The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Plaintiff Must "Reconcile Herself to the Fact That Litigation Is Often Accompanied by Public Attention and Scrutiny"
"Outside of certain narrow and presently inapplicable circumstances, federal lawsuits are public proceedings and members of the public are free to comment on them."
Owen v. Askew, decided today by Judge Ann Aiken (D. Ore.) rejected Plaintiff's Emergency Motion for Order to Show Cause (see also this supplement), seeking to hold defendant Boyce "in contempt for violation of the preliminary Injunction." That preliminary injunction, which was narrower than the TRO I had blogged about, "enjoin[ed] Defendants from engaging in harassment directed at Plaintiff or her business and particularly from seeking to have Plaintiff's online storefronts removed during the pendency of this action." From the court's opinion:
Plaintiff asserts that Ms. Boyce has commented on the ongoing lawsuit and that Plaintiff has been the target of hostile commentary on the Internet by third parties. The motion and its supporting exhibits do not show that Ms. Boyce has engaged in harassment of Plaintiff.
Nor does it show, beyond Plaintiff's speculation, that she has encouraged others to do so. The various Emergency Supplements include voluminous exhibits showing third parties expressing their support for Ms. Boyce or their antipathy to Plaintiff, but these comments do not constitute harassment and, even if they did, the Preliminary Injunction does not serve to enjoin individuals who are not before the Court.
Plaintiff complains that Ms. Boyce has "mocked" these proceedings and expressed her opinion that she will ultimately prevail, but it is not clear how Plaintiff believes either sentiment is a violation of the Preliminary Injunction. Outside of certain narrow and presently inapplicable circumstances, federal lawsuits are public proceedings and members of the public are free to comment on them. If Plaintiff wishes to proceed with this action, she must reconcile herself to the fact that litigation is often accompanied by public attention and scrutiny.
What Should We Call the "Shadow Docket"?
Should it be the interim docket? The emergency docket? The emergency orders docket? The short order docket? Something else?
In today's New York Times, Adam Liptak reports on the emerging debate among commentators and Supreme Court justices about what to call the Supreme Court's docket of requests for emergency or interim relief.
As Liptak notes, this docket was initially coined the "shadow docket" by Will Baude in an article that sought to draw attention to this component of the Court's work, and bring it out of the shadows. Mission accomplished. This aspect of the Court's work is now analyzed and debated.
Now that the "shadow docket" is no longer in the shadows, does it need another name? As I noted here, Justice Kavanaugh thinks it should be called the "interim docket." Liptak reports on what other justices have said.
Justice Elena Kagan said in July at a judicial conference that she has used the term "shadow docket" in dissent "when I was feeling particularly annoyed." . . .
Justice Samuel A. Alito Jr. is not a fan of such critiques. In a 2021 speech, he said the term "shadow docket" was nothing less than an assault on the legitimacy of the court.
"The catchy and sinister term 'shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways," he said. "This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution."
Most justices seem to have settled on the "emergency docket" to describe the court's fast track. Justice Kagan said that was her preferred term, and Justice Amy Coney Barrett said the same thing last week on the "Advisory Opinions" podcast. . . .
Professor Baude, whose article started the debate, said last week that "interim orders docket" was fine with him. But he added that he regrets nothing about coming up with "shadow docket."
Why Trying to Undo the Endangerment Finding Is A High-Risk (and Low-Reward) Deregulatory Strategy
EPA Administrator Lee Zeldin says the Endangerment Finding is the "holy grail" of climate policy. Perhaps it's really they great white whale.
Environmental Protection Agency Administrator Lee Zeldin is pursuing an aggressive strategy to reduce the burden of environmental regulation on the American economy. In line with the Trump Administration's Executive Orders, he is emphasizing deregulatory measures relating to energy development and consumption, with a particular focus on climate change. As I have noted before, some parts of this deregulatory agenda are more legally defensible than others.
My latest Civitas Outlook column focuses on Zeldin's effort to roll back EPA climate regulation, and where the EPA may face difficulty.
Zeldin's most ambitious undertaking in this regard may also be the most legally vulnerable. On July 29, the EPA proposed to not only repeal regulations limiting greenhouse gas emissions from new motor vehicles, but also to rescind the so-called "endangerment finding"—the legal predicate for nearly all of the EPA's greenhouse gas regulations under the Clean Air Act. In this regard, the EPA is not seeking merely to undo regulations from the Obama and Biden administrations. It is also seeking to make it more difficult for future administrations to put such regulations back in place unless and until the EPA is instructed to do so by Congress. This is a high-risk strategy. . . .
