Congratulations to Sam, for having a total of six of his works cited in the same opinion.
Counting all American courts, posts on the blog have been cited by over 80 court opinions, including once before by Justice Thomas.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Annual Aspiring Free Speech Scholars Workshop
Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O'Connor College of Law (ASU)
and the Hoover Institution (Stanford University)
Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars
Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?
If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that's already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O'Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.
We have funds to pay for transportation and lodging for the selected authors' trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.
CJ Roberts Agrees with AT&T and Verizon, But Rules For FCC
The SG flipped positions on appeal, and the Chief Justice whips up a blue plate special to deny the carriers a refund.
I often describe Chief Justice Roberts's decisions as "blue plate specials." If you read the bottom line, it seems like the liberal side win, but the mechanics of the decision helps the conservatives in the long run. In other words, the right might lose the battle, but they win the war. After more than two decades, the Chief Justice has made this balanced approach to jurisprudence into an art form.
Today's decision in FCC v. AT&T is the latest example.
The FCC alleged that AT&T and Verizon violated federal law, and assessed a forfeiture order of $57 million and $47 million, respectively. The order stated in capitalized bold letters the forfeiture was mandatory:
"IT IS ORDERED that, pursuant to section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80 of the Commission's rules, 47 CFR §1.80, AT&T, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of [$57,265,625] for willfully and repeatedly violating section 222 of the Act and section 64.2010 of the Commission's rules." App. to Pet. for Cert. in No. 25–406, at 131a.
The carriers argued that the government could not impose that fine without first providing a de novo trial in an Article III court under Jarkesy. But, following longstanding precedent, the carriers paid under protest, and brought suit to get their money back. The Fifth Circuit held that this regime, which required the mandatory payment of a fine before an Article III proceeding, violated the Seventh Amendment and Jarkesy.
As the case was litigated below, the question presented was whether the requirement to pay the fine before the proceedings is an Article III problem. But then the government, as it often does, changed the case on appeal. It turns out all along that the forfeiture was voluntary. These sophisticated firms were just too stupid to read a statute, and they mistakenly paid $100 million under protest.
On appeal, the Chief Justice whipped together a blue plate special. He agreed with AT&T and Verizon on the law, but ruled for the FCC. The Court stated, "The orders at issue . . . did not create an obligation to pay." Who knew? If only all lawyers were as smart as John Roberts.
This case split 8-1. Only Justice Thomas in dissent was willing to say the quiet part out loud:
The Court agrees with AT&T and Verizon that they were entitled to a jury trial de novo before an Article III court before they could be forced to pay. It agrees that they did not in fact receive such a jury trial de novo. But, it rules in favor of the Commission. The Court does so because the Commission, after AT&T and Verizon paid it over $100 million, took the position that its orders were not really binding after all. The Commission now agrees that AT&T and Verizon would have been entitled to a jury trial de novo in an Article III court had they declined to pay. Because its orders were not binding until after that jury trial, the Commission says, AT&T and Verizon in reality paid the Commission voluntarily. The Court accepts that account and does not grant the carriers any relief. Because I would give the parties an opportunity to proceed under a correct understanding of the law, I respectfully dissent.
Justice Thomas would have decided the case that was actually presented to the Court.
But as a court, we must resolve the cases before us. Regardless of what the Commission will do in the future, or what the Court believes it should have done all along, we granted certiorari in cases arising from two orders that theCommission addressed to AT&T and Verizon in 2024. At that time, neither the Commission nor the courts complied with the limits that the Court describes today.
Whenever you see statistics about how often the Fifth Circuit is reversed, ignore those statistics. It happens all the time that the government switches position on appeals from the Fifth Circuit. You cannot fault lower court judges who decide a case on one grounds, and the Supreme Court reverses on entirely new arguments. I made this same point in 2024 about the mifepristone case, which was radically altered on appeal.
The worst part of the majority opinion is Footnote 5. What happens to the $100 million that the carriers already paid. Do they get a refund? The Chief Justice refuses to answer the most obvious question that was necessitated by this "newfound account."
The carriers also argue that the specific forfeiture orders in this case misled them into paying, and that a refund is therefore appropriate. See Reply Brief 17–19; Tr. of Oral Arg. 75 (Government acknowledging thatit "cannot mislead someone into waiving his jury trial rights"); see also post, at 3, 6–7 (opinion of THOMAS, J.). We express no view on the merits of this argument, what relief may be available to the carriers, or in what proceeding.
The emperor has no clothes.
Now the case goes back to the lower court to determine if a refund is appropriate.
Still, I don't think Verizon and AT&T will be too upset. The Supreme Court agreed with the SG, and effectively neutered this statutory scheme:
And as explained above, the Commission is powerless to visit any adverse consequences on a regulated party who receives a forfeiture order.
If the FCC issues a forfeiture order, carriers will simply decline to pay and wait to be sued. The FCC does not have the resources to bring all of these cases in federal court. The government may have won the battle but lost this war. I'm sure the career people at the FCC were infuriated by SG's position, but here we are.
Will the Supreme Court Review Judge Newman's Stealth Impeachment?
The Court should grant cert on the important separation of powers issue raised by her long-running, allegedly "temporary suspension" from case assignments.
Judge Newman has been "temporarily" suspended from case assignments in the Federal Circuit by her fellow judges. She has filed a cert petition with the Supreme Court. Her "stealth impeachment" raises significant issues worthy of Supreme Court review. Since all the briefing on her cert petition is now completed -- and a decision on the petition is imminent -- this post will briefly recap the issues, with the most important briefs linked.
