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Open Thread

2026-04-28T10:29:17.254-04:00

By Eugene Volokh - April 28, 2026 at 03:00AM

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Loper Bright and Preemption

2026-04-28T05:29:34.761-04:00

By Josh Blackman - April 28, 2026 at 12:54AM

Yesterday, the Supreme Court heard oral argument in Monsanto Co. v. Durnell. The facts of this case are likely not of concern to most constitutional law scholars, but the dispute is of serious concern to the business community. The plaintiff sued Monsanto (which is owned by Bayer) for harms caused by the Roundup herbicide. (Don't call it a pesticide, as Justice Thomas--a former Monsanto employee--reminded us.) The jury awarded $1.25 million in compensatory damages based on a failure to warn about possible harms. Bayer counters that the EPA did not require those additional warnings, so the state tort claims is preempted.

Going into the argument, I struggled to count to five votes for the plaintiff. Preemption is an area where the Court's conservatives do not line up neatly. Justice Thomas, the Court's most committed federalist, has often been skeptical of federal preemption. See his opinion in Hencely just last week. I though Justice Gorsuch would be in a similar spot. I was fairly certain Justice Kavanaugh would be troubled by the possible economic effects on companies like Monsanto, and would favor broad federal preemption. I suspected that Chief Justice Roberts would fall in a similar camp. Same for Justice Alito. I wasn't sure where Justice Barrett would be. It It was conceivable that Justice Kagan would favor broad federal preemption to promote uniformity, but I was doubtful.

Having now listened to the oral arguments, I will stand by my prediction. Everyone lined up about where I expected. Despite Paul Clement's best efforts, I'm not sure where Monsanto finds five votes. Indeed, the Justices seemed to have very few questions for Ashley Keller, counsel for the Durnell. Perhaps they were a bit tired, as the argument in Chartrie stretched nearly two hours, but Keller was able to talk uninterrupted for several minutes. And with about ten minutes remaining, and no further questions coming, Keller sat down. As a general rule, the side that gets the most questions is more likely to lose. Then again, the Justices may have been spent after the Fourth Amendment case.

Justice Alito was entirely silent during the argument except when he perked up during an exchange about Loper Bright. I flagged this issue in a prior post. Everyone agrees that Congress can preempt state law through a statute. But what about when an agency purports to preempt a state law through regulations? Under the Chevron regime, the agency would likely get deference when its regulation interprets a complex (ambiguous) statutory regime. But after Loper Bright, does that agency still receive deference? And if the agency does not receive deference, can a state court, in a tort suit, interpret the federal statute to determine if there is federal preemption? In other words, who gets to interpret the statute: the agency or the court. Who decides? Loper Bright would seem to suggest that courts decide legal questions, rather than agencies. Or does Loper Bright not envision a role for state courts to decide the preemptive effect of federal regulations?

Consider this colloquy:

JUSTICE KAVANAUGH: So the Solicitor General was wrong about that?

MR. KELLER: Yeah. Very respectfully, yes, he is. And you don't give deference to the Solicitor General in interpreting FIFRA. You look at the words for yourself. So, yes, the United States is wrong about that. Then they go to the regulations. They quickly jump to the regulations. What's the source of authority for those regulations? If you ask the EPA the source of authority for those regulations, I kid you not, it's 136 to 136y. They cite the entire statute. That's their source of authority. If you cite the entire statute as your source of authority, that's a pretty good indication that you don't really have a good textual source of authority. Again, maybe in the Chevron regime, we might have looked past that, but we're in the Loper Bright regime. I think you need affirmative text for what they can regulate.

JUSTICE ALITO: Well, Mr. Keller did Loper Bright say one word about preemption?

MR. KELLER: No, it doesn't, but I -

JUSTICE ALITO: Loper Bright is about the relationship between two branches of the federal government, right?

MR. KELLER: Well, I --I agree with that. I think it is always a separation of powers issue if you're going to ask whether the executive branch gets to pronounce what the law is instead of the judiciary. And then, of course, that's relevant in the preemption context.

JUSTICE ALITO: Why is it relevant? Preemption involves the relationship between the federal government and the states.

What follows is a fascinating exchange about precedent. Do the members that joined Loper Bright have a special insight about how that precedent should be extended in some other context? Or can a new majority of the Court then decide to extend Loper Bright, even if some of the members of the majority (including Justice Alito) disagree.

MR. KELLER: It --it does, and under the Supremacy Clause, federal law is the supreme law of the land, so what counts as federal law is relevant to every preemption inquiry. I --I would be surprised if Loper Bright were somehow cabined and not applied in preemption cases where a regulation is doing the work to create preemption. You have the separation of powers problem plus a federalism problem because you're letting the executive, not Congress, preempt valid state law. That should only be done pursuant to a valid delegation.

JUSTICE ALITO: Well, your --your prescience about where the law might go is -is interesting, but it's not there now, is it?

MR. KELLER: Well, I --I think that that's what you meant in Loper Bright. You all know better than I do what you really meant in Loper Bright, but I think a rule that says the Loper Bright regime is cabined to separation of powers cases and doesn't apply in preemption cases I don't think makes analytical sense. You could draw that line. You've drawn lines before that maybe previously didn't occur to me that subsequently emerged. So I'm not going to tell you you couldn't do it.

In other words, the Court could not logically exclude preemption cases from the Loper Bright framework.

JUSTICE ALITO: You think that would be an irrational line to draw?

MR. KELLER: I do, yes, because Loper Bright is asking the same sort of question, who decides what the law is? Is it the judiciary or is it the executive branch? That is obviously relevant to preemption questions when we're trying to figure out what the law of the United States says.

Who decides, as Judge Sutton would ask. This argument is tailor made for Justice Gorsuch. Again, if Thomas and Gorsuch rule for the plaintiffs, it will be tough to count to five. Then again, Justice Kagan might be an unlikely vote for Monsanto. She continued this exchange after Justice Alito finished:

JUSTICE KAGAN: Well, Loper Bright didn't suggest that Congress couldn't delegate power to agencies.

MR. KELLER: I agree.

JUSTICE KAGAN: And it seems here as though there's a pretty big delegation of power to EPA to figure all these matters out.

MR. KELLER: I agree there is an important set of delegated powers to EPA. And there are many that we haven't discussed that I do think would create labeling requirements. But the registration provision of 136a, which is where he and the government hang their hats, I do not think is this broad delegation to ultimately decide whether a pesticide is misbranded or not. I agree with you, though, there are express delegations of authority that I do think could create labeling requirements. I can give you 136w(c)(2).

JUSTICE KAGAN: Well, I mean, if we just sort of think about this scheme, right, it says to EPA you have to do this big study, you have to weigh costs and benefits, you have to figure out on the basis of that whether to register a pesticide, you have to do that again every 15 years, you have to keep track of things in the interim, you have to, you know, take seriously further information that industry gives you after registration.There just seems like a lot of stuff that the EPA does and is told by Congress to do to ensure the --the appropriateness of a particular pesticide.

MR. KELLER: I completely agree with you. FIFRA is structured in a way to maximally protect the consumer. So selling an unregistered pesticide is the first offense in 136j. But you also can't sell a misbranded pesticide.

Justice Barrett had very few questions. I don't know where she falls on this Loper Bright issue.

There would be some irony if the business community succeeded in Chevron, only to have that doctrine push back against federal preemption. I am not at all convinced Loper Bright has made an actual difference to the outcome of business cases, but narrowing the scope of federal preemption would make a huge difference.

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Why AI Isn't Like a Law Clerk

2026-04-28T01:29:24.522-04:00

By Orin S. Kerr - April 27, 2026 at 10:58PM

In response to my two-part series (1, 2) on what to do with AI-generated scholarship, my good friend and former colleague Daniel Solove writes in with a question/comment:

What's the difference between you here and a judge? A judge directs legal opinions and puts their name on them, so aren't they doing the same thing, just with a human writer vs. AI?

Claude is just a law clerk.

Fair questions. I disagree, because I think the norms of authorship for legal opinions and scholarship are different.

Judicial opinions are exercises of formal government power, and the fact that one judge signs it is just a convention. Say there's a federal court of appeals case heard by a three-judge panel of Judge Ay, Judge Bee, and Judge Cee. If the panel hands down a published ruling, what makes the document important is that the formalities are met. It's a ruling in the case issued by a three-judge panel authorized to issue it that is binding authority in the circuit. It really does't matter who formally signed the ruling. It's equally important as precedent whether it is signed by Judge Ay, Bee, or Cee, or whether it is unsigned and issued per curiam.

Plus, we don't think it's really just the judge who signed the opinion whose view is reflected within it. We understand that an opinion signed by Judge Cee was really the collective view of all three judges. Perhaps it's more that of Judge Cee than the other judges, but it's something that Judges Ay and Bee could go along with, too.

In that setting, where individual authorship really doesn't matter and the document is important because of the formalities, it makes sense that we wouldn't have a law clerk's signature on an opinion they helped draft (or, in some cases, drafted entirely). The opinion is an institutional message, and it's the institution that matters. The names on the document don't matter much, but they understandably reflect those in the institutions who have the power over the message.

I see scholarly norms as different, at least when it comes to traditional law review articles. With scholarship, the scholar is saying, this is my view. I see the norms of scholarship as more like that of a soloist at a jazz concert. At a jazz concert, the solo is the musician's time to make a statement. If a tenor saxophonist gets up on the bandstand to begin their solo and instead pulls out a phone and hits "play," playing back a recorded solo performed by John Coltrane, we wouldn't say that the soloist is just as fantastic as John Coltrane. We wouldn't celebrate the soloist for expertly finding that Coltrane solo and skillfully hitting "play" at the right time. Instead, we would feel cheated. The soloist was supposed to make a statement, and instead he made no statement of his own at all.

I get that such norms can be contingent. What kinds of expression are valuable for their individuality, and which kinds are not, is something to debate rather than to logically resolve. And at some point, the selection of others' works can become a kind of statement of its own. But when it comes to AI, or at least my own AI-generated scholarship, I see AI as doing more than just executing my formal directives. So I see the scholarly norms as different, and I don't see AI as "just a law clerk."

Or so it seems to me. Curious what others think on this.

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Open Thread

2026-04-27T05:29:23.918-04:00

By Eugene Volokh - April 27, 2026 at 03:00AM

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What To Do With AI-Generated Legal Scholarship?: Part 2

2026-04-27T04:29:18.989-04:00

By Orin S. Kerr - April 27, 2026 at 01:54AM

As I explained in my previous post, I recently tasked AI with comparing two transcripts of the 1807 treason trial of Aaron Burr. My ultimate question is, what do I do with the document that resulted? And that breaks down into two sub-parts. First, do I publish this, either just online informally or with some kind of journal? And second, how do I describe what my relationship is to it? Am I a co-author? The author? Just a prompter?

Let me start by explaining how the memo was created, and then turn to the questions I have.

I. How the AI Memo Was Created

I need to start with what I did to help create the memo, as that might be relevant to my questions. The transcripts that needed to be compared were .pdfs of two-volume books from 1807 and 1808 that go for hundreds of pages, although the only parts I cared about were the parts on the privilege against self-incrimination. I used Claude (Opus 4.6 extended), and I tasked it with comparing the discussions of the legal arguments about the privilege against self-incriminagtion to get a better sense of whether my 2021 article on those arguments based on the Robertson transcript was accurate in light of the Carpenter transcript.

To say that "I tasked Claude" covers up a lot of detail, though. I went through around 30 rounds of prompting with Claude, over the course of a few hours. As I went along, I learned about what Claude could and couldn't do and pushed it to do a better job when it was resistant to do more. For example, when I first asked Claude to compare the documents, it declined, saying it was just too big a task to take the two long pdfs, to make them readable, and then to compare them. So I started with an easier task: Take my 2021 article, read it, and understand what it claims about the Burr trial, and then read the Carpenter transcript and write an article presenting a comparison. The first draft reply was a start, and made me think that the enterprise might be ultimately useful. But it left a lot to be desired.

Over time, I came to realize that there was an art to getting Claude to make the comparisons I needed. Ultimately it agreed to do a direct comparison of the two transcripts based on the claims I had made in my 2021 article. And I quickly realized that the comparison really needed lots of direct quotes and page references for everything, so that took a lot of extra time: Among other things, Claude had surprising difficulty with page numbers, in part because one of the two .pdfs had two volumes back to back and Claude could not figure out the pagination. I had to spot check, and I kept finding errors, which Claude had to keep correcting.

