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Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Other Comments From Chief Justice Roberts
A wide-ranging interview between the Chief Justice and Judge Rosenthal at the Baker Institute.
I blogged earlier about what I thought was the highlight of Chief Justice Roberts's exchange with Judge Rosenthal at the Baker Institute. Here, I will flag a few of Roberts's comments of interest.
First, Roberts spoke about the difficult summer of 2005. In the span of a short span, he was nominated for Justice O'Connor's seat, Chief Justice Rehnquist died, and Roberts was then nominated for the Chief Justice seat.
Well, the beginning it was very emotionally draining, you're right. It was a level of tension. I mean, if I get nervous before arguing, you can imagine what it was like to get nervous before those hearings. And Chief Justice Rehnquist had been very much a mentor to me, and it was Saturday night, and I gone to bed. I was trying to get rested up. My wife called to tell me that the chief had passed away. And then the next morning, I got a call from the White House, and they wanted me to come in and had another interview with President Bush that afternoon, and then the next morning, they announced my nomination to be chief the day after that, I'm helping carry Chief Justice Rehnquist casket up to the lie in repose at the court, and the new hearings are starting the next week. There's just an awful lot going on, and I had to start learning a little bit more about Chief Justice's and their role, because that obviously hadn't been a been a focus. And I do remember thinking, you know, everything was looking pretty good with the first nomination.
Second, Roberts said he stumps law professors by asking them to name the portraits of Chief Justices in the East Conference Room.
And, you know, we have two conference rooms in the East one, they have on the walls the first eight Chief Justices, and the next one, they have the next eight chief justices. Just inside. I don't see where the room is for the, you know, 17. And I just sort of like, of like, you know, walk around, and you look up and there's, you know, John Jay, and I knew about him. And the next one, there's a picture of somebody I had no idea who it was. And this is the second Chief Justice. Turned out to be a fellow named John Rutledge who had a pretty he was there for five months. So I felt, well, that's not bad. And then the next one, and not, not really, you know, Oliver Ellsworth just rings a bell vaguely. And then John Marshall, you know, I could talk for hours about that. He's the most significant person in our political history who wasn't a president, and a lot more significant than many of the presidents. And then Chris Roger Taney, the unfortunate counterpart to Marshall. Okay, I know them. The next one I knew had worked with Lincoln, but I couldn't quite place the name Salman Chase there for a while. And then one, when I have professors in the conference room, and we're talking about something I will always ask, like, Who is that? And sometimes nobody knows.
Humblebrag. When I recently moved for the admission of South Texas alum to the Supreme Court bar, we had a breakfast reception in the East Conference room. I told our alums who all the Chiefs were. Who hasn't memorized all of the Chiefs? Jay, Rutledge, Ellsworth, Marshall, Taney, Chase, Waite, Fuller, White, Taft, Hughes, Stone, Vinson, Warren, Burger, Rehnquist, and Roberts. (I still would like to know where Roberts's bust will go, but that is a question for another time.)
Third, Roberts spoke at several juncture about judicial "courage." He said that Chief Justice Jay demonstrated an "incredible act of courage" by not answering questions posed in the "Correspondences of the Justices." Roberts also said that in this 250th year of independence, we should focus and celebrate "courage." He referenced the "extraordinary" bravery of those who signed the Declaration of Independence. They would not have been "given the privilege of being shot. They would be be hung, and all their families possessions would be gone." Roberts suggested that judges will need to exhibit a "great deal of courage," an "overlooked virtue of a judge," to disagree with what AI says. Judge Rosenthal also gave Chief Justice Roberts a biography of Chief Justice Chase, written by her father, Harold M. Hyman, who had been a longtime professor at Rice. Rosenthal said, and I agree, that Chase exemplified "courage." (I had the good occasion to cite one of Professor's Hyman's articles in a draft paper I wrote with Seth Barrett Tillman.) When I write about judicial "courage," people lose their collective minds. But this is a real concept. And, I've praised Roberts for having courage, to a limited extent.
Fourth, Judge Rosenthal asked how the Chief deals with criticism. The Chief responded, "I actually try not to read outside criticism too much. And it's, you know, just because you're you're on to something else, and you don't want to worry too much about you've done, you've done your best." I will not check how often Supreme Court IP addresses access the Volokh Conspiracy.
Would John Roberts Have Become Chief Justice If He Was Confirmed To The D.C. Circuit in 1992?
