The Volokh Conspiracy Archive

In December 2017, I wrote in National Review that Republican-appointed judges should consider taking senior status so President Trump could fill those seats. That essay struck a nerve with a lot of judges. Some of them talked to me privately. Judge Leslie Southwick of the Fifth Circuit chose to address it directly in a Notre Dame Law Review article. Here is an excerpt:

The administration itself has apparently encouraged some judges to take senior status. Evidence of that came a few months after Don McGahn resigned as White House Counsel in October 2018;525 when he told the Houston chapter of the Federalist Society that circuit judges should retire in order to create more vacancies.526 Further, a South Texas College of Law professor, Josh Blackman, who is a widely followed commentator, has recommended retirements.527 Professor Blackman wrote in advance of the possible loss of a Republican Senate majority in the 2018 midterms, which did not happen; at least partially because of the risks presented by the 2020 elections, Majority Leader McConnell has personally contacted eligible judges "to sound them out on their plans and assure them that they would have worthy successors."528 A similar report by columnist Fred Barnes in March 2020 was that Senators McConnell, Grassley, and Graham together decided to urge retirements and had themselves talked to many of the eligible judges.529

As to my personal knowledge, I will borrow from the worn-out joke about whether someone believed in infant baptism: "Believe in it? I've seen it." My answer to whether I believe senior-eligible judges are in fact being urged to do the right thing and make room for the kind of exceptional judges being selected now is: Believe in it? I've seen it . . . or, at least, heard it. I just did not find it a sufficiently encouraging idea in my case. It was my impression that the person urging me and the individual who talked to another colleague were prompted from Washington. I did not ask, though.

I've kept that article in mind for the past nine years as Judge Southwick continue to serve in active status. Judge Southwick wrote an entire book about his struggle to get appointed to the Fifth Circuit. He gave a talk at the Houston FedSoc some years ago, and I was struck by someone who was so focused on securing a lifetime sinecure that it seemed to define him. I saw Judge Southwick as a man of principle who would hold his job till he could hold it no longer, and would not step down for alternative considerations. While I usually disagree with Southwick's rulings, I at least gave him credit for sticking to his convictions.

No doubt the White House tried again to nudge Southwick to take senior status. In 2017, he did not find that entreaty "sufficiently encouraging." It seems times have changed.

On Tuesday, September 28, Judge Southwick wrote to President Trump that he plans to take senior status upon the confirmation of his successor. Barely two days later, President Trump announced a nominee to fill the seat. The fix was in.

I am pleased to announce the nomination of Todd Butler to the United States Court of Appeals for the Fifth Circuit! A proud graduate of Mississippi State University and Mississippi College of Law (Graduating summa cum laude from both!), Todd is currently a Partner at Phelps Dunbar in Jackson, Mississippi. He has argued numerous times before the Fifth Circuit, previously clerked for highly respected Judge, Leslie Southwick, and has been a strong defender of Law Enforcement throughout his career. Todd has the unwavering support of Senators Roger Wicker and Cindy Hyde-Smith. The wonderful people of the Great State of Mississippi (one of my favorites!), and the rest of the Fifth Circuit, can count on Todd to protect the Constitution and the Rule of Law. Congratulations Todd! President DONALD J. TRUMP

As far as Trump tweets go, this one is exceptionally lukewarm. Trump can't even point to a single case that Buttler handled. Nothing about him being tough on crime or fighting for the Second Amendment or religious liberty. There's nothing to brag about! By the way, Trump calls Judge Southwick "highly respected." Did anyone show Trump Southwick's opinion in the Alien Enemies Act case? Or any of the other en banc votes involving Trump 1.0 and Trump 2.0?

I have never heard of Todd Buttler. I spoke at the Jackson FedSoc chapter, and as best as I can recall, he did not attend. Buttler's only claim to fame, which Trump does not mention, was representing the government in Olivier v. City of Brandon. There, his client arrested a street preacher for talking to people about the gospel. Butler argued opposite Allyson Ho. He lost 9-0, with a Kagan majority opinion. I understand lawyers have to take clients, but he could have easily handed this case off to someone else. There are dozens of regular SCOTUS practitioners who would have gladly taken this case, and maybe gotten more than zero votes. But Buttler kept it himself.

