skepticism embedded in distinguishing between mandatory and discretionary spending.”
But what Congress does not have inherent sovereign authority to do under the Spending Clause is regulate. The only way it can regulate is if the recipient of the federal funds agrees in return.
But a criminal statute is regulation.
“The Justice is directly challenging the counsel's argument by asserting that a criminal statute constitutes regulation, implying a contradiction or weakness in the respondent's position. The short, declarative form suggests skeptical pushback rather than genuine inquiry.”
It absolutely is regulation, Your Honor, but what I'm saying and what this Court said in Sabri is that a statute like 666 is not spending -- it's not -- that's not a spending condition at all. And that's why I think the most important starting point in this Court's analysis is to ask, is this a spending condition? The federal government agrees at page 23 --
All right. If we disagree with that?
“The phrase 'If we disagree with that?' signals mild skepticism about the counsel's position while also serving as an engagement prompt to explore alternative reasoning paths. The brevity and conditional framing suggest the Justice is probing the argument's foundation without strong hostility.”
And I'm happy to take the disagreement, Justice Sotomayor.
But I do think that 111 that line that this Court drew at the end of Section II in Sabri is the right way to think about this. And I think --
All right. Thank you, counsel.
“This is a standard procedural closing remark used to dismiss counsel after their argument time has concluded. It carries no substantive emotional valence and is purely administrative in nature.”
Do you agree, General Aguiñaga, that as a spending condition, the federal government could have told Louisiana Department of Corrections that it had to include a clause in the contract telling individuals that they would be liable for damages?
“The Justice is posing a hypothetical about an alternative government mechanism (spending conditions) to explore the boundaries of the legal argument, which reflects intellectual engagement and probing of the constitutional framework. The 'Do you agree' framing seeks a concession but is more exploratory than adversarial, suggesting a mix of clarifying and engagement.”
Why is this so different then?
“The phrase 'Why is this so different then?' suggests the Justice is probing a distinction the respondent has drawn, implying some doubt about whether the distinction holds up. The 'then' signals a follow-up to a prior argument, making it mildly skeptical while also genuinely seeking clarification for the claimed differentiation.”
It's different because -- you know, the -- the word "privity" has been thrown around a lot on the other side of the case, and with all due respect, I don't understand that. When we're talking about consent in the spending context, you're asking whether the ultimate regulated entity has, in fact, consented to whatever the conditions are. And in your hypothetical, Justice Barrett, I think you conceive -- you can 112 conceive of Congress saying we're going to require you to basically require a contract of assumption by your employees where anytime an employee comes into the state and says I want to work for the state, the state says in response, if you're going to do that, you have to agree to these specific conditions that the federal government has imposed on us. There is nothing like that contract in this case, and that's why I think all of those hypotheticals at the end of the blue brief about how Congress could have created direct contractual privity between a state employee in his individual capacity and the federal government doesn't hold up because, at the end of the day, what they're saying, what they're telling you is what Congress could have done. You don't see that line here. And --
Yeah, but aren't they saying that if you have the contract and then you have RLUIPA on the books, that the combination of those things essentially is the condition that the employees were aware of --
“The Justice is probing the respondent's position by reformulating the opposing argument ('aren't they saying...'), which signals both skepticism toward the respondent's framing and a clarifying effort to test whether the combination of the contract and RLUIPA creates a condition employees were aware of. The 'yeah, but' opener suggests mild pushback while restating the petitioner's logic.”
-- when they signed up for the job?
“This appears to be a fragment of a larger question, likely probing whether individuals assumed certain risks or obligations upon entering a role. The phrasing suggests mild skepticism or a clarifying challenge about assumed consent or awareness, but without full context it could also be a clarifying follow-up.”
Your Honor, that is not how this Court's Spending Clause cases conceive of consent. And I think every employee in the country would be shocked to learn that just by accepting employment with their employer, they have thereby personally bound themselves to contracts that --
Oh, really? I mean --
“The phrase 'Oh, really?' is a classic expression of disbelief or skepticism, often signaling surprise at an argument's boldness or implausibility. The trailing 'I mean --' suggests the Justice may have been interrupted or is struggling to articulate disagreement, lending a mildly hostile tone of incredulity.”
What state damage -- oh.
“This appears to be a Justice beginning to ask a clarifying question about state damages and then stopping mid-sentence, likely because counsel began answering or the Justice thought better of the question. The 'oh' suggests a sudden realization or self-interruption, making this largely procedural/neutral with a slight clarifying intent.”
What -- what state remedies did these guards have? This was egregious. Is there a state RLUIPA?
“The Justice is asking about available state remedies and whether a state RLUIPA exists, which is primarily clarifying/information-seeking. The word 'egregious' signals some concern or moral reaction to the conduct, and the inquiry into alternative remedies suggests underlying concern about whether adequate relief was available to the guards.”
