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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Amendment Roundup: A Tale of Two Waiting Periods
The First and Tenth Circuits conflict on whether “cooling-off” periods violate the text of the Second Amendment.
On October 25, 2023, 18 people were killed in a mass shooting in Lewiston, Maine. The killer's declining mental health was known to law enforcement since that May. On July 6, although he owned other firearms, he legally purchased the firearm that he would use in the attack. By August, he repeatedly threatened members of his Army Reserve unit that he would "shoot up" the base. He was hospitalized for psychological evaluation but released. Two months later, he carried out his nefarious threats at a bowling alley and a cafe.
In 2024, the Final Report of the Independent Commission to Investigate the Facts of the Tragedy in Lewiston was released, faulting both the military and law enforcement for taking no action to disarm and hospitalize the killer.
Before the Commission report was even released, the Maine legislature enacted a statute targeting any person who would buy a firearm: "Waiting Period. A seller may not knowingly deliver a firearm to a buyer pursuant to an agreement sooner than 72 hours after the agreement." As the timeline of events indicated, no relation existed between the perpetrator's vile acts taking place six months earlier and the 72-hour firearm transfer waiting period.
In Beckwith v. Frey, decided on April 3, the First Circuit reversed the district court's issuance of a preliminary injunction against enforcement of the new law. For those needing a firearm for protection against an immediate threat, not to worry. The court found it relevant that the Maine Coalition to End Domestic Violence submitted a statement warning that potential victims not obtain firearms for protection as the firearms were more likely to be used against them, and anyway the Coalition offered "services" to keep victims safe during the seventy-two-hour waiting period. That must have been reassuring to battered spouses facing death threats.
In the opinion for the court, Judge Seth Aframe held that "laws regulating the purchase or acquisition of firearms do not target conduct covered by the Second Amendment's 'plain text,'" which only "means to have and carry guns." Since the law regulates activity that takes place before that, it is "outside the Second Amendment's plain text." Under that logic, nothing in the text of the Amendment would preclude a law that simply banned absolutely the delivery or transfer of a firearm from one person to another. One's right to keep and bear arms does not imply a right to obtain them.
Plaintiffs, the court continued, thus had the burden to show that the law was "abusive" in line with Bruen's footnote nine. The court read footnote nine to mean that "the full two-step analysis did not apply to 'shall-issue' laws because these laws delay, but do not deny, licenses while states ensure that guns are being carried by law-abiding and responsible citizens." However, the Supreme Court only stated in footnote nine that "shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.'" It added that, "because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry." Wait times must thus be keyed to requirements like a background check, not just waiting for its own sake.
The Beckwith court next turned to Heller's statement that nothing in the opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The court read "longstanding" to modify only "prohibitions," not "laws imposing conditions," and so the waiting period need not be longstanding. (That issue may be moot, as Bruen requires Founding-era analogues.) And it said that a "condition" need not be a particularized criterion that an individual must meet – the waiting period is itself a condition.
Finally, Beckwith stated that in other contexts, the Supreme Court "strictly scrutinizes laws that directly restrict the exercise of fundamental rights but often reviews more deferentially laws that only impose incidental burdens on the exercise of those rights." It mentioned the First Amendment, but did not venture to suggest that the Supreme Court would approve a waiting period per se for exercise of any right protected by the First Amendment.
Ortega v. Grisham (10th Cir. 2025), an opinion by Judge Timothy Tymkovich, is in stark contrast with Beckwith. Ortega invalidated a New Mexico statute providing that "[a] waiting period of seven calendar days shall be required for the sale of a firearm and the transfer of the firearm to the buyer." The court held that "the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text." When the text authorizes an act, it implicitly authorizes any necessary predicate of the act.
Moreover, Ortega continued, Heller's reference to "longstanding prohibitions" modified "laws imposing conditions and qualifications on the commercial sale of arms." The waiting period is not a longstanding prohibition and it is not limited to commercial sales. Furthermore, "It is not a condition because it cannot be met by any action, and it is not a qualification because it is universally applicable…. The sale happens regardless, and the waiting period is just an artificial delay on possession."
Nor could the state meet its burden to show that the law had appropriate historical analogues, including intoxication laws, license and permitting regimes, and targeted group bans on firearm carry or possession. The law assumes that "anyone seeking to purchase a firearm can be presumed irresponsible or non-law-abiding, purely by dint of their intention to purchase a firearm." That contrasts with the purpose of shall-issue licensing regimes and background checks which have the purpose of assuring that firearm purchasers are responsible, law-abiding citizens.
So we can add waiting periods to the growing list of Second Amendment restrictions that the Supreme Court should resolve, either by a case on point or a principle of general applicability.
It's worth recalling how "cooling off" periods came to national attention as a panacea for violence committed by the mentally deranged. John Hinckley, Jr., purchased a revolver and shot President Ronald Reagan five months later. (Ironically, the attempted assassination took place at the same Washington Hilton Hotel where an assailant sought to shoot President Donald Trump and cabinet members on April 25.) To solve that problem, Handgun Control Inc., later renamed the Brady Center, championed a seven-day waiting period on handgun purchases, albeit without a background check. The NRA supported an instant background check on all firearm purchases from FFLs instead.