Roberts suspects that if he was confirmed to the D.C. Circuit at the age of 37, he probably "wouldn't have ended up" as Chief Justice.
Today Chief Justice Roberts spoke at the Baker Institute at Rice University in Houston. No, I did not attend. In candor, members of the Baker Institute Roundtable (a $500 fee) had early access to public tickets, and once those were gone, the event was at capacity. That was too rich for me. I considered protesting outside the building with a "#RESIGN" sign, but decided against it.
The conversation was moderated by Judge Lee Rosenthal of the Southern District of Texas. She did an expert job moderating the conversation. Most of the press focused on Roberts's comments concerning attacks on judges:
ROSENTHAL: In your 2024, year end report on the judiciary, you wrote that criticism comes with the territory for judges and justices and that it can be healthy. You've talked about the criticisms that your predecessors encountered. How do you handle criticism of your court or your opinions today?
ROBERTS: Well, it does. It does come with the territory. Often when any of us issue an opinion, there's often a dissent, usually not but I mean, people, their most opinions are more opinions than anything else, are unanimous, and that's pretty to get used to the criticism right away, and it can very much be healthy. We don't believe that we're, you know, flawless in any way, and it's important that our decisions are subjected to scrutiny, and they are. The problem sometimes is that the criticism can move from a focus on legal analysis to personalities. And you see from all over, I mean, not just any one political perspective on it, that it's more directed in a personal way, and that, frankly, can be actually quite dangerous. Judges around the country work very hard to get it right, and if they don't, their opinions are subject to criticism, but
personally directed hostility is is dangerous, and it's got to stop.ROSENTHAL: It's very much part of our lives these days. And on behalf of trial judges
everywhere, I want to personally thank you, because while we know that you may not always agree with us, we always know that you have our backs, and that means a great deal. So thank you, and I hope it continues. I know it will.
I found one of the most fascinating exchanges to concern what might be seen as the Roberts's biggest disappointments. In 1992, President George H.W. Bush nominated Roberts to the D.C. Circuit at the age of 37. Of course, Senator Joe Biden blocked the nomination, and Roberts never even received a vote. Elena Kagan likewise was nominated for the D.C. Circuit in 1999. She too never received a vote.
I've long suspected that if Roberts and Kagan had been confirmed, they never would have made it to the Supreme Court. One of the downsides of being a judge who aspires to higher office is that you have to actually decide cases. And those cases will invariably upset some people. When Roberts was nominated for the Supreme Court in 2005, he had only been an appellate judge for about two years, with very few cases to show. Before there was the frozen trucker, there was the greasy snacker. Roberts's most controversial decision concerned a girl who was arrested for eating french fries on the Metro. Of course, Roberts also decided what would become Hamdan v. Rumsfeld on July 15, 2005--at the same time he was interviewing before the Supreme Court. Talk about a well-timed audition!
Judge Rosenthal asked Roberts to reflect on his experience of not getting the D.C. Circuit at the age of 37:
Well I was disappointed. I wasn't naïve about the prospect that things might not work out. It was a disappointment. You look ahead and plan what your life will be like. I think it was a great honor. It was a great calling to be a federal judge. In retrospect, 100%, it was one of the best things that ever happened to me. That is a young age to take on a life-tenure job. You give up a lot of opportunity for other experiences. I'm pretty sure if I had done that, I wouldn't have ended up where I am now. You do develop something of a track record and it is not always something that appeals to people. And I went on and was able to do private practice but also another government opportunity. It was a disappointment but turned out alright.
I've listened to many speeches the Chief has given over the years, but I don't recall him ever being so honest and vulnerable. It was truly refreshing. I firmly believe that people only learn from defeats. Someone who has never faced adversity likely has not been taking enough risks.
On the substance, Roberts is 100% correct. Had Roberts spent a decade on the D.C. Circuit during the 1990s, his record would have looked very different. He likely would have infuriated Democratic Senators by ruling against the Clinton Administration. And Roberts likely would have disappointed Republican Senators by not being conservative enough (because he isn't that conservative). To play out the counterfactual, it's possible that Roberts still would have made the short list. Indeed, he likely would have still been a finalist alongside Judges Luttig and Wilkinson. Maybe Roberts still would have been picked. Who knows? But Roberts doesn't think so.
