The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Justice Thomas Avoids Substantive Due Process with Meyer and Pierce
Thomas may attempt to recast Pierceas a Free Exercise case, but it cannot be understood in that fashion.
On June 26, the Court decided Gutierrez v. Saenz. Justice Thomas wrote a thoughtful concurrence that explored the meaning of "liberty" in the Due Process Clause. In that concurrence, Thomas cast doubt on the doctrine of substantive due process. Yet, as I noted, Thomas was a bit cagey about Meyer v. Nebraska, and the right to raise children. I suspect that Mahmoud was on Thomas's mind.
On June 27, the Court decided Mahmoud. As I explained in this post, the Court resolved this case about parental rights with barely any mention of substantive due process. The Court is still suffering from Lochner-phobia. Everything was grounded in the Free Exercise of Religion. For example, Justice Alito wrote:
"[W]e have long recognized the rights of parents to direct 'the religious upbringing' of their children." Espinoza v. Montana Dept. of Revenue, 591 U. S. 464, 486 (2020) (quoting Yoder, 406 U. S., at 213–214).
Meyer and Pierce were not limited to "religious upbringing." Those precedents referred to upbringing of children, in all contexts.
Justice Sotomayor's dissent describes the majority opinion accurately:
Here, however, the Court's analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that "the burden in this case is of the exact same character as the burden in Yoder."
Justice Thomas wrote a concurrence in Mahmoud that hinted at substantive due process, briefly. Thomas explains that Yoder was based on Pierce v. Society of Sisters:
In reaching this conclusion, the Court relied heavily on its earlier decision in Pierce, which articulated "perhaps the most significant statements of the Court in this area."
And Pierce, in turn, was a substantive due process case:
While the Court did not decide Pierce on free exercise grounds,[FN4] the context in which Pierce arose confirms that it "stands as a charter of the rights of parents to direct thereligious upbringing of their children." Yoder, 406 U. S., at 233.
[FN4] The Court decided Pierce 15 years before it recognized that the First Amendment's free-exercise guarantee applies against the States. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).
Griswold and other Warren Court cases tried to recast Pierce as a Free Exercise case, but that doesn't work. Lochner and Pierce are cut from the same cloth.
For reasons I do not understand, Justice Thomas doesn't cite his Gutierrez concurrence, or talk about Lochner. He may have made peace with a substantive due process right to raise children, but his cagey about the basis.
At bottom, the Justices don't want to talk about Smith, and they don't want to talk about substantive due process. But now that Dobbs overruled Roe, I do think there is some space to talk about facets of substantive due process that may be correct.
The Status of Smith and Yoder After Mahmoud
The Court continues avoiding the Smith issue, but in an unexpected way.
A few days ago, I asked if the moment for overruling Smith had passed. At the time, I had not yet read Mahmoud. (I am still making my way through the opinions.) Now, having read Mahmoud, I see a Court that is desperately trying to stay away from the resolving the validity of Smith.
Let me lay out some salient facts from Mahmoud. The government initially allowed parents to opt-out their children from being exposed to certain books. However, that opt-out was later removed. And, as Justice Alito observed, "[t]he Board member went on to suggest that the religious parents were comparable to 'white supremacists' who want to prevent their children from learning about civil rights and 'xenophobes' who object to 'stories about immigrant families.'" Yet, the school permits other types of opt-outs for non-religious reasons.
Based on the Court's precedents, I could see two possible ways to avoid Smith. First, the Court could follow Masterpiece Cakeshop, and find that the statements from the board member were impermissible animus against religious parents. This policy would not be neutral towards religion. That finding would trigger heightened scrutiny under the rubric from Church of the Lukumi. Then again, Justice Sotomayor suggests in Footnote 15 that the Board Member was not actually expressing hostility towards religion, so that argument may not have worked.
Second, the government allowed an exemption for religious parents, but then removed that exemption, even as other exemptions are present. These facts resembles Roman Catholic Diocese, Tandon, and Fulton, under the "most favored nation" approach. In other words, religion is being treated worse than non-religion. This policy would then not be generally applicable, so would be reviewed with heightened scrutiny. The Court even cited Fulton:
This robust "system of exceptions" undermines the Board's contention that the provision of opt outs to religious parents would be infeasible or unworkable. Fulton, 593 U. S., at 542.
But Alito discussed the exemptions at the back-end scrutiny analysis, and not at the front-end to determine whether strict scrutiny applies.
Yet, the Mahmoud Court did not take Door #1 or Door #2. Justice Alito expressly said he wouldn't even consider these arguments:
We acknowledge the many arguments pressed by the parents that theBoard's policies are not neutral and generally applicable. See Brief for Petitioners 35–44. But we need not consider those arguments further given that strict scrutiny is appropriate under Yoder.
Instead, Justice Alito took Door #3: Yoder. Alito explains that Mahmoud has the same "special character" as Yoder, so the Court follows that precedent.
Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny. That much is clear from our decisions in Yoder and Smith. . . . And we explained that the general rule did not apply in Yoder because of the special character of the burden in that case. 494 U. S., at 881. Thus, when a law imposes a burden of the same character as that in Yoder, strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable.
Therefore, given this "special character," Yoder does not fall under the Smith rubric. Thus, you get to heightened scrutiny without discussing whether the law is neutral or generally applicable. I suspect this indirect route was necessary to keep Justices Kavanaugh and Barrett on board. They do not want to revisit Smith, and this approach allowed the Court to avoid that precedent.