The primary reason it is difficult to undo the endangerment finding is that the statutory standard is so easy to meet. For purposes of the Act, the question is not whether climate change is catastrophic, nor whether climate adaptation is preferable to mitigation, nor whether federal regulation of sector-specific emissions is rational or cost-beneficial, nor whether such regulations represent a serious or rational way to address the threat of climate change. Nor is the question whether the science is unequivocal, nor is it whether there is certainty about the likely effects of increased atmospheric concentrations of greenhouse gas emissions over any given time period. Rather, the question is simply whether the EPA Administrator can "reasonably anticipate" that the accumulation of greenhouse gases in the atmosphere can have negative effects on health or welfare—effects which the Act defines to include the impact on climate, "economic values," and "personal comfort and well-being."
While the EPA suggests that a less-alarmist interpretation of existing climate science is one reason to undo the endangerment finding, relying upon a draft report prepared for the Department of Energy, its primary argument is that the Clean Air Act "does not authorize the EPA to proscribe emission standards to address global climate change concerns." The problem is that this argument is almost certainly foreclosed by Massachusetts v. EPA, which expressly concluded that the Act "authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change." The EPA suggests one way to address this constraint is to note that domestic motor vehicle emissions are a small (and shrinking) share of global emissions, but Section 202 of the Clean Air Act (unlike some other provisions of the Act) conspicuously lacks any requirement that motor vehicle emissions contribute significantly to the problem.
In its proposed rulemaking the EPA tries to argue that intervening Supreme Court decisions counsel a reconsideration of what the Clean Air Act means. Under these decisions, most notably West Virginia v. EPA and Loper Bright Enterprises v. Raimondo, the EPA argues that the Clean Air Act should not be interpreted to grant the EPA authority to regulate greenhouse gas emissions in order to control climate change. Were it a matter of first impression, this argument would have substantial force (especially before the current court), but that is not where we are. The Massachusetts decision may have been wrong (as I believe it was), but it nonetheless represents the Court's authoritative interpretation of what the Clean Air Act provides on this point, and the Supreme Court rarely reconsiders its prior statutory holdings.
While many critics of the endangerment finding want to focus on climate science, it is worth noting that the primary arguments the EPA put forward in its proposed rulemaking are legal, not scientific. The EPA references the recent Department of Energy Climate Working Group report that critiques prior National Climate Assessments and presents a less alarmist view of climate science, but the EPA (correctly) recognizes that it is the legal issues here that will (and should) predominate.
Speaking of the Climate Working Group, it is apparently no more. After the initial report was released and put out for public comment, environmentalist organizations sued, claiming DOE violated the Federal Advisory Committee Act (FACA), and asked a court to enjoin the federal government from relying upon the report in any form. While it was unlikely a court would embrace this extreme remedy, it appears concerns about FACA compliance going forward convinced DOE to disband the working group, and that is what the Energy Secretary did. Going forward, this may make it more difficult for the EPA to rely upon the group's work in the endangerment finding repeal rulemaking, as it was only a draft report, and it is not clear how it will be revised in response to public comment if the working group no longer exists.
My Civitas Outlook column concludes:
Administrator Zeldin has referred to the endangerment finding as "the holy grail of the climate change religion." Perhaps so. But recall that in the Arthurian legend, only the purest of heart and soul may reach the grail. Accordingly, it may take a purer legal strategy, and one that relies upon Congress, if the endangerment finding is to be undone.
Leonard Cohen's "There Is a War" (First Released 1974)
There's more going on in the song, but here's an excerpt (actually, two excerpts merged, out of order) that's been on my mind; it seems pretty clear that Cohen's commentary is not an endorsement:
There is a war between the rich and poor
A war between the man and the woman
There is a war between the left and right
A war between the black and white
A war between the odd and the even …
There is a war between the ones who say there is a war
And the ones who say that there isn't
Campus Violence and Threats Against Jewish Students Since October 7, Part I
For obvious reasons, everyone is talking about political violence in the US. Coincidentally, I have been working on two lists for an appendix to an article I am writing about hostile environment law. The first list, below, is of actual physical battery. The second is of threats and intimidation against Jewish individuals or institutions like Hillel. Since the article is not done and won't be out for a while, I thought it would be helpful to others working on related topics, and of course to curious blog readers, to see these lists. Note that these are not complete lists, but only contain incidents regarding which I could find public sources. I know of two cases of battery against Jewish students, one at Johns Hopkins and one at George Mason, that aren't on my list, and presumably there are many more. Note that while some of these incidents are more serious than others, they are listed in chronological order, not order of gravity.