Likewise, had Elena Kagan spent much of the Bush Administration ruling in favor of Guantanamo Bay detainees, she would never have been considered. Senator Lindsey Graham would have never voted for her. And what would have happened to Harvard Law School? It might have gone the way of Yale Law School! By way of comparison, Justice Kavanaugh spent a decade on the D.C. Circuit and made lots of enemies. He was only confirmed by a bare majority. Had the filibuster still been in place, Kavanaugh would have never been considered.
Kudos to Judge Rosenthal for getting the Chief Justice to open up. This was a very well done interview. I'll write up a few other points in another post.
Paul Ehrlich Helped Create Roe v. Wade
Justice Blackmun echoed the Population Bomb's concerns about "population growth," and Ehrlich thought Roe supported "compulsory abortion."
Paul Ehrlich has died at the old age of 93. I am grateful he lived long enough to witness how many of his doomsday predictions were wrong. But he does not seem to have recognized his faults. As late as 2018, Ehrlich predicted (once again) that the collapse of civilization would happen in decades. How could a person who is consistently wrong about everything maintain his status as a public intellectual? I think the short answer is that Ehrlich told progressives what they wanted to hear and reaffirmed their world view. When a progressive uses the phrase "trust the science" or "evidence based," especially about the climate, think of Paul Ehrlich.
There is much to say on Ehrlich's death, but it may be most useful to connect his writings on population control with Roe v. Wade. The Population Bomb was published in 1968. The book opens, "The battle to feed all of humanity is over. In the 1970s hundreds of millions of people will starve to death." Ehrlich endorsed mandatory sterilization to remedy overpopulation. But he also favored abortion as a way to promote, shall we say, swinging tricks, without the consequences of reproducing.
Roe v. Wade was decided in 1973. There is a sentence in Justice Blackmun's majority opinion that is edited out of most ConLaw casebooks, but that Randy and I include:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
What do "population growth, pollution, [and] poverty" have to do with abortion? Well, as more children are born, there will be more pollution, less food, more poverty, more death, and the end of the world as we know it. Or so Ehrlich would explain.
Justice Blackmun was almost certainly alluding to Ehrlich's work, which was in the ether. An amicus brief submitted by National Organization for Women, among other groups, expressly cited Ehrlich's book:
A state cannot seriously contend today that restrictions on abortion are justified by an overriding state interest in increasing population. See Ehrlich, The Population Bomb, 1968. On the contrary, it is accepted government policy to limit family size and to encourage family planning.
Jane ROE, John Doe, and Mary Doe, Appellants, James Hubert HALLFORD, M.D., Appellant-Intervenor, v. Henry WADE, Appellee. Mary DOE, et al., etc., Appellants,, 1972 WL 126045, at *27
Justice Ginsburg spoke to those concerns in a 2009 interview:
Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn't really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.
Justice Ginsburg was quite right about how Ehrlich and others viewed abortion. I scanned through the Population Bomb. Here are some of the things Ehrlich wrote about abortion.
Page 138: Two other functions of the DPE would be to aid Congress in developing legislation relating to population and environment, and to inform the public of the needs for such legislation. Some of these needs are already apparent. We need a federal law guaranteeing the right of any woman to have an abortion if it is approved by a physician. We need federal legislation guaranteeing the right to voluntary sterilization for both sexes and protecting physicians who perform such operations from legal harassment. We need a federal law requiring sex education in schools -- sex education that includes discussion of the need for regulating the birth rate and of the techniques of birth control.
Page 141: If we take the proper steps in education, legislation, and research, we should be able in a generation to have a population thoroughly enjoying its sexual activity, while raising smaller numbers of physically and mentally healthier children. The population should be relatively free of the horrors created today by divorce, illegal abortion, venereal disease, and the psychological pressures of a sexually repressive and repressed society.
Page 148: Biologists must point out that contraception is for many reasons more desirable than abortion. But they must also point out that in many cases abortion is much more desirable than childbirth. Above all, biologists must take the side of the hungry billions of living human beings today and tomorrow, not the side of potential human beings. Remember, unless numbers are limited, if those potential human beings are born, they will at best lead miserable lives and die young. We cannot permit the destruction of humanity to be abetted by a doctrine conceived in total ignorance of the biological facts of life.
In Ecoscience, published in 1977, Ehrlich invoked Roe to argue that the federal government could impose "compulsory abortion" to reduce the population:
Page 837: To date, there has been no serious attempt in Western countries to use laws to control excessive population growth, although there exists ample authority under which population growth could be regulated. For example, under the United States Constitution, effective population-control programs could be enacted under the clauses that empower Congress to appropriate funds to provide for the general welfare and to regulate commerce, or under the equal-protection clause of the Fourteenth Amendment. Such laws constitutionally could be very broad. Indeed, it has been concluded that compulsory population-control laws, even including laws requiring compulsory abortion, could be sustained under the existing Constitution if the population crisis became sufficiently severe to endanger the society.
