Plaintiff J. Doe is a nonbinary student who attends a high school that is operated by Defendant Albemarle County School Board ("ACSB"). Doe has experienced gender dysphoria for as long as they can remember. As a result of discomfort with their biological sex and experiences being misgendered, Doe has battled significant symptoms of anxiety.
In September 2025, a Turning Point USA ("TPUSA") student club at Western Albemarle High School ("WAHS") informed the principal that they planned to host guest speaker and Defendant Victoria Cobb for an event entitled "Two Genders: One Truth." Cobb, the president of a Christian lobbying organization, has publicly opposed gender affirming efforts and denied that gender identity is immutable. After receiving community pushback, as well as demand letters advocating both for and against allowing the event, ACSB decided that the speaker event could proceed as a club meeting during the lunch hour, where student attendance was voluntary, so long as the event remained orderly and respectful. The club promoted the event with flyers throughout the school during the week leading up to the event.
Doe sued, "claiming that ACSB's decision to allow the TPUSA club to host and promote the Event constituted deliberate indifference to severe and pervasive sex-based harassment." The court rejected the claim on the facts, but concluded that allowing the event may have created a subjectively hostile educational environment:
Well, I don't know how much coverage of the court you read, but you may not be surprised to learn that one light motif [likely an erroneous transcription of "leitmotif"] is that you are brooding figure. Um here's a a passage from a book by Joan Biskupic of CNN: you wear a heavy cloak of grievance as if perpetually wronged, destined to be misunderstood.
Biskupic has made similar comments in the past. In December 2025, she published a column titled "Samuel Alito keeps getting his way. So why does he seem so unhappy?" Without any actual evidence beyond staring at the Justice in Court, Biskupic wrote:
Alito's aggravation is regularly on display in the courtroom, too. . . .
In the courtroom, even the little things can visibly irk Alito. He often grimaces and rolls his eyes. . . .
Other justices laughed. They appear accustomed to his unguarded irritability.
At the time, I remarked how empty this commentary was:
The media does not fairly cover the conservative Supreme Court justices. But it is not enough to criticize their written opinions. Rather, pundits feel compelled to opine on how the Justices feel. Case in point is a recent headline from Joan Biskupic, titled "Samuel Alito keeps getting his way. So why does he seem so unhappy?" Does Biskupic have any evidence that Alito is unhappy? Did she talk to the Justice or his clerks? No, Biskupic apparently no longer has access to that sort of actual information. Instead, she based her conclusions on the Justice's facial expression on the bench.
Now, Justice Alito has fired back:
I think that's very unfair, and it is part of a process of caricaturing the justices with whom the people who are writing these things disagree. Nothing similar is written about some of my colleagues who have issued blistering dissents, blistering dissenting statements from the bench, made what can only be described as very angry comments during oral argument. None of that is written about any of them, but this is written about me. Now, what do court watchers, so to speak, see of me? They see me at oral argument, and that's basically it. Oral argument to me is a serious business. It's supposed to help us make good decisions. And so I challenged the lawyers. I argued a lot of cases. I expected to be challenged. I actually welcomed it because I thought that I could, by responding to the challenges, I could win over a justice or a judge who came into the argument perhaps disposed to rule against me. But I don't treat oral argument like a moot court. I don't treat it like show. I don't play to the audience. I don't try to get laughs. I don't try to show how smart I am. It's pretty businesslike, and perhaps that's what they're referring to.
Good for Alito. Watch this hour long interview, and others. You will not see some sort of brooding, grumpy old man. Alito is charming, funny, and engaging. He just doesn't waste his time talking to elites who hate him.
Biskupic will never criticize the demeanor of Justice Ginsburg on the bench. Lord help us if someone writes that Justice Sotomayor looks "angry" or Justice Jackson looks "confused." Only the conservative Justices get this sort of treatment.
