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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Supreme Court Clerks Who Become Law Professors (2012-2026)
Yesterday, I wrote about the lateral hiring market. Here, I want to focus on the entry-level hiring market. Since 2012, the number of entry-level hires has dipped to the low 60s and spiked to the mid 140s. Professor Sarah Lawsky has carefully tracked these numbers over the years through a series of detailed hiring spreadsheets: 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, 2023, 2024, 2025, and 2026.
Lawsky tracks how many entry-level hires completed Supreme Court clerkships. (This category does not record already hired law professors who are subsequently hired for Supreme Court clerkships.) I thought it might be worthwhile to dig into the numbers a bit more. Moreover, to continue my prior post on laterals, I wanted to track how often former SCOTUS clerks moved to other institutions. You can see the details in this spreadsheet, which tracks hires of SCOTUS clerks between 2012 and 2026. Please let me know if I am missing any names or made any errors.
How many academics has each Justice "fed"? Counting is actually a bit tricky, so I had to make some judgment calls. If a senior associate Justice hired a clerk, who was then assigned to an active member of the Court, I counted the hiring Justice. (Still, I found at least one law school bio that listed the active justice before the senior justice, a faux pas in my mind.) Likewise, for the clerks hired during the final terms of Justice Scalia or Ginsburg's tenure, and who were then reassigned, I counted them as Scalia and Ginsburg clerks. What about the clerks who were hired by Scalia or Ginsburg for a future term after their passing? In that case, I chose the active Justice that made the decision to re-hire them. With all those caveats out of the way, here is the list.
- Justice Ginsburg (12 Clerks): Elizabeth Porter, Kate Andrias, Miriam Seifter, Robert Yablon, John Rappaport, Daphna Renan, Pamela Bookman, Hajin Kim, Payvand Ahdout, Rachel Bayefsky, Marco Basile, and Jack Boeglin.
- Justice Breyer (8 Clerks): Jennifer Nou, Rebecca Stone, Natalie Ram, Tejas Narechania, Andrew Crespo, Farah Peterson, Brian Richardson, and Thomas Schmidt.
- Justice Kennedy (7 Clerks): Chris Walker, Lisa Manheim, James Stern, Richard Re, Justin Walker, Daniel Epps, and Leah Litman.
- Justice Thomas (7 Clerks): Marah Stith McLeod, Jennifer Mascott, Robert Leider, Haley Proctor, Steven Lindsay, Brian Lipshutz, and Brittney Lane Kubisch.
- Justice Stevens (6 Clerks): Jean Galbraith, David Pozen, Jessica Bulman-Pozen, Sam Erman, Merritt McAlister, and Travis Crum.
- Justice Sotomayor (6 Clerks): Aaron Tang, Michael Pollack, Nikolas Bowie, Kevin Arlyck, Bridget Fahey, and Kamaile Turcan.
- Justice Souter (5 Clerks): Erin Delaney, David Han, Ann Lipton, Matthew Tokson, Mark Jia.
- Chief Justice Roberts (4 Clerks): William Baude, Paul Crane, Matthew A. Shapiro, and Ryan Snyder.
- Justice Alito (4 Clerks): Steven Menashi, J. Joel Alicea, Sherif Girgis, and Garrett West.
- Justice Scalia (3 Clerks): Aditya Bamzai, Ian Samuel, and Katherine Mims Crocker.
- Justice Kagan (3 Clerks): Daniel Hemel, Andrew Crespo, and Benjamin Eidelson.
- Justice Gorsuch (2 Clerks): Lael Weinberger and Micah Quigley.
I have several observations.
First, during this time period, I suppose it makes sense that Justices Ginsburg and Breyer, both academics, hired so many law clerks who went onto become academics. But I was struck that Justice Kagan only hired three future academics. Perhaps her focus is not on the curious type that wants to write articles? Then again, as I've noted before, Professor Kagan didn't publish very much. She was a skilled administrator. To paraphrase John Kerry, "I was for originalism before I was against it." Who would have predicted that Justice Sotomayor would have twice as many academic clerks as Justice Kagan? Likewise, Justice Scalia, a former academic, only had three clerks hired into academia--only one of whom is conservative. Then again, I suspect ideological bias blocked many potential Scalia clerks from even considering the academy during this period. Justice Thomas has jumped ahead in the standings, but as I'll explain below, most of those placements are over the past three years.
Second, there are relatively few law professors who clerked on the Supreme Court. The percentage of entry-level hires with Supreme Court clerkships fluctuates. In 2012, there were seven clerks hired out of 140 reported hires: about 5%. In 2018, there were eight clerks hired out of 77 reported hires: nearly 10%. In 2026, there were four clerks hired out of 146 reported hires: about 3%. The hiring market has been fairly variable in recent years. Still, the persistent myth that you have to clerk on the Supreme Court to teach constitutional law should be retired. Very few ConLaw professors have actually clerked on the Supreme Court.
Third, the total number of hired clerks fluctuates each year, though it averages to about 5. I would wager that 100% of the clerks who apply for the entry-level market find a job somewhere. The Supreme Court pumps out about 36 clerks each year. Let's assume that around 13% of those clerks become law professors. Presumably, about 87% of Supreme Court law clerks do not go into academia, and find employment in the public or private sectors. Despite what one may think, the clerks who work to develop the law are not particularly interested in teaching it.
