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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Redressability and Irreparable Harm in the Texas Gerrymandering Case
The Plaintiffs argued the 2021 map was an unconstitutional gerrymander. How could reimposing the 2021 map actually redress their purported injuries?
The briefing has now concluded in Abbott v. LULAC. Texas's reply brief contends that a stay would not harm the plaintiffs. Here, the District Court ordered that Texas must use the 2021 map--the same map that the plaintiffs previously argued was unconstitutional.
Finally, Plaintiffs fail to demonstrate that a stay would harm them. Plaintiffs contend that allowing the election to be held under the 2025 map would cause them the irreparable harm of being "forced to vote under a racially discriminatory map that violates their constitutional rights." NAACP Resp. 26; MALC Resp. 38–39; Gonzales Resp. 39–40; LULAC Resp. 27; Brooks Resp. 41. But according to Plaintiffs, the preliminary injunction would not prevent this harm because they allege that the 2021 map is also an unconstitutional racial gerrymander: "[T]he Texas Legislature engaged in intentional racial discrimination and racial gerrymandering in the drawing of [CD9, CD18, and CD30 in the 2021 map.]" ECF 983 at 1 (Plaintiff-Intervenors); see also ECF 981 at 4 (NAACP Plaintiffs); ECF 985 at 7 (LULAC Plaintiffs); ECF 975 at 4 (MALC Plaintiffs).
Plaintiffs' newfound embrace of the 2021 map, which they challenged for years of litigation, is explained by their preference for the politics of the 2021 map compared to the politics of the 2025 map. They seek "to transform federal courts into weapons of political warfare that will deliver victories that eluded them in the political arena." Alexander, 602 U.S. at 11 (quotation marks omitted).
Let me unpack this argument.
First, Alexander v. S.C. State Conf. of the NAACP found that when a plaintiff asserts there is a racial gerrymander, the plaintiff will usually have the evidentiary burden to introduce an alternate map that the state could have adopted that would achieve comparable partisanship without a racial gerrymander. The Supreme Court observed that "if a sophisticated plaintiff bringing a racial-gerrymandering claim cannot provide an alternative map, that is most likely because such a map cannot be created." This evidentiary burden make sense. Requiring the plaintiffs to submit an alternative map provides something concrete for the parties and the court to test. In the Texas case, however, the sophisticated plaintiffs did not produce an alternative map. This was likely a strategic choice, and one they should be held to.
Second, because the plaintiffs did not submit an alternative map, the district court was in an awkward spot. Having found a racial gerrymander, the district court had to issue some remedy. The conventional remedy would be to invalidate the maps, and give the Texas legislature the opportunity to draw new maps. But given that the deadline for candidate registration is ongoing, there would never be enough time to go down that route for the 2026 elections. If Purcell has a short fuse, requiring the Governor to call a special session would be impossible. Had the plaintiffs submitted an alternate map, the court could have chosen that remedy. But again, there was no map to adopt. Instead, the District Court reverted to the 2021 map.
Third, the same plaintiffs have spent nearly four years arguing that the 2021 map was an unconstitutional racial gerrymander. The record is replete with page after page alleging racial gerrymandering. The plaintiffs also argued that the 2025 map was an unconstitutional racial gerrymander. The only difference between the maps is that Democrats had more seats under the 2021 map than the 2025 map. This is politics all the way down. The asymmetry is clear: Democrats can challenge Republican maps but Republicans cannot challenge Democratic maps.
Texas framed this turnabout in terms of irreparable harm. The Plaintiffs have already told the court the racial gerrymander in the 2021 map will irreparably harm them. How can it be a viable remedy to then impose the very same map that would inflict irreparable harm?
