The brief seeks to explain to the Court why the underlying legal issues in this case are important and merit the Court's granting review. Like most other amicus briefs supporting petitions for review, it doesn't seek to argue about the truth or falsity of petitioner's statements: The Court generally grants review to resolve conflicts about what the right legal rule should be, not to resolve factual disputes. (You can also read another amicus brief supporting review, co-signed by our own Randy Barnett, among others.)

* * *

Summary of Argument

The last ten years have seen many attempts to punish or compel professionals' speech in the service of broader ideological goals. This Court rejected two such attempts, in NIFLA v. Becerra, 585 U.S. 755 (2018), and in Chiles v. Salazar, 607 U.S. 627 (2026). It should likewise consider the constitutionality of the punishment in this case—a punishment that, if left unreviewed, portends still more such attempts.

Petitioner John Eastman was disbarred in large part based on his public political statements. The State Bar concluded those statements were false, and therefore sanctionable. This raises an important and unresolved question of First Amendment law: When can lawyers be stripped of their livelihoods based on public political speech that is unrelated to any pending judicial proceeding and that is fully protected when said by ordinary Americans?

That question is especially important because it can arise—and indeed is likely to arise—in many cases in the future. "Tit for tat" may well be part of the nature of humanity. See Robert Axelrod & William D. Hamilton, The Evolution of Cooperation, 211 Science 1390 (1981); Herbert Gintis, Samuel Bowles, Robert Boyd & Ernst Fehr, Explaining Altruistic Behavior in Humans, 24 Evol. & Hum. Beh. 153, 154 (2003). It certainly seems to be part of modern American politics.

The mode of analysis in this case thus seems likely to proliferate in decisions both by deep blue state bars and deep red state bars. It seems likely to arise as to people involved in contentious disputes about federal elections, state candidate elections, state ballot measures, and ideological debates more broadly. In all these contexts, allegations that one's opponents are lying are par for the course: Indeed, another facet of human nature is to assume the worst motivations of one's adversaries and the best motivations of one's allies.

In the past, state bars have sought to punish people they viewed as left-wing extremists who endangered the established constitutional order. See, e.g., James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L.Q. 725 (2005). This case is a reminder that the same approach is being revived today as to lawyers whom some state bars view as right-wing dangers. And, if the decision endures, it will likely be followed by many other such decisions. It is important that this Court make clear what rules govern this area of the law, so that they can be applied as evenhandedly as possible throughout the country.

To be sure, this case also involves other allegations of impropriety, such as alleged false statements to courts, to Eastman's own client (President Trump) and his team, and to Vice President Pence and his team. This amicus brief does not opine on those matters. As many cases (see Part IV) have made clear, if a government sanction—whether a criminal sentence, civil liability, dismissal from government employment, or disbarment—rests even in part on constitutionally protected speech, it cannot stand unless the government can show that it would have reached the same result absent the protected speech.

For this reason, this Court should grant certiorari to consider when lawyers can be disbarred for their public political speech.

Argument

[I.] Eastman's public statements would have been protected by the First Amendment if said by an ordinary citizen

If John Eastman were not a lawyer, his public statements about the election would have been protected even if they were knowingly false. New York Times v. Sullivan expressly held that even deliberate lies about the government cannot be punished, especially on the theory that they damage people's confidence in the government or its processes (which would logically include elections): "For good reason, 'no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.'" 376 U.S. 254, 291 (1964) (quoting City of Chicago v. Tribune Co., 307 Ill. 595, 601 (1923)). Yet the bar court justified the sanction of disbarment in part precisely because of what it saw as damage to the reputation of the government: Eastman's "false narrative," the court stated, "resulted in the undermining of our country's electoral process, reduced faith in election professionals, and lessened respect for the courts of this land." Pet. 122a.

Likewise, in United States v. Alvarez, 567 U.S. 709 (2012), this Court held that a federal law that criminalized lying about military honors violated the First Amendment. And this was true for a sort of statement—claims that the speaker received a particular military medal—that was about as objectively verifiable and ideologically neutral as statements can be. There was little risk that the Stolen Valor Act would be interpreted by prosecutors, judges, and jurors differently for Democrats than for Republicans, or that it would unduly chill people's speech on important political questions. Governmental evaluation of statements such as Eastman's is far more fraught with peril than decision-making about statements such as Alvarez's.

Indeed, even the five Justices in Alvarez who did not sign on to the plurality opinion agreed that the government cannot be trusted with punishing supposedly false speech about broad "matters of public concern." Justice Alito's three-Justice dissent reasoned,

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom sometimes turns out to be mistaken. And in these contexts, "[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about 'the clearer perception and livelier impression of truth, produced by its collision with error.'"

Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends. Statements about history illustrate this point. If some false statements about historical events may be banned, how certain must it be that a statement is false before the ban may be upheld? And who should make that calculation? … [T]he potential for abuse of power in these areas is simply too great.

567 U.S. at 751-52 (paragraph break added) (Alito, J., dissenting). Justice Breyer's two-Justice concurrence agreed with the dissent that "there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech" and that therefore "[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny." Id. at 731-32 (Breyer, J., concurring in the judgment). The plurality Justices had no occasion to reach this question, because they thought even much narrower and politically uncontroversial false statements, such as claims about military medals, were fully constitutionally protected. But it seems that the four Justices in the plurality would have agreed with the dissent and the concurrence on broader statements as well.

And this protection, the concurrence and dissent agreed, even applies to statements that a factfinder decides were deliberate lies. Yet the California State Bar Court concluded that Eastman's speech could be punished even if it were negligently false. See Pet. 94a (stating that "we examine Eastman's conduct pursuant to an objective standard, not a subjective one," and finding Eastman culpable because his statement about a county government's ballot counting process "was not objectively reasonable"); id. at 103a ("in balancing an attorney's First Amendment rights outside of the courtroom with the public protection components of the attorney disciplinary process, the attorney's conduct is assessed under an objective, reasonableness standard").

Likewise, the Court reasoned that Eastman's statements were based on "little intellectual rigor" and did not sufficiently rely on "true experts." Id. at 119a. Yet the logic of the decisions above shows that government officials cannot punish criticisms of government processes on the grounds that the critics' analyses were not adequately intellectually rigorous, or that the analyses did not rely on those people that the government officials view as true experts. None of this diminishes the genuine importance of rigor or expertise, but it highlights Justice Alito's observation that "it is perilous to permit the state to be the arbiter of truth" in such matters.

In highly charged contexts, like politics, people tend to view facts through a partisan lens; government regulators, including bar officials, are no exception. Indeed, they may be more likely to have a biased view—whether because of self-interest or unconscious bias—because of their own connection to politics or membership in a particular stratum of the legal profession. Regulators with certain political views may thus be quick to designate the statements of their opponents as false and pursue the speakers. Bruce A. Green & Rebecca Roiphe, Lawyers and the Lies They Tell, 69 Wash. U. J.L. & Pol'y 37, 119 (2022). As Justice Alito noted, "[T]he potential for abuse of power in these areas is simply too great."

And even if most observers agreed that Eastman lied—something that Eastman of course continues to dispute—giving this power to state bar regulators would open the door to other efforts to suppress unpopular speech. And no doubt at some point the targeted speech will be useful, productive opposition. "Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom sometimes turns out to be mistaken." 567 U.S. at 752 (Alito, J., dissenting). Without First Amendment protection, the public would be powerless in the face of such an effort to control public discourse.

Indeed, this case helps illustrate Justice Holmes and Brandeis's conclusions that "the best test of truth is the power of the thought to get itself accepted in the competition of the market" and that "the fitting remedy for evil counsels is good ones." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). People made claims about fraud in the 2020 election. These claims were debated, and were generally rejected through both the legal system and public discussion. To be sure, not everyone was persuaded that the claims were false—but counterspeech and free public debate is not a perfect remedy or test of truth, just the best test, and the one most fitting to a democracy.

In particular, free speech and counterspeech about such matters is better for a democracy than "silence coerced by law—the argument of force in its worst form." Whitney, 274 U.S. at 375-76 (Brandeis, J., concurring). Free discussion tends to produce, however imperfectly, more trust in the outcome of the discussion. Coercive suppression of one side tends to produce more suspicion.

"[F]ear breeds repression," "repression breeds hate," "hate menaces stable government," and "the path of safety lies"—not perfectly, but more successfully than the alternatives—"in the opportunity to discuss freely supposed grievances and proposed remedies." Id. at 375. However much we may regret the degree to which our country is riven by partisan strife, that strife would be even greater if one side believed that a supposed consensus had been achieved through coercion rather than persuasion.

[II.] Lawyers' public speech remains fully protected, unless it risks "materially prejudicing an adjudicative proceeding" in which the lawyer is involved as a lawyer

Eastman's speech as a citizen is thus fully protected, and it remained so against bar discipline as well as against fines or civil liability. The California bar court's decision argued, though, that a lawyer could be disbarred for such speech, precisely because he is a lawyer. See Pet. 100a (holding that "The First Amendment rights of attorneys" "must be calibrated to align with the unique role attorneys play in the administration of justice").

Yet as Chiles, NIFLA, and Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), make clear, profession­als retain broad First Amendment rights even when they are speaking to clients. A fortiori, they even more clearly retain such rights when speaking to the public.

"As Holder indicates, … the First Amendment's protections extend to licensed professionals much as they do to everyone else. It's a point we have since discussed at length in NIFLA." Chiles, 607 U.S. at 642-43. And this is especially important as to lawyers' speech on the great political and legal debates facing the nation, because the perspective of lawyers—based on their experience with and study of the legal system—is often so essential to such debates.

To be sure, this Court has "acknowledged two kinds of content-based restrictions that can apply to professional speech without triggering strict scrutiny." Id. at 643:

First, courts generally deploy less searching review when faced with laws that require speakers to disclose only factual, noncontroversial information in commercial speech. Second, laws regulating conduct in ways that incidentally sweep in speech may also generally avoid strict scrutiny. But, we stressed, neither [category] turns on the fact that a licensed professional happens to be speaking.

Id. (cleaned up). Eastman's public statements do not fall into either of these two categories; instead, they constitute core political speech.

This Court has also held that "the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than" strict scrutiny, and, in particular, that it can be restricted to prevent speech that poses a "substantial likelihood of material prejudice" to the proceeding. Gentile v. State Bar of Nev., 501 U.S. 1030, 1074, 1075 (1991). But unlike in Gentile, Eastman's words ran no risk of interfering with an ongoing proceeding, because there was no "pending case[]."

Rather, Eastman's speech was classic political commentary critical of some government actors (though in defense of another government actor). Such speech by lawyers must remain constitutionally protected against government sanctions that destroy the speak­er's livelihood, just as ordinary citizens' speech is protected against civil fines and damages liability. Green & Roiphe, supra, at 42-66 (arguing that there is no reason to treat lawyers differently from others when the administration of justice is not at issue).

[III.] Eastman's speech did not lose its protection on the theory that it sought to undermine democratic processes

Nor could Eastman's speech be sanctioned on the theory that it sought "to actively undermine the results of an election to the most powerful office in the United States with the goal of delaying or invalidating the lawful installation of his client's electoral opponent and thereby keep his client in office," Pet. 3a. The whole question in the dispute was what the true results of the election were. Eastman had a right to make the argument that certain government processes failed to properly determine those results.

More broadly, lawyers do not have a general obligation to advance democracy; instead, they protect our democratic system by engaging in adversarial debate, representing clients diligently within the bounds of the law. Indeed, because regulators and critics have their own definitions of democracy that are inevitably shaped by political bias, relying on such definitions can lead to unconstitutional sanctions of lawyers for legitimate advocacy or political speech. Whatever one thinks of these lawyers or their clients, many of these sanctions threaten to chill political speech; deter lawyers from representing controversial clients; and invite regulators to act when there is a very real danger that their own political bias will dictate the result. This potential downside is, as a structural matter, a greater threat to democracy than the lawyers' conduct and speech itself. See generally Roiphe, supra, at 1819-22.

Indeed, during the McCarthy era, state bar associations followed the lead of federal authorities and targeted lawyers who represented communist or socialist clients for what was, in essence, their failure to uphold "constitutional governance." See, e.g., Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957). The National Lawyers Guild, an organization of leftist lawyers, was nearly destroyed on such grounds. Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 231-62 (1976); James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L.Q. 725 (2005) (cataloging the politically motivated disciplinary proceedings in American history). While some of these lawyers may have posed a threat to democracy, most did not. Civil rights lawyers, anti-poverty lawyers, and lawyers who protected detainees in the war against terror faced similar threats. Moliterno, supra, at 741-44. The ideological position of the bar regarding unpopular defendants may have shifted, but the underlying danger has not.

Funneling challenges to accepted understandings of the Constitution and democracy into peaceful debate—in courtrooms, in legislatures, and before the public—is the safest way to ensure the longevity of American institutions. And giving lawyers leeway to challenge the status quo is the only way to accomplish that. This means that we must tolerate and give wide latitude to lawyers in politically charged contexts, even when the positions the lawyers take on behalf of clients appear to us to be socially dangerous and destructive. It is far more dangerous to stifle dissent than to let it make its way through the justice system and the political system.

[IV.] A sanction that rests even in part on protected speech is constitutionally impermissible

As the Introduction noted, the amici focus only on Eastman's speech to the public and take no position as to his speech to the Pence or Trump camps, or his statements in legal proceedings. But if this Court grants certiorari and concludes that Eastman's speech to the public was constitutionally protected, that is a sufficient reason to vacate the judgment below.

As this Court noted in Street v. New York, even if a conviction "could have been based upon both [defendant's constitutionally protected] words and his [potentially unprotected] act," the conviction must be reversed. 394 U.S. 576, 587 (1969). When the sentence is "a single penalty," "unless the record negates the possibility that the conviction was based on both alleged violations," "[t]he judgment … must be affirmed as to both or as to neither." Id. at 588.

[W]hen a single-count indictment or information charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as "intertwined" and have rested the conviction on both together.

Id. This reasoning is directly applicable to this case, because the sanction of disbarment was indeed based on Eastman's "intertwined" actions—the public speech as well as the private speech and the courtroom filings. Pet. 111-12a. See also Eaton v. City of Tulsa, 415 U.S. 697, 707 (1974) (reversing a contempt conviction because the Court had "no basis to conclude with any degree of certainty" that the conviction "rests solely on" unprotected speech); Bachellar v. Maryland, 397 U.S. 564, 571 (1970) ("since petitioners' convictions may have rested on an unconstitutional ground, they must be set aside").

To be sure, unlike in Street, the decision below considered a multiple-count accusatory instrument. But the ultimate decision, a disbarment, rested on the aggregate of all of Eastman's conduct, with no separate sanction indicated for each count. The bar court stressed that it "[did] not compartmentalize Eastman's conduct into isolated events when examining the record for evidence of his knowledge and intent." Pet. 19a. And its discussion of the sanction expressly referred to Eastman's public speech as well as his advice to his client, his negotiation with Pence, and his statements in court. Pet. 120a.

The reasoning of Street applies to civil cases as well. Thus, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the NAACP and others organized a boycott of white-owned businesses in Claiborne County, demanding various concessions. The businesses sued on a tort theory of intentional interference with prospective business advantage, pointing to various behaviors that interfered with their business—political statements exhorting solidarity, threats of social ostracism of boycott violators, threats of violence, and even actual violence. The state courts held for the businesses, concluding that, put together, the behavior was indeed tortious.

The Court reversed. Violence, the Court held, was indeed constitutionally unprotected, but much of the other behavior—including threats of social ostracism—was constitutionally protected speech. And because "the nonviolent elements … are entitled to the protection of the First Amendment," they did not lose this protection just because of the presence of unprotected behavior. Id. at 915. While the violent actors might have been subjected to liability based only on the unprotected behavior, liability could not constitutionally be imposed based on a combination of the unprotected behavior and the protected speech.

Likewise, in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), the Court made clear that the First Amendment is violated when­ever protected speech makes a difference in deciding a speaker's fate. If protected speech is a "motivating factor" in a government decision—even when other factors are also present—the decision is unconstitutional unless the government shows that it would have reached the same decision without considering the speech. Id. at 287. That is true for the decision to fire someone from a particular job; it must be equally true for the decision to completely eject the person from an entire profession.

Conclusion

Decisions to disbar lawyers based on their political advocacy are likely to arise again, both from the left and from the right. American democracy needs a clear rule for when, if ever, such decisions are permissible. This Court should grant certiorari in this case to help set forth such a rule.

{Interest of the Amici Curiae

Rebecca Roiphe is the Joseph Solomon Distinguished Professor of Law at New York Law School. She has written extensively about the history of the profession and legal ethics, as well as on professional speech and lawyers' First Amendment rights. She was retained as an expert witness by John Eastman in the California bar proceedings; she was not hired to represent Eastman, but rather to provide an impartial expert opinion. The court did not consider her testimony because it concluded that her expertise was on a question of law, which was within the State Bar Court's purview. In the Matter of John Charles Eastman, Case No. SBC-23-O-30029-YDR, Order Granting Motion in Limine (Cal. State Bar Ct., Hearing Dep't, May 23, 2023). Portions of this brief are adapted from her article, Why Courts Should Not Discipline Trump's Lawyers, 46 Cardozo L. Rev. 1817 (2025).

Nadine Strossen is the John Marshall Harlan II Professor of Law Emerita at New York Law School, a past national President of the ACLU (1991-2008), and a Senior Fellow with FIRE (the Foundation for Individual Rights and Expression). She has written extensively about the freedom of speech, including in the 2018 book HATE: Why We Should Resist It with Free Speech, Not Censorship (Oxford University Press).

Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford University, and the Gary T. Schwartz Distinguished Professor of Law Emeritus at UCLA School of Law. He has written extensively about the freedom of speech.}

The post Amicus Brief Asking Court to Consider Lawyers' Free Speech Rights, in <i>Eastman v. State Bar</i> appeared first on Reason Magazine.

The post Today in Supreme Court History: October 6, 2010 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

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:

The post How Should A.I. Change Legal Scholarship—and the Job of Being a Law Professor? appeared first on Reason Magazine.

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 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.

The post Justice Alito on Originalism appeared first on Reason Magazine.

From Judge James Ho's concurrence Friday in Pittsburgh Logistics Sys., Inc. v. Glen Rose Transp. Mgmt.:

I write separately to address Plaintiff's understandable objections to the magistrate judge's ex parte meeting with Defendant. After all, ex parte meetings are "strongly disfavored" and "often reversible error," as our court rightly observes today.