The fact is that Joan Biskupic long ago stopped gaining useful information about the Court. Other Supreme Court reporters simply write about the questions and answers during oral argument. They perform a useful subject. But Joan wants to convey the impression that she still has useful things to say, so she reports on body language. I've seen her at work in the Court. She stares intently at the bench and takes careful notes. I think it's best to just skip over her work.
On a related note, Justice Alito commented to NPR about Nina Totenberg's failed report that he was retiring.
In the privacy of his chambers, how did Alito react to the inaccurate story, quickly retracted by National Public Radio?
"I was amused and puzzled," Alito told USA TODAY in answers to written questions. "I wondered what had led to the erroneous report. And when the error was corrected, I wondered how many people were crest-fallen."
Who was sad when the story was corrected? I suspect everyone on the left let out a high sigh of relief when NPR retracted, as the 76-year old would (likely) stay on the bench. Remember, Totenberg successfully spiked the nomination of Doug Ginsburg, nearly spiked the nomination of Clarence Thomas, and failed miserably in trying to spike the nomination of Neil Gorsuch. Their goal is to keep new conservative Justices off the bench.
Speaking of which, Jodi Kantor has come up pretty dry over the past year. She published some memos from ten years ago, which seems to be a fluke that some law clerk held onto things for that long. Her frolic and detour to the Chief's summer home was pretty pathetic. Longtime readers may remember that I initially called for the Chief to resign back in 2020 after the torrent of leaks--not in response to any particular decision. But it seems that Roberts has locked things down. Maybe the NDAs are working? Maybe the liberal justices realize that leaks can get their colleagues assassinated? (Although Justice Alito insinuated that there was no urgency in the two months after the Dobbs opinion leaked.) Whatever happened, it is working. I think I can rescind my call on the Chief to step down.
The talk, "Litigating for Liberty / Judging About Liberty," is part of the Libertarian Litigation Speaker Series at UCLA School of Law (room 1457). Justice Bolick, as many of you know, is one of the most prominent judicial experts on state constitutions, including the special protection they offer individual rights. And before going on the bench, he was a prominent libertarian litigator: Among other achievements, he cofounded the Institute for Justice, one of the nation's leading libertarian public interest law firms, which specializes in matters such as economic liberty, school choice, and more. He will speak about his experience, and his approach to liberty, both in his time as a lawyer and in his time as a judge.
The event is mostly aimed at UCLA students, but is also open to the public. If you're in L.A. and would like to join us, please RSVP at this link by October 9 (this Friday) for a dinner box catered by Sweetpea. You should feel free to attend in any case, but only an RSVP will get you dinner.
Today is the third anniversary of the horrific October 7, 2023 Hamas terrorist attack on Israel. Despite various ceasefires and the release of the remaining hostages, the resulting war has never wholly ceased. Fighting between Israel, Hamas, and Hezbollah continues to varying degrees. And now we have the distinct but nonetheless interconnected Iran War. I wish there was something I could say to ease the continuing pain of the victims of the attack and their families. But that task is far beyond my very limited eloquence.
Still, over the past three years I have written pieces on various aspects of the conflict and the reaction to it in the West, that may be of interest. This post is a compilation of them. I have included links to pieces about the Iran War, because that conflict is connected in various ways to October 7, even if also distinct. Some material has been adapted from a similar post I did on the first anniversary of Oct. 7, in 2024. But much is new, including many links to more recent writings.
I hold a somewhat unusual combination of views on the conflict, one likely to annoy some on both the right and left, and both critics and supporters of Israel. I am no great fan of the present Israeli government, or of the ideology of Zionism (the latter because of my general opposition to ethno-nationalism). Yet I nonetheless believe Israel has every right to seek the elimination of Hamas and deal a decisive defeat to its other adversaries, as well. I agree with many, though certainly not all of the points, made in this recent interview by Israeli opposition leader Gadi Eisenkot, both in his support of Israel's right to defend itself, and in his condemnation of the present Israeli government (including its treatment of West Bank Palestinians). For all its serious flaws from the standpoint of liberal values, Israel is incomparably superior to its enemies.
