Open Thread
What’s on your mind?
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Fourth Circuit Rejects Facial Challenge to Two Trump Anti-DEI Executive Orders
"What plaintiffs are really asking us to do is read subtext into the Provision's text."
From Nat'l Ass'n of Diversity Officers in Higher Ed. v. Trump, decided today by Fourth Circuit Chief Judge Albert Diaz, joined by Judges Pamela Harris and Allison Rushing:
In the first days of his second term, President Donald J. Trump issued two Executive Orders ["Ending Radical and Wasteful Government DEI Programs and Preferencing" and "Ending Illegal Discrimination and Restoring Merit-Based Opportunity"] that directed executive agencies to end "diversity, equity, and inclusion" ("DEI") programs within federal grant and contract processes…. The district court entered a preliminary injunction, but we stayed it pending appeal. We now vacate the district court's injunction and remand….
[1.] The court rejected a Due Process Clause vagueness challenge to the "Termination Provision" of the first executive order, which directed "all [federal] agencies, departments, and commissions to":
terminate, to the maximum extent allowed by law, all DEI, DEIA, and "environmental justice" offices and positions (including but not limited to "Chief Diversity Officer" positions); all "equity action plans," "equity" actions, initiatives, or programs, "equity-related" grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.
The court reasoned:
Plaintiffs argue that the provision never defines "equity-related," so there isn't "any guidance as to which grants or contracts must be terminated." Thus, "agencies are free to terminate grants and contracts as they please, even based on protected speech."
But therein lies plaintiffs' dilemma. The Termination Provision, on its face, doesn't ask anything of them, nor does it regulate private conduct. Instead, it instructs the President's subordinates to act, and then only "to the maximum extent allowed by law." The Provision, at this stage at least, is nothing more than "an outward-facing" policy directive from the President to his agents…. "Any concerns of vagueness regarding exactly what authority an agency may have to terminate a grant are internal considerations for the agency itself." …
The President may determine his policy priorities and instruct his agents to make funding decisions based on them. President Trump has decided that equity isn't a priority in his administration and so has directed his subordinates to terminate funding that supports equity-related projects to the maximum extent allowed by law. Whether that's sound policy or not isn't our call. We ask only whether the policy is unconstitutionally vague for funding recipients.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Arkansas tooth picks, selective schools, and inconsistent travel plans.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Where there is a right, there is also a legal remedy when that right is invaded—unless federal agents violate the Constitution. Over at The Unpopulist, IJ's Anya Bidwell and Marie Miller take stock of the Federal Tort Claims Act, state tort law, Bivens claims, and Section 1983 analogs, and chart a path toward reconstructing first principles.
New on the Short Circuit podcast: A primer on how to sue YouTube. Or work with it. It's up to you.
- "No fraud is more odious than an attempt to subvert the administration of justice." When an opinion starts that way, you know you're in for a bad time. So it is in this First Circuit case, involving a Puerto Rico man who tried to get his ex-wife not to testify against him in a civil case, allegedly by promising to make concessions in their ongoing custody battle.
- The statute of limitations on a legal malpractice claim doesn't start running until the plaintiffs have reason to know they've been harmed by the malpractice, says the First Circuit, and it's no fair to say the plaintiffs should have read these highly technical patent documents in order to figure out they were getting malpracticed. That's what the lawyers were for in the first place. Read More
"Thick on Words but Thin on Substance"
More from the transcript of a hearing in Flycatcher Corp. Ltd. v. Affable Avenue LLC:
And the lawyer's response:
The court's reaction to Mr. Feldman's "confusing justification":
In short, Mr. Feldman acknowledged ending up with citations that "did not exist," but failed to provide a coherent explanation as to how. Was the error a product of AI hallucination from the initial drafting stage? Was it somehow a case name mismatch on Google Scholar (setting aside the greater importance of the reporter citation)? Did another case improperly cite Mr. Feldman's case, accidentally supplying him the wrong citation? Did an AI program introduce errors at the cite-check stage where none had existed previously? Representative of much of his colloquy with the Court, Mr. Feldman's explanations were thick on words but thin on substance.