A big breakthrough came when I realized through trial and error that Claude could do comparison screenshots. That is, instead of just telling me what the two transcripts said, Claude could take screenshots of the relevant discussions and show them side-by-side. That way I could be more confident that I was getting a real comparison. Even then, the screenshots needed a lot of correction: Claude started off giving me only about 1/3 of the comparisons correctly, and I had to keep telling it to go back and make sure it was screenshotting the exactly equivalent sections.

As I neared the end, I also added more tasks. For example, I asked Claude to read the Carpenter transcript and tell me if my 2021 article had accurately summarized the arguments, as well as whether there were any parts of the argument from the Robertson transcript I had missed. I also asked Claude to say if there was any legal source Robertson had reported than Carpenter hadn't and vice versa, and any legal argument that one had reported that the other habn't.

After about 30 rounds of prompting, I ended up with a 22-page comparison memo. A typical page of the memo looks like this:

The good news, at least accordiing to Claude, is that all of the substantive points matched really nicely. The variations between the Carpenter transcript are apparently very minor, the kinds of things you might expect with two independent human beings trying to write down hours of court proceedings and hearing some small things differently. The parts I cared about were a match.

II. Should I Publish This, At Least in Some Way?

This brings me finally to the big queston I have, what do I do with this 22-page AI-generated memo? On one hand, if you're interested in my 2021 article, I think the AI comparison is of scholarly interest. The comparison is pretty noteworthy, at least for the small number of nerds who care about the substantive topic. On the other hand, the AI-generated memo doesn't slot into any traditional understandings I have of either scholarship or non-scholarship. So I don't know what to do next.

My uncertainty breaks down into two questions. First, do I publish this? And second, if I publish it in some sort of way, what should I state as my relationship to it? Let me explain my thinking as to both questions.

First, on the question of whether to publish this, I am conflicted.

Part of me thinks this memo should be only for my internal use. At some point, I should just do the work of reading the Robertson transcript again and reading the Carpenter transcript for the first time, and I should write up a comparison myself. Perhaps the memo should just be a helpful guide as to what I might expect to find, a sort of map that points the way and makes the task a bit quicker. This is akin to how I tend to use research assistants: Write me a background memo for me, which then gives me an helpful idea of what I should look for when I do the work myself.

Alternatively, I could post the AI-generated memo on SSRN.com, where a lot of draft articles are posted, but not try to publish it with any actual journal. Once it is up at SSRN.com, anyone can find it with a Google search. From a scholarly perspective, that is the important part; that way, people interested in the topic can see the comparison. But there's no need to actually publish the essay in a journal. It's not even my work product, but Claude's work product, so there's not much point in getting it formally published.

Or maybe I could (at least try to) publish it? It seems to me it's an academically interesting document. Maybe there's a journal that would be interested in publishing it, and if so, why not? That would give the memo a more permanent home, and it might draw more attention to my 2021 article and the issues I was trying to address.

III. What is My Relationship to the Memo? Am I The Author? An Author? Neither?

Finally, there's the set of questions about authorship. If I just keep this as an internal memo, granted, I don't have to worry about that. But if I post it on SSRN, or (certainly) if I try to publish it, I do. Am I an author? A co-author? A prompter? What am I?

One thing that seems clear to me is that I should not publish it the memo as an article single-authored by me. Perhaps I have an overly romantic notion of authorship, but I feel like authorship implies the moment of sitting in front of a blank page and putting my words on it. There has to be an authenticity behind that, and prompting Claude to write something (even many times) doesn't feel like it makes me the author. Even if I checked it, I didn't write it.

Another possibility is that maybe I am a co-author. Maybe my direction of the project, and my repeated prompting, made me a co-author along with Mr. Claude Opus, the actual writer. That seems better than saying I am the author, as at least I am trying to reveal how the memo came to be. Although a co-authorship approach is a little weird: It's not like Claude and I are two scholars who worked on the article together. I don't even know if SSRN would allow me to state "Claude Opus" as a co-author. So I'm not sure that fits.

A third possibility is that roles like mine are something new, and we need to come up with a new vocabulary for it. Maybe I didn't author the article, but rather I am the prompter of the article. Maybe I didn't write the article, but rather directed it. Perhaps, in my role as prompter/director, I shoould write an introduction that explains my goals and how the AI-generated memo came to be. Basically, I should summarize what I have written in these blog posts so far. And then I attach the AI-generated memo, for which I take no authorship credit. That way, the reader knows who did what and where the memo came from, as well as its limits. There isn't a role of prompter-director now, but maybe there should be?

Right now, at least, my instinct is that I first need to assess how much time it would take to do this myself. If it won't take too much time, and if I have the time, I should just use the AI-generated memo for my own internal use as a guide for when I do the project the old-fashioned way. What sees the light of day will be my own human-reasoned and human-written article instead. Alternatively, if I think the time commitment is too much given other obligations, I think I'll try to take the prompter-director role: I will write the intro and attach the memo, posting them together on SSRN, with the front page saying "introduction and prompting by" me but the article clearly labeled as written by AI.

Those are my instincts, at least. But I don't know. What are your thoughts?

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Bill Otis (Ringside at the Reckoning) on the SPLC Indictment

2026-04-27T00:29:09.589-04:00

By Eugene Volokh - April 26, 2026 at 09:13PM

Among other things, Otis responds to my post from yesterday; an excerpt:

The main criterion in a democratic system is not whether a given prosecution is common, but whether in this particular case fairly evaluated, the facts could be viewed by a reasonable jury as establishing the prospective defendant's guilt beyond a reasonable doubt. For one thing, adopting the "common prosecution" criterion leaves open many of the problems it's supposed to solve. How "common" is common enough to be confident the case isn't merely political? Will that get decided by the line prosecutors — careerists (or, less generously, bureaucrats) or their more accountable (but also more political) superiors?

More importantly, to focus on commonality system-wide is to risk losing focus on why we have a criminal justice system to begin with, namely, to hold wrongdoers to account and give justice to their victims. Contrary to some of my liberal and libertarian friends, I do not see "the system" as being perpetually on trial. Its balance and fair-mindedness are, to be sure, "on trial" before the legislature, which properly has the power to address systemic problems, such as they may appear to be. But they are not on trial in deciding whether Mr. Smith or Mr. Jones from the SPLC fleeced any given contributor by giving him a song-and-dance rendition of what his money would be used for.

The flaw in Prof. Volokh's second criterion (whether the SPLC's fundraising actually was fraudulent) is that this is simply a question of fact for the jury to decide. It goes to the strength of the case, not its legitimacy….

The SPLC indictment does raise non-trivial questions about weaponization of law and the boundaries of prosecutorial discretion, but in my view, having been a federal prosecutor under administrations of both parties, falls inside those boundaries.

As I've mentioned before, Bill and his coauthor Paul Mirengoff are my go-to people for hardheaded, pragmatic, but principled conservative views. They tend to be somewhat more conservative than I am, but I always find their work interesting (and well-written).

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Chernobyl Wasn't a Nuclear Disaster—It Was a Communist Disaster

2026-04-26T09:29:28.269-04:00

By Ronald Bailey - April 26, 2026 at 06:30AM

The world's worst nuclear disaster began 40 years ago at 1:23 a.m. on April 26, 1986, when Unit 4 at the Chernobyl nuclear power generation facility experienced an explosion and meltdown. Ironically, the explosion was caused by a botched safety test.

The point of the test had been to see what would happen if the power plant lost its main electrical supply: Could spinning turbines generate enough power to run the coolant pumps until emergency backup diesel generators could kick in? The experiment had failed three times previously, but never as catastrophically as it did that night.

Before the meltdown, Soviet officials had bragged regularly about the safety of their nuclear power plants and disparaged those in the West. In 1983, state-sponsored news agency Novosti reported that Soviet scientists had estimated the probability of a nuclear accident involving a radioactive discharge at one in 1 million. In 1984, Minister of Power and Electrification Petr Neporozhny called the country's nuclear plants "totally safe." Just two months before the disaster, the English-language propaganda magazine Soviet Life claimed: "Even if the incredible should happen, the automatic control and safety systems would shut down the reactor in a matter of seconds. The plant has emergency core cooling systems and many other technological safety designs and systems."

Soviet officials initially tried to hide the disaster, but it was detected in the West two days later when an employee's contaminated shoes triggered radiation alarms at Sweden's Forsmark Nuclear Power Plant. The Swedes at first feared that their own plant was leaking radiation, but they soon traced the issue back to Chernobyl by analyzing wind patterns and specific radioactive isotopes.

Chernobyl's radioactive plume spread over Belorussia, Ukraine, western Russia, and much of Europe. Two workers died from the initial explosion, and the 28 firefighters and emergency workers who doused most of the reactor's flames in the following three and a half hours died over the next three months from acute radiation poisoning. Their bodies were so radioactive that they were buried in lead coffins encased in concrete.

Anatomy of a Meltdown

The Chernobyl explosion is "the only accident in the history of commercial nuclear power to cause fatalities from radiation," as the Nuclear Energy Institute points out. "It was the product of a severely flawed Soviet-era reactor design, combined with human error."

Chernobyl's RBMK-1000 reactors—the initials stand for reaktor bolshoy moshchnosty kanalny, which means high-power channel reactor—used a combination of graphite and water as moderators to slow down fast neutrons. Slowing neutrons enables them to collide with fissile materials (uranium) to sustain a nuclear chain reaction, and that reaction produces heat that boils the water that turns the turbines that generate electricity. Chernobyl's reactors had a critical flaw known as a "positive void coefficient," in which coolant water's moderating effect on reactivity decreased when it was turned into steam, leading to uncontrollable power spikes.

Before the test was to begin, the reactor was supposed to be stabilized at the raw heat output of 700–1,000 megawatts thermal. But shortly after midnight, the power fell to just 30 megawatts thermal. Operator efforts to boost power back to the level originally planned for the test were stymied by increases in neutron-absorbing xenon and steam condensing into coolant water. To compensate, the operators withdrew neutron-absorbing boron carbide control rods to increase reactivity, raising reactor output to 200 megawatts thermal.

At 1:23 a.m., operators cut the regular steam supply. The coolant water supplied by pumps powered by the slowing turbines began to boil into steam. This led to a rapid feedback loop where rising reactivity produced more steam and burned off xenon, causing ever greater reactivity. The result was an overwhelming power surge, estimated to be 100 times the nominal power output.

Thirty-six seconds after the test began, someone tried to shut down the reactor by lowering the boron control rods. The operators apparently didn't realize that the control rods were tipped with graphite, which enhanced rather than reduced reactivity as they began their descent into the reactor.

Plant operators reported two explosions at 1:24 a.m. The first was caused by the extreme buildup in steam pressure, the second by hydrogen accumulation from zirconium-steam interactions. Together, they blew off the reactor's 2,000-ton cover plates and completely destroyed the reactor core. Since the reactor was not enclosed within a containment structure, these explosions spewed roughly 50 tons of radioactive substances into the atmosphere and across the landscape.

As Chernobyl disaster lead investigator Valery Legasov later observed, "The only way of stopping the nuclear reaction was for the reactor to rearrange itself: which it did."

Later that day, a memo from the Ministry of Energy to the Communist Party Central Committee reported that an explosion had occurred and that the resulting fire had been extinguished by 5 a.m., which was not true. The Ministry of Health decided that "the adoption of special measures, including evacuating the population from the city, is unnecessary."

As a consequence, Soviet officials delayed 36 hours before ordering the evacuation of the 45,000 residents of the nearby town of Pripyat. By May 14, about 116,000 people had been evacuated from a 19-mile radius of the reactor. Ultimately, around 220,000 people were resettled into less contaminated areas. The largely uninhabited Chernobyl exclusion zone today encompasses an area of around 1,600 square miles—larger than the state of Rhode Island.

Soviet military helicopters dropped 5,000 tons of boron, lead, sand, clay, and polyvinyl acetate glue onto the still-smoking reactor remains to seal it off. After 1,800 sorties over nine days, the reactor's graphite core fire was contained by May 4.

By November, the reactor remains were encased in a 300,000-ton structure of concrete and steel dubbed the "sarcophagus." This was meant as a temporary measure, but it wound up being more temporary than intended: Under the assault of rain and cold, the sarcophagus began rapidly deteriorating. To remedy this problem, international donors supplied over $2 billion to build the New Safe Confinement structure. Completed in 2019, it is the largest moveable land-based structure ever built and was designed to last 100 years. But in February 2025, a Russian drone punctured the structure's roof. Consequently, an International Atomic Energy Agency (IAEA) inspection in November 2025 found that the structure has "lost its primary safety functions, including the confinement capability."