A small anecdote can help illustrate the point. I have visited Israel several times, and even been a visiting professor there. One of my acquaintances there is Arab Israeli legal academic Mohammed Wattad; since we first met in 2016, he has become the president of one of the country's major universities.
Can you imagine a Jew leading any major institution under the rule of Hamas, Hezbollah, Iran, or even the Palestinian Authority? The question answers itself. Indeed, a Jew probably could not even remain alive for long under most of these regimes. Hamas and Hezbollah are severely repressive even towards Arab Muslims who dare dissent from the rulers' quasi-medieval theocracy. Iran, of course, represses Muslim dissenters, as well, as we saw earlier this year, when the regime slaughtered thousands of protestors.
As Wattad will likely remind me next time we talk, Arabs face considerable discrimination in Israel. That is wrong, and deserves condemnation. But the rule of Hamas, Hezbollah and the PA is vastly worse. Arabs under Israeli rule not only have more rights than ethnic and religious minorities under the control of Israel's enemies; they even have more rights than do Arab (or Iranian) Muslims under the latter regimes. Things are worse for West Bank Palestinians than Arab Israelis, on which see my recent post here. But even they are unlikely to be better off with a Hamas victory that would put them under the rule of a brutal theocratic dictatorship.
In any conflict, I prefer the victory of the side that better approximates liberal democratic values - at least in situations where there is a meaningful difference between the two. In this case, there is no question that side is Israel, even as we should also recognize Israel's very real flaws.
Without further ado, here are links to my writings on the post-October 7 conflict and related issues. For convenience, I have put them in chronological order, and divided them into one section on the war itself, one on the related Iran War, and one on the Western reaction, including resulting protest movements. Except where otherwise noted, all of these writings are posts published here on the Volokh Conspiracy blog:
Writings on the War and Related Issues
"Those Who Support Israel Against Hamas Should also Back Ukraine Against Russia," Oct. 12, 2023. There are many parallels between the two conflicts. The post is primarily directed at right-wingers who back Israel, but not Ukraine. But most of the points it makes apply equally to leftists who hold the exact opposite combination of views. That latter group has become more significant since I wrote this post.
"Hamas Attack Should Teach Us the Folly of Hostage Deals with Terrorists,"Oct. 17, 2023. This may be one of my most unpopular takes. It may seem like only a cruel and heartless person could possibly oppose deals that release hostages. But, as I point out in the piece, such deals incentivize further terrorism and hostage taking. The October 7 attack itself was masterminded by Yahya Sinwar, a Hamas leader released in the 2011 Shalit deal, in which the Israelis released some 1200 terrorists in exchange for one soldier captured by Hamas. I was one of the few critics of the Shalit deal at the time it happened. Things turned out much worse than even I expected.
"The Moral and Strategic Case for Opening Doors to Gaza Refugees," Oct. 24, 2023. Granting refuge to Palestinian civilians who wish to flee the war and Hamas's repressive rule is both a moral imperative, and a way to make it easier for Israel to crush Hamas. For somewhat different reasons, this view is fiercely opposed by a combination of Western right-wingers, far leftists, and supporters of Palestinian nationalism. This combination of opponents actually increases my confidence that it is right. Interestingly, this is an issue where I find myself largely in agreement with my much more conservative colleague and co-blogger Eugene Kontorovich.
"Why I Don't Buy the Idea that You Can't Kill an Idea," Feb. 24, 2024. It's often said you can't defeat movements like Hamas and Hezbollah by military means, because "you can't kill an idea." This post explains why that ubiquitous claim is wrong. Though I also emphasize that doesn't mean the Israelis should rely on force alone, or that they need not observe any moral constraints on their military measures.
"Another Terrible Hostage Deal," Jan. 19, 2025. The January 2025 hostage exchange deal shows Israel and the US failed to fully learn the lessons of previous terrible hostage deals with terrorists. I would add that the later deal that released the remaining living hostages has similar flaws.
"Reflections on a Visit to Israel," Dec. 30, 2025. Reflections on my time as a visiting professor in Israel in December 2025, including issues related to the war, and Israeli views on it.