For more on what happened in the case, see the post below, Lawyer's Repeated Filings with AI Hallucinations Lead to Default Judgment Against Client.
How to Make Friends and Influence Judges
From the transcript of a hearing in Flycatcher Corp. Ltd. v. Affable Avenue LLC:
Unsurprisingly, the judge (Judge Katherine Polk Failla [S.D.N.Y.]) viewed this not as an important correction, but as Mr. Feldman's "attempt[] to minimize his responsibility." For more on what happened in the case, see the post below, Lawyer's Repeated Filings with AI Hallucinations Lead to Default Judgment Against Client.
Lawyer's Repeated Filings with AI Hallucinations Lead to Default Judgment Against Client
Presumably the client's potential remedy now would be a malpractice lawsuit against the lawyer.
From Flycatcher Corp. Ltd v. Affable Avenue LLC, decided yesterday by Judge Katherine Polk Failla (S.D.N.Y.):
Mr. Feldman was not dissuaded by Court orders or the threat of sanctions from filing unchecked, AI-generated submissions with false legal citations. And when given the opportunity to explain his conduct in person, Mr. Feldman chose to give many answers, only a few of which were true. The Court has reviewed the options available to it and, in particular, has carefully considered whether a lesser sanction would suffice.
It also wishes to be clear that its problems with Affable's submissions are not the use of AI per se, but rather Mr. Feldman's (i) knowing decision to use flawed methods of legal research and cite-checking; (ii) his inexplicable refusal to verify his submissions before filing them with the Court; and (iii) his unwillingness to come clean once these issues were revealed to the Court. Ultimately, the length and breadth of Mr. Feldman's misconduct warrant terminal sanctions….
Mr. Feldman violated Rule 11 repeatedly and brazenly, despite multiple warnings from the Court and fellow counsel. In his motion to dismiss brief, Mr. Feldman submitted documents containing fake cases and misattributed quotes hallucinated by AI. Then, when the Court called him out for this behavior and ordered him to show cause why it should not sanction him for misusing AI in violation of Rule 11, he relied on AI to draft the Response.
The Court can forgive the abrupt shift in tone and the irrelevant historical references; what it cannot forgive is Mr. Feldman's inclusion of another faulty citation and his persistent failure to verify his citations. And as further proof that he had learned nothing from his interactions with the Court, Mr. Feldman spontaneously submitted a proposed reply brief containing yet another nonexistent case while awaiting a hearing on the Order to Show Cause.
Harassment Restraining Order Stemming from Dispute Among Local Political Figures Vacated on Appeal
From J.W. v. T.S., decided Tuesday by Massachusetts Appeals Court Judges Justices Maureen Walsh, Robert Toone & Gloria Tan. The plaintiff appears to be Julia Prange Wallerce, who had been on the Winthrop Planning Board and the Winthrop Transportation Advisory Committee and had been Assistant Director of Transportation at the Metropolitan Area Planning Council, and the defendant appears to be Todd Sacco, who had run for the Winthrop City Council in 2023:
What began as friendly social media conversations about local politics between two people from Winthrop devolved into a situation in which the plaintiff felt targeted by the defendant's comments in his social media posts, private messages, and text messages. On January 18, 2024, the plaintiff applied for a harassment prevention order (c. 258E order), pursuant to G. L. c. 258E, after her requests that the defendant stop communicating with her went ignored….
To obtain a harassment prevention order, a plaintiff must demonstrate "harassment," which the statute defines in relevant part as "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." In reviewing the issuance of a harassment prevention order, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences," that the defendant committed three or more qualifying acts of harassment aimed at a specific person…. The plaintiff bears the burden of establishing that the three acts were "maliciously intended," defined by the statute as being "characterized by cruelty, hostility, or revenge."