Never forget that Roe v. Wade favorably cited Buck v. Bell, alongside Jacobson v. Massachusetts:
The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) (sterilization).
Perhaps Justice Blackmun would have also supported the constitutionality of mandatory abortion if the state had a sufficiently compelling interest.
Roe v. Wade was an illegitimate decision on every conceivable ground. At some level, the Justices were motivated by the worst quack science in modern history, which led to oppressive family policies around the world. Indeed, at least part of the underpopulation problem we are facing can be traced directly to Ehrlich, Roe, and the five decade culture it spawned. Dobbs was right, just, and inevitable.
"Denaturalization's Missing Limit" to Appear in Northwestern University Law Review Online
Why civil denaturalization should have a five-year statute of limitations under existing law
Cassandra Burke Robertson and I have a new piece entitled "Denaturalization's Missing Limit" forthcoming in the Northwestern University Law Review Online. Here is the abstract:
Civil denaturalization has become a bipartisan tool of punishment and deterrence. The government has used the civil justice system to strip citizenship from naturalized citizens convicted of serious crimes—including sex offenders—to "send a loud message" and "hold accountable" those it considers undesirable, circumventing the ten-year statute of limitations Congress imposed on criminal naturalization fraud. The Trump administration has gone further, elevating denaturalization to one of the Department of Justice's top five enforcement priorities and directing attorneys to "maximally pursue" every viable case. One of the features that makes denaturalization such a potent tool is the widely accepted proposition that no statute of limitations applies. This Essay argues that proposition is wrong. Drawing on the Supreme Court's decision in Kokesh v. SEC, the text and structure of 28 U.S.C. § 2462, and the policy rationales underlying statutes of limitations, we argue that Congress's existing default five-year limitations period should be understood to apply to civil denaturalization. A five-year time bar would preserve the government's ability to pursue clear fraud while preventing the indefinite vulnerability that chills the political participation of over twenty-three million naturalized Americans.
How AI Tools Can Help With Legal History Research
Probably not the most in-demand use, but a really cool one. And maybe something that makes originalism easier?
I do a lot of legal history research in my academic work, often studying late 18th Century legal understandings and trying to trace back their origins. Studying the origins is particularly difficult because, when you start to look at materials from the early 18th century and before, legal reports and books are typically in Latin or Law French (the latter being a sort of weird mix of Latin, French, and Anglo-Saxon used by lawyers). The switch to English was pushed along by laws in 1650 and then 1730, and after 1730 everything seems to be in English. But if you want to look back at the sources the late 18th Century lawyers relied on—to know not just what Blackstone said, but what Blackstone was relying on, and what what the sources Blackstone was relying on were themselves relying on, etc.—you quickly run up against the language barrier. And of course you also run up against the broader problems of deciphering the text, and trying to understand the context of the terms and legal concepts they used.
I've been fascinated by how the latest generation of AI tools can help to solve these problems. A year ago, you could ask (say) Claude for help with a legal history question, and it could fo only the basics. It could look up what Blackstone said and summarize Blackstone. That's a start, but not so helpful for a researcher who is already familiar with the basics. These days, Claude can not just read Blackstone, but identify what Blackstone cited, and try to look that up, too—and if it has access to a database that has those sources on the public web, it can read that and summarize that, too.
And of particular interest to me, you can also upload legal materials in Latin or Law French and ask the AI tool to read it, translate it, and explain it. For example, I picked this random passage in a 16th Century legal treatise in Law French.
I recognize the word Assize, which I know from the courts of assize. But I really have no idea what this randomly-selected text means. So I uploaded the screenshot to Claude (Opus 4.6, extended), and I asked Claude to read it, state it in the original, translate it, and explain what is going on.
Here's what I received back:
"Stalking-Type Behavior"/"Coercive Control" of Minor Stepdaughter, or "Salutary" "Parental" Behavior?
"[T]he trial court identified only two actions that purportedly constituted 'coercive control': the first was 'coordinating with someone Mia thought was her friend to deliver her' to her parents, and the second was an 'unreasonable level of monitoring a nearly grown woman,' which the trial court stated 'is concerning.'"
From Toles v. Toles, decided yesterday by the Washington Court of Appeals (opinion by Judge Leonard Feldman, joined by Judges Linda Coburn and David Mann):
On May 23, 2024, following many months of ongoing conflict and related legal proceedings, Mia, an unemancipated minor child at the time, filed a petition for a DVPO alleging that George had committed various acts that constituted "domestic violence" as defined in RCW 7.105.010(10)(b).
In her petition, Mia claimed George had assaulted her; taken away her cell phone; "attempted to thwart" her academic success by requiring that she unenroll in the Running Start educational program; placed tracking devices on her vehicles; asked one of friends to bring her to an agreed location so George and his wife, Phuong Toles (Mia's biological mother), could bring her home; "yelled at" {"about how ungrateful I was," "for forgetting to wash the dishes," "about my attitude," and that "I'm to blame for the fact that he does not have a relationship with his sons"} and "berated" her; and filed in court evidence that she had shared intimate photos with a romantic partner. {Although George admittedly failed to file the photos under seal in accordance with GR 15, the trial court immediately rectified this serious oversight.}
George characterizes these behaviors as "helping his wife recover their runaway child from an unlawful, dangerous situation," while Mia describes them as "an escalation of physical and mental abuse at the hands of her step-father."
No Defamation Liability for NYU Report Summarizing Court Filing Alleging Prosecutorial Misconduct
From McCaffery v NYU School of Law, decided yesterday by Judge John Murphy (E.D. Pa.):
This is a defamation case. The challenged statements are recent, but they describe an earlier legal proceeding. The story begins in 2007, when Dontia Patterson was arrested and charged with murder in Philadelphia. His first trial, prosecuted by Assistant District Attorney Beth McCaffery, ended in a hung jury. His second jury trial, prosecuted by Assistant District Attorney Richard Sax, resulted in his conviction.
Years later, Mr. Patterson's convictions and related charges were vacated and he got a new trial. At this point, the Philadelphia District Attorney's Office (DAO) assessed whether to try Mr. Patterson a third time and the DAO charged its Conviction Integrity Unit (CIU) with investigating the case.
The DAO determined that Mr. Patterson was probably innocent, so it sought to drop the case against him. As part of these proceedings, Patricia Cummings—then-Chief of the CIU—drafted a motion that alleged prosecutorial misconduct, asserting that the original prosecutors hid exculpatory evidence from the defense. The motion succeeded.
Six years later, New York University and NYU School of Law—where Ms. Cummings was serving as a Research Scholar—published a report focused on prosecutorial misconduct in the Philadelphia DAO. The report included 55 case studies—one of which focused on Mr. Patterson's case. The report's case study on Mr. Patterson included specific allegations from the Nol Pros Motion, and it named Ms. McCaffery and Mr. Sax as the prosecutors involved. Ms. McCaffery ardently rejects, as defamatory, the allegations made against her in the Nol Pros Motion and later published in the report, and she seeks relief for defamation and related torts. {Often shortened, as in this opinion, to "nol pros[,]" "[a] nolle prosequi is a voluntary withdrawal by the prosecuting attorney of proceedings on a particular bill or information, which can at any[ ]time be retracted to permit a revival of proceedings on the original bill or information."} …
The case largely turned on the "fair report" privilege, which protects accurate accounts of government proceedings, including of court filings (whether or not the filings being reported on contain errors). The court noted that the N.Y. and Pennsylvania fair report privileges differ:
No Pseudonymity for Plaintiffs Alleging Sean Combs (P. Diddy) Sexually Assaulted Them
The Second Circuit just affirmed lower court decisions so holding.
From today's opinion in Doe v. Combs, by Second Circuit Judges Michael Park, William Nardini, and Maria Araújo Kahn, the key paragraphs:
"[O]ur review of a district court's decision to grant or deny an application to litigate under a pseudonym is for abuse of discretion." Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008). "A district court abuses its discretion when (1) its decision rests on an error of law … or a clearly erroneous factual finding, or (2) its decision … cannot be located within the range of permissible decisions."
As numerous courts have observed, "concealing the name of a party could deprive a litigant and the court of the chance that a yet unknown witness would, upon learning … about the case, know to step forward with valuable information about the events or the credibility of witnesses." Doe v. Del Rio (S.D.N.Y. 2006) (citing Richmond Newspapers, Inc. v. Virginia (1980) (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties.")). The loss of such witnesses would be particularly prejudicial here given that the incidents complained of allegedly occurred decades ago and would "be difficult to defend even with information about Plaintiff[s'] identit[ies]." The district court thus reasonably concluded that the sixth Sealed Plaintiff factor strongly favored Defendants.