As I've blogged about previously, recall that Judge Newman has challenged her suspension from new case assignments. (Fellow bloggers Josh Blackman and Jonathan Adler have also followed the case closely.) But in the latest ruling, the D.C. Circuit held that the Judicial Council's Reform and Judicial Conduct and Disability Act of 1980 blocks any review of the lawfulness of this suspension.
In March, Judge Newman filed a cert petition presenting the important constitutional question of whether she is entitled to her day in court to challenge the lengthy suspension, which has no end in sight. Her petition begins with this powerful introduction:
This petition presents questions concerning crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the federal judiciary and every litigant who appears before them. For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its "Great Dissenter") from the bench.
The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 ("the Disability Act") bars review of the unlawful actions taken against Judge Pauline Newman. This administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues, with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.
Judge Newman has continued to speak and write before the legal community, and no finding of disability has been made concerning her in the years since the unlawful administrative orders began. She voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger. She now has been suspended longer than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation are unprecedented.
Since then, significant amicus briefs have been filed supporting Judge Newman. Last month, I filed one such supporting amicus brief, joined by former federal judges Janice Roger Brown, Paul R. Michel, Kent A. Jordan, Randall R. Rader, Thomas I. Vanaski, and Susan G Braden. Our brief argues that federal courts must be able to review constitutional claims of the type presented by Judge Newman:
In its decision below, the D.C. Circuit reaffirmed a 25-year-old precedent that prevents federal judges from seeking federal-court redress from Judicial Council actions that de facto remove them from the federal bench. That bar applies without regard to whether—as alleged here—the Judicial Council has acted in violation of the judge's rights under the U.S. Constitution. Particularly in light of the threat to judicial independence posed by the many recent attacks on the authority of federal judges, the Court should grant review to reaffirm the authority of federal courts to intervene to hear claims raising constitutional claims of the sort at issue here.
If Judge Ross's "Improper Sexual Activity" "Greatly Damage[s] [Her] Credibility as a Judge," Does That Satisfy the Standard for Impeachment?
Another guest post from Professor Arthur Hellman.
The Eleventh Circuit Judicial Council may have thought Judge Eleanor Ross's apology was sufficient to keep the reprimand private, but those not wearing a robe continue to see a problem. Representative Jordan of the House Judiciary Committee is starting to discuss an investigation.
The House Judiciary Committee's top Republican said his staff is looking at possible congressional action after a Georgia federal judge had an affair in her chambers, in earshot of clerks, and lied to judiciary officials about it.
Judiciary Chairman Jim Jordan (R-Ohio) said Wednesday that his staff has "already put together a memo" on the facts involved in the misconduct findings against Judge Eleanor Ross of the Atlanta-based US District Court for the Northern District of Georgia.
The "key fact," he said in a brief interview, was that Ross lied to the judges investigating her misconduct. A judicial special committee report, released publicly in May, found the judge made "false statements" to the chief judges of her district and of the US Court of Appeals for the Eleventh Circuit, which oversees federal courts in Georgia, Florida, and Alabama.
"We're looking at it. We're going to run it by our members and see," Jordan said.
Jordan also wouldn't rule out impeachment as a possible response, a rare process for judges historically.
"Everything's on the table," Jordan said. "We don't take anything off the table."
To keep this discourse going, I am happy to pass along another guest post from Professor Arthur Hellman about Judge Eleanor Ross's situation.
If Judge Ross's "Improper Sexual Activity" "Greatly Damage[s] [Her] Credibility as a Judge," Does That Satisfy the Standard for Impeachment?
In a recent guest post, I explained why one of the findings of judicial misconduct by Atlanta Federal District Judge Eleanor Ross – making false statements to investigating judges – corresponds closely to conduct that was one basis for impeaching Federal District Judge Samuel B. Kent in 2009. A second finding of misconduct by Judge Ross – labelled "Improper Sexual Activity in Chambers with a Law Enforcement Officer" in the Special Committee report – has no counterpart in any judicial impeachment proceeding that I'm aware of. But that does not mean that it could not be a possible basis for impeachment.
My purpose here is not to develop the point in detail, but rather to call attention to a statement in the Special Committee report that bears on the question. The Eleventh Circuit Judicial Council unanimously adopted the "findings and recommendations" of that report. To provide complete context, I will copy a little more of the paragraph than is probably necessary. Here is what the Special Committee wrote (pp. 15-16):
"For two years, the Subject Judge was a federal district judge who routinely heard criminal cases [and who] engaged in a secret extramarital relationship with a prominent officer of a large law enforcement agency in the judge's district—with the affair consisting of sexual intercourse in the Subject Judge's chambers during working hours. Moreover, during this period, the Subject Judge's spouse was not aware of the affair. Undoubtedly, a bad actor could have used these facts to try to blackmail the Subject Judge. Even absent a blackmail attempt, the publication of these facts would have greatly damaged the Subject Judge's credibility as a judge and brought disrepute to the federal judiciary."
The first quoted sentence summarizes the judge's conduct. The last sentence states that "the publication of these facts" – i.e., the facts stated in the first quoted sentence – "would have greatly damaged the Subject Judge's credibility as a judge and brought disrepute to the federal judiciary."
