The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Judge James Wynn of the Fourth Circuit was content to have President Biden replace him. But in December 2024, when it became clear Biden's nominee would not be confirmed,Wynn rescinded his senior status. He offered no actual reason, but we do not have to ignore reality: He didn't want Trump to replace him. Two other District Court judges made the same decision. Yet the judicial misconduct process refused to acknowledge this reality. I wrote two posts on this issue.

Judge Wynn was the subject of my latest column for Civitas Outlook. Here is an excerpt:

The judges offered no actual explanation for their decision. Judge Wynn, for example, wrote to President Biden that "after careful consideration, I have decided to continue in regular active service." Upon "careful consideration," is code for "further election." Senator Tom Tillis of North Carolina said that Wynn made this "brazenly partisan" decision because he "clearly takes issue with the fact that Donald Trump was just elected President." The Article III Project filed a judicial misconduct complaint against these three judges. The complaint charged that "Judge Wynn's decision to rescind his announcement was likely made because of the outcome of the 2024 presidential election." The group states that Wynn "had a change of heart solely because" Trump won.

Judge Wynn responded to the complaint. He didn't offer any actual explanation for rescinding his senior status. Wynn insisted that federal law does not prevent him from changing his mind. Rather, he said, "[c]hoices about retirement and senior status are deeply personal and often influenced by multiple factors." One would think that Wynn could offer some reason to defend his action. But he offered none. Instead, he insisted that he was under no obligation to explain his motivation. Wynn maintained that "no court has ever found it proper to inquire into an Article III judge's reasons for taking, or not taking, senior status." Wynn added, "Accusations of partisanship should not be entertained absent specific evidence of misconduct." If the judge made this decision for some legitimate reason, it would have been straightforward to state it. But he didn't; instead, he hid behind a legal process.

In October 2025, the misconduct complaints against Judge Wynn, and the other two judges were dismissed. Chief Judge Debra Livingston wrote the opinion in each case. Livingston found "there is no genuine issue of fact." She added that whether "the Judge considered the outcome of the election as one factor influencing his decision to withdraw the January 5 letter" was "a factual issue I need not resolve." Had Chief Judge Livingston simply asked Judge Wynn why he rescinded his senior status, the judge could have defended himself with some legitimate reason. But he didn't offer such a reason, because there is no plausible, legitimate reason. Regrettably, there is a brazen double standard for brazenly partisan judges. The federal courts routinely scrutinized President Trump's motivations for improper purposes. But when it comes to rooting out judicial misconduct, judges hide behind a veil of ignorance.

And the conclusion:

There is a never-ending stream of faux-outrage about judicial ethics, but these self-professed experts ignore actual problems where judges engage in partisanship. Let's not forget Justice Ruth Bader Ginsburg. Before the 2016 election, Ginsburg called Trump a "faker" and said she would move to New Zealand if he prevailed. And the day after the election, Justice Ginsburg wore her "dissent" jabot to Court. Ginsburg was clearly protesting Trump's election. Yet Ginsburg didn't leave the country, as her retirement would have given Trump the power to appoint her replacement. Ginsburg likely had the same thoughts as Judge Wynn. Fast-forward four years. On Ginsburg's deathbed, her last words were, "My most fervent wish is that I will not be replaced until a new president is installed." Ginsburg said what Wynn clearly thought. Should we just look at Ginsburg's action behind the veil of ignorance? She was a brazenly partisan critic of Trump, yet she decided a host of cases against Trump while in office. Is there much of a practical difference between what Ginsburg did and what Wynn did?

In recent years, there were routine calls for impeachment when Justice Alito's wife flew a flag, and Justice Thomas's wife engaged in politics. Yet when we see progressive judges personally crossing the lines into the political realm, there are only crickets. Here, the judiciary took no action to police political judges — not even a reprimand. Given this failure to acknowledge reality, the only remaining remedy for political judges is the political process. And if those steps are inadequate, further remedies should be on the table.

