The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Anyone who went to law school over the past three decades should be familiar with the arguments for and against the use of legislative history. Justice Scalia made it his mission to remind everyone, at every opportunity, why legislative history should not be cited. Justice Scalia would often dissent from any part of an opinion that cited legislative history. To this day, Justices who cite legislative history will say something to the effect of "For those who find legislative history useful," as if they are ashamed to rely on it.

Yet, on the present Court, Justice Jackson seems most intent on reinvigorating the reliance on legislative history. The latest skirmish in the textualism battle came in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. The case concerned whether the Court should imply a cause of action under the Investment Company Act. I haven't studied this statute in any depth, so I'll pass on the merits. Instead, I want to highlight the duel between Justice Barrett's majority opinion and Justice Jackson's dissent.

Jackson may see herself as keeping Justice Breyer's mantle alive. But I think her approach goes deeper. She views the rejection of legislative history as a yet another form of "contempt" that the conservative evince towards Congress. KBJ cites Professor Victoria Nourse:

The majority's failure—or refusal—to accept this might stem from what commentators have called a prevailing "academic contempt for Congress." V. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L. J. 70, 142 (2012). Academics may think what they wish of Congress; this Court's jurisprudence ought not be grounded in such contempt.

This model is consistent with Jackson's broader framing of judicial restraint. Jackson purports to not strike down an act of Congress, or a regulation, unless there is a clear reason to do so. She writes:

[Legislative history] is a worthy and necessary effort because it prevents the preferences of judges from supplanting the will of the people. . . written"). Using legislative history helps prevent judges who are duty bound to interpret Congress's laws from making them instead. . . . But when a statute's text needs clarification, discarding legislative history turns the Court's assessment of Congress's intent into a transparently empty gesture. Even worse, it inappropriately elevates the Justices' own power by promoting our views about the "best" policy call.

Jackson is a Thayerian--unless the the First Circuit blocked something Trump did. I'm still disappointed she didn't write separately in Trump v. Anderson. She was ready to, but just couldn't pull the trigger.

It makes sense that Chief Justice Roberts assigned this opinion about statutory interpretation to Justice Barrett. The Scalia clerk and former law professor is in her element with these sorts of academic debates. Yet, Justice Jackson made a few points that Justice Barrett did not respond to. I get the sense that Justice Barrett thinks that The Boss won this debate decades ago, so there is little sense in arguing further. But there are some new developments that affect the analysis. Textualists cannot just rest on Justice Scalia's laurels forever. To borrow a phrase, textualism is not frozen in amber. Or to borrow another phrase, we cannot simply declare victory and move on. The Court's conservatives need to address modern criticisms of textualism, lest the other side regains ground.

First, Jackson cites Professors Abbe Gluck and Lisa Bressman, who have done some serious empirical work about how members of Congress view textualism.

The reports therefore serve as the final sales pitch for a bill, and "there is evidence that lawmakers themselves pay more attention to these reports than a statute's text to understand the statute's purpose and meaning." Learning Resources, Inc., 607 U. S., at ___ (JACKSON, J., concurring in part and concurring in judgment) (slip op., at 2) (citing A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 965–966, 968–969 (2013)); see

I don't recall that Justice Scalia ever had occasion to address textualism in practice. Justice Barrett cites Gluck and Bressman for an ancillary point, but ignores the important bottom line of how important legislative history is for members of Congress and staffer. That citation is problematic. This point can't simply go unaddressed.

Second, the major question doctrine has forced the Court to embark on atextual inquires about legislative intent.

Aaron Terr (FIRE) reports, based on accounts from various publications. Some excerpts:

The incident occurred outside a conference hall where Jay Bhattacharya, director of the National Institutes of Health, was scheduled to deliver a keynote address. The Washington Post reports that a small group of researchers quietly handed out printouts of a recent editorial in Diabetes Care criticizing Trump administration policies affecting biomedical research. One of the researchers is the journal's editor and co-authored the piece. Security staff and police escorted them out of the conference at the request of event organizers. Video captured the confrontation.

{The ADA is a private organization, so this isn't a First Amendment issue. But it does raise questions about why an organization that claims to "welcome scientific inquiry, respectful dialogue, and diverse perspectives" responded so harshly to conference attendees peacefully distributing an article from one of its own publications.}

Some of the ousted researchers said they believed they were removed partly because the ADA feared repercussions from the Trump administration. Let's hope that's not true. But all the organization has offered are weak and shifting justifications that seem to be inconsistent with its stated commitments to open dialogue and viewpoint diversity.

For example, in a statement to the Post, the ADA said the researchers were ejected for "violating the conference code of conduct," under which participants are expected to "conduct themselves in a professional and respectful manner." Those terms are highly subjective, but it's worth noting that, on the reported facts, there is no claim or evidence the ejected researchers chanted, blocked access, disrupted an event, or otherwise interfered with the conference. They simply handed out pieces of paper.

Show Comments (15)

I have previously written about Donald Trump's massive planned Section 301 tariffs, arguing that they have some of the same flaws as those invalidated by the Supreme Court in the IEEPA case (which I helped litigate). Today, I am pleased to present a guest post on the Section 301 tariffs by Peter Harrell. Peter is Visiting Scholar at Georgetown's Institute for International Economic Law, an attorney in private practice, and one of the nation's leading experts on trade law. He played an important role in helping to develop the arguments that ultimately led to the invalidation of the IEEPA tariffs. In today's post, he lays out what I think is the most thorough and insightful analysis of the Section 301 tariffs, to date.

I agree with the vast majority of his points. If I have a reservation, it is that a constitutional nondelegation argument against the Section 301 tariffs might be more promising than he suggests. In my view, FCC v. Consumers' Research - decided by the Supreme Court last year - outlines important constraints on tax power delegations that the Section 301 tariffs run afoul of. For example, under the administration's apparent approach to 301, there are no meaningful limits to the magnitude of the tariffs they could impose, which violate the Consumers' Research requirement that there must be floors and ceilings.

What follows is written by Peter Harrell, not me (Ilya Somin):

On June 2, the U.S. Trade Representative (USTR) issued a sweeping proposal to impose new tariffs on 60 trade partners. The Trump Administration has been transparent that these tariffs are simply part of its "fallback" strategy to continue taxing U.S. imports following the Supreme Court's February 20 ruling against many of the tariffs that Trump imposed last year. As Treasury Secretary Scott Bessent put it in a press interview shortly after the Supreme Court loss, he expected that while the Administration would have to use more complicated authorities to impose tariffs going forward, "the tariff rates will be back to their old rate within five months."

