The Volokh Conspiracy Archive

I continue to find one small detail of the Slush Fund affair (Slushfundgate?) of particular interest.

As you may recall, our President's suit against the IRS was voluntarily dismissed on May 16.

Two days later, on May 18, the parties executed a "Settlement Agreement." In that Agreement, the DOJ* agrees to issue "a formal apology" to our President, and "the Attorney General of the United States agrees to create the [$1.776 billion] Anti-Weaponization Fund, subject to the terms and conditions described herein."

*The "Settlement Agreement" was signed "for the United States" by Associate Attorney General Stanley Woodward. The DOJ was, presumably, acting in its capacity as counsel to the defendant (I.R.S.).

Daniel Z. Epstein, counsel to the Plaintiffs (our President, his two sons, and the Trump Organization), is the other signatory.

In exchange for all that (the apology and the Fund), Trump and the other Plaintiffs agree to:

RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE Defendants [the I.R.S.] and the United States from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, including injunctive, monetary, damages, tax payments, debt relief, costs, attorney's fees, expenses, and/or interest, that - as of the Effective Date - have been or could have been asserted by Plaintiffs in the Case or the Pending Agency Claims, by reason of, with respect to, in connection with, or which arise out of, matters in the Case or the Pending Agency Claims. [Emphasis added]

Curious, no? On several grounds.

First: Trump releases all his claims against the IRS? That doesn't sound like Trump. Given that the whole undertaking is patently a sham - Trump "settling" with Trump -- why would Trump give away anything at all? Just to make it look like there's an actual "exchange" taking place?

And while it might look as though Trump is giving the "other side" something of value, he isn't. Two days before the "Settlement Agreement" was executed, his claim was dismissed, at his request, with prejudice. So when he sits down to "negotiate" his "Settlement Agreement" on May 18th, sitting across the table from his reflection in the mirror, he's already barred from ever raising those claims again. So his "waiver" is entirely redundant and meaningless.

And notice: the "Settlement Agreement" doesn't make any reference at all to the dismissal of Trump's claims. That's also a little odd. Ordinarily, when parties agree to settle ongoing litigation, their Settlement Agreement will say something like:

"Plaintiff promises to voluntarily dismiss his claims against the Defendant, in exhange for the Defendant's promise to [do something, or pay something]."

The withdrawal of Plaintiff's claim is a big part of the consideration flowing between the parties, which is what makes the Settlement Agreement an enforceable contract; the parties are exchanging things of value.

Not so, here. Trump can't promise to drop his claims against the IRS, because he's already dropped them.

And notice: in the "Settlement Agreement," Trump waives any claims he might have against the IRS. It does not say that the IRS waives any claims it may have against Trump.

But the very next day (May 19th), this curious document appeared on the DOJ website. It simply states, with absolutely no additional explanation, that

The United States RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs from, and is hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, including injunctive, monetary, damages, tax payments, debt relief, costs, attorney's fees, expenses, and/or interest, that - as of the Effective Date - have been or could have been asserted by the Defendants (i.e., the IRS) against any of the Plaintiffs or related or affiliated individuals . . . [Emphasis added].

This document - untitled, and with nothing at all of substance other than this waiver - was signed by (a presumably shame-faced and embarrassed) Acting Attorney General Todd Blanche.

Did Blanche just forget to have this clause included in the "Settlement Agreement"?! There's no additional consideration coming from the Plaintiffs in exchange for this waiver of the potential United States claims; so its either just a little gift ("From the People of the United States, in Recognition of Your Brilliant Leadership!!!!"), or it was supposed to be included in the Settlement Agreement but was inexplicably left out.

And that would constitute incompetence of truly monumental proportions. Did the Acting Attorney General not read the (two-page!) Settlement Agreement between the sitting President (for whom he works) and the IRS? Or he did read it over, and fail to notice that the immunity he thought was going to be in there for the President was missing? Is it really possible?

Sure looks that way, doesn't it?

Here's how I think it all went down. During the negotiation sessions over the "Settlement Agreement," where the hard bargaining between Trump and Trump was taking place, Trump turned to Todd Blanche, who was there as counsel to the IRS and to the President, and said:

"Draft up a Settlement Agreement - and don't forget to put in that waiver!!"

Blanche turns to his deputy, Stanley Woodward - remember, it was Woodward who actually signed the "Settlement Agreement" on behalf of the United States - and said:

"Woodward, draft up the Settlement Agreement. And don't forget to put in that waiver!!"

And Woodward thinks to himself:

"What waiver?"

