Amnesty International USA and the ACLU issued a report last month purporting to document what they describe as an illicit crackdown on "pro-Palestine" expression since October 7. Needless to say, I think the problem has primarily been the opposite, university officials and local politicians and prosecutors being far too indulgent of illicit behavior by Hamasnik protestors, including vandalism, threats, disruptions, harassment and violence.
Be that as it may, the report makes a big to-do over the fact that universities have cracked down on illicit behavior by anti-Israel activists in ways that constitute disparate treatment. In particular, the report suggests that many universities that have a history of being extremely lax about disciplining rule-breaking student protestors in other contexts have been much harsher toward anti-Israel protestors.
There is some truth to that conclusion, but I don't find the claim that alleged viewpoint discrimination required universities to stand down, for three interrelated reasons.
First, arguing some sort of estoppel for cracking down on rule-breaking is a bad legal argument. "But your honor, the government did not prosecute the last ten rapists" isn't going to get you far.
Second, the failure of universities to properly punish misbehavior by, say, climate activists was itself viewpoint discriminatory. One can hardly imagine, say, Columbia University, acting with equanimity if anti-abortion or anti-affirmative action protestors engaged in the illicit shenanigans that leftist protestors have engaged in.
And finally, civil rights law require universities to take action against illicit hostile environments. Climate change activists may have broken university rules, but they did not intimidate, harass, and engage in violence against any identifiable group protected by civil rights laws. And that's a legally crucial difference. I elaborated on these points in a recent article:
From Outlaw v. Outlaw, decided in 2019 by Judge Katharine von Ter Stegge (Ore. Cir. Ct.) but just posted on Westlaw; the lawsuit was brought by a woman against her ex-husband and her ex-mother-in-law, all with the last name Outlaw:
In April 2017, [mother-in-law] arrived at [the then-wife-and-husband's home] in order to provide emotional support to [husband].
In June 2017, [husband] filed Petitions for Dissolution of Marriage and a Temporary Protective Order of Restraint against Plaintiff. Plaintiff then filed a Motion requesting exclusive use of the [home]. On approximately July 14, 2017, Defendant [mother-in-law filed a Petition for Restraining Order to Prevent Abuse of Elderly Person or Person with Disability ("EPPDAPA Petition") against Plaintiff as the Respondent.
The EPPDAPA Petition included allegations that Plaintiff verbally abused [mother-in-law], stole her property, and antagonized her through late-night use of laundry machines adjacent to her living quarters, including allegations that Plaintiff ran the dryer with sneakers in it during sleeping hours. [Mother-in-law] also alleged that Plaintiff rendered the bathroom she was using non-operational by forcefully removing pipes, the toilet, and the door to the bathroom.
On July 21, the EPPDAPA Petition was granted on a temporary basis pending a contested hearing. The resulting EPPDAPA restraining order ("Restraining Order") contained various restrictions on Plaintiff. Plaintiff was restricted from being within 150 feet of [mother-in-law] or making any contact with her. Plaintiff was also ordered to move from the Hassalo House and to remain at least 150 feet away from it. Plaintiff was served with the Restraining Order and left the house immediately.
Perhaps the most wrongheaded analysis in the Report is this:
Because the government may not "conscript private institutions to act as censors by dangling the threat of civil liability for a hostile environment," the First Amendment "'demands substantial deference to a college's decision not to take action against' students who engage in expressive activity on matters of public concern."
In other words, courts must "'defer to colleges' decisions to err on the side of academic freedom.'"
Whereas a grade school's failure to take action against a student who sexually harasses a classmate might well support an inference of deliberate indifference to that harassment—because any reasonable actor would intervene—the same is not true when a university determines how to enforce rules regarding the use of campus spaces in light of its academic mission and competing claims of different groups."
"Expressive activity" is doing far too much work here. Universities have rules against vandalism, harassment, intimidation, and also have time, place, and manner restrictions for protest/speech activities, to avoid disruption. You might, for example, be able to chant on the campus green at lunch time, but not in the campus library.
