Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
"'Yeah, I had no idea it was false. Yeah, that's right. Yeah,' then demand summary judgment because no one possesses contrary evidence from inside his head. That may be the ticket for comedy. It is not the ticket for summary judgment."
Words from Illinois Appellate Court Justice Anderson, in yesterday's Grasso v. Mottl, excerpted below.
I'm sure that readers are as anxious as I am to see how Todd Blanche explains this all away during his confirmation hearings.
When we last looked at the brilliant Trump/Blanche plan to steal $1.776 billion from US taxpayers and to put that money into the pockets of Trump's hardline supporters, I noted that the case was not going to disappear just because Acting AG Blanche has promised that the DOJ isn't "moving forward" with setting up the Slush Fund. District Judge Williams, you will recall, re-opened the Trump v. IRS case (the one the parties ostensibly "settled") in order to investigate "grievous allegations that [Trump] voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that was collusive from the start and was only filed to provide the imprimatur of legality for an unlawful settlement."
Judge Williams has now issued her opinion and order in the case, and it's as damning an indictment of Executive Branch lawlessness as one can imagine. Particularly interesting is the manner in which the "unitary executive theory" ends up biting Trump in the ass.
In ordinary times, of course, this would all be cause for impeachment - another example, as Judge Williams puts it, of "Mr. Trump's pattern of misusing the courts to serve political purposes." Today, however, it barely registers a blip on the legal radar-scope. That is not good news for the country as it celebrates its 250th birthday.
Excerpts from Judge Williams' opinion follow below. Citations omitted; emphases supplied.
The judicial power conferred by the Constitution grants the federal judiciary the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. A justiciable controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. Adverseness is essential to a federal court's ability to adjudicate the merits of a case where federal courts are restricted to questions presented in an adversary context.
[A]dverseness between litigants is a constitutional minimum that must be satisfied in every federal case seeking judicial determination. There is no Art. III case or controversy when the parties desire precisely the same result. Moreover, the adverseness requirement subsists through all stages of a federal judicial proceeding. With this principle in mind, a court must consider whether one party is actually and formally in control of the other party, and if so, adjudication may be refused….
The Texas Court of Appeals just upheld the order.
From Cash v. Cash, decided Thursday by the Texas Court of Appeals, in an opinion by Justice Tonya McLaughlin, joined by Justices Kevin Jewell and Maritza Antú:
After their divorce, Kimberly [Cash] asserts that Sammica [Cash] began posting personal, confidential, or humiliating information about Kimberly on her social media platforms to intimidate and harass Kimberly. Kimberly also alleges that Sammica revealed personal photos, sensitive personal information, and Kimberly's location information on social media….
[T]he trial court issued a protective order restricting Sammica from contact with Kimberly for five years and prohibiting Sammica from engaging in harassing or threatening conduct towards Kimberly….
In relevant part, the Code of Criminal Procedure authorizes the trial court to issue a protective order when the court finds reasonable grounds to believe that the respondent … "on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct" that, as relevant here:
- constitutes the offense of harassment;
- causes the other person … to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
- would cause a reasonable person to … feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.
A person commits the offense of harassment "if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another" that person "publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern[.]" The offense of harassment also includes the repeated sending of electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another….
Kimberly testified that she has received therapy for the domestic violence she says she experienced during her marriage with Sammica. During the relationship, Kimberly contends that Sammica tracked her Apple Watch data, mocked her on Facebook Live, and deployed third parties to locate her. She introduced a report from her therapist to establish Sammica's pattern of behavior.
From yesterday's Illinois Appellate Court decision in Grasso v. Mottl, decided by Justice Matthew Bertani, joined by Justices Linda Davenport and John Anderson:
Plaintiff, Gary Grasso, mayor of Burr Ridge [sued, alleging] … [opposing candidate Zachary Mottl and his campaign team] published three defamatory political mailers during a political campaign that stated he had defrauded the government in the amount of $36,000 in real estate tax exemptions.
