I am, slowly but surely, making my way through the end of the October 2025 term. I've already published my take on Wolford and Hemani. I've recently completed my essay on Slaughter and Cook, which should appear in Law & Liberty next week. I've written an piece on Mullin v. Doe and Mullin v. Al Otra Lado, which should appear thereafter. Randy Barnett and I wrote an essay on Landor, which was the sleeper case of the year. SCOTUSBlog is also publishing my series of essays on Court reform. (So far, they have built some consensus; future installments may not.)
So far, at least, I have not yet published anything on Trump v. Barbara. That isn't due to a lack of thoughts. I have a lot. Indeed, Randy and I spent much of July figuring out how to present the case in the Fifth Edition of our casebook, which should be available for adoption in December 2026.
Barbara may be one of the most important decisions the Supreme Court has ever issued. Ultimately, I agree with Justice Thomas that the Chief Justice's ruling is not one for the ages. I am already dreading having to teach the case. A question I often ask is "State the holding of the case in one sentence." Try it. What is Roberts's rule of order? What is the standard of citizenship of a person born on U.S. soil? It's harder than it may seem. Your answer, whatever it is, should discuss "extraterritorial fiction." I assure you, read through the debates in the Congressional Globe, and you will not find a reference to "extraterritorial fiction." This line may be of of the most slippery blue plate specials that the Chief Justice has ever served.
In the Chief's mind, failing to issue a clear rule is the best rule of all. But surely the Chief anticipated how Trump would respond to this decision. Justice Kavanaugh surely understood that the President would not surrender.
The President has signed a new executive order on birthright citizenship. The order offers this account of what Trump v. Barbara held, and what room remains to deny citizenship to the children of certain aliens:
On June 30, 2026, the Supreme Court decided in Trump v. Barbara, 609 U.S. ___, 146 S. Ct. 2438, 2449 (2026), that the Citizenship Clause of the Fourteenth Amendment to the United States Constitution extends the privilege of citizenship to children born to parents in the United States "for whom no extraterritorial fiction applie[s]." This order identifies, non-exhaustively, and prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court.
Did Trump v. Barbara provide a "closed set" of exemptions to the rule in Calvin's Case or was the list "exhaustive"? I don't think the majority settled this issue, so the roster is "non-exhaustive."
The order explains that the child of an alien enemy is not a citizen at birth. I welcome a lawsuit from the ACLU demanding citizenship for the children of members of Foreign Terrorist Organizations.
The order also excludes the child of a parent engaged in birth tourism. I think the argument here is that there is an "extraterritorial fiction" for this group, as the birth is the product of "fraudulent activity."
The order further provides that citizenship is denied to a "person . . . born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute." I am not certain if there are any such jurisdictions where citizenship is conferred by executive order and not statute. But here is a test to the Insular Cases.
What will the Chief do? What will Justice Barrett do?
In Trump v. Barbara, issued in June, the Supreme Court ruled against Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants born in the United States, and those born to non-citizen parents here on temporary visas. Today, Trump issued another executive order seeking to narrow birthright citzenship, one that is also unconstitutional, even though the groups affected are much smaller than those targeted by the earlier order.
Today's order denies birthright citizenship to four categories of children:
Children of "alien enemies," defined as those where at least one of two non-citizen parents is a "designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism)."
Children born to at least one non-citizen parent who is a "foreign government employee" or employed by an "international organization that possess[es] international-organization immunity."
Children where "either parent" has engaged in "birth tourist" transactions of various kinds (deliberately seeking to give birth in the US so the child would get birthright citizenship).
With one exception (children of foreign-government employees who have diplomatic immunity), all of these children are entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment, as (rightly) interpreted by the Supreme Court in Trump v. Barbara. The Citizenship Clause grants citizenship to all children "born or naturalized in the United States, and subject to the jurisdiction thereof." In Barbara, the Supreme Court majority made clear that "subject to the jurisdiction thereof" includes children of all persons who are subject to and require to obey US law:
In 1868, as today, "jurisdiction" (in the context of a sovereign) refers to the "[p]ower of governing or legislating." N. Webster, An American Dictionary of the English Language 732 (C. Goodrich & N. Porter eds. 1865)…. To be "subject to" the jurisdiction of the United States, then, is to "liv[e] under" its "dominion," J. Worcester, Dictionary of the English Language 1435 (1860), a meaning reinforced by the Clause's territorial focus on those born "in" the United States. The Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory….
