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I'm Italian American, but I Don't Celebrate Columbus Day.

2026-10-09T00:29:44.227-04:00

By Nick Gillespie - October 8, 2026 at 05:08PM

Bless my Italian-American mother's memory—her maiden name was Guida, and her parents were immigrants from southern Italy who never learned to speak English. But I won't be observing Columbus Day this Monday. Indeed, I stopped caring about it years ago. Traditionally a celebration of Italian-American pride and the Genoese explorer who "discovered" the New World, for decades the day has come to embody many of the worst excesses of identity politics, both among its champions and its detractors.

Whatever political and cultural purposes it might have once served, Columbus Day now functions as an annual showcase for ethnic grousing about real and imagined slights from generations or even centuries ago. We need less of that in today's America, especially from populations that are doing well (like Italian Americans), even as we need to be honest about our failures, in the past and the present, to live up to our ideals of pluralism, tolerance, and unity.

As you may recall, back in 2021, President Joe Biden didn't exactly bump or demote Columbus Day, but he did proclaim that Indigenous Peoples Day would take place on the same day, "lending the most significant boost yet to efforts to refocus the federal holiday celebrating Christopher Columbus toward an appreciation of Native peoples." Last year, President Donald Trump denounced the "left-wing arsonists" who emphasize the explorer's gruesome historical record and issued a White House statement, announcing "our Nation will now abide by a simple truth: Christopher Columbus was a true American hero."

If this all sounds like familiar TV satire or a popular meme, that's because The Sopranos mined it for all it was worth during its 1999–2007 run. As I wrote when series star James Gandolfini died in 2013, the entire series is "profitably read as a meditation on the end of ethnic America, at least as ethnicity was defined in the 20th century." As the mob boss at the center of the show, Tony Soprano knows better than anyone that the scripts that arguably worked for his grandparents, parents, and his own generation just didn't make sense anymore in a country that had moved on from rigid and essentialist notions of race and ethnicity. Indeed, The Sopranos run covers the period between when the census first introduced a multiracial category to the election of the first black president.

The Sopranos' interest in post-racial identity explicitly intersects with Columbus Day celebrations and protests in an episode from the show's fourth season (2002), which features a surprisingly funny-yet-deep grappling with Italian-American identity.

In one scene, the gangster Tony Soprano and his wife Carmela confront their son A.J., who is quoting from Howard Zinn's A People's History of the United States:

Carmela: His history teacher, Mr. Cushman, is teaching your son that if Columbus was alive today, he would go on trial for crimes against humanity, like Milosevic in, you know, Europe.

Tony: Your teacher said that?

A.J.: It's not just my teacher. It's the truth. It's in my history book.

Tony: So you finally read a book, and it's bullshit….He discovered America is what he did. He was a brave Italian explorer, and in this house, Christopher Columbus is a hero. End of story!

Yet things immediately get impossibly complicated. Tony and his associates learn of a Columbus Day protest organized by native Americans, which leads to a scene of anger but also confusion. Furio, an enforcer on Tony's crew who is actually from Naples, Italy, asks a series of questions.

Furio: I thought Columbus was the hero of America.

Ralphie: It's these Indians and the commie fucks. They want to paint Columbus as a slave trader rather than as an explorer…

Silvio: …I'll tell you what it is. It's anti-Italian discrimination. Columbus Day is a day of Italian pride. It's our holiday, and they want to take it away.

Furio: Fuck them! But I never liked Columbus. In Napoli, a lot of people are not so happy for Columbus, because he was from Genoa….The north of Italy always had the money and the power. They punished the south for hundreds of years. Even today, they put up their noses at us, like we're peasants (spits). I hate the north!

Silvio organizes what becomes a violent counterprotest that he fails to attend because he was playing blackjack at an Indian casino, of all places. "I woulda been fucking there, but I forgot this was a Monday," he lamely explains, and then has a telling conversation about Italian-American identity with Tony.

Silvio: [Italian] people suffered.

Tony: Did you? Except maybe for the feds?

Silvio: My grandparents got spit on because they were from Calabria.

Tony: Let me ask you a question. All the good things you got in your life, did they come from Calabria? Did they come to you because you're Calabrese? I'll tell you the answer. The answer is no….Did you get all this shit because you're Italian? No, you got it because you're you. 'Cause you're smart, 'cause you're whatever the fuck. Where the fuck is our self-esteem? That shit doesn't come from Columbus or The Godfather or Chef-Fucking-Boyardee.

Silvio: We got to tiptoe around the Indians, though, don't we? We can't call our teams the Braves or the Tomahawks…

It's true that the origins of Columbus Day as a national holiday are grim and speak to some of the ugliest elements of American racism. The earliest local celebrations in the United States date back to 18th century but took little or no notice of Columbus' ethnicity or religion. There were few Italians in America at the time, and the fact that Columbus was sailing for Catholic Spain, one of the great rivals of Protestant Great Britain in settling the New World, complicated things, Trump's proclamation notwithstanding. When Washington Irving published his massively popular, super-influential, and highly fictionalized biography of Columbus in 1828, he basically cast the superstitious European navigator as a Yankee entrepreneur who had to convince the reactionary regents Ferdinand and Isabella of Spain that the world was not flat but round (a theory that had already been widely accepted). Irving's biography somehow managed to make Columbus, who never set foot in any part of what was to become the U.S., an archetypal American.

The first federal Columbus Day observance only came in 1892, but it was a one-off, proclaimed by President Benjamin Harrison in part as a sop to the growing number of Italians who had started showing up en masse a decade earlier (all told, around 4 million Italians would emigrate to the U.S. between 1880 and 1920). In New Orleans 1891, the (Irish) police chief had been killed, and 11 Italians were charged with the crime. None of the defendants was convicted at trial, but all were killed in what was up to that point the largest mass lynching in U.S. history. Harrison denounced the violence when it happened, and it clearly influenced his Columbus Day proclamation, which also coincided with the 400th anniversary of Columbus landing at San Salvador.

For decades, anti-Italian sentiment in the U.S. was widespread and undisguised. In the wake of the New Orleans lynching, The New York Times ran an editorial asserting that the victims were "sneaking and cowardly Sicilians, the descendants of bandits and assassins,…[who] are to us a pest without mitigation." Though he would later condemn lynching, Theodore Roosevelt wrote to his sister about the New Orleans violence, calling it a "good thing." And as Daniel Okrent documents in 2019's The Guarded Gate: Bigotry, Eugenics, and the Law That Kept Two Generations of Jews, Italians, and Other European Immigrants Out of America, Roosevelt also called Italians "the most fecund and the least desirable population of Europe." Immigration restrictionists in the late 19th and early 20th centuries, writes Okrent, would routinely refer to Italians—especially from the southern part of the country—as transmitting "spiritual hookworm," possessing innately criminal genes, and otherwise polluting America's gene pool. The first person prosecuted under New York's early gun control law, The Sullivan Act, was of Italian heritage, and 70 percent of those charged under the law in its first three years had Italian surnames. In 1924, the restrictionists won, passing ultra-restrictive immigration laws that shut down newcomers from undesired countries. In the decade before the The Johnson-Reed Act, an average 200,000 Italians moved to America each year. That figure dropped to 4,000 a year after the law was passed.

In the 1930s, President Franklin D. Roosevelt, after lobbying by groups like the Knights of Columbus and individuals like National Enquirer publisher Generoso Pope, issued two proclamations establishing Columbus Day as an annual observance and it became an official federal holiday in 1968, with Lyndon Johnson's strong support. Today, slightly less than 5 percent of Americans claim Italian heritage, which in no way confers second-class or outsider status to any of us. That is progress we should acknowledge and embrace, rather than keep alive by leveraging our ancestors' pain and suffering as a way to claim current victimhood.

We'd be better off as a country rejecting the mentality satirized so deftly in The Sopranos a quarter-century ago, the passive-aggressive actions of the Biden administration, or the ideological diktat of the Trump administration. We could instead treat ethnic pride not as a zero-sum game but as source material for the next great amalgamation of American identity, one more element in a melting pot that gets bigger and more capacious with each new addition. Writing in Reason about the 500th anniversary of Columbus' first contact with the New World, the great Peruvian novelist Mario Vargas Llosa (1936–2025) emphasized that mestizaje, or the mixing of races and ethnicities, is the essence of the modern world and irreversible. It doesn't foretell the extermination of any culture but the continuation of it. Regardless of parentage, he argued, we are all "the children of Columbus," which ironically might mean we should stop celebrating Columbus Day the way we have been.

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Kimberly Guilfoyle's Grift Is at Least as Offensive as Hunter Biden's

2026-10-09T00:29:37.737-04:00

By Robby Soave - October 8, 2026 at 03:50PM

Kimberly Guilfoyle is the current U.S. ambassador to Greece and longtime cheerleader for President Donald Trump. She is also a former Fox News personality, long-ago ex-wife of Gov. Gavin Newsom (D–Calif.), and (more recently) ex-girlfriend of Donald Trump Jr.

And she's for sale.

The Wall Street Journal has the receipts: Guilfoyle promised Eric Deters, a quixotic political operative and fundraiser for Republicans, special access to a number of administration officials who might help him with his pet causes, which included a dispute over his taxes with the Internal Revenue Service (IRS). In exchange, she wanted $100,000 to help pay off her credit card debt.

"You could just send it here," she wrote, texting Deters a link to the American Express website. "It won't show up anywhere if you wire money to American Express that's all that will show."

Guilfoyle was keenly aware of the impropriety and repeatedly texted Deters to stop providing written evidence of their dealings and instead just call her up if need be—and to pay the money.

"What a nightmare," she wrote at one point. "You'll literally cost me my ambassadorship stop writing."

Deters did not pay off Guilfoyle's credit card debt, though she did contact IRS Commissioner Billy Long about his case. She also bragged about her access to a host of other top Trump officials: FBI Director Kash Patel, then-Attorney General Pam Bondi, and others.

"Every secretary of you know defense, transportation, treasury commerce IRS commissioner everyone gets right back to me," she told Deters in 2024.

So first, this is nakedly corrupt, and Guilfoyle should resign as ambassador or be impeached and removed. She cannot be trusted to represent U.S. interests abroad when she has proven that she is willing to peddle influence with the Trump administration in exchange for personal enrichment.

