The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Johnson v. Faeder was decided yesterday by the Tennessee Court of Appeals (Judge Valerie Smith, joined by Chief Judge Michael Swiney and Judge Neal McBrayer). Defendant-Appellant Faeder is a lawyer who has a web site called One Shrewd Dude (presumably referring to himself), is a former college philosophy teacher and the author of the "bookella" Philosophy Without Reference: An Introduction to Contemporary Philosophy, and has "competed in six Magic: The Gathering Pro Tours" (see also here). Plaintiff-Appellee Johnson lives two houses away from Faeder. Here's the court's discussion of what happened:

[O]n July 14, 2021[,] … Appellee's husband (who is not a party to this litigation), saw Appellant in Appellee's backyard without permission and accompanied by his two young children. Appellant was shirtless at the time, and Mr. Johnson asked that Appellant put on a shirt. Appellant then left the Johnsons' yard with his children. There was no direct interaction between Appellant and Appellee during this encounter.

On July 29, 2021, Appellant delivered a letter to Appellee's mailbox. The delivery consisted of a men's shirt accompanied by a typed letter addressed to "Shirtman," seemingly in reference to Mr. Johnson. In the letter, Appellant proposed a solution for any future incidents: if Appellant's children wandered onto the Johnsons' property while Appellant was outside without a shirt, the Johnsons could bring him the enclosed shirt, which he would then wear and later return to their mailbox for repeated use. Appellant signed the letter "Your Eternally Neighborly Neighbor."

Relations between the parties further deteriorated following this incident. The record indicates that on numerous occasions over the next fifteen months, Appellant was seen walking or standing in front of Appellee's home wearing only brightly colored underwear. This behavior occurred repeatedly, including occasions when Appellee was hosting a children's birthday party and an Easter gathering at her home.

Politics

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Ancient Mesopotamians used pictures of basic objects to preserve and describe their culture. The Phoenicians pivoted from pictures to symbols around 1600 B.C., a harbinger of our modern alphabet. Each symbol represented a spoken sound, but the reader read the symbols from right to left.

This method spread to Israel and Greece, where the Phoenician alphabet was refashioned into the Greek alphabet, but the Greeks invented vowels and redirected the reader from left to right.

The Romans then used the Greek alphabet to make the Latin alphabet, and hundreds of languages have sprung from the Latin alphabet, including English.

When the Phoenicians invented the alphabet and written communication, they invented a method to exchange and preserve thought, long after the thinker has stopped thinking. Words live on the page, where they reverberate beyond our physical and temporal reach. A device that teleports ideas through space and time. Yes, it sounds like Star Wars, but I only mean to say that shouting distance was no longer required to make a point. As a result, we can read the Gettysburg Address in 2024, even though President Abraham Lincoln died in April 1865. Lincoln understood this power and described it well:

Writing, the art of communicating thoughts to the mind through the eye, is the great invention of the world[,] enabling us to converse with the dead, the absent, and the unborn, at all distances of time and space.

But it's not all sunshine and rainbows. The distance of time and space between readers and writers produced new challenges, which I call the Absent Reader and the Absent Writer.

An absent reader for the writer.

First, a writer writes alone. Readers are absent when writers craft and recraft their words and sentences. The reader is not in the room during the creative process, peering over the writer's shoulder to ask questions and raise concerns:

What does this mean?

Why are you discussing that point?

I'm losing interest.

OK bruh, I'm lost.

1/13/2014: NLRB v. Noel Canning argued.

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In debates about originalism, historians claim the moral high ground. We are lectured that only those with doctorates, trained in the proper methodology, can place history in the proper context. And the historians insist that they, unlike conservative law professors, are apolitical, and bring no biases to their careful work.

Does anyone actually believe these claims? You shouldn't.

The New York Times reports from the annual meeting of the American Historical Association.

Leadership of the American Historical Association has vetoed two resolutions criticizing Israel's actions in Gaza that were approved by a member vote over the weekend, saying they lay outside the group's mission and would pose risks to the organization and the historical profession.

The first resolution criticized what it characterized as intentional "scholasticide" in Gaza, where most of the educational system, including all 12 universities, has been damaged or destroyed. The second condemned ongoing attacks on academic freedom at American universities, including the silencing of protest against "the U.S.-sponsored genocide perpetrated by Israel in Gaza."

Both resolutions passed with nearly 80 percent support from the almost 500 members who attended the vote, held on Saturday during the group's annual conference in Chicago. But on Sunday the 16 voting members of the executive council voted not to pass them on to the full membership of roughly 14,000 for final consideration.

"As worded the two resolutions fall outside the scope of the American Historical Association's chartered mission," the council said in a statement. "Approving them on behalf of the entire association would present institutional risk and have long-term implications for the discipline and the organization." . . .

The "scholasticide" measure was passed with 282 votes for, 76 against, and two abstentions. The academic freedom resolution passed 245 in favor, 62 against, with one abstention.

Professional historians are not apolitical. They lean overwhelmingly to the left, and are subject to the same sorts of biases as conservatives.

I suppose we should be thankful that the AALS is not venturing down this road. As left-wing as the legal professoriate is, it still seems moderate when compared to the liberal arts. The MLA, of course, passed the Gaza resolution:

The academic freedom resolution was developed in coordination with members of the Modern Language Association, the country's largest scholarly association in the humanities. Over the weekend, it was approved by that group's delegate assembly, by a vote of 61 in favor, 52 against. That resolution will now pass to a vote by the group's roughly 20,000 members, where it must receive a majority that also totals at least 10 percent of membership.

And you wonder why conservatives have taken such aggressive postures to higher education.

The Washington Free Beacon reports that Hans von Spakovsky, a well-known election law expert, has joined Advancing American Freedom. Hans will continue working with John Malcolm and other Heritage expats at Advancing American Freedom.

Former Heritage Foundation senior legal fellow Hans von Spakovsky has joined Advancing American Freedom (AAF), the nonprofit led by former vice president Mike Pence, the Washington Free Beacon has learned. The move comes after Heritage president Kevin Roberts tapped von Spakovsky to help lead the beleaguered think tank's legal center—only for von Spakovsky to resign alongside the center's previous leader.

"My career has been dedicated to the vital work of election integrity, defending the Constitution and the rule of law, advocating for limited government, and protecting our fundamental rights as Americans," von Spakovsky said in a statement announcing his new role. "That includes eliminating discrimination in any form, particularly the scourge of anti-Semitism. There is no place for such pernicious and invidious hatred in our nation."

Von Spakovsky told the Free Beacon that there were two large factors behind his decision to join AAF: the opportunity to help build a new organization promoting conservative principles—particularly on election integrity and immigration issues—and his new employer's vocal stand against anti-Semitism.

"AAF has taken a very strong position—from what I've seen, people I've talked to—fighting against the scourge of anti-Semitism that has risen in this country," he said. "My mother grew up in Nazi Germany, my father was Russian and actually fought the Nazis. I think that is extremely important. I am just shocked and dismayed at the rise of anti-Semitism, particularly on college campuses, and it's very clear to me that AAF wants to help lead the fight against that."

Kudos to Hans for speaking out so forcefully against antisemitism.

Attorney General Meese, 94-years young, celebrates the move:

"I congratulate Advancing American Freedom on adding Hans von Spakovsky to its new Edwin Meese III Institute for the Rule of Law and am confident that his proven abilities will enhance the Institute's mission of upholding the Constitution and the rule of law."

It truly is outstanding how Meese, Malcolm, and his colleagues have effectively airlifted the center from Heritage to Advancing American Freedom. What a remarkable effort.

What kind of year was 2025 for free speech? In this special year-in-review episode of Free Speech Unmuted, my cohost Jane Bambauer and I break down the biggest legal and political fights shaping speech in America right now. From the Supreme Court's unanimous decision upholding the TikTok divestment law to a pending case that could redefine how much protection professional "talk therapy" gets under the First Amendment, we explain what has happened—and why it matters. The conversation also covers the Court's ruling allowing age-verification requirements for online pornography, which dealt with tough questions about protecting kids, adult privacy, and free expression on the internet.

Beyond the courts, we examine Trump-administration actions involving law firms, universities, and the media, including federal funding threats, alleged retaliation against certain viewpoints, and the FCC's response to controversial late-night TV commentary. The episode wraps up with a look at when controversial political speech can get employees fired—and when the Constitution or state law steps in to protect them.

Can the government regulate social media features because they are "addictive"? Jane Bambauer and I talk with Emory Law professor Matthew Lawrence about whether features like infinite scroll, personalized feeds, "near-miss" reward patterns, and dopamine-driven engagement tactics are comparable to gambling or even drug addiction—and whether that means the government can step in. The conversation digs into current lawsuits, whether there's a constitutionally significant difference between content and design, how addiction is defined in law and neuroscience, and what First Amendment limits exist when regulating digital platforms. A smart, fast-moving discussion for anyone curious about the future of free speech, tech regulation, and the psychology behind our screens.

Our past episodes:

Free Speech

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This is my seventh and final blog post addressing the fact that no president from 1881 to 2009 has acquiesced in the 90-year-old Supreme Court decision in Humphrey's Executor. These blog posts are prompted by a question that Justice Barrett asked at oral argument about the history of independent agencies. The answer she got was that support for limits on the president's removal power dated back to the 1880's—but I think that's incorrect.

Justice Barrett also noted that Humphrey's Executor is a 90-year-old precedent; but, if we are to consider such matters in cases involving interbranch relations, it strikes me as important to recognize that no president since 1935 has acquiesced in or accepted as correct the decision in Humphrey's Executor. For instance, when the Supreme Court held legislative vetoes to be unconstitutional in INS v. Chadha (1983), the Court made a point of noting that presidents from Woodrow Wilson to Ronald Reagan had opposed the constitutionality of legislative vetoes. In writing this blog post, I rely on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).

George H. W. Bush served as president from 1989 to 1993. He was just as committed a friend of the unitary executive as Ronald Reagan had been. "More than almost any president besides William Howard Taft, George Herbert Walker Bush staunchly defended the unitariness of the executive branch…. George H. W. Bush was clearly in charge of his administration and was very attentive to details. Thanks in large measure to White House Counsel C. Boyden Gray and his superb legal staff, Bush defended the unitariness of the executive branch with almost academic rigor." Id. at 384.

"Bush embarked upon one of the most aggressive defenses of the president's prerogatives the republic has ever seen. Bush used a plethora of vetoes and signing statements to protect against any invasion of the constitutional authority of the president that he perceived…. Bush was to achieve astonishing success in using the veto, vetoing forty-four bills. [Only one minor Bush veto was overridden]…. As of 25 July 1991, the White House Press Office had recorded thirty-eight threats of a veto of legislation; the vast majority of the legislation did not ever become law." Id. at 385.

Steven Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III. He has written or co-written many law review articles and several books, including The Meese Revolution: The Making of a Constitutional Moment (2024) (with Gary Lawson).

Executive Power

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We have an epidemic. The virus is known to travel on paper and transmit over the keyboard: it jumps from old lawyer to young lawyer, preys on the inexperienced and insecure lawyer, and thrives in the imprecise and indifferent lawyer. It spreads like wildfire in college towns and institutions of higher learning. And it mutates! Oh boy, does it mutate. Turning verbs into nouns. Adverbs flourish. Adjectives and jargon run free.

That epidemic is bad writing—especially legal and persuasive writing. Legal prose is often dull and opaque, redundant and bumpy, labored and disorganized. It sputters and coughs in the opening sentences, leaving an unnavigable and incomprehensible mess for the reader to withstand. It's hard to read, harder to understand and hardest to remember. It prefers abstractions—abstract words and abstract grammar; abstract facts and abstract arguments. And it weighs on the reader's brain.

Why is so much legal and persuasive prose so bad? I think it's because many legal writers never stop to think about their readers. The elixir for this oversight is mindfulness. A persuasive writer anticipates, meets and remembers the preferences and expectations of his readers. He cares about communication and seizes control of his literary fate—guiding the writing process from start to finish. He knows why he writes, what he writes and how he writes. He knows that persuasive prose is not a monologue, but a dialogue between writer and reader. This book introduces the path to persuasion in nine mantras.

Be aware of the audience. A persuasive writer understands the singular importance of the audience and appreciates the inherent challenges that arise when time and distance separate readers from writers, so he channels the readers to anticipate and answer their questions.

For those old enough to remember, the arrest of Venezuelan strongman Nicolás Maduro this month resembles an event that took place 36 years ago to the date: the arrest of Panamanian strongman Manuel Noriega on January 3, 1990. Noriega had been indicted on drug charges in Florida; the U.S. captured him in Panama in a military operation and transferred him to the U.S. for trial.

I first encountered the Noriega case as a new lawyer at OLC, shortly after OLC had signed off on the legality of his seizure and transfer (I didn't work on the opinion itself, which was completed before I arrived). The debate over whether that operation was lawful never really went away—but Noriega's prosecution did go forward. His case looms large again in the controversy over the U.S.'s seizure of Maduro and Maduro's subsequent appearance in federal court in Manhattan.

Some of the legal questions are straightforward. The conduct alleged against Maduro—large-scale narcotics trafficking aimed at U.S. markets—fits comfortably within longstanding principles that allow a state to criminalize foreign conduct intended to have substantial domestic effects. And while sitting heads of state ordinarily enjoy immunity from foreign criminal prosecution, most states, including the U.S., do not recognize Maduro as Venezuela's legitimate leader. Read More

From the decision Friday in LTL LED, LLC v. Google LLC.

The Constitution gives federal courts jurisdiction over lawsuits "between Citizens of different States," in order to diminish the risk that state courts will favor their own citizens. But the Constitution also lets Congress limit this so-called "diversity jurisdiction." Congress has indeed done so, by providing that the jurisdiction extends only to cases in which more than $75,000 is at stake. And Congress has set certain procedural rules, including as to the timing of when a suit filed in state court can be removed to federal court.

Last year, Google was sued in Minnesota state court by a local solar panel installation company that claimed Google's AI Overviews hallucinated false and defamatory statements about the company (see more here). The Complaint claims that none of the sites linked to by the report actually reported that Wolf River had ever faced a Minnesota AG lawsuit, or was otherwise sued for the alleged misconduct. According to the Complaint,

Google cited numerous sources in support of its false assertions; however, none of the referenced materials in fact contained the information Google claimed they did.

The Complaint also alleges specific lost business, to the tune of many hundreds of thousands of dollars, e.g.,

On March 5, 2025, a customer of Wolf River, identified by contract number YKUFU-AH78H-PMNDF-K3C7V, contacted Wolf River and expressed concerns because of the publications on Google alleging Wolf River was being sued for misleading customers about cost savings, using high-pressure tactics, and tricking homeowners into signing binding contracts with hidden fees…. Despite the CEO of Wolf River reassuring this customer that the publications by Google are false, this customer chose to terminate the relationship with Wolf River because of Google….. The total contract price was $150,000.00.

Unlike some past cases of this sort (which I call Large Libel Models cases), the plaintiff appears not to be a public figure, and appears to have evidence of tangible economic losses. That makes its case considerably stronger.

Unsurprisingly, Google wanted to remove the case to federal court: It's conventionally thought that many large corporate defendants prefer to have their cases litigated in federal court, partly to diminish the risk of home-town bias in state courts, and partly because "federal judges are known for being more likely than state court judges to dismiss an action, particularly on procedural grounds." And because of the amount at stake and diversity of citizenship, Google was entitled to such removal.

But only if it was asked for in time, and Friday's decision by Judge Jeffrey Bryan in LTL LED, LLC [Wolf River Electric] v. Google LLC (D. Minn.), said Google had filed the notice of removal too late:

Free Speech Libel Large Libel Models Civil Procedure

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In Tampa Bay Students for a Democratic Society v. Univ. of South Florida, decided Friday by Judge Steven Merryday (M.D. Fla.), the SDS challenged its expulsion from USF, as well as various USF policies:

Policy 6-017.VI.C.2: "Members of student organizations that are suspended or expelled may not … attempt to continue to function at the university under a new name but with similar members and purpose."

Policy 6-028.VI.E.1: "Displays, tables, and exhibits need prior approval using the Reserved Activity Request or Space Impact Process."

Policy 6-028.VII.I.2: "Non-University guests who wish to attend an Activity sponsored by a University Entity may be required to be ac-companied by a USF representative (student, faculty, or staff member) with a valid USF identification card. Non-University guests must show a valid drivers' license or another form of picture ID upon request. Guests may be required to be registered for some Activities."

Policy 6-028.VII.L.3: "A reservation through the Reserved Activity Request process is required" for the use of space by a student organization after 5:00 p.m.

Policy 6-028.VII.A.9: "To provide an environment conducive to preparation of final or cumulative exams, the final two weeks of any academic term, no Activities will be permitted in or near Academic Spaces on campus, without reservations."

The expulsion only applied to the group as a group, and didn't apply to its members, though some members were indeed expelled for their own misconduct. The court upheld the policies (after laying out the various ways in which SDS was alleged to have violated many USF rules):

"[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism (1989). "Outdoor areas of campus are considered traditional public forums for individuals, organizations, and guest speakers….'Outdoor areas of campus' means generally accessible areas of a public institution of higher education in which members of the campus community are commonly allowed, including grassy areas, walkways, or other similar common areas." §§ 1004.097(3)(c), (2)(d), Fla. Stat [part of the Florida Campus Free Expression Act]….

The plaintiffs offer no argument as to why the Guest Policy, which regulates the access of non-students to the USF campus, violates the First Amendment. The claim fails….

The Final-Exam Week Policy states: "To provide an environment conducive to preparation of final or cumulative exams, the final two weeks of any academic term, no Activities will be permitted in or near Academic Spaces on campus, without reservations." Patently content-neutral and expressly and reasonably tied to a significant university interest, the Final-Exam Week Policy allows ample alternative channels of communication both during the final two weeks of each academic term and during the forty-eight weeks the policy does not apply ….

Mischaracterizing the Reservation Policy as a "curfew," the plaintiffs argue that the hours set by the policy are "untenably early for speech and advocacy outdoors on a public university campus" …. Neither a "curfew" nor a "ban," the Reservation Policy, which the plaintiffs concede is a "permit requirement[ ]," requires only advance reservation for the use of university space during evening hours: a permissible time, place, and manner restriction by any standard.

Free Speech Campus Free Speech

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[Photo courtesy of Oleg Volk; in the absence of extraordinary coincidence, the model is not Ms. Guinane.]

From Guinane v. Chief of Police of Manchester-by-the-Sea, decided Friday by Justice Peter Sacks, joined by Justices Gregory Massing and Jennifer Allen:

In October 2022, Barbara Guinane applied to the chief of police of Manchester-by-the-Sea (chief) for a license to carry firearms (LTC) …. The chief found Guinane unsuitable and denied the application. The chief did so based on recent incidents in which Guinane's husband had acted aggressively and violently during disputes with neighbors, resulting in multiple police responses to the Guinanes' home, criminal charges, two G. L. c. 258E harassment prevention orders against the husband, and the suspension of his LTC….

[At a trial court hearing,] he chief testified that he found Guinane unsuitable based on the conduct of her husband. In May 2022, a neighbor had called 911 to report that, in connection with a property line dispute, the husband "came to [the neighbor's] property yelling about trash cans and was carrying a baseball bat and then smashed a light pole in a fit of rage." When police responded, they found the Guinanes sitting on their front porch, where the husband told them, "I know I smashed a light." He explained that he believed someone had broken into his shed and that he had lost his temper. The husband was criminally charged with vandalizing property, a charge that remained pending at the time of the hearing, and the neighbors obtained a G. L. c. 258E harassment prevention order against him, effective until June 2023. The chief suspended the husband's LTC, finding him both unsuitable, based on his "volatile behavior," and to be a prohibited person, based on the G. L. c. 258E order.

Subsequently, the husband and a second neighbor had a "verbal altercation," leading to the husband's being charged with threatening to commit a crime ("to wit kill") and with "assault [with intent] to intimidate based on the victim's race, religion, color and/or disability." Those charges, too, remained pending at the time of the hearing, and the second neighbor also obtained a G. L. c. 258E order against the husband.

When Guinane applied for her own LTC, the chief found her unsuitable. The chief acknowledged that, unlike the typical unsuitability determination focusing on "behaviors or incidents involving the applicant him or herself," here he denied Guinane's application because of his concern that her husband, who was an unsuitable and prohibited person, lived with her and thus "would have access to the weapons." The chief acknowledged on cross-examination that Guinane herself had no criminal record and had not been charged in any of the incidents involving the husband. The chief agreed that, if Guinane were not married to her husband, "she would be a suitable person." The chief nevertheless determined that "it may be a threat to public safety" to issue an LTC to Guinane….