Yoder has long been a favorite case for religious liberty litigants to cite, but I was always uncertain about its status. In Smith, Justice Scalia had to bend over backwards to distinguish away Yoder. Accordingly, I did not think Yoder had much play outside the narrow confines of that decision. The Burger Court was sympathetic to the Amish, but I doubt other religious groups would have gotten similar treatment. This case doesn't appear in the Barnett/Blackman casebook.
In Mahoud, the lower court limited the case to the unique circumstances of the Amish. The District Court "dismissed Yoder as 'sui generis and 'inexorably linked to the Amish community's unique religious beliefs and practices.'" Justice Alito, however, explained this was an error:
Contrasting Coercion for the Free Exercise Clause in Mahmoud and Coercion for the Establishment Clause in Kennedy
The Court finds that the government cannot indirectly coerce children who are exercising their religious beliefs, but the government can indirectly coerce children who are not exercising their religious beliefs.
Mahmoud v. Taylor followed naturally from Skrmetti. Indeed, you could imagine a Court that decided Skrmetti the other would also flip Mahmoud. But given the fact that Skrmetti allowed the state to shield minors from gender transitioning, it makes sense that Mahmoud allowed parents to shield minors from information about gender transitioning.
Still, even though the outcome of Mahmoud was not hard to predict, the Court took a somewhat circuitous route to get there. First, the Court relied almost exclusively on Yoder, and used that precedent to get around Smith. Second, the Court, and Justice Thomas in particular, said almost nothing about substantive due process, even though the right to raise children was grounded in Lochner-era decisions like Meyer and Pierce. I'll address these two topics in other posts.
Here, I will discuss a third topic that requires some unpacking. How can Mahmoud be reconciled with Kennedy v. Bremerton School District? In particular, how can you line up the Court's treatment of coercion in these two recent decisions?
Recall that in Kennedy, the school district argued that the coach's prayers could coerce students, and thus violate the Establishment Clause. But according to the school district, there was "no evidence that students [were] directly coerced to pray with Kennedy." I have read Kennedy to stand for the proposition that only direct evidence of coercion would violate the Establishment Clause. As Justice Gorsuch explained, "[o]ffense . . . does not equate to coercion." Stated differently, merely being exposed to the prayer is not enough.
However, in Mahmoud, Justice Alito's majority opinion discussed coercion in a different fashion. Justice Alito reads Yoder as holding "that the Free Exercise Clause protects against policies that impose more subtle forms of interference with the religious upbringing of children." The Court goes on to say that the government can violate the Free Exercise Clause, even if there is only evidence of indirect coercion. Justice Alito writes:
According to the dissent, parents who send their children to public school must endure any instruction that falls short of direct compulsion or coercion and must try to counteract that teaching at home. The Free Exercise Clause is not so feeble. The parents in Barnette and Yoder were similarly capable of teaching their religious values "at home," but that made no difference to the First Amendment analysis in those cases.
Justice Sotomayor's dissent explains that the Roberts Court has in fact required such a heightened pleading standard.
Consistent with these longstanding principles, this Court has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim. That makes sense: Simply being exposed to beliefs contrary to your own does not "prohibi[t]" the "free exercise" of your religion. Amdt. 1. Nor does mere "'[o]ffense . . . equate to coercion.'" Kennedy v. Bremerton School Dist., 597 U. S. 507, 539 (2022) (quoting Town of Greece v. Galloway, 572 U. S. 565, 589 (2014) (plurality opinion) (alteration in original).
Justice Sotomayor returns to Kennedy later in her dissent.
Administration's Filings in Support of Defunding of Voice of America Are Inadequate, Federal Judge Says
From Judge Royce Lamberth (D.D.C.) today in Widakuswara & Abramowitz v. Lake:
On April 22, 2025, upon finding that the defendants likely violated several provisions of the Administrative Procedure Act (APA), this Court ordered the defendants to "restore VOA programming such that USAGM fulfills its statutory mandate that VOA 'serve as a consistently reliable and authoritative source of news.'" This portion of the Court's preliminary injunction remains in full effect.
On June 23, 2025, the Court held a hearing on the pending Motions for an Order to Show Cause … regarding the defendants' alleged noncompliance with this part of the preliminary injunction. At the conclusion of the hearing, the Court ordered the defendants to file a "supplemental memorandum with additional information regarding USAGM's recent activities, including any relevant information about USAGM [U.S. Agency for Global Media] funding decisions, personnel updates, and submissions to Congress." …
The Court, having now reviewed all filings, is still unable to get a clear picture of how VOA is operating or how the agency plans to operate VOA moving forward.
For example, the defendants cite VOA's ramped-up Persian news programming in the aftermath of the recent Israeli air strikes against Iran as a successful demonstration of VOA's capacity to report the news. The defendants emphasize their ability to "exercise[] recalls, as appropriate," and maintain their "access to critical talent" to carry out operations as needed. But at the same time, the defendants also attach their submission to Congress on June 3rd, showing their intent to fire those very Persian News Network staffers as part of the impending reduction-in-force (RIF). See June 3 Notification to Senator Graham (indicating plan to retain only 11 VOA positions and 2 Farsi language positions). Faced with this record, the Court cannot rely on the defendants' latest representation of the Persian News Network "surge operation" as any measure of compliance.