Second, it's fair to ask some questions about Trump Jr., whose relationship with Guilfoyle ended before she was nominated to be ambassador to Greece; nevertheless, in her message to the IRS commissioner, she mentions that "Don Jr. and I are very close with Eric Deters." Trump Jr. subsequently married a model, Bettina Anderson. Their wedding was secretly paid for by Umar Kremlev, a Russian oligarch. (Kremlev has since claimed that Trump Jr. paid him back.) While the oligarch maintains he had simply struck up a friendship with the couple and wanted to buy them a nice wedding gift, you would have to be very, very gullible not to suspect that his real aim was to influence the administration's policy toward Russia! (It's possible Trump anticipated this and skipped the wedding for this very reason.)

My point is this: Evidence is accumulating that suggests Guilfoyle and Trump Jr. are the kinds of people who will take money in exchange for doing favors. (Perhaps unwittingly in Trump Jr.'s case, but obviously quite willfully in Guilfoyle's.) And while they aren't together anymore, they were a power couple at the center of Trump's orbit throughout his first term.

This irks me, as someone who cares about hypocrisy, because….Remember Hunter Biden? The man who was at the center of countless congressional inquiries over allegations that he was paid by foreign interests in order to lobby his dad, President Joe Biden? Republicans turned this into a huge issue and doggedly pursued it—to be clear, with plenty of justification. I criticized Biden pardoning his son as a clear example of the president abusing his power to thwart a legitimate investigation into his doings.

But look, there's no way around this: Trump Jr. letting a Russian oligarch pay for his wedding is at least as suspicious as anything Hunter Biden did. And now his ex-girlfriend is caught red-handed engaging in precisely the kind of kickback scheme that birthed the "Biden crime family" moniker? By any reasonable standard, this is just as bad or significantly worse.

Unfortunately, I suspect many Republicans and conservative commentators will greet these revelations with the exact same stony silence that Democrats opted for when Hunter Biden was under the microscope. I hope I'm wrong though.

This Week on Free Media

I'm joined by Amber Duke to go over the latest updates in the Cornell 7 story.

Worth Watching

One more serious thing: I participated in a debate with the journalist Sohrab Ahmari, hosted by the Intercollegiate Studies Institute. The topic was "Do Oligarchs Run America?" ISI is a great organization, and Ahmari is an erudite articulator of his views, so I thought this was a particularly worthy exchange. Watch and share!

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The Democrats' Socialist Moment

2026-10-08T10:29:28.009-04:00

By Matt Welch - October 8, 2026 at 06:00AM

Ever since Bernie Sanders and Donald Trump crashed through the gates of American politics in 2015, the professional moderates of both major political parties have twisted their ears toward the dreaded sound of oncoming hooves.

For Republicans, the stampede is an ever-present threat, awaiting irritated instruction from the Oval Office. Even in his waning final-midterm season, Trump in 2026 managed to oust in primaries two sitting United States senators, further cementing his decadelong teardown and reconstruction of the GOP.

For Democrats, the mob has been more sporadic and unpredictable, as in the bolt-out-of-the-blue 2018 New York primary defeat of House Democratic Caucus Chair Joe Crowley by the then-unknown Sanders organizer Alexandria Ocasio-Cortez. AOC is one of just two sitting members of Congress to hail from the Democratic Socialists of America (DSA), a fringe caucus that few paid much heed back then. No longer.

When DSA heartthrob Zohran Mamdani topped a desultory field for New York City mayor in November 2025, it was still possible to shrug off the over-the-top reaction—NYC politics gadfly and Sex and the City veteran Cynthia Nixon calling him a "miracle of nature," Jon Stewart comparing the son of a movie producer and academic to Jackie Robinson—as a localized virus in a deep-blue city with too much media on its hands. But Mamdani this spring took things national, successfully endorsing in House of Representatives primaries three challengers (two DSA and one former DSA), including one inexperienced, nonsense-spewing candidate who toppled the chair of the Congressional Hispanic Caucus.

AOC's DSA caucus in the House could conceivably triple in size, with the NYC shoo-ins potentially joined by candidates from Philadelphia, Denver, and Detroit. But the real test of the socialists' mettle will come in the Senate.

Insurgent blocs within major political parties reveal themselves by showing when they're willing to lose. The Tea Party during its productive heyday of 2009–13 backed some pretty out-there primary candidates who went on to squander some winnable general elections, such as anti–sharia law crusader Sharron Angle, who face-planted in her attempt to unseat a vulnerable Sen. Harry Reid (D–Nev.). Trump, too, has enforced loyalty by jeopardizing seats, as he did earlier this year by bouncing longtime Sen. John Cornyn (R–Texas) with the abjectly corrupt Texas Attorney General Ken Paxton.

Nothing matters more this year for Democrats—and, arguably, the national electorate—than wresting control of the closely divided Senate, which at press time was almost universally forecast as a 50–50 toss-up. Trump's final two years in office will look a lot different should the opposition party hold the whip hand on the legislative branch's oversight and investigatory functions. And yet such is the antipathy of younger Democratic voters toward the perceived crusts of the party's establishment that the DSA and DSA-adjacent cheerleaders fought viciously to elevate three very flawed candidates to contested statewide Senate elections.

Photo: Sen. Bernie Sanders (I–Vt.), flanked by Rep. Alexandria Ocasio-Cortez (D–N.Y.), speaks in Denver on March 21, 2025; Jesse Paul/The Colorado Sun/Alamy

The first, Maine's rough-hewn Graham Platner, generated a bewildering-to-outsiders enthusiasm with his billionaire bashing and vituperations against Israel, before eventually withdrawing under a cloud of sexual assault allegations and residual stink over a Nazi tattoo. A second, Florida's Angie Nixon, won an upset victory over Trump 1.0 resistance hero Alex Vindman by stressing Medicare for All and peace in Gaza, then immediately began distancing herself from the DSA (which she had only recently joined, and which never endorsed her). Regardless of the Democratic primary, incumbent Republican Sen. Ashley Moody is considered the strong favorite.

The real center of DSA enthusiasm—and risk—is the third candidate, Michigan's Abdul El-Sayed, who won a razor-thin primary and is facing a razor-thin general election that could determine the razor-thin control of the Senate. El-Sayed, who combines some of Mamdani's telegenic charisma with the masculine anger of Platner, is not technically a DSA member (hell hath no fury like the nomenclatural hair splitting of far-left blocs!), but is nonetheless the poster child for the socialistic left in the run-up to November.

What does El-Sayed want? Medicare for All, to bury data centers in a blizzard of burdens and regulations, and above all, to sever America's tether with Israel, a country he cannot bring himself to affirm should exist. "Every definition of a Jewish state ends up in some articulation of illiberal values," he told CNN this summer. "Every single one."

That latter preoccupation has given an opening in this swing state to El-Sayed's opponent, Mike Rogers, a longtime national security and surveillance hawk–turned Trump toady. Democratic control over the Senate could come down to the perceived antisemitism accompanying the lefty table stakes of decrying Israel as a genocide-committing apartheid state.

Can a mere two handfuls of congressional DSA candidates, including some who are bound to lose, justify the round-the-clock handwringing over the "sexy socialist summer"? Perhaps, yes.

Think back now toward those nervous moderates. How will they modify their behavior so as to keep the populist wolves at bay? House Minority Leader Hakeem Jeffries (D–N.Y.) is facing widespread DSA calls to step aside after saying on Meet the Press that he does not support Medicare for All (a proposal that would be ruinously expensive while criminalizing private insurance plans, among other demerits). Pennsylvania Democratic Gov. Josh Shapiro, a leading party centrist, signed an executive order in August severely restricting data centers, just 14 months after welcoming them with open arms. I had the opportunity recently to ask Sen. Chris Murphy (D–Conn.) the seemingly easy question of whether it's a good idea for the government to run grocery stores (as it soon will in Mamdani's New York), and he stammered like a middle schooler who didn't do the reading.

Numerically minor as it may be, the DSA insurgency is jerking the much larger party leftward on taxing billionaires (including California's disastrous wealth tax ballot initiative this November), blocking data centers, drastically expanding the already unaffordable entitlement state, and condemning Israel. This remains true even if El-Sayed loses: If you are more likely to lose your job in a primary election than the general, then what matters more is the passion of the grassroots mob, even if that proves to be normie poison.

Hillary Clinton staved off the Sanders challenge in 2016, but then capitulated to his followers on swaths of the Democratic Party platform, particularly on the hoary economic policies the old socialist holds dear. Joe Biden fended off a maniacally woke 2020 Democratic field, and campaigned in the general as a moderate, but then ceded much of his own economic policy to Sen. Elizabeth Warren (D–Mass.) while engaging in whole-of-government initiatives promoting diversity, equity, and inclusion. If the young professional talent in a major political party tilts heavily in a certain direction, then even the graybeards are going to get spun, either as a conscious attempt to fend off an intramural challenge or as mere staffing math.

There is hope yet that prolonged exposure to the Castro-loving, Hamas-apologizing, economically illiterate young fools of the DSA will curdle their electoral fortunes after 10 years (and especially the last 10 months) of growth. But as long as there are out-and-proud socialists winning elections, there's plenty of work to be done by the anti-socialists of both parties.

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Brickbat: Bumper to Bumper

2026-10-08T09:29:45.429-04:00

By Charles Oliver - October 8, 2026 at 04:00AM

In Texas, the Galveston County Sheriff's Office fired Deputy Carlos Ramos after a video showed him tailgating a driver without using his emergency lights or siren, and swerving to prevent other vehicles from passing. Ramos followed the driver for an extended period, although officials have not said why. The driver was eventually pulled over but received no ticket or citation, and the sheriff's office later apologized to her. Sheriff Jimmy Fullen called the deputy's behavior "inappropriate, unacceptable, and inconsistent with the department's standards." Ramos is not facing criminal or traffic charges, but the Texas Commission on Law Enforcement will review his peace officer license.

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Open Thread

2026-10-08T06:29:36.673-04:00

By Eugene Volokh - October 8, 2026 at 03:00AM

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Justice Alito Calls Out Empty Reporting From "Court Watcher" Joan Biskupic

2026-10-08T02:29:14.014-04:00

By Josh Blackman - October 7, 2026 at 10:10PM

Recently, Justice Alito sat down with Kyle Peterson of the Wall Street Journal for an extended chat about his new book. (The transcript is here.)