"The definition of 'harassment' in c. 258E was crafted by the Legislature to 'exclude constitutionally protected speech,' … and to limit the categories of constitutionally unprotected speech that may qualify as 'harassment' to two: 'fighting words' and 'true threats.'" True threats have been defined as "words or actions that—taking into account the context in which they arise—cause the victim to fear [physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." …
The plaintiff's testimony at the evidentiary hearing, which the judge credited, included her testimony that in 2017 she and the defendant had "amicable conversations about community issues" on social media and later by text messages, e-mail messages, and telephone. However, in the following year or two, the defendant began sending her countless e-mail and text messages that contained offensive language, insulting and ridiculing her about her positions on bike lanes and transportation issues.
Lawyer's Motion "Does Not Contain a Single Citation Identifying Relevant Legal Authority That Supports Plaintiff's Position"
From Judge Jorge Alonso (N.D. Ill.) yesterday in Doe v. Doe Defendants 1-10; note that plaintiff is represented by a partner at a midsize law firm:
Plaintiff has filed two motions before the Court. A motion 3 to proceed under pseudonym and a motion 4 for expedited discovery. Motion 3 does not contain a single citation identifying relevant legal authority that support's Plaintiff's position. And motion 4 contains just one citation to the language of Federal Rule of Civil Procedure 26(d)(1). Motion 3 and motion 4 are denied without prejudice. If Plaintiff wishes to proceed on these arguments, Plaintiff shall refile these motions by 2/11/26 with proper citations that support's Plaintiff's position.
For a few uncontroversial motions, one can sometimes get away without citations. (That's especially so if the other side has appeared and consents to the motion.) But for motions like this, that's generally not enough, as the judge's order reflects.
Today in Supreme Court History: February 6, 1858
2/6/1858: Justice Mahlon Pitney's birthday.
Open Thread
What’s on your mind?
Fact-Finding At The Grammy's
What is the sound of one Justice clapping?
On Tuesday, I wrote about how the New York Times covers the Supreme Court. Jodi Kantor boasted that "I just want them to know we're watching them." And they mean it. Journalists traveled across the globe to figure out where Justices Thomas and Alito spend their vacations. Indeed, they even interviewed their neighbors! No stone was left unturned, no flag left unfurled.
My post suggested that this sort of scrutiny should be applied to both sides of the spectrum. I wrote:
Speaking of balance, I'd like to know how Justice Jackson reacted to all of the anti-ICE statements during the Grammy's. Remember how closely Justice Alito was scrutinized after the 2010 State of the Union address? An MSNBC reporter talked to Judge Emil Bove after the President's rally in the Poconos. Certainly someone checked in with KBJ on this point, right?
Four days later, what has the mainstream media done? Bupkis. As best as I can tell, we only have unsourced reports. The New York Post reports:
But she should have stayed home rather than laughing and clapping in the audience with a bunch of virtue-signaling luvvies ranting "F–k ICE" every time they got on stage.
Fox News picked up that line in a piece titled Supreme Court
Blackburn demands investigation into Justice Jackson over Grammy appearance applauding anti-ICE rhetoric.
But Senator Blackburn's letter to Chief Justice Roberts doesn't state that KBJ was applauding or clapping or laughing. Rather, the letter focuses on the "ethical questions raised by her attendance at such a highly politicized event." Blackburn calls on Chief Justice Roberts to "conduct a thorough investigation into Justice Jackson's attendance at this event."
I think there are two separate issues here. First, did Jackson make a mistake merely by attending? In other words, should she have known this event would become a partisan rally. (It seems Jackson was already in town for events at Pepperdine in sunny Malibu on the Friday before the Grammy's.) I think any reasonable person could have predicted what would happen when elite musicians gather to celebrate themselves. When Justice Jackson received concert tickets from Beyonce, the Supreme Court PIO actually put out a statement saying "Justice Jackson is 'Crazy in Love' with Beyoncé's music. Who isn't?" Not quite. According to a 2018 poll, Beyonce was the "most politically divisive celebrity," topping both Sean Hannity and Rush Limbaugh. (This figure is measured by the spread in net favorability spread between Republicans and Democrats.) It is impossible for sanctimonious artists to gather without attacking Republicans. Anyone remember the Dixie Chicks?
For a more recent example, look no further than the 2025 Grammy's, which occurred shortly after President Trump's inauguration. The event was replete with partisan statements. Don't take my word for it. Check the Buzzfeed listicle titled, "Here Are All The Times Celebrities Spoke Out About The Trump Administration And Politics During The Grammys."
Let's assume that Justice Jackson was woefully unaware of what sort of partisan event the Grammy's would be. (How, I cannot fathom.) Once she attended, saw all the anti-ICE pins, and realized it was so partisan, she should have excused herself and left the room. (I have been to events before where judges leave the room at particular juncture when the discussion takes a turn for the worse.) But it does not appear that she left.
Judge Emil Bove was slammed for going to a speech by the President, which was derided as just a partisan rally. Would anyone think the Grammy's would be any different--especially in the wake of the situation in Minnesota? Here, I quote from Fix the Court's complaint against Judge Bove:
But last night's event in Pennsylvania — prominent conservative voices are calling it a "rally," so that's what I will call it here — was a far cry from the State of the Union or a state dinner for its abject partisanship. It should have been obvious to Judge Bove, either at the start of the rally or fairly close to it, that this was a highly charged, highly political event that no federal judge should have been within shouting distance of. . . . There are no reports that Judge Bove vacated his seat after hearing any of these injudicious comments. The Code of Conduct for U.S. Judges is fairly clear here. Canon 2 states that a judge "should avoid impropriety and the appearance of impropriety in all activities." Attending a Trump event — and not leaving when it became clear that the speech was, in fact, a partisan rally — violates this canon.
This letter would apply equally to Justice Jackson.
There is a second issue: did Jackson actually laugh and clap, or did she sit stoically? Chief Justice Roberts described the appropriate pose during the State of the Union "pep rally" is sitting like a "potted plant." What is the sound of one Justice clapping? Perhaps during one of the after-parties the Justice discussed the issue? If the press can track down a German Princess that Justice Alito visited, certainly the press can interview anther royal, Queen Latifah, who was photographed with KBJ. If Jackson did show some reaction, then we are beyond the appearance of impropriety--there is an actual evidence of bias. KBJ would have to recuse, at a minimum, from immigration-related cases. Then again, RBG called Donald Trump a "faker" and worse, but never stepped aside from a single case.
What next? There were thousands of people in attendance at the Grammy's. And I'm sure a camera was fixed on her at all times. Certainly someone knows something about how she reacted to the anti-ICE remarks, right? Certainly there is some footage that might answer the question, right? Unsurprisingly, the liberal artists at this event would have no interest in getting KBJ in trouble, so they will not be of help.
How can we find out what happened? Senator Blackburn asks for an investigation:
To that end, in the interest of a fair-minded, impartial, and independent federal judiciary, I urge you to initiate an investigation into Justice Jackson's attendance at this event and if her participation in any way would require recusal from matters that will come before the Court.
The Supreme Court is not subject to the same standard as lower court judges. But let's apply Chief Judge Sutton's test from the Boasberg complaint. Is the mere fact of Jackson's presence enough to warrant further fact-finding to determine the circumstances of her attendance? The Chief Justice could always just ask Jackson whether she thought it appropriate to leave the theater or if she expressed any reaction. The Court could also inquire of CBS whether any footage exists that may shed light on the situation. Or, is this letter so frivolous that no further fact finding is warranted? If only some enterprising journalists were actually watching the Justice at a televised awards show. New York Times, swarm.
Unlike Boasberg's remarks at the judicial conference, where he was surrounded by judges, Jackson's appearance was surrounded by elites who are unlikely to leak anything to The Federalist.
If the Chief Justice does nothing, I suspect Congress will take the matter into its own hands.
What Is The Burden Of Proof In Judicial-Council Factfinding?
The 6th Circuit has followed the clear and convincing evidence standard since at least 1993, but the actual rule is silent on this issue.
I wrote about Chief Judge Sutton's decision dismissing the judicial misconduct complaints (plural) against Judge Boasberg. Judge Sutton applied the clear and convincing evidence standard in the context of whether Judge Boasberg followed Supreme Court precedent in the airplane case.
An allegation that a judge did not follow "prevailing law or the directions of a court of appeals in [a] particular case[]," it is true, may in extreme cases constitute cognizable misconduct. In re Judicial Conduct & Disability, 517 F.3d 558, 562 (U.S. Jud. Conf. 2008). But because "the characterization of such behavior as misconduct is fraught with dangers to judicial independence," the complainant must clear a high bar to maintain such a claim. Id. The complainant "must identify clear and convincing evidence of willfulness," which is to say "clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law." Id. The complaint does not meet this standard.
Sutton cites a 2008 opinion by the Judicial Conference of the United States Committee on Judicial Conduct and Disability, which addressed this issue in the context of a judge disregarding legal standards. (I wrote about this opinion in this post.)
We agree that a judge's pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law. In re Memorandum of Decision of Jud. Conf. Comm. on Jud. Conduct & Disability, 517 F.3d 558, 562 (U.S. Jud. Conf. 2008)
Yet, there seems to be some division of authority about the appropriate standard. In 2014, the Judicial Council of the D.C. Circuit explained that the rule does not provide a particular burden of proof:
Neither the Judicial Conduct and Disability Act, nor the Judicial–Conduct Rules, nor the Code of Conduct expressly indicates what burden of proof a judicial council should apply in its factfinding in a judicial misconduct proceeding. The Judicial–Conduct Rules state that a judicial council may dismiss a complaint because "the facts on which the complaint is based have not been established," Judicial–Conduct Rule 20(b)(1)(A)(iii) (emphasis added), *767 **6 suggesting that the standard must at least be preponderance of the evidence. In the analogous context of attorney disciplinary proceedings, the American Bar Association's Model Rules and most state and federal jurisdictions that have addressed the question require complainants (or disciplinary counsel) to establish misconduct by clear and convincing evidence,4 ALTHOUGH A SIZAble minority require only a preponderance of the evidence.5 None applies a lesser standard.6 This Circuit has never determined what burden of proof applies in judicial misconduct proceedings.7 Nor need we do so here. Our disposition would be the same regardless of whether a preponderance or clear-and-convincing standard applies. In re Charges of Jud. Misconduct, 769 F.3d 762, 766–67 (D.C. Cir. 2014).
What is the right answer? Arthur Hellman, a leading scholar on legal ethics, wrote about this issue in a 2019 article in the Georgetown Journal of Legal Ethics. Hellman says the answer is "not obvious."
Policy arguments can be made on both sides. On the one hand, a finding of misconduct is a serious stain on a judge's reputation.411 One can argue that a judge should not be stigmatized in that way on the basis of a mere preponderance of the evidence. On the other hand, it might also be troubling to see a judicial council saying that even if it is more likely than not that a judge engaged in misconduct, the complaint will be dismissed because the evidence is not clear and convincing
Arthur cites a 1993 decision from the Sixth Circuit Judicial Council by Chief Judge Gill Merritt, which applies the clean and convincing standard, though this case arose in the context of alleged sexual harassment off the bench. This precedent does not match how Sutton used it--whether the judge followed the law.
The petition for review by CASA notes that Sutton's application of the clear and convincing standard has no bearing on Judge Boasberg's alleged misconduct at the Judicial Conference.
As I said, there are some procedural issues that the Sixth Circuit Judicial Council will have to iron out.
Eighth Circuit Judge on State Enforcement of Immigration Law
Some excerpts from Judge David Stras's opinion yesterday dissenting from denial of rehearing en banc in Iowa Migrant Movement for Justice v. Bird (see here for the panel opinion):
Access to legal immigration, which allowed my grandparents to settle here following World War II, has been a lasting gift for my family. The welcome mat we offer to those who come here legally, however, means little if skipping the line results in the same (or even better) treatment. Now, as the federal government tries to enforce the nation's immigration laws, Iowa wants to help. If it can do so without getting in the way, I would let it.
[I.] Let's be clear about what happened here. Two people, plus an organization purporting to speak for two others, set out to defend the federal government from Iowa's alleged overreach. The problem, in their view, was that Iowa made it a crime for aliens to set foot in the state if they had ever been "excluded, deported, or removed from the United States." The remedy was what the federal government had already decided to do once before: make them leave the country. In short, it mandated self-deportation.
The parties have diametrically opposed views of what the law does: Iowa sees it as a helping hand; the plaintiffs as encroaching on federal authority. The federal government, for its part, dropped its own parallel challenge in a companion case. And it has given us assurances that, as far as it is concerned, Iowa's efforts actually "further the purposes of federal immigration law."
Despite these developments, the plaintiffs won a preliminary injunction. Not just any injunction, but one that appears to prohibit enforcement of the law against anyone. Fortunately, the panel sent that part back. But we should have reversed the rest too, because the overbroad injunction was far from the only problem with this case….
Copyright Law Doesn't Bar Release of Covenant Shooter Manifesto
Following the 2023 Covenant School shooting in Nashville, in which the shooter was killed by responding police officers, the shooter's parents inherited the shooter's copyright interest in various writings (including the shooter's manifesto). They then assigned it "to a trust to be held for the benefit of the Covenant Parents' children," and the Covenant Parents argued that this should keep the writings from being released. The trial court agreed, but yesterday's Tennessee Court of Appeals opinion in Brewer v. Metro. Gov't of Nashville (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson) basically rejected the copyright argument for nondisclosure:
The trial court and the Parents … conflate the concept of access for inspection [which wouldn't itself implicate the Copyright Act -EV] with reproduction and display [which might potentially implicate the Act, subject to the fair use defense -EV]. Indeed, the TPRA requires that "[a]ll state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state …"
We interpret the TPRA broadly to promote access to the records, in keeping with the statutory purpose. Considering this statutory purpose, we can construe the TPRA in such a way that does not require Metro to publicly display its file. Nor need Metro distribute the records to the public; rather, Metro need only allow Petitioners access for personal inspection. Although the Act protects the means by which copyrighted material may be obtained, the Act itself does not inure total confidentiality and secrecy.
As another state court confronted with this issue noted, "[o]ne could certainly disclose a record without either reproducing or distributing the same record." Nat'l Council on Tchr. Quality v. Curators of Univ. of Mo. (Mo. Ct. App. 2014); see also Ali v. Phila. City Plan. Comm'n (Pa. Commw. Ct. 2015) ("[N]ot every disclosure of copyrighted material without the owner's consent violates the Copyright Act."). By the same token, Metro may allow access to the records for personal inspection without itself copying, displaying, or publishing the records. This result "allow[s] the public to scrutinize [Metro's] reliance on or consideration of the copyrighted material[,]" thus furthering the purposes of the TPRA.
Tennessee Appeals Court Rejects Argument That Covenant Shooter Manifesto Must Remain Concealed to Avoid Copycats
From Brewer v. Metro. Gov't of Nashville, decided yesterday by the Tennessee Court of Appeals (Judge Kristi Davis, joined by Judges John McClarty and Thomas Frierson):
This case stems from the tragic shooting that occurred at The Covenant School … in Nashville, Tennessee, on March 27, 2023. After killing six victims within the School, including three children, [the shooter] was shot and killed by responding Metro police officers.
This led to requests from various people and organizations under the Tennessee Public Records Act (the "TPRA") for various records, including "the shooter's journals and personal writings." The trial court concluded this information was exempt from disclosure, but the Court of Appeals largely disagreed. The opinion is long (nearly 15,000 words), but here is an excerpt related to the "school safety" argument:
[Under] the "school safety" or "school security" exception[,] … {[i]nformation, records, and plans that are related to school security, the district-wide school safety plans or the building-level school safety plans shall not be open to public inspection.} … The trial court concluded that dissemination of the shooter's original works creates a substantial likelihood of copycat school shootings and that preventing access to such material furthers the greater good of Tennessee schools and schools nationwide. By so concluding, the trial court rejected Petitioners' argument that academic study of a criminal's manifesto lends itself to prevention. Petitioners relied on the affidavit of Dr. Katherine Kuhlman, who opines that academic study of mass shooters' writings is an important aspect of early intervention for potential school shooters.
The trial court adopted the Covenant Intervenors' policy position, which is that "the hateful words of the shooter in this particular case certainly may have an audience in the general public. And as a result, you do have individuals who could take the writings of the shooter and commit violence against the Covenant School or some other school."
Respectfully, this argument is rooted in speculation about potential future events, not facts present in the record before us. This is a policy debate not contemplated by, or anywhere mentioned in, the TPRA. The trial court's interpretation of section 10-7-504(p) is, in essence, a policy exception to the TPRA barring any disclosure of a school shooter's writings and compilations. While the language of section 10-7-504(p) is broad, it is not the blanket policy exception created by the trial court.
Judicial Retirements Are Not Always What They Seem
A judge blamed Trump for his decision to leave the bench, but it also terminated a misconduct inquiry.
Back in November, Judge Mark Wolf announced his retirement from the U.S. District Court for the District of Massachusetts. His decision attracted attention because he was a Reagan appointee and he publicly blamed his decision to retire on Donald Trump. He was not quiet about it. Quite to the contrary, he wrote a piece for The Atlantic and appeared on the PBS Newshour.
NPR now reports there may be more to the story:
Wolf's decision to retire coincided with an inquiry by another federal judge into potential misconduct, according to newly published orders. That inquiry found probable cause to believe an unnamed jurist had engaged in misconduct by creating a hostile workplace for court employees.
In an order dated Nov. 24, 2025, U.S. Appeals Court Judge David Barron wrote he conducted a "limited inquiry" into misconduct allegations, including interviews with the judge in question and the judge's former law clerk. The inquiry ended when the judge retired.
The order did not provide details about the alleged misconduct but stated it could include "treating litigants, attorneys, judicial employees or others in a demonstrably egregious and hostile manner" or creating a hostile workplace for court employees. Judge Barron ultimately concluded that further action was unnecessary because of "intervening events."
A source familiar with the inquiry, who spoke on condition of anonymity to discuss the sensitive internal investigation, said the judge in question is Wolf and his resignation terminated the review of his conduct.
I agree with the suggestion in the NPR story that this episode (and others, like this one in Alaska) highlight the need for more formal oversight and disciplinary procedures within the federal judiciary. One possibility would be an Article III Inspector General, appointed by the Supreme Court, with the authority to investigate these sorts of episodes more independently, as well as to publish information about how often such allegations are made and how they are resolved. Such an office might also help accelerate the rate at which bad apples leave the bench.
Were Congress to create such an office, I would also give it the authority to investigate allegations of judicial assignment manipulation and procedural irregularities and conflicts of interest. I would also like it to compile and publish information about things like reversal rates. I do not particularly trust Congress to provide meaningful oversight of the judiciary, but the judiciary could definitely provide greater oversight of itself.
Today in Supreme Court History: February 5, 1793
2/5/1793: Chisholm v. Georgia argued.
Open Thread
What’s on your mind?