Let me use an example. Imagine a class of plaintiffs brings a suit against a police department, alleging that a particular pattern or practice adopted in 2021 violates the Fourth Amendment. While the case was pending, the police department adopted a new pattern or practice in 2025 that is also alleged to violate the Fourth Amendment. The Super Bowl is coming to town, and there is some question which police practice will be enforced. The plaintiffs bring a new suit, and seek emergency injunctive relief, but they don't propose what would be a valid practice. The city will soon host the Super Bowl, which entails massive police activity, and there has to be some certainty over which policies should be in place. On the eve of the Super Bowl, could a court enter a preliminary injunction, and order the police department to implement the 2021 policy? I don't think so--especially where the plaintiffs never asked for the 2021 policy to be reimplemented, and the plaintiffs argued to 2021 policy was unconstitutional. I tend to think this order would be vacated by a court of appeals very quickly. Sometimes, the answer may be that in advance of a massive and complex operation, the district court is unable to fashion a remedy out of whole cloth that the plaintiffs did not propose, and indeed previously argued was unconstitutional. It cannot be repeated enough: district court judges are not gods.
An analogy could also be made to the redressability prong of standing law. If the courts are unable to issue a remedy that redresses the plaintiff's injury, then the court lacks Article III standing. I could cite California v. Texas, Brackeen, and Murthy as recent precedents to this effect. Of course the Texas court could have issued a valid remedy, but it chose not to. Indeed, there may be no actual remedy that would redress their harms for purposes of a preliminary injunction. The plaintiffs didn't offer a map, and the court failed to provide one. Enforcing the 2021 maps may have seemed like the most logical, or even the most effective remedy. But it doesn't actually redress the alleged harm. The plaintiffs are still stuck with a racial gerrymander, albeit one that is more favorable to Democrats.
Ultimately, I think the most likely path forward is that the Court grants a stay, notes probable jurisdiction, and hears the case in February. Or the Court could grant a stay, and hold the decision pending Callais.
A colleague asked why I thought Callais, a VRA case, would have any impact on the Texas 14th Amendment case. The amicus brief from America First Legal Foundation speaks to this issue:
The resolution of Callais will likely clarify, if not fundamentally reshape, the legal framework governing Plaintiffs' claims against Texas. The appellants in Callais argue that the Constitution mandates color-blindness, asserting that race-based redistricting, even in the name of Voting Rights Act compliance, is unconstitutional and violates the principle that "[e]liminating racial discrimination means eliminating all of it." Id. at 2 (quoting Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023)). Louisiana contends that the current jurisprudence forces sovereign States into a no-win, goldilocks scenario where they must consider race but "perennially suffer the indignity of … being sued for considering race too much or too little," putting the federal judiciary in the position of having to "pick winners and losers" in this racial calculus. Id. at 2.
Texas is caught in this precise predicament. The majority opinion below invalidates the State's 2025 map, concluding that the Texas Legislature's actions constituted impermissible racial gerrymandering. App.2–3. Texas maintains its actions were driven by permissible partisan objectives. Emergency.Appl.for.Stay.1. As Judge Smith's dissent below aptly explained, this "tension between Section 2 of the Voting Rights Act and racial-gerrymandering jurisprudence" will likely be resolved by Callais. App.173 (Smith, J., dissenting).
Judge Brown's opinion will be untenable if Louisiana prevails in Callais. And I think this will be the case even if Shaw v. Reno is not revisited.
"Spy" vs. "Spy" (+ Piers Morgan, President Biden, and the Iranian Nuclear Weapons Program)
If someone was prosecuted (and later pardoned) for being an unregistered foreign agent for Iran, is it defamatory to say he was prosecuted for "spying"?
From today's order in Afrasiabi v. Morgan by Judge Brian Murphy (D. Mass.):
This case stems from an appearance made by Plaintiff on Defendant Piers Morgan's YouTube program, "Piers Morgan Uncensored." On that program, Morgan introduced Plaintiff by stating that he was "arrested in the US for alleged spying before being pardoned by Joe Biden." Plaintiff and Morgan disputed the accuracy of that statement live during the program, and Plaintiff disputed the statement's accuracy with Morgan's team afterward. Morgan or his team subsequently republished variations of Morgan's statements on social media….