There is much to commend here, but I'd like to focus in particular about how Justice Alito responded to claims by Joan Biskupic of CNN.

Kyle asks:

Well, I don't know how much coverage of the court you read, but you may not be surprised to learn that one light motif [likely an erroneous transcription of "leitmotif"] is that you are brooding figure. Um here's a a passage from a book by Joan Biskupic of CNN: you wear a heavy cloak of grievance as if perpetually wronged, destined to be misunderstood.

Biskupic has made similar comments in the past. In December 2025, she published a column titled "Samuel Alito keeps getting his way. So why does he seem so unhappy?" Without any actual evidence beyond staring at the Justice in Court, Biskupic wrote:

Alito's aggravation is regularly on display in the courtroom, too. . . .

In the courtroom, even the little things can visibly irk Alito. He often grimaces and rolls his eyes. . . .

Other justices laughed. They appear accustomed to his unguarded irritability.

At the time, I remarked how empty this commentary was:

The media does not fairly cover the conservative Supreme Court justices. But it is not enough to criticize their written opinions. Rather, pundits feel compelled to opine on how the Justices feel. Case in point is a recent headline from Joan Biskupic, titled "Samuel Alito keeps getting his way. So why does he seem so unhappy?" Does Biskupic have any evidence that Alito is unhappy? Did she talk to the Justice or his clerks? No, Biskupic apparently no longer has access to that sort of actual information. Instead, she based her conclusions on the Justice's facial expression on the bench.

Now, Justice Alito has fired back:

I think that's very unfair, and it is part of a process of caricaturing the justices with whom the people who are writing these things disagree. Nothing similar is written about some of my colleagues who have issued blistering dissents, blistering dissenting statements from the bench, made what can only be described as very angry comments during oral argument. None of that is written about any of them, but this is written about me. Now, what do court watchers, so to speak, see of me? They see me at oral argument, and that's basically it. Oral argument to me is a serious business. It's supposed to help us make good decisions. And so I challenged the lawyers. I argued a lot of cases. I expected to be challenged. I actually welcomed it because I thought that I could, by responding to the challenges, I could win over a justice or a judge who came into the argument perhaps disposed to rule against me. But I don't treat oral argument like a moot court. I don't treat it like show. I don't play to the audience. I don't try to get laughs. I don't try to show how smart I am. It's pretty businesslike, and perhaps that's what they're referring to.

Good for Alito. Watch this hour long interview, and others. You will not see some sort of brooding, grumpy old man. Alito is charming, funny, and engaging. He just doesn't waste his time talking to elites who hate him.

Biskupic will never criticize the demeanor of Justice Ginsburg on the bench. Lord help us if someone writes that Justice Sotomayor looks "angry" or Justice Jackson looks "confused." Only the conservative Justices get this sort of treatment.

The fact is that Joan Biskupic long ago stopped gaining useful information about the Court. Other Supreme Court reporters simply write about the questions and answers during oral argument. They perform a useful subject. But Joan wants to convey the impression that she still has useful things to say, so she reports on body language. I've seen her at work in the Court. She stares intently at the bench and takes careful notes. I think it's best to just skip over her work.

On a related note, Justice Alito commented to NPR about Nina Totenberg's failed report that he was retiring.

In the privacy of his chambers, how did Alito react to the inaccurate story, quickly retracted by National Public Radio?

"I was amused and puzzled," Alito told USA TODAY in answers to written questions. "I wondered what had led to the erroneous report. And when the error was corrected, I wondered how many people were crest-fallen."

Who was sad when the story was corrected? I suspect everyone on the left let out a high sigh of relief when NPR retracted, as the 76-year old would (likely) stay on the bench. Remember, Totenberg successfully spiked the nomination of Doug Ginsburg, nearly spiked the nomination of Clarence Thomas, and failed miserably in trying to spike the nomination of Neil Gorsuch. Their goal is to keep new conservative Justices off the bench.

Speaking of which, Jodi Kantor has come up pretty dry over the past year. She published some memos from ten years ago, which seems to be a fluke that some law clerk held onto things for that long. Her frolic and detour to the Chief's summer home was pretty pathetic. Longtime readers may remember that I initially called for the Chief to resign back in 2020 after the torrent of leaks--not in response to any particular decision. But it seems that Roberts has locked things down. Maybe the NDAs are working? Maybe the liberal justices realize that leaks can get their colleagues assassinated? (Although Justice Alito insinuated that there was no urgency in the two months after the Dobbs opinion leaked.) Whatever happened, it is working. I think I can rescind my call on the Chief to step down.

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Open Thread

2026-10-07T11:29:34.718-04:00

By Eugene Volokh - October 7, 2026 at 03:00AM

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Justice Alito Gives a Fuller Explanation of His Suncor Recusal

2026-10-07T03:29:41.578-04:00

By Jonathan H. Adler - October 6, 2026 at 11:17PM

The latest edition of the Wall Street Journal's Potomac Watch podcast is an interview with Justice Samuel Alito (who, if you have not noticed, has a new book to promote).

There are quite a few interesting tidbits in the interview, and it covers some ground not included in Jan Crawford's CBS News interview (and vice versa).

One part of the interview of particular interest to me was Justice Alito's discussion of how he came to recuse in Suncor Energy v. Boulder County. It seems to suggest that the claims made by the petitioners (and their allies) about the potentially catastrophic effects on the oil and gas industry of an adverse ruling in Suncor may have convinced Justice Alito that he needed to recuse, even though he does not own stock in any of the companies that are part of the case. I think such claims are overstated, but they have resulted there being one less justice sitting who is inclined toward preemption arguments of the sort in play here.

From the YouTube transcript (cleaned up only a wee bit):

Well, I I don't think it's something that should be done routinely, and I could go into that, but I'll I'll skip over that. But there are instances where I think it's appropriate and wise for a justice to explainwhy the justice is not recusing in a case and I have done that on a number of prior occasions.

Determining whether to recuse is a very serious responsibility. We have an obligation to sit unless we are disqualified because unlike a court of appeals where the recusal of a judge doesn't change the number of jurists who were sitting on the matter, here it does and it's unfortunate . . .

Now why did I do it in the Suncor case? There are two provisions of our code of conduct--which I support and actually helped to draft--that apply in the situation where the recusal question involves a justice's ownership of stock. The first question that has to be asked is does the justice own or the justice's spouse own stock in a party to the case? Does the justice have an interest in the outcome of this particular case? And the answer to that question in the Suncor case was no. We do not own any stock in any party or affiliate of any party in the case.

Usually that's the end of the matter in cases involving stock ownership. However, there is a second question and that is whether the the justice's financial interest might be
substantially affected by the outcome of the case. Usually when it is, as I said, when it involves the ownership of stock, that's a pretty easy question to say to answer no because it's very very rare for one of our decisions to have an effect on the price of publicly traded stock. And that's why I did not recuse when we decided to take the case.

However, as the date of the argument approaches and I immersed myself in the arguments that were were being made on both sides, I thought through the question again. The question is what would a reasonable person aware of all the relevant circumstances think? And ultimately I came to the conclusion that a reasonable person
aware of the fact that my wife and I have a substantial investment in some companies in the oil and gas field.

And this is a case in which the the petitioner and the petitioners' amici are arguing that a decision against them would start a snowball rolling down a hill which could ultimately lead to devastating consequences for the oil and gas industry. That under those circumstances, the particular circumstances here, the arguments that were being made, I should recuse. I did it reluctantly, but I thought that was what I ought to do under those particular circumstances.

One consequence of Justice Alito's recusal is that the Court could split 4-4 on one more more of the issues in the case. If so, the petitioners could well come to regret Alito's recusal. Note further that insofar as Justice Alito concluded he needed to recuse in this case, the same rationale would apply in any subsequent case raising the same issues, so long as the Alito stock holdings remain unchanged. So a 4-4 split here could mean the Court is split 4-4 on these issues for the foreseeable future.

For what it's worth, the fact that a 4-4 split would generate a stalemate that could not soon be resolved--and that climate tort litigation would continue unabated so long as the 4-4 split persists--suggests to me that at least some of those justices inclined toward finding preemption will (if faced with the prospect of a 4-4 split) seek a compromise, whereby Boulder County's suit would be narrowed, but not preempted. Of course, should either side command five votes at conference, there would be less need for such a compromise.

Video of the Alito interview is below.

For more on Suncor, here are (some of) my posts on the subject (with more to come):

Climate Change Goes Back to the Supreme Court -- Colorado Edition, Feb. 23, 2026.
Previewing Suncor Energy v. Boulder County, Mar. 6, 2026.
Amicus Brief in Suncor Energy v. County Commissioners of Boulder County, Aug. 3, 2026.
Supreme Court Term to Start Hot, Aug. 6, 2026.
As Suncor Approaches, Justice Alito Recuses, Sept. 28, 2026.
Buschbacher: Did Prof. Adler File His Amicus Brief for the Wrong Side in Suncor?, Oct. 1, 2026.
Unpacking the Suncor Oral Argument: Two Upcoming Events, Oct. 5, 2026.
A Response to Michael Buschbacher on Suncor Energy v. Boulder County, Oct. 5, 2026.

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Open Thread

2026-10-06T16:29:19.110-04:00

By Eugene Volokh - October 6, 2026 at 03:00AM

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How Should A.I. Change Legal Scholarship—and the Job of Being a Law Professor?

2026-10-06T05:29:31.428-04:00

By Orin S. Kerr - October 6, 2026 at 01:53AM

I enjoyed being on this panel with Nita Farahany of Duke Law School and Daniel Solove of the George Washington University Law School where we debated the proper role of artificial intelligence in the creation and production of legal scholarship—and, more broadly, how A.I. may change the job we have. For those interested, you can watch the panel here:

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Justice Alito on Originalism

2026-10-06T00:29:36.862-04:00

By Ilya Somin - October 5, 2026 at 10:36PM

Justice Samuel Alito (CNP/AdMedia/Sipa/Newscom)

In a recent Wall Street Journal article, based on his forthcoming book on the same subject, Supreme Court Justice Samuel Alito offers his take on constitutional originalism. But in so doing, he raises more questions than compelling answers. Nonetheless, he makes a number of interesting points, about how to do originalism generally, and about specific constitutional issues. Here, I note a few of particular interest.