There is, Justice Barrett. As we said --
And would that have provided relief to them if they had chosen to sue under it? As far as I can tell, they did not.
“The Justice is probing whether an alternative legal avenue would have provided relief to the respondents, noting that they did not pursue it. This combines genuine clarification-seeking with mild skepticism about the respondents' litigation choices, suggesting they may have had another option but didn't take it.”
They did not sue. Arguably, the answer would be yes, Justice Barrett. At pages 13 and 14 of our BIO, we 114 describe our law, which basically mirrors RLUIPA, expressly provides for damages, and, you know, that was available. That's available to all prisoners in Louisiana and it's available even to non-prisoners in Louisiana.
And it would permit money damages or no?
“This is a straightforward factual question seeking to clarify whether the statute or rule under discussion would allow for money damages as a remedy. The phrasing 'or no?' is a simple binary clarification request with no apparent emotional valence or challenge to the argument.”
It has money damages expressly articulated in the statute, Justice Barrett, and --
Well, I was just going to say that that was certainly one remedy that was immediately available. I will say, in terms of the broad scope of remedies available either to Congress, it's -- if it's unhappy with a state like Louisiana or, you know, otherwise, the remedy -- sorry, Justice.
Yeah. No, no. I mean, I -- I understand that. I mean, I just really did want to know as a matter of state law. And -- and then just out of curiosity, obviously, this is beyond the record, I mean, was there disciplinary action here, do you know?
“The Justice explicitly acknowledges curiosity ('just out of curiosity') and a desire to understand state law as a matter of genuine inquiry, signaling clarifying and engaged exploration rather than skepticism or hostility. The casual, conversational tone and acknowledgment that the question goes 'beyond the record' further indicates intellectual curiosity rather than adversarial probing.”
So it -- it is outside the record, Justice Barrett. I can say the warden himself is no longer associated with the Department of Corrections.
I mean, the -- the -- the -- the -- the surprise that you were saying employees would have, are they surprised to learn that they find themselves subjected to 1983 suits all the time?
“The Justice is challenging the respondent's argument about employee 'surprise' by pointing out that employees are already routinely subjected to §1983 suits, undermining the surprise argument. The rhetorical question format and the implicit 'so why would this be different' logic signal skepticism toward the respondent's position.”
Well, Justice -- Justice Kagan, Section 1983 is a remedy, right? It's a cause of action that gives a remedy, and your earlier question about can't you just do this all under 1983 doesn't --
I didn't say can't you do. What I'm saying is that your -- your -- your arguments that they're not getting notice, that they're not -- that there -- there's not enough knowledge, I mean, that would just make 1983 suits -- the same objections could be held with respect to that. And yet 1983 exists, people bring 1983 suits against state officers all the time, including to enforce statutes that have been 116 enacted pursuant to the Spending Clause.
“The Justice is directly challenging the respondent's arguments by pointing out that their objections about notice and knowledge would apply equally to 1983 suits, which routinely exist and function. This is a classic skeptical move — using an analogy to undermine the respondent's position — with some mild hostility in the correction 'I didn't say can't you do' and the rapid-fire repetition indicating frustration.”
That's right, Justice Kagan. And remember that when we're talking about 1983, the -- the antecedent question at least in the Spending Clause context is whether the asserted right under the Spending Clause legislation is one that can be enforced in 1983. And I think the important point there in that antecedent question is the question we're dealing with in our red brief is, can Congress use the Spending Clause to create a substantive right that runs against a state official in his personal capacity? And if the answer to that is no, then you never get to Section 1983.
But didn't we -- didn't -- didn't we answer that question in Talevski? I thought we said in the 1983 context that it didn't matter that it was Spending Clause legislation. We said a law is a law and you can use --
“The Justice is challenging the respondent's argument by pointing to prior precedent (Talevski) that appears to contradict or complicate their position, using a rhetorical 'didn't we already settle this?' framing. The repeated 'didn't we' suggests skepticism toward the respondent's current argument, though there's also a clarifying element as the Justice summarizes the prior holding.”
We said secured by the laws of the United States.
“The Justice appears to be pointing to specific statutory or constitutional language, likely to probe how the respondent's argument fits within that precise wording. This has elements of both clarifying the exact text at issue and mild skepticism about whether the respondent's interpretation aligns with that language.”
Include secured by laws acting -- act -- enacted pursuant to the Spending Clause.
“The Justice appears to be reading or reciting statutory/legal language aloud, likely to clarify or confirm the precise text at issue. The halting, corrective nature ('act -- enacted') suggests careful reading for clarification purposes rather than any evaluative sentiment.”
That's right. And the question in this case is does Congress have constitutional authority under its Spending Clause power to do what Petitioners say it did in RLUIPA.
No, but I'm saying, why are you not undoing that Talevski holding with the argument that you're making today?
“The Justice is pressing counsel on an apparent logical inconsistency between their current argument and the prior Talevski holding, signaling doubt about the coherence of counsel's position. The 'No, but...' opener indicates pushback and mild challenge, reflecting primarily skepticism with some concern about unintended doctrinal consequences.”