Almost all the groups covered by today's order are "subject to the jurisdiction" of the US in the sense that they are within the "dominion" of the US and thus legally required to obey US law. For example, if they commit a crime on US territory, they can be prosecuted, and if they commit a civil wrong, they can be sued in US courts.
That's obviously true of those engaged in "birth tourism." Indeed, the fact that Barbara covers birth tourists is reinforced by Justice Samuel Alito's dissent complaining about this fact, at length. In a previous post, I have explained why the birth tourism problem is overblown and - indeed - not really a problem at all. But whatever we might think of this as a matter of morality or policy, it is undeniable that children of birth tourists are covered by the majority's reasoning.
Much the same is true of children of most employees of foreign governments and international organization. With one notable exception, these people, too, are subject to US law, can be prosecuted for crimes, and so on. The exception is children of parents who have diplomatic immunity, such as ambassadors and other diplomats. Children of such people are already denied birthright citizenship, and have been since the inception of the Citizenship Clause in 1868.
The same reasoning applies to children born in US overseas territories where Congress has not granted citizenship by statute (again, at this point, that seems to include only those born in American Samoa; but I welcome correction from experts if I have this wrong). People living in these territories are undeniably subject to US law, and indeed Congress has plenary power to legislate with respect to them. I don't know what Trump has against the people of American Samoa. But children born there are obviously entitled to birthright citizenship under the logic of Trump v. Barbara.
In Fitisemanu v. United States (2021), the US Court of Appeals for the Tenth Circuit ruled that people born in American Samoa are not entitled to birthright citizenship under the Constitution. But this decision was before Barbara and is at odds with its reasoning.
Finally, the same is true of children of "alien enemies," defined in the order as members of various designated "terrorist" entities. If they enter the United States, they are subject to US law. That's why they can be prosecuted for any crimes they commit on US soil - including acts of terrorism!
Members of these groups may be bad people. Some have committed horrendous crimes. But that is no reason to visit the sins of the parents upon the children. If a murderer or a rapist has a child born on US soil, the child is entitled to birthright citizenship, notwithstanding the reprehensible behavior of the parents. The same logic applies here.
It is also worth noting that the "foreign terrorist organization" (FTO) designation has been slapped onto various groups that are not actually terrorists in the ordinary meaning of the word, most notably groups engaged in smuggling illegal drugs.
Trump may be trying to use the "alien enemy" designation here to analogize these children to children of members of an invading army, born at a time and place where the invaders have seized control of US territory, thereby preventing the exercise of US "jurisdiction." Trump v. Barbara reaffirms the longstanding view that such children are excluded from birthright citizenship, because born in an area where US jurisdiction does not (at the time) meaningfully apply.
But FTOs have not, in fact, "invaded" or occupied any part of the United States. Thus, US jurisdiction still applies. Therefore, children of members these organizations are not analogous to children born to members of an occupying foreign army. No part of the United States has actually been invaded and occupied since the Japanese seized various US territories in the Pacific during World War II.
In my article, "Immigration is Not Invasion" (currently under submission to law journals), I explain in much more detail why the activities of drug dealers do not qualify as an "invasion," why an FTO designation cannot change that reality, and why courts should not defer to the president's claims that an "invasion" has occurred.
I expect today's order will be challenged in court, and I hope and at least tentatively expect, courts will rule against it. With respect to some parts of it that apply only to relatively narrow categories of people, it may take some time to find plaintiffs who have standing (though it's possible state governments can get standing to file a case, as happened in lower-court cases in the earlier birthright citizenship litigation).
More can be said, and I will in fact likely have more to say about this order in the future. For now, it's enough to emphasize that large parts of it are blatantly unconstitutional under Trump v. Barbara.
UPDATE: Harvard law Prof. Gerald Neuman (a leading expert on immigration and citizenship law) tells me that Samoa is indeed the only permanently inhabited US territory where Congress has not granted citizenship by statute. But he points out that there are overseas possessions without a "permanent population, " such as Wake Island and Midway that are also outside the statutory rule, and some of them have naval bases. Thus, I suppose it's possible a non-citizen could give birth at one of these locations, and the child would come within the scope of this part of Trump's executive order.