There is a longstanding debate among originalists as to whether the proper original meaning courts should apply is that understood by ordinary people at the time of ratification, that understood by lawyers and other well-informed experts, or that understood by hypothetical "reasonable" readers (many advocates of the latter approach assume the "reasonable" reader is highly knowledgeable about legal doctrine and methodology). I call this the divide between "elitist" and "populist" versions of originalism. Alito clearly comes down on the populist side:

When I think about the original public meaning of constitutional provisions, I sometimes envision a scene at a colonial-era tavern. After dinner, travelers and area residents gather around the fireplace and read newspapers that discuss the Bill of Rights. They read the text of the First Amendment and see that it prohibits Congress from making any law that impairs the free exercise of religion. What would they make of that language?

How likely is it that these men had read John Locke's writing on church-state issues? Even if they had some rough awareness of his ideas, how likely is it that they would assume that Congress had incorporated those ideas in the First Amendment? Originalism looks for the original public meaning, not the meaning that the most well-read and philosophically minded men of the day might have adduced.

In taking this position Alito seems to ignore the potential downsides of the populist approach. Among other things, ordinary people may be ignorant about a variety of constitutional issues, and may have particular difficulty interpreting technical legal terms embedded in the Constitution, such as "writ of habeas corpus" or "bill of attainder." Populist approaches to original meaning are also less likely than elitist ones to offer insight on how to deal with issues unanticipated at the time of enactment, such as new technologies, and new information.

Elitist approaches have their own downsides, of course. But those who advocate one or the other should grapple with these issues. I go into the relevant tradeoffs in more detail in my 2012 law review article "Originalism and Political Ignorance" and also in my earlier blog post on this topic. My own view is that it may be best to adopt a hybrid approach, balancing elite and popular understandings. Elite understandings are preferable when it comes to terms that ordinary people are likely to recognize as technical legal phrases that require a lawyer or other expert to understand. But the issue is a difficult one, and originalists need to consider it more. Maybe Alito's book will stimulate new analysis of this crucial issue.

Alito's analysis also elides the distinction, emphasized by many originalists, between original public and original "expected applications." The former is the linguistic meaning of the words, and the latter how they are expected to apply to particular issues. Expected applications depend in part on factual understandings, distinct from the meaning of the words. As facts or our understanding of them change, the same words may have different implications for particular cases, including some that were not and could not be expected at the time of drafting and ratification.

For example, Alito assumes it is obvious that originalism rejects a constitutional right to same-sex marriage, because almost no one expected such a thing back when the Fourteenth Amendment was ratified in 1868. Thus, he doubles down on his view that Obergfell v. Hodges, the 2015 ruling striking down laws banning same-sex marriage, is wrong. But, as discussed in the amicus brief I filed in that case (together with Andrew Koppelman), there is a strong originalist case for Obergefell once you combine the original linguistic understanding of the words with new knowledge about the nature of same-sex relationships. This is particularly true if you accept (as many originalists now do) that the the Fourteenth Amendment bans most, if not all, forms of sex discrimination.

On another Fourteenth Amendment issue, Alito also reiterates his longstanding view that the Due Process Clause, not the Privileges or Immunities Clause, is the proper source of various "unenumerated" rights, including "incorporation" of the Bill of Rights against state governments:

If we simply read the text of the 14th Amendment, the Due Process Clause seems an unlikely home for substantive rights. Another provision, the Privileges or Immunities Clause, declares that no state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." But in the Slaughter- House Cases (1873), the Supreme Court reduced that clause to minor importance.

In McDonald [v. City of Chicago], prominent scholars filed a brief urging the court to jettison Due Process incorporation and revive Privileges or Immunities. During oral arguments, the attorney representing Otis McDonald latched onto this argument. He didn't get far. Justice Scalia interrupted him and said that while the Privileges or Immunities argument was "the darling of the professoriate," it was contrary to a century of case law. Scalia recommended that the attorney stick to those precedents.

Why did Scalia, a former law professor, say that? Because accepting the Privileges or Immunities argument would have opened a can of worms. Libertarians, social conservatives, progressives, socialists and others could all make a pitch for whatever rights they favored.

On this issue, Alito differs with fellow conservative originalists Clarence Thomas and Neil Gorsuch, both of whom advocate reviving Privileges or Immunities. It is also ironic that Alito rejects Privileges or Immunities revival for fear of opening up a "can of worms" that enables judges with different ideologies to "make a pitch for whatever rights they favored." After all, this is exactly the same argument Alito and other conservatives have long deployed against "substantive" due process. It's not clear why Privileges or Immunities Clause would be any worse. If anything, the fact that there's lots of original meaning evidence about what rights qualify as "privileges or immunities" might make it less subject to judicial manipulation than substantive due process is. While Alito is wary of what he calls "academic originalism," the extensive academic work on the meaning of Privileges or Immunities could help guide judicial discretion here. And, again, at the very least, it might be less subjective than the Due Process Clause approach.

Alito also emphasizes "the necessity, except in unusual circumstances, to heed precedent, since overturning it can have unsettling consequences." Despite his distaste for Obergefell, in a recent CBS interview he indicates that it likely should not be overturned because "a great deal had changed in the country as a result of Obergefell [and] [t]here was a lot of reliance in various ways on the decision in Obergefell." Alito is referring here, I think, to the hundreds of thousands of same-sex couples who have gotten married and started families in reliance on the Supreme Court's ruling.

Skeptics will note that Alito has in fact voted to overturn a number of longstanding precedents, most notably in the Dobbs case, overturning Roe v. Wade (1973), which had established a constitutional right to abortion. Alito's argument that Roe did not engender significant reliance interests strikes me as unpersuasive. Many women likely did rely on the availability of abortion as way to escape an unwanted or medically dangerous pregnancy. That doesn't necessarily prove Dobbs is wrong. But it does mean that defenders of that decision and other reversals of longstanding precedent need a better theory of how to weigh reliance interests against other considerations.

In fairness, Alito is far from alone among Supreme Court justices in failing to develop a compelling and coherent answer to this question. Other justices - both liberal and cosnervatives - have had trouble with this, as well. I have previously argued that "Stare decisis will not stop the justices from overturning a precedent they think is badly wrong and causes significant harm" - a point I believe applies to jurists across the political spectrum. Even significant reliance interests might be overcome in a situation where the maintenance of a wrong precedent itself causes grave harm. Jurists of different stripes are willing to reverse precedents that are "egregiously wrong and deeply damaging," as Alito put it in Dobbs. The big disagreement is over which cases fall into that category.

That is one reason why Brown v. Board of Education and later decisions striking down segregation laws were justified, despite the fact that they narrowed or overturned longstanding precedents that many state and local governments had relied on heavily. Segregation laws caused such great harm, that even substantial reliance interests had to be subordinated to the need to end it. Similarly, if you believe - as many pro-lifers do - that abortion is the moral equivalent of murder, Dobbs might be justifiable even if Roe did create substantial reliance interests. But notice that this approach to reliance interests requires courts to engage in a balancing of interests that many might argue is not within judicial competence.

There is more to be said about Alito's Wall Street Journal article, and CBS interview. And, I expect, many of these issues are covered in greater detail in his book. But, for now, I will stop here. I may have more to say after I have had a chance to read the book.

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Open Thread

2026-10-05T07:29:36.681-04:00

By Eugene Volokh - October 5, 2026 at 03:00AM

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Federal Circuit Again Excludes Judge Newman From Group Photo

2026-10-05T04:29:22.766-04:00

By Josh Blackman - October 4, 2026 at 09:59PM

Enough about the Fifth Circuit for now. Let's check in with the Federal Circuit, where Judge Pauline Newman remains in a state of purgatory. It was clear that Chief Judge Kimberly Moore excluded Newman from a bizarre AI cartoon. Now she is excluded from a real-life group photo on the occasion of Judge Clevenger's retirement.

Life tenure lasts forever, unless it doesn't.

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The Millennial Internet Is Dead, and Politicians Killed It.

2026-10-04T10:29:28.229-04:00

By Elizabeth Nolan Brown - October 4, 2026 at 06:00AM

It's 2019, and Rep. Alexandria Ocasio-Cortez (D–N.Y.) is in a video. It shows her dancing on a rooftop with friends. Everyone on Twitter has an opinion about it, after an anonymous account suggested in a widely circulated post that it showed what a "clueless nitwit" she was. AOC is just starting her first term in Congress, Twitter is a hotbed of histrionics, and this video may actually be a secret time capsule, harkening back to the carefree early days of social media and the Millennial Internet.

As the video went around, few people stopped to ask why AOC was dancing on this rooftop. But I knew as soon as I saw it. She was copying my friends.

In March 2009, someone took old clips of Brat Pack actors dancing, set them to a song by the art-punk band Phoenix called "Lisztomania," and posted the video on the then-4-year-old platform YouTube. A group of friends in Brooklyn, my friends, decided to recreate the viral video on a graffiti-adorned Williamsburg waterfront rooftop, dancing the parts of Molly Ringwald and associated brats themselves and posting it with the title "brooklyn brat pack mashup."

It soon became a viral meme. People all over the country, then all over the world, started creating and posting their own Brat Pack mashups, filmed from rooftops and other outdoor spaces in Houston, San Francisco, Scranton, Madrid, Moscow, Nairobi, Taipei, Amsterdam, and many more cities. Most were amateur efforts, filmed by friends for the fun of it. My friends' video eventually topped 550,000 views, but most had far fewer views.

AOC's dancing video was part of the craze. Although it went viral in 2019, it was actually shot in 2010 when she was a student at Boston University. It was a silly online lark. Few people noticed it at the time. Only after she became a member of Congress, and the video became culture war fodder, did it hit a million views.

Photo: Rep. Alexandria Ocasio-Cortez (D–N.Y.) dances in a 2010 video produced at Boston University while she was an undergraduate; YouTube

When AOC, my friends, and everyone else made these videos, no one was monetizing this content. The point was simply participation. The goal was to have fun. We were young, and so was social media.