Your Honor, because cases like Talevski are dealing with suits that are actually against recipients, funding recipients, right? I mean, that's -- nobody disputes that in the -- in the --
That's just a distinction you're bringing in. What I think Justice Kagan was getting at is there -- there's something about your argument that turns on this being Spending Clause legislation and that that has something to do with the extent to which it can be enforced in this way. And we said in the context of 1983 that it didn't matter that it was Spending 118 Clause legislation, and what she, I think, is trying to say is, why should it matter here? And if it does matter here, doesn't that imperil the determination that we made in Talevski that Spending Clause legislation should be treated just like any other law for the -- for this purpose?
“The Justice is actively challenging the respondent's distinction as artificial or insufficient, pointing out that the argument may contradict prior precedent (Talevski) and aligning with Justice Kagan's line of questioning. The rhetorical framing ('That's just a distinction you're bringing in') and the pointed question about imperiling prior holdings signal strong skepticism toward the respondent's position.”
Your Honor, it matters here because of cases like Cummings that trace all the way back to Pennhurst that say the very legitimacy of Congress's exercise of Spending Clause authority depends on that bilateral agreement. Is it -- is it sending money out and taking a reciprocal promise to comply with conditions in? If you're missing that reciprocal consent from a recipient or putative non-recipient --
So what's your answer -- what's your answer to the other part of this, which is the states are -- do you -- do you dispute that the states have consented? I know they're not the ones that are being bound. But the first step is, did they consent to follow RLUIPA?
“The Justice is pressing counsel to directly address a specific legal question about state consent to RLUIPA, combining genuine clarification about the respondent's position with some skepticism by isolating a step in the argument that may undermine counsel's broader claim.”
I have to be very 119 precise about this, Your Honor. Yes, the state consented to RLUIPA's plain terms.
When it accepted the money, it did.
“This terse, declarative statement appears to be the Justice asserting a counter-point or correcting the respondent's argument, suggesting the state/entity did accept some obligation when it accepted funding. The brevity and assertive framing signals skepticism toward the respondent's position, possibly pushing back on a claim that no condition was accepted.”
That -- that's -- that's exactly right. And my friends love page 46 of our red brief. What we're saying there is that when a state official in his official capacity is working on the job, he is the state under this Court's common division between official capacities and individual capacities, and, of course, state officials in their official capacities as the state are bound by RLUIPA. That's the --
I'm sorry, are you saying that this individual who represents the state on page 46 of your brief, you said he's bound by this statute, correct?
“The 'I'm sorry' opener and direct reference to a specific page of the brief signals genuine clarification-seeking, as the Justice wants to confirm their understanding of the respondent's argument. There is mild skepticism embedded in the confirmation-seeking tone, but the primary intent appears to be clarifying the precise scope of the claim.”
Substantively as an official of the state?
“This very brief question appears to be seeking clarification on a specific point about the nature of an official's role or capacity, asking whether something applies substantively in an official state capacity. The phrasing suggests the Justice is probing to better understand the argument's scope rather than challenging it.”
In his official capacity, of course.
He is the state, 120 Justice Sotomayor.
So he is the state?
“This terse rhetorical question probes a potential logical tension in the respondent's argument about state identity or authority, carrying skeptical undertones while also seeking clarification about the precise legal claim being advanced.”
So you say it's enough knowledge for him to know what the law says and that he's working for the state and he represents the state, that he can't violate the law, correct? And if an injunction issues, he could be held liable for violating that law, correct?
“The Justice is pressing counsel to confirm the logical implications of their argument about knowledge and liability, using 'correct?' to verify understanding while also probing whether the standard being proposed is sufficient. This combines clarifying intent with mild skepticism about whether mere knowledge of the law and state employment creates adequate grounds for liability.”
Because it's an injunction against the state, Justice Sotomayor.
All right. But you're saying at the same time that person who -- the warden, who is cutting the individual's hair, should know that that's a violation of the state for which an injunction should be liable, but he shouldn't know that he's liable for personal damages too? That's what you're saying?
“The Justice is probing an apparent inconsistency in the respondent's argument — that a warden could be expected to know their conduct violates the law for injunctive purposes but not for personal damages liability. The closing 'That's what you're saying?' signals pointed skepticism and mild incredulity at the logical tension in the position.”
Your Honor, that's what 10 federal courts of appeals have said --
Well, that's 121 what --
“This appears to be a very brief, likely interrupted utterance where the Justice is beginning to reference something (possibly a page number or citation). The incomplete nature suggests it was cut off mid-sentence, making it largely neutral/procedural with a slight clarifying intent.”
