On May 22, 2-3 PM eastern time, the Cato Institute will host an online event on "Trump v. Barbara: Birthright Citizenship at the Supreme Court." The event is free and open to the public. Registration information available here. The participants will be prominent immigration law scholar Prof. Gabriel Chin (UC Irvine), leading legal historian Paul Finkelman (Univ. of Toledo), and myself. Dan Greenberg of the Cato Institute will moderate.
The Supreme Court held oral argument in the case on April 1, and I put up a post about some of the issues raised here. In a recent article in Lawfare, I explained why all the Trump Administration's rationales for denying birthright citizenship to children of undocumented immigrants would, if applied consistently, also have had the effect of denying it to large numbers of freed slaves and their children, thereby undermining the central objective of the Citizenship Clause of the Fourteenth Amendment. This alone dooms Trump's position under the original meaning of the Clause, even aside from all the other flaws in his arguments.
Last week, the Virginia Supreme Court invalidated the new maps by a 4-3 vote. The Virginia Attorney General has signaled he will seek emergency relief with the United States Supreme Court based on the independent legislature theory. I agree with Rick Hasen that this argument will not work under Moore v. Harper. This case did not "arrogate" the power of the legislature. I am not an expert in this area of law, but the majority opinion seems persuasive, and at a minimum seems well within the bounds of a judicial decision.
Are there any other options remaining for Virginia democrats? I thought the answer was no, but apparently there is a theory floating around.
One key to the plan would be having Democrats in Richmond lower the mandatory retirement age for state Supreme Court justices, an idea that began circulating among state lawmakers and members of Congress after a column proposing a version of the idea was published on Friday night in The Downballot, a progressive newsletter.
Ms. Spanberger would have to sign off on any legislation that lowered the judicial retirement age. She has not been briefed on the proposal, the people involved in the discussion or briefed on it said. Her spokeswoman, Libby Wiet, declined to comment.
The first step in the process, as discussed on the delegation's call, would be to invoke a January ruling by a circuit court judge in Tazewell County, Va., that said the 2026 constitutional amendment effort to redraw the maps was invalid because county officials did not post notice of it at courthouses and other public locations three months before a general election.
Democrats would aim to use that ruling to seek to invalidate the earlier constitutional amendment that created the state's independent redistricting commission by arguing that courthouses across the state did not post notice of it at the time. That would give the legislature the authority to enact a map of its choosing.
Ensuring the plan proceeds would involve the General Assembly, which is controlled by Democrats, lowering the mandatory retirement age for Virginia's Supreme Court from 75 to 54, the age of the youngest current justice, or less. Virginia judges are appointed by the General Assembly, where Democrats hold majorities in both chambers and could then fill vacancies on the court with sympathetic Democratic lawyers.
In other words, the legislature would "retire" all of the Justices in the majority, install cronies to the court, have the court invalidate the independent legislation commission due to the lack of notice, then enact a new map. And all of this could be done before the August primary. Simple, right?
Thankfully, several Democrats publicly spoke out against this plan. At least one Democrat went on record supporting the plan:
Representative Suhas Subramanyam, a Democrat who represents Loudoun County, Va., said in an interview that he supported doing whatever was necessary to preserve the map voters approved in last month's referendum — including replacing the state's Supreme Court justices.
"Everyone has got to have a strong stomach right now; this is a complete disaster waiting to happen if people are timid," said Mr. Subramanyam, who was on the Saturday call. "We have Republican states ignoring their constitutions and interrupting early voting and ignoring their Supreme Courts all together. We know based on that, Republicans would explore every single option possible to move this forward."
Here is the proposal in detail from The Down Ballot substack.
Article VI, Section 9, of the Virginia Constitution gives the legislature unlimited authority to set the retirement age for judges. It specifies, "The General Assembly may also provide for the mandatory retirement of justices and judges after they reach a prescribed age, beyond which they shall not serve, regardless of the term to which elected or appointed."
Current law sets the mandatory retirement age at 73: "Any member who attains 73 years of age shall be retired 20 days after the convening of the next regular session of the General Assembly following his seventy-third birthday."
This number is arbitrary. States around the country with similar laws mandate retirement across a wide range of ages. Virginia lawmakers can simply lower theirs. Make it 54 for Supreme Court justices—the age of the youngest justice, Stephen McCullough, who joined the majority opinion—and make it take effect immediately. . . .
Then, after the bill is approved, the entire court would retire. A new court would then be appointed that could re-hear the case and have the opportunity to issue a different ruling.
Democrats might prefer other solutions, but if they want to see the will of the voters respected in time for the November elections, there are virtually no other options—and none with as good a chance of success as this one.
The genius of the plan: when judges rule against your preferred cause, simply replace them. I realize there has been much debate about whether a federal judge can be impeached on the basis of his decision. But here, judges would clearly be removed for their decision by virtue of lowering the retirement age to 54. Just for reference, Justice Ginsburg was appointed to the Supreme Court at the age of 60. Justice Holmes was 61.