I get why the magistrate judge felt compelled to engage in an ex parte dialogue, after he received a series of unusual emails from Defendant's corporate representative. It's no fun being criticized for one's life's work.

But "[h]olding office in America is not for the faint of heart." "With leadership comes criticism—whether from citizens of public spirit or personal malice."

[I.] Defendant's corporate representative sent a series of ex parte emails to the magistrate judge. The emails expressed frustration with perceived excessive and unnecessary delays in the judge's resolution of the case.

One of those emails referenced the fact that "I have many friends who are … Texas congressmen, US representatives, and one close U.S. Senator," and that the corporate representative was "consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting."

The email was sent at a time when it was publicly known and reported by the media that the judge was actively being considered and promoted in certain circles for appointment to the district court.

So the message—intended or not—was an indictment on the judge's honor. It was effectively an accusation—fair or unfair—that the judge might be willing to use his rulings to further his own personal career ambitions.

In response, the magistrate judge held an ex parte meeting with Defendant's corporate representative.

[II.] Any judge who abuses his office to promote his own interests—including the desire for future appointment—has violated the judicial oath and doesn't belong in his current post, let alone whatever new post he seeks.

There are, to be sure, both honorable and dishonorable people on the bench—just as there are in every other segment of life. Just as there are no doubt those on the bench who have strong ambitions for future office, there are others who are happy to be public servants, but who would be just as happy earning their living by some other means.

For the outside observer, however, it can be difficult to discern which is which.

And therein lies the quandary for the dutiful judge. How should a good judge respond when it's suggested that his exercise of judicial authority might be tainted by his private, personal desire for elevation to another post?

One noted scholar has described this dilemma as "the audition trap." Josh Blackman, The Audition Trap, Reason.com, Mar. 7, 2025. As Professor Blackman explains, "[a]t bottom, this is a charge of bad faith: that we write what we write not because we think it is the right legal outcome, but that we are using our platforms to seek some higher office."

He calls it a "trap" because it's a claim that "cannot be refuted." "Once a person is labeled as an auditioner, everything they do will be seen as an attempt to audition. If they act in a moderate fashion, they are doing so to avoid drawing attention, and helping their candidacy. If they act in a radical fashion, they are doing so to draw attention, and help their candidacy. Auditioners are trapped in a vicious cycle."

[III.] Professor Blackman's point is simple, but important. No one has the power to look into another man's heart and ascertain his actual motivations or ambitions. So the accusation of auditioning is indeed irrefutable. Certain actions may seem like auditioning to some, but to others, it's simply doing the job as the judge best sees fit.

There's no solution. So the good judge simply accepts that criticism is a fact of life—and that unrebuttable charges come with the job. The First Amendment guarantees the right of every citizen to criticize public officials—whether the criticism is fair or unfair.

That doesn't make unjust assaults on one's honor any easier to accept, of course. No one likes to be booed. It's not unreasonable that a good judge might care about his reputation for fairness, neutrality, and integrity. But caring deeply is the cost of admission to a meaningful and textured life.

Public criticism is not for everyone. But if it's too much to take, you can always resign. Federal judges receive life tenure—not a life sentence.

[IV.] I have no reason to doubt the sincerity of Defendant's corporate representative. Delays in the justice system are real, commonplace, and frustrating.

Nor do I have reason to doubt the sincerity of the magistrate judge. Frustrating too is the irrefutable accusation that one's rulings are hopelessly tainted by personal ambition.

But here, the magistrate judge chose to vent that frustration at an ex parte meeting with Defendant. On a human level, I can sympathize. But I wouldn't have counseled such a response.

At the end of the day, the only thing a good judge can do is articulate the governing principles that decide the case, and endeavor to apply those principles consistently in all such cases, without fear or favor or regard to personal consequences. And then just let his record over time speak for itself.

* * *

"Those who seek office should not just expect criticism, but embrace it. Tough scrutiny is not a bug, but a defining feature of our constitutional structure. In America, we trust our citizens to determine for themselves what is right—and to count on vigorous, unrelenting debate to guide them."

The post "Federal Judges Receive Life Tenure—Not a Life Sentence" appeared first on Reason Magazine.

Today, Lawfare published my new article "The President Doesn't Have Unlimited Power to Impose Import Bans." Here is an excerpt:

President Trump recently tried to use Section 338 of the notorious Smoot-Hawley Tariff Act of 1930 to ban several categories of Canadian imports outright, as well as to impose tariffs on others. This led some to fear that Trump has discovered a largely unlimited power for the president to restrict imports.

Courts have thus far constrained Trump's efforts to impose sweeping tariffs, most notably in the Supreme Court's decision in Learning Resources, Inc. v. Trump (a case I helped litigate), which struck down Trump's massive imposition of tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA). But perhaps import bans would be different. Trump himself said after the IEEPA decision that "I can destroy the trade. I'm even allowed to impose a foreign country destroying embargo."

That claim is badly wrong. Like tariffs, import restrictions are a congressional power under the Constitution, not an executive one. Thus, the president cannot impose import bans without congressional authorization. While some statutes delegate import restriction authority to the president, that power is strictly limited. And, as with tariffs, interpreting these authorities in a way that gives the president a blank check to impose import bans would run afoul of the major questions doctrine and constitutional nondelegation.

It remains to be seen whether Trump or a future president might decide to claim sweeping authority to impose import bans at will. But when and if such an effort materializes, courts should strike it down.

The rest of the article goes into the relevant issues in greater detail, including considering several statutes that might potentially be used in any effort to institute sweeping executive-imposed import bans.

The post My New Lawfare Article on Why "The President Doesn't Have Unlimited Power to Impose Import Bans" appeared first on Reason Magazine.

I think the debate about Todd Butler's nomination to the Fifth Circuit has been revealing. There is no actual argument that Butler bears resemblance to any of the other Fifth Circuit nominees over the past three decades. Instead, the argument goes, he has done enough to meet some arbitrary threshold for a circuit court nomination, and those who disagree are idiots. I don't pretend to be an expert in politics. Indeed, were I someone seeking the favor of those in power, I would just keep my mouth shut. Talk less, smile more, as they say. But I never keep my mouth shut. Instead, I read the decisions of the Fifth Circuit very closely and talk about them.

Friends and those who support the nomination have pointed to a few things in Butler's defense. First, Butler wrote very strong briefs defending qualified immunity on behalf of paying clients. Okay. QI is an issue that divides conservatives. Justices Scalia and Thomas did not agree. Judges Willett and Oldham do not agree. This is not exactly a useful predictor of Judge Butler's jurisprudence. And there is nothing particularly controversial about this work. No one receives a medal of courage for insurance defense work.

Second, Defenders have also pointed to the responsibility of becoming the managing partner of Phelps Dunbar's office in Jackson, Mississippi. Phelps Dunbar has 18 offices and about 500 lawyers. By my count, there are about 30 attorneys in the Jackson office, including one of Butler's most vigorous defenders on social media. Okay. That responsibility is something. I suppose the managing partners of the seventeen other offices are also viable nominees for the Fifth Circuit. Same for the managing partners at each of the offices for all of the other firms on the AmLaw 200.

Third, Defenders declare that Edith Hollan Jones did not have public service experience before being appointed to the Fifth Circuit. Judge Jones was the General Counsel of the Texas GOP from 1982-1983. That year, a Democrat won the Texas Governor's race, and Lloyd Bentsen was serving his third term. Texas was not yet the GOP Powerhouse it became in the 1990s. A young Edith Jones was boldly building the Republican party of Texas. Likewise, Judge Jerry Smith was the City Attorney of Houston, and argued City of Houston v. Hill before the Supreme Court. If anyone is trying to compare Todd Butler, as the nominee, to Smith and Jones in the 1980s, I would gladly have that conversation.

Fourth, the truth also comes out that Butler did in fact attend my 2022 talk to the Jackson Federalist Society chapter. I stand corrected. I distinctly remember meeting several of the dignitaries in the room, but not Butler. But the truth matters. I went back through my archives and found a photograph from the event, and Butler was there. If attendance at a few FedSoc meetings is sufficient to make one a viable Fifth Circuit nominee, I would point out that Scott Stewart was also in the room.

Like I said, there is not much in the "affirmative" column for Butler, and there is quite a bit in the "negative" column. Perhaps the most dispiriting aspect of this process is the message it sends. A current conservative law student who will be clerking on the Fifth Circuit sent me this message:

I wanted to write and thank you for raising awareness about the questionable Todd Butler nomination. As you correctly noted, seats of this magnitude must be reserved for people who have dedicated some portion their life to the Cause/public service. I am eager to see if this turns into another Judge Ozerden situation— time will tell!

Those are willing to risk their lives, fortunes, and sacred honors to promote the rule of law will be passed over for those who simply cash a paycheck. We need to recognize those and reward those who display courage, not those who simply skate by and have friends in high places.

The most useful metric to predict how Judge Butler will vote is Judge Southwick's record. It is clear enough that Judge Southwick chose Butler as his heir apparent. And like most judges who do so, we can safely assume that Southwick has picked someone who will uphold his judicial legacy. So, let's Ask Jeeves: how will the Butler vote?

I searched for recent Fifth Circuit en banc votes. Again, on 17-member Court, the vote often splits 9-8. If a senior judge is on a panel, or there is a recusal, or a conservative member has some idiosyncratic take, the vote usually goes the other way.

Here are cases where Judge Southwick dissented from the en banc court's majority opinion. In many of the cases, Southwick joined a dissent from Judge Higginson.

1. United States v. Texas (2026) - 24-50149 - Majority upheld Texas law restricting illegal immigration; Judge Southwick joined dissents of Judges Richman and Higginson.
2. Nathan v. Alamo Heights School District (2026) - 25-50695 - Majority upheld Texas Ten Commandments Law; Judge Southwick wrote a dissenting opinion joined by Judges Richman, Graves, Higginson, Douglas, and Ramirez.
3. W.M.M. v. Trump (2025) - 25-10534 - The Fifth Circuit voted to rehear en banc the challenge to President Trump's invocation of the Alien Enemies Act; in an unusual move, Judge Southwick dissented from the grant of rehearing en banc. He had written a vigorous panel decision ruling against Trump.
4. Little v. Llano County (2025) - 23-50224 - Library patrons challenged county for removing books from libraries. Majority ruled for county. Judge Southwick joined Judge Higginson's dissent.
5. Alliance for Fair Board Recruitment v. Securities and Exchange Commission (2024) - 21-60626 - NASDAQ imposed DEI requirement on directors. Majority declared policy unlawful. Judge Southwick joined Judge Higginson's dissent.
6. United States v. Abbott (2024) - 23-50632 - Majority upheld Texas's floating barrier installed on Rio Grande River; Judge Southwick joined dissents from Judges Higginson and Douglas.
7. Consumers' Research v. FCC (2024) - 22-60008 - Majority ruled universal service fund was unconstitutional. Judge Southwick. (The Supreme Court reversed in a 6-3 decision, but I'm with Justices Thomas, Alito, and Gorsuch.)
8. Wages and White Lion Investments v. FDA (2024) - 21-60766 - Majority granted petition from Vape companies challenging FDA regulations. Judge Southwick joined Judge Haynes's dissent. Here, the Supreme Court reversed unanimously.
9. Feds for Medical Freedom v. Biden (2023) - 22-40043 - Fifth Circuit allowed challenge to COVID-19 vaccination mandate to proceed. Judge Southwick joined Judge Higginson's dissent.
10. NetChoice v. Paxton (2022) - 21-511178 - Fifth Circuit upheld Texas social media law. Judge Southwick wrote a partial dissent. The Supreme Court reversed, finding the facial challenge was inappropriate (a decision I still disagree with.)
11. Cochran v. SEC (2021) - 19-10396 -upheld challenge to SEC ALJ adjudication process. Judge Southwick joined Judge Costa's dissent.

My research here was fairly quick, and I'm sure I missed some relevant cases. But these cases speak to how Judge Southwick votes on the most consequential Fifth Circuit cases. I don't expect that a Judge Butler would vote much different. If there is any evidence that he disagrees with Judge Southwick on these sorts of matters, it should be known before he receives a lifetime commission. And no, I don't care how he votes on cases involving qualified immunity and other lawsuits against municipalities.

The post Ask Jeeves appeared first on Reason Magazine.

But I think that it's a mistake to treat this as a goal above all others, as the Preamble to the Constitution itself reflects (and of course the specific provisions within the text of the Constitution and the Amendments—which are part of the Constitution—do as well):

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Constitution was set up to do many things at once, and I want them all. I would like our government to provide for justice, and protect domestic tranquility, and defend us against our enemies, and make the country wealthier, and protect liberty.

To be sure, these interests are sometimes in tension: For instance, national defense will often undermine liberty to some extent, and liberty will often undermine national defense. On the other hand, the interests often go together: For instance, liberty will generally produce more economic growth, and wealthier countries also generally find it easier to defend themselves. In any event, the Constitution sets up our federal government to try to secure all these benefits, rather than to categorically prioritize one (whether liberty or national security or the general welfare) above the others.

And that's what I want, too. I love liberty, including freedom from oppression by my own government.

But I also want freedom from oppression by foreign governments (which requires an effective "common defence"), freedom from oppression by violent factions within our country (which requires protection for "domestic Tranquility"), and freedom from oppression by criminals and criminal gangs (which requires "establish[ing] Justice").

I also want more "general Welfare." First, that generally translates into more wealth, health, and opportunity for me, and therefore practical liberty for me to pursue the things I value. The concept of "freedom from want" can be overstated, but it captures an important point, and "freedom of opportunity" means more than just freedom from restraints on opportunity imposed by American governments. Second, providing the same things for other Americans tends to make it easier to prevent foreign oppression and violent revolution. And an effective Union of the states generally tends to promote these values as well.

Again, one should always watch for the ever-present risk that pursuing some of these goals may unduly undermine other goals. One should also watch for perverse consequences, for instance when attempts to promote the general welfare or the common defense actually undermine these very values.

And of course there's always the possibility that the Preamble's plan is mistaken, and that we should categorically reject one or another of these goals. For instance, perhaps a government should be categorically denied the power to act simply to "promote the general Welfare," and should leave such promotion entirely to the nongovernmental actions of free and well-defended private individuals. Or perhaps the federal government should be denied some of these powers, and any governmental action to protect them should be at the state level. Or perhaps these values are better served by a looser Union, or no Union at all, than by the tighter Union that the Constitution created.

But at least until someone shows me a better plan, I'd be inclined to see our country stick with this one. And that is a plan that seeks to serve many goals at once, including securing the blessings of liberty, rather than just one goal.

The post I Want It All appeared first on Reason Magazine.

I appreciate my friend Michael Buschbacher taking the time to respond to my amicus brief in Suncor Energy v. Boulder County and my other work in this space. That he and others believe my work is worth responding to suggests that he and others believe it is important. (As they say, if you are taking fire, you must be over the target.) Yet he is mistaken to think that my arguments–-let alone the relevant history or legal principles–support the petitioners in this case.

To understand our disagreement, it is important to understand what is and what is not at issue in Suncor. The question is not whether the plaintiffs here (or in other climate cases) are making bold, ambitious, or potentially overbroad claims. Nor is it whether the alleged chain of causation is too attenuated and the attempt to attribute harms in Colorado to emissions elsewhere too speculative to support liability. Nor is it whether there are grounds to narrow or pare down the scope of the conduct they challenge or damages they seek. Rather, the question is whether the plaintiffs are wholly precluded from making their claims under state law, such that the case must be dismissed. After all, the Suncor petitioners are asking the Supreme Court for only one thing: An order reversing "the Colorado Supreme Court's decision to allow Boulder's claims to proceed." That request should be denied, which is why I filed a brief in support of the respondents.

As framed by Mr. Buschbacher, "the central question in Suncor is whether states and municipalities can apply their own law to regulate the greenhouse-gas emissions of fuel producers and users." This is not quite right. The plaintiffs' claims do not target emissions, as such. Rather, their claim is that the production and marketing of fossil fuels by the defendants has caused or contributed to harms in Colorado, and Boulder County seeks compensation for such harms. 

In considering the plaintiffs' claims, it is worth remembering that state tort law is routinely applied to conduct that occurs outside of the given state's borders. Consider routine product-liability claims. The law of the jurisdiction in which the harm occurred is often applied to companies that manufactured, sold, or marketed allegedly defective products elsewhere. And, provided the requirements of personal jurisdiction have been satisfied, this presents no constitutional problem. Such claims must be properly constrained, but they are not precluded.

Under current law, the federal government has the authority to preempt plaintiffs' claims should it want to do so, but it hasn't. Nor has the federal government ever enacted any statute governing the conduct targeted by the plaintiffs' claims. This likely explains why, as the litigation has gone on, the petitioners have de-emphasized their statutory arguments in favor of the broad–and untenable–claim that the constitution wholly precludes any state law claim against conduct that produces harm across state lines or international boundaries. 

Mr. Buschbacher notes my concern about "home cooking"-- and this is a legitimate concern. There are limits to the extent to which states may impose the consequences of their policy choices on their neighbors. It is one thing for state courts to hear tort claims seeking recompense for damages born within their jurisdiction due to out-of-state conduct. It is quite another for state courts to impose punitive damages or demand compliance with local standards in far off places. This is the boundary the Court has already drawn in limiting the imposition of punitive damages for what is lawful out-of-state conduct. But the concern for state prerogatives cuts both ways. If Colorado may not impose its policy judgments upon conduct occurring elsewhere, then neither may other States impose upon Colorado the costs of the conduct they license. As with punitive damages, concerns about legitimate state authority may well counsel narrowing Boulder County's claims–as my brief concedes–but they do not justify preempting them. 

Mr. Buschbacher raises International Paper v. Ouellette, but fails to heed its lesson. In Ouellette, a majority of the Court concluded that, due to the federal Clean Water Act, Vermont plaintiffs could not sue a New York paper mill under Vermont law because doing so would subject the facility to potentially conflicting legal standards, only one of which had been blessed by the federal government. The mill in Ouellette was subject to regulation as a "point source" under the CWA, and (owing to the CWA's cooperative federalism structure) this regulation was carried out by New York authorities under New York law. Accordingly, the decision as to how much the mill could discharge in waters of the United States was, for purposes of federal law, a matter of New York law–and to this Vermont law had to yield.

The Court in Ouellette made this point explicit, noting that "if affected States were allowed to impose separate discharge standards on a single point source, the inevitable result would be a serious interference with the achievement of the 'full purposes and objectives of Congress.'" Yet insofar as state-law claims do not threaten to impose "separate . . . standards on a single point source" there is no conflict and no basis for preemption. And here, as Mr. Buschbacher knows, Boulder's claims do not target conduct–let alone emissions–that are subject to regulation under federal law. 