A lot of early social media was like that. Cheesy. Collaborative. Pointless. People posted pictures of themselves "planking"—lying face down in weird locales, like the kitchen counter—just to be a part of a trend. They dumped ice water on their own heads and posted it, allegedly for Lou Gehrig's disease awareness but mostly just because it was the thing to do. They posted old photos on #ThrowbackThursday, lists of accounts they liked on #FollowFriday, and the results of whatever BuzzFeed personality quiz was new that week.

There were wedding, party, and conference hashtags, so everyone at an event, or following along online, could catch all the pictures and updates. If you ran into friends, made new friends, or just saw someone you vaguely knew at an event, you absolutely had to take and post a selfie. Bloggers dove into this new medium with gusto, expending countless words responding directly to each other and dissecting each other's posts as if in some massive virtual writers workshop.

Politicians either ignored or celebrated this new development. Some campaigns, most notably President Barack Obama's, seemed excited about using it to connect with young audiences who weren't reading mailers or watching cable news.

This was the early Millennial Internet. It was driven by new technology (smartphones, social media), a new generational ethos (post everything), optimism, earnestness, venture capital, connection, and possibility. It was weird and beautiful, but also brief.

By the mid-2010s, things had shifted. What would come to be known as "cancel culture" started setting in. We started talking about Twitter's "main character of the day." Social justice politics and MAGA rhetoric began drowning out mashup videos, funny animal memes, and bar bathroom selfies. Social media updates became "content" instead of just "my friends' posts."

But remnants of the earlier internet remained. Even in the late 2010s, it still felt right to have a wedding hashtag and to post #Caturday pics.

Happy #caturday morning from Gem pic.twitter.com/lVMmtR13oI

— Elizabeth Nolan Brown (@ENBrown) June 1, 2019

This was the late Millennial Internet. We were more serious, and angrier. Politics intruded, as lawmakers called tech CEOs in for hearings.

Yet social media still felt authentic. It was still a place for community and collaboration. Yes, professional influencers existed, but posting was still largely by and for amateurs.

The Millennial Internet was friendly, personal, and above all, participatory. People talked to each other. It was sometimes performative, but very often real—an ongoing conversation among friends—and a place where genuine connections could be made.

The Millennial Internet is now over. Social media as it once existed is dead. What remains isn't very social. It echoes traditional media and entertainment culture more than the freewheeling early social media years. It's become more like a broadcasting platform, a one-way, top-down system rather than a decentralized free-for-all. There are some upsides to this, of course. But we're losing a lot of internet vitality, usefulness, creativity, and fun in the process.

Much of the blame for these changes has been pinned on corporate decisions involving algorithms, advertising, and content moderation. There are people who blame the COVID-19 pandemic, people who blame influencers, people who blame Elon Musk, or TikTok, or MAGA, or woke.

There's at least some surface truth to these charges. But we can't overlook the role that politics has played in bringing about social media's demise. The real story of the Millennial Internet's decline is one of government meddling, bullying, and soft, or even overt, censorship. These same factors now threaten the remnants of social media's golden era.

'Decline, Fragmentation, and Enduring Polarization'

One need only open the X app or visit facebook.com to see that social media isn't literally dead yet. Even on the most staid social media platforms, people are still flirting and fighting, sharing pet photos, and sounding off without reading the articles.

But the data paint a picture of decline. An increasing number of people, particularly in younger (18- to 29-years-old) and older (65+) cohorts, use no social media at all, as the University of Amsterdam's Petter Törnberg showed in his March 2026 paper "Shifts in U.S. Social Media Use, 2020–2024: Decline, Fragmentation, and Enduring Polarization."

Signs of social media's stagnation and decline are everywhere. In Pew Research Center surveys of American adults, the share who have ever used Facebook is up just three percentage points from 2016 through 2025 (from 68 percent to 71 percent). Twitter/X use peaked at 24 percent in 2018 and has decreased since. Snapchat use was also down from its 2018 peak.

Pew Research Center

Some evidence suggests the number of active users on many platforms is dwindling too. Törnberg's research found visits and posts on Facebook and Twitter/X went down almost 50 percent between 2020 and 2024. A June 2026 survey from the data removal service Incogni found more than half of respondents saying they post less these days than they did five years earlier.

Even when people are logging in, their experience is fundamentally different from what it was a decade ago. An analysis of online habits commissioned in 2025 by the Financial Times found fewer people using social media for the sorts of social activities—keeping in touch with friends, meeting new people, creative expression—that once were the main draw of these platforms. A 2025 Morning Consult poll found users much more likely to use social media for entertainment (57 percent) once a day than for posting (33 percent). Among Gen Z respondents, it was 74 percent vs. 31 percent.

The Millennial Internet, with its communal, conversational bent, may not be literally dead. But it is dying. And it's not entirely due to natural causes.

'An Aggressive Regulatory Effort'

Social media's decline is "the result of an aggressive regulatory effort by the government to censor speech online," says tech journalist Taylor Lorenz, author of Extremely Online: The Untold Story of Fame, Influence, and Power on the Internet and creator of the Substack newsletter User Mag.

"It was very, very hard before the internet and social media specifically to reach people at scale," Lorenz says, but social media "gave the public the ability to speak freely and connect freely. And very quickly, governments and people in power realized that that's a liability for their ability to maintain control."

Tech CEOs didn't simply wake up one day and decide they needed to police content more aggressively. It came after years of politicians and bureaucrats insisting on it.

Politicians began to change the way they saw social media in 2016, when Donald Trump was first elected president. Many in and around politics, especially Democrats and their supporters, including many in the media, couldn't understand that outcome. So they blamed social media: Russian bots, misinformation, tech companies. They wanted social platforms to stop the spread of erroneous or polarizing content. Social media companies, most notably Facebook, responded by downgrading political news and links to outside content across the board. Into the void came "influencers" accountable only to engagement metrics.

The political class's demands for greater oversight of speech had backfired. Social platforms became no less volatile or polarizing, but they were less oriented around sharing and commenting on articles and other content coming from traditional media.

With each new social or political problem that puzzled pundits and worried politicians, a consensus emerged that it was either Big Tech's fault or Big Tech's responsibility. Leaders of both parties began demanding crackdowns on what people could say online, mistaking suppression of speech for suppression of the social issues the speech alluded to.

Sometimes their demands were direct, as with laws like 2018's Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). Ostensibly concerned with stopping prostitution ads and sex trafficking, FOSTA incentivized websites to suppress all sorts of sexual content. In its wake, social platforms started cracking down on not just sex work ads but a variety of content related to sex work or just sex generally.

FOSTA—combined with government persecution of sex-worker-friendly websites such as Backpage and politicians' constant hype about websites allegedly facilitating "sexual exploitation"—all but assured that skittish social media companies would shift from spaces where people could have frank conversations about sex to spaces where adults now write sex as s*x or seggs to avoid running afoul of "safety" policies.

In what's come to be known as "algospeak," people have had to find creative ways to talk about certain subjects without alarming the robot moderators that police social media. Porn is corn. Suicide is unaliving.

Algospeak reflects how government pressure works in indirect ways, too. There's no federal law requiring platforms to crack down on suicide-related content. Yet lawmakers have repeatedly hauled tech CEOs into hearings and demanded they answer for teen suicides. They've blamed Big Tech platforms for the plights of teens who died doing risky stunts, developed eating disorders, or otherwise engaged in harmful behavior while simultaneously spending ample time online.

Politicians also blamed social media for mass shootings and political violence, under the theory that perpetrators were radicalized by bigoted rhetoric or false stories, and demanded that platforms crack down on "hate speech" and "misinformation." Sometimes—as with the Biden administration during the COVID-19 pandemic or the Trump administration during anti-ICE protests—they have directly contacted tech executives about content that authorities deemed dangerous in some way.

Encouraging platforms to suppress "hate," pro–eating disorder content, or fringe COVID theories might not sound so bad. But content moderation at scale is imprecise and difficult, and filters often catch people merely discussing sensitive topics, including discussing topics in ways that could be helpful to struggling young people.

It's also hard for moderators, algorithmic or human, to detect sarcasm or hyperbole, leading to bans for people taken too literally. Decisions about what counts as hate, misinformation, or risky rhetoric are inherently political, forcing tech platforms to take sides in hot-button debates. As a result, we've seen accounts punished for being on the wrong side of issues that are evolving, such as the COVID-19 lab leak theory, or rooted in values more than in objective right and wrong, as with gender debates.

Public pressure by politicians also worked at a more subtle and insidious level. It primed us to think that social media companies should be arbiters of truth and distortion, good and bad, permissible and impermissible, instead of just town squares where the smartest people you know might rub elbows with kooks, zealots, and some guy handing out flyers about satanic daycares.

Social platforms didn't have to comply with all of the government's censorship guidelines. But at the same time the authorities were making these helpful "suggestions," they were threatening to use antitrust laws to break up Big Tech companies and even brought antitrust actions against some of them.

They were also repeatedly threatening social platforms with the revocation of Section 230 speech protections. Section 230 is part of the 1996 Telecommunications Act that shields computer services from some legal liability for user speech. Without it, social media platforms basically could not exist. But since Section 230 means tech companies can't be formally blamed in court for many things people say online, censorial politicians tend to dislike it. Elected officials on both the left and the right have suggested revoking or revising Section 230, making protections contingent on creating an ideologically "neutral" space, or saying it doesn't apply to user speech about guns, drugs, or other sensitive topics.

It's no wonder platforms started bluntly suppressing whatever politicians got nervous about. And the more content these platforms suppressed, the more the public expected them to stop any undesirable speech.

'Kids Are Different Because We Closed the Schools'

In the trajectory of the Millennial Internet, the COVID-19 pandemic was a tipping point. With social distancing policies in effect and with schools and offices closed, social media platforms became the locus of social lives and cultural battles. Soon, people began to blame the platforms for social ills that might more plausibly be blamed on the unique circumstances of the pandemic: student test scores falling, people's alone time increasing, general mental health declining.

"Kids are different because we closed the schools and they weren't socialized. It's not a mystery," says internet culture writer Katherine Dee, who initially came to prominence on Twitter as @default_friend and now pens the default.blog newsletter on Substack. "It's not like generations suddenly became dumber or less social out of nowhere because their parents have an iPhone."

