According to plaintiff, “[Prof.] Harner believed Plaintiff’s planned zine project [class assignment] was on ‘the issue of ‘trans’ people sexually assaulting others in prison,’ a topic Harner found ‘so many issues with.’”
For purposes of the present motion, and resolving the disputed material facts in Plaintiff's favor, the Court finds:
Plaintiff's interaction with Defendant Vern Harner on April 20, 2023 was "momentary." Plaintiff mentioned she was thinking about focusing her zine project on women's rights and showed Harner her computer screen with a Google search for an article available; she "did not have any article open." Harner did not say much but told Plaintiff to make sure the source Plaintiff planned to use was reputable. Harner did not tell Plaintiff that her project idea violated social work values and ethics.
Either later that day or the next day, Harner identified and reviewed an article that Harner believed Plaintiff had open on her computer. Harner believed Plaintiff's planned zine project was on "the issue of 'trans' people sexually assaulting others in prison," a topic Harner found "so many issues with." One issue was Plaintiff's alleged reliance on the article as a source, which among other things, Harner identified as being "full of TERF and far right dog whistles and talking points." {TERF appears to refer to trans-exclusionary radical feminism.} Harner sought advice from Defendant Claudia Sellmaier, explaining Harner's impressions of Plaintiff to Sellmaier.
On April 27, 2023, Plaintiff presented Harner with her draft zine project sometime after 11:30 a.m. Harner planned three-to-five minutes with each student that morning. Harner did not identify why Plaintiff's project targeted transgender people or what specific social work standards Harner believed Plaintiff violated. Plaintiff expressed she did not understand why her project was not considered a social justice issue.
Harner became visibly upset reviewing and discussing the draft zine, eventually throwing their hands in the air and telling Plaintiff, "[t]his is targeting transgender." Their interaction ended and at some point Plaintiff asked to meet later that day with Harner, but Harner stated they were unavailable that day.
From Rice v. Schell, decided two weeks ago by Judge Matthew McFarland (S.D. Ohio), but just posted on Westlaw a few days ago:
Plaintiff Darryl Rice serves as a tenured and endowed associate professor of management for the Farmer School of Business at Miami University in Oxford, Ohio. For over a decade, Plaintiff has taught courses such as Diversity and Cross-Cultural Management, participated in Diversity, Equity, and Inclusion ("DEI") programming, and contributed to entities like DEI-based committees at Miami University. In April 2025, Miami University began to wind down certain programs and entities related to DEI. Specifically, the following entities were eventually discontinued: (1) the Office of Transformational and Inclusive Excellence, (2) the Farmer School of Business DEI Service Committee, (3) the Center for Student Diversity and Inclusion, (4) Miami Regional's Center for DEI, (5) the Department of Management DEI Service Committee, (6) Miami University's Across-the-Divide Conference, (7) the Office of Transformational and Inclusive Excellence Newsletter, (8) the Inclusive Excellence Faculty Fellows Program, (9) the DEI Mastermind Program, (10) the Diversity and Inclusion Networking Event, (11) DEI Professional Development Day, as well as other activities that Plaintiff had used to fulfill his service obligations. For purposes of Miami University's Tenure Track Guidelines, "service" obligations include "activities which contribute to the University's and/or the campus's mission," serving on committees, and providing continuing education programs if they are not already incorporated within the "teaching" category.
Miami University explained to Plaintiff that these closures were mandated by the Advance Ohio Higher Education Act ("S.B. 1"). That being said, Miami University began the process of closures and reorganization before S.B. 1 officially took effect. The Court pauses here to highlight particularly relevant portions of S.B. 1. This legislation commands that "the board of trustees of each state institution of higher education shall adopt and the institution shall enforce a policy" prohibiting, among other things, the following:
(1) Any orientation or training course regarding diversity, equity, and inclusion [unless an exception applies];
(2) The continuation of existing diversity, equity, and inclusion offices or departments; and
(3) Establishing new diversity, equity, and inclusion offices or departments….
