The Volokh Conspiracy

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Voting

A Libertarian Perspective on the 2026 Election

Why we should vote "Democrat by Default" for federal offices - with a few rare exceptions. I build on a post by political philosopher Dan Shapiro.

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I was going to write a post about why, in this election, the right thing for libertarians to do is vote for Democrats for all federal offices, unless either 1) the Dem candidate is DSA, or 2) the GOP candidate is one of those very rare Republicans who oppose all or most of Trump's awful policies. But libertarian political philosopher Dan Shapiro beat me to it, in an excellent post at the Bleeding Heart Libertarian substack. I agree with the vast bulk of what he says. But I have a few additions and caveats that I will append after quoting a few key passages from Dan's post. Before getting into detail, I will note that I generally believe in voting for the lesser evil among those candidates with a realistic chance to win. Thus, unlike Dan, I don't usually vote for third party candidates, even in more normal times. If you're opposed to "lesser evil" voting on principle, we have a disagreement that goes  far beyond the present election. But I would urge you to check out my defense of that practice, where I explain why you should even vote for the evil Queen Cersei over the even more evil Sauron, if those are the only available choices.

I don't expect this post or Dan's will change the outcome of the election. They almost certainly won't. But they might still be helpful in thinking through big issues we face in the current political moment.

Here's an excerpt from Dan's post:

Most of my voting life I voted for the Libertarian Party when they advocated classical liberal/libertarian policies. Now those who care about and prioritize liberty and a free society—however they label themselves—should vote Democratic unless the candidate is a Democratic Socialist….

There's been so much criminality and misdeeds in the Trump administration that it's exhausting to cover it all, but keeping "the land of the free and the home of the brave" means remembering the essentials. I provide links when the points I make are not common knowledge and/or might be controversial.

Violating the norm of peaceful transfer of political power

January 6: Trump is the only presidential candidate in the US who refused to concede that he lost. He told a crowd to "fight like hell," and the mob then stormed the Capitol to try to overturn the results. The House impeached him for "incitement of insurrection," and 57 senators, including seven Republicans, voted to convict—short of the two-thirds required. After his campaign of lies and deception and pressuring election officials to falsify the results failed to overturn the election, he later pardoned all the perpetrators of the violence.

Violating the rule of law, shredding due process, torture

ICE: masked secret police who kidnap people and send them to hellholes in El Salvador, where they were subject to constant beatings, sexual abuse, and torture; to the Central African Republic, in the midst of a brutal civil war with severe human rights abuses; to Florida's "Alligator Alcatraz," where large numbers of detainees were held in cages the size of phone booths; and to Fort Bliss, Texas, where guards grabbed detainees' testicles while beating them. There've been zero consequences for this; indeed, Trump says they are "immune."

Not only were the deportations done without any notification to families or lawyers, but ICE has disappeared from databases those they seized so lawyers and families can't find them.

ICE and CBP have rammed people in their cars, dragged the occupants out, and rammed into houses without warrants. They have murdered, wounded, and assaulted protestors and ICE monitors—Alex Pretti and Renee Good, during the ICE occupation of Minneapolis, being the most publicized—but there have been many others.

There is now "expedited removal" for anyone undocumented, which means no hearing before a judge. (And this is even though immigration judges are—wrongly—a part of, and not independent of, the executive branch.) Indeed, Trump fired any immigration judge who disagreed with him or whom he perceived as not being deportation-friendly enough, and replaced the Board of Immigration Appeals, which has denied appeals for almost all deportation orders.

The administration removed TPS (temporary protected status) for immigrants fleeing violence and is deporting them to the very countries the State Department has declared unsafe—e.g., Haiti.

ICE apprehended immigrant parents after they dropped their kids off at school (see here, here, and here), as well as apprehending children and toddlers and using them as bait (the Liam Conejo Ramos incident)….

Violating the ban on using the military for policing

 

Trump sent Marines to LA, and National Guard troops to Chicago and DC. This violates a basic norm since the Founding and violates Posse Comitatus, a statute banning the military from policing.

Assaults on free speech and free assembly

Trump and FCC chairman Carr threatened talk shows and networks for dissenting political opinions.

As mentioned, ICE murdered, assaulted, and wounded protestors and ICE monitors.

