The Volokh Conspiracy

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

I recently read the complaint and district court opinion in Yakoby v. Trustees of University of Pennsylvania. The plaintiffs brought several claims against Penn, including that Penn tolerated a hostile environment for Jewish students in violation of Title VI of the 1964 Civil Rights Act. The case is currently on appeal to the Third Circuit.

In June, district court judge Mitchell S. Goldberg dismissed the Title VI complaint with the remarkable assertion that "At worst, Plaintiffs accuse Penn of tolerating and permitting the expression of viewpoints which differ from their own."

I say remarkable, because the plaintiffs did in fact make a series allegations that went well beyond (and in most cases had nothing to do with) Penn "tolerating and permission the expression of viewpoints" the plaintiffs disagreed with, including:

(1) Penn received antisemitic emails threatening violence against Penn Hillel and failed to warn students about the threats.
(2) Penn allowed faculty to punish students for refusing to attend anti-Israel ideological events, and to harangue students in class in an abusive manner if they disagreed with the professors' extreme anti-Israel views.
(3) Penn Chabad house was defaced with antisemitic graffiti, with no public response from the university.
(4) A mob that had previously vandalized an Israeli-owned restaurant marched across campus chanting violent "intifada" slogans and defaced campus buildings with no resistance from the Penn administration, which failed to warn Jewish students of the mob or call in law enforcement despite its illegal acts.
(5) Penn threatened Jewish students who complained about discrimination or a hostile environment with retaliation if they pursued their complaints.
(6) Penn enforced its disciplinary rules in a discriminatory manner, for example punishing Professor Amy Wax for allegedly racist statements, but claimed that academic freedom preventing the university from punishing professors who made antisemitic statements. (FWIW, I think this is quite a strong allegation for a discrimination claim based on differential treatment, without needing a hostile environment twist).

The court could have taken these allegations at face value, as it's required to do at the motion to dismiss stage, and then decided whether the allegations, if proven, would in context show a severe and pervasive hostile environment as required under Title VI. Instead, for reasons known only to Judge Goldberg, the court simply ignored all of these allegations and pretended that the plaintiffs merely objected to being exposed to viewpoints they didn't like.

The ruling deserves a quick reversal. I was going to suggest assignment to a different judge on remand, but it turns out that Goldberg retired in September.

12/7/1941: Pearl Harbor is attacked.

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From The Doc App, Inc. v. Leafwell, Inc., decided Nov. 26 by Judge Sheri Polster Chappell (M.D. Fla.):

The Court finds that Mr. Castro violated Rule 11(b) in filing the Motion for TRO and imposes sanctions. His motion contained fabricated citations, citations that do not contain quoted language, and citations that do not relate to the purported proposition. While Mr. Castro purports to "own" his mistakes and uses words like "respectfully," his defiant tone and condescending communications with and about his opposing counsel, Jody A. Stafford, undermine any supposed respectful sentiment. Rather than take responsibility for the legal inaccuracies permeating his Motion for TRO, Mr. Castro's response to the Order to Show Cause is as colossal a collection of excuses and projection as the Court has seen in 25 years on the bench.

Here are a few examples. He claims that Henson v. Allison Transmission, Inc. exists. The Court checked his original citation in the Motion for TRO. The Henson citation in the original motion—No. 6:16-cv-1223-Orl-41DCI, 2017 WL 59085 (M.D. Fla. Jan. 5, 2017)—does not exist. Sidestepping the issue, Mr. Castro explains that he intended to cite Henson v. Allison Transmission, No. 07-80382-CIV, 2008 WL 239153 (S.D. Fla. Jan. 28, 2008). That case does exist. But it does not matter what counsel intended to cite. It is neither the Court's nor opposing counsel's job to identify his fake citations and intuit what he meant.

Anyway, the Court read the version of Henson that Mr. Castro claims

stands for the proposition that a party may pursue injunctive relief when continued harm to its business and customer base is likely without court intervention. It discusses the court's authority to act where equity demands it, even in early stages of litigation. The citation error was clerical—not substantive. A copy of this case is incorporated hereto as Exhibit A.

