The Volokh Conspiracy

In 2009, I launched FantasySCOTUS. At the time, the idea was novel: a league where people could predict the outcome of Supreme Court cases. I soon realized I had the makings of a nascent prediction market. We began to aggregate the votes and offer expert predictions on all of the pending cases before the Court. The best players would predict up to 85% of the cases accurately. By 2014, I partnered with colleagues to develop a machine learning algorithm that would predict Supreme Court cases. We called it {Marshall+}. At its peak circa 2016, the algorithm was nearly as accurate as our best users--approximately 70% accurate.

Admittedly, over time, interest in FantasySCOTUS has faded. I chalk it up to a few factors. First, the Supreme Court has become more predictable. With the new appointees, fewer votes are up for grabs in most cases. I think the novelty of predicting outcomes has somewhat worn off. Instead, the focus is not on affirm/reverse, but how the Court rules. Second, coding each case for our algorithm proved to be too time-consuming. The juice was no longer worth the squeeze. Third, AI has completely obliterated all of our work. It is now possible to ask an AI agent to predict a case, and that work will be far more accurate than what our algorithm might have generated with hours of preparation. I maintain FantasySCOTUS at this point mostly as a novelty. There are a dedicated group of players who still make predictions, and I am thankful for their commitment. But I doubt this league will ever return to its heyday.

In the early days, I was often asked if the Supreme Court Justices would check FantasySCOTUS. I had no way of knowing, but I would joke with reporters that Justice Kennedy might check the league to see which way to vote.

Now, it seems, things have come full circle.

On Monday, the Supreme Court heard oral argument in Jules v. Andre Balazs Properties. The question presented concerns arbitration. I won't even pretend to understand the facts. Rather, I was intrigued by a single question asked.

Adam Unikowsky represented the Petitioners. Adam has made headlines of late for his work on AI. His most ambitious project employed Claude to automate a Supreme Court oral argument. You should listen to it. It sounds really real. And, it seems, the Justices are aware of Adam's efforts.

During the seriatim round, Justice Alito asked Adam:

JUSTICE ALITO: Well, just out of curiosity, do you think we should ask Claude to decide this case?

The transcript notes there was "laughter." I heard the distinct and prolonged laughs of Justices Kagan and Barrett. There may have been others.

Adam swiftly replied:

MR. UNIKOWSKY: No. I --I adhere to the wise judgment of --of this Court.

I think the effect of this joke is that lawyers will now be afraid to even suggest they use AI. But it seems clear that many lawyers are using AI to generate questions that may be posed at oral argument--though they may not admit it. I give Adam credit for being transparent with his methods. Though, Adam may have gotten burned.

For whatever it is worth, Professor Scott Dodson asked Claude to generate a opinion in the case in the style of Justice Kagan.

Two months ago, Chief Justice Roberts began the Court's opinion in Bost v. Illinois State Board of Elections this way:

Under Article III of the Constitution, plaintiffs must have a "personal stake" in a case to have standing to sue. FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 379, 144 S.Ct. 1540, 219 L.Ed.2d 121 (2024). They must, in other words, be able to answer a basic question: " 'What's it to you?' " A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983)

These sentences should be enough to reverse Judge Leon's injunction blocking the construction of the new East Wing ballroom.

I'm sure you've seen many press stories about today's opinion, but have you actually read the standing analysis? In an earlier ruling, the court relied on a purported aesthetic injury.

A member of the National Trust regularly walks near the White House, and enjoys the beauty of the architecture. But she doesn't like the new design. This distress, she claims, gives her Article III standing to challenge the construction at the White House. She has no monetary interest. Rather, she simply doesn't like how the structure appears.

Hoagland intends to continue visiting President's Park roughly once a month. Id. at 12. She asserts that construction of a ballroom of the form and scale proposed by the President would disrupt her enjoyment and use of President's Park and cause her to "suffer both professional and personal injuries, including to [her] aesthetic, cultural, and historical interests." Id. at 13-14. The President's proposed ballroom would, in Hoagland's words, "overshadow[]" the White House and "diminish [its] primacy," thereby disrupting the message that "our president lives in a house." Id. at 13. Based on her claims of aesthetic injury, Hoagland could sue in her own right. It is well-settled that the "desire to use or observe" something, "even for purely [a]esthetic purposes, is undeniably a cognizable interest for purpose of standing." Lujan, 504 U.S. at 562-63.

The plaintiff is distressed by what she might have to see. To use Justice Gorsuch's phrasing, Hogland is an "offended observer." Here is how Gorsuch described the doctrine in American Legion:

"If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, . . . [c]ourts would start to look more like legislatures, responding to social pressures rather than remedying concrete harms . . . ."

I am very familiar with the aesthetic injury claim. It was raised in the Mifepristone litigation. Judge Ho expressly invoked it in his concurrence.

In addition to the injuries analyzed by the majority, Plaintiffs have demonstrated another basis for Article III standing: the aesthetic injury they experience in the course of their work. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (recognizing aesthetic harm as "injury to a cognizable interest"); Lujan v. Defs. of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing."); id. at 566, 112 S.Ct. 2130 ("[T]he person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm."). It's well established that, if a plaintiff has "concrete plans" to visit an animal's habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal. See Lujan, 504 U.S. at 564, 112 S.Ct. 2130. . . .

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

Plaintiffs' declarations illustrate that they experience aesthetic injury from the destruction of unborn life.

In short, if naturalists can claim an aesthetic injury to see plants and animals, then pro-life doctors could claim a similar injury with regard to newborn babies.

On appeal, the Supreme Court could have considered AHM's "aesthetic" standing argument raised in Judge Ho's concurrence. But Justice Kavanaugh did not. The ground for standing was not even mentioned. Indeed, I think the Court chipped away at "offended observer" standing in Footnote 3:

The doctors also suggest that they are distressed by others' use of mifepristone and by emergency abortions. It is not clear that this alleged injury is distinct from the alleged conscience injury. But even if it is, this Court has long made clear that distress at or disagreement with the activities of others is not a basis under Article III for a plaintiff to bring a federal lawsuit challenging the legality of a government regulation allowing those activities. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 473, 485–486 (1982); United States v. Richardson, 418 U. S. 166, 175 (1974); Sierra Club v. Morton, 405 U. S. 727, 739 (1972).

What is the relationship between Mifepristone and the Ballroom? Are we to believe that an astute art critic can claim an "aesthetic" injury for staring at slabs of marble but a doctor cannot claim an "aesthetic" injury for seeing the miracle of life? This would be yet another asymmetry in standing. Offended liberals can always get to federal court but conservatives cannot.

I do not see how a claim for "aesthetic injury" is consistent with the Court's recent standing cases--especially when the claim is based on subjective architectural sensibilities. To borrow from The Fountainhead, we can call this doctrine "Ellsworth Toohey" standing.

From Doe v. Life Time, Inc., decided today (correctly, I think) by Judge Dora Irizarry (E.D.N.Y.):

The Complaint alleges that Plaintiff attended Life Time Fitness from 2018 to 2024, and in 2023 his local gym hired Defendant Ahmed to "man the front desk in the evenings." Ahmed is alleged to be a member of the Muslim faith who "flaunts his religion." The Complaint alleges that, as an employee, Ahmed discriminated against Jewish members, such as Plaintiff [in violation of federal and state antidiscrimination law], by prohibiting Plaintiff from entering the gym after 8:00 PM on weekends, while allowing members of the Muslim faith to enter.

Plaintiff recounts a specific encounter on October 26, 2024, in which Plaintiff arrived with a guest wearing a yarmulke (a small round head covering worn by male practitioners of the Orthodox Jewish faith) and requested late entry. Ahmed is alleged to have denied entry and then admitted to selectively enforcing policies when pressed by Plaintiff. The situation escalated and Plaintiff's membership to the gym was suspended. Plaintiff alleges that his membership was reinstated the next day; however, on December 14, 2024, three Life Time employees, including Ahmed, assaulted him in the gym locker room.

Plaintiff attests that he raised Ahmed's discriminatory actions to his gym's general manager, but nothing was ever done. After lodging a number of complaints, Plaintiff alleges that the general manager banned him from the gym. Plaintiff further alleges he never was given a reason from Life Time as to why he was banned….

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On the eve of the birthright citizenship case, it is useful to think back to last year. The Trump Administration could have rushed the merits to the Supreme Court, but instead only sought certiorari in the nationwide injunction issue. And to win that case, the executive branch sacrificed its own power. The Solicitor General said it would bind itself to the decisions of the Supreme Court. No decision, not Marbury, not Cooper v. Aaron, ever stipulated that point. Now a coordinate branch of government surrendered. And to what end? Was CASA such an important case that justified that unilateral disarmament?

I think the answer is no. In the year since CASA, there have been a never-ending spate of universal vacaturs against the executive branch. District Courts have certified classes on the fly. And the Supreme Court has shown no interest in clamping down this practice. And if, as expected, the Supreme Court strikes down the birthright citizenship order, all of this litigation will have been for naught. The executive branch is weaker because of this order. What was gained?

On the other side, the doomsday predictions from CASA simply have not come to fruition. Richard Re brings the receipts:

First, the CASA dissenters repeatedly suggested that relief would be practically unavailable, at least for many affected individuals, if universal relief were disallowed. . . . As it happened, the EO was swiftly enjoined and so has yet to go into effect. Moreover, that outcome was not only foreseeable but foreseen by at least some justices and commentators. . . .

Second, the CASA dissenters, especially Justice Kagan at oral argument, worried that the merits of the birthright citizenship EO would never reach the Supreme Court. . . . To some degree, this second worry was parasitic on the first one, for a lack of SCOTUS review might not be a problem if the relevant executive action were still expeditiously enjoined via class action. At any rate, the oral argument resulted in a promise from the SG that he would in fact seek certiorari on the merits, and that is of course what happened. . . .

In CASA, the dissenters raised concerns that were unusually immediate and specific. Perhaps they left enough wiggle room for plausible deniability. But to the extent that the dissenters made testable claims, those claims have not been borne out. The dissenters' doomsaying, in other words, can be viewed as both falsifiable and falsified. One might remember this example when considering other assertions in dissenting opinions.

CASA was so important last year. This year, it barely matters. Yet another instance where it is difficult to know in the moment what Supreme Court rulings will have any resonance in the longterm.

I give a lot of thought to timing on the Supreme Court. Internal deliberations are usually a black box, unless there are some leaks. All we know for sure is when a case is argued and when it is decided.

Today, the Court decided Chiles v. Salazar. This case was argued six months ago on October 7. The vote was 8-1. Justice Gorsuch wrote the majority opinion, which was about twenty-pages long. Justice Kagan wrote a short concurrence, joined by Justice Sotomayor, that was about four pages long. Justice Jackson wrote a solo dissent that spanned more than thirty pages.

Why did this case take six months? It seems pretty clear the majority opinion coalesced fairly early on. There is not much daylight between the majority and the concurrence. I have to imagine that Justice Gorsuch circulated his majority opinion fairly quickly. There are no footnotes suggesting attempts to modify or water-down the majority opinion.

What we don't know is how Justice Jackson affected the process. The majority opinion offers a few citations to Jackson's dissent, but there is no lengthy back-and-forth. I don't think there was much engagement here at all. Indeed, it is telling that Justice Kagan felt compelled to respond to Justice Jackson in a footnote.

This opinion also makes me think about Callais, which was argued on October 15. I doubt that case will be 8-1. But it may take around the same time, if not longer.

For those who care about such things, Justice Alito is the only Justice who has not yet written a majority opinion from October.

On Saturday evening, the Texas Review of Law & Politics awarded its 2026 Jurist of the Year award to Judge Kacsmaryk. The latest bobblehead has a perfectly coifed head of hair, far different from the mop atop the 2024 winner.

Today, the Texas A&M Journal of Law Civil Governance published a very timely conversation between Judge Kacsmaryk and the 2023 Jurist of the Year, Judge James C. Ho. It is titled, "What Does It Mean To Be A Christian On The Bench?" I would encourage you to read the entire dialogue, but I'll highlight a few parts here.

First, Judge Kacsmaryk had this to say about textualism in Bostock:

Most famously or infamously, the Bostock case produced three separate "textualist" readings of a statute enacted in 1964 and a sexual dimorphism as old as Genesis.4 Justice Gorsuch focused on Text, finding a "but-for causation" requirement because of "because of." Justice Alito marshaled volumes and volumes of History. Justice Kavanaugh invoked longstanding Tradition rooted in Separation of Powers. But these Titans of Textualism could not harmonize Text, History, and Tradition to agree on workable Title VII definitions of "sex" or "because." Reading these opinions, I discerned that Text, History, and Tradition should yield an agreed "ordinary public meaning" if jurists have a shared teleological end: truth. I hear Pilate's retort: "What is truth?"5 Here, I mean the truth the Textualist Trinity should yield: the "ordinary public meaning" of the words at the time of their enactment, as uttered and understood by the relevant writers and ratifiers—consistent with compositionality6 and against any absurdity.7 . . . This is where the faithful Christian should have a Textualist advantage: we believe there is such a thing as objective, external, knowable Truth.

Second, Judge Kacsmaryk explained how he had to be recruited to become a federal judge.

H: Listening to you discuss judicial philosophy and interpretive theory, I think many people would be surprised to learn that you never sought to be a federal judge. You had to be recruited.

K: In fact, if memory serves, you were the first person to ask if I might relocate to the Amarillo Division to fill the vacancy there. As I recall, I said I was interested in returning to the Department of Justice but had zero interest in the judiciary. You said that's exactly what you liked about the idea—that it wasn't something I ever sought.

H: Matthew 20 reminds us that "whoever wants to become great among you must be your servant . . . just as the Son of Man did not come to be served, but to serve." That's the same ethos that we should find in our judges as well. People who will use power, not to serve themselves, but to serve others. People who are willing to be a judge—but not desperate to be a judge. People whose goal isn't to get onto a bench, but to get into heaven.

Third, Judge Ho opined on what it means to be a federal judge. It is not as glamorous as people might suspect.

Because if you do this job right, it's actually not a fun job. If you're doing it because you want stature and respect and prestige—you want to be praised by the right people and invited to the right parties—then you're going to be distracted. Instead of following the law, you're going to focus on reaching the outcomes that the popular people want you to reach. And we've all seen how that turns out.

Judge Ho has written about how judge, like umpires, fear getting booed. But to be precise, the fear is that judges will be booed by legal elites on the left. The fear does not run the other way. Conservative judges historically have had nothing to fear from being booed by conservatives. Well, that was the case. I made waves years ago by calling out conservative judges. To this day, I continue to pay the price. But more recently, President Trump has turned up the heat. Many of his attacks cross the lines, but as always, there is a kernel of truth in his barbs.

Fourth, Judge Ho reveals that he initially declined Ted Cruz's invitation to become Solicitor General:

K: You served at the Justice Department Office of Legal Counsel and the Senate Judiciary Committee before heading to the private sector. When Senator Cruz suggested that you take over as Texas Solicitor General, you actually declined at first.

H: I've known Senator Cruz for over 25 years, and as far as I can recall, it's the only time he was ever really angry with me. Allyson and I were still new to Dallas. We were just starting our careers here. We also wanted to start our family. That was the whole point of leaving D.C. and moving back to Texas. So I told him that I was profoundly humbled that he would think of me, but that I couldn't do it. But he and others kept at it, and they eventually convinced me to change my answer. As you say, public service is in both of our DNA.

Fifth, Judge Ho discusses how he and his wife, Allyson Ho, balance their careers:

K: Well, you and Allyson have dealt with death threats too, I know. You and Allyson also had some unique considerations that I didn't face in deciding whether to take the bench.

I'm talking about the fact that you were both active Fifth Circuit practitioners before you joined the court. How did you think and pray through that decision?

H: Allyson and I have both been so very blessed in our lives, and that includes practices and careers that we really enjoyed. And by 2017, we were both really starting to hit our stride. So yes, like you, I wasn't planning to pursue the bench. Instead, we were focused on helping the Senators identify others to fill various vacancies—including you, of course! So when I got the call from the Senator's chief counsel asking me if I would consider it, I was very surprised. Allyson and I discussed how it might work, with both of us as Fifth Circuit practitioners. And it's actually not as hard as you might think. As a judge, I have to recuse, not just on every case that Allyson is on, but on every case anyone at her firm is on, whether she's involved or not. The recusal applies to the whole firm. And it's a big firm. But that's okay. Because at any given sitting, there are multiple Fifth Circuit panels. So it's not a big deal for the firm to be recused on any panel I'm ever on. There are other Fifth Circuit panels. The firm isn't recused from our court altogether.

K: So how did it work when President Trump named you to his Supreme Court list in 2020?

H: From a recusal standpoint? Well, there was no vacancy at the time. The President wasn't actually nominating anyone. He was just putting out a list. But if you're asking purely hypothetically about recusal, there are multiple Fifth Circuit panels, but there's only one Supreme Court. I can't imagine that Allyson's firm would want to be categorically recused from the highest court in the land. Or any other major firm with a significant appellate practice, for that matter. To have to tell every client that, if you hire them, they can only seek cert from an eight-member Court? That would effectively end her career and her practice—one she's worked so hard, for decades, to build. I brought this up when folks called me about the list in 2020. I didn't want to deceive anyone. But I was told it wasn't a problem. There was no vacancy. The only question was whether I was willing to be included on a list.

I don't think people quite appreciate what it would mean for the Ho family if Judge Ho were elevated to the Supreme Court. I have written many times that Judge Ho is not auditioning for the Supreme Court. No one believes me, because the audition trap is inescapable. But he is bearing his heart out and speaking truth as a husband. Listen to what the man has to say.

You should read the entire dialogue.