The Court takes notice of the indictment brought against Plaintiff on January 19, 2021, in the Eastern District of New York, charging Plaintiff with violations of the Foreign Agents Registration Act ("FARA"). In the indictment, Plaintiff is alleged as having operated as an undisclosed agent of the Iranian government while engaging in political acts within the United States, for example, by drafting a Congressman's letter to the President of the United States regarding negotiations over Iranian nuclear weapons and enrichment programs.
The Court notes, as did Defendant Morgan, that these charges were dismissed upon the issuance of a presidential pardon. The Court further notes a hearing transcript from that criminal case, provided by Plaintiff, wherein Judge Korman, in the context of a discussion about why discovery was taking so long, stated: "You know, as far as I understand, this is not a case involving spying for Iran."
Notwithstanding, the Court agrees with Defendants that Plaintiffs' defamation claim is untenable as a matter of law. Massachusetts law immunizes from liability "fair and accurate" statements that report on official actions. "To qualify as 'fair and accurate' reporting, an article need only give a 'rough-and-ready summary' that was 'substantially correct.'" … As Judge Burroughs recently observed in another case brought by Plaintiff against a different media company, "[t]he word 'spy' has multiple definitions."
Journal of Free Speech Law: Publish Your Article in a Few Months
I'd like to again solicit submissions to our peer-reviewed Journal of Free Speech Law, and mention one of our great advantages: We can publish quickly (by the standards of academic journals), if that's what you'd like. Our most recent articles, for instance, were published 3 to 5 months from when we received them, and that includes the time stemming from the authors revising their articles in various ways (which we certainly allow, if the author is willing to take the time). We have published articles as quickly as 2½ months after we received them, when the author has wanted to move fast.
To my knowledge, many top student-edited journals are shut down for the Winter, and won't review manuscripts until February. That means the manuscripts probably wouldn't be published until the end of 2026, or even later. But if you submit to us now, and want to publish quickly, you can have the article out by February or March.
There are other advantages as well: We offer anonymized feedback from the reviewers whether the article is accepted or rejected; many authors have told us this was very helpful. And when we accept article, it's edited by one of our Executive Editors (Jane Bambauer, Ash Bhagwat, or me), and many authors have likewise told us that the edits, by experienced free speech scholars, are quite useful.
Some more details: The journal is now nearly five years old, and has published over 100 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.) The articles have been cited so far in 13 court cases, over 400 articles, and over 100 briefs. And note that all the articles have only had four years or less to attract these citations.
Please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.
All submissions must be exclusive to us, but, again, you'll have an answer within 14 days (though perhaps up to 21 days if it's over Thanksgiving, Christmas, or New Year's), so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:
Journal of Free Speech Law: "Inevitable Errors: Defamation by Hallucination in AI Reasoning Models," by Lyrissa Lidsky & Andrew Daves
This new article is here. The Introduction:
Artificial general intelligence is "probably the greatest threat to the continued existence of humanity." Or so claims OpenAI's Chief Executive Officer Sam Altman. In a seeming paradox, OpenAI defines its mission as ensuring "that artificial general intelligence—AI systems that are generally smarter than humans—benefits all of humanity."
Whether artificial general intelligence becomes a universal boon or an existential threat—or both—there is general agreement concerning its revolutionary potential. Indeed, Microsoft founder Bill Gates has called it "as fundamental an advance as the personal computer or the internet," and Google CEO Sundar Pichai has predicted that it will "bring about a more profound shift in human life than electricity or Promethean fire."
Thus far, AI systems are not generally smarter than humans. Not yet. Large Language Models (LLMs), however, are advancing at a startling pace. LLMs use artificial intelligence to synthesize massive amounts of textual data and then predict text and generate responses to users in "natural" human language. On a scale measuring the progress of LLMs toward general intelligence, OpenAI's flagship model, GPT-3 scored zero percent in 2020. Just five years later, OpenAI's o3-preview scored between 75% and 88%. Meanwhile, OpenAI competitors such as Anthropic, Google, and DeepSeek are likewise racing to deliver on the promise of "systems that can think and act rationally in ways that mirror human behavior and intelligence."