While barring the application of Vermont law to an out-of-state point source subject to the CWA's regulatory scheme, Ouellette expressly preserved the ability of plaintiffs to pursue state law claims against the out-of-state mill; the justices were unanimous on this point. As the Court summarized its own holding:

Nothing in the Act prevents a court sitting in an affected State from hearing a common law nuisance suit, provided that jurisdiction otherwise is proper. Both the District Court and the Court of Appeals erred, however, in concluding that Vermont law governs this litigation. The application of affected-state laws would be incompatible with the Act's delegation of authority and its comprehensive regulation of water pollution. The Act preempts state law to the extent that the state law is applied to an out-of-state point source. [Emphasis added.]

Mr. Buschbacher suggests that the plaintiff's invocation of Colorado law in their complaint should nonetheless be fatal to their claim. Again, reference to Ouellette is instructive. There, as here, the plaintiffs filed suit under their home state's law. And yet, after concluding that Vermont plaintiffs could not sue a New York point source regulated as such under the CWA under Vermont law, it did not order dismissal of the case. Rather, the case was remanded to the lower courts where appropriate state law was applied as the litigation proceeded. Further efforts to bar the suit were rejected and International Paper ultimately offered substantial settlement. So even if one were to conclude that Boulder County can do no more than seek to apply home-state law to each of the defendants' operations (something I do not believe current law requires), the petitioners' plea to reverse the Colorado Supreme Court and dismiss the case must be rejected.  

According to Mr. Buschbacher, "Boulder County's suit is almost entirely about conduct far outside of Colorado" (emphasis added). I think this framing settles the question. Even were I to concede ever point Mr. Buschbacher makes, it would not justify dismissing the case, for insofar as Boulder County's suit includes petitioners' conduct that occurred in Colorado, it must be allowed to proceed, at least with regard to such conduct. I believe that current law allows for more; Mr. Buschbacher disagrees. But this is a dispute about the permissible scope of this litigation, not whether it should be allowed to continue. It is the latter question the petitioners have put before the Court, and that is the question my brief addresses.

For more on the case, 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.

The post A Response to Michael Buschbacher on <i>Suncor Energy v. Boulder County</i> appeared first on Reason Magazine.

I am honored to open up the 18th Season of FantasySCOTUS. I launched the site back in 2009 when I was still clerking. Now, more than decade later, thousands of Court watchers have made their predictions. Sign up today at FantasySCOTUS.net to predict the outcome of all the blockbusters this term.

The post Oyez! Oyez! Oyez! The October Term 2026 of FantasySCOTUS is now in session appeared first on Reason Magazine.

From Wantagh Union Free School Dist. v. N.Y. State Bd. of Regents, decided Thursday by Second Circuit Judges John Walker, Michael Park, and Eunice Lee:

Plaintiffs-Appellants Wantagh Union Free School District, the Wantagh Union Free School District Board of Education, and Board member Anthony Greco appeal from the district court's April 28, 2025 judgment dismissing their challenge to Part 123 of the Regulations of the New York Commissioner of Education. Part 123 regulates the use of Indigenous names, logos, and mascots in New York public schools. Section 123.2 prohibits public schools from using or displaying such names, logos, or mascots "other than for purposes of classroom instruction." Section 123.5 requires schools to bar their officers and employees from "utilizing or promoting" them while on school property or at a school function.

The District's middle and high school sports teams have competed as the "Wantagh Warriors," using a logo of a Native American man in a headdress. To comply with Part 123, Wantagh planned to retire the logo but keep the "Warriors" name. The New York State Education Department rejected that plan, and this suit followed….

The court concluded that plaintiffs had no power to sue the state in their official capacities:

"New York follows the traditional capacity-to-sue rule, which states that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation." There are "four limited exceptions" to this general rule, including when "compliance with the statute would force the municipal challengers to violate a constitutional proscription."

The district court properly dismissed the claims of the District, the Board, and Greco in his official capacity (the "Municipal Plaintiffs") for lack of capacity. The Municipal Plaintiffs allege that enforcing § 123.5 against their employees and officers "creates an unnecessary risk of chilling [their] speech and expression." But a mere "risk" of chilling speech does not amount to a compelled constitutional violation for purposes of New York's capacity-to-sue rule. Further, the Municipal Plaintiffs cannot show that "every conceivable application" of § 123.5 compels a constitutional violation.

But it allowed Greco had standing to sue in his personal capacity:

Greco has standing to challenge § 123.5 and the sections supplying its definitions (§ 123.1) and exceptions (§ 123.4). His alleged injury is that he is "prohibited from wearing Warriors apparel" while attending games and school functions ….

First, expressive conduct, including the choice of what to wear, may warrant First Amendment protection in some settings. Here, Greco has alleged sufficient facts to support that wearing Warriors apparel is a course of conduct "arguably affected with a constitutional interest." Greco need not show that he "will win on the merits of [his] constitutional claims" at this stage.

Second, wearing Warriors apparel to school events is arguably proscribed by § 123.5, which bars officers and employees from "utilizing or promoting" Indigenous logos. Third, the threat of enforcement is sufficiently imminent where the Board of Regents has explicitly opposed using the Warriors name: a plaintiff challenging a regulation that proscribes certain conduct need not show an "intent by the government to enforce" the regulation against him.

Greco's … claim, however, does not extend his standing to challenge §§ 123.2 or 123.3. Those sections regulate school districts, not board members….

On the merits, the court rejected Greco's vagueness claim, but allowed his free speech claim to go forward:

The district court dismissed Greco's free speech claim, concluding that the amended complaint failed to allege speech on a matter of public concern, as Pickering requires. See Pickering v. Bd. of Educ. (1968). Greco challenges that ruling on two grounds: that the Pickering framework does not govern this case at all because it "does not involve … an employer-employee relationship," and that, even if it does, he adequately alleged speech on a matter of public concern.

First, Greco's status as a volunteer, elected official raises a threshold question about the reach of Pickering. Generally, the government is "severely restricted by the First Amendment from placing restraints on speech." "But when government acts as an employer, the constraints of the First Amendment are less severe," because public employers need "control over their employees' words and actions to ensure the efficient provision of public services." Thus, "[i]n order to bring a First Amendment violation claim, a public employee must first establish that the employee spoke 'as a citizen on a matter of public concern.'"

Greco, however, is an elected member of the Wantagh Board of Education. We remand for the district court to consider in the first instance whether the Pickering framework applies to Greco as a volunteer, elected school board official.

Second, the district court erred by failing to account for the context of Greco's speech. Whether speech is on "a matter of public concern" is a question of law "to be answered by the court after examining the content, form, and context of a given statement, as revealed by the whole record." Speech qualifies when it can "be fairly considered as relating to any matter of political, social, or other concern to the community," or when it is a subject of legitimate news interest. A court may also weigh the speaker's motive and "the forum and manner in which an employee makes a statement." …

[T]he amended complaint frames this litigation as a "fight to keep the 'Warriors' name"—one that "73.7% of the community members … surveyed indicated the district should" pursue. And it alleges that Greco wears Warriors apparel to "support not only student athletes, but the school community as a whole." These allegations of expressing support for the Warriors, in the context of the ban imposed by Part 123.5 and in light of Greco's involvement in this litigation, suffice to encompass opposition to Part 123.5 as a message….

The post School Board Member's Objection to No-Indigenous-School-Team-Logos Claim Can Proceed appeared first on Reason Magazine.

An excerpt from McWilliams v. Costa, decided Wednesday by Judge Stefan Underhill (D. Conn.):

This civil rights action under 42 U.S.C. § 1983 and Connecticut law challenges Defendants' unconstitutional denial of Plaintiff Michael McWilliams' pistol permit application ….

[As alleged in the Complaint,] McWilliams was a "secondary school teacher, a single homosexual male, and an adoptive parent." McWilliams "has no criminal record and has never been arrested or charged with any crime." McWilliams previously owned firearms, including a handgun from 2022-2023 and a long gun from 2010-2015.

From 2018 to 2024, allegations regarding McWilliams's behavior as a foster parent followed him as he moved to and resided in several different states. Those allegations resulted in investigations by both federal, state, and local authorities. McWilliams maintains that none of the allegations was ever substantiated and that no investigating authority ever found evidence of McWilliams's wrongdoing. I now summarize each of the allegations that McWilliams cites in his complaint.

First, McWilliams provided housing to Tyler Joseph, an 18-year old male, in Marshfield, Wisconsin, but later asked Joseph to leave the home due to behavioral issues. Joseph's friend Hunter Mattheisen then accused McWilliams of engaging in sexual misconduct with Joseph and of distributing psilocybin mushrooms. McWilliams claims that the Marshfield Chief of Police wrote a letter in November 2022 stating that the department "had not established any probable cause to arrest [McWilliams]." McWilliams further maintains that Marshfield police investigated those claims and "concluded they were baseless."

Second, McWilliams fostered two boys when he lived in Cortland County, New York in 2022. In April of that year, one of the boys "absconded" from McWilliams's home after McWilliams confiscated the boy's phone. Police picked up the boy and the boy made claims that McWilliams choked him and gave him "whoopings." When police took the boy to a hospital, McWilliams maintains that hospital staff found no evidence of abuse and that the boy "admitted he was just upset about losing his phone" and said that McWilliams had not abused him. Police returned the boy to McWilliams's home that same evening.

McWilliams claims that Kelley Thomsen, a Cortland County CPS caseworker, began "pursuing the matter aggressively" after that allegation of abuse. As a result of Thomsen's "defamatory assertions," the two boys were removed from McWilliams's home. McWilliams maintains that "both boys disclosed no criminal conduct by [McWilliams]."

Third, McWilliams adopted a son through West Virginia's child welfare system in 2021. After the Cortland County abuse allegations, McWilliams alleges that Thomsen contacted the West Virginia State Adoption Program Director and characterized McWilliams as a "pedophile" and a "sexual predator." Even after those assertions, McWilliams kept custody of his adopted son. Thomsen continued to encourage investigations of McWilliams's treatment of his adopted son. McWilliams maintains that "all investigations across the various jurisdictions (Wisconsin, New York State, and FBI) were closed with no action taken against [him]." …

In June 2024, McWilliams applied to the City of Middletown for a pistol and revolver permit. The police chief is responsible for issuing that permit and he "must determine if the applicant is a 'suitable' person." White, the MPD police officer, investigated McWilliams's background in connection with the gun permit application. During that investigation, White learned of prior investigations and allegations involving McWilliams from state agencies in Wisconsin and New York.

The defendants used those prior investigations and allegations to justify the denial of McWilliams's gun permit application. Costa, the Middletown chief of police, issued a formal denial letter, stating "over the course of several years you have been investigated by multiple different agencies, to include Marshfield Wisconsin Police, SUNY Police, Cortland Police, the FBI, and NY Child Protective Services, for crimes related to sexual assault and exploitation of juveniles." The letter also stated that McWilliams "had two foster children revoked from [his] home," placed "surveillance cameras in their bedrooms," and was "accused by multiple foster children … of choking or assaulting them." Costa concluded the letter by stating "[a]t this time we feel that you are not a suitable candidate to obtain a pistol permit." …

(McWilliams alleges in his Complaint that "The [denial] letter's claims are not only factually untrue, they also omit the exculpatory context: that Plaintiff was cleared of all such allegations, and that critical evidence (like the foster boys' own statements) contradicted the accusations.")

The court held that the pistol permit denial didn't violate the Second Amendment:

The Supreme Court has endorsed Connecticut's suitability regime. N.Y. State Rifle & Pistol Ass'n v. Bruen (2022) (explaining that "although Connecticut officials have discretion to deny a concealed-carry permit to anyone who is not a 'suitable person,' see Conn. Gen. Stat. § 29-28(b), the 'suitable person' standard precludes permits only to those individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon.").

Because the Supreme Court has endorsed the relevant regulatory regime, McWilliams is implicitly asking me to determine whether Chief Costa's denial of his firearm permit was arbitrary and capricious, in violation of McWilliams's Second Amendment rights. "Under the arbitrary-and-capricious standard, judicial review of agency action is necessarily narrow. A reviewing court may not itself weigh the evidence or substitute its judgment for that of the agency."

Balancing my mandates to treat all McWilliams's allegations as true and to defer to the judgment of the Middletown Police Department, I hold that the defendant "acted within a zone of reasonableness and, in particular, [have] reasonably considered the relevant issues and reasonably explained the decision." Through the course of their background investigation to determine McWilliams's suitability for a pistol permit, the defendants unearthed unsubstantiated past allegations of sexual and physical misconduct toward minors and investigations of that misconduct by federal, state, and local authorities. The defendants weighed those allegations and investigations in evaluating McWilliams as a permit applicant and explained how that history affected their suitability determination.

Although McWilliams argues that the defendants should not have denied his permit application based on allegations that had been "investigated and dropped without charges," the Connecticut Supreme Court has held that the suitability determination can rely on factors outside of criminal conduct and convictions, including the applicant's character and "reputation in the community." Stratford Police Dep't v. Bd. of Firearms Permit Exam'rs (2022).

By evaluating McWilliams's personal history and background, the defendants effectively examined his character and reputation in the community. It is not my place to conduct a post hoc analysis of their judgment. I therefore hold that the defendants did not act in an arbitrary and capricious manner in denying McWilliams's permit application based on those past allegations and investigations….

As best I can tell from the motion to dismiss and the reply to the response to that motion, the government's key argument was:

The denial was not arbitrary but based on documented allegations, even if unsubstantiated.

Dennis M. Durao and Abraham John Schwimmer (Karsten & Tallberg LLC) represent defendants.

The post Denial of Pistol Permit Based on Allegedly "Unsubstantiated" Past Allegations of Sexual Misconduct and Child Abuse appeared first on Reason Magazine.

Tournament Instructions

• Whether the original meaning of the establishment clause forbids a state from mandating the permanent, conspicuous display of a government-selected version of the Ten Commandments in every public school classroom.

• OT 2025 - Patriots v. Loyalists
• OT 2024 - Free Speech Coalition v. Paxton
• OT 2023 - Moody v. NetChoice
• OT 2022 - Students for Fair Admissions v. Harvard
• OT 2021 - New York State Rifle & Pistol Association v. Bruen
• OT 2020 – Torres v. Madrid
• OT 2019 – Espinoza v. Montana Department of Revenue
• OT 2018 – Timbs v. Indiana
• OT 2017 – Carpenter v. United States
• OT 2016 – Trinity Lutheran Church v. Comer
• OT 2015 – Abigail Fisher v. University of Texas, Austin (II)
• OT 2014 – Zivotofsky v. Kerry
• OT 2013 – National Labor Relations Board v. Noel Canning
• OT 2012 – Abigail Fisher v. University of Texas, Austin (I)

Championship Round

The post The 15th Annual Harlan Institute Virtual Supreme Court Competition appeared first on Reason Magazine.

This morning, the Supreme Court will hear oral argument in Suncor Energy v. Boulder County, in which fossil fuel energy companies are asking the Supreme Court to conclude that all state-law-based tort suits over damages allegedly caused by climate change are preempted. Assuming the Court reaches the merits, its decision could be quite significant for environmental law, climate policy, and American federalism.

I am scheduled to participate in two events analyzing the Suncor oral argument.

On Friday, October 9, I will be talking about the case at the University of Pennsylvania's Penn Carey Law School. The event, "Discussing the Scope of Preemption in Emission s Lawsuits," will also feature James Goodwin of the Center for Progressive Reform is sponsored by the law school's Environmental Law Project and is part of Penn's Climate Week.

On Tuesday, October 13, I will again discuss the Suncor argument at the Case Western Reserve University School of Law. This event, "Hot Times at the High Court: Suncor v. Boulder County and the Future of Climate Litigation," is a webinar (though we will have an in person audience too). It will feature Professor Paul Salamanca of the University of Kentucky. Registration info is here.

For more on the case, 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.

The post Unpacking the <i>Suncor</i> Oral Argument: Two Upcoming Events appeared first on Reason Magazine.

The post Today in Supreme Court History: October 5, 1953 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

Jan Crawford sat down with Justice Alito for an extended interview. There is so much to highlight. But I think this discussion of the Dobbs leak is significant:

The fallout began in late April 2022, when Politico notified the Court that it had a copy of the draft and intended to publish it. The justices were gathered in the Court's private dining room for one of their regular lunches when the chief justice told them of the leak. By tradition, the justices have lunch together when they're in the building for arguments or conference, sometimes a few days a week. It's a chance for them to talk about anything other than the cases. That's the one rule.

Hearing during a collegial lunch that a draft opinion had leaked for the first time in Court history was difficult for the justices to process. Alito said he was "stunned."

"It was quite a shock," Alito said. "But within a relatively short period of time, the thought occurred to me, and I think to the others in the majority, that this would endanger us. And it made us targets for assassination."

Security, Alito said, ramped up immediately. A month later, in June of 2022, the world would know why. In the middle of the night, as Justice Brett Kavanaugh and his family slept in their Maryland home, a would-be assassin approached their backyard with a bag containing a gun and rounds of ammunition, a knife and nail punch, duct tape, zip ties, a crowbar and other burglary tools, including special shoes to silence his footsteps.

He was intent on killing justices before the Court released its Dobbs decision. With its narrow 5-4 majority, it would only take one justice. He said on private messaging boards he aimed to kill at least three of the conservatives and, as prosecutors later put it, "single-handedly and irrevocably to alter an entire branch of the United States government."

At the last minute, the man spoke to his sister on his cell phone, and she managed to talk him out of it. He was arrested and later convicted for the attempted assassination of Kavanaugh.

"His goal was to change the decision in the case. So that was quite predictable," Alito said. "And whoever leaked it knew or had good reason to know that that would be the consequence of leaking it. And Politico knew, or should've known, that that would be the consequence of their decision to publish it."

Politico has explained its decision to publish the leaked draft as an "unprecedented view into the justices' deliberations" that is "plainly news of great public interest."

The leaker remains unknown. After Politico published its piece in early May, one theory was that a conservative had leaked the draft to keep the five votes in place, in case any of the justices in the majority were wavering. Alito was almost incredulous at the suggestion.

"It's implausible that any of us would have done that for exactly the reason I've mentioned, because this pinned a target on our backs," Alito said. "And it was very fortunate that that planned attack (on Kavanaugh) was not successful."

There were two general theories of who might have leaked the opinion. One theory is the leak came from the right as a means to lock in the votes and prevent a flip. As second theory is the leak came from the left as a means to put pressure on the majority to flip the vote, or worse, plant the seeds for deligitimizing the Court.

