3/20/1854: The Republican Party is founded. President Abraham Lincoln would be elected President on the Republican ticket six years later on November 6, 1860.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
What’s on your mind?
For Staten Island, The Interim Docket Is The Final Docket
After the Supreme Court grants an emergency stay, the plaintiffs dismiss the case with prejudice.
Earlier this month, the Supreme Court granted an emergency stay in the Staten Island redistricting case, Malliotakis v. Kosinski. The per curiam opinion offered no reasoning, but simply stated that the lower court's ruling was stayed "disposition of a petition for a writ of certiorari in this Court, if such a writ is timely sought." But everyone knew that no such petition would ever be filed. As soon as the Court granted the stay, the case was effectively over. There was no way to litigate this case further before the midterm election.
On remand, the parties stipulated that the case would be dismissed with prejudice, each side paying their own fees. I suspect the plaintiffs realized that further litigation would be futile, and would just generate costs, so they called it quits.
I know that Justice Kavanaugh is partial to using the term "interim orders docket." But there was nothing interim here. The Supreme Court's stay was final.
Justice Sotomayor, in dissent, contended that the New York courts could settle this matter quickly:
In short, there is every reason to think that the New York courts will fully, swiftly, and prudently resolve this case before the primary election. Basic federalism principles, which have bound federal courts since the founding, require giving the New York courts a fair opportunity to do so. The majority, however, denies them that chance.
Justice Alito responded that the dissent "demands that we wait until the completion of a series of events that would likely run out the clock before we could review the order." Yet, by issuing the stay, the Court ran out the clock for the entire case. As a result, the lower court will never have a shot to review it.
Why should the lower courts be allowed to use a shadow docket but not the Supreme Court?
My sincere thanks to the Supreme Court for saving my home town of Staten Island.
In Memoriam: John J. Park, Jr.
I am deeply saddened by the loss of my friend and colleague, Jack Park. I pass along this remembrance from the Federalist Society.
The Federalist Society joins the family, friends, and professional colleagues of John J. "Jack" Park, Jr., in mourning his passing on March 16, 2026. Jack was a longtime friend of the Federalist Society. He will be greatly missed.
The Federalist Society joins the family, friends, and professional colleagues of John J. "Jack" Park, Jr., in mourning his passing on March 16, 2026. Jack was a longtime friend of the Federalist Society. He will be greatly missed.We will miss you, Jack.
"University of Regina Prof '… Was Not a Pretendian,' Says Judge" in Defamation Case Brought by the Professor
An interesting story from the Canadian Broadcasting Corporation (Candace Maracle); a brief excerpt (though the whole story is worth reading):
A Saskatchewan judge has awarded an academic $70,000 in damages, ruling she was defamed by statements that she was pretending to be Indigenous to further her career….
Canceling Cesar Chavez And More
Cesar Chavez is not a person I knew a lot about. I am generally familiar with his leadership of migrant farm workers (I teach State v. Shack) and know that "Si se puede" was the progenitor of Barack Obama's "Yes We Can" mantra. But beyond those high-level bits, I couldn't tell you much about Chavez. Yet in certain circles Chavez was elevated to the level of Martin Luther King. Indeed, my daughter has a box set of biographies of famous Americans, which includes people like Washington, Jefferson, Lincoln, MLK, and Chavez. I questioned the inclusion of Chavez, but realized that he represented an important demographic, even if his contributions to America were not even in the same ballpark as great American presidents.
This background helps explain my response to the news about Cesar Chavez. The allegations against him are awful. Worse still, people who knew about these allegations stayed silent to avoid harming the broader migrant farm worker movement. As is all too common, people in positions of power can silence those they hurt, especially when there is a "greater good." And lurking in the background is the "machismo" culture that still prevails in society. Chavez's bodyguards almost certainly knew what happened. I suspect there will be more victims who come forward now that the dam has broken. The New York Times's article has a box asking for tips on other potential abuse.