Moreover, the statute reads: "Nothing in this section prohibits faculty or students from classroom instruction, discussion, or debate, so long as faculty members allow students to express intellectual diversity." …
Plaintiff sued, claiming that the law violated, among other things, the First Amendment, but the court disagreed:
It … proves helpful to contextualize this matter by emphasizing what is at issue and—perhaps just as importantly—what is not at issue. This is not a case involving allegations that the Government is compelling particular speech. This is not a case in which a university itself brings suit to enjoin a law. This is not a case in which students allege constitutional violations. This is not a case in which a plaintiff has been threatened with disciplinary action for certain speech. This is not a case involving allegations of a professor's speech being stymied in the classroom or on the campus green. Rather, this dispute centers around a professor who brings suit to enjoin a university to reestablish certain committees, programming, and events….
A recent YouGov poll shows the Court is likely less unpopular than before. The tariff ruling may have given it a boost. The poll has several other notable findings, as well.
A recent YouGov poll, conducted in early May, finds that 38% of Americans approve of the job the Supreme Court is doing, while 45% disapprove. That -7 net disapproval may not seem very impressive. But it's way better than the other two branches of government. In recent surveys, an average of 58% disapprove of Donald Trump, compared to 38% who disapprove. Congress' approval rating is much lower, still.
The Court's current numbers are also a modest improvement from polls conducted in mid to late 2025. At that time, an Economist/YouGov poll found a net -16 disapproval (51-35), Gallup found a -10 (52-42), and Quinnipiac a -13 (53-40). In fairness, a June 2025 YouGov poll found almost identical results to their most recent one (45% disapprove, 40% approve). But that appears to have been an outlier at the time.
To the extent that the Court has become less unpopular, it may be in part because of the recent decision in the tariff case (which I helped litigate). The May YouGov poll found 58% approving of the result, while only 25% disapprove. An earlier YouGov poll, conducted right after the ruling, found 60% approve and 23% disapprove. Thus, I may have helped make the Supreme Court a little more popular (or, rather, less unpopular). I'm sure I will get invited to all the cool SCOTUS holiday parties this year (OK, almost certainly not….).
Before going further, I should emphasize that public opinion is a poor barometer of the quality of the Court's decisions. Survey data shows most Americans know very little about the Constitution and the Court's work, and a majority cannot even name one Supreme Court justice. Similarly, I do not claim that broad public support for the tariff decision proves that the justices go it right (though I do in fact believe they got it right, for other reasons). Ideally, the justices should not be guided by public opinion. Insulating them from it is one of the reasons why they have life tenure.
But, as I have noted in the past, public opinion about the Court does matter in some ways. A highly unpopular Court is more vulnerable to measures to curb or even destroy its authority, such as court-packing. And the Court can more easily strike down major policy initiatives of the president and other political leaders if it knows doing so will enjoy substantial public support. If the Court becomes sufficiently unpopular, politicians could potentially defy its rulings with little fear of political consequences. Thus, while it is unlikely the Court decided the tariff case as it did merely because the tariffs are unpopular, that unpopularity may have made it easier for the justices to strike down one of Donald Trump's signature policy initiatives.
For these and other reasons, the Court's degree of public approval can matter. That's true even though the public's assessment of the Court's work says little about whether the justices are actually doing a good job or not. Indeed, if the Court were to become immensely popular, I would worry they weren't doing enough to protect the rights of unpopular minorities.
In addition to the Court's overall approval rating and the question about tariffs, the YouGov survey has several other interesting results. They also did approval ratings for all the individual justices:
Interestingly, the three liberal justices seem to have the highest approval ratings. All three have net positive ratings, while all six conservatives are net negative. But I would not give too much credence to these numbers. As noted above, most Americans cannot even name a Supreme Court justice, and many of those giving opinions in the YouGov survey probably know little or nothing about the justices in question. Even as it stands, for each of the justices 33% or more said they had no opinion, except Clarence Thomas (about whom only 27% had no opinion).
In addition to the tariff case, YouGov also asked respondents whether the Court should overturn Obergefell v. Hodges (the 2015 ruling striking down state laws banning same-sex marriage); 51% of respondents said "no" and only 24% said "yes." They similarly asked about the birthright citizenship case currently before the Court, on which issue 53% said the Court could ruled that "[a]ll children born in the U.S. should automatically become citizens," while 39% wanted it to rule that "[o]nly those children born in the U.S. whose parents are citizens or lawful permanent residents should automatically become citizens."