The Trump Administration's new tariffs rely on Section 301 of the Trade Act of 1974 (19 U.S.C. § 2411), which authorizes USTR to investigate unjustified or unfair foreign trade practices and to impose tariffs or other trade remedies in response. Section 301 almost definitionally provides a stronger legal basis for tariffs than the statute Trump first relied on to impose tariffs last year, a 1977 emergency powers statute known as "IEEPA." Unlike IEEPA, which does not include words such as "tariff" or "duty," Section 301 clearly authorizes the Executive Branch to impose tariffs in specific circumstances and Presidents have repeatedly used it as a trade policy tool since the 1970s. But Trump's use of the statute to impose tariffs on countries—86 of them, counting the member states of the European Union individually—that make up more than 99% of U.S. imports is novel and far exceeds any prior use. Section 301's text and history, as well as broader legal and constitutional considerations, all make clear that USTR's planned tariffs exceed what Section 301 authorizes and should be circumscribed by the courts.

How We Got Here

Tariffs were a central promise of President Trump's 2024 Presidential campaign, in which he committed to establish global tariffs of between 10% and 20% with a higher rate on imports from China. Shortly after his inauguration, Trump used IEEPA to impose tariffs on Canada, Mexico, and China in February, and to impose a set of sweeping global tariffs last April. IEEPA nowhere directly contains the power to tariff, but the Trump Administration argued that IEEPA's power to "regulate…[the] importation or exportation of… any property in which any foreign country or a national thereof has any interest" included a power to impose a tax or fee on imports.

The Supreme Court rejected this argument in its February 2026 ruling in Learning Resources v. Trump, with a total of six Justices reading the power to "regulate…importation" as not including a power to tax. Justices Roberts, Gorsuch, and Barrett relied on the "major questions doctrine" to read tariffs out of the statute, finding that "to sustain a claim that Congress has granted them an extraordinary power," such as the power to impose tariffs on trillions of dollars of imports amounting to hundreds of billions of dollars in revenue annually, "executive officials must identify clear authority for that power," and that IEEPA, a statute lacking any of the words, procedures, or guardrails that Congress uses when it enacts a tariff statute, failed to clearly authorize tariffs. Jackson, Sotomayor, and Kagan reached the same conclusion about the scope of IEEPA's authorities but relied on the statute's text and history without invoking the major questions doctrine, a canon of construction they remain skeptical of as an interpretive matter.

Even before its SCOTUS loss, however, the Trump Administration had begun planning to recreate most of its tariffs using a two-part legal strategy. The first phase, which Trump invoked hours after the SCOTUS decision, was to rely on a provision of law known as Section 122 of the Trade Act of 1974 to impose 10% tariffs on many U.S. imports, based on a Presidential finding that the U.S. faces "large and serious…balance of payments deficits." The Court of International Trade, a specialty court that reviews trade matters, rejected that theory last month, though the government is now appealing that decision and is continuing to collect the tariffs while the appeal is going. Regardless of how the appeal turns out, however, Section 122 only authorizes tariffs for 150 days unless Congress chooses to extend them. Hence USTR's recent proposal to impose tariffs under Section 301.

The Statute and its Challenges

Legal problems with USTR's proposed tariffs start with the statute itself.

Section 301 authorizes USTR to investigate foreign trade practices and to impose tariffs if a foreign government violates the terms of a U.S. trade deal or engages in an "unjustifiable" or "unreasonable or discriminatory" trade practice that adversely impacts the U.S. economy. Specifically, Section 301(b), the provision USTR is relying on for the new tariffs, provides that if USTR conducts an investigation and finds that "an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce," USTR "shall take all appropriate and feasible action authorized under subsection (c)…and all other appropriate and feasible action within the power of the…to obtain the elimination of that act, policy, or practice." (19 U.S.C. § 2411(b)). Subsection (c) then authorizes USTR to impose "duties or other import restrictions on the goods of…such foreign country for such time as the Trade Representative determines appropriate."

Although the Supreme Court has never weighed in on Section 301, lower courts have, and held that USTR actions pursuant to Section 301 are subject to judicial review pursuant to the Administrative Procedure Act (APA). Simply put, USTR's new proposed tariffs do not comport with the requirements of 301.

USTR's stated rationale for the new tariffs is that it conducted an investigation into foreign country imports of products made with forced labor, and found (a) that U.S. trade partners either failed to prohibit imports of goods made with forced labor or, if countries had an import prohibition on the books, that they failed to effectively enforce it, (b) that failing to prohibit or failing to enforce a prohibition on imports of products made with forced labor is unreasonable and (c) that the practice burdens U.S. commerce. USTR then proposes to impose either 10% or 12.5% tariffs, depending on the country, in response. (In addition to the tariffs over forced labor imports, USTR is also investigating 16 trading partners for allegedly maintaining industrial overcapacity, and appears likely to impose even higher tariffs in the weeks or months ahead, effectively recreating the rates that Trump originally imposed under IEEPA).

The first statutory weakness with the new tariffs is that USTR did not show on a country-by-country basis how a foreign country failing to effectively enforce a ban on products made with forced labor burdens U.S. commerce. Past 301 investigations, such as Trump's 2018 Section 301 into China's technology transfer requirements, IP theft, and innovation policies, resulted in a 200-page report detailing numerous specific practices and included an estimate that these policies caused at least $50 billion annually in harm to the U.S. economy. Such specific showings of economic harm are required by the statute, which only authorizes tariffs if the "unreasonable or discriminatory" foreign trade practice in fact "burdens or restricts" U.S. commerce. As the Senate Finance Committee's Report for the Trade Act of 1974 described 301's intent, it was to "retaliate against foreign countries which impose unjustifiable or unreasonable restrictions against U.S. commerce" (emphasis added). Where past investigations covered multiple countries, as in a set of investigations into taxes on U.S. tech companies released in early 2021, the investigations themselves resulted in detailed findings regarding each individual foreign country.

Congress has amended the statute several times to clarify the kinds of unfair practices that the statute can be used to address, including specifying that the statute can be used to target "a persistent pattern of conduct that…permits any form of forced or compulsory labor." USTR's investigation correctly finds that there is a strong set of international rules and norms against forced labor and that the U.S. itself has for decades prohibited the import of products made with forced labor. But rather than trying to quantify the harm that, for example, Italy or Japan's alleged failure to adequately enforce a prohibition on imports made with forced labor does to the U.S. economy, USTR's investigation simply provides a few illustrative examples that attempt to show that a handful of individual products potentially made with forced labor, such as rice exported by Myanmar, might have displaced some quantum of U.S. exports in some markets.

Admittedly, the traditional remedy when a court finds that USTR failed to create an adequate record for 301 tariffs is to remand the record to USTR for further development. USTR may recognize that its showings of harm are weak, but assess that it can clean up the record as litigation proceeds. However, as Greg Shaffer and Jeremiah May recently argued (as part of a broader essay laying out a variety of legal challenges to the tariffs), courts do have the power to vacate tariffs imposed pursuant to a defective remedy, and that an investigation that is clearly largely a pretext to recreate tariffs that were earlier ruled unlawful would present a strong case for vacatur.