Breaking these rules--vandalizing, harassing, intimidating, disrupting contrary to campus rules are often "expressive activities." But they are not protected by the First Amendment, and have nothing to do with academic freedom.
And to the extent these rules are clearly stated in the student handbook, everyone breaking the rules has fair notice of what the rules are. Suggesting that universities should get deference in enforcing these rules is an open invitation to college officials to discriminate; to, for example, have a full-on campus wide meltdown when students disrupt a "Take Back the Night" rally, but do nothing when a Hillel event is disrupted.
Indeed, in a recent Harvard Law Review article, Prof. Eidelson and Hellman, cited frequently in the USCCR report, positively endorse such discrimination, suggesting that universities, for reasons that make zero sense to me, may have a greater reason for not intervening in the context of debating the Israel-Palestine conflict than elsewhere. Read More
The Democratic Socialists of America ("DSA") have won an unprecedented number of Democratic primaries, and their candidates are on the ballot now in many places. Even those Democrats who are not members will follow much of their platform because that is what activists in the Democratic Party want to see done. DSA members may well elect the next Speaker of the House of Representatives, who will be second in line for the presidency.
Among the Democratic Socialists of America who have been nominated for seats in Congress in this year's midterm elections are:
U.S. Senate Nominations
Angie Nixon (Florida): The state representative won a major upset for the Democratic Senate nomination in Florida, marking a notable statewide milestone for a democratic socialist candidate.
U.S. House Nominations
Claire Valdez (New York, NY-7): Won the nomination in the district of retiring Rep. Nidia Velázquez.
Darializa Avila Chevalier (New York, NY-13): Defeated sitting incumbent and Congressional Hispanic Caucus Chair Adriano Espaillat.
Brad Lander (New York, NY-10): Won the nomination over incumbent Rep. Dan Goldman (though note he left the DSA following its response to the Oct. 7, 2023 attacks).
Chris Rabb (Pennsylvania): Secured the Democratic nomination for a Philadelphia-area House seat.
Donavan McKinney (Michigan): Won the nomination in a Detroit-area House district.
Alexandria Ocasio-Cortez (New York, NY-14): Won renomination in her congressional district (endorsed by her local DSA chapter).
Because of the Democratic Socialists of America's rise to power, I wanted to know more about what they stood for. I googled their Platform, which is titled "Workers Deserve More," and I will quote from it below in bold face and respond in ordinary type. Much of what I will quote comes from a section of the Platform that describes "What We Fight For." Here are just a few key elements of the DSA's platform.
[1.] Demilitarize police departments … and redirect funding to public services as steps towards fully abolishing the police and prison system which protects the rich and jails the poor. Treat drug addiction and mental illness as health issues, not crimes.
One morning in late September, Carli Heller opened up an artificial intelligence chatbot and began venting. She took aim at the Lee County Sheriff's Office in Florida, saying she was "going to shoot up the sheriff's right the f— now," she wrote to the phone app, according to a probable cause statement. Heller continued venting a day later, writing that it was "100% LAST CHANCE" and that she "GOT A NEW F—— GUN TODAY."
Anthropic's safety features triggered and sent the chats to its human review team to analyze. The team believed there was a big enough risk to escalate the risk to the FBI, which then notified the sheriff's office. Authorities arrested Heller on Sept. 30, charging her with making a written or electronic threat of a mass shooting or act of terrorism, a felony under Florida law to which she pleaded not guilty.
Heller admitted writing the messages but denied any intent to carry them out, the report says. She pleaded not guilty.
I doubt that this is a punishable threat, at least under the Florida law, Fla. Stats. § 836.10, unless there is evidence that the woman subjectively realized at the time that the message would be communicated to a human being who would perceive it as a threat. T.R.W. v. State (Fla. App. 2023) makes clear that "To prove the commission of a violation of section 836.10, the trier of fact must find that the defendant transmitted a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat." Simply typing a prompt into a chatbot, expecting it to be viewed only by the software, wouldn't qualify.
"Senator Ted Cruz’s new biography about Justice Clarence Thomas, Going Further, is a must-read contribution to this third genre of Supreme Court books."
