The Volokh Conspiracy

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Supreme Court

Don't Expect a Lame-Duck Supreme Court Vacancy (But There Are Other Nominations to Consider)

Both the NYT and Bloomberg reports that Justice Alito still intends to finish out the current Supreme Court term.

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There has been rampant speculation that one of the older conservative justices (namely Justice Sam Alito or Justice Clarence Thomas) might choose to retire before the end of the year so that President Trump could name a replacement while there is still a Republican majority in the Senate. But that is all it is: Speculation.

I have previously predicted that neither Justice Alito nor Justice Thomas would retire during this presidential term (let alone this year). I adhere to this view.

Today, the New York Times and Bloomberg each report that Justice Alito has reaffirmed that he is not planning to retire this year, and that this week's election results have not altered his intentions.

From the Times:

Justice Samuel A. Alito Jr. has told people close to him that he does not intend to retire immediately from the Supreme Court, despite Democrats' commanding win in Senate contests on Tuesday, which means Republicans will hold the chamber for only a short time longer.

As a result, Republicans may have missed the window for President Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency.

Justice Alito shared his plans with friends after the election results were clear this week, according to two people close to the justice who spoke on the condition of anonymity.

From Bloomberg:

The 76-year-old Alito, an anchor of the court's conservative wing, has been the subject of speculation that he might abruptly step down to let President Donald Trump fill the vacancy before Republicans relinquish control of the Senate in January. Such a move could extend Trump's imprint on the court by letting him add a younger, conservative jurist to serve for decades.

The chatter has continued even though Alito said in an interview with Bloomberg News in late September that he had decided to remain no matter how the election turned out. "I intend to stick around through this term," he said then, referring to the nine-month court session that runs through June. "I made that decision many months ago."

Alito indicated that stance hasn't changed despite the Democratic takeover in Tuesday's election, said the person, who asked not to be identified discussing a private conversation with the justice on Wednesday.

While there is no equivalent report on Justice Thomas, there is little reason to think he is going anywhere. Justice Thomas is on the verge of becoming the longest serving justice in the nation's history. Moreover, Justice Thomas has previously said he intends to spend at least 43 years on the Court. Were he to stick to that plan, he would have several more years to go.

While there may not be a Supreme Court nomination to keep the Senate busy during the lame-duck period, there are lower court nominations to consider, including nominees for the U.S. Courts of Appeals for the Fifth, Eighth, and Tenth Circuits. As Michael Fragoso notes in the Wall Street Journal, the lame duck may be Republicans' last opportunity to confirm conservative constitutionalist judges for some time.

Republican senators can make a difference and send a message by putting the Constitution first and confirming the originalist nominees now pending. Petty or parochial squabbles with Mr. Trump may get favorable headlines today but they will be forgotten in a week. A judicial appointment can last a lifetime.

Islamic Law

No Problem with Recognizing Islamic Talaq Divorce from Dubai, When Wife Didn't Want to Stay Married

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From Schultz v. Stevenson, decided today by California Court of Appeal Judges Peter Krause, Shama Hakim Mesiwala, and Stacy Boulware Eurie:

In 2004, [the parties] purchased a residential property in Grass Valley, California, taking title as "husband and wife as joint tenants." In 2020, [husband] Schultz obtained a judgment of divorce from [wife] Stevenson in Dubai, United Arab Emirates (UAE). The Dubai divorce decree addressed marital status and child custody only; it made no findings related to division of property or spousal support.

Years later, Schultz commenced an action … to partition the Grass Valley property [by ordering it sold and the proceeds split -EV]. Stevenson opposed partition, arguing that the Dubai divorce decree is not enforceable in California and therefore the property is community property and not subject to partition [since California law does not allow partition of community property among married parties -EV]. The trial court ultimately … [decided] in favor of Schultz, finding that the parties are divorced and that the property is not community property….