"Israeli Settler "Terrorists" Unjustly Expel West Bank Palestinians From Their Land," Aug. 15, 2026. Violent Israeli settlers have been using force to push West Bank Palestinians off their land. In this post I go over this issue, and condemn the violent settlers, and the Israeli government's failure to meaningfully constrain them. On this point, my views are actually pretty similar to Gadi Eisenkot's, noted above. I hope he and his allies defeat Netanyahu and his in the upcoming Israeli election, and crack down on this violence.
"Why Donald Trump's Iran War is Unconstitutional," The Dispatch, Mar. 5, 2026. More detailed explanation of why the Iran War is unconstitutional. In this article, I also warn about the harmful practical consequences of initiating war in this way; doing so exacerbates the risk of defeat. Those concerns have, I think, been vindicated by later events.
"An Unconstitutional War Results in a Bad Deal," June 14, 2026. Trump's unconstitutional war resulted in a badly flawed ceasefire agreement with Iran. The flaws in the agreement are directly related to Trump's flouting of the Constitution. The agreement has since been periodically breached, at various times. But there is still no evidence that Trump has any good plan for achieving a positive outcome to the war that is any better than the prewar status quo.
Writings on Western Reactions to the War and Protest Movements
"Some Cancellations are Justified," Oct. 15, 2023. Why employers and others are often justified in refusing to hire people who express support for Hamas terrorism. As noted in the post, this is not a new position adopted in response to controversies arising from the October 7 war. It builds on arguments I advanced years before.
"Far-Left Support for Hamas is not an Aberration,"Oct. 30, 2023. Western far-leftists have a long history of supporting repression and mass murder. Thus, we should not be surprised that many of them now support Hamas. As noted in the post, "far left" is not a pejorative term for anyone to the left of me. As used here, it has a far more specific and narrower meaning.
"Student Movements Are Often Wrong," April 26, 2024. The idea that causes espoused by student-led movements are always or almost always right is a myth. Today's student anti-Israel movement is just the most recent of many counterexamples. Obviously, movements led by older people are often misguided, as well.
"Nationalism Is Driving the Neo Right's Virulent Antisemitic Turn," UnPopulist, Dec. 9, 2025. The growth of right-wing nationalist anti-Semitism is only secondarily about Israel. Nonetheless, adherents of this ideology tend to take similar views on the Israeli-Palestinian conflict to those of the anti-Israel far left, discussed in my 2023 post on that subject, linked above.
Beginning October 1, 2026, all state and local entities and their employees shall be required to do all of the following:
(1) Refer to the body of water that borders the coast of Alabama as the "Gulf of America."
(2) Reflect the "Gulf of America" terminology in all newly created maps, documents, educational materials, websites, official communications, and other resources.
(3) a. Make reasonable efforts to update all pre-existing resources owned by state and local entities, including, but not limited to, official state maps, documents, educational materials, websites, and communications under their jurisdiction to reflect the name change, where practicable.
b. The requirements of paragraph a. shall not apply if compliance would impose an operational or financial burden on the state or local entity and their employees.
Nothing in this section shall prohibit a public K-12 school or public institution of higher education from using the term "Gulf of Mexico" within a larger course of academic instruction when reasonable for historical purposes.
A few thoughts:
[1.] If the statute is interpreted as applying to all speech by employees, or even all speech by employees while at work, including informal conversations with colleagues, it will likely be unconstitutional. Government employees have a First Amendment right to refer to geographical locations however they please in talking to colleagues, unless the reference damages the efficiency of the workplace. It's highly unlikely that a typical conversation in which someone says "Gulf of Mexico" will be viewed as sufficiently harmful to workplace efficiency.
Randy Barnett and I continue to discuss shifts in our constitutional law casebook over the past two decades. This installment focuses on changes to the 14th Amendment. It is titled, A textbook 14th Amendment revolution. (I love the headline, for which all credit goes to editor Zach Shemtob.)