Defendant argues that this version "does not concern injunctive relief whatsoever." Yet again, Defendant is correct. Mr. Castro's inaccurate characterization of Henson is beyond perplexing. The Henson he intended to cite does not stand for the proposition in his original explanatory parenthetical: "conduct violating established regulations is unfair under FDUTPA." Rather, Henson concerns a plaintiff's request to review his lemon law case and involves breach of warranty-based claims, the Magnuson-Moss Warranty Act, and the Uniform Commercial Code. See Henson, 2008 WL 239153, at *2. The word "injunction" does not appear once. Nor do the terms "unfair," "deceptive," "FDUTPA," or "regulation." Ultimately, Mr. Castro misrepresents Henson to the Court not once, but twice.

AI in Court

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12/6/1865: The 13th Amendment is ratified.

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Columbia law Prof. Philip Hamburger - one of the nation's leading constitutional law and administrative law scholars - saw my post urging the Supreme Court to consider the case of Canna Provisions, Inc. v. Bondi and use it to overrule Gonzales v. Raich (2005). He asked if I could post his own piece outlining additional reasons why the Court should take this case. I am happy to oblige! The material that follows is by Philip Hamburger, not me (Ilya Somin):

The Supreme Court will soon have an opportunity to reconsider its Gonzales v. Raich rational-basis test. This important chance to recalibrate, as Ilya Somin recently noted, comes in the Canna Provisions v. Bondi cert. petition. The Court in Raich held that judges "need not determine whether [the regulated] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding." This is, as the Court has noted elsewhere, its "most deferential standard of review," and it raises a host of constitutional concerns.

Most obviously, the rational-basis test extends legislative power so far as to leave in doubt whether the federal government is still one of enumerated powers. (As if the substantial-effects test were not broad enough!) The Constitution's enumerated powers are the first line of defense for our freedom—our personal freedom, not just federalism. The Supreme Court, however, in its wisdom has largely eviscerated this constitutional constraint. The Court should therefore seize upon Canna as a chance to take a modest step back toward limited government, federalism, and personal freedom.

Lest there be any doubt, I should explain that I am very skeptical about the liberalization of drug laws. But much more is at stake. The country cannot afford almost infinite federal power. Nor can it afford a judiciary that is afraid to correct its mistakes. To err is human, and we need a Supreme Court that is willing to correct its own errors.

A second issue in the case, not far below the surface, concerns judicial deference. The rational-basis test requires judges to defer to the judgment of Congress as to whether it is acting within the commerce power—as long as there is a rational basis for that conclusion. That test therefore has some similarity to Chevron deference, which required judges to defer to reasonable agency interpretations of law. As in Chevron, so under Gonzales, judges are excused from deciding the legal question for themselves and are required to defer to the legal judgment of another branch of government, as long as it is reasonable.

Put another way, the rational-basis test overtly requires judges to uphold statutes that are not "in fact" within the commerce power. So, rather than follow their duty "to say what the law is," they end up saying what it isn't.

The question in Canna, as in Loper Bright v. Raimondo, which overturned Chevron, therefore centrally concerns the role of federal judges. Are they to exercise their own independent judgment and say what the law is? Or are they to bow to one of the political branches and say what is not the law? Although Loper Bright rested on statutory grounds, the Court in that case recognized the underlying constitutional stakes. Here, there is no statutory off-ramp—so the Court must more directly preserve its constitutional role.

A third issue that can be discerned in Canna involves the Tenth Amendment. Wait a moment, you may protest, that amendment is merely tautological! In sense, yes; but not entirely. The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It thereby echoes and confirms the Constitution's limits on federal and state power.

But it restates those structural limits as an enumerated right. The Constitution's grant of limited powers to Congress structurally protects Americans in the freedom or power that is left over. The Tenth Amendment, however, transforms that residual freedom or power into a constitutional right, and that is consequential. As founders such as James Madison and Alexander Hamilton observed, the rights are "exceptions" to power. The amendment, moreover, speaks of the powers "reserved to the States respectively, or to the people"—making it a personal right as well as one belonging to the states. Americans, accordingly, have not only a structurally protected freedom, but also an enumerated right, against any exertion of federal power that goes further than what is granted by the Constitution.

All this matters because the Supreme Court's rational-basis test candidly gives Congress power beyond what the Commerce Clause "in fact" authorizes. The test thus violates more than the Commerce Clause. Even more emphatically, it violates the Tenth Amendment right of Americans to the "powers not delegated to the United States by the Constitution."

The Court should therefore grant certiorari in Canna on all three of these crucial questions. Having departed from the Constitution in profoundly troubling ways, the Court should embrace the opportunity to correct its errors.