More details:
New in Civitas Outlook: The Temptation of the Inferior "Imperial Judiciary"
"As Judge Kenneth K. Lee wisely warned, judges of the inferior courts should 'not be seduced by the temptation of judicial resistance,' lest they inch towards an inferior 'imperial judiciary.'"
Long-time readers may remember my writings about the "judicial resistance" during President Trump's first term. Well, it seems we are swinging back to that era. My new essay in Civitas Outlook is titled, The Temptation of the Inferior "Imperial Judiciary."
It begins:
In this 250th year of our independence, the horizontal and vertical structure of our government should be well settled. Horizontally, the legislative branch makes the law; the executive branch enforces the laws; and the judicial branch interprets the laws. Vertically, Congress sits atop the lawmaking powers, not administrative agencies; the President sits atop the enforcement power, not the bureaucracy; and the Supreme Court sits atop the judiciary, not the inferior courts. Critically, the states have no role in enforcing or impeding federal law. Yet somehow, everything has gone topsy-turvy. Under the new order of operations, the President takes an action, states bring a lawsuit, a district court judge decides whether the policy goes into effect, and then two or three members of the Supreme Court promptly settle the issue with near finality. We've come a long way from "School House Rocks."
During President Trump's first term, the horizontal separation of powers were routinely breached as states and lower courts resisted virtually every presidential action. That much was well known. But with Trump 2.0, we have seen a novel inversion of both the horizontal and vertical separation of powers: lower court judges are resisting both the President and the Supreme Court. As Judge Kenneth K. Lee wisely warned, judges of the inferior courts should "not be seduced by the temptation of judicial resistance," lest they inch towards an inferior "imperial judiciary."
President Trump, during his first term, faced an unprecedented barrage of legal challenges. The self-professed "legal resistance" launched a never-ending barrage of lawsuits to challenge virtually every facet of his administration. Worse still, many courts eagerly allowed these suits to proceed on the jurisprudential grounds that President Trump was not entitled to the same deference and regard as his predecessors. I described this jurisprudential shift as the "judicial resistance." I was widely criticized for using this term. In the New York Times, Dahlia Lithwick and Steve Valdeck described it as a "dangerous myth." But I think I was onto something.
And from the conclusion:
The risk here is clear. Judge Lee warns that the "judicial resistance" will "risk inching towards an imperial judiciary that lords over the President and Congress." Here, Judge Lee invoked Justice Amy Coney Barrett's ruling in Trump v. CASA (2025), in which she warned against "embracing an imperial judiciary." We can take the lineage back even further. In Planned Parenthood v. Casey (1991), the landmark decision reaffirming Roe v. Wade, Justice Scalia declared, "The Imperial Judiciary lives." Of course, the "Nietzschean vision of . . . unelected, life-tenured judges" Scalia warned against belonged to five members of the Supreme Court. Scalia would often yell "stop" to his colleagues. But now the resistance has spread to the inferior federal courts.
"Perhaps Due to the Asynchronous Thelma and Louise, Neither Side Requests Sanctions"
From Magistrate Judge Stephanie Christensen (C.D. Cal.) in Creditors Adjustment Bureau, Inc. v. All Season Power LLC, decided Feb. 13 but just posted on Westlaw:
Both parties cited a non-existent case in their briefs.
Specifically, after Plaintiff's opposition and Defendant's reply were filed, Plaintiff's counsel filed a declaration providing that "certain quoted material set forth in Plaintiff's brief … [wa]s not accurate, and in one instance, from a non-existent case." The declaration identified four false citations comprising one non-existent case and three non-existent quotes from real cases. Plaintiff's counsel further declared that "[i]t appears that some legal research that was done on this case relied upon artificial intelligence and resulted in these phantom quotes and citations."
Defendant's counsel subsequently filed a declaration providing that "one of the same erroneously cited cases was also referenced [in Defendant's reply.]" Counsel for Defendant further declared that "[t]his error was inadvertent and was not related to any AI usage by Defendant's counsel." In other words, they merely followed Plaintiff's counsel over the cliff.
Today in Supreme Court History: March 17, 1777
3/17/1777: Chief Justice Roger Brooke Taney's birthday.