Civitas Outlook published my review of Senator Ted Cruz's biography about Justice Clarence Thomas. The introduction sketches why I think so highly of Cruz's book, and why I think not-so-highly of other Supreme Court books.
Three general types of books about the Supreme Court exist. First, most books are based entirely on publicly known information. These books, often written by academics, rely primarily on the author's opinion and analysis. Second, some books provide inside information about the Court that largely comes from anonymous sources. These books, usually authored by journalists, are intriguing but are impossible to verify because unnamed sources have unknown biases. Third, few books deftly blend public and private information, most of which is directly attributed to named sources. With these tomes, readers learn directly from the principals, and there is no speculation about anonymous sources. This final category, usually an authorized biography, is the rarest and most useful because few authors have earned such trust at the Court.
Senator Ted Cruz's new biography about Justice Clarence Thomas, Going Further, is a must-read contribution to this third genre of Supreme Court books. Indeed, Cruz is uniquely qualified to write this book because he has observed the third branch from three perspectives over three decades: as a law clerk to Chief Justice Rehnquist, as a Supreme Court litigator in public and private practice, and as a member of the Senate Judiciary Committee. Most importantly, Cruz has earned the trust of Clarence Thomas. If "somebody else was asking," Thomas said, "I would say no. But if it's you writing, I'm glad to do it." In late 2025, Cruz visited the Thomas chambers six times over six months, compiling nine hours of on-the-record interviews. Justice Thomas did not speak "on background" like other Justices trying to improve their reputation. Thomas was an open book.
Often, when I read a book about the Supreme Court, there is little new material. Indeed, you can safely skip most books in the first category unless you find the author's perspective agreeable. And when I read a book in the second category, I am usually titillated, but left to wonder, "How accurate is this information?" But I could not put Cruz's book down, because virtually every attribution is backed up by one of his sit-downs with the Justice. Moreover, as Cruz acknowledges, "some of what Justice Thomas said surprises me." Ditto. I hope that the full or partial transcripts of those interviews might be published in the future.
The conclusion, I think, sums up who Justice Thomas is:
Since President Trump's re-election, some conservatives have called on Justice Thomas, as well as Justice Alito, to retire. These entreaties fell on deaf ears. As Justice Thomas has said many times, he doesn't care what people write about him. But a resignation would go against everything Thomas stands for. As Thomas told Cruz, "If you collapse at the end of this, you've lived a noble life."
On Wednesday I recorded an episode of the "Blessings of Liberty" podcast, hosted by Jeffrey Rosen, on Suncor Energy v. Boulder County. I was joined in the discussion by my friend Donald Kochan, Professor of Law and Executive Director of the Law & Economics Center at George Mason University's Antonin Scalia Law School.
As one might anticipate, we have different views on the proper outcome in the Suncor case. I think our exchange helped elucidate what is at issue in the case, but you can judge for yourself below.
For more on Suncor, here are (some of) my posts on the subject (with more to come):
Plaintiff J. Doe is a nonbinary student who attends a high school that is operated by Defendant Albemarle County School Board ("ACSB"). Doe has experienced gender dysphoria for as long as they can remember. As a result of discomfort with their biological sex and experiences being misgendered, Doe has battled significant symptoms of anxiety.
In September 2025, a Turning Point USA ("TPUSA") student club at Western Albemarle High School ("WAHS") informed the principal that they planned to host guest speaker and Defendant Victoria Cobb for an event entitled "Two Genders: One Truth." Cobb, the president of a Christian lobbying organization, has publicly opposed gender affirming efforts and denied that gender identity is immutable. After receiving community pushback, as well as demand letters advocating both for and against allowing the event, ACSB decided that the speaker event could proceed as a club meeting during the lunch hour, where student attendance was voluntary, so long as the event remained orderly and respectful. The club promoted the event with flyers throughout the school during the week leading up to the event.
