Open Thread
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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
No First Amendment Right Not to Sell Bridal Outfit for Same-Sex Wedding
From N.Y. State Div. of Hum. Rts. V. D. Auxilly NYC LLC, decided today by New York appellate judges Sallie Manzanet–Daniels, Manuel Mendez, Barbara Kapnick, Bahaati Pitt–Burke, and Matthew Parker–Raso:
Complainant, at the time a Missouri resident, emailed D. Auxilly, a New York based business that produces and sells attire, including bridal outfits, to inquire about a bridal jumpsuit she had seen advertised on one or more of D. Auxilly's social media pages. Specifically, complainant requested information about payment options for the jumpsuit. Complainant also informed D. Auxilly that as her fiancé had "fallen in love" with it after struggling to find anything she liked, complainant wanted to purchase it for their upcoming wedding.
Dominique Galbraith, D. Auxilly's owner and operator, responded on behalf of D. Auxilly advising complainant of the payment requirements of the business but that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs. She also urged complainant and her fiancé to reconsider getting married….
The First Amendment does not shield D. Auxilly from liability for this discrimination. Unlike the baker in Masterpiece Cakeshop v. Colorado Civil Rights Comm (2018), D. Auxilly was not asked to design and create customized items which might constitute an "expressive statement." Nor was it tasked with creating a customized wedding website, as in 303 Creative LLC v. Elenis (2023). Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public. While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement. Neither would D. Auxilly's "speech" be compelled here by requiring it to sell the previously designed and marketed garment.
NY Health Commissioner Says "Mother Nature" Is Punishing Amish Children With Measles Outbreak
This is the sort of animus to religion that led to defeats in Fulton and Masterpiece Cakeshop.
Way back in May 2024, I wrote about Miller v. McDonald. Amish parents challenged New York's vaccine mandate on Free Exercise Clause grounds. In December 2025, the Supreme Court GVR'd the case in light of Mahmoud. Unsurprisingly, the New York courts thought Mahmoud changed nothing. The case is now back before the Supreme Court. A cert petition was filed on September 28.
The New York Times covered the case in an article titled, "Amish Families Pushed to Undo a Vaccine Law. Then Measles Arrived." The undercurrent of the article is that Amish children deserve to become sick because their parents did not vaccinate them. The New York Health commissioner made this point expressly:
In a petition filed on Sept. 28, the Amish asked the U.S. Supreme Court to force New York to grant religious exemptions to immunization rules, as most states do. A previous ruling gave the Amish reason to think they might have a chance at prevailing.
But then a wave of measles cases began sweeping through Amish communities. Gov. Kathy Hochul declared a statewide health emergency this month after more than 100 people fell ill with measles.
"Perhaps Mother Nature, by delivering a measles outbreak in New York's Amish community coincident with this case returning to the Supreme Court, is her not-so-subtle hint," said Dr. Howard Zucker, who was state health commissioner when New York eliminated religious exemptions.
If only the Amish people chose the state over their religion, and took the hint, they wouldn't have so many sick children! I am appalled by Zucker's arrogance and hostility to religion. He is stating that "Mother Nature" is sending a signal to the Amish that adhering to their religion is making children sick. In effect, nature is punishing the Amish for not submitting to Kathy Hochul.
Chief Justice Burger described this unique community in the Supreme Court's unanimous Wisconsin v. Yoder decision:
The history of the Amish sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century, who rejected institutionalized churches and sought to return to the early, simple, Christian life deemphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.
A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. Their conduct is regulated in great detail by the Ordnung, or rules, of the church community.
It is especially awful for Zucker to weaponize "Mother Nature" (capital letters) against a people whose life is devoted to "harmony with nature."
This is not the first time New York has accused insular religious communities of spreading diseases. In October 2020, then-Governor Andrew Cuomo shared a photograph of religious Jews congregating in close quarters as evidence they were spreading the disease. He said, "I'm going to say to the orthodox community tomorrow if you don't agree then we will have to close down your religious institutions." The only problem was that the photograph was from the 2006 funeral of Hassidic rabbi Moshe Teitelbaum. And the photo wasn't even from New York City. It was taken in the Orange County village of Kiryas Joel. This charge really isn't new. Jews were blamed for the spreading of the Bubonic Plague, among other pandemics.