Moreover, USTR's proposed tariffs also fail to comport with the statute's requirement that tariffs be "appropriate." Section 301(b) admittedly gives USTR substantial discretion in determining the quantity of tariffs or other remedy to impose. It directs USTR to "take all appropriate and feasible action authorized under [the statute], subject to the specific direction, if any, of the President…." While the Supreme Court has never addressed the scope of Section 301, lower courts have generally interpreted Section 301(b) broadly. But courts have not held that the remedy can be unbounded—the statute is clear that USTR's action must be "appropriate." In a case decided last year, for example, the Court of Appeals for the Federal Circuit held that while "appropriate" is "non-specific" and gives USTR substantial discretion, the statute's requirement that actions be "appropriate" "is anchored by the statute to a specific purpose: an appropriate discretionary action is one that can end or reverse the investigated conduct."

Here, USTR is not using the tariffs in a way that is "appropriate." The government has been transparent that its goal is to recreate the IEEPA tariffs, not to actually encourage foreign trade partners to amend their practices with respect to their own imports of products made with forced labor. Indeed, even if a country remedied the alleged deficiency with respect to forced labor, the Trump Administration has made clear that USTR would simply find some other pretextual basis to maintain the tariffs.

The Major Questions Doctrine and Constitutional Limits

Arguments that the proposed tariffs violate Section 301 are bolstered by the Supreme Court's "major questions doctrine," which Justices Roberts, Gorsuch, and Barrett invoked in ruling against Trump's prior IEEPA tariffs, and which argues for a narrow reading of the statute. In Learning Resources earlier this year, the three Justices argued that Trump was attempting to use IEEPA to collect trillions of dollars in new tax revenue in a way that Congress did not clearly intend.

Today, the Trump Administration seeks to create substantially identical sweeping tariffs under Section 301. While Section 301 does clearly authorize tariffs and does require additional procedural steps that IEEPA did not, including the requirement to conduct an investigation and to publish proposed tariffs for public comment, the same fundamental logic that led the Court to rule against the IEEPA tariffs applies to the new proposal: Trump attempting to transform a statute's purpose from the one that Congress intended--in this case to authorize limited tariffs to address discrete foreign trade abuses--into the purpose he wants, which is to establish a new global tariff regime many times higher than the tariffs that Congress has over the years adopted. This, the major questions doctrine says, the courts should not allow. Congress intended its delegation of trade powers under Section 301 to be reasonably narrow and discrete, and the courts should enforce those limits.

Beyond the major questions doctrine, litigation against Section 301 tariffs may force the courts to address a question they ducked when they ruled against Trump's IEEPA tariffs: the extent to which Congress can lawfully delegate its tariff power to the President. Because the Supreme Court ruled against Trump's IEEPA tariffs based on its interpretation of that statute's text, the Court did not need to address whether Congress could, constitutionally, delegate most of its Article I, Section 8 constitutional power to "lay and collect Taxes, Duties, Imposts and Excises" to the Executive Branch. But USTR's plan to use Section 301 in an effectively unbounded way squarely raises the question of how much tariff authority Congress can lawfully delegate. Admittedly, just last year the Supreme Court reaffirmed its traditional approach to the non-delegation doctrine, which upholds statutes so long as Congress provides an "intelligible principle" to guide their use, and here the government will argue that 301's procedural requirements and substantive limits provide such a principle. Existing precedent suggests the courts will likely agree with the government here, and instead rely on other arguments to rein in the government's expansive use of the statute.

What a Loss Would Mean to Trump

A ruling against Trump's new Section 301 tariffs will not end Trump's efforts to tax imports, and not simply because the self-proclaimed "tariff man" is unlikely to abandon his favorite policy tool. A ruling that narrowed the scope of Section 301 would still enable Trump or a future president to use the statute in appropriate narrower circumstances consistent with its past use. Should Trump, for example build a strong Section 301 case against individual countries that engage in currency manipulation, and document the cost to the U.S., USTR could impose appropriate tariffs in response. Trump could also rely more heavily on other, narrower tariff authorities, such as anti-dumping and countervailing duty tariffs, if his agencies can show facts that meet statutory requirements.

Then there is the option that America's founders envisioned for a President who wanted to raise taxes: Trump could ask Congress to overhaul America's tariff regime. While Congress by all accounts seems unlikely to enact new tariff laws in the current polarized political environment, there are bipartisan proposals in Congress to, for example, establish a broad new baseline U.S. tariff. Irrespective of the policy arguments regarding such a proposal, Congress undoubtedly has the constitutional authority to enact it.

Trump campaigned on tariffs and his win in 2024 gives him the moral and political authority to raise tariffs within the bounds of the law. A single electoral win, however, does not empower a President to upend the Constitution's separation of powers or usurp Congress's authority over trade. Potential challengers to Trump's new Section 301 tariffs have strong arguments on their side, and the courts should continue to insist that Trump follow the law when he imposes tariffs, rather than rewrite them without Congress's approval.

6/14/1810: Justice Ward Hunt's birthday.

Show Comments (213)

An upward trending chart over the Canadian flag — Illustration: Lex Villena

Few Americans have taken much notice, given the vast amount of other political news. But two Canadian provinces - Alberta and Quebec - may be holding referendums on secession in the near future. If the votes are held, the secessionists are likely to lose in both cases. But these events are still of interest to students of federalism and secession, and to anyone who cares about the future of America's northern neighbor and one of our most important allies. And history shows that secession movements often persist even after defeat in a referendum.

In Quebec, the separatist Parti Quebecois (PQ) is leading in the polls and favored to take power in the upcoming October provincial election. They promise to hold a secession referendum if they prevail. Their victory is far from completely certain, given Quebec's complex five party system, and the closeness of the polls. The PQ, the Quebec Liberal Party and the current ruling party - the Coalition Avenir Quebec (CAQ) - are all within a few points of each other in recent polls.

If the PQ wins, they may only get a minority government (one that has a plurality of seats in the legislature, but not a majority), which will make it difficult for them to pass a law to hold the referendum. Nonetheless, a PQ majority government could well happen - about a 35% chance according to data compiled by prominent Canadian polling analyst Philippe Fournier at his Canada 338 site.

If the PQ does manage to win the election and hold a secession referendum, the "no" side is highly likely to win, as happened with two previous PQ-led secession votes in 1980 and 1995. Recent polls indicate "no" leads by about a 2-1 margin. Nonetheless, holding a referendum would bring the issue of Quebec secession back to the center of Canadian politics, and increase tension between the provincial and federal governments.

In Alberta, the United Conservative Party (UCP) government of Premier Danielle Smith has approved a voter petition to place a secession-related referendum question on the ballot this fall, scheduled for a vote on October 19. However, the question at issue is not a straightforward up-or-down vote on secession. It actually asks voters to opine on the following: "Should Alberta remain a province of Canada, or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada." This is essentially a referendum on whether to hold a referendum!