The result was the misnamed Brady Handgun Prevention Act of 1993. Its interim provision, 18 U.S.C. § 922(s), purported to conscript state law enforcement officers to conduct background checks on handgun buyers, who could be cleared right away or within no more than within five days. I was honored to argue Sheriff Jay Printz v. U.S. (1997), in which the Supreme Court held that Congress may not command the states to administer this (or any other) federal regulatory program.
The permanent provision of the Brady Act, § 922(t), established the National Instant Criminal Background Check System (NICS). NICS provides for immediate transfer of a firearm, but may delay approval of the transfer for not more than three days, if NICS does not find that the transfer would violate federal or state law. Because it created an instant check and no waiting period, the "Brady" Act may as well have been named the "NRA" Act. But that's all water over the dam now.
Court Dismisses Matt Taibbi's Defamation Lawsuit Over "Owned: How Tech Billionaires Bought the Loudest Voices on the Left"
From Taibbi v. Higgins, decided yesterday by Judge George Daniels (S.D.N.Y.):
This action centers around Owned: How Tech Billionaires Bought the Loudest Voices on the Left ("Owned" or the "Book"), a book authored by Higgins and published by Bold Type Books. Owned purports to explore "how tech elites and formerly left-wing journalists forged an alliance" to create a "new right-wing media ecosystem."
As relevant here, the Book depicts Plaintiff as one of several independent journalists whose politics shifted in recent years to attract a more conservative audience. Plaintiff began his writing career in post-Soviet Russia. In 2004, Plaintiff joined Rolling Stone, where he gained acclaim reporting on "the big banks and the excesses of Wall Street" during the 2007–2008 financial crisis. According to the Book, Plaintiff's image among liberal pundits declined after Plaintiff pushed back on allegations of Russian electoral interference in the 2016 presidential election and "old misogynistic writings resurfaced," The Book claims that "[a]fter his rejection by the left, [Plaintiff] turned to a new right-wing audience and became increasingly beholden to their priorities." In 2020, Plaintiff left Rolling Stone for Substack, a subscription-based newsletter service.
In 2022, Elon Musk purchased the social media website Twitter (now known as X). The Book states that Musk, in an effort "to expose the rot at the core of the entire company," sought out reporters to review internal company documents. These documents would purportedly "show[ ] how Twitter had responded to requests for censorship from the government and made decisions on questionable content." Musk eventually offered Plaintiff the opportunity to review the "Twitter Files," so long as he published his reporting on the platform.
The Spirit of the Declaration, Part 2
[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]
To the delegates of the Continental Congress, the Declaration of Independence did not reflect abstract ideas. To begin with, it was a pressing piece of administrative business after the vote for Independence on July 2, necessary for legitimizing the American struggle against King and Parliament, as well as a means of garnering foreign support, primarily from France. Yet it also was a covenant invoking the Creator and identifying a people that it hoped to unite. This covenant was instituted to defend against tyranny and maintain a specific political community in its traditional rights. Its sanction came from a righteous cause, and as Congress began to edit Thomas Jefferson's draft on July 2 and 3, it found itself not only tightening his argument, but also making more explicit the divine sanction that underpinned the document.
Grounded in natural rights theory, English common law, classical thought, and Judeo-Christian theology, the Declaration expressed the specific kinds of liberty and equality understood by eighteenth-century men of property and learning. It eloquently asserted the traditional liberties of Englishmen, drawing the distinction between positive rights granted by governments and natural rights derived from God. This was a defense of man "in virtue of his nature," as later expressed by the political philosopher Harry Jaffa. The Declaration described rights that could not be "alienated" or surrendered to any person or government, especially one failing to uphold its responsibilities to the people it sought to control.
A document so radical as to indict a king and declare all men equal was also extremely conservative. Liberty seemed a straightforward idea, but equality was a far more complicated concept than Jefferson's famous phrase expressed. Equality was not an end in itself, but was a feature of liberty, in the sense that humans had equal rights that had to be protected. In the political sphere, equality was necessary to the preservation of those God-given liberties that were both individual and communal.
Content Moderation and the First Amendment
Back in 2013 I argued that under the Supreme Court's jurisprudence algorithmic editing is speech for First Amendment purposes, and in Moody v. NetChoice the Supreme Court squarely so stated, in the context of social media platforms' algorithmic prioritization of content.
Many people are unhappy about this jurisprudence, for understandable reasons. The invalidation of laws regulating websites' substantive algorithmic decisions is a striking, and arguably unsettling, prospect. Some of the critics argue for revamping First Amendment jurisprudence. That would extend far beyond the treatment of editorial choices, but others respond more directly to this jurisprudence – for example, treating social media platforms as state actors or common carriers.
In my forthcoming Content Moderation and the First Amendment, I discuss these possible responses designed to limit Moody, concluding that the strongest candidate is excluding from First Amendment coverage editorial judgments made by monopolists. Unlike the other possible responses, it avoids arbitrary distinctions and focuses on companies that, by hypothesis, lack significant competitors.
I also discuss a prominent possibility that would expand the Moody line of cases – that audience interests alone are sufficient to trigger First Amendment coverage, so that messages sent by AI without any meaningful human involvement (and thus no traditional speaker for First Amendment purposes) are treated as speech.