Free Speech

Plaintiff Can Add Claims to Case Alleging Carnegie Mellon Prof Said Time on Jewish-Related Project "Would Have Been Better Spent" Exploring "What Jews Do to Make Themselves Such a Hated Group"

One claim is that CMU's Chief Diversity Officer illegally recorded meeting with student and the accused professor—and then apparently "asserted her Fifth Amendment rights when ... asked her if she did so or if she had a pattern or practice of recording student meetings, without their consent, in the scope of her duties."

Eugene Volokh | 12.5.2025 6:31 PM

From Judge Scott Hardy's decision today in Canaan v. Carnegie Mellon Univ. (W.D. Pa.) (for more on the earlier decision that allowed much of this claim to go forward, see this post):

Canaan's Complaint alleges that CMU harbors a culture of antisemitism, that certain of its professors and administrators intentionally discriminated against her and harassed her because she is Jewish and of Israeli descent, and that they were deliberately indifferent to her concerns about such discriminatory mistreatment and retaliated against her. Canaan initially asserted claims against CMU for discrimination, harassment, and retaliation in violation of Title VI of the Civil Rights Act of 1964 … along with claims for breach of its own policies and intentional infliction of emotional distress ("IIED").

CMU moved to dismiss Canaan's Complaint in its entirety. The Court mostly denied CMU's motion, except for the IIED claim and a portion of the claim alleging the breach of certain policies….

The parties thereafter commenced extensive discovery …. Canaan contends that such discovery … revealed that CMU's Chief Diversity Officer, Wanda Heading-Grant, surreptitiously recorded a private and sensitive meeting with her and Professor Arscott [the professor plaintiff was accusing -EV] … while Heading-Grant was performing her role as CMU's "facilitator" of such meetings related to bias and discrimination. Canaan further contends that Heading-Grant secretly recorded their meeting to serve CMU by collecting evidence to "leverage" against her, and that Heading-Grant's recording was done without her knowledge or consent and thus constitutes a felony under Pennsylvania law.

Then, Heading-Grant asserted her Fifth Amendment rights when Canaan's counsel asked her if she did so or if she had a pattern or practice of recording student meetings, without their consent, in the scope of her duties….

The court allowed Canaan to amend her complaint in light of this, and rejected CMU's claim that the proposed Wiretap Act claims was legally insufficient:

Free Speech Campus Free Speech Privacy Anti-Semitism

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Some short excerpts from yesterday's long decision by Seventh Circuit Judge Joshua Kolar, joined by Chief Judge Michael Brennan, in Farhan v. 2715 NMA LLC:

Manal Farhan is a Palestinian American who flew a Palestinian flag in her apartment window. Defendants, the owner and operator of her apartment building, told her to take the flag down pursuant to a policy that the building would stay "neutral" amidst the Israel-Palestine conflict. Farhan refused and defendants terminated her tenancy. She then sued under the Fair Housing Act ("FHA") and several state laws, alleging discrimination based on national origin….

Farhan pursued a novel and unsupported theory of liability under the FHA: that defendants' application of a "neutrality" policy requiring her, a Palestinian American, to remove a Palestinian flag was national origin discrimination prohibited by the FHA. She further asserted, erroneously, that a showing of discriminatory intent was not required at the pleading stage for her intentional discrimination claims, contrary to precedent. While we stress that the allegations in Farhan's complaint could perhaps, presented or defended differently, state a claim for discrimination under the FHA, we affirm the district court's dismissal….

Farhan asserts that other tenants in the building displayed flags and artwork in their windows in the same or a substantially similar manner as the Palestinian flag in Farhan's window. And on information and belief, none of those tenants received notices of termination. She does not, however, claim that other tenants were able to display flags or symbols relating to the Israel-Palestine conflict….

In opposing defendants' motion, Farhan pursued a theory that "requiring tenants to stay neutral in a conflict concerning their home countries is national origin discrimination." She argued that because defendants' "neutrality" policy related only to the Israel-Palestine conflict, and did not ban, for example, Ukrainian or Russian flags in tenant windows, "this would not be happening if she flew a Ukrainian flag in her window instead of a Palestinian one." …

The Fair Housing Act prohibits discrimination in the provision and maintenance of housing … based on race, color, religion, sex, familial status, or national origin…. Farhan argues that her complaint plausibly alleges that defendants, by enforcing their "neutrality" policy, intentionally discriminated against her based on national origin….

But the district court properly observed that her complaint lacks any allegation relating to a discriminatory intent motivating defendants' "neutrality" policy. The complaint does not allege, for example, that the policy only applies to Palestinian flags, as opposed to Israeli flags or other expressive signage. It does not allege that other non-Palestinian tenants were able to fly Israeli or Palestinian flags, or that the policy was only enforced against Palestinian tenants.

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

New cert petition: You might think it's outrageous that a Dallas detective lied to get a bar owner indicted for fake crimes at the behest of the detective's part-time employer, a neighboring business that wanted the bar gone. But what's really outrageous is that in the Fifth Circuit, the denial of the detective's plea for state-law immunity (from the bar owner's civil suit) is immediately appealable. As J. Oldham argues (in a troubled concurrence), the availability of such collateral-order review in federal appellate courts leaves federal jurisdiction at the mercy of states. Which makes no sense. Click here to learn more.

Over at the Brennan Center's State Court Report, Anthony Sanders reports on a recent state supreme court opinion from North Dakota concerning big words like "liberty" and "happiness" that are in the state constitution. How should courts interpret those words? Anthony says do what the constitution says: Go Big (but within reason).

New on the Short Circuit podcast: Aliza Shatzman of the Legal Accountability Project tells us what happens when judges aren't great employers (not much).

In which a divided D.C. Circuit panel holds that President Trump can indeed fire members of the National Labor Relations Board and the Merit Systems Protection Board without cause and that the statutory protections Congress enacted barring removal without cause violate the Constitution.
Bridgegate defendant spends $4 mil on legal defense until SCOTUS says he didn't do a wire fraud. He repeatedly asks the Port Authority to indemnify him, and is told (basically): Yes, we got your paperwork, stop pestering us. Later, the Port Authority says he didn't submit the right paperwork, so they have state sovereign immunity against his claims for indemnification. Second Circuit: You see, the problem with that state sovereign-immunity theory is that the Port Authority is not a state. Concurrence: That's enough to decide this case, and I don't join the majority's further dicta proposing a Grand Unifying Theory of State Sovereign Immunity. Read More

Today the Supreme Court granted certiorari in four additional cases. Most notably, the justices granted the Trump Administration's petition for certiorari before judgment in Trump v. Barbara, one of the two petitions submitted by the Trump Administration asking the Court to weigh in on birthright citizenship. (The Court took no action on the other petition in Trump v. Washington perhaps because that case also involves standing issues the Court would prefer to address separately.)

The question presented, as set forth in the Solicitor General's brief provides as follows:

The Citizenship Clause of the Fourteenth Amendment provides that those "born * * * in the United States, and subject to the jurisdiction thereof," are U.S. citizens. U.S. Const. Amend. XIV, § 1. The Clause was adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens. On January 20, 2025, President Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship, which restores the original meaning of the Citizenship Clause and provides, on a prospective basis only, that children of temporary visitors and illegal aliens are not U.S. citizens by birth. The Citizenship Order directs federal agencies not to issue or accept citizenship documents for such children born more than 30 days after the Order's effective date.

The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.

Note that by incorporating the statutory question the question presented gives the Court a relatively easy way to resolve this case without resolving the constitutional question.

Whether or not one believes that the Trump Administration's effort to narrow the scope of birthright citizenship is consistent with the original public meaning of the Fourteenth Amendment (and I do not), it is difficult to argue that the Executive Order is consistent with 8 U.S.C. 1401(a) as it has been traditionally interpreted, understood, and applied. That is, even if one believes that constitutional birthright citizenship is narrower than the conventional understanding, or that Congress has the power to define it more narrowly by limiting the scope of who is born "subject to the jurisdiction" of the United States, Congress has not done so, and the Executive lacks any power to redefine the scope of birthright citizenship unilaterally.

But wait, some may argue, doesn't the statute merely repeat the language of the Fourteenth Amendment? And doesn't that mean they should mean the same thing? Yes it is the same language, but the public meaning of the statute, when enacted, need not have been the same as the public meaning of the earlier-adopted constitutional provision. Moreover, insofar as all three branches have consistently interpreted the statutory language to provide for the conventional, broad understanding of birthright citizenship, that interpretation would be entitled to statutory stare decisis even if one were to believe either that the Fourteenth Amendment did not provide for birthright citizenship as broadly as most assume or that Congress has the power to narrow the scope of birthright citizenship through legislation.

What this means is that the Court could simply hold that the Executive Order conflicts with the longstanding interpretation of 8 U.S.C. 1401(a) and defer to another day whether Congress could enact legislation adopting a narrower rule. If the justices are looking for a way to avoid a splintered opinion in Barbara, this approach may be an attractive route to take.

In other news, the Court took no action on any of the Second Amendment cases that had been relisted.

Much has been written about Judge Smith's dissent in the Texas redistricting case. All the usual suspects were shocked, shocked (!) that Judge Smith wrote about George Soros. But critics missed the mark. Judge Smith's point was that Texas, like California, was engaging in overtly partisan enterprises. And the groups that opposed Texas's gerrymander, much like the groups that opposed California's gerrymander, are motivated by politics. Race is only implicated because African Americans and Hispanics tend to vote for Democrats more than Republicans. Judge Smith wasn't attacking liberals or conservatives. He was simply describing the state of political play, and why Texas did what it did.

Contrast Judge Smith's dissent with Justice Kagan's dissent in Abbott v. LULAC. Kagan's opinion is dripping with a different type of partisanship--scorn for those who are responsible for this mid-decade redistricting.

Part I begins:

Recall the state of the world last spring, before mid-decade, overtly partisan redistricting (in both red and blue States) became de rigueur.

I checked. This is the first time that any Supreme Court opinion has used the labels "red state" or "blue state." Justice Kagan did it without any hesitation. I guess that using colors was better than describing states as "Republican" or "Democrat" states. Now we know how Justice Kagan actually sees the people.

Look how far we've come from Barack Obama's victory speech at Grand Park. In November 2008, Obama proclaimed, "we have never been a collection of red states and blue states; we are, and always will be, the United States of America." Not even President Obama's most enduring legacy believes in that idealism anymore.

One might think that Kagan's introduction would segue to a balanced discussion of what President Trump did on the one hand, and what Gavin Newsom did on the other. But no such balance here. The word "California" appears nowhere in the dissent. One reading it might think that Texas is the only state that took actions. Justice Kagan may as well be isolated on Galveston Island. (As someone who grew up on an island, I do no intend any offense to those who reside in places surrounded by bodies of water.)

Part I of the dissent continues:

In those months, President Trump and his political team urged Texas officials to redraw their House map, with the goal of creating more Republican seats and protecting that party's vulnerable majority.

This is also a first for the term "political team." Past justices might have used the phrase "presidential appointees." But Kagan derides the act of governance as just politics.

In a parenthetical, Kagan takes a shot at Republican legislators who voted to gerrymander as a mark of "political loyalty" to Trump:

(Again, this was in those innocent days—prior to Texas's redistricting—when partisan gerrymanders seemed undemocratic or at least unsavory, rather than a mark of political conviction or loyalty.)

I sometimes find Justice Kagan's parentheticals to be witty or whimsical. This one was a self-own. In the process of castigating politicians for being partisan, Kagan herself engages in partisanship. The only difference, of course, is that politicians are allowed to be partisan. Judges are not.

A few more points about LULAC before I move on. Justice Kagan faulted the majority for deciding the case "over a holiday weekend":

Yet this Court reverses that judgment based on its perusal, over a holiday weekend, of a cold paper record.

What exactly is the point here? Should the Court not act over a holiday weekend? Should the Court have taken a break for turkey and yams? Even Denny's is open on Thanksgiving.

And to be fair, the fact that this case stretched into Thanksgiving was probably Justice Kagan's fault. The emergency application was filed on November 21. The response was due on November 24. Thanksgiving was on November 27. The per curiam opinion was probably written in a few hours. To the extent this case stretched across a holiday weekend, it was likely to give Justice Kagan time to write a seventeen page dissent.

Indeed, it is not clear whether the majority even had time to review Justice Kagan's dissent. Justice Alito hinted that he wrote a short concurrence so as to not further extend the delay.

Texas needs certainty on which map will govern the 2026 midterm elections, so I will not delay the Court's order by writing a detailed response to each of the dissent's arguments.

Then again, if the Supreme Court majority could wait about a week for Justice Kagan's dissent, surely Judge Brown could have waited another 24 hours for Judge Smith's dissent.

I am working on an article about unilateral SCOTUS reform. One of my proposals would allow six Justices to immediately release any pending matter; dissents can come later. I think this case would have been a useful time to exercise this prerogative. Here in Texas, there was massive confusion over the past two weeks, as candidates had no clue which districts they were even running for. This period of uncertainty was extended to allow a dissenting Justice to write an opinion that few will read.

Finally, Justice Kagan faults the majority for relying on a "cold paper record." What other type of record is there? All records are cold. I suppose her point is that the "clear error" standard is used because judges are reviewing a cold record, while the trial judges saw the proceedings live. The majority's ruling was based entirely on questions of law, for which the factual determinations are not relevant.

In the moment, it is very difficult to know what Supreme Court decisions are actually important. Perhaps Trump v. Anderson is a leading example. For nearly a year, the scholarly community completely lined up with the argument that the judiciary should invoke a 150-year old clause that has virtually zero precedent to disqualify the leading candidate from the presidential ballot, even though no one was even charged with insurrection. Now, other than a few grousing law review articles, Section 3 has receded from whence it came. Or take Trump v. United States. When it was decided, we were warned that this decision would usher in despotism. Barely two years later, the decision is largely irrelevant. Indeed, due to an unusual set of circumstances, all of the prosecutions against Trump have petered out. I would add Slaughter to that same list. Without question, it was momentous for the Court to allow Trump to fire an FTC commissioner, all but signaling that Humphrey's Executor is dead. But how much will this case actually affect most people? Does the average American even know what the FTC is?

I think Abbott v. LULAC is different. This case might be the most impactful emergency docket ruling yet. Consider the dynamics. Both parties have now committed to mid-decade redistricting. As Justice Kagan observed, "overtly partisan redistricting (in both red and blue States) became de rigueur." The control of the House of Representatives will be decided on a knife's edge. If California could have gerrymandered Republican seats out of existence, but Texas was unable to gerrymander Democrats seats, then there would have been a clear asymmetry. It is difficult to say with any certainty how much of an effect this asymmetry would have. In recent years, the incumbent President's party tends to lose seats in the House. But I think it safe to assume that if California could redistrict, but Texas could not, the Republicans wold have slim odds of keeping the House.

What follows from that outcome is fairly predictable. We would see impeachments: Secretary of Defense (War) Pete Hegseth, Attorney General Pam Bondi, Judge Emil Bove, and more. They might try to impeach Trump again over whatever the issue of the day happens to be. The details are not important. If the Senate remains in Republican control, they can follow the Mayorkas precedent, and dismiss all of the indictments on the briefs, without holding a trial. But if the Democrats take the Senate, Chief Justice Roberts would have some more presiding to do.

The predictable commentary is that the Supreme Court simply does the GOP's bidding. I think that is exactly backwards. The Supreme Court's majority has now leveled the playing field, and let both parties duke it out politically. There is a reason the second sentence of the Court's per curiam opinion mentions California, even though the Golden State is not a party.

Here, I see an analogy to Trump v. Anderson. Both cases attempted to hijack the Fourteenth Amendment to help one political party. The Fourteenth Amendment did nothing at all to prohibit gerrymandering based on circumstantial evidence where race was discussed by the legislature--indeed, these discussions were necessarily compelled by the Supreme Court's own cases. If Callais goes the way I think it will go, no one in Texas would even have to mention race. In that regard, the the Supreme Court has laid yet another asymmetrical trap--failure to address race might be unlawful, but discussing race may also be unlawful. Republicans always lose, and Democrats always win. The Fourteenth Amendment certainly didn't empower courts to redraw districts to guarantee minority voters the ability to elect Democrats. And the Fourteenth Amendment did not give state courts the power to disqualify a presidential candidate on the basis of insurrection, especially when Congress has taken no steps to authorize such a suit, and no one in the United States was even charged with insurrection

Voters could see what happened on January 6, and decide whether Trump should be President. Likewise, voters can see what their state legislatures are doing with mid-decade redistricting, and vote accordingly. Indeed, the voters of California resoundingly approved of redistricting through the popular referendum. Most California Republicans voted against the rule, but they lost. I suspect the voters of Texas would have cast a similar vote for redistricting. Justice Kagan laments that "many Texas citizens" will be put in different districts. Many, but certainly not a majority. The Fourteenth Amendment cannot be twisted to help a political minority in one state but not in another.

And that is what this case is about: who gets to decide. The Texas legislators made a decision, but Judge Brown disagreed. Must the Supreme Court stand by idly with this paradigm shifting ruling, based on a deferential "clear evidence" standard of review? Had the Supreme Court reached the merits in Trump v. Anderson, would Justice Kagan insist that the U.S. Supreme Court defer to the Colorado trial court's finding of an insurrection, unless there was "clear evidence" to the contrary?

Here, I think Trump v. CASA explains the state of play. The Trump Administration challenged the power of lower courts to issue universal injunctions, but insisted it would defer to the Supreme Court--obeisance to the worst sort of judicial supremacy. But if the Supreme Court has this overarching power, then we should not be surprised that the Justices take a clean look at an opinion from a razzled-dazzled judge in Galveston that could have altered the arc of history.

This past week, I was in Israel with a group of lawyers from the US, Canada, Bulgaria, and Latvia on a trip sponsored by the nonpartisan Center for Jewish Impact. CJI's general goal is to serve as a conduit between the Israeli private sector and domestic and foreign governments, but it has also run this trip and one before it to give interested "legal elites" more insight into the post-10/7 political and military landscape in Israel. I will probably have more to say about the trip later, but for now I thought I would share what I learned from a presentation from an Israeli military lawyer.

I have heard countless times since 10/7 that Israel has bombed Gaza "indiscriminately" or as "revenge." In fact, every single target has to be approved by Israeli military lawyers, who vet the target to ensure that it meets the international law standards for proportionality.

Several things stand out about how Israel approaches this matter. First, the military lawyers don't just give general advice about proportionality and then let the commanders in the field decide how to stay within its constraints. As noted, they literally vet every target, except of course when ground forces are under direct attack and need to call in immediate air support. Even then, local commanders are obligated, if time allows, to get approval from higher-ups who have more training in international law.

Second, Israel's military lawyers, unlike the US's lawyers, report only to other military lawyers, not to the general chain of command, so they can't be pressured by commanders who find the rules of engagement problematic or excessive.

Third, Israel's rules of engagement are stricter than NATO's. Israel can afford to be so strict because it has such a strong military advantage over Hamas. Otherwise, many of the rules that Israel's military lawyers require, so as making phone calls and dropping leaflets to warn residents to flee in advance of Israeli military action would be suicidal, given that Israel thus gives up the element of surprise. Relatedly, having spoken to other Israeli military lawyers over the years, it's clear that they believe that their mission is not simply to get the IDF to obey international law, but to so exceed international law that even international tribunals that are highly biased against Israel will have a difficult time claiming systematic war crimes by the IDF.

That said, I recognize an obvious constraint on the lawyers' ability to ensure that the military complies with the rules. Local commanders can falsely claim exigency to avoid the process. Unless a commander does so consistently and somewhat egregiously, it's unlikely he will be caught. But there is no military in the world that has figured out how to ensure 100% compliance with the rules of engagement. (On a related note, I was curious what percentage of soldiers in a typical conflict engage in illegal actions. According to academic papers on the subject, about 8-10% of soldiers in a Western army will do something illegal during a war, and 1-3% will engage in serious illegal conduct. Even if Israel managed to cut those figures by 75%, with 200K soldiers serving in Gaza, that leaves room for a great deal of illegal conduct.)

In any event, the military lawyer who spoke to us provided a slide, translated from the Hebrew, showing the complex process required for approving an air strike.

The obvious question that may come to mind is that if the targeting is so precise, why has there been so much destruction of Gaza's infrastructure. And the answer is that Hamas's vast tunnel network had entrances and exits just everywhere, and Israeli ground forces couldn't operate safely if Hamas combatants could pop out of a tunnel any time, any place. So the tunnels had to be neutralized, and the only way to neutralize a tunnel below ground was first destroy the building on top of it. Hamas's use of civilian infrastructure in this manner was both immoral and illegal, and promising solutions like flooding the tunnels were ultimately untenable.

On Monday, the Supreme Court will hear oral argument in Trump v. Slaughter, the case challenging limitations on the President's ability to remove members of the Federal Trade Commission. In resolving this question, the Court will consider whether to narrow or overrule Humphrey's Executor.

Perhaps to aid in the Court's deliberations, today the U.S. Court of Appeals for the D.C. Circuit decided the combined cases of Harris v. Bessent and Wilcox v. Trump, concerning the limitations on removal of members of the Merit System Protection Board and National Labor Relations Board.