Preliminarily, it seems odd to state that "publication of [the] facts" would "greatly damage[] [Judge Ross's] credibility as a judge," etc. If that is so, it must be because public knowledge of the underlying conduct would have that result. In any event, the facts have now been published, and (notwithstanding the Judicial Council's efforts), the identity of the judge is also public knowledge. (The Council apparently acted as it did because it believed, as stated on the last page of the Special Committee report, that Judge Ross had provided "otherwise exemplary service to the court" and that she should be allowed to continue that service.)
Now let us consider the standard for judicial impeachment. Under the Constitution, an Article III judge like Judge Ross can be impeached and removed from office for "high crimes and misdemeanors." In my testimony at the House Judiciary Committee Task Force hearing on the proposed impeachment of Judge Kent, I sought to ascertain the meaning of that term as applied to judges. There were (and are) no judicial decisions to consult, because impeachment is not subject to judicial review. Instead, I looked to Founding Generation sources and to early commentators whose writings have been relied on by the Supreme Court to determine the meaning of other constitutional provisions.
Two of the commentaries are particularly relevant here. (For background and citations, see the hearing statement linked above.) William Rawle, writing about the "system" of impeachment, stated: "We may perceive in this scheme one useful mode of removing from office him who is unworthy to fill it." (Emphasis added.) The House Judiciary Committee, in its report recommending impeachment of Judge Kent, quoted this language from Rawle's treatise (p. 18).
Justice Joseph Story, in his widely cited treatise on the Constitution, discussed the question whether impeachment is limited to "official acts." Story asked: "Suppose a judge or other officer to receive a bribe not connected with his judicial office; could he be entitled to any public confidence? Would not these reasons for his removal be just as strong, as if it were a case of an official bribe?" (Emphasis added.) I cited this statement in response to a question from then-Rep. Adam Schiff, the chairman of the Task Force, at the Kent hearing. See pp. 215-16 of the hearing record.
Judge Story's premise seems to be that a judge or other officer warrants impeachment and removal if she has engaged in behavior that results in a loss of "public confidence" in her ability to perform the functions of her office. (And that behavior is not limited to "official acts.") This is not quite the same thing as saying that the officer is not worthy to fill the office, but there is substantial overlap, and both formulations suggest a similar forward-looking perspective.
It seems to me that the Special Committee's statement about Judge Ross's "improper sexual activity" corresponds closely to both delineations of the impeachment standard. The Committee said that public knowledge of Judge Ross's conduct would "greatly damage[] [her] credibility as a judge." If her credibility is greatly damaged, isn't that strong evidence that she is "unworthy to fill' the judicial position that she holds? And would she still be entitled to "any public confidence?"
None of this is definitive; each case is different. But these views of the impeachment standard – one of which was explicitly endorsed in the House Judiciary Committee report recommending the impeachment of Judge Kent – are sufficient to warrant the House in opening an inquiry into the possible impeachment of Judge Ross, independent of her false statements to investigating judges.
There is one aspect of the Eleventh Circuit's memorandum that I can't quite pin down. I agree that Judge Ross's sexual misconduct "damaged the Subject Judge's credibility." That is almost always true--a judge that engages in misconduct has diminished credibility. But did the Council seek to avoid further diminishing the judge's credibility by making the reprimand private? In other words, was the private reprimand an effort to ensure that Judge Ross could continue doing her job. She is already facing at least one recusal motion, and more will follow. Stated differently, once the Council determined that no meaningful punishment would be given, and that even the apology letters could be vague, the judges determined that the best path forward for Judge Ross's continued judicial service was to make the reprimand private. There is definitely some sort of coupling between the "diminished credibility" risk and the private reprimand, but I can't quite tease it out.
More on the Southern Poverty Law Center Allegedly Funding the American Nazi Party and Other Racists
"[The National Socialist Party of America leader] used [SPLC] donors' money to, among other things, travel to extremist rallies, host extremist rallies, donate money to leaders of other extremist organizations, recruit new members into his extremist organization, publish racist and extremist material for the purpose of recruiting new members, both inside and outside of prison, and create racist paraphernalia to sell at rallies to raise more money for his extremist organization."
I wrote in April about the initial Indictment in U.S. v. Southern Poverty Law Center (M.D. Ala.). As I wrote, the indictment opens,
The Southern Poverty Law Center's ("SPLC") stated mission included the dismantling of white supremacy and confronting hate across the country. However, unbeknownst to donors, some of their donated money was being used to fund the leaders and organizers of racist groups, including the Ku Klux Klan, the Aryan Nation, and the National Alliance. The SPLC's paid informants ("field sources") engaged in the active promotion of racist groups at the same time that the SPLC was denouncing the same groups on its website….
[T]he SPLC explicitly sought donations under the auspices that donor money would be used to help "dismantle" violent extremist groups. In the SPLC's solicitations for donations as outlined herein, donors were not told that some of the donated funds were to be used by the SPLC to pay high-level leaders of violent extremist groups and others, nor were donors ever told that some of the donated funds were used for the benefit of the violent extremist groups or that some of the donated funds would be used in the commission of state and federal crimes.
Tuesday's Superseding Indictment offers some more detail about the allegations, among other things elaborating on the activities of one of the people working for it (labeled F-30, with "F" being the SPLC term for "field source") and adding information about two others (F-31 and F-32):
F-30 led the National Socialist Party of America, was a member of the Ku Klux Klan, and was the leader of a faction of the Aryan Nations that had chapters in approximately 17 states.