As I discuss in the conclusion, my inclination is not to adopt either of these possibilities. As to market power, I err on the side of avoiding ad hoc exceptions. And the prospect of protecting speech generated entirely by AI seems sufficiently transformative that I favor caution.
I end by suggesting that these issues will become more fraught insofar as social media platforms become more influential and the prospect of artificial general intelligence becomes more real. And cleavages in response to those two developments will likely better explain individuals' reactions to the treatment of algorithmic editorial decisions than more traditional First Amendment fault lines will. In this and in other areas, the ground is shifting beneath our feet, destabilizing current debates.
Restricting Speech By Purportedly Protecting Children
Around the world, governments are censoring speech with the stated goal of shielding youth from online harms.
While governments around the world have imposed speech restrictions to fight misinformation and hate speech, they also have attempted to curb free speech for a less controversial reason: protecting children. But many of these restrictions stem from vague, unspecified, or speculative harms and corral wide swaths of speech that do not harm children. Censoring speech in the name of protecting children is not a terribly new phenomenon, especially in authoritarian countries. In 2012, for instance, Russia's parliament passed a law allowing the country's media censorship agency to unilaterally blacklist websites and take them offline, without any court approval. The lawmakers' justification was protecting children from online harm, but civil liberties groups correctly predicted that the government would use these powers to curb far more speech. In recent years, such efforts have moved beyond authoritarian countries and taken hold in Western democracies.
The United States has seen repeated attempts to curb speech in the name of saving the children. Although they have failed, governments have continued to try over many decades. In 1969, the US Supreme Court struck down the Des Moines, Iowa, school district's ban on black armbands worn to protest the Vietnam War, writing that "state-operated schools may not be enclaves of totalitarianism." In 1997, the Supreme Court invalidated much of the Communications Decency Act, which criminalized the online transmission of "indecent" content to minors, writing that the "interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." And in 2011, the court struck down a California law that banned sales of "violent video games" to minors, writing that the First Amendment does not give the government "a free-floating power to restrict the ideas to which children may be exposed."
The moral panic did not stop with those cases. Across the country, states are scrambling to address the harms associated with minors' use of social media. Many high-profile commentators and politicians have criticized social media for harming the mental health of teenagers, though there is substantial debate as to whether they have presented sufficient evidence of causation. In May 2023, then-Surgeon General Vivek Murthy issued an advisory on social media and youths' mental health: "The most common question parents ask me is, 'Is social media safe for my kids?' The answer is that we don't have enough evidence to say it's safe, and in fact, there is growing evidence that social media use is associated with harm to young people's mental health."
States have stepped in to try to regulate social media. Among the highest profile recent attempts is Utah's Minor Protection in Social Media Act, which the state legislature enacted in March 2024. The Utah law requires social media companies to "implement an age assurance system to determine whether a current or prospective Utah account holder on the social media company's social media service is a minor." For minors who have accounts, social media companies must impose a number of restrictions, including setting "default privacy settings to prioritize maximum privacy," limiting direct messaging abilities, disabling search engine indexing of their profiles, and limiting a minor's ability to share content with others. Those privacy settings cannot be changed without verifiable parental consent. The law also requires social media companies to disable functions that "prolong user engagement" for minors, such as autoplay functions.
Today in Supreme Court History: May 6, 1776
5/6/1776: Virginia Declaration of Rights by George Mason is published. Thomas Jefferson relied on this document when drafting the Declaration of Independence.
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Second Amendment Roundup: How a Fake Citation Misled Courts to Uphold "Sensitive Place" Gun Bans
The Second Circuit’s Misunderstanding of Founding-Era Law on Going Armed
My article with the above title has now been published online by the Journal of Law & Civil Governance at Texas A&M. The following is the Abstract:
This article concerns how a fake citation has misled courts to uphold "sensitive place" gun bans. New York State Rifle & Pistol Ass'n v. Bruen held that the Second Amendment presumptively protects conduct covered by its plain text. A state must justify its restriction by showing it to be consistent with America's historical tradition of firearm regulation. The original public understanding at the Founding is key to that question.
Post-Bruen, courts have sought to uphold restrictions that ban firearms in various "sensitive places" based on a misunderstanding of the Founding-era offense of going armed in a manner that terrorized the public. Antonyuk v. James upheld New York's place restrictions based on its claim that Founding-era Virginia and North Carolina laws banned going armed per se in fairs and markets. However, it conceded that Virginia only prohibited going armed "in terror of the Country," but maintained that North Carolina had no such element of the offense, adding that place restrictions in the late 19th century followed the North Carolina model. That historical tradition of regulation, the Second Circuit held, justifies New York's current law.
But Antonyuk has constructed a house of cards by ignoring actual North Carolina law and mistaking a privately published book for that law. In 1792, François-Xavier Martin published A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, which included the 1328 Statute of Northampton. Bruen commented that the Statute "has little bearing on the Second Amendment adopted in 1791," and in any event it was interpreted to apply only to going armed in a manner to terrorize others.