From Leviss v. Madix, decided yesterday by California Court of Appeal Justice Victor Viramontes, joined by Justice Matthew Scherb:
This action arises out of the discovery of a private sexual affair, which garnered widespread media attention when news of the affair became public. Plaintiff and respondent Rachel Leviss had an affair with Tom Sandoval, the then-boyfriend of defendant and appellant Ariana Madix. At the time, Leviss, Madix, and Sandoval were all cast members on the reality television show, Vanderpump Rules.
Madix learned of the affair when she found sexually explicit videos of Leviss on Sandoval's cell phone, which Madix then recorded and sent to Leviss. After the affair became public, Leviss filed suit against Madix for Madix's alleged conduct in accessing, copying, and disseminating the videos.
Madix moved to strike the complaint under the California anti-SLAPP statute, which allows cases to be promptly dismissed when the cases are brought based on speech "in connection with a public issue," and are legally unfounded. If a case is thus dismissed, the prevailing defendant can recover her attorney fees from the losing plaintiff.
The majority rejected the motion, concluding that the defendant's alleged conduct wasn't speech on a public issue:
This week I recorded an episode of the National Constitution Center's "We the People" podcast on "What the 2025-2026 Supreme Court Term Revealed About the Roberts Court." I was joined by Masha Hansford of Davis Polk & Wardwell, and the conversation was moderated by the NCC's Julie Silverbrook. I enjoyed the discussion. I hope VC readers find it worthwhile.
Suncor is obviously an important environmental case, but its significance is far broader. If the claims are allowed to proceed--and if the plaintiffs are able to overcome the other hurdles to making their case (a significant if)--quite a bit of money could be at stake. In addition, if the justices reach the merits, the case could dramatically alter the law of federal preemption.
Given the significance of the case, it should be no surprise that waves of amici filed briefs. By my count, there are forty top-side briefs supporting the fossil-fuel companies' preemption claims, including a brief by the Solicitor General. There are also twenty-eight bottom-side briefs arguing against preemption (including mine).
Most discussion of the case--and, indeed, many of the amicus briefs--focus on the policy context. Accordingly, folks who want urgent action to address climate change tend to support the respondents, and those who are skeptical of such policies (or who are concerned about energy prices), support the petitioners. This is understandable, but threatens to obscure the underlying legal issues, as does conspiratorial talk about what shadowy interests are supporting one side or the other.
As I try to show in my brief, there is no statute or precedent that supports wholly preempting these cases. This does not mean the claims should succeed, nor does it mean there are no constitutional or other grounds to force a narrowing of the claims. But those other grounds are not encompassed by the question presented and are not being advanced by the petitioners. What is before the Court is whether federal law or the constitution wholly precludes bringing claims under state-law for interstate harms of the sort alleged here. It is a narrow question. It is also one that I think is relatively easy and straightforward. We will see if a majority of the Court agrees.
From O.A. v. Devita, decided June 25 by L.A. Superior Court Judge Dean Kitchens, but just recently posted to Westlaw:
The following summary is derived from the allegations in Plaintiff's complaint. Plaintiff is a high school boy with a disability who had a long-standing friendship with Defendant's son, M.S., another boy with a disability. Plaintiff is diagnosed with rare and serious genetic conditions causing neurocognitive delays. He also has a language disorder, anxiety, and specific learning disabilities…. Plaintiff has known M.S. for seven years and have been in many of the same special education classes. They also were a part of the same soccer league.
On October 10, 2022, Plaintiff went to M.S.'s home for a playdate allegedly supervised by Defendant and M.S.'s stepfather …. On November 4, 2022, the boys had another playdate allegedly supervised by Defendant. On May 12, 2023, M.S. reported to his teacher that Plaintiff had pressured him to do "sexual things." Plaintiff was suspended after the report pending an investigation.
During the initial investigation, Defendant allegedly posted several negative statements about Plaintiff on her Twitter account which were recognized by other members of the community. Defendant also allegedly called the coach of the boys' soccer league and stated that Plaintiff had sexually assaulted M.S. After calling the coach, Plaintiff alleges that Defendant approached them at a softball game and stated that Plaintiff had pulled a knife on M.S. and been physically and verbally abusive since grade school. Plaintiff also alleges that Defendant used the soccer league's member list to call other parents and warn them about him.