The administration targeted people for their political views and for writing op-eds. Rochester resident David Streever sent a critical email to the director of ICE, and five months later, federal officers tracked his movements and staked out his New York City hotel as he returned from an overseas trip….

There is much more, including explanations of why the Democrats (with the notable exception of DSA types) are far less bad than this, despite their considerable flaws. I myself have written about the evils of the DSA here, explaining why they are comparable to MAGA nationalist Republicans.  In addition to the harm individual DSA members might cause if elected to office, it is important to reduce their numbers as much as possible, so as to minimize the chances that socialists could take over the Democratic Party, as MAGA nationalists have done with the GOP.

I have a few additions to Dan's arguments.

First, it is essential to consider the enormous scale of Trump's harmful and unjust immigration and trade policies. When it comes to setting issue priorities, scale matters a great deal. Even under normal administrations, immigration restrictions threaten the economic and civil liberties of American citizens (to say nothing of those of immigrants themselves) more than any other federal policy. Trump's vast expansion of exclusion and mass deportation has made things a lot worse. The liberty and well-being of millions of people are at stake.

Trump's trade policies seek to impose the highest tariff levels since those that gravely exacerbated the Great Depression, and also are a grave menace to the rule of law. Here too, we're talking about massive effects on the liberty and welfare of millions. Judicial review can and has helped curb these abuses (more on the tariff front than immigration). But there is much Congress can do to help, including curbing funding to ICE and other agencies complicit in wrongdoing. Congressional Democrats also plan to cut back executive tariff authority. That may not succeed while Trump remains in office, but can help set the stage for later progress.

Dan raises the issue of whether non-DSA Democrats might be worse than the Trump-era GOP on economic liberty issues. This becomes an easy issue if you recognize that immigration restrictions and tariffs are also violations of economic liberty. Due to their massive scale, Trump's actions in this area easily outweigh the very real economic policy flaws of non-DSA Dems. And then we have such things as his acquisition of federal government stakes in numerous private firms, something that even the most left-wing recent Democratic presidents didn't attempt. It's a dramatic example of how MAGA nationalists have dangerous economic policies similar to those of socialists.

It is also important to remember that a Democratic Senate could block Trump's horrible executive and judicial nominees. I don't want to see any more Pete Hegseths and RFK, Jrs. In Trump's first term, he had some good judicial nominees. In the second, he has mostly  bad ones (Emil Bove is a particularly egregious example). From a libertarian perspective, I'd rather have a standard liberal nominee fill the next Supreme Court vacancy (despite all the flaws such jurists have) than the type of right-winger Trump II is all too likely to nominate. Such a person would probably be selected for his willingness to turn a blind eye to executive abuses of power, trample civil liberties, and bulldoze constitutional obstacles to MAGA nationalist policies, such as federalism and separation of powers. There may well not be any Supreme Court vacancies, of course. But lower court nominations will arise, and they matter too.

Finally, I'm more hawkish than the average libertarian, and I think it's important to counter Trump's policies of undermining the Western alliance, and coddling mass-murdering dictators like Vladimir Putin and (to a lesser extent) Xi Jinping. We should care about defending liberty worldwide, not just in one country, especially since the two are interconnected. The Democrats (except for a few far-leftists) oppose this awfulness and could use control of Congress to help curb it.

In these and other areas, a Democratic-controlled Congress could not fully stop Trump's abuses. The executive has accumulated too much power for that, often in constitutionally dubious ways. But congressional control of nominations and purse strings can do much to constrain the executive at the margin. And electoral repudiation of Trump's abuses can reduce the risk that future presidents will imitate them.

I do have a few caveats to attach to Dan's otherwise compelling points:

First, Dan doesn't differentiate between elections for federal offices and those for state and local ones. I do. Beating the GOP in federal races is vital for countering Trump's awful agenda. At the state and local level, other issues are dominant, and Republicans are often better than Dems on the crucial issues of housing, state-level taxation, and state and local economic regulation. Which party is better on these and other state and local issues will vary from state to state. For example, red state Republicans are much better on the crucial issue of housing deregulation than blue state ones (who often back exclusionary zoning against Democratic reform efforts). Thus, it might make sense to vote for Republican candidates in some state and local races, but not others, depending on the issues involved.