Fourth, the ideological imbalance of these clerks is stark, although it has corrected somewhat in recent years. Between 2012 and 2015, out of 25 entry-level hires, I count only four professors who were right-of-center: Chris Walker (Ohio State), James Stern (William and Mary), Will Baude (Chicago), and Justice Walker (Louisville). Between 2016 and 2019, there were also four right-of-center hires out of twenty total hires: Aditya Bamzai (Virginia), Steven Menashi (George Mason), Jennifer Mascott (George Mason), Robert Leider (George Mason). The rate has increased substantially from 2020 to the present with nine right-of-center hires out of twenty total hires: J. Joel Alicea (Catholic), Sherif Girgis (Notre Dame), Haley Proctor (Notre Dame), Garrett West (Alito), Steven Lindsay (Catholic), Lael Weinberger (George Mason), Brian Lipshutz (Florida), Micah Quigley (Notre Dame), and Brittney Lane Kubisch (Pepperdine).
Fifth, even as the rate of hiring has increased, left-of-center professors are still being recruited by higher-ranked institutions. Starting in 2012, there have been entry level hires of SCOTUS clerks at Harvard (5), Columbia (3), Virginia (3), Chicago (4), and more. Curiously, Yale has had zero progressive SCOTUS clerk hires, but it did hire Garrett West after he finished clerking for Justice Alito. By contrast, the bulk of the conservative hires have been at right-of-center law schools. George Mason, my alma matter, hired four SCOTUS clerks (two of whom are now federal circuit court judges). Notre Dame has hired four conservative SCOTUS clerks. Catholic has hired two.
Sixth, several schools recruited SCOTUS clerks as laterals. Jean Galbraith spent two years at Rutgers-Camden before moving to Penn in 2014. Michigan recruited Chris Walker from Ohio State, Harvard recruited Richard Re from UVA (previously at UCLA), and Harvard recruited Sherif Girgis from Notre Dame. The professor who moved around the most in the shortest span is Katherine Mims Crocker who started at William & Mary in 2019, moved to Texas A&M in 2024, and then to Cornell in 2026.
Eight, this post only considered law professors hired on the entry-level market between 2012 and 2026. I did not consider several professors who started clerkships after their first appointment. Justice Gorsuch has hired several of these academics: Stephanie Barclay (BYU, then Notre Dame, then Georgetown); Mark Storslee (Penn State, then Emory, then UNC); Christian Burset, (Notre Dame then Penn); and Tyler Lindley (BYU). Rev. Patrick Reidy began a clerkship with Justice Kavanaugh after he was appointed at Notre Dame. Professor Kerrel Murray at Columbia later clerked for Justice Jackson.
It might be useful to expand this post further back from 2012 to see earlier trends. Another time.
Law Banning Employer Requirements That Employees Listen to Employer's Religious or Political Speech Likely Violates Employer's First Amendment Rights
So a Ninth Circuit panel held today.
From Calif. Chamber of Commerce v. Bonta, decided today by Judge Richard Tallman, joined by Judges Richard Paez and Mark Bennett:
California Senate Bill (SB) 399 prohibits an employer from subjecting, or threatening to subject, an employee to adverse action if the employee chooses not to attend an employer-sponsored meeting or receive communications from the employer, "the purpose of which is to communicate the employer's opinion about religious or political matters."
The court concluded that the law restricts speech and not just employers' disciplining employees:
It is true that SB 399 facially forbids only the act of "subject[ing], or threaten[ing] to subject, an employee" to discipline for declining to attend certain meetings. But the law only applies to employers who engage in expressive activity at those meetings: namely, "communicat[ing their] opinion. It does not, for example, prohibit taking adverse action against employees who decline to attend a meeting, the sole purpose of which was for employees to fill out their annual tax paperwork. It prohibits adverse action only when the meeting's purpose was for the employer to engage in expressive activity. Thus, the First Amendment applies.
Our conclusion accords with the Eleventh Circuit's recent decision in Honeyfund.com, Inc. v. Governor (11th Cir. 2024). In Honeyfund.com, employers challenged Florida's Individual Freedom Act [part of the Florida Stop W.O.K.E. Act -EV], which forbade subjecting "any individual, as a condition of employment," to "training, instruction, or any other required activity" endorsing certain ideas [related to race, sex, or national origin -EV]. As California does here, Florida defended the law as "a ban on conduct because only the meetings are being restricted," not the underlying speech.
Creating Voter Confusion About Candidates' Names is Bad - But Exploiting Voter Ignorance About Policy Issues is a Much Bigger Problem
Democrats' apparent effort to confuse Alaska voters about candidates' names is reprehensible. But politicians' routine lying and exploitation of ignorance about policy issues is much worse.
A recent New York Times article presents evidence that Alaska Democrats sought to confuse voters in that state's 2026 Senate election by introducing a second candidate with a name very similar to that of the Republican incumbent, thereby potentially siphoning off some of the latter's voters. The incumbent senator is named Dan S. Sullivan, while the other candidate is Dan J. Sullivan. As the Times reports, some of the facts here are disputable, and it is not entirely clear whether Democratic candidate Mary Peltola knew about this effort or approved of it. But it seems likely that at least some of her staffers and other Democratic operatives were involved.
Before going further, I should emphasize that this effort is worthy of condemnation. Trying to confuse voters into voting for the "wrong" candidate in this way is not how democratic political participation should work. And the fact that other politicians (including Republicans) engage in various electoral "dirty tricks" doesn't justify this one.
Elsewhere, I have explained why these kinds of actions are not illegal, and why the Trump administration's lawsuit seeking to block certification of the Alaska Senate result deserves to fail. I stand by that conclusion. Legal scholar Rick Hasen (a leading election law expert) has a helpful recent post explaining why the New York Times revelations do not change anything from a legal point of view. But the fact that this scheme is legal doesn't make it right.
That said, it is important to keep this issue in proper perspective, and especially to recognize that many other types of lies and efforts to exploit voter ignorance are much worse. Confusion caused by candidates with similar names is relatively rare, and it is difficult to find examples where it affected more than a small fraction of voters. I am not aware of even one case where it was decisive to the outcome of an election. But I welcome correction on that latter point.