Plaintiff came to Maine from Angola in 2016, following persecution based on his work as a Christian pastor. He took a position as a Production Group Leader at Defendant's facilities in Westbrook and Scarborough, Maine, in November 2019. In April 2022, Defendant terminated his employment. Plaintiff alleges that Defendant discriminated against him on the basis of his race in the course of his employment and termination. He also alleges that Defendant retaliated against him after he engaged in protected conduct by making a scheduling decision that accommodated the needs of his Muslim subordinates during Ramadan.
The matter is currently before the Court because Plaintiff electronically signed Defendant's Employee Agreement as a precondition to his employment, and the Agreement contains a forum-selection clause stating that only the federal and state courts of Illinois will have jurisdiction to hear Plaintiff's claims….
Plaintiff argues that transfer would be unfair, unjust, and against public policies that favor the free exercise of religion and nondiscrimination. As alleged, Plaintiff is "the sole pastor at his church" and "leads three services per week." Because of his religious calling and his duties, he maintains, "[t]raveling to Illinois for a deposition or trial would make it far more difficult for him to fulfill his pastoral duties than if the deposition or trial occurred in Maine."
I am not persuaded that Plaintiff's religious practices and duties as a pastor justify giving him a special dispensation to avoid application of the Forum-Selection Clause of the Employee Agreement that he acknowledges signing as a precondition to his promotion to a supervisory position. And as for the burden itself, assuming that a special dispensation might be appropriate based on individual needs pertaining to the inconvenience of a particular forum, the Defendant has indicated that Plaintiff's deposition will take place in Maine.
Objective science aims to uncover truths about environmental conditions, including those related to emission trends, biodiversity loss, climate change, and their economic costs. When and why do scientists use subjective language to describe these conditions with bias, emotion, or advocacy? To shed light, we study determinants and trends in subjective language within the abstracts, introductions, and conclusions of over 170,000 peer-reviewed articles published during 1990-2023 in top economics and science journals. Using machine learning to label and score text by subjectivity, we find that subjective language is more prevalent in articles focused on environmental topics relative to non-environmental topics: by 12% in economics and by 42% in science. After accounting for factors such as article age, author experience, number of authors, and journal quality, higher subjectivity scores associate positively with future academic citations in both science and economics, especially if the article is focused on an environmental topic. These findings, which imply subjective language has been rewarded in the academy, are consistent with informal theory suggesting subjective language will be used more frequently by scientists when expected rewards are high and risks are low.
The obvious question is whether this is just a finding about the use of language, or whether it indicates something about the underlying work.
Rodríguez-Cotto v. González-Colón, decided Tuesday by First Circuit Judges Gustavo Gelpí and Seth Aframe and Seventh Circuit Judge David Hamilton, struck down a Puerto Rico law (Article 5.14(a)) that makes it a crime "to purposefully, knowingly, or recklessly," "during a governor-declared state emergency or disaster,"
[g]ive[ ] a warning or false alarm, knowing that the information is false, in relation to the imminent occurrence of a catastrophe in Puerto Rico, or disseminate[ ], publish[ ], transmit[ ], transfer[ ] or circulate[ ] through any means of communication, including the media, social networks, or any other means of dissemination, publication or distribution of information, a notice or a false alarm, knowing that the information is false, when as a result of its conduct it puts the life, health, bodily integrity or safety of one or more persons at imminent risk, or endangers public or private property ….
The court concluded that the law was content-based, and didn't fit within existing First Amendment exceptions (such as the defamation exception). It also concluded that the law wouldn't fit within any special latitude provided by the extent Justice Breyer's two-Justice concurrence in U.S. v. Alvarez (2012), which provided the necessary votes to support the conclusion in that case:
Article 5.14(a) is not the kind of regulation governing "false statements about easily verifiable facts" to which Justice Breyer would apply less rigorous scrutiny…. In times of disaster and emergency covered by the statute, there are many kinds of false statements regulated by Article 5.14(a) that would not be easily or quickly verifiable. Consider, for example, statements about the efficacy of masks during the COVID-19 pandemic or the damage likely to arise from a storm that is presently offshore. These are assertions for which there is not easy verification but that would be covered by Article 5.14(a). Moreover, given that the law is about restricting speech related to a governor's action in declaring a state of emergency or disaster, Article 5.14(a) may operate in a "political context[ ]," which brings it outside the kinds of falsity laws that Justice Breyer views as permissible under his proposed lesser form of scrutiny.