The basis for the fraud claim originated from a research report of a third-party political research firm [America Rising] retained by defendants that indicated plaintiff had improperly received an annual $6,000 homestead exemption for a Du Page County residence while simultaneously receiving a homestead exemption for a Cook County residence. Accordingly, the $36,000 figure suggested plaintiff defrauded the government for a period of six years. However, the research report only supported a two-year overlap in homestead exemptions.
On appeal, plaintiff asserts the court erred in granting summary judgment for the defendants in that genuine questions of material fact exist regarding whether defendants were aware the mailers contained false information and whether defendants subjectively doubted the truth of that information. We hold that a triable issue exists as to whether defendants recklessly disregarded the truth in publishing the mailers, reverse the grant of summary judgment in their favor, and remand for further proceedings….
The narrow question presented in this appeal is whether the evidence of record supports that plaintiff has shown with convincing clarity that a reasonable jury might find defendants published the mailers with actual malice. In the light most favorable to plaintiff, we hold that such a triable issue exists.
[Defendant political strategist Collin] Corbett testified at deposition that defendants relied on the America Rising research report for the information they featured within the mailers. He and/or COR [Corbett's corporation] vetted that information by examining governmental records that corroborated the research report's findings concerning simultaneous homestead exemptions. In turn, defendants crafted and published the mailers. Corbett testified to his direct involvement in drafting [a mailer that included allegations] … that plaintiff had committed fraud in the amount of $36,000.
The research report indicates that plaintiff had an overlapping homeowner's exemption on his properties for a two-year period. A colorable argument may be made from the report that plaintiff received a total of $12,000 in improper homestead exemptions on his Burr Ridge residence. Corbett was unable to recall how defendants converted that information into a claim of fraud in the sum of $36,000. The research report in no way supports the notion that plaintiff received an improper exemption beyond the years 2016 and 2017. Corbett was unable to explain the "math" defendants used to formulate the $36,000 figure ….
The briefs in the transgender sports cases were styled as "By next friend" but the Court captioned the case as "By her next friend."
Every Supreme Court opinion begins with a caption. In most cases, the caption is mundane. But in some cases, the caption makes an important point. Sometimes, the court of appeals will style a case in one fashion while the petitioner styles the case in a different fashion. What is the rule? Does the Supreme Court defer to the lower court's styling of the case or to the Petitioner's styling of the case or to the Respondent's styling?
In July 2024, West Virginia filed a cert petition in a case styled, STATE OF WEST VIRGINIA, ET AL., Petitioners, V. B.P.J., BY NEXT FRIEND AND MOTHER, HEATHER JACKSON, Respondent. There was no female pronoun in the caption. It was "by next friend," not "by her next friend."
B.P.J.'s brief in opposition to cert, filed by the ACLU in October 2024, used the same caption, and did not include a female pronoun.
The Supreme Court's docket page included the female pronoun "her." The Internet Archive captured the page in early November, shortly after the BIO was filed. Again, this caption was set before the case before the case was conferenced.
Here, at least, the Court followed the Fourth Circuit's decision, which used the pronoun "her."
But both parties chose a caption that omitted the pronoun. And the Court disregarded that choice. Indeed, this choice truly matters. West Virginia's entire argument was that B.P.J. is not a she/her, but is a he/him.
The ultimate decision included the female pronoun.
Justice Kavanaugh's majority opinion avoided any female pronoun to refer to B.P.J. Likewise, Justice Gorsuch's concurrence avoided any female pronoun to refer to B.P.J. By contrast, Justices Sotomayor and Jackson in dissent repeatedly used female pronouns.
There is some history here. Back in 2017, the Supreme Court's clerk's office chastised litigants who refused to use the male pronoun in amicus briefs in Gloucester County School Board v. G.G. Ed Whelan described the controversy in a three-part series. At the time, the Clerk stated that parties were required to follow the name of the case as docketed.