The response to the allegations has been swift: summary cancelation. California was to celebrate Chesar Chavez's birthday as a holiday on March 31. It was canceled. The City of Los Angeles will rename the holiday "Farm Workers Day" and untether it from Chavez's birthday. (I generally agree with moving holidays from a fixed day to a floating Monday.) Texas apparently celebrated Chesar Chavez Day (I had no idea). It too has been canceled. At Fresno State University, a statue of Chavez has been covered. (Will the Chavez statue get the Roger Taney treatment?) Academic programs, schools, and streets named after Chavez will likely be renamed.
It is stunning how quickly a revered figure can be wiped from the face of the earth. Cancellation has primarily been employed for people on the political right, but liberals, when motivated, can cancel their own.
How should society evaluate important figures based on their private lives? One approach is to judge a person based not on the standards of the present day but based on the standards of their time. It seems the allegations against Chavez occurred from 1960s through the 1980s. And during that time, rape--including statutory rape--was illegal. So there is no temporal relativism at play.
How should we assess the personal actions of important historical figures that were legal, but not immoral? Here, I am thinking of the namesake of another holiday: MLK. It is well established that Martin Luther King, Jr. engaged in rampant adultery, having relations with dozens of women, and fathered an illegitimate child. But there are far more serious allegations that are not as widely known. An FBI recording reveals that King "looked on, laughed and offered advice" while a friend who was also a Baptist minister raped a woman described as one of his "parishioners." During an orgy, one woman did not want to perform an "unnatural act," so King said performing such an act would "help your soul." These events were only captured because the FBI was secretly recording King. (This alleged orgy occurred at the Willard Hotel, a few blocks from the White House.) It does not seem that any of the women involved in these scandals ever went public.
How many people victimized by King, like Chavez's victims, stayed silent so as not to harm the civil rights movement? If King apparently offered advice on how to commit a rape, did he ever engage in such action himself? Were all of the women at these orgies providing full consent? If Chavez thought he could act with impunity, perhaps King did as well.
The predictable response would be that such charges are racialized and an attempt to diminish a leader's great work. Even if that response is accurate, the allegations still need to be assessed on their own merit. And I don't think there was ever a full "reckoning" for King, even during the height of the #MeToo era. All of these allegations are well known, but there has been no effort to cancel King.
Let's say, hypothetically speaking, it comes out that MLK did have sex with women without their consent. Would people drop MLK day as swiftly as they dropped Cesar Chavez day? Would people stop listening to the "I have a dream speech"? What would the fallout be? Or is it only the fact that Chavez engaged in statutory rape that warrants his cancellation? Would his rape of Dolores Huerta have been enough to cancel him?
I'll admit, these allegations about King eased my concerns about proposing a move for MLK day. I thought it would be better to celebrate what King stood for, rather than to celebrate the man himself.
Delaware Court Refuses to Ban Father's Social-Media Posts About "any Family Court Litigation, [Mother], and Their Child"
From Delaware Family Court Judge Eliza Hirst's order in M— R— v. C— H—, decided Mar. 4 but just posted on Westlaw:
On August 18, 2025, the parties entered into a stipulated custody agreement wherein they shared joint legal custody, Mother had primary residential placement of the child, and Father had weekly contact with N---. On October 17, 2025, Mother sought and secured an emergency ex parte Protection from Abuse ("PFA") order against Father. The order directed Father not to contact Mother, approach her, or otherwise "threaten, molest, attack, harass[,] or commit any other act of abuse against" her or N--- . It was initially set to expire on November 17, 2025, but it was later extended to January 14, 2026. On December 16, 2025, Mother filed a motion seeking to obtain certain therapy records. Over the next two days, Father secured a lawyer, responded to that motion, moved for interim relief, sought his own PFA, and filed the present custody-modification petition.
On December 19, 2025, with the ex parte PFA in effect and all those petitions and motions pending, Father posted the single video specifically identified in Mother's Motion to Restrict Public Postings. The video showed N--- walking with Father's help (though only his legs and arms were visible), and it bore the caption, "Thx for joining. If you have any legal advice for dealing with manipulative / emotional abusers please share I'd really appreciate it."
The parties both appeared on January 14, 2026, for the scheduled trial on their PFA cross-petitions, but Father ultimately agreed to dismiss his petition and sign a consent order in Mother's favor. The consent order proscribed precisely the same conduct as the ex parte, except that Father was permitted to communicate with Mother on Our Family Wizard about N---'s well-being.
About two weeks later, after Mother found the video now at issue, she filed three motions with nearly identical allegations: (1) a motion to hold Father in contempt of the ex parte PFA, (2) a motion to extend the consent PFA and modify it to explicitly prohibit social-media posts about "any Family Court litigation, Petition[er,] and their child in common," and (3) the present Motion to Restrict Public Postings….
Today in Supreme Court History: March 19, 1891
3/19/1891: Chief Justice Earl Warren's birthday.
Open Thread
What’s on your mind?
Testimony Before House Judiciary Committee on Venezuela
Mother Ordered Not to Speak Publicly About Child Protection Proceedings; Maine High Court Says Order Violates First Amendment
From In re Child of Cassie S., decided by the Maine Supreme Judicial Court yesterday, in an opinion by Chief Justice Valerie Stanfill:
Cassie S. is the mother of a child with a complex medical history beginning when the child was about six months old. When the child was twenty-one months old, the mother persuaded the child's doctor to perform an invasive procedure—a tracheotomy [I assume this should read "tracheostomy" -EV]—to attempt to cure cyanotic spells she had observed. According to the mother, the tracheostomy did not ameliorate the cyanosis, so the child's medical providers recommended its immediate removal. The mother, however, insisted that the child's tracheostomy become permanent.
In the years that followed, the mother took the child to various medical providers in Maine and other states, many of whom recommended the removal of the child's tracheostomy. The mother also reported to the child's doctor that the child was aspirating on liquids, and as a result, a gastrostomy tube was placed in the child's stomach.
Ultimately, the medical director of the child protection program at a Massachusetts medical center reported the mother to the Maine Department of Health and Human Services. The medical director expressed concerns that the child had received inappropriate medical care at the urging of the mother. As a result, the Department petitioned for a protection order in 2019, although that petition was ultimately dismissed. Throughout the 2019 proceedings, the mother spoke to the press about the Department's efforts to remove the child from her care, resulting in published articles about the child's medical history and the mother's experience with the Department.
No Contempt Sanctions for Laura Loomer's Comments About CAIR, Magistrate Judge Recommends
Loomer had entered into a non-disparagement agreement to settle an earlier case, and the agreement had been adopted as a court order, but it also had an exception for statements responding to CAIR's statements about her.
From yesterday's Report and Recommendation by Magistrate Judge Bruce Reinhart in Illoominate Media, Inc. & Laura Loomer v. CAIR Florida, Inc. & CAIR Found.:
CAIR is a self-described civil rights and advocacy organization whose mission is to "enhance understanding of Islam, protect civil rights, promote justice, and empower American Muslims." Plaintiff Laura Loomer is a self-described journalist who regularly posts on social media.
In the underlying litigation, CAIR got a Final Judgment for $124,423.37 [in attorney fees, more on that here. -EV] Post-judgment litigation ensued. The parties resolved their dispute through a written Settlement Agreement. As part of the settlement, CAIR agreed to forego half of the Final Judgment. The Settlement Agreement contained a non-disparagement term that prohibited Ms. Loomer from speaking about CAIR:
Plaintiffs [Loomer et al.] shall never make any comments, of any kind, about CAIR in the future. Violation of this provision shall be a substantive breach of this Settlement….
Plaintiffs may publicly respond to any specific statement by Defendants or their authorized agents that discuss Plaintiffs by name. Plaintiffs may not use the exception for such responses to begin making general comments about Defendants outside of responding to the specific statement.
TV Station News Managers Fired for Allegedly Anti-Gay Memo Can Go on with Their Defamation Suit Against Nexstar Media
"Often, two true statements can be juxtaposed in such a way that they imply an idea that is false, which, under Michigan law, gives rise to a cause of action for defamation."
From Fox v. Nexstar Media Group, Inc., decided today by Judge Robert Jonker (W.D. Mich.), allowing plaintiffs' defamation claim to go forward:
These cases arise from the fallout over an internal memo that two senior news managers at WOOD‑TV—Amy Fox and Stanton Tang—either wrote or approved regarding coverage of Pride-month events. According to Fox and Tang, management initially agreed that the memo merely restated corporate policy, but after some colleagues misinterpreted the memo as being anti‑gay—and after the memo was leaked externally—management allegedly shifted its stance and planted news stories that portrayed Fox and Tang as anti‑gay. The plaintiffs contend Nexstar did this to cause Fox and Tang to absorb the blame for the controversy while allowing the company to emerge unscathed.
In early June of 2023, Stanton Tang began to feel concerned about WOOD-TV's coverage of Pride-related events. To him, it seemed that the newsroom's approach to Pride coverage differed from its approach to coverage of other events, such as women's history month or black history month.
As Tang tells it, when it came to the latter events, the newsroom tried to approach coverage in a unified way, to ensure that coverage was diversified, newsworthy, and spread throughout the month. However, when it came to Pride events, the newsroom was deviating from its typical editorial review process, and many reporters were beginning to go cover stories about Pride festivals as soon as they heard that the event was taking place—without discussing with the rest of the newsroom whether the story ought to be covered, whether it was duplicative of another story that had recently aired, or whether some unique aspect of the story could be explored in a way that highlighted the story's overall newsworthiness. Tang was also worried that the volume of Pride stories being covered by WOOD-TV news staff was alienating some of the station's more conservative viewers.
On the morning of June 13, 2023, Tang shared his concerns with his Assistant News Director, Amy Fox. He explained that he wanted to ensure that any Pride‑related reporting included appropriate historical context and that the newsroom was approaching the topic consistently. To address these concerns, he asked Fox to draft an email to the newsroom. Fox did so and then shared her proposed email with Tang. Tang added a few more lines to the email—including a directive for reporters to "get both sides of the issue" when covering Pride events—and told Fox to send the memo to all staff, which she did….
Many coworkers opposed the memo, and some leaked it to outside media outlets, which reached out to Nexstar for comment. Fox and Tang were eventually fired, and Nexstar released two statements that were then quoted by other media outlets:
Harlan Virtual Supreme Court Round of 8
The top four teams announce to the championship round at the National Archives.
The Harlan Institute is currently hosting the Fourteenth Annual Virtual Supreme Court Competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year, in honor of America's 250th Anniversary, the competition will focus on the case of Patriots v. Loyalists.
Eight teams of high school students presented oral arguments in the Round of 8. The teams were superb. Truly, these high school students could compete in any law school moot court competition. My sincere thanks two Elizabeth Steeves (Yale) and Shemaiah DeJorge (Georgetown) for helping to judge the rounds. The top four teams announce to the championship round at the National Archives.
Match #1: Team #24266
Match #2: Team #24346
Today in Supreme Court History: March 18, 2008
3/18/2008: District of Columbia v. Heller argued.
Open Thread
What’s on your mind?
Other Comments From Chief Justice Roberts
A wide-ranging interview between the Chief Justice and Judge Rosenthal at the Baker Institute.
I blogged earlier about what I thought was the highlight of Chief Justice Roberts's exchange with Judge Rosenthal at the Baker Institute. Here, I will flag a few of Roberts's comments of interest.
First, Roberts spoke about the difficult summer of 2005. In the span of a short span, he was nominated for Justice O'Connor's seat, Chief Justice Rehnquist died, and Roberts was then nominated for the Chief Justice seat.
Well, the beginning it was very emotionally draining, you're right. It was a level of tension. I mean, if I get nervous before arguing, you can imagine what it was like to get nervous before those hearings. And Chief Justice Rehnquist had been very much a mentor to me, and it was Saturday night, and I gone to bed. I was trying to get rested up. My wife called to tell me that the chief had passed away. And then the next morning, I got a call from the White House, and they wanted me to come in and had another interview with President Bush that afternoon, and then the next morning, they announced my nomination to be chief the day after that, I'm helping carry Chief Justice Rehnquist casket up to the lie in repose at the court, and the new hearings are starting the next week. There's just an awful lot going on, and I had to start learning a little bit more about Chief Justice's and their role, because that obviously hadn't been a been a focus. And I do remember thinking, you know, everything was looking pretty good with the first nomination.