In Harris, a divided panel concluded that the President could remove members of both the MSPB and NLRB on the grounds that both entities exercise executive power and that limitations on removal in such contexts is contrary to the Supreme Court's decision in Seila Law v. CFPB. In this way, the panel sought to distinguish this case from Humphrey's Executor, which concerned an FTC that, at the time, exercised quasi-legislative and quasi-judicial power, as opposed to core executive power. In the process the panel also provided the Court a potential roadmap for upholding President Trump's removal of Slaughter from the FTC without formally over-ruling Humphrey's Executor (and perhaps, in the process, giving a nod to revisionist scholarship suggesting that limits on removal in the context of officers exercising quasi-judicial is consistent with history and tradition).

Judge Katsas wrote the opinion for the panel, joined by Judge Walker. Judge Pan dissented.

Judge Katsas summarizes the case as follows:

Wooden block homes with a ban sign — Andrii Yalanskyi/Dreamstime.com

Today, the Washington Examiner published my article on "Foot Voting, Housing, and Affordability." Here is an excerpt:

Affordability was the biggest issue in the 2025 off-year elections.

In various forms, affordability played a major role in the winning state campaigns of center-left candidates such as Govs.-elect Mikie Sherrill (D-NJ) and Abigail Spanberger (D-VA). It also propelled a self-proclaimed democratic socialist, New York Mayor-elect Zohran Mamdani, to the leadership of the largest U.S. city, a major global financial hub. A year earlier, the affordability issue played a crucial role in President Donald Trump's 2024 win.

A central element of the affordability problem in recent years has been the high cost of housing, to the point where many people are prevented from living in the communities where they would like to be. Housing shortages increase the cost of living, prevent millions from "moving to opportunity," and curtail people's ability to "vote with their feet."

The problem of housing affordability is attracting increasing public attention. But many politicians in both parties continue to promote policies that make it worse: rent control in the case of many leftists, such as Mamdani, and tariffs and deportation of immigrants when it comes to Republicans, led by Trump. Both parties would do better to drop the counterproductive snake oil and instead focus on eliminating exclusionary zoning and other regulatory restrictions, which are the main causes of the crisis.

The rest of the article develops these points in detail, explaining the benefits of curbing exclusionary zoning, and also why rent control, deportations, and tariffs all actually exacerbate the housing crisis instead of alleviating it.

I cover some of these issues in greater detail in my recent Texas Law Review article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver).

The article is here; the Introduction:

Open courts are a cornerstone of democratic government, ensuring not only that justice is done but that it is seen to be done. As the Supreme Court recognized in Press-Enterprise Co. v. Superior Court ("Press-Enterprise I"), "[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." While public access to court proceedings is indispensable to preserving this openness, access to court records is equally critical. In practice, much of the business of the courts—particularly in the federal system—takes place through written filings: motions, briefs, evidentiary submissions, and judicial opinions. Without access to these records, the public cannot understand and scrutinize the judiciary's work.

Despite the longstanding presumption that court records are open for public inspection, parties frequently attempt to "seal" documents in order to hide them from public view. Empirical research reveals that the sealing of court records is extensive and increasing, particularly in federal courts and states with broad sealing statutes. Indeed, the sealing of court records is often routine, with minimal opposition or judicial scrutiny. A recent examination of sealing in federal district courts found that motions to seal were among the most common court filings, with over thirty thousand cases containing such motions in the past five years. One federal judge even compared the increasing secrecy in the courts to "kudzu," a nearly uncontrollable creeping vine that "blocks access to sunlight, slowly strangling fields and forests in its wake."

The harms that come from this secrecy are far from abstract. In a series of investigative reports titled "Hidden Injustice," Reuters revealed how secrecy in U.S. courts—particularly the sealing of court records—shields corporate misconduct and conceals information vital to public safety. Their investigation discovered that federal judges had sealed evidence related to harmful products in about half of the 115 biggest product liability cases over the past twenty years and that in 85% of those instances judges provided no explanation for keeping the information from the public. Looking specifically at opioid litigation, Reuters determined that judges allowed litigants to file under seal evidence that could have alerted regulators, doctors, and the public to the dangers of prescription opioids; this concealment, they concluded, played a significant role in prolonging and deepening the opioid crisis.

Under current case law, as discussed in more detail below, the sealing of court records should be rare and permissible only under limited circumstances. In practice, however, the opposite is true: Sealing has become disturbingly routine in the federal courts, often carried out with little meaningful judicial oversight.

Free Speech Right of Access

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