-- they said, but, as the other side pointed out, they didn't start with the first question, which is, is this statute clear that there's an individual cause of action? Yes, it does make that clear. And is it clear by using appropriate damages clear that it includes -- appropriate relief that it includes contract damages? In Tanzin, we said yes. So, whether they're right or wrong, it's irrelevant. If we assume that the law says what it says, how do we say that official acting in -- as a person knows one thing is wrong for the state, but it's not wrong for him to do or her?
“The Justice appears to be pushing back against the respondent's argument by asserting that the statute is clear and citing Tanzin as precedent, while also engaging intellectually with the logical implications of official liability. The rhetorical question at the end ('how do we say that official acting...') signals skepticism toward the respondent's position, blended with active intellectual engagement in working through the legal reasoning.”
So -- so, Justice Sotomayor, I think that goes back to an earlier question Justice Alito asked of the federal government, which is, you know, what perspective are we looking at? I was surprised to hear the federal government say you look at the time of enactment, when Arlington Central, Justice 122 Alito's opinion for the Court, and then Cummings, the Chief Justice's opinion for the Court, said you look at when the official is deciding whether to receive federal funds, what would that --
So, frankly, that would mean that -- do you know when they took -- I thought federal funds came every year.
“The Justice appears to be both seeking clarification about the timing of federal funds and implicitly probing the logic of the argument ('frankly, that would mean that...'). The combination of genuine inquiry about factual details with a mildly challenging undertone suggests mixed clarifying and skeptical sentiment.”
That's -- and that's my point, Justice Sotomayor, is that --
So every year, they know that they're bound. So does it make a difference if we say it's clear enough, but it wasn't clear to them at the time they took this action because 10 circuits were wrong, but moving forward, it's clear enough to anybody else that they shouldn't do it?
“The Justice is probing the practical implications of the 'clearly established' standard in qualified immunity doctrine, questioning whether a circuit split affects the clarity of the law at the time of the action. This combines skeptical probing of the respondent's position with genuine intellectual engagement about the forward-looking vs. backward-looking nature of the standard.”
That's the very last argument we put in the red brief, Your Honor, which is, if you disagree with everything else I say about the constitutional questions, then that, I think, has to be the answer. And I will say it's not just what has happened between --
So a form of qualified immunity you're arguing?
“The Justice is primarily seeking to characterize and clarify the respondent's argument by labeling it as 'a form of qualified immunity,' which is a neutral attempt to categorize the legal theory being advanced. There is mild skepticism embedded in the framing, as comparing the argument to qualified immunity may subtly probe whether the counsel is advancing a potentially controversial or familiar doctrine.”
What I'm saying, Your Honor, is that between the year 2000 and Tanzin, I think, certainly, we have this huge body of RLUIPA precedent that would have put no state prison on notice about prison officials being liable in their individual capacities.
How many of those case --
“This is a very brief, incomplete utterance that appears to be the beginning of a question about case numbers or statistics. It signals a Justice seeking clarifying information or engaging with the factual record, with no discernible hostile or approving tone.”
-- how many of those cases were post-Tanzin?
“This is a short, factual follow-up question seeking specific information about the timing of cases relative to the Tanzin decision. The Justice appears genuinely curious about the data being presented, making this primarily a clarifying inquiry with some engaged interest in the legal landscape.”
Tanzin was 2020. We have this case. But how many of those were post-Tanzin?
“The Justice is seeking specific factual clarification about the timeline of cases relative to Tanzin (2020), probing whether the data being cited is relevant and current. The question has mild skeptical undertones suggesting the Justice may be questioning the reliability or relevance of the cited cases, but the primary intent appears to be clarifying the factual record.”
I believe we have about four circuits post-Tanzin, Your Honor, and that includes Chief Judge Sutton in Ali versus Adamson, that includes Judge Sullivan in the Tripathy case out of New York. And the other thing I was going to add to that answer, Justice Sotomayor, is that, like, I -- I -- I'm happy to rely on the body 124 of RLUIPA precedent, but in the spirit of Footnote 6 in Sossamon, which looked at pre-RLUIPA precedent, we have four federal courts of appeals even before RLUIPA saying this sort of cause of action for damages, like, that's not a thing under the Spending Clause. And so, if you just --
Well, don't we have a lot -- don't we have a number of Supreme Court cases that allow for Spending Clause statutes to bond -- to -- to bind non-recipients?
“The Justice is directly challenging the respondent's apparent position by invoking existing Supreme Court precedent that may contradict their argument, using a rhetorical question ('don't we have...') that signals doubt about the respondent's legal framing. The 'well' opener and the corrective self-interruption suggest a pointed, skeptical probe rather than genuine clarification.”
Your Honor, the best -- I -- I believe the only example you saw in the yellow brief was the Franklin case, where my friend said that the Eleventh Circuit had a pre-existing case on the books that controlled the answer.