Because of this, the law was unconstitutional unless it "furthers a compelling interest and is narrowly tailored to achieve that interest," which includes as an element the requirement that the law be the "least restrictive means" of furthering that interest. And, the court held, this test ("strict scrutiny") wasn't satisfied here:
From today's decision in U.S. v. Romain by Eleventh Circuit Chief Judge William Pryor, joined by Judges Jill Pryor and Andrew Brasher:
For years, members of the African People's Socialist Party followed the direction of Alexander Ionov of the Russian Federation-backed "Anti-Globalization Movement." Ionov funded trips for Party leadership to Moscow, sponsored multiple Party events, told the Party to publish pro-Russian statements, and appeared on Party media…. [A] jury found {three Party members and one former member} … guilty of conspiracy {to act as foreign agents without notifying the attorney general}….
The court held that the prosecution didn't violate the First Amendment:
{"To violate [section] 951, … a person must act," "the action must be taken at the direction of or under the control of a foreign government" or foreign official, and "the person must fail to notify the Attorney General before taking such action."}
The indictment necessarily implicated speech. The indictment alleged that the defendants acted and conspired to act at Ionov's direction through several expressive and speech acts, including "author[ing] and publish[ing] articles," "drafting reports," organizing the encampment tour, "hosting virtual conferences" on political and social issues, and "mak[ing] public statements in support of the Russian Federation." So we must next determine whether the charged offenses are content neutral so that we can decide what level of judicial scrutiny applies….
Section 951 is content neutral because it applies equally to all acts taken under the direction or control of a foreign government without regard to the "content of the message" an agent spreads. Section 951 regulates conduct and speech regardless of which government directs it or what a foreign government directs.
At the end of the Supreme Court's recent Term, the Court handed down a Fourth Amendment ruling in Chatrie v. United States about what is a Fourth Amendment "search." Although the case has received little attention so far, it is a blockbuster. Chatrie presents itself as an application of precedent, but a close read shows that it repeatedly recasts old cases and adopts new principles for the Fourth Amendment. Chatrie is now the most important Fourth Amendment case on new technology, and it throws into question a wide range of existing surveillance practices.
This Article explains how Chatrie adopts a new course for the Fourth Amendment, and it explains three different readings of the case that lower courts will have to consider. The case can be read as a decision on special rules for location privacy, raising complex questions about what counts as a location record. It can alternatively be read as a decision on cell phone privacy, prompting difficult questions about how far it extends and how cell phone records are different from other records. And it can be read as a universal ruling on privacy in corporate-held records, which would require courts to confront challenging questions of what makes information private and what the ultimate goal of Fourth Amendment protection should be. We cannot know now which reading courts will adopt, but we can already see the three choices and the questions they each raise.
Comments very welcome!
The new article is just an early draft, written rather quickly to try to make the summer/fall law review submission season, so some of the footnotes are incomplete. (No need to comment on those, or typos and the like.) Also, I wrote this draft without reading other scholarly reactions that have come out in the five weeks since Chatrie was decided, as I wanted my first reaction to be my own, so I'll be adding more on that score soon. I'll plan to post an updated version when I do.
An excerpt from a detailed analysis at FoxNews.com from John Malcolm, a former federal prosecutor and current VP of the Meese Institute for the Rule of Law at Advancing American Freedom:
Several factors suggest Fauci's invocation [of the Fifth Amendment privilege] was improper. Two are critical.
The first is Fauci's pardon…. The second is time: Fauci retired in 2022, making it unlikely that any state crime he might have committed would fall within the applicable statute of limitations, assuming any state could credibly claim that he committed a crime or that venue was proper in that state. In Hoffman v. United States (1951), the Supreme Court said the privilege against self-incrimination protects against real dangers, not remote or speculative possibilities.
Two other things are clear. First, a witness can refuse to answer questions that might implicate him in a crime, not to avoid embarrassment…. Second, a witness cannot invoke the Fifth Amendment because he thinks he will be charged with perjury even if he provides truthful testimony.
On the other hand, there are factors in Fauci's favor. First, President Trump and several Republican congressmen are arguing that Biden's last-minute pardons, which would include Fauci's, are null and void because, they claim, Biden's staff used his autopen to sign those pardons without Biden's knowledge or approval. If Fauci's pardon is invalidated, he could be prosecuted by the Justice Department for federal crimes he might have committed during the period covered by the Biden pardon.