Stevenson … argues that the trial court abused its discretion by extending comity to the Dubai divorce decree because it was based on Islamic (Sharia) laws that violate state public policy and constitutional principles of equal protection and due process…. [S]he argues that the Dubai divorce is not entitled to comity because it is based on a talaq pronouncement of divorce, which violates California's public policy favoring gender equality and constitutional protections against gender-based disparate treatment. [Generally, a talaq divorce can only be initiated by a husband. -EV] Stevenson contends therefore that she and Schultz are still married, and that the Nevada County property is community property, which is not subject to partition.

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Free Speech

Fifth Circuit on Pseudonymity of Libel Defendant (Who Claims She Was Sexually Assaulted)

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From Doe v. Roe, decided today by Fifth Circuit Judges Jennifer Walker Elrod, Carolyn Dineen King, and Carl Stewart:

After receiving notice of Jane Roe's impending California lawsuit involving allegations of sexual assault and sexual harassment, John Doe sued Roe in the Southern District of Mississippi, alleging that Roe was attempting to extort and defame him. Roe moved to proceed pseudonymously in the Mississippi lawsuit. The district court denied her permission to do so. Roe appeals that decision, raising several concerns with the district court's analysis. Because we agree with some of Roe's arguments, we vacate and remand for the district court to reconsider whether Roe should be allowed to proceed pseudonymously….

Whenever a party seeks pseudonymity, courts must determine whether "the normal practice of disclosing the parties' identities yields to a policy of protecting privacy in a very private matter." … The district court concluded that Roe was not entitled to pseudonymity … [in part because of] Roe's status as a defendant and waiver…. [But] Roe's defendant status is entitled to no weight in determining the appropriateness of pseudonymity…. A defendant is no less deserving of pseudonymity than a plaintiff simply by virtue of her being haled into court first….

Roe argues that allegations of sexual assault involve matters of the utmost intimacy [and can thus justify pseudonymity]. We agree. There is no doubt that requiring alleged rape and sexual assault victims to proceed "under their real identities would require them to disclose information of the utmost intimacy." It is no surprise, then, that numerous courts have allowed alleged victims of sexual misconduct to proceed under a pseudonym, "including when they are defendants being sued for libel and related torts."

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Free Speech

Wise Words from Third Circuit Judge Stephanos Bibas as to Access to Court Records

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My Stanford law school colleagues Nora and David Engstrom, as well as Berkeley law professor Jonah Gelbach and others, have asked the Advisory Committee on Civil Rules recommend a new Rule of Civil Procedure (5.3) governing the sealing of court records. I think this is an excellent idea: While there is a good deal of precedent on the question, distilling it into a rule that can easily be consulted by judges, lawyers, law clerks, and pro se litigants would be very helpful.

Just today, Third Circuit Judge Stephanos Bibas (also a former law professor), submitted a letter endorsing the proposed rule, and I thought it was much worth passing along:

Dear Members of the Advisory Committee on Civil Rules:

I write to express my strong support for proposed Rule 5.3, a much-needed recapitulation of the procedural standards governing sealing of judicial records.

The public has a presumptive right to access judicial records. This right serves several important societal functions. By exposing the records of private wrongdoing to the public eye, this right deters further wrongdoing. By forcing the government to litigate out in the open, it empowers the public "to keep a watchful eye on the workings of public agencies." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978). And by enabling the public to dig into the bases for judicial decisions, it enables the public to assure itself of the strength of judicial reasoning, the cornerstone of judicial legitimacy. This right thus not only "diminishes possibilities for injustice, incompetence, perjury, and fraud," but also provides "the public with a more complete understanding of the judicial system and a better perception of its fairness." In re Avandia Mktg., Sales Prac. & Prod. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (internal quotation marks omitted).

On paper, this right looks strong. In the U.S. Court of Appeals for the Third Circuit, where I sit, a district court issuing an order to seal "must articulate the compelling, countervailing interests to be protected" and "make specific findings on the record concerning the effects of disclosure." Id. (internal quotation marks omitted). But that standard is a paper tiger—mighty in appearance, but toothless in practice. Time and again, we see cases on appeal where the parties asked to seal large parts of the record below, and the district court, with little discussion, agreed to do so.

