From Tuesday's Wisconsin Court of Appeals decision in State v. Brister, by Judge Sara Geenen, joined by Chief Judge Joseph Donald and Judge Pedro Colón:
On June 22, 2023, Brister was sentenced in two unrelated cases. In Milwaukee County Circuit Court Case No. 2020CF367, which is not part of this appeal, Brister was sentenced for possessing a firearm as a felon ("the 2020 case"). He illegally possessed a gun while also committing acts of domestic abuse against his live-in girlfriend, Marie.
In Milwaukee County Circuit Court Case No. 2021CF3563, the case before us on appeal, Brister was sentenced for child neglect and OWI (1st) [Operating While Intoxicated] with a minor in the car, after Brister was pulled over for speeding and weaving on I-43 while Diana, then two years old, was unsecured in the backseat of the car. Diana was not injured, so the charge of child neglect alleged that harm would be a natural and probable consequence of the neglect. During the traffic stop, police found a loaded gun under the rear passenger seat. Brister called Marie to pick Diana up from the traffic stop, in violation of a no-contact order that had been imposed while he was released on bail in the 2020 case…. Brister's criminal record … included 2006 convictions for burglary and uttering a forgery, a 2009 conviction for marijuana possession, and three convictions for burglary in 2011….
The circuit court's sentencing remarks focused on the gravity of the offenses, noting the danger to which Brister had exposed his daughter and the seriousness of twice having a gun while intoxicated. The court summarized the most relevant sentencing factors when rejecting Brister's recommendation for probation:
The first thing I have to consider is whether probation is appropriate. I can't think of anything further from appropriate, than putting you on probation, for these offenses. You have demonstrated, by your behavior, not only by your criminal record, not only by your incredibly dangerous behavior in not following court orders and having that firearm and being drunk while you have the firearm, and battering [Marie], engaging in disorderly conduct. Not only that, but then adding on, that you needed to neglect and endanger your two-year-old while you were driving with her, again drunk, at incredibly high speeds, and having the firearm accessible to her. It defies description.
Oregon Right to Life … has one mission: to advocate for pro-life positions based on Judeo-Christian values. This singularly focused nonprofit, by operation of Oregon law, and in particular the religious exemption available to lawfully avoid compliance with this law, would [be forced] to purchase health insurance for its employees that would cover abortions and abortifacients—the very things the nonprofit exists to oppose on religious grounds. The Supreme Court, as this Opinion explains, has made clear that a nonprofit in Plaintiff's position must prevail on its as-applied challenge to the "religious employer" exemption….
The Oregon Legislature enacted RHEA to "ensure[] that Oregonians have access to comprehensive reproductive health care" including abortion and contraceptives, regardless of their income or insurance coverage. RHEA requires all health benefit plans in Oregon to "provide coverage" for abortion and "any contraceptive drug, device or product approved by the United States Food and Drug Administration." Further, a health benefit plan "may not infringe upon an enrollee's choice of contraceptive drug, device or product and may not require prior authorization.
RHEA exempted (among other things) "religious employers" "whose purpose is the inculcation of religious values," but Oregon Right to Life wasn't covered because its "purpose is prolife advocacy, not inculcating religious values, and [because Plaintiff] doesn't primarily serve persons sharing its religious tenets." The court held that limiting the religious exemption this way involved unconstitutional discrimination among religious objectors:
This year's World Cup has largely avoided the stadium subsidies, forcible displacement of people, human rights violations, and other evils historically associated with the event.
Although I'm a big sports fan, I have long been critical of the Olympics and the World Cup for a variety of abuses, such as massive stadium subsidies that victimize taxpayers, forcible displacement of people in order to build stadiums, and providing a propaganda showcase for repressive authoritarian regimes, such as Russia and Qatar (hosts of the last two World Cups). Fortunately, this year's World Cup - co-hosted by Canada, the US, and Mexico - has mostly avoided these problems, at least when it comes to the United States. Though not quite entirely, as we shall see. The key factors are that the US host cities used existing stadiums, and that strong protections for freedom of speech largely foreclosed the censorship and repression common in authoritarian host states.