Under that rule, the parties In B.P.J., were obligated to follow that proposed caption. But the parties did not follow that caption.
West Virginia's merits brief did not include a female pronoun.
And the ACLU's merits brief likewise did not include the female pronoun. I wonder if any of the lawyers noticed, or if they just copied the template from the earlier briefing.
In short, only the Supreme Court, and not the parties, included a female pronoun for B.P.J.
I emailed the Court's public information office, and received this response:
The Clerk's Office followed it's standard practice of using the caption language of the court of appeals.
I can think of at least one contrary example, Sossamon v. Texas.
As the case was litigated in the lower court, the defendant was styled as "The Lone Star State of Texas."
The cert petition, however, only listed the respondent as "Texas."
The Supreme Court's docket, and the ultimate decision, did not defer to the Fifth Circuit's ruling. Rather, the Supreme Court adopted the Petitioner's styling.
Fast-forward about fourteen years. The Fourth Circuit decides a case titled Planned Parenthood S. Atlantic v. Kerr. A cert petition was filed by ADF in a case styled as Kerr v. Edwards. ADF chose to name the case after Edwards, one of the Medicaid clients of Planned Parenthood. (One can imagine there were strategic reasons for doing so.) The brief in opposition filed by Planned Parenthood was styled as Kerr v. Planned Parenthood South Atlantic. Before the case was conferenced, the Court chose the style of the Fourth Circuit, and included Planned Parenthood as the lead respondent.
I welcome emails pointing out any other relevant examples.
7/14/1913: President Gerald R. Ford's birthday. He would appoint Justice John Paul Stevens to the Supreme Court.
What’s on your mind?
U.S. v. Baxter, decided today by the Eighth Circuit, upheld a conviction for "possessing a firearm as an unlawful drug user in violation of 18 U.S.C. § 922(g)(3). The Supreme Court's recent U.S. v. Hemani decision held that unlawful drug user (at least when the drug is marijuana) doesn't inherently strip away the user's Second Amendment rights, and thus concluded that some applications of § 922(g)(3) are unconstitutional. But it left open the question of what other applications might be constitutional:
We do not … address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant's use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.
Quoting that language, the Eighth Circuit concluded that Hemani didn't dispose of the case. And it held that Baxter's conviction was indeed consistent with Second Amendment. First, from the facts:
On May 21, 2023, gang members from two gangs—Strap and C-Block— began fighting in downtown Des Moines, Iowa. Baxter, a Strap gang member, was involved in this fight. When law enforcement attempted to break up the fight, the gang members ran in opposite directions, but resumed fighting 30 minutes later. The officers again approached, and Baxter and other Strap members chased the C-Block gang. As the officers were pursuing the chase, a bystander told them that Baxter had a gun.
The officers then confronted Baxter and asked what was in his pocket. Baxter responded, "nothing" and ran from the officers. He was apprehended shortly thereafter. The officers searched Baxter and found a loaded pistol and a baggie of marijuana on his person. The officers then obtained a search warrant to test Baxter's urine for the presence of controlled substances; the test confirmed the presence of THC or marijuana metabolites….
And from the legal analysis, by Judge Bobby Shepherd, joined by Judges James Loken:
We've already received several submissions, but you can submit until August 16.
Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O'Connor College of Law (ASU)
and the Hoover Institution (Stanford University)
Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars
Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?
If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that's already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O'Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.
We have funds to pay for transportation and lodging for the selected authors' trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.
Important progress has been made on repaying illegally collected tariffs. But serious problems remain, including some caused by the Trump Administration's efforts to keep some of the illegally collected loot.