Here is an excerpt:
With the ascent of the Roberts court, the fifth edition reports a sea change in equal protection clause doctrine. On affirmative action, Bakke remains the seminal case as the court's first foray into the matter, but Grutter, Gratz, and the Fisher pair are gone (along with Justices Sandra Day O'Connor and Kennedy). Instead, Students for Fair Admissions v. President and Fellows of Harvard College is now the court's decisive precedent. The Supreme Court there ruled that schools can use race only in extremely narrow contexts, such as to demonstrate how a person's race presented hardships that they overcame. (Although there is some evidence that institutions continue to test the boundaries of the ruling).
With sex discrimination, we added two new cases concerning transgender rights. United States v. Skrmetti upheld a state prohibition on certain sex-related medical procedures for minors. West Virginia v. B.P.J. ruled that states can exclude "biological[ly] males athletes who identify as female" from participating in women's sports. The laws at issue in these cases would have been unthinkable in 2008, but societal movements changed quickly.
….
The fifth edition, however, would witness a revolution in substantive due process, and in how it is taught. Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade, holding that the due process clause of the 14th Amendment does not protect a right to abortion. But we decided it was not enough to simply add Dobbs as the final case. We trimmed down Griswold v. Connecticut and, for the first time, added Eisenstadt v. Baird, which ruled that unmarried couples also had a right to contraception. Once that right had been established, the marital relations rationale for it quickly dropped away, like a booster rocket that takes a satellite into orbit falls into the sea having done its job.
These older substantive due process cases, once foundational, are nonetheless now vestiges. This is certainly true of abortion, but Kennedy's landmark cases here may also end up withering away. The Obergefell dissents may then prove the most relevant, as a possible signpost for the future. Neither of us could have fathomed in 2008 how this chapter would evolve over 18 years.
Our next installment will focus on the Religion Clauses and the Second Amendment.
There are quite a few interesting tidbits in the interview, and it covers some ground not included in Jan Crawford's CBS News interview (and vice versa).
One part of the interview of particular interest to me was Justice Alito's discussion of how he came to recuse in Suncor Energy v. Boulder County. It seems to suggest that the claims made by the petitioners (and their allies) about the potentially catastrophic effects on the oil and gas industry of an adverse ruling in Suncor may have convinced Justice Alito that he needed to recuse, even though he does not own stock in any of the companies that are part of the case. I think such claims are overstated, but they have resulted there being one less justice sitting who is inclined toward preemption arguments of the sort in play here.
Well, I I don't think it's something that should be done routinely, and I could go into that, but I'll I'll skip over that. But there are instances where I think it's appropriate and wise for a justice to explainwhy the justice is not recusing in a case and I have done that on a number of prior occasions.
Determining whether to recuse is a very serious responsibility. We have an obligation to sit unless we are disqualified because unlike a court of appeals where the recusal of a judge doesn't change the number of jurists who were sitting on the matter, here it does and it's unfortunate . . .
Now why did I do it in the Suncor case? There are two provisions of our code of conduct--which I support and actually helped to draft--that apply in the situation where the recusal question involves a justice's ownership of stock. The first question that has to be asked is does the justice own or the justice's spouse own stock in a party to the case? Does the justice have an interest in the outcome of this particular case? And the answer to that question in the Suncor case was no. We do not own any stock in any party or affiliate of any party in the case.
Usually that's the end of the matter in cases involving stock ownership. However, there is a second question and that is whether the the justice's financial interest might be
substantially affected by the outcome of the case. Usually when it is, as I said, when it involves the ownership of stock, that's a pretty easy question to say to answer no because it's very very rare for one of our decisions to have an effect on the price of publicly traded stock. And that's why I did not recuse when we decided to take the case.
However, as the date of the argument approaches and I immersed myself in the arguments that were were being made on both sides, I thought through the question again. The question is what would a reasonable person aware of all the relevant circumstances think? And ultimately I came to the conclusion that a reasonable person
aware of the fact that my wife and I have a substantial investment in some companies in the oil and gas field.