He figures they must be referring to a waiver by Trump for all claims that Trump may have against the IRS. After all, one would expect a Settlement Agreement to contain a waiver running in that direction, one where Plaintiffs promise to drop their claims and not to sue the Defendants as part of the overall settlementy deal. He inserts such a clause into the Settlement Agreement.

Astonishingly, nobody notices the omission until the day after the Settlement Agreement is signed.

Keystone Kops lawyering at its best, or worst.

Today's NY Times happens to have an article about the exodus of lawyers from the federal government. ["Trump Administration Sees Striking Exodus of Legal Talent"] DOJ has lost 21 percent of its lawyers in a little over a year. AbovetheLaw.com has been reporting on this for a while, and the evidence is indeed starting to accumulate that the quality of lawyering out on the front lines is declining.

Not to worry, though. Our President reassures us:

The New York Times wrote a story today entitled, 'Trump Administration Sees Striking Exodus of Legal Talent,' as though that's a bad thing, when actually, it's very good. The people that are leaving are Radical Left Deep State Lunatics, who are destroying our Country, and Weaponizing Government. Many of them didn't leave, but were fired! The Failing New York Times writes this, but makes it sound like it's a terrible thing when actually, it's just the opposite. We want people that will, MAKE AMERICA GREAT AGAIN, not people that are trying to destroy our Country, that were put in by Obama and Biden and, in many cases, they shouldn't have been representing the U.S.A. in the first place."

For past Free Speech Unmuted videos, see:

A photo of the flag being displayed, from the application for a temporary restraining order.

From yesterday's decision (which strikes me as correct) in Accountability Now USA v. Griess, by Judge Randolph Moss (D.D.C.):

Plaintiff, an unincorporated association that maintains a 24/7 demonstration calling for the impeachment and removal of President Donald Trump on National Park Service ("NPS") land, moves for an emergency order temporarily restraining the Superintendent of the National Mall and Memorial Parks Kevin Griess and the Secretary of the Interior Doug Burgum or their delegees "from taking enforcement action against them because of their display of a flag with the legend '8647.'" For the reasons that follow, the Court will grant Plaintiff's motion….

The parties' disagreement … turns on whether Plaintiff's display of the "8647" flag constitutes protected speech, as Plaintiff asserts, or a "true threat" to the life or safety of the President (or an incitement to violence), as Defendants maintain. At oral argument, both sides agreed that context is dispositive. Not every use of the slang phrase "86" constitutes a threat of violence; to the contrary, it is most often used to mean that an item is no longer available or that someone or something should be removed, ejected, or thrown out. But it can, in some contexts, mean "to kill." …

"True threats of violence, everyone agrees, lie outside the bounds of the First Amendment's protection." "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." "The 'true' in that term distinguishes what is at issue from jests, 'hyperbole,' or other statements that when taken in context do not convey a real possibility that violence will follow." …

The Court starts with the premise that the word "86" is a slang term with no single meaning. According to Merriam-Webster, "Eighty-six is slang meaning 'to throw out,' 'to get rid of,' or 'to refuse service to.'" The phrase "comes from 1930s soda-counter slang meaning that an item was sold out[,]" and may have been used because it rhymes with "nix." It was first used as a noun to refer "to an item … that had been sold out," but by the 1950s, the term was used as a verb, at first meaning " 'to refuse to serve a customer,' … later meaning " 'to get rid of; to throw out,' " and still later coming to mean " 'shut out' or 'rejected.'" Merriam-Webster further notes that a recent extension of these meanings has included "'to kill,'" although the dictionary declines to endorse that meaning "due to its relative recency and sparseness of use." According to Merriam-Webster, "[t]he most common meaning of eighty-six encountered today is the one that is closer to its service industry roots." …

Prof. Bradypus Tridactylus. Credit: Marshall, *Annales du Muséum national d'histoire naturelle*, via Wikipedia.

From a draft by Stanford law professor Julian Nyarko and others:

We conducted a blinded evaluation of short-answer tutoring in contracts courses with sixteen U.S. law professors. Participants created 40 representative questions, wrote answers, and judged 2,918 anonymized comparisons between human and LLM responses. Professors rated LLMs far higher than their peers (average win rate = 75.33%), with models performing similarly to the best instructor. LLM responses were also rarely flagged as harmful (3.53%, vs 12.06% for professors). Preferences for LLM answers were consistent across evaluators and reflected shared professional standards….

Sixteen contracts professors from fourteen U.S. law schools—who all use the same casebook to teach the material—authored questions representative of those asked during office hours. From this pool we curated 40 representative questions spanning four instructional categories (Recall: Case or Code, Recall: Doctrine, Hypotheticals, Policy).