The Alaska case is unlikely to be an exception to the above generalization. In the first round of the ranked-choice voting election (which narrows down the candidates to the top 4), only 2.5% of voters picked Dan J. Sullivan. Peltola led the incumbent senator by a much larger margin than that (8.1 points). Even if every single person who voted for Dan J. did so because of confusion (which is improbable), that's unlikely to change the result.
Moreover, the Alaska ranked-choice voting system reduces the risk of error. Some of those who vote for the "wrong" Dan Sullivan might rank the "right" one second. After the former gets eliminated, those votes get transferred to the latter. On top of that, as Michael Dorf points out, the Alaska ballot explicit indicates that Dan S. Sullivan is the "incumbent." That further reduces any potential confusion. The widespread publicity this issue has gotten over the last few weeks further reduces the risk of error. Many voters have probably now heard about the two Dan Sullivans and will be on guard against the problem.
It is still theoretically possible that confusion between the two Sullivans will end up having a decisive impact on the election. Some people who voted for Dan J. might not rank the other Sullivan second, or might misunderstand how the RCV system works. And some voters might (understandably) not be very careful about how they mark their ballots, thereby making a mistake despite the various safeguards against it. Still, it seems highly unlikely that such errors will have a decisive impact on the outcome.
Overall, this kind of a thing is relative molehill of a problem. Elections where it makes a decisive difference are likely to be extremely rare, at worst. By contrast, candidate lying about policy issues and exploitation of voter ignorance about them is a veritable mountain. I summarized some of the relevant evidence in an earlier post about the Alaska controversy:
Donald Trump is a particularly egregious example, going all the way back to his first campaign in 2016, and more recently with his lies about the 2020 election and other issues. But more conventional politicians also often resort to lies and deception, even if not to the same degree. President Obama, for example, famously lied when he claimed that, under the Affordable Care Act, "if you like your health care plan, you can keep it." That deception won the 2013 Politifact Lie of the Year award. But it still helped Obama get reelected in 2012. I am not sure exploiting voter confusion about names is any worse than exploiting their ignorance about policy issues like crime, immigration, and health care….
Ultimately, both exploitation of voter confusion about names and other deceptions used in campaigns seek to exploit widespread voter ignorance. Because of the combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation), most voters know little about government and public policy, and often do a poor job of evaluating the information they do know. This makes them vulnerable to deception and manipulation, and incentivizes politicians to lie and otherwise distort the truth.
I would add that lies and deceptions about policy issues affect vastly more voters and have vastly bigger impacts on electoral outcomes than confusion about candidates' names. To take just a few recent examples, Trump in 2016 and 2024 and Obama in 2012 probably could not have won without the former. If, in 2024, key swing voters had realized that Trump's policy agenda of tariffs and mass deportations was likely to raise prices (as it predictably went on to do) rather than lower them (as he promised to do), he likely would have lost. Polls showed that prices were the biggest issue in the election for key swing voters. Trump also might well have lost if GOP base voters realized he was lying about the 2020 election, among other issues. In 2012, Obama might have lost if swing voters realized that he was lying when said that, under his signature policy initiative (the Affordable Care Act), "if you like your health care plan, you can keep it."
Effective lies and deceptions about policy issues (often exploiting preexisting voter ignorance and bias, but also deliberately seeking to create more of it) are ubiquitous. And they very often affect electoral outcomes. Even when they don't change the outcome between the candidates who run, they often have an impact on the policies those candidates adopt in the first place. As described more fully in my book Democracy and Political Ignorance, political parties and their strategists know most voters are ignorant, and often deliberately select policy agendas based on the likelihood of successfully exploiting that ignorance. The result is that even the lesser of the evils on offer in a given election (or the less egregious liars) are often still very bad.
From a moral point of view, I don't see any reason to believe lying about policy issues and exploiting voter ignorance about them is any worse than trying to trick voters into selecting the "wrong" candidate out of confusion. In practical terms, the former happens much more often than the latter, and has a far bigger effect).
Cornell law Prof. Michael Dorf recognizes that lies about policy issues are bad, but suggests that efforts to create confusion about candidate names are worse, because the latter are harder to combat with "counter-speech." I think the truth is the exact opposite. People can and do use counter-speech to oppose lies and deceptions about policy issues. But "rationally ignorant" voters will often ignore the counter-speech (not wanting to take the time and effort to study it) or reject evidence that goes against their preexisting biases. Many policy issues require considerable time and effort to understand well.
By contrast, it's much easier to find out there are two candidates with similar names in the election, and to take precautions against accidentally voting for the "wrong" one. Counter-speech to that effect need not be very complicated at all, or take a long time to understand. In the Alaska case, for example, you just need to remember to vote for Dan S. rather than Dan J. or just know to vote for the one marked "incumbent." And figuring this out does not require going against any partisan or ideological biases.
As I have emphasized in previous writings about voter ignorance, I do not believe we can or should fight it by trying to punish politicians for their lies, or by censoring "misinformation." There is, in fact, no easy solution to the problem. But I assess a range of options in my 2023 article on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance, and in Democracy and Political Ignorance. I believe the best approach is to make fewer decisions at the ballot box and more by "voting with your feet," where incentives to seek out information and evaluate it wisely are much better. In the works linked above, I also argue that we should give consideration to simply paying voters to increase their knowledge levels (e.g. by establishing a "Voter Achievement Test" and offering rewards to high scorers). But I recognize that any effective approach will take time, and there may be no one fix that is sufficient by itself.
The beginning of wisdom here is to recognize we have a wide-ranging problem of voter ignorance, and to prioritize the most significant types of ignorance and exploitation thereof. On that scale, ignorance about policy issues should rank high, while voter confusion about candidates' names is a very minor problem, by comparison.