The Times gestures at the religious reasons why the Amish oppose the vaccines:
But many Amish families regard vaccine mandates — and government intrusion in their schools — as a greater threat to the health of their community than measles. Their religion calls for adherents to live together in tightknit religious communities apart from the modern world and its influences.
"Our almighty God wants us to fully put our faith and trust in him, which is in conflict to put our trust in vaccines," Ezra Wengerd, an Amish leader who represents the 26 families that send their children to the three schools, told a judge in 2022.
The Amish have been practicing their faith for more than three centuries and have principled reasons to oppose vaccines. Indeed, the Amish have a far stronger case to object to vaccines than many people who made up their beliefs during the pandemic. Shame on the New York government for singling out this tradition in such hostile terms.
Zucker and others do not seem to know or care what it means to place faith in a higher power. Instead, Zucker thinks Mother Nature is seeking retribution against the Amish children.
Yet, perhaps we should be grateful. This sort of statement should feature prominently in future briefing. Indeed, Zucker demonstrates the sort of hostility we've seen in past victories for religious liberty. In the leadup to Fulton v. City of Philadelphia, a government official said that "things have changed since 100 yearsago," and "it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church." And in Masterpiece Cakeshop, a commissioner said "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust." These statements are prima facie evidence of religious hostility.
So thank you Mr. Zucker. You've made the odds of your state losing far greater.
People sometimes ask me whether I would ever want to live in New York again. The answer is 1000% no. This state consistently exhibits so much hostility towards people of faith. Here in Texas, some people object to posting the Ten Commandments on the wall of classrooms as some evidence of hatred. But no piece of paper can compare to the overt disdain towards traditional religions that people like Zucker and Cuomo demonstrate. So long as religious people get vaccinated and attend services on Zoom, they are in good standing with the government. But as soon as any person of faith deigns to disagree with elite opinions, then Gaia will seek vengeance.
These people are living in an episode of Captain Planet. (I cringe that as a child I absorbed this Turnerfied propaganda.)
The Ancient and Honorable Art of AI Hallucination
I'm delighted to be able to pass along this item from University of Chicago law professor Albert Alschuler:
Gemini Explains to a User (Me) Why Its Programming Produces Poppycock
I didn't mean to summon AI from the vasty deep. Professor Bradley A. Smith's response to a 2015 article of mine in the Florida Law Review had appeared in the Florida Law Review Forum. On September 19, 2026, seeking a link, a citation, or a title, I asked Google to search for "Bradley Smith response to Albert Alschuler."
Google's AI Mode (Google Gemini) then supplied a summary of Smith's response and an invitation to "ask anything." I accepted its invitation.
ME: Did Alschuler reply to Smith?
GEMINI: Yes, Albert Alschuler replied to Bradley A. Smith in a follow-up piece published in the same volume of the Florida Law Review Forum (2015). [Note: I hadn't replied. Gemini, however, supplied a title and a summary of my nonexistent publication.]
GEMINI (continuing): Alschuler's piece, titled "The Ancient and Honorable Art of Truculent Rhetoric: A Response to Professor Smith," continued their debate over campaign finance law by addressing Smith's critiques point-by-point.
Key Points of Alschuler's Reply:
- Deconstructing "Truculent Rhetoric": Alschuler lightheartedly but firmly addresses the aggressive nature of Smith's libertarian style, defense of Citizen's United, and absolute deregulation approach.
- Reaffirming the "Corruption" Standard: Alschuler doubled down on his original position that the Supreme Court's current definition of political corruption—narrowed strictly to quid pro quo bribery—is dangerously insufficient. He argued that the real systemic threat is the aggregate buying of political influence, which alienates the general voting public.
- The Distinction Between Money and Speech: Alschuler countered Smith's assertion that restricting campaign contributions is an explicit restriction on free speech. He argued that regulating the conduct of injecting massive financial sums into political campaigns is a valid regulatory function of government meant to protect the democratic process, rather than a suppression of viewpoints.