Even as LLM models make progress toward general intelligence, there are already AI systems that have exceeded human performance on narrow, clearly scoped tasks. For example, chess engines have been performing at superhuman levels for years, and AI models can now help detect breast cancer far earlier than human experts—and the models continue to improve. Meanwhile, OpenAI's o1 reasoning model has an LSAT score higher than the median student admitted to the law schools at Harvard, Yale, and Stanford.
As AI systems begin to mirror human thought, it pays to remember the words of Seneca: "[N]ot all mirrors stick to the truth." LLMs now regularly create outputs that appear to be the product of independent thought, but LLMs are essentially prediction engines that "answer" prompts (or inputs) by calculating which words are most likely to come next and then assembling them into an output. LLMs, as such, do not predict truth but instead predict probabilities. In doing so, they sometimes replicate false information common in their training data.
They also inevitably produce "plausible yet false outputs," commonly referred to as hallucinations. An LLM may produce fake legal documents, non-existent academic citations, or false biographical data. Although LLM producers and users can employ various tactics to reduce hallucinations, these errors cannot be eliminated. And they are quite prevalent. In fact, data gathered from multiple chatbots suggests that hallucinations occur in 3% to 10% of outputs, leading one legal scholar to dub LLMs "Large Libel Models."
Trump Media Group's Libel Lawsuit Over Guardian's Allegations of Federal Criminal Investigation Dismissed
From yesterday's decision by Florida trial court judge Hunter Carroll in Trump Media & Tech. Group Corp. v. Guardian News & Media Ltd.:
This action arises from the publication of several articles reporting on a federal criminal investigation related to TMTG's receipt of two payments totaling $8 million. On March 15 and March 17, 2023, the Guardian published two articles stating federal prosecutors in New York were conducting a money laundering investigation related to the payments, which were wired through the Caribbean from Paxum Bank and ES Family Trust, entities with ties to an ally of Russian president Vladimir Putin and a history of providing banking services to the sex worker industry. The articles report [TMTG co-founder Will] Wilkerson's statements that the origins of the loans caused alarm at TMTG and TMTG's then CFO weighed returning the money, but the money was ultimately not returned….
The Guardian articles were reported on by others. On March 15 and March 22, Penske published two articles in Variety that reported federal prosecutors investigated TMTG for potential money laundering violations related to the payments. On March 18, [Defendant Chris] Anderson published an article in the Sarasota Herald-Tribune that stated federal prosecutors were reportedly investigating the payments to TMTG. The Variety articles and the Herald-Tribune article explicitly reference and provide direct links to the Guardian articles as the source for the statements at issue.
TMTG alleges the articles published by the Defendants are false and defamatory because TMTG "is not, and never was, under investigation for money laundering," and neither TMTG nor its executives have "been the focus of any investigation." …
Count 1 purports to state a claim for defamation and defamation per se based on seven allegedly false statements published in the Guardian articles:
Today in Supreme Court History: November 25, 1757
11/25/1757: Henry Brockholst Livingston's birthday. He dissented in the property law classic, Pierson v. Post (NY 1805).
Open Thread
What’s on your mind?
Upcoming Speaking Engagements in Mexico and Israel
I will be giving multiple talks in these two countries, in December.
This December, I will be doing multiple speaking engagements in Mexico and Israel. In the latter country, I will be serving as a visiting professor at the law faculty at Uriel Reichman University (the former IDC Herzliya). Unless otherwise noted, these events are open to the public.
I am potentially open to doing additional speaking engagements in Israel during my time there (Dec. 14-26).