Recall questions—whether relating to a case, code or doctrine—tend to be amenable to answers which can be evaluated against a ground truth, and where argumentative strength is of little importance. In contrast, hypotheticals present a short set of facts and ask how the law should be applied. Together with policy questions, which often center on legal or policy design under heterogeneous preferences, providing a strong answer in this category often relies on displaying careful reasoning, weighing competing arguments and other latent, professional standards of quality—even if the relevant doctrine is now settled.

Below is my list of speaking engagements for the summer of 2026. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.

I normally post lists of speaking engagements only during the academic year. But this summer, I have an unusually large number of them. So I decided to do a post.

I may add additional events and information to this post, as they are scheduled, and update details on existing ones. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business!

June 10, 12-1 PM, Southwest Florida Federalist Society, Lawyers Division Chapter, Bruno's (restaurant), 2149 First St., Fort Myers, FL: "Immigration is Not Invasion."

June 17, 3-4 PM, Housing Working Group, American Institute for Economic Research (online event): "The Constitutional Case Against Exclusionary Zoning." This event is, I believe, limited to members of the AIER housing working group, and possibly other AIER affiliates.

June 17, 6-9 PM, Institute for Humane Studies, National Press Club, Washington, DC: "IEEPA and the Limits of Executive Power." This event features a live podcast recording, followed by a Q&A session, and a reception. Registration and other information available here.

July 7, 6-7:30 PM, Annual Supreme Court Review, National Constitution Center, Philadelphia, PA: "Tariffs and the Limits of Executive Power" (tentative title). Panel on "The Supreme Court and Executive Power."

July 15, time TBA, Brennan Center for Justice, New York University, NYU DC 1307 L Street NW, Washington, DC: "Assessing the Tariff Decision" (tentative title), conference on "Congress and the Court.

The Roberts Court seems to be methodically scaling back the excesses of the Burger Courts. But one area that has not yet been revisited is the death penalty. Despite the Court imposing "history and tradition" tests for other aspects of the Bill of Rights, the Eighth Amendment still follows the "evolving standards of decency" standard. This sort of living constitutionalism is an anathema to the notion of a written Constitution. One of the most egregious manifestations of this standard was Atkins v. Virginia. This standard was egregiously wrong and has proven impossible to implement. And murderers with purported intellectual disabilities cannot plausibly rely on this or any other Supreme Court precedent. Yet Atkins remains. Just last month the Court DIG'd Hamm v. Smith, I suspect, because Justices Kavanaugh and Barrett didn't want to decide it. I suspect there will be leaks from the Court to make sense of this flip.

The Court needs to start over on the Eighth Amendment. Or in today's lingo, they need a reboot. My new essay in Civitas Outlook is titled, "The Roberts Court Needs To Reboot The Machinery Of Death."

Here is the introduction:

In the span of one year, the Burger Court created a constitutional contradiction. Furman v. Georgia (1972) proclaimed that the Eighth Amendment prohibits states from terminating the life of murderers. One year later, Roe v. Wade (1973) ruled that the Fourteenth Amendment prohibits states from protecting the life of the unborn. Both rulings represented the heights of judicial hubris. The Justices, and not the elected branches, would decide who could live and who could die. Neither ruling was even remotely plausible as an originalist matter. Both rulings led to chaos and uncertainty in the law.

While the Supreme Court would not revisit Roe for nearly two decades, the Court returned to the death penalty four years later. In the face of a popular backlash, the Court in Gregg v. Georgia (1976) allowed the states to resume executions. But this decision still allowed the judiciary to superintend capital punishment based on "evolving standards of decency." This sort of living constitutionalism is an anathema to the notion of a written Constitution. But worse still, this standard gives liberal elites who define "decency" the power to define our justice system. This regrettable standard persists to the present. Just last week, the Supreme Court declined to resolve a capital case where mental health professionals insisted that a cold-blooded killer could not be executed because one of his five IQ scores may have been too low. The Court owes the victims of brutal murders and the Constitution far better. The machinery of death needs a reboot.

And the conclusion:

Given the ham-handed dismissal in Hamm, state Attorneys should go on offense. They should ask the Court to reverse Gregg, Atkins, and all related cases in every petition and cross-petition. The states need a power saw to remove this doctrine root and branch. The Court should once and for all eliminate the evolving standards test. The Eighth Amendment should be interpreted in an originalist fashion like the rest of the Bill of Rights. IQ tests did not exist in 1787, yet our framers somehow managed to execute people. States are free to impose greater restrictions on capital punishment or ban it altogether. But this issue is not for the judiciary to decide. Gregg v. Georgia should meet the same fate as other discarded Burger Court precedents like Roe, Bakke, Chevron, Lemon, and the list goes on.