Antonyuk did not bother to research actual North Carolina law. In 1741, the colony of North Carolina enacted a law directing constables to arrest "all such Persons as, in your Sight, shall ride or go armed offensively"; by contrast, it further provided that "no Slave shall go armed with Gun, Sword, Club, or other Weapon." That same language was approved by an act passed in 1791 and continued to reappear in the statutes at least as late as 1855. Going armed was not a crime unless done so offensively, while going armed per se was a crime if the person was a slave.
Antonyuk further ignored North Carolina precedents. State v. Huntly recognized the common-law offense of going armed to terrify, but said that "the carrying of a gun per se constitutes no offence." That reading of the law was repeated over and over as late as 2024.
Courts have been misled by the citation of Martin's Collection as a "law" at the highest level. Dissenting in Bruen, Justice Breyer cited Martin as the authority for the proposition that "North Carolina enacted a law whose language was lifted from the Statute of Northampton virtually verbatim (vestigial references to the King included)." It boggles the imagination to think that the state would enact a law with several references to "the King" sixteen years after the Declaration of Independence.
It is unclear where the rumor started that Martin's book was a "law," but the Duke Center for Firearms Law includes it in its Repository of Historical Gun Laws under the citation "ch. 3, N.C. Gen. Stat. (Francois X. Martin 1792)." Chapter 3 of N.C. General Statutes in 1792 included no such provision. Another fake citation for this "law" that has been cited is "1792 N.C. Laws 60, 61 ch. 3," which does not exist.
The Ninth Circuit, in Wolford v. Lopez, recognized that Bruen rejected the purported place restrictions in North Carolina law, but upheld them anyway despite no Founding-era tradition of regulation. Yet the Third Circuit swallowed Antonyuk hook, line, and sinker to uphold New Jersey's extensive place bans, including the misrepresentation that Martin's book was a North Carolina "law," in Koons v. Attorney General of New Jersey. And then a different panel of the Second Circuit, in Frey v. City of New York, admitted that "Bruen undermines" Antonyuk's interpretation, but upheld other parts of New York's "sensitive place" bans despite no Founding-era tradition of regulation.
This matter is not about a single, erroneous citation with no consequence. In Antonyuk, the Second Circuit built its entire theory of Founding-era analogs on sand in order to comply with Bruen's directive to find a historical tradition of regulation that supported New York's wide restrictions. That decision has since influenced two other circuits, covering three states, to adopt the same flawed approach—and others may soon follow. These decisions are based on a badly mistaken analysis of America's historical tradition of firearm regulation and should be overturned.
[Note: The Third Circuit has granted rehearing en banc in Koons, thus vacating the panel decision.]
The KBJ Delay in Callais
Who is at fault for the rush to judgment in Louisiana?
One of the most explosive claims from Molly Hemmingway's new books concerns Dobbs. As we all recall, after the leak of the Dobbs draft on May 2, 2022, it became apparent that the Justices would face serious security threats. Indeed, a deranged liberal traveled from California to D.C. with weapons and made it to the threshold of Justice Kavanaugh's home. (Sounds familiar, doesn't it?) Yet, after all this happened, the Dobbs opinion was not released early. The Court held onto it until June 24. There was no obvious effort to expedite the release of the opinion. And all told, there were few changes made between the leaked draft and the final published opinion. At the time, some speculated that there might be changes to the opinion. Or perhaps the majority flipped. Yet, the five held strong. What then was the holdup?
Hemmingway reports that Justices Sotomayor, Kagan, and Breyer refused to expedite the release of the opinion. (This vignette comes after the leak but before the assassination attempt):
On Thursday, May 12, the justices gathered in conference to go through the circulating opinions and set the dates for their release. Justices grade the decisions based on when they will be ready for release. An "A" is for those decisions and dissents that are done, "B" for those that are almost done, and "C" for those not near completion. Dobbs was graded a "C."
The majority opinion had been done for more than three months and was waiting only for the dissents. Alito asked the dissenters to make the completion of their dissents their priority because delay of the decision was a security threat. Abortion supporters had an incentive to kill one or more of the justices in the majority to change the outcome. The dissenters demurred. Gorsuch spoke up, asking for a date by which they might be done. They would not give a date.
Following the conference, Justice Elena Kagan visited Justice Stephen Breyer's office. Though he had not said he would accommodate the justices whose lives were at risk by getting out a dissent, he was the member of the liberal bloc most willing to do so. Fiercely liberal in his jurisprudence and in strong disagreement with the majority decision, he nevertheless was a gentleman and a friend to all on the Court. Kagan remonstrated with Breyer not to accommodate the majority, screaming so loudly, observers noted, that the "wall was shaking."
I'm not quite sure how stone walls were shaking, but I get the picture.
After the assassination attempt, the Justices reached something of a compromise:
The dissenting justices eventually agreed to complete their Dobbs dissent by June 1 in return for an extension to June 15 of the deadline for their majority opinions in other cases. When the dissent was finally submitted, however, it cited the decision in the high-profile Second Amendment case New York State Rifle & Pistol Association v. Bruen, which would not be released until the end of the term. The release of the Dobbs decision, therefore, was dragged out until June 24, the day after Bruen was released.
Did Dobbs have to cite Bruen? Was this just another attempt at delay? This is the sort of claim that one day will be revealed in the papers of the Justices. I hope to live long enough to see them.