Your Honor, I -- I don't recall the history behind Grove City, but I guess what I'd tell you is that this is an extraordinarily unique context where you have federal courts of appeals' on-point precedents 125 both before and after RLUIPA's enactment that are, like, unanimously telling any state operating within the borders -- the regional borders of those circuits, like -- like, this is just not a thing. And that's why when we're --
So are you distinguishing Salinas, Sabri, and Dole on -- I mean, they were binding non-recipients, right?
“The Justice is pressing counsel to clarify how their argument distinguishes from prior binding precedents (Salinas, Sabri, Dole), which signals both skepticism about the distinction being drawn and a genuine need for clarification. The phrase 'right?' at the end suggests the Justice is testing the characterization of those cases against the current argument.”
Your Honor, I -- I want to resist the -- the -- the characterization of them as non-recipients because I think you talk about recipients and non-recipients when you're talking about Spending Clause legislation. 666, all of those cases, that's not Spending Clause legislation. That's what this Court said expressly at page 608 in Sabri. And so, once you conceive of a statute like RLUIPA as Spending Clause legislation or not Spending Clause legislation, that's going to dictate which path -- you know, Petitioner has given you which path you choose. And that's why I'm saying --
Assuming that Spending Clause legislation matters. I'm 126 just -- this is going back to the point with Justice Kagan. Assuming that it makes a difference that it's Spending Clause legislation, you say, then we can distinguish all these other cases.
“The justice is probing the respondent's argument by conditionally accepting the Spending Clause premise ('assuming') and then pressing on whether it can actually do the work of distinguishing prior cases. The conditional framing signals skepticism about whether the Spending Clause distinction is meaningful, while also genuinely revisiting a prior line of questioning with Justice Kagan in a clarifying manner.”
I think it has to matter, Justice Jackson.
Even though we said it didn't in Talevski?
“The Justice is challenging counsel's argument by invoking a prior precedent (Talevski) that appears to contradict their position. The phrase 'Even though we said it didn't' signals direct skepticism by pointing to an apparent inconsistency between counsel's argument and established case law.”
Your Honor, this is -- the only reason we're here today is because Congress used its Spending Clause authority to pass RLUIPA. Like, if it had never done that, we wouldn't be here today. And I think Petitioner has the burden to tell the Court either you use Spending Clause authority or you use the 666 path --
I mean, Spending Clause legislation, it matters because that imposes a -- a bar of clarity that usually is not imposed. So, when we read the statute, we have to be cognizant of the fact that it was passed pursuant to the Spending Clause and we have to say, is this clear enough?
“The Justice is raising the Spending Clause clarity requirement as a potential challenge to the statute's interpretation, suggesting skepticism about whether the legislation meets the required clarity standard. The framing 'we have to say, is this clear enough?' signals doubt about the statute's sufficiency while also engaging intellectually with the interpretive framework.”
But that doesn't have anything to do with the questions that you're now talking about, which -- because, once we get to this constitutional issue, we've already decided the statute is clear enough and the question is only could Congress do this.
“The Justice is pushing back on counsel's line of argument, suggesting it is off-track or irrelevant to the constitutional question at hand. The phrase 'But that doesn't have anything to do with' signals skepticism and mild hostility toward the framing, while also clarifying the proper analytical sequence (statutory clarity first, then constitutional authority).”
So I respectfully disagree with that, Justice Kagan, for this reason, which is Cummings reiterated that Congress only acts legitimately when it sends federal funds out and it gets a reciprocal promise to reply with conditions in turn return. Sure, you can say that that existed here as to the state, but you cannot say it with respect to the state official in his personal capacity, one, because he never received --
Yeah, but that's what I'm saying, that's always true with respect to 1983 suits, is that you can always say, oh, the state understood this, but the state employees did not. Now, in fact, that's not true as a factual matter. State employees are well aware that 1983 suits exist and that other federal remedies exist too. 128 But the point that I'm making is that this -- this -- RLUIPA is no different with respect to putting an employee on notice than a 1983 action is.
“The Justice is actively pushing back on the respondent's argument by challenging the factual premise that state employees lack notice, and drawing an analogy to 1983 suits to undermine the distinction being made. The 'Yeah, but' opener signals skepticism and mild pushback, while the intellectual comparison to 1983 actions shows engaged reasoning rather than pure hostility.”
And, Your Honor, I think, if and when this Court gets a Section 1983 action where the underlying substantive right --
We can strike that down too.
“The terse, almost dismissive 'We can strike that down too' suggests a Justice asserting judicial power with a somewhat challenging or provocative tone, signaling willingness to invalidate the law in question. The brevity and declarative confidence carries mild hostility or pushback, while also reflecting intellectual engagement with the constitutional question at hand.”
No, I -- well, I think you're going to have a question, Justice Kagan, about whether Congress could use its Spending Clause authority to create a substantive right that runs against an individual person in his individual capacity. That's not a question the Court has answered. I would say, like, if you eventually have to answer it, I think the answer's no because that just is completely contrary to how this Court has conceived of the Spending Clause and the contract analogy that undergirds it.