Back in 2022, at the time of the last World Cup hosted by Qatar, I outlined several problems that needed to be fixed in order to avoid various evils associated with past World Cups and Olympic games. Let's see how the US has done on each one:
1. No public subsidies. Let the games be funded purely by private organizations and sponsors, as was largely the case for the successful 1984 Olympics in Los Angeles. That way, no one has to pay for the games, except those who profit from them and the audience that voluntarily chooses to watch.
This has largely been achieved, primarily because US host cities have used existing stadiums, obviating the need to build new ones. This eliminates by far the biggest cause of the World Cup's exploitation of taxpayers. There have still been some public expenditures on things like traffic management and security. But protecting people against crime and terrorism, and managing public infrastructure are basic functions of government that the state provides for events of all kinds. There is no good reason to exclude major sporting events. Anarchists (including libertarian ones) can consistently condemn such spending. But that goes to philosophical issues that go far beyond sports events.
2. No forcible displacement of residents, private businesses, or civil society organizations. We can and should hold sports events without kicking innocent people out of their homes.
As far as I can tell, this has been entirely avoided. And it's in sharp contrast to the record of many past Olympic and World Cup hosts, such as Brazil and China.
3. No hosting rights for authoritarian human rights violators. There are plenty of possible Olympic venues that aren't controlled by likes of Vladimir Putin and Xi Jinping, or the Emir of Qatar. Denying these types of rulers hosting rights won't fundamentally alter their regimes. But it will at least damage their image and deny them propaganda victories.
Even under Trump, the US is nowhere near as bad as Russia, China, or Qatar. The fact that I regularly denounce Trump and even helped litigate a case against him in the Supreme Court, with little fear of reprisal, is one small but telling indication of the difference. That said, Trump's cruel and discriminatory immigration policies (which victimize US citizens as well as recent migrants), and his assaults on freedom of speech make the contrast smaller than it should be.
So far, however, Trump does not seem to have derived much, if any, propaganda benefit from hosting the Cup. That may be in part because his attention is focused elsewhere.
4. There must be full freedom of speech at all competition venues and in all interactions between competitors, media, and the local population. At the very least, athletes, journalists, and spectators should be entirely free to criticize the host government and its policies (or any other government for that matter).
This standard has also largely been met, thanks in large part to the First Amendment and its strong protection for speech. The city of Seattle deserves credit for refusing the Egyptian and Iranian governments' demands to bar local Pride celebrations, which happened to coincide with the match between these two countries' teams. This is a sharp contrast with Russia's and Qatar's authoritarian restrictions on pro-LGBT speech.
The Trump Administration's speech-based deportations and exclusions of immigrants and visitors have cast a pall over this issue. But courts have so far largely ruled against Trump on these issues. And it does not appear that any World Cup players, fans, or officials have been deported or barred on this basis (though some fans and a referee have been subjected to other arbitrary visa restrictions).
5. There must be no "public health" measures blocking normal human interaction between athletes, members of the media, and residents of the host city. Such measures defeat the whole point of having the competition in a particular country in the first place.
I will add that the World Cup has generated many heart-warming moments of Americans welcoming foreign players and fans, which has helped the world to see that most Americans do not share the xenophobic nationalism of the Trump Administration.
In sum, the US record on the types of issues and injustices that have marred past Olympics and World Cups is by no means perfect. And the structural corruption of FIFA (the organization running the Cup) remains. The organization has a history of fleecing taxpayers, conniving in forcible displacement of residents to build stadiums, and kowtowing to authoritarians. There is no guarantee that it won't repeat past abuses during future Cups. The same goes for the International Olympic Committee, which runs the Olympics.
But the current World Cup has been much better in crucial respects than those held by other recent hosts, such as Brazil, Russia, and Qatar. We should learn from that experience, and liberal democracies should pressure FIFA and the IOC to adopt systematic reforms that will permanently preclude these abuses.
Plaintiff Accountability Now is an unincorporated association that holds a permit from the NPS [National Park Service] to conduct "a demonstration near the George Meade Statue on Constitution Avenue in Washington, D.C." "Volunteers maintain the demonstration twenty-four hours a day, seven days a week" at which they "engage in face-to-face conversations with members of the public[] to call attention to the rise of fascism in the United States and [to] demand the impeachment of President Trump." Plaintiff's "current permit was issued on April 13, 2026, and is valid through August 12, 2026[,]" and Plaintiff "intends to obtain another permit when the current permit expires, at the same or another location on NPS-managed land in the District of Columbia."