As with the tariff case, I agree with majority public opinion on both of these issues. I have argued the Court should rule against Trump in the birthright citizenship case, and that Obergefell v. Hodges is a landmark civil rights decision, even though its reasoning should have been better. It all goes to show I am a true Man of the People! OK, maybe not… In reality, I hold all kinds of unpopular views. And I think majority public opinion is often highly ignorant and influenced by bias.
On a slightly more serious note, Obergefell's strong popularity is one of the reasons why I think it is unlikely to be overruled. And the unpopularity of Trump's position on birthright citizenship is one reason why the Court probably won't hesitate to rule against him on this issue if a majority of justices believe he's wrong (as seemed likely, though not certain, to be the case after oral argument).
There are several other interesting questions in the survey, which I may post about it in the future, if time allows. For example, the poll confirms that term limits for Supreme Court justices are popular, while court-packing is not; this despite the fact that the question on the latter was favorably worded for the pro-packing side, inasmuch as it asked about "expanding the size of the Supreme Court" without mentioning that the reason for doing so was to change the ideological composition of the Court to one more favorable to one side of the political spectrum.
In sum, the public's view of the Court is only modestly negative, and much less so than its view of the president and Congress. That's hardly a rousing endorsement. But it's a lot better than the other two branches of government, and that difference may provide some protection against political attacks on judicial independence.
This afternoon, Justice Alito extended the administrative stays pausing the order of the U.S. Court of Appeals for the Fifth Circuit halting the prescription of the abortion medication mifepristone via telemedicine. The new deadline is Thursday (when the Court is also expected to issue one or more opinions in argued cases).
What explains the extension? The justices are presumably deciding what to do about the stay applications. One possibility is that they will either grant or deny the stay requests, with one or more justices filing opinions. Another possibility is they are considering whether to grant certiorari before judgement to consider the threshold standing question, as the Fifth Circuit's order created a split with the U.S. Court of Appeals for the Ninth Circuit.
One factor potentially complicating the Court's consideration of these stay requests is the failure of the Food and Drug Administration to file anything with the Court. This complicates things because in the usual course the federal government is among those asking the Court to intervene when a lower court blocks a federal action. The Court generally assumes that orders blocking federal action cause irreparable harm to the federal government, and such harm is generally a threshold consideration for the Court to consider providing extraordinary relief. But here the FDA (or, rather, the Solicitor General) is silent, suggesting that the federal government is not too concerned about the Fifth Circuit's order. It also means there is no thumb on the scale when the justices balance the remaining equities.
Insofar as the justices' sense of which party is likely to prevail on the merits will do the work, I would think a stay will ultimately be granted, unless the justices decide to grant cert. Louisiana's arguments for Article III standing, like those in the AHM litigation, sound superficially plausible, but wilt under examination. Even assuming Louisiana has alleged cognizable injuries, it remains fairly speculative that the alleged injuries are fairly traceable to the FDA's decision to allow mifepristone prescriptions via telemedicine and quite uncertain that blocking the 2023 regulatory change would provide any meaningful redress. It is fair to complain that this could mean no one has standing to challenge FDA drug approvals or regulatory relaxations, but so be it.
It is fair to complain that the Court has not been particularly vigilant enforcing limits on state standing claims in recent years (U.S. v. Texas notwithstanding), but that's more an argument for granting cert, and ending "special solicitude" for state standing claims, than for compounding the error. Indeed, curtailing state standing is a necessary (but not sufficient) step the justices should take if they wish to scale back the demand for emergency relief on the interim docket.
Meanwhile, those who are generally critical of the Court's handling of the "shadow docket" must feel a bit conflicted. On the one hand, they surely want an immediate order blocking the action of the Fifth Circuit. On the other hand, they generally insist that the justices explain themselves, and drafting opinions takes time. It is almost as if there are trade-offs involved.