Second, when it comes to the DSA problem, there can be difficult questions about what to do with Dem candidates who are not actual DSA members, but seem closely adjacent to them. Michigan Senate candidate Abdul El-Sayed is a notable example. He says he's not a socialist, but also is closely aligned with socialists like Bernie Sanders, and "influencer" Hasan Piker, the guy who - among other things - praises communist mass murderers like Mao Zedong.

In this post, I'm not going to try to adjudicate each individual candidate and race. I will merely say that if you're trying to figure out whether a non-DSA member is actually a socialist, two noteworthy indicators are 1) whether he or she supports government control of all or most of the economy and 2) whether they praise socialist despots abroad, such as Mao, Fidel Castro, and others. If the answers to one or both questions are "yes," that's a strong indication they might be socialists, and therefore not worth voting for, except perhaps against the very worst Republicans.

There is a similar calculation in identifying the few Republicans who have opposed Trump's worst policies. Here, key indicators are whether they have opposed his tariffs, his mass deportations, his kowtowing to Vladimir Putin, and his attacks on civil liberties. Sadly, Republican candidates with consistent strong records on all or most of these issues, are few and far between, though Republican criticism of the tariffs and policies towards Russia have picked up in recent weeks.

Finally, as Dan would agree, voting for Democratic candidates does not imply supporting everything the Democratic Party does, or abstaining from criticizing Democrats on the many occasions when they do bad things.

Elsewhere, I have argued that libertarians, in the current political moment, should seek an alliance with "abundance liberals." But alliance is not the same thing as total agreement. And the Democratic Party obviously includes various factions who are much worse than the abundance types. We should keep that in mind, even as we recognize that right now the Republicans are much worse.

Free Speech

Court Blocks W. Va. AG's Subpoena to Environmentalist Nonprofits

Part of the AG's argument was that the nonprofits relied on a climate change scenario, RCP8.5, that has been recently "retired."

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From yesterday's decision by Judge Joseph Goodwin (S.D. W. Va.) in W. Va. Rivers Coalition, Inc. v. McCuskey:

The Attorney General of West Virginia has used the State's power to compel two citizen organizations to open ten years of their files: their drafts and internal arguments, the groups they have funded, the people who serve on their boards, the coalitions they have joined, and what they have told the agencies they petition. Neither organization markets goods nor services relevant to the subpoenas. The Attorney General identifies no consumer who was cheated, no sale, and no purchase made in reliance on anything either group said.

What these organizations do is argue in public about what coal, oil, and gas do to West Virginia's waters and climate. The State's chief legal officer, who has publicly condemned that advocacy, now demands to know how they reached their views and who stood with them.

The First Amendment forbids a State from using its investigative power that way, and I will not allow it while this case is pending.

The country was founded on the premise that a citizen owes the government no account of his opinions or of the people he holds them with. The Attorney General has demanded that two citizen organizations hand the State their working lives.

The State wants a decade of what they published, down to a note sent to a single person outside the organization, along with the unreleased drafts and the internal arguments over what to say. He demanded the names of the organizations that fund them and what each gave, and he has now withdrawn that demand. He still wants the groups they paid, the board members they share, the coalitions they joined, and the comments they filed with the agencies they were petitioning. Because the demand period runs to the date of compliance, the subpoenas reach new communications written while they remain outstanding. No demand identifies a consumer, a sale, or a statement anyone relied on. The subpoenas go into how these citizens arrived at their positions on public questions and who helped them get there.

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Politics

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

Flying saucers, voodoo dolls, and ancient plagues.

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

New on the Short Circuit podcast: It's our biannual election law special! Anonymous speech! The Founders and pamphlets! Motor voter! Purcell! Prefilling ballots! Vote early! Vote often!

New on the Beyond the Brief podcast: Automated license plate readers are a lot of things, but one thing they definitely are is great tool for stalking. Hoo boy!

  1. D.C. Circuit (unpublished): No need to comment on the denial of this guy's latest request for compassionate release from a well-below-guidelines sentence for pimping minors. J. Walker, concurring: I have comments.
  2. Rather than provide documents through discovery, the feds now direct people in DHS proceedings to file FOIA requests. Their lawyers sue, claiming that this procedure is too slow and the responses often incomplete. First Circuit: If the first thing we do is kill all the lawyers, the second is deny standing to those who remain. Read More

Executive Power

New Brennan Center Report on Curbing Executive Power

Many of their recommendations are well-taken.