To the extent we're talking about a contract analogy, an agent who knowingly violates a duty that the principal 129 owes to a third party may be liable to the principal but not to the third party, right?
“The Justice is probing the contract/agency law analogy being used by counsel, testing its logical implications by pointing out that an agent who violates a principal's duty is liable to the principal but not the third party. The 'right?' at the end signals the Justice is both seeking confirmation and subtly challenging whether the analogy fully supports respondent's position.”
Yeah. And the principal, as a result of the agent's misconduct, may be liable to the third party as well?
“The Justice appears to be actively following the agency law logic, confirming their understanding of principal liability stemming from agent misconduct. The 'Yeah' suggests they are tracking the argument, while the question seeks to confirm or clarify the next logical step in the chain of liability.”
May be liable. That's absolutely right.
And -- and, Justice Gorsuch, we have the -- the example in the red brief of, you know, the -- the agent who signs a contract on behalf of the principal. You know, even if our state prison officials had signed whatever spending contract under RLUIPA you want to pick on behalf of the State of Louisiana, contract principles will say you're still not personally bound. That doesn't personally bind that agent. And so a fortiori that's what we have here, is somebody who's, like, not alleged to have been involved in the spending process whatsoever. And let me make clear, I mean --
And -- and whether 130 Congress could provide clear notice and get consent from the employees, we don't have to decide that?
“The Justice is seeking to clarify the scope of what the Court needs to decide, essentially narrowing the question before them. The phrasing 'we don't have to decide that?' suggests the Justice is confirming a boundary of the case rather than probing a weakness or expressing concern about the argument.”
That's exactly right, Justice.
Whether that might be necessary and proper, and we don't to have decide that?
“The Justice appears to be seeking clarification on the scope of what the Court needs to decide, specifically whether the Necessary and Proper Clause analysis is required. The phrasing is exploratory and clarifying in nature, checking whether a particular legal question can be set aside.”
You could leave it for another day, Justice Gorsuch.
No, but how about if we don't want to? (Laughter.)
“The laughter and playful phrasing indicate a lighthearted, witty interjection rather than genuine skepticism or hostility. The Justice is engaging with humor, pushing back on counsel's framing in a casual, non-threatening way that still probes the argument's logic.”
Give me your best answer. Give me your best answer. As I'm hearing you, you're saying that they can bind the state by giving the state money, but they can have an abundantly clear notice, every employee you have must abide by this statute, and if they don't, that individual employee will pay damages. You're saying that's not adequate notice. It's not adequate notice if the individual signs a contract with the state agreeing because they didn't sign the contract with the federal government? Is that your 131 argument too?
“The Justice is sharply probing the respondent's argument about adequate notice, using a restatement of the argument in a way that highlights its apparent inconsistency or weakness ('you're saying that's not adequate notice'). The repetition of 'Give me your best answer' and the pointed rhetorical framing suggest strong skepticism, bordering on hostility, toward the respondent's position.”
Well, I'm not calling -- I'm not quite following that last part of the question, Justice Sotomayor.
Assume that the government --
“The phrase 'Assume that the government --' is a truncated hypothetical setup, characteristic of intellectual engagement where the Justice is constructing a scenario to test the argument. The incomplete nature of the utterance makes it largely neutral-to-engaging, with no clear emotional valence beyond curiosity.”
The hypothetical that the other side put forth, they could have had the government say to the states: Tell every employee that they're liable if they breach -- to us if they breach this contract.
“The Justice is engaging with a hypothetical raised by the opposing side, testing its logic and exploring an alternative framing of the argument. This reflects intellectual engagement and some clarifying intent as the Justice works through the implications of the hypothetical rather than expressing strong skepticism or approval.”
So -- so, Justice Sotomayor, if Congress passes a statute that says, States, if you take our funds, every one of your employment contracts has to tell the employees that they're --
How about states that don't have employment contracts? States who just hire you pursuant to a collective bargaining agreement, it's pursuant -- a -- the federal government can't say you must tell every employee they're personally liable?
“The Justice is probing a potential weakness in the argument by raising a scenario (states using collective bargaining agreements rather than individual employment contracts) that could challenge the federal government's ability to impose personal liability notices, suggesting skepticism about the breadth of the respondent's position and concern about its implications for states.”
Any contract a state enters into, if the state is the recipient of 132 federal funds and Congress says --
Will the individual be liable if the state -- the federal law is that clear?
“The Justice is probing whether federal law is sufficiently clear to impose individual liability, which is partly a genuine clarifying question about the legal standard and partly skeptical about whether the clarity threshold is met. The phrasing 'is that clear?' suggests some doubt about the precision of the federal law.”
Your Honor, I think Congress would have to tell the state you have to flow down in those contracts all of these requirements, and then you get consent from whoever the contractee is.
So you want a piece of paper for people to know the law?