We often talk about constitutional hardball. This would be murderball. Especially in light of this pressure, I do have to offer some praise for Justice Arthur Kelsey, who wrote the majority opinion. My friend Rob Luther, a professor at Scalia Law, offered these remarks:
I think Justice Arthur Kelsey of the Supreme Court of Virginia is the clear winner of "Judge of the Week" this week. He wrote the opinion in the Virginia redistricting case despite being up for reappointment by a D-controlled General Assembly in January. He's 64, but mandatory retirement for Virginia judges is 73. Kelsey is known as a conservative but if he'd have voted with the Democrats he probably would have been reappointed. Many squishes would have tried to save themselves. But not Kelsey. Instead, he willingly signed his own judicial death warrant.
People often ask me to show them an example of "judicial courage"— obviously it's harder for Article III judges—but this is as good an example as I could imagine.
Indeed, this is an act of judicial courage. He will likely lose his position, even if the retirement age is not altered.
Neal Katyal at Burning Man. It is unclear if Harvey AI powered the propeller on his hat.
The fallout from Neal Katyal's TED Talk continues. I have received messages from judges, Supreme Court practitioners, members of the Supreme Court press corps, law professors, law students, and more. The universal consensus is that Katyal's performance was a complete and total embarrassment. Usually my takedowns infuriate half the crowd and enrapture the other half. But for Katyal, the verdict is unanimous.
One of the more bizarre aspects of the talk is that Katyal took a shot at Judge Michael McConnell. Katyal also suggested that McConnell lobbied Jason Willick of the Washington Post to write the column urging the former judge to argue the case before the Supreme Court.
Three weeks before that argument, one of my own teammates decided to try and take me down so that he could argue the case. He campaigned, he lobbied, he made calls. Just a few days before the argument, about two weeks, The Washington Post runs an editorial somehow, and I'm going to read this to you word for word: "Strategic mistake." I read it over breakfast. Look, I don't begrudge the guy. I mean, whatever. (Laughter) I had more important things to do because I wasn't replaced.
These are some serious allegations. I have known McConnell for a very long time. He is, if anything, overly charitable, and does not play dirty. I would find this sort of behavior to be entirely out of character for McConnell. Indeed, I would find it far more plausible if Neal Katyal had lobbied the client to argue the case over McConnell. After all, it would have made eminent sense for the conservative former judge to argue before the conservative Supreme Court, even if it made sense for Katyal to argue before the liberal Federal Circuit.
Now, Jason Willick of the Washington Post has responded.
Katyal apparently is still bitter about the column, which is his right, but he used the TED talk as a platform to smear McConnell. "Three weeks before that argument, one of my own teammates decided to try and take me down so that he could argue the case," Katyal said. "He campaigned, he lobbied, he made calls. Just a few days before the argument, about two weeks, The Washington Post runs an editorial somehow, and I'm going to read this to you word for word: 'Strategic mistake.'"
The implication that McConnell put me up to writing the piece is simply false. I covered the tariffs case closely as it wound its way through the courts. I heard through the grapevine about the plans for the Supreme Court argument, which weren't a secret in D.C. legal circles. I decided after discussing with colleagues that it was in the public's interest to know about the legal strategy behind such an important case for America's separation of powers.
Burning man, pants on fire?
Willick writes further how Michael McConnell played a pivotal role in the briefing, which Katyal entirely ignored:
Why the Liberty Justice Center — the donor-funded nonprofit that sponsored the tariff litigation — decided to pass over McConnell for Katyal remains a mystery. But after the Supreme Court's decision came down, Sara Albrecht, the group's CEO, emailed to me that my piece had "overlooked the central role Michael [McConnell] played as Counsel of Record directing the brief and shaping the arguments presented to the Court."
McConnell's "central role" is apparently lost on Katyal.
I still think it far more likely that Katyal persuaded LJC to take the argument away from McConnell, without McConnell's knowledge. This sort of thing happens all the time with the Supreme Court bar.
What next? At some point clients could decide that Katyal hurts their case more than he helps.
In any case, Katyal's TED Talk performance highlights the very concerns I raised in the column. The plaintiffs won despite Katyal, not because of him. Supreme Court lawyers aren't a humble bunch, but this level of self-aggrandizement is a bad look. So is publicly disparaging a co-counsel.
The Liberty Justice Center also challenged Trump's second wave of tariffs, and the question could come back before the justices. Supreme Court litigants might need to start considering whether their interests are best served by a runaway ego.
Chief Justice Roberts famously said, "If I'm going to have heart-bypass surgery, I wouldn't go to the surgeon who calls me up." Likewise, sophisticated clients should not pick a Supreme Court advocate based on an AI-enabled TED Talk.
From Thursday's decision by Judge Nina Wang (D. Colo.) in Coomer v. Lindell:
This is a defamation case brought by Plaintiff Eric Coomer ("Plaintiff" or "Dr. Coomer") over accusations that he used his position at Dominion Voting Systems to interfere with the results of the 2020 presidential election. The case went to trial, and the jury delivered a partial verdict for Plaintiff. The verdict included a punitive damages award against Frankspeech.
[A.] The First Order to Show Cause and Sanctions Order
Before trial, Plaintiff filed a motion in limine. Defendants then filed a response brief that included "nearly thirty defective citations." … After questioning from the Court at the Final Pretrial/Trial Preparation Conference ("Pretrial Conference"), Mr. Kachouroff eventually admitted that he had used artificial intelligence ("AI") in drafting the response brief. He also represented that he had delegated citation checking for the brief to his co-counsel, Jennifer DeMaster ("Ms. DeMaster")…. The Court concluded that a $3,000 sanction on Mr. Kachouroff and his law firm and a $3,000 sanction on Ms. DeMaster was the "least severe sanction adequate to deter and punish defense counsel in this instance." The Court declined to extend the sanction to Defendants themselves.