How Central Planning Produced Defective Reactors

Behind the bad design and human error at Chernobyl, a deeper pair of problems was lurking: central planning and totalitarian secrecy.

The Soviet system put economic decisions in the hands of planners far removed from both the data people need to make decisions and the immediate consequences of their actions. Gosplan, the economic planning bureau, initially determined that nuclear power was unnecessary because the country had more than enough fossil fuels to produce electricity. When it became clear in the late 1960s that they had miscalculated, the energy planners rushed the development of nuclear power. In the process, they neglected to include the containment buildings used in the West, which are designed to prevent the escape of radioactive materials even during severe accidents.

Containment, you see, would have increased the costs of the plants by 25 percent to 30 percent. The "leaders of the Soviet energy sector faced a choice between disrupting the Party's five-year development plan if they built expensive nuclear facilities or abandoning the project altogether," a group of Russian researchers noted in 2025 (originally in Russian). "Priority was given to the solution that was safe for the officials, but which subsequently created a threat to people's lives." After the disaster, an IAEA engineer told the Los Angeles Times that if the Chernobyl reactor had been housed within a standard Western-style containment structure, "it probably would have made a huge difference." Even if an explosion breached a containment structure, most of the radioactive particles would nevertheless have been trapped.

The Soviet nuclear power industry was plagued by shoddy workmanship, bureaucratic infighting, and a shortage of trained personnel. The Canadian historian David Marples summed up some of the problems in his 1986 book Chernobyl and Nuclear Power in the USSR: "lack of quality control, an unskilled and dissatisfied workforce, supply problems, defective equipment, lagging construction, plans arriving late, design changes and cost overruns." More broadly, the pervasive fear of authority that the Soviet system fostered created a compliance-driven and blame-shifting operational culture.

In order to address the perennial problem of bureaucratic ass covering, the KGB—the secret police—embedded a network of spies at places like Chernobyl. These agents in the workforce observed the ongoing problems many times over the years. A 1973 confidential memo cited "serious inadequacies" with the concrete and steel reinforcement used in constructing the Chernobyl reactors. (It also noted that theft of materials from the site was rife.) In 1978, six months before the second reactor began operation, a secret report described "gross violations of technical construction standards, fire safety, and construction and assembly safety technique, which will lead to unfortunate situations." A 1982 report noted an area contaminated by accidental release of radioactive isotopes from Chernobyl's Unit 1 reactor was being handled by "burying them with earth and leaves." It added that the KGB was "performing operations to prevent the spread of panic, provocative rumors and other negative incidents in connection with this occurrence."

A May 1983 memo from a KGB lieutenant colonel concluded that Chernobyl's atomic energy stations "at the present time are the most dangerous with regards to their future use, which could have alarming consequences." (This text was underlined in the original document.) In 1984, a series of KGB reports detailed the dangerous technical flaws in Chernobyl's reactors, along with ongoing operational sloppiness by plant workers and their managers.

None of this secret reconnaissance prevented the disaster.

Even after the meltdown, the KGB kept trying to stop the flow of information. A July 1986 memo stamped as secret, among other things, information about the "true causes of the accident," the "quantities and content of the mixture [of radioactive particles] ejected at the time of the accident," and "mass poisoning and epidemic sickness rates connected to the accident."

This allergic reaction to the idea of transparency prevented people from getting important information on time. But it was standard operating procedure. The Soviets had already suffered several previous large radiation release accidents, including a 1957 nuclear waste explosion at a weapons production facility at Chelyabinsk that exposed 270,000 people to high levels of radiation. But these were kept secret. Indeed, Chernobyl's deputy chief engineer later testified that he had not been told of any of the previous accidents at similar reactors. Minister of Power and Electrification Anatoly Mayorets epitomized this approach when he decreed in 1985 that information regarding any adverse effects of the energy industry on employees, people, and the environment was not suitable for publication or broadcast.

"It has been said that experience is learning from mistakes; and bitter experience is learning from one's own mistakes," argued the Harvard nuclear physicists Alexander Shlyakhter and Richard Wilson in their 1992 account of the Chernobyl tragedy. "Secrecy then, is inimical to safety, for with secrecy about accidents, one can only learn from one's own mistakes and not from the mistakes of others….Excessive secrecy is characteristic of all totalitarian regimes and is one of their principal weaknesses."

Unsurprisingly, Soviet leader Mikhail Gorbachev waited weeks to deliver a televised speech acknowledging and addressing the Chernobyl crisis.

Photo: An abandoned school in the exclusion zone, 2026; Louis Lemaire-Sicre/Le Pictorium/Alamy

The Health Effects

Chernobyl was a disaster, but it wasn't as disastrous as some antinuclear activists have claimed. To take one infamous example, a 2009 report initially organized and funded by Greenpeace claimed that Chernobyl led to about 985,000 deaths from April 1986 through the end of 2004. The report ominously added, "The number of Chernobyl victims will continue to grow in the next several generations."

More comprehensive reports have discredited Greenpeace's claims, finding that mortality rates associated with the Chernobyl disaster are, fortunately, lower by orders of magnitude. An analysis by researchers at the International Agency for Research on Cancer calculated that the radioactive fallout from Chernobyl would cause 16,000 cases of thyroid cancer and 25,000 cases of other cancers, resulting eventually in 16,000 deaths throughout Europe by 2065. A 2008 report by the United Nations Scientific Committee on the Effects of Atomic Radiation concluded that while "those exposed to radioiodine as children or adolescents and the emergency and recovery operation workers who received high doses are at increased risk of radiation-induced effects, the vast majority of the population need not live in fear of serious health consequences from the Chernobyl accident."

Similarly, the Israeli radiation researcher Yehoshua Socol concluded in 2015 that there "is little scientific evidence for carcinogenic, mutagenic or other detrimental health effects caused by the radiation in the Chernobyl-affected area, besides the acute effects and small number of thyroid cancers." A 2019 study of solid tumor trends in Ukraine 30 years after Chernobyl found "rates of solid organ malignancy in the five regions most affected by fallout did not substantially differ from national patterns."

One big initial concern was that the uptake of radioactive iodine released by the Chernobyl explosion would increase the rate of thyroid cancers. Iodine is essential to the creation of the thyroid hormones that regulate a body's energy use, and growing children and adolescents drinking fresh milk more readily absorb iodine. When radioactive iodine fell on pastures grazed by local milk cows, it got into Soviet food supplies. Given that radioactive iodine has a half-life of eight days, warning people to refrain from drinking fresh milk for a while would have protected children in the region from effects of Chernobyl contamination.

But Soviet secrecy again won out. According to Shlyakhter and Wilson, "appeals by private individuals in south-eastern Belorussia to children not to drink milk in the first weeks of May 1986 were stopped on the grounds that the appeals might cause panic." A 2024 analysis by two Polish researchers calculated that about a quarter of the 19,000 cases of thyroid cancer detected in Russians, Ukrainians, and Belarusians who were under age 18 at the time of the Chernobyl disaster can be traced to ingesting radioactive iodine spewed by the reactor.

Shlyakhter and Wilson worried the world would learn the wrong lessons from Chernobyl. They pointed out that the explosion of a fertilizer plant in Bhopal, India, in 1984 had a far greater effect on public health than the nuclear disaster did: It killed 22,000 people directly and exposed another 570,000 to high levels of toxic gas. Yet no one demanded an end to the fertilizer industry. "In our view, therefore, it would be erroneous and in the long term possibly even disastrous to conclude that the world should not have nuclear power," they argued. "This would badly reduce the world's options in coping with human poverty and other needs, and with reducing the global environmental changes that may arise from the excessive burning of fossil fuels."

They were right. Chernobyl supercharged the anti–nuclear power movement, especially in Europe and the United States. As a consequence, nuclear power plant construction stalled around the world, resulting in more deaths from air pollution than would otherwise have occurred—plus increased greenhouse gas emissions that contribute to rising average global temperatures.

Nuclear power wasn't the problem in Chernobyl. The problem was communism.

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Swarms of Termite Moviemakers Have Made Cinema More Personal

2026-04-26T08:29:33.858-04:00

By Jesse Walker - April 26, 2026 at 06:00AM

The walls that once separated TV shows, feature films, viral videos, and holiday snapshots are collapsing. All those forms are (or can be) movies, in the original sense of the word: They're moving pictures. And now they are more and more likely to be moving on the same screens.

This convergence has been in progress for a while. But it crystallized with the announcement last year that YouTube, long associated with phones and laptops, had surpassed Disney to become the company with the most U.S. viewers on television sets. The biggest player in American TV today is a hub where you can rent Hollywood hits, watch pirated sitcom reruns for free, or enjoy thousands of amateur clips in the vein of "Charlie Bit My Finger"—not to mention all the programming posted by YouTube-native celebrities, some of whom attract larger audiences than anyone on CNN or Fox News.

With all those moving pictures packed into the same place, you might find yourself thinking about them as a whole, not as separate art forms with some superficial similarities. Yes, there are differences in their production structure—particularly with TV, a medium with roots not just in cinema but in radio and vaudeville. But they are all part of the same continuum, each influencing the others. And when you examine them as a continuum, the last two decades look different from some of the standard stories our cultural pundits like to tell.

In the 2010s, for example, critics often complained that mature midbudget movies were dying out, their habitat now dominated by superhero blockbusters. But in retrospect, those dramas didn't dwindle so much as they migrated to other places: Cable TV and then streaming sites made room for artistically serious visual storytelling. In the process, they liberated storytellers from both the more rigid length of a feature film and the more rigid frequency of a network show.

More recently, some critics have bemoaned the end of the so-called Peak TV era. After a long increase, the number of shows started declining, and so did the percentage of those programs that reward close attention rather than serving as dumbed-down background wallpaper (though both numbers are surely far higher now than they were 20 years ago). But the same period saw an explosion of low-budget videos on user-driven platforms, many of them entertaining and some of them bona fide art. The sequel to Peak TV is Peak Content: an age when most of the public routinely carries a device that can shoot a movie and instantly share it with the world, and when new tools have made F/X and editing far easier as well.

It is fashionable to bemoan short-form video today, to damn YouTube and TikTok as trivial, addictive, stupid, and perhaps some sort of Fu Manchu mind-control conspiracy. If you point out that people said the same things about television, one common retort is that those old-school critics were basically right and that things are now getting even worse.

I'd like to suggest something different: that the old-school critics were (sometimes) right, but things are now getting better. Screens today are less passive and more participatory. People can produce their own programming, and can interact more easily with the artists whose creations they consume. While the platforms where these productions appear are more centralized than I'd prefer, the media environment is not nearly as centralized as TV was in the network or even the cable age. And screens don't even keep you indoors anymore, since they're highly portable. If kids aren't going outside as much, that has more to do with overbearing laws and helicopter parenting than with phones.

***

The foes of short-form video trot out Neil Postman's Amusing Ourselves to Death and similar TV-era texts the way a street-corner evangelist pulls out his Bible. But the three-network era produced another group of social critics whose observations were more interesting and whose work may have more lessons for today. In journals like Radical Software and organizations like the Raindance Foundation, a sometimes brilliant, sometimes cracked, and frequently prescient collection of artists and theorists condemned TV for being too centralized.

When they said that, they didn't just mean that power was concentrated in a broadcast cartel and in the federal agency that served as that cartel's guardian. They meant that viewers had virtually no role in shaping what appeared on screen. When Nicholas Johnson, a liberal commissioner at the Federal Communications Commission, published a book in 1970 called How To Talk Back to Your Television Set, one of the Raindance radicals roasted him for thinking the best path to better TV was for viewers to send letters to federal bureaucrats who in turn would pressure programmers to improve their output.

"Striving towards better content on broadcast TV is like building a healthy dinosaur," Michael Shamberg wrote in Radical Software. "Better to decentralize the medium and get people into using it as their tool. There just isn't enough time to fool around with changing the broadcast mode of television when decentralized, portable [videotape] systems can and are leapfrogging the old system." Shamberg topped off his critique of Johnson by declaring that the money spent launching Sesame Street could have instead put thousands of video recording systems into children's own hands.

