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Free Speech

Viewpoint and Race Discrimination Claim in COVID Relief Grants Can Go Forward

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A short excerpt from the long opinion today in African People's Ed. & Defense Fund, Inc. v. Pinellas County, written by Eleventh Circuit Judge Kevin Newsom, joined by Judge Andrew Brasher and District Judge Paul Huck (S.D. Fla.):

Florida nonprofit African People's Education and Defense Fund twice applied for COVID-relief grants from monies made available to Pinellas County by the federal government. The Pinellas County Board of Commissioners initially approved APEDF's first grant request but later revoked that approval; the Board denied the group's second grant application outright.

APEDF sued, contending that the Board had revoked the first grant and denied the second on the basis of race and because of the group's association with the "Uhuru Movement"—which APEDF describes as a collection of "like-minded groups and individuals promoting Black community empowerment."

The court allowed APEDF's First Amendment to go forward:

Where, as here, the government is doling out public funding, it operates as a sovereign rather than as an employer. Pinellas County wasn't seeking an ongoing relationship with APEDF, nor was it offering to pay APEDF to perform a service or to act as an agent. Rather, it was simply determining whether APEDF's contributions to the public justified an award of grant money. In that respect, APEDF is less like an employee or a traditional government contractor and "more like [an] ordinary citizen[ ] whose viewpoints on matters of public concern the government has no legitimate interest in repressing."

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Free Speech

Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit

The recommendation includes entry of a default judgment against Boteach in a defamation lawsuit brought against him by a Florida hotel.

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An excerpt from today's long Report and Recommendation by Judge Marty Fulgueira Elfenbein in Fontainebleau Florida Hotel, LLC v. Jacob:

This action arises from an encounter between Defendant and then-hotel guest Faiz Akbar … in the lobby of Plaintiff's hotel in December 2024. The Parties sharply dispute the nature of the encounter, who initiated or escalated it, and whether Plaintiff responded appropriately to Defendant's subsequent complaints.

Plaintiff's operative First Amended Complaint alleges that Defendant published false statements concerning the incident and Plaintiff's response to it, including statements that Plaintiff discriminated against Defendant because he is Jewish, knowingly permitted an antisemitic assault to occur on its premises, removed Defendant rather than the alleged aggressor, and refused to cooperate with law enforcement. Based on those allegations, Plaintiff asserts claims against Defendant for defamation and tortious interference with business relationships.

Defendant filed a Counterclaim and Third-Party Complaint asserting claims against Plaintiff and naming Jeffrey Soffer … and Akbar as Third-Party Defendants. Defendant's Counterclaim alleges, among other things, that he was subjected to an antisemitic verbal attack at the hotel, that Plaintiff failed to protect him or adequately cooperate with the ensuing investigation, and that Plaintiff thereafter excluded him from its properties. Defendant asserted claims under federal civil-rights statutes and a claim for tortious interference with business relationships….

The merits of the Parties' competing claims are not directly before the Court in the Motion for Sanctions. Instead, the dispute concerns Defendant's conduct during the litigation, the meaning and scope of the District Court's February 20, 2026 Order …, and whether Defendant's subsequent social-media activity violated that Order in a manner warranting sanctions under Federal Rule of Civil Procedure 16(f) or the Court's inherent authority….

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Free Speech

No Pseudonymity for the Pretend Date in Pentagon Contractor's Suit Over Hidden Date Recording by O'Keefe Media Group

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First, a quick summary from today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

The court held that Heidi, who was sued as one of the defendants, couldn't remain pseudonymous:

Throughout this litigation, Defendants have maintained that [Heidi Doe]'s name should be sealed…. Defendants … assert that [Heidi]'s true name must be kept under seal on the basis that her identity is protected by the District of Columbia reporter's shield law. In the alternative, they argue that good cause exists under Rule 26(c) to maintain [her] pseudonym….

Defendants still have not shown [Heidi] is protected by the Shield Law. The District's Shield Law prohibits the compulsory disclosure of "the source of any news or information procured by [a] person while employed by the news media and acting in an official news gathering capacity," creating an absolute privilege for the identities of sources.