For now, it seems that Justice Alito may have addressed this situation, perhaps indirectly.
Justice Alito included an unusual footnote in his Callais concurrence:
The dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional.*
*That constitutional question was argued and conferenced nearly seven months ago.
Why would Justice Alito write this? What difference does it make that Callais was argued in October and conferenced shortly thereafter? The implication, I think, is that the Callais dissent was slow-walked. But why would it be slow-walked? As all know, the longer the opinion would take to publish, the harder it would be for Republicans to implement the order for the 2026 midterms. I'm sure Alito's majority opinion was prepared quickly. And as I noted last week, the majority barely responds to Justice Kagan's dissent, so there was not much back-and-forth. The delay, Alito insinuates, was from the Court's liberals. And why would they delay? Perhaps Justice Kagan needed seven months to perfect three consecutive sentences that begin with the words "I dissent because." Or, there was an effort to help Democrats. Who was sacrificing principle for power?
On X, Mike Fragoso asks, "Did Mollie's book excerpt force Kagan's hand in Callais? I guess we'll never know." The Wall Street Journal likewise observes, "The footnote suggests some pique by Justice Alito about the Court's long gestation on Callais, and understandably so since Justice Jackson is accusing the majority of playing politics."
Of course, if Justice Jackson went along with these dilatory tactics, she has some chutzpah for complaining about the effort to issue the mandate forthwith. But for the KBJ delay in Callais, Louisiana could have received the judgment before the election began, an this entire dispute would amount to nothing.
The Laborious KBJ
Justice Ginsburg was known as the Notorious RBG. Notoriety was a perfect adjective for Justice Ginsburg. She was famous, but not always in a good way. She was, well, notorious. And Justice Ginsburg leaned into that edgy persona--or did the edgy persona shape Ginsburg?
For some time, I've been thinking of the right nickname for Justice Jackson. It hit me today: the Laborious KBJ. The most salient feature of her tenure is making others do more work. And that work doesn't actually serve any purpose, other than indulging Justice Jackson. She certainly isn't changing any minds on the Court, and it isn't clear she is changing any hearts outside the Court.
Consider a few data points. During oral argument, she speaks more than any other Justice by a significant number. According to Adam Feldman's analysis from March, Justice Jackson spoke more than 53,000 words from the bench this term.
The next closest totals were Justices Sotomayor and Kagan with 35,000 and 30,000, respectively. If you total the words spoken by Chief Justice Roberts, and Justices Thomas and Barrett (about 48,000), you still have less than Justice Jackson alone. Or you could total the words spoken by Justices Kavanaugh and Gorsuch (52,198) and it is still less than Justice Jackson.
Feldman measures the data in a different way. Justice Jackson had the highest share of words spoken in nine of the top ten longest arguments this term. More than 1 out of every 4 words spoken by a Justice comes from Justice Jackson.
That sort of dominance is not normal.
At least when Justice Breyer would ask questions for pages on end, it was entertaining. I now find myself skipping the audio whenever Justice Jackson starts asking a question. It just is not a good use of my time. The other Justices, alas, lack that luxury. As many reporters have observed, when Justice Jackson begins her lengthy questioning, the other Justices take deep breaths, roll their eyes, and disconnect.
Then there are Justice Jackson's solo dissents. In a number of cases, she takes a position so far to the left that not even Justices Sotomayor and Kagan want to join her. Most recently, Justice Jackson was all alone in charging the majority with partisanship (more on that dissent shortly). And that dissent compelled Justice Alito to write, on very short notice, a concurrence that called her out. Our Circuit Justice has been very busy this week.
Justice Jackson also caused waves by slow-walking emergency petitions from the First Circuit. She took a long time to even call for a response in Libby v. Fectau, where the Justices ultimately granted emergency relief. Contrast this KBJ delay with how quickly Justice Alito granted an administrative stay and called for a response with the Mifepristone case. Like I said, our Circuit Justice is on point.
The Laborious KBJ. There you go.
In the spirit of my friend Ilya Shapiro, could you imagine if Justice Kagan had Justice Srinivasan as a wingman?
Vanderbilt Student's Lawsuit Over Suspension for Alleged False Accusations Can Go Forward
From a long opinion today by Judge Waverly Crenshaw (M.D. Tenn.) in Poe v. Lowe:
Poe, a male Vanderbilt student, made social media posts about another male Vanderbilt student, Roe, and his sexual behaviors with females. [Citing court filing] showing posts by Poe's Yik Yak account, including stating that "[Roe] is a rapist" and "[Roe] slipped me a roofie this fall, but I just wasn't able to definitively proove [sic] it. When I brought it up to some of the [] brothers [from Roe's fraternity] they tried to gaslight me about it" ….
Poe was not alone—a number of posts were made about Roe by other people, including other Vanderbilt students. [Citing court filing] containing Yik Yak posts by a female Vanderbilt student, L.N., including stating that she had "personal experience" with Roe and "he is a RAPIST, that is the truth and if you don't believe it after so many girls have said it, there is nothing I can do to convince you" …. Once this came to Vanderbilt's attention, Bourgoin, Vanderbilt's Director of Student Accountability, Community Standards, and Academic Integrity, opened a disciplinary case against Poe, charging him with three violations of the Student Handbook …: disorderly conduct, harassment, and impersonating a University official or any other person….