Yet explanations involving iPhones and social media have been stickier, no matter how flawed their premises. Primed by lockdown-era resentment of a screen-heavy life and by years of politicians' negative rhetoric about social media companies, many seem willing to blame social media for troubles ranging from teen suicide rates to families having fewer kids.

Signs of this turn against phones and social media are everywhere. Phone-free bars have emerged. Some Chick-fil-A locations have introduced a "phone coop challenge" in which diners who keep their phones in a box while they eat can get free ice cream. "Luddite clubs" are popping up on high school and college campuses, and activists in New York City put on a weeklong "Summer of Ludd" festival.

Tech discontent isn't just a niche pastime either, as evidenced by Jonathan Haidt's book The Anxious Generation, which blames technology for a range of teen woes and became a bestseller (and the subject of countless parent book clubs).

Blaming Tech for Teen Troubles

There's little concrete evidence to back up the idea that social media is triggering mass misery. Rather, studies that show small effects—such as a statistically insignificant difference in anxiety and depression levels between people who deactivated Instagram for six weeks and those who did not, or a slight decline in minutes spent reading books over the past few decades—are hyped as evidence that social media is poison, while studies linking it to mixed or positive outcomes and traits tend to be ignored. Studies where correlation but not causation is established are heralded as proof of social media's dangers, as if no one can imagine that heightened screen time among teens suffering from anxiety, depression, or social isolation might be a symptom of that distress, not a cause.

This lack of evidence hasn't stopped conventional wisdom from coalescing around the idea that social media is making all of us, and especially teenagers, quite miserable.

Politicians and mainstream media have so "villainized" and "stigmatized" social media that people feel ashamed of the habit, says Lorenz. She suggests that may help explain why people are cutting back.

At the very least, data back up the idea that inundation with messages about social media "brain rot" may be influencing public opinion. In one 2025 Pew Research Center survey of teenagers, only 14 percent said social media is mostly negative for them personally, while 48 percent said it's mostly negative for their peers. The share deeming it negative for others was up 16 percentage points since 2022, coinciding with a period of intense political and cultural attention to how social media might be harming teens. Maybe "teens are being told social media harms people their age, so they're more likely to report that it does, even if they don't see it in themselves, personally," wrote psychologist Jacqueline Nesi in her Techno Sapiens Substack newsletter.

Pew Research Center

Politicians have capitalized on this free-floating dissatisfaction with social media to start pushing big changes.

The most popular of these is age verification. Plan particulars vary. Some would ban minors from social media entirely; some would let 16- and 17-year-olds join but ban younger teens and children; some would allow minors with parental consent or special restrictions on their accounts. But all of these schemes would require social platforms to assess the age of every user, which would mean identifying adults and minors alike through means like collecting driver's licenses or doing facial scans.

Age-verification laws have already passed in some U.S. states and in some countries abroad. Australia banned younger teenagers from social media in 2025, and France followed suit in 2026 (though that move has been struck down by the country's high court). The U.K. is planning to do it too, and the European Union is considering it.

In the U.S., at least 11 states have passed laws that ban some minors from social media or require parental consent. Federal judges have blocked some of these, but others have suggested they might pass constitutional muster. One such ruling, from a federal appeals court in Louisiana, explicitly cited the fact that the U.S. Supreme Court OK'd a Texas law requiring age verification by porn websites, as if that now justifies any and all age-verification plans.

Some of these schemes would quite literally mean the end of social media for teenagers. They would also end the anonymity that has been a central feature of most social media platforms since the beginning. This could chill speech that's controversial or politically dangerous—or dissuade some people from posting entirely.

In a Carnegie Mellon University study in which participants were asked to watch movie clips and then take a short survey for the chance to win prizes, only 22 percent to 28 percent of people continued when asked to age verify with government-issued identification.

Plans to ban minors from social media and regulate it in other ways have bipartisan support. As part of Project 2029, a group of Democrats proposed a nationwide ban for those under age 16. A bill by Sen. Ruben Gallego (D–Ariz.) would ban many minors from social media unless they got parental consent to be there. Other members of Congress have proposed requiring ID checks by app stores, by AI companies, and even at the device level. Adam Candeub, Trump's nominee to head the Justice Department's antitrust division, has advocated moving beyond "traditional economic thinking" and factoring in things like social media's potential to make us "less happy" when deciding when to use state power to break companies up.

The Kids Online Safety Act (KOSA), a bill under consideration in the Senate, has earned widespread support from both Republicans and Democrats. It would impose on social platforms a "duty of care" to somehow protect minors from all manner of harms. (Related legislation that passed the House of Representatives, the KIDS Act, did not include this requirement.) But it would have a chilling effect on speech. KOSA "creates a 'papers please' social media regime where every single social media user will be forced to identify themselves before speaking on social media, undermining their constitutional right to read and speak anonymously, and enabling government retaliation against disfavored ideas and expression," said Ari Cohn, free speech counsel with the advocacy group TechFreedom, in a public statement.

For decades, attempts to punish social platforms on speech-based grounds have failed, thanks to Section 230 and the First Amendment. But since 2022, we've seen more suits brought on "unfair trade practices" or "negligent product design" grounds. These plaintiffs argue that it's not social media content they object to; it's their "endless scroll" setup, or their algorithmic recommendations, or platforms' failure to warn people about their allegedly damaging or "addictive" nature. They gloss over why anyone would be susceptible to excessive use or other negative reactions if it weren't for the content.

This line of attack has already had some success in court, most notably in New Mexico, where in August a state court ordered Meta, Facebook's parent company, to pay $567 million for violations of the state's Unfair Practices Act. Meta platforms "significantly interfere with public safety, public peace, and public comfort," wrote state Judge Bryan Biedscheid. (In an earlier phase of the same case, a jury fined Meta $375 million.)

Meta and other social media companies also face a series of "social media addiction" cases in federal civil court, brought by thousands of plaintiffs, including hundreds of U.S. school districts and 29 states. In the first of these to be decided, a jury concluded that Meta and Google owe millions in damages to a now-20-year-old who blames YouTube and other platforms for her psychological issues. In August, Meta settled with the 29 states, admitting to no wrongdoing but agreeing to pay $16.68 billion and make major changes for minors' accounts, including imposing a two-hour-per-day time limit.

Results like these could open social platforms to endless lawsuits, brought by anyone who blames social media for their problems or any state lawyer who can pin some teen's troubles on short-form video. They also make measures like identity verification and even tighter content crackdowns likely.

Social media might seem stodgy and surveillance-friendly now. But it's poised to become worse.

'Just Passively Scrolling'

People still communicate electronically, but they're increasingly using semiprivate forums, such as Discord, WhatsApp, and Signal, rather than the big, public platforms. It's a return of sorts to the days when chat rooms and message boards ruled the web.

Some have migrated to newer, more niche-oriented public platforms, such as Bluesky or Truth Social, but only in modest numbers. Even Threads, Meta's Twitteresque platform launched in 2023, has humble reach, with just 8 percent of people surveyed by Pew Research Center last year saying they ever use it.

On old Twitter, "the basic idea [was] that politics should be like everyone in the whole world screaming into the same open air insane asylum at the same time," says Ben Smith, who served as editor in chief of BuzzFeed in its heyday and has since founded the news website Semafor and authored the book Traffic: Genius, Rivalry, and Delusion in the Billion-Dollar Race To Go Viral. That idea, he says, was "an unusual historical thing" and "probably isn't coming back."

Maybe that has its upsides. But at least the days of peak Twitter and Facebook felt manageable—you knew where to find people and where to reach people. Participating was easy: You just put up some photos or strung together a few lines of text.

TikTok has been one of the few growth spots in social platform use this decade. But it's a much more passive medium. "While in principle anyone can upload a quick TikTok, that's still a much higher bar than firing off a reply tweet," says tech writer Julian Sanchez, who writes the Non-Content Substack newsletter. Among adult TikTok users, only 52 percent have ever posted a video, according to Pew.

TikTok is "an experience almost more like Netflix than it is like Twitter," says Smith. "I just don't think TikTok is social media."

Yet Facebook, Instagram, and YouTube have strived to emulate it, introducing brief, vertically oriented videos, referred to on YouTube as "Shorts" and on the Meta platforms as "Reels," which feature prominently on the user interface. Even for users who might like to avoid them, they're impossible to avoid, with strangers' Reels now forced into feed space where photos of friends' artisanal lattes, or calls to participate in the cause or meme of the day, may once have appeared.

These days, your average social media user "is just passively scrolling," says Dee. She doesn't see that as necessarily a bad thing, likening it to the way people once put on the TV for background noise. But she thinks the Millennial Internet is "absolutely" over, and she thinks social media—at least "the way it existed when I was in my early 20s"—is over too.

Even the idea of building a social media following—or tuning into social platforms to follow a select group of people and institutions you care about—may be growing obsolete, as platforms increasingly fill users' feeds not with content from those they follow but with whatever the algorithmic gatekeepers have deemed most relevant.

'Don't Be Weird About This'

It's 2026, and AOC is in a video. It shows her injecting herself with fertility drugs in order to freeze her eggs.

By posting this, AOC has made herself the main character in social media's hottest culture war of the moment: the one about when, whether, and how women should have kids. She also may have given us a secret decoder ring, illuminating just how far from the early days of social media we have come.

AOC's TikTok-like vertical video was posted not on her Instagram's "main grid," permanently visible to all, but as a more ephemeral "story," where comments are typically private messages to the poster. It's part of a long series of videos where AOC talks directly to the camera—social media as soapbox, or reality TV, rather than an interactive and public affair.

As AOC opens various medical accoutrements in her egg-freezing video, she jokes, "Maybe I should start an ASMR egg-freezing channel." (ASMR is, in essence, sounds that make your head tingly.) "I think they banned them on YouTube," she adds with a laugh.

That's not exactly right. ASMR in general is still allowed. But YouTube did ban several popular ASMR content creators this year for supposedly violating its "sex and nudity policy" by linking to sexually oriented content on an external site. "It's our job to make sure that YouTube is a safe place for all," the platform's email to banned ASMR creators reportedly said.