The court previously denied Defendants' motion on the ground that they did not present any evidence—"not even a declaration"—to support treating as a source rather than as a journalist. Defendants this time come armed with a declaration from [Heidi], but the declaration only reinforces the court's previous determination that [Heidi] is not a source within the meaning of the Shield Law.

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Free Speech

A Bit on Pentagon Contractor's Wiretapping Claim Over Hidden Date Recording by O'Keefe Media Group

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First, a quick summary from today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

Mannina sued on various grounds; I discussed the court's treatment of plaintiff's defamation and false light claim in this post, and its treatment of the fraudulent misrepresentation claim in this post. Here's what the court had to say about the wiretapping claim:

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Free Speech

Pentagon Contractor's Fraudulent Misrepresentation Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward

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From today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

Mannina sued on various grounds; I discussed the court's treatment of plaintiff's defamation and false light claim in a separate post, but here's what the court had to say about the fraudulent misrepresentation claim:

A claim of fraudulent misrepresentation requires proof of "(1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation." Plaintiff alleges that [redacted] "knowingly and deliberately misrepresented herself to Mr. Mannina for the purpose of targeting and entrapping him into making remarks that could be distorted for political and harmful purposes." Using her "inauthentic profile," falsely represented she was romantically interested in Plaintiff, when in fact "[s]he was simply part of an intentional targeted operation against individuals perceived to be Democrats to materially and falsely discredit them." And her false representations were "material to inducing" Plaintiff to go on the two dates with [redacted] and discuss his views and career.

{OMG and O'Keefe's motion does not itself offer any substantive arguments [apparently referring to arguments related to the elements of the fraudulent misrepresentation claim]. It rather accuses Plaintiff of "blam[ing] a lady for not being honest as to her motives" instead of "blaming himself for having a big mouth and spilling secrets." Apparently, his "audacity is similar to a man who kills his parents and then throws himself upon the mercy of the court, claiming that he is an orphan."}

Defendants first appeal to the First Amendment. They contend that the First Amendment precludes a fraud claim against undercover journalists both because "a plaintiff cannot use a fraud label to end-run the constitutional safeguards that apply to speech about matters of public concern" and because the First Amendment "does not countenance using fraud claim to punish the publication of truthful information on a matter of public concern." …

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Free Speech

Pentagon Contractor's Libel Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward

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From today's decision by Judge Amit Mehta (D.D.C.) in Mannina v. O'Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named "Heidi." Unbeknownst to Plaintiff, "Heidi" was actually Defendant [redacted], a person hired by Defendants O'Keefe Media Group ("OMG") and James O'Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called "Dating the Deep State," which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

The publication of these videos caused Plaintiff to lose his job. Plaintiff subsequently brought this action alleging defamation, false light, fraudulent misrepresentation, conspiracy, and violations of the District of Columbia and federal wiretapping statutes….

Plaintiff alleges that, "[t]hrough numerous edits and splices from statements made throughout both dates, and even between each date, the various videos and articles … were created to intentionally provide false or implied evidence to support Defendant OMG and O'Keefe's fabricated claims that [Plaintiff] was essentially attempting to launch an unlawful coup against President Trump."

Specifically, he alleges that "Defendants falsely state or imply in their [publications] that Mr. Mannina was a senior Pentagon Official providing direct advice to the [Joint Staff] and part of a subversive 'Deep State' that held covert meetings with retired military leaders, including admirals and generals, who were collaborating from within the Pentagon on the means to undermine and counteract the incoming Trump administration … in highly secure locations, including 'The Tank', that were 'reserved for critical defense deliberations.'" "Defendants further falsely state or imply that [Plaintiff], in his official capacity, was lying, spying, conspiring to commit a coup, and acting unethically." …

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Free Speech

"I Rushed out Already Moist. My Mouth. I Want My Face. We Just Carry It On."

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From the Complaint in Kivler v. Wolf Licensee LLC, just removed to E.D. Pa.:

E.K., is a 16-year-old student athlete, who won her [wrestling] match at the district championship.