Open Thread
What’s on your mind?
Careful with the Green Salsa, Says Federal Judge
"The green salsa, which Mr. Manz admitted he never sampled, smelled, or asked an employee regarding the contents before consuming, is the source of this litigation."
From Manz v. LTN1 Times Square, LLC, decided Feb. 17 by Judge Dale Ho (S.D.N.Y.):
Plaintiff Faycal Manz, proceeding pro se, alleges he suffered severe physical and emotional injuries, including burns and GI distress, as a result of unknowingly consuming excessively spicy salsa at Los Tacos No. 1's Times Square location….
On his trip, [Manz] visited the Times Square location of Los Tacos. Mr. Manz states that, as a German, he had never eaten tacos before, and he wished to try the acclaimed tacos offered at Defendant's establishment. Mr. Manz went to the counter and purchased three tacos. Los Tacos has a self-service salsa bar, featuring various types of salsas with different ingredients and spice levels. At the bar, Mr. Manz proceeded to put hefty portions of salsa on top of all three tacos: two receiving a "red" salsa, and the third a "green" salsa. The green salsa, which Mr. Manz admitted he never sampled, smelled, or asked an employee regarding the contents before consuming, is the source of this litigation.
Mr. Manz claims that after a single bite of the third taco, he immediately began suffering severe physical symptoms. He alleges that his tongue burned, his mouth hurt, his face turned red, and his heart rate soared. He also alleges that he suffered severe GI distress and mouth sores that lasted for days. He tried to wash down the spice with a coke and later some ice cream, to no avail. He then returned to his hotel, where he took over-the-counter medicine for diarrhea, acid reflux, and stomach cramps that he brought with him on the trip.
How Do Men and Women Use AI Romantic Companions, and What Does It Mean?
Differences in frequency and style of usage persist, and what that tells us
The New York Times recently published an article about Chinese women's usage of AI for romantic purposes and how it fails to align with the Communist Party's goals for them: marriage and childbearing. This made me curious more generally as to what we know about gender differences today (worldwide) in AI romantic interactions. Some findings and tidbits of possible interest:
- While exact estimates vary, men continue to be the predominant users of AI romantic companions.
- According to one study, "[m]ales were significantly more likely than females to report using AI-generated pornography and to view or interact with AI content for sexual gratification."
- As per counseling psychologist Saed Hill with a special interest in masculinity, "some of his male patients express a preference for the passivity and constant affirmation of their AI girlfriends over the potential conflict or rejection they could encounter in real-life dating."
- King's College "AI & Society" professor Kate Devlin (with whom I spoke about sex robots on my podcast three years ago), stated in relation to female use of AI romantic companions: "The amount of toxic crap that women get online from men, particularly when you're trying to do things like online dating--if you have an alternative, respectful, lovely, caring AI partner, why would you not?"
- Coming back full circle to the China example, a study of Chinese women in that context found that "women utilized the virtual space to dismantle traditional heterosexual norms."
My New Lawfare Article on "Slavery and Birthright Citizenship"
The article explains how all the standard arguments for denying birthright ctizenship to children of undocumented immigrants are at odds with the main purpose of the Citizenship Clause of the Fourteenth Amendment
Today, Lawfare published my article "Slavery and Birthright Citizenship." Here is an excerpt:
Trump v. Barbara, the birthright citizenship case, is currently before the Supreme Court. At the heart of the case is a Jan. 20, 2025 executive order that sought to deny birthright citizenship to children born in the U.S. whose parents are in the country either illegally or on temporary visas. The case has produced a vast array of amicus briefs as well as the briefs of the parties. But one key issue has not received the attention it deserves.
Accepting the government's position would undermine the central purpose of the Citizenship Clause of the Fourteenth Amendment. For that reason alone, the Trump Administration should lose the case, especially from the standpoint of originalism.
Virtually all informed observers agree that the main purpose of the Citizenship Clause was to grant citizenship to newly freed slaves and their descendants, reversing the holding of the Supreme Court's infamous 1857 Dred Scott decision, which ruled that Black people could never be citizens of the United States. Indeed, the Trump administration's Supreme Court brief in Trump v. Barbara says exactly that: "The Clause was adopted to confer citizenship on the newly freed slaves and their children." But all of the administration's arguments for denying birthright citizenship to children of undocumented immigrants and non-citizens present in the U.S. on temporary visas would, if applied consistently, also have denied citizenship to numerous freed slaves and children thereof.