Poe's appeal was denied by Vanderbilt's Chair of the Appellate Review Board (Lowe), and Poe was suspended for a year. Poe, who had attempted suicide after hearing of his punishment, sued Vanderbilt on various theories.
The court allowed Poe's negligence claim to go forward based on how the disciplinary outcome was reported to him:
There is no dispute that Defendants were on notice of Poe's serious mental health issues. [Citing record document] (Poe's mother emailing Bourgoin and Clapper {[Vanderbilt's] Director of Student Care Network and Student Care Coordination} that Poe "is now talking suicide We are absolutely convinced an adverse decision now will take his life"). Jamerson even testified that he had assessed Poe's suicide risk at "moderate-to-elevated." Defendants did not accommodate Poe's mother's request to move the outcome call one week. Yet, they still chose to engage in care planning with her to mitigate the risk of harm to Poe. [Citing record document] (Jamerson testifying that he "felt it was safe to move forward with adding additional precautions like having [Clapper] available to be on the [outcome] cal1, who is a licensed clinical social worker, also notifying the mom of when the date would be so that the mom was aware of when it was coming out.").
Apparently, Defendants wanted Poe to have his mother with him during the outcome call, as evidenced by the email to his mother with the target date for the meeting. Clapper also testified that when she and Bourgoin began the outcome call with Poe, she asked Poe if his mother was there. Despite Poe telling them he lied to his mother {about the scheduling of the outcome call and [told] her that it was the following day}, Bourgoin and Clapper proceeded with the outcome call.
NAACP Seek To Recall Callais Judgment So It Can Seek Reconsideration
The time to make this request was when the Plaintiffs moved to issue the judgment forthwith.
On April 29, the Supreme Court decided Callais. That same day, the non-African American Plaintiffs asked the Court to issue the judgment immediately. This request should not have been surprising. Louisiana is in the middle of the election, and time is of the essence. Justice Alito called for a response to be filed on April 30. The NAACP filed a response. I suggested that the savvy strategic move would have been to file at the same time a motion for reconsideration. To be sure, the rules provide 25 days to file such a motion, but in a fast moving case it would have been prudent to file immediately. The NAACP did not file such a motion. Instead, the opposition stated that they were thinking about it:
The Robinson Appellants oppose Appellees' Application for expedited issuance of the Court's judgment in this matter (the "Application"). This Court should afford Appellants the opportunity to consider seeking rehearing in the ordinary course. See Supreme Court Rule 44.1 (allowing 25 days for a party to seek rehearing of any judgment of this Court).
What was there to think about? The case is on the emergency docket. There is not time for the usual 25 day period to leisurely consider the matter. Again, I think there was a strategic miscue here. The NAACP lost a race on the shadow docket. And what would the NAACP have argued in such a motion for reconsideration? It would be clear they were (to use Justice Alito's words) trying to "run out the clock." The delay is the point.
Today, the NAACP has formally asked the Court to withdraw the judgment to give the NAACP the full period to file a motion for reconsideration.
The sole basis cited in the Order for granting Appellees' Application and issuing the judgment forthwith was that "[Robinson Appellants] have not expressed any intent to ask this Court to reconsider its judgment." However, in the second sentence of Appellants' opposition to the Application, Appellants requested "the opportunity to consider seeking rehearing." See Robinson Appellants' Response to Appellees' Application for Issuance of a Copy of the Opinion and Certified Copy of the Judgment Forthwith, at 2, No. 25A1197 (Apr. 30, 2026). In support, Appellants cited Rule 44.1, noting that it allows parties twenty-five days to seek rehearing of any judgment of this Court. Appellants intend to request rehearing in this case, and, accordingly, respectfully request that this Court recall the judgment, reconsider its order granting the Application, and deny the Application. Alternatively, Appellants respectfully ask the Court to recall the judgment and provide them fifteen days from the date of its decision in this case, or until May 14, 2026, to seek rehearing.
I think this ship has sailed. Proceedings are already ongoing in the lower court. Justice Jackson made the case for why the judgment should not be issued forthwith. No one joined her. I don't see much ground for reconsideration here.
The Spirit of the Declaration, Part 1
[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]
Though Thomas Jefferson's phrases in the Declaration of Independence remain among the most famous ever penned, America's founding document remains controversial to some, and unread by many. Famously intended by the young Jefferson to be an "expression of the American mind," the Declaration was primarily of an amalgamation of George Mason's Virginia Bill of Rights, Jefferson's draft Virginia Constitution, and Richard Henry Lee's resolution of June 11 proposing Independence. Though informed by dozens of local declarations and statements, as ably chronicled by the late Pauline Maier in her 1997 American Scripture, one might say that the Declaration grew out of the Virginia soil, seeded by the tempestuous rains of Massachusetts.