"Israeli Spy" Allegations Against Consultant Involved in Examining Hunter Biden's Laptop May Be Defamatory
From yesterday's opinion by Judge Michael Nachmanoff (E.D Va.) in Apelbaum v. Bloom:
Yaacov Apelbaum is the founder of XRVision, Ltd., a cybersecurity and analytics company. Plaintiffs Apelbaum and XRVision … attracted media attention in 2020 for their role in examining Hunter Biden's laptop computer, purportedly "analyz[ing] the contents" of a copy of the hard drive "to determine the legitimacy of the [l]aptop."
[Defendant] Jordan Arthur Bloom … is an independent journalist who maintains a blog on the platform Substack. On January 29, 2024, Defendant published an article, "The Role of Yaacov Apelbaum in the Hunter Biden Drama" ("First Article")…. The alleged defamatory statements in the First Article include:
- "Yaacov Apelbaum is an Israeli spy, and the sort of Israeli spy who would have good reasons to smear American facial recognition technology, because his company, XRVision, is a competitor."
- "XRVision has provided sourcing to a bunch of conservative publications, including the Washington Times. So this is an Israeli spy who's deeply involved in shaping the Hunter Biden story."
- "What the case of Apelbaum actually represents is how badly the conservative movement has been penetrated by Israeli intelligence, at the level of human intelligence and technology contracting."
- "It is a sad thing to watch an old man and American president be run around like this by dual loyalists and spies."
Federal Circuit Appellate Brief Filed in Our Tariff Case
Our brief explains why the Federal Circuit should uphold the Court of International Trade decision striking down Trump's "Liberation Day" tariffs.
Today, the Liberty Justice Center and I filed our appellate brief in VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs. Our litigation team also now includes Neal Katyal and Michael McConnell, leading constitutional law scholars and appellate litigators on different sides of the political spectrum. It is an honor to work with the two of them and their teams, and with the LJC team led by Jeffrey Schwab.
The case is now before the US Court of Appeals for the Federal Circuit, and we are defending a unanimous ruling in our favor by the US Court of International Trade. As before, the key issue in the case is that the government claims the International Emergency Economic Powers Act of 1977 (IEEPA) grants the president unlimited power to impose tariffs on any nation, in any amount, for any reason, for any length of time. We argue IEEPA grants no such power, and if it did it would be an unconstitutional delegation of legislative power to the executive. The Court of International Trade rightly ruled that IEEPA does not "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government. We hope the Federal Circuit will reach the same conclusions.
Many of the arguments at the appellate level are the same as those that prevailed below. But we have made a variety of improvements. For example, we explain how the Supreme Court's important recent decision in FCC v. Consumers' Research bolsters our argument that the government's claim to virtually unlimited tariff authority violates the nondelegation doctrine.
Our case is consolidated with one filed by 12 states, led by Oregon, which was decided by the Court of International Trade in the same ruling as ours.
I have written about the issues at stake in this case, in greater detail, here and here. For a complete list of links to my writings about the tariff litigation, see here.
The Liberty Justice Center has issued a statement about today's filing, which I reprint:
On July 8, the Liberty Justice Center continued its legal battle against the Trump Administration's unconstitutional "Liberation Day" tariffs by filing a response brief with the U.S Court of Appeals for the Federal Circuit.
The Liberty Justice Center filed a lawsuit against the "Liberation Day" tariffs on April 14, arguing that the Trump Administration cannot use the International Emergency Economic Powers Act (IEEPA) to justify the imposition of across-the-board tariffs. IEEPA does not mention tariffs at all, and even if the legislation did authorize some tariffs, it is limited to emergencies involving an "unusual or extraordinary threat." Trade deficits—the President's alleged basis for the tariffs—are not unusual, extraordinary, or an emergency. Furthermore, if IEEPA was interpreted to justify the broad tariffs claimed by the President, then it would raise constitutional separation of powers issues.
In May, the Liberty Justice Center secured a major legal victory when the U.S. Court of International Trade unanimously ruled in favor of its clients, holding that the Trump Administration had unlawfully imposed the tariffs under the guise of emergency economic powers. The federal government has since appealed that ruling to the Federal Circuit—and today's filing is the LJC's formal response to that appeal.
The Liberty Justice Center's legal challenge is joined by leading appellate lawyers and constitutional scholars Judge Michael W. McConnell, Neal Katyal, and Ilya Somin.
"The 'Liberation Day' tariffs would be devastating to the economy, to the small businesses we represent, and to the rights of all Americans. The executive branch cannot usurp Congress's authority to impose tariffs without blatantly violating the separation of powers—and it especially cannot fabricate emergencies to justify that violation. We are proud to continue our fight to hold all levels of government accountable to the people and the nation they serve," said Jeffrey Schwab, Senior Counsel and Director of Litigation at the Liberty Justice Center.
Oral arguments in the government's appeal are scheduled for July 31 at 10 am EDT before the U.S. Court of Appeals for the Federal Circuit. The arguments will be available via livestream here. Following the hearing, the Liberty Justice Center will host a media roundtable to discuss next steps in the case and answer questions from members of the press. To RSVP for the roundtable, visit the Liberty Justice Center's media reservations page here.
The government's opening appellate brief is available here.
If Companies Set Up Ethnic Affinity Groups for Employees, Must They Also Set Them Up for Jewish Employees? [UPDATE: Microsoft Has Changed Its Policy to Include "Jews at Microsoft"]
Yes, argues the Brandeis Center in a letter to Microsoft.
UPDATE 7/8/2025: The Brandeis Center sent out a press release, stating:
The Louis D. Brandeis Center for Human Rights Under Law today commended Microsoft on its decision to equalize its treatment of its Jewish employee network, "Jews at Microsoft" (JAMS), alongside other recognized and funded ethnicity-based employee networks ….
Microsoft's nine top-tier employee networks, designated as Employee Resource Groups (ERGs), were company-recognized, sponsored, and supported organizations of employees within Microsoft based around a particular identifying characteristic, such as ethnicity, that afforded members of that ethnic group extra opportunities for professional development, career advancement, and the ability to collectively oppose discrimination in the workplace. Microsoft hadn't recognized religion as a category of identity permitted to establish an ERG, and refused to recognize the ethnic characteristic of Jewish identity; thus, Microsoft refused to recognize a Jewish ERG, denying Jewish Microsoft employees benefits that are provided to others. This violates Title VII of the Civil Rights Act of 1964.
Microsoft advised its various employee groups today that it is restructuring its employee network program so that all employee groups are equally recognized and funded, including JAMS.
ORIGINAL POST, 5/16/25: From the letter:
We write on behalf of Jewish employees of Microsoft who are also members of the Louis D. Brandeis Center Coalition to Combat Anti-Semitism ("the Coalition") to explain why Microsoft's refusal to establish a Jewish Employee Resource Group (ERG) alongside its existing network of ERGs has resulted in distributing very real professional benefits and advantages on the basis of ethnic or racial identity, while denying these benefits to Jewish and other employees. Providing all employees equal access to professional benefits and opportunities, including Microsoft's Jewish employees, is the right thing to do and is compelled by various federal and local anti-discrimination statutes. Moreover, by denying Jewish employees the very real advantages that Microsoft claims its ERGs bestow, Microsoft has allowed anti-Semitism to fester at Microsoft.
Microsoft's refusal to acknowledge its Jewish employees' right to an ERG seems to stem from a mistaken pigeonholing of Jewish identity as merely "religious," a category of identity that Microsoft excludes from its ERG program. In fact, Jews are a people with a shared ethnic and ancestral heritage. Irrespective of any shared creed or belief in a deity, Jews share a common lineage, history, culture, and language(s). This is the dictionary definition of ethnicity. Jews who never attend synagogue, observe Jewish holidays, practice Jewish religious rituals, or even believe in the religious tenets of Judaism are still ethnically Jewish, an understanding that is widely supported in academic literature and surveys of Jewish American life.
More importantly here, the law recognizes that Jewish identity isn't protected from discrimination based merely on its religious character, but also on its shared ethnic and ancestral heritage (including where protections based on race incorporate ethnicity).
Microsoft's ERGs share common features of ERGs at most Fortune 500 companies. They are employee-led and driven, so that topics of conversation and action come from the employees themselves based on their lived workplace experiences. They connect employees to company leadership, making it easier to collectively communicate broader workplace equity and inclusion concerns to those with the power to do something about them. They allow employees to represent and express themselves on their own terms, both to corporate leadership and to their colleagues. They facilitate corporate charitable giving to organizations that do work in their communities. And they foster networking and career advancement within the company.
In short, Microsoft's ERGs are a material "term and condition" of employment for Microsoft's workforce and distribute valuable benefits on the basis of identity.
Jewish Microsoft employees are no less deserving or in need of an ERG than other ethnic groups at Microsoft. Currently, Jewish (and other) Microsoft employees are denied various benefits of Microsoft employment:
No Sealing of Opinion Related to Guantanamo Detainee (Now Released to Oman)
From Abdullah v. Trump, decided in March by Judge Emmet Sullivan (D.D.C.), and reaffirmed Sunday (with a comment that "in the nearly four months since the Court gave Mr. Abdullah that opportunity, he has not sought to redact any information"):
On December 31, 2024, this Court denied two motions filed by Mr. Abdullah seeking his immediate release from Guantanamo Bay. The Court posted the Order accompanying the Memorandum Opinion on the public docket but posted the Memorandum Opinion under seal and directed the parties to post a public version on the public docket within fourteen days.
On January 6, 2025, Mr. Abdullah appealed the Court's denial of his two motions …. On January 7, 2025, the government filed a notice that it had transferred Mr. Abdullah to Oman. The same day, this Court entered an order denying Mr. Abdullah's Motion for Order Granting Writ of Habeas Corpus as moot ….
On January 28, 2025, [having gotten an extension,] the government filed the redacted public version of the Memorandum Opinion [available here -EV]. Two days later, Mr. Abdullah filed his Motion to Seal in which he asks the Court to permanently seal the Memorandum Opinion ….
Mr. Abdullah's two main arguments for the Court to seal its Memorandum Opinion are that public release after the Memorandum Opinion became unreviewable as moot would: (1) be an impermissible advisory opinion under Article III of the United States Constitution; and (2) "shred what remains" of Mr. Abdullah's privacy interests….
Magistrate Judge Recommends Not Dismissing Prosecution of Wisconsin Judge Hannah Dugan for Allegedly Interfering with Immigration Arrest
From yesterday's report and recommendation by Magistrate Judge Nancy Joseph (E.D. Wisc.) in U.S. v. Dugan:
The indictment charges as follows:
[Count One:] On or about April 18, 2025, Dugan knowingly concealed E.F.R., a person for whose arrest a warrant and process had been issued under the provisions of the law of the United States, so as to prevent the discovery and arrest of E.F.R., after notice and knowledge of the fact that a warrant and process had been issued for the apprehension of E.F.R., in violation of 18 U.S.C. § 1071[.]
[Count Two:] On or about April 18, 2025, Dugan did corruptly endeavor to influence, obstruct, and impede the due and proper administration of the law under which a pending proceeding was being had before a department and agency of the United States, namely the administrative arrest of E.F.R. for purposes of removal proceedings conducted by the United States Department of Homeland Security, by committing affirmative acts to assist E.F.R. to evade arrest, including:
- confronting members of a United States Immigration and Customs Enforcement (ICE) Task Force and falsely telling them they needed a judicial warrant to effectuate the arrest of E.F.R.;
- upon learning that they had an administrative warrant for E.F.R.'s arrest, directing all identified members of the ICE Task Force to leave the location of the planned arrest (a public hallway outside of Courtroom 615 of the Milwaukee County Courthouse) and go to the Chief Judge's office;
- addressing E.F.R.'s Milwaukee County Circuit Court criminal case off the record while ICE Task Force members were in the Chief Judge's office;
- directing E.F.R. and his counsel to exit Courtroom 615 through a non-public jury door; and
- advising E.F.R.'s counsel that E.F.R. could appear by "Zoom" for his next court date
[i]n violation of 18 U.S.C. § 1505….
Dugan sought to dismiss the indictment, on the grounds that her actions were protected by judicial immunity; the Magistrate Judge went through a long analysis of the precedents on judicial immunity (dating back to 1607), and summarized it thus:
"Actions of Slander, Founded on Trifling Causes, to Gratify a Petulant and Quarrelsome Disposition"
From Judge Edward Shippen in Rue v. Mitchell (Pa. Ct. Com. Pl. Phila. County 1790):
Generally speaking, indeed, actions of slander, founded on trifling causes, to gratify a petulant and quarrelsome disposition, will not be encouraged by the court; but when the reputation, trade, or profession, of a citizen it really affected, for the sake of doing justice to the dearest interests of individuals, as well as for the sake of preserving public order, and tranquillity, every appeal to the tribunals of our country ought to be liberally sustained.
$725K Settlement in University of North Texas Academic Freedom Case
The case settled while motions for summary judgment were pending; the plaintiff, Prof. Timothy Jackson, had prevailed against an earlier motion to dismiss, and the Fifth Circuit had also rejected defendants' appeal as to procedural matters.
Here's a summary of the underlying legal issue, as reported in Jackson v. Wright, decided in 2022 by Judge Amos Mazzant (E.D. Tex.):
This case stems from the suppression of academic scholarship at the University of North Texas …. Plaintiff Dr. Timothy Jackson is a professor and scholar of music theory at UNT. He has dedicated much of his 40-year career to studying Heinrich Schenker …, an Austrian Jew who developed a system of music theory that became influential in the United States after World War II. Prior to this lawsuit, UNT was home to, and Plaintiff directed, the Center for Schenkerian Studies. Plaintiff was also a founding member of the Journal of Schenkerian Studies …, which was formerly published by the UNT Press.
Plaintiff's area of expertise became a topic of controversy in November 2019 at a convention of the Society for Music Theory. Philip Ewell, a Black professor at Hunter College of the City University of New York, delivered for the Society a plenary address titled "Music Theory's White Racial Frame." During this talk, Professor Ewell critiqued the discipline of music theory for its "deep-seated whiteness" and described Schenker as "an ardent racist and German nationalist." In a paper later published on this talk, Professor Ewell argued that "Schenkerian theory is an institutionalized racial structure … that exists to benefit members of the dominant white race of music theory."
As a lead editor of the Journal (of which Schenker is the namesake), Plaintiff … organized a symposium and invited music scholars to submit papers in response to Professor Ewell's talk and publication….
The symposium contributions reflected a range of views on Professor Ewell's arguments and were published in the Journal in July 2020. Plaintiff contributed one of the pieces, which accuses Professor Ewell of quoting Schenker without context, failing to discuss the evolution of Schenker's views on race during his lifetime, and refusing to acknowledge that Schenker was a victim of anti-Semitism.
Plaintiff also suggested Professor Ewell's criticisms of Schenker might themselves have constituted anti-Semitism. In support of this contention, Plaintiff cited studies purportedly classifying Black people as more likely to hold anti-Semitic views than whites. Plaintiff closed his article by asserting that the paucity of African American involvement in music theory discipline results from "few grow[ing] up in homes where classical music is profoundly valued, and therefore … lack[ing] the necessary background."
Religion at the Supreme Court
Three Cases from OT 2024
Last month, the Supreme Court wrapped up its October 2024 Term, which included three church-state decisions. Each touched on long-running issues—public funding for religious schools, the definition of "religious" for purposes of exemptions, and parental rights in public education. But only one case, Mahmoud v. Taylor, resulted in a major ruling. The two others, for different reasons, turned out to be less eventful.
Start with Oklahoma Statewide Charter School Board v. Drummond, a case that could have clarified whether religious charter schools are permissible under the Establishment Clause. The Oklahoma Supreme Court had barred a proposed Catholic charter school, St. Isidore, reasoning that it qualified as a state actor. St. Isidore argued it was more akin to a private contractor participating in a public program—like in Espinoza and Carson, two earlier school funding cases—and thus eligible for equal treatment.
The Supreme Court granted cert, but Justice Barrett recused herself—most likely because Notre Dame's Religious Liberty Clinic was deeply involved in the litigation. That led to a 4–4 split, affirming the Oklahoma ruling without setting precedent. Had Justice Barrett participated, she likely would have sided with the conservatives, and the case might have opened the door to religious charter schools nationwide. As it stands, the issue remains unresolved and will likely return.
Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission also failed to result in a major holding. The case concerned tax exemptions for religious organizations. Wisconsin exempts nonprofits that operate "primarily for religious purposes," but denied the exemption to certain Catholic social service agencies because, as matter of belief, they didn't proselytize or limit aid to co-religionists, and so could not be considered to operate for "religious" purposes.
The Court unanimously rejected that reasoning. Writing for the Court, Justice Sotomayor explained that Wisconsin's test amounted to theological discrimination—treating some religious groups less favorably because of their faith commitments. The Court's narrow decision avoided broader questions about when religious exemptions are constitutionally required or how to define religious exercise under the Free Exercise Clause. Read More
Anti-Israel/Anti-Zionist Speech Doesn't Violate School Board Members' Ethics Obligations, When Said in the Member's Personal Capacity as Professor
But speech sharply critical of Reps. Ilhan Omar and Rashida Tlaib, and of Sharia (and thus perhaps of traditionalist Islam) had been found, by the same commission, to be unethical.
From yesterday's decision in Siegel v. Aziz (N.J. Super. Ct. App. Div.) (by Judges Ronald Susswein and Lisa Perez-Friscia):
Defendant was elected and sworn in as a member on the Westfield Board of Education in January 2021. Her term ended in April 2024. Defendant is also a law professor at Rutgers Law School and her scholarship includes topics such as "Islam, Secularism [and] Human Rights, religion and race, Critical Race Theory, and Middle Eastern law and politics." …
[D]efendant and various professors throughout the country signed a letter titled "Palestine and Praxis: Scholars for Palestinian Freedom" (Letter). Plaintiff alleged in her complaint that the Letter advocates, inter alia, boycotting and imposing sanctions against Israel for its treatment of Palestinians as well as supporting student activism on university campuses.
On March 15, 2023, defendant "retweeted" a social media post stating, "Israeli protestors take to streets to safeguard master-race democracy[.] 'The protestors seek to beautify an Isreal that has always been nothing more than a predatory settler-colony that grants privileges to Jewish colonists[.]' [-]Joseph Massad" and included a link to an article from "middleeasteye.net" titled "Israeli protestors take to streets to safeguard master-race democracy."
On November 30, 2022, defendant retweeted a social media post stating:
Today, @alhaq_org and a coalition of Palestinian human rights organizations are launching a new landmark report that reclaims the current discourse on Israeli apartheid and examines its reality and origin as an integral part of Israel's settler-colonial regime.
Israeli #apartheid is a tool of Zionist settler #colonialism. What does this mean & what are the origins, logic & institutions of Israeli oppression of the Palestine people as a whole? All of this & more are discussed in our new report for @alhaq_org [website link][.]
On February 27, 2023, defendant retweeted a social media message and website link from the "Center For Security, Race and Rights" which stated "'[StandWithUs'] interest isn't in student well-being but rather to slander…Galvanizing racist, anti-#Arab and anti-#Palestinian tropes is not difficult in a post-911 era. StandWithUs just had to redact every name but mine and let racism/sexism do its job[.]'" Defendant added her own text, stating "Vilifying #Arab and/or #Muslim women has become the new strategy of #Zionist groups. #Islamophobia and #Orientalism is pervasive. For more, read The #RacialMuslim @BernieSanders @AOD @IlhanMN @RepRashia[.]"
On August 23, 2022, defendant tweeted a website link to an article titled "She was fired for being publicly pro-Palestine. One year later, no one is hirin[g]." Defendant added the text: "[a]thletic trainer was fired from Philadelphia's Agnes Irwin School for her pro-#Palestine stance."
Plaintiff filed an ethics complaint with the School Ethics Commission, which the SEC rejected:
Another Boston Judge Enters Ex Parte TRO Hours After Filing, Without Any Time To Actually Read Filings
The judge also granted TRO of a statute without even addressing any of the usual factors.
Today, Planned Parenthood challenged the constitutionality of the Big Beautiful Bill, which cuts funding for the organization. Planned Parenthood chose the District of Massachusetts. The Motion for a TRO was fifty-three pages long. According to press reports, the District Court granted the ex parte TRO within a few hours. (ECF should really start including time stamps, now that the Supreme Court has ruled constructive denials can be measured in minutes.)
Was this even enough time to read the entire brief? To consider it? To give it some thought? Or was this just a reflexive TRO that was granted because the Defendant is the Trump Administration? We saw a similar immediate TRO granted by another Federal District Court Judge in Boston who ruled in favor of Harvard, without any opportunity to actually review the pleadings. Then again, when the Supreme Court holds that District Courts are deemed to constructively deny TROs when they don't rule in a few hours, lower courts take notice. There are no Denny's in Boston. But for those curious, the one Denny's in Lubbock is open 24x7.
You can tell the Judge in the Planned Parenthood case rushed. The order didn't even address any of the usual factors. There was zero analysis whatsoever. I don't see how this is a valid TRO. You need to at least gesture to the four factors.
Worse still, this was a TRO not of an executive action, but of an actual statute that passed bicameralism and presentment. And the judge ordered the executive branch to appropriate money that was expressly unappropriated.