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The NYU Brennan Center for Justice recently published a valuable report entitled "Seven Solutions to Rein In Abuses of Executive Power." The Brennan Center is well to the left of me. But I agree with the vast majority of their recommendations here. We do indeed have an overgrown executive, and it needs to be pared back. I particularly agree with the excellent section on constraining emergency powers:

With just a signature, presidents can declare a national emergency and unlock special powers contained in more than 130 statutory provisions. These run the gamut from the seemingly trivial to the near-dictatorial, including powers to shut down or take over communications infrastructure, freeze Americans' bank accounts, and control domestic transportation. They are intended for sudden, fast-moving crises that Congress can't address quickly or flexibly enough. But presidents of both parties have stretched the meaning of "emergency" far beyond reason, enabling them to draw from a growing stockpile of statutory authorities with few real safeguards.

There are currently 51 active states of emergency, and the longest-running has lasted 47 years.10 Any emergency that persists for generations is, by definition, not an emergency; it's a problem that can be addressed through ordinary lawmaking. Yet presidents have used emergency powers to bypass Congress and unilaterally advance their policy goals.11

The National Emergencies Act once allowed Congress to terminate emergencies with a simple majority vote and without the president's signature. But the Supreme Court struck down that procedure, known as a legislative veto, in 1983. Today, ending an emergency effectively requires a two-thirds majority in both chambers to override a presidential veto.

Congress should amend the National Emergencies Act to constrain executive overreach.12 Emergency declarations should expire automatically after 30 days unless Congress approves a one-year extension, renewable annually with Congress's assent. And presidents should be required to share detailed reports on their uses of emergency powers. Proposals along these lines have received widespread bipartisan support, with versions of these reforms overwhelmingly passing out of the relevant House and Senate committees in 2024.13

Additionally, Congress should amend specific emergency statutes whose extensive delegations of power and inadequate safeguards make them susceptible to misuse. Of particular concern is the International Emergency Economic Powers Act, the most frequently invoked presidential emergency authority.14 Sanctions imposed under this law can equate to a "financial death sentence" lasting years or decades.15 Although the Supreme Court blocked Trump's effort to use the law to set global tariffs, the potential for other abuses remains.

I completely agree, and have previously advocated similar reforms, myself. Brennan is right that IEEPA should be tightened up. While the Supreme Court did rule (in a case I helped litigate) that IEEPA cannot be used to impose tariffs, it still includes a lot of other dangerous powers.

I would add, as I did in this article, that invocations of emergency powers should be subject to  nondeferential judicial review, to ensure that they are used only in the event of genuine emergencies, not bogus ones. Congress would do well to amend relevant emergency statutes to make clear that such nondeferential judicial review is available.

I also strongly endorse Brennan's recommendations on constraining laws governing the domestic use of the military. The Supreme Court did strike down Trump's attempts to use bogus pretexts for federalizing the National Guard; the Ninth Circuit recently reinforced that ruling by rejecting the administration's broad definition of what qualifies as a "rebellion" justifying federalization. But, as the Brennan report indicates, there is still a lot of potential for abuse, especially when it comes to the Insurrection Act.

I also agree with the Brennan report's advocacy of constitutional amendments eliminating presidential immunity from criminal liability for acts undertaken in office, and barring him from pardoning crimes committed by" members of their inner circle, including immediate family members and senior administration officials" and those "convicted of crimes ordered by the president or committed on the president's behalf."

I doubt that these amendments have much chance of being enacted, given the extreme difficulty of passing any constitutional amendment. On the other hand, the reforms to emergency powers and domestic use of the military can be adopted through ordinary legislation. In some cases, they can also be bolstered by stronger judicial review under existing laws and provisions of the Constitution.

I do have a few disagreements with the report. For example, it is not clear to me that the Supreme Court's decision in Trump v. Slaughter goes as far as the authors suggest. The decision's scope remains uncertain. Among other things, it's not clear how wide a range of federal agencies it applies to and how to reconcile it with Trump v. Cook, decided on the same day. I also think they may overestimate Slaughter's impact, since most federal agencies are already not independent in the sense that there are legal constraints on the presidents' power to fire their heads.