Dec. 3, 12-1:30 PM, Guadalajara International Book Fair (FIL), Barcelo Hotel, Guadalajara, Mexico: "Free to Move: Foot Voting, Migration, and Political Freedom" (tentative title), Panel on Migration in the 21st Century. Other panel participants will be Eileen Truax (journalist covering immigration issues), and Christopher Dominguez. More information about the FIL book fair available here.
Dec. 4, 3:15-4:30 PM, Law Faculty, University of Monterrey, Rm. A6-206, Monterrey, Mexico, : "Political Ignorance and Constitutional Design." This event is likely limited to University of Monterrey students and faculty. But I may be able to get a few other people admitted upon request.
Dec. 5, 3:15-4:30 PM, School of Social Sciences and Government, University of Monterrey, A6-106, Monterrey, Mexico: "Democracy and Political Ignorance." This event is likely limited to University of Monterrey students and faculty. But I may be able to get a few other people admitted upon request.
Dec. 15, 6:30-8:00 PM, Honors Workshop, Law Faculty, Uriel Reichman University, Herzliya, Israel: "The Presumptive Case for Organ Markets." This event is likely to be limited to participants in the Honors Workshop and Uriel Reichman University faculty. But I may be able to get a few other people admitted upon request.
Dec. 16, 4-5:30 PM, Safra Center for Ethics, Buchman Faculty of Law, Elga Cegla Hall, Room 21, Tel Aviv University, Tel Aviv, Israel: "Not Everything is an Emergency: The Case for Strong Judicial Review of the Exercise of Emergency Powers."
Court Orders Reinstatement of Law Student Expelled for Writing "[W]hatever Harvard Professor Noel Ignatiev Meant by … '[A]bolish the White Race by Any Means Necessary' … Must Be Done with Jews"
An excerpt from today's long opinion by Chief Judge Allen Winsor (N.D. Fla.) in Damsky v. Summerlin, which I think is likely correct:
Damsky has been a controversial figure at the law school since he enrolled. He seems to enjoy pushing boundaries and provoking others. He achieved that and more with two seminar papers and one social media exchange that ultimately became the basis for his expulsion.
In the fall semester of his second year, Damsky wrote two seminar papers that generally argue the United States was founded as a race-based nation and should be preserved as such. He concluded each paper with what some perceived as extralegal calls to violence. In American Restoration, Damsky offered this view:
[W]e should feel no shame about feeling attached to those with whom we share a common racial origin. The founding generations of Americans were also no strangers to fighting, killing, and dying on behalf of their rights and sovereignty. The hour is late, but we are not yet so outnumbered and so neutered that we cannot seize back what is rightfully ours. This land, America, our due inheritance, is worth the struggle.
In National Constitutionalism, Damsky went perhaps further:
The Supreme Court and inferior federal courts have the power to arrest the dispossession of White America…. If the People are not granted relief from the government—which includes the judiciary—then, if they are to survive as masters in the land of their ancestors, they must exercise "their revolutionary right to dismember or overthrow" the government. And that will be a process which no deskbound jurist can gleefully look forward to; for it will be a controversy decided not by the careful balance of Justitia's scales, but by the gruesome slashing of her sword.
Neither of Damsky's seminar professors found his language particularly alarming, and both gave him high marks. Still, the papers garnered attention. Many students found them upsetting, and some insisted the law school take action. The law school refused any discipline, though, concluding the writings did not constitute true threats, were not significantly disruptive, and enjoyed First Amendment protections….
[T]he semester continued without incident—at least until Damsky's March 21 X post:
My position on Jews is simple: whatever Harvard professor Noel Ignatiev meant by his call to "abolish the White race by any means necessary" is what I think must be done with Jews. Jews must be abolished by any means necessary.