Shortly after being crowned district champion on February 21, 2024 [likely a typo for 2026 -EV], a reporter from Fox56 (Wolf) requested to interview E.K, and E.K. agreed. During this recorded interview, E.K. described the match and her strategy for how she planned to prevail.

However, on February 24, 2026, Defendants published the Article that did not use the quote E.K. provided, but rather an entirely different quote that E.K. never said and completely inconsistent with the recorded audio. Specifically, the Article attributed the following quote to E.K, a young girl: "I rushed out already moist. My mouth. I want my face. We just carry it on. So I knew what she was going to go for. Somebody gets it. I knew she was going to make a few mistakes, but not everybody makes mistakes. They were was. 20."

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Cert Denied, Cert Delayed, Cert Granted

In at least four cases, the Court denied cert over three dissentals, and then resolved the same issue a year or more later.

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As I reviewed the wall of receipts for cert denials, I noticed something of a pattern. In several cases, the Supreme Court denied certiorari over three dissenting votes. Invariably those three dissenters were Justices Thomas, Alito, and Gorsuch, though in some cases Justice Kavanaugh provides the third. Yet, a year or more later, the Court resolved the same or similar issue that was presented in another case. In recent years, the Court has taken to relisting a petition before granting it to make sure there are no vehicle problems. Indeed, some cases are relisted for months at end, only to be granted, like the AR-15 case. But in a handful of cases, the path to a cert grant is a cert denial.

Consider four examples.

In July 2021, the Supreme Court denied cert in Arlene's Flowers v. Washington, over dissents from Thomas, Alito, and Gorsuch. This case had started way back in 2013. Two months later a cert petition was filed in 303 Creative v. Elenis, which was granted in February 2022. In June 2023, the Court ruled that requiring the designer to make a website for a gay wedding violated the Free Speech Clause of the First Amendment. This was the issue presented, and denied in Arlene's Flowers. About two years lapsed between the cert denial and the issue being resolved.

In December 2023, the Supreme Court denied cert in Tingley v. Ferguson, over dissents from Justices Thomas, Alito, and Kavanaugh (but not Gorsuch). This case challenged Washington state's ban on talk "conversion therapy." Eleven months later in November 2024, a cert petition was filed in Chiles v. Salazar. This case challenged Colorado's ban on conversion therapy. Cert was granted in March 2025, and Colorado's law was declared unconstitutional in March 2026 by an 8-1 vote. Again, about two years lapsed between the cert denial and the issue being resolved.

In December 2024, the Supreme Court denied cert in Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin, over dissents from Justices Thomas, Alito, and Kavanaugh (but not Gorsuch). This case was a challenge to a school's policy to encourage students to "transition" without parental knowledge or consent. About a month later, an emergency application was filed in Mirabelli v. Bonta. In March 2026, the Supreme Court decided Mirabelli on the interim docket, largely settling the question presented in Parents Protecting Our Children. Here, about a year lapsed between the cert denial and the issue being resolved.

In June 2025, the Supreme Court denied cert in Snope v. Brown, over dissents from Justices Thomas, Alito, and Gorsuch. This case had been stuck in docket purgatory for nearly eight months. Justice Kavanaugh concurred in the denial of cert, but wrote "this Court should and presumably will will address the AR–15 issue soon, in the next Term or two." The Court took two such cases about a year later in July 2026. A decision is likely to come by July 2027. Here, about two years will lapse between the cert denial and the issue being resolved. Though, to be fair, this issue has been pending since 2008 or so after Heller was decided. So the more accurate count is about two decades.

What can explain each of these changes? Well, the cert grant means that a Justice who did not join the dissental flipped his or her vote to grant cert. After Snope, Justice Kavanaugh clearly became the fourth vote. After Tingley, I would wager that Justice Gorsuch became the fourth vote. After Parents Protecting Children, I think Justice Barrett changed course, as she wrote a strong concurrence in Mirabelli. I am not sure who flipped after Arlene's Flowers, but my guess would be Justice Kavanaugh.

I suppose the initial cert denial can be due to vehicle problems, though all of these cases are brought by sophisticated counsel who tee up the issues neatly. Something else may be going on. At least in Snope, Justice Kavanaugh apparently just wanted to clear some other items off the docket before going for the AR-15 case.