From Russell v. Mells, decided yesterday by Florida Court of Appeal (Second District) Chief Judge Matthew Lucas, joined by Judges Robert Morris and Susan H. Rothstein-Youakim:

Because [one] case citation [in defense counsel Attorney McLane's filing] appeared to have been "hallucinated" (most likely by a generative artificial intelligence program) and because the other two case citations contained misquotations, we issued an order to show cause to appellee's counsel. In our order, we directed counsel to file a written response explaining how these case citations and quotations were generated. We further warned that the response should also show cause as to why sanctions shouldn't be imposed.

In her response, Attorney McLane stated that the three case citations "were researched via computer generated searches" and acknowledged that she "failed to fully vet these searches." With respect to the two misquotations, she stated that "the errors … were not substantive in nature and were primarily the result of miss placed [sic] quotation marks." She conceded that the citation to "Cade v. Roberts" was "substantive but was not made for the purpose of misleading the Court." She then noted that there was Florida case law supporting "the substance of the argument" on this point, presumably meaning that the quoted text in her brief about motions to dismiss could find support elsewhere in Florida law. {She never tells us where, and there is no text we've found in Florida law that directly matches the purported quotation she set forth in the brief. But substantively Ms. McLane is correct.}

Lastly, we couldn't help but notice, the signature line of counsel's response to our order to show cause appears to have been executed by someone on behalf of Ms. McLane, instead of by Ms. McLane herself. {While a delegated signature execution may not have been a legal or ethical impropriety, under these circumstances, it certainly didn't make a good impression. In the future, our orders to show cause for these kinds of matters will specify that counsel must personally execute the written response, though that point really should not need to be stated.}

In essence, counsel has told us that her "computer generated searches" misstated the law but that she didn't mean to mislead the court when she filed those misstatements. We will take her at her word about her intentions. But what counsel seems to imply—that since the substance of the analysis in her brief wasn't necessarily wrong, her misstatements are not an issue we should be overly concerned about—is simply unacceptable. Indeed, we are deeply troubled by this brief and by this attorney's response.

AI in Court

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12/11/1922: Pennsylvania Coal Co. v. Mahon decided.

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From Friday's order by Judge William Ray (N.D. Ga.) in Boston v. Williams:

The Plaintiffs, acting through their attorney Loletha Denise Hale ("Attorney Hale"), have filed a motion for reconsideration of the Court's granting of summary judgment to the Defendant on the Plaintiffs' Complaint against him. The basis for the Court's granting summary judgment was that the Plaintiffs, through the inaction of their attorney, did not display the due diligence required under Georgia law to serve the Defendant with the Complaint within the applicable statute of limitations….

Rather than simply appealing that ruling, which the Plaintiffs have every right to do, Plaintiffs now asks the Court to reconsider it on the basis of their previous argument that the Court is biased against them due to the Court's alleged bias against their lawyer, Attorney Hale. Their claim in that regard is centered on comments that the Court made at the oral argument on the Defendant's Motion for Summary Judgment. Thus, a little review of the case history is in order.

The Plaintiffs filed a brief in opposition to the Defendant's Motion for Summary Judgment. And, in preparing for oral argument on the Motion for Summary Judgment, the Court read that brief, wherein Attorney Hale wrote (and cited case authority for the proposition) that the issue as to whether the Plaintiffs exercised due diligence in their efforts to serve the Defendant with process was a question of fact for the jury to decide.

This argument was interesting and very strange. In the Presiding Judge's 35 years [by "Presiding Judge," the judge presumably means himself -EV] as a member of the State Bar of Georgia, 23 which have been as a judge at the State and Federal level, it had always been his understanding that the issue of diligence in service efforts was one for the Court, not for a jury. But, as the Plaintiffs cited case precedent for this proposition, the Presiding Judge read the cited authority to see if the Plaintiffs might be right (and whether the Presiding Judge might be wrong).

Upon reading the case, it was clear that it was the Plaintiffs (or rather, Attorney Hale) who were wrong. As the Defendant pointed out in his Reply Brief, an overwhelming number of the cases cited throughout the Plaintiffs' Brief in Opposition to the Motion for Summary Judgment either were completely fabricated/hallucinated or did not stand for the proposition for which they were cited. In other words, they were fake.