[B.] The Second Order to Show Cause
After trial, and after the Court's first sanctions order, the Parties submitted their post-trial motions. Plaintiff moved to increase the punitive damages award against Frankspeech, pursuant to Colorado law. In relevant part, Frankspeech's response brief ("Response") argued that such an award would violate the Reexamination Clause of the Seventh Amendment. The brief stated, "The 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F.Supp.2d 1149, 1154-56 (10th Cir. 2010), that the jury's determination on this issue [i.e., the amount of punitive damages] is entitled to finality."
In its Order on Post-Trial Motions, the Court observed that the Capital Solutions citation is defective for two reasons. First, Capital Solutions is a district court decision, even though Frankspeech erroneously referred to it as a Tenth Circuit case. Second, Capital Solutions does not support the proposition that a jury's determination of the amount of punitive damages is "entitled to finality" under the Reexamination Clause. The Court explained that a reasonable review should have alerted defense counsel to this mistake. And given that counsel had already been sanctioned for "this exact type of error," the Court ordered Mr. Kachouroff, Ms. DeMaster, and Frankspeech to show cause why they should not be sanctioned again under Rule 11….
5/9/1974: Resolution to impeach President Nixon introduced in the House of Representatives. On 7/24/1974, the Supreme Court would decide U.S. v. Nixon.
On Thursday, I attended a double investiture at the Supreme Court of Texas for the two newest members. Justice James P. Sullivan was sworn in by (Retired) Judge Tom Griffith. Judge Griffith gave a fascinating discussion on the value of the oath. We should all focus on the meaning of "help" in "So help me God." We are wiser for his insights.
Justice Kyle Hawkins was sworn in by Justice Samuel A. Alito. The Justice relayed a funny story from Kyle's term. Justice Alito circulated an opinion in a non-controversial case that he thought would quickly garner nine joins. No such luck. Justice Alito received a number of letters asking to remove this part, add that part, and rewrite another part. The task fell to Kyle to help manage the revisions, and ultimately, the opinion satisfied everyone. (No he did not mention which case it was, but I would love to know.)
Investitures for the Texas Supreme Court are held in the chamber of the Texas House of Representatives. Every seat was filled. There were also tributes given to Chief Justice Nathan Hecht and Justice Jeff Boyd, who recently retired from the court.
Dare I say that the Texas Supreme Court is the greatest state supreme court in the nation? The intellectual firepower of that Court is staggering. I can't wait to see what Justices Sullivan and Hawkins bring for years to come.
After a brief stay in Austin, I flew to Chicago O'Hare and drove to Milwaukee to attend the investiture of Judge Rebecca Taibleson to the Seventh Circuit. Over the years, I have written about my close bond with Professor Michael Krauss at George Mason University. Professor Krauss gave remarks about his daughter that brought everyone to tears. Justice Kavanaugh also spoke about his former law clerk. He remembers the exact moment he met Judge Taibleson in the hallway at Yale Law School. She made that much of an impact on him. This was a ceremony with so much warmth and joy--it was especially cathartic after the unnecessarily difficult confirmation process. But, as one commenter observed, this was a rare instance where the meritocracy prevailed. And Judge Taibleson will make everyone proud.
I am proud to say that three of my former students will be clerking for these three jurists next term.
The week was even funner. On Wednesday, I attended a legal retreated at my new think tank, the Manhattan Institute, followed by the Hamilton Dinner at Cipriani. Senator Ben Sasse was the honoree of the night. What an inspiration he is.
And on Monday and Tuesday, I attended the Fifth Circuit Judicial Conference, which, blessedly was in Houston. If you want to figure out how I was in so many places at once, the answer is several early-morning flights.
Somehow, amidst all of those travels, I wrote what may be my most popular blog post of all time. It has been the talk of the town. I've lost count of the number of phone calls, texts, and emails I've received thanking me for saying what needed to be said. You are all welcome for that public service. Maybe I should give a TED Talk about the experience of writing a viral post without AI.
In a recent Washington Post op ed, Nobel Prize-winning economist Alvin Roth makes the case for legalizing kidney sales. Roth is a world-leading expert on taboo markets and related topics. Here is an excerpt:
It's time to carefully but urgently rethink payments to kidney donors.
There are approximately 130,000 new cases of kidney failure annually in the United States. It is disproportionately a disease of the poor, and is four times as likely to affect Black people as White people. Kidney failure costs Medicare alone more than $55 billion per year, mostly for dialysis. More than 500,000 people are presently on dialysis, about half of whom will die within five years of beginning treatment. The best treatment for kidney failure is transplantation, but in 2025 fewer than 30,000 people in the United States received kidney transplants. So most people who could benefit from a lifesaving transplant will die without one.
About 90,000 people are registered on the national waiting list to receive a deceased-donor kidney, and many more would be, if there were enough transplants for all who need them. Thousands die each year while waiting, and thousands more are removed from the waiting list when they become too sick to undergo transplant surgery….
[K]idneys for transplant remain in tragically short supply. So it is past time to consider amending the 1984 law that prohibits giving "valuable consideration" for a kidney for transplant.