Guns

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1/12/1932: Justice Oliver Wendell Holmes resigns from the Supreme Court.

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I'm delighted to report that Judge David Weinzweig will be guest-blogging this coming week about his new book. From the publisher's description:

Why is legal prose so hard to read?

One reason is obvious: Legal writers rarely think about their audience. When legal writers account for the preferences and expectations of their readers, legal writing can be sublime. Lucid. Easy to navigate and simple to understand. This species of legal writing leaps from the page to grab its readers by the collar, holding their interest and attention to the very last word. It is comfortably understood, employs concrete words and concrete grammar, shows—not tells—with concrete facts and concrete arguments. And this motivates the reader forward.

Zen and the Art of Persuasive Writing tackles abstract questions in fresh and relatable ways, imbuing the dharma of mindfulness and cognitive science into the conversation on persuasive and legal writing. It dissects persuasive writing into 9 mantras:

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A little knowledge is a dangerous thing. This maxim comes to mind when journalists who lack any legal background attempt to engage in complicated empirical studies of judicial decisions.

The latest headline from the New York Times is titled "Trump's 'Superstar' Appellate Judges Have Voted 133 to 12 in His Favor."

But the data suggests that in the 13 appellate courts, there is increasingly such a thing as a Trump judge. The president's appointees voted to allow his policies to take effect 133 times and voted against them only 12 times. . . .

The Times analyzed every judicial ruling on Mr. Trump's second-term agenda, from Jan. 20 to Dec. 31 of last year, or more than 500 orders issued across 900 cases. About half of rulings at the appellate level were in Mr. Trump's favor — better than his performance with the district courts, though worse than his record at the Supreme Court, where the rulings on his agenda have almost all been on a preliminary basis in response to emergency applications.

My immediate reaction concerned not the numerator, but the denominator. How many Trump circuit appointees were actually able rule on Trump cases? For starters, the authors do not define what it means to rule "in Mr. Trump's favor." Does that include a random APA challenge to a regulation passed in a prior administration? Or do they count a mundane Title VII case against a federal agency? The authors do not actually share their data set, which makes scrutinizing it impossible. At least academics share their data, which makes it possible to dissasemble the studies.

Let's assume the data set is limited to litigation against Trump executive actions. The majority of the anti-Trump litigation has been filed in the First Circuit, where until recently, there were zero Trump appointees. Then there is the D.C. Circuit, where Judges Katsas, Rao, and Walker are the only ones. I can think of a smattering of Fourth and Ninth Circuit opinions where Trump appointees wound up on the panels, but that is a small number.

If you read about three-quarters of the way down, you get to what might be called a selection bias in the data set:

Mr. Trump's success on appeal has also been driven by the influence that his appointees have wielded in specific judicial circuits, especially the U.S. Court of Appeals for the D.C. Circuit. The court has jurisdiction over federal matters in the nation's capital, and its three Trump appointees have exercised outsized influence, repeatedly sitting on panels hearing key cases.

Combined, Judges Gregory G. Katsas, Neomi Rao, and Justin R. Walker voted 75 times in favor of the administration — slightly more than half of the pro-Trump votes from Mr. Trump's appointees logged by the Times analysis — and only three times against.

Again, the authors found a total of 133 total votes for Trump, and they attributed 75 to these three judges. Again, I was still perplexed by the denominator. Were these three judges really on that many panels with Trump-related cases?

If you keep reading further, the authors describe their methodology. You learn that the authors count separately a vote for an administrative stay, a stay pending appeal, and the merits:

When Mr. Trump's policies are temporarily blocked by district court judges, appeals courts can issue "administrative stays," temporary rulings that effectively reverse the lower court's orders and let contested policies take effect. Administrative stays are supposed to be temporary but can remain in place for weeks or even months. In many cases, they are replaced by a more lasting stay, known as a "stay pending appeal," that remains in place while the appellate court considers the case.

The Times analysis tracked both kinds of stays, as well as the final rulings that appellate courts made after considering arguments from both sides.

Mr. Trump's nominees sided with him consistently across all three kinds of rulings, voting in his favor 97 percent of the time on administrative stays, 88 percent of the time on stays pending appeal, and 100 percent of the time on final rulings.