Doe sued, "claiming that ACSB's decision to allow the TPUSA club to host and promote the Event constituted deliberate indifference to severe and pervasive sex-based harassment." The court rejected the claim on the facts, but concluded that allowing the event may have created a subjectively hostile educational environment:
Well, I don't know how much coverage of the court you read, but you may not be surprised to learn that one light motif [likely an erroneous transcription of "leitmotif"] is that you are brooding figure. Um here's a a passage from a book by Joan Biskupic of CNN: you wear a heavy cloak of grievance as if perpetually wronged, destined to be misunderstood.
Biskupic has made similar comments in the past. In December 2025, she published a column titled "Samuel Alito keeps getting his way. So why does he seem so unhappy?" Without any actual evidence beyond staring at the Justice in Court, Biskupic wrote:
Alito's aggravation is regularly on display in the courtroom, too. . . .
In the courtroom, even the little things can visibly irk Alito. He often grimaces and rolls his eyes. . . .
Other justices laughed. They appear accustomed to his unguarded irritability.
At the time, I remarked how empty this commentary was:
The media does not fairly cover the conservative Supreme Court justices. But it is not enough to criticize their written opinions. Rather, pundits feel compelled to opine on how the Justices feel. Case in point is a recent headline from Joan Biskupic, titled "Samuel Alito keeps getting his way. So why does he seem so unhappy?" Does Biskupic have any evidence that Alito is unhappy? Did she talk to the Justice or his clerks? No, Biskupic apparently no longer has access to that sort of actual information. Instead, she based her conclusions on the Justice's facial expression on the bench.
Now, Justice Alito has fired back:
I think that's very unfair, and it is part of a process of caricaturing the justices with whom the people who are writing these things disagree. Nothing similar is written about some of my colleagues who have issued blistering dissents, blistering dissenting statements from the bench, made what can only be described as very angry comments during oral argument. None of that is written about any of them, but this is written about me. Now, what do court watchers, so to speak, see of me? They see me at oral argument, and that's basically it. Oral argument to me is a serious business. It's supposed to help us make good decisions. And so I challenged the lawyers. I argued a lot of cases. I expected to be challenged. I actually welcomed it because I thought that I could, by responding to the challenges, I could win over a justice or a judge who came into the argument perhaps disposed to rule against me. But I don't treat oral argument like a moot court. I don't treat it like show. I don't play to the audience. I don't try to get laughs. I don't try to show how smart I am. It's pretty businesslike, and perhaps that's what they're referring to.
Good for Alito. Watch this hour long interview, and others. You will not see some sort of brooding, grumpy old man. Alito is charming, funny, and engaging. He just doesn't waste his time talking to elites who hate him.
Biskupic will never criticize the demeanor of Justice Ginsburg on the bench. Lord help us if someone writes that Justice Sotomayor looks "angry" or Justice Jackson looks "confused." Only the conservative Justices get this sort of treatment.
The fact is that Joan Biskupic long ago stopped gaining useful information about the Court. Other Supreme Court reporters simply write about the questions and answers during oral argument. They perform a useful service. But Joan wants to convey the impression that she still has useful things to say, so she reports on body language. I've seen her at work in the Court. She stares intently at the bench and takes careful notes. I think it's best to just skip over her work.
On a related note, Justice Alito commented to USA Today about Nina Totenberg's failed report that he was retiring.
In the privacy of his chambers, how did Alito react to the inaccurate story, quickly retracted by National Public Radio?
"I was amused and puzzled," Alito told USA TODAY in answers to written questions. "I wondered what had led to the erroneous report. And when the error was corrected, I wondered how many people were crest-fallen."
Who was sad when the story was corrected? I suspect everyone on the left let out a high sigh of relief when NPR retracted, as the 76-year old would (likely) stay on the bench. Remember, Totenberg successfully spiked the nomination of Doug Ginsburg, nearly spiked the nomination of Clarence Thomas, and failed miserably in trying to spike the nomination of Neil Gorsuch. Their goal is to keep new conservative Justices off the bench.
Speaking of which, Jodi Kantor has come up pretty dry over the past year. She published some memos from ten years ago, which seems to be a fluke that some law clerk held onto things for that long. Her frolic and detour to the Chief's summer home was pretty pathetic. Longtime readers may remember that I initially called for the Chief to resign back in 2020 after the torrent of leaks--not in response to any particular decision. But it seems that Roberts has locked things down. Maybe the NDAs are working? Maybe the liberal justices realize that leaks can get their colleagues assassinated? (Although Justice Alito insinuated that there was no urgency in the two months after the Dobbs opinion leaked.) Whatever happened, it is working. I think I can rescind my call on the Chief to step down.
The talk, "Litigating for Liberty / Judging About Liberty," is part of the Libertarian Litigation Speaker Series at UCLA School of Law (room 1457). Justice Bolick, as many of you know, is one of the most prominent judicial experts on state constitutions, including the special protection they offer individual rights. And before going on the bench, he was a prominent libertarian litigator: Among other achievements, he cofounded the Institute for Justice, one of the nation's leading libertarian public interest law firms, which specializes in matters such as economic liberty, school choice, and more. He will speak about his experience, and his approach to liberty, both in his time as a lawyer and in his time as a judge.
The event is mostly aimed at UCLA students, but is also open to the public. If you're in L.A. and would like to join us, please RSVP at this link by October 9 (this Friday) for a dinner box catered by Sweetpea. You should feel free to attend in any case, but only an RSVP will get you dinner.
Today is the third anniversary of the horrific October 7, 2023 Hamas terrorist attack on Israel. Despite various ceasefires and the release of the remaining hostages, the resulting war has never wholly ceased. Fighting between Israel, Hamas, and Hezbollah continues to varying degrees. And now we have the distinct but nonetheless interconnected Iran War. I wish there was something I could say to ease the continuing pain of the victims of the attack and their families. But that task is far beyond my very limited eloquence.
Still, over the past three years I have written pieces on various aspects of the conflict and the reaction to it in the West, that may be of interest. This post is a compilation of them. I have included links to pieces about the Iran War, because that conflict is connected in various ways to October 7, even if also distinct. Some material has been adapted from a similar post I did on the first anniversary of Oct. 7, in 2024. But much is new, including many links to more recent writings.
I hold a somewhat unusual combination of views on the conflict, one likely to annoy some on both the right and left, and both critics and supporters of Israel. I am no great fan of the present Israeli government, or of the ideology of Zionism (the latter because of my general opposition to ethno-nationalism). Yet I nonetheless believe Israel has every right to seek the elimination of Hamas and deal a decisive defeat to its other adversaries, as well. I agree with many, though certainly not all of the points, made in this recent interview by Israeli opposition leader Gadi Eisenkot, both in his support of Israel's right to defend itself, and in his condemnation of the present Israeli government (including its treatment of West Bank Palestinians). For all its serious flaws from the standpoint of liberal values, Israel is incomparably superior to its enemies.
A small anecdote can help illustrate the point. I have visited Israel several times, and even been a visiting professor there. One of my acquaintances there is Arab Israeli legal academic Mohammed Wattad; since we first met in 2016, he has become the president of one of the country's major universities.
Can you imagine a Jew leading any major institution under the rule of Hamas, Hezbollah, Iran, or even the Palestinian Authority? The question answers itself. Indeed, a Jew probably could not even remain alive for long under most of these regimes. Hamas and Hezbollah are severely repressive even towards Arab Muslims who dare dissent from the rulers' quasi-medieval theocracy. Iran, of course, represses Muslim dissenters, as well, as we saw earlier this year, when the regime slaughtered thousands of protestors.
As Wattad will likely remind me next time we talk, Arabs face considerable discrimination in Israel. That is wrong, and deserves condemnation. But the rule of Hamas, Hezbollah and the PA is vastly worse. Arabs under Israeli rule not only have more rights than ethnic and religious minorities under the control of Israel's enemies; they even have more rights than do Arab (or Iranian) Muslims under the latter regimes. Things are worse for West Bank Palestinians than Arab Israelis, on which see my recent post here. But even they are unlikely to be better off with a Hamas victory that would put them under the rule of a brutal theocratic dictatorship.