A recent Angus Reid Institute poll finds that Albertans would reject the above question by a 60-35 majority, while they would reject an unequivocal secession vote by a larger 67-30 vote. Some other polls find even larger majorities opposed to straightforward secession. Evidently, some voters either find the official question confusing or (less likely) want to have a vote on secession even though they plan to vote "no."

The motives behind the two secession movements are very different. Quebec secessionism is a classic ethno-nationalist movement motivated by a desire to create a majority-Francophone nation (Quebec is Canada's only majority-Francophone province). The CAQ government in power for the last eight years (which favors promoting Francophone nationalism without secession) has enacted repressive laws restricting the use of the English language in public and commercial spaces, and constraining religious freedom for many types of public employees and professionals. These laws likely violate the Canadian Constitution's Charter of Rights and Freedoms; but the Quebec government has invoked the Notwithstanding Clause of the Constitution to block judicial review. American critics of judicial review would do well to take a good look at the history of the Notwithstanding Clause, and think about what kinds of repressive policies might be established in this country if we had something similar. Quebec secessionists believe these measures are insufficient and that only independence will enable their government to do everything needed to promote Francophone dominance.

By contrast, the Alberta secession movement is almost entirely based on ideological and economic concerns. There is little or no ethnic or cultural difference between Albertans (who are overwhelmingly English-speakers) and the people of other Anglophone-majority provinces. But Alberta is Canada's most conservative province, and secessionists argue an independent nation would be able to institute more conservative policies, especially on economic issues. In addition, secessionists are angry that the Canadian government imposes substantial net fiscal transfers on Alberta, taking out more in tax revenue than it gives back (Alberta is Canada's wealthiest province), and that the federal government is often unwilling to authorize construction of pipelines and other infrastructure needed to facilitate export of Alberta's oil and mineral wealth (the province is a major oil producer).

Not surprisingly, Alberta secessionists are overwhelmingly UCP supporters (and supporters of the Conservative Party of Canada in federal elections). This is an ideological movement, not one based on language and ethnicity.

Regular VC readers will not be surprised to learn that I have more sympathy for Alberta secessionism than the Quebec version. Elsewhere, I have explained why ethno-nationalism is a terrible ideology and a menace to liberty and prosperity. Quebec nationalism is no exception. Quebec's laws on language and religion are repressive, illiberal, and deeply unjust. Secession would likely make the situation worse. Bad as it is, the Notwithstanding Clause does not allow the provincial government to get around all constitutional constraints (it only applies to some constitutional rights, but not others). An independent Quebec would be free of such inhibitions.

Ethnic secession movements can potentially be justified in situations where the group in question is a victim of systematic oppression by the central government of the country it seeks to leave. But, at least in recent decades, Francophone Canadians have not been systematically oppressed by the Canadian federal government. The government does not prevent them from speaking their language, practicing their culture and religious beliefs, and so on. Nor does it subject them to anything remotely resembling systematic discrimination (e.g. - in hiring for government jobs or provision of public services). The main goal of Quebec secessionists is not to escape oppression at the hands of Canada, but to be more free to oppress ethnic, linguistic, and religious minorities within Quebec.

I used to think that, free of fear of domination Canada's Anglophone majority, an independent Quebec might be more tolerant of minority groups than the provincial government is currently. But the more I learn about nationalist movements, the more implausible that conjecture seems. Giving them greater power is unlikely to foster restraint. Much the contrary.

In addition, while Quebec separatists differ among themselves on many issues, they tend to be economic statists (this is a general tendency of nationalist movements). Thus, an independent Quebec is likely to restrict economic liberty as well as freedom of speech and religion more than is currently the case.

By contrast, I believe there is at least some merit to Alberta secessionists grievances about fiscal transfers and pipelines. In addition, an independent Alberta might pursue more free-market economic policies than it has currently, as part of Canada. Western Canadian conservatism is more libertarian than the US version, and has much less of the social conservatism and ethnic nationalism that has - especially in recent years - deformed the political right in the US. Nor does it seem likely that an independent Alberta would oppress ethnic and religious minorities in the way an independent Quebec probably would. Thus, it is possible that an independent Alberta would be freer and more prosperous than it is currently. Obviously, "freer" here means "freer" in libertarian terms. Left-liberals and socialists might see this potential shift as a negative rather than a positive.

In previous writings (e.g. here and here), I outlined some criteria for assessing the morality of secession movements. As a general rule, secession is defensible if a regional majority (or perhaps a supermajority) supports it, the new government will respect basic human rights (or at least violates them less than the previous rulers), and the new regime is overall no worse than the old central government. Quebec secessionism clearly flunks this test. Alberta secessionism - if it were to get majority support - might be able to pass.

Nonetheless, I have various reservations about Alberta secessionism, as well. I am skeptical that independence would alleviate the fiscal and pipeline issues; it might even make them worse. If the Canadian federal government is often unwilling to authorize pipelines and other infrastructure for Alberta now, they are likely to be even less accommodating if Alberta becomes an independent state. And landlocked Alberta cannot export its goods except through Canada or the US. While independent Alberta would save on fiscal transfers to other provinces, establishing a fully independent state would likely result in various new expenditures to the extent that the province's current Conservative government (which opposes secession) estimates there would be $400 billion Canadian in transition costs and $25 to $50 billion Canadian in ongoing annual expenses (at current exchange rates a Canadian dollar is about $0.70-0.75 US dollars). Even if the true costs are only a third or a half this much, that's still a lot. The Alberta government's current total annual budget is about $79.3 billion.

In addition, both Albertans and other Canadians would suffer if there is no longer free trade and free migration between Alberta and the "rump" Canadian state. And, given the bitterness likely to be engendered by a successful secession, there is no guarantee that free trade and freedom of movement will continue.

From a US perspective, I worry that a successful secession movement would make Canada a weaker and less effective ally. Unlike our current president, I think a strong Western alliance is essential.

Unless polls are wildly wrong, neither Alberta nor Quebec secession is likely to prevail anytime soon. But, even if both movements lose their respective upcoming referenda (or the Quebec one doesn't get held), the movements themselves might well persist. Quebec secessionists have continued as a significant movement, despite two previous referendum defeats. Scottish secessionism persists despite defeat in the 2014 independence referendum. And there are many similar examples in other countries. Once the secessionist genie is out of the bottle, often only crushing military defeat (as with the US Confederate secession movement) seems able to definitively guarantee its elimination. For that reason, these two Canadian movements could continue to have a significant political impact, even if they don't actually succeed anytime soon.

In sum, Canada's two secession movements raise a variety of important issues, with implications beyond these specific cases. And Americans and other non-Canadians interested in federalism, secession, and the future of the Western alliance would do well to pay them some attention.