I am a longtime advocate of legalizing organ markets. Over the years, I have pointed out that doing so would save many thousands of lives, save many more people from years of painful kidney dialysis, and increase bodily autonomy. I provide an overview of these and other points in my recent book chapter "The Presumptive Case for Organ Markets," where I also address a range of standard counter-arguments, such as claims that organ markets would lead to "exploitation" of the poor, that legalization would corrupt our ethics, or that paid donations would "crowd out" altruistic ones. Legalizing organ markets should be a high-priority issue for anyone who cares about saving lives and increasing liberty.
But Roth's advocacy is far more significant than mine, because he's one of the world's leading economists. And, as a left-liberal, he can't easily be accused of advocating legalization because of ideological bias.
Roth does have some concerns about kidney sales that he argues need to be addressed:
We wouldn't want inappropriate donors to be unduly influenced to give up a kidney. (This is something already considered when screening the thousands of people who donate one of their kidneys each year without payment.) Another concern is that we wouldn't want to live in a world in which only rich people could get kidneys, by buying them from poor people.
I am not entirely sure what Roth means by "inappropriate donors." But if he means people whose kidneys are in poor shape or who are bad matches for a particular patient, health care providers would have strong incentives to screen kidneys for quality and for proper matching, because otherwise they would be subject to liability for fraud, malpractice, or negligence. In addition, patients and insurance companies would gravitate away from providers who develop a reputation for poor screening practices. Ultimately, economists estimate we need about 70,000 additional kidneys per year to fully meet the needs of patients suffering from kidney failure in the US. If payment is legalized, a population of over 300 million people can easily provide enough willing donors that health care providers need not settle for kidneys in poor condition or donors who are bad matches for particular patients. Here, as elsewhere, market incentives are a great way to alleviate shortages, and increase quality.
As for the concern that only "rich people" would be able to purchase kidneys, that is no more likely than that only rich people could access the many other services provided by the market. Health insurance can pay for kidney purchases, just as it pays for consumption of many other medical procedures and supplies needed by people in catastrophic situations. And, as Roth recognizes, this would actually be cheaper than the current practice of paying for years of kidney dialysis, during which many patients are impoverished by not being able to work (or at least not full-time).
Rich people who need kidney transplants will be able to buy them. But rich people would have no incentive to buy more than that, any more than rich people buy up all the world's food or all the other medical supplies.
Government can subsidize purchases of kidneys for poor patients, just as it does for many other medical services. Here too, subsidizing kidney purchases is likely to be cheaper than the current policy of subsidizing kidney dialysis. And people who get transplants quickly can thereby also return to the workforce faster, thus further reducing the cost of kidney disease to society and to the public fisc.
Roth points out that "[i]t would be financially feasible to pay donors quite generously without requiring recipients to pay anything at all. Donors could be paid entirely from the savings to the health care system by taking patients off dialysis." I largely agree. But I think it best if most purchases are made through private insurance plans, rather than by the government. That would incentivize efficiency and competition, and reduce the burden on taxpayers. Government subsidies are best limited to poor and disabled people unable to support themselves.
Almost any system of legalized organ markets would be far preferable to the status quo, where some 40,000 die needlessly every year, and tens of thousands more are condemned to long periods of painful kidney dialysis. Roth and I may not fully agree on what the optimal organ market system would look like, we do agree that legalization would be an enormous improvement over the status quo.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
This week on the Short Circuit podcast: Live from Michigan Law, it's our Administrative Law-apalooza. With Professors Chris Walker & Nicholas Bagley and top admin law lawyer Zach Larsen.
In 2006, the City of Baltimore agreed to use eminent domain to acquire a huge chunk of land and turn it over to a private developer. But then, in a turn of events that will surprise everyone except those who have ever read anything at all about eminent domain, the planned development is a flop, leaving most of the area vacant, rat-infested, and generally an annoyance to its neighbors. Which stinks, says the Fourth Circuit, but doesn't mean those neighbors have a claim under the Takings Clause to challenge the condemnation of their erstwhile neighbors' land. Read More
Partisanship has plagued American society since before Independence. John Adams notably claimed that at the time of the Revolution, "one full third were averse to the Revolution," one-third in favor, and a final third swinging between the other two.[i] Yet the idealism that inspired the main voices for Independence led them to plant their flag firmly in the soil of an American "civic friendship" that was long a living tradition in local and colonial assemblies.
In the colonial era, such a concept of civic friendship and equality was inherent in the practice of local representation. The signers of the Mayflower Compact in 1620 agreed to "covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation… for the general Good of the Colony."[ii] Their bonds preceded the society they were going to build. In doing so, they reflected civic friendship as outlined by Aristotle, in which a "friendship of utility," citizens combine to pursue their self-interest. In doing so, they work in harmony for the good of the city (polis) and their fellow citizens in it. Practically, citizens accept the political reality of ruling and being ruled in turn, as each trusts each to do the best for the community. Ultimately, such reciprocity creates the condition of civic equality.[iii]
By a century and a half later, Thomas Paine had shifted the direction of influence, writing in Common Sense that "[Society] promotes our happiness positively by uniting our affections…"[iv] On Paine's view, it is society itself that creates feelings of civic unity by which common goals can be achieved. By the mid-1770s, self-government had come to be consciously understood as the only legitimate form of political system that can lead to both unity and shared civic goals.
This was thrown into sharp relief once the colonists found themselves in conflict with King and Parliament. The imposition of the Intolerable Acts in 1774 after the Boston Tea Party introduced a new political element that erased both self-government and reciprocity. If civic friendship, on Aristotle's view, operated through the act of ruling and being ruled in turn, then direct British rule in Massachusetts made such a relationship and concern for the good of the colony an impossibility. Not only was self-rule removed, but the colonies could of course never hope to rule Britons in turn. The civic relationship was both transformed and made fundamentally unequal and unfair.
Despite nearly 170 years of a common culture and intimate social ties between the British American colonies and Great Britain, as well as vital economic links that benefited both societies, direct British intervention in Massachusetts both activated a sensitivity to the grounds of civic friendship (i.e., reciprocity and fair play) and an awareness that there could be no such feelings under the current conditions. This was a civic puzzle that could not be solved short of Independence, for a superior layer had been imposed on a balanced local system.
Moreover, British intervention and ultimately military action now forced the question of continental (i.e., national) solidarity, transcending age-old colonial boundaries and sovereignty. Not just individual colonial civic structures were being transformed, but the borders between them were being subjected to a new and unfamiliar stress. Generations of civic friendship within colonies were at one and the same time being made politically impotent by British intervention and mutated into a new national civic solidarity.
This unique and unprecedented historical crisis found its ultimate expression in the Declaration of Independence. Such explains Thomas Jefferson's rhetorical approach of seeking both to unite disparate colonial Americans and permanently sever them from their "Brittish brethren." In dealing with the British, the full flood of Jefferson's rage was reached in his famous rough draft of the Declaration, written in mid-June 1776, in a passionate paragraph almost entirely excised by the Continental Congress.
The Americans, Jefferson wrote in his draft, had "appealed to their native justice & magnanimity, as well as to the ties of our common kindred" to oppose the depredations of the King, but these had been rejected. Thus, both justice and solidarity, critical for the health of the political community, had been violated. This betrayal had "given the last stab to agonizing affection, and manly spirit bids us to renounce for ever these unfeeling brethren. we must endeavor to forget our former love for them … we might have been a free & great people together."[v] The impossibility of civic friendship between these now-separated two peoples could scarcely be more powerfully expressed.
Conversely, the need for a new, national civic solidarity animates the final draft of the Declaration. The document begins with an assertion of continental unity: "When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another…" (emphasis added). The Americans are one community, the Declaration asserts, and the Signers instantiated that by pledging to each other their lives, fortunes, and sacred honor.
Factionalism and partisanship of course were not banished by the lofty sentiments of the Declaration. The dramatic rupture between John Adams and Thomas Jefferson is but the most famous of instances of the real world intruding upon the realm of philosophical thinkers. Yet over the centuries, the spirit of the Declaration worked its way into the body politic in powerful ways. Notably, in this most multiethnic of societies, a sense of shared natural rights that Americans had been willing to sacrifice for, was over painful decades extended to those not originally included, including women, Blacks, and immigrants from around the globe. Each of these groups sought neither separation nor enclaves, but rather to become a full part of the larger body politic and to share in the concern for the good of the country. Of course, theirs was an exercise in civic friendship that was not always repaid, most notably in the continuation of segregation and discrimination against Blacks and American Indians.
But in upholding the ideals of the Declaration of Independence, they sought only to be accepted fully as American, and not as the "hyphenated Americans" so roundly criticized by Teddy Roosevelt in his 1915 address on "Americanism." In that speech, Roosevelt laid out a modern compact of civic friendship, asserting that immigrants "get all their rights as American citizens … and that they live up to their duties as American citizens." The two elements were inseparable: rights and duties. It was a formulation that remains applicable to all in America, Mayflower descendant and Montenegrin arrival alike.
[i] "From John Adams to James Lloyd, 28 January 1815," Founders Online, National Archives, https://founders.archives.gov/documents/Adams/99-02-02-6401.
[iii] Aristotle identifies three types of friendship: those based on pleasure, virtue, and utility. Politics 1280b-1281a. Eudemian Ethics 1242a-1243b; Nicomachean Ethics 1157a, 1159b-1160a, 1162b-1163a,
This morning, by a vote of 4-3, the Virginia Supreme Court declared the ballot initiative supporting a partisan gerrymander of Virginia's congressional districts to violate the Virginia Constitution.
The majority opinion by Justice Kelsey begins:
On March 6, 2026, the General Assembly of Virginia submitted to Virginia voters a proposed constitutional amendment that authorizes partisan gerrymandering of congressional districts in the Commonwealth. We hold that the legislative process employed to advance this proposal violated Article XII, Section 1 of the Constitution of Virginia. This constitutional violation incurably taints the resulting referendum vote and nullifies its legal efficacy.
The opinion concludes:
While the Commonwealth is free by its lights to do the right thing for the right reason, the Rule of Law requires that it be done the right way. Under the Constitution of Virginia, the right way "necessitate[s] compliance with the requirements of a deliberately lengthy, precise, and balanced procedure," Coleman, 219 Va. at 153, governing the lawful adoption of constitutional amendments. "[S]trict compliance with these mandatory provisions is required in order that all proposed constitutional amendments shall receive the deliberate consideration and careful scrutiny that they deserve." Id. at 154.
In this case, the Commonwealth submitted a proposed constitutional amendment to Virginia voters in an unprecedented manner that violated the intervening-election requirement in Article XII, Section 1 of the Constitution of Virginia. This violation irreparably undermines the integrity of the resulting referendum vote and renders it null and void. For this reason, the congressional district maps issued by this Court in 2021 pursuant to Article II, Section 6-A of the Constitution of Virginia remain the governing maps for the upcoming 2026 congressional elections.
Among other things, the majority notes that the state had argued vociferously against judicial review of the ballot initiative before a vote was held, noting that if the initiative failed there would be no need for any judicial review at all. Given that prior argument, the majority would not credit the state's argument that judicial review was inappropriate after the vote was held. That sort of "heads-I-win, tails-you-lose" argument is often disfavored by courts, as judges generally recognize such arguments as a way to circumvent judicial review altogether.
The dissent by Chief Justice Powell begins:
This Court has long recognized that our "'Constitution is certain and fixed.'" Staples v.
Gilmer, 183 Va 338, 350 (1944) (quoting Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (Pa. 1795)). "'[I]t contains the permanent will of the people,'" and, therefore, its meaning can only be altered by the people. Id. (quoting Vanhorne's Lessee, 2 U.S. (2 Dall.) at 308) (emphasis added). Notwithstanding this bedrock principle, today the majority has broadened the meaning of the word "election," as used in the Virginia Constitution, to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election. Under the facts of this case, I believe the circuit court erred and I respectfully disagree with the majority's conclusion that the General Assembly did not strictly comply with Virginia's constitutional requirements. For this reason, I must respectfully dissent.
As this is a state-law-based decision, it has no legal effect on gerrymandering efforts in other parts of the country.
Louisiana has filed its response to Danco Laboratories and GenBioPro's applications for a stay of the U.S. Court of Appeals for the Fifth Circuit order barring the prescription of mifepristone to terminate pregnancies via telemedicine. As one would expect, Louisiana defends its aggressive standing theory and the Fifth Circuit's order.
In case the justices did not have enough to consider before the administrative stay entered by Justice Alito expires on Monday, there are nearly three-dozen amicus briefs filed on behalf of various individuals and organizations who care about the outcome . Few of these briefs are likely to affect the outcome, however, and even fewer add anything of substance to the parties' briefs.
Activist groups, political figures, and an increasing number of academics want to fly the flag for their respective side, and amicus briefs let them do that. The various groups get to tell their members and donors that they took the fight to One First Street, and appellate attorneys get another line on their CVs, whether or not the briefs add anything of value.
Everyone else may have filed a brief, but the Food and Drug Administration did not. The Fifth Circuit's order halts an FDA regulation, but the FDA seems not to care. The FDA is reviewing the 2023 decision to allow mifepristone prescriptions via telemedicine, and has acknowledged some concerns with the 2023 analysis, but the Trump Administration has generally been quite aggressive in responding to lower court orders that block federal agency action. It has argued repeatedly that such orders necessarily cause the government irreparable harm. This puts the Trump Administration in the position of either upsetting pro-life organizations or throwing the FDA under the bus.
As the administrative stay expires Monday at 5pm, it is reasonable to expect something further from the justices before then. What will the Court do? There are several options beyond simply blocking the Fifth Circuit's order or allowing it to go into effect.
If the justices want to better understand the FDA's position, they could request briefing from the FDA, and further delay an ultimate decision. The justices could also decide that this case merits greater examination, particularly on the standing question.
As there is a circuit split between the Fifth and Ninth on the theory of state standing pushed by Louisiana, I would not be surprised if the Court treats the stay requests as applications for certiorari before judgment. Louisiana anticipated this possibility in its filing, and noted it would acquiesce to certiorari before judgment and oral argument before the summer recess if the Court were inclined to grant the stay request. With everything else the justices have on their plate before July, I doubt the Court would put this case on such a short fuse, but a grant of certiorari to examine the state standing theory is a real possibility.
I recently wrote about the latest campus disruption at UCLA. As you might have predicted, the students who interrupted the event faced no consequences. By contrast, UCLA suggested that the FedSoc chapter could face liability if they named the people who protested at the public event. As FIRE pointed out, the school cannot impose liability for sharing truthful information. UCLA quickly backed off.
Yesterday, the Los Angeles Chapter of the Federalist Society hosted a panel discussion about free speech on campus. The panelists were Professor Eugene Volokh (formerly of UCLA), Professor Jon Michaels (UCLA), and Yitzy Frankel (a student at UCLA). Judge Jim Ho moderated. But as Judge Ho often does, he shared his thoughts on the matter.
Judge Ho's introduction was covered in Bloomberg, so I thought it might be useful to present his full remarks in context. I asked Judge Ho, and he graciously allowed me to share his comments.
The recent incident at UCLA Law School should alarm every lawyer, every judge, every citizen who cares about the future—and the future leadership—of our country.
To begin with, this is not just one incident. It's just the latest in a string of incidents on campuses across the country. And it reveals what has been kept hidden for too long from the American people. Too many law schools have stopped teaching students how to be good citizens—let alone good lawyers. Too many institutions of legal education have become incubators of intolerance. And I worry about the impact on the rest of our country.
Let me be clear: I didn't fly halfway across the country because some law school event went poorly. At the end of the day, I really don't care about what happens at UCLA. That doesn't affect me at all.
Here's my concern: If this is what we're teaching the next generation of lawyers and leaders—that this is how you treat people you disagree with—ask yourself: What else are they willing to do to those they disagree with? What other lines are they willing to cross? What kind of country does that look like? And is it the kind of country any of us would like to live in? Because what happens on campus doesn't stay on campus.
Students are learning all the wrong lessons. They're bringing those lessons to workplaces and communities all across America. And it's tearing our country apart.
But even that's not what most infuriates me about recent events at UCLA. What most infuriates me is that my branch of government has no interest in doing anything about it.
Four years ago, a similar incident occurred at Yale Law School. A group of woke law students disrupted an event that, ironically, was intended to promote free speech—simply because one of the speakers was a prominent Evangelical Christian lawyer.
The disruption is troubling. But as I've tried to point out, disruption is not the problem. It's the symptom. The problem is discrimination. Discrimination against conservatives. Against Christians. Against Jews. Against anyone disdained by cultural elites.
Not only did Yale refuse to do anything about the disruptors—they did precisely the opposite: They threatened to punish a conservative student for sending an email announcing a Federalist Society event.
So I announced that I could no longer in good conscience hire law clerks from Yale Law School. I pointed out that many judges would obviously refuse to hire from a racist law school.
So if it's okay to stand up against racism, why not for freedom of speech? Why can a judge oppose discrimination based on race, but not religion?
I also pointed out that many judges are obviously willing to hire only from a small group of so-called elite law schools. So they're already boycotting the overwhelming majority of law schools. And if it's okay for judges to boycott non-elite law schools, then surely it's okay for judges to extend that boycott to include intolerant law schools as well.
Finally, I pointed out that, if enough of us did this, then we'd never have to actually institute the boycott. The intolerance would stop in a heartbeat. Because we all know that law schools are strongly motivated to maximize the number of their law students placed in judicial clerkships.
Those who have written extensively about wokeism and intolerance—folks like Vivek Ramaswamy and Ilya Shapiro and Senator Ted Cruz—they have all come out in strong support of the boycott.
By contrast, when I made my pitch to my colleagues in the judiciary, I didn't just lose—I lost badly. A handful of federal trial judges across the country expressed strong support. But out of the 179 federal circuit judges nationwide, only one other circuit judge agreed to join me—Lisa Branch of the Eleventh Circuit. Now, I've written plenty of 1 against 16 dissents on my court. But this was the first time that I've ever lost 2 to 177.
But you know what? If judges don't want to do this, fine. I've learned a lot about judicial personality in my eight years on the bench. If judges want to say that, as a matter of principle, we should never engage in boycotts, okay then.
Here's my problem. Just last year, when the Heritage Foundation was charged with antisemitism, a number of judges made clear that they would refuse to associate with the Heritage Foundation. And they specifically boycotted an event that would have featured the Heritage Foundation's work. There was even a whole panel of judges to talk about these issues during the most recent Federalist Society convention.
So just to review the bidding: It's okay to boycott Heritage. But you can't boycott woke law schools. Let's just be very honest about what's going on here. Let's be candid about the double standards that plague the judiciary. It's okay to boycott Heritage, because you'll never be punished for attacking conservatives. It's okay to boycott Heritage, because it's okay to virtue signal to cultural elites. It's okay to boycott Heritage, because judges who punch left are excoriated—but judges who punch right are celebrated.
It's these double standards that exemplify my longstanding problem with my branch of government. I never expected to become a judge myself. But before I took the bench, I was involved in the federal judicial selection process for over two decades, from the Justice Department, to the Senate Judiciary Committee, to the Federal Judicial Evaluation Committee in Texas. And based on my experience, I've come to learn one simple lesson about judicial selection: When you pick judges based on elite credentials, you'll get judges who will care only about elite approval. You'll get climbers, not fighters. Lawyers who aren't warriors—who are timid, not tough.
Law students often ask me: Why haven't more judges joined the boycott? Well, you'd be surprised how many judges have told me: Love what you're doing. Please keep doing it. But sorry I can't join you. You'd be surprised how many judges have told me: Well, if you can get other judges to join you, then I'll join you.
Look, I get it. There's safety in numbers. It's scary to be alone, or in the extreme minority. But Deuteronomy 20 tells us that, when you go to war, don't be afraid of an army greater in number than yours. Just worry about being on the right side, and the rest will take care of itself.
We should heed the words of Justice Thomas: North is still north. Right is still right. Even if you stand by yourself. We need judges to follow in the mold of Justice Thomas—judges who are willing to stand alone when necessary—judges who care more about principle than prestige. It's unfortunate what happened at UCLA Law School. And it's unfortunate that the judiciary won't do anything to help.
There is a lot of unpack here.
First, as I noted at the time, I supported Judge Ho's boycott of Yale, and later of Columbia. It is regrettable this strategy did not catch on more.
Second, Judge Ho is correct that other judges support him privately, but will not say so publicly. Judges are, by their very nature, cautious. They follow, but do not lead.