“The phrasing 'a piece of paper' has a slightly dismissive, reductive quality that suggests skepticism toward the respondent's position, as if boiling down their argument to an absurdity. However, it also contains a clarifying element, as the Justice may be genuinely seeking to confirm what the respondent is asking for before probing further.”
Yeah, because, I mean, under contracts, do you have to have it written down on a piece of paper? I thought you could make an agreement that didn't --
“The Justice is intellectually engaging with the concept of contract formation, suggesting that written documentation isn't necessarily required for a valid agreement. The casual, exploratory tone ('I mean,' 'I thought') signals genuine engagement and mild pushback rather than hostility, as the Justice appears to be challenging a premise about written requirements while testing the legal principle.”
-- that -- that -- that wasn't express in that way?
“The stuttering, incomplete phrasing 'that -- that -- that wasn't express in that way?' suggests the Justice is seeking clarification or reformulating a question mid-thought, likely checking whether a particular point was explicitly stated in the record or argument. The hesitant, fragmented delivery indicates genuine clarifying intent rather than skepticism or hostility.”
Justice Jackson, in a -- in the jurisprudence based on consent, concept has to mean something.
No, no, no, I understand.
“The repeated 'No, no, no' signals mild impatience or an interruption to redirect the counsel, but 'I understand' softens it to an acknowledgment rather than hostility. This is largely a procedural interjection indicating the Justice has grasped the point and wants to move on.”
And the only -- the 133 method --
I understand. And the question, I think, that Justice Sotomayor is asking is, why can't that consent be demonstrated through the employment agreement? Whether the employment agreement has all the terms written down or not, why couldn't we have a situation in which Congress makes clear to the states that its employees need to follow the law or be held liable, you know, individually in this way? And then the states contract with individual employees who understand, given that agreement that is, you know, part of the law, that that's what they have to do?
“The Justice is actively exploring a hypothetical legal framework — whether consent to individual liability could be demonstrated through employment agreements — building on Justice Sotomayor's question in an intellectually curious and constructive way. The tone is collaborative and exploratory rather than adversarial, suggesting genuine engagement with the legal theory.”
So, Justice Jackson, I think, in that hypothetical, you'd have a factual determination to make, which is what sort of notice was the employee on, what was written down or said in that contracting process?
And your view is only if the state actually writes the terms into the employment agreement would there be sufficient notice to the employee? Only if 134 they write it down?
“The Justice is probing the respondent's position by restating it in a potentially reductive or limiting way ('only if they write it down?'), suggesting skepticism about the narrow formalism of requiring written terms for notice. The repetition and simplification signals doubt about whether that strict requirement is workable or defensible.”
Justice Jackson, I'm not wedded to the method of the notice.
I'd like you to answer that question. If they wrote it down, is your answer that, yes, then the employee could be held liable?
“The Justice is pressing counsel to directly answer a specific question about employee liability, suggesting some skepticism that the question hasn't been adequately addressed. The phrasing 'I'd like you to answer that question' signals mild impatience or pushback, while the follow-up conditional question seeks genuine clarification of counsel's position.”
If -- if the contract says, by accepting employment, you're agreeing to abide by all of the terms of RLUIPA, which, by the way, includes money damages in your personal capacity, then, yes, that -- that --
But we can't imply that that's the case because --
“The phrase 'But we can't imply that' signals pushback against the respondent's argument, suggesting the Justice is challenging an assumption or inference the counsel is relying upon. The adversarial 'But' and the mid-sentence interruption indicate skepticism, though the incomplete nature of the utterance tempers a stronger classification.”
-- there is a law that says that federal employees under this circumstance have to abide by RLUIPA?
“The Justice appears to be seeking clarification about whether a specific law mandates federal employee compliance with RLUIPA under the given circumstances. The question has a slightly skeptical undertone (probing whether such a law actually exists), but is primarily clarifying in nature.”
Because that is never how the Court has concepted -- constructed the -- the Spending Clause analysis, Justice Jackson.
Counsel, thank you very much. Justice Thomas, anything further? Justice Alito?
“This is a purely procedural statement wrapping up argument, thanking counsel and polling other justices for additional questions. It carries no substantive judicial sentiment whatsoever.”
Let me ask the same question that I asked the other side about the date. What specifically is the date we should look to?
“The Justice is directly asking for factual clarification about a specific date, mirroring a question posed to the opposing side. This is a neutral, information-seeking inquiry aimed at understanding the respondent's position on a key legal issue, with slight engagement in exploring how both sides handle the same question.”
Your Honor, it's the date that the state received federal funding. Now, in a -- in a statute like this, I will be candid that it is difficult to pin down because RLUIPA is agnostic about the source of federal funding. It says any federal funds that run. And so, if you're talking about federal funding like Medicaid, which comes in basically monthly, weekly, you know, that -- that's the point in time at which you should look.
Justice Sotomayor? Justice Kagan? Justice Gorsuch? Justice Kavanaugh?