Half a century later, countless children (and adults!) have immensely powerful systems for recording and sharing videos. To borrow a phrase from another member of the Radical Software crowd—Gene Youngblood, in his 1970 book Expanded Cinema—we've entered "the end of the era of cinema as we've known it, the beginning of an era of image-exchange between man and man."

Granted, the images being exchanged are often banal and sometimes clichéd and conformist. But you could say the same thing about the words people scrawl on pieces of paper, and that doesn't change the fact that mass access to the tools of writing meant there was more room for masterpieces to grow. In any case, not every video needs to be a masterpiece—they certainly weren't in the old days of TV or of pre-TV moviegoing.

Indeed, not every artistically successful work needs to be a masterpiece. In 1962, the painter and critic Manny Farber pushed back against the "idea of art as an expensive hunk of well-regulated area," noting how vibrant expression can be "ruined" when someone feels the need "to spread these small pleasures into great contained works."

The alternative, Farber argued, was the "termite art" of craftsmen who didn't set out to make something great-with-a-capital-G but just chewed away skillfully at what was in front of them. Today, TikTok overflows with attractive termite art: a pensive skateboard video with a nostalgic soft-rock soundtrack, a comedy sketch where one actor plays every part, a communally constructed sea shanty.

And sometimes we see something with more heft. Consider the eerie YouTube videos known collectively as Local 58, most of them presented as broadcasts from a fictional TV station in West Virginia. They were made by Kris Straub, the cartoonist and writer best known for the viral horror tale "Candle Cove," and they have been coming out at irregular intervals for just over a decade now. The most striking is "Contingency" (2016), which invents a comically unsettling LBJ-era government film to be transmitted in the event that the U.S. surrenders to a foreign enemy. It features grainy footage of America, a distorted "Star-Spangled Banner," and instructions that gradually reveal themselves as a call for the entire country to commit patriotic suicide.

The Local 58 shorts share a mythology, but the storytelling is done more by inference than by narrative, as though we're poking through a box of documents and slowly putting an account together. Their aesthetic—glitchy, low-fi, with close attention to the textures of different eras and different technologies—offers an evocative mixture of nostalgia and dread. They owe an obvious debt to found-footage horror films, but they are much more experimental in both form and content.

The Blair Witch Project, the movie that brought found-footage horror into the mainstream in 1999, marketed itself with fragments of text and video planted in different intersections of the internet, each one extending the story or setting. Local 58 takes that a step further, as though Blair Witch consisted entirely of those ancillary materials with no theatrical film at its core. You can watch its constituent parts in any order, can choose whether to explore related materials around the web. It's an approach to video storytelling that did not really begin to emerge until this century.

***

A quarter of the way into that century, yet another new force is now upending the video environment. There are legitimate fears about the ways Hollywood studios might deploy artificial intelligence stupidly, using AI to replace the most irreplaceable human creators and to crank out sloppily executed formula stories. Yet from the perspective of artists outside the studios—people hoping to keep creativity in the driver's seat but looking for ways to automate tasks that once were prohibitively expensive—AI could make it easier to realize their visions.

Paul Schrader, the director of Mishima and screenwriter of Taxi Driver, made the bullish case for AI filmmaking in a February Facebook post, predicting that soon "a savvy student will be able to create a 90min narrative in 2–3 weeks. On zero budget. Without leaving home. Without anyone's permission. The originality of the story would determine the value of the product."

If you're skeptical, I understand. Most of what the average viewer knows about these tools' capabilities comes from demo reels circulated by people whose talents are in tech development, not art or entertainment. And as this essay goes to press, that impressive 90-minute narrative has yet to surface. But if nothing else, we need to distinguish the dumb ways AI can be used as an institutional tool from the smart ways it will be used as an individual tool.

I know that AI can be wielded to make genuinely interesting art, because I've seen at least one genuinely interesting piece of art made with AI. Mark Wachholz's The Cinema That Never Was (2025) is a compendium of moments from old movies that never existed. Every shot is beautifully composed, and every shot seems to suggest a haunting tale from a parallel timeline; at times it feels less like a compilation of clips from forgotten films than a compilation of clips from half-remembered dreams. Each of those fragments lasts just a few seconds, which not only intensifies the video's hypnagogic flavor but ensures that each scene is cut off before continuity starts to break—a sign we're dealing with an artist who's aware of AI's current limitations and is wisely working within them.

Well, mostly within them. The video's one substantial flaw is its faux-poetic narration, which feels overwrought and repetitive: a reminder that one thing AI still isn't good at is composing compelling prose.

Each of the developments sketched above was shaped by institutional forces, not just changes in technology. The rise of streaming video may have guaranteed some sort of boom in serialized storytelling, for example, but the particular boom we got in the 2010s owed a lot to the Federal Reserve's zero-interest-rate policy, which stimulated risky investments and blew a bubble. Similarly, what AI does to movies will depend a lot on the policies that shape AI, from energy regulations to intellectual property laws. The emerging media environment can be more or less centralized, more or less regulated, more or less open. None of this is inevitable.

But the larger shift will be very hard to undo, short of a police state shutting down the internet entirely. We are surrounded like never before both by in-depth, complex dramas and by termite art that you can watch while waiting for the bus. And we are able like never before to add our own moving images to the flow.

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Open Thread

2026-04-26T05:29:25.021-04:00

By Eugene Volokh - April 26, 2026 at 03:00AM

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A $33 Burger? As New York City Eyes $30 Minimum Wage, Restaurants Brace for Impact

2026-04-25T09:29:37.339-04:00

By C. Jarrett Dieterle - April 25, 2026 at 07:00AM

Zohran Mamdani rode to victory as New York City's mayor in part due to his audacious campaign promises around freezing the rent and offering free bus service to Big Apple residents. But perhaps no campaign promise of Mamdani's was as bold as his "$30 by '30" plan, which called for increasing the city's minimum wage to $30 by 2030.

Now that Mamdani is in office, New York City Council members have introduced a bill to turn $30 by '30 from a catchy campaign slogan into an economic reality.

But while the top-line number of $30 has received most of the attention, the fine print in the legislation may be even more alarming: It would eliminate what's known as the tipped-wage credit for restaurants in NYC, meaning that mom-and-pop restaurants—some of the city's smallest businesses—would find themselves on the hook for paying workers $30 an hour. Restauranteurs around the city are sounding the alarm, warning that the bill could pose a dire threat to NYC's famed dining scene.

Restaurants operate under a unique wage structure in most locales across America. Rather than being subject to the traditional minimum wage, tipped employees at these establishments receive part of their compensation in the form of gratuities. A legal structure called the tipped-wage credit allows such restaurant workers to be paid below the minimum wage pre-tips; if a server's tips still leave them below the full minimum wage, then restaurant owners are responsible for making up the difference.

The tip credit system has been in place for 60 years, allowing restaurant workers to make upwards of $30 or $40 an hour—or more—once tips are factored in, while also giving owners a way to control labor costs in an industry notorious for its tight margins.

Progressive cities like Washington, D.C. and Chicago have experimented with eliminating the tip credit system in recent years, and the results have been nothing short of disastrous. After D.C. scrapped its tip credit and required servers to be paid a traditional minimum wage, restaurant worker earnings reportedly fell in the District as restaurants cut jobs and reduced hours for staff.

Restaurants also responded by raising dining prices in the form of new "service fees," and D.C.'s progressive city council was ultimately forced to partially reverse the tip credit's phaseout. The experience in Chicago was similar.

But whereas D.C. and Chicago sought to scrap the tip credit system and replace it with a minimum wage around $16 to $17 per hour, NYC's plan would nearly double this wage rate to $30. A group of about 40 independent restaurants in the Hell's Kitchen neighborhood—known for its world-leading dining scene—are now laying out in detail what this increased minimum would mean for diners who frequent their restaurants.

By 2031, they say, a $21 hamburger would become $33; a $14 glass of wine would increase to $22; and a $24 salmon salad would spike to $37. Worse yet, these prices don't even factor in taxes, and they are only based on a $19.33 per hour minimum wage. (The proposed legislation would gradually raise servers' hourly wage over time, until it eventually reaches $30 per hour after 2031).

The wage hike could force restaurants to cut back on employment, too. "Places will have to cut their staff in half and use QR codes on the table," said Sean Hayden, an owner of numerous Hell's Kitchen restaurants, in an interview with W42ST. "It'll be like airport service."

These restaurant owners are hardly profit-grabbing monopolists. One establishment reported that its tipped staff members currently earn over $41 an hour on average when combining an $11.35 hourly wage and tips.

Their warnings are not merely apocalyptic doomcasting, either. Los Angeles voted in May of last year to raise the minimum wage for hotel workers to $30 an hour by 2028. The American Hotel and Lodging Association has since reported that 88 percent of hotels have experienced layoffs or reduced hours and just under 60 percent have reduced overtime availability as well as worker benefits and amenities. While various factors play into these reductions, over 90 percent of hotel owners cite the rising labor costs as a key component.

An Oxford Economics analysis forecasted that L.A.'s hotel wage mandate would lead to a reduction of over 14,000 jobs in the city. L.A.'s gradual minimum wage hikes for hotels over the years—starting in 2015—have already led to notable reductions in employment. The City of Angels can ill afford such a hit to its hospitality industry ahead of hosting the 2026 World Cup and 2028 Olympics.

For NYC's part, Mamdani has yet to officially endorse the new legislation, although his campaign track record strongly points toward him ultimately backing it. If he does, $33 hamburgers might become the norm sooner than later.

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Hobohemian Rhapsody

2026-04-25T07:29:10.322-04:00

By Brian Doherty - April 25, 2026 at 06:00AM

Front Street: Resistance and Rebirth in the Tent Cities of Techlandia, by Brian Barth, Astra House, 287 pages, $29

One lesson of Front Street, Brian Barth's book of immersive reporting from the sprawling homeless encampments of Silicon Valley, is that there is no full-bore solution to the problems presented by the homeless. The unhoused, and the larger community they aggravate, have only least-worst options.

Barth's well-reported stories stem from three sprawling multiblock or multiacre tent cities, chronicling the types of people who compose them and the communities—troubled communities, but in some ways surprisingly effective ones—that they form. All three are eventually bulldozed away. But such destructive reactions don't make the homeless disappear, even if they solve short-term problems for neighbors by making them fade from sight at least temporarily (and at least on that particular site, though they often regroup a mile away).

Barth is on the side of the subjects (and eventual friends and frenemies) he meets in these makeshift minicities. Yet he's an honest observer of what's awful about them: the rampant theft, the arson, the screaming, the hypodermic needles, the dead rats. These hobohemias are rife with things the modal taxpaying denizens of wealthy and expensive enclaves such as Cupertino and San Jose don't want to have around.

Nonetheless, Barth concludes that it's better to let such sprawling encampments exist and evolve, rather than destroying them and attempting to relocate the inhabitants at great expense and trouble (not to mention destruction of property and disruption of lives). Better both for the homeless and for the culture that would rather they didn't exist.

***

The book's three tent cities are Wood Street Commons, in a decaying industrial sector of Oakland; the Crash Zone, near the airport in San Jose; and Wolfe Camp, abutting Apple headquarters in Cupertino. Some people who end up in these places want a normal life with a normal job and a normal apartment. But the characters Barth brings most vividly to life want nothing to do with being shoved into cubicle-sized tiny homes, repurposed crummy motels, trailer-filled parking lots, or other proposed solutions to homelessness.

In the words of Dave, one Wolfe Camp resident: "Affordable housing sucks because not only are you squished in this little box, you have to do all these things on time and in a certain order. I don't see that as attractive. For some of us, coming out of homelessness is worse than being in it."

The more articulate of Barth's subjects prefer the barely functional anarchy of their camps, complete with unsettling threats of violence and lack of such amenities as running water or garbage collection, but also a surprising amount of camaraderie, community, mutual aid, impromptu "social services" from the more high-functioning homeless to their lower-functioning comrades, and a sense of family from people whose problems often began with their utter alienation from the families they were born into.

Who wants to live indoors if they can't cook their own food, bring in their own furniture, or have any guests? One of Barth's central characters, a former property manager in his 50s who can be charismatic and compelling but has a self-destructive impulsive streak, reports that he has had friends who just rushed ahead to drug-induced suicide when their lives were reduced to that.

A single woman tells Barth she feels safer in a community of people who know and care about her than in a barbed-wire fence with guards. Such camps are decidedly no paradise, Barth reports, but for the type of people who end up in them, such camps can provide a somewhat functional "sensible, modest, egalitarian lifestyle…based on resource sharing." (Because of both charity and dumpster diving, these dense encampments do not generally lack food, clothes, or other basics of survival.)

In Wolfe Camp, none of the people Barth interviewed had goals that involved "working a job they hate, or any scenario in which they spend their waking hours engaged in unfulfilling tasks." But some do work hard—like Kent, who used to enjoy biking by Apple HQ shouting "Fuck you!" at the company, and who pulls in around $3,000 a month dumpster diving in the office parks of billionaire tech companies.

***

California has about a third of the nation's homeless. This makes waiting lists for official city-provided low-income shelter in the Golden State absurdly long, and the alternate shelter on offer to the denizens of the bulldozed encampments never covers all the people being displaced.

Barth wants us to see these tent cities as not a problem but a solution to the intractable fact that our society will produce people not prepared or able to thrive in it in a standardized job-and-house style. (He also, especially among "homeless" people who live in parked mobile homes or vans, finds many with good jobs and reasonably high incomes.) His characters can be troubled and troublesome but nonetheless are surviving, and by their own standards sometimes thriving, in the delicate combination of liberty and community that their encampments provide—until officials demand their homes be bulldozed and their possessions destroyed or taken (and sometimes sold by contractors hired to evict them).

Barth posits that it would be both cheaper and less damaging to homeless people's lives if the city would just try to ameliorate the negative externalities of such encampments by providing trash pickup service and some form of water and power supply. Caltrans alone spent $36 million to sweep 1,262 camps in just 2020, and in at least one Los Angeles example it cost $2 million to sweep just one 200-person camp.

Barth is too quick to dismiss "neighborhood warriors wringing their hands about the tents down the street and the people eating, sleeping, fornicating, and getting high inside them." Having to constantly see these encampments—especially combined with setting fires, a part he leaves out of that sentence but does discuss elsewhere—justifies neighborly alarm, as does having huge parts of what are meant to be public parks along the Guadalupe River in San Jose inhabited by tent dwellers who unnerve joggers or parents pushing strollers.

But his storytelling does show that, whatever mental health problems his homeless characters might have, it's not crazy in a colloquial sense to value "friendship more than the social services on offer" in homeless-industrial housing. Even as Barth defends their value compared to the destructive, expensive alternatives that—this part is important—don't make the homeless disappear either, he admits these encampments are "a messy experiment in interdependence" populated by "highly traumatized and dispossessed individuals" such that "things get messy…a lot of trash…screaming…intoxication…dysfunction."

Still, Barth is convincing that constantly being uprooted and told they cannot be wherever they are on public (and sometimes private) property adds to these people's edgy unreliability. He also quotes a source who tours through homeless encampments as saying, somewhat convincingly, that the scrappy resourcefulness of a homeless encampment might make it the safest place to flow to if civilization starts seriously collapsing.

Barth's deeply observed and thoughtful reporting will make most readers whipsaw between sympathy and repulsion toward his characters, even as it hits on many of the ways California makes building new housing absurdly expensive. (One homeless aid program, Homefulness, faced $30,000 in expenses over the city's demands that it include parking spaces with its new construction.) He notes that one-on-one cash giving beats in practical effect all government homeless aid.

Dave from Wolfe Camp is a fervent voice for his now-annihilated encampment as a solution, not a problem: "A lot of us want to be here. We love the compassion of it. We love the fact that we belong…which is a really magical thing. I would never be able to heal anywhere else."

Meanwhile, the homeless' best legal weapon in having their interests hold weight—Martin v. City of Boise, a 2018 9th Circuit Appeals Court decision that slowed homeless camp destruction—has been abandoned by the Supreme Court in a June 2024 decision in Grants Pass v. Johnson.

That case challenged a law in that Oregon city that essentially criminalized sleeping in parks with any bedding or tents. The 6–3 decision by Justice Neil Gorsuch rejected the 9th Circuit's assertion in Martin that it was unconstitutionally cruel under the Eighth Amendment to make it illegal to sleep in public if the person did not have "access to alternative shelter."

Gorsuch specifically said this decision reversed the 9th Circuit's "Martin experiment," and argued that "Under Martin, cities must allow public camping by those who are 'involuntarily' homeless. But how are city officials and law enforcement officers to know what it means to be 'involuntarily' homeless, or whether any particular person meets that standard?"

After listing other relevant questions toward judging someone truly "involuntarily" homeless (the characters Barth reports on show that is a tough question in many cases), Gorsuch concludes that "if there are answers to those questions, they cannot be found in the Cruel and Unusual Punishments Clause."

Allowing such camps to grow and thrive does create problems for neighbors not living there. They may be ameliorable, if not solvable, by changing cities' approach to them, or if the camps themselves get better at self-regulation. Completely erasing all the strife caused by people who choose and act as Barth's characters do is not possible. Living in a society, especially with people who reject some of its core tenets, always requires a complicated set of costs and benefits and a balancing of interests.

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Open Thread

2026-04-25T06:29:28.158-04:00

By Eugene Volokh - April 25, 2026 at 03:00AM

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Review: Queer Eye Helped Promote LGBTQ Acceptance Without Yelling at People

2026-04-24T09:29:26.659-04:00

By Jeff Luse - April 24, 2026 at 06:00AM

In the 10th season of Queer Eye, the Fab Five come to Washington, D.C., where they provide their "make-better" personal style revamps to two sisters, a charter school teacher, a firefighting single mom, a boat repairman, and a stepfather with a large blended family. The season includes many of the gimmicks Queer Eye viewers have come to expect (or loathe).

Since its launch in 2003 on Bravo and reboot by Netflix in 2018, the show has undermined cultural stereotypes about the LGBTQ community. It didn't do this by yelling at people, nor did it demand that the state punish bigots. It just highlighted helpful human interactions and met people where they were at. As this popular show did its thing, cultural attitudes changed. In June 2003, according to Gallup, only 39 percent of Americans accepted same-sex marriages; today, it's 68 percent.

Queer Eye, which is bowing out after this season, furthered this cultural change with a unifying message: No matter your race, political party, or sexual orientation, we can have mutually enriching interactions.

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The Difficulty of the Search Question: More Thoughts on Chatrie

2026-04-24T06:29:23.646-04:00

By Orin S. Kerr - April 24, 2026 at 05:53AM

I have been posting on Chatrie v. United States, the Supreme Court's geofencing case to be argued on Monday. In this post, I wanted to talk a bit on why the search question is particularly hard.

The Supreme Court has long struggled to explain what makes government action a "search" of an individuals' "persons, houses, papers, and effects." The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood, which were about what kinds of warrants were permitted to conduct a physical search. Many of those cases arose in the setting of trespass actions, in which the validity of the warrant was an affirmative defense to a trespass claim for breaking into a house. The framing-era debate over warrants was not just about trespass actions, to be clear. In the Writs of Assistance case, for example, James Otis's arguments against general warrants were made in a representation of Boston merchants who opposed general warrants and (unsuccessfully) urged the court to say they could not be issued. But at the time of the Fourth Amendment's enactment, the focus was on general warrants, and in particular on warrants to conduct physical searches.

A central challenge of modern Fourth Amendment "search" law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion. There is broad agreement that the Fourth Amendment really needs to extend beyond actual physical intrusion: If it didn't, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records. The hard question is, what's the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?

The Court has not done the best job at articulating this, I think. It did a few things that make it extra hard. Two under-appreciated things stand out.

First, the Court has ignored a lot of the Fourth Amendment's text, which made the issue a lot harder to understand. The Fourth Amendment prohibits unreasonable "searches" of "persons, houses, papers, and effects." But the Court's precedents have often just described the issue as being what is a "search," ignoring the required thing to be searched in that language: "persons, houses, papers, and effects." The word "search" has long had a range of different meanings, going back to 18th Century, and reducing the question to that one word adds a lot of confusion: It strips the constitutional question of its context and its history of the cases like Wilkes, Entick, and the Writs of Assistance case.

Of course, the full text is not always ignored. As the Court's curtilage caselaw has frequently noted, the Fourth Amendment "indicates with some precision the places and things encompassed by its protections: persons, houses, papers, and effects." Florida v. Jardines, 569 U.S. 1 (2013). But I think it has been under-appreciated that the proper question is not what is a "search" in some isolated or abstract sense, but rather what is a "search" of "persons, houses, papers, and effects" that reflects the understanding of those terms in the major disputes that inspired the enactment of the Fourth Amendment.

Second, many modern Justices have assumed the correctness of a simple narrative about the Fourth Amendment that Justice Brennan introduced in Warden v. Hayden, 387 U.S. 294 (1967). Looking for a framework to justify lots of innovations in Fourth Amendment law, Justice Brennan made a pitch that the Fourth Amendment had previously been based on property principles but was henceforth to based on privacy principles:

The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be "unreasonable" within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.

Note that Justice Brennan's property-to-privacy narrative pre-supposed a switch with two parts. First, that there was a property era before the 1960s; and second, that some kind of new thinking was needed that was based on privacy.

As I see it, this was malarkey. Fourth Amendment law had long been based on a mix of appeals to property-ish notions and privacy-ish notions, going back to 18th Century English debates on general warrants, through 19th Century U.S. cases on the Fourth Amendment, and through the early 20th Century. There wasn't an actual property era, and the extension of the Fourth Amendment beyond physical intrusion (generally expressed under the Katz privacy test) is entirely consistent with the prior understandings, the Fourth Amendment's original public meaning, and the constitutional text. But property-to-privacy was Justice Brennan's pitch, and it has exerted a strong influence on how later scholars and Justices imagined both Fourth Amendment history and its current role.

It seems to me that once you go back to the full text of the Fourth Amendment, and once you recognize that Justice Brennan's property-to-privacy narrative was not accurate, it becomes easier to think through how to deal with the Fourth Amendment search test. The question should be what is a "search" of "persons, papers, houses, and effects," both for actual physical intrusions (as were the facts at issue when the Fourth Amendment was enacted) and for the modern technological equivalents of those physical intrusions (as have to be recognized to maintain the Fourth Amendment's role in a technological world). Identifying the modern technological equivalents can be a challenge, for all the reasons that identifying persuasive analogies in law can be a challenge. But that, I think, should be the goal.

The difficulty for the Court, though, is that the past treatment of this issue leaves current Justices with a lot of different pieces of the puzzle to latch on to. The heavy influence of Justice Brennan's framework has caused a modern split, with some Justices wanting to go back to a property approach that never existed. If you think the privacy approach is right and requires new understandings of privacy, you run into the challenge of what that privacy test is supposed to mean. If you turn to the text and focus only on the word "search" in the abstract, putting aside the rest of the text and the 18th century usage in cases like Entick and Wilkes, you run into the many definitions of what is a search that doesn't itself provide any guidance as to which definition applies.

And this was not a set of concepts that has a common law answer. Recall, as I wrote above, that search and seizure rules at common law arose as affirmative defenses to otherwise-existing causes of action. This means that, although there was discussion of "searches" and "seizures" in the 18th century cases like Entick and Wilkes in discussions of the facts of those cases, there was no legal concept of what was a "search" or "seizure." The issue just didn't arise under the legal system that existed then. The law we know of today as search and seizure law provided affirmative defenses, not causes of action that required some kind of defined trigger.

To make matters even harder from a judicial administration context, these different approaches are often neither inherently broader nor narrower than others. They're just different, with the differences in actual scope often rather unclear. That makes it extra hard in a world governed by the Marks test, in which lower courts are bound by the narrowest opinion in favor of the winning side when there is no majority opinion. Under Marks, unless the Court can get to five votes on a particular rationale as to whether there is or is not a search, lower courts may be unable to know which of these different tests to apply.

Of course, it's entirely possible that a majority of the Justices will be able to reach agreement on these issues in Chatrie. If so, it could really help lower courts understand how to work through these issues. But given all of these strands of thought, it's a difficult puzzle to work through.

Oral argument is Monday, 10 a.m. Eastern.

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Open Thread

2026-04-24T05:29:17.869-04:00

By Eugene Volokh - April 24, 2026 at 03:00AM

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Open Thread

2026-04-23T06:29:45.936-04:00

By Eugene Volokh - April 23, 2026 at 03:00AM

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UCLA Students Protest FedSoc Event With DHS General Counsel James Percival

2026-04-23T03:29:24.316-04:00

By Josh Blackman - April 23, 2026 at 12:43AM

The UCLA Federalist Society invited James Percival, the General Counsel of the Department of Homeland Security to speak on Tuesday, April 21. Unfortunately, there was a massive protest that disrupted the speech. Students consistently disrupted by the event by booing and heckling the speakers. There was a nonstop cacophony of ring tones and other sounds, again, which were intended to disrupt the event. This event has been covered by Fox News and the UCLA Daily Bruin.

I give credit to Professor Jon Michaels, who introduced the speaker. Michaels is a staunch critic of the Trump Administration, but still believes in the robust protection of free speech and discourse. Professor Greg McNeal of Pepperdine also deserves credit for posing tough questions to Percival. I cannot give credit to the UCLA Administration, which took no action to remove students causing the disruption, even after they were warned. I had flashbacks to when I was protested at the CUNY Law School in 2018.

My friend Yitzy Frankel shared some of the highlights here:

Truly abhorrent and unimaginable behavior today at the @FedSocUCLA event that hosted a @DHSgov lawyer. Leftist students repeatedly disrupted the event, yelled profanities, shouted, made their phones ping incessantly, and eventually stormed out to a rally that violated all time,… pic.twitter.com/DxqubGVleB

— YitzyFrankel (@YitZionist) April 21, 2026

You can watch the entire video here:

Even if UCLA takes no action, I seriously question how some of these students will fare as attorneys. For example, one student drew a sign that said "Hows Trump's C**ck Taste?" (asterisks in the original). To be sure, there are valid grounds to criticize members of the Trump Administration. But what exactly does this vulgarity convey, other than showing the student is unable to engage in any reasoned discourse?

Another sign was directed at Matthew Weinberg, the chapter President of the UCLA FedSoc chapter. Weinberg, who is Jewish, is currently involved in litigation against the UCLA chapter of Students for Justice in Palestine. This is a student who has faced anti-semitism on campus during the "encampment" movement. Yet another student, who was presumably Jewish, charged that it was Weinberg who was bringing a Nazi to campus:

"Weinberg - why'd you invite Nazis? Jew to Jew, Shame on You"

No, shame on the student holding this sign.

Indeed, a flyer compared Percival to Wilhelm Frick, the Nazi Minister of the Interior. One of the most depraved aspects of the modern left is to label everyone they disagree with as a "Nazi." When I was in college, George W. Bush was a Nazi. Today, anyone associated with Donald Trump is a Nazi. To even make this linkage dilutes the unspeakable horrors of the Nazi regime. It's no wonder people like Nick Fuentes can now say that Hitler was "cool."

What will become of UCLA? Eugene Volokh is gone. Steve Bainbridge is near retirement. Jon Michaels and a few other old-school liberals remain, but for how long? Soon enough, this institution will be succumb to self-immolation.

Harmeet Dhillon, the head of the Civil Rights Division, seems to have taken note:

Oh @UCLA…

Adding
To
The
List ….

And it's the wrong list https://t.co/q8PAaFoM6l

— AAGHarmeetDhillon (@AAGDhillon) April 22, 2026

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"Sotomayor Drops The Ball on Obamacare" And The Shadow Docket

2026-04-23T01:29:35.338-04:00

By Josh Blackman - April 22, 2026 at 10:54PM

When exactly did the shadow docket begin? People are now arguing about what was the first relevant shadow docket case, but those disagreements turn on stated and unstated assumptions. The answer depends on how you define the shadow docket. I need to give some more thought to exactly what the "shadow docket" is.

My colleague Stephanie Barclay suggests that the shadow docket actually began on New Year's Eve 2013 when Circuit Justice Sotomayor granted emergency relief to the Little Sisters of the Poor.

I wrote about this moment at some length in Chapter 15 of my 2016 book, Unraveled: Obamacare, Religious Liberty, and Executive Power. I will include an excerpt of the book after the jump.

Here, I will offer a few reasons why the Little Sisters order can be distinguished from the Clean Power Plan order about two years later. This ruling may still qualify as the first shadow docket entry under certain assumptions, but I have some doubts.

First, the Little Sisters of the Poor were only seeking an exemption for themselves. Other litigation had been filed throughout the country by other religious non-profits. Almost all of those courts had granted emergency relief to the plaintiffs. Only two plaintiffs were denied relief: the Little Sisters of the Poor and Notre Dame University. Notre Dame did not file an emergency appeal to the Supreme Court. Instead, they caved and made coverage of emergency contraception available under their plan. The Little Sisters, represented by the Becket Fund, would file an emergency application with Circuit Justice Sotomayor. With modern emergency docket litigation, plaintiffs often seek universal relief, whether through nationwide injunctions, vacatur, certified classes, or broad associational standing. Outside death penalty cases, it is rare for the Supreme Court to grant emergency one-off relief. Mirabelli is one such case.

Second, the Clean Power Plan litigation was somewhat unique in that the case began at the D.C. Circuit. There were no district court proceedings. Moreover, the Supreme Court issued its stay of the executive action before the D.C. Circuit had an opportunity to rule. By contrast, for the contraception mandate, the District Court and the Tenth Circuit both denied relief after full briefing and consideration. Justice Sotomayor's order in no way short-circuited the appellate process. Moreover, Sotomayor did what virtually every court had done at that point.

Third, on December 31, 2013, Justice Sotomayor granted what we would now call an administrative stay:

IT IS ORDERED that [the government is] temporarily enjoined from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2014, by 10 AM.

To be precise, if the shadow docket was born with the Little Sisters, the birth occurred twenty-one days later on January 24, 2014, when the full Court issued a one-paragraph order:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.

A few things stand out here. The Court to did not enjoin the contraceptive mandate altogether. It granted relief to one party, and only one party. There was no suggestion at the time this ruling set a precedent, which other parties could rely on. Notre Dame, which did not appeal, did not benefit from this ruling. Instead, the Court effectively granted an accommodation to a single plaintiff. This sort of tailored remedy stands in stark contrast with the sweeping relief granted in the Clean Power Plan case. That ruling completely enjoined the policy nationwide.

Fourth, in the Clean Power Plan case, it is pretty clear the Obama Administration was trying to rush the policy to "bake it in" before the Supreme Court could review it. Will Baude suggested that the Chief Justice was "concern[ed] that the executive branch [was] openly circumventing the federal courts." The Obama Administration was not trying to circumvent all federal court review. They were content to run out the clock in the favorable D.C. Circuit. DOJ was trying to avoid Supreme Court review. There was some gamesmanship.

But I don't think there was a similar gaming for the contraceptive mandate. The ACA statute provided that the employer mandate would go into effect on January 1, 2014 (though the statute itself said nothing at all about contraception coverage). You may recall that initially, the Obama Administration argued that the "penalty" enforcing the individual mandate was a tax, and since the tax would not be collected until 2014, the challenge to Obamacare in 2010 was not yet ripe in light of the Tax Anti-Injunction Act. This was a clever way of "baking in" Obamacare before the Supreme Court could review it. But DOJ abandoned this strategy once they realized they needed the taxing power argument to save the law. There is lots of gamesmanship and playing keep-away from SCOTUS

Fifth, there is another reason to distinguish the Clean Power Plan and the Little Sisters of the Poor. This reason is somewhat political, but not really. There were no recorded dissents for the nuns. The Justices all likely agreed that the District Court in Colorado committed a clear error, and the ex ante status quo had to be preserved. In other words, the claim for legal relief was clearly established. That would seem to be a very strong factor in favor of granting emergency relief. The Clean Power Plan case split hard by a 5-4 vote. Such a sharp disagreement is almost certain proof that the basis for legal relief is not clearly established. This is what Justice Kagan wrote in her memorandum, and in many subsequent published dissents.

For these reasons, and others, I think it is tough to view the Clean Power Plan and the Little Sisters of the Poor on the same wavelength. I spoke with several DOJ lawyers at the time. They were a "little bit surprised" by the Court's ruling. But this reaction pales in comparison to the shock the Obama Administration had after the Clean Power Plan ruling, where the Justices bypassed the lower court altogether.

Here is an excerpt from Chapter 15, titled "New Year's Resolution." As I've noted in other contexts, I wrote this book behind the veil of ignorance. The shadow docket wasn't even a glimmer in my eye at the time. Indeed, if memory serves, I wrote this chapter before the Clean Power Plan ruling. (The book was sent to the press circa June 2016.)

15.1. "Adhere to Their Religious Conviction"

In September 2013, as a government shutdown loomed, and with only three months before the contraceptive mandate went into effect, the Little Sisters of the Poor finally challenged Accommodation 2.0 in court. One of their attorneys told me that they were very late to file because the Little Sisters didn't want to have anything to do with litigation. But as New Year's Eve drew near, the order of nuns were left with no other options. Over the next three months their lawyers at the Becket Fund for Religious Liberty anxiously waited for a decision. "We kept calling, saying, 'hey we have an emergency coming up,'" the lawyer told me. "We needed an answer."

Finally, late in the afternoon on Friday, December 27, the district court ruled against the Little Sisters. Judge William J. Martínez did not question whether the mandate conflicts with their religious beliefs. However, Martínez did "analyze the challenged regulations to determine whether their implementation will cause the allegedly harmful act to in fact occur."1 Despite the Little Sisters' objection to filling out the form, the court concluded that "nothing on the face of the Form expressly authorizes [providing] contraceptive care." Signing the form "does not authorize any organization to deliver contraceptive coverage to Little Sisters' employees," the court concluded. As a result, Accommodation 2.0 does "not substantially burden Plaintiffs' religious beliefs," and the Little Sisters are not actually "required to buy into a scheme that substantially burdens their religious beliefs."

At that time, the overwhelming majority of courts had already granted interim relief to religious non-profits. One of the attorneys for the Little Sisters was shocked that the court ruled against them. "I would have thought that of all the clients in the country who were going to get relief from the lower courts, the one I don't need to worry about is the Little Sisters of the Poor, because who's really going to turn down Little Sisters of the Poor? They're so obviously religious that it's idiotic to not call them a religious employer."

After an all-nighter, the very next day the Becket Fund lawyers requested an emergency injunction from the Tenth Circuit Court of Appeals in Denver. The twenty-one-page brief explained: "By midnight on New Year's Eve, Mother Provincial Loraine Marie Maguire must decide whether the Little Sisters should adhere to their religious conviction that they cannot participate in the Mandate, or whether they should sacrifice that religious belief to spare their ministry from the government's crushing fines." This prayer for relief would also go unanswered.

Three days later, at noon on December 31, 2013 – as it had done a year earlier with Hobby Lobby – the Tenth Circuit denied the injunction. Judges Paul Joseph Kelly, Jr. and Carlos F. Lucero found that under the accommodation, stage is not warranted."

Like the year before, the Tenth Circuit's refusal to put the mandate on hold was at odds with virtually all other federal courts to consider the issue. In seventeen out of nineteen cases, the courts had granted an injunction for the religious non-profits before the December 31 deadline. Leading up to New Year's Eve, only the Little Sisters and Notre Dame University were denied an injunction by the lower courts.2

In early December, Father Jenkins, who had invited Obama to speak at Notre Dame four years earlier, explained that succumbing to the mandate will lead us "down a path that ultimately will undermine those [religious] institutions."3 However, with a decision that surprised many, Notre Dame acquiesced to the Seventh Circuit's order. A spokesperson for the university announced on December 31, "Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program."4 Coverage of emergency contraceptives such as Plan B and Ella would soon become available through Notre Dame's insurance plan.

Many criticized the university for not having a strong enough commitment to fight the mandate all the way. Father Bill Miscamble, a professor of history at Notre Dame, told the National Catholic Register that he was disappointed "with the tepid way in which Notre Dame has acquiesced with the Obamacare provisions and authorized its health-insurance administrator to implement the HHS mandate."5 Notre Dame did not seek an injunction from the Supreme Court. I asked one of the attorneys for the Little Sisters why Notre Dame did not request emergency relief from the Justices. He replied, "I don't know, and you will never find out." Notre Dame continued to challenge the mandate in the lower courts, but by that point it had already complied with the accommodation.