Third, Judge Ho alludes to the boycott of an event promoting the Heritage Guide to the Constitution at the Federalist Society National Lawyer's Convention, which I referenced in my resignation letter and other writings. I think you can distinguish between a judge personally boycotting a problematic think tank and a judge boycotting students who attend a problematic university, but that distinction is thin. Indeed, if the argument is that a boycott is never proper, both of these actions are inappropriate. The truth is that judges, like everyone else, choose who to associate with and who not to associate with. That is what a boycott is. The only difference is that Judge Ho and his colleagues make their views known publicly.
In the end, what can be done about campus disruptions? The answer, it seems, is nothing.
5/8/1884: President Harry S. Truman's birthday. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.
In November, I attended the oral argument in the tariff case. I wrote a lengthy post about how I perceived the case. Ultimately, my bottom-line prediction was wrong. Trump would not get to five votes, let alone four votes. But I did have the occasion to reflect on the advocacy in the case. Here is how I described Neal Katyal's performance:
[S]everal Justices seemed skeptical, and even frustrated by Neal Katyal's presentation. He was polished, but wooden. Far too often, it seemed like he was giving rehearsed answers, which were not entirely responsive to the questions that were asked. Katyal may have also misread the room, and came in far too overconfident after the Solicitor General sat down.
I then explained how Katyal frustrated several justices, including Justice Gorsuch, who ultimately ruled against the government. At one point, Gorsuch said, "Well, you're not answering my question, though, Mr. Katyal." When Gorsuch asked about the Indian Commerce Clause, Katyal said, "I don't know that I have a position on that. It maybe is a little too afield for me to…" I observed: "Who played Justice Gorsuch in Katyal's moots? Did no one bring up the Indian Commerce Clause? General Sauer addressed this point directly during his rebuttal, so the government was ready." At another point, Justice Barrett asked a question about licenses that Katyal completely missed. He said, "Sorry. Could you say that again?" Katyal then had to back off and say he didn't concede something. Barrett chided, "Okay" with a tinge of sarcasm.
I closed my post with a reference to Jason Willick's Washington Post editorial, urging Michael McConnell to argue the case. I wrote:
Prior to the argument, Jason Willick wrote that Michael McConnell should have taken the podium instead of Neal Katyal. He explained that the respondents should have selected the conservative McConnell over the "partisan liberal lawyer." With the benefit of hindsight, I think Willick was correct. Michael McConnell clerked with Chief Justice Roberts the term that Dames & Moore was decided. He served with Justice Gorsuch on the Tenth Circuit. He traveled in the same law professor circles as Justice Barrett. McConnell would have been uniquely situated to bring this argument forward. And it would have been so much more powerful for an actual proponent of the separation of powers to argue this case. Indeed, at one point, Justice Alito ridiculed Katyal for making a non-delegation doctrine argument that he likely would not raise in any other context. Alito said, "I found it interesting to hear you make the nondelegation argument, Mr. Katyal. I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument." An uncomfortable laughter followed. Even Justice Kagan, who was Katyal's former boss, suggested that one of his arguments "cuts against" him.
I don't think Katyal was the right advocate for this job. If the government prevails, I think eyes will turn to him.
It's true that Katyal's side won, and he got 6 votes. But I don't think his advocacy had much to do with it. Any other competent member of the Supreme Court bar could have won that case. Indeed, I thought the Oregon Solicitor General, Benjamin Gutman, who had never argued before the high court, was more effective than Neal Katyal.
Anyway, I hadn't given much thought to the argument until I saw Katyal tweet about his imminent TED Talk:
Five months ago, I argued against the President's $4 trillion tariffs at the Supreme Court.
In 237 years, the Court had never struck down a sitting President's signature initiative. Legal scholars said it was impossible. Some of my own colleagues said it was impossible.
We won. 6-3.
But the real story isn't what happened in that courtroom. It's what happened in the months before. And its the subject of my TED talk, coming out tomorrow.
I had the best legal team in the nation, especially Colleen Roh Sinzdak, the most outstanding legal strategist I know. Huge thanks, too, go to the Liberty Justice Center (and in particular its fearless and hyper-intelligent leader Sara Albrecht), who organized the client small businesses, as well as to the brave small businesses themselves.
I also had four teachers preparing me.
A mindset coach who'd worked with Andre Agassi.
An improv coach who taught me that "Yes, and" works in Supreme Court arguments the same way it works everywhere else.
A meditation coach who taught me stillness.
And Harvey.
Harvey predicted many of the questions the Justices asked — sometimes almost word for word. Brilliant. Tireless. Occasionally insufferable.
Here's the catch: Harvey isn't a person.
Harvey is a bespoke AI I built over the last year with a legal AI company, trained on every question every Justice has asked in oral argument for 25 years, and everything they've ever written.
Tomorrow, TED releases my talk about what really happened — and what I learned standing at that podium.
AI can predict. AI can analyze. What AI cannot do is the one thing that actually won the argument.
Connect. Read the room. Hear not just a Justice's words, but her worry — and answer the worry.
That is the irreducibly human skill.
Find yours. Go deeper. In this age of AI, that's where your edge lives.
The talk goes live Thursday, May 7 at 11am ET: http://go.ted.com/nealkumarkatyal
What's the irreducibly human skill in your work — the thing AI can't touch?
Harvey is not the only thing insufferable about that tweet. Really, the posting looks like it was drafted by AI. Could the Ted Talk be even worse? Yes, it can. I thought of how best to break it down, and settled on simply annotating the transcript. If you want to read on, please do, but I won't blame you if you skip it.