This post was immediately available to Damsky's few X followers (Damsky said he has "almost no following"), as well as anyone else who happened across his public account. Law student S.J. saw the post and found it upsetting but not, by itself, alarming. A week later, S.J. reported the post to the Interim Dean. A few days after that, on April 1, one of the University's Jewish law professors engaged with Damsky on X. Replying to his post, she asked, "Are you saying you would murder me and my family? Is that your position?" Damsky offered this in reply:
University's Apparent Concealment of Real Reasons for Non-Renewal of Adjunct Professor's Contract Suspended Statute of Limitations
"The [eventually released personnel] records contain no negative performance reviews, but they do contain three anonymous complaints. Those complaints accused Grossenbach of 'creat[ing] a hostile environment for transgender and LGBTQ students' in connection with his SaveCFSD activities [allegedly referring solely to Grossenbach's outside-class political activity -EV], among other things."
From Friday's Report and Recommendation by Magistrate Judge Michael Ambri (D. Ariz.) in Grossenbach v. Arizona Bd. of Regents:
The plaintiff in this action, Daniel Grossenbach, founded an organization named SaveCFSD, through which he advocates "for truth, trust, and transparency within Catalina Foothills School District 16 ['CFSD']." He founded this organization because he believes the CFSD is acting contrary to his "sincerely held religious beliefs" by "secretly surveying children about their gender and sexuality, pushing radical gender ideologies upon those students, and unconscionably and intentionally keeping that information from parents."
Grossenbach was employed as an adjunct professor at the University of Arizona. On November 30, 2023, he was informed that his teaching contract would not be renewed. Grossenbach believes that his employment was discontinued because the University received complaints about his advocacy with SaveCFSD.
Grossenbach sued on Aug. 22, 2025, and defendants argued (among other things) that his Title VII religious discrimination claim was brought too late. No, the Magistrate Judge concluded:
[I]n Arizona a prospective plaintiff must file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory employment action.
In this case, Grossenbach was informed on November 30, 2023, that his employment contract would not be renewed. According to the defendants, his 300 days started on that date and expired on September 25, 2024. They assert that he filed his ACRD (Arizona Civil Rights Division) charge on January 9, 2025, and his EEOC (Equal Employment Opportunity Commission) charge on January 22, 2025. Accordingly, the defendants argue that the claim must be dismissed for failure to properly exhaust administrative remedies.
The court does not agree. Assuming without deciding that Grossenbach's Title VII charge accrued on November 30, 2023, when he was told his contract would not be renewed, the start of the limitation period was postponed under the doctrines of estoppel and equitable tolling.
No Emergency Order Allowing Worship Service in Possibly Unsafe Barn
From Vaughn v. Harrison County, decided Friday by Judge Taylor McNeel (S.D. Miss.):
Yesterday, Rev. John Vaughn filed this lawsuit seeking to have fifty people attend a worship service in a barn on his private property. Vaughn is proceeding pro se. He has scheduled the worship service for some time tomorrow, but he acknowledges that Harrison County has told him he cannot have the fifty people in the barn because Harrison County believes that a gathering at the property "would constitute a very serious life safety situation."
Vaughn has filed a Motion for a Temporary Restraining Order asking this Court to order Harrison County to allow the fifty people into the barn. But he does not want Harrison County to have notice of this motion or to have the opportunity to respond. Instead, he wants this Court to enter an ex parte Order without giving Harrison County the chance to explain their position. But this is a litigation strategy created by Vaughn's own making. Instead, Harrison County needs to be served with process, given time to respond, and then an evidentiary hearing can be set.
Vaughn's motion is denied for a number of reasons. First, the primary purpose of a temporary restraining order is to maintain the status quo. But Vaughn is seeking to change it—not maintain it. Harrison County told him about seven months ago to not have fifty people in this barn. Vaughn could have challenged that action then.
Second, Vaughn does not establish a substantial likelihood of success on the merits. Vaughn does not really present evidence or on-point case law to support his assertions.
Third, Vaughn does not show a substantial threat of irreparable injury. Vaughn recognizes that the congregation's primary church building is available for the worship service.
Fourth, the harm that will result if the temporary restraining order is granted potentially outweighs Vaughn's injury. If the Court were to grant the temporary restraining order, these people could be injured while congregating at Vaughn's barn.