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Politics

From a Life-Long Republican Contemplating the Election Results

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Yesterday's events put me in mind (as I have been on other occasions) of Kipling's The Lesson; it was discussing England's very poor performance in the Boer War (though after England ultimately won that nasty conflict), but it applies to many other contexts as well. Its opening and closing stanzas seem especially apt:

Let us admit it fairly, as a business people should,
We have had no end of a lesson: it will do us no end of good.

Not on a single issue, or in one direction or twain,
But conclusively, comprehensively, and several times and again ….

It was our fault, and our very great fault—and now we must turn it to use.
We have forty million reasons for failure, but not a single excuse.
So the more we work and the less we talk the better results we shall get—
We have had an Imperial lesson; it may make us an Empire yet!

Change what needs to be changed (the lesson is political, not Imperial), and it's good advice for many situations. The question is whether enough of us will take the advice—and, of course, whether the lesson we learn is the correct one.

Religion and the Law

Crime in Texas, Trial in Texas, Confession to Clergy in North Carolina: Which Law Applies?

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By design, our American legal system largely lets different states make different rules. Most states recognize a tort of disclosure of private facts; some don't. A few recognize a tort of alienation of affections; most don't. Some states allow first-cousin marriage; others don't. Some set a one-year statute of limitations for defamation; some set it at two or three years. The list goes on.

Much conduct happens in one state, and the resulting disputes arise in the courts of that state. But other matters are multi-state affairs. Indeed, some are multinational affairs, even though they end up in one country's courts: What happens if a contract was entered into in France, performed in Canada, but plaintiff sues defendant over an alleged breach where they now both live, in Illinois?

There is therefore a body of law called "conflict of laws" (or "choice of laws") that tries to resolve these questions. As it happens, that is itself state law, so different states can have different conflicts rules, with at least three major schools of thought on the matter. (Think that's confusing? Don't get me started on renvoi and dépeçage.)

Here's a scenario that arose in the recent Texas Campbell v. State case:

Appellant was charged, in Harris County, Texas, with murdering his girlfriend. His girlfriend was killed in Texas. And then Appellant went to his mother's home in North Carolina.

While he was in North Carolina, Appellant's mother urged Appellant to speak with a bishop on the telephone. While he was on the phone with the bishop, and allegedly with his mother still in the room, Appellant made a statement admitting that he killed his girlfriend. During trial, the bishop was called to testify as a witness about the contents of Appellant's statement….

Texas Rule of Evidence 505(b) sets forth a clergy-penitent testimonial privilege:

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Choosin' Texas I Can Tell

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A few moments ago, the networks called the Texas Senate and Governor races for the Democratic candidates. Those outcomes will get a lot of attention. But of significant interest will be the downballot judicial races in Texas.

This year, four of the nine seats on the Texas Supreme Court were on the ballot. Unless something unexpected happens, all four will lose: Chief Justice Jimmy Blacklock, Justice James P. Sullivan, Justice Kyle Hawkins, and Justice Brett Busby. These are all brilliant judges. Two of them clerked on the United States Supreme Court. Chief Justice Blacklock has been a strong leader, following in the footsteps of Chief Justice Nathan Hecht. But the qualifications do not matter. Everything was on the party line. The Texas Supreme Court will now have five Republican members and four Democratic members. One might expect a number of 5-4 cases for controversial cases. Then again, the Chief Justice is now the administrator of the state court system, which entails some important responsibilities.

The Texas Court of Criminal Appeals (the court of last resort for criminal cases) had three seats on the ballot. Again, unless something happens, all three will lose. There will still be a six-member conservative majority. I don't see too much changing on that Court.

Recently, the Fifteenth Court of Appeals was created as a statewide constitutional court. Virtually all suits against the government are routed to that court. (Think of something like the D.C. Circuit.) All three members of that court were on the ballot. Unless something happens, all three will lose. The Court will now have 100% Democratic members. I would expect a lot mandamus suits to the Texas Supreme Court.

I haven't had time to go through the returns from the local courts, but it appears that most of the incumbent republican judges will lose office. This will be an even bigger bloodbath than 2018, when the Beto wave wiped out nearly all of the Republican judges in Houston, Austin, Dallas, and other large cities. So much judicial experience for non-controversial judges will go down the tube.