In approximately 2010, out of money and seeking to get out of the white nationalist movement ("the movement"), F-30 reached out to the SPLC, unsolicited, and discussed a plan to leave the movement. Thereafter, the SPLC employee offered F-30 a monthly salary of approximately $2,500.00 in addition to payment of expenses to continue to lead and maintain the violent extremist organization F-30 told the SPLC employee he wanted to leave….
Court Refuses to Release Auto-Generated Transcript in Justin Fairfax Child Custody Trial, Citing AI Transcription Errors
An interesting May 22 order from the court in the Justin Fairfax child custody trial, Fairfax v. Fairfax (Judge Timothy McEvoy, Fairfax County [Va.] Cir. Ct.) (the requestor is apparently an independent writer, at https://blackvirginianews.substack.com/):
This Court recently began making uncertified transcripts of the audio recordings of Court proceedings (each such transcript, an "Uncertified Transcript") available to parties with a need for them. However, such Uncertified Transcripts are provided for informational purposes only. They are not checked, proofread, or corrected. They are not official Court records and may not be relied upon for any purpose absent agreement of all parties and further Court order;
Uncertified Transcripts are machine-generated by natural language processing artificial intelligence software that, while improving, often produces meaningful inaccuracies, limiting the usefulness of such transcripts and creating a risk that a person reading them, and particularly a non-party, will misunderstand what actually happened during the transcribed proceedings;
Court Reverses Child Porn Convictions, Finding Material Was Non-Lewd Family Photos and Videos
From People v. Nichols, decided Tuesday by Justice Mark Clarke, joined by Justices John Barberis and Barry Vaughan:
[The] charges [in this case] were predicated on photographs and videos of the defendant's minor daughters taken between 2002 and 2016 and were found on a computer and an external hard drive in the defendant's home. The defendant's husband, Douglas Nichols, who is not a party to this appeal [but who reportedly has filed his own appeal -EV], was also charged … with possession of the same images and videos.
Some backstory on how the images were found, from a March article in the Decator Herald & Review (Tony Reid):
Detectives with the Decatur Police Department had been looking for evidence on four counts of … earlier criminal sexual assault charges against Douglas Nichols alone plus eight counts of aggravated criminal sexual abuse involving a female teenage victim when they came across the pictures and video that led to the child sex abuse image charges.
A December 2022 story in the same newspaper by the same reporter says:
On May 20, 2021, the Decatur Police Department received a complaint from an individual alleging sexual assault that had occurred over 10 years ago by a subject known to them. The case was assigned to a detective and an investigation into the allegations immediately commenced.
Back to the wife's appeal:
[D]efendant had two daughters, Ky.N. (born November 4, 2000) and Ki.N. (born October 1, 2002)…. Ky.N. testified [at trial] that she was voluntarily testifying, and that she had always felt safe and felt that her mother was supportive growing up. She testified that the family's digital cameras were usually placed where anyone could access or use them, that she had used her mother's phone to take pictures whenever she had wanted to, even daily, and that her sister had done the same. She also testified that her mother took photos of her and her sister all the time. Additionally, Ky.N. testified that her parents never asked her to take her clothes off before taking photographs or videos of her, and that they had never asked her to pose in a sexually suggestive manner….
Today in Supreme Court History: June 4, 1923
6/4/1923: Meyer v. Nebraska decided.
Open Thread
What’s on your mind?
Trump's Dubious New Section 301 Tariffs
They appear to be yet another illegal power grab, one that should be challenged in court.
Last night, the Trump Administration revealed plans to use Section 301 of the Trade Act of 1974 to impose massive new tariffs on imports from some 60 countries around the world, under the pretext that this is necessary to combat their importation of goods that use forced labor:
The Trump administration has taken a key step toward rebuilding a tariff wall around the U.S. economy, announcing new restrictions on goods from 60 trading partners that U.S. officials say lack sufficient prohibitions on the use of forced labor.
Under the plan, goods from nations that the U.S. says have not banned forced labor, including China, India, Britain and Japan, will face 12.5 percent tariffs. Goods from the European Union, Canada, Mexico and other nations that the U.S. says have failed to enforce bans will face 10 percent levies, the administration said in a late-night announcement Tuesday.
While he's relying on a different statute, the tariffs Trump plans to impose here seem very similar to the 10% Section 122 tariffs recently invalidated by the US Court of International Trade, and the International Emergency Economic Powers Act (IEEPA) tariffs struck down by the Supreme Court in February, in a case I helped bring. The tariff rates (10-12.5%) are similar and so are the various exemptions outlined by the administration.
In addition, I am extremely skeptical of the claim that all of these sixty countries - including numerous affluent liberal democracies - are actually more lax about importing goods produced by forced labor than the US is. And if forced labor were really the concern, there would be no reason to impose massive tariffs on virtually all imports from those nations, even though the vast majority of those goods have little or no connection to forced labor. It sure looks like the forced labor issue is just a pretext for large-scale protectionism of the same kind courts blocked earlier. This looks like yet another presidential power grab seeking to usurp Congress' authority over tariffs, granted by Article I of the Constitution.
In an analysis on Twitter/X Georgetown University law Prof. Peter Harrell - a leading expert on international trade law - notes that the "proposed tariffs are pretty clearly a straightforward attempt to recreate the IEEPA tariffs, and not the sort of detailed and precise country-by-country actions that 301 has been used for in the past." He adds that "while there is some country-by-country analysis of how individual investigated countries either do not have or do not enforce prohibitions on importers made by forced labor, there is not detailed country-by-country analysis about how those imports harm US commerce [as Section 301 requires]. Instead, USTR relies on the case studies and more general, global macroeconomic studies of forced labor in the global economy to argue harm."