In any conflict, I prefer the victory of the side that better approximates liberal democratic values - at least in situations where there is a meaningful difference between the two. In this case, there is no question that side is Israel, even as we should also recognize Israel's very real flaws.
Without further ado, here are links to my writings on the post-October 7 conflict and related issues. For convenience, I have put them in chronological order, and divided them into one section on the war itself, one on the related Iran War, and one on the Western reaction, including resulting protest movements. Except where otherwise noted, all of these writings are posts published here on the Volokh Conspiracy blog:
Writings on the War and Related Issues
"Those Who Support Israel Against Hamas Should also Back Ukraine Against Russia," Oct. 12, 2023. There are many parallels between the two conflicts. The post is primarily directed at right-wingers who back Israel, but not Ukraine. But most of the points it makes apply equally to leftists who hold the exact opposite combination of views. That latter group has become more significant since I wrote this post.
"Hamas Attack Should Teach Us the Folly of Hostage Deals with Terrorists,"Oct. 17, 2023. This may be one of my most unpopular takes. It may seem like only a cruel and heartless person could possibly oppose deals that release hostages. But, as I point out in the piece, such deals incentivize further terrorism and hostage taking. The October 7 attack itself was masterminded by Yahya Sinwar, a Hamas leader released in the 2011 Shalit deal, in which the Israelis released some 1200 terrorists in exchange for one soldier captured by Hamas. I was one of the few critics of the Shalit deal at the time it happened. Things turned out much worse than even I expected.
"The Moral and Strategic Case for Opening Doors to Gaza Refugees," Oct. 24, 2023. Granting refuge to Palestinian civilians who wish to flee the war and Hamas's repressive rule is both a moral imperative, and a way to make it easier for Israel to crush Hamas. For somewhat different reasons, this view is fiercely opposed by a combination of Western right-wingers, far leftists, and supporters of Palestinian nationalism. This combination of opponents actually increases my confidence that it is right. Interestingly, this is an issue where I find myself largely in agreement with my much more conservative colleague and co-blogger Eugene Kontorovich.
"Why I Don't Buy the Idea that You Can't Kill an Idea," Feb. 24, 2024. It's often said you can't defeat movements like Hamas and Hezbollah by military means, because "you can't kill an idea." This post explains why that ubiquitous claim is wrong. Though I also emphasize that doesn't mean the Israelis should rely on force alone, or that they need not observe any moral constraints on their military measures.
"Another Terrible Hostage Deal," Jan. 19, 2025. The January 2025 hostage exchange deal shows Israel and the US failed to fully learn the lessons of previous terrible hostage deals with terrorists. I would add that the later deal that released the remaining living hostages has similar flaws.
"Reflections on a Visit to Israel," Dec. 30, 2025. Reflections on my time as a visiting professor in Israel in December 2025, including issues related to the war, and Israeli views on it.
"Israeli Settler "Terrorists" Unjustly Expel West Bank Palestinians From Their Land," Aug. 15, 2026. Violent Israeli settlers have been using force to push West Bank Palestinians off their land. In this post I go over this issue, and condemn the violent settlers, and the Israeli government's failure to meaningfully constrain them. On this point, my views are actually pretty similar to Gadi Eisenkot's, noted above. I hope he and his allies defeat Netanyahu and his in the upcoming Israeli election, and crack down on this violence.
"Why Donald Trump's Iran War is Unconstitutional," The Dispatch, Mar. 5, 2026. More detailed explanation of why the Iran War is unconstitutional. In this article, I also warn about the harmful practical consequences of initiating war in this way; doing so exacerbates the risk of defeat. Those concerns have, I think, been vindicated by later events.
"An Unconstitutional War Results in a Bad Deal," June 14, 2026. Trump's unconstitutional war resulted in a badly flawed ceasefire agreement with Iran. The flaws in the agreement are directly related to Trump's flouting of the Constitution. The agreement has since been periodically breached, at various times. But there is still no evidence that Trump has any good plan for achieving a positive outcome to the war that is any better than the prewar status quo.
Writings on Western Reactions to the War and Protest Movements
"Some Cancellations are Justified," Oct. 15, 2023. Why employers and others are often justified in refusing to hire people who express support for Hamas terrorism. As noted in the post, this is not a new position adopted in response to controversies arising from the October 7 war. It builds on arguments I advanced years before.
"Far-Left Support for Hamas is not an Aberration,"Oct. 30, 2023. Western far-leftists have a long history of supporting repression and mass murder. Thus, we should not be surprised that many of them now support Hamas. As noted in the post, "far left" is not a pejorative term for anyone to the left of me. As used here, it has a far more specific and narrower meaning.
"Student Movements Are Often Wrong," April 26, 2024. The idea that causes espoused by student-led movements are always or almost always right is a myth. Today's student anti-Israel movement is just the most recent of many counterexamples. Obviously, movements led by older people are often misguided, as well.
"Nationalism Is Driving the Neo Right's Virulent Antisemitic Turn," UnPopulist, Dec. 9, 2025. The growth of right-wing nationalist anti-Semitism is only secondarily about Israel. Nonetheless, adherents of this ideology tend to take similar views on the Israeli-Palestinian conflict to those of the anti-Israel far left, discussed in my 2023 post on that subject, linked above.
Beginning October 1, 2026, all state and local entities and their employees shall be required to do all of the following:
(1) Refer to the body of water that borders the coast of Alabama as the "Gulf of America."
(2) Reflect the "Gulf of America" terminology in all newly created maps, documents, educational materials, websites, official communications, and other resources.
(3) a. Make reasonable efforts to update all pre-existing resources owned by state and local entities, including, but not limited to, official state maps, documents, educational materials, websites, and communications under their jurisdiction to reflect the name change, where practicable.
b. The requirements of paragraph a. shall not apply if compliance would impose an operational or financial burden on the state or local entity and their employees.
Nothing in this section shall prohibit a public K-12 school or public institution of higher education from using the term "Gulf of Mexico" within a larger course of academic instruction when reasonable for historical purposes.
A few thoughts:
[1.] If the statute is interpreted as applying to all speech by employees, or even all speech by employees while at work, including informal conversations with colleagues, it will likely be unconstitutional. Government employees have a First Amendment right to refer to geographical locations however they please in talking to colleagues, unless the reference damages the efficiency of the workplace. It's highly unlikely that a typical conversation in which someone says "Gulf of Mexico" will be viewed as sufficiently harmful to workplace efficiency.
Randy Barnett and I continue to discuss shifts in our constitutional law casebook over the past two decades. This installment focuses on changes to the 14th Amendment. It is titled, A textbook 14th Amendment revolution. (I love the headline, for which all credit goes to editor Zach Shemtob.)
Here is an excerpt:
With the ascent of the Roberts court, the fifth edition reports a sea change in equal protection clause doctrine. On affirmative action, Bakke remains the seminal case as the court's first foray into the matter, but Grutter, Gratz, and the Fisher pair are gone (along with Justices Sandra Day O'Connor and Kennedy). Instead, Students for Fair Admissions v. President and Fellows of Harvard College is now the court's decisive precedent. The Supreme Court there ruled that schools can use race only in extremely narrow contexts, such as to demonstrate how a person's race presented hardships that they overcame. (Although there is some evidence that institutions continue to test the boundaries of the ruling).
With sex discrimination, we added two new cases concerning transgender rights. United States v. Skrmetti upheld a state prohibition on certain sex-related medical procedures for minors. West Virginia v. B.P.J. ruled that states can exclude "biological[ly] males athletes who identify as female" from participating in women's sports. The laws at issue in these cases would have been unthinkable in 2008, but societal movements changed quickly.
….
The fifth edition, however, would witness a revolution in substantive due process, and in how it is taught. Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade, holding that the due process clause of the 14th Amendment does not protect a right to abortion. But we decided it was not enough to simply add Dobbs as the final case. We trimmed down Griswold v. Connecticut and, for the first time, added Eisenstadt v. Baird, which ruled that unmarried couples also had a right to contraception. Once that right had been established, the marital relations rationale for it quickly dropped away, like a booster rocket that takes a satellite into orbit falls into the sea having done its job.
These older substantive due process cases, once foundational, are nonetheless now vestiges. This is certainly true of abortion, but Kennedy's landmark cases here may also end up withering away. The Obergefell dissents may then prove the most relevant, as a possible signpost for the future. Neither of us could have fathomed in 2008 how this chapter would evolve over 18 years.
Our next installment will focus on the Religion Clauses and the Second Amendment.
There are quite a few interesting tidbits in the interview, and it covers some ground not included in Jan Crawford's CBS News interview (and vice versa).
One part of the interview of particular interest to me was Justice Alito's discussion of how he came to recuse in Suncor Energy v. Boulder County. It seems to suggest that the claims made by the petitioners (and their allies) about the potentially catastrophic effects on the oil and gas industry of an adverse ruling in Suncor may have convinced Justice Alito that he needed to recuse, even though he does not own stock in any of the companies that are part of the case. I think such claims are overstated, but they have resulted there being one less justice sitting who is inclined toward preemption arguments of the sort in play here.
Well, I I don't think it's something that should be done routinely, and I could go into that, but I'll I'll skip over that. But there are instances where I think it's appropriate and wise for a justice to explainwhy the justice is not recusing in a case and I have done that on a number of prior occasions.
Determining whether to recuse is a very serious responsibility. We have an obligation to sit unless we are disqualified because unlike a court of appeals where the recusal of a judge doesn't change the number of jurists who were sitting on the matter, here it does and it's unfortunate . . .
Now why did I do it in the Suncor case? There are two provisions of our code of conduct--which I support and actually helped to draft--that apply in the situation where the recusal question involves a justice's ownership of stock. The first question that has to be asked is does the justice own or the justice's spouse own stock in a party to the case? Does the justice have an interest in the outcome of this particular case? And the answer to that question in the Suncor case was no. We do not own any stock in any party or affiliate of any party in the case.
Usually that's the end of the matter in cases involving stock ownership. However, there is a second question and that is whether the the justice's financial interest might be
substantially affected by the outcome of the case. Usually when it is, as I said, when it involves the ownership of stock, that's a pretty easy question to say to answer no because it's very very rare for one of our decisions to have an effect on the price of publicly traded stock. And that's why I did not recuse when we decided to take the case.
However, as the date of the argument approaches and I immersed myself in the arguments that were were being made on both sides, I thought through the question again. The question is what would a reasonable person aware of all the relevant circumstances think? And ultimately I came to the conclusion that a reasonable person
aware of the fact that my wife and I have a substantial investment in some companies in the oil and gas field.
And this is a case in which the the petitioner and the petitioners' amici are arguing that a decision against them would start a snowball rolling down a hill which could ultimately lead to devastating consequences for the oil and gas industry. That under those circumstances, the particular circumstances here, the arguments that were being made, I should recuse. I did it reluctantly, but I thought that was what I ought to do under those particular circumstances.
One consequence of Justice Alito's recusal is that the Court could split 4-4 on one more more of the issues in the case. If so, the petitioners could well come to regret Alito's recusal. Note further that insofar as Justice Alito concluded he needed to recuse in this case, the same rationale would apply in any subsequent case raising the same issues, so long as the Alito stock holdings remain unchanged. So a 4-4 split here could mean the Court is split 4-4 on these issues for the foreseeable future.
For what it's worth, the fact that a 4-4 split would generate a stalemate that could not soon be resolved--and that climate tort litigation would continue unabated so long as the 4-4 split persists--suggests to me that at least some of those justices inclined toward finding preemption will (if faced with the prospect of a 4-4 split) seek a compromise, whereby Boulder County's suit would be narrowed, but not preempted. Of course, should either side command five votes at conference, there would be less need for such a compromise.
Video of the Alito interview is below.
For more on Suncor, here are (some of) my posts on the subject (with more to come):