UPDATE: I have made minor additions to this post.
Even "Trumpy Judges" and "Woke Judges" Might Know More Law Than You Do
I appreciate that many people are skeptical about judges. Indeed, it's good that people take with a grain of salt the statements of government officials, including judges. Judges are human, and humans make mistakes and have prejudices and blind spots.
At the same time, judges are generally quite well-trained lawyers, and know a good deal about what they're writing about. Conventional wisdom holds that federal judges generally are particularly well-qualified (of course, with exceptions, as is true for all institutions). Federal judges also generally employ quite well-qualified law clerks, who do much of the research and initial opinion drafting.
This means that, for all the risk of error and ideological bias, judges generally (though not always) know what they're talking about in their legal analysis. They tend to particularly know more than non-lawyers, but also often more than lawyers who aren't specialists in the particular field. You might assume that some judge is "woke" or "Trumpy" or what have you, but there's a pretty good chance that the judge's legal analysis is still correct.
This post was prompted by a comment I saw on the Eric Coomer (of Dominion Voting) Loses Libel Lawsuit over The Deep Rig post, though this is just one example of a broader trend. The comment quotes an excerpt from the post's excerpt of the judge's opinion:
The Law and Democrats Allegedly Recruiting Second "Dan Sullivan" to Run in Alaska Senate Race
Election law expert and UCLA Prof. Rick Hasen (Election Law Blog) has a post about this; an excerpt:
Today's New York Times story, if true, strikes me as a political bombshell: despite public denials of a connection, people associated with Democratic U.S. Senate candidate in Alaska Mary Peltola and Democratic Party officials recruited the second "Dan Sullivan" to run against the incumbent Republican U.S. Senator from Alaska, Dan S. Sullivan. The hope would be to siphon votes away from Sullivan. (As a political play, I'm skeptical that this would work, given Alaska's ranked choice voting approach would allow ranking both Dan Sullivans as 1 and 2, thereby not helping Peltola.)
But what, if any, are the legal implications of the story (if true)?
To begin with, I don't think it has any bearing at all on the current litigation in which the U.S. Department of Justice seeks to delay certification of the race if Dan S. Sullivan narrowly loses on grounds of purported voter confusion. The lawsuit is not going anywhere for any number of reasons, but even assuming DOJ's theory that it can sue to block certification, it is irrelevant as to why voters might face confusion over the two Dan Sullivans. (This has not stopped DOJ from now supporting DSCC intervention so that it can get discovery over a potential "conspiracy"). [Disclosure: I will soon be filing a motion to file an amicus brief on my own behalf supporting the State of Alaska in this case.]
Second, if there is any evidence that anyone lied under oath about the cooperation between Democrats and Dan J. Sullivan, that could be grounds for a perjury prosecution. So far I'm not aware of any such allegation in the case.
Third, this leaves the question whether this could be prosecuted as some kind of conspiracy against voters.
Israeli Jews Vote by Economic Status, Even Though Elections Turn on Other Issues
A fascinating chart from Yedioth Aharanot newspaper shows the voting breakdown of the Jewish electorate in the Israeli election.
People the pollsters deem to be in the bottom 10% in socio-economic status voted 96.7% for Netanyahu's Likud and parties aligned with it. Those in the top 10% voted 80.9% for opposition parties.
What makes this particularly interesting is that the election turned almost entirely on issues that are not economic in the ordinary sense, such as conscripting Haredi Jews, which factions would best resist outside pressure for a Palestinian state, who is best-positioned to finish the wars in Gaza, Lebanon, and Iran, and who is to blame for 10/7. Many voters expressed concern to pollsters about the cost of living, but none of the major parties talked much about it.
So to a large and often unappreciated (at least outside Israel) extent, Israeli politics is culture-war politics. Netanyahu and his allies represent voters who are more religiously traditional, less-educated, live on "the periphery," poorer, and, importantly, of recent North African or Middle Eastern descent--Israelis who were treated as outsiders by the Ashkenazi socialists who ran the country until Menahem Begin broke their stranglehold on elections in 1977. Netanyahu's opponents rely on voters who are disproportionately Ashkenazi, better-educated, wealthier, live in Tel Aviv or Haifa, and more secular-minded.
Another interesting aspect of this is that while the religious/secular divide comes up in politicking all the time, Israeli politics mostly avoid explicit ethnic or wealth-based appeals. The de facto leader of the opposition, Gadi Eisenkot, is the son of Moroccan immigrants. Moroccans are a huge part of Netanyahu's base, but Eisenkot's potential to be the first Moroccan (and first non-Ashkenazi) prime minister barely played a role in the campaign, and he did not try to give it one.
I will leave it to those more expert than I on Israeli politics to analyze this further, but it sure seems like a big factor in the election was a visceral fear among groups that feel historically marginalized in Israel that victory by the anti-Netanyahu faction would amount to a loss in status.
"Plaintiff Appears to Be a Well-Educated Individual with Time on His Hands,"
"which makes him uniquely capable of clogging the judicial machinery with well-dressed nonsense."
From Judge David Leibowitz (S.D. Fla.) in Evans v. Fitzgerald, "declin[ing] to revisit [the] order declaring [plaintiff] a vexatious litigant." Alas, like other formerly unique human skills, I expect this one too will fall victim to competition from AI.
Eric Coomer (of Dominion Voting) Loses Libel Lawsuit over The Deep Rig
The court holds that Coomer didn't prove by "clear and convincing evidence" that defendant knew the statements were false (or at least were likely false).
From Judge Tom Barber (M.D. Fla.) Tuesday in Coomer v. Byrne:
This highly contentious defamation action arises from The Deep Rig, a documentary film concerning alleged fraud in the 2020 presidential election[, which was financed by defendant Patrick Byrne, who also appeared in the film].…. Plaintiff Eric Coomer formerly served as director of product strategy and security for Dominion Voting Systems, a supplier of election hardware and software with its United States headquarters in Colorado. Among other things, the film included statements by non-party Joseph Oltmann claiming that he infiltrated a conference call involving members of Antifa and heard comments from a speaker identified by another anonymous participant on the call as "Eric" and "the Dominion guy."
According to Oltmann, the speaker stated on the call in substance that President Donald J. Trump would not win the election because he had "made sure of it." Oltmann clams he later determined through research and by recognizing Coomer's voice that the speaker had been Coomer. Oltmann further stated that he concluded there was a "high probability" Coomer affected the election. Coomer denies participating in any such call or manipulating the results of the 2020 Presidential election and alleges that Oltmann's story presented in the film was false and defamatory.
Coomer sued, and the court earlier held that he had adequately "alleged sufficient facts to avoid dismissal" and to proceed to discovery. But then Byrne sought summary judgment, arguing that, after discovery, Coomer hadn't introduced evidence to support his claim. And the court concluded that Coomer had indeed not uncovered enough evidence to prove "actual malice" by clear and convincing evidence:
[U]nder Colorado law, where the alleged defamatory statement relates to a matter of public concern, a defamation plaintiff must prove actual malice on the part of the defendant, and must do so by clear and convincing evidence, even if the plaintiff is not a public figure. Coomer has expressly conceded that the statements at issue concern matters of public concern, [and] that Colorado's actual malice standard applies ….
Coomer himself asserts that Byrne believed the 2020 election was rigged immediately after the election. Byrne testified that he believed Oltmann's story and remains highly confident that the gist of Oltmann's story was true. Although the actual malice standard focuses on Byrne's subjective state of mind and beliefs, Byrne's statements as to those beliefs are not necessarily dispositive and Coomer may seek to establish Byrne's subjective lack of belief in the story through circumstantial evidence. The relevant question, then, is whether the evidence Coomer points to is sufficient to support a jury finding, under the clear and convincing evidence standard, that Byrne in fact subjectively disbelieved or had serious doubts about Oltmann's story.
Cancellation, Defamation, Bankruptcy, Discharge
From Judge Paula Xinis (D. Md.) yesterday in Shuma v. Whibley:
Appellant Shane Shuma ("Shuma") and Appellee-Debtor Erin Whibley ("Whibley") were students at Dickinson College during the 2020–21 school year. Shuma made an ill-advised YouTube video satirically opining on the "reasons why the Holocaust was a good thing." The video spread through campus, and an uproar followed. School administrators publicly condemned it, the matter was widely reported in the student newspaper, and students spoke out against Shuma.
In one of Whibley's classes, a lively discussion ensued about Shuma. One student disclosed that she overheard Shuma at a club event saying things that were "absolutely unacceptable to, to say to anyone" and that "there were some threats involved," and she expressed her frustration that his behavior continued "after reporting on Shuma and knowing people who have reported on him in terms of Title IX behavior or just Title IX in general." Another student echoed that she had heard from multiple people that Shuma had written articles in the student newspaper that expressed "racist sentiment." A third student described that Shuma had written an article arguing that "white privilege is not real … is not a thing."
After this conversation, Whibley initiated an online petition to advocate for Shuma's expulsion. The petition described Shuma as the subject of "multiple Title IX issues," and that he had written "racially charged [newspaper] articles." She also described Shuma as a "serial offender." The petition garnered 811 signatures in the first few days, and ultimately over half the Dickenson student body signed it.
Shortly after the posting, Whibley learned that Shuma had no such Title IX complaints filed against him. Within days, Whibley corrected the online petition to eliminate to the claim about Title IX. She further explained in the modified petition that "Shuma has not been in violation of any Title IX statutes," and that she did "not wish to slander [Shuma]," but simply share what she heard from other students.
Today in Supreme Court History: October 29, 1942
10/29/1942: Published decision in Ex Parte Quirin released. At that point, six of the saboteurs had already been electrocuted.
Open Thread
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Some Reflections On The Lateral Hiring Market (Updated)
Update: After I published this post, Dean Erwin Chemerinsky sent me a gracious note pointing out some people I had missed in my counts. I've updated the post in red so it is clear what changed.
Every year, professors move from lower-ranked institutions to higher-ranked institutions. But for the lateral market to sustain itself, schools have to continue to play the game: recruit laterals, hoping they improve the school's standing before they move onto greener pastures.
One way to measure this market is to analyze the track record of a new school that built its faculty from scratch. Over the past quarter century, the American Bar Association has granted provisional accreditation to about 20 law schools. Only three of those institutions have cracked the top 100 U.S. News rankings. Last year, FIU was at #77 and Drexel was at #82. U.C. Irvine, founded in 2007, is the outlier. The new state school has hovered between #20 and #40 over the past decade. A lot of the credit should go to Founding Dean Erwin Chemerinsky. But even after Chemerinsky departed for Berkeley in 2017, the rankings have stayed fairly consistent.
Starting from a blank slate, Irvine was able to build a faculty from the ground up, using both entry-level hires as well as laterals. I thought it might be worthwhile to analyze lateral hires and departures from Irvine over the past two decades. Here, I owe a debt to Brian Leiter and Dan Filler, who have charted these moves since 2006. Many of the posts on the Faculty Lounge, Concurring Opinions, and Leiter Reports can now be found on the Internet Archive.
I include the raw results below the jump. Here, I will offer some broader observations about the lateral hiring market. I don't think these patterns are limited to Irvine, but that institution is a useful measuring stick because it started so recently. All of my counts here are tentative. Please let me know if there are any errors.
By my count, between 2008 and 2026, at Irvine there were a total of about 50 lateral hires (including two deans).
Between 2008 and 2026, seventeen of these fifty lateral hires later departed. Here, I will note the year they were hired and the year they departed.
- Erwin Chemerinsky (Hired in 2008, lateraled to Berkeley in 2017)
- Catherine Fisk (Hired in 2008, lateraled to Berkeley in 2017)
- Trina Jones to Duke (Hired in 2008, lateraled back to Duke in 2011)
- Jennifer Chacon (Hired in 2009, lateraled to UCLA in 2018)
- Christopher Tomlins (Hired in 2009, lateraled to Berkeley in 2018)
- Olufunmilayo Arewa (Hired in 2009, lateraled to Temple University in 2014)
- Rick Hasen (Hired in 2011, lateraled to UCLA in 2022)
- Douglas NeJaime (Hired in 2013, lateraled to UCLA in 2015)
- Michele B. Goodwin (Hired in 2014, lateraled to Georgetown in 2023)
- Gregory Shaffer (Hired in 2014, lateraled to Georgetown in 2023)
- Sarah Lawsky (Hired in 2010, lateraled to Northwestern in 2016)
- Alexandra Natapoff (Hired in 2017, lateraled to Harvard in 2020)
- David S. Law (Hired in 2019, lateraled to Virginia in 2020)
- Rachel Moran (Hired in 2019, lateraled to Texas A&M in 2023)
- Aziza Ahmed (Hired in 2021, lateraled to Boston University in 2022)
- Jamelia Morgan (Hired in 2021, lateraled to Northwestern in 2022)
- Courtney Cahill (Hired in 2022, lateraled to USC in 2026).
In most of these moves, the professor transferred to a higher-ranked school. The average duration of a lateral hire who departed was about six years.
I exclude in this count three professors (L. Song Richardson, Mario Barnes, and Rachel Moran) who departed for administrative positions, but then returned to Irvine. I also exclude Katie Porter who left teaching to serve in the House, but then returned to the faculty. Those aren't exactly laterals in the traditional sense of the term.
At least four of the lateral hires seem to have taken emeritus status: Bryant Garth, Kaaryn Gustafson, Robert Solomon, and Grace Tonner. As best as I can tell, twenty-one recruited laterals are still teaching in a full-time status at Irvine: Christopher Leslie, Tony Reese, Mario Barnes, Katherine Porter, Sameer Ashar, Kenneth W. Simons, Victor Fleischer, Ji Li, Austen Parrish (Dean), Veena Dubal, Kevin Haeberle, Ari Waldman, Robert S. Chang, Andrew Gold, Trevor G. Reed, Charles Tyler, Carrie Menkel-Meadow, Ann Southworth, Carrie Hempel, Beatrice Tice, and Chris Whytock.
If my math is right, out of a total of fifty laterals hires, twenty-nine remained and seventeen departed. The departure rate of hired laterals is about 34%. Or, you might say the retention rate is 66%, but that number is harder to rely on because some professors took emeritus status or retired, so were not really on the move.
Moreover, based on my count, there are three professors that Irvine hired on the entry-level market who lateraled out of Irvine: Seth Davis (Berkeley), Jonathan Glater (Berkeley), and Leah Litman (Michigan). If you factor in these departures, the retention rate is even lower.
In an ideal world, the number of lateral hires should far exceed the number of lateral departures. Schools that recruit scholars should be able to retain them. But the world is far from ideal. Professors who lateral to one school will often be recruited elsewhere. Indeed, I think it is a positive that a school recruits and develops scholars who go onto other institutions. More realistically, the number of lateral hires should roughly match the number of lateral departures to keep the faculty at parity: for every lateral that departs another lateral should be hired. At least at Irvine, the number of lateral hires that remained is fairly close to the number of lateral hires that depart. I don't know how Irvine's retention rate compares to other schools. This is something I might compute in the future.
Still, with all of those caveats, to keep a law school's reputation at parity, the rate of lateral departures needs to approximate the rate of lateral hires. If more scholars depart, and cannot be replaced, a school's standing might drop. Indeed, the public might wonder why so many scholars are heading for the door. One might reply that new scholars can be recruited through entry-level hiring. The entry-level market can be unpredictable, and junior scholars can take many years to develop. And again, those entry-level hires who make a name for themselves are likely to be recruited by a higher-ranked institution. It's hard to keep home-grown talent, unless the school either pays up, or the professor has some personal reason to stay.
Another premise is that laterals are expensive. It often takes a lot of money to persuade a professor to move their family from a place they built a strong reputation. Very often professors will sign a retention bonus to promise they will stay at a new law school for a few years. But once those contractual terms lapse, the professor can move up to another school that will pay a greater sum. This happens all the time.
I welcome comments, feedback, and corrections.
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ICE is Now Even More Unpopular than the IRS
The agency's growing unpopularity may make it easier to abolish it.
A recent Pew Research Center survey finds that Immigration and Customs Enforcement (ICE) is by far the most unpopular federal agency, easily outstripping even the widely despised IRS. According to Pew, 56% of Americans disapprove of ICE, compared to only 35% who approve. That's substantially worse than the IRS (which is disapproved by only a 46-37 margin).
Other recent surveys show growing public support for abolishing ICE. For example, a July YouGov poll indicates that 48% support abolition, compared to 40% who oppose it. Another survey, conducted in March of this year, showed a similar 50-39 margin in favor of abolition.