Defendants, their agents, employees, appointees, successors, and anyone acting in concert or participation with Defendants shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood Federation of America and its members; Planned Parenthood League of Massachusetts; and Planned Parenthood Association of Utah.
This is basically an administrative stay of an appropriations statute!
It is not even clear the court's equitable powers supports such a remedy.
The TRO also requires the expenditure of funds not authorized by Congress, in violation of the Appropriations Clause. And SCOTUS held in OPM v Richmond (1990) that not even a court's equitable powers can overcome that bar.
— Trent McCotter (@TrentMcCotter) July 8, 2025
Lower court judges are misbehaving. The Supreme Court sent a clear signal on universal injunctions. I think a similar message needs to be sent about ex parte TROs. You should at least take enough time to "pretend" to read the complaint.
Update: A colleague found a transcript from the Boston Judge in 2023. At the time, she suggested she could not read a brief the same day it was filed:
"I don't think I can read the papers on Monday if you file them on Monday." [apparently she's gotten faster at reading] . . . I haven't read the papers. . . . I haven't read the papers yet.
"Book on Machine Learning Is Full of Made-Up Citations"
So alleges Retraction Watch (Rita Aksenfeld):
Based on a tip from a reader, we checked 18 of the 46 citations in the book {Mastering Machine Learning: From Basics to Advanced}. Two-thirds of them either did not exist or had substantial errors….
The book's author, Govindakumar Madhavan, asked for an additional "week or two" to fully respond to our request for comment. He did not answer our questions asking if he used an LLM to generate text for the book. However, he told us, "reliably determining whether content (or an issue) is AI generated remains a challenge, as even human-written text can appear 'AI-like.' This challenge is only expected to grow, as LLMs … continue to advance in fluency and sophistication." …
When asked about the potential use of AI in the work, [Springer Nature senior communications manager Felicitas] Behrendt told us: "We are aware of the text and are currently looking into it." She did not comment on efforts taken during Springer Nature's editorial process to ensure its AI policies are followed….
The Texas Law Deans Provide A Weak Defense of the ABA's Accreditation Role
If this is the best the law deans can muster, SCOTX should seriously reconsider what value the ABA provides.
Last week, I submitted a comment to the Supreme Court of Texas. In short, I argued that SCOTX should discount the opinions of the law school deans, as they do not represent the public interest. I've now reviewed the letter signed by deans from eight law schools, including my own. With respect, I did not find this letter very persuasive. Indeed, if this is the best the law deans can muster, then SCOTX should seriously reconsider what value the ABA provides. By contrast, the letter from University of Texas Dean Bobby Chesney offers a candid and realistic assessment of the costs and benefits of the ABA.
Let's walk through the primary letter, which I suspect was drafted by Dean Leonard Baynes at the University of Houston Law Center. (As a general rule, the lead signature usually belongs to the primary mover.)
First, the letter states that the ABA provides a "baseline of educational quality that correlates with higher bar passage rates." Baylor Law School, which signed the letter, consistently leads the state with a bar passage rate over 90%. Other schools that signed the letter routinely have a passage rate in the 70% range. Does anyone think that the ABA accreditation provides a "baseline" to determine bar passage? No. Bar passage is a combination of incoming class credentials, combined with the "secret sauce." The ABA does require that law schools maintain a minimum level of bar passage. The Supreme Court of Texas could easily impose the same requirement.
Second, the letter contends that removing the ABA's role would harm "the unserved and underrepresented, exacerbating existing access to justice challenges in Texas." Quite the opposite. The ABA is a cartel, which creates massive barriers to entry, and increases the cost of legal education. There are currently no law schools in the Rio Grande Valley, parts of East and West Texas, and the Panhandle. Those markets could be served through innovative approaches. If SCOTX moved on from the ABA, law schools could innovate, and there would be more opportunities to promote access to justice.
Third, the Deans actually complain that removing the ABA's role would make it harder for U.S. News to calculate rankings. This argument may seem persuasive to Deans, but I doubt the Supreme Court of Texas will care much about what a (former) magazine publishes. And it wouldn't be hard for SCOTX to require law schools in Texas to publish these numbers. Indeed, I agree with Seth Chandler that accreditation should move to a formula based on such outputs.
Fourth, the Deans assure SCOTX that the DEI standards are "suspended" Yet, after Students for Fair Admissions, but before Trump's elections, many of these Deans vigorously defended the DEI standards. I am not at all confident the ABA can be trusted if the Damoclean sword is eliminated.
At bottom, all the Deans have to rely on is portability. They worry that students who do not plan to practice in Texas will not attend their schools. But as I explained in my comment, accommodating the needs of students who wish to leave Texas is not exactly in the best interest of Texas.
I think a far better statement comes from UT Law Dean, Bobby Chesney. (It does not seem the Dean of Texas A&M submitted a letter). Chesney explains how the ABA's standards do not simply set a minimum baseline, but instead try to impose "best practices." For example, the current "experiential learning" rule would impose handcuffs on law schools:
Even so, when the ABA Standards not long ago were amended to require every law school to change their graduation requirements such that every student (no matter their career goals and no matter the school's resources) must spend at least six of their credits taking experiential courses, it seemed to many to be an example of the Council growing increasingly comfortable imposing its conception of best practices rather than confining itself to policing the baseline adequacy of the schools. But that original intervention was minor compared to the proposed expansion of this rule currently on the table.
Chesney closes with a call for change:
From that perspective, a well-designed alternative pathway should turn on an intentionally-parsimonious set of benchmarks for baseline adequacy, thus leaving maximum room for innovation. If well chosen, those benchmarks might actually be relatively administrable. They might consist, for example, of relatively-objective input measures such as the credits and particular courses required for graduation, the quantity and qualifications of the faculty, grading policies, etc. But in the spirit of innovation, they probably should as much or more emphasize outcome measures, especially bar passage, employment percentages, and cost-to-salary ratios.
One could err on the side of taking great risk in this way, in hopes of unleashing exciting innovations. Or one could err the other way, cracking the door open only to a limited degree by keeping the benchmarks (particularly requisite bar passage levels) demanding. Either way, however, it would be fascinating to see what might arise should the Court reopen such a pathway given the current climate of innovation, change, and cost concerns. I hope the Court will give some version of it a shot; it seems the Texas thing to do.
I agree with Chesney.
SCOTUS Bends The Law In Yet Another Obamacare Case
Kennedy v. Braidwood Management, Inc. follows in the ignoble tradition of NFIB, King, and California.
For more than a decade, it seems that different rules apply to Obamacare cases. In NFIB v. Sebelius (2012), a penalty was rewritten into a tax, and a mandatory Medicaid expansion was rewritten into a voluntary program. In King v. Burwell (2014), "established by the State" was rewritten as "established by the federal government." In California v. Texas (2021), the Court found that the plaintiffs waived a standing argument that was clearly invoked. And so on. When health care is at issue, all the usual rules go out the window.
The latest ACA case continues the trend. Kennedy v. Braidwood Management, Inc. is an Appointments Clause case. Yet, the Court resolves this dispute based on a theory not developed below. Justice Thomas's dissent explains what happened:
This case concerns the U. S. Preventive Services Task Force, a body that issues legally binding recommendations regarding preventive healthcare treatments. At the beginning of this suit, a subordinate official within the Department of Health and Human Services (HHS) had for years appointed the Task Force's members. Everyone now agrees that this practice was unlawful. Everyone further agrees that no one statute provides for a department head to appoint the Task Force's members. But, rather than accept that the default mode of appointment applies, the Government invented a new theory on appeal, arguing that the combination of two ambiguously worded statutes enacted decades apart establishes that the Secretary of HHS can appoint the Task Force's members. The Court today rushes to embrace this theory. I cannot. To begin with, I would not rule on the Government's new theory before any lower court has done so.
Thomas writes that two questions are presented, but the Fifth Circuit only considered the latter question:
I would remand for the Fifth Circuit to consider the important threshold question that it skipped: whether the Secretary has the statutory power to appoint the Task Force. The Secretary may appoint the Task Force's members only if (1) Congress has vested in the Secretary the power to appoint them, and (2) the members are inferior officers under the Appointments Clause. The answer to the first question significantly affects the analysis of the second question. But, no court has passed on the first question, and this Court has had only a limited opportunity to consider it.
And the novel theory the Court relied on was based on the Reorganization Plan of 1966 (not a statute). This Plan could not vest the Executive with new powers that did not exist in 1966. Yet, that is exactly what the government argued here.
Thomas explains:
Here, the purpose of a "reorganization" plan is to "give a definite and orderly structure to" a department's existingfunctions, not to create new functions that a departmentcannot otherwise lawfully perform. Oxford English Dictionary 923–924 (2d ed. 1989) (defining "organize"). A plan may not, "under the guise of consolidating and rearranging, . . . creat[e] authority in the Executive Branch which had not existed before." Dept. of Justice, Office of Legal Counsel,Memorandum of William H. Rehnquist, Assistant Atty.Gen. (Sept. 11, 1969), in Reorganization Plan No. 1 of 1969 (ICC): Hearing before the Subcommittee on Executive Reorganization of the Senate Committee on Government Operations, 91st Cong., 1st Sess., 29 (1969) (Rehnquist Memorandum). Yet, that is precisely what the Government'sreading accomplishes, since, without the ReorganizationPlan, the Executive has no power to appoint the Task Force outside the gauntlet of Senate confirmation.
Seth Barrett Tillman and I wrote about the Rehnquist opinion here.
Justice Thomas also gets a good dig in about how Justice Kavanaugh focus on executive branch practice:
The intervening passage of the ACA also makes the majority's appeals to "consistent Executive Branch practice" fall flat. Ante, at 31 (citing Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024)).The Government concedes that its practice from 2010 until its appeal inthis suit was for the AHRQ Director to appoint Task Force members invalidly, based on the mistaken view that the members were not officers. See Brief for Federal Defendants in Braidwood Mgmt., Inc., No. 23– 10326 (CA5), ECF Doc. 159, pp. 31, n. 2, 41. The practice thus sheds no light on whether the Director's convening power constitutes an express vesting of appointment authority that overcomes the constitutional default. And, surely this Court did not overrule Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), only to defer to concededly unlawful executive action.
There is a big problem with Justice Kavanaugh's fixation on tradition. At bottom, it is a deference doctrine, where unlawful conduct can become lawful if it continues.
In the normal course, the Supreme Court would have remanded the case to the lower court. But it seemed pretty clear that the Supreme Court did not want to give the Fifth Circuit another crack at this case, so the majority went ahead and decided this novel issue from scratch.
Here is your regular reminder that President Trump could have, but didn't, elevate his Fifth Circuit appointees to the Supreme Court.