NOTE: Some might find it inappropriate for an American to comment on Canadian politics. I disagree. Canadians and other non-Americans often express views on US politics. And they have every right to do so. Political analysis should be judged on its substance, not on the background of the author. In addition, for reasons noted above, Canadian secessionism potentially impacts the US in various ways, and raises broader issues about the morality of secession movements that Americans and others have reason to take an interest in. FWIW, I am a longtime academic expert on federalism and secession-related issues, and I know French, as well as English. Thus, I think have the necessary qualifications to write about these issues. Whether the commentary is any good or not, is for others to judge.

The Pentagon recently caused a controversy by revising its list of religious affiliation codes for service members and failing to designate the Church of Jesus Christ of Latter-day Saints as Christian. The Pentagon found a clever way out, but the controversy reveals a deep question for liberalism: are neutral religious classifications ever possible in a deeply pluralist society?

The controversy began when the Pentagon reduced its list of religious affiliation codes from more than 200 entries to 31. The purpose, it explained, was administrative. Service members identify their religious affiliation or preference, and the military uses that information, among other things, to help chaplains understand the religious composition of units and provide appropriate support. Streamlining made things more efficient.

Some sort of religious classification seems unavoidable here. A military that takes religious accommodation seriously must have some idea of the religious needs of its personnel. The problem is that, in a religiously diverse society that expects the state to be neutral among religions, classifications are never simple.

The first version of the revised list identified many groups as "Christian": Catholics, Baptists, Lutherans, Methodists, Presbyterians, and others. But the Church of Jesus Christ of Latter-day Saints was listed separately, without the label.

Latter-day Saints objected. The LDS Church understands itself as Christian. And speaking sociologically and culturally, it is surely correct to describe Latter-day Saints as Christian.

At the same time, there is a real theological issue. Latter-day Saints do not accept the doctrine of the Trinity as Catholics, Orthodox Christians, and most Protestants understand it. For that reason, among others, many traditional Christian communions would hesitate to describe Latter-day Saints as Christian in the doctrinal sense. The Catholic Church, for example, does not recognize LDS baptism as valid Christian baptism.

The point can be turned around. Latter-day Saints do not understand themselves simply as another denomination. They understand their church as the restoration of the original Church of Jesus Christ. That claim implies that other Christian bodies, however sincere, do not possess the fullness of restored truth and authority.

So the government had stumbled into a real religious dispute. The Pentagon responded to the controversy by removing the word "Christian" from the list altogether. That clever response manages the problem but doesn't eliminate it. In fact, the problem never can be eliminated completely. Government must classify religion all the time: for tax purposes, for religious accommodation claims, for chaplaincy, for prisons, hospitals, and the military. Yet every classification creates potential problems. Classify too broadly, and you flatten important differences. Classify too narrowly, and administration becomes impossible. Use theological labels, and the state risks taking sides. Avoid them, and some groups may feel their self-understanding has been denied.

Let's take a couple of other examples. The revised list contains single designation, "OX," for Orthodox Christians. Presumably, this category conflates Eastern Orthodox Christians (Greeks, Russians, etc.) with Oriental Orthodox Christians (Armenians, Copts, etc.). But these two families have been out of communion for 1700 years, and strict adherents to each tradition would deny that the other is really "Orthodox."

The list also has one designation, "EP," for "Episcopal/Anglican." But in the US, many Anglicans specifically differentiate themselves from Episcopalians, whom they see as hopelessly unorthodox. And vice versa. Many in each tradition would be uncomfortable being grouped together with the other.

One could go on. The list has one designation, "JU" for Judaism, even though Judaism has many expressions, and one, "IS," for Islam, even though Islam contains many traditions. To outsiders, these internal divisions--like the divisions between Eastern and Oriental Orthodox and between Episcopalians and Anglicans--seem unimportant. But to insiders, they may matter greatly.

In a more religiously homogeneous society, questions like these would be less visible. But they are very salient in a pluralist society like ours. In a religiously diverse society, even neutral religious designations can be very problematic. I discuss the Pentagon controversy, and what it reveals about liberalism, in a new Legal Spirits Short Take, which interested readers can find here.

6/13/1977: Justice Tom C. Clark dies.

Show Comments (264)

US Supreme Court — The Supreme Court Justices (2023). (Pool/ABACA/Newscom)

In a recent Lawfare article I outlined the case against "packing" the Supreme Court, and explained why the Court's recent decision in Louisiana v. Callais doesn't justify such a measure. Court-packing is generally understood as an attempt to alter the Supreme Court's ideological balance by increasing the number of justices. Thus, most current Democratic proposals would transform the current 6-3 conservative majority on the Court into a 7-6 progressive majority, by adding four justices.

But there are various non-packing rationales for increasing the number of Supreme Court justices. I sometimes see them brought up in response to my criticisms of court-packing. In this post, I assess the most common of these arguments. In general, I think they are relatively weak. But, to the extent they have merit, they could potentially be addressed without packing the court, by means that ensure the new - larger court - would have roughly the same ideological balance as the old one. That would prevent the slippery slope escalation caused by court-packing would be likely to lead to destruction of judicial review. If you want to expand the Court, but oppose such compromise measures, that's a strong sign that court-packing - not these other issues - is your main objective.

If your main reason for wanting to expand the court is to change its ideological balance, the points made in this post are unlikely to sway you (check out my various critiques of court-packing instead!). But if you do care about these other issues, read on.

The most often heard non-packing justification for increasing the size of the Court is the idea that we need to have thirteen justices because we now have thirteen appellate circuit courts. Thus, we should have one Supreme Court justice per circuit, as was the norm throughout much of the nineteenth century. For example, potential 2028 Democratic presidential candidate Pete Buttigieg recently stated that "Nowhere in the Constitution does it say that there have to be nine Supreme Court justices… It just takes a readiness to set up a court that fits this country. We could have 13 seats matching the district structure of the federal judiciary."

The problem with this argument is that, as Josh Braver documents in an important article, the nineteenth century expansions of the size of the Supreme Court to match the number of circuits was primarily a result of the policy of "circuit riding," under which Supreme Court justices routinely heard cases as circuit judges on "their" lower court. Circuit riding was a difficult and time-consuming responsibility, and one justice could not readily do it for two circuit at once (especially given relatively slow nineteenth century transportation). But mandatory circuit riding was abolished by Congress in 1891. Today, the supervisory responsibilities of Supreme Court justices with respect to their assigned circuit courts are fairly minimal. Thus, it is not a great imposition for some of the justices to have to oversee two or more circuits rather than just one one.

Currently, two justices - Alito and Kavanaugh - each oversee two circuits, while Chief Justice Roberts handles three. I am skeptical either that this is an excessive burden on these justices or that it gives them way too much power relative to the other six. But if you disagree, there's a simple solution that does not create opportunities for court-packing: increase the number of justices to 13 (one per circuit), but let the party that does not control the White House select two of them. In that way, both the conservative and liberal blocs on the Court would add the same number of justices.Thus, no packing, and no slippery slope escalation.