Second, several state attorneys general have now said they are initiating investigations to see whether Fauci committed any state crimes related to his government service. Perhaps they envision a perjury charge for deposition testimony Fauci provided in Covid-related litigation. That effort might end up going nowhere, but Fauci is certainly entitled to take them at their word that he still faces legal jeopardy. These statements alone make it far more likely that a judge would ultimately determine that Fauci's invocation of the Fifth was proper….
Rescinding the egregious Slush Fund Order should not obscure the fact that Blanche was a central participant in, and possibly the architect of, a scheme to defraud the court and the American taxpayer. The one job he is surely not qualified for is the one he now seeks.
Todd Blanche should not be the Attorney General of the United States, though it appears he is about to assume that office thanks to 50 Republican Senators* who are, it seems, going to confirm him for that position.
*As far as I am aware, Susan Collins is the only Republican Senator who has declared that she will vote against Blanche's nomination.
Senators Cronyn and Tillis withdrew their opposition when Blanche issued an order formally rescinding his earlier order setting up an "Anti-Weaponization Fund" as part of the "Settlement Agreement" reached between the IRS and our President, and limiting the "immunity" from tax liability granted to Trump and his children and associates by declaring that it only "applies retroactiviely."
The idea that this somehow is sufficient to warrant an appointment to be the chief federal law enforcement officer truly boggles the mind. The Settlement Agreement and the Anti-Weaponization Fund weren't just bad ideas; they were an attempt to perpetrate a fraud on the court and the American taxpayers, "ignor[ing] ethical norms, court rules, and legal authority to manipulate the judicial process [in order to] gild their efforts to gain unprecedented access to the public fisc with the patina of legitimacy."
Those are not my words; they are the words of Judge Kathleen Williams of SD Florida, in her July 13th Order imposing sanctions on the parties (our President and the I.R.S.) and the attorneys involved in the case (including Acting AG Blanche and Associate AG Stanley Woodward, as well as Daniel Epstein, signatory to the bogus "Settlement Agreement" as Counsel for the Plaintiffs).
More excerpts from Judge Williams' opinion are included below. Though her opinion is long (56 pages) and detailed, in the end she doesn't really uncover anything that wasn't already obvious to anyone who followed the whole "Settlement" shitshow at all closely: Read More
Harmeet Dhillon, the assistant attorney general for civil rights, urged pro-Israel college students to distinguish between protected speech and actionable discriminatory conduct — "people literally interfering with your ability to get an education" — when facing antisemitism on campus.
"[With] a lot of young people these days, there's kind of a snowflake culture with 'I feel unsafe.' I feel unsafe everyday when I go to work and get a mean email from a colleague. Life is full of challenges," Dhillon said on Tuesday at the conclusion of the Israel on Campus Coalition's National Leadership Summit in Washington.
"Someone wearing a keffiyeh or shouting 'from the river to the sea,' it's protected by the First Amendment," Dhillon said. "Holding a red triangle over a student's head in a mob setting and saying 'Jews not welcome' is much closer to not protected speech."
"You have to sort out people being mean or rude to you versus people literally interfering with your ability to get an education," she said.
It so happens I've written twoarticles on exactly that theme, i.e., distinguishing between protected speech and unprotected conduct.
Unfortunately, the Jewish Insider article does not give much more detail about Dhillon's speech; I don't know if that's because the speech did not go into further detail, or because of the limitations of a short article.
That said, while I agree with Dhillon's general point and understand why she made it to this specific audience, there is a related issue percolating through the courts: can otherwise protected speech be used as contextual evidence to explain why unprotected conduct contributed to an unlawful hostile environment for Jewish students.
But the amicus brief focuses on the narrower issue of whether constitutionally protected speech endorsing violence can be used as contextual evidence explaining why unprotected conduct contributed to a hostile environment. Given that the court mistakenly ruled that unprotected conduct was protected speech, it neglected to meaningfully address this issue, but it's crucial to hostile environment cases:
An act that appears innocent in isolation may take on a different meaning when viewed in context. Posting a completed game of hangman in a dormitory common area may seem innocuous. But if students had publicly declared the week before that lynching was a good way to keep Black people "in their place," the same image could reasonably be understood as threatening and racially targeted. The surrounding expression thus bears directly on how a reasonable person would understand the act.
As always, a cert. grant is a longshot, but mine is one of several amicus briefs filed in the MIT case.