I would also have liked to see more recognition that curbing excessive executive power requires curbing the scope of federal power generally. It is virtually impossible to have a federal government that regulates almost every aspect of human activity without simultaneously delegating vast - and often dangerous - discretion to the executive.

That said, the vast majority of the Brennan report's recommendations are well-taken. I hope future Democratic administrations and members of Congress act on them.

For those keeping score, it's worth noting that Brennan Center emergency powers expert Elizabeth Goitein, one of the authors of the report, is a long-time critic of abuses of emergency powers under Democratic administrations, as well as Republican ones. For example, she condemned President Biden's attempt to use emergency powers to effectuate massive student loan forgiveness. And so did I.

Religion and the Law

Amicus Brief in OneTaste Criminal Prosecution

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Matt Kezhaya (Kezhaya Law PLC) wrote an amicus brief on my behalf in this case (U.S. v. Cherwitz & Daedone) a few weeks ago—many thanks to him for all his work on it!—and I thought I'd pass it along:

Summary of Argument

Under the Government's theory of spiritual coercion, people who at one point believed that volunteering for a religious organization is the path to enlightenment or salvation, but who later become disillusioned with their former beliefs, can be found to have been retroactively "coerced" into providing that labor. The same logic could apply to nuns who had felt religious pressure to do the educational or nursing work that their order was known for, or to monks who had felt religious pressure to do agricultural work that supports the monastery. Any religious organization that runs a monastery, convent, or any other institution where adherents are expected to work as part of their religious vocation could likewise face felony prosecutions.

Such a theory of criminal liability violates the Free Exercise Clause because it is not "neutral." Governments depart from neutrality not just when legislators pass laws designed to suppress religion, but also when courts enforce otherwise-neutral laws in ways that suppress religion precisely because of spiritual or religious qualities. Liability in this case turned precisely on the religious nature of the allegedly coercive conduct, and was imposed in the absence of any secular coercion such as violence or the threat of violence.

The sexual subject matter and conduct inherent within OneTaste's beliefs and practices is beside the point. The forced labor statute is not limited to sexual labor. 18 U.S.C. § 1589. Rather, it generally prohibits any "labor" obtained through "threats of serious harm." 18 U.S.C. § 1589(a)(3). Indeed, the "labor" subject of this charge was ordinary, non-sexual administrative work entailed in running a religious organization that features events and communal living.

To be sure, laws that restrict sexual labor will usually be neutral and generally applicable, precisely because they do not turn on any claims of religious or spiritual coercion. If any business, religious or not, offers its employees' sexual services in exchange for money, that might well violate generally applicable bans on prostitution or pandering. Likewise, if any business, religious or not, conditions employment on the employee's performing sexual services, that will usually constitute civilly actionable quid pro quo sexual harassment. And enforcing such laws would not jeopardize ordinary religious labor, precisely because they are focused on a narrow range of secularly-defined behavior that is seen as harmful (the exchange of sex for money or employment) rather than on a theory of spiritual coercion that can apply to a wide range of labor.

But such laws were not used in this case. The essence of this charge was punishing a particular religious group. The Court should vacate the convictions, or at least reverse and remand for a new trial with proper limiting instructions.

Argument

[I.] A theory of "spiritual coercion" violates the Free Exercise Clause.

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Anti-Semitism

Discovery Sanctions Recommended in "Are You a Jew? … Are You a Zionist?" Case

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The factual allegations, from a Sept. 2025 decision in the case by Judge Susan Illston (N.D. Cal.) (the case is Radice v. Jerusalem Boxing Club, LLC consolidated with the federal government's U.S. v. Harara):

The Jerusalem Coffee House [which Harara owns] is a business establishment open to the general public. The coffee house is located on the premises of the East Bay Community Space, "which regularly hosts events that are open to the general public for exhibition or entertainment …."

According to the complaint, on June 10, 2024, Michael Radice—who is Jewish—went to the East Bay Community Space "for the purpose of viewing the establishment for a fundraising event for his organization." Radice was wearing a dark blue baseball cap with a light blue Star of David and white Hebrew lettering. As he approached the community space from the side where the coffee house is located, a man sitting at a table in front of the coffee house asked, "Are you a Jew?" Radice answered in the affirmative. The man then asked, "Are you a Zionist?" Radice declined to respond.