There may be some moderately complicated political maneuvering required to do this; the president and his party would have to credibly commit to nominating and confirming two justices chosen by the "out" party. But such political deal-making is common place. One way to do it would be for the president and the opposition party to agree on the four names in advance, and include a provision in the expansion law that ensures it will only go into force if all four of these individuals are nominated and duly confirmed within a certain period of time (say, within one year of the law's enactment).

A second possible non-packing rationale for court expansion is the idea that we need more justices so the Supreme Court can hear more cases. Justice Brett Kavanaugh and a number of outside critics of the Court believe it hears way too few cases, and should take many more. Perhaps they are right. I don't have a strong view about what the optimal total number of Supreme Court cases, though there are certainly some specific areas where I would like to see the justices do more (e.g. - constitutional property rights cases).

But even if Court should take more cases, it is not clear that it needs more justices to do so. The Court currently hears only about fifty to sixty cases on the regular docket per year, including just 56 last year (not counting "shadow docket" cases that don't get full briefing and oral argument). But, as recently as the early 1980s, it was hearing 160 cases per year. And there were only nine justices then, too! Hearing more cases would actually be easier today than it was then, since modern technology (most notably specialized electronic databases and now AI) makes it easier to quickly research and analyze relevant legal issues.

The reason why the Court hears so few cases is not because we have too few justices, but because the justices have near-total control over their docket, and (with, perhaps, a few exceptions) they don't want to take more. There is no guarantee this would change merely by increasing the size of the Court. The new justices may be happy hearing relatively few cases, just like the current ones. Fewer cases means more free time and longer summer vacations! Who wouldn't want that?

If Congress wants the justices to hear more cases, it could more effectively achieve that goal by increasing the scope of the Court's mandatory jurisdiction. Before the enactment of the Judges Act of 1925, the Supreme Court had a sizable mandatory jurisdiction, and thereby heard more cases. Congress could repeal or modify that legislation, thereby increasing the justices' workload.

There is some irony here. If, like many left-liberals, you think the Court does a terrible job on most important cases, you may not actually want them to hear more! Perhaps it would be better if they decided even fewer issues, thereby leaving more under the control of lower federal courts (which are, on average, somewhat more liberal than the present Supreme Court majority).

Even if you do want the Court to hear more cases, and you are persuaded that increasing the number of justices is the best way to achieve that result, it can be accomplished without changing the Court's ideological balance. Simply adopt the ideologically balanced expansion outlined above. If you think 13 justices are not enough, the same approach can be used to increase to 15 or even more (with 15, the president's party and the opposition party would each get to choose three new justices).

Finally, it is sometimes argued that a larger court would lead to a higher quality of deliberation and perhaps a greater diversity of experience among the justices. I am by no means sure this is true. For example, it does not seem like bigger state supreme courts make better decisions, on average, than smaller ones. The same is true for en banc circuit court rulings in circuits with more judges, as opposed to those on circuits with fewer judges. At present, the total number of judges in a circuit varies from six in the First Circuit, all the way up to 29 on the Ninth. I see little, if any, correlation between numbers and quality here.

On the other hand, I am also not certain that nine is the optimal number of justices, as opposed to 11, 13, or 15. Once again, however, the number can be increased without changing the ideological balance, by the procedure already described.

As noted in my Lawfare article and other writings, I am far from an uncritical admirer of the current majority on the Court, and I think they get some important issues wrong. I oppose court-packing because it would make things much worse than they are now, not because the status quo is anywhere near ideal. I also favor a number of reforms that do not require changing the number of justices, most notably term limits.

I am not endorsing the status quo here. This post merely shows that we probably don't need to expand the size of the court to achieve various other improvements in the Court's work product. And to the extent that expansion is desirable, it can and should be done without creating opportunities for court-packing.

From the long (20K-word) decision of the Washington Supreme Court Thursday in In the Matter of Disciplinary Proceeding Against Feyissa, written by Justice Sheryl Gordon McCloud:

After a 12-day disciplinary hearing, a hearing officer (HO) concluded that Shakespear N. Feyissa committed six counts of misconduct. The presumptive sanction for most of those counts was disbarment…. The Disciplinary Board (Board) of the Washington State Bar Association (Bar) unanimously adopted the HO's disbarment recommendation. Feyissa appeals….

Attorney Shakespear N. Feyissa was born in Ethiopia. He immigrated to the United States at around age 17….

There's a lot going on in the case, and you can read it for yourself here. But here's one brief passage that particularly struck me:

Feyissa claims that the HO refused to consider cultural differences. But the record contradicts that assertion ….

As stated above, Feyissa's friend testified about cultural differences between Ethiopian and Western cultures relating to norms in negotiations. The witness opined that "in Ethiopia, 'If you tell a lie but everybody's happy, then you didn't do anything wrong.'"

The HO clearly did not refuse to consider this testimony or to evaluate its impact on the case, as evidenced by her conclusion of law on the issue; the HO made the sustainable legal conclusion that this cultural difference "does not exempt Respondent from his professional obligations under the RPCs, and thus cannot be accepted as a reason to mitigate Respondent's conduct as a lawyer."

Here are the passages from Feyissa's counsel's briefs that raise the argument to which the supreme court was apparently referring:

Legal Ethics

Show Comments (14)

From a Justice Department press release Wednesday:

"… In the dead of night, masked and hooded defendants allegedly threw noxious chemicals through the windows of families' homes and taped demand letters to their front doors….," said Jennifer Runyan, Special Agent in Charge of the FBI Detroit Field Office.

After the October 7, 2023, Hamas terrorist attacks in Israel, the defendants and unindicted conspirators enacted a series of coordinated "actions" threatening University of Michigan leaders, law enforcement, and businesses. Seemingly prompted by their perception of the University of Michigan's and other victims' purported financial support of Israel, the conspirators insisted publicly that they "must escalate, mobilize, and organize to demand divestment by any means necessary."

According to the indictment, on October 20, 2023, the defendants publicly posted a list of demands on social media directed at University of Michigan leadership. Among the demands, they required the University to make a "full and complete divestment" from Israel and any businesses supporting Israel. Unsatisfied by the University's response, the defendants "prepared to take action" against the leadership by what they called "autonomous actions," which included forcibly entering and occupying University of Michigan buildings, defacing buildings, and blocking and disrupting events on campus. They also posted threats on the internet that included photos of their "autonomous actions." …

The defendants also allegedly held meetings to identify targets of their "autonomous actions." They used the internet to research personal addresses, photographs, political and social connections, business ownership, and other personal details of the targets.