My Cato Institute colleagues Scott Lincicome, Alfredo Carrillo Obregon, and Chad Smitson have a helpful post updating the situation on refunds for Trump's illegally imposed IEEPA tariffs. In February, the IEEPA tariffs were invalidated by the Supreme Court, in a case I helped bring and litigate (along with the Liberty Justice Center, and others). But before that happened, the Trump administration collected some $166 billion in illegally collected tariffs. As Lincicome, Obregon, and Smitson (LOS) explain, there has been important progress getting refunds for the importers who were illegally forced to pay, but serious problems remain:
Here's where things stand.
On February 20, 2026, the Supreme Court invalidated the tariffs that President Trump implemented last year under the International Emergency Economic Powers Act (IEEPA). As of June 29 (more than four months after the ruling), CBP has authorized $104.29 billion in refunds and paid out $71.06 billion (including interest). Based on our calculations of the total amount owed by the government as of June 29 (taking into account interest and payouts), the government still owes importers about $100.65 billion—more than half of the total owed…
CBP deserves credit for giving most eligible importers the opportunity to receive refunds—even if the process was not automatic. It's also good that CBP has now rolled out Phase 2 of its refund (CAPE) system, covering entriesflagged for reconciliation. Refunds could eventually climb to $130 billion of the $166 billion in IEEPA duties paid by importers (before interest).
Eventually.
Indeed, that only $71.06 billion of the approved $104.29 billion has actually been paid suggests that frictions built into the CAPE process are creating obstacles for importers seeking refunds. For example, CBP claims that refunds for 8,384 approved declarations have not been issued because the eligible importers lack proper automated clearinghouse or banking information.
Some of the slowness here is likely due to ordinary bureaucratic inefficiency. The federal government has never had to issue tariff refunds on such an enormous scale before. But some is also due to the Trump administration's efforts to try to keep some of the illegally collected loot. AS LOS note, the administration has appealed the injunction issued by Judge Eaton of the US Court of International Trade ordering payment of refunds to all importers who were forced to pay the illegal tariffs. At least when it comes to "finally liquidated" tariff entries, the administration claims they only have to pay refunds to those businesses that filed individual lawsuits seeking them.
In previous posts about the refund issue (see here and here), I explained why Judge Eaton was right to issue a universal injunction, even in the aftermath of the Supreme Court's ill-advised strictures against such injunctions in Trump v. CASA, Inc. (decided last year). Among other things, Trump v. CASA only applies to cases brought under the Judiciary Act of 1789 and its successors. The CIT's jurisdiction comes from a separate statute enacted in 1980.
As LOS also note, the refund process may be stacked against smaller importers, often making it difficult or impossible for them to get what they are owed.
Overall, it's good that many victims of the illegal tariffs are getting refunds. But it's a travesty that almost 60% of the money [now about 50%; see update below] still hasn't been repaid almost five months after the Supreme Court decision. Meanwhile, interest accrues on those illegal tariffs that haven't been repaid yet, and taxpayers will be on the hook for that additional money.
LOS go on to point out that my former colleagues on the IEEPA case, the Liberty Justice Center and Georgetown law Prof. Neal Katyal (who argued our case before the Supreme Court), have filed a class certification motion to initiate a class action seeking refunds for all those importers who paid IEEPA tariffs but are not currently eligible to get refunds under the system set up by the CBP.
I am not a class action expert. But I think such a class certification makes good sense. The proposed class seems to clearly meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, which include, 1) "numerosity" (the class is large enough to make joinder of all individual plaintiffs impracticable, 2) "commonality" (common questions of law and fact), 3) typicality (the claims of the class representatives litigating the case are typical of the class as a whole), and 4) "adequacy" (the representatives can adequately defend the interests of the class in court).
It is obvious the class is large enough, as it includes many thousands of businesses who paid the tariffs but cannot currently get refunds. The potential class members also have common legal issues (they all were forced to pay the tariffs, but cannot currently get refunds for similar reasons). The claims of those of my former clients who cannot get refunds are typical of others in the same situation. And, though I may be biased in favor of my former co-counsel, more objective observers cannot deny they are capable of litigating the issues more than adequately! LJC successfully litigated the IEEPA case from start to finish, and Neal Katyal is one of the nation's leading appellate litigators.