During her congressional testimony, Justice Kagan seemed quite content with the Court only granting sixty cases a year. I bet. I presume that the Court's progressives do everything in their power to keep away liberal lower court rulings that could get reversed. Kagan offered this rosy account of the docket size:

I would say we have about an ordinary regular docket. If you look back a number of decades, the docket has gone down. When I clerked at the Court, I'm afraid to say how long ago, in the late 1980's, the Court handled about 140 cases a year. The Court now handles in terms of regular argued cases maybe 70 cases a year, so a significant decrease. There is a cottage industry and explanation for why that decrease took place over time.  All the time that I've been on the court we've been relatively stable. So the last fifteen years or so we are doing about one year it's 75, one year it's 60, it's something on that order. So we continue to hear cases every month and to always issue all our opinions before July 4 every year.

The number has not been 75 for some time. It has not been 70 for some time. 65 would seem like a bumper crop. We are now consistently below 60. Of course, what matter is not just the raw number. Does anyone really care about how many ERISA cases are decided? What matters are the sorts of cases that divide the nation. And in at least two dozen cases I've identified, the most hot-button issues seem to keep getting denied with three dissenting votes.

As I'll explain in a future piece, a Justice should be evaluated not just based on the merits votes they cast, but on the cases they place on the docket. Justices Thomas, Alito, and Gorsuch are the most aggressive justices who wish to resolve issues that split the lower court. Justice Kavanaugh has gotten better on this front, and now seems to be following through on his promise, at least in the AR-15 context. Justice Barrett, from everything I can tell, is the least cert-eager Justice on the Court.

Justice Barrett relayed a relevant anecdote at a book event (it was not recorded, so I am trying to recreate it from memory.) Every year, she asks her law clerks at the start of the term to find cases that should be granted. Then, at the end of the term, she asks if there were some cases that should have been granted, but were not. Apparently, the clerks tell her that no cert-worthy cases were missed. Well, what the clerks are saying is that Justices Thomas, Alito, Gorsuch, and Kavanaugh just don't know what makes a case cert-worthy. Ahem.

Justice Barrett has only ever dissented from the denial of certiorari once. Her caution and hesitancy keeps the docket small, much to Justice Kagan's delight. Much more to come.

Religion and the Law

Court Rejects Lawsuit Alleging Religious Liberty Commission Isn't "Fairly Balanced"

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From Interfaith Alliance v. Trump, decided Monday by Judge John Cronan (S.D.N.Y.):

[A.] [T]he Federal Advisory Committee Act ("FACA") … reflects a compromise: Congress was concerned about advisory committees being dominated by special interests, but also realized that such committees could be useful sources of advice and ideas. So instead of saddling advisory committees with endless red tape, Congress imposed relatively light requirements, [including that] a committee's membership must be "fairly balanced" in light of the functions it performs….

This case presents a FACA challenge to the Religious Liberty Commission (the "RLC" or the "Commission"), an advisory committee established last year by President Donald J. Trump. The RLC consists of up to fourteen voting members appointed by the President and is tasked with producing a report on the foundations of religious liberty in America and the current threats to its exercise.

Plaintiffs argue that the Presidentially-appointed members of the RLC are not fairly balanced ….

[B.] Plaintiffs … fail to state a claim … [in part because] the RLC's membership has a fair balance of viewpoints given the functions it performs….

Because the Court disposes of this case on those grounds, it assumes, for the sake of argument, that whether an agency's membership is fairly balanced is reviewable under the APA because it is not "committed to agency discretion." … [T]his question has deeply divided the courts ….

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A Free-Exercise Challenge to NY's Medically Assisted-Suicide Law

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A group of Catholic healthcare providers has filed a federal lawsuit seeking to enjoin enforcement of New York's new Medical Aid in Dying Act. Among other things, the plaintiffs allege that the Act, which takes effect next month, violates their rights under the First Amendment's Free Exercise Clause.