“This is purely procedural/administrative speech, with the presiding Justice polling colleagues to see if they have questions for counsel. There is no substantive content, emotional valence, or argumentative dimension whatsoever.”
You say RLUIPA does not unambiguously authorize a damages remedy. This is Justice Kagan's kind of bar of clarity point. The other side says the statute clearly authorizes individual capacity suits, so that traditionally has encompassed damages, and then they cite Tanzin on top of that. And I just want to make sure I have your responses to that precise point.
“The Justice is primarily seeking to clarify and consolidate the opposing arguments to ensure they have an accurate understanding of the respondent's position, using phrases like 'I just want to make sure I have your responses.' There is mild engagement as the Justice lays out the competing legal framework, but the dominant tone is clarifying rather than adversarial.”
Sure, Your Honor. So a few things to say to that. I will say the one thing this Court recognized in the Sossamon case is that even if you get to the appropriate relief question, there are a number of ways you can infer what that term means. So, for example, we laid out in the red brief the fact that the Court -- that Congress referred to injunctive relief with respect to the United States. There -- there's different terminology like that. Another thing the Court credited as plausible was that the ordinary definition of "appropriate relief" is typically particularly equitable relief, not damages. That's plausible. 137 The other way I -- I would attack that, Justice Kavanaugh, is remember what the Court said in Sossamon and repeated in Tanzin, which is that the term "appropriate relief" is inherently ambiguous and context-dependent. And I think the thrust of everything I've said today and what we say in the red brief is that the most important context here at least for our purposes is what -- what constitutional authority was Congress using to actually enact this putative cause of action for damages. That's the point that Chief Judge Sutton made, and I think that's exactly the right way to think about the relevant context here.
Justice Barrett? Justice Jackson? Thank you, counsel. Rebuttal, Mr. Tripp. REBUTTAL ARGUMENT OF ZACHARY D. TRIPP ON BEHALF OF THE PETITIONER
“This is purely procedural language — checking if other justices have questions, thanking counsel, and introducing rebuttal argument. There is no emotional valence or substantive content, making it almost entirely neutral in judicial sentiment.”
Just a few quick points. Justice Barrett, to start with the question about mini-RFRA, this is in our cert 138 reply, the state's mini-RFRA departs from the compelling interest test for prison safety or security regulations, so it wouldn't provide any relief, and, obviously, Congress wanted to have a nationwide remedy here. Justice Kavanaugh, to just respond to that last exchange, I hear no answer to the -- to the basic point that there is an individual capacity action. It is express on the face of the statute. And then, as long as you just do what you normally do and ask what damages are appropriate in the context of an individual capacity action, again, I -- I still hear no answer. They're presumptively available under Franklin. That's an implied cause of action in a Spending Clause case, and they say damages are available. That's the norm. Tanzin explains, traces it all the way back through the history, and still there's no answer to the point that if you don't have damages in the individual capacity action, you get nothing. There's no such thing as an individual capacity injunction. It's the whole point. 139 And, again, if you don't have damages, like, look -- look at the facts of this case. Think about what Congress that enacted this law was trying to do. This is exactly where they were trying to have accountability, and I think it's clear as day on the face of this statute. I think a lot of the -- the -- the questions go to notice. There were a lot of questions to -- to notice. The notice is -- is -- is baked in. They admit there's sufficient notice to the substantive condition. The remedial condition is the very next section in the statute. Like, I don't understand any theory of notice where, as a state employee, you're bound by one page of the statute but not the next one. That doesn't make any sense. They -- they are clearly on -- on -- on notice of both and they are both here. It's the individual capacity action is clear as day. And then damages are just always appropriate relief in an individual capacity action, as every state prison official knows, because they face these kind of suits all the time. This is -- this is the norm for them. And, of course, you have an additional layer of 140 protection on the notice side because qualified immunity applies. And, of course, we have an extraordinary case where not only was there clearly established law, but we provided them actual notice of it and they still violated it. I think, really, at the end of the day, like, I'm still hearing ultimately no answer to Salinas, the Salinas, Dixson, Hess, Laudani line of cases, and -- and crux of those cases, again, would -- the -- the -- the root of the power is that it runs consensually all the way down. There's contract, you take the job as a prison official subject to the -- as a law enforcement official in a federally funded prison, of course, you take it subject to the conditions that Congress has attached, and, here, it has attached both of them. And I think, really, at the end of the day, what -- what -- what -- what the case is sort of fundamentally about is, has Congress actually succeeded in restoring pre-Smith rights and remedies? I think that's really the question. And I think there's no doubt that that's what Congress meant to do, and there's 141 no serious doubt under this Court's precedents that that's constitutional, so we're asking the Court to reverse.
Thank you, counsel. The case is submitted. (Whereupon, at 11:56 a.m. the case was submitted.)
“This is a purely procedural closing statement marking the end of oral argument with a timestamp. It contains no evaluative or emotional content whatsoever.”