After years of government campaigning, social media is now brimming with "safety," which often means restrictions on speech. But it isn't social anymore. It isn't growing. It isn't cohesive. And it isn't cool. "In my age demographic…it's kind of cringe to be constantly online," says 26-year-old New York Post columnist and Cato Institute fellow Rikki Schlott. Her peers have a different etiquette around social media than my cohort did in our 20s. Schlott says when hanging out, "Without fail, everyone has their phone face down at a dinner table and it doesn't come up unless you say, like, 'Oh, I have to check this,' specifically."

Many millennials are now disillusioned too. "Social media got fundamentally less interesting," wrote Kate Lindsay of the Embedded Substack newsletter in a January post titled "Social media dies in 2026." Rather than "the advent of social media [being] a line on a graph that only goes up," we might actually remember the extremely online era "not as a beginning, but a blip."

This might be somewhat natural: Technology is dynamic, young people age, generational tastes shift. But the internet also changed, in part because of politicians like AOC.

"Don't be weird about this, even though I know you will be," Ocasio-Cortez says in her fertility meds video, pointing at the camera. It's a challenge we might give to politicians addressing social media, too.

AOC, reportedly considering running for the 2028 Democratic presidential nomination, is fluent in social media. Like Trump, she has mastered using it for political gain while supporting policies that further government influence and control over it. AOC called social media a "public health risk to everybody" and has said repeatedly that "we need to break up" tech companies. Trump has called for repealing Section 230, tried to ban TikTok (though he later reversed course on that), and implemented policies to scrutinize the social media accounts of visa applicants. These are exactly the kinds of moves and rhetoric that, multiplied across state and federal governments, have slowly poisoned the social web and ultimately sent it into its current death spiral.

The Millennial Internet was imperfect. It was earnest, silly, weird, amateurish, and sometimes overtaken by mania and mob rule. But it was a virtual place, and a time, where the grasp of traditional gatekeepers slipped. For a while, people could connect, comment, and create without excessive censorship or supervision. We might remember its flaws and the ways it evolved into a more conventional, top-down broadcast medium. But we might also remember it as an era of unprecedented—and lost—freedom.

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Open Thread

2026-10-04T05:29:29.225-04:00

By Eugene Volokh - October 4, 2026 at 03:00AM

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Comparing the Credentials Of Three Decades of Fifth Circuit Nominees

2026-10-04T02:29:13.601-04:00

By Josh Blackman - October 4, 2026 at 12:33AM

I think we should just be candid about Todd Butler's nomination to the Fifth Circuit. He has done nothing to prove his conservatism, despite what his conservative friends have said. Being a member of multiple bar associations is almost definitive proof that he is not conservative. I just did a quick scan through the Capital Area Bar Association from Jackson and found numerous DEI programs--yes, even in Mississippi. Butler had nearly two decades to perform pro bono work for a conservative public interest firm, but he didn't. He could have served in government, but he didn't. Again, we should just be candid. He was selected because the White House accepted some sort of political deal involving Judge Southwick and Senator Wicker.

Forget judicial philosophy for a minute. How does Todd Butler's record compare with that of the other members of the Fifth Circuit? I'll put the bottom line up front: over the past three decades, every nominee to the Fifth Circuit had either government service or extensive experience doing public interest litigation. Lawyers in private practice often inquire about federal judicial appointments, and they are frequently told to get some government experience first. This is something people understand, but the rule does seem to have an exception when the price is right.

Both of the Biden nominees, Judges Douglas and Carrillo Ramirez, previously served as federal magistrate judges.

The Trump appointees had a wide range of government service. Judge Willett served on the Texas Supreme Court, in the Texas Attorney General's Office, and in the Bush Administration. Judge Ho served as Texas Solicitor General and served as counsel to Senator Cornyn. Judge Duncan worked in the Louisiana Attorney General's Office, the Texas Solicitor General's Office and was a litigator at the Becket Fund. Judge Engelhardt served on the federal district court. Judge Oldham worked in the Texas Attorney General's Office and was counselor to the Governor. Judge Corey Wilson served in the Mississippi Court of Appeals and in the Mississippi House of Representatives. The newest nominee, Judge St. John had a (brief) stint on the federal district court, but spent nearly a decade working for the Hamilton-Lincoln Law Institute and before that the Center for Class Action Fairness at the Competitive Enterprise Institute. (St. John was one of my lawyers in the almost-landmark case of Blackman v. Gascho.)

Now, the Obama nominees. Judge Graves served on the Mississippi Supreme Court and Judge Higginson was an Assistant United States Attorney and later served as chief of appeals in EDLA.

The George W. Bush nominees had extensive public service. Chief Judge Elrod served as a trial court judge in Houston. Judge Southwick was a district court judge, before that served on the Mississippi Court of Appeals, and was a JAG. Judge Richman (formerly Owen) served on the Texas Supreme Court. Judge Clement was a federal district court judge. Judge Haynes was a trial court judge in Dallas.

Same for the Clinton nominees. Judge Dennis served on the Louisiana Court of Appeals and later the Louisiana Supreme Court. Judge Stewart also served on the Louisiana Court of Appeals.

By any objective measure, Butler does not fit the mold of the prior Trump appointees in term of judicial philosophy. He certainly does not fit the mold of three decades of Fifth Circuit nominees across five presidencies. They all had prior government service or public interest experience. (And no, clerking does not count.)

Let's just be candid about what we have here: a sordid Senate deal to convey a hereditary sinecure.

I understand Butler's confirmation hearing is scheduled for after the midterms, assuming the nomination is not withdrawn beforehand.

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Today in Supreme Court History: October 3, 1990

2026-10-03T10:29:07.234-04:00

By Josh Blackman - October 3, 2026 at 07:00AM

10/3/1990: Justice David Souter takes the oath.

Justice David Souter

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Open Thread

2026-10-03T08:29:24.738-04:00

By Eugene Volokh - October 3, 2026 at 03:00AM

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Brickbat: Rain, Snow, or Laziness

2026-10-02T08:29:38.192-04:00

By Charles Oliver - October 2, 2026 at 04:00AM

A U.S. postal worker in Utah has been charged with throwing about 300 mail-in ballots into a parking lot dumpster just before the state's June primary election. According to the Department of Justice, Damon Matai Seei told investigators he felt overwhelmed and acted out of frustration and laziness rather than any political motive, saying he mainly wanted to get rid of ads to lighten his load but accidentally dumped ballots as well. He is no longer employed by the Postal Service and has pleaded not guilty to destroying and delaying mail. Officials noted that most Utah voters use mail-in ballots, and it is still unclear whether those voters were later able to cast their votes.

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Open Thread

2026-10-02T05:29:23.546-04:00

By Eugene Volokh - October 2, 2026 at 03:00AM

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Todd Butler's Problematic Publications

2026-10-02T03:29:32.584-04:00

By Josh Blackman - October 2, 2026 at 01:49AM

After dinner this evening, I did a bit of research into the publications of Todd Butler, President Trump's latest nominee to the Fifth Circuit. Despite serving in private practice for nearly two decades, Butler has published several articles. He has also served as an Adjunct Professor at the University of Mississippi Law School. (I am not sure what he taught).

Here are some of his publications:

A Matter of Positivism: Evaluating the Legal Philosophy of Justice Antonin Scalia Under the Framework Set Forth by H.L.A. Hart, 12 HOLY CROSS J.L. & PUB. POL'Y 47, 64 (2008).
RECIPE FOR DISASTER: ANALYZING THE INTERPLAY BETWEEN THE CASTLE DOCTRINE AND THE KNOCK-AND-ANNOUNCE RULE AFTER HUDSON V. MICHIGAN, 27 Miss. C. L. Rev. 435 (2008).
HECK, EXCESSIVE FORCE, AND THE FIFTH CIRCUIT, 29 Miss. C. L. Rev. 529 (2009)
FOREWORD: CELEBRATING THE LIFE AND LEGACY OF THURGOOD MARSHALL, 27 Miss. C. L. Rev. 289 (2008)
JUDGE SOUTHWICK THE OPINION WRITER, 37 Miss. C. L. Rev. 43 (2018)
AN INTERVIEW WITH CHIEF JUDGE SHARION AYCOCK, 39 Miss. C. L. Rev. 413 (2021)

I haven't studied the articles carefully, but one through line seems to be a criticism of Justice Scalia.

For example, in his student note, Butler favors Justice Breyer's dissent over Justice Scalia's majority opinion in Hudson v. Michigan:

While Justice Scalia applied the Fourth Amendment balancing test by starting with social costs, Justice Breyer turned first to deterrence.Considering factors such as time, recoverable damages and money spent on litigation, Justice Breyer argued that § 1983 suits are an insufficient deterrence.Also, he swiftly dismissed the notion that "better trained police" provide adequate deterrence.. . . .

Justice Breyer's dissenting opinion in Hudson v. Michigan aptly noted that "the Court destroy[ed] the strongest legal incentive to comply with the Constitution's knock-and-announce requirement" when it refused to remedy the violation with the exclusionary rule.161 While Justice Scalia offered several deterrent substitutes, each is insufficient to ensure law enforcement compliance. . . .

Likewise, internal police procedures are inadequate to deter non-compliance with the knock-and-announce rule. Although Justice Scalia came to the opposite conclusion after noting the "increasing professionalism" of police officers,he failed to discern the principle reason why this increasing professionalism actually exists. As one commentator noted, "the increasing professionalism of police departments that has resulted in more effective internal discipline was itself a result of the exclusionary rule."It follows that if the underpinning is removed, the increasing professionalism will also disappear.

Butler is also very critical of the castle doctrine.

Importantly, critics insist that the Castle Doctrine creates a "trigger-happy" mentality in citizens' minds.The laws receive extensive media coverage and the phrase "shoot first, ask questions later" is often used to describe the Castle Doctrine.One commentator noted that "[the doctrine] sends a very confusing message to the citizens . . . about when they can use lethal force with impunity.". . .

The Supreme Court's decision in Hudson v. Michigan will bolster violent encounters between police officers and homeowners. Although none of the Justices referenced the Castle Doctrine in their opinions, the importance of the doctrine is implicit when considering the practical effects of the case. By removing the incentive to comply with the knock-and-announce rule, the Court left homeowners vulnerable to surprise encounters with law enforcement officers. This vulnerability poses significant problems for both police officers and citizens because of the trigger-happy mindset created by the Castle Doctrine.