On February 24, 2026, in response to reporting "that the Justice Department was withholding more than 50 pages of FBI interviews with a woman who had accused Donald Trump of sexually abusing her when she was a minor[,]" Plaintiff began to display two new signs at the demonstration. One sign reads: "TRUMP RAPED LITTLE GIRLS." The other reads: "KIDS, IF YOUR PARENTS ARE MAGA, THEY LOVE CHILD RAPISTS." According to Plaintiff, "[t]he display of those signs has engendered numerous conversations between volunteers and passersby regarding President Trump's behavior, morality, and fitness to continue in office." … [Plaintiffs allege that] NPS agents requested that the two child rape signs be taken down, although it is not clear whether the NPS officials provided a reason for the request during the conversation…
Under the well-known standard articulated in Miller v. California (1973), speech is obscene if (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest," (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state [or federal] law," and "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value…. Understandably, Defendants have now conceded that the two signs at issue are not obscene as to adults. Indeed, to argue otherwise would be to suggest that virtually every news outlet in the country violates the obscenity laws every time it refers to allegations of rape or rape of a minor.
Lights along the beach can create problems for turtles. Bright lights at night can disorient sea turtle hatchlings and prevent them from crawling into the sea. Sufficient beachfront lighting might even constitute a prohibited "take" of Loggerhead sea turtles and other turtle species listed under the Endangered Species Act.
Assume that the erection or maintenance of beachfront lighting in turtle habitat is a take under Section 9 of the ESA. Could a state or local government's decision to allow such beachfront lighting--either by permitting it or perhaps just failing to prohibit it--also be a take under Section 9? And, if so, could the ESA require a state or local government to take action against private landowners who erect or maintain beachfront lighting when sea turtles are reproducing? Would such a requirement be constitutional? I think not.
USFWS
Holding state and local governments liable under the ESA for licensing, permitting, or failing to control private conduct violates the anti-commandeering principle, or so I argue in my article, "Conservation Commandeering," forthcoming in a Catholic University Law Review symposium. Nonetheless, courts impose this sort of vicarious liability on state and local governments with some frequency, most often in response to citizen suits filed under the ESA by environmental groups. Cases have involved state agency's failing to impose sufficiently stringent limitations on fur trapping or fishing, among other things. In this post I noted a case pending in the U.S. Court of Appeals for the Eleventh Circuit concerning Florida's alleged failure to adequately regulate septic systems. At the moment, most district courts to have considered such claims have rejected commandeering-based arguments. In my view, they are wrong, and imposing liability in such cases is hard to square with the Court's federalism jurisprudence.
The Endangered Species Act (ESA) prohibits anyone-including state and local governments-from "taking" protected species without a permit. Courts have extended this prohibition to impose vicarious liability on state and local governments, holding that a government's failure to regulate private activities sufficiently harmful to listed species may itself constitute an illegal take. This Article argues that such "conservation commandeering" cannot be reconciled with the Supreme Court's anti-commandeering jurisprudence. Under current doctrine, the federal government may not compel state and local governments to enact or administer regulatory programs implementing federal law, nor may it prohibit states from licensing or authorizing private activity. Requiring states to restrict private conduct as a condition of avoiding ESA liability does precisely what these decisions forbid. This Article further argues that enforcing the anti-commandeering principle need not undermine species conservation. The ESA's cooperative federalism provisions and existing tools for inducing voluntary state participation offer workable alternatives-ones that respect both constitutional structure and the practical importance of state and local cooperation in protecting listed species.
I often speak of June 26, 2008, the day that District of Columbia v. Heller was decided. Yet, I still clearly remember the day before when the Court decided Kennedy v. Louisiana. Justice Kennedy declared that there was a "national consensus" against executing child rapists, and accordingly, the Eighth Amendment prohibits such punishment. Two decades later, I am still appalled by that decision. It has to be wrong as an originalist matter, as the meaning of the Eighth Amendment cannot change based on what states do. And Kennedy offered no objective basis to determine what the "national consensus" even was.
Maybe now is the time to reconsider this precedent. Judge Josh Devine (EDMO) takesKennedy as a starting point, and suggests that the facts on the ground have changed.