Alito says quite clearly that whoever leaked should have been aware that the publication would put a bullseye on the back of the five-member majority. No conservative would plausibly take that action. Alito firmly rejects the first theory. The second theory remains viable.

Crawford also confirms that Justice Thomas assigned the majority opinion.

With Roberts in dissent, urging the five not to overturn Roe, Thomas was the senior justice in the majority. He assigned Alito the opinion.

This was the speculation, and reinforces that from the get-go, Chief Justice Roberts did not support overruling Roe.

The post Alito Hints That The <i>Dobbs</i> Leaker Knew A Member of the Majority Would Be Subject To Assassination appeared first on Reason Magazine.

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.

The post Federal Circuit Again Excludes Judge Newman From Group Photo appeared first on Reason Magazine.

In an insightful recent article on the Liberalism.Org website, prominent libertarian political philosopher Matt Zwolinski argues that libertarians should place a higher value on democracy:

The problem with the list is what's not on it: democracy. It's not that classical liberals oppose democracy, exactly. Most of us don't. And almost none of us would trade it for any of the alternatives actually on offer. But democracy isn't what classical liberals are known for. It's not part of the brand. Indeed, if you spend much time in classical liberal circles, you're much more likely to hear about democracy's defects than about its accomplishments. We might tolerate democracy, but we rarely sing its praises.

The post Libertarianism and Democracy appeared first on Reason Magazine.

Associate Justice Samuel Alito sat down for multiple interviews with Jan Crawford of CBS News in advance of the opening of the Supreme Court's term and the release of his book, So Ordered: An Originalist's View of the Constitution, the Court, and Our Country.  Video clips from the interviews were released yesterday, as I noted here.

An extensive article based upon the interviews, and Crawford's reporting, is now up on CBSNews.com. It notes that Justice Alito is "one of the most influential Supreme Court justices of our time." Crawford writes:

The current Supreme Court is referred to as the "Roberts Court," after Chief Justice John Roberts, and Roberts is typically the justice most often in the majority. But Alito is in many ways the Court's conservative leader. His legal positions going back years on abortion, affirmative action, voting rights and religious liberty now are law of the land. . . .

Among the nine, Alito is especially skilled in bringing together five justices for a majority on some of the Court's most difficult and contentious issues. That includes his 5-4 majority decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and sent the issue of abortion back to the states.

That may seem a contradiction: The justice often publicly portrayed as unyielding and inflexible is, behind the scenes, the conservative who is uniquely adept at finding common ground on the most divisive issues.

It's a skill formed on the fields and classrooms of Hamilton Township: His focus and attention to detail, his loyalty, his quiet leadership style, and his ability to survey the playing field and adjust, all to make the winning play.

Justice Alito's critics may think he is motivated by grievance and conservative resentment. What Crawford's reporting reveals is that Justice Alito is quietly effective with his colleagues.

Outside the Court, few understand Alito's powerful role within it. Assembling and keeping together a majority is the whole ball game. Liberal icon William Brennan used to say the most important thing for a Supreme Court justice to know is how to count to five, and he was able to build coalitions with his legendary gift of personal persuasion and strategic compromise.

Alito, reserved and unassuming, has a very different approach. His influence is not through force of personality, but in his ability to thread the needle and find the rationale a majority will agree with.

Those skills allow him to forge consensus for an opinion that moves the law as far as is practicable at the time.

But while Justice Alito has been quite effective at crafting majority opinions that hold five votes, he does not believe he has had to compromise his principles or embrace reasoning he does not embrace.

"The most important thing to know is to be true to the Constitution. Getting to five is important. But you should not try to get a majority opinion if that means sacrificing something that is important," he said. "I will never adopt a legal rule that I think is wrong, or say something that I think is wrong. But without doing that, there are ways of trying to keep a majority together." . . .

"I have a theory about how the Constitution should be interpreted. I believe it has a fixed meaning. And it still means today what it was understood to mean when it was adopted. And I will not depart from that," he said. "But it is not necessary in every case to go as far as one might want to go if you were just writing the opinion for yourself."

Crawford's take on the Court, and Justice Alito's role within it, is worth heeding. Her book, Supreme Conflict, chronicled the making of the Roberts Court, and her reporting tends to carry more insight into the current Court than that of her competitors. Among other things, she was the first reporter to grasp how much Justice Thomas's commitment to originalist jurisprudence was influencing his colleagues, including the late Justice Scalia.

Justice Alito apparently sat for several hours of interviews in his New Jersey hometown and at the Supreme Court. Among the subjects discussed were his approach to the law, his decision-making, whether he thinks about retirement, and the leak of his draft Dobbs opinion.

Hearing during a collegial lunch that a draft opinion had leaked for the first time in Court history was difficult for the justices to process. Alito said he was "stunned."

"It was quite a shock," Alito said. "But within a relatively short period of time, the thought occurred to me, and I think to the others in the majority, that this would endanger us. And it made us targets for assassination." . . .

The leaker remains unknown. After Politico published its piece in early May, one theory was that a conservative had leaked the draft to keep the five votes in place, in case any of the justices in the majority were wavering. Alito was almost incredulous at the suggestion.

"It's implausible that any of us would have done that for exactly the reason I've mentioned, because this pinned a target on our backs," Alito said. "And it was very fortunate that that planned attack (on Kavanaugh) was not successful."

Crawford's story also has some reveals. It notes that Justice Thomas wanted the Dobbs opinion to question other substantive due process precedents, such as Obergefell, but that view could not command five votes. Obergefell, the Court's decision requiring states to recognize same-sex marriage, is not at risk. There is "not a realistic prospect" Obergefell could be overruled, Alito told Crawford.

"I knew that the decision in Dobbs would be attacked on the grounds that this is a terrible decision not only because of what it says about the right that was identified in Roe, but also because it will mean that these other decisions — Obergefell and contraceptive decisions — are also going to be potentially overruled. And that was not a realistic prospect. And I wanted to lay that out." . . .

"One of the important factors we take into account in deciding whether we should reexamine a past decision is the degree to which there has been reliance on the decision," he said. "Obviously a great deal had changed in the country as a result of Obergefell. There was a lot of reliance in various ways on the decision in Obergefell."

I pointed out that people thought Roe v. Wade was settled law of the land, had organized their lives around it. Overturning Roe also would have consequences.

Obergefell, he said, was different.

"After Obergefell, people of the same sex got married and entered into contracts … it was much more concrete," he said. "Whereas with Roe, the argument was made that it had an effect on people's ideas, women's ideas about the kind of society that they were going to live in, that this would have an effect on the society. It was much more abstract than what would've been involved had we been asked to overrule Obergefell."

Alito also discussed ethics controversies, calls for his recusal, and his wife's fondness for flags.

"My wife decided to fly a flag. I wasn't even aware of what she was doing until one of our police officers informed me," Alito told me. "And I asked her to take it down. And she did eventually. But she's a very independent person. And she's a private citizen. And she has her rights."

I said it was hard for some to understand why he didn't insist she take it down immediately.

"That's not the nature of our relationship. I don't actually have the legal right to tell her what to do with a home that we own jointly," he said. "Plus I am not the lord and master of our household. That's not our relationship, and it's not the one that I want."

There's lots more in the story, including Justice Alito's thoughts on collegiality on the Court, his fondness for Justice Breyer, and what his office reveals about him. The full article is worth a read. More video from the interviews will air Monday.

The post A Conversation with "One of the Most Influential Supreme Court Justices of Our Time" appeared first on Reason Magazine.

The post Today in Supreme Court History: October 4, 1965 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

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.

The post Comparing the Credentials Of Three Decades of Fifth Circuit Nominees appeared first on Reason Magazine.

Section 117 of the Higher Education Act requires universities to report foreign gifts and contracts to the Department of Education, making those reports publicly available. Since 2020, the Department has also collected the names of individual foreign donors while stating that it would not publish them. In June 2026, the Department reversed course, announcing that it would publish those names. After initially publishing the names of 92 Institutional donors, it set October 2, 2026, as the date for publishing the names of all donors.

The court granted a TRO against this release:

To start, AAU has shown a likelihood of success on its claim that the [June 2026] Publication Decision is arbitrary and capricious [and thus a violation of the Administrative Procedure Act]; the court need not reach its remaining claims at this stage. When an agency changes position, it must "display awareness that it is changing position" and give "good reasons for the new policy." Where the prior policy "has engendered serious reliance interests," the agency must account for them.

For six years, across two information collection requests, Defendants told institutions—in writing—that it would not include donor names and addresses in the public disclosure report. Plaintiff alleges that institutions and donors relied on those assurances in making and accepting donations.

The only attempt at an explanation Defendants proffer for their policy change is an asserted statutory mandate to disclose: they state without elaboration that "the statutory inspection requirement outweighs countervailing confidentiality interests." Defendants' explanation also appears internally inconsistent, characterizing publication as statutorily required, yet treating the withholding of addresses as a discretionary "policy matter."

The Department may ultimately be able to justify its decision. But the present record shows that AAU is likely to succeed in establishing that the Department "entirely failed to consider an important aspect of the problem."

Plaintiffs are also likely to show that they will "suffer irreparable harm unless preliminary relief is granted." By its very nature, the disclosure of confidential information, including personally identifying information, may constitute irreparable harm "because such information, once disclosed, loses its confidential nature."

Here, Defendants threaten to imminently publish the names of donors who have hitherto remained anonymous for every internet user to see in posterity. Once published, the information will likely never escape the public eye. Indeed, the disclosure may produce downstream harms to the safety of donors who live in politically repressive countries….

Finally, the balance of the equities and the public interest … also favor Plaintiffs. As previously discussed, the publication of the donors' identities would irreversibly eviscerate all privacy interests they maintain in their personal information, which, to date, has remained confidential. By contrast, Defendants have not identified any serious harm they would suffer were this court to temporarily enjoin the impending publication.

During the hearing, Defendants' counsel conceded that the only prejudice Defendants would suffer is a delay in their ability to execute a purported statutory command. But even assuming Defendants are correct on the merits, they have withheld publication of the names of these donors since July. It is unclear what, if any, harm Defendants would suffer were publication delayed for a few more weeks….

Defendants and their officers, agents, employees, and all persons acting in concert with them are hereby ENJOINED from publishing, disclosing, or otherwise making publicly available, the names or any other identifying information of foreign donors and contract counter-parties that was reported by AAU's member institutions under Section 117 of the Higher Education Actand that has not previously been publicly disclosed, and from taking any other action to effectuate the Department of Education's recent decision to publish that information….

Here is an excerpt from the government's June 2026 statement explaining its plans (though they focus more on the First Amendment issues, which Judge Chutkan didn't reach, rather than the Administrative Procedure Act):

The Department acknowledges that non-U.S. persons retain certain constitutional rights within U.S. borders, and that institutions of higher education may have interests in not disclosing their associations with foreign donors. These interests, to the extent applicable, are not absolute and must be weighed against compelling public interests.

In this case, the public interest at stake—the ability to examine substantial foreign financial ties with domestic institutions of higher education, including research institutions involved in the taxpayer-funded development of critical and emerging technologies—is substantial and directly affects U.S. national security considerations. Public access to the identities of qualifying foreign counterparties is essential to transparency and helps ensure that the national interests of the United States are protected.

Accordingly, it is not only statutorily required but also in the best interests of the United States' national security to provide access to the identities of qualifying foreign nationals and entities that provide gifts to, or enter into contracts with, institutions of higher education and the Department's ongoing collection and public release of this limited foreign counterparty information falls within, and does not exceed, the Department's authority under Section 117.

Similarly, the constitutional right of association does not extend to include the counterstatutory concealment of foreign counterparty identities (or even protection of associated personally identifiable information (PII)). Therefore, the First Amendment cannot be used to conceal the identities of qualifying foreign counterparties (even as the Department continues to withhold additional PII such as foreign counterparty addresses from disclosure).

Furthermore, any rights of natural persons or artificial persons (e.g., foreign corporations or other entities) must be balanced against the compelling transparency mandates of Section 117 and related national security initiatives protecting the taxpayer-funded Federal research enterprise. Therefore, the collection and publication of qualifying foreign donor and contractor identities who provide gifts to, or enter contracts with, institutions of higher education are justified and within the Department's authority under Section 117.

The Department also recognizes the Supreme Court's decisions in Americans for Prosperity Foundation v. Bonta (2021), and First Choice Women's Res. Ctrs., Inc. v. Davenport (2026). In those cases, the government interests involved were unrelated to national security and focused on protecting the associational rights of nonprofit organizations.

Section 117 involves very different statutory concerns: the information collected often involves foreign relationships that may have a direct and significant impact on national security. Some institutions have repeatedly disregarded warnings from U.S. government agencies about funding from foreign entities of concern that appear on various U.S. government lists indicating the need for heightened diligence by institutions, including entities associated with potentially adversarial entities from Russia, China, and Iran. These entities continue to provide gifts and enter contracts with domestic institutions, placing U.S.-funded critical research at significant risk.

Because no other government agency is statutorily compelled to collect comparable information from institutions, the national security benefits of providing for public inspection of the identities of qualifying foreign counterparties outweigh the associational and limited privacy interests of foreign nationals (natural and artificial persons) and their domestic counterparts.

Here is an excerpt from Section 117:

(a) Disclosure report. Whenever any institution [basically meaning higher education institution -EV] is owned or controlled by a foreign source or receives a gift from or enters into a contract with a foreign source, the value of which is $250,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign source within a calendar year, the institution shall file a disclosure report with the Secretary on January 31 or July 31, whichever is sooner.

(b) Contents of report. Each report to the Secretary required by this section shall contain …, the aggregate dollar amount of such gifts and contracts attributable to a particular country. The country to which a gift is attributable is the country of citizenship, or if unknown, the principal residence for a foreign source who is a natural person, and the country of incorporation, or if unknown, the principal place of business, for a foreign source which is a legal entity….

(c) Additional disclosures for restricted and conditional gifts. Notwithstanding the provisions of subsection (b), whenever any institution receives a restricted or conditional gift or contract from a foreign source, the institution shall disclose … the amount, the date, and a description of such conditions or restrictions. The report shall also disclose the country of citizenship, or if unknown, the principal residence for a foreign source which is a natural person, and the country of incorporation, or if unknown, the principal place of business for a foreign source which is a legal entity.

{"[R]estricted or conditional gift or contract" means any endowment, gift, grant, contract, award, present, or property of any kind which includes provisions regarding—
(A) the employment, assignment, or termination of faculty;
(B) the establishment of departments, centers, research or lecture programs, or new faculty positions;
(C) the selection or admission of students; or
(D) the award of grants, loans, scholarships, fellowships, or other forms of financial aid restricted to students of a specified country, religion, sex, ethnic origin, or political opinion.}

(e) Public inspection. All disclosure reports required by this section shall be public records open to inspection and copying during business hours….

Ishan Kharshedji Bhabha, Amanda Shafer Berman, Anjali Motgi, Elizabeth Henthorne, Lindsay C. Harrison, and Kara V. Brandeisky (Jenner & Block LLP) represent the Association.

The post Judge Temporarily Blocks Dep't of Education Release of Names of Individual Foreign Donors to U.S. Colleges appeared first on Reason Magazine.

On Friday, CBS News released several clips from Jan Crawford's interview with Justice Samuel Alito. In these clips Justice Alito discusses the Dobbs decision, Presidential comments about the Court, being recognized in public, and how he thinks about retirement from the Court. Here's the retirement clip:

And here's the clip on comments made by Presidents about the Court:

UPDATE: A longer interview video will released on Monday. An accompanying print story by Crawford will be released on Sunday.

The post Justice Alito on Deciding When to Retire from the Court appeared first on Reason Magazine.

The post Today in Supreme Court History: October 3, 1990 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! Last year, in Rivera v. Borough of Pottstown, a Pennsylvania appeals court ruled that individualized suspicion is required before gov't officials can get a warrant to search homes for code violations. Which was great! But now the borough is demanding that renters submit to suspicionless searches by private inspectors. So, folks, we're doing Rivera v. Pottstown II.

New on the Short Circuit podcast: We place our bets—sorry, predictions—on whether Kalshi is on the up-and-up when it comes to Indian gaming and on prediction market regulation more generally.