No Liability for Scientific Publisher (Elsevier) in Defamation Lawsuit by Air Purifier Company
From Judge Kenneth Bell (W.D.N.C.) today in Global Plasma Solutions, Inc. v. Elsevier Ltd Inc.:
In this action, now spanning over four and a half years and nearly 400 docket entries, Plaintiff Global Plasma Solutions, Inc. ("GPS") contends that its air purifier business was greatly harmed by a defamatory article published in Building and Environment ("BAE"), a scientific journal owned by Defendant Elsevier …. Specifically, GPS alleges that several critiques of its "bipolar ionization" technology were false and Elsevier's advertisement of BAE's articles as "peer reviewed" violated the Lanham Act….
The law provides strong protection for scientific inquiry and debate on matters of public concern. This includes the allegedly defamatory article, which was published in March 2021 at the height of the COVID-19 pandemic when air purification technologies were under intense scrutiny.
Because the Court finds that GPS was a limited purpose public figure with respect to the safety and efficacy of its bipolar ionization technology and cannot establish by clear and convincing evidence that Elsevier published the article with "actual malice," Elsevier is entitled to summary judgment on GPS's defamation claim. Similarly, a reasonable jury could not find that Elsevier is liable for false advertising under the Lanham Act, where there is insufficient evidence that a substantial portion of the intended audience would be misled by the truthful statements that the article was "peer reviewed" or that an Elsevier advertisement was a proximate cause of GPS's claimed diminution in its corporate value….
What Happens to Representative Ilhan Omar's Congressional Seat if the United States Files Suit to Denaturalize Her?
[This post was co-authored with Professor Seth Barrett Tillman.]
There have been many news reports suggesting that the United States Department of Justice may pursue denaturalization proceedings against Representative Ilhan Omar. These proceedings can take the form of a civil suit under 8 U.S.C. § 1451. The United States may also bring a criminal indictment under 18 U.S.C. § 1425. While the criminal statute has a ten-year statute of limitations, the civil statute does not have any statute of limitation. Moreover, the civil statute requires a lower burden of proof: "clear, convincing, and unequivocal evidence which does not leave the issue in doubt." The civil proceeding also does not afford the defendant a jury trial. USCIS and Congress.gov have published detailed analyses of how denaturalization operates.
Here, we do not opine on the merits of a potential civil or criminal denaturalization proceeding against Omar, or what sorts of procedures and defenses she would have access to. Instead, we intend to explain what would happen to her congressional seat in light of denaturalization proceedings.
We start with the relevant constitutional text. Article I, Section 5, Clause 1 provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (emphasis added) And Article I, Section 2, Clause 2 provides that "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
Since the beginning of the Republic, there have been challenges as to whether a member-elect has the requisite years of citizenship. Professor Derek Muller's entry in The Heritage Guide to the Constitution (3d) on the Judge of Elections Clause explains two historically noteworthy challenges to qualifications:
In the decades after the Founding, both houses of Congress routinely judged the elections, returns, and qualifications of their members. One early and contested instance arose in 1793. The Pennsylvania legislature elected Albert Gallatin to the [United States] Senate. Gallatin, a member of the [Jeffersonian] Democratic-Republican party, was a rival of Alexander Hamilton, a prominent Federalist. Doubts arose about Gallatin's eligibility for the Senate. He was born in Switzerland and had resided in the United States for thirteen years. But it was unclear whether Gallatin had been a U.S. citizen for the requisite nine years. Two Senate committees dominated by Federalists found against Gallatin, and he was barred from the seat. . . .
A[] notorious contest during Reconstruction came from the election of Hiram Revels [in 1870], the first black Senator. Opponents first charged that his election was improper because the governor of Mississippi who signed his certificate of election was only the provisional governor and therefore not authorized to certify the legislature's selection of Revels. Challengers also claimed that Revels was not "nine years a citizen" because he was not a citizen under the Supreme Court's decision in Dred Scott until the ratification of the Fourteenth Amendment in 1868 [and so Revels was only a citizen between 1868 and 1870]. Defenders noted that Revels had previously resided in Ohio, where he had voted in that state and must have been a citizen. In the end, the Senate seated him over the objection of a few Democrats.
For the sake of argument, let us assume that the United States initiates civil denaturalization proceedings before the new Congress meets in January 2027. This procedure would certainly take some time, and it may not even reach a final judgment (up to the resolution of certiorari) during the duration of Omar's (likely) elected two-year term. Still, absent a final judgment, we sketch out several possible issues.
First, could the House of Representatives determine that Omar lacks the qualifications to be a member of Congress (i.e., a citizen for seven years) in the absence of some judicial finding by a federal district court? The answer is "yes." The House of Representatives is a coordinate branch of government that can make its own determinations of fact when seating a member. The Constitution empowers the House to determine if a member-elect is a citizen and for how long he has been a citizen. There is no need to wait for a federal court to rule on the matter. No such prior judicial proceedings occurred in the case of Albert Gallatin. That question and its answer, we think, should not be controversial.
Second, could the House of Representatives judge Omar's qualifications in the middle of her elected term? Or, can those qualifications only be judged at the time when she is seated? We think it is reasonable to suggest, based on the text, that qualifications should only be determined at the outset of the new Congress, or when a member is first admitted and allowed to take her oath, but we admit there is no definitive answer here. The alternative view is that a member must have the requisite qualifications over the entire course of her elected term, and her house always retains the ability to adjudicate those qualifications if an objection is raised by another member. In these circumstances, a member could simply raise an objection to Omar's qualifications and seek a roll call vote. If determinations about qualifications continuously require a mere majority, as they do at the start of a two-year congressional term, then a mere majority might effectively "expel" Omar. On the other hand, it might be argued that where a mid-session disqualification vote has the effect of expulsion, then a two-thirds vote is required. We are not aware of any congressional precedents that provide clear analogues or guidance on this point.
Third, what happens at noon on January 3 when the new Congress meets? At that juncture, a member could raise an objection to Omar's qualifications. And under established House precedents, Omar would be asked to "step aside" until her qualifications are settled. The potential chaos that could follow is ably described in an excellent article by Professor Brian Kalt:
NYT Interviews Me About "A Double Standard For 'Conservative' and 'Liberal' Labels?
"Josh, I think there’s real truth to your critique and it’s something we need to do a better job on."
Back in February, I submitted a letter to the editor of the New York Times objecting to how I was often labelled as a "conservative" even as liberal law professors did not receive that label. The Times did not publish the letter, so I posted it on the blog. I thought that was the end of the matter, but I was wrong. Patrick Healy, is the assistant managing editor for Standards and Trust, reached out to me. He was starting a newsletter and podcast that responds to reader concerns. We spoke for about fifteen minutes about this issue.
That interview has now been posted here. It begins this way:
PATRICK: So Josh, you reached out after The Times twice described you as a, quote, conservative, end quote, law professor. And you said the conservative label was accurate, but that The Times applies labels like conservative and liberal inconsistently to law professors and analysts, and that a scholar's view should speak for itself. I'd welcome you unpacking that.
JOSH: Sure. This has been a longstanding grievance of mine, and not just against The Times, against all the major media outlets. I'll frequently talk to a reporter and they'll say something like, "How would you identify yourself?" And they're not asking for my pronouns. They're trying to get at my politics. And sometimes I'm of course like, you know, "I'm a law professor." And they say, "Well, how do you characterize yourself?" It's like, "Well, I'm a constitutional law professor," and I know what they're getting at. Eventually I just say, fine, if you want to call me conservative, you can.
And I suspect the reason why they do this is to give their readers sort of a grounding of where I'm coming from. And if this was sort of a neutral policy that's applied across the board, I wouldn't have much ground to object, but I find that it's not.
Back in February of this year, I was quoted twice in The New York Times back to back in the span of 24 hours, which is, you know, pretty cool. But I sort of noticed that both of the references were to Josh Blackman as a "conservative" law professor. And I just thought that was strange. So I went through the Westlaw archives and just sort of searched for "liberal" law professors and "conservative" law professors in the New York Times database, and it was far more likely that you're identifying a conservative than a liberal. And those numbers are stacked because liberals are quoted even more often. So the numbers even have a greater disparity.
And this sort of reinforces, I think, a perception that both the academy and frankly the media views a liberal position as a neutral position. And the conservative position is the other, the outlier. And that's why you have to have this sort of nomenclature, this sort of adjective to describe it. So I wrote a letter to the editor back in February. You did not publish it. OK. That's your prerogative, but I do appreciate the chance that you reached out to me and I'm glad to talk with you about it right now.
PATRICK: Yeah. Josh, I think there's real truth to your critique and it's something we need to do a better job on. It's kind of exactly what you said in terms of why we do it. We're trying to give readers more factual context about who's speaking or why their views rise to the level of a story. Sometimes it's notable that it's a conservative legal scholar criticizing President Trump's politics more than it might be surprising that a liberal is doing that.
Read the whole interview. I thought Healy was very fair. I hope journalists at the Times and other outlets give more consideration to this issue.
It's been a busy week for the mainstream media. I was also interviewed by NPR for All Things Considered about the Supreme Court publisher recusals.
Switchblade Ban Violates Second Amendment, Fifth Circuit Holds
From Knife Rights, Inc. v. Blanche, decided yesterday by Fifth Circuit Judge Jennifer Walker Elrod, joined by Judges Don Willett and Cory Wilson:
This case presents a Second Amendment challenge to the Federal Switchblade Act (FSA)'s restrictions on switchblade knives. {Section 2 of the FSA, codified as 15 U.S.C. § 1242, … place[s] a fine of up to "$2,000 or imprison[ment] not more than five years, or both" for anyone who "knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife."}
Applying the framework articulated in New York State Rifle & Pistol Association, Inc. v. Bruen, we hold that the FSA is unconstitutional. We determine that switchblade knives qualify as "Arms" and are covered by the "plain text" of the Second Amendment. Because the regulation implicates the amendment, the government bears the burden of establishing that the FSA comports with well-established principles of the Second Amendment and its regulatory tradition. The government fails to meet its burden. Specifically, the FSA's restrictions on the introduction, manufacture, transportation, and distribution of switchblades fail step two's "how" analysis….
Anti-Transgenderism/Anti-Homosexuality Activist Ordered to Stop Talking About Local Therapist/Pride Activist
The Minnesota Court of Appeals just upheld the order.
From Butler v. Lipscy, decided Monday by Minnesota Court of Appeals Judge Keala Ede, joined by Judges Diane Bratvold and Jon Schmidt:
Butler alleged that Lipscy engaged in acts of harassment targeting Butler and her children, including: following, monitoring, or pursuing Butler; making unwanted visits to Butler; frightening Butler with threatening behavior; taking pictures of Butler without permission; and using social media to harass Butler….
The facts, according to the appellate court's summary of the trial court findings, were this:
At the time the district court issued the HRO, Butler was a licensed marriage and family therapist who served "historically marginalized communities." This included members of "the Queer community," which Butler defined as "the Two Spirit (2S)/Gay/Lesbian/Bisexual/Transgender/Intersex/etc. community as a whole and individually." Butler was also "active in her local Itasca Pride board and community as a volunteer and current board member." She has three children, one of whom is "non-binary."
Lipscy held "Christian beliefs" that she posted about on the internet. And Lipscy administered a webpage called "Grand Rapids Rant."
Itasca Pride held a festival on June 23, 2024. Before that event, Lipscy posted on the internet about a public gathering called, "Protect the children from Pride/Drag show and Walk with Prayer," which Lipscy scheduled for the same date, time, and location as the Itasca Pride Festival. Before the events occurred, Lipscy wrote on the internet: "But if you cause one of these who trust in me to fall into sin, it would be better for you to have a large millstone tied around your neck and drowned in the depths of the sea. #BeTheirVoice Matthew 18:6." Lipscy also used the internet to encourage people to attend and to wear white shirts in opposition to Itasca Pride and in celebration of "traditional family values." At the June 23 Itasca Pride event, Lipscy took pictures of Butler's children, and Butler's husband told Lipscy to stop.
Today in Supreme Court History: October 22, 1915
10/22/1915: Hadacheck v. Sebastian argued.
Open Thread
What’s on your mind?
COVID Vaccine Skeptic Alex Berenson's Lawsuit over Termination of His Twitter Account Thrown Out
From Berenson v. Gottlieb, decided yesterday by Judges Pierre Leval, Richard Wesley, and Joseph Bianco:
Plaintiff-Appellant Alex Berenson … is an independent journalist and author of a book about the COVID-19 pandemic. Berenson was an active Twitter user during the COVID-19 pandemic, posting about, inter alia, "the public policy response to COVID-19 and the vaccines." See also Appellant's Brief (describing Berenson as "a vocal critic of the public policy response to COVID-19, questioning the underlying evidentiary basis for business and school closures"). Berenson's Twitter follower count rose from approximately 7,000 in January 2020 to more than 229,000 by March 2021. Berenson alleges the existence of a conspiracy by the Biden Administration and Pfizer executives "to pressure Twitter to suspend [his] account and mute his voice as a leading COVID-19 vaccine skeptic." …
In May 2020, Twitter announced that it may append labels or warning messages to tweets related to COVID-19 misinformation. Berenson tweeted that he was "concern[ed] about what the new rules might mean for free speech on [Twitter]." In response, Twitter's Vice President of Global Communications Brandon Borrman contacted Berenson to discuss the new policy.
In December 2020, Twitter announced a new policy with respect to COVID-19 vaccine misinformation, stating that it would start to "remove Tweets which advance harmful or misleading narratives about COVID-19 vaccinations." Berenson contacted Borrman, "looking for assurances that Twitter would continue to allow his reporting on COVID-19 vaccines." Borrman allegedly responded that the "points [Berenson was] raising should not be an issue at all," and that Berenson should reach out if he "r[an] into any issues."
On March 1, 2021, Twitter announced a "five-strike policy" to combat COVID-19 misinformation. Accounts that received strikes were subject to increasing levels of discipline: the first strike resulted in a warning, the second and third strikes each in a 12-hour account lock, the fourth strike in a 7-day account lock, and the fifth or successive strike in permanent suspension. The policy provided that, if a user "believe[s] that [their] account was locked or suspended in error, [the user] can submit an appeal."
Prosecution for Threatening to Cut President's Face Off and Feed It to Stray Dogs Can Go to Jury
U.S. v. Santiago, decided Monday by Judge Chad Meredith (E.D. Ky.), involves this Instagram post:
"The Three Words That Explain American Government: 'Right to Sue,'" by Stanford Law Prof. Diego Zambrano
I read and much enjoyed—and highly recommend—my Stanford colleague Diego Zambrano's book, How Americans Enforce the Law. He was kind enough to write up for us this post that captures the core of his argument, and I'm delighted to pass it along (though I encourage people to read the whole book):
The headlines are full of stories about a federal government retreating from enforcement. Agencies are dropping investigations, abandoning regulations, shrinking staffs and changing enforcement priorities. One week, the EEOC drops discrimination cases. The next week, the SEC and CFPB wind down investigations into securities fraud and wrongdoing affecting consumers. Critics fear that the Department of Justice's antitrust division will overlook mergers when it is convenient for the administration. And the DOJ has abruptly reduced enforcement of the Foreign Corrupt Practices Act. Facing these changes, Americans might worry that a wide range of laws will go unenforced.
But that concern misses something unique about the American system of government. We have never relied only on bureaucrats to enforce our laws.
All the way back to the colonial period, American legislators have repeatedly done something unusual: they have given ordinary people the right to sue alongside government officials. In almost every regulatory area that most Americans care about—be it regulation of wages and hours, environmental pollution, consumer protection, or securities fraud—statutes allow both government officials and private parties to file suit to enforce the law. All of this happens through little-known provisions called "private rights of action," which is just a technical name for a right to sue. Thousands of these provisions build a second enforcement system alongside the bureaucracy, turning employees, consumers, competitors and their lawyers into co-enforcers of public law.
This system of private enforcement of the law is highly unusual. In much of the rest of the world, whenever a government faces a regulatory problem, it typically empowers government officials and bureaucrats to police legal violations. In France, Germany, Japan, and even the UK, legislators are far less likely to let anyone sue over, say, environmental pollution or employment discrimination.
Skrmetti, Mahmoud, and B.P.J v. Bostock and Kingdom
The Court seems concerned enough about transitioning children but not adult (prisoners).
This year, the Bureau of Prison determined that "sex-trait-modification surgeries, hormone interventions in general, and social accommodations could no longer be justified as treatment for gender dysphoria." The lower court enjoined this policy, and the Solicitor General sought an emergency stay. Today the Supreme Court denied a stay in Trump v. Kingdom by a 7-2 vote. Justices Thomas and Alito noted they would have granted the application, though there was no written opinion.
I have some thoughts.
First, just yesterday Justice Kagan noted that the Trump appointees rule against President Trump as proof that they are not hacks. And she surely knew this case would come down as further proof of this point. Kagan's point seems to be that ruling against the President that appoints you makes you a fair justice. That premise is only true if in fact that law does not support the appointing President's policy. If a Justice simply rules against the President who appoints him for the sake of optics, then the Justice is no longer a judge.
Justice Alito made this point well in his new book, summarized in the Wall Street Journal.
Insecure originalists may worry that they are subconsciously engaging in "judicial activism" in the service of their own policy preferences. As a result, they may welcome occasions when their originalist analysis leads to results they dislike. They experience a brief catharsis, a release of their anxiety about succumbing to temptation.
Twenty-first-century originalists should shed this insecure mindset.
I wonder if Justice Alito thinks that Justice Scalia's constant praise of his vote in Texas v. Johnson was evidence of this "catharsis." Justice Kavanaugh used to praise the Nixon appointees who ruled against Nixon in the Watergate Tapes case. That premise reinforces the wrong image. I've come to believe that United States v. Nixon was a travesty, and the Justices who joined that were caught up in the Watergate swamp fever. The decision has not held up well over the past five decades.
Let's stop praising how often the Trump appointees rule against Trump. The more useful metric, in my view, is when the Court's two most conservative members (Thomas and Alito) are alone in dissent. I updated my wall of receipts in July 2026 as a recent accounting.
Second, how do we reconcile Mahmoud, B.P.J., and Skrmetti on the one hand and Bostock and Kingdom on the other? For sure, all of these cases presented different legal issues. Mahmoud was a Free Exercise challenge, Skrmetti presented an Equal Protection issue, B.P.J. was about Title IX, Bostock was an interpretation of Title VII, and Kingdom was an APA challenge on the interim orders docket. Yet all of these cases were really about transgender rights. Back in April I wrote that the transgender tide was turning. Was I wrong? Why did all of the recent cases turn out one way but Kingdom turns out the other?
Well, the Court is certainly concerned about transitioning children. They upheld bans on gender transition surgeries in Skrmetti. They required opt-outs from transgender-related indoctrination in Maryland public schools. (Had the story books been only about gay marriage, I don't know that the case would have come out the same way.) The Justices allowed the exclusion of biologically male athletes from female sports. I could add to that list Mirabelli v. Bonta, which prohibited schools from secretly transitioning children.
It's possible that Justice Gorsuch simply saw the light after Bostock, but maybe there is another explanation: he cares more about children than he cares about transgender rights. So his equities tilted to the right. But in a case where adults seek this treatment, Gorsuch cut the other way. Moreover, when those consenting adults are prisoners, Justice Gorsuch's equities are far clearer. For a libertarian, how could the carceral state deny this treatment to incarcerated persons who can't go elsewhere to get it?
Third, I'm struggling with Justice Kavanaugh's position here. He had a free vote, as the split was 7-2. He could have at least written a separate opinion explaining why relief was not appropriate here, but when the case returns on the merits, the outcome may be different. He does that sort of thing all the time in far less controversial cases. But here, we only have the sound of silence. I think he is signaling the government loses on the merits here. Maybe he suspects Trump will be out of office by the time this case returns to the Court, and the policy will be abandoned.
Fourth, I'm sure Justice Barrett figured out some procedural reason why the federal government must remove healthy reproductive organs from prisoners. That is, unless she agrees with the Respondent's arguments that BOP's position is "pretextual and [was] reverse-engineered to implement" President Trump's order. So we're back to pretext, and trying to divine the President's real motivations. Trump v. Cook established that Trump does not get the presumption of regularity. Barrett dissented in that case, through she may not disagree with the broader premise.
Fifth, the application was filed on September 28, briefing concluded on October 9, and the order was issued on October 21. What took so long if this was a straight-up denial without any writings? I suspect that Justices Alito and Thomas were hopeful they could scrounge more votes but could not. Maybe they even circulated a dissent but withdrew it. Something behind the scenes happened here. If only we knew what happened? Thankfully reporters at CNN and the New York Times are no longer able to otbain leaks. The best they can do is ask KBJ's friends for comments and interview the Chief's neighbors in Maine.
Body Armor Ban Struck Down by N.Y. Federal Court
From today's decision by Judge John Sinatra (W.D.N.Y.) in Heeter v. James:
New York enacted a first-of-its-kind law prohibiting law-abiding residents-who are not engaged or employed in an eligible profession-from purchasing body armor for self-defense. New York enacted this legislation "to further strengthen gun laws." New York's body armor legislation, however, violates the Second Amendment….
In D.C. v. Heller (2008), the Court made it clear what the term "Arms" meant when the Second Amendment was ratified. In explaining that "[t]he 18th-century meaning" of the term "Arms" is "no different from the meaning today[,]" the Court quoted multiple dictionaries from the Seventeenth Century. Specifically, "[t]he 1773 edition of Samuel Johnson's dictionary defined 'arms' as '[w]eapons of offence, or armour of defence.' 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined 'arms' as 'any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.' 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989).'' As a result, this Court is bound by Heller's textual analysis, which demonstrates that the word "arms" included armor at the Nation's founding (as it does today)….
The State submits that, during the Founding Era, armor "had become rare or even entirely obsolete in everyday American English" and "the protective leather gear of th[e] pre-Kevlar era was notoriously ineffective against bullets, meaning civilians did not typically wear such body protection either." This argument runs headlong into the definitions adopted by Heller, nevertheless indicating that the term "arms"—as it was defined in the Founding Era—included defensive body armor that (according to the State) was supposedly rarely utilized in 1791.
Rezoning Request for Catholic Shrine May Have Been Denied Because of Shrine's "Pro-Life Message"
From Judge Stephanos Bibas, joined by Judge Tamika Montgomery-Reeves, in Monday's Holy Trinity Ukrainian Catholic Church v. Township of Collier:
Holy Trinity is a Ukrainian Catholic parish outside Pittsburgh. It practices the Catholic faith, but with rituals and architecture that are distinctively Ukrainian. The parish owns two plots of land. On one of them, in Carnegie, sits a church, where it holds regular liturgies. The other plot, in nearby Collier Township, has been owned by the parish for more than seven decades. That 41-acre plot houses the parish's cemetery and mausoleum but is otherwise mostly wooded.
About three years ago, Holy Trinity's pastor felt called to turn the second plot into a shrine, a pilgrimage destination for faithful to gather from "near and far." The shrine would "honor Mary, the Mother of God, and would pay homage to the sanctity of life." With the help of lawyers, architects, and traffic consultants, Holy Trinity designed the shrine. It envisioned a 13,000-square-foot chapel with gold domes, a bell tower, a museum, a gift shop, and a retreat center.
But the plot is constrained by Collier Township's zoning code. The code divides the township into districts, each of which allows certain types of buildings. The northern, wooded half of the plot lies in a planned-economic-development district, allowing larger projects like business offices, amusement parks, or country clubs. The southern half is in a rural-residential district, allowing farms and single-family homes. Neither district contemplates shrines.
The zoning code is enforced by Collier's five-member Board of Commissioners. The Board has power not only to rezone land or amend the code, but also to approve or deny some building projects, because the code makes some land uses conditional. For instance, the code conditionally allows new churches in rural-residential districts, but only if the Board approves them. In any event, anything as big as Holy Trinity's shrine needs the Board's approval.
Today in Supreme Court History: October 21, 1919
10/21/1919: Abrams v. United States argued.