Kennedy itself said that the question of constitutionality changes over time and is based on the social "norms that 'currently prevail.'" 554 U.S. at 419 (emphasis added; citation omitted). And Kennedy made clear that those standards can change in as few as 15 years, leading to different bottom-line outcomes. Id. at 432.
Today's standards look quite different from those in 2008. In the last three years, at least six States enacted new legislation permitting capital punishment for the crime of child rape. And following recent changes in technology, the rate of sexual offenses against children has skyrocketed. These crimes cannot accurately be described solely as crimes against individual victims. The images and videos too often produced from these crimes persist on the internet for decades—if not forever—so they harm not just the individual victims, but society as a whole. The Supreme Court in 2008 found a national consensus against capital punishment for child rape and concluded that the most decent thing was to take capital punishment off the table. But in the face of extraordinary increases in crimes against children, plus paradigm changes in the legal and technological landscape, policymakers and prosecutors may determine that the most decent thing is to impose the most serious penalty on those who harm the most innocent. Kennedy does not prohibit that development. Unless a criminal offender satisfies an extraordinarily demanding evidentiary burden, Supreme Court precedent permits imposing capital punishment on those who commit nonhomicide sexual offenses against children.
I appreciate this approach. Justice Kennedy made up a nonsense standard, and lower courts are well within their right to follow it. Let the Supreme Court clean up this mess.
There is some angst that Devine offered an advisory opinion. I don't see it. There is a live case-or-controversy: what is the punishment for this offense. The judge is offering his view of how the sentencing process will proceed. It is not uncommon for judges to talk to attorneys in advance of a sentencing, or any other proceeding. Indeed, at presentencing conferences, Judges routinely articulate their understanding of the relevant sentencing guidelines, and offer the parties a chance to respond. Lawyers steeped in appellate practice may be unfamiliar with such mundane processes at the trial court.
A very interesting video and transcript. Sai's summary from the end (though of course it's just a summary, and the analysis is elsewhere in the transcript and in Sai's articles on the subject):
I think the founders wanted to create a strong executive—not all-powerful, but strong.
And they wanted someone in charge of law execution. I think that's the principal function of the executive, not rulemaking and not acting as a substitute court.
And they had examples of plural executives in the states, and they eschewed them.
So I think the Court got it right….
I … think the country is better off having a president in charge of law execution rather than having a bunch of people independently doing it.
Having said that, we do have states where we have plural executives, and it's not as if people think they're dysfunctional.
But I think there are advantages to executive unity, particularly when it comes to law execution.
I recently took my young children to the public library for an early celebration of America's 250th Birthday. Perhaps naively, I expected a patriotic gathering that would help my kids feel proud of America. No such luck. During story time, the librarian could have selected any children's book about American history, independence, or what made America exceptional. Instead, she chose a book that spent every page talking about immigrants coming to America. The second page depicted Africans in chains being transported against their will on boats to the United States. Then every subsequent page repeated that maxim that people were allowed to come to America without regard to their race, gender, or religion. One page showed political refugees from the war-torn Middle East. Another page showed migrant workers from Mexico. And so on. I doubt any of the young children had the slightest clue what the book was trying to convey. But the kindly librarian thought this book was not only appropriate for an America 250 celebration but was important for toddlers to learn from.
The library also featured a shelf highlighting books with immigration themes. I randomly pulled a book that was in both English and Spanish. It relays the experience of being a migrant child. The book depicts a family in Mexico living on a farm. There are two children, and the mother is visibly pregnant. The father says, "Pack your bags. We're going to the States to have a better life." For the children, the only thing needed to enter the United States was a desire for a better life. The next page depicts the children riding in a car without their mother and father. The caption reads, "We traveled north by bus and car. Some people had to help us cross the international bridge." I presume this was a way to teach young children about coyotes and smugglers. The following page shows the family reunited in Los Angeles, with the mother having now given birth. Birthright citizenship in action. The imagery and messaging were very deliberate.
The upshot of both books was clear: America is a sinful nation for slavery, but what makes America great is admitting aliens from the poorest and most dangerous countries in the world. Mind you, this event was intended for children as young as three years old. There are many salacious reports about "Drag Queen Story Time," while "Immigration Indoctrination Story Time" flies under the radar. This sort of thing happens in every library and school across the country. Were parents really expected to explain slavery in chains to toddlers who are tethered by backpack-leashes? Should parents discuss what it means to exclude people on the basis of race, gender, and religion? Did the librarian anticipate that one of the dads in the room was a law professor who could recount how our immigration laws were entirely based on race for much of American history?