As a practical matter, it makes little sense to require each of many thousands of importers file individual lawsuits. It would be a huge waste of time and resources, and some claimants may not be able to afford it or figure out how to do it. But the government is opposing the class action certification, and we will have to see what appellate judges decide.
I've said it before and I will say it again here: the administration's recalcitrance in paying and the various bureaucratic difficulties in getting refunds even to those the administration admits should get them, are a reason why courts should not stay injunctions against illegal tariffs while litigation continues. That's what happened in our IEEPA case, and is how we ended up with over $166 billion in illegally collected tariffs (an amount that has since grown, given accumulated interest). In addition, even full repayment of illegally collected tariffs cannot make up for all the harm they caused, as there is no compensation for higher prices paid by consumers, lost sales caused by price increases, and a number of other harms to importers, consumers, and the US economy as a whole. Sadly, the US Court of Appeals for the Federal Circuit failed to learn these lessons when it comes to the current litigation over Trump's illegal Section 122 tariffs.
Thus, the tariff refund saga seems likely to continue, perhaps for many months to come. I tentatively expect that a large majority of the illegally collected tariffs will eventually be repaid, with interest. But some of the harm they caused cannot and will not ever be addressed.
NOTE: As I have previously noted, I am no longer a member of the V.O.S. Selections legal team, because my role ended after the Supreme Court issued its decision. Thus, I am not involved in the refund phase of this litigation.
UPDATE: Today, after I wrote this post, CBP submitted a new declaration to Judge Eaton of the US Court of International Trade, updating the refund data. They report that, as of July 10, $86.3 billion has been repaid and a total of $121.75 billion has been accepted for procession, up from about $71 billion and $104 billion, respectively, two weeks earlier. This is notable additional progress. But it still means that only about 50% of the total owed has been repaid. And additional interest accumulates every day. Moreover, as noted above, the administration continues to claim it should be able to keep at least some of the money.
UPDATE 2: I have made minor additions to this post.
From Judge Donald Middlebrooks (S.D. Fla.) in Ahmed v. Dist. Bd. of Trs. for Indian River State Coll., decided June 17 but just posted on Westlaw (appeal pending):
According to the First Amended Complaint ("FAC"), Plaintiff Syed Ammar Ahmed … is a practicing Muslim of Pakistani descent who served as an adjunct instructor at IRSC from 2019 until his termination on March 1, 2024. IRSC informed Plaintiff that he was being terminated based on a purported "security alert" indicating that he appeared on an "FDLE Homeland Security database" for "terrorist threats." Plaintiff alleges that no such database exists and that the allegation was false. IRSC's Chief of Campus Safety directed Plaintiff to a 2020 article by Joe Kaufman accusing Plaintiff of being an "Islamist," "racist," and "socialist," and referencing Facebook posts Plaintiff made as a minor between 2009 and 2013. Plaintiff alleges that IRSC relied on this article and anti-Muslim stereotypes in terminating him.
Plaintiff further alleges that internal IRSC emails obtained through a Florida Sunshine Act request show that by April 5, 2024, IRSC's Campus Safety office had "cleared" Plaintiff and concluded he posed no threat. According to the FAC, IRSC leadership drafted a reinstatement letter following this clearance but never sent it, and Plaintiff received no communication from IRSC for nearly five months.
Plaintiff alleges that this failure to reinstate him was not inadvertent. Rather, he asserts that Defendant [Timothy] Moore, the Chancellor of the Florida College System, personally intervened to prevent his reinstatement, directing IRSC officials not to send the reinstatement letter and insisting that the termination remain in place despite the internal clearance. Plaintiff further alleges that contemporaneous emails show IRSC administrators understood Moore to be closely monitoring the matter and seeking updates regarding Plaintiff's status.