In a recent article on Just Security, legal scholars Gregory Shaffer and Jeremiah May argue that the use of Section 301 to impose sweeping tariffs on many nations and goods at once is vulnerable to the same types of nondelegation and "major questions" challenges as helped bring down the IEEPA tariffs. The major questions doctrine requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance."
I agree with most of their analysis, and would add that three of the six majority justices in the IEEPA Supreme Court case (Chief Justice Roberts, Barrett, and Gorsuch) relied in large part on the major questions doctrine in ruling against the IEEPA tariffs. The same is true of the Federal Circuit ruling against those tariffs; Federal Circuit precedent is binding on the US Court of International Trade, which would review any challenges to the Section 301 tariffs. The imposition of massive tariffs imports from 59 countries, plus all of the European Union, is undeniably a major question, just like the IEEPA tariffs were. And, like those tariffs, they will - if allowed to remain in place - raise prices for consumers and inflict massive damage on the US economy, while further poisoning relationships with our allies and trading partners.
Furthermore, the Supreme Court majority in the IEEPA case emphasized that "the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Chief Justice Roberts went on to note that, while some statutes do grant the president tariff authority (among which they specifically cited Section 301), "[w]hen Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits," including "demanding procedural prerequisites." As Shaffer and May explain, Section 301 targets specific "unfair" trade "policies" and "practices" and is not a general grant of tariff authority to be used whenever the president wants. The proposed Section 301 tariffs, they emphasize, go far beyond anything done under Section 301 in the past.
Ultimately, the new Section 301 tariffs appear to be yet another attempt to give the president a blank check to impose tariffs at will. The same is true of the administration's plans to use Section 301 to target "structural excess capacity," which rely on the absurd premise that it is somehow an unfair trade practice for countries to be able to produce more goods than they can use themselves.
The new Section 301 tariffs cannot go into effect until there is a notice and comment period. Interested groups can submit comments until July 6. Peter Harrell urges stakeholders to submit comments opposing the tariffs, and I agree! They are unlikely to change the administration's position, but could potentially help plaintiffs in future litigation against the tariffs, when and if they are imposed.
Should the administration go ahead with these plans, I urge industry groups, public interest organizations (like the Liberty Justice Center, which I worked with on the IEEPA case), and state governments to bring lawsuits challenging the Section 301 tariffs. The IEEPA and Section 122 cases show that courts are willing to strike down massive tariff power grabs, and will not give unlimited deference to the executive. That doesn't guarantee victory. But it is grounds at least for cautious optimism.
Ninth Circuit Affirms Dismissal of Lighthiser v. Trump Kids' Climate Suit
Yet another federal court opinion dismissing constitutional climate change claims.
Yesterday, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of Lighthiser v. Trump, the latest in a series of lawsuits filed on behalf of youth plaintiffs alleging that the federal government's failure to take meaningful action to mitigate climate change--and, in particular, the Trump Administration's promotion of fossil fuels--violate the U.S. Constitution.
The panel made quick work of the plaintiffs' claims in a brief, unpublished opinion. Despite the impressive roster of amici lined up to support their claims, the plaintiffs could not convince any of the three judges on the panel (Owens, Van Dyke, and Sung) that they had standing, or that the merits of their claims were worth discussing.
A central argument in this appeal was whether the plaintiffs could distinguish their case sufficiently from the Juliana case, which the Ninth Circuit had also dismissed on standing grounds. Unsurprisingly, the court did not find the effort to distinguish the cases convincing.
From the opinion:
1. Plaintiffs have not plausibly alleged that their asserted injuries are "caused by the challenged" Executive Orders. Juliana v. United States, 947 F.3d 1159, 1168 (9th Cir. 2020).1 According to the complaint, Plaintiffs will be harmed by numerous agency actions which, Plaintiffs allege, will "implement" the Executive Orders over several years. But Plaintiffs can only speculate that the Executive Orders are the cause of the many agency actions they allege will exacerbate climate change. See G.B. ex rel. G.P. v. EPA, 172 F.4th 1042, 1060 (9th Cir. 2026) ("[A]gencies consider a great number of … factors in determining when, what, and how to regulate or take agency action." (citation modified)); Clapper v. Amnesty Int'l USA, 568 U.S. 398, 412–14 (2013) (rejecting traceability theory premised on speculation that government surveillance would occur, if at all, under challenged authority rather than another). Furthermore, Plaintiffs seek to enjoin any "implementing" agency action, including those not identified in the complaint. But we "cannot presume to predict how governing officials might exercise their discretion." G.B., 172 F.4th at 1059 (citation modified). Whether agencies will rely on the Executive Orders when taking future action "is mere conjecture." Id. at 1061 (citation modified). For these reasons, the link between the Executive Orders and Plaintiffs' alleged injuries is too speculative to support Article III standing. See FDA v. All. for Hippocratic Med., 602 U.S. 367, 383 (2024); G.B., 172 F.4th at 1058–62.
2. Plaintiffs' requested injunctive relief is also neither "substantially likely to redress their injuries" nor "within the district court's power to award." Juliana, 947 F.3d at 1170 (citation omitted).