The members of the Continental Congress knew that their Declaration left much unsaid and unfinished. They had heavily edited Jefferson's draft, though they refrained from adding new sections. In what Jefferson bemoaned as "mutilations" but were really judicious edits, Congress cut about a quarter of the text before adopting the document on the morning of July 4, 1776. In truth, the Declaration was not seen as the epochal event later generations attributed to it. To the delegates in Philadelphia, that step had been taken two days earlier, on July 2, when Congress voted to separate from Great Britain, King George III, and Parliament. Moreover, the Declaration was important insofar as it paved the way for two more important moves: forming foreign alliances, primarily France and Spain, and forming some kind of confederated government to guide relations among the now sovereign States. No public readings, fireworks, or celebrations occurred on July 4, though they would break out in coming days as America's new citizens listened to the Declaration read on hastily printed broadsheets sent around the country.
By design, the Declaration avoided any discussion, or even suggestion, of the type of government the colonies should establish. Formally, that was the responsibility of Connecticut delegate Roger Sherman's committee to draft articles of confederation, which ultimately created a uniquely weak central government. The more fundamental questions of governance were to be left to the new States, eight of which would draft and adopt constitutions in 1776 alone. Indeed, for many delegates, the business of writing state constitutions was far more important than Congress's declaration. Even Thomas Jefferson would rather have been back in Williamsburg working on a constitution for Virginia, a draft of which he had already composed earlier in the year, and parts of which he now re-purposed for the declaration.
Elite Panic and the Push to Regulate "Misinformation"
European leaders' warnings of a democratic apocalypse failed to materialize in 2024.
Our book traces the waves of elite panic that drive governments to regulate "misinformation," "disinformation," and other speech that the leaders believe are not in the best interests of the public. One wave of elite panic reached its peak in 2024. It was a pivotal year for the future of global democracy, as some 2 billion voters—about half the adult population of the globe—went to the polls, including voters in the United States, the European Union, France, the United Kingdom, Brazil, Indonesia, South Africa, Taiwan, Mexico, and India.
Despite a record number of eligible voters, the mood among many politicians, commentators, and media institutions was more fearful than celebratory. A New York Times article from January 2024 warned that "false narratives and conspiracy theories have evolved into an increasingly global menace," and that "artificial intelligence has supercharged disinformation efforts and distorted perceptions of reality." Experts cautioned that the combination of online influence campaigns and artificial intelligence had created a "perfect storm of disinformation" that threatened free and fair elections.
The EU-funded European Digital Media Observatory (EDMO) warned that disinformation campaigns had become "a pervasive phenomenon," with more voters exposed than ever before. An anonymous senior EU official highlighted the threat from "tsunami levels" of disinformation: "It's as if we have been infected by this foreign interference. It's a silent killer." Not to be outdone, Věra Jourová, the European Commission's vice president for values and transparency, said AI deepfakes of politicians could create "an atomic bomb … to change the course of voter preferences." To counter this threat, the European Commission sent menacing letters to social media platforms and dispatched crisis units, expecting to deal with attempts to cast doubt on the legitimacy of the election's outcome for weeks after the vote.
At the Copenhagen Democracy Summit in May 2024, just a month before the European Parliamentary elections, Ursula von der Leyen, the president of the European Commission and then a candidate for reelection, made a significant pledge. She promised to prioritize a new "European democracy shield" to combat foreign interference. One aspect of this shield would focus on detecting "malign information or propaganda " and, once identified, ensuring such content is "swiftly removed and blocked" by online platforms. This would build on—and likely expand—new obligations under the Digital Services Act. The shield would essentially normalize the kind of emergency measures the European Union had already adopted to ban and block Russian state-sponsored media in the wake of Putin's attack on Ukraine in February 2022.
Today in Supreme Court History: May 5, 1992
5/5/1992: The 27th Amendment is ratified. It was initially proposed in 1789.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Open Thread
What’s on your mind?
The Partisan Asymmetry In Callais
Justice Jackson never countenances that her decision to "run out the clock" might be partisan.
In most political disputes, there will usually be an argument that helps the left and an argument that helps the right. A common rhetorical tactic is to insist that one side or other is in fact being neutral, while the other side is being partisan. In the abstract, these arguments should not work because neither side is being neutral. But in various areas of the law, there are liberal institutional asymmetries--legal principles that ensure the liberal position is seen as the neutral baseline.
One of the largest asymmetries was (past tense) the Voting Rights Act. I wrote in October:
Because African American and Hispanic voters tend to vote for Democratic politicians, Democrats will benefit from VRA claims. By contrast, because White voters tend to vote for Republican politicians, Republicans will less likely benefit from VRA claims. What is the upshot? Gerrymandered maps in the South drawn by Republican legislatures are routinely blocked under the VRA, while gerrymandered maps in the North drawn by Democratic legislatures are far more likely to survive.
Callais eliminated this asymmetry. Going forward, absent evidence of intentional discrimination, racial minorities will no longer receive an electoral boost through the VRA. The upshot of Callais, as well as Students for Fair Admissions, is that the government can no longer adopt "benign" classifications to "help" racial minorities. I use scare quotes because I doubt that any of these classifications actually helped the people they purproted to help. Moreover, all classifications are zero-sum games, and to help one race is to hurt another race. The post-Callais world may see a realignment of political power in the South that is difficult to predict. Gingles froze the politics of the 1980s in place. Indeed, many aging members of opportunity districts have served that long. Going forward, black people will no longer be moved around like pawns to maximize Democratic districts.