1. German company wins bid to supply trains (that can travel >186 mph) for new railroad from Rancho Cucamonga, Calif. to Las Vegas. (The company's trains currently travel 220 mph.) The first two trains will be built in Germany with American workers on hand for training—and then eight more Made in America. Losing bidder (whose trains "presently have a maximum speed of 160 miles per hour"): That's not Buy America enough. D.C. Circuit: It is.
2. Rhode Island man jumps out of second-story window to evade arrest, breaking his feet and ankles; he claims he has to hobble around prison without doctor-recommended accommodations. Prison officials: The state tort claims act may waive sovereign immunity for "all actions of tort," but the state supreme court has never definitively said whether that applies to discrimination claims. First Circuit: We checked in with the Rhode Island Supreme Court on this, and they seemed pretty definitive.
3. Legal research platform ROSS Intelligence trained its AI system on Westlaw headnotes. A copyright violation? Third Circuit: Yes. The headnotes are copyrightable and their use in training wasn't fair.
4. It would obviously violate the First Amendment for city officials to pass a law making it illegal for a sound-truck operator to support the mayor's political opponent, but what if instead they just conspire to seize the guy's truck by invoking esoteric parking and noise ordinances? Sixth Circuit: Yeah, that's unconstitutional, too! (Though there's qualified immunity for officials who were just following the conspirators' orders.) (This is an IJ case.)
5. In 1995, saying she "just felt mean that day," Knoxville, Tenn. woman (with friends) tortures and kills another woman, taking a piece of the victim's skull that she said she was "eating breakfast with." She's sentenced to death. She seeks habeas relief, loses. Her execution is set, and a few months before, she challenges the state's execution protocol. At a hearing, the state's attorney says that the state "does not dispute" that the woman suffered from a history of rape and sexual abuse. Woman, hours before her execution: That concession "erodes the foundation" of my state court proceedings and requires reopening my habeas petition. District court: This is effectively a second habeas petition, which courts can't consider. Sixth Circuit, over a dissent: We'll stay the execution so we can properly consider the arguments. Supreme Court, over a dissent: Stay vacated. (The state then botches the execution, and the woman is now in critical condition.)
6. Your summarist didn't take the classes in law school that tell you what a "swap" is. But whatever the meaning, the Sixth Circuit doesn't buy Kalshi's argument that "predicting" the "event" of the Dodgers taking the next series in 5 is not in the same league as "betting" on the future price of pork bellies. Which means the Ohio and Tennessee gambling authorities win this round and Kalshi's attempts to preliminary enjoin them fail.
7. When officers have an arrest warrant, do they need probable cause to think the subject is home before they bust in to apprehend them—or a mere reasonable belief? Sixth Circuit (unpublished): We've said both, and we're not clearing anything up today. Qualified immunity.
8. Ninth Circuit: It is not a Fourth Amendment violation for police to hold a felony suspect at gunpoint until he's cuffed, even if he's compliant. Partial dissent: They had no reason to think this guy was violent, and a jury might think pointing guns at his head from three feet away was unreasonable. But there's no clearly established law on that, so we do indeed have to reverse the denial of QI.
9. After the creation of the Great Basin National Park in the 1980s, the feds began diverting water inside the park, a serious problem for ranchers downstream, whose water rights were set out in a 1934 state-court proceeding. Ninth Circuit: Case undismissed! Congress waived sovereign immunity in these cases in 1952, and it would be "absurd" were it otherwise. Dissent: What's "absurd" is the majority's reading of the statute, precedent, and legislative history. This is going to be a disaster.
10. Mexican citizen in the U.S. since 2000 loses bid to have his removal canceled, but he's allowed to leave voluntarily, and he pays the $500 required for that the next day. He also promptly appeals on cancellation of removal. On appeal, the BIA affirms on cancellation and also says he never paid the $500, even though the receipt is in the record. Ninth Circuit: Yeah, he paid the receipt. Voluntary removal is still an option. Concurrence: The gov't argued if the BIA gets a fact wrong, the appellant is out of luck. That's outrageous. Dissent: It's what SCOTUS has said.
11. If there had been a prediction market on whether the Ninth Circuit would uphold Arizona's sweeping new campaign finance disclosure law—despite our nation's long and storied history of anonymous political speech—your summarist might have saved himself some time reading this 103-page opinion reaching an extremely predictable result.
12. Seattle's Race and Social Justice Initiative "aims to undo institutionalized racism in the workplace by, among other things, requiring employees to attend trainings on racial justice and facilitating racially aligned affinity groups." Participant alleges that it also led to a hostile workplace in which white people were denied gov't benefits and employment opportunities. Ninth Circuit: Case undismissed.
13. Allegation: Oregon inmate is hit with pepper spray meant for someone else and isn't allowed to clean it off for two very unpleasant days. District court: You filed suit too late. Although the deadline was delayed while you muddled through the prison's internal grievance process, your first attempt at grieving doesn't count toward the tolling. Ninth Circuit: Case undismissed.
14. Alabama law prohibits convicted sex offenders from living with children, including even their own children. Eleventh Circuit: Which is unconstitutional. Every other state addresses this issue without imposing irrevocable prohibitions on parents.
15. Eleventh Circuit: If you obtained a federal loan by fraudulently claiming your scuba-diving business was shut down due to COVID-19 (when it was instead shut down due to the fact that you'd killed a diver with your boat), it's perfectly fine for the feds to try you for the killing and the frauding at the same time.
16. In which the Eleventh Circuit reiterates that a gov't defendant's decision to give up on a challenged policy does not necessarily deprive the federal judiciary of the power to order that the policy to stay given up.
17. And in en banc news, the Ninth Circuit will not reconsider its decision that the Forest Service's transfer to a private mining company of federal land home to an Apache ceremonial religious ground and the world's third-largest copper deposit passes muster under the Free Exercise Clause and RFRA. Dissental: Converting the sacred site into a 2-mile-wide, 1,000-foot-deep hole is obviously a substantial burden on the Apaches' religious exercise.

Victory! This week, a federal jury ruled that Bexar County, Tex. is liable for its policy of unconstitutional highway stops. In Bexar, and indeed elsewhere, ordinary travel is flagged as suspicious by license-plate readers (among other means), resulting in thousands of pretextual stops and extended searches of law-abiding motorists. IJ client Alek Schott, for instance, was falsely accused of drifting over a fog line and interrogated for over an hour after a Border Patrol analyst flagged his work trip as suspicious (and after a K9 falsely alerted on his truck). "The Fourth Amendment does not permit this," says IJ Attorney Christie Hebert. "Today, a jury of Texans looked at how this program actually worked and said so. Every agency in this state should understand that we are fully prepared to enforce this verdict."

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason Magazine.

In a recent "fireside chat" before the Tenth Circuit conference, Supreme Court Justice Neil Gorsuch decried the trend towards abusive use of emergency powers (see also this slightly more detailed account):

"Everything is an emergency," he said…. "We've moved so much up to the federal level that needs to be done by states. And now through delegations of authority, through emergency legislation of all stripes, we've moved it over to the executive branch. And I just don't think that's a recipe for a healthy democracy over the long term."

Gorsuch is absolutely right about this. We should not allow emergency powers intended to be used only in extreme situations to become a blank check that the executive can wield at will. Sadly, we have increasingly moved in that dangerous direction. Presidents of both parties have abused emergency powers, though Trump - in his second term - has been a particularly egregious offender.

While much of the blame for this state of affairs rests with Congress and the executive branch, Gorsuch and other judges can help by rigorously enforcing constitutional and statutory constraints on emergency powers. As I outlined in more detail in a Dispatch article published last year, courts should engage in strong judicial review of both the meaning of terms like "emergency," "invasion," and "unusual and extraordinary threat," and whether the facts on the ground proves that these dangers are actually present (thereby justifying invocation of extraordinary emergency powers to deal with them). I also rebut the argument that courts should defer to the executive on these kinds of issues, because of the supposedly superior expertise of the latter.

The Supreme Court has in fact constrained executive abuse of emergency powers in several important cases, under both Biden and Trump. Notable examples include the IEEPA tariff case (which I helped litigate) and the Illinois National Guard case (both under Trump), and Biden v. Nebraska (2023) (in which the Court rightly struck down Biden's attempt to use Covid emergency powers as a pretext to forgive over $400 billion in student loan debt). Last year, the Supreme Court also blocked Trump's efforts to swiftly deport Venezuelans under the Alien Enemies Act, a statute that can only be used in the event of an "invasion" or a "predatory incursion" on US territory by a foreign government.

But in each of these cases, the Court never ruled on whether an emergency, "invasion," or other extraordinary circumstance justifying the use of emergency powers was actually present. It instead ruled against the executive on other grounds. In one of the "shadow docket" cases involving the Alien Enemies Act, the Court did rule that the meaning of "invasion" and other terms in the Act is subject to judicial review. But it did not address the question of deference on factual issues. Thus, the extent to which the Court is willing to constrain abuses of emergency powers remains at least somewhat unclear.

To his credit, back in 2022, Justice Gorsuch broke with the other conservative justices, and (along with the three liberals) dissented from a procedural decision that, in effect, required Biden to continue the abusive use of Covid emergency powers as a tool for immigration restrictions. As Gorsuch put it in his dissent, "courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency." 

Judicial review cannot fully solve the problem of abusive use of emergency powers on its own. As noted in my Dispatch article, Congress needs to step in and take measures such as setting strict time limits on executive-declared invocations of emergencies. But the judiciary can, nonetheless, play a valuable role in preventing extraordinary emergency powers from becoming a blank check the president can use whenever he wants.

And, while we cannot rely on the judiciary alone to police abuses of emergency powers, we should also avoid the opposite error of relying solely on Congress. As Gorsuch points out in his compelling concurring opinion in the tariff case, it is very difficult for Congress to pull back delegations of power, if courts interpret them overbroadly:

When a private agent oversteps, a principal may fix that problem prospectively by withdrawing the agent's authority. Under our Constitution, the remedy is not so simple. Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve. Any President keen on his own authority (and, again, what President isn't?) will have a strong incentive to veto legislation aimed at returning the power to Congress. Perhaps Congress can use other tools, including its appropriation authority, to influence how the President exercises his new power. Maybe Congress can sometimes even leverage those tools to induce the President to withhold a veto. But retrieving a lost power is no easy business in our constitutional order. And without doctrines like major questions, our system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man. That is no recipe for a republic.

That is all the more reason for the judiciary to rigorously enforce statutory and constitutional constraints on the scope of delegated powers - especially when we are talking about sweeping emergency powers that endanger civil liberties, threaten the stability of the economy, and have other potentially massive effects.

If anyone has access to the full text of Gorsuch's talk at the Tenth Circuit conference, please send it to me, if you can.

NOTE: For those keeping score, I also called for rigorous judicial review of invocations of emergency powers under Biden. See, e.g., here and here.

The post Justice Gorsuch on Abuse of Emergency Powers appeared first on Reason Magazine.

I appreciate the perspective of Mike Fragoso, who knows more about judicial nominees than just about anyone else. Mike is clearly right that there is a risk of not letting Judge Southwick hand his sinecure to his law clerk. Southwick can simply not take senior status under President Trump. Indeed, if Butler's nomination is scuttled (Sullied?), Southwick can follow the unethical path of Judge Wynne and rescind his request for senior status. (Southwick's already fragile reputation would be irreparably tarnished by such a move.) If so, Southwick could either take senior status under a Democratic President, or just keep serving until his seat becomes otherwise vacant.

The argument goes that it is better to have even a questionable Republican-appointed judge on the Fifth Circuit, rather than a proven liberal like Carlton Reeves. I can certainly see the logic here. But I'm not sure it works.

For starters, we should remember that more than 90% of the Fifth Circuit cases are unanimous. For these cases, there is no meaningful difference between Edith Jones and Steve Higginson. For these cases, whether it is Southwick or Butler or Reeves, the outcome would be the same.

What actually matters, of course, is the other 10% of cases. What especially matters are the en banc disputes where the seventeen-member court is usually divided on a raze-thin margin.

Going back at least a decade, I think in nearly every significant ideological en banc case, Judge Southwick has voted with the Democratic- appointees. I'm sure there are exceptions I am forgetting, but in cases that matter, Judge Southwick is virtually indistinguishable from Judge Higginson. (And for what it's worth, I deeply respect Judge Higginson as the leader of the Fifth CIrcuit's progressive wing.)

In 2022, I did a deep dive into Fifth CIrcuit en banc votes. I compared how the Republican-appointed judges vote as compared to Judge Edith H. Jones, who has long been the circuit's conservative stalwart. Judge Southwick had an EHJ score of zero. (Judge Wilson's score was as low as it was because he had only recently been confirmed to the bench.)

Southwick's numbers in that slide were from the Biden Administration. It has gotten even worse during Trump 2.0

Indeed, I presented this paper at the Jackson Federalist Society Chapter, with Judge Southwick in the room. Lest you think I pull my punches in person, I don't. He was a gentleman, and took it graciously. And no, Todd Butler was not there. [Update:  Mike Hurst, a friend of Butler who has posted on social media in support of the nomination, indicates that Butler was there. I did not have any recollection of meeting him (though I remember meeting others), but I will stand corrected. Indeed, I just went through some old photos from the day of the event, and I see that Butler was in fact there. My apologies.]

Let's assume that Judge Butler is not Sullied, and he is confirmed. Let's also assume that Judge Butler will be a jurisprudential clone of Judge Southwick. Now, the 10% of the cases that matter will have two center-left members. And if Judge Southwick keeps a full caseload, he is likely to sit on several en banc cases each year. Does anyone think Butler will vote against he person who gave him his sinecure? (The two are apparently very good friends as well.) Again, there will now be two center-left members. Judge Butler's confirmation would arguably make some of the 9-8 victories for conservatives would split 9-9. How is that any better than the status quo?

If this is all right, I would much prefer a 75-year old Southwick casting one vote, than Southwick and a 40-something old Butler casting two votes.

The alternative, I suppose, is for 75-year old Southwick to cast one vote for the foreseeable future, and then have Carlton Reeves (born in 1964) cast one liberal vote for the foreseeable future after that. I much prefer this alternative.

If anyone has anything positive to send me about Judge Butler, please do. I've spoken to several people in Mississippi, and all I hear is "trust me, he's conservative." I've heard that before. Has he ever done anything conservative? Has he participated in any conservative civic group (paying FedSoc dues doesn't count)? All I see is a Southwick acolyte who criticizes Justice Scalia and attacks street preachers as domestic terrorists.

The post How Would A Judge Butler Actually Affect The Fifth Circuit? (Updated) appeared first on Reason Magazine.

I continue to dig through the record of Todd Butler, the new nominee to the Fifth Circuit. I wonder if anyone else did?

Butler's greatest claim to fame is arguing Olivier v. City of Brandon before the Supreme Court. The questions presented were fairly technical:

1. Whether, as the Fifth Circuit holds in conflict with the Ninth and Tenth Circuits, this Court's decision in Heck v. Humphrey bars § 1983 claims seeking purely prospective relief where the plaintiff has been punished before under the law challenged as unconstitutional.

2. Whether, as the Fifth Circuit and at least four others hold in conflict with five other circuits, Heck v. Humphrey bars § 1983 claims by plaintiffs even where they never had access to federal habeas relief.

The actual facts were not important to the question presented. These were pure questions of law. Yet Butler's briefs took gratuitous shots at Gabe Olivier, a street preacher who was arrested by the City of Brandon.

Butler's brief in opposition to certiorari compared street preaching to "domestic terrorism."

Petitioner presents himself as "a Christian" who wishes to peacefully "share[] his faith on public streets[.]" Pet.6. He likewise did so in the district court, claiming he does not hurl insults and speaks only in a conversational tone to people walking by. ROA.21. Video evidence proves otherwise. On multiple occasions, Petitioner has yelled insults at event attendees, including "whore," "Jezebel," "fornicator," "drunkards," and "sissy." ROA.295-301. The conduct caused disturbances that would have resulted in violence had law enforcement not intervened. ROA.293-301.

Group protests are his normal course of action, with individuals in his group having been found guilty of simple assault for harassing citizens and one court even describing their actions as "domestic terrorism." ROA.398-424. The group has targeted, followed, hurled insults at, spit on, harassed individuals, and, at one point, "began closing in" on a couple.

This passage is beyond insulting. He put "Christian" in scare quotes, as if to doubt Olivier's faith. And the "domestic terrorism" charge is extremely divisive. Again, none of these points were necessary in a boring case about Heck v. Humphreys. But Butler felt compelled to attack the plaintiff.

Olivier's reply brief, filed by Allyson Ho at Gibson Dunn and First Liberty, fired back:

The city begins (at 7-8) by disparaging Olivier's evangelism and states that while he "presents himself as 'a Christian'" the "evidence proves otherwise." But "no official, high or petty, can prescribe what shall be orthodox in * * * religion." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Contrary to the city's over-hyped rhetoric, Olivier "identifies sins he believes are relevant for the community at large" to share the good news that Jesus Christ saves people from their sins.

Olivier is exactly right. The government cannot define who is religious and who is not. If you believe in the Gospel, you have an obligation to tell others your views. What does Butler think preachers do?

One might have thought after the cert grant, Butler would step back from this cliff. After all, he needs votes from Justices Alito and Thomas. But he does not.

The Respondent brief again questions whether Olivier was evangelizing, and repeats the"domestic terrorism" claim:

After it opened, Petitioner traveled to the Amphitheater with a group to, in his words, evangelize. J.A.5. The group's evangelism included using a loudspeaker to call patrons "whores," "Jezebels," "grody," "nasty," "sissies," and other derogatory names.1 Pet.App.21a-23a. They held large signs, some of which depicted aborted fetuses. Pet.App.29a.

FN1: Courts have equated the group's more aggressive conduct, including spitting on people, to "domestic terrorism." C.A.ROA.414.

The Petitioner's reply brief shot back sharply:

The city disparages Olivier's evangelism with inaccurate, unsupported accusations, even equating his peaceful expression with "domestic terrorism." Resp. Br. 3 n.1 (citing C.A. ROA 414). Olivier vigorously disputes this characterization. The prosecution cited by the city involved the conduct of other people in a different location. That prosecution doesn't allege that Olivier participated in the purportedly "aggressive conduct," and there's no support for the city's baseless implication that Olivier "spit[ ] on people." Ibid.; see J.A. 26-27.

Many of President Trump's nominees have done favorable things for religious liberty. But here, Butler actively attacks a Christian, questions his evangelism, and compares him to a domestic terrorist.

Remember when during the Biden Administration parents at school board meetings were called "domestic terrorists"? Senator Hawley ripped Attorney General Garland about this scandal.

Much more to come.

The post Todd Butler Compared Street Preacher In Supreme Court Case To "Domestic Terrorism" appeared first on Reason Magazine.

Louis Geri, 42, of Vineland, New Jersey, was sentenced today in U.S. District Court to 70 months in prison in connection with threatening to detonate more than 100 homemade explosive devices on the steps of St. Matthew's Cathedral during the annual Red Mass attended by U.S. Supreme Court Justices and other senior government officials, announced U.S. Attorney Jeanine Ferris Pirro.

Geri pleaded guilty March 5 before Judge Randolph M. Moss to a count of Hobbs Act extortion by wrongful use of force, violence, or fear, and to a count of possession of an unregistered firearm (destructive device)….

According to the plea agreement, on the evening of Oct. 4, 2025, Geri rode his motorcycle to St. Matthew's Cathedral, on the 1700 block of Rhode Island Ave. NW, and erected a tent on the church's front steps. Inside the tent, he assembled more than 100 explosive devices he had manufactured from materials—including nitromethane, magnesium, charcoal, and thermite—purchased in Arkansas and assembled in Virginia. He also carried a nine-page list of written demands.

The Red Mass, a high-profile annual religious ceremony attended by members of the Supreme Court, Cabinet, Congress, and the diplomatic corps, was scheduled at the cathedral for the following morning.

About 5 a.m. on Oct. 5, 2025, Metropolitan Police Department officers approached Geri's tent while patrolling the area before the service. When officers told him he would need to move, Geri refused and threatened to throw one of his explosive devices into the street to demonstrate its destructive power. He told officers that "several of your people are gonna die from one of these" if federal agents did not come to negotiate his demands.

Geri allegedly demanded, among other things (text converted into a bulleted list):

• hundreds of thousands of dollars in payments to himself and others;
• that federal arrest warrants be issued for all elected government officials and all judges so they could be held as terrorists under the "Patriot Act designation";
• that the President of the United States call on Congress to declare war on the "rogue cartel state" formerly known as Arizona;
• extended hotel stays at the Mayflower Hotel in Washington, D.C.;
• the Supreme Court remove the state of Arizona from the United States, declare it a "foreign enemy," and limit the movements of the residents of Arizona;
• numerous requests to leaders of the Catholic and Jewish faiths, including but not limited to:
  • (i) barring woman from positions that carry legal authority over church holdings and parishes;
  • (ii) excommunicating all Arizona-based Catholics; and
  • (iii) revealing the lie of the Holocaust and removing all social controls based on it, especially in the "Jewish welfare system" in Germany; and finally, an expatriation flight to Japan.