The litigation is at a very early stage. New York has not yet responded. Still, if the statutory regime operates as the plaintiffs allege, they appear to have a pretty good free exercise argument.

The controversy concerns a practice supporters call medical aid in dying and opponents call medically assisted suicide. I will generally use the latter term because it more directly describes the act the statute authorizes: a physician provides medication that a patient may administer to himself to end his life.

New York's existing Palliative Care Information Act requires physicians and nurse practitioners to offer terminally ill patients information and counseling about end-of-life care options. The new Act authorizes an additional option: a mentally capable adult diagnosed with a terminal illness may request medication to end his life.

The plaintiffs argue that, taken together, the statutes will require medical providers to offer information and counseling about this option. Providers unwilling to counsel patients themselves must, they say, arrange for someone else to do so, or refer or transfer the patient.

The lead plaintiffs are the Carmelite Sisters for the Aged and Infirm, an order that cares for elderly and dying people. The Carmelites object not only to prescribing the medication or allowing its use on their premises--in fact, the law does not require the Carmelites to do either. The Carmelites believe that counseling, referral, and transfer would themselves constitute impermissible cooperation with an immoral practice.

Assuming the law requires what the plaintiffs allege, that forced cooperation would probably qualify as a substantial burden on their religious exercise. Under Hobby Lobby, courts generally may not second-guess a sincere religious judgment about complicity. A court could not simply tell the Carmelites that counseling or referral is too remote from the patient's ultimate decision to count as religiously objectionable.

But substantial burden is only the beginning. Under Employment Division v. Smith, a neutral and generally applicable law ordinarily does not trigger strict scrutiny.

The Carmelites argue the new law does not apply generally because it exempts hospices, which also care for terminally ill patients and address end-of-life decisions. If hospices are exempt while Catholic nursing homes are not, comparable institutions receive different treatment. New York will presumably argue that hospices are not similarly situated, perhaps because they play a different role in patient care or enter the process after broader treatment decisions have already occurred.

If the Carmelites are correct and the law does not apply generally, strict scrutiny would apply. New York would have to show that requiring the Carmelites themselves to provide or arrange the counseling is the least restrictive means of ensuring that patients receive accurate information. That may be difficult. The state could provide a website, telephone service, written notice, independent counseling system, or list of participating providers.

In short, if the Carmelites' account of the facts and the law proves correct, their Free Exercise Clause claim seems a strong one.

Behind this case is a profound disagreement about end-of-life care. Supporters emphasize autonomy and compassion for people facing severe suffering. Opponents see medically assisted suicide as inconsistent with the duty to protect life and care for patients.

These decisions are often excruciating for patients, families, doctors, and caregivers. Abstract principles can seem inadequate in such circumstances.

But that is not the issue the court is being asked to decide. The question is narrower: whether New York may require religious institutions to participate in medically-assisted suicide in ways that violate their faith.

I discuss the case in a new Legal Spirits Short Take, available here.

Politics

U Michigan Student Sues Alleging Wrongful Discipline for Unauthorized AI Use­­—But Can't Sue as a Jane Doe

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From Doe v. Regents of Univ. of Mich., decided yesterday by Judge Laurie Michelson (E.D. Mich.):

Plaintiff, a student at the University of Michigan, was disciplined her for alleged academic misconduct—an unauthorized use of AI to write course papers. She was put on disciplinary probation and required to write a 1,000-word reflective essay. Plaintiff maintains that she has "documented disabilities" including generalized anxiety disorder and obsessive-compulsive disorder. She alleges that her "disability-related writing traits could be misinterpreted as AI and should not be treated as proof of misconduct." Thus, on February 9, 2026, she filed this lawsuit against numerous University of Michigan officials and instructors, claiming that the disciplinary action violated the Rehabilitation Act, the Americans with Disabilities Act, and her procedural due process rights….

Doe sought leave to proceed under a pseudonym (as people suing pseudonymously generally must do), but the court said no. The court rejected her claim that pseudonymity was justified by risk of reputational harm claim:

Plaintiff's contention that she would suffer "a severe stigmatic and reputational injury" if she had to litigate under her name is unsupported. Plaintiff says that "harm cannot be fully cured by later relief" if her identity tied to "alleged academic dishonesty and to mental health information[,]" is disclosed." But "[u]nsubstantiated fears of speculative harm are insufficient to outweigh the presumption of open judicial proceedings."