Republican Congressman's Staffer Prosecuted for Alleging Faking Attack on Herself, Including "Trump Whore" Written on Her Stomach
From the Justice Department's press release Wednesday:
Natalie Greene, 26, of Ocean City was charged with one count of conspiracy to convey false statements and hoaxes and one count of making false statements to federal law enforcement. On November 19, 2025, Greene made her initial appearance in federal court before U.S. Magistrate Judge Elizabeth A. Pascal. Greene was released on a $200,000 unsecured bond and additional conditions, as set by the Court.
According to statements made in court and documents filed in the case:
Late at night on July 23, 2025, Greene's co-conspirator called 911 and reported that she and Greene had been attacked by three men when they were out walking on a trail at a nature preserve in Egg Harbor Township. According to the co-conspirator, during the attack, the men had called Greene by name and had specifically referenced her employment with Federal Official 1, an official whose identity is known to the Government.
When law enforcement officers located Greene, she was lying in a wooded area just off the trail, with her hands and feet bound together with black zip ties. Greene's shirt was pulled over her head and was also tied with a black zip tie. Greene had numerous lacerations on her face, neck, upper chest, and shoulder. The words "TRUMP WHORE" were written on her stomach and the words "[Federal Official 1] IS RACIST" were written on her back. [Press accounts state that the words written were that Van Drew is racist. -EV] Greene was crying and yelling that one of her alleged attackers had a gun.
Is the Fourth Circuit the New Ninth?
Could today's summary reversal be a sign of things to come?
There was a time when the U.S. Court of Appeals for the Ninth Circuit was notorious for issuing decisions at odds with existing Supreme Court precedent, and getting repeatedly overturned as a result. The Ninth Circuit was considered the most liberal circuit in the country at the time, and had a few judges who consciously sought to evade restrictive precedent.
Early in the Roberts Court, the U.S. Court of Appeals for the Sixth Circuit developed something of a reputation as the "new Ninth," particularly with regard to habeas cases. In a string of cases, the Sixth Circuit was reversed, often summarily, for granting habeas petitions too readily.
Both the Ninth and Sixth Circuits are more conservative than they used to be, and are more aligned with the Supreme Court. Today the court that may be most at odds with the Supreme Court might be the U.S. Court of Appeals for the Fourth Circuit--coincidentally, my new home circuit. (The other contender would be the U.S. Court of Appeals for the First Circuit, which has only one judge appointed by a Republican president, who was just recently confirmed.)
Today the Supreme Court summarily reversed the Fourth Circuit in Clark v. Sweeney, a habeas case. In a unanimous per curiam opinion, the Court concluded that the Fourth Circuit erred in granting a habeas petition, and that its error was so egregious that it justified summary reversal. As the Court summarized the case:
A Maryland jury found Jeremiah Sweeney guilty of second-degree murder and several other crimes. Sweeney's convictions were affirmed on appeal, and his bid for postconviction relief in state court was unsuccessful. Sweeney sought habeas relief in Federal District Court, and that court, too, denied relief. But the Fourth Circuit reversed and ordered a new trial, relying on a claim that Sweeney never asserted. Because the Court of Appeals departed dramatically from the principle of party presentation, we reverse.
Is this decision a sign of things to come? While I do not expect there to be a tremendous number of habeas cases going from the Fourth Circuit to One First Street, I would not be surprised if the Fourth Circuit amasses a high reversal rate over the next several terms. Last term, the Fourth went 0 for 8, and it's starting off in the hole for OT 2025.
Also today, the Court summarily reversed a decision from the Mississippi Supreme Court. As with Clark, there was no recorded dissent.
One of the 100 Biggest American Law Firms Pays >$50K Because of AI Hallucinations in Filings
The firm, has "more than 1,600 attorneys in over 80 offices nationwide."