Second, Roberts said he stumps law professors by asking them to name the portraits of Chief Justices in the East Conference Room.
And, you know, we have two conference rooms in the East one, they have on the walls the first eight Chief Justices, and the next one, they have the next eight chief justices. Just inside. I don't see where the room is for the, you know, 17. And I just sort of like, of like, you know, walk around, and you look up and there's, you know, John Jay, and I knew about him. And the next one, there's a picture of somebody I had no idea who it was. And this is the second Chief Justice. Turned out to be a fellow named John Rutledge who had a pretty he was there for five months. So I felt, well, that's not bad. And then the next one, and not, not really, you know, Oliver Ellsworth just rings a bell vaguely. And then John Marshall, you know, I could talk for hours about that. He's the most significant person in our political history who wasn't a president, and a lot more significant than many of the presidents. And then Chris Roger Taney, the unfortunate counterpart to Marshall. Okay, I know them. The next one I knew had worked with Lincoln, but I couldn't quite place the name Salman Chase there for a while. And then one, when I have professors in the conference room, and we're talking about something I will always ask, like, Who is that? And sometimes nobody knows.
Humblebrag. When I recently moved for the admission of South Texas alum to the Supreme Court bar, we had a breakfast reception in the East Conference room. I told our alums who all the Chiefs were. Who hasn't memorized all of the Chiefs? Jay, Rutledge, Ellsworth, Marshall, Taney, Chase, Waite, Fuller, White, Taft, Hughes, Stone, Vinson, Warren, Burger, Rehnquist, and Roberts. (I still would like to know where Roberts's bust will go, but that is a question for another time.)
Third, Roberts spoke at several juncture about judicial "courage." He said that Chief Justice Jay demonstrated an "incredible act of courage" by not answering questions posed in the "Correspondences of the Justices." Roberts also said that in this 250th year of independence, we should focus and celebrate "courage." He referenced the "extraordinary" bravery of those who signed the Declaration of Independence. They would not have been "given the privilege of being shot. They would be be hung, and all their families possessions would be gone." Roberts suggested that judges will need to exhibit a "great deal of courage," an "overlooked virtue of a judge," to disagree with what AI says. Judge Rosenthal also gave Chief Justice Roberts a biography of Chief Justice Chase, written by her father, Harold M. Hyman, who had been a longtime professor at Rice. Rosenthal said, and I agree, that Chase exemplified "courage." (I had the good occasion to cite one of Professor's Hyman's articles in a draft paper I wrote with Seth Barrett Tillman.) When I write about judicial "courage," people lose their collective minds. But this is a real concept. And, I've praised Roberts for having courage, to a limited extent.
Fourth, Judge Rosenthal asked how the Chief deals with criticism. The Chief responded, "I actually try not to read outside criticism too much. And it's, you know, just because you're you're on to something else, and you don't want to worry too much about you've done, you've done your best." I will not check how often Supreme Court IP addresses access the Volokh Conspiracy.
Would John Roberts Have Become Chief Justice If He Was Confirmed To The D.C. Circuit in 1992?
Roberts suspects that if he was confirmed to the D.C. Circuit at the age of 37, he probably "wouldn't have ended up" as Chief Justice.
Today Chief Justice Roberts spoke at the Baker Institute at Rice University in Houston. No, I did not attend. In candor, members of the Baker Institute Roundtable (a $500 fee) had early access to public tickets, and once those were gone, the event was at capacity. That was too rich for me. I considered protesting outside the building with a "#RESIGN" sign, but decided against it.
The conversation was moderated by Judge Lee Rosenthal of the Southern District of Texas. She did an expert job moderating the conversation. Most of the press focused on Roberts's comments concerning attacks on judges:
ROSENTHAL: In your 2024, year end report on the judiciary, you wrote that criticism comes with the territory for judges and justices and that it can be healthy. You've talked about the criticisms that your predecessors encountered. How do you handle criticism of your court or your opinions today?