Plaintiff alleges that a member of the Florida Board of Education brought the 2020 Kaufman article to Moore's attention, encouraged Moore to act on the article, and thereby played a role in initiating and perpetuating the action taken against him. Plaintiff contends that Moore acted on this encouragement and maintained the termination even after IRSC's own safety personnel determined that Plaintiff posed no threat.
Plaintiff was ultimately reinstated on August 28, 2024—within an hour of IRSC receiving Plaintiff's public records request seeking internal communications about his termination, the April 5 clearance, and the withheld reinstatement letter. Plaintiff filed his EEOC charge on February 20, 2025….
The court allowed plaintiff's constitutional claim to go forward:
Among other things, "Don't do things that shift work from lawyer to judge."
Good advice from Judge Joshua Wolson (E.D. Pa.) July 8 in Estate of Funkhouser v. Delaware County:
Lawyering requires care and attention to detail. No less an authority than Daniel Webster explained, "If he would be a great lawyer, he must first consent to become a great drudge."
A lawyer who comes to court and asks a judge to do something for his client has a professional obligation to take time to think carefully and in granular detail about the relief that he's requesting to make sure it's warranted. In addition, the lawyer should do his level best to make the judge's life as easy as possible. Make exhibits accessible. Prepare them in a way that makes sense. Review and comply with the judge's procedures. Don't do things that shift work from lawyer to judge. In short, think about a submission as a whole—whether it enables the judge to address it or whether it interferes with those efforts, and whether it conveys to the judge that a lawyer gave its preparation due care.
The lawyers in this case have fallen short of those obligations in connection with their submissions of summary judgment motions, a supporting statement of facts and exhibits, and a related motion to seal. They do not identify the specific documents they seek to seal or even which documents fall into the categories of information they seek to seal. They propose to seal categories of documents for which there could be no possible basis to seal. And they submitted a summary judgment record that is unnecessarily difficult for me to parse because they have submitted exhibits that are at the same time duplicative and needlessly disjointed.
The fact that these problems arise in the context of a motion to seal is, unfortunately, no surprise. Too often, lawyers treat those motions as an afterthought. The result is a submission that lacks detail about the reasons for sealing and the specific harm that would arise from disclosure of any particular piece of information.
Those failures leave me, as the steward of the public's interest in access to judicial records, to do work that the lawyers should have done to justify whether a document belongs under seal. That's what has happened in this case. It shouldn't be my job to do the lawyers' work for them, and so this opinion will call out the multitude of ways that the lawyers in this case have fallen short in their submissions.
A nice line from Daniel Webster, quoted by Judge Joshua Wolson (E.D. Pa.) July 8 in Estate of Funkhouser v. Delaware County. As Judge Wolson notes, this is because "Lawyering requires care and attention to detail."
The October 2025 Term of FantasySCOTUS finally came to a close. On the whole, this term was a one of the most predictable terms I can recall. In the aggregate, our crowd predicted 94.74% of the cases accurately, up from 76.36% of the cases accurately last term.
I am happy to announce that the Chief Justice is Kirill Muzyka. He is a repeat winner from last term. Players receive ten points for each correct prediction of a Justice's vote. We recorded 57 merits cases (DIGs do not count).
Here is the Top 10:
I usually ask the winner several questions to figure out their approach to predicting cases. Kirill's response was so thorough and insightful, that I reproduce it in its entirety:
As a reminder, I am Kirill Muzyka, originally from Russia and still living in London — though no longer as a student, but now trying to find a job. This term, partly because I had more free time, I spent even more of it following the Supreme Court — and occasionally wondering whether I should apply to a U.S. law school. In the meantime, I have also started a small media project in Russian, where I try to make the American political and legal systems more accessible to a Russian-speaking audience.