And this is a case in which the the petitioner and the petitioners' amici are arguing that a decision against them would start a snowball rolling down a hill which could ultimately lead to devastating consequences for the oil and gas industry. That under those circumstances, the particular circumstances here, the arguments that were being made, I should recuse. I did it reluctantly, but I thought that was what I ought to do under those particular circumstances.
One consequence of Justice Alito's recusal is that the Court could split 4-4 on one more more of the issues in the case. If so, the petitioners could well come to regret Alito's recusal. Note further that insofar as Justice Alito concluded he needed to recuse in this case, the same rationale would apply in any subsequent case raising the same issues, so long as the Alito stock holdings remain unchanged. So a 4-4 split here could mean the Court is split 4-4 on these issues for the foreseeable future.
For what it's worth, the fact that a 4-4 split would generate a stalemate that could not soon be resolved--and that climate tort litigation would continue unabated so long as the 4-4 split persists--suggests to me that at least some of those justices inclined toward finding preemption will (if faced with the prospect of a 4-4 split) seek a compromise, whereby Boulder County's suit would be narrowed, but not preempted. Of course, should either side command five votes at conference, there would be less need for such a compromise.
Video of the Alito interview is below.
For more on Suncor, here are (some of) my posts on the subject (with more to come):
Today the Chief Judge of the Eleventh Judicial Circuit released this order:
On March 24, 2023, the Chief Judge of the United States Court of Appeals for the Federal Circuit identified Complaint No. FC-23-90015 against United States Circuit Judge Pauline Newman under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351–364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings of the Judicial Conference of the United States. On August 19, 2026, the Chief Justice of the United States transferred Complaint No. FC-23-90015 and any pending or new complaints relating to the same subject matter to the Eleventh Circuit Judicial Council, where it was assigned Complaint No. 11-26-90237.
Let's review the timeline.
On June 15, 2026, the Supreme Court denied cert in Newman v. Moore. And the period for reconsideration finished 25 days later on July 10. [Update: I incorrectly noted the Federal Circuit's decision was from July 2026 rather than July 2025. I removed that reference.] Then on On August 19, the Chief Justice transferred the case to the Eleventh Circuit. It isn't clear if Judge Moore asked the Chief Justice to reassign the case or if the Chief Justice simply pulled rank and took the case away from Moore. I lean towards the latter option. If so, kudos to the Chief for taking control. Better late than never, I suppose? But why now? Perhaps the Chief Justice was waiting for all pending litigation to conclude before taking the case away from Chief Judge Moore?
After nearly three years of Chief Judge Moore waiting for Judge Newman to die, the case might actually find a favorable forum in Atlanta. May Judge Newman return to the bench as soon as possible.
Indeed, there is a parallel between Chief Judge Moore and Judge Southwick. Both judges care very much about who sits on their court and they seek to use their own judicial power to control who sits on the court. The judicial ethics mavens apparently see nothing wrong with either of their conduct, but I do. And for what it's worth, Judge Newman could have hand-picked her successor a long time ago, but has made the moral choice to serve until she can serve no longer.
Recently, Judge Ho of the Fifth Circuit issued a concurrence that cited my post, The Audition Trap. The allegations in this case were problematic. The defendant's counsel told the magistrate judge that he had connections to a Texas Senator and other members of government. The counsel warned that he was "consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting" for the resolution of a motion. The magistrate judge, who was seeking a federal district court appointment, agreed to an ex parte hearing with the lawyer.
Judge Ho observed:
Any judge who abuses his office to promote his own interests—including the desire for future appointment—has violated the judicial oath and doesn't belong in his current post, let alone whatever new post he seeks. There are, to be sure, both honorable and dishonorable people on the bench—just as there are in every other segment of life. Just as there are no doubt those on the bench who have strong ambitions for future office, there are others who are happy to be public servants, but who would be just as happy earning their living by some other means. For the outside observer, however, it can be difficult to discern which is which. And therein lies the quandary for the dutiful judge. How should a good judge respond when it's suggested that his exercise of judicial authority might be tainted by his private, personal desire for elevation to another post? . . .