Josh Satter was the prosecutor on the case.

The post Red Mass Explosive Man Asked S. Ct. to "Remove Arizona from the United States" and "Declare It a 'Foreign Enemy'" appeared first on Reason Magazine.

From Judge Richard Arcara (W.D.N.Y.) yesterday in U.S. v. Matar:

Following a jury trial, Defendant Hadi Matar was convicted of each charge contained in a three-count indictment. Count 1 charged Matar with attempting to provide material support to a designated foreign terrorist organization ("FTO")—that is, Hizballah, in violation of 18 U.S.C. § 2339B(a)(1). Count 2 charged Matar with committing an act of terrorism transcending national boundaries, in violation of 18 U.S.C. § 2332b(a)(1)(A). Count 3 charged Matar with providing material support to terrorists, in violation of 18 U.S.C. § 2339A. The charges against Matar stemmed from his stabbing of the author Salman Rushdie  …  at the Chautauqua Institution on August 12, 2022 ….

Matar moved for a judgment of acquittal, but the court said no. Here's an excerpt from the discussion of why Matar was acting sufficiently under the direction of a foreign terrorist organization (which is required under the relevant federal statute) rather than just independently—if he had been acting independently, that would have still been attempted murder punishable under state law, but likely not a violation of these statutes:

As charged in Count 1, [18 U.S.C. § 2339B] criminalizes attempting to provide "material support or resources," including "personnel" and "services," to a designated foreign terrorist organization. Matar asserts that Count 1 should be "set aside because the Government did not prove that Defendant provided material support to Hizballah under the controlling rule announced in United States v. Ullah [2d Cir. 2026]." According to Matar, the "controlling issue" is "whether the alleged 'personnel' and 'services' were legally provided to Hizballah at all."

Specifically, seizing upon the Second Circuit's recent decision in Ullah, Matar maintains that while he, much like Ullah, was inspired by, was ideologically aligned with, and was intent on benefitting an FTO, such evidence was "not enough" to establish that he was acting under the direction and control of (as required under the "personnel prong")—or acting in coordination with or at the direction of (as required under the "services prong")—such FTO….

Considering all the evidence presented at trial, a properly-instructed jury found beyond a reasonable doubt that Matar attempted to provide himself, as "personnel," and his conduct, as a "service," to Hizballah…. [T]he jury, considering the evidence presented at trial, reasonably determined such evidence to be sufficient to establish: (1) that Matar, in repeatedly stabbing and attempting to murder Rushdie, provided personnel and services to Hizballah; and (2) that at the time he committed such acts, Matar was acting at the direction Hizballah, by attempting to fulfill the fatwa—which was originally issued by the Supreme Leader of Iran, Ayatollah Khomeini, and was subsequently endorsed, in 2006, by Hassan Nasrallah, then-Secretary General of Hizballah, and again, in 2017, by the Ayatollah Khomeini's successor, Ayatollah Khamenei—calling for Rushdie's murder. This Court sees no reason to disturb that conclusion.

{At trial, the Government introduced expert testimony from Dr. Matthew Levitt, which established, [among other things], that Hizballah functions as a proxy organization for the Iranian government. Levitt further testified that Nasrallah's 2006 speech endorsing the Ayatollah Khomeini's fatwa involving Rushdie, which was broadcast over Al Manar, Hizballah's satellite television network, was a "call to action." As described previously, Matar included the videotape broadcast of Nasrallah's 2006 speech in a couple of videos that he produced prior to attacking Rushdie.}  …

To prove that Matar attempted to provide material support to a foreign terrorist organization by providing himself as "personnel," the Government must prove that Matar "attempted … to work under [the] foreign terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization." Put differently, "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control." …

The Government's trial evidence reasonably established that in attacking Rushdie as he did, Matar was attempting to execute a very specific directive issued by the Ayatollah Khomeini and endorsed by Hizballah. Unlike the ISIS video watched by Ullah which "urged supporters to commit attacks against America," Defendant endeavored to do precisely that which was commanded by the [Khomeini] fatwa [against Rushdie] and sought to kill a specific individual for a specific reason. Cf. Ullah ("The videos that [Ullah] watched that were issued by ISIS did not 'order' or 'command' him to do anything under any common understanding of those terms. Nor did they provide 'guidance or supervision of action, conduct, or operation'—since they were silent on specifics.").

Indeed, to the extent that Matar himself created what may fairly be characterized as promotional videos which included Hizballah Secretary General Nasrallah's endorsement and affirmation of the very specific fatwa calling for Rushdie's death, a reasonable jury could find that Matar's subsequent actions in stabbing and attempting to kill Rushdie were undertaken at Nasrallah's direction and command and Matar's conduct represented his effort to fulfill such directive, command, and order.

The Court in Ullah also explained that to work "under" an FTO's "direction" means that the FTO's "direction" or "control" must cause a defendant to "'suffer[ ] restriction, constraint, or control.'" Here, the jury could reasonably have found that the existence of Hizballah's fatwa against Rushdie was the only reason Matar did what he did.

Indeed, at trial, the government introduced evidence that Matar rejected a suggestion put forth to him by Kaymar in Iran [someone with whom Matar had been chatting online -EV] that consideration be given to killing another prominent American, because "Rushdie has fatwa longer" and "[The other prominent individual] doesn't have fatwa." In other words, the jury could reasonably have found that Matar's behavior was, in fact, dictated, directed and controlled exclusively by the existence of the FTO-endorsed fatwa. Matar's own words and actions suggest that the only reason he did what he did was because he was attempting to do what he believed the Nasrallah-endorsed fatwa directed and commanded him to do it.

Furthermore, a rational jury could also have found that Nasrallah's speech provided "direction" because it ended by endorsing the concept of martyrdom. Dr. Levitt explained that martyrdom is a central part of Hizballah's ability to recruit and retain its followers. And the jury was presented with overwhelming evidence establishing Matar's expectation that in fulfilling the fatwa he would become a Hizballah martyr. In that regard, the evidence at trial established that: (1) Matar, at the time he committed the attack, possessed a fake driver's license that contained references to several Hizballah martyrs, including Imad Mughniyah, who led Hizballah's terrorist arm for many years; (2) Matar, on the morning of the attack in August, visited a website run by Hizballah and took screenshots of two martyrs who had died in the month of August; (3) Matar had a lockscreen on his phone which depicted another Hizballah martyr, Samir Kuntar; (4) Matar had a photo of Ahmed Kassir—Hizballah's first martyr—on his bedroom wall; and (5) Matar sent his will to the Imam of his religious center several weeks before the attack, and he sent his will to another Imam two days before the attack.

For all of these reasons, this Court concludes that the evidence presented by the Government at trial was sufficient to allow a rational jury to find that Nasrallah's 2006 speech guided or directed Hizballah's supporters to carry out Ayatollah Khomeini's fatwa on Rushdie, and that Matar, in attempting to carry out that fatwa on Hizballah's behalf, was doing so "under" Hizballah's "direction." "'[R]estrict[ed], constrain[ed], or control[ed],'" by the fatwa, Matar targeted Rushdie alone.

The fatwa and directive Matar received, and he was acting in furtherance of, was not a "hortatory, open-ended message." Unlike the ISIS video the defendant watched in Ullah—which merely "urged" supporters to commit unspecified attacks against America[—]the fatwa endorsed by Nasrallah that Matar attempted to fulfill directed that a specific person be killed for a specific reason. Such directive "constrain[ed]" Matar in the precise manner required under Ullah….

The Court rejects Matar's suggestion that the evidence was insufficient because the government failed to present any evidence: that Hizballah knew of Matar or his plan before the attack; that Hizballah communicated with Matar about the attack (or that the people with whom Matar did communicate were, in fact, members of Hizballah); that Matar reported to or sought approval from Hizballah; or that Hizballah exercised any constraint over whether, where, or how Matar acted. The law does not require such proof.

As the Court in Ullah observed, "[w]e do not hold that the 'personnel'" prong only applies to 'foreign fighters' who travel abroad or submit to operational command structures." Further the Court acknowledged, "[w]e do not hold that the statute specifically excludes certain types of directions, or directions disseminated through certain means like YouTube …. Instead, with an eye toward their content, we merely hold that the online videos at issue here [in Ullah] are not 'directions' at all, or at least do not demonstrate that Defendant acted 'under" ISIS's direction.'" Here, by contrast, Defendant attempted to do precisely that which the Hizballah-endorsed fatwa directed be done, to the person against whom it was directed, for the very reason directed….

Timothy C. Lynch and Charles M. Kruly represent the government.

The post Salman Rushdie Attempted Murder Case: Court Upholds Jury Verdict … appeared first on Reason Magazine.

But there is no statute generally banning discrimination in contracting (as opposed to specific kinds of contracts, like employment, housing, or public accommodation) based on religion. Section 1981, by its terms, simply doesn't cover religious discrimination.

This was the key behind Domanic v. Christian Bros. Automotive Corp., decided Wednesday by Fifth Circuit Judge Stuart Kyle Duncan, joined by Judges Andrew Oldham and Cory Wilson; an excerpt:

Christian Brothers Automotive Corporation is a faith-based auto-repair business that franchises only to Christians. All of its more than 250 franchisees—a group which includes some ethnic Jews—are professing Christians. When the company refused to franchise to Evan Domanic, who is an ethnic and religious Jew, Domanic sued for racial discrimination under 42 U.S.C. § 1981….

On appeal, Domanic's main argument is that discrimination against Jews is ipso facto racial discrimination, even when (as here) the differential treatment is motivated purely by religion and not ancestry. We decline to adopt this novel argument, which is in tension with the Supreme Court's longstanding precedent that § 1981 does not reach religious discrimination. The argument is also out of step with the Seventh Circuit, which has twice rejected similar contentions about the indivisibility of Jewish ethnicity and faith under § 1981.

Finally, we also agree with the district court that no evidence suggests that Christian Brothers's franchise policy is a façade for ethnic discrimination against Jews. If there were any evidence of that, of course, then Domanic's § 1981 claim would have to go to a jury. Because there is no such evidence, however, the district court correctly granted summary judgment dismissing Domanic's § 1981 claim….

Christian Brothers describes itself as a "faith-based franchisor of auto-repair stores," whose mission is to "glorify God by providing ethical and excellent service to its customers." This ethos is reflected in the company's branding, website, mission statement, and, of course, its name.

Christian Brothers franchises only to professing Christians. The company asserts that, in forty years of business, it has never offered a franchise to someone not "spiritually aligned with the company and prepared to share a personal Christian testimony." As a result, each of Christian Brothers's more than 250 franchisees professes the Christian faith. It is undisputed that this group encompasses a variety of races and ethnicities and includes at least two ethnic Jews.

Domanic, who is both ethnically and religiously Jewish, applied to open a Christian Brothers franchise in the fall of 2020. {Domanic was one of more than 1,200 applicants in 2020, only twenty-four of whom were ultimately awarded a franchise.} During the ensuing process, Christian Brothers employee Brandon Thomas asked Domanic about his faith. He replied that he is Jewish, not Christian. Domanic alleges Thomas told him religion would not be an issue, something Christian Brothers denies….

Section 1981 provides in relevant part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts … as is enjoyed by white citizens …." The section applies to both government and private actions. See id. § 1981(c) ("The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.").

While § 1981 does not use the term "race," the section has long been understood to "prohibit[ ] racial discrimination in the making and enforcement of private contracts." Section 1981's conception of race is broad: it protects "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." It does not matter that, today, some ethnic or ancestral group (say, Germans or Swedes) might be considered "white" or "Caucasian." The focus is instead on what groups Congress intended to protect when it enacted the law in 1870…. "The understanding of 'race' in the 19th century … was different. Plainly, all those who might be deemed Caucasian today were not thought to be of the same race at the time § 1981 became law." …

It is also settled that § 1981 forbids discrimination on the basis of Jewish ethnicity or ancestry. In Shaare Tefila Congregation v. Cobb (1987), the Supreme Court confirmed that, at the time § 1981 (and its companion, § 1982) were enacted, "Jews constituted a group of people that Congress intended to protect." "Jews and Arabs," the Court explained, "were among the peoples then considered to be distinct races and hence within the protection of the statute." It is immaterial that Jews may be commonly classed as racially or ethnically "white" today. A person of Jewish ancestry can nonetheless sue under § 1981 if he is discriminated against on the basis of that ancestry.

Finally, it is equally settled that § 1981 does not forbid religious discrimination….

[T]he evidence proved without contradiction that Christian Brothers has a longstanding and consistent policy of franchising only to professing Christians. And no evidence suggested that this policy was a pretext for racial discrimination against persons of Jewish ancestry (or any other ancestry). To the contrary, the undisputed evidence showed that Christian Brothers has franchised to two ethnic Jews who are professing Christians.

Domanic does make the novel argument that, as far as § 1981 is concerned, there can be no distinction between discrimination based on Jewish ancestry and discrimination based on Jewish faith. Section 1981, he contends, "protect[s] Jews … regardless of whether they are religious or ethnic Jews." The district court correctly rejected this argument.

To begin with, accepting Domanic's argument would vitiate the established principle that § 1981 does not touch religious discrimination. If Christian Brothers's policy were challenged under § 1981 by members of any other faith, those claims would fail as a matter of law. Yet Domanic asks us to recognize an exception for one faith only—Judaism. The settled law of § 1981 bars us from doing so.

Next, the weight of precedent leans decisively against Domanic's argument…. [S]ister circuit decisions show why Domanic's § 1981 claim fails. Both readily distinguished discrimination based on Jewish ancestry or ethnicity (which is forbidden by § 1981) from discrimination based on Jewish religion (which § 1981 does not address).

In our case, all the evidence points to this being an instance of religious and not ethnic discrimination: Christian Brothers franchises only to professing Christians and, indeed, its franchisees include ethnic Jews who meet that religious qualification. No evidence whatsoever suggests Christian Brothers, behind the façade of a religious policy, is in reality engaging in covert antisemitism. If any evidence suggested otherwise, Domanic's § 1981 claim would have to go to the jury. None does, though….

Some readers, of course, might ask: What if you want to have the Jewish Brothers Diamond Corporation (to play into an accurate stereotype) that franchises only to Jews? Would this violate § 1981? The answer is that if they would franchise to me—an ethnic Jew who is not religious—but not to an equally irreligious non-Jew, then that would be forbidden ethnic discrimination. But if they only franchise to people who practice Judaism, including converts who aren't ethnically Jewish, and exclude people who don't, including ethnic Jews who have converted or are irreligious, then that's religious discrimination, which § 1981 by its own terms doesn't cover. (Whether there might be a First Amendment or Religious Freedom Restoration Act right to exemption from § 1981, for organizations that have a religious reason for discriminating, is a separate matter.)

Jeffrey L. Oldham, Anne Barry Irvine, and Allison B. Allman (Jackson Walker, L.L.P.) and Scott A. Agthe (Pierson Ferdinand, L.L.P.) represent defendants.

The post Jews and Discrimination Based on Religion or Based on Ethnicity? appeared first on Reason Magazine.

Plaintiff Justin Wood was Dartmouth University's Men's Cross-Country coach for nearly two years, until August 2022. He alleges that Porscha Dobson Harnden, who served as the Director of Dartmouth Track & Field and Cross Country during his tenure and for roughly two years thereafter, made defamatory remarks about him to third parties after he left….

Consistent with this standard of review, the court assumes that the following facts taken from the amended complaint are true. Dartmouth hired Wood as the Head Coach of its Men's Cross-Country Team on November 16, 2020. In her capacity as the Marjorie & Herbert Chase '30 Director of Dartmouth Track & Field and Cross Country, Harnden was Wood's supervisor. During his employment, Wood reported and objected to certain of Harnden's practices, including allegedly falsifying COVID-19 testing documentation to allow sick athletes to practice and compete, and potential admissions fraud. On August 19, 2022, Wood and Dartmouth entered into a separation agreement and a general release agreement (separation agreement)….

The court, among other things, allowed Wood's defamation claims to go forward as to the retroactive removal of his name from past online rosters:

At some point in 2024, Dartmouth removed Wood's name from the online rosters for the 2021 Men's Cross-Country team (for which he was the head coach), and the 2020-2021 and 2021-2022 Men's Track & Field Team (for which he was the assistant coach). During an interview with Tufts University, Wood's interviewer had printed the relevant pages from Dartmouth's website. His missing name became an issue because Wood's wife, who was a volunteer, had a profile while Wood did not. Dartmouth's website continues to list coaching positions for other former employees Dartmouth terminated….

Dartmouth … argues that it cannot be liable for defamation because it did not publish information, and instead solely removed it. But both the New Hampshire Supreme Court and this court have recognized a claim for defamation by implication. Such a claim occurs when a "defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts."

Dartmouth's public roster presents information about the members of its team each year. Wood's absence from the roster plausibly implies that he is lying about his employment or that he left on bad terms, either of which could lower him in the esteem of the cross-country community, or in the community of his prospective employers. Taken in the context of the publication as a whole, in which even volunteers and individuals who were terminated by Dartmouth remain listed on the online roster, Wood's removal creates a defamatory implication. Thus, his amended complaint presents sufficient facts to assert a plausible claim for relief based on Dartmouth's website.

The court also allowed Wood's defamation claims to go forward as to a reference check:

After his employment with Dartmouth ended, Wood became aware of an opening for a track and field coaching position at New York University. NYU had previously offered Wood the head coaching position in 2014. In September 2022, he met with NYU's athletic director and submitted a formal application, which required a reference check. The "individual at NYU who was managing the background check" called Dartmouth to verify Wood's employment. Wood learned on December 7, 2022, that Harnden (or someone at her direction) responded that Wood had been "blacklisted." …

While "blacklisted" alone may be opinion-based or hyperbolic, crediting as true Wood's allegations and giving him every reasonable inference, the statement is both defamatory and false when viewed in context. In these circumstances, the statement that Wood had been "blacklisted" would be reasonably understood by the person seeking the reference check to declare or imply a provable assertion of fact that Dartmouth had terminated Wood and determined that it would not rehire him, and not merely a matter of Harnden's opinion…. Further, giving Wood every reasonable inference and in the context of a reference check, declaring that Dartmouth had "blacklisted" Wood holds him up to contempt or ridicule and lowers his esteem in the running community and the community of potential employers, specifically at NYU….

The post Defamation by Retroactive Scrubbing of Coach from Roster? appeared first on Reason Magazine.