The Governor of Texas is fairly weak, as compared to other states, but he does have the power to appoint new members of the Texas Supreme Court and other courts when vacancies arise. Recently, the Texas legislature created a new Texas Business Court. This court was designed to compete with Delaware. Many of the current Texas business courts are not likely to be reappointed. This election will significantly affect businesses that chose to make Texas their headquarters. Speaking of which…

The Texas Attorney General Race will also likely go to the Democratic candidate. I would suspect that all of the conservative strategic litigation cases brought by Attorney General Paxton will be dismissed. Indeed, it is conceivable that the new Texas Attorney General would not defend the Texas Ten Commandments Law if cert is granted. (The BIO will be filed soon.) The Texas Attorney General will also not bring original jurisdiction actions before the Supreme Court of Texas. Going forward, all of the strategic forums in Texas will be severely underutilized. The only court where the Texas Attorney General might file cases will be in Austin. I should note that one seat on the Western District of Texas remained vacant for two years, and will likely remain vacant. But beyond the strategic litigation, the Texas Attorney General will now be able to investigate all of the corporations that moved to Texas. There are a lot of them.

What about judicial nominees? Despite my best efforts, Judge Southwick will get the last laugh. Todd Butler will almost certainly be confirmed. But the Fifth Circuit will likely be a lot quieter, given the lack of Texas Attorney General cases. I also hope this means that Judge Rudofsky will get a vote, as that Eighth Circuit seat would remain vacant for the foreseeable future. Indeed, the Eighth Circuit may be the only viable forum for a Republican AG to bring cases starting in 2028.

Going forward, Senators Cruz and Talarico will have to agree on blue slips for District Court nominees. Still, I suspect zero nominees will get a vote over the next two years unless there is some deal struck with the Senate Democrats.

What about Justices Alito and Thomas? They did what Justice Breyer could not--resist the pressure. I hope they live long and prosper.

Ultimately, I'm reminded of something I tell my students--we are never more than two years away from a midterm election. Despite threats about fascism and totalitarianism, the people are able to effect change.

AI in Court

Court Orders Plaintiff to File Handwritten Opposition,

after noting that many of plaintiff's filings contained seeming AI hallucinations, despite assertions in plaintiff's filings that all the citations were valid.

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From Judge Aileen Cannon (S.D. Fla.) in Paulk v. Larva Labs, LLC, decided in June but just posted on Westlaw:

This case presents a dispute over Defendant's alleged fraudulent interference with Plaintiff's Non-Fungible Tokens ("NFTs"). Plaintiff's Complaint, initially filed in Florida state court on January 20, 2026, alleges that in June 2017, Plaintiff used a publicly available software tool to generate 141 NFTs on the Ethereum blockchain. Each of these NFTs represents ownership of a unique CryptoPunk that was part of the first version of CryptoPunks ("V1"), a pioneering generative art project consisting of 24x24 pixel portraits. To create the NFTs, Plaintiff paid only nominal "gas fees" (i.e., fees paid to third parties who validate transactions on the Ethereum blockchain), and the NFTs "have remained in [a] dormant wallet" controlled to this day by Plaintiff.

Plaintiff alleges that, on June 23, 2017, Defendant "deployed" a second version of CryptoPunks ("V2"), "claiming V1 contained a 'bug.'" The Complaint then asserts that Defendant "suppressed V1 marketplace activity while promoting V2 as the sole authoritative collection, rendering Plaintiff's assets commercially impaired". Based on these allegations, the Complaint asserts causes of action for fraudulent concealment (Count I), unjust enrichment (Count II), declaratory relief (Count III), and injunctive relief (Count IV), seeking unspecified monetary damages and an injunction.

The court discussed various procedural issues, and then added:

As a separate matter, the Court is concerned more generally about the plethora of legal filings seemingly prepared by artificial intelligence and submitted by Plaintiff that make frivolous and unsupported arguments to the Court [see, e.g., ECF Nos. 15, 16, 17, 18, 19, 26, 26-1, 31, 32, 33]. As an example, Plaintiff makes the obviously incorrect submission that the citizenship of Defendant's counsel can be considered in determining complete diversity.

And many of Plaintiff's filings contain disclaimers to the Court, expressly certifying "that every legal authority, statutory provision, rule of procedure, and historical case citation referenced within [the filings] has been independently read, analyzed, verified, and cross-referenced against official federal and state legal repositories." In each of these filings, "Plaintiff guarantees that every cited case stands as valid, binding law within the United States Supreme Court and the Eleventh Circuit Court of Appeals, possesses an active and unchecked standing, and accurately represents the procedural postures asserted." And he expressly warrants that he has not included any "fictitious or unverified citations," and that he has "manually double-checked" each case to ensure that it "support[s] Plaintiff's cause perfectly, ensuring that no unverified or 'hallucinated' data is presented to the Court."

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A Ken Paxton Moment

As Texas AG, Paxton's done a lot of controversial and in-my-opinion unwise things, but this is the one that sticks in my craw

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I have stayed away from discussing any of the many important electoral contests that will be (hopefully) decided today.  But given that he is at the center of one of the most hotly-contested Senate seats, I can't help being reminded of his conduct during the campaign to overturn the 2020 election results, and what may have been the lowest of many low points in Ken Paxton's career to date.

In December 2020, when he was Attorney General of Texas, Paxton was the attorney of record in a lawsuit against the states of Georgia, Michigan, Pennsylvania, and Wisconsin, seeking to overturn the 2020 election results in those states.  He petitioned the Supreme Court to exercise its original jurisdiction to hear the case, and to do so on an expedited basis. [See my blog posting at the time here; Paxton's papers filed at SCOTUS are posted here].

In his filing, he wrote:

Expert analysis using a commonly accepted statistical test raises serious
questions as to the integrity of this election. The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump's early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000. For former Vice President Biden to win these four States collectively, the odds decrease to less than one in a quadrillion to the fourth power (i.e., 1 in 1,000,000,000,000,000^4).

The same less than one in a quadrillion statistical improbability [applies to] Mr. Biden winning the popular vote in the four Defendant States. . . . Again, the statistical improbability of Mr. Biden winning the popular vote in these four States collectively is 1 in 1,000,000,000,000,000.

Put simply, there is substantial reason to doubt the voting results in the Defendant States.

Indeed there is!  Prima facie proof of fraud in the counting of ballots, I'd say.
But only, of course, it it's correct, or at least close to correct. But it's not correct.  It is, as anyone with a knowledge of elementary statistics would have recognized immediately, simply and laughably wrong. The technical term is, I believe, "utter bullshit." I explain why here.  The probability that Joe Biden would end up with a majority in any of those is not one in a quadrillion - let alone one in a quadrillion to the 4th power (!), which is approximately equal to the probability that the sun will rise in the West tomorrow, and will have developed the capacity for human speech - nor anything close to one in a quadrillion.

Hey, we all make mistakes, right? What is most disgraceful about this episode is not that Paxton screwed up in his brief to the Court; it is that he never acknowledges his error, either publicly or, more importantly perhaps, to the Court. His assertion that the probability that Biden actually carried these States was equal to the probability that you would pick the single blue marble from a collection of 1,000,000,000,000,000 marbles, is a falsehood, and it is one that is at the core of his argument, in a case that was of grave importance to the future of the country. If Paxton didn't catch that falsehood before he filed his papers with the Court, he's merely a lousy lawyer, which I suppose is nothing to get too worked up about, given that there always will be plenty of lousy lawyers out there. But if he doesn't acknowledge that he has misled the Court after those misstatements are revealed - if he doesn't tell the Court that it has to ignore the part of his argument that relied on this incorrect understanding of statistics - then he's in a much more sinister category.

That this is the candidate whom the Texas Republican party chose as its candidate for U.S. Senate speaks volumes about the current state of the Rule of Law in this Administration. I'm sure that Mr. Paxton is looking forward, assuming the results go his way, to forging a close working relationship with Attorney General Todd Blanche, who is similarly scrupulous in his adherence to fundamental Rule of Law principles (as in the Slush Fund fraud-on-the-court perpetrated by Blanche and the DOJ].

I'm Back

Returning to regular posting.

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After taking a hiatus for awhile here working on other things, I'm returning to more regular posting. I look forward to engaging with my fellow Conspirators and readers. I have been largely working on financial regulatory issues. But many of these issues are increasingly intersecting with legal challenges that readers might find interesting.

Needless to say, I've been reading the blog regularly even though I haven't been posting and I hope I have something valuable to add.

Free Speech

Accusing University Lecturer Who Called Police of "Blatant Racial Profiling" Leads to $37,500 Defamation Verdict

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You can see the verdict form, from Thursday, here. The jury had asked whether they could suggest additional remedies besides the money:

But the court referred the jury to Instruction No. 10, which focused solely on monetary damages.

The backstory, from the opinion this April Judge Rebecca Pennell (E.D. Wash.) in Riera v. Central Wash. Univ., which let the case go forward:

Mr. Riera was employed in a fixed term, non-tenure track faculty at Central Washington University (CWU)…. On the morning of April 1, [2024,] Mr. Riera called the CWU police to report an older, "apparently homeless," woman wandering around Samuelson Hall. He said he wanted to make a report "before things get … out of control." An officer reported to Samuelson Hall and confirmed the identity of the woman as a CWU professor. No further action was taken by campus police or Mr. Riera.

The CWU professor shared her experience with two colleagues. The colleagues immediately filed bias complaints with CWU, alleging the target of Mr. Riera's call—a Black woman—had been the victim of racial profiling.

This led to a great deal of institutional response, including a discussion at a faculty senate meeting. Defendant Erdman, "a lecturer at CWU and member of the faculty senate, emailed unofficial minutes [of the meeting] to non-tenured faculty," and her notes included this:

Welcome to the Deep South, Circa 1935 ☹️

Without naming names or describing the incident, [CWU President] Wohlpart expressed his outrage at a recent unconscionable incident on campus.

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Free Speech

"Would 'Go Luigi'" Was a Threat, and Thus Subject to Harassment Prevention Order Statute

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From D.M. v. A.M., decided by Massachusetts Appellate Court Justices Ariane Vuono, William Meade & Zachary Hillman on Oct. 21:

The defendant, A.M., appeals from the extension of a harassment prevention order …..

To review a civil harassment prevention order, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed acts that constituted one of the enumerated forms of harassment." As relevant here, "[h]arassment" is defined as "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, [or] abuse." To qualify, the conduct must be intended to cause and actually cause fear of physical harm or damage to property….

Here, as the District Court judge properly found, there were three or more incidents constituting harassment. On June 27, 2025, the defendant called the Target store that D.M. managed, looking for D.M., and became vulgar with the employees when she was told that D.M. was not there.

On June 28, 2025, the defendant showed up at the Target store and demanded to speak to D.M. The defendant then called Target's customer service line and made multiple threats, including that she would "go Luigi" and that she was "at the point of feeling like Luigi" and that D.M. was "gonna be sorry though."

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More

Recent Volokh Posts

1

Don't Expect a Lame-Duck Supreme Court Vacancy (But There Are Other Nominations to Consider)

2

No Problem with Recognizing Islamic Talaq Divorce from Dubai, When Wife Didn't Want to Stay Married

3

"The 'Birds Aren't Real' Guy Was Just a Little Ahead of the Curve"

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Fifth Circuit on Pseudonymity of Libel Defendant (Who Claims She Was Sexually Assaulted)

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Wise Words from Third Circuit Judge Stephanos Bibas as to Access to Court Records

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From a Life-Long Republican Contemplating the Election Results

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Court Dismisses Claims Over Alleged "Doxing" and Criticism of Homelessness / Needle Exchange Activists

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Crime in Texas, Trial in Texas, Confession to Clergy in North Carolina: Which Law Applies?

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Today in Supreme Court History: November 4, 1992

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Open Thread

The All-Argentina Issue is Here

New from Reason: a look into what Javier Milei has accomplished and what it will take to make the most of Argentina’s window for real change. Out now for subscribers.

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