My approach to predictions remains broadly the same. I start with oral argument, make my first prediction based on what the Justices said there, and only then bring in background considerations such as previous votes or judicial philosophy.I prefer this mathod because many wrong predictions, I think, come from interpreting oral argument through a preexisting narrative. For example, I was puzzled by how many commentators seemed to think there was serious doubt about Justice Barrett's vote in Watson v. RNC. To me, she clearly telegraphed at argument that she was going to side with Mississippi. My guess is that the uncertainty came less from the argument itself than from background assumptions about the case and about her.
The current oral argument format makes this method more useful. Because each Justice now has extended time to ask questions, they usually have enough room to identify the concerns that actually matter to them. Some Justices are more transparent than others. Justice Jackson, for instance, often makes it possible to predict not only her vote, but almost the structure of her eventual opinion, based on her questions — or, really, her monologues. But the broader point is that the format gives close listeners a lot of information.
At the same time, this approach has real limits. Because I still do not usually read the briefs before making predictions, I sometimes miss nuances that are not fully visible from oral argument alone. The Justices may sound hostile to the broadest version of a party's theory, but still vote for that party on narrower grounds. Particular dispositions can also be hard to predict. My biggest mistake this term was Case v. Montana: based on oral argument, I thought the Court would vacate because the wrong standard had been applied, but it instead applied the correct one and affirmed. I had a similar problem in Pung v. Isabella County. It was clear the Justices would reject the petitioner's theory, as they did, but I was much less sure whether they would affirm or vacate.
There is also the familiar problem that Justices sometimes play devil's advocate. Justice Alito, for example, can be very aggressive toward a side he is usually unsympathetic to — criminal defendants, for instance — even when the case ultimately ends in a unanimous decision that he joins without writing separately. Abouammo and Ellin
gburg were two such cases this term. The Chief Justice and Justice Kagan also tend to ask hard questions of both sides, which makes them harder to read; that is how I missed their votes in Monsanto and Al Otro Lado, respectively. The Chief also speaks relatively little. I like to relisten to oral arguments after reading the opinions, to see how the argument translated into the final decision. Sometimes that makes the outcome much clearer in retrospect. But there are still missed predictions I cannot fully explain even afterward. I was almost certain Justice Kavanaugh would vote with the liberals in Saba, and after relistening to the argument I still think that was the most reasonable conclusion to draw from them. I was also very surprised by the unanimous result in Hemani: after the argument, it seemed almost certain to me that Chief Justice Roberts and Justice Alito would vote against Hemani, and quite likely that Justice Kagan would as well. Galette was another case that left me confused. After oral argument, I was certain that the Justices were divided, but the final decision was unanimous, with no separate writings. As I said last year, high-profile cases are often easier to predict, though not always. I was still very surprised by Justice Gorsuch's vote in Barbara and Justice Barrett's vote in Cook, where, based only on oral argument, they seemed inclined to vote the other way.
I am still working through all the final opinions. This year, I am trying to read not only the opinions themselves, but also some of the most relevant precedents. For example, with Slaughter, I also read Myers, Humphrey's Executor, Morrison v. Olson, and Seila Law, trying to understand the issue properly and decide what I actually think about it.
One broader conclusion I have reached from that is that the quality of judicial writing has improved enormously over time. The current Justices' opinions are much easier to read than many older ones. I also appreciate that most of them try to make their reasoning accessible, so that an educated non-specialist can understand what they are saying. As I said last year, I particularly enjoy the writing of Justices Kagan, Gorsuch, and Barrett. For that reason, I was a little sad that Justice Kagan did not write the dissent in Slaughter. With all respect to Justice Sotomayor, Kagan's dissent in Seila Law made a much stronger — and more fun to read — case against the unitary executive.
More generally, accessible judicial writing is one of the great strengths of the American legal system. Back home in Russia, judicial opinions are often close to unreadable, which makes it difficult for a bystander to follow the reasoning behind decisions (if such a reasoning exists at all). In most SCOTUS cases, by contrast, even if I have a strong view about the question or the outcome, I can usually understand why other Justices took a different path. I also greatly enjoy the Divided Argument podcast, which puts many of these debates in context and gives them useful perspective.