From In re Jackson Hospital & Clinic, Inc., issued by Bankruptcy Judge Christopher Hawkins Thursday, following the court's earlier observation of "pervasive inaccurate, misleading, and fabricated citations, quotations, and representations of legal authority in the Motion to Reconsider":
Pursuant to the [court's] Order, … the Firm filed its Status Report on Pending Motions for Sanctions. In the Status Report, the Firm stated that it agreed to pay—and had paid—the DIP Lender the full amount of attorneys' fees sought in the DIP Lender's Motion for Sanctions. In connection with that payment, the DIP Lender agreed not to seek further fees related to the prior filings that were withdrawn or with respect to attendance at the hearing on the Show Cause Order or the Motions for Sanctions, provided that the agreement did not apply to future filings or the renewal of withdrawn motions. The Firm also stated that it had sent to the Debtors the full amount of the fees and expenses sought in the Debtors' Motion for Sanctions, which counsel for the Debtors was holding pending the hearing….
To the Firm's credit, it squarely and unequivocally conceded [in a follow-up document] that under Bankruptcy Rule 9011, it was responsible for the conduct of its attorneys. The Firm further acknowledged its lawyers' duties under the Local Bankruptcy Rules and the Alabama Ethics Rules, and it admitted that one of its lawyers violated those duties. It expressed its willingness to accept "whatever sanction the Court finds appropriate under these circumstances."
The Firm described several steps it had taken regarding its employees' use of artificial intelligence, both before and after the Show Cause Order. On June 28, 2023, the Firm adopted and distributed its official policy regarding the use of artificial intelligence…. On July 30, 2025, without knowledge of the issues beginning to surface in this case, the Firm updated its policy on artificial intelligence (the "Updated AI Policy")…. After learning of the Show Cause Order, the Firm undertook additional remedial and preventive measures. On the remediation side, the Firm paid the fees sought in the Motions for Sanctions—totaling $55,721.20—without haggling with the DIP Lender and the Debtors or otherwise forcing a contested hearing. The Firm also conducted an internal investigation to determine whether any of Ms. Preston's other filings contained "suspected artificial intelligence hallucinations." …
Exorcist Files vs. Jesus 911 Libel Suit
"The Defendants intentionally or recklessly invited public critique and scrutiny over Plaintiff's title as an exorcist by repeatedly asserting that the Plaintiff is not an exorcist."
From the Complaint in Martins v. Romero (E.D. Mich.), filed Monday:
This is a defamation and false light action stemming from false and misleading statements published on the Jesus 911 podcast on the November 20th, November 27th, and December 4th, 2024 episodes. The Defendants intentionally or recklessly invited public critique and scrutiny over Plaintiff's title as an exorcist by repeatedly asserting that the Plaintiff is not an exorcist. The Defendants' statements have perpetuated a narrative that undermines the Plaintiff's credibility….
The Exorcist Files is a podcast co-created and co-hosted by Ryan Bethea and Fr. Martins…. Due to the popularity of the podcast, Fr. Martins published a book, also titled The Exorcist Files, where he provides a comprehensive view of the 2,000-year-old Catholic ministry of exorcism, examining spiritual dangers lurking in modern society, to help readers understand how to remain free from their influence and control….
Jesus 911 published an episode of the podcast titled "What Is the American Model of Exorcism?" …. In this episode, Romero and Clement continue their discussion from the November 20th Episode on exorcisms…. Romero praised Clement's position in Liber Christo and Clement's teachings at the Pope Leo XIII Institute, a private non-profit organization recognized for the "total education and training of priests in the holy ministry of exorcism and deliverance." Romero, on behalf of Clement, asserted that the field of exorcism is small and Clement knows, and has access to, every exorcist in every diocese worldwide. There are more than 3,000 dioceses worldwide. This characterization bolsters Clement's credibility as a set up for him to then criticize and undermine Fr. Martins' credibility and experience as an exorcist….
Today in Supreme Court History: November 24, 2001
11/24/2001: Salim Hamdan was captured in Afghanistan. The Supreme Court would decide his case in Hamdan v. Rumsfeld (2006).
Open Thread
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