[And] Plaintiff's argument that "claims of academic dishonesty" would impact her "ability to practice professionally as a physician" is not a legally cognizable consideration under Porter. See Doe v. Univ. of Akron(collecting cases where courts denied requests by plaintiffs faced with academic dishonesty allegations who claim "damage to [their] reputation" and concerns about "career opportunities")….

The Court appreciates Plaintiff's situation. But many federal court plaintiffs must face disclosure of sensitive or personal information that they would likely prefer to keep private. Plaintiff fails to carry her burden to show that her case is otherwise exceptional.

The court also reasoned that the claim didn't involve matters of "utmost intimacy":

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Politics

Judge James C. Ho's Speech On "Judicial Courage" and Judicial Selection

"Nobody actually reads what people have said and written. And that’s why mistakes are made. Because if nobody reads, then it’s not about who would do the job best. It’s about who wants the job most."

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Last week, Judge James C. Ho of the Fifth Circuit delivered a stirring address at a First Liberty Institute gathering. I was very impressed by the speech, and asked Judge Ho for permission to publish his remarks. He kindly agreed. The theme of the event was "Judicial Courage," and Judge Ho discusses how courage should impact judicial selection. I will include the full post below the jump, but here is an important excerpt:

Second, consider the advice that Paul gave in his first epistle to Timothy about choosing a good leader.  Don't pick "a recent convert, or he may become conceited and fall under the same judgment as the devil."

Instead, recall what was done when it was time to replace Judas among the 12 disciples.  As the Book of Acts explains, "choose one of the men who have been with us the whole time."

In other words, don't pick the Johnny-come-latelies—the ones who only showed up after it became socially acceptable and career enhancing to do so.  Choose only from those who have been here from the beginning, even when it was hard—those who were with us, not out of convenience, but out of conviction.

So long as you've narrowed the pool that way, then it really doesn't matter who gets it—as long as they get it.

That's a far cry from how the process often plays out.  There's a saying in my chambers:  Nobody reads.  It's true in litigation.  And it's true in judicial selection, too.

Nobody actually reads what people have said and written.  And that's why mistakes are made.  Because if nobody reads, then it's not about who would do the job best.  It's about who wants the job most.

And that's exactly wrong.  It's exactly backwards.  Because I want the people who are too busy to campaign—who just want to get the work done and then go home to their families.

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Updating The Wall of Receipts For President Trump's Three Appointees

How have Justices Gorsuch, Kavanaugh, and Barrett voted over the past year on the interim and certiorari dockets?

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Most of the analysis of how Justices votes focuses on the merits docket. But there are far more votes worth tracking. In March 2025, I published a detailed analysis of how the three Trump appointees had voted on the Court since their appointment on the interim docket and on the certiorari docket. Here, I'd like to provide an updated wall of receipts for the past fifteen months.

Rulings on the Interim Docket

This list includes recent rulings on the interim docket where Justices Thomas or Alito would have granted or denied relief, and one or more of the Trump appointees were on the other side. Again, I pick up after March 2025 where my last tally concluded.