AI in Court

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Peter E. Harrell & Jennifer Hillman (Lawfare) had an interesting post yesterday, "Unexpected Questions in Learning Resources v. Trump," with the subtitle "Are IEEPA tariffs permitted as either a lesser form of an embargo or the equivalent of a license fee? In short: no." An excerpt:

The first unexpected issue that merited extensive discussion [at the oral argument in the tariff case] is one of the most intuitively appealing arguments in favor of the government's case: IEEPA clearly authorizes a president to embargo or block all trade, and presidents have used IEEPA with little challenge to impose trade embargoes against countries such as Iran and North Korea. If IEEPA authorizes embargoes, shouldn't the statute include the seemingly lesser power to tariff? Several justices were interested in whether, if IEEPA allowed embargoes but not tariffs, there would be—as Justice Brett Kavanaugh put it—an "odd donut hole in the statute." …

This argument has a certain intuitive appeal. However, it is wrong as a matter of both text and history. As Gutman said when he was pressed on the issue, the lack of a tariff power in IEEPA is "not a donut hole" but, rather, reflects that tariffs are "a different kind of pastry."

First, as a matter of history, Congress has often delegated an embargo power to the president without delegating a subsidiary tariff power. In 1794, for example, Congress delegated to President Washington a broad power to impose or remove an embargo on U.S. trade during the five months that Congress planned to be out of session. This law empowered the president to block or allow effectively all U.S. trade, but it did not empower him to change statutory tariff rates. When Congress initially passed IEEPA's predecessor statute, the Trading with the Enemy Act (TWEA), in late 1917—several months after America's entry into World War I—it both included an expansive prohibition on trade and financial transactions with enemy nationals and authorized the president to suspend certain prohibitions and/or issue licenses authorizing American companies to engage in transactions that would otherwise be prohibited. But TWEA did not authorize President Wilson to set new tariff rates on trade with Germany or any of its allies.

In recent decades, Congress has enacted additional sanctions and other embargoes on countries such as Cuba and Iran but did not empower the president to raise tariffs on those countries. In 2022, following Russia's invasion of Ukraine, President Biden used IEEPA to impose myriad sanctions on Russia, including to embargo imports of various products, such as Russian oil. But it was Congress that in April 2022 voted to repeal Russia's most-favored-nation trading status and to authorize the president to raise tariff rates on Russia. This suggests that neither Congress nor the president viewed IEEPA as providing the authority to raise tariffs without congressional action.

Tariffs

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From yesterday's decision by Texas Court of Appeals Justice Katy Boatman in Daly v. Lehle, joined by Justices Chad Bridges and Maritza Antú:

This appeal matches pickleball against tennis…. Defendant served as chairwoman of the courts for the Coles Crossing community, looking after the interests of local tennis players and ensuring that the community's tennis courts were well-maintained. Defendant gave monthly reports at the Coles Crossing homeowners' association board meetings.

Coles Crossing residents suggested the community install pickleball courts, so the HOA board set up an exploratory pickleball committee with members representing mixed interests: Plaintiff (team pickleball) was committee head and Defendant (team tennis) was one of several committee members. Things quickly soured, as the parties disagreed about the extent to which the tennis courts should be modified so they could double as pickleball courts.

During this time, Defendant also permitted a local tennis professional to use the courts to teach tennis lessons to children from the community. According to Defendant, she "received calls from at least four parents of clinic participants relaying serious concerns that an anonymous adult man was using his personal cell phone to take pictures of their young children doing drills on the tennis courts." Two HOA board members explained to Defendant that Plaintiff was taking the photographs to document HOA rules violations—namely, allowing a tennis professional to use multiple courts simultaneously. Plaintiff said he also relayed the reason for his photographs to Defendant.

Three months later, Defendant opened her monthly tennis report at the HOA board meeting by lobbing an accusation: she, "as a former teacher," had a "duty to report instances of sexual exploitation of minor children through photographs and videography." Defendant accused Plaintiff "of taking photographs of children for inappropriate purposes" and "implied that [he] was a pervert, pedophile, or sexual predator." Multiple community members complained to the HOA board about Defendant's statements….

Plaintiff sued, and the court held the case could go forward:

Free Speech Libel

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12/10/2003: McConnell v. Federal Election Commission decided.

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Professor Xiao Wang, director of University of Virginia's Supreme Court Clinic, litigated the case of Ames v. Ohio Youth Services. The thrust of the case was quite simple, and intuitively appealing: Heterosexual employees alleging discrimination based on sexual orientation have the same burdens as homosexual employees alleging such discrimination. Such symmetry is built into our antidiscrimination laws, which is why the laws ban discrimination based on "race" or "sex" or "sexual orientation" and not "against people of color" or "women" or "people who identify as LQBTQ." Not surprisingly, the Court reasserted this principle in a unanimous opinion.

While the case was pending, however, Wang and his students were subjected to a campaign of harassment by some of his faculty colleagues and other students. You can watch a video of him recounted what transpired, and inspired the title of this blog post, here.

Today, the UnPopulist published my article "Nationalism Is Driving the Neo Right's Virulent Antisemitic Turn." It builds on my earlier Volokh Conspiracy post on the same topic, and also on 2024 National Affairs article "The Case Against Nationalism" (coauthored with Alex Nowrasteh). Originally, Alex and I were also going to coauthor this new article. But, after seeing my draft, Alex said he had little to add to it, though he very much agrees with the thesis. I am nonetheless grateful to Alex for his help in thinking through this topic, and for insights derived from his extensive expertise on it. Here is an excerpt from today's article:

American conservatism has been rocked by the rise of "Groyper" antisemitism within its ranks, roiling both official Republican Party organizations and some of the right's most influential intellectual organs….. Even now, the debate over this issue has largely overlooked the source of antisemitism's rise in conservative circles: the political right's increasing turn towards nationalism.

Nationalism doesn't just historically correlate with bigotry—it consistently drives antisemitism and other racial and ethnic prejudices. Indeed, nationalism intensifies preexisting antisemitic impulses. To the degree that today's conservatives decide to embrace—or even just make peace with—nationalism and dispense with the universalist liberal principles of the American Founding, they will find it difficult to impossible to stem the spread of antisemitism in their midst….

In October, Politico published an explosive report disclosing a selection of vile antisemitic and pro-Nazi messages from leaked group chats written by leaders of Young Republican chapters and various state GOP politicians and staffers. Later that month, Heritage Foundation President Kevin Roberts mired his organization in the controversy when he publicly defended prominent far-right podcaster Tucker Carlson—a longtime promoter of antisemitic ideas and conspiracy theories—after Carlson conducted a fawning interview promoting Nick Fuentes, an even more notorious antisemitic influencer who openly defends the Nazis….

The recent resurgence of right-wing antisemitism is rooted in the conservative movement's turn towards nationalism. It is no accident that it emerged at the same time as the political right—led by Trump—has increasingly defined American identity not in terms of universal liberal values but in terms of ethnic and racial identity. Many in the movement privilege native-born white Christians over other groups—and often even privilege "heritage Americans," defined as those (primarily whites) who can trace their ancestry in the U.S. over many generations all the way back to the Civil War or earlier.

Nationalist political movements—defined here as those that hold that the main purpose of government is to advance the interests of the nation's dominant ethnic group—have a long history of antisemitism and other bigotry….

A movement that exalts the interests of the ethnic and cultural majority and believes that these interests are the true foundation of the nation is inherently prone to viewing ethnic and religious minorities with suspicion and hostility. That may be especially true of minority groups with a large diaspora in many countries, a history that is perversely used against them as a reason to doubt their allegiance to the nations they live in.

These prejudices are exacerbated by Jews' disproportionate success in the commercial and intellectual worlds. Nationalists tend to believe such disproportionately successful minorities are encroaching on the rightful domain of the majority group. Such suspicion is heightened by the zero-sum worldview shared by most nationalists, under which one ethnic or racial group can only gain at the expense of others. Thus, if Jews are disproportionately successful, it must be at the expense of the ethnic majority.

Resentments are heightened by nationalists' historic predilection for conspiracy theories. If the ethnic majority has been denied its supposedly rightful position of dominance, nationalists readily assume that the cause must be some nefarious plot.

Later in the article, I explain how the best antidote to nationalism is embracing the universalist principles of the American Founding:

In his resignation statement from the Heritage board, Robert George urged Heritage to be guided by the principles of the Declaration of Independence, especially the idea "that each and every member of the human family, irrespective of race, ethnicity, religion, or anything else; … is 'created equal' and 'endowed by our Creator with certain unalienable rights.'" George is right. Unlike nationalist movements focused on ethnic particularism, the American Founding was based on universal liberal principles…..

In his General Orders to the Continental Army, issued on the occasion of the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions." Other leading Founding Fathers—including James Madison and Thomas Jefferson—expressed similar sentiments.

Washington sounded a similar theme in his famous 1790 letter to the congregation of the Rhode Island Touro Synagogue, in which he avowed that the United States has "an enlarged and liberal policy," under which "All possess alike liberty of conscience and immunities of citizenship," and that the U.S. government "gives to bigotry no sanction, to persecution no assistance." America, he emphasized, went beyond "mere toleration" of Jews to granting them full equality. It could do so because American identity was based on universal liberal principles, not ethnic or religious particularism.

As noted in the article, there is also troubling anti-Semitism on the far left (which I previously wrote about here). That in no way justifies the right-wing nationalist variety (and vice versa).

Anti-SLAPP statutes allow defendants who are sued based on their speech on matters of public concern to quickly challenge the sufficiency of plaintiffs' claims. They are important tools in fighting legally meritless libel suits and other attempts to restrict legally protected speech. But they only apply to claims that are indeed based on such speech, and not claims that are based on non-speech conduct.

A short excerpt from yesterday's long opinion by California Court of Appeal Justice Allison Danner, joined by Justices Mary Greenwood and Daniel Bromberg, in Khalil v. Steiner, applies this distinction. The plaintiffs—a young woman, her apparently 13-year-old sister, and their sister-in-law—"constructed a 'Free Palestine' sign out of shrubs and seaweed on a sand dune near Sand City known as 'Scribble Hill,'" where it was visible from Highway 1 and the pedestrian path below the dune. Defendant, "who was cycling on the path, stopped his bicycle, climbed the dune, and began dismantling the sign while engaging in a heated verbal exchange with the young women."

Each side accused the other of "supporting terrorism," and the women began recording the encounter on a cell phone. They retreated down the dune and kicked sand on Steiner's bicycle. Steiner followed, grabbed the cell phone …—allegedly also grabbing and restraining [one of the plaintiffs] in the process—and threw the phone toward the street, breaking it. After Steiner departed, plaintiffs reported the incident to the police and posted an edited version of the cell phone video to their social media.

Plaintiffs sued Steiner asserting causes of action for negligence, assault, battery, and violations of the Tom Bane Civil Rights Act (Bane Act) (Civ. Code, § 52.1) and the Ralph Civil Rights Act (Ralph Act) (Civ. Code, § 51.7). Steiner brought an anti-SLAPP motion to strike the complaint ….

The court concluded that the anti-SLAPP statute [Cal. Code Civ. Proc. § 425.16] didn't apply here, because the claim was based on Steiner's alleged physical conduct, and not speech on matters of public interest:

Section 425.16(e)(3) defines protected activity to include "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest." Section 425.16(e)(4) defines protected activity to include "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." …

We agree with the trial court's assessment that "much of" Steiner's "speech and activity in taking down the message on the sand dune is protected under the First Amendment." Steiner's initial conduct during the encounter at Scribble Hill consisted of (1) engaging in a heated oral exchange with three individuals about their public display of support for the Palestinian cause during a time of heightened public awareness and debate over the Israeli-Palestinian conflict, and (2) physically disassembling the sticks and shrubs that made up the disputed message.

Free Speech

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Free Speech

No Injunction Against Prosecution for Taking Photo of Transgender Politician Washing Hands in Women's Restroom

So holds a Fifth Circuit panel, over a dissent. Note that part of the majority's rationale is that the photo would only violate the statute if the prosecution can show that defendant intended to invade privacy in a way "highly offensive to a reasonable person of ordinary sensibilities."

Eugene Volokh | 12.9.2025 5:31 PM

From Fifth Circuit Judge Priscilla Richman, joined by Judge Irma Ramirez, in today's Evans v. Garza [UPDATE: link fixed]:

During a debate by lawmakers at the Texas Capitol in 2023, Michelle Evans tweeted a photograph of a transgender (biologically male) politician washing their hands in the women's restroom. Evans surrendered her cell phone to police after she learned the Travis County District Attorney, José Garza, was investigating whether her tweet violated Texas Penal Code § 21.15(b)….

Evans sued, seeking a preliminary injunction against any such prosecution, but the Fifth Circuit panel said no. It concluded that the relevant provision, § 21.15(b)(2)—"A person commits an offense if, without the other person's consent and with intent to invade the privacy of the other person, the person … photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another person in a place in which a person has a reasonable expectation of privacy"—wasn't likely to be unconstitutionally overbroad:

Evans argues that the statute is overbroad, but "[t]he overbreadth doctrine is 'strong medicine' that is used 'sparingly and only as a last resort.'" Evans must "demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally."

By contrast, circumstances in which a prosecution under that subsection would likely be constitutional readily come to mind. For example, it is highly unlikely, to say the least, that there is a First Amendment right to distribute, without their consent, images of a person's genitalia or other anatomy (whether they be an adult, infant, pre-teen, teen) while utilizing bathroom facilities.

It is also far from clear that there is a First Amendment right to capture and distribute an image, without their permission, of a fully clothed adult while in a public bathroom. Think of a celebrity, for example, who ducks into a women's bathroom to avoid paparazzi or overzealous fans. What if the celebrity were in the restroom simply to relieve and refresh themselves? Is there a constitutional right to follow and photograph that person in a restroom when they are seeking privacy? Is any citizen, celebrity or not, fair game for photos or videos while in a restroom? Does the fact that a person is an elected official change that equation? The law is certainly not clear that politicians may be pursued, even in a public restroom, for the purpose of obtaining and publicizing their image.

And the court also held that the law wasn't unconstitutional as applied to Evans' behavior:

Free Speech Privacy

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Justice Barrett asked several good questions yesterday at oral argument in Trump v. Slaughter, which deserve a further response.

First, Justice Barrett asked Solicitor General D. John Sauer whether the Court should rest its holding in this case on the allegedly narrower grounds of removal as flowing from the Take Care Clause of Article II, Section III, or as being an incident of the Appointment Power, rather than holding that the Executive Power Vesting Clause confers the removal power.

The Take Care Clause argument overlooks the fact that the body of the Constitution confers what it calls "Power" only in a limited number of places: the three Vesting Clauses; the eighteen clauses that confer limited and enumerated 'Powers' on Congress in Article I, Section 8; and a few other places. There are, to be sure, other clauses that confer power elsewhere in the Constitution without using the word "Power," like the New States Admission Clause, but they are few and far between. It would be textually odd for the removal power, which is a part of "The President's Power to Execute the Laws"—a power that the President assuredly has—to be found in Article II, Section 3 as the fifth in a series of six duties that Article II, Section 3 imposes upon the President and that does not use the word "Power."

Under the canon of construction noscitur a sociis, the meaning of a clause is illuminated by the company of the clauses with which it is linked. The Take Care Clause appears in between the Clauses imposing duties on the President to (1) receive ambassadors and other public ministers and (2) to commission officers. All of this is in a paragraph that begins by imposing on the President the duty to give State of the Union addresses and the duty to recommend to Congress new laws.

Imposing a duty on the President could be seen as granting the President a power, but the more plausible reading of Article II is that the Vesting Clause of Section 1 grants the President the sole but delegable power to execute the laws. Section 2 then explicates and adds content to this open-ended grant of the executive power, conferred on the President alone by Section 1, by making clear that the President is the Commander in Chief of our military and that he has the pardon power and that, with the Senate, he has the power to make treaties and appoint all officers of the United States and acting on his own to make recess appointments. Section 3 of Article II then imposes six duties on the President including the duty to take care that the laws be faithfully executed, a duty that the President can only fulfill because Section 1 of Article II has already conferred upon him the executive power. And Section 4 makes it clear that Presidents and Vice Presidents, unlike British Monarchs, are subject to impeachment.

The Take Care Clause descends from a clause in the English Bill of Rights of 1689, which was understood as taking away a power originally claimed by King James II that he could suspend or dispense with an Act of Parliament. English kings continued to remove officers long after the enactment of the Bill of Rights of 1689. The Take Care Clause's original Eighteenth Century meaning was that the President had no power to suspend or dispense with enacted statutes at will. There is nothing in the original Eighteenth Century history of the Take Care Clause that even remotely suggests that that Clause was a source of the removal power.

In contrast, as I explain in my amicus brief in Trump v. Slaughter, with former Attorneys General Ed Meese and Michael Mukasey, Presidents Washington, Adams, and Jefferson and Congress, in the Decision of 1789, all saw the Executive Power Vesting Clause as being the source of the President's removal power. Looking for the removal power in the Take Care Clause is like looking for an elephant in a mousehole.

Steven Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III. He has written or co-written many law review articles and several books, including The Meese Revolution: The Making of a Constitutional Moment (2024) (with Gary Lawson).

Executive Power

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From the motion to vacate the arbitrator's award in LaPaglia v. Valve Corp. (S.D. Cal.):

Arbitrator Saydah's opinion for Mr. LaPaglia's case has telltale signs of AI generation. The facts section cites facts that are both untrue and not presented at trial or present in the record. For example, Arbitrator Saydah's decision states, without source attribution, that "Other platforms such as Roblox innovate in other ways with more mature content like horror elements paying off." But Roblox is a children's game with no horror elements. No testimony or document in the record, or anything, suggested otherwise. This sort of hallucinating or mixing up of facts is frequent when using AI tools to write content. Arbitrator Saydah's seemingly random, uncited reference to Roblox's marketing strategy that is only tangentially related to the parties' dispute betrays the use of artificial intelligence to find "facts."

Similarly, the decision states that "Just last year Sony and Microsoft partnered together to explore cloud gaming and streaming solutions using Microsoft Cloud Azure" and that "There is also major competition from China with their own developers and platforms, and also competition from companies in the United States, in the race to capture the Chinese market for PC Games." Neither of these statements were in the record or otherwise evidenced or even argued, and neither fact findings bear any citations, again demonstrating Arbitrator Saydah relied on generative AI to determine the facts of the case and make decisions on market power and competition for him.

Prompted by these observations, Mr. LaPaglia's counsel's law clerk asked ChatGPT whether it believed the Roblox paragraph was written by a human or AI. ChatGPT stated that the paragraph's awkward phrasing, redundancy, incoherence, and overgeneralizations "suggest that the passage was generated by AI rather than written by a human."

AI in Court

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The fallout from Abbott v. LULAC has been predictable. Critics allege that the Court has now pushed the Purcell principle out even further to the year before the election. Richard Pildes, for example, wrote:

The latest Texas decision now pushes Purcell out even further, to decisions that come down before an election year. This is no longer the "eve of an election" in any meaningful sense.

The Supreme Court stretches the purported disruptive effect of the lower-court decision by saying it came down during "an active primary campaign," but all that means as a practical matter is that the window had opened for candidates to file their intent to run in the March primaries.

Here in Texas, the midterm election will be held in November 2026. But for practical purposes, the key date is March 3, 2026, the party primary date. Indeed, because just about all of the districts are gerrymandered, there are very few competitive seats. The outcome of almost every race will be settled by March. And even earlier, the key deadline happened yesterday: December 8. That was the deadline for candidates to submit to their party's primary. This morning, local talk radio was abuzz with discussions about who did, and did not submit the petitions. Some incumbents decided not to run for re-election. Other new districts have open primaries with people who have never represented that district. There is now a four month crush for candidates to lock up the nomination.

The application of Purcell was especially apt given the nature of gerrymandered districts. People need to know who is running for which districts. The issue in Abbott was not some regulation of how ballots are cast or counted. Those matters can be settled closer to the election. Rather, the Court focused on the most basic question: who is running for what seat. That issue needs to be settled at the earliest juncture.

Pildes writes that the courts could have pushed forward the deadline for candidates to register:

The deadline for filing was still down the road on Dec. 8, three weeks after the lower-court injunction. And federal courts have the power to postpone candidate filing deadlines when needed to ensure compliance with court injunctions.

Perhaps in a theoretical world, candidates can simply continue to campaign for a few more weeks, or even a few more months, without knowing which seat they will run for. Donors will be asked to contribute money to candidates who may never even be on the primary ballot. Candidate will seek endorsements that may need to be later rescinded. Incumbents will run attack ads on opponents who they'll never face. All of these actions impose serious costs on the political process. And all of these actions could be for naught if the maps were changed. An injunction to postpone deadlines would ignore all of these costs.

Of course, the likely response is that the most important role of the courts is to ensure federal law is complied with. Yes and no. The most fundamental question that any court faces is who decides? The duly-elected Texas Legislature chose the maps. A judge in Galveston thought there was probably too much discussion of race, even if he couldn't quite put his finger on what happened. Sometimes, the political process will have to work its way through. Federal judges cannot solve all problems.

Update: To use an analogy, Trump v. Anderson was decided the day before the Super Tuesday primary. Some groups argued that a challenge to Trump's eligibility was not ripe until he was on the general election ballot. Some groups argued that the challenge could only be brought if the joint session certified Trump as the winner. For practical purposes, this challenge had to be resolved before the primary was held. I think similar dynamics were at play in Abbott v. LULAC. Indeed, the challenge had to be settled earlier, as candidates needed to know which districts they would collect signatures for.

Maybe the label of Purcell is not exactly apt. The case here isn't so much about voter confusion, as it is about primary confusion. Maybe that is why the Court didn't cite Purcell. We can call this doctrine Abbott Abstention.

The article is here; the Introduction:

On a busy Saturday afternoon in 1940, Walter Chaplinsky took to the streets of Rochester, New Hampshire, to distribute literature promoting the faith of Jehovah's Witnesses and denouncing all other religions. At one point, Chaplinsky encountered the City Marshall, whom he called a "damned racketeer" and a "damned Fascist." New Hampshire charged Chaplinsky under a criminal provision restricting "offensive" speech. In upholding Chaplinsky's conviction a unanimous United States Supreme Court asserted that "[a]rgument is unnecessary to demonstrate that the appellations 'damned racketeer' and 'damned Fascist' are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace."

When teaching Chaplinsky to law students, I walk over to a nearby student and, in an appropriately loud and threatening voice, call the student a "damned racketeer." To date, not once have my words triggered a breach of the peace. The obvious point is that context matters. Chaplinsky and I may have spoken the same words, but the meaning of those words is determined at least in part by the context in which they are uttered. This latter observation has generated volumes of work in legal theory, linguistics, and philosophy. I won't revisit those debates here except to lay my own cards on the table: Meaning is somewhat but not entirely determined by context. To ignore context would mean a rigid fundamentalism; to defer to it entirely would mean an open-ended pragmatism without foundations. Neither of these options accurately describes the social world in which we live. But understanding context gives us a clearer sense of how to understand changed meaning not only among words but also among relationships, politics, and societies.

I think this is what is ultimately at stake in Oliver Wendell Holmes's famous dictum written a half-generation before the Supreme Court so confidently classified Chaplinsky's utterance as fighting words likely to breach the peace. That dictum, from Holmes's dissent in Gitlow v. New York, asserts with no less confidence that "every idea is an incitement" and that "the only difference between the expression of an opinion and an incitement in the narrow sense is the speaker's enthusiasm for the result." I want to suggest Holmes is right to assert that every idea is an incitement, but his subsequent focus on the speaker's enthusiasm neglects other important contextual factors. Chaplinsky's context included the generally understood meaning of the speaker's insults at the time he uttered them and the physical environment in which he uttered them. Without this additional context—in other words, without moving beyond merely "the speaker's enthusiasm for the result," we cannot adequately assess the likely harm of a speaker's words or whether the state should be permitted to limit those words based on that harm.

Free Speech

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