This reality puts the government's arguments at odds with the original meaning of the Citizenship Clause. Since contemporaries almost universally understood that Clause as granting citizenship to freed slaves, their children, and other Black people born in the United States, any interpretation of "subject to the jurisdiction" that requires denying birthright citizenship to large numbers of slaves and children thereof must be rejected. That is particularly true from an originalist standpoint, which requires adherence to the understanding of the words prevalent at the time of ratification.
The rest of the article goes through the various standard arguments advanced by the administration and its supporters, and explains how all of them share the same flaw.
The article is in part based on my earlier Volokh Conspiracy post on the same topic.
Court Blocks Loud Preaching Outside Abortion Clinic
From State v. Andrade, decided Dec. 1, 2025 by Cumberland County (Maine) Superior Court Judge Darcie McElwee, but only recently posted on Westlaw:
Defendant is a Christian who feels it is his religious duty to share his beliefs with others. Defendant regularly prays, preaches, displays signs, plays religious music, and engages with members of the public at the corner of Elm and Congress Streets in Portland. Defendant's signs and prayers frequently convey messages against medical procedures involving abortion. From 2023 through 2025, Defendant has engaged in this conduct at the same location on a roughly weekly basis, typically for three or four hours at a time. Often, but not always, Defendant loudly plays music through a mobile speaker and/or uses a microphone and speakers to amplify his voice. He is sometimes accompanied by other individuals also seeking to share their personal beliefs….
Lindsey Stevens, the Clime's Health Center Manager, credibly testified that when Defendant uses amplifiers, his voice and/or music can be heard inside the examination and counseling rooms of the Clinic. On occasion, Stevens can hear Defendant's music from her office in the back right corner of the Clinic—one of the farthest locations within the Clinic from Defendant's typical location.
When amplification is used, Defendant's conduct disrupts the provision of patient care at the Clinic. His amplified voice and music make it difficult for patients and care providers, including Stevens, to hear and understand each other. Patients are often distracted by the noise and exhibit physical signs of distress. On occasions when Defendant uses amplifiers, the Clinic moves patients to other rooms when possible. This can cause delays in patients receiving counseling and/or treatment. [The court also recounted police officers' testimony that defendant used sound amplification, and was quite loud. -EV] …
Speedway Bomber Brett Kimberlin's Latest Lawsuit
The quotes below are from Kimberlin v. Metropolitan School Dist., decided Friday by Judge Tanya Walton Pratt (S.D. Ind.); you can see some of Kimberlin's past filings here, my posts on some of his past lawsuits here and here, and more on his past criminal convictions here. First, the plaintiff's allegations (of course at this point they are just allegations):
In 1968, when he was a fourteen-year-old student at Westlane Junior High School, teacher Tharrell Davis ("Davis") "took an unusual interest" in Kimberlin. Over the next several months, Davis repeatedly sexually assaulted Kimberlin in Davis's home and elsewhere. The abuse caused Kimberlin physical injuries at the time and has caused many other problems in the decades since.
Another boy named "Tommy" was often present during the assaults and was also assaulted by Davis. Kimberlin offered to have his parents help Tommy get away from Davis. Tommy told Davis about this offer, which led Davis to admit the abuse to Kimberlin's mother and agree not to have further contact with Kimberlin. Kimberlin's mother asked a friend to report Davis to the School District and Indiana State Police; the Complaint does not allege whether those reports were made. The next year, Davis left the School District. "Plaintiff believes that he was quietly forced out of his job because of his sexual abuse of Plaintiff and others."
In December 2023, shortly before her death, Kimberlin's mother told him that Davis had admitted to the sexual assaults. This caused "a flood of repressed memories, nightmares, anxiety, and post traumatic stresses." In June 2024, Kimberlin wrote a letter to [then-Superintendent Nikki Woodson] about the abuse, "demand[ing] accountability and compensation." At the time, Kimberlin did not know Davis's first name, but he told Dr. Woodson that Davis was a science teacher in 1968 at Westlane and had been in the military. Kimberlin "urged [Dr. Woodson] and [the School District] to review its records and conduct their own investigation."
A few weeks later, in July 2024, outside counsel for the School District (and defense counsel in this case), Jonathan Mayes ("Mayes"), responded, stating that the School District "had turned the matter over to law enforcement for investigation, and [the School District] would respond after law enforcement responded. Law enforcement never responded to the School District, so the School District never responded to Kimberlin.