Later that month, Pope Francis spoke about Notre Dame, saying, "[I]t is my hope that the University of Notre Dame will continue to offer unambiguous testimony to this aspect of its foundational Catholic identity, especially in the face of efforts, from whatever quarter, to dilute that indispensable witness…. And this is important: its identity, as it was intended from the beginning. To defend it, to preserve it and to advance it!" Notre Dame Professor Carter Snead saw the Pope's remarks as encouraging the university to continue its fight against the contraception mandate: "The Holy Father's words strike me as a timely and profound encouragement to Notre Dame in its continuing efforts to defend its religious liberty in court."6 Patrick Deneen, also a Professor at Notre Dame, told National Review that "[o]n the same day that Pope Francis's statement was publicized, members of the university community were given notice that we would be receiving new health ID cards for 'women's preventive services.'"7

The Little Sisters of the Poor would not be so easily deterred. Mother Provincial Loraine joked with one of her attorneys, "Well, really, how many nuns can they put in jail?"

15.2. "Sotomayor Drops Ball on Obamacare"

With less than twelve hours till the new year, the contraceptive mandate was barreling toward the Little Sisters like an oncoming train. Justice Sonia Sotomayor – who at that very moment was riding Amtrak to New York City – would soon pull the emergency brake. The Bronx native was invited to push the button to start the New Year's Eve ball drop. The president of the Times Square Alliance exclaimed, "Who better to join us in the crossroads of the world than one of New York's own?"8 Sotomayor would receive notice of the Little Sisters' emergency petition around 5:00 PM while she was on the northbound train from Union Station to Penn Station. Fortunately, Amtrak's wireless Internet actually worked that evening.

The Little Sisters made their case: "Mother Loraine must make that decision by midnight tonight, unless relief is granted by this Court." There was a strong sense of déjà vu to this appeal. The Becket Fund represented both Hobby Lobby and the Little Sisters. And just like the year before, the attorneys were forced to frantically file a last-minute appeal with Circuit Justice Sotomayor on December 31. The year before, Sotomayor rebuffed Hobby Lobby. Fortunately, should old acquaintance be forgot and never brought to mind, this prayer for extraordinary relief was answered.

Before Justice Sotomayor released the Waterford Crystal Ball over the Crossroads of the World, she would first release an injunction halting the contraceptive mandate. Or, as The Drudge Report more colorfully captioned it, "Sotomayor Drops Ball on Obamacare."9 At 10:00 PM, Mark Rienzi's phone rang. It was Danny Bickel, the Supreme Court's Emergency Applications clerk. Capital defense lawyers have dubbed Bickel "the death clerk" because he handles the eleventh-hour requests to stay executions.10 But tonight, there was a far less somber call to make. Bickel told the Becket Fund attorney that the Court would soon issue an order, and he would send him a copy. Around 10:15 PM, as hundreds of thousands massed in Times Square, Sotomayor issued a one-paragraph order:

IT IS ORDERED that [the government is] temporarily enjoined from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2014, by 10 AM.

Success! But this was an ephemeral victory, and the nuns' angst was not quite over. Sotomayor's December 31 order was only temporary. That evening, Mark Rienzi called Mother Loraine, who had "been praying about what she was going to do tomorrow." He told her, "[W]e at least have life for a little while."

As the nuns hailed Mary, Miley Cyrus twerked away 2013 in Times Square.11 Fortunately, the New York Times observed, "Viewers should not expect to see Ms. Cyrus twerking near Justice Sotomayor."12 The Justice had a private space to handle these more pressing matters.13

15.3. Accommodation 3.0

On Friday, the government submitted its reply, and urged the Court that the injunction should be denied. "Applicants claim a right to extraordinary relief," the solicitor general wrote, "even though compliance with the procedure they challenge will not result in anyone else's provision of the items and services to which applicants object." Recall that under Accommodation 2.0, the nuns, would not have to pay for the contraceptives. The Becket Fund lawyers replied that same day in a plea to keep the injunction in place:

The temporary injunction issued Tuesday night saved Mother Provincial Loraine Marie Maguire from the choice of violating her faith by executing the government's required form, or exposing the Little Sisters' ministry to decimation by IRS penalties. She exercised her religion that night, and each day since, by acting in accordance with God's will as she understands it. The temporary injunction protected, and continues to protect, that religious exercise. That injunction should remain in place.

Twenty-one days of silence from the Court would follow. Then on January 24, the Justices issued a one-paragraph order:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.

Simply stated, if the Little Sisters notify the government in writing that they "have a religious objection to providing coverage for contraceptive service," which they obviously do, they are exempted from the contraceptive mandate altogether. I will refer to this approach as Accommodation 3.0, although in effect it mirrors the exemption given to the houses of worship. Rather than having to certify a religious objection, which would serve as notice for the insurer to begin paying for contraceptive coverage, under Accommodation 3.0, the employees of the Little Sister would not receive the coverage at all. There was no need for the Little Sisters to use the form provided by the government. Critically, however, the Justices stressed that "this order should not be construed as an expression of the Court's views on the merits." With that order, the Little Sisters finally received the relief they needed.

There was no recorded dissent to the order, but that does not mean that all of the Justices in fact agreed. For example, when the court refuses to halt an execution, Justice Ginsburg has explained that the lack of dissent on a last-minute appeal does not mean everyone concurs: "When a stay [of execution] is denied," she observed, "it doesn't mean we are in fact unanimous."14

A senior DOJ official told me that they "were a little bit surprised" by the claim of the Little Sisters of the Poor and other religious non-profits. In contrast with Hobby Lobby, where the position of the government was that there was no RFRA claim at all, for the Little Sisters, there had been this evolution of working to try to frame that accommodation that would work for religious non-profits, or at least the vast majority of them. He added that there had been a lot of discussions between the administration and representatives of religious organizations to try to find some common ground, to find some way to make it work. That resulted in these changes over time in the nature of accommodation. That is, the upgrade from Accommodation 1.0 to 2.0. The Justice Department, he explained, did think by the time we've gotten to the idea of the form, that it would be perceived that we had avoided a substantial burden on religion and come up with a system that really seemed fair and would work. He shrugged his shoulders, and said, "So I think we were a little surprised about the stay."

The Little Sisters' fight was far from over. The case would be sent back to the Tenth Circuit Court of Appeals for another round of litigation. But first, exactly two months later on March 25, 2014, the Supreme Court would hear oral arguments in Sebelius v. Hobby Lobby Stores.

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Led by Republicans, Americans' Support for NATO Fades

2026-04-22T10:29:23.436-04:00

By J.D. Tuccille - April 22, 2026 at 07:00AM

President Donald Trump's doubts about the North Atlantic Treaty Organization (NATO) date back at least to the 1980s, when he took out full-page newspaper ads questioning the value of defending prosperous allies capable of paying for their own security. So, when he voices frustration with the alliance and the lack of support among its members for the U.S. and Israeli campaign against Iran's theocratic regime, it's not a new development. What's new is growing disenchantment with NATO among Americans, led by the president's Republican supporters.

Rising Doubts About NATO Membership

"A majority of Republicans (60%) now say the U.S. benefits not too much or not at all from being part of the alliance, up from 50% in 2025," Pew Research reported earlier this month. That's an 11-point drop in support for NATO membership among Republicans and GOP-leaning independents—from 49 percent to 38 percent—just from last year.

As recently as 2022, 55 percent of Republicans supported U.S. membership in NATO.

An overwhelming majority of Democrats and Democrat-leaning independents—82 percent—continues to support NATO membership in numbers barely changed over the past five years. But the decline in support among Republicans means that alliance participation's favorability among Americans in general has gone from 71 percent in 2021 to 59 percent now. Most likely, that has something to do with the two-term Republican president's continuing doubts about Cold War-era military alliances that linger on.

In 1987 newspaper ads that mostly fretted over a then-dynamic Japan and oil-rich Saudi Arabia, Trump asked, "Why are these nations not paying the United States for the human lives and billions of dollars we are losing to protect their interests?"

Thirty-nine years later, Trump's doubts about such alliances haven't changed. He openly questioned NATO's value during his first term and recently told reporters that he's considering withdrawing the U.S. from the alliance which he says "wasn't there when we needed them, and they won't be there if we need them again."

The thing is, while many NATO members have recently regained some appreciation for the alliance, they really did spend decades coasting along under the U.S. defense umbrella. And Americans continue to do most of the heavy lifting.

Americans Shoulder the Lion's Share of the NATO Burden

Last year, with its economy representing 52 percent of total NATO GDP, the U.S. made 60 percent of the alliance's overall defense expenditures, according to the NATO Secretary General's Annual Report 2025. That was a significant improvement in the shared burden since 2020 when the U.S. had 53 percent of the GDP of a smaller alliance (Finland and Sweden have since joined) but was responsible for 71 percent of total defense spending.

The share of defense spending didn't represent the full imbalance of military power in the alliance. In December 2023, after Russia invaded Ukraine, The Wall Street Journal noted that "the British military—the leading U.S. military ally and Europe's biggest defense spender—has only around 150 deployable tanks and perhaps a dozen serviceable long-range artillery pieces." France, the Journal added, "has fewer than 90 heavy artillery pieces, equivalent to what Russia loses roughly every month on the Ukraine battlefield….Germany's army has enough ammunition for two days of battle."

So, the rise in the share of non-U.S. defense spending was much needed. But it's not clear that military preparedness among allied nations has yet improved.

When Iran lobbed missiles at Cyprus as part of an escalation of the country's ongoing war with the U.S. and Israel, it took a week for the United Kingdom to deploy a destroyer to defend its assets there.

"We effectively have two destroyers that are seaworthy at the moment," former Royal Navy commander Tom Sharpe told Sky News. "It just so happens neither are at immediate notice to go."

Another naval expert told The Guardian that "the UK doesn't have any air defence other than the Royal Air Force and some short-range missiles" based on vessels like the HMS Dragon, which was ultimately sent to Cyprus. At a time of rising tension with Russia, other potential demands for that capability had to be considered before the ship sailed. And that's for relatively well-armed Britain.

Europe Rearms as Its Interests Diverge From America's

That said, the NATO allies are taking their responsibilities more seriously than in the past. All members—even Canada, which trailed for decades—are now at least nominally spending at least 2 percent of GDP (the NATO guideline) on defense. Poland leads in percentage terms, at 4.3 percent, with the U.S. at 3.19 percent. Because the U.S. economy is far outstripping those of Europe, the rebalance is less impressive in dollar amounts, with Americans coughing up $838 billion vs. the $574 billion spent by the other NATO allies combined in 2025.

But there are also questions about competing risks and concerns. European NATO members worry most about nearby Russia, for good reason, with the NATO annual report observing that "Russia remains the most significant and direct threat to our security and to peace and stability in the Euro-Atlantic area." But Canada and the U.S. are located across an ocean from Europe (and isolated by another from threats in Asia). Germany, by itself, has an economy double the size of Russia's in GDP terms and should be more than capable of fielding an adequate defense—especially alongside neighbors with similar worries.

Trump rages over NATO's failure to support America's efforts against Iran. But that fight isn't why the North Atlantic alliance exists. Whether or not the Iran war is a good idea—and that's a separate discussion even from its questionable legality—the U.S. has interests that range far beyond the defined purposes of an arrangement with mostly European allies and their extremely limited (by their choice) military capabilities. NATO's other members don't necessarily share American concerns, and they have no reason to participate in conflicts beyond the scope of their agreement with the U.S.

The question is whether the U.S. needs to continue its promise of participation in future European conflicts. Polling suggests the president's supporters are increasingly skeptical about NATO participation and adopting doubts that he first raised decades ago.

In a changing world, perhaps it's time for the U.S. and its longtime allies to concede that their interests are moving in different directions. We might be better friends when we admit that the old military alliance has outlived its usefulness.

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Open Thread

2026-04-22T05:29:27.588-04:00

By Eugene Volokh - April 22, 2026 at 03:00AM

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Trump's Embrace of Psychedelic Therapy Leaves Most Users on the Wrong Side of the Law

2026-04-22T04:29:33.250-04:00

By Jacob Sullum - April 22, 2026 at 12:01AM

On Saturday, President Donald Trump issued an executive order aimed at "accelerating medical treatments for serious mental illness" by facilitating regulatory approval of ibogaine and other psychedelics that have shown promise as psychotherapeutic catalysts. Although the case for doing that is compelling, the medical model embraced by the president excludes most psychedelic use, which will remain illegal even if the "historic reforms" that Trump announced work as planned.

Trump takes it for granted that Americans should be allowed to use psychedelics only for reasons that the government recognizes as legitimate. Otherwise, they are criminals rather than patients, subject to arrest, prosecution, and potentially severe penalties for daring to assert sovereignty over their own bodies and minds.