It is painfully obvious that Judge Southwick took senior status with the understanding that Todd Butler, his former law clerk, would take his seat. That offer was "sufficiently encouraging." This is not a case where Southwick cited some pressing health concern which required his immediate resignation. He waited until after the Fifth Circuit heard several huge en banc cases last week, and will hang on till the confirmation of his successor, to make sure his preferred candidate gets through. Of course, he can always withdraw like Judge Wynn.

Moreover, Southwick timed his announcement for shortly before the midterms. Should the Republicans lose the Senate, this might be the last chance for Southwick to get his preferred replacement picked. Moreover, had Southwick announced he would take senior status any time over the past two years, opposition to Butler may have arisen on the right, which could have scuttled the nomination. (Remember in 2019, President Trump nominated another Mississippi judge for the Fifth Circuit, Halil Suleyman "Sul" Ozerden, but that nomination failed after Republicans opposed him. Southwick didn't want his clerk to get Sullied) The pick was timed, just right, to ensure his preferred candidate gets through, and before a potential flip in the Senate. Like I said, the fix was in.

Todd Butler is not Scott Stewart, the Mississippi Solicitor General who was successful in overruling Roe v. Wade. But we have to remember that all politics is local. For whatever reason, Stewart was not favored by the state senators. Moreover, Senator John Cornyn had no interested in fighting to claim the seat for Texas, where it would actually do some good. As Mike Fragoso noted back in May, leaving now ensures Ken Paxton won't take the seat for Texas. The fix was in.

I'm sure the White House lawyers will say that it is better to replace Southwick with Butler than to roll the dice with whoever President Newsom picks. That may be prove to be right, but we have nothing to go on. On the en banc court, Southwick's vote is virtually indistinguishable from a Biden nominee. We'll see how Butler will vote. I've asked a few people in the know, and no one knows his judicial philosophy.

Butler is not alone with a family affair. Trump's announcement of another district court seat in North Carolina noted that Phillip Aubert clerked for Terrency Boyle. Trump nominated the children of Eighth Circuit judges Benton and Shepherd for district courts in Missouri and Arkansas, respectively. President Biden nominated Judge Julia Gibbons's law clerk, Kevin Ritz for the Sixth Circuit. Biden also nominated Judge Stranch's former law clerk, but she did not make it through. Of course, Justice Breyer was replaced by his former clerk KBJ, and Justice Kennedy was replaced by Justice Kavanaugh.

Frankly, I find this entire idea of hereditary judicial sinecures very unsavory. From the President's perspective, politics make sense. But from the judges' perspective, nepotism does not.

In a recent post, prominent left-liberal economist Justin Wolfers (University of Michigan) concedes that his "libertarian friends" were right about the dangers of government power:

My libertarian-leaning friends have consistently argued against a powerful federal government in favor of individual freedoms. I had — somewhat naively — never taken their views seriously enough. My friends who worked in government were good people, I reasoned, and surely that's true more broadly.

But I've had to admit to my libertarian friends that they were right. Concentration of power can be abused. We're seeing it happen right now.

Last year, I wrote about similar admissions by two other prominent left-of-center figures: famed legal scholar Cass Sunstein and economic policy commentator Noah Smith. I commend Wolfers and the others for being willing to admit error and learn from it. All too many intellectuals and political commentators never do. I am a longtime fan of Wolfers' writings, and now am even more of a fan than before.

It is often the case that people become more aware of the dangers of government power when that authority is wielded by their political opponents. Even some libertarians tend to ignore or overlook abuses of power when perpetrated by the side of the political spectrum they identify with. The Trump era has been a particularly significant wake-up call in that respect for some on the left, because he has engaged in so many abuses, especially in his second term.

But it is important to recognize that the problems here are systematic, not confined to the misdeeds of any one politician, even one so egregious as Trump. As James Madison famously warned, "[e]nlightened statesmen will not always be at the helm." Distinctly unenlightened demagogues like Trump all too often reach high political office. That's in large part because voters often do a poor job of choosing leaders, thanks to widespread political ignorance and bias. Trump's return to power in 2024 showed that these problems are even more severe than I had previously thought.

Wolfers adds that his newfound appreciation for libertarian concerns have made him "more small-c conservative":

The old conservative idea was that we have rules of the game that have served us well for generations. We should be slow to change them. Our children should be handed the same set of opportunities we had, if not better ones.

I only partially agree. Where established institutions constrain government power and protect liberty, we should indeed conserve them. But, in too many ways, those safeguards have been eroded over the last 100 years or more, thereby creating the very dangers of abusive government power that Wolfers rightly decries. To fix that, we in some instances need to restructure the current "rules of the game," and impose much tighter constraints. For example, we should roll back federal power to impose immigration restrictions (which was not part of the original Constitution), and have much stronger enforcement of constitutional constraints on delegation of legislative power to the executive. The growth of delegation and federal immigration powers is at the heart of the many of the worst abuses of the Trump Administration, and creates severe problems even under more conventional administrations.

Similarly, the growth and institutionalization of government control over land use is at the heart of the housing crisis that besets many parts of the US. We should roll that back too, by enforcing federal and state constitutional protections for property rights.

Elsewhere, I have explained how these issues and others like them can be the basis of a useful alliance between libertarians and "abundance liberals" (see also my exchange with Matt Yglesias on that subject). I suspect Wolfers may be sympathetic to the abundance liberal movement.

We're not likely to agree on issue. But there is enough consensus to enable some useful cooperation between these groups. At the very least, we have common enemies in the form of two prominent political movements that very much don't appreciate the need for significant constraints on government power: MAGA nationalists on the right, and "democratic socialists" on the left.

On Monday the Supreme Court will hear oral argument in Suncor Energy v. Boulder County. My amicus brief in Suncor has received a decent amount of attention--but not all of it favorable. Perhaps because I have been critical of much climate regulation and litigation, some were surprised that I believe Boulder County has the better of the preemption arguments here.

Michael Buschbacher, Managing Partner of Boyden Gray PLLC, is among those who think I have erred. Indeed, he thinks that my work actually supports the other side.

Following is a guest-post from Buschbacher making his case. I am unconvinced, and will reply in a follow-up post. For now, here is what Buschbacher has to say.

* * *

Prof. Adler Filed His Suncor Amicus Brief in Support of the Wrong Party

Michael Buschbacher

The occasion for this guest post is Prof. Adler's recent amicus brief submitted to the U.S. Supreme Court in Suncor v. Boulder County, set to be argued next month.[1] Suncor is probably the most important constitutional structure case of this decade and may also be the most economically significant in Supreme Court history. By some estimates, the litigation campaign of which Suncor is part asserts some $28 trillion in total putative damages against a select group of energy companies—nearly an entire year of American GDP.

The central question in Suncor is whether states and municipalities can apply their own law to regulate the greenhouse-gas emissions of fuel producers and users, not just for emissions within their own borders, but also for emissions anywhere in the world. If that sounds a bit out there, that's because it is. So far, even some of the hand-picked state courts that have heard these claims have been slow to bite. For example, the Maryland Supreme Court earlier this year rejected similar arguments by the City of Baltimore, concluding that its claims about climate change were all preempted by federal law. Even the pro-climate litigation dissents in that case agreed that Maryland state law could not reach worldwide emissions directly. Several other state courts have reached similar conclusions.

Prof. Adler's brief falls to the "left" of these decisions. But while his brief is offered in support of Boulder County, it also stops well short of the plaintiffs' position that one state or municipality can apply its own law to the rest of the world. Although Prof. Adler opens with broad strokes—"Nothing in federal law, let alone the Constitution, preempts state-law claims seeking relief from injuries allegedly caused or exacerbated by petitioners' conduct," Adler Br. at 2—he later adds a very important caveat: perhaps only the law of the source state (that is, the jurisdiction where the emissions took place) can apply, and everything else is precluded. See id. at 21, 25. "No home cooking," as he's put it elsewhere.

From yesterday's N.Y. appellate division decision in People v. Herrnkind:

On November 5, 2001, the defendant and her codefendant, her husband, abused and killed their three-year-old daughter. In 2004, the defendant was convicted of manslaughter in the first degree and sentenced to a determinate term of imprisonment of 25 years, to be followed by 5 years of postrelease supervision….