Professor Blackman's point is simple, but important. No one has the power to look into another man's heart and ascertain his actual motivations or ambitions. So the accusation of auditioning is indeed irrefutable. Certain actions may seem like auditioning to some, but to others, it's simply doing the job as the judge best sees fit. There's no solution. So the good judge simply accepts that criticism is a fact of life—and that unrebuttable charges come with the job. The First Amendment guarantees the right of every citizen to criticize public officials—whether the criticism is fair or unfair.
Judge Ho and I are often accused of auditioning. And there's no way to disprove the accusation. Who can look into our hearts to know our true motivations? But as I often remind people, if we are auditioning, we are doing so very poorly. The way to get ahead in the world is to keep your head down, make powerful friends, and avoid doing anything that could prove controversial. Look no further than Todd Butler's nomination to the Fifth Circuit. Fight to overrule Roe v. Wade and you are stuck on the sidelines. Defend municipalities who violate the First Amendment rights of street preachers and you get a circuit court nomination.
The truth is that those who lob the auditioning accusation are those who are most likely to audition in their own careers. I noted in my post:
The fact that everyone auditions demonstrates why this charge is so common. As a general matter, people project onto others the flaws they see in themselves. If you accuse me of auditioning, you can be pretty sure this is something that you have done in the past. Think carefully.
I recently saw some suggestion that I was on some undisclosed payroll. I wish! The truth is that I speak my mind, which is not conducive to any paying client. Folks may recall that I had to resign from a job that offered a regular paycheck on a point of principle. I am grateful some outlets offer me modest honoraria to speak and lecture, but I always retain full control over my message--and I often withdraw works when the editing becomes too intrusive. Indeed, I wrote several posts publicly agonizing about whether to put some of my content behind a paywall as a means to generate some revenue, but I ultimately decided not to so my discretion would remain unfettered. By contrast, as a general matter, managing partners at firms play some role in setting the compensation of their colleagues. Like I said, people project onto others the flaws they see in themselves.
I wish things were different with the judicial selection process. I wish that Presidents would nominate those who were unafraid to challenge political orthodoxies. Steve Calabresi's post today on the 40th anniversary of Justice Scalia's swearing-in provides a flashback to a different time.
On June 14, 1986, Judge Scalia was invited to speak at a conference organized by Attorney General Meese. The timing was "risky" as President Reagan would interview Scalia for the Supreme Court vacancy on June 16.
Scalia could have played things safe, but that was not who Scalia was. Calabresi writes:
Given this, most lawyers would say something mild, uncontroversial, and ingratiating toward the attorney general. But Judge Antonin Scalia was not a normal, cautious lawyer. Indeed, as a law professor, he liked to teach against the views of his class and tell them things that they did not ordinarily want to hear. Or to make a more historical reference, Justice Scalia was the type of person who would speak to King Henry VIII as if he were St. Thomas More. He was temperamentally unable to flatter or to say something that he did not believe to be true.
And Scalia would not flatter the sitting Attorney General. He took the occasion to explain why Meese was wrong to focus on "original intent" and instead should focus on "original public meaning." That speech set the stage for the modern originalist revolution. Scalia took a risk at the most inopportune time, and prevailed. And Attorney General Meese approved:
Ken Cribb, who was then Ed Meese's counselor and chief of staff, cleverly took a name tent card from his table, folded it inside out, wrote "Stipulated" on it, and showed it to Attorney General Meese. Attorney General Meese nodded approvingly, and Cribb put the tent card saying "Stipulated" on the podium in front of Judge Scalia before the judge had even finished speaking.
On June 17, President Reagan nominated Scalia for the seat, and the rest is history.
Calabresi concludes:
Whether one agrees with their views or not, I believe this story shows how open-minded and humble Attorney General Ed Meese was, and how gutsy and principled Judge Antonin Scalia was. That's something worth reflecting on four decades later.
Alas, that was forty years ago. Now we are stuck to Lurch through the audition trap.