The fact that ICE is unpopular doesn't by itself prove the agency should be abolished. Having written a book and many other publications on widespread public ignorance about government policy, I would be the last to argue that popularity is a good metric of a policy's - or an agency's - merit. But, in this case, public opinion is right. As I explained in an August 2025 article in The Hill, and a follow-up piece for the Boston Globe, (non-paywalled version here), ICE's many abuses do indeed justify abolishing it. And the case for doing so has been strengthened by more recent events, such as the brutal killing of two US citizens in Minnesota.
While ICE abuses have been exacerbated by the policies of the second Trump Administration, many predate it, and are inherent in the entire enterprise of mass deportation.
As explained in my article in The Hill, abolishing ICE would not completely end interior deportations. But it would make them heavily dependent on the cooperation of state and local governments, thereby strengthening constitutional federalism and reducing incentives for abuse, at least to a significant degree.
In that article, I also explain how support for abolition be further bolstered by combining it with shifting ICE funds to state and local law enforcement. This undermines the principal political obstacle to abolition: the fear that getting rid of ICE would increase crime. Transferring the funds to state and local police would help defuse such concerns, win the support of law enforcement agencies, and foster genuine reductions in violent and property crimes; social science evidence shows that putting more police on the streets has that effect, whereas deportations do not.
Farewell to Weil
Today the law firm of Weil Gotshal announced that it would wind down. I don't have any connections to the firm, though I did have one vignette to share that I wrote for another project. It concerns Greg Coleman, the first Texas Solicitor General.
In 2001, Coleman returned to Weil Gotshal to head his firm's Supreme Court practice. In 2006, Coleman took on a case that would change the face of constitutional law. He represented a municipal utility district from Northwest Austin, which challenged the constitutionality of Section 5 of the Voting Rights Act, known as the "preclearance requirement." This case had the potential to revolutionize voting rights, and bring our country closer to a colorblind Constitution. Unfortunately, Coleman's firm did not see things that way. As Senator Cruz recalled, "his partners at the firm lost their freaking minds." Coleman, who was dedicated to his client and the Constitution, left that firm and joined what would become Yetter Coleman LLP. In 2009, Coleman would argue two landmark Supreme Court cases that would set the stage for future constitutional restorations.
Farewell to Weil.
How Wolford v. Lopez Refines Second Amendment Doctrine
Court's rejection of the Vampire Rule has broad implications
The Supreme Court's June decision in Wolford v. Lopez prevented the obliteration of the right to bear arms in five States, holding that governments may not make carrying a licensed handgun presumptively illegal almost everywhere. 609 U.S. 185 (2026). Important as the result is, perhaps of even greater significance is how Wolford clarified Second Amendment doctrine. According to Wolford:
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Determining whether a challenged law falls within the "plain text" of the Amendment is much simpler than some lower courts and gun control advocates have claimed.
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Modern gun control laws do not always have to be justified by analogies from past practices, but analogies cannot be based on oddities and outliers.
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Racist gun control laws from the past, which were long ago repudiated by constitutional amendment, are not valid precedents for infringing the rights of modern Americans.
This essay will also discuss the Hawaii Attorney General's argument that only a weak version of the Second Amendment should apply in the Aloha State. And the argument that Hawaii's "Vampire Rule" to prohibit licensed carry throughout the State did not even implicate the Second Amendment.
The Bigger Problem With Judge Ada Brown's Woke Tirade: She Said The Quiet Part Out Loud About "White Saviors"
Many lawyers and judges harbor the "anti-racist" views that Judge Brown spewed, but have the mental faculties to keep it private.
For some time, I've heard rumors about unusual behavior from Judge Ada Brown in the Northern District of Texas. I was hesitant to write about the situation, because my information was incomplete and some of it was revealed in confidence. Now, the accusations are public, in part, because Judge Brown personally disclosed items to the press and others.
At the outset, let me praise the other members of the Northern District of Texas, and in particular, Chief Judge Reed O'Connor. They have picked up all of the cases that Judge Brown has not decided. These are very busy judges, and they have quietly assumed even more responsibilities to ensure the business of the court continues. Judge O'Connor has been routinely maligned by the press but he is a gracious and thoughtful member of his court who never seeks the spotlight. Indeed, it seems that Judge Brown has attacked Judge O'Connor, who has bent over backwards to help her. No good deed goes unpunished.
Moreover, I need to praise the leadership of Chief Judge Jennifer Walker Elrod. She has given Judge Brown every possible benefit of the doubt and made the process as transparent as possible. I need to contrast Chief Judge Elrod's performance with that of Chief Judge Moore in the Federal Circuit. Judge Newman has been subjected to a stealth impeachment through arbitrary one-year suspensions, and only after nearly two years was the case reassigned to another circuit. Judge Brown has been given shorter suspensions after she refused to decide cases. She has had every opportunity to make her case.
Now, onto the substance. There seems to be something seriously wrong with Judge Brown. Her behavior in court that has been reported in the press is extremely troubling. Her refusal to decide cases seems to be an abdication of her responsibility as a federal judge. And her unwillingness to participate in any disciplinary proceedings suggests something is amiss. I will hold off on opining on these issues in more depth, as I suspect more facts will come out.
Here, I want to focus on Judge Brown's behavior in court that gave rise to an ethics complaint earlier this year. Jacqueline Thomsen of Bloomberg Law, who has her finger on the pulse of the Fifth Circuit, offers the stunning details. Here is a summary:
A lawyer's misconduct complaint against US District Judge Ada Brown stemmed from a hearing during which she repeatedly directed racial insults at him, according to documents reviewed by Bloomberg Law.
Attorney Ezra Young, who has represented a Black woman professor suing over a tenure denial, filed a complaint against Brown following the April 2026 hearing in Dallas, he confirmed in an interview with Bloomberg Law. Young's complaint and the judge's formal response were among the documents that Brown circulated in an Oct. 17 email to lawyers, judges, and members of the media.
Throughout the hearing, the judge, a Black woman with Native American ancestry, accused Young of mistreating Black attorneys, took "judicial notice" of her own background in making findings against Young, and repeatedly referred to Young, who is Latino, as being White. Brown called the hearing months after she revoked Young's ability to practice in her courtroom to weigh whether the lawyer should face sanctions.
"I think what's happening here, quite candidly, is you are very intimidated for some reason, Mr. Young, with Black excellence, in light of your White mediocrity. Yeah. Right?," Brown said, according to the transcript. "You should write that down. I mean, you — I'm — you look like a White man, right?"
"I'm not White, Your Honor," Young replied, adding that he's Latino.
"Well, you are White-presenting; is that fair to say?" Brown said, according to the transcript. Young said that he's "fair-skinned," and Brown said that Young had "White privilege" when he argued his client didn't receive key evidence in the case.
"You're the White savior, come to save all the stupid Black lawyers in Texas who need your help, from New York," Brown later said, according to the transcript. . . .
During the April 24, 2026 hearing, Brown accused Young of "racial bullying" toward Black attorneys in the case.
Brown also said that Young was acting like a "Chad," a term Young wasn't familiar with. The judge said it was the male version of a "Karen." "It's someone who calls the manager when they don't get their way. They stomp their foot when the rules are supposed to apply to them, right?" Brown said, according to the transcript. . . .
During the April hearing, Brown took issue with an article headline describing the case when it went before the Supreme Court of Texas. The article quoted a brief filed by Young that referenced another law professor apparently comparing what happened in the tenure denial to a "lynching."
The judge accused Young of making up that quote to "get a headline."
"And so when I read a headline — a sensationalized, very racialized headline that says, 'it's like I've been lynched,' and it's literally got no connection to this case, I have to ask you, Mr. Social Media, Main Character Chad, White Hero, Savior, Loves to Help Black People Be An Ally, where the lynching in this case came from?" Brown said, according to the transcript.
She also apparently gave Young a copy of a 1920 newspaper article that described a lynching. "So we don't find lynching jokes funny down here, sir," Brown said, according to the transcript.
The implication of Young's defense is that a Latino person cannot be racist against African Americans. That claim is wrong on its face, even under the misguided intersectionality pyramid. The bigger problem is that Young, a lifelong liberal, is unaccustomed to being called a racist.
Toward the end of the hearing, Young said that Brown seemed to be "using vicious stereotypes about White people, when I've repeatedly disclosed to this Court I am Latino."
He said that it appeared that Brown "is trying to tar and feather me for anti-Black animus, that has never been raised by anyone but this Court," according to the transcript.
"This Black woman?" Brown replied.
"No, Your Honor. This Court," Young responded.
Young later said he was "concerned that this Court has made light of my actual work as a civil rights lawyer." Brown asked Young what he has done for Black people, as she viewed his actions in the case toward Black attorneys as "abuse."
Young said he has gone "out of my way" to support the work of Black professors and others. When he described his interest in representing the plaintiff in the case, Brown cut him off.
"Can I pause and just tell you, I appreciate, on behalf of Black people, your White saviordom," Brown said.
"Your Honor, again, I'm not White," Young replied.
This is Ezra Young.
I'll let other people decide how "White presenting" Young is. Young has taught a class titled "Critical Race Theory, and Transgender People and the Law" at Cornell Law School. Young's scholarship "explores the rights of trans persons and is situated in the nascent field of critical trans theory." Young served as board secretary of the African American Policy Forum and was a founding board member of the National Trans Bar Association. Young's post doctoral studies focused on trans rights, Critical Race Theory, and intersectionality and were supervised by Kimberlé Crenshaw. Young is Admitted to practice in the Chickasaw Nation. In what universe can Judge Brown possibly claim Young is some sort of "white savior" who is hostile to black litigants?
Some people may be shocked at what Judge Ada Brown said in court, but the truth is that she is parroting standard dogma from Anti-Racists and Critical Racial Theorists. The charges may be completely absurd for someone like Ezra Young, but imagine the black plaintiff was represented by a white lawyer. Would that person be a "White Savior"? Think of the most famous white lawyer in American literature. Could even Atticus Finch from To Kill a Mockingbird be derided as a "White Savior"? Yes.
Welcome to the world of academia.
In 2015, Law Professor Osamudia R. James wrote an essay in the New York Times, titled Now We Can Finally Say Goodbye to the White Savior Myth of Atticus. Here is an excerpt:
Foundation for Individual Rights and Expression Cases (2025-26) and Their Ideological Valence
FIRE has billed itself as a nonpartisan organization that fights speech restrictions that are seen as left-wing, right-wing, and no-wing. Some have, however, argued that FIRE mostly fights left-wing restrictions (and thus mostly protects right-wing speakers), and goes after only a few right-wing restrictions as supposed "tokens" to hide its true nature.
To test that, I used Westlaw to find all 2025 and 2026 court opinions that mention FIRE as a lawyer for a party, and tried to classify them. Note that I'm not including cases where there has been no court decision yet or cases where the last court decision was before 2025. I'm also not including the many cases where FIRE has filed amicus (friend-of-the-court) briefs: This is partly to keep the list manageable, but chiefly because amicus briefs, while potentially valuable (I file plenty myself), don't represent the same level of commitment of resources as representing a party would.
Here is the list of the 23 cases that I found that meet my criteria, listed in reverse chronological order by the date of the most recent decision in the case that I could find. For each restriction, I've tried to indicate whether it's a restriction that basically comes from the right, from the left, or from neither direction; sometimes, as you can see, it's difficult to figure that out. I may have missed some cases, but I think this should be a pretty complete and at least representative list:
