The Volokh Conspiracy Archive

The Question Presented from the petition, which the Court just granted:

The "interest of parents in the care, custody, and control of their children[] is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville (2000). But that right is mere rhetoric if federal judges bar parents from court via a miserly interpretation of standing doctrine—a question, as three Justices recently recognized, that is of "great and growing national importance." Lee v. Poudre Sch. Dist. R-1 (Alito, J., statement).

It is certainly important to Petitioners, who are parents of gender-confused children (including one child who previously ran away) and who do not wish to affirm that confusion. They challenged Washington laws designed to give runaway minors "gender-affirming treatment" without parental notice or consent. But despite their being the challenged laws' target, and despite their alleging specific current harms and a substantial risk of specific future harms to their ability to parent, the Ninth Circuit held that Petitioners lacked Article III standing.

The question presented is:

Whether parents have standing to challenge a law or policy that deliberately displaces their decision-making role as to "gender transitions" of their children, and in so doing creates present and likely future impediments to their ability to parent their children as they deem best for them.

And from the State's response, which urged the Court not to grant review:

My predictions from last Thursday panned out well.

The Chief Justice wrote the majority opinion in both Cook and Slaughter. There was't much of a surprise here. Yet, I still cannot believe I lived to see the day that Humphrey's Executor was overruled. Somewhere, Justice Scalia is smiling.

I predicted that Justice Kagan would write Chartie. Justice Alito still seems upset about Carpenter.

I also predicted that Justice Barrett would write Watson, though I wasn't sure how she would vote. It turned out she voted opposite the conservatives.

Back in June 2022, I think I was the first person to write about the so-called 3-3-3 Court, though other have picked that term up. Yet, that framing didn't hold very long, if it ever did. This term has fractured that idea.

There are four remaining cases.

The Chief Justice clearly has birthright citizenship. He will save it for the last hand-down of the term, so he can rule against the President and signal to the world how non-political the Court is just in time for Independence Day.

I have long thought Justice Alito would write NRSC v. FEC. From the December sitting, only Alito and Sotomayor have not yet written. I think it extremely unlikely Sotomayor has this majority opinion.

Given that the Chief wrote Cook, I think it is unlikely that he also wrote both transgender athletics cases from January. They could go to Gorsuch, Kavanaugh, or Barrett. However, Gorsuch and Barrett both already have seven opinions for the term. I doubt they have these two huge cases. Justice Kavanaugh only has four opinions for the term, so I think he gets them both, bringing his total to six. The wildcard is that Kagan hasn't written for January, and has only six for the term. If Kagan swung right, maybe the Chief assigned her the case. I'm doubtful. Coach Kavanaugh has the sports cases.

Today the Supreme Court issued its long awaited decisions in Trump v. Slaughter and Trump v. Cook, two cases concerning the ability of the President to remove agency officials. The Chief Justice wrote for the Court in both cases, and the results in each case were what was generally expected.

In Slaughter the Court overruled Humphrey's Executor, and held that the heads of agencies exercising significant executive power must be removable at-will by the President. This means the President can remove members of the Federal Trade Commission and other multi-member agencies previously considered to be "independent agencies." The vote was 6-3 along ideological lines. Justice Sotomayor wrote the dissent.

In Cook, the Court denied President Trump's application for a stay preventing him from removing Cook from the Board of the Federal Reserve for cause. In the process, the Court rejected the argument that the President's allegation of cause was unreviewable and concluded that the statutory requirements for removal were not satisfied. Even though the underlying constitutional question was not presented to the Court, it went on to hold that the for-cause protections for members of the Federal Reserve are constitutional. Tjhe Court split 5-4. The Chief was joined by Justices Sotomayor, Kagan, Kavanaugh, and Jackson. Justices Thomas, Alito and Barrett each authored dissents (with Gorsuch joining Justice Alito). Justice Thomas was alone in arguing that the removal protections for the Federal Reserve are unconstitutional.

From today's dissent from the denial of certiorari in Dershowitz v. CNN, Inc., written by Justice Thomas, joined by Justice Gorsuch:

Alan Dershowitz sued respondent, a major news network, alleging that it defamed him. Because Dershowitz is a "public person," our precedents required him to prove not only the elements of common-law defamation, but also that the network acted with "actual malice." See Gertz v. Robert Welch, Inc. (1974). Predictably, Dershowitz did not prevail under that exacting standard, which this Court created in New York Times Co. v. Sullivan. Dershowitz now asks this Court to overrule Sullivan and related precedents.

The "actual malice" standard for public figures "bears 'no relation to the text, history, or structure of the Constitution.'" Berisha v. Lawson (2021) (Thomas, J., dissenting from denial of certiorari); see also Gertz (White, J., dissenting); case below (Lagoa, J., concurring). Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby (Thomas, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice standard for public figures. See, e.g., Berisha (Gorsuch, J., dissenting from denial of certiorari); Tah v. Global Witness Publishing, Inc. (D.C. Cir. 2021) (Silberman, J., dissenting); Gertz (White, J., dissenting). I would have granted certiorari to do so in this case.

The opinions are here.

As I noted this morning, on Wednesday the Ninth Circuit allowed a religious discrimination claim against Alaska Airlines to go forward. The plaintiffs (Marli Brown and Lacey Smith) were Christian flight attendants who were fired for objecting on a company-run intranet to the company's statement in favor of a federal ban on sexual orientation and gender identity discrimination. (The case is Brown v. Alaska Airlines, Inc., written by Judge Daniel Bress and joined by Judge Kenneth Lee and, in large part, by Judge Morgan Christen.)

But the plaintiffs also sued their union, the AFA (the Association of Flight Attendants-CWA AFL-CIO), for religious discrimination. And the panel also unanimously allowed that claim to go forward. First, a bit of the factual allegations:

While drafting the company's response [to the two plaintiffs' posts], Andy Schneider, Alaska's Senior Vice President of People, coordinated with AFA Master Executive Council President Jeffrey Peterson. The AFA Master Executive Council is the main governing body for AFA's membership at Alaska. As Master Executive Council President, Peterson was the executive officer in charge of administering the collective bargaining agreement between Alaska and AFA. Peterson had substantial communications with Alaska about plaintiffs' posts on Alaska's World as the company was contemplating its response and disciplinary actions against the plaintiffs….

Peterson, the AFA Master Executive Council President, separately sent an email to his AFA colleagues expressing dismay about Smith's post. Referencing Smith, he wrote, "Employees get to be bigots in their private lives and to express their bigoted and misinformed opinions while not at work—as horrifying as that may be." He added that "the post is reprehensible and there should be repercussions." Peterson also told others at AFA that "this will be an ongoing and evolving conversation with management over the next couple weeks."

Peterson separately texted "I hate her" (referring to Smith) to a friend who was an Alaska pilot. He also texted Toni Monroe, an Alaska employee, that Smith's post was "bullshit" and that "Mngmt needs to send [Smith's] bigoted ass packing for a variety of reasons." Still, Peterson informed his AFA colleagues that the union would "represent [Smith] through the grievance process fairly, in good faith, and without discrimination." …

That same day, Peterson flagged Brown's comment to Alaska management in a text chain that included Alaska's Carmen Williams and Michaela Littman, the Managing Director of Flight Operations. Peterson texted these Alaska executives to "[c]heck out Marli Brown's post on [Alaska's World] re: Equality Act. Definitely lighting up social media tonight, as if Lacey [Smith] wasn't enough." Peterson then lamented, "I wish fewer people would struggle so much with unifying their faith with inclusivity." Peterson later confirmed that it was unusual for him to get involved with Alaska's internal response to disciplinary incidents.

ENRD at the Department of Justice is getting a new name. According to an op-ed in the Wall Street Journal by ENRD's Principal Deputy Assistant Attorney General Adam Gustafson, the Environment and Natural Resources Division will be renamed the Energy and Natural Resources Division.

From the op-ed:

Over the past two decades, the division has played a central role in the responsible production and use of energy, driven by technological advances from the shale revolution to AI. To recognize this evolution, we will now rename it the Energy and Natural Resources Division.

The division's charge to steward America's environment responsibly is unchanged. The environment is our nation's greatest natural resource, and the new name captures that priority. We're proud of the results we've achieved over the past 17 months against air and water pollution, lead poisoning, ozone depletion and radioactive waste. Our achievements include last week's landmark multistate settlement to address forever chemical pollution and a $100 million penalty secured at trial for industrial air pollution near Detroit. The division continues to enforce environmental laws, punish fraudsters and smugglers, honor our nation's treaty and trust obligations to tribes, and defend federal agencies' efforts to protect and develop responsibly our wildlife and natural resources.