Now, as Justice Thomas wrote in Allen v. Milligan, we will have a system where "the minority simply cannot elect its preferred candidates; it is, after all, a minority." The neutral rule is not that federal courts draw bizarrely-shaped districts that cobble black voters together for no reason other than they are black. Decades of VRA litigation have conditioned us to thinking that Gingles is neutral. It's not. Instead, the neutral rule is that the demographics with fewer voters have a harder time electing their preferred candidate. Callais reimposed the neutral rule.
The aftermath of Callais further demonstrates this warped conception of neutrality. The private plaintiffs asked the Supreme Court to issue the judgment right away. Last week, I observed that the issuance of the judgment is irrelevant. There is no injunction blocking the implementation of new maps. Still, the plaintiffs asked for the judgment to be issued forthwith.
The per curiam order granted the motion to issue the judgment forthwith:
To permit the losing party time to file a petition for rehearing, the Clerk of Court ordinarily waits 32 days after the entry of the Court's judgment to send the opinion and a certified copy of the judgment to the clerk of the lower court.Sup. Ct. Rule 45.3. This period is subject to adjustment; the default applies "unless the Court or a Justice shortens or extends the time." Ibid. The Callais appellees have asked for the Clerk to issue the judgment forthwith so that "in the event of a judicial remedy," the District Court may "oversee an orderly process." App. 3. Appellant Louisiana does not oppose this application. And while the Robinson appellants oppose it, they have not expressed any intent to ask this Court to reconsider its judgment. Thus, the application toissue the judgment forthwith presented to JUSTICE ALITO and by him referred to the Court is granted.
The judgment is issued after 32 days to allow the losing party time to seek reconsideration, but that rule can be waived if there is good cause. In Callais, those seeking expedition provided good cause. Those opposing expedition made a strategic miscue. When the non-African American plaintiffs sought to issue the mandate forthwith, the African American plaintiffs should have concurrently filed a motion for reconsideration. On what grounds, I don't know, but they could have filed something. That would at least have triggered another ground of (pointless) briefing, and given the Court a rationale to not issue the judgment forthwith. But the African American plaintiffs did not take that course. Instead, they simply opposed the issuance of the judgment. The Supreme Court called their bluff.
Justice Jackson, however, wrote a harsh dissent. She all-but charged the majority with partisanship.
These post-Callais developments have a strong political undercurrent. Louisiana's hurried response to the Callais decision unfolds in the midst of an ongoing statewide election, against the backdrop of a pitched redistricting battle among state governments that appear to be acting as proxies for their favored political parties.2 And as always, the Court has a choice. By my count, we have granted an application to issue the judgment forthwith over a party's objection only twice in the last 25 years. See Whole Woman's Health v. Jackson, No. 21A220, 2021 WL 5931622 (Dec. 16, 2021); Order in Adoptive Couple v. Baby Girl, No. 13A7, etc. (June 28, 2013). To avoid the appearance of partiality here, we could, as per usual, opt to stay on the sidelines and take no position by applying our default procedures. But, today, the Court chooses the opposite.
Jackson concludes:
The Court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power. Because this abandon is unwarranted and unwise, respectfully, I dissent.
Justice Alito responds in a concurrence, joined by Justices Thomas and Gorsuch. Alito writes that Jackson's charge is "baseless and insulting." Why? Jackson is so quick to charge the conservatives with partisanship that she never countenances that her own view might be motivated by partisanship.
The second reason offered by the dissent is that we should allow the 32-day period to run out in order to "avoid theappearance of partiality." Post, at 3 (opinion of JACKSON, J.). But the dissent does not explain why its insistence on unthinking compliance with Rule 45.3's default rule doesnot create the appearance of partiality (by running out the clock) on behalf of those who may find it politically advantageous to have the election occur under the unconstitutional map.
The Republicans want to issue the judgment right away, and the Democrats do not. The Democrats want to use the unconstitutional maps, and the Republicans want new maps. Why is it that only the Democrats are behaving neutrally while the Republicans are behaving in a partisan fashion? I think both sides are serving their own self interest. Therefore, it cannot be that a decision favoring the left is "neutral" while a decision favoring the right is "partial."
Again, Jackson does not explain why refusing to issue the judgment is the partisan rule. The rules permit the issuance of the judgment where there is good cause, and when the non-prevailing party have given no indication they will seek reconsideration, there is no good cause to stand by.
Alito writes further that failing to act to avoid the appearance of partisanship is in fact partisan.
The dissent goes on to claim that our decision represents an unprincipled use of power. See post, at 4 ("And just likethat, those principles give way to power"). That is a groundless and utterly irresponsible charge. What principle has the Court violated? The principle that Rule 45.3's 32-day default period should never be shortened even when thereis good reason to do so? The principle that we should never take any action that might unjustifiably be criticized as partisan?
We should sandblast "Equal Justice Under Law" off the Supreme Court's portico and chisel into marble this passage. The Supreme Court decisions that I am most critical of stem not from a failure of jurisprudence but from a failure of courage. Judges who are unwilling to be criticized for partisanship simply acquiesce to liberal conceptions of "neutrality." Perhaps Callais will steel the Court to stop falling in this progressive trap. The left is simply gaslighting conservatives as to what neutrality is. Neutrality is applying the law without fear or favor for either side.