Two decades after Gregg, Justice Harry Blackmun concluded that all forms of capital punishment were unconstitutional. Blackmun, the author of Roe v. Wade, may have been President Nixon's greatest mistake. Watergate was over in a few years, but Blackmun's judicial impact stretched two decades. In Callins v. Collins (1994), Blackmun declared, "From this day forward, I no longer shall tinker with the machinery of death." Blackmun got it exactly backwards. Judicial abolition of the death penalty was the problem, not the solution. The way for judges to stop tinkering with the machinery of death is to stop tinkering with the machinery of death. The Roberts Court should reboot the machinery of death, and get the judiciary out of this interminable quagmire.

The entire Eighth Amendment jurisprudence has been an abject failure at every level. In my mind, the most perverse aspect of the abolition movement is that so much effort is aimed at helping the most gruesome murderers, even as defendants who committed far less serious offenses with a greater chance of success are severely underrepresented. States are free to abolish capital punishment, and the federal courts should exit this thicket.

From Amitay v. Jews for Jesus, decided Thursday by the California Court of Appeal (Justice Marla Miller, joined by Justices James Richman and Tara Desautels):

In December 2023, JFJ posted on its social media pages, including on Facebook and Instagram, a blurred photograph of an Israeli soldier wearing a yarmulke. Above the photograph was the following text attributed to "Nachman": "'Thank you for leaving at my home a copy of the New Testament. I look forward to reading it when I return home from the war'—Nachman, a young Haredi soldier." {Haredim are sometimes referred to as 'ultra-Orthodox,' although this term may be considered objectionable."} {Some of the posts went on to state: "One of the ways that God provides for His people is through the generosity of other people around the World, like you. Because of your support, we were able to give a copy of the New Testament to Nachman and more than 1,000 Israelis in 2023!"}

Amitay filed a complaint against JFJ, attaching screenshots of JFJ's posts. He alleged that the photographs posted by JFJ were photographs of him, that they had been posted without his consent, and that defendant had defamed him …. Amitay alleged that he was a Jewish Orthodox rabbi who had "dedicated his life to the study of the Jewish Orthodox faith and committed many years studying to become a rabbi," recounting about a dozen years of study.

He had finally gotten a job teaching at an institution in Israel where he had worked for two years, a position he described as his "dream job." His job "suddenly came to an end as he was terminated … due to an egregious act by JFJ," namely, "upload[ing] photos of Amitay on [its] social media pages." He alleged: "JFJ posted a picture of [him] on their website giving the appearance that he supports JFJ's cause. Not only was a photo uploaded, but the post included a caption also falsely expressing that [he] supported JFJ's religious views." Amitay alleged that he is "an Orthodox Jew, a more traditional branch of Judaism, which [has] starkly different views from JFJ." He "never before associated with JFJ and disagrees with their religious views." …

Amitay alleged that when his employer "saw the pictures posted online," they "expressly stated that his termination was due to the posts online of him supporting JFJ, and that they could not condone or be associated with someone involved with JFJ or their views." Amitay alleged that the posts were false because Amitay "has no affiliation with [JFJ] … and disagrees with [JFJ's] religious views." …

From a May 5 decision by the Ohio Court of Appeals in City of Nelsonville v. Nguyen, decided by Judge Michael Hess, joined by Judges Jason Smith and Kristy Wilkin:

The State of Ohio, City of Nelsonville appeals the judgment rendered in this criminal case involving an offense of disturbing a lawful meeting. The State contends that the trial court erred when it added the element of "substantial" to the offense of disturbing a lawful meeting under R.C. 2917.12(A)(1) to its jury instructions….

The State presented witness testimony from the Nelsonville City Council President, Gregg Clement, that the Nelsonville City Council held a regular meeting on April 14, 2025 at which two new council members were to be sworn in following the roll call. However, after roll call and before the swearing in, [former City Council President] Nguyen stepped forward and began speaking.

Clement called Nguyen to order and instructed her that it was not the appropriate time to speak and that she could make comments during the citizens' comment period. Nguyen continued to speak, and Clement called her to order a second time and again instructed her that she could speak under the citizens' comment period. Nguyen continued to speak and Police Chief Devon Tolliver, who was providing security for the meeting, stepped in and tried to get Nguyen to stop speaking, but she continued so Chief Tolliver removed her from the council meeting.

Clement called a recess of the meeting for approximately 10 to 15 minutes to allow everyone to regain composure. Following the recess, the meeting was resumed, there were no further interruptions, council business was conducted, and the meeting concluded. Clement testified that he believed that Nguyen had the misconception that she was the Nelsonville City Council President and could speak anytime during the meeting. However, because Nguyen had resigned from council several weeks earlier, Clement understood that Nguyen was no longer a member of council.

Nguyen testified that she believed that she was the city council president during the April 14, 2025 meeting and had the right to speak when she did without waiting until the citizens' comment period. Nguyen testified that it was her intent to speak for two minutes. A video recording of the meeting was played for the jury. The video shows Nguyen speaking and arguing with council president and the police chief continuously for approximately three and one-half minutes. Nguyen continues to argue loudly with law enforcement off camera as she is removed from the meeting, such that Clement called a recess for approximately 10 to 15 minutes….

Nguyen was charged with a violation of Ohio Rev. Code 2917.12(A)(1):

From Judge F. Dennis Saylor IV yesterday in U.S. v. Nshimiye (D. Mass.):

This is a criminal case arising out of a six-count indictment charging defendant Eric Tabaro Nshimiye with perjury, obstruction of justice, and knowingly concealing material facts in his application for refugee status in the United States.

Nshimiye has moved to dismiss the indictment, asserting that the Rwandan government and its restrictions on speech will prevent the witnesses from speaking freely about the genocide, rendering their testimony unreliable, and that admitting such testimony would violate his due-process rights…. He [also] contends that the government cannot establish that the statements alleged in Counts One and Three were knowingly false or material.

For the following reasons, the motion will be denied….

Eric Tabaro Nshimiye was born and raised in the Republic of Rwanda. He is a Hutu, which is the majority ethnic group in Rwanda. In April 1994, the Rwandan genocide targeting the country's Tutsi ethnic population began. At the time, Nshimiye was enrolled as a medical student at the University of Rwanda in Butare. The government alleges that Nshimiye was an active member of the Movement Revolutionaire National pour le Development ("MRND"), a group that committed genocidal acts in Rwanda in 1994. At some point in 1994 or 1995, Nshimiye fled Rwanda to Kenya.

In May 1995, he applied to become a refugee to the United States and was admitted in December 1995. He became a lawful permanent resident of the United States in 1998 and achieved United States citizenship status in 2003. The government alleges that he knowingly made false statements about his involvement in the Rwandan genocide at each stage of the immigration process.

In April 2019, Nshimiye was called to testify as a defense witness on behalf of Jean Leonard Teganya, his former University classmate and roommate. Teganya was charged with committing perjury and making false statements during immigration proceedings about his membership in the MRND and his actions during the Rwandan genocide. Nshimiye testified under oath before a federal jury….

6/2/1952: Youngstown Sheet & Tube Co. v. Sawyer decided.

Today, the Society for the Rule of Law published my article on "The Case Against Mass Deportation," on its Checks and Balances substack. Here is an excerpt:

Since Donald Trump returned to the White House in January 2025, U.S. immigration enforcement and deportation operations have become more cruel and oppressive than they have been in many decades, if not ever - with victims including both immigrants and many US citizens. The best approach to curbing these abuses is cutting back on deportations more generally.

Since Trump returned to office in January 2025, Immigration and Customs Enforcement (ICE) and other federal officers have killed at least three U.S. citizens (two in Minnesota and one in Texas), wounded numerous others, and detained hundreds illegally, usually after mistaking them for illegal migrants. ProPublica found some 170 cases of illegal detention of citizens through October 2025. But that is almost certainly a severe underestimate.

ICE and other agencies also make extensive use of racial profiling, which leads to detention and harassment of numerous U.S. citizens who are Asian, black, or Hispanic, or look like they might be and thus potentially suspect. The enormous extent of racial and ethnic profiling by ICE is shown by the fact that immigration arrests in Los Angeles County declined by 66 percent after a federal court order barring the use of such tactics (the ruling was eventually blocked by the Supreme Court, perhaps for procedural reasons). Conservatives and others who favor color-blind government cannot make an arbitrary exception for immigration enforcement.

Conditions in ICE detention facilities are often horrific, routinely featuring overcrowding, inadequate food and denial of essential medical treatment. Since the start of the present fiscal year in October, a record 29 people have died in ICE detention, even though the fiscal year is only about half over. The brutality and violations of civil liberties have been exacerbated by the administration's massive expansion of the number of ICE personnel (including hiring many poorly qualified people), and by its imposition of deportation quotas incentivizing arbitrary arrests with little or no proof. There have been so many illegal ICE detentions that courts have ruled against the administration in detention cases some 11,500 times, including thousands of decisions issued by Republican-appointed judges….

The abuses of the deportation system have increased significantly thanks to Trump's policies. But the system is cruel and unjust even under more conventional presidents. Illegal detention and deportation of U.S. citizens long predates Trump. Northwestern University political scientist Jacqueline Stevens estimated that the federal government detained or deported more than 20,000 U.S. citizens from 2003 to 2010…. Racial profiling is also not unique to the Trump era….

Ultimately, it is impossible to deport any large proportion of the estimated 13.7 million undocumented immigrants in the United States without arresting and detaining many people with little or no due process….

Ultimately, the only way to end or greatly reduce that brutality is to radically scale back deportation itself. There are a variety of ways to do that…..

The rest of the piece outlines a variety of potential reforms.

UPDATE: In the original version of this post, I forgot to include a link to the article. That error has now been corrected.

From Wenzler v. U.S. Coast Guard, decided today by Seventh Circuit Judge Michael Scudder, joined by Judges Amy St. Eve and Joshua Kolar:

James Wenzler posted a series of crass statements on LinkedIn while serving as a member of the Coast Guard Auxiliary and depicting himself in uniform. The Auxiliary investigated, told him to stop, and removed him from its ranks after he failed to heed its warning….

James Wenzler joined the Coast Guard Auxiliary in 2007. He held various positions over the years, eventually becoming a Vice Flotilla Commander. Wenzler publicized his affiliation with the organization on LinkedIn. His profile depicted him in uniform and represented that he served as the Auxiliary's Branch Chief for Human Resources.

In May 2022, a member of the public complained to the Auxiliary about Wenzler's LinkedIn posts. One of the posts accused certain Supreme Court Justices of being racist, and another included a crude remark about the Girl Scouts.

Here are the details on the posts, from the district court opinion:

The first [post] was in response to a post congratulating Justice Ketanji Brown Jackson. Wenzler's responsive post read: "Another racist makes the court to join racist Sotom[a]yor and Kag[a]n. Great job America!" The second post was in response to a post commending a girl scout for writing a letter to the editor to complain about an announcement regarding boy and girl scouts that the writer deemed sexist. Wenzler's responsive post read: "Well if you are proving you are just having fun, then you are. To find something sexist is to show you are the sexist. Perhaps the Girl Scouts should actually accomplish something, but alas they just sell cookies."

Back to the Seventh Circuit opinion:

Judge Eleanor Ross, who serves on the federal bench in Atlanta, engaged in multiple acts of misconduct. She carried on a secret affair with an Atlanta police department officer for nearly two years, repeatedly had loud sex in her chambers, lied about her trysts, and obstructed the investigation. Each of these actions warranted a public reprimand and an impeachment inquiry. But one of the more stunning allegations has flown under the radar: Judge Ross routinely signs judicial orders her law clerks prepare without even reading them. Indeed, it seems she never even talks about these cases with her clerks, so likely has no clue what she is even approving. Yet the council that reviewed this case found no misconduct.

Let me tell you a not-so-well-kept secret: most judges let their law clerks do far too much. Take it from my personal experience. I clerked in a federal district court for two years immediately after law school. The judge I clerked for, who recently passed away, was a dedicated jurist and an honorable man, but he let his clerks have far too much autonomy. At the time, I was overwhelmed with how many important decisions turned on my immature judgment. In hindsight, I cringe at my mistakes that the judge did not catch. Judge Ross will likely lose her judgeship, either through resignation or impeachment. But the public needs to take a closer look at judges who have abdicated the judicial power to unknown law clerks.

The Eleventh Circuit Court of Appeal's Judicial Council, which reviews misconduct complaints, interviewed six of Judge Ross's former law clerks. They explained that the judge's "longstanding practice was to handle all criminal case work without law clerk assistance." This choice makes some sense, as Ross was a former prosecutor. This work is also predictable. Virtually all federal cases wind up with plea bargains, so the most difficult work concerns calculating a defendant's sentence. This sort of judgment will be based in large part on experience and judicial philosophy. The judge I clerked for would allow law clerks to make recommendations but he always calculated the sentence himself after considering all the evidence.

In contrast with the criminal docket, Judge Ross had no oversight of the civil docket. All six clerks reported that Judge Ross "did not indicate to the clerk how the judge was inclined to rule on the motion or otherwise provide any direction." Moreover, "it was generally understood that" Judge Ross "did not wish to discuss substantive civil-case related issues with clerks." I suppose her time was better spent having loud sex in chambers.

To be clear, the Judge didn't talk to her clerks about cases before they were assigned, and didn't want to talk to the clerk while the cases were being considered. Worse still, it appears that the judge rubber-stamped virtually every civil order that came before her. The clerks relayed that Judge Ross "rarely, if ever, substantively edited civil orders the clerks drafted." Indeed, the clerks were "generally unaware as to whether the Subject Judge reviewed pleadings or draft civil orders." As proof, a law clerk "stated that on multiple occasions the judge emailed the clerk to docket an order within a few minutes of receiving it, indicating that the judge may not have had time to read it."

Most civil cases in the federal system are resolved on motions without the benefit of oral argument. Judge Ross was likely able to get away with ignoring her civil docket unless summary judgment was denied and the case went to trial. At that point, she would have to catch up. A career clerk "recalled one instance in which, during the middle of a civil trial, [Judge Ross] made a comment indicating that the judge had recently, for the first time, read the order denying summary judgment in the case." With good reason, the clerks felt "uncomfortable with the level of discretion they appeared to exercise in handling civil cases" especially "given their inexperience."

Judge Ross offered only a partial rejoinder to her clerks. Judge Ross conceded that she does not review any of the filings before assigning a case. Accordingly, she "does not offer clerks guidance, in advance, as to whether a motion should be granted or denied." The Judge maintained that she is "always available" to answer "substantive legal questions." Though it is unclear how much help she can provide if she never read any of the briefs. Judge Ross further "insisted that draft substantive orders are reviewed, and, from time to time, needed corrections are identified."

Indeed, it isn't even clear what "reviewed" means in this context. She admitted "making edits to between 30 and 40 percent of draft orders." So between 60 percent and 70 percent of the orders she signed had no edits. How often is any work product perfect when delivered? As any editor would tell you, the answer is never. If "corrections are identified" only "from time to time" then the judge is not reviewing documents at all. What about those orders that she edits? Does Judge Ross read the briefs, check the caselaw, or assess the legal arguments? Or does she simply proofread to find typos? I would wager she does little if any substantive work.

Today the Supreme Court summarily reversed an Eleventh Circuit capital case, Whitton v. Dixon. Justice Thomas dissented, joined for the most part by Justice Alito. The Eleventh Circuit issued a 60-page decision, but the Court found objectionable two sentences. As Justice Thomas points out in his dissent, the Eleventh Circuit can simply strip out those two sentences, and the outcome would remain unchanged. This seems to be the essence of harmless error. Why, then, did the Court waste everyone's time with a summary reversal?

Justice Thomas charges his colleagues with an inconsistent approach to summary reversal.

This Court has increasingly granted summary relief in certain cases based on lower court errors that seemingly had no effect on the outcome of the case. See Pitts v. Mississippi, 607 U. S. 1 (2025) (per curiam) (granting summary vacatur for man who sexually abused his daughter after likely harmless trial error); Doe v. Dynamic Physical Therapy, LLC, 607 U. S. 11 (2025) (per curiam) (granting summary vacatur after likely harmless state intermediate appellate court error). It would be one thing if this practice reflected the Court's consistent commitment to correcting legal error in all cases. But, in reality, this Court routinely declines to provide relief to law-abiding Americans when it would actually matter, even after lower courts conspicuously flout this Court's precedents in ruling against them.

Over the years, I've noticed this practice. The Court issues a narrow summary reversal on grounds that are easily surmounted, the lower court affirms the conviction, and then the Supreme Court denies cert. What's the point? Why waste so much time and effort on correcting an error that will not affect the outcome of the case. The Supreme Court often says its certiorari docket is not designed for error correction, but as usual, all the rules go out the window for capital cases. The murder in this case occurred in 1990. As often happens in capital cases, delay is the end and not the means.

Justice Thomas also flags specific cases where his colleagues denied certiorari, even as lower courts flouted the Supreme Court. First, he noted two post-SFFA affirmative action cases involving the Boston School Committee and Thomas Jefferson High School in Alexandria, Virginia. The Court refused to "correct a glaring constitutional error." Second, he pointed to the Court's refusal to revisit the Feres doctrine in Beck v. United States. (Justice Alito did not join this part of the dissent, as he did not dissent in Beck.) Third, Thomas cited two cases from Speech First that challenged campus bias response teams. Lower courts found there was no standing, and the Court did nothing.

I continue to think the Supreme Court's mandatory jurisdiction should be expanded. Too many important issues are being left unresolved, and the Justices offer no explanation why. This failure to take important cases is compound when the Justices expend their limited resources in summarily reversing a capital case where the outcome will not change.

From Judge Sanket Bulsara (E.D.N.Y.) Wednesday in Nazarenko v. Genalo:

On May 25, 2026, Respondents filed an answer to the [habeas] petition in this case. That response contained as an exhibit an INA § 236(a) Initial Custody Determination ("INA § 236(a)"). The document was redacted—including the date and time of the arrest of Petitioner and the "Discussion" outlining the basis for a finding of dangerousness. ICE took it upon itself to redact the document, claiming it had been "authorized for release on the condition that certain information, regarding the assessment of dangerousness, be redacted."

The Court immediately noted that the filing of such a document violated its Individual Practices. And importantly, there was no version of the document filed on the docket for the Court to view in unredacted form. In other words, ICE expected the Court to accept that it properly conducted an evaluation of Petitioner's dangerousness, and the basis for detaining Petitioner, but shield its rationale from the Court.

Such practices are repugnant to the rule of law, and ICE is warned that further obfuscation and misuse of sealing and redaction before the undersigned will lead to sanctions against the agency. The Court herein details the reasons why it will not tolerate such practices in the future.

[I am assuming that you all know the basic background of the Slush Fund "Settlement"; my earlier discussions are here and here.]

Things are definitely heating up on the Slush Fund front.

Even for a President for whom courtroom losses are a depressingly regular occurrence[1], and even putting aside the Order from D.D.C. requiring him to take his name off of the Kennedy Center, Friday was a tough day for our President.

First, in Floyd et al v. DOJ, the district court (ED VA, Judge Brinkema) enjoined the DOJ from "taking any further action pursuant to the creation or operation of the Anti-Weaponization Fund, including the transferring of money to the Fund; the consideration of any claims submitted to the Fund; and the disbursing of any funds from the Fund."[2]

And then a second court (SD FL, Judge Williams), re-opened the Trump v. IRS case (in which Trump had agreed to a voluntary dismissal of his claims), based on …

"… grievous allegations that [Trump] voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that was collusive from the start and was only filed to provide the imprimatur of legality for an unlawful settlement.[3]" The court further ordered Trump to file a response to those allegations by June 12, "detailing his "position on . . . (1) the charges of collusion and whether the Parties are truly adverse; (2) the assertion that the dismissal in this case was premised on deception by the Parties; and (3) the question of whether the case should be reopened because the Court was the victim of a fraud." (Emphasis added)

From Friday's decision in Watts v. Jones, by Seventh Circuit Judge Frank Easterbrook, joined by Chief Judge Michael Brennan and Judge Diane Sykes:

Two detectives investigating an inmate at the Wisconsin Secure Program Facility tried to speak with David Watts, another inmate, who had sent letters suggesting that he had valuable information about a murder and an attempted murder. One detective appeared at Watts's cell. He feared that the inmate under investigation would get wind of anything he said, so he refused to talk. Watts relates that, even so, he was threatened and harassed. Though no physical harm came to him, Watts filed this suit under 42 U.S.C. § 1983 seeking damages from the detectives for exposing him to risk.

The court concluded that such a claim was unavailable, at least in the absence of physical harm, but also had this to say on the earlier attempts to litigate the case under seal and with pseudonyms:

The district court entered an order sealing the litigation in large measure, which effectively created anonymity for the litigants and any potential witnesses. A motion to continue the sealing during the appeal led to a one-judge order denying that request but requiring anonymity all around. The result is that the parties have filed public briefs but not identified the persons involved. After hearing oral argument, this court now concludes that anonymity is inappropriate given this court's strong presumption that adult litigants must use their own names.

The Volokh Conspiracy

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Today in Supreme Court History: June 2, 1952

Open Thread

My New Article Making "The Case Against Mass Deportation" [Updated with link]

Court Upholds Dismissal of U.S. Coast Guard Auxiliary Officer for "Crass Statements on LinkedIn" "in Uniform"

Judge Ross Should Have Been Punished For Abdicating Her Judicial Power To Her Law Clerks

Justice Thomas Faults The Court's Inconsistent Approach to Summary Reversals

"ICE Expected the Court to Accept … [Its] Basis for Detaining Petitioner, but Shield Its Rationale from the Court"

The Art of the Deal cont'd, cont'd

No Pseudonymity in Lawsuit by Inmate Who Claims Detectives Endangered Him by …

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