ROBERTS: Well, it does. It does come with the territory. Often when any of us issue an opinion, there's often a dissent, usually not but I mean, people, their most opinions are more opinions than anything else, are unanimous, and that's pretty to get used to the criticism right away, and it can very much be healthy. We don't believe that we're, you know, flawless in any way, and it's important that our decisions are subjected to scrutiny, and they are. The problem sometimes is that the criticism can move from a focus on legal analysis to personalities. And you see from all over, I mean, not just any one political perspective on it, that it's more directed in a personal way, and that, frankly, can be actually quite dangerous. Judges around the country work very hard to get it right, and if they don't, their opinions are subject to criticism, but
personally directed hostility is is dangerous, and it's got to stop.ROSENTHAL: It's very much part of our lives these days. And on behalf of trial judges
everywhere, I want to personally thank you, because while we know that you may not always agree with us, we always know that you have our backs, and that means a great deal. So thank you, and I hope it continues. I know it will.
I found one of the most fascinating exchanges to concern what might be seen as the Roberts's biggest disappointments. In 1992, President George H.W. Bush nominated Roberts to the D.C. Circuit at the age of 37. Of course, Senator Joe Biden blocked the nomination, and Roberts never even received a vote. Elena Kagan likewise was nominated for the D.C. Circuit in 1999. She too never received a vote.
I've long suspected that if Roberts and Kagan had been confirmed, they never would have made it to the Supreme Court. One of the downsides of being a judge who aspires to higher office is that you have to actually decide cases. And those cases will invariably upset some people. When Roberts was nominated for the Supreme Court in 2005, he had only been an appellate judge for about two years, with very few cases to show. Before there was the frozen trucker, there was the greasy snacker. Roberts's most controversial decision concerned a girl who was arrested for eating french fries on the Metro. Of course, Roberts also decided what would become Hamdan v. Rumsfeld on July 15, 2005--at the same time he was interviewing before the Supreme Court. Talk about a well-timed audition!
Judge Rosenthal asked Roberts to reflect on his experience of not getting the D.C. Circuit at the age of 37:
Well I was disappointed. I wasn't naïve about the prospect that things might not work out. It was a disappointment. You look ahead and plan what your life will be like. I think it was a great honor. It was a great calling to be a federal judge. In retrospect, 100%, it was one of the best things that ever happened to me. That is a young age to take on a life-tenure job. You give up a lot of opportunity for other experiences. I'm pretty sure if I had done that, I wouldn't have ended up where I am now. You do develop something of a track record and it is not always something that appeals to people. And I went on and was able to do private practice but also another government opportunity. It was a disappointment but turned out alright.
I've listened to many speeches the Chief has given over the years, but I don't recall him ever being so honest and vulnerable. It was truly refreshing. I firmly believe that people only learn from defeats. Someone who has never faced adversity likely has not been taking enough risks.
On the substance, Roberts is 100% correct. Had Roberts spent a decade on the D.C. Circuit during the 1990s, his record would have looked very different. He likely would have infuriated Democratic Senators by ruling against the Clinton Administration. And Roberts likely would have disappointed Republican Senators by not being conservative enough (because he isn't that conservative). To play out the counterfactual, it's possible that Roberts still would have made the short list. Indeed, he likely would have still been a finalist alongside Judges Luttig and Wilkinson. Maybe Roberts still would have been picked. Who knows? But Roberts doesn't think so.
Likewise, had Elena Kagan spent much of the Bush Administration ruling in favor of Guantanamo Bay detainees, she would never have been considered. Senator Lindsey Graham would have never voted for her. And what would have happened to Harvard Law School? It might have gone the way of Yale Law School! By way of comparison, Justice Kavanaugh spent a decade on the D.C. Circuit and made lots of enemies. He was only confirmed by a bare majority. Had the filibuster still been in place, Kavanaugh would have never been considered.
Kudos to Judge Rosenthal for getting the Chief Justice to open up. This was a very well done interview. I'll write up a few other points in another post.