In 2022, the defendant moved … to vacate her sentence and to be resentenced under the Domestic Violence Survivors Justice Act (DVSJA) in accordance with Penal Law § 60.12, to seal the record of the motion, and to make the caption anonymous…. [The trial court] denied the motion without a hearing, determining, inter alia, that the defendant failed to submit evidence within the definition of the DVSJA corroborating that she was subject to abuse at the time of the offense or that the abuse was substantial. The defendant appeals.

It is undisputed that during the course of this appeal, the defendant was released from custody and thereafter discharged from parole. Accordingly, her contentions regarding her entitlement to resentencing under the DVSJA have been rendered academic, as she has already served the challenged sentence.

Civil Rights Law § 50-b provides that the "identity of any victim of a sex offense" shall be confidential…. Here, the defendant failed to establish that she was the victim of a sex offense as defined by Civil Rights Law § 50-b.

Yesterday, in Global Nurse Force v. Trump, the US District Court for the Northern District of California issued a decision blocking the Trump Administration's $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers with various specialized skills). Federal district Judge Haywood Gilliam, Jr. ruled that the imposition of the fee violated the Administrative Procedure Act (APA) because, among other things, the administration failed to go through "notice and comment" rule-making as required by the Act.

This is actually the second district court ruling against the $100,000 fee. The first one, issued in June by a federal district court in Massachusetts, relied in part on different grounds. It held that the imposition of the fee is a usurpation of Congress's power to tax, and that the relevant federal statutes do not delegate that power. I agree with the earlier ruling, which I wrote about in detail here. The Massachusetts decision also held that imposition of the fee violates the APA.

Because the earlier ruling already blocks imposition of the $100,000 fee and the US Court of Appeals for the First Circuit refused to stay the , the new decision does not have any immediate impact. But it is nonetheless significant that a second federal court has ruled against the policy, and on a different ground. That suggests appellate courts (and, ultimately, perhaps, the Supreme Court) might rule the same way. As is sometimes the case, different arguments might appeal to different judges. From the perspective of plaintiffs challenging the fee, it helps that they have multiple potential pathways to victory.

I will not attempt analyze yesterday's decision in detail because I am not an APA expert. So I will conclude by noting that I hope appellate courts will ultimately uphold these district court rulings. The Cato Institute, Prof. Michael McConnell and I plan to file an amicus brief supporting affirmance of the Massachusetts decision, in the US Court of Appeals for the First Circuit.

I previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.

My 2013 book, Unprecedented, offered this vignette about how Chief Justice Roberts fled the United States to a safe refuge after the decided NFIB v. Sebelius.

The day after the Court's term concluded, he left the country to teach at a summer program for law students in Malta, organized in part by the South Texas College of Law, where I teach. Before he departed, Roberts joked that he was retreating to an "impregnable island fortress." Students found Roberts was in very good spirits, no doubt enjoying the respite from the pressure.

I've often thought about this remark. Roberts has been under siege from the left and the right for the last quarter century. (I am responsible for much of that angst.) Whether or not this criticism affects Roberts's decisions, he does not respond in kind. He has given very few interviews, and when he speaks up, it is to defend the judiciary as a whole, and not him in particular. My one interaction with the Chief was pleasant enough.

I don't know that Roberts has been back to Malta, but his regular "impregnable island fortress" is Hupper Island, a small island about 90 minutes from Portland, Maine. I hadn't given much thought of this spot since Roberts had a seizure at his summer home in 2007. Since he joined the Court, Roberts and his family would seek solace from the swamp at Hupper Island after the Court dismisses for the term. But of late, despite the Chief's best efforts at steering a middle course, the people of Maine have been intent on making Roberts's life miserable. They protest outside his home on kayaks and accost him in public. Even his friends are shamed from attending events with the Roberts family.

I was not aware of these changes. What happens of Hupper Island stays on Hupper Island. Until the New York Times got to it. Jodi Kantor wrote a lengthy expose about how the neighbors feel. She interviews a few of Roberts's friends and far more of his foes. We learn nothing about the Court, or Roberts's decision. Unlike the silly story about Martha Ann Alito's flags, there is no allegation that Roberts did anything wrong. The sole effect, and indeed purpose, of this article, is to show how Roberts is alienated in his family summer home. We learn nothing about Roberts, but learn lots about the awful liberals of Hupper Island. I fear this piece may make it impossible for Roberts to return in the future.

To make things even worse, Kantor outs Roberts's daughter as a liberal. She has done nothing to put herself in the public eye. She had the audacity to defend her father, whom she loves. The Daily Beast blares, "Conservative Justice's Daughter Outs Herself as Secret Liberal." No. Not even close. Becca Shaw Glaser--a columnist who urged neighbors to give the Chief the middle finger--outed Roberts's daughter.

Only the Old Gray Lady could me me sympathetic to the Chief. Even John Glover deserves a refuge from scoundrels like me.

From Judge Anne Traum (D. Nev.) Monday in Villanueva v. Las Vegas Metro. Police Dep't (the underlying lawsuit alleges a jail corrections officer abused plaintiff when plaintiff was arrested):

Plaintiff Jose Villanueva sued Defendants Francis Soriano and the Las Vegas Metropolitan Police Department ("LVMPD"), for violations of state and federal law that occurred while he was detained at Clark County Detention Center ("CCDC")….

Plaintiff's expert witness, Tom Melton, testified in his October 1, 2025 deposition that he relied upon ChatGPT, an artificial intelligence program, to assist him with researching and drafting his expert report…. Defendants filed a motion to compel the production of Plaintiff's expert Tom Melton's ChatGPT history log with respect to his preparation of his expert report….

A party or its "representative" may invoke the trial preparation privilege to shield against the discovery of "documents and tangible things that are prepared in anticipation of litigation or for trial." Fed. R. Civ. P. 26(b)(3)(A). Subject to Rule 26(b)(4) and upon a threshold showing of discoverability, "substantial need," and "undue hardship," trial preparation documents may be subject to discovery. However, any court-ordered production of trial preparation materials must be structured to "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative."

Expert witnesses may also invoke discovery privileges related to their draft reports. In their expert report, expert witnesses are required to include "the facts or data considered by the witness in forming" their opinion. Rule 26(a)(2)(B)(ii) was amended in 2010 to limit disclosures to "facts or data considered," instead of previous language on "data or other information" that was interpreted by many courts as requiring the disclosure of "all attorney-expert communications and draft reports." The rules distinguish between the required disclosure of facts or data considered, and an expert's drafts of their report, which are protected from discovery….

The court held that parts of the history log had to be disclosed:

10/1/1924: Chief Justice Rehnquist's birthday.

Greg Stohr of Bloomberg reports on an interview with Justice Alito explaining the justice's last-minute decision to recuse in Suncor Energy v. Boulder County, the major climate change preemption case the Supreme Court will hear on Monday. According to the story, Justice Alito said it was a "difficult judgment call."

From Stohr's report:

Although Alito took part when the court agreed to hear the case in February, he said Wednesday he decided to back out after looking more deeply at the case in the run-up to the argument. A coalition of watchdog and environmental groups had called on Alito to disqualify himself.

"Taking into account the particular arguments that were made on both sides here, I thought that recusal was the prudent step," Alito said.

Federal law requires judges to step aside if they own stock in one of the parties to a legal fight but doesn't impose a similar restriction for shares in companies that could be affected.

"Under that rule, I was not required to be recused, and I asked our legal office, as is my custom on any case where there's an arguable recusal issue, to give me their opinion on whether I was required to recuse, and they said, 'No.'"

The story also indicates why Justice Alito holds on to individual energy stocks, despite the recusal risk.

Alito said his wife, Martha-Ann Alito, inherited the energy shares. "She wants to hold on to individual stock, and so we have stock holdings in some companies in the oil and gas field," he said.

From yesterday's Blackman v. Substack, Inc., by California Court of Appeal Justices Tracie Brown and Danny Chou and Marin County Judge Andrew Sweet:

"'[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.'" (The Florida Star v. B.J.F. (1989).) …

Penal Code sections 851.91 and 851.92 provide for the sealing of arrest records in certain situations when the arrest did not result in a conviction, and the latter statute prohibits dissemination of sealed documents. Plaintiff Maury Blackman's 2021 arrest was sealed pursuant to these statutes, but the San Francisco Police Department (SFPD) publicly released the investigative police report for the arrest to a third party without restriction, and an anonymous source subsequently sent that report to defendant Jack Poulson. Poulson wrote about Blackman's arrest online, and Blackman sued Poulson and the entities that provided online platforms for Poulson's postings.

The Court of Appeal held that Poulson's posts were constitutionally protected:

Judge Kathryn Mizelle of the Middle District of Florida issued an opinion finding that the "set aside" remedy under the APA is (likely) unconstitutional. Here is an excerpt from the opinion:

Even if Congress were to enact a law clearly empowering Article III courts to vacate agency rules or regulations and automatically cause their erasure from the Code of Federal Regulations, vacatur would likely still be inconsistent with the limited nature of the judicial power and the non-delegability of core legislative power to the judiciary. As a result, I doubt any amount of tradition, practice, or lower-court liquidation can correct the constitutional infirmities of vacatur as currently understood. Because I am not aware of any court to have addressed the constitutional dimensions of vacatur as opposed to its statutory basis, and I have only gestured at them in the past, see K. Mizelle, To Vacate or Not to Vacate, at 19–20, I explain my doubts in full. First, I address why vacatur, if considered an equitable remedy, likely transgresses Article III's grant of judicial power because it has no Founding-era analogue and does not comport with traditional principles of equity. Second, I explain why vacatur, if considered a legal remedy, presents serious separation-of-powers problems. Third, I address why vacatur, when analogized to appellate review, still fails to cure those significant separation-of-powers issues. Finally, I conclude that, consistent with the Constitution, "set aside" in Section 706 is best read as a rule of decision when applied to agency rules.

This is an issue that does not neatly divide the Court along right-left lines. Chief Justice Roberts and Justice Kavanaugh, both alumni of the D.C. Circuit, want nothing to do with this argument. Justice Gorsuch, who never met a regulation he liked, wants to eliminate vacatur. Justice Barrett tabled the issue in CASA, but I suspect she leans with Roberts and Kavanaugh. This opinion will go up on appeal very soon.

In 2025, after twenty-five years at Case Western Reserve University, I moved to William & Mary. Among other things, this meant moving from a private institution to public one.

One consequence of moving to a state school has been greater clarity on what speech and expression is covered on campus. The First Amendment provides a firm constitutional floor on the level of speech protection state universities must provide. That is not so at private universities, and as I discovered at CWRU, even express university policies purporting to offer such protection can be gutted by an administration that does not care about free expression.

A second consequence of moving to a state school is that my school e-mail and files are potentially subject to freedom-of-information (FOI) requests under state open records laws. And I have been the subject of two such requests since my move to Virginia.

Both of the FOI requests submitted to the university had the same focus: communications I may have had with environmental organizations and others involved in climate litigation, presumably in response to the fact that I have have been critical of efforts to derail or preempt lawsuits against fossil fuel companies filed under states law, such asin Suncor Energy v. Boulder County. In neither case, however, are the requesters likely to find anything worthwhile.

The first request asked for correspondence I may have had with the Environmental Law Institute and individuals related to ELI's Climate Judiciary Project. Presumably this request was prompted by ELI having listed me as a reviewer for the project. Several years ago I was asked if I would review some of the CJP materials, and I reviewed one draft chapter in detail and provided some general feedback on the project. I do not believe many of my recommendations were accepted and, in any event, all of this occurred before I moved to William & Mary, so none of it would be captured by an FOI request. (And, for what it's worth, my view of the controversy over the CJP is much the same as my view of the controversy some years back when environmental groups complained about "junkets for judges").

The second request, which came in more recently, is much broader, seeking correspondence with a wide range of folks involved in climate litigation, including the Sabin Center, and various environmental groups and foundations. I suppose the requesters are hoping to find evidence that I coordinated with the plaintiffs' attorneys or that I received funding for my work in this area. Again, there is really not much to find--and this would be true even if the request covered the years before I arrived at William & Mary.

If the FOI requesters had asked, I would have happily explained the origins of my work in this area, including my decision to file an amicus brief in Suncor. The intersection of federalism and environmental law has been a focus of my work for over twenty years. I have also done significant work on how right-leaning folks should think about climate change, including these articles and my Climate Liberalism book. Indeed, my work is cited in briefs on both sides in Suncor. Of course, most of this work (and the evolution of my thinking about this area) long predates my move to a government institution subject to FOI laws.

My specific work on whether state and local government climate suits are preempted began with my paper, "Displacement and Preemption of Climate Nuisance Claims." As it happens, I did receive financial support for this paper, but not from any of the sources flagged in the FOI request. Rather, this paper was prepared for a research roundtable sponsored by the Law & Economics Center at George Mason University's Antonin Scalia Law School, at which several authors presented papers related to public nuisance litigation of various sorts. Other than that, I have not received meaningful support for my work in this space (but would gladly accept some).

As for my Suncor brief, the FOI requesters may be disappointed to learn that it was not the result of some secret machinations by the plaintiffs' lawyers or progressive foundations, and it was not funded by any such source. Given my work in this area, I had long planned to submit a brief representing my views should one of these cases reach the Supreme Court. While I have no idea whether my brief will be influential, I would like to think it could help the Court resolve this case in a way that does not disrupt the Court's existing federalism jurisprudence or needlessly constrain the state role in environmental protection.

I would have readily explained all this had the FOI requesters asked. It would have been a quick call, and cheaper than an FOI request.

From Gordon Jewish Community Center v. Goyim Defense League, decided Wednesday by Judge Aleta Trauger (M.D. Tenn.):

The following factual allegations are taken from the Complaint and are accepted as true at the pleading stage. The Gordon Jewish Community Center ("GJCC") is a registered Tennessee nonprofit corporation and "cultural institution that has served as a lynchpin of the Jewish community of Nashville for more than 120 years." GJCC operates a community center on its privately-owned campus in Nashville where it offers a suite of youth, fitness, and senior programming and services.

The Goyim Defense League ("GDL") is alleged to be a "hate-for-profit enterprise" that exploits antisemitism and racism—in combination with harassment, intimidation, provocation, and violence—for monetary gain. GDL is a membership-based network that limits membership to those who share its mission for "declaring war on," "exterminating," and "subjecting Jews and people of color to harassment, intimidation[,] and violence for the purpose of creating 'white nations[.]'" To advance this mission, GDL sponsors hate-based roadshows styled as "Intimidation Tours." {Jon Minadeo II also refers to these tours as "Name the Nose Tours," a derogatory reference to an antisemitic trope regarding the noses of Jewish people that was prominent during Adolf Hitler's Nazi regime.} During Intimidation Tours, GDL's members and associates descend on towns with large Jewish and Black communities to harass, intimidate, threaten, and assault them.

GDL commercializes its hatred by operating an online video and streaming platform—Goyim TV—where it publishes GDL-created and branded video footage of its members and followers' acts of harassment, intimidation, and violence. GDL exploits this content to solicit donations from its members and followers who watch footage of these encounters and for the "opportunity to get recognized by GDL leaders and other white supremacists during livestreams." GDL also operates an online store—Goyim Shop—where it sells GDL-branded products promoting the group's racist and antisemitic mission. The merchandise marketed and sold by GDL includes Hitler masks, "swastika soap," and clothing with slogans such as "Gas the Jews With Us" and "Voting Will Not Remove Them."

From Diemert v. City of Seattle, decided by Chief Judge Mary Murguia, joined by Judges William A. Fletcher and Lucy H. Koh:

During his employment, Diemert participated in the City's Race and Social Justice Initiative (the "RSJI"). The RSJI aims to undo institutionalized racism in the workplace by, among other things, requiring employees to attend trainings on racial justice and facilitating racially aligned affinity groups.

Diemert brought various claims, most of which the court rejected; but the court allowed a hostile environment claim to go forward based on the following allegations:

Diemert points to the following as evidence of an objectively hostile work environment: (1) in 2015, Diemert was discouraged from applying for a supervisory role, a person of color was hired for the position, and Diemert was required to perform the responsibilities of the position without receiving the commensurate title or pay; (2) in 2015, [a manager in Diemert's department] asked Diemert, "[W]hat could you possibly offer our department …, being a straight white male?"; (3) in 2016, manager Gloria Hatcher-Mays told Diemert "that it was 'impossible' to be racist toward 'white people'"; (4) in 2017, supervisor Tina Inay encouraged Diemert to step down from his lead role in the department in part to allow a person of color to take his position; (5) in 2017, a coworker called Diemert a "racist" and told him "that 'white people' are to be blamed for 'all atrocities' and that the United States was built upon a system of 'white supremacy'"; (6) in 2019, Diemert overheard RSJI trainers say that "white people are cannibals," that "racism is in white people's DNA," and that "white people are like the devil"; (7) between 2019 and 2020, supervisor Shamsu Said called Diemert a "colonist," "physically accosted" Diemert, accused Diemert of having "white privilege," and informed Diemert that he was "to blame for all injustices in the United States"; (8) in 2020, coworkers told Diemert that he "did not have a right to speak about black oppression" and accused him of using his "white privilege" to discredit their lived experiences; (9) in 2021, a new coworker stated that his "[s]elf and personal care" included "being around Black and brown folks"; and (10) also in 2021, Diemert was criticized by coworkers after Diemert defended critical race theory bans in connection with a discussion of the Tulsa Race Massacre.

And here's the bulk of the court's analysis of this claim (which strikes me as more precedentially significant than the court's analysis of the other, rejected, claims):

From Magistrate Judge Reid Neureiter last Wednesday in Kazazian v. Wilson Elser LLP (D. Colo.) (plaintiff appears to be the same plaintiff who was denied pseudonymity in Roe v. Colorado Judiciary Department):

Lawsuits are public. Allegations found in publicly filed lawsuits are generally immune from claims of defamation. But, in exchange for being able to launch public allegations of malpractice or breach of duty against Defendants without threat of a defamation claim in response, Plaintiff necessarily must accept that there will likely be public counter-allegations in return that may reveal her personal information. She will have to accept this as part of the cost of bringing a lawsuit.

And an excerpt from the broader analysis:

{Plaintiff has filed a lawsuit against her disciplinary proceeding attorneys, claiming legal malpractice and breaches of fiduciary duty. She also has leveled charges, essentially of professional negligence, against the neuropsychologist retained to provide an expert report.}

Plaintiff alleges that diversity jurisdiction exists because she has been domiciled in Wyoming since 2024. Defendants' first motion to dismiss questioned whether Plaintiff is actually domiciled in Wyoming. If Plaintiff is domiciled in Colorado instead of Wyoming, it would defeat any asserted federal diversity jurisdiction. Defendants' original motion to dismiss referenced and attached the results of significant investigative work, including motor vehicle records, showing that:

9/30/1857: Justice Benjamin Robbins Curtis resigns from the Supreme Court after Dred Scott v. Sandford (1857).

The Volokh Conspiracy

When Judges Pick Their Law Clerks As Replacements

Justin Wolfers Recognizes His "Libertarian Friends Were Right" About Government Power

Buschbacher: Did Prof. Adler File His Amicus Brief for the Wrong Side in Suncor?

Woman Who Served ~20 Years for Killing 3-Year-Old Daughter Can't Get Conviction Sealed and Anonymized

Second Federal Court Rules Against Trump's $100,000 H-1B Visa Fee

Somehow the N.Y. Times Made Me Sympathetic To Chief Justice Roberts

Which Parts of an Expert's ChatGPT History Related to Preparing Expert Report Must Be Disclosed?

Today in Supreme Court History: October 1, 1924

Open Thread

Justice Alito Says Recusal in Suncor Energy v. Boulder County a "Difficult Judgment Call"

Journalist's Publishing Information About Sealed Arrest Protected by First Amendment

District Court Declares Vacatur (Likely) Unconstitutional

On FOI Requests and Other Benefits of Working at a Public University

Jewish Community Center's Lawsuit Against "Goyim Defense League" Can Go Forward

Anti-White Speech Stemming from Seattle "Race and Social Justice Initiative" Training May Have Been Legally Actionable Workplace Harassment

No Sealing of Property Information in Motion Challenging Diversity Jurisdiction

Today in Supreme Court History: September 30, 1857

Open Thread

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

For America's 250th, Get 2 Years of Reason for $17.76