And the conclusion:
Liberal asymmetries are difficult to break. They are so deeply embedded in every facet of our institutions that those in the conservative legal movement refused to acknowledge their existence. Story time at the library is an early opportunity for indoctrination. The first step to equalize asymmetries is to address them candidly and move past arguments that shut down the debate. Next time I'll do more than quietly leave Story Time. Other parents should do so as well.
I am happy to pass along this impressive volume from my friends at the Civitas Institute:
The contributors have strived to evaluate the Declaration in its entirety, a document whose excellence serves as the foundation of American political life. We also recognize that the legacy and principles of the Declaration are being questioned in this, the two-hundred-and-fiftieth anniversary year. What the reader should understand is that the authors featured in this volume are not in doubt about the principles of the Declaration and their meaning for American citizens and politics. With essays on the Declaration's teachings on natural rights, freedom, anthropology, natural theology, legal standing, revolutionary principles, civic virtue, executive power, biblical religion, foreign policy, and notably its influence on our culture and memory, we hope that you, the reader, will deepen your understanding of the Declaration and develop greater devotion to this remarkable country we have been called to uphold and cherish.
In this light, the Civitas Institute at the University of Texas at Austin presents this volume to the reader, featuring essays by 25 scholars examining all aspects of the Declaration of Independence. A large majority of contributors teach in the newly established centers and schools of civic thought and education that now inhabit major universities across the country, deepening public instruction for students, ensuring that a richer set of ideas circulates on campus, and inevitably improving higher education in America. This volume will contribute to those efforts. The Civitas Institute is grateful to all who have skillfully shaped this collection of essays.
The Utah Legislature opens its legislative sessions to the public so that its constituents may observe the state's lawmaking process. The Legislature also grants additional access to professional journalists through what it calls its Capitol Media Access and Credentialing Policy. Beyond what the Legislature affords the public, credentialed journalists receive perks such as entry to a press room and secure areas of the Capitol, use of designated media workspaces in the Senate and House galleries, and access to media availabilities and press events with elected officials. To be eligible for a credential, a journalist must be "part of an established reputable news organization" and "[a]dhere to a professional code of ethics." The policy categorically excludes journalists associated with "[b]logs, independent media or other freelance media" from receiving a credential.
Bryan Schott is a journalist who covered the state house for more than twenty-five years on behalf of various institutional media companies, including Salt Lake City's most prominent newspaper. The Legislature granted media credentials to Schott each year that he worked for these companies. But in 2025, after Schott left the newspaper and started his own independent news organization—Utah Political Watch—while continuing to report on state politics and legislature matters, the Legislature denied his credential application.
The court allowed Schott's case to go forward, concluding that "he plausibly alleged that the Legislature denied his application because of his news stories' viewpoints":
The Fifth Edition of the Barnett/Blackman casebook will be published circa December 2026 for adoption in the Spring 2027 semester. We worked out an arrangement with our publisher to finalize several chapters immediately after the term ends.
First, we are incorporating Hemani and Wolford into the Second Amendment chapter. We already shortened Heller, and the excerpt from Bruen will likely shrink. It is regrettable the Court will not decide the AR-15 case until our book is in print.
The chapter on sex discrimination was waiting for B.P.J.v. West Virginia. That case follows neatly from Skrmetti and Mahmoud. Indeed, Frontiero and Craig v. Boren seem quaint and a bit outdated.
We are still figuring out exactly how to use the birthright citizenship case. It doesn't neatly fit in any existing chapter. Maybe we just add it to the end of the chapter on the Reconstruction Amendments?
Finally, Trump v. Slaughter will drastically change the separation of powers chapter. We did not include Meyers or Humphrey's Executor. I don't see much reason to add either case now. Our excerpt of Seila Law probably drops altogether. It was just a pit stop on the Chief's "long game." Our excerpt of Morrison v. Olson will shrink, with most of the cuts coming from Rehnquist's majority opinion. The Scalia dissent will remain.
For those interested, I've finished editing Slaughter. You can download the file here. The 108 page opinion is reduced to about 31 pages. These sorts of cuts are always tough, and your mileage may vary. Next up, B.P.J., and then Barbara.
Chief Justice John Roberts wrote the most consequential and important majority opinion of his tenure as Chief Justice today in Trump v. Slaughter. In a 6 to 3 decision, the Supreme Court correctly overruled its 91-year-old precedent in Humphrey's Executor v. United States (1935), consigning that erroneous nine-page opinion to the ashbin of history. I had argued for this outcome in an amicus brief co-signed with Attorneys General Ed Meese and Michael Mukasey that sets out our thoughts on the case in far more detail than I am going to discuss in this blog post.
The highlights of Chief Justice Roberts' opinion:
It cleanly overruled the dreadful Humphrey's Executor opinion instead of obliquely distinguishing it out of existence, as the Court has done with some other flat-out wrong precedents like Flast v. Cohen.
It was a triumph of originalism and textualism over the so-called pragmatism offered by the three dissenters.
It correctly read the Vesting Clause of Article II as a grant of the removal power and of the power to execute the law rather than as being a mere designation of the President's title as some have argued.
It rightly endorsed Chief Justice William Howard Taft's account of the Decision of 1789 in Myers v. United States—an opinion in which Taft correctly argued that the Decision of 1789 stood as an endorsement by the First Congress of the theory of the unitary executive.
It made clear that the President must control all exercises of the executive power—a conclusion that causes me to hope that today's holding will also control the removal of inferior officers and employees exercising executive power, even if they were appointed by the Head of a Department.
It recognized that our first seven presidents, George Washington, John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams, and Andrew Jackson, had all been believers in the theory of the unitary executive, by which I mean only that the President has the power to remove at will anyone who is exercising executive power.
It construed the Opinion in Writing Clause correctly as an aid to the president's power to control the executive branch and not as marking the outer limit of the President's power over the executive branch.
It correctly dismissed the argument that the so-called Sinking Fund Commission established in 1790 showed the President lacks unlimited removal power because the President could always terminate the power of the Chief Justice and the Vice President to act on the Sinking Fund even though the President cannot fire the Chief Justice and the Vice President from their day jobs.
It discussed Morrison v. Olson (1988) in a fashion that renders that erroneous opinion just as dead as is Humphrey's Executor.
It made clear that the President needs to have an unlimited power to remove at will principal and superior officers who are exercising executive power.
(Roberts' opinion also began nicely with citations to the legendary historian Gordon S. Wood, who tragically died in a traffic accident on June 5, 2026, at the age of 92, and who did so much to shed light on the original understanding of the Framers of the Constitution.)
One of the perks of seniority the power to assign opinions. But with Chief Justice Roberts being in the majority more than 90% of the time, there are few opinions assigned by Justice Thomas or anyone else. Justice Sotomayor, who is number four in terms of seniority, has only assigned a handful of majority opinions. Since Justice Breyer's retirement, Justice Sotomayor now has the power to assign the dissents in cases that split 6-3. This term, Sotomayor made a number of such authorships. Who did she pick?
Justice Sotomayor kept the dissents for herself in West Virginia v.B.P.J., Trump v. Slaughter, and Allen v. Milligan.
Justice Sotomayor assigned the dissents to Justice Kagan in Mullin v. Doe, NRSC v. FEC, Wolford v. Lopez, Exxon Mobile v. Climex, and Louisiana v.Callais.
Justice Sotomayor assigned the dissent to Justice Jackson in Mullin v. Al Otro Lado, Landor v. Louisiana Department of Corrections, and Blanch v. Lau.
(Let me know if I missed any.)
It strikes me as odd that Justice Kagan did not write the Slaughter dissent. Justice Kagan's dissent in Seila Law is probably her most important opinion of all time. Sotomayor's Slaughter dissent repeatedly calls back to Seila Law.Slaughter and NRSC were both argued in December. Sotomayor made the choice to keep Slaughter for herself and giving Kagan NRSC.
I would have loved to read a Kagan dissent in Slaughter. Sotomayor's dissent was, well, lacking in punch. I often write about the best writers on the Court, but I usually don't rank the bottom of the pack. Breezing through a witty Kagan dissent is a joy. Slogging through a dense Sotomayor dissent feels like a chore.