Thirty-five states currently remain "Castle Doctrine Free." Legislators in these states should be wary of the Hudson decision because of the prediction set forth in this Note. Instead of falling victim to powerful lobbying efforts, legislators should opt to protect human life by declining to provide citizens with a "shoot first, ask questions later" mentality. Citizens in current Castle Doctrine states may soon wish their lawmakers had done the same.

Butler does not mention the then-pending Heller case or the Second Amendment anywhere in his note. I suspect that most conservatives favor a broad application of the castle doctrine, and do not describe those exercising their right of self-defense as "trigger-happy."

Butler's article in the Holy Cross Law Review argues that Justice Scalia is a positivist. Here, he seems critical of Scalia's "relentless focus on history and tradition." And he at least seems receptive to Justice Brennan's view.

Throughout his entire opinion Justice Scalia relentlessly focused on history and tradition. His attempt to define "liberty" with the use of historical facts reveals his positivistic philosophy and his acceptance of a fixed constitutional meaning. 99 As noted above, Justice Scalia searched the common law and found that family preservation had traditionally trumped the parental rights of unmarried fathers. The essence of his search is akin to the positivistic approach of employing the rule of recognition by looking to social facts and conventions. . . .

The battle between Justice Scalia and Justice Brennan over the meaning of the word "liberty" reveals the answer to the above-mentioned question. Simply put, it is delusional to aspire for unanimity among all decision makers. Our society, although pluralistic, gives credence to majority views. In doing so, we accept a legal system that is predictable, albeit imperfect.

Butler repeats the charge that Scalia is "anti-gay"

The classification of Justice Scalia as a "separationist," however, has not gone completely unchallenged. Many critics contend that Justice Scalia often submits his own view of morality into the law through his judicial opinions. By way of examples, opponents often cite Justice Scalia's dissenting opinions in Lawrence v. Texas and Romer v. Evans.'" These opinions, critics suggest, illustrate Justice Scalia's "anti-gay moral views.""

Butler offers nothing to rebut this slander.

Butler further seems critical of Scalia's "narrow" view that the Constitution is "determinate":

There is no room for discretion, in Justice Scalia's view, because he believes the Constitution is determinate. Consider the statements he provided last month at a Delaware University lecture: "The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that is the end of it. If you want more rights, create them by statute. If you want more constitutional rights, create them by amending the Constitution."In his view, appellate judges engage in "judicial activism" when they broadly define the concept of liberty under the Due Process Clause.' By incorporating a wide array of unenumerated rights into the Constitution, Justice Scalia contends that judges are usurping the role of elected lawmakers. This result is intolerable for him since the rules of adjudication provide no authority for judges to utilize the rules of change. Given Justice Scalia's narrow interpretation of the judiciary's role, rules of change become increasingly important under his legal theory. . . .

More specifically, Justice Scalia refers to his method of textualist constitutional interpretation as originalism. Under this approach, Justice Scalia does not seek to determine the original intentions of the constitutional drafters. 42 Instead, he aims to discern the "original meaning of the text."' Said differently, Justice Scalia believes that the Constitution means the same thing today as it did when it was ratified over two hundred years ago. . . .

Justice Scalia, on the other hand, purports to use the text's original meaning as his only criteria for resolving even difficult constitutional questions. This approach demonstrates his assumption that the Constitution is determinate or, in the alternative, that judges lack the authority to interpret the Constitution when it is indeterminate.

Butler described Scalia's dissent in Stenberg v. Carhart, the partial-birth abortion case, as "stinging." And he suggests this dissent is "the spawn of Justice Scalia's own political agenda."

Justice Scalia's stinging dissent in Stenberg v. Carhart underscores his position. There, the state of Nebraska passed a statute prohibiting partial-birth abortion.The Court, however, overruled the Eighth Circuit Court of Appeals and determined that the Nebraska statute was unconstitutional for the reasons set forth in Planned Parenthood of Southeastern Pennsylvania. v. Casey. Rejecting the underlying premise of Casey, Justice Scalia advocated judicial restraint and chastised his colleagues on the Court for exercising jurisdiction over the case: "If only for the sake of its own preservation, the Court should return this matter to the people - where the Constitution, by its silence on the subject, left it - and let them decide, State by State, whether this practice should be allowed. Casey must be overruled."'

Here is the dissent that Butler thinks is political:

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child-one cannot even accurately sayan entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, … and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Which part of this passage does Butler disagree with? You know, the lawyer who actually relegated Roe v. Wade to its rightful place in history is also in Mississippi.

Butler actually says we should have "diversity" on the Supreme Court and not seek more jurists in the mold of Justice Scalia:

At 71 years old, it is unclear how long Justice Scalia will remain on the bench. When he either dies or resigns, his philosophy likely will be debated while confirming a successor. For those who favor predictability and judicial restraint, any member nominated to the Court would be applauded for adhering to a theory of legal positivism. Conversely, others would seek to reject any nomination with even remote similarities to Justice Scalia. Ultimately, it is crucial that we aim for diversity on the Court. In my opinion, the American people are best served when judicial philosophies vary. Intellectual debate sparks creativity and controversy. We need both, perhaps more than ever, to move our society forward.

If there was a Democratic president and a Republican Senate, Butler would be a natural pick. But for President Trump to pick someone who actively criticizes Justice Scalia? There are problems. Much more to come.

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Brickbat: Thick as Thieves

2026-10-01T08:29:22.612-04:00

By Charles Oliver - October 1, 2026 at 04:00AM

An Oklahoma man is suing the Grady County Sheriff's Office for keeping his stolen property. Stacey McCurry said thieves stole his $6,000 Yamaha four-wheeler from his property in 2020. The sheriff's office recovered it in 2021, but McCurry did not learn about it until earlier this year, when it showed up in a national database for stolen items. When he tried to retrieve it, a deputy told him the department was keeping it, because a judge had awarded it to them after prosecutors advised the agency to dispose of evidence from closed cases, and because they had spent about $1,060 of taxpayer money on new tires and a battery. They even obtained a judge's order allowing them to title the vehicle in the department's name. McCurry offered to reimburse them for the tires and battery, but officials refused.

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Open Thread

2026-10-01T06:29:10.817-04:00

By Eugene Volokh - October 1, 2026 at 03:00AM

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Open Thread

2026-09-30T06:29:27.063-04:00

By Eugene Volokh - September 30, 2026 at 03:00AM

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Hazy Drug Classification Criteria Invite Dubious Bureaucratic Judgments

2026-09-30T03:29:37.195-04:00

By Jacob Sullum - September 30, 2026 at 12:01AM

Half a century ago, Congress approved the Controlled Substances Act (CSA), which established a system for classifying drugs based on their "medical use" and "potential for abuse." But as a recent report from the Government Accountability Office (GAO) notes, the statute does not clearly define either criterion, opening the door to debatable and changeable regulatory judgments with far-reaching criminal justice implications.

Schedule I of the CSA is supposedly reserved for drugs that have "a high potential for abuse," "no currently accepted medical use," and "no accepted safety for use under medical supervision." Those drugs, which include heroin, LSD, psilocybin, and MDMA, are prohibited except for government-approved research purposes.

Schedule II drugs, which include cocaine, methamphetamine, fentanyl, morphine, hydrocodone, and oxycodone, also are deemed to have "a high potential for abuse." But their medical use is "accepted," and they are legally available by prescription.

So are drugs in Schedules III, IV, and V, which are supposed to have progressively lower abuse potential, justifying less severe criminal penalties for unauthorized possession and distribution. Right away we see a problem: A drug with "potential for abuse" short of "high" but no "accepted" medical use does not fit into any of these schedules.

The historical treatment of cannabis illustrates that puzzle. When Congress enacted the CSA in 1970, it placed marijuana in Schedule I, and the Drug Enforcement Administration (DEA), which had the authority to reclassify drugs in consultation with the Department of Health and Human Services (HHS), kept it there, rejecting a series of petitions arguing that it did not meet the statutory criteria.

Beginning in 1992, the GAO notes, the DEA defined "accepted medical use" based on five criteria, including "adequate safety studies" and "adequate and well-controlled studies proving efficacy." Since those requirements are similar to the evidence that the Food and Drug Administration (FDA) demands to approve a drug for prescription use, the DEA's definition essentially equated "accepted medical use" with FDA approval.

During the Biden administration, the HHS embraced an alternative test for "accepted medical use" that considers "widespread" clinical experience with a drug (in the 41 states that have legalized medical marijuana, for example) and requires "some credible scientific support" for at least one application. Based on an FDA analysis, HHS said cannabis passed that test and, after reconsidering its "potential for abuse," recommended placing it in Schedule III, which includes prescription drugs such as ketamine, anabolic steroids, and Tylenol with codeine.

Last April, Acting Attorney General Todd Blanche issued a final rule that followed the HHS recommendation, but with a twist. For the time being, he said, only marijuana products currently sold by state-licensed medical dispensaries or approved in the future by the FDA would qualify for Schedule III.

The scientific and legal logic of that decision was hard to follow, since the included and excluded products are pharmacologically identical, distinguished only by their intended use. By contrast, cocaine, fentanyl, and methamphetamine are all Schedule II drugs, regardless of whether they are dispensed by pharmacies based on medical prescriptions or purchased on the black market without legal authorization.

In any event, the government's reversal on cannabis showed how malleable the CSA's scheduling criteria are. The drug's reclassification hinged on a change in attitude rather than a change in the underlying science.

In addition to a redefinition of "accepted medical use," that shift entailed a new assessment of marijuana's abuse potential. The CSA "does not include a statutory definition of 'potential for abuse,'" the GAO notes, and "FDA officials told us that the lack of a written definition…presented challenges for determining the relative abuse potential and appropriate schedule recommendation for some substances."

The GAO thinks the FDA should specify "the criteria and process for determining a substance's 'potential for abuse.'" The lack of clarity highlighted by the report is astonishing, given how long Americans have been living with the CSA, which criminalizes a wide range of peaceful conduct and prescribes penalties based on arbitrary bureaucratic distinctions.

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