The post Today in Supreme Court History: October 2, 1967 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.

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.

The post Todd Butler's Problematic Publications appeared first on Reason Magazine.

In December 2017, I wrote in National Review that Republican-appointed judges should consider taking senior status so President Trump could fill those seats. That essay struck a nerve with a lot of judges. Some of them talked to me privately. Judge Leslie Southwick of the Fifth Circuit chose to address it directly in a Notre Dame Law Review article. Here is an excerpt:

The administration itself has apparently encouraged some judges to take senior status. Evidence of that came a few months after Don McGahn resigned as White House Counsel in October 2018;525 when he told the Houston chapter of the Federalist Society that circuit judges should retire in order to create more vacancies.526 Further, a South Texas College of Law professor, Josh Blackman, who is a widely followed commentator, has recommended retirements.527 Professor Blackman wrote in advance of the possible loss of a Republican Senate majority in the 2018 midterms, which did not happen; at least partially because of the risks presented by the 2020 elections, Majority Leader McConnell has personally contacted eligible judges "to sound them out on their plans and assure them that they would have worthy successors."528 A similar report by columnist Fred Barnes in March 2020 was that Senators McConnell, Grassley, and Graham together decided to urge retirements and had themselves talked to many of the eligible judges.529

As to my personal knowledge, I will borrow from the worn-out joke about whether someone believed in infant baptism: "Believe in it? I've seen it." My answer to whether I believe senior-eligible judges are in fact being urged to do the right thing and make room for the kind of exceptional judges being selected now is: Believe in it? I've seen it . . . or, at least, heard it. I just did not find it a sufficiently encouraging idea in my case. It was my impression that the person urging me and the individual who talked to another colleague were prompted from Washington. I did not ask, though.

I've kept that article in mind for the past nine years as Judge Southwick continue to serve in active status. Judge Southwick wrote an entire book about his struggle to get appointed to the Fifth Circuit. He gave a talk at the Houston FedSoc some years ago, and I was struck by someone who was so focused on securing a lifetime sinecure that it seemed to define him. I saw Judge Southwick as a man of principle who would hold his job till he could hold it no longer, and would not step down for alternative considerations. While I usually disagree with Southwick's rulings, I at least gave him credit for sticking to his convictions.

No doubt the White House tried again to nudge Southwick to take senior status. In 2017, he did not find that entreaty "sufficiently encouraging." It seems times have changed.

On Tuesday, September 28, Judge Southwick wrote to President Trump that he plans to take senior status upon the confirmation of his successor. Barely two days later, President Trump announced a nominee to fill the seat. The fix was in.

I am pleased to announce the nomination of Todd Butler to the United States Court of Appeals for the Fifth Circuit! A proud graduate of Mississippi State University and Mississippi College of Law (Graduating summa cum laude from both!), Todd is currently a Partner at Phelps Dunbar in Jackson, Mississippi. He has argued numerous times before the Fifth Circuit, previously clerked for highly respected Judge, Leslie Southwick, and has been a strong defender of Law Enforcement throughout his career. Todd has the unwavering support of Senators Roger Wicker and Cindy Hyde-Smith. The wonderful people of the Great State of Mississippi (one of my favorites!), and the rest of the Fifth Circuit, can count on Todd to protect the Constitution and the Rule of Law. Congratulations Todd! President DONALD J. TRUMP

As far as Trump tweets go, this one is exceptionally lukewarm. Trump can't even point to a single case that Butler handled. Nothing about him being tough on crime or fighting for the Second Amendment or religious liberty. There's nothing to brag about! By the way, Trump calls Judge Southwick "highly respected." Did anyone show Trump Southwick's opinion in the Alien Enemies Act case? Or any of the other en banc votes involving Trump 1.0 and Trump 2.0?

I have never heard of Todd Butler. I spoke at the Jackson FedSoc chapter, and as best as I can recall, he did not attend. Butler's only claim to fame, which Trump does not mention, was representing the government in Olivier v. City of Brandon. There, his client arrested a street preacher for talking to people about the gospel. Butler argued opposite Allyson Ho. He lost 9-0, with a Kagan majority opinion. I understand lawyers have to take clients, but he could have easily handed this case off to someone else. There are dozens of regular SCOTUS practitioners who would have gladly taken this case, and maybe gotten more than zero votes. But Butler kept it himself.

It is painfully obvious that Judge Southwick took senior status with the understanding that Todd Butler, his former law clerk, would take his seat. That offer was "sufficiently encouraging." This is not a case where Southwick cited some pressing health concern which required his immediate resignation. He waited until after the Fifth Circuit heard several huge en banc cases last week, and will hang on till the confirmation of his successor, to make sure his preferred candidate gets through. Of course, he can always withdraw like Judge Wynn.

Moreover, Southwick timed his announcement for shortly before the midterms. Should the Republicans lose the Senate, this might be the last chance for Southwick to get his preferred replacement picked. Moreover, had Southwick announced he would take senior status any time over the past two years, opposition to Butler may have arisen on the right, which could have scuttled the nomination. (Remember in 2019, President Trump nominated another Mississippi judge for the Fifth Circuit, Halil Suleyman "Sul" Ozerden, but that nomination failed after Republicans opposed him. Southwick didn't want his clerk to get Sullied)  The pick was timed, just right, to ensure his preferred candidate gets through, and before a potential flip in the Senate. Like I said, the fix was in.

Todd Butler is not Scott Stewart, the Mississippi Solicitor General who was successful in overruling Roe v. Wade. But we have to remember that all politics is local. For whatever reason, Stewart was not favored by the state senators. Moreover, Senator John Cornyn had no interested in fighting to claim the seat for Texas, where it would actually do some good. As Mike Fragoso noted back in May, leaving now ensures Ken Paxton won't take the seat for Texas. The fix was in.

I'm sure the White House lawyers will say that it is better to replace Southwick with Butler than to roll the dice with whoever President Newsom picks. That may be prove to be right, but we have nothing to go on. On the en banc court, Southwick's vote is virtually indistinguishable from a Biden nominee. We'll see how Butler will vote. I've asked a few people in the know, and no one knows his judicial philosophy.

Butler is not alone with a family affair. Trump's announcement of another district court seat in North Carolina noted that Phillip Aubert clerked for Terrency Boyle. Trump nominated the children of Eighth Circuit judges Benton and Shepherd for district courts in Missouri and Arkansas, respectively. President Biden nominated Judge Julia Gibbons's law clerk, Kevin Ritz for the Sixth Circuit. Biden also nominated Judge Stranch's former law clerk, but she did not make it through. Of course, Justice Breyer was replaced by his former clerk KBJ, and Justice Kennedy was replaced by Justice Kavanaugh.

Frankly, I find this entire idea of hereditary judicial sinecures very unsavory. From the President's perspective, politics make sense. But from the judges' perspective, nepotism does not.

The post When Judges Pick Their Law Clerks As Replacements appeared first on Reason Magazine.

In a recent post, prominent left-liberal economist Justin Wolfers (University of Michigan) concedes that his "libertarian friends" were right about the dangers of government power:

My libertarian-leaning friends have consistently argued against a powerful federal government in favor of individual freedoms. I had — somewhat naively — never taken their views seriously enough. My friends who worked in government were good people, I reasoned, and surely that's true more broadly.

But I've had to admit to my libertarian friends that they were right. Concentration of power can be abused. We're seeing it happen right now.

Last year, I wrote about similar admissions by two other prominent left-of-center figures: famed legal scholar Cass Sunstein and economic policy commentator Noah Smith. I commend Wolfers and the others for being willing to admit error and learn from it. All too many intellectuals and political commentators never do. I am a longtime fan of Wolfers' writings, and now am even more of a fan than before.

It is often the case that people become more aware of the dangers of government power when that authority is wielded by their political opponents. Even some libertarians tend to ignore or overlook abuses of power when perpetrated by the side of the political spectrum they identify with. The Trump era has been a particularly significant wake-up call for some on the left, because he has engaged in so many abuses, especially in his second term.

But it is important to recognize that the problems here are systematic, not confined to the misdeeds of any one politician, even one so egregious as Trump. As James Madison famously warned, "[e]nlightened statesmen will not always be at the helm." Distinctly unenlightened demagogues like Trump all too often reach high political office. That's in large part because voters often do a poor job of choosing leaders, thanks to widespread political ignorance and bias. Trump's return to power in 2024 showed that these problems are even more severe than I had previously thought.

Wolfers adds that his newfound appreciation for libertarian concerns have made him "more small-c conservative":

The old conservative idea was that we have rules of the game that have served us well for generations. We should be slow to change them. Our children should be handed the same set of opportunities we had, if not better ones.

I only partially agree. Where established institutions constrain government power and protect liberty, we should indeed conserve them. But, in too many ways, those safeguards have been eroded over the last 100 years or more, thereby creating the very dangers of abusive government power that Wolfers rightly decries. To fix that, we in some instances need to restructure the current "rules of the game," and impose much tighter constraints. For example, we should roll back federal power to impose immigration restrictions (which was not part of the original Constitution), and have much stronger enforcement of constitutional constraints on delegation of legislative power to the executive. The growth of delegation and federal immigration powers is at the heart of the many of the worst abuses of the Trump Administration, and creates severe problems even under more conventional administrations.

Similarly, the growth and institutionalization of government control over land use is at the heart of the housing crisis that besets many parts of the US. We should roll that back too, in part by enforcing federal and state constitutional protections for property rights.

Elsewhere, I have explained how these issues and others like them can be the basis of a useful alliance between libertarians and "abundance liberals" (see also my exchange with Matt Yglesias on that subject). I suspect Wolfers may be sympathetic to the abundance liberal movement.

We're not likely to agree on every issue. But there is enough consensus to enable some useful cooperation between these groups. At the very least, we have common enemies in the form of two prominent political movements that very much don't appreciate the need for significant constraints on government power: MAGA nationalists on the right, and "democratic socialists" on the left.

The post Justin Wolfers Recognizes His "Libertarian Friends Were Right" About Government Power appeared first on Reason Magazine.

On Monday the Supreme Court will hear oral argument in Suncor Energy v. Boulder County. My amicus brief in Suncor has received a decent amount of attention--but not all of it favorable. Perhaps because I have been critical of much climate regulation and litigation, some were surprised that I believe Boulder County has the better of the preemption arguments here.

Michael Buschbacher, Managing Partner of Boyden Gray PLLC, is among those who think I have erred. Indeed, he thinks that my work actually supports the other side.

Following is a guest-post from Buschbacher making his case. I am unconvinced, and will reply in a follow-up post. For now, here is what Buschbacher has to say.

*     *     *

Prof. Adler Filed His Suncor Amicus Brief in Support of the Wrong Party

Michael Buschbacher

The occasion for this guest post is Prof. Adler's recent amicus brief submitted to the U.S. Supreme Court in Suncor v. Boulder County, set to be argued next month.[1] Suncor is probably the most important constitutional structure case of this decade and may also be the most economically significant in Supreme Court history. By some estimates, the litigation campaign of which Suncor is part asserts some $28 trillion in total putative damages against a select group of energy companies—nearly an entire year of American GDP.

The central question in Suncor is whether states and municipalities can apply their own law to regulate the greenhouse-gas emissions of fuel producers and users, not just for emissions within their own borders, but also for emissions anywhere in the world. If that sounds a bit out there, that's because it is. So far, even some of the hand-picked state courts that have heard these claims have been slow to bite. For example, the Maryland Supreme Court earlier this year rejected similar arguments by the City of Baltimore, concluding that its claims about climate change were all preempted by federal law. Even the pro-climate litigation dissents in that case agreed that Maryland state law could not reach worldwide emissions directly. Several other state courts have reached similar conclusions.

Prof. Adler's brief falls to the "left" of these decisions. But while his brief is offered in support of Boulder County, it also stops well short of the plaintiffs' position that one state or municipality can apply its own law to the rest of the world. Although Prof. Adler opens with broad strokes—"Nothing in federal law, let alone the Constitution, preempts state-law claims seeking relief from injuries allegedly caused or exacerbated by petitioners' conduct," Adler Br. at 2—he later adds a very important caveat: perhaps only the law of the source state (that is, the jurisdiction where the emissions took place) can apply, and everything else is precluded. See id. at 21, 25. "No home cooking," as he's put it elsewhere.

There are several points in the brief where I think Prof. Adler errs or leaves key information out, but it's the no-home-cooking caveat that I want to focus on. In my view, the reading of the Clean Air Act he advocates should require him to take the petitioners' side or, at least, to file on behalf of neither party. Colorado's case is all home cooking. As I'll explain below, Prof. Adler comes out on the plaintiffs' side here only by misdescribing (or misapprehending) the case that Boulder County has actually pled.

But first, some background.

The Law Governing Interstate Pollution. As Prof. Adler points out, state power over in-state pollution was historically very broad and remains broad today. But air and water aren't respecters of state borders. What happens in Vegas (or anywhere else) doesn't necessarily stay there. So, although in-state pollution can be governed by state law, interstate pollution—that is, pollution that originates in one jurisdiction and ends up having an alleged effect in another—was exclusively controlled by federal law from time immemorial. As my colleague Jared Kelson and I explain in our amicus brief for 74 members of the House, application of this principle to interstate air pollution goes back at least to Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

Originally, the federal law in question was federal common law—or "general law," as it was often called, in contrast with specific local law. Erie Railroad Company v. Tompkins did not abrogate this body of law since rules dealing "with air and water in their ambient or interstate aspects," Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972), are "matters essentially of federal character," United States v. Standard Oil Co. of Cal., 332 U.S. 301, 307 (1947).

However, the governing federal law changed in the 1970s, when Congress enacted the core environmental regulatory statutes we still have today: the Clean Air Act, the Clean Water Act, etc. These statutes not only displaced federal common law, they also significantly federalized pollution policy, albeit in a novel way. Rather than set uniform national command-and-control regulations as the default rule, the Clean Air Act and Clean Water Act mostly imposed a regime somewhat misleadingly described as "cooperative federalism." Basically, Congress makes an offer the states can't refuse, using funding strings and sanctions to pressure them to regulate stringently enough to meet federal pollution-control targets set by EPA.

Prof. Adler spins all this as Congress "preserving" a large amount of state discretion. That's a rosy version of the history as to traditional areas of state territorial sovereignty—the Clean Air Act in particular drove much American industry overseas contrary to state wishes—but in many areas Congress did at least leave states room to choose how to reduce in-state pollution. As Prof. Adler acknowledges, there are some exceptions where Congress took away even traditional in-state regulatory authority when doing so was necessary to avoid a patchwork of inconsistent state regulations over, e.g., motor vehicle emissions. But he's right that, generally, Congress did not disturb the pre-existing balance of federal and state power over emissions regulation.

The problem for Boulder County is that under that pre-existing balance, states had no authority to apply their own law to out-of-state air emissions, which had always been governed by federal common law. That cuts strongly against Boulder County, since nothing in the Clean Air Act purports to give states any new power to impose their own specific state law on emissions that originate outside their borders, much less authorizes them to do so with the "exceedingly clear language" required if Congress "wishes to significantly alter the balance between federal and state power." Sackett v. EPA, 598 U.S. 651, 679 (2023) (cleaned up). Indeed, the various Clean Air Act provisions that expressly address interstate and international air emissions concerns all presuppose the continued existence of traditional territorial limits on governmental authority. See 42 U.S.C. §§ 7402, 7410(a)(2)(D), 7415, 7426, 7506a. Prof. Adler says nothing about these provisions.

Where "Climate Nuisance" Fits In. This brings me to the first point of disagreement with Prof. Adler. He suggests that climate "nuisance and trespass" claims would have been matters of state law prior to the Clean Air Act, and that they are thus part of the broad array of state powers "preserved" by that statute. I'm skeptical. Boulder County's suit is almost entirely about conduct far outside of Colorado. The Suncor complaint doesn't target specific emissions from individual facilities that have caused it some particularized harm; instead, it seeks to hold companies liable for purported undifferentiated and future harms that originate on a global scale from emissions everywhere.

Pace Prof. Adler, that looks nothing like a claim against a neighboring "city whose sewer discharged across the state line." Adler Br. at 6 (describing Carmichael v. City of Texarkana, 94 F. 561 (C.C.W.D. Ark. 1899)). Indeed, Carmichael highlights how different Boulder County's theories are from historic nuisance claims. Mr. Carmichael lived in Bowie County, Texas, and sued Texarkana, Arkansas, in Arkansas federal court for sewage discharge that harmed his property. Mr. Carmichael's claim was that Texarkana built a sewer system with "one main sewer leading to a point immediately opposite plaintiff's homestead, about eight feet from the state line, on the Arkansas side" that flowed into a stream on his homestead. Carmichael, 94 F. at 562. The court ordered Texarkana to abate the nuisance, noting that this outcome followed "an almost unbroken line of authorities" from courts across America, as well as English practice—i.e., the general or federal common law, rather than any distinct local law of Mr. Carmichael's home state of Texas. Id. at 572.

But Boulder County didn't pursue this type of claim—a federal common law claim in federal court. There's no mystery why. Climate litigants initially did allege federal common law claims in federal court. The Supreme Court (in an opinion by Justice Ginsburg) in American Electric Power Co. v. Connecticut, 564 U.S. 410, 429 (2011), unanimously shut that down, holding that climate nuisance claims must be dismissed because the Clean Air Act displaces federal common law for interstate air emissions.

Displacement and Preemption. This brings me to my second, and primary, disagreement with Prof. Adler. He argues that the Clean Air Act's displacement of federal common law opens the door for state law to apply. "Federal common law may once have preempted state attempts to control interstate air pollution under state law, but federal common law has been displaced, and no longer serves that function." Adler Br. at 3. The Clean Air Act's displacement of federal common law thus silently unpreempts at least some state common law. His key case here is International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Ouellette was brought by Vermont landowners against a New York paper mill under Vermont law for pollution discharges into Lake Champlain. The Court rejected the plaintiffs' argument, holding that Vermont law could not apply to pollution that took place outside of that state's borders. As discussed above, interstate nuisance had originally been covered exclusively by federal common law. Ouellette holds that, although the Clean Water Act displaced that body of common law, Congress did not thereby tacitly authorize states to apply their own distinct local law to pollution discharged from other states. But Ouellette added that the Act's savings clause "specifically preserve[d]" the ability of courts to apply the law of the source state to those discharges. Id. at 497. The Court therefore remanded the case for proceedings under the proper state law, as authorized by the Clean Water Act.