They also discussed methods by which to harm the targets and their families, including poison, bombs, and psychological torture. For example, on May 21, 2024, [defendant Paige Elizabeth] Feyock and then-medical student [defendant Ahmet Kerem] Korkaya agreed to "kill," "torment," and "terrorize" their targets and families. Referring to one victim, Korkaya stated his "entire family" was on his "hit list" Feyock added that they should "get" the "kids" of two victims. Korkaya, referring to another victim, stated, "I'm gonna be the dirtiest f------- doctor ever / I'm gonna be [victim's] doctor / poison her a-- slowly." Feyock agreed, "We need people following [victim] / get into that house then burn it down."

Free Speech Religion and the Law

Show Comments (4)

This story keeps getting weirder. @Jimmy_Esq flags the fact that Judge Ross writes like a toddler. The problem is worse.

Here is her signature on the May 29 letter:

That is fourth grade penmanship.

And here is her signature on the June 11 letter:

That is an adult's signature.

And here is Ross's digital signature from the Raffensperger case (an order she certainly didn't read):

The signatures on May 29 and June 11 are totally different. The May 29 signature includes "Judge" as a her first name. Who does that?? In the second letter has initial "E."

The letters from June 11 are far more angular, and match the type of letter in her standard digital signature. I realize I have some expertise in authenticating the provenance of Alexander Hamilton's signatures, but this one wasn't too hard.

I suspect Judge Ross didn't even sign her first, completely unremorseful letter. She couldn't even bring herself to put her name on it. It is clear she asked some subordinate to sign it for her, and that person actually signed it "Judge Ross."

Judge Ross should be ashamed of herself. She materially breached the terms of her private reprimand many times over. Impeach her.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! Art Yatsko wants to build a modest home in North Port, Fla. for his retirement. And though his lot is in a neighborhood comprised entirely of single-family homes, the city recently rezoned the area to promote commercial uses. Art could build a shooting range or a nightclub, or he could seek permission to build a duplex, but he is absolutely downright forbidden from building a single-family home. Which is arbitrary, irrational, and dishonorable, so Art has teamed up with IJ to sue. Click here to learn more.

New on the Short Circuit podcast: Suing a probation officer and moth-eaten precedent.

This Third Circuit case has a lot of familiar parts: a pro se litigant squaring off against gov't lawyers, complaints of constitutionally insufficient notice, and ultimately a finding of civil contempt. Except here it's the gov't arguing that the pro se party didn't provide enough notice, and let's just say the contempt order doesn't run against the guy you all thought it would.
Federal inmate is beaten to death by other inmates; despite emergency alarm's being triggered and live video footage of dodgy activity, guards inexplicably fail to spring into action until hours after he died. Third Circuit (unpublished): The Bureau of Prisons has an administrative-remedy program to deal with prisoners' grievances, which means that we courts shouldn't imply a right to bring a constitutional claim under Bivens. What? Dead inmates can't actually use the administrative-remedy program? Because they're dead? No matter. Case dismissed. Read More

Some excerpts from Judge Lewis Liman (S.D.N.Y.) long opinion today in Wayfarer Studios LLC v. Lively:

[Blake] Lively filed a complaint with the California Civil Rights Department ("CRD") against [Justin] Baldoni and his co-defendants, the Wayfarer Parties, alleging, among other things, that Baldoni and others sexually harassed her on the set of the Film {It Ends With Us} and that the Wayfarer Parties retaliated against her for raising complaints about that harassment by launching a smear campaign to tarnish her reputation….

Lively then sued over that alleged behavior, and the Wayfarer Parties "counter-sued, asserting claims, including defamation, against Lively and others for making statements that the Wayfarer Parties" engaged in or tolerated "sexually inappropriate conduct" or retaliation. The Court rejected that counterclaim, on the grounds that

"the fair report privilege … precluded the Wayfarer Parties from bringing a defamation claim against Lively for providing a copy of her CRD complaint to the New York Times,"
"the Wayfarer Parties had insufficiently alleged that text messages Lively may have provided to the Times were defamatory," and that
they hadn't adequately alleged "that Lively was responsible for any statements made by her husband Ryan Reynolds" "or publicist Leslie Sloane."

In May, the parties settled all their claims, but expressly left open whether Lively can recover attorney fees and damages under Cal. Civil Code § 47.1. (They also waived their right to appeal from any such determination.)

Section 47.1 … [seeks] to shield "survivors of sexual assault, harassment, and discrimination from defamation lawsuits"—and, in particular, the burdensome and invasive discovery process those lawsuits often entail—"by clarifying that claims made in good faith are a form of protected speech." [It also seeks] to compensate survivors for successfully defending themselves against meritless and retaliatory defamation suits by permitting them to recover attorneys' fees and damages incurred as a result of the suits.

To accomplish these goals, the law establishes that "[a] communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination is privileged under Section 47." (Section 47 provides for a number of other defamation privileges, including the fair report privilege.)

Section 47.1 provides that prevailing defendants in such defamation cases (and recall that Lively was in effect a defendant as to the counterclaims) are entitled to reasonable attorney's fees as well as treble and punitive damages.

Free Speech Libel

Show Comments (2)

From a filing in one of the same plaintiff's other cases.

From today's decision by Judge Steven McAuliffe (D.N.H.) in Doe v. Trustees of Dartmouth College (for an earlier similar decision related to Doe's lawsuit against Penn, see here):

"Litigation by pseudonym should occur only in exceptional cases." Indeed, a "strong presumption" exists against proceeding by pseudonym, which "dims the public's perception of the matter and frustrates its oversight of judicial performance." That presumption, however, is rebuttable….

Doe alleges that he was denied admission to Dartmouth's business school because of his "non-Jewish White ethnic heritage." He says that despite his "outstanding qualifications," his application was rejected. He further asserts that Dartmouth excludes nearly all "non-Jewish Whites" from admission, unless the applicant is female, "queer" or a "veteran[] of the U.S. armed forces," because those applicants "pose no threat to the Jewish Supremacists." According to Doe, Dartmouth's admissions decisions are part of a greater plan "drafted by the Jewish Supremacists with the express goal of exterminating non-Jewish Whites."

Doe claims that he will be subject to a "significant risk of professional retaliation and social stigma within his academic and professional community, causing irreparable harm to his career and personal well-being" should his identity be publicly disclosed (presumably due to his application's rejection, but perhaps due to his litigation theories). He goes on to argue that "[p]ublic identification in a high-profile discrimination suit against a major institution like [Dartmouth] carries a significant risk of 'blacklisting' from potential future employers and professional collaborators."

Free Speech Right of Access Anti-Semitism

Show Comments (8)

From Matthias Bastian (The Decoder) Tuesday:

Landmark German ruling declares Google's AI Overviews are Google's own words and makes it liable for false answers ….