That said, it was disappointing to see so many cases divided along ideological lines. Those are the easiest to predict, but I generally find cases that do not split the Justices in the expected way more interesting, because they reveal more about each Justice's individual approach. When they do not simply vote with "their side," they show their own methods, instincts, and willingness to think outside the usual boxes. In many ideologically divided cases, by contrast, it can feel as though neither side is really questioning its own premises.
I hope next term brings fewer of those cases. In the meantime, I am looking forward to reading the remaining opinions over the next few weeks — and then, of course, to the start of the next term.
From Rowley v. Finstad, decided Friday by Judge Eric Tostrud (D. Minn.); I think this is correct—if people disapprove of such military aid, or what Israel is doing with it, their remedy is through the political process, not by trying to get a federal court to stop such aid:
In April 2024, the United States Congress passed a bill providing military aid to Israel. Plaintiffs are Minnesota residents and federal taxpayers who object to the legislation because they believe the funds support genocide in Gaza. They sue members of Congress from Minnesota and the former and current Secretaries of Defense seeking a declaration that the challenged law violates the Constitution, international treaties, and other federal law. They also seek an order enjoining the law's enforcement….. Because Plaintiffs have not plausibly alleged that they are directly injured by Defendants' conduct, they do not have standing to sue …
The Complaint raises two causes of action under the Constitution…. [One], brought against the Congressional Defendants, arises under the Taxing and Spending Clause and the Ninth Amendment … ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."). [Another is asserted] against the Defense Secretary Defendants, citing the previous constitutional provisions as well as Article VI of the Constitution and the Administrative Procedure Act…. They seek a declaratory judgment that the Act violates the U.S. Constitution, customary international law, and federal common and statutory law, and they request an injunction preventing Secretary Hegseth and any successor Defense Secretary from enforcing the Act….
At least that is so in California, a California appellate court holds
From Friday's decision in Del Biaggio v. Bansen, written by California Court of Appeal Justice Jeremy Goldman, joined by Justice Tracie Brown and Marin County Superior Court Judge Andrew Sweet:
Del Biaggio's opening brief does contain fictitious quotations, and not on tangential points…. In a declaration in support of his opposition to the motion, Floyd [Del Biaggio's lawyer] states that his office "uses generative AI" in a manner "consistent with State Bar guidance," with "protocols requiring human verification of all outputs using primary sources." He attributes the failures here to a "communication error," explaining that he added the quotations at issue during trial recesses in another case, and asked his paralegal to verify them but she understood he had already done so. He writes that he "deeply regret[s] any errors and affirm[s] they were not willful or AI-driven without review." The paralegal writes in her declaration that she verified all sources in a previous draft, but "based on a brief exchange" believed that Floyd had already verified his later additions to the draft.
First, even if the communication error had not occurred, Floyd's protocol would not comply with the State Bar guidance to which he refers. It provides that "a lawyer must review all outputs produced using AI tools for accuracy, including but not limited to analysis and citations to authority before submission to the court." (State Bar of California, Standing Committee on Professional Responsibility and Conduct, "Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law" (Practical Guidance), p. 9, italics added.)
We glean from Floyd's declaration that he used generative AI to make additions to the opening brief during trial recesses in another case without ever planning to review personally—or even to have any other lawyer review—the case law he added. Rather, he intended to have his paralegal simply check the citations before filing the brief. This plan would have been inappropriate even if it had not gone awry. (See Noland v. Land of the Free, L.P. (Cal. App. 2025) ["it is a fundamental duty of attorneys to read the legal authorities they cite in appellate briefs or any other court filings to determine that the authorities stand for the propositions for which they are cited"].)
7/13/1787: The Articles of Confederation Congress enacts the Northwest Ordinance.
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