Nina Totenberg, to her credit, took all the blame for the Alito retirement story. She also offered a sincere apology, which I respect. Still, her error is inexplicable. Here is how the NPR Public Editor described the incident:
Totenberg was reporting on the final day of the Supreme Court session on Tuesday. As she was leaving the court, Chief Justice John Roberts was announcing upcoming retirements. Totenberg wondered why everyone else wasn't leaving and asked someone outside the court. According to her interview that same day on All Things Considered, Totenberg asked a bystander what was going on, and the person replied "retirement announcements." But Totenberg heard the reply in the singular, "announcement, " and assumed it was the notice that Alito was retiring.
Let me set the stage a bit. On the last day of each term, after all the opinions are announced, the Chief Justice announces retirements of Court employees. But it is not the practice for a Justice to announce his or retirement on the last day. I think the last person to do that was Justice Thurgood Marshall, as Totenberg reported in 1991.
There was no conceivable way that Justice Alito would let the Chief Justice make that announcement from the bench, with no advance warning, with all the public present. Alito is extremely introverted. If he retired, it would be done quietly, outside the gaze of Totenberg and her colleagues. Yet Totenberg thought that a court employee meant to signal there was one singular retirement as a way of saying Alito was stepping down? As if Totenberg was getting a secret signal? That story does not plausibly pass the smell test.
NPR Executive Editor Krishnadev Calamur believed Nina because of her legendary status:
"She's the preeminent Supreme Court reporter in the courtroom," Calamur said. "So I'm assuming that's what she heard. … She's in the room. It's like when we report opinions. I'm not waiting to see what the Times is reporting. It's when Nina says, here's what happened, and we do it. That's the trust you build up."
But does Totenberg deserve that trust? The Alito incident is just the latest in a string of questionable judgments Totenberg has made in recent years.
I'll start with an incident that I partially reported on, indirectly. By chance, I was in the Court for Justice Kennedy's final day on the Court in 2018. I wrote about that experience in National Review. I noted that one of the first clues was when Kennedy's family walked into the Court.
But then everything changed. Mary Kennedy, Justice Kennedy's wife walked into the room. Justice Kennedy was not expected to issue any more opinions, so her presence was a mystery. She was followed by (what looked like) her children and grandchildren, who took their seats in the reserved seat section. At that point, it became obvious that the entire Kennedy clan was in attendance. One of the members of the press section released an excited utterance: "Oh, f***!" The other reporters tried to figure out whether the guests were in fact Kennedy's family members. No one quite knew for sure. But there was no more time to think about it.
The reporter who said "Oh, fuck!" was none other than Nina Totenberg. I was sitting on the left side of the bar section, which was adjacent to the press box. I didn't feel the need to name Totenberg at the time, but I think it is now appropriate. I also didn't publish her follow-up comment, which was something to the effect of "How could he do this to us?" The message was clear--how could Kennedy let Trump replace him. There was never any doubt about which team Totenberg was on. She was exhibiting public disappointment in Kennedy's retirement. Reporters are supposed to maintain some sense of neutrality in public, but Totenberg didn't even try. Totenberg is known to make other inappropriate comments while sitting in the press box, including about me. When the bar section is filled to capacity, there are many lawyers in earshot of the press box.
In any event, this incident from 2018 reveals that Totenberg knows the usual routine of how Justice retirements are announced, which makes her story even more inexplicable.
There's more. Totenberg kept her decades-long friendship with Justice Ginsburg secret, even though she interviewed and wrote about RBG often. Totenberg reported that Justice Sotomayor asked Justice Gorsuch to wear a mask, and he refused. The Chief Justice, and Justices Gorsuch and Sotomayor, put out a statements saying the reporting was "false," but Totenberg stood by her story. On the day Justice Gorsuch's confirmation hearing began, Totenberg released what was supposed to be a bombshell story about students in Gorsuch's class. Within a few hours, the story fell apart, as Gorsuch disputed teh allegations, and another "Editor's Note" was added. I could go on.
Has any Supreme Court reporter made so many major errors in reporting that required corrections or "clarifications"? Has any member of the Supreme Court press corp made a single error of this magnitude and kept their job?
At some point, this long string of questionable judgments adds up to a conclusion: with Totenberg, trust but verify.