The complaint alleges that "[t]he man then began shouting numerous accusations at Mr. Radice, including that he was complicit in Israel's military actions in the Gaza Strip following the October 7, 2023 Hamas attacks and guilty of 'killing children.'" As Radice began to walk away, the man stood up and asked, "Where are you going?" The complaint alleges, "Mr. Radice saw another man, whom he later learned was Harara, walk out of the coffee house and speak to the man, and the two went inside." …

On August 3, 2024, Radice returned to the East Bay Community Space to attend the fundraiser for his organization. Before doing so, "he entered the coffee shop to purchase a cookie, which he hoped would be seen as a sign of goodwill." He was not wearing the baseball cap he had worn previously. Behind the counter were Harara, the man Radice had previously encountered, and a third employee. Before Radice could place his order, the man from the prior encounter stated, "You're the guy with the hat. You're the Jew. You're the Zionist. We don't want you in our coffee shop. Get out."

And now from Judge Thomas Hixson's Report and Recommendation yesterday:

There is no dispute that Defendant Abdulrahim Harara violated at least six discovery orders. Motion at 4-7 ("Harara has flouted at least six discovery orders," and enumerating the violations); Opp. at 7 ("But the question on this motion is not whether any order was violated; it is whether the record as a whole shows the kind of deliberate, deceptive obstruction that makes a fair trial impossible and justifies ending the case without one.")….

The real issue is what remedy the Court should impose for the serial violations of its discovery orders. The impact of Harara's conduct basically falls into three buckets: documents were produced late that should have been produced earlier; some document productions are incomplete; and there has been a wholesale failure to produce email. But having reviewed the voluminous evidence submitted in support of Radice's motion for sanctions, the Court thinks truth is available to the parties, and they should go ahead and have a trial on the existing record.

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Supreme Court Clerks Who Become Law Professors (2012-2026)

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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.

  1. 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.
  2. Justice Breyer (8 Clerks): Jennifer Nou, Rebecca Stone, Natalie Ram, Tejas Narechania, Andrew Crespo, Farah Peterson, Brian Richardson, and Thomas Schmidt.
  3. Justice Kennedy (7 Clerks): Chris Walker, Lisa Manheim, James Stern, Richard Re, Justin Walker, Daniel Epps, and Leah Litman.
  4. Justice Thomas (7 Clerks): Marah Stith McLeod, Jennifer Mascott, Robert Leider, Haley Proctor, Steven Lindsay, Brian Lipshutz, and Brittney Lane Kubisch.
  5. Justice Stevens (6 Clerks): Jean Galbraith, David Pozen, Jessica Bulman-Pozen, Sam Erman, Merritt McAlister, and Travis Crum.
  6. Justice Sotomayor (6 Clerks): Aaron Tang, Michael Pollack, Nikolas Bowie, Kevin Arlyck, Bridget Fahey, and Kamaile Turcan.
  7. Justice Souter (5 Clerks): Erin Delaney, David Han, Ann Lipton, Matthew Tokson, Mark Jia.
  8. Chief Justice Roberts (4 Clerks): William Baude, Paul Crane, Matthew A. Shapiro, and Ryan Snyder.
  9. Justice Alito (4 Clerks): Steven Menashi, J. Joel Alicea, Sherif Girgis, and Garrett West.
  10. Justice Scalia (3 Clerks): Aditya Bamzai, Ian Samuel, and Katherine Mims Crocker.
  11. Justice Kagan (3 Clerks): Daniel Hemel, Andrew Crespo, and Benjamin Eidelson.
  12. 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.

Free Speech

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.

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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.

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Alaska

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.

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Sen. Dan Sullivan (R-Alaska). (US Senate)

 

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.

Free Speech

Even "Trumpy Judges" and "Woke Judges" Might Know More Law Than You Do

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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:

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Elections

The Law and Democrats Allegedly Recruiting Second "Dan Sullivan" to Run in Alaska Senate Race

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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.

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Israeli Jews Vote by Economic Status, Even Though Elections Turn on Other Issues

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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.

Free Speech

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).

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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.

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Free Speech

Cancellation, Defamation, Bankruptcy, Discharge

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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.

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