From today's decision by Judge Jeannette Vargas (S.D.N.Y.) in Goldstein v. CUNY:
On January 9, 2026, Plaintiff Avraham Goldstein ("Plaintiff") filed his Third Amended Complaint in this action. Plaintiff alleges that he is employed as an assistant professor at City University of New York, Borough of Manhattan Community College. He is an Israeli citizen, an Orthodox Jew, and a Zionist. Plaintiff alleges that he was the subject of discrimination and retaliation after he complained about a program on campus called the "Palestinian Solidarity Series." Plaintiff asserts claims for religious and national origin discrimination and retaliation under Title VII of the Civil Rights Act of 1964, New York State Human Rights Law ("NYSHRL"), New York City Human Rights Law ("NYCHRL"), and New York Civil Rights Law ("NYCRL"), as well as claims under 42 U.S.C. § 1983 for violation of his rights to due process and equal protection.
Defendant Nadia A. Saleh ("Defendant") brings this motion to strike Paragraphs 34 through 46 of the Third Amended Complaint. These paragraphs purport to outline the historical origins of the current state of Israel, beginning in Biblical times, then outlining events that took place during the Roman empire through the present day. For the following reasons, Defendant's Motion to Strike is GRANTED.
"It is my hope that Pennsylvanians, and Americans, of all viewpoints and backgrounds will oppose and resist the scourge of Jew-hatred before it undermines what our ancestors have built here."
Pennsylvania Supreme Court Justice David Wecht makes this statement in his personal capacity. This statement is not made on behalf of any other person, nor on behalf of the Supreme Court or any other institution.
The people of Pennsylvania elected me. They put their faith in me, and I reciprocate. I have faith in Pennsylvanians, and they deserve to know the following.
In 1998, my wife and I were married at Pittsburgh's Tree of Life Congregation, on whose Board of Trustees I served. Twenty years later, in the very same sanctuary where our wedding occurred, the worst massacre of Jews in American history was perpetrated. That terror came from the right. Jew-hatred has always festered on the fringe of that sector.
In the years that have followed, that same hatred has grown on the left. Increasingly, it has moved from the fringe to the mainstream. It is the duty of all good people to fight this virus, and to do so before it is too late .
My jurisprudence and adjudication have always been independent, and they always will be. Now, my voting registration reflects that independence as well.
From 1998 to 2001, years that preceded my judicial career, I served as Vice-Chair of the Pennsylvania Democratic Party. In the quarter century that has passed since then, the Democratic Party has changed. Nazi tattoos, jihadist chants, intimidation and attacks at synagogues, and other hateful anti-Jewish invective and actions are minimized, ignored, and even coddled. Acquiescence to Jew-hatred is now disturbingly common among activists, leaders and even many elected officials in the Democratic Party.
Kyle Andrew Edwards, 59, of Alexander, N.C., appeared in federal court today and pleaded guilty to a "doxxing" charge for posting online the home address of a United States Supreme Court Justice with the intent to threaten, intimidate, or incite a crime of violence against the Justice, announced Russ Ferguson, U.S. Attorney for the Western District of North Carolina….
According to information contained in documents filed as part of Edwards' plea and the plea hearing, from April through June 2026, Edwards frequently used an online social media account that was publicly accessible to post comments critical of certain United States Supreme Court Justices. Many of the posts were threatening in nature or were responses to threatening comments made by other users. For example, on June 27, 2025, Edwards posted that the Supreme Court "must be destroyed." Two days later, on June 29, Edwards posted that a certain Supreme Court Justice should "buy Kevlar robes."
According to court documents, on April 8, 2025, Edwards used his social media account to post the correct home address of a United States Supreme Court Justice. On the same day, Edwards posted partial or historical information about the neighborhoods or former home addresses of two other United States Supreme Court Justices. On the day Edwards publicly disclosed the Justice's home address, he made several threatening posts toward other Justices. For example, Edwards posted that a different Justice's home address was unavailable online "to prevent people from assassinating him." Edwards also posted that Justices should "think again" if they thought that "their families are safe." Edwards also encouraged others to "start dragging the SC out by their robes," and to turn the Justices "into charcoal." Court documents show that Edwards posted these comments publicly on his own social media account and within conversations in which some other posters were also making similar threats….
The losing party on this had argued, "[The other party's lawyer] gives up the ghost as a transphobe twisting the First Amendment to mean, in effect, 'Intentionally misgendering you is free, not hate, speech,' a hollow, disingenuous notion echoing willfully ignorant, intellectually dishonest predators who weaponize incompetence as our social fabric tears at the seams in this 'Age of Information.'"
From Justice Gerald Lebovits (Manhattan trial court) in Tuesday's Garlington v. Austin; defendant Burstiner goes by "they/them," but plaintiff had apparently referred to Burstiner as "him":
The branch of defendants' motion to … requir[e] plaintiff to use correct names and pronouns … is denied…. There is … no showing of any actual "misgendering" or any legally cognizable injury arising from it. New York recognizes no tort of "misgendering." …
Burstiner had sought an order "requiring Plaintiff to use correct names and pronouns for all parties, as well as damages for each instance of deliberate misgendering that has occurred and continues to occur," and argued,
New York Penal Law §240.31 criminalizes aggravated harassment in the first degree when conduct is motivated by bias regarding "gender, gender identity or expression" or other protected characteristics. Each instance of deliberate misgendering constitutes a separate violation under this Class E felony provision.
New York Civil Rights Law §79-n provides civil remedies for "bias-related violence or intimidation" based on gender identity. The statute covers "intimidation" as well as violence, and New York courts have recognized that persistent misgendering can constitute bias-related harassment under this provision.
Frankly, I find the charge of genocide against Israel to be obviously absurd, one of those claims that true believers insist upon precisely because the claim is so implausible that promoting it is valuable to show you are a true believer. Hence the pressure by anti-Israel activists for everyone who purports to be "pro-Palestinian" to accept the genocide claim, or be excluded from the club.
Nevertheless, because the genocide lie is so common in public discourse over Gaza, I thought it would be useful to write a piece debunking the claim, though I wasn't sure where I would place it. Serendipitously, Skeptic Magazine solicited an article for me, giving me the opportunity to present my case in about four thousand words, with footnotes.
I also wrote a much shorter version for my Times of Israel blog. And an even shorter synopsis follows below:
The accusation that Israel is committing "genocide" in Gaza has become commonplace in protests, university activism, social media campaigns, and international legal rhetoric. But one striking feature of the debate is how little attention is paid to a basic question: what would genocidal behavior actually look like, and does Israel's conduct resemble it?
The answer is plainly no.
Genocide is not simply a war that causes extensive civilian casualties. It is the deliberate attempt to destroy a people as such. Historically recognized genocides share recognizable characteristics: civilians are targeted precisely because of their identity, and the perpetrators seek maximum civilian death rather than military victory.
Israel's conduct in Gaza looks very different.
To begin with, Israel has repeatedly taken steps that are fundamentally inconsistent with exterminatory intent. Before major operations, the Israeli military has issued evacuation warnings through phone calls, text messages, leaflets, and media announcements. It has established humanitarian corridors and periodically paused military activity to facilitate civilian movement and aid delivery. It has employed "roof-knocking" procedures designed to warn civilians before airstrikes. Armies attempting genocide do not warn civilian populations to leave targeted areas in advance.
The broader strategic picture points in the same direction. Israel possesses overwhelming military superiority over Hamas. If Israel's objective were truly the destruction of Palestinians as a people, the death toll could have been vastly higher within a very short time. Instead, Israel has fought a grinding urban campaign focused on Hamas infrastructure, tunnel systems, command centers, rocket launch sites, and militant leadership. The fact that civilian casualties have nevertheless been severe reflects the reality of urban warfare against an armed group deeply embedded in civilian areas, not a campaign aimed at exterminating Palestinians as such.
Indeed, Hamas's military strategy depends heavily on operating within densely populated civilian zones. Weapons are stored in residential neighborhoods, fighters operate from civilian buildings, and command infrastructure has been constructed beneath urban areas. None of this relieves Israel of its obligations under international humanitarian law. But it does provide an obvious military explanation for large-scale civilian casualties,
The genocide accusation also struggles to explain conduct that makes little sense if extermination were the goal. Israel has facilitated substantial humanitarian aid into Gaza despite the obvious military disadvantage that aid creates by potentially benefiting Hamas. Israeli officials have repeatedly coordinated aid deliveries, fuel transfers, field hospitals, and medical evacuations under enormous international pressure and domestic controversy. Again, critics may argue these efforts are inadequate. But inadequate humanitarian precautions are not the same thing as an intent to destroy an entire population.
One must also note the political context. Accusations that Israel is genocidal long predate the current war. Versions of the claim were promoted in Soviet anti-Zionist propaganda after the Six-Day War and later reemerged at the 2001 Durban conference, where activists portrayed Zionism itself as inherently racist and genocidal. In many cases, the conclusion preceded the evidence.
The danger of stretching the term genocide beyond recognition is substantial. If every brutal urban war involving high civilian casualties becomes genocide, then the concept loses the distinctive moral and legal meaning that made it powerful in the first place.
From Judge Gerald Lebovits (Manhattan trial court) in Tuesday's Garlington v. Austin:
In this action, plaintiff, Erik Garlington, brings claims for defamation … against defendants Nicole Austin (his former spouse) and Mark Burstiner. Plaintiff, a musician [see this Rolling Stone story -EV], alleges that defendants made defamatory statements that accuse plaintiff of criminal conduct, including rape, sexual assault, grooming minors, sex trafficking, serial killing, and felonies.
Plaintiff asserts that defendants created a website titled "Known Rapist Erik Garlington" and posted allegedly defamatory statements on social media platforms like YouTube (a six-hour video). Plaintiff further alleges that defendants repeated the statements to colleagues, employers, and the press. { Plaintiff points to a fake website defendants created, defendant's six-hour YouTube video, social-media posts, and direct emails to festival organizers and industry contacts that have caused ongoing reputational and economic harm.} Plaintiff represents that defendants "posted his home address online and left taunting messages promising violence," causing him to fear for his and his partner's safety. Plaintiff asserts that the statements harmed his reputation and his professional activities as a musician….
Speech may be enjoined when it (1) "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (id. [internal quotation marks omitted]); (2) is "considered part and parcel of a course of conduct deliberately carried on to further a fraudulent or unlawful purpose"; or (3) risks harm to recognized personal or business reputation or privacy (see Dennis v Napoli(N.Y. App. Div. 2009) [holding that communications that "cause injury to plaintiff's "reputation, jeopardize her employment, and otherwise unnecessarily intrude upon her right to privacy" are not constitutionally protected]; Bingham v Struve (N.Y. App. Div. 1992))….
Plaintiff is a private figure. His public presence is confined to his artistic work as a singer and guitarist. Nothing before the court suggests that he has sought publicity beyond that narrow music-industry sphere. The challenged statements, however, do not concern his music career. Accusations that he is a rapist, a felon, or a serial killer, or that he groomed minors, sexually trafficked his partner, or engaged in other violent or predatory conduct, bear no demonstrated connection to the subject on which he has sought any public attention.
From NDMAscendant, LLC v. Matze, decided Thursday by the Nevada Supreme Court (Justices Kristina Pickering, Elissa Cadish, and Patricia Lee):
This case arises from the firing of respondent John Matze, CEO of the former social media company, Parler LLC. Parler was a social media platform that touted its commitment to free speech. However, Parler was eventually deplatformed from Apple and Amazon app stores following allegations that the app was used by participants in the January 6, 2021, incident at the U.S. Capitol. In the aftermath of the deplatforming, Matze was fired, and he subsequently wrote a memorandum commenting on the circumstances of his firing. This memorandum was leaked and reported on by various news sources, including Fox Business.
Appellant Dan Bongino—then a political commentator, radio show host, and Parler shareholder—published a Facebook Live video on his Facebook page in response to Matze's memorandum and public statements. Bongino asserted that Matze's narrative regarding the circumstances of his firing was untrue, including statements that some "really bad" and "terrible" decisions had been made "by people on the inside" that "led to us getting put down by Amazon and others," costing the company its "product stability." Bongino further claimed that Bongino and his Parler colleagues were more committed to free speech and product stability than Matze.
Matze sued for, among other things, defamation, but the court rejected the claim, concluding that Bongino's statements were opinions and therefore not actionable:
"[A]bsent a clear showing of substantial harm to the child, the noncustodial parent retains his or her fundamental right to direct the child's religious upbringing during his or her parenting time."
From Friday's decision of the Nebraska Supreme Court in Munsell v. Munsell (opinion by Justice Derek Vaughn):
Jacob and Libby married in 2010 and had two children, one born in 2016 and the second born in 2018. In February 2024, Libby filed a complaint seeking dissolution of the marriage.
The parties stipulated to the division of their property, and they agreed to share joint physical custody of the children under a rotating parenting schedule that gave each parent equal time. Trial was had on the contested issues of legal custody, the children's involvement in the church attended by Jacob (church), and the children's attendance at the church camp during Jacob's parenting time. Jacob appeals the district court's decision on legal custody and church camp attendance.
The trial court concluded that the parents were in sufficient conflict that joint legal custody wasn't feasible, and therefore awarded legal custody to Libby, and the Nebraska Supreme Court upheld this. But the trial court also concluded that Jacob couldn't have the children attend the church camp even during his own parenting time, and on this the state supreme court disagreed:
Jacob and Libby were raised in the same religion as that of the church Jacob currently attends. Jacob testified the church follows the tenet that women should be "subservient" to men and that the church should be led by men. During their marriage, the parties and the children attended the church. However, Libby testified that she "left the church" about 5 months before filing for divorce, no longer agreed with some of the church's teachings, and did not like that there were "no women leaders and wom[e]n were silenced and subjugated." She also testified that she did not like the "culture of fear and shame that the church brings on, fear of hell and fear of punishment." After the parties separated, the children continued to attend the church with Jacob during his parenting time, and Libby initially supported this practice. At trial, however, the parties disagreed on whether the children should continue to attend the church….
5/11/1942: Gordon Hirabayashi "failed to report to the Civil Control Station within the designated area." The Supreme Court upheld the constitutionality of his conviction in Hirabayashi v. U.S. (1943).
On May 20, 2-3 PM eastern time, the Cato Institute will host an online event on "Trump v. Barbara: Birthright Citizenship at the Supreme Court." The event is free and open to the public. Registration information available here. The participants will be prominent immigration law scholar Prof. Gabriel Chin (UC Irvine), leading legal historian Paul Finkelman (Univ. of Toledo), and myself. Dan Greenberg of the Cato Institute will moderate.
The Supreme Court held oral argument in the case on April 1, and I put up a post about some of the issues raised here. In a recent article in Lawfare, I explained why all the Trump Administration's rationales for denying birthright citizenship to children of undocumented immigrants would, if applied consistently, also have had the effect of denying it to large numbers of freed slaves and their children, thereby undermining the central objective of the Citizenship Clause of the Fourteenth Amendment. This alone dooms Trump's position under the original meaning of the Clause, even aside from all the other flaws in his arguments.
Last week, the Virginia Supreme Court invalidated the new maps by a 4-3 vote. The Virginia Attorney General has signaled he will seek emergency relief with the United States Supreme Court based on the independent legislature theory. I agree with Rick Hasen that this argument will not work under Moore v. Harper. This case did not "arrogate" the power of the legislature. I am not an expert in this area of law, but the majority opinion seems persuasive, and at a minimum seems well within the bounds of a judicial decision.
Are there any other options remaining for Virginia democrats? I thought the answer was no, but apparently there is a theory floating around.
One key to the plan would be having Democrats in Richmond lower the mandatory retirement age for state Supreme Court justices, an idea that began circulating among state lawmakers and members of Congress after a column proposing a version of the idea was published on Friday night in The Downballot, a progressive newsletter.
Ms. Spanberger would have to sign off on any legislation that lowered the judicial retirement age. She has not been briefed on the proposal, the people involved in the discussion or briefed on it said. Her spokeswoman, Libby Wiet, declined to comment.
The first step in the process, as discussed on the delegation's call, would be to invoke a January ruling by a circuit court judge in Tazewell County, Va., that said the 2026 constitutional amendment effort to redraw the maps was invalid because county officials did not post notice of it at courthouses and other public locations three months before a general election.
Democrats would aim to use that ruling to seek to invalidate the earlier constitutional amendment that created the state's independent redistricting commission by arguing that courthouses across the state did not post notice of it at the time. That would give the legislature the authority to enact a map of its choosing.
Ensuring the plan proceeds would involve the General Assembly, which is controlled by Democrats, lowering the mandatory retirement age for Virginia's Supreme Court from 75 to 54, the age of the youngest current justice, or less. Virginia judges are appointed by the General Assembly, where Democrats hold majorities in both chambers and could then fill vacancies on the court with sympathetic Democratic lawyers.
In other words, the legislature would "retire" all of the Justices in the majority, install cronies to the court, have the court invalidate the independent legislation commission due to the lack of notice, then enact a new map. And all of this could be done before the August primary. Simple, right?
Thankfully, several Democrats publicly spoke out against this plan. At least one Democrat went on record supporting the plan:
Representative Suhas Subramanyam, a Democrat who represents Loudoun County, Va., said in an interview that he supported doing whatever was necessary to preserve the map voters approved in last month's referendum — including replacing the state's Supreme Court justices.
"Everyone has got to have a strong stomach right now; this is a complete disaster waiting to happen if people are timid," said Mr. Subramanyam, who was on the Saturday call. "We have Republican states ignoring their constitutions and interrupting early voting and ignoring their Supreme Courts all together. We know based on that, Republicans would explore every single option possible to move this forward."
Here is the proposal in detail from The Down Ballot substack.
Article VI, Section 9, of the Virginia Constitution gives the legislature unlimited authority to set the retirement age for judges. It specifies, "The General Assembly may also provide for the mandatory retirement of justices and judges after they reach a prescribed age, beyond which they shall not serve, regardless of the term to which elected or appointed."
Current law sets the mandatory retirement age at 73: "Any member who attains 73 years of age shall be retired 20 days after the convening of the next regular session of the General Assembly following his seventy-third birthday."
This number is arbitrary. States around the country with similar laws mandate retirement across a wide range of ages. Virginia lawmakers can simply lower theirs. Make it 54 for Supreme Court justices—the age of the youngest justice, Stephen McCullough, who joined the majority opinion—and make it take effect immediately. . . .
Then, after the bill is approved, the entire court would retire. A new court would then be appointed that could re-hear the case and have the opportunity to issue a different ruling.
Democrats might prefer other solutions, but if they want to see the will of the voters respected in time for the November elections, there are virtually no other options—and none with as good a chance of success as this one.
The genius of the plan: when judges rule against your preferred cause, simply replace them. I realize there has been much debate about whether a federal judge can be impeached on the basis of his decision. But here, judges would clearly be removed for their decision by virtue of lowering the retirement age to 54. Just for reference, Justice Ginsburg was appointed to the Supreme Court at the age of 60. Justice Holmes was 61.
We often talk about constitutional hardball. This would be murderball. Especially in light of this pressure, I do have to offer some praise for Justice Arthur Kelsey, who wrote the majority opinion. My friend Rob Luther, a professor at Scalia Law, offered these remarks:
I think Justice Arthur Kelsey of the Supreme Court of Virginia is the clear winner of "Judge of the Week" this week. He wrote the opinion in the Virginia redistricting case despite being up for reappointment by a D-controlled General Assembly in January. He's 64, but mandatory retirement for Virginia judges is 73. Kelsey is known as a conservative but if he'd have voted with the Democrats he probably would have been reappointed. Many squishes would have tried to save themselves. But not Kelsey. Instead, he willingly signed his own judicial death warrant.
People often ask me to show them an example of "judicial courage"— obviously it's harder for Article III judges—but this is as good an example as I could imagine.
Indeed, this is an act of judicial courage. He will likely lose his position, even if the retirement age is not altered.