If followed by other courts, the opinion would not only make it nearly impossible for Jewish students to win hostile environment cases, could also spell the end of hostile environment litigation more generally.
In addition to the issue raised above, the MIT court held that holding a defendant liable for deliberate indifference to a hostile environment requires evidence that the actors who created the hostile environment acted with discriminatory animus. So, first, the court held that proof of discriminatory animus is required, but also held that contextual evidence that would show that discriminatory animus is barred.
And, second, the notion that discriminatory animus is required for hostile environment claims to begin with seems clearly wrong. On the most basic level, it's not the students who created the hostile environment who are being held liable in a hostile environment case, it's the university that exhibited deliberate indifference to the hostile environment.
Imagine the university implemented an AI communications system, which started sending out violent threats to women students. The university became aware of these threats, and the impact it was having on women students who were unable to concentrate on their studies after receiving vile, threatening messages to their phones and emails. The university chooses to do nothing.
AI, not being a sentiment being, can't have an "intent." Does that mean that a subsequent hostile environment case should fail, because there was no discriminatory intent or animus in the underlying behavior? That seems absurd.
My second essay for SCOTUSBlog calls on the Justices to hold regular press conferences. Here is a snippet:
My proposal for holding press conferences is unconventional, but I think it would be a net positive. At regular intervals, different members of the Supreme Court would hold a televised press conference before the Supreme Court press corps, as well as members of alternative media outlets, such as podcasters.
Certain topics would of course be off limits. The justices could not opine on any pending cases. They also could not offer any opinions that could trigger a recusal on some matter. But there are a range of topics the justices could discuss. The justices should be pressed on leaks. Indeed, Kagan and Barrett were expressly asked about the Dobbs leak by members of Congress. I suspect if more information is given publicly, there would be fewer leaks. Moreover, I have been critical of Chief Justice John Roberts for selectively speaking out on some issues (such as judicial impeachment), but saying nothing about a series of critical leaks that predated Dobbs. If there are regular press conferences, these statements would become more common, rebutting the charge of selective outrage.
Indeed, I think the justices are ready for primetime. There has been a longstanding annual practice in which two justices would testify before the House Judiciary Committee. They will primarily discuss the court's budget but also answer some questions about how the court operates. This practice took a hiatus during the pandemic, but resumed with the recent showing from Kagan and Barrett. In 2011, Justices Scalia and Stephen Breyer gave a remarkable joint testimony before the Senate Judiciary Committee on the Constitution. We need to hear more from the court, and not just before the appropriations committees.
I wrote this piece before Justices Kagan and Barrett testified. Their performance, in my view, makes the case for press conferences far stronger.
From Third Circuit Judge Emil Bove's dissent last week from the one-line denial of mandamus in In re Mylan, Inc. (the majority consisted of Judge Brooks Smith, joined by Judge Patty Shwartz):
The Attorney who survived Defendants' disqualification motion is representing private parties in the very same litigation he led on behalf of Connecticut for more than a decade. This direct monetization of prior government service is beyond the pale. It is also a violation of Rule 1.11(c) of Pennsylvania's Rules of Professional Conduct. The Rule violation undermines the integrity of the proceedings, including an upcoming complex bellwether trial that will have a ripple effect in other multi-district litigation. Ripple effects in the MDL [Multi-District Litigation] multiply the taint risk that the District Court has authorized.
So I would grant mandamus relief. The decisions of the Attorney, the Firm, and Plaintiffs require disqualification….
From a commercial standpoint, there is no mystery about the Firm's hiring of the Attorney and Plaintiffs' desire to pay for the Attorney's services. Plaintiffs are seeking billions in damages relating to pharmaceutical price fixing.
Beginning around 2016, the Attorney led an investigation on behalf of Connecticut's Attorney General that overlapped with Plaintiffs' claims almost 100%. During the Attorney's public service, he joined forces with 53 other States and Territories. He gleaned strategic and investigative information during that process. While working for Connecticut, the Attorney spoke privately and confidentially with those regulators, targets of the investigation (including certain Defendants) and their counsel, and witnesses and their counsel. The Attorney's government work also involved coordination with the DOJ and FTC, which conducted parallel federal investigations. There have already been federal deferred prosecution agreements and coordinated state-level civil settlements. Those dispositions all but confirm that sensitive information circulated between the government actors—including the Attorney—for quite some time.