So it seems the number of rulings is inflated triply: 75 rulings may break down to 20-something cases. Even on the Supreme Court, a vote to grant interim relief will usually predict the same vote on the merits.

Let's dig a bit deeper. In many of these cases, as I recall, the vote to grant the administrative stay was unanimous. In other cases, the justification to issue a stay pending appeal was made based on Supreme Court precedent. Indeed, Judge Rao dissented in Slaughter, arguing that the majority failed to follow Wilcox and Boyle. The Times also fails to mention that Judges Katsas and Rao disagreed concerning Judge Boasberg's contempt proceeding. Moreover, how many of these conservative votes were vindicated on appeal--especially by Justices Alito and Thomas, who were not Trump appointees. This limited analysis proves very, very little.

At oral argument in Trump v. Slaughter much discussion focused on the propriety of the Supreme Court today, in 2026, overturning a 90-year-old decision like Humphrey's Executor. In fact, as my immediately preceding blog posts show, since 1937 Presidents Franklin Roosevelt, Harry Truman, Dwight Eisenhower, and John Kennedy have all said that Humphrey's Executor is either bad constitutional law, bad policy, or both. Far from being a venerated precedent like Swift v. Tyson, which was nonetheless overruled, Humphrey's Executor has been controversial ever since the opinion was handed down. In making this argument, I am drawing on Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008). Christopher Yoo gets all the credit for this series of blog posts while I will take any blame there is for them.

Richard M. Nixon served as President of the United States from 1969 to 1974. President Nixon was a committed believer in the frequent use of the removal power. "[D]uring his five-year tenure in office, he in fact appointed thirty cabinet heads, breaking the old record held by Ulysses S. Grant…. [T]he median length of tenure of cabinet secretaries fell from forty months to eighteen. Nixon was not afraid to make removals, as the frequent turnover in his cabinet secretaries illustrates. Indeed, he began his second term by asking for the resignations of all his cabinet secretaries so he could decide which ones to retain. He noted that in doing so that once a cabinet official has been in place for a while, the bureaucracy starts to run him instead of the other way around." Calabresi & Yoo at 346.

"Nixon protected the president's removal power when he successfully resisted Congress's attempt to remove his Office of Management and Budget Director Roy Ash and his Deputy OMB director Fred Malek by abolishing their positions and reestablishing them subject to Senate confirmation…. [Congress backed down and settled for] "legislation the next year to require Senate confirmation only of future OMB directors and deputy directors." Id. at 347.

Nixon transformed the Bureau of the Budget, which was renamed the Office of Management and Budget (OMB), so that "instead of just clearing all budgets except for those of the Central Intelligence Agency and the Department of Defense before they were sent to Congress, the OMB would be concerned with policy and operations management. This was another way for the White House to exert more control over the departments. This was a crucial step in reinforcing the unitary executive, because the power of OMB could be centrally harnessed by the president to bring recalcitrant cabinet departments and agencies into line." Id. Nixon began having OMB do a cost benefit analysis only of proposals from the Environmental Protection Agency, an executive branch agency, which Nixon himself created. Eventually, under Ronald Reagan and his successors, such OMB cost-benefit analysis of all agency regulations would greatly enhance presidential power.

Executive Power

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The Volokh Conspiracy

No Shirt, No Shrewd, No Parking

Zen and the Art of Persuasive Writing: Be Aware of the Audience

Today in Supreme Court History: January 13, 2014

Open Thread

Are Historians Really Apolitical?

Hans von Spakovsky, Formerly of the Heritage Foundation, Joins Advancing American Freedom

Free Speech Unmuted: 2025: The Year in Free Speech

Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1989 to 2009

Zen and the Art of Persuasive Writing, Introduction

Remember Noriega?

Google Missed Key Deadline in Suit Alleging Google's AI Libeled Business, Court Holds

Students for a Democratic Society Chapter, Expelled from Univ. of South Florida for Rule Violations, Loses First Amendment Challenge to USF Policies

Wife's Right to Carry a Gun Improperly Denied Because of Her Husband's Behavior, Massachusetts Appeals Court Rules

Today in Supreme Court History: January 12, 1932

Open Thread

Judge David Weinzweig (Ariz. Ct. App.) Guest-Blogging About "Zen and the Art of Persuasive Writing "

The New York Times's Latest Analysis of Trump Judges

Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1969 to 1989

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