Part I. Assaults and Physical Violence
This section documents reported incidents of physical violence directed against Jewish students or visibly Jewish individuals on or adjacent to U.S. university campuses. Entries are arranged in chronological order. For reading ease, I will delete the citations, but I'm happy to send them to anyone who requests them. Most of these assaults are attributable to anti-Israel activists, but in some cases the precise motivation (beyond targeting a Jewish student or students) is unknown.
Drexel University (Oct. 2023) — (Philadelphia, PA)
The door of a Jewish student's dorm suite in Race Hall was intentionally set on fire. The incident was investigated as arson and antisemitic harassment by local police and federal authorities.
Oct. 26, 2023 – Tulane University (New Orleans, LA):
During a campus rally in support of Israel, an anti-Israel counter-protestor swinging a pole struck a Jewish student in the face, causing visible injuries. Tulane police confirmed arrests.
Nov. 5–6, 2023 – UMass Amherst (Amherst, MA):
After an Israel solidarity event, a Jewish student carrying a flag was punched and the flag spat on. The suspect was arrested and barred from campus.
Nov. 10, 2023 – Ohio State University (Columbus, OH):
Two Jewish students were attacked near campus, with one reporting he was punched 'because he was Jewish.' The case was investigated as a hate crime.
Nov. 2023 – Harvard University (Cambridge, MA):
A Jewish student recording a protest 'die-in' at Harvard Business School was physically assaulted by demonstrators. Two students were charged with assault and battery. In February 2025, a Boston judge dismissed hate crime charges, but assault charges remained; the defendants were referred to a first-offender program.
February 26, 2024 – UC Berkeley (Berkeley, CA):
Students broke into Berkeley's Zellerbach Playhouse and rioted outside an event organized by Jewish student groups featuring an Israeli speaker. Approximately 200 protesters surrounded the building, chanting "Intifada" and "You can't run! You can't hide! We charge you with genocide!" while banging on the building's windows and doors. Students attempted to attend the event were harassed and assaulted by the protesters. One student was grabbed by the neck and another student was spat upon. Protesters shattered windows and broke open an entrance to the building. The audience to be evacuated from the building under a police escort. Berkeley Chancellor Carol Christ and Executive Vice Chancellor and Provost Ben Hermalin publicly acknowledged reports that Jewish students were subjected to "overtly antisemitic expression" including "allegations of physical battery, as hate crimes."
March 4, 2024 – Tufts University (Medford, MA):
At a student government meeting discussing anti-Israel resolutions, a Jewish student reportedly asked an anti-Israel student to stop laughing as the pro-Israel Jewish students presented their position. In response, the laughing student said, "Shut up b*tch," and spat on the Jewish student.
Apr. 25–May 2, 2024 – UCLA (Los Angeles, CA):
During the Palestine Solidarity encampment, Jewish students reported being physically blocked from entering parts of campus. A federal judge later ruled UCLA had failed to protect equal access.
Jewish students also reported: (1) a Jewish student who was lawfully filming the encampment being slapped by a UCLA teaching assistant; (2) another Jewish student was pepper-sprayed by a protestor; (3) a student from Israel being assaulted by protestors.
April 2024 - Northwestern University (Chicago, IL)
At the Northwestern "encampment," a Jewish Northwestern student photojournalist was identified by a masked student by name and physical description to hundreds of encampment members. Protestors then surrounded the student, shouting, "Shame! Shame! Shame!" In a separate incident, an encampment members assaulted a Jewish Northwestern student lawfully recording the encampment. Jewish students reported ordered to "go back to Germany and get gassed" and were spat at while walking past the encampment." [This one is on the borderline between intimidation/threat and battery, depending on where the spit landed.]
April 29, 2024 – Princeton (Princeton, NJ)
Jewish student David Piegaro was filming the aftermath of the arrests of several students involved with a Princeton encampment when a man, who later turned out to be a Princeton administrator, grabbed him and threw him down the marble stairs of a building. Piegaro suffered a concussion and rib injuries. Princeton officials pressed charges against Piegaro, claiming that he initiated the incident by bumping into the administrator's arm. Piegaro was found not guilty at trial by a judge, and now has a lawsuit pending against Princeton.
April 30, 2024 – Yale (New Haven, CT):
Protesters at Yale established checkpoints around the green guarded by so-called "marshals." These "marshals" physically prevented entry unless one was committed to "being committed to Palestinian liberation and fighting for freedom for all oppressed peoples." As a result, numerous Jewish students were physically prevented from accessing relevant areas of campus.
May 1, 2024 – UCLA (Los Angeles, CA):
Jewish student Elinor Hess was shoved, kicked, and pulled by the hair while attempting to retrieve a flag that fell within an anti-Israel encampment. She sustained a concussion and required medical treatment. The assailant was initially charged with felony assault, but prosecutors later downgraded the charges to misdemeanors.
Jun. 10–11, 2024 – UCLA (Los Angeles, CA):
Rabbi Dovid Gurevich of UCLA Chabad was surrounded by masked protesters, called 'pedophile rabbi' and told to 'go back to Poland,' and had his phone knocked away. Sources: The Forward:
May 2024 – Reed College (Portland, OR):
After antisemitic vandalism in dorms, a Jewish student was struck in the head with a rock while in her room, sustaining injuries. The attack was captured on surveillance cameras.
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Transgender Kent State Prof Loses First Amendment + Discrimination Claim Related to "Weeks-Long, Profanity-Laden Twitter Tirade Insulting Colleagues and the University"
A short excerpt from the long decision in Patterson v. Kent State Univ., decided Friday by Judge John Nalbandian, joined by Judges Danny Boggs and Richard Allen Griffin:
GPat Patterson, a transgender professor at Kent State University, sued the university on several discrimination and retaliation claims. The claims arise out of Kent State's response to Patterson's weeks-long, profanity-laden Twitter tirade insulting colleagues and the university….
Patterson alleged that certain university actions—"(1) the Dean revoking her offer to lighten Patterson's credit load, (2) the Dean's '[r]evocation' of Patterson's leadership role in the Center, and (3) the English department's denial of the tenure-transfer request" through which Patterson sought to transfer] "from Kent State's Tuscarawas campus to the English department on the main campus"—were discriminatory or retaliatory. No, said the court.
[A.] The court concluded that the actions weren't retaliation against First-Amendment-protected speech:
[To be protected against retaliation by a public employer, the plaintiff's] speech must address a matter of public concern, and the plaintiff's interests in speaking on those matters must outweigh the state's interest in promoting effective and efficient public services….
Speech involves a matter of public concern when it deals with "any matter of political, social, or other concern to the community." "The linchpin of the inquiry is … the extent to which the speech advances an idea transcending personal interest or opinion" and instead impacts our shared social or political life. Allegations of public corruption, for example, touch on matters of public concern. So do remarks about government inefficiency or major government policy decisions. And so do statements exposing governmental discrimination.
On the other hand, speech about internal personnel disputes or management doesn't cut it. Run-of-the-mill "employee beef" doesn't implicate the public concern just because it's been spilled to the public. That's because "the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs." The government, as an employer, must "enjoy wide latitude in managing [its] offices, without intrusive oversight by the judiciary in the name of the First Amendment." Put simply, "complaining about your boss and coworkers is not protected by the First Amendment just because you work for the government."
Patterson's tweets didn't involve a matter of public concern. The gist of the month-long diatribe was to complain about [Dean] Munro-Stasiuk's and [Prof.] Mazzei's decisions on how to handle new academic programming. Munro-Stasiuk and Mazzei were repeatedly called out as "cishet white admin ladies" engaged in "F*ckery," "shit," "trans antagonism," and "epistemic violence" who were "quite literally killing [Patterson]." Mazzei was singled out as a "usurper" and "cishet white admin with zero content expertise" whose field of study was a "sentient trash heap," and who was guilty of "back-stabbery" and "horizontal violence." These are complaints about other Kent State faculty members and their workplace decisions—"employee beef," plain and simple.
RIP Professor John S. Baker, Jr.
I am very sad to relay that Professor John S. Baker, Jr. has passed away. John was an iconic constitutional law professor. John also taught a separation of powers seminar with Justice Scalia for two decades. I regret never taking this class when I had the chance. John will be deeply missed.
The James Wilson Institute posted this remembrance:
JWI Remembers
Professor John S. Baker, Jr.
1946 - 2025
Professor Emeritus of Law John S. Baker, Jr., Louisiana State University
September 12, 2025
Dear Friend,
The James Wilson Institute joins all of those mourning the recent loss of our dear friend and affiliated scholar, Professor John S. Baker. Following years of slow decline in health due to complications from a life-saving surgery, Professor Baker passed on September 6th.
While Professor Baker's passing represents an immense loss to the conservative legal movement, his memory will be long maintained by generations of his former students as well as practitioners who have benefited from his intellect, guidance, and mentorship. Baker was a profound educator talented in the classroom, both in the United States and abroad.
Baker was a leading authority on originalism, natural law, separation of powers, criminal law, and federalism with a mastery that was demonstrative of not only his brilliance, but also his passion. He was also an advocate. Baker famously argued before the Supreme Court in 1984 the religious freedom case of Wallace v. Jaffree. We link to the transcript of his argument here.