At the same time, we will fight to ensure that the U.S. remains energy dominant for the next 250 years.

This is hardly the first name change for ENRD. It was founded as the Public Lands Division in 1909. It became the Lands Division in 193, and then the Land and Natural Resources Division in 1965. It did not become the Environment and Natural Resources Division until 1990. In each case, the change was made by order of the Attorney General.

The clergy-penitent privilege has been recognized in American law for more than two hundred years and is now widely enshrined in law across the country. In a recent article in Law and Psychology Review, however, my law school colleague Amos Guiora and co-authors Diana Pogosyan and Matylda J. Blaszczak argue for carving out a significant exception to the privilege. Their article—"Sacred Secrets Enabling Child Sex Abuse"—claims that the privilege "enables" child sexual abuse by allowing clergy to "turn[] a blind eye" to abuse disclosed in a confession. They propose that, to protect children, clergy should be compelled by threat of criminal punishment to immediately call the police whenever a parishioner confesses child sexual abuse, even if doing so violates sincerely held religious belief.

In my response article in the same journal, I take on Sacred Secrets' arguments and defend the privilege. I argue that the privilege should apply in all cases—including those involving child sexual abuse. From my article's introduction:

Sacred Secrets fails to make a persuasive case for its extreme position. Its argument focuses on situations where an abuser has confessed to clergy under the protection of the privilege. But the article neglects to consider whether the abuser would have confessed without the privilege. As this article explains, victims will suffer more if the privilege does not exist. Metaphorically, child sexual abuse occurs in a room behind closed doors— with doors that open only from the inside. Abuse can only come to light if the victim or the perpetrator opens those doors and lets someone else in, whether it be a parent, teacher, peer, policeman—or member of the clergy. Because of age, fear, or the perpetrator's manipulation, many victims are unable to open the doors for themselves. But occasionally a perpetrator opens the doors to confess to his pastor. Sacred Secrets argues that, in such situations, the clergy-penitent privilege should be abolished and the pastor required by law to immediately call the police. But this conclusion begs the question: If the privilege were abolished, why would a perpetrator ever open the doors and confess in the first place? Sacred Secrets' fundamental flaw is its failure to seriously consider that obvious competing concern about its recommendations. Common sense, lived experience, and the available empirical evidence all show that perpetrators will not typically voluntarily confess to a mandatory reporter. Changing the law to conscript clergy listening to confessions into the ranks of mandatory reporters will not serve to bring abuse to light; instead, it will further incentivize concealment.

On the other hand, protecting the clergy-penitent privilege incentivizes disclosure and creates the opportunity for valuable interventions. Clergy can help perpetrators to see the enormous harm from their crimes on their victims, to accept responsibility, and to make changes that will protect children. Clergy can urge perpetrators to self-report, or to notify others (such as a spouse) who can protect victims from further abuse. Notably, clergy can capitalize on the disclosures for the same reason abusers came forward to their pastor in the first place—the abusers feel guilty and want to stop their sinful behavior. To be sure, recognizing the privilege may be a frustratingly imperfect response to disclosures of child abuse. But the decisive point is that this imperfect response is better than the blunderbuss alternative Sacred Secrets proposes—an alternative that is, in any event, likely unconstitutional under the First Amendment's Free Exercise Clause and related doctrines. Thus, the current privilege regime found across this country is the true "victim-centric" approach.

One of the problems in Sacred Secrets is that it fail to situate its arguments in the discussion about privileges more broadly. Read More

Some excerpts from Wednesday's long Ninth Circuit opinion in Brown v. Alaska Airlines, Inc., written by Judge Daniel Bress and joined by Judge Kenneth Lee and, in large part, by Judge Morgan Christen:

Alaska … maintains an internal intranet communication network that it calls Alaska's World. Alaska's World is visible to all Alaska employees, with the company describing it as a "key vehicle for employee communications."