Prof. Adler asserts that Ouellette supports the conclusion that the Clean Air Act at least permits climate change claims under the law of the source state, Adler Br. at 19–22, which he calls a "fundamental weakness of the substantive argument" made by defendants. See also Jonathan H. Adler, Displacement and Preemption of Climate Nuisance Claims, 17 J.L. Econ. & Pol'y 217, 255 (2022) ("Accordingly, state law claims may proceed, so long as they rely upon the law of the source state[.]"). Prof. Adler is right that defendants argue that climate torts simply don't fit even under Ouellette, but he skips over their larger alternative point that Ouellette's holding applies with equal force to the Clean Air Act: so, at most, it's law of the source state or bust, "no home cooking." See Pet. Br. at 33–34.

I think the petitioners are right in arguing that climate torts are not the kind of source-state action that Ouellette preserved. Suncor isn't about a discharge of sewage across state lines, but about global carbon emissions all mixed in the troposphere. Regulating that with a combination of state tort laws would displace federal preeminence and risks the "chaotic confrontation between sovereign states" that Ouellette sought to avoid. 479 U.S. at 496–497.

But put this all aside for the moment. Could Boulder County have pled a case under the law of 50 states and 194 other countries seeking relief on a pro rata basis? Based on Prof. Adler's no-home-cooking rule, perhaps so.

Did it? No.

This is where Prof. Adler goes astray. To be sure, Boulder County's opposition brief attempts to suggest that the choice of law has not yet occurred, as if—eight years in—nobody had yet figured out what law the County was invoking. But that eleventh-hour pivot is not credible. For example, page 1 of Boulder County's brief to the Colorado Supreme Court says that "Plaintiffs seek damages under Colorado tort law," adding later that "[l]iability in this case is based on Colorado's law of trespass, private and public nuisance, unjust enrichment, and civil conspiracy." And the County said the same thing to the trial court too: "Plaintiffs filed this case under Colorado's common law…and its Consumer Protection Act…." In other words, Boulder County made its choice.

The question before the Supreme Court is thus whether the state law under which Boulder County has pled its claims can apply to emissions elsewhere: Ouellette says that it cannot. That choice of law is preempted. There is no reason for the Court to wait to say so. On Prof. Adler's reasoning, then, the Court—at the very least—should reverse and remand the same way it did in Ouellette.

Perhaps Prof. Adler agrees. But if so, why did he file his brief in support of the plaintiffs rather than defendants, or in support of neither party?

[1] Full disclosure: my colleague Jared Kelson and I submitted an amicus brief on behalf of 74 members of Congress in support of Defendants in Suncor. Another colleague, Jen Hardy, submitted a (very interesting) brief on behalf of Prof. Prakash in support of Defendants as well. Prof. Eugene Volokh also co-authored an excellent brief about the free speech implications of the case.

*     *     *

Here are Professor Adler's prior posts on Suncor and related climate litigation:

• Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted, Oct. 27, 2021;
• Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022;
• Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023;
• Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023;
• D.C. Circuit Rejects Oil Company Attempt to Remove District's Climate Suit to Federal Court, Dec. 19, 2023;
• William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023;
• Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024;
• Are State Law Climate Change Tort Suits Preempted by Federal Law?, May 3, 2024;
• Supreme Court Denies Certiorari in Climate Tort Suits, Jan. 13, 2025;
• Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits, Mar. 10, 2025;
• William Barr Discovers the Economics of Tort Law (and Misrepresents the Law Governing Interstate Pollution), Nov. 3, 2025;
• Placing Climate Tort Litigation in Context (Updated), Nov. 7, 2025;
• A Second Round with William Barr on Litigation Over Interstate Pollution, Dec. 2, 2025;
• Court Dismisses Trump Administration Effort to Block Michigan Climate Lawsuit, Feb. 4, 2026
• 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.
• Justice Alito Says Recusal in Suncor Energy v. Boulder County a "Difficult Judgment Call", Sept. 30, 2026

The post Buschbacher: Did Prof. Adler File His Amicus Brief for the Wrong Side in <i>Suncor</i>? appeared first on Reason Magazine.

From yesterday's N.Y. appellate division decision in People v. Herrnkind:

On November 5, 2001, the defendant and her codefendant, her husband, abused and killed their three-year-old daughter. In 2004, the defendant was convicted of manslaughter in the first degree and sentenced to a determinate term of imprisonment of 25 years, to be followed by 5 years of postrelease supervision….

In 2022, the defendant moved … to vacate her sentence and to be resentenced under the Domestic Violence Survivors Justice Act (DVSJA) in accordance with Penal Law § 60.12, to seal the record of the motion, and to make the caption anonymous…. [The trial court] denied the motion without a hearing, determining, inter alia, that the defendant failed to submit evidence within the definition of the DVSJA corroborating that she was subject to abuse at the time of the offense or that the abuse was substantial. The defendant appeals.

It is undisputed that during the course of this appeal, the defendant was released from custody and thereafter discharged from parole. Accordingly, her contentions regarding her entitlement to resentencing under the DVSJA have been rendered academic, as she has already served the challenged sentence.

Civil Rights Law § 50-b provides that the "identity of any victim of a sex offense" shall be confidential…. Here, the defendant failed to establish that she was the victim of a sex offense as defined by Civil Rights Law § 50-b.

In addition, she failed to demonstrate compelling circumstances to seal the record of the motion, as the majority of the information contained therein was already made public during the defendant's criminal trial….

"In determining whether to grant a [party's] request to proceed anonymously, the court must use its discretion in balancing [that party's] privacy interest against the presumption in favor of open trials and against any potential prejudice to [their opponent]" "Among the factors the court should consider are 1) whether the [party] is challenging governmental activity or an individual's actions, 2) whether the [party's] action requires disclosure of information of the utmost intimacy, 3) whether identification would put the [party] [or innocent third-parties] at risk of suffering physical or mental injury, 4) whether the [opponent] would be prejudiced by allowing the [party] to proceed anonymously, and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system."

Here, in support of her motion {to make the caption anonymous}, the defendant submitted an attorney affirmation that made only a brief statement that the defendant might suffer further mental harm if her identity was revealed, which was insufficient to support the relief requested….

From the N.Y. Times story in 2001 (by Nina Bernstein & Andy Newman) about the brutal killing:

In a written statement to the authorities, a mother charged with killing her 3-year-old daughter admitted to beating the child in a bathtub in a rage over her soiled pants. She said she helped on Monday as her husband scrubbed the toddler's skin raw with a Brillo pad and squirted alcohol and peroxide onto the wounds.

The mother, Julie Herrnkind, 24, said in the statement that she and her husband, Matthew Herrnkind, 27, who has also been charged, tried to still their child's screams of pain by force-feeding her soap and holding her head under cold water.

Finally, they left the child, Sylena, in the fetal position in a tub of water. "I checked to see if her chest was rising because she was not moving," her statement said. "I thought, we went too far this time. She was lying on the floor and after no answer, I picked her up. I then called 911 and said, 'Oh my God, we killed this kid.'"

As the details emerged, officials at the city's Administration for Children's Services tried to determine whether warning signs were missed by the parade of caseworkers, therapists, homemakers and child protection investigators who went in and out of the home in Staten Island over the past year and a half, looking out for the Herrnkinds' five children [including] Sylena….

The agency had taken Sylena and the three older children into foster care in 1998 after finding Diane had been abused, and returned them in March 2000 with court-ordered supervision and services….

The post Woman Who Served ~20 Years for Killing 3-Year-Old Daughter Can't Get Conviction Sealed and Anonymized appeared first on Reason Magazine.

Yesterday, in Global Nurse Force v. Trump, the US District Court for the Northern District of California issued a decision blocking the Trump Administration's $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers with various specialized skills). Federal district Judge Haywood Gilliam, Jr. ruled that the imposition of the fee violated the Administrative Procedure Act (APA) because, among other things, the administration failed to go through "notice and comment" rule-making as required by the Act.

This is actually the second district court ruling against the $100,000 fee. The first one, issued in June by a federal district court in Massachusetts, relied in part on different grounds. It held that the imposition of the fee is a usurpation of Congress's power to tax, and that the relevant federal statutes do not delegate that power. I agree with the earlier ruling, which I wrote about in detail here. The Massachusetts decision also held that imposition of the fee violates the APA.

Because the earlier ruling already blocks imposition of the $100,000 fee and the US Court of Appeals for the First Circuit refused to stay the , the new decision does not have any immediate impact. But it is nonetheless significant that a second federal court has ruled against the policy, and on a different ground. That suggests appellate courts (and, ultimately, perhaps, the Supreme Court) might rule the same way. As is sometimes the case, different arguments might appeal to different judges. From the perspective of plaintiffs challenging the fee, it helps that they have multiple potential pathways to victory.

I will not attempt analyze yesterday's decision in detail because I am not an APA expert. So I will conclude by noting that I hope appellate courts will ultimately uphold these district court rulings. The Cato Institute, Prof. Michael McConnell and I plan to file an amicus brief supporting affirmance of the Massachusetts decision, in the US Court of Appeals for the First Circuit.

I previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.

The post Second Federal Court Rules Against Trump's $100,000 H-1B Visa Fee appeared first on Reason Magazine.

My 2013 book, Unprecedented, offered this vignette about how Chief Justice Roberts fled the United States to a safe refuge after the decided NFIB v. Sebelius.

The day after the Court's term concluded, he left the country to teach at a summer program for law students in Malta, organized in part by the South Texas College of Law, where I teach. Before he departed, Roberts joked that he was retreating to an "impregnable island fortress." Students found Roberts was in very good spirits, no doubt enjoying the respite from the pressure.

I've often thought about this remark. Roberts has been under siege from the left and the right for the last quarter century. (I am responsible for much of that angst.) Whether or not this criticism affects Roberts's decisions, he does not respond in kind. He has given very few interviews, and when he speaks up, it is to defend the judiciary as a whole, and not him in particular. My one interaction with the Chief was pleasant enough.

I don't know that Roberts has been back to Malta, but his regular "impregnable island fortress" is Hupper Island, a small island about 90 minutes from Portland, Maine. I hadn't given much thought of this spot since Roberts had a seizure at his summer home in 2007. Since he joined the Court, Roberts and his family would seek solace from the swamp at Hupper Island after the Court dismisses for the term. But of late, despite the Chief's best efforts at steering a middle course, the people of Maine have been intent on making Roberts's life miserable. They protest outside his home on kayaks and accost him in public. Even his friends are shamed from attending events with the Roberts family.

I was not aware of these changes. What happens of Hupper Island stays on Hupper Island. Until the New York Times got to it. Jodi Kantor wrote a lengthy expose about how the neighbors feel. She interviews a few of Roberts's friends and far more of his foes. We learn nothing about the Court, or Roberts's decision. Unlike the silly story about Martha Ann Alito's flags, there is no allegation that Roberts did anything wrong. The sole effect, and indeed purpose, of this article, is to show how Roberts is alienated in his family summer home. We learn nothing about Roberts, but learn lots about the awful liberals of Hupper Island. I fear this piece may make it impossible for Roberts to return in the future.

To make things even worse, Kantor outs Roberts's daughter as a liberal. She has done nothing to put herself in the public eye. She had the audacity to defend her father, whom she loves. The Daily Beast blares, "Conservative Justice's Daughter Outs Herself as Secret Liberal." No. Not even close. Becca Shaw Glaser--a columnist who urged neighbors to give the Chief the middle finger--outed Roberts's daughter.

Only the Old Gray Lady could me me sympathetic to the Chief. Even John Glover deserves a refuge from scoundrels like me.

The post Somehow the <i>N.Y. Times</i> Made Me Sympathetic To Chief Justice Roberts appeared first on Reason Magazine.

Plaintiff Jose Villanueva sued Defendants Francis Soriano and the Las Vegas Metropolitan Police Department ("LVMPD"), for violations of state and federal law that occurred while he was detained at Clark County Detention Center ("CCDC")….

Plaintiff's expert witness, Tom Melton, testified in his October 1, 2025 deposition that he relied upon ChatGPT, an artificial intelligence program, to assist him with researching and drafting his expert report…. Defendants filed a motion to compel the production of Plaintiff's expert Tom Melton's ChatGPT history log with respect to his preparation of his expert report….

A party or its "representative" may invoke the trial preparation privilege to shield against the discovery of "documents and tangible things that are prepared in anticipation of litigation or for trial." Fed. R. Civ. P. 26(b)(3)(A). Subject to Rule 26(b)(4) and upon a threshold showing of discoverability, "substantial need," and "undue hardship," trial preparation documents may be subject to discovery. However, any court-ordered production of trial preparation materials must be structured to "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative."

Expert witnesses may also invoke discovery privileges related to their draft reports. In their expert report, expert witnesses are required to include "the facts or data considered by the witness in forming" their opinion. Rule 26(a)(2)(B)(ii) was amended in 2010 to limit disclosures to "facts or data considered," instead of previous language on "data or other information" that was interpreted by many courts as requiring the disclosure of "all attorney-expert communications and draft reports." The rules distinguish between the required disclosure of facts or data considered, and an expert's drafts of their report, which are protected from discovery….

The court held that parts of the history log had to be disclosed:

First, the Court will consider which parts of Melton's history log constitute "facts or data" under the meaning of Rule 26(a)(2)(B)(ii) that must be disclosed as part of his expert report. The Ninth Circuit's interpreted Rule 26(a)(2)(B)(ii) and the accompanying advisory committee notes to find that "the requirements should 'be interpreted broadly' to encompass 'any material considered by the expert, from whatever source, that contains factual ingredients.'" Republic of Ecuador v. Mackay, 742 F.3d 860, 869 (9th Cir. 2014). The court emphasized that disclosure required facts or data "considered" by the expert in forming their opinions, "'not only those relied upon by the expert.'"

The legal case summaries generated by ChatGPT constitute "facts or data" that Melton considered and must be disclosed under Rule 26. This Court finds persuasive the reasoning in Hirata v. S. Nevada Health Dist. (D. Nev. 2016). The Hirata court found that an expert's failure to disclose summaries of thousands of pages of deposition materials as "facts and data" considered in creating their report violated Rule 26(a)(2)(B)(ii). Even if the summaries were provided by the party calling the expert and the expert "only consulted the summaries as a quick-reference guide, he still considered the summaries within the meaning of Rule 26."

Plaintiff explains that Melton used the AI software to ask "for a case summary of certain controlling court cases on excessive force." Because Melton generated case summaries and "consulted" them to reach his expert opinion on excessive force, the ChatGPT-generated case summaries constitute "facts or data" that are subject to disclosure under Rule 26….

Because AI-generated case summaries are "facts or data," disclosure under Rule 26 requires the disclosure of all case summary responses supplied by ChatGPT. As Defendant correctly contends, the history log is the only place where Defendant can review alleged "hallucinated case citations … quotes … and references to broad legal standards" that Melton relied upon, or at least considered, to reach his opinion.

But the court held that other parts were privileged and thus protected from mandatory disclosure:

The Court finds it was clearly erroneous or contrary to law to order the production of the entirety of Melton's ChatGPT history, because Melton's: 1) questions and prompts to ChatGPT, 2) use of the program to create a deposition outline, and 3) creation of a draft report are all protected from disclosure….

First, the Court finds that Melton's questions and prompts to ChatGPT are not subject to disclosure. The threshold question is whether questions are "facts and data" considered by Melton that are subject to disclosure under Rule 26(a)(2)(B)(ii). The Court finds that a question is not something that an expert can "consider" or "rely" upon as "facts or data" in reaching their opinion, just as an expert would not "consider" or "rely" upon their online research queries.

Next, the Court will determine whether Melton's questions and prompts are protected by any discovery privileges. Whether construed as part of an expert's draft report under Rule 26(b)(4)(B) or trial preparation materials under Rule 26(b)(3)(A), in any case, discovery into Melton's questions to ChatGPT would be impermissible. Based on the text of Rule 26 and accompanying advisory committee notes, the Ninth Circuit stated that "the driving purpose of the 2010 amendments was to protect opinion work product—i.e., attorney mental impressions, conclusions, opinions, or legal theories—from discovery." While Rule 26(b)(3)(A) provides a qualified privilege for an attorney or their representative's trial preparation materials (work product), disclosure cannot include the "mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B). The Court finds Plaintiff's argument persuasive that Melton's questions and prompts to ChatGPT reveal his "mental impressions or strategy … as to what issues he found of particular importance" and Melton's theory of the case. Because Melton's questions are not "facts or data" and impermissibly reveal his mental impressions and theories, the Court finds that it was clearly erroneous or contrary to law to order the production of this portion of the log….

[A] deposition outline is [also] not "facts or data" within the meaning of Rule 26. Instead of using ChatGPT's outputs to inform his expert opinion, Melton used ChatGPT's responses to structure his preparation for his deposition and trial. Plaintiffs should not have to disclose the portion of the history log related to deposition preparation…. Melton's creation of a deposition outline would impermissibly disclose his "mental impressions, conclusions, opinions, or legal theories," because such an outline would reveal Melton's focus, priorities, or areas of concern to address in the deposition and at trial.

Lastly, … prompts to create a draft report on "certain issues, such as qualifications of the opposing expert or analysis of the opposing expert's report" is squarely within the protections of an expert's draft reports. Rule 26(b)(4)(B) mandates the protection of expert drafts "regardless of the form in which the draft is recorded." Melton testified to sometimes copying and pasting the outputs of ChatGPT into his own report. It appears that Melton's usage of the ChatGPT responses was to assist in his writing and analysis of his expert report, rather than to create "facts or data" to consider in forming his opinion.

Defendant argues that ChatGPT's responses are not Melton's "own generation of a report," and is therefore not protected as an expert draft report under Rule 26(b)(4)(B). The Court finds that Melton's creation of a draft report on ChatGPT is protected as a draft report, because Melton testified that some of this information was directly incorporated into his own written report. Even if the ChatGPT output is not a draft report protected under Rule 26(b)(4)(B), it would still be mental impressions protected from disclosure under Rule 26(b)(3)(b). As addressed above, the ChatGPT responses would provide direct insight into Melton's "mental impressions" and "legal theories" that he considered relevant in a report….

The court also concluded that any privilege wasn't waived through disclosure to ChatGPT, "[b]ecause ChatGPT is not a person, but was an application used in this instance as a research, drafting, and editing program." And the court noted that "many of Defendant's concerns about Melton's methodology and reliance on ChatGPT are appropriate to address at trial as matters of impeachment."

The post Which Parts of an Expert's ChatGPT History Related to Preparing Expert Report Must Be Disclosed? appeared first on Reason Magazine.

The post Today in Supreme Court History: October 1, 1924 appeared first on Reason Magazine.

The post Open Thread appeared first on Reason Magazine.