The Regional Court of Munich hit Google with a temporary injunction barring the company from spreading false claims about two Munich-based publishers through its AI-generated search overviews (case no. 26 O 869/26). The court classified Google as a direct infringer because the "AI overview" is its own content, not just a list of search results.

Google's AI overviews had falsely tied two publishing companies to scams, subscription traps, and shady business practices for certain search queries. According to the court, the AI mixed up information about other, genuinely sketchy companies with the plaintiffs and drew connections that didn't appear in any of the linked sources. The publishers sent Google a cease-and-desist letter, but Google didn't respond appropriately….

Google's AI overviews work nothing like traditional search results, the court argues. The AI rewrites and judges results "in its own words and according to its own structure," the ruling says. In the case at hand, for example, it opened with confident claims like "Yes, [company] is known for dubious business practices," then built its own structure with a summary, red flags for the alleged scam, and tips for users.

The court also found that the AI overview made claims "that are not even made in the search results." None of the linked sources drew any connection between the plaintiffs and the shady companies the AI mentioned. The court called these "the defendant's own statements." …

Large Libel Models Free Speech Libel

Show Comments (12)

Earlier, I offered some high-level thoughts on the latest episode of As the Couch Turns. Here, I want to drill down into the details.

First, the Eleventh Circuit's decision to make this reprimand private must be contrasted with the Ninth Circuit's decision to make Judge Nelson's investigation public. I agree with Arthur Hellman that the Ninth Circuit had the authority to make this proceeding public, but the Chief Judge was not obligated to. Judge Nelson has been charged with minor offenses. Given his lack of criminal history, the charges are likely to be dismissed. All of this may come to nothing. But now there is a permanent statement from the Ninth Circuit that Judge Nelson may have engaged in misconduct.

The Eleventh Circuit made the incomprehensible decision to make the reprimand private, but include so many facts that her identity could be readily determined. I am inclined to follow Hanlon's Razor here to explain the explanation. If it was intentional, then the members of the Judicial Council may have engaged in misconduct to bypass the confidentiality rules by subterfuge.

Second, Judge Ross sent her three-sentence apology letters on May 27, 2026. She did this after being given a sweetheart deal that not even Alex Acosta would have approved. And she spit in the face of her colleagues. She thought she could squeak by without offering any remorse, even though her identity was widely known.

Third, Judge Ross's brazenness forced her brave law clerks to once again reach out to the judicial process that had failed them before. They told the Judicial Council they "do not believe the letters of apology we received from Judge Ross comply with the remedial measures recommended by the Special Committee and adopted by the Council. Specifically, the apologies fail to 'make clear to the recipient the sexual misconduct for which the judge is apologizing.'"

On June 10, Chief Judge Pryor then gave Judge Ross a chance to "respond to the above allegations and state whether you failed to send adequate letters of apology to your former clerks." This offer to correct the record, yet again, is inexplicable. There is nothing to explain. She failed to do what she promised she would do. Of course the rules permit "appropriate corrective action," but Judge Ross is not a first-time offender. She has proven herself to be an inveterate liar who abuses process to save her skin. No law student or law clerk or law partner would ever be given this many chances.

Judge Ross (or ChatGPT) then wrote an apology letter to the three clerks.

"I am writing to you for a second time to convey my deepest apologies for my harmful, offensive, and unprofessional behavior that made your clerkship an unpleasant experience. My initial letter was entirely deficient, as I did not take full accountability for my actions, and I failed to give you the apology that you deserve."

Ross's chambers provided this letter to Bloomberg Law (and probably others).

The following day, Judge Pryor wrote back to say he would not identify a new complaint:

Based on my review of your new apology letters, my disclosure of the June 10 inquiry to The New York Times, and your consent to disclose the apology letters to the New York Times, I have determined not to identify a new complaint under Rule 5.

I am very confused by this chronology. First, the Eleventh Circuit Judicial Council and the JC&D Committee agreed to make the reprimand private. But the Chief Judge, acting by himself, decided to publicize the matter to the New York Times? How does Chief Judge Pryor have this authority? Did the other (unnamed) members of the Council agree to this plan? Moreover, it seems that Pryor decided not to investigate Ross further based on her making her private reprimand into a public reprimand. How does he have that authority? Judge Ross would have never consented to any reprimand if it was public. Judge Pryor nullified the cornerstone of the Judicial Council's agreement with Judge Ross. Finally, she already engaged in misconduct by not following the terms of the agreement. There was no need for further fact-finding.

This entire situation stinks, and continues to stink more by the day.

Judge Pryor's conduct here has not been exemplary. I say this with some pause, because I have long respected and worked with Judge Pryor on many matters. The problem speaks to a broader issue: Chief Judges have vast amounts of unstated powers. And absolute power can be wielded in improper fashions. Vindictive chief judges (like Kimberly Moore) can rule their circuits like petty tyrants. Magnanimous chief judges (like Bill Pryor) can provide too solicitous treatment of offending judges.

Congress needs to revisit this entire regime.

The Volokh Conspiracy

Justice Barrett v. Justice Jackson On Textualism

"American Diabetes Association Ejects Researchers from Conference for Sharing Editorial from Its Own Journal"

The Courts Should Rein in Trump's Proposed Section 301 Tariffs as Well

Today in Supreme Court History: June 14, 1810

Open Thread

Two Potential Upcoming Canadian Secession Referenda and the Broader Issues they Raise

Religion in the Military

Today in Supreme Court History: June 13, 1977

Open Thread

Assessing Non-Packing Rationales For Increasing the Size of the Supreme Court

Cultural Difference "Cannot Be Accepted as a Reason to Mitigate" Ethiopian-Born Lawyer's Dishonesty-Related Misconduct

"Eight Conspirators … Threatened University of Michigan Officials, Businesses, and the Jewish Federation"

Judge Ross Did Not Even Sign Her First Apology Letter

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Blake Lively Entitled to Attorney Fees (But Not Punitive Damages) in Justin Baldoni et al.'s Libel Lawsuit Against Her

Our Friend with the "Attractive, Busty Jewess" Problem Denied Pseudonymity Again, in Case Against Dartmouth

Large Libel Models Ruling in Germany, Allowing Liability Against Google AI

The Latest Chicanery in Judge Ross's Case

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

I WANT FREE MINDS AND FREE MARKETS!

I WANT TO FUND FREE MINDS AND FREE MARKETS

SUPPORT HONEST JOURNALISM

PUSH BACK

HELP KEEP MEDIA FREE & FEARLESS

STAND FOR FREE MINDS

PUSH BACK AGAINST SOCIALIST IDEAS

FIGHT BAD IDEAS WITH FACTS

BAD ECONOMIC IDEAS ARE EVERYWHERE. LET’S FIGHT BACK.

JOIN THE FIGHT FOR FREEDOM

BACK JOURNALISM THAT PUSHES BACK AGAINST SOCIALISM

FIGHT BACK AGAINST BAD ECONOMICS.