As to the first redressability prong, Plaintiffs' standing theory suffers from a defect that mirrors their traceability problems. See All. for Hippocratic Med., 602 U.S. at 380–81 (noting that "causation and redressability … are often flip sides of the same coin" (citation modified)). They have not plausibly alleged that enjoining federal agencies from implementing the Executive Orders is substantially likely to prevent agencies from taking similar emissions-inducing actions under other lawful authorities.
Second, as in Juliana, Article III does not give federal courts the power to grant or enforce the injunctive relief Plaintiffs seek. Juliana, 947 F.3d at 1171. The Executive Orders state the President's national security, energy, and economic policy in broad terms, then direct executive branch agencies to pursue these policy goals consistent with applicable law. Plaintiffs' requested injunction, by its terms, would prevent the President from concluding, among other things, that it is "in the national interest to unleash America's affordable and reliable energy and natural resources," Exec. Order No. 14154, 90 Fed. Reg. at 8353; that current energy infrastructure is "far too inadequate to meet our Nation's needs," Exec. Order No. 14156, 90 Fed. Reg. at 8433; and that "coal is essential to our national and economic security," Exec. Order No. 14261, 90 Fed. Reg. at 15517. The requested injunction would likewise bar agencies from effectuating the President's policies—"consistent with applicable law"—by reconsidering prior actions, "encourag[ing] energy exploration and production on Federal lands and waters," and "protect[ing] the United States's economic and national security … by ensuring that an abundant supply of reliable energy is readily accessible in every State and territory of the Nation." Exec. Order No. 14154, 90 Fed. Reg. at 8353–54.
Issuing such an injunction would effectively place one federal district court in charge of executive branch energy policy—"an extraordinary and unprecedented role" for a member of the "unelected and politically unaccountable branch." Juliana, 947 F.3d at 1173 (citation omitted); see also id. at 1171–72 (crafting environmental policy involves "a host of complex policy decisions entrusted … to the wisdom and discretion of the executive and legislative branches" (citation modified)).
Plaintiffs argue that, unlike the Juliana plaintiffs, who sought a courtsupervised "remedial plan" requiring the federal government to "draw down harmful emissions," id. at 1170–72, they seek only "traditional prohibitory injunctive relief." But like the district court, we are not persuaded. Similar to the injunction requested in Juliana, the injunction Plaintiffs seek would require extensive judicial supervision of executive branch actions related to energy policy. Indeed, Plaintiffs explicitly seek to undo everything from staffing reductions, to the revocation of research grants, to anticipated rule changes, to the type of language the current administration has used on government websites. To assign such policy-laden choices to one district court would invert the "common understanding of what activities are appropriate to legislatures, to executives, and to courts." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
Moreover, as the district court recognized, enforcing such an injunction would require a court to determine whether "an untold number" of executive branch actions even "implement" the challenged Executive Orders. That task would present challenging questions that "necessarily would entail a broad range of policymaking." Juliana, 947 F.3d at 1172. For example, would the injunction prohibit agencies from advancing any policies like those expressed in the Executive Orders—promoting coal, oil, natural gas and hydropower; increasing domestic energy production; or expediting permitting and leasing timelines, to name a few? For every energy-policy action, would the court need to scrutinize agency officials' motives in search of any hidden reliance on the enjoined Executive Orders? And what if an agency were to rely on other authorities in addition to the Executive Orders? The district court correctly recognized that disputes over such questions would inevitably result in the court "spending a lot of time together" with the parties and holding hearings "until the expiration of [their] collective lifetimes." These unmanageable consequences, for which there are no judicially manageable standards, confirm that Plaintiffs' requested injunction is beyond Article III power. Juliana, 947 F.3d at 1173–75. After all, an injunction "is only as good as the court's power to enforce it." Id. at 1173.
Further, by effectively challenging hundreds of current and anticipated agency actions in one lawsuit, Plaintiffs seek to circumvent the jurisdictional and procedural rules Congress has established for challenges to agency actions. See, e.g., 5 U.S.C. §§ 702, 704, 706; 42 U.S.C. § 7607(b)(1). Such a sweeping injunction against hundreds of agency actions in one lawsuit is unprecedented. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 892–94 (1990) (explaining that rather than "wholesale" challenges to "flaws in the entire program," a "case-by-case approach … is the traditional, and remains the normal, mode of operation of the courts" (citation modified)); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996) ("Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary.").
This may not be the end of this suit, however. The plaintiffs may well file a petition for rehearing en banc or a petition for certiorari, as they have in prior climate suits. I also suspect they will file additional suits, raising equivalent claims about specific Trump Administration actions. Such suits may overcome the standing hurdle, but I doubt they will be any more successful. The underlying constitutional claims are an example of overreach. Current doctrine cuts against such constitutional claims quite decisively.
Slush Fund, We Hardly Knew Ye
I have bad news for the Acting Attorney General: This shitshow is not going away any time soon.
Blanche: "We are not moving forward with the Fund. Period"
Rep. Meng: "Not moving forward ever?"
Blanche: "Correct."
So there you go. Read More
Ninth Circuit on AI Hallucinations
Some excerpts from today's long opinion in LNU v. Blanche, decided by the Ninth Circuit by Judge Richard Paez, Carlos Bea, and Danielle Forrest:
Attorneys Mike Singh Sethi and William Rounds filed briefs in this Court with multiple nonexistent cases, misattributed quotations, and gross misrepresentations of real cases. Sethi and Rounds claimed that the errors were the product of innocent typographical mistakes. And they repeatedly denied the possibility that generative artificial intelligence ("AI") might have produced the errors.
Having identified other cases in which Sethi or Rounds filed briefs that presented similar problems, we ordered them to show cause why they should not be sanctioned, suspended, or disbarred from practice before this Court. We have considered their response, and we now impose discipline….
We issue this disciplinary order, and explain our reasoning at some length, as a warning to the members of this Court's bar: be aware of the risks of overreliance on generative AI, read everything cited in a court filing—whether drafted by generative AI or not—and disclose quickly and transparently generative AI hallucinations that are inadvertently included in court filings….
There's a lot of factual detail in the opinion, but here are a few general observations from the court:
Two types of [generative AI] mistakes, or "hallucinations," are most relevant: fabrications and inaccuracies. Fabrications are instances in which the generative AI tool provides cases or quotations that do not exist at all.
Inaccuracies are more subtle. The generative AI tool might cite to real authorities but provide an answer that is legally or factually inaccurate or not supported by the citation.
Fabrications are the most notorious hallucinations, but inaccuracies may prove more dangerous to our profession in the long run. Inaccuracies are more likely to go unnoticed by attorneys and judges because they are not always susceptible to facial checks. Rather, "[i]dentifying these misunderstandings often requires close analysis of cited sources." With close analysis, some inaccuracies might be clear—for instance, claiming that a case expressly stands for a proposition about a certain topic when the case does not discuss that topic at all. Others may be difficult to distinguish from poor legal reasoning.
The Supreme Court For The First Time Refers To Our "Colorblind Constitution"
130 years later, Justice Harlan's Plessy dissent is now the "supreme law of the land."
As big as Callais was, I think Allen v. Milligan may prove to be more significant. The Court smacked down the notion that the government "defies" court order when it takes actions designed to be tested before the Supreme Court. The Court also signaled that the presumption of good faith for purposes of Section 2 should apply to other Fourteenth Amendment contexts. (Indeed, I wonder why prosecutors should not get the same presumption of good faith under Batson; this is a topic I am developing.) But the very first sentence of Allen dropped a bomb that most people may have missed:
In Louisiana v. Callais, 608 U. S. ___ (2026), to resolvethe tension between vote-dilution claims under §2 of the Voting Rights Act of 1965 and our colorblind Constitution, we updated the standards for §2 liability established by Thornburg v. Gingles, 478 U. S. 30 (1986).
Did you see it? The Court referred to "our colorblind Constitution." Of course, Justice Alito was channelling Justice John Marshall Harlan's dissent in Plessy v. Ferguson (1896). [Update: The majority opinion was styled as per curiam, but I am reasonably confident that Justice Alito was the primary author.]
But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.
These powerful words were read and re-read during the worst days of Jim Crow. Yet, the Supreme Court has never actually embraced Justice Harlan's conception of a color-blind constitution, not even in Brown. To the contrary, the Court has often found the Constitution prohibits a color-blind approach to equal protection.
Justice O'Connor made this point expressly in Shaw v. Reno:
Despite their invocation of the ideal of a "color-blind" Constitution, see Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J., dissenting), appellants appear to concede that race-conscious redistricting is not always unconstitutional. See Tr. of Oral Arg. 16–19. That concession is wise: This Court never has held that race-conscious state decisionmaking is impermissible in all circumstances.
Shaw v. Reno, 509 U.S. 630, 642, 113 S. Ct. 2816, 2824, 125 L. Ed. 2d 511 (1993).
Query if Callais and now Allen have abrogated Shaw.
Justice Thomas, for his part, routinely cites Harlan's dissent, but always in separate writings, including Adarand Constructors, Holder v. Hall, and other cases. Justice Thomas addressed the issue squarely in Parents Involved:
Most of the dissent's criticisms of today's result can be traced to its rejection of the colorblind Constitution. The dissent attempts to marginalize the notion of a colorblind Constitution by consigning it to me and Members of today's plurality.[F19] But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (dissenting opinion). And my view was the rallying cry for the lawyers who litigated Brown. See, e.g., Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O.T.1953, p. 65 ("That the Constitution is color blind is our dedicated belief"); Brief for Appellants in Brown v. Board of Education, O.T.1952, No. 8, p. 5 ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone");20 see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, p. X (1993) (remarks of Judge Motley) ("Marshall had a 'Bible' to which he turned during his most depressed moments. The 'Bible' would be known in the legal community as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 552, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). I do not know of any opinion which buoyed Marshall more in his pre-Brown days …").
[FN19] The dissent halfheartedly attacks the historical underpinnings of the colorblind Constitution. Post, at 2815 – 2816. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 2815 (citing Slaughter–House Cases, 16 Wall. 36, 71–72, 21 L.Ed. 394 (1873)). What the dissent fails to understand, however, is that the colorblind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g., Part I–B, supra. Race-based government measures during the 1860's and 1870's to remedy state-enforced slavery were therefore not inconsistent with the colorblind Constitution.
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 772–73, 127 S. Ct. 2738, 2782–83, 168 L. Ed. 2d 508 (2007).
Does the Supreme Court now agree with Justice Thomas's invocation of Parents Involved? Did the other Justices, rushed on the emergency docket, miss this line? Who knows? 130 years later, Justice Harlan's Plessy dissent is now the "supreme law of the land."
Influencer's Nondefamatory Service Review Could Be Aiding and Abetting of Defamatory Comments
From Auto Junction Inc v. Kaluzhin, 2024 WL 7050639, decided Oct. 8, 2024 by Arizona Superior Court (Maricopa County) Judge Melissa Iyer Julian, but just posted on Westlaw several days ago—I'm skeptical about the aiding and abetting analysis, but wanted to flag the case in any event:
In this case, the only alleged defamatory statements Defendant made were included in his YouTube video where he stated that Auto Junction "don't give me my money," "they don't give me my bucks." As Defendant's reply brief points out, these statements are not defamatory because they are not substantially false. Indeed, Plaintiff's First Amended Complaint admits that the contract between Plaintiff and Defendant provided for a delivery price of $1,150.00. Because the vehicle was delivered late and with only one set of keys, Auto Junction paid what it considered to be the "reasonable value" of the delivery, but did not pay the full contract amount. Accordingly, Plaintiff's defamation claim fails as a matter of law.
The crux of Plaintiff's Complaint, however, is not that Defendant made defamatory statements himself. Instead, the Complaint asserts that Plaintiff encouraged his many followers to post false, negative reviews about Plaintiff's business. The damage to Plaintiff's business was accomplished by those false negative reviews posted by Defendant's Youtube followers. As a result, Plaintiff also asserts a claim against Defendant for "aiding and abetting" defamation.
In order for a plaintiff to prevail on an aiding and abetting claim, proof of the following elements is required: "(1) the primary tortfeasor must commit a tort causing injury to the plaintiff; (2) the defendant must know the primary tortfeasor's conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tortfeasor in achieving the breach." "Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance." Restatement (Second) of Torts § 876, cmt. d (1979). An illustration to section 876 of the Restatement (which Arizona follows) elucidates the kind of encouragement necessary to create aiding and abetting liability under Illustration 4: "A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C."
The Court finds that Plaintiff's Complaint and the evidence submitted in response to the pending Motion establishes that Defendant's conduct was intended to encourage his followers to attack Plaintiff's business publicly. Plaintiff presented evidence that these third-party reviews were false and defamatory and are therefore unprotected speech.
No Sealing of Expired Harassment Restraining Order
From the May 26 decision in Hayne v. Akoto, by Minnesota Court of Appeals Judge Elizabeth G. Bentley, joined by Judges Keala Ede and Lisa Beane:
On July 2, 2025, over a year after [a 2022 harassment restraining order against her] expired, Akoto moved to have the record of the case sealed under Rule 4, subdivision 1(e), of the Minnesota Rules of Public Access. In that motion, Akoto asserted that the public accessibility of the HRO records "continue[d] to cause significant harm to [her] personal and professional life," and that it had negatively impacted her "ability to obtain housing, employment, and to rebuild [her] reputation and relationships." … The district court denied Akoto's motion [and a follow-up filing that] attached exhibits purporting to show that she is underemployed and has had to live in poor conditions because of the public accessibility of the HRO records….
More on Birthright Citizenship and Intellectual Diversity Mandates
Final articles now in "print"
I have two articles just released in their final form.
One, with James Heilpern, examines how "subject to the jurisdiction" was used in legal texts in the United States through the adoption of the Fourteenth Amendment. Making use of treaties, statutes, congressional debates, and judicial opinions, the article considers whether that language, which was used in the Fourteenth Amendment's citizenship clause, had an established legal meaning that would have been known to the legal community in 1868. If so, what might that meaning be?
From the conclusion of that article:
The task of this Article is a narrow one. We do not investigate the specific intentions of the drafters of the Fourteenth Amendment or examine their specific purposes in including the Citizenship Clause. We simply ask to what degree did the drafters of that Clause use familiar legal terms and what would have been the ordinary meaning of those terms as used in a legal text. The evidence is overwhelming that the phrase "subject to the jurisdiction" would have had a natural and obvious meaning to mid-nineteenth century American lawyers. These were ordinary legal terms that regularly appeared in legal discourse.
Moreover, the evidence is overwhelming as well as to what the substantive content of that language would have been in 1866. In the legal language of the mid-nineteenth century, "subject to the jurisdiction" of the United States simply meant governed by the United States. That governing authority might have been exclusive or shared, and those subject to that governing authority might have owed a duty of allegiance or they might merely have owed a duty of obedience. Those governed by the United States might be subject to American jurisdiction on a more permanent basis or they might only be subject to that governing authority on a contingent and temporary basis. Those governed by the United States might only be subject to its authority for limited purposes or they might be governed by it more comprehensively. When lawyers wanted to restrict the scope of jurisdiction, they used appropriate modifiers to do so. Using the language of the Fourteenth Amendment to express any idea other than "within the governing authority" would have been creative to the point of absurdity.
That article is now available from the Harvard Journal of Law and Public Policy here.
The second examines Indiana's statutory intellectual diversity mandate, known as Senate Bill 202. The law requires that professors teaching in state universities in Indiana demonstrate, among other things, that their courses include an intellectually diverse set of materials in order to retain their jobs. It charges the board of regents to use the tenure process to enforce this requirement. As written, the statute poses a multitude of difficulties for academic freedom and the intellectual enterprise of university teaching.
SB 202 might identify a real concern about American higher education, but the solution it offers is not only ineffective but problematic. SB 202 creates a vague set of tenure criteria that can easily be misused to target politically controversial professors. The result is unlikely to improve the quality of classroom teaching or genuinely foster a climate of free inquiry on university campuses, but it might lead professors to cater to the loudest cavilers in an effort to insulate themselves from capricious reprisals.
That article is based on the Addison C. Harris Lecture at the Maurer School of Law and is now available in the Indiana Law Journal here.