A significant presence within the Federalist Society, Baker helped lead a variety of book clubs and seminars, most notably the Federalist Society's Separation of Powers Seminar co-taught with Justice Antonin Scalia for twenty years. Attendees of that seminar over the decades often described it as a highlight of their careers. Baker was also a regular contributor at JWI's Senior Seminar, from its inception fourteen years ago, where his presence and voice was a cherished constant by other JWI scholars.
JWI Founder & Co-Director Hadley Arkes shares, "John Baker became one of the most devoted and leading figures in our Senior Seminar. He was a remarkable teacher at every turn, whether in a seminar, or walking among students in a large audience to draw them out and get his points through. There was nothing passive about him. His imagination and energy were persistently engaged. He was ever at work in creating new programs in this country, and exploring the possibility of imparting the premises of our constitutional order to a new generation in China. He was tenacious as an advocate and teacher—and unbreakable as a friend. And at every turn, he was the best of company. But at the very core he was a serious Catholic, and through it all, in arguments made with verve, there was also the thread of love—for the subject and for the telos, the end, to which everything in his life was so surely directed."
In his memory, we would like to share with you a 2016 panel tribute to Justice Antonin Scalia featuring Professor Baker, Professor Arkes, and other esteemed thinkers. Click here to watch that tribute now.
We send our deepest condolences to his wife Dayle, his family, and friends. Details on funeral services in the next week may be found here.
About Professor Baker
Professor Baker previously served as the Dale E. Bennet Professor of Law at the Louisiana State University's Paul M. Herbert Law Center before coming Emeritus Professor of Law. He received his B.A. from the University from Dallas, JD from the University of Michigan Law School, and Ph.D. from the University of London. During his extensive teaching career, Professor Baker taught at the various law schools of New York University, Pepperdine, Tulane, George Mason, Hong Kong University, and the University of Dallas School of Managment. Baker was a Fulbright Fellow and Specialist and also held visiting professorships at Georgetown University and Oriel College, Oxford.
Nina Jankowicz, Former "Disinformation Governance Board" Director, Loses Libel Suit Against Fox
From Friday's decision in Jankowicz v. Fox News Network, LLC, decided by Third Circuit Judge L. Felipe Restrepo, joined by Stephanos Bibas and Cindy Chung:
[A.] Appellant Nina Jankowicz [was the] Executive Director of the Department of Homeland Security's … Disinformation Governance Board … "from March 2, 2022, through May 18, 2022." The Board "had no operational capabilities" and "existed to study how other components of DHS with operational authority responded to disinformation, recommend best practices that complied with constitutional and other civil liberties, and coordinate operational DHS components' discussion of their work concerning disinformation threatening national security."
Jankowicz alleges that "immediately after DHS announced the creation of the Board in late April 2022," Fox became "obsess[ed]" with her, "ridicul[ing]" and "bullying Jankowicz day in and day out." Fox hosts and guests also frequently attacked the Board, sometimes displaying Jankowicz's image on screen while doing so, accusing it of being a "Ministry of Truth" that was trying to "take away your free speech." In response to these attacks, "DHS, Secretary Mayorkas, former officials, and even the White House Press Secretary" repeatedly sought to clarify the Board's limited operational capacity and dispel "the story Fox was telling about Jankowicz and the Board." Fox, however, "continued to level the same accusations about Jankowicz and the Board."
In May 2022, Fox programs repeatedly commented on a 2021 video in which Jankowicz had discussed a Twitter pilot program named "Birdwatch." Though Jankowicz asserts that her 2021 comments showed a "deep concern about allowing the government—or certain individuals—to control information," Fox's hosts and guests "repeatedly stated that Jankowicz had said she wanted to edit other Twitter user[s'] posts."
On May 18, 2022, in response to the backlash against the Board, "DHS officials announced that the Board was being 'paused.'" Though Jankowicz had been offered "the opportunity to stay on with the agency as a policy advisor while the Board's future was under review," she elected to resign instead. Fox programs celebrated Jankowicz's resignation, saying that she "got booted," that DHS "had to yank" her, and that a video parody posted by Jankowicz had been "so embarrassing that the Biden administration had to fire" her.
Jankowicz sued Fox for defamation. Jankowicz's … Complaint … detailed a litany of purportedly defamatory statements made by Fox, which she characterized as largely falling into "three categories": (1) "that Jankowicz intended to censor Americans' speech"; (2) "that Jankowicz was fired from DHS"; and (3) "that Jankowicz wanted to give verified Twitter users the power to edit others' tweets." …
[B.] The court concluded that the statements about the Board weren't sufficiently "of and concerning" Jankowicz to allow her to sue over them:
What Have the Rebels Ever Done for Us?
A balance sheet of three major Jewish revolts against Rome.
While writing my new book, Jews vs. Rome: Two Centuries of Rebellion Against the World's Mightiest Empire (Simon & Schuster, 2025), I asked myself if anything good can come from a failed revolt. The Jews of the Roman empire experienced not one but three major failed revolts as well as several minor ones. The three are the Great Revolt or Jewish War (66-70), which was followed by the most famous postscript in military history, Masada (74); the Diaspora Revolt or Kitos War (116-117) and the Bar Kokhba Revolt (132-136). Each one led to disaster for the rebels and for the Jewish people.
The Great Revolt caused the destruction of Jerusalem and the Temple at the hands of Rome as well as the death, deportation or enslavement of well over a hundred thousand Jews. It also led the Romans for centuries to stigmatize all Jews in the empire by making them pay a special tax (the "Jewish Fund") to the chief pagan god of Rome, Jupiter of the Capitoline Hill. No other rebel nation in the empire ever suffered a similar humiliation.
The Diaspora Revolt led to the ethnic cleansing of the large Jewish populations of Libya, Cyprus, and Egypt—whose capital city, Alexandria, was possibly the largest Jewish city in the world. Many if not most of the Jewish inhabitants were killed or enslaved.
The Bar Kokhba Revolt saw the ethnic cleansing of the Jewish heartland around Jerusalem, the area known as Judah. Hundreds of Jewish towns and villages were destroyed, their inhabitants murdered or sent into slavery. With a few exceptions, Jewish settlement of the Land of Israel was concentrated in Galilee or the Golan. Before the revolt, the province was known as Judea after its most prominent inhabitants, the Judeans—that is, the Jews. After the revolt the Romans imposed a new name on the province. They called it Syria Palaestina, after its Gentile inhabitants, a significant population especially in the cities. Rome had changed the name of provinces before but never as a punishment for rebellion.
Today in Supreme Court History: September 15, 1857
9/15/1857: Chief Justice William Howard Taft's birthday.
Barry Strauss Guest-Blogging About "Jews vs. Rome: Two Centuries of Rebellion Against the World's Mightiest Empire"
I'm delighted to report that my Hoover colleague (and emeritus professor at Cornell), Barry Strauss, will be guest-blogging this week about this new book of his. Here's the publisher's summary:
A new history of two centuries of Jewish revolts against the Roman Empire, drawing on recent archeological discoveries and new scholarship by leading historian Barry Strauss.
Jews vs. Rome is a gripping account of one of the most momentous eras in human history: the two hundred years of ancient Israel's battles against Rome that reshaped Judaism and gave rise to Christianity. Barry Strauss vividly captures the drama of this era, highlighting the courageous yet tragic uprisings, the geopolitical clash between the empires of Rome and Persia, and the internal conflicts among Jews.
Between 63 BCE and 136 CE, the Jewish people launched several revolts driven by deep-seated religious beliefs and resentment towards Roman rule. Judea, a province on Rome's eastern fringe, became a focal point of tension and rebellion. Jews vs. Rome recounts the three major uprisings: the Great Revolt of 66–70 CE, which led to the destruction of Jerusalem and the Temple, culminating in the Siege of Masada, where defenders chose mass suicide over surrender; the Diaspora Revolt, ignited by heavy taxes across the Empire; and the Bar Kokhba Revolt. We meet pivotal figures such as Simon Bar Kokhba but also some of those lesser-known women of the era like Berenice, a Jewish princess who played a major role in the politics of the Great Revolt and was improbably the love of Titus—Rome's future emperor and the man who destroyed Jerusalem and the Temple.
Today, echoes of those battles resonate as the Jewish nation faces new challenges and conflicts. Jews vs. Rome offers a captivating narrative that connects the past with the present, appealing to anyone interested in Rome, Jewish history, or the compelling true tales of resilience and resistance.
And the blurbs:
Looking for Partisan Patterns in the Shadow Docket
The New York Times examines the "sharp partisan divides" on the Supreme Court's interim docket.
In today's New York Times, Adam Liptak takes a look at the "sharp partisan divides" on the Supreme Court's "emergency docket" (aka the "shadow docket" or "interim docket").
The story notes that the Trump Administration has sought emergency or interim relief more often than did the Biden Administration, and has had more success--prevailing in 84 percent of such cases compared to 53 percent during the Biden Administration. "That is perhaps unsurprising, given that the court is dominated by six Republican appointees," Liptak writes.
The story notes that there appears to be an ideological or partisan pattern in the justices votes on such orders.
The emergency docket presents a different portrait of the court, one in which partisan affiliations map onto voting patterns quite closely, reinforcing the declining public confidence in the court reflected in opinion polls.
On the far right side of the court, Justice Samuel A. Alito Jr. voted with the Trump administration 95 percent of the time and the Biden administration just 18, for a gap of 77 percentage points.
On the far left, the size of the gap was identical, but in the other direction. Justices Sonia Sotomayor and Justice Ketanji Brown Jackson favored the Biden administration by 77 percentage points.
These are striking numbers, but there are reasons for caution: "The cases the two administrations pursued were different, of course, making comparison inexact, and the concentrated volume and sheer ambition of President's Trump's applications dwarfed those of his predecessor."
The article has this to say about the Biden Administration's record seeking interim relief from the Court:
Despite the court's conservative supermajority, the Biden administration did obtain relief in a slight majority of its emergency applications, including ones involving a commonly used abortion pill and "ghost guns," which are kits that can be bought online and assembled into untraceable homemade firearms.
But victories like those were influenced by two factors.
Solicitor General Elizabeth B. Prelogar, like her predecessor in the first Trump administration and her successor in the current one, made strategic choices about which cases to bring to the court, generally choosing only ones with at least a fair prospect of success.
Second, more than two-thirds of the Biden administration's emergency applications took on rulings from the U.S. Court of Appeals from the Fifth Circuit. Opponents of the administration's policies and programs often filed challenges in that circuit, correctly anticipating that they would meet a favorable reception with its especially conservative judges. Still, those rulings often proved too conservative even for a generally conservative Supreme Court.
Moreover, in three cases in which the justices initially turned down the Biden administration's requests for emergency interim relief from Fifth Circuit rulings, the administration ultimately prevailed when the cases were set down on the merits docket for full briefing and argument.
For whatever reason, the article does not include a similar analysis of the second Trump Administration's record of success seeking interim relief.
It seems to me rather clear that the primary reason the Trump Administration has seen such success on the interim docket is because it has been very selective in deciding which cases to bring to the justices. The Trump Administration has aggressively pursued Supreme Court relief in cases where district courts lacked jurisdiction or provided overbroad or improper relief, but has acquiesced to the normal pace of litigation and appeals where the Administration's legal position is weak. It is no accident no case involving the Administration's attacks on law firms or universities has yet to reach the Court.
One can see how the Trump Administration has been selective and strategic just by looking at the numbers. According to Just Security there have been approximately 400 suits filed against he Trump Administration, over 125 of which have resulted in injunctions or other judicial orders blocking or staying the Administration action. So while the Trump Administration may have prevailed in 84 percent (16 of 19) applications, it remains the case that it has obtained Supreme Court relief in less than 15 percent of the cases in which its actions have been blocked or stalled by lower courts.
It is also fair to note that, as a general matter, the circuit courts of appeal were more likely to corral wayward district court orders during the Biden Administration than they have been in 2025. (See, for instance, how they handled suits against the "Social Cost of Carbon" EO.)
The story also notes that the Court refused to consider the propriety of universal injunctions when asked by the Biden Administration, but agreed to consider that question in Trump v. CASA. This is a fair point, but the story glosses over some important distinctions, such as that the brief at issue sought consideration of the scope of relief available under the APA, a more difficult question than that resolved in CASA that the Court has yet to address. More importantly, the Biden Administration combined its request for consideration of universal relief with review of the merits and, the latter of which was granted. As has been the Court's fairly consistent practice, a majority of justices saw no need to consider the scope of relief in that posture, perhaps because any judgment of the Court would, by its nature, apply nationwide.
My own view is that the Court's treatment of the second Trump Administration, to date, presents a very incomplete picture. More telling will be how the Court handles cases involving the Administration's more aggressive and more legally questionable actions, particularly those the Trump Administration has kept out of the shadows of the interim docket thus far.
My Remarks at the Harvard Vigil
On Charlie Kirk, violence, and speech.
There's been some press coverage—The Harvard Crimson, Boston Globe—of the Charlie Kirk vigil last night at Harvard, where I spoke alongside several students as well as my colleagues Randy Kennedy and Adrian Vermeule. I thought I'd recount my remarks here to give them full context, as well as to give credit where credit's due. Below is the prepared text, adjusted to match its delivery, as best I can remember it:
Thank you.
I want to confess that I was a little apprehensive in accepting your invitation to speak.
First, I was worried that it would be presumptuous, as I feel that I know so much less of Charlie Kirk's life and work than so many of you do. I deeply appreciate the students who have spoken today.