From Magistrate Judge James M. Wicks (E.D.N.Y.) in Lask v. Sorid last month:
ORDER granting 91 Motion for Extension of Time to File Reply. Plaintiff's application for an extension and the querulous opposition (ECF No. 92) continue the path of bikeshedding or the application of Parkinson's Law of Triviality. Plaintiff's Reply shall now be filed on or before 9/21/2026. No further extensions will be granted.
I thought I'd pass along the amicus brief that I just filed yesterday on behalf of Prof. Rebecca Roiphe (an expert in the law governing lawyers), Prof. Nadine Strossen (a free speech scholar and former President of the ACLU), and myself, supporting the cert. petition in Eastman v. State Bar (the decision below is here).
The brief seeks to explain to the Court why the underlying legal issues in this case are important and merit the Court's granting review. Like most other amicus briefs supporting petitions for review, it doesn't seek to argue about the truth or falsity of petitioner's statements: The Court generally grants review to resolve conflicts about what the right legal rule should be, not to resolve factual disputes. (You can also read another amicus brief supporting review, co-signed by our own Randy Barnett, among others.)
* * *
Summary of Argument
The last ten years have seen many attempts to punish or compel professionals' speech in the service of broader ideological goals. This Court rejected two such attempts, in NIFLA v. Becerra, 585 U.S. 755 (2018), and in Chiles v. Salazar, 607 U.S. 627 (2026). It should likewise consider the constitutionality of the punishment in this case—a punishment that, if left unreviewed, portends still more such attempts.
Petitioner John Eastman was disbarred in large part based on his public political statements. The State Bar concluded those statements were false, and therefore sanctionable. This raises an important and unresolved question of First Amendment law: When can lawyers be stripped of their livelihoods based on public political speech that is unrelated to any pending judicial proceeding and that is fully protected when said by ordinary Americans?
That question is especially important because it can arise—and indeed is likely to arise—in many cases in the future. "Tit for tat" may well be part of the nature of humanity. See Robert Axelrod & William D. Hamilton, The Evolution of Cooperation, 211 Science 1390 (1981); Herbert Gintis, Samuel Bowles, Robert Boyd & Ernst Fehr, Explaining Altruistic Behavior in Humans, 24 Evol. & Hum. Beh. 153, 154 (2003). It certainly seems to be part of modern American politics.
The mode of analysis in this case thus seems likely to proliferate in decisions both by deep blue state bars and deep red state bars. It seems likely to arise as to people involved in contentious disputes about federal elections, state candidate elections, state ballot measures, and ideological debates more broadly. In all these contexts, allegations that one's opponents are lying are par for the course: Indeed, another facet of human nature is to assume the worst motivations of one's adversaries and the best motivations of one's allies.
In the past, state bars have sought to punish people they viewed as left-wing extremists who endangered the established constitutional order. See, e.g., James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L.Q. 725 (2005). This case is a reminder that the same approach is being revived today as to lawyers whom some state bars view as right-wing dangers. And, if the decision endures, it will likely be followed by many other such decisions. It is important that this Court make clear what rules govern this area of the law, so that they can be applied as evenhandedly as possible throughout the country.
To be sure, this case also involves other allegations of impropriety, such as alleged false statements to courts, to Eastman's own client (President Trump) and his team, and to Vice President Pence and his team. This amicus brief does not opine on those matters. As many cases (see Part IV) have made clear, if a government sanction—whether a criminal sentence, civil liability, dismissal from government employment, or disbarment—rests even in part on constitutionally protected speech, it cannot stand unless the government can show that it would have reached the same result absent the protected speech.
For this reason, this Court should grant certiorari to consider when lawyers can be disbarred for their public political speech.
I enjoyed being on this panel with Nita Farahany of Duke Law School and Daniel Solove of the George Washington University Law School where we debated the proper role of artificial intelligence in the creation and production of legal scholarship—and, more broadly, how A.I. may change the job we have. For those interested, you can watch the panel here:
