7/28/1880: San Francisco prohibits operation of laundires in wood buildings, "without having first obtained the consent of the board of supervisors." The Supreme Court found this ordinance unconstitutional in Yick Wo v. Hopkins (1886).
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
What’s on your mind?
Justices Kagan and Barrett on the SCOTUS Leaks
All nine justices are frustrated by leaks yet confidential information somehow keeps leaking.
Over the past decade or so, I have written quite a bit about Supreme Court leaks. For a time, Joan Biskupic had the inside scoop. Indeed, Barrett relayed in her books that she had private conversations with the Justices. I've heard that Chief Justice Roberts, in particular, felt burned that Biskupic published information that was supposed to be off-the-record. So it goes. But after Justice Ginsburg's death, Biskupic's information largely dried up. Of course, Josh Gerstein at Politico got the Dobbs leak, but that was a one-off. Gerstein has not published any more inside information. More recently, Jodi Kantor of the New York Times has published a regular stream of information from the Court.
No matter how you slice it, the problem of leaks continues.
Justices Kagan and Barrett addressed the issue of leaks at some length during their congressional testimony (which I am just now wrapping up).
Kagan told the House Committee:
We can't engage do our business, we can't engage in confidential communication, which is the best way to operate is to be fully open with one's colleagues about one's views and if you think that those views are going to appear on the front page of the newspaper, you pull back, you don't have the kinds of conversations that I think the court really depends on to do great work. so this is something that has frustrated all of us and we are continuing to make efforts to resolve.
Kagan offered similar remarks to the Senate Committee:
The leaks "dramatically change the way we do business internally or at least has the potential to do so. The way we relate to each other depends so much on honest communication among the nine of us. And if the nine of us do not have trust in one another and don't have trust in one another and all the people who work for us, then those kinds of honest conversations that we need to do our business are not going to take place. They are at least going to be frustrated, so I think it is a problem that has frustrated every single one of the justices because of the security issues, but because it is just not the way a court should operate and not the way a court can operate if it wants to have the kind of deliberations that are the backbone of what we do."
Justice Barrett volunteered some information about the Court's new NDAs.
We are doing our best. we have instituted protocols to keep better track of who has access to document, who has touched documents when printed. We have always required employees to sign a confidentially agreement but recently we begin requiring employees to sign a nondisclosure agreement, which we do have carveouts for whistleblowers and that sort of thing, and those carveouts go beyond what federal statutes require. but we are hoping that driving the need for confidentiality home with these NDAs will just be an additional check on employees who are sharing information inappropriately and often illegally.
The Supreme Court has never publicly acknowledged that clerks are required to sign NDAs. We learned of this news from, drumroll please, a leak to the New York Times. Indeed, the Court offered no comment to the Times:
A spokeswoman for the court declined to comment about the nondisclosure agreements. She also did not respond to a question about whether the justices have been asked to sign the contracts.
The people who described the agreements spoke on the condition of anonymity because they were not authorized to speak publicly about court matters.
Judge Barrett has now confirmed the leak, perhaps without even realizing it. I wonder if anyone at the Court caught this.
Over the years, I speculated that Justice Kagan was at least adjacent to some Supreme Court leaks. I take Kagan's congressional testimony to be truthful, so I'll admit I was wrong. And I'll take Kagan as speaking truthfully that none of her other eight colleagues would leak information. If that's the case, then how can the leaks be explained? Are there simply rogue law clerks who are acting ultra vires, without the knowledge of their boss? Or maybe there is something short of tacit approval?
In any event, I appreciate that Kagan and Barrett have now locked in about leaks. Any clerk from their chambers would now be deluded to think their boss quietly supports a leak.
My New UnPopulist Article on Why "Court-Packing is a Dangerous Gambit Best Avoided"
It responds to a creative court-packing proposal put forward by Andy Craig.
Today, the UnPopulist published my article "Court Packing is a Dangerous Gambit Best Avoided." It responds to Andy Craig's earlier article putting forward a novel plan that combines court-packing with a constitutional amendment imposing term limits on Supreme Court justices. While Craig's proposal is better and more creative than traditional court-packing plans, I argue it is still a cure more dangerous than the disease it seeks to remedy.
Here is an excerpt that briefly summarizes the rest:
Court-packing has once again become a major focus of political contention, with many on the political left advocating it in response to what they believe are badly flawed and illegitimate decisions by the Supreme Court. In a recent article for The UnPopulist, Andy Craig provides reluctant support for court-packing, but with a twist he argues will minimize the danger: combining court-packing with a constitutional amendment imposing term limits on Supreme Court justices that would—if enacted—reverse the packing. The term-limit system would give every president two appointments per term, thereby potentially producing more ideological balance on the bench.
Craig's proposal is clever and a cut above more conventional defenses of court-packing. But I remain unpersuaded. His argument falls short in multiple ways. He overrates the negative aspects of the current Supreme Court majority and underrates their positive contributions, including on the very issue of combating incipient authoritarianism, the main focus of his concerns. He also overestimates the supposed inevitability of future court-packing and the feasibility of his compromise plan. Finally, there are good alternative fixes for many of the problems that (rightly) concern Craig.
I previously criticized court-packing in a Lawfare article published last month, where I explained (among other things) why the Supreme Court's recent decision in Louisiana v. Callais doesn't justify packing. In another recent piece, I assessed "non-packing" rationales for increasing the size of the Supreme Court.
Justice Kagan Understands The Conservative Legal Movement
For the Court's conservatives, there is a "playbook" that has nothing to do with Trump.
Two weeks ago, Justices Kagan and Barrett admirably defended the Supreme Court before the House and Senate. Last week, in remarks before the Ninth Circuit Judicial Conference, Justice Kagan offered a sophisticated analysis to explain what it means to have a conservative Supreme Court:
One of the Supreme Court's three liberal justices defended her conservative colleagues on Thursday, insisting the court has not been too deferential to President Trump.
"I think that is a bad rap," Justice Elena Kagan said during an appearance in Washington State, at an annual gathering of judges and lawyers who work in the judiciary's Ninth Circuit.
"Is this court very conservative?" she continued. "Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes."
"But," she added, "is this court kind of a puppet for the current administration? I think definitely not."
Justice Kagan has long understood what the "playbook of the conservative legal movement" was. As Dean of Harvard Law School, Kagan welcomed FedSoc students, and recruited right-of-center professors. She gets it.
The vast majority of landmark opinions the Roberts Court has decided since 2017 have nothing to do with President Trump. Look no further than how many dissents from Justices Scalia and Thomas, that long predated Trump, were vindicated. Reversed decisions include Roe v. Wade, Lemon v. Kurtzman, Board of Regents v. Bakke, Humphrey's Executor, Thornburg v. Gingles, and so on. The overruling of each of these precedents has been in the playbook for decades.
To be sure, a number of Trump specific rulings have arisen. Even then, I don't think the Court was really thinking about the 45th or 47th presidents. Trump v. Hawaii was largely a decision about executive power. Trump v. United States was a ruling "for the ages."
Yet, when a case is clearly about Trump, and not part of the broader playbook, Trump tends to lose. I think Trump v. Cook was a leading example. The Court jumped over so many prudential hurdles to get to the ruling, which Justice Barrett pointed out. Moreover, Trump v. Barbara raised an issue that had been debated since reconstruction, but Trump's views on immigration were in the background.
The Court is not a Trump Court. The Court is a conservative Court.
Second Circuit Reinstates Death Penalty Charges in Buffalo Supermarket Federal Murder Trial
From today's decision in U.S. v. Gendron, by Judge Richard Sullivan, joined by Judges Joseph Bianco and Alison Nathan:
Payton Gendron killed ten Black people in Buffalo, New York in an effort to spread racial hatred and incite violence. A grand jury subsequently indicted him on twenty-seven counts of (i) committing hate crimes resulting in death or involving an attempt to kill, in violation of 18 U.S.C. § 249(a)(1)(B); (ii) discharging a firearm to commit murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(iii), and 924(j)(1); and