Second, I was apprehensive that in a place like Harvard, mourning Charlie Kirk would make one a target of opprobrium or disgust. There are some who believe those deeply moved by Kirk's murder, the widowing of his wife, and the fatherlessness of his children, shouldn't be so moved unless they're willing to take as their own every statement Kirk made and every position Kirk held. Charlie Kirk helped to put on the table on college campuses a wide range of conservative views; that's why so many people are here, who don't all agree about everything. I feel that no one here should feel it their burden to defend everything that other people might believe in order to mourn his unjust death. In that, I'd agree with Jonathan Adler, who noted that one can be a martyr without having to be a saint.
Third, I was apprehensive that it could make one a more literal target, that there could be some wacko out there. As to that, Kirk's example is one of very real courage—not just physical courage, knowing the sort of threats he faced, but intellectual courage, the kind that's necessary to stand under a sign that reads "prove me wrong" and take the very real risk that the next person to step up to the microphone might do just that.
Kirk was, certainly, a gifted communicator. And some think that it's by the gifts of such communicators that a political or intellectual movement thrives or fails. That may be true—in the short run. But in the long run, what makes more difference is the courage to pursue the truth, the courage that leads you to seek out the chance to be proven wrong.
Scott Alexander once wrote that a short-term "focus on transmission" may be
part of the problem. Everyone … knows that they are right. The only remaining problem is how to convince others. Go on Facebook and you will find a million people with a million different opinions, each confident in her own judgment, each zealously devoted to informing everyone else.
Instead, he writes,
… Debate is difficult and annoying. It doesn't scale. It only works on the subset of people who are willing to talk to you in good faith and smart enough to understand the issues involved. And even then, it only works glacially slowly, and you win only partial victories. What's the point?
Logical debate has one advantage over narrative, rhetoric, and violence: it's an asymmetric weapon. That is, it's a weapon which is stronger in the hands of the good guys than in the hands of the bad guys. In ideal conditions (which may or may not ever happen in real life) … the good guys will be able to present stronger evidence, cite more experts, and invoke more compelling moral principles. The whole point of logic is that, when done right, it can only prove things that are true.
Violence, by contrast,
is a symmetric weapon; the bad guys' punches hit just as hard as the good guys' do. … [H]opefully the good guys will be more popular than the bad guys, and so able to gather more soldiers. But … the good guys will only be more popular … insofar as their ideas have previously spread through some means other than violence. …
Unless you use asymmetric weapons, the best you can hope for is to win by coincidence…. Overall you should average out to a 50% success rate. When you win, it'll be because you got lucky.
Remember, he writes,
You are not completely immune to facts and logic. But you have been wrong about things before. You may be a bit smarter than the people on the other side. You may even be a lot smarter. But fundamentally their problems are your problems, and the same kind of logic that convinced you can convince them. It's just going to be a long slog. You didn't develop your opinions after a five-minute shouting match. You developed them after years of education and acculturation and engaging with hundreds of books and hundreds of people. Why should they be any different? …
All of this is too slow and uncertain for a world that needs more wisdom now. It would be nice to force the matter, to pelt people with speeches and documentaries until they come around. This will work in the short term. In the long term, it will leave you back where you started.
If you want people to be right more often than chance, you have to teach them ways to distinguish truth from falsehood. If this is in the face of enemy action, you will have to teach them so well that they cannot be fooled. You will have to do it person by person until the signal is strong and clear. You will have to raise the sanity waterline. There is no shortcut.
I hope that Kirk's example will help remind us of this—of the need for the courage to pursue the truth, person by person—and that, zichrono livracha, his memory will be a blessing.
Thank you.
(updated 12:42 p.m. to add the names of other speakers)
Today in Supreme Court History: September 14, 1901
9/14/1901: President Theodore Roosevelt is inaugurated. He appointed three members to the Supreme Court: Justices Oliver Wendell Holmes, Rufus Day, and William Henry Moody.
Sunday Open Thread
What's on your mind?
Today in Supreme Court History: September 13, 1810
9/13/1810: Justice William Cushing died.
$10K Sanction for AI Hallucination in Appellate Brief
From today's decision in Noland v. Land of the Free, L.P., by Justice Lee Smalley Edmon, joined by Justice Anne Egerton and Riverside Superior Court Judge Kira Klatchko:
[N]early all of the legal quotations in plaintiff's opening brief, and many of the quotations in plaintiff's reply brief, are fabricated. That is, the quotes plaintiff attributes to published cases do not appear in those cases or anywhere else. Further, many of the cases plaintiff cites do not discuss the topics for which they are cited, and a few of the cases do not exist at all. These fabricated legal authorities were created by generative artificial intelligence (AI) tools that plaintiff's counsel used to draft his appellate briefs. The AI tools created fake legal authority—sometimes referred to as AI "hallucinations"—that were undetected by plaintiff's counsel because he did not read the cases the AI tools cited.