  1. A.A.R.P v. Trump (2025)- Justices Thomas and Alito would not have blocked President Trump's removal of Venezuelan nationals under the Alien Enemies Act. Justice Kavanaugh concurred in the majority's opinion, while Justices Gorsuch and Barrett were silent.
  2. Turtle Mountain Band of Chippewa Indians v. Howe (2025) - Justices Thomas, Alito and Gorsuch would have allowed an Eighth Circuit ruling to go into effect finding that there is no private right of action under Section 2 of the Voting Rights Act. Justices Kavanaugh and Barrett almost certainly voted to grant a stay. In May 2026, the Court remanded the case to the Eight Circuit in light of Callais. My suspicion was that Kavanaugh and Barrett were hoping the Section 2 issue goes away since the Band likely has no viable case after Callais.
  3. National Institutes of Health v. American Public Health Association (2025) - Justices Thomas, Alito, Gorsuch, and Kavanaugh would have allowed the executive branch to block certain DEI grants to NIH. But, Justice Barrett only granted a partial stay, denying the majority a full fifth vote.
  4. South Carolina v. Doe (2025) - Justices Thomas, Alito, and Gorsuch would have granted an injunction pending appeal to allow a school to limit bathroom use based on biological sex. Justices Kavanaugh and Barrett did not signal their dissent.
  5. Trump v. Illinois (2025) - Justices Alito, Thomas, and Gorsuch would have allowed President Trump to deploy the National Guard to Illinois to assist in immigration enforcement. Justice Kavanaugh concurred in the Court's ruling against Trump. Justice Barrett was silent.
  6. Mirabelli v. Bonta (2026) - Justices Barrett and Kavanaugh, along with the Chief Justice, granted a partial victory to parents challenging California's "gender transition" policy for students. Justices Thomas and Alito would have granted the parents' application in full. Justice Gorsuch (likely) joined the per curiam opinion, but did not write separately.
  7. GenBioPro v. Louisiana (2026) and Danco Laboratories v. Louisiana (2026) - Justices Thomas and Alito would have allowed the lower court ruling to go into effect, which blocked the shipment of mifepristone in the mails. Justices Gorsuch, Kavanaugh, and Barrett likely voted to stay the Fifth Circuit's judgment.
  8. Blanche v. Perlmutter (2026) - Only Justice Thomas would have allowed President Trump to fire the head of the U.S. Copyright Office. After Slaughter, the Court denied the application rather than GVRing it.

Denials of Certiorari

This list includes the denials of certiorari where Justices Thomas and/or Justice Alito would have voted to grant the petition.

  1. Speech First, Inc. v. Whitten (2025) - Justices Thomas and Alito would have reviewed the challenge to Indiana University's "bias incidents" response team.
  2. Hittle v. City of Stockton, California (2025) - Justices Thomas and Gorsuch would have granted a petition to revisit the McDonnell Douglas balancing framework under Title VII.
  3. Apache Stronghold v. United States (2025) - Justices Thomas and Gorsuch would have reviewed a case involving the federal government's destruction of an Indian sacred site. (Justice Alito was recused.)
  4. L. M. by and through Morrison v. Town of Middleborough, Massachusetts (2025) - Justices Thomas and Alito would have reviewed the appeal of a student who was punished for wearing a shirt that said "There are only two genders."
  5. Snope v. Brown (2025) - Justices Thomas, Alito and Gorsuch would have granted a petition to review Maryland's ban on AR-15s. Justice Barrett was silent. Justice Kavanaugh concurred in the denial of cert, but wrote "this Court should and presumably will will address the AR–15 issue soon, in the next Term or two." The Court took two such cases about a year later in July 2026.
  6. GHP Management Corporation v. City of Los Angeles (2025) - Justices Thomas and Gorsuch would have reviewed a pandemic-era eviction moratorium as a violation of the Takings Clause.
  7. Veneno v. United States (2025) - Justices Thomas and Gorsuch would have reviewed a case challenging the federal government's plenary powers over Indian tribes.
  8. Hutson v. United States (2025) - Justices Thomas, Alito, and Gorsuch would have intervened to terminate a "longstanding and unlawful prison-building order."
  9. Alabama v. Powell (2026) - Justices Thomas and Alito would have summarily reversed an Alabama criminal case, finding there was no violation of the Fifth Amendment right against self-incrimination.
  10. United States v. Carter (2026) - Justices Thomas and Alito would have reviewed a District of Columbia policy that requires police to consider a defendant's race.
  11. Doe v. Hochul (2026) - Justices Thomas, Alito and Gorsuch would have reviewed the case of a religious healthcare worker who was fired for refusing the COVID-19 vaccine.
  12. Dershowitz v. Cable News Network (2026) - Justices Thomas and Gorsuch would have granted review to reconsider the "actual malice" standard for defamation.

I will offer some commentary on this list in a future writing.

Please email me if I missed any cases.

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