Alaska posts messages on Alaska's World, and employees are invited to reply and comment. Alaska explained to employees that the "[c]omments are here for us to openly and constructively share ideas, ask respectful questions, and understand one another and our company." According to Alaska's employee guidance on posting, "[w]e're a big team, inclusive of many people and perspectives," and "[o]ur differences make us better when we support and respect each other, allowing each of us to be who we are." The company has expressed its commitment to providing "a safe space culture where employees feel empowered to have open and critical dialogue with their peers and leaders." …

On February 25, 2021, Alaska posted on Alaska's World to announce the company's support for the Equality Act. The Equality Act is proposed federal legislation that would extend certain federal nondiscrimination requirements to cover discrimination involving sex, sexual orientation, and gender identity in various contexts…. As was typical for Alaska's World posts, Alaska allowed its employees to comment on the company's Equality Act announcement.

Plaintiffs Marli Brown and Lacey Smith are Christians who worked as flight attendants at Alaska Airlines for eight and six years, respectively…. Shortly after Alaska posted about the Equality Act on Alaska's World, Smith posted in response: "As a company, do you think it's possible to regulate morality?" Smith's comment prompted responses on Alaska's World from other commenters, some of whom expressed disagreement…. Alaska did not initially remove Smith's post but instead decided to respond to it on Alaska's World, [writing] …:

A recent controversy involving Congressman Dan Goldman and a Brooklyn coffee shop seems to me to illustrate a problem that goes beyond public accommodations law, narrowly understood.

According to reports, Goldman visited Poetica Coffee with his young daughter. The shop later posted on social media that, had staff recognized Goldman, they would not have served him. The post objected to Goldman's support for Israel, reportedly refunded his purchase, and told him not to return. Goldman, who is Jewish and known as a pro-Israel Democrat, has since lost his Democratic primary in New York's 10th congressional district to a more progressive candidate. That result does not decide the legal issue, of course, but it does help explain the political context. Israel and Gaza have become intensely divisive issues, especially within the Democratic coalition.

The Department of Justice has announced that it is looking into whether the coffee-shop incident violated federal civil-rights law. The legal question is not straightforward. Public accommodations laws do not require businesses to serve everyone in every circumstance. They prohibit discrimination only on specified protected grounds—one of which is religion. Some jurisdictions protect political affiliation or political ideology in public accommodations as well, but federal law, New York State law, and New York City law do not.

So the legal question, if the matter ever became one, would be how to characterize the refusal. Was the coffee shop objecting to Goldman's political views about Israel and Gaza? Or was it objecting to him as a Jew?Was this political hostility, antisemitism, or some mixture of the two? Those are not always easy distinctions. Views about Israel and Gaza often overlap with Jewish identity, but they are not the same thing. Many Jews disagree sharply about Israel. Many non-Jews strongly support Israel. Criticism of Israel is not itself antisemitic. But sometimes criticism of Israel does cross the line into hostility toward Jews as Jews.

The controversy also raises a broader civic issue. At their best, public accommodations laws reflect an important social norm: ordinary commerce should not become a place where every political and moral dispute gets fought to the end. A customer who enters a coffee shop is not asking the owner to endorse his views. He is asking to buy coffee. Ordinary commerce, in other words, depends on a certain bracketing of disagreement.

One way to think about this is through the old idea of doux commerce— gentle commerce—associated with Montesquieu and the French philosophes. The thought was that commerce could soften manners. It would not make people friends, but it might habituate strangers to deal with one another peacefully despite deep differences.

That norm has been tested in recent years in controversies involving LGBTQ rights and religious liberty. In cases like Masterpiece Cakeshop and 303 Creative, progressives generally emphasized equal access to the commercial marketplace, while religious conservatives argued that the issue was not status but message—not a refusal to serve gay customers as such, but a refusal to participate in expression celebrating a same-sex wedding. The Supreme Court has tried to preserve that distinction: public accommodations laws may prohibit status discrimination in ordinary goods and services, but the state lacks power to compel expression.

That distinction matters here. A coffee shop selling a cup of coffee is not creating a custom wedding cake or website. Selling someone coffee does not endorse his politics, religion, foreign-policy views, or anything else about him.

That, it seems to me, is the deeper point. Public accommodations law is not only a set of technical rules, though the rules matter. It also points toward a norm of civic peace. If every transaction becomes a chance to denounce, exclude, or punish, commerce loses its civilizing function. The coffee shop becomes another arena for total politics. And if ordinary service is reserved only for those whose views we approve, public life becomes impossible.

I discuss the controversy in a new Legal Spirits Short Take.

From Friday's opinion of the U.S. Court of Appeals for the Seventh Circuit in Fredin v. Klasfeld (the opinion doesn't name the participating judges):

Brock Fredin, a social media commentator, appeals the dismissal of his diversity action alleging that a journalist … defamed him by reporting on his well-documented history of harassing women and comparing that conduct to his recent criticism of a judicial law clerk in a high-profile legal proceeding….

Fredin … operates an X (formerly known as Twitter) account in which he criticized Allison Greenfield, the law clerk of the state-court judge presiding over a civil fraud case brought by the State of New York against President Donald Trump and others. Fredin accused Greenfield of violating ethics rules, being politically biased against President Trump, and leaking inside information about the trial to reporters. Fredin rose to prominence after President Trump reposted Fredin's criticism on social media and himself criticized Greenfield.

Soon thereafter, a reporter named Adam Klasfeld, who was covering the fraud case, wrote an article in an online publication called The Messenger that exposed Fredin's history of harassing women—all well-documented through court records of restraining orders and criminal charges against Fredin. Klasfeld reported that Fredin had harassed multiple women by creating websites in their names, emailing their employers and colleagues with accusations of criminal conduct, and filing complaints with their professional organizations.

We will later examine the specific statements, but for now it suffices to say that Klasfeld made clear he was relying on court records. Klasfeld, for instance, repeatedly qualified the accusations against Fredin with phrases like "a court found," "court records show," and "[the judge] wrote." Klasfeld compared Fredin's past harassment of these women to his treatment of Greenfield. According to Klasfeld, Fredin filed a bar complaint against Greenfield, reported her to various state agencies and disciplinary committees, and posted on his social media a website (with a URL using Greenfield's name) inviting viewers to criticize her and call for her disbarment….

Fredin sued Klasfeld for (among other things) defamation, but the court held that "[t]he district court did not err by concluding that the reporting was substantially
true":

6/29/1992: Planned Parenthood v. Casey is decided.

6/28/2010: McDonald v. City of Chicago is decided.

I recently participated in a Federalist Society podcast on Pung v. Isabella County, the Supreme Court's recent badly flawed Takings Clause decision. Deborah La Fetra of the Pacific Legal Foundation (one of the lawyers representing the property owners in the case) also took part. Deborah is a bit more optimistic than me about the ultimate resolution of the case on remand (though I agree with her that the property owners might well ultimately prevail based on the unfairness of the procedures they were subjected to). Regardless, I think we both agree that the Court's decision sets a terrible precedent on the calculation of "just compensation" under the Takings Clause, in cases where the government seizes property due to possible tax delinquencies. I previously wrote about Pung here and here.

I embedded the video of the podcast below:

NOTE: The Pacific Legal Foundation is also my wife's employer. She, however, is not one of the attorneys on the case. The Pung estate is also represented by other attorneys.

6/27/2005: McCreary County, Kentucky v. ACLU and Van Orden v. Perry are decided.

The Volokh Conspiracy

Court Will Hear Parental Rights Case Related to Minors Seeking "Gender-Affirming Treatment"

Recap of Today's Opinions and Predictions For The Final Four Cases

Supreme Court Ends Agency "Independence," Save for the Federal Reserve

Still Just Two Votes (No Evidence of More) for Overruling "Actual Malice" Test in Defamation Cases

Congratulations to Orin Kerr, Whose Amicus Brief Was Twice Cited by the Court Today in Chatrie v. U.S.

Christian Flight Attendants' Religious Discrimination Case Against Union Can Go Forward

A New Name for ENRD at the Department of Justice

Should the Clergy-Penitent Privilege Be Abolished in Child Sexual Abuse Cases?

"Employees Actually Do Not Have the Right to Believe That LGBTQ Rights Are 'Immoral'"

Coffee Shops and Political Combat

Follow-On Libel Case Stemming from President Trump's 2023 N.Y. Civil Fraud Trial Thrown Out

Today in Supreme Court History: June 29, 1992

Open Thread

Today in Supreme Court History: June 28, 2010

Open Thread

Federalist Society Courthouse Steps Podcast on Pung v. Isabella County Takings Case

Today in Supreme Court History: June 27, 2005

Open Thread

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