The injustice of that policy is readily apparent when people use psychedelics in ways that manifestly improve their lives. Many combat veterans, for example, have found that ibogaine, which is derived from the root of an African shrub, provides dramatic relief from the constellation of problems known as post-traumatic stress disorder (PTSD).

"It absolutely changed my life for the better," former Navy SEAL Marcus Luttrell, whose Afghanistan memoir inspired the 2013 movie Lone Survivor, remarked as Trump signed his executive order. "I was reborn," says Luttrell's twin brother, Rep. Morgan Luttrell (R–Texas), also a former Navy SEAL. "It is one of the greatest things that ever happened to me."

Because ibogaine is banned in the United States, the Luttrell brothers had those transformational experiences at a clinic in Mexico. So did the 30 subjects of a recent Nature Mental Health study, which found that ibogaine, combined with magnesium as a safeguard against the drug's cardiac side effects, "safely and effectively reduces PTSD, anxiety and depression and improves functioning in veterans" with traumatic brain injuries.

Research on ibogaine, which also is reputed to be remarkably useful for people struggling with drug addiction, is relatively limited so far. But the evidence supporting the use of MDMA (for PTSD) and psilocybin (for depression), both of which the Food and Drug Administration (FDA) has designated as "breakthrough" therapies, is strong enough that they may soon be approved as prescription medications.

If that happens, some people who could benefit from these drugs will be able to use them legally, provided they can obtain a diagnosis and a prescription. But where does that leave all the psychedelic users who can't meet those requirements?

In a 2023 survey of psilocybin users, the RAND Corporation found that the most common motivations included "fun" (59 percent), "improved mental health" (49 percent), "personal development" (45 percent), "curiosity" (43 percent), and "spiritual growth" (41 percent). Although very few of those people would qualify for the medical exception that Trump advocates, that does not mean their reasons for using psilocybin should be dismissed as frivolous, let alone that they should be treated as criminals.

A forthcoming Cornell Law Review article argues that psychedelic prohibition infringes on the First Amendment right to "epistemic discovery," which "focuses on the social and material processes through which humans gain and share knowledge—a pursuit at the heart of modern free speech law." Columbia law professors Jeremy Kessler and David Pozen note that "psychedelics afford many users access to information that is difficult, if not impossible, to obtain through other means."

That information, Kessler and Pozen write, "takes a variety of forms: novel images, surprising insights, unsurprising insights that are given new depth, and even 'messages' from submerged aspects of one's own consciousness. Across cultures, 'people frequently receive information of great personal significance' when they consume psychedelics, and then continue to find it significant for years afterward."

Such experiences are not fundamentally different from the ibogaine-assisted revelations that Marcus and Morgan Luttrell credit with turning their lives around. But by and large, they are not the sort of psychedelic uses that will ever be blessed by the FDA, which suggests the problems with empowering federal bureaucrats to decide who can use these tools of self-exploration.

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Kodak Invented This Film for World War II Spy Planes. Then It Became Art.

2026-04-21T08:29:13.573-04:00

By Matthew Petti - April 21, 2026 at 06:00AM

LSD was famously pioneered by the CIA and adopted by the hippie movement. But it wasn't the only psychedelic technology that made its way from the deep state to artsy subcultures.

Infrared color photography, originally developed to help spy planes unmask enemy camouflage, has become a favorite of hobby photographers long after the surveillance method became obsolete. It's a beautiful example of a warlike technology being turned toward peaceful ends.

During World War II, scientists at Kodak developed a film known as Aerochrome that would shift the spectrum of light such that infrared showed up as visible red. The reason was simple: Plants are really infrared reflective, while paint and fabrics (at least the ones that existed back then) aren't. Therefore, camouflaged troops would stand out in color infrared photos as green dots in a red forest. After two decades of use by the military and the forestry industry, Kodak began selling a consumer infrared color film called Ektachrome EIR in the 1960s, according to The Art of Color Infrared Photography by Steven H. Begleiter.

Matthew Petti

One of the earliest infrared adopters was the photographer Karl Ferris, who used the film to create a pink-looking U.S. cover for Jimi Hendrix's first album, Are You Experienced. Keith McMillan, a photographer who worked for the label Vertigo, similarly used Aerochrome for Black Sabbath's self-titled debut. But infrared photography went out of fashion, and Kodak discontinued Ektachrome EIR in 2007.

Meanwhile, the hobbyist Dean Bennici was sitting on a huge stock of military surplus Aerochrome. As he explains on his website, Bennici was looking for "something special for an artist friend" when he managed to obtain bulk Aerochrome "through an aerospace contact in Germany." After cutting some of the film into consumer-sized rolls, he ended up with 5,000 of them, which he spent years unsuccessfully trying to hawk online.

Matthew Petti

In 2013, the photojournalist Richard Mosse used Bennici's film to document the Congolese civil war, making it into The New York Times with his infrared still photos and the Venice Biennale with his haunting pink video of the conflict. Aerochrome became a cult favorite once more, and Bennici ended up hand-cutting hundreds of thousands more rolls, which he sold online. Bennici has been all out of Aerochrome since 2021, and the remaining stock of Ektachrome EIR is extremely hard to find.

The advent of digital cameras allows photographers to recreate the Aerochrome look, something that Bennici himself opposes. ("Trying to be what you are not to me seems like a perversion of reality," he told interviewer Christoph Kummer.) Nonetheless—and with full apologies to Bennici—these photos were taken with a camera converted to pick up infrared light and a Kolari Vision IRChrome filter. Although they resemble what a military intelligence camera might have seen decades ago, they were taken with a very different purpose in mind: art.

Matthew Petti

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Brickbat: Won't You Stay

2026-04-21T06:29:20.920-04:00

By Charles Oliver - April 21, 2026 at 04:00AM

In Germany, officials stress that military service remains voluntary. But an update to its military service law, which quietly took effect in January, bars men between ages 17 and 45 from leaving the country for more than three months without permission. Critics say the rule could affect millions of men and is causing confusion, while supporters say it will improve Germany's response to emergencies.

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Open Thread

2026-04-21T04:29:28.656-04:00

By Eugene Volokh - April 21, 2026 at 03:00AM

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Elizabeth Prelogar's Unexpected and Unusual Argument

2026-04-21T01:29:21.753-04:00

By Josh Blackman - April 20, 2026 at 11:45PM

Whenever a new petition is granted, I always check the counsel of record. I keep a running tally of how many cases leading members of the bar argue. When the Court granted cert in T.M. v. University of Maryland Medical System Corporation, I took note. The Counsel of Record for the Petitioner was Kannon Shanmugam of Paul Weiss. This was (likely) a pro bono case, as T.M. sued the hospital system for medical malpractice. The Counsel of Record for the Respondent was Lisa Blatt of Williams & Connolly. I remember looking forward to seeing Shanmugam and Blatt argue. These two are titans of the Supreme Court bar.

Except it wasn't meant to be. For reasons that are not clear, Elizabeth Prelogar of Cooley LLP argued the case today. Prelogar's name was not on the Petitioner's opening brief or the reply brief.

Shanmugam is still listed as counsel of record, but Prelogar's name now appears on the docket page.

It is common enough for a veteran SCOTUS litigator to give a case to a fellow partner or an associate, to give them experience at the high court. It also happens that when two big SCOTUS firms are on a case, there is some process to decide which firm gets to argue. Sometimes the client chooses. When there is more than one client, it can get messy. When all else fails, a coin toss can resolve the conflict. But I can't recall a situation like this: where a veteran SCOTUS litigator in a pro bono case files all of the cert-stage and merit-stage briefs, and then hands the case off to a SCOTUS litigator at another firm. Indeed, the fact that this case is pro bono is significant. There was only one client, who is a person, rather than a institution. I don't think there was a General Counsel department advising T.M. about who would be the best attorney to argue the case. Here, Shanmugam was on the cert petition, so he has had the case for some time.

For whatever it is worth, this is Prelogar's first Supreme Court argument since returning to private practice. She has had cert denials in Stroble v. Oklahoma Tax Commission and Tuopeh v. South Dakota and Little v. Llano County.

Why did Prelogar swoop in at the last minute? I don't know. Perhaps there is a conflict? I checked the docket, and Shanmugan is on the brief for next week's case of Cisco Systems v. Doe, though Chris Michel at Quinn Emanuel is counsel of record. Mere mortals may have trouble arguing two SCOTUS cases back to back, but Shanmugam has super advocacy skills. In 2024, he argued a case in February and another case in March. In 2021, he argued a case on November 10 and on November 30. In 2020, he argued a case on November 3 and on December 8 and on January 19. In 2018, he argued a case on October 29 and on November 7. And even if it was too much for Shanmugam to argue back-to-back, certainly there is someone else at Paul Weiss who could have picked up the case. There must be more to the story.

The change in counsel may affect the outcome of the case. There are often problems when an attorney argues a case, but did not brief it. I think this may have happened today.

The petition did not ask for the Court to overrule the Rooker-Feldman doctrine.Yet, as Justice Alito pointed out, Prelogar seems to want to overrule Rooker-Feldman.

JUSTICE ALITO: Reading between the lines, I take your --your real position to be that Rooker-Feldman ought to be overruled, and maybe there are members of the Court who would like to do that, but that's not before us here, right?

MS. PRELOGAR: Our primary argument is that it's not necessary to overrule it. It just shouldn't be vastly expanded

Alito joked that alternatively, Prelogar would limit the case to the parties:

JUSTICE ALITO: But, if we're going to limit it, it has to be limited on some rational basis. And I don't really see a rational basis for drawing a distinction between a case where the --the state court proceeding has concluded and a case where the state court proceeding is --is ongoing. I mean, in Rooker, the individual's name began with an R. And in Feldman, the individual's name began with an F. So, here, the individual's name begins with a T. I mean, can we say, well, we're not going to go any further than Rooker and Feldman, so this case doesn't qualify?

Well, yeah. Prelogar didn't write that brief. But Solicitor General did argue Dobbs. Maybe there was some disagreement in strategy, but by this late juncture, the briefs are in the can.

Prelogar told Justice Gorsuch that Rooker-Feldman was "egregiously wrong" and could be overruled:

JUSTICE GORSUCH: The last one and then I'm done. Give me your best shot for overruling Rooker-Feldman. I know it's in your brief. I know you don't want to talk about it primarily, but I want to hear -

MS. PRELOGAR: Sure. So -

JUSTICE GORSUCH: --sing --sing -sing a few bars for me.

MS. PRELOGAR: --we think that Rooker-Feldman is egregiously wrong. It's out of sync with modern precedent about how the Court articulates jurisdictional rules. District courts are supposed to exercise the jurisdiction that Congress gives them, and the Court doesn't have a free-floating judge-made power to take away jurisdiction where it exists.

Lisa Blatt scoffed at the notion that the Court would overrule Rooker-Feldman, especially where the Petitioner did not preserve that issue.

JUSTICE JACKSON: Could you speak to Ms. Prelogar's suggestion that we should as a backup consider revisiting Rooker-Feldman?

MS. BLATT: This is not Dobbs. This is not Roe versus Wade. The words "egregiously wrong" don't even appear in their brief. Rooker-Feldman is obviously not egregiously wrong.

Justice Alito even referenced the disconnect, pointing to Shanmugam's cert petition:

JUSTICE ALITO: The petition in this case was filed by a very experienced and sophisticated advocate. A second question could have been added, should Rooker-Feldman be overruled? It wasn't overruled. When have we reached out to overrule a decision when we haven't even been asked to do it by counsel at the outset?

The Court doesn't overrule a precedent unless a party squarely preserves the issue.

Blatt had fun with this response. She said that if she knew Rooker was on the chopping block, she would have recruited some state amici to argue against that position. But no states have even briefed the issue.

MS. BLATT: Well, I know the state -the states haven't been --I mean, it's --I'm sitting here telling you about how hard it is to get a state amici. You've got to go through a long process and give them sufficient time. So, if we had known that Rooker was on the table, we might have written a different note telling the states to apply because the other side wants to overrule a case that protects the jurisdiction of their state highest court. So you don't even have any state in front of you here to --so, no, you're not going to overrule Rooker. I mean, sorry, I don't think you're going to do that.

(Laughter.)

MS. BLATT: Not in an April case. Not happening.

(Laughter.)

JUSTICE ALITO: Don't --don't dare my colleagues.

(Laughter.)

MS. BLATT: Okay. I'm sorry. A little too much. I'm all yours.

Very funny. No, the Court is not overruling a precedent in an April case where no party raised the argument.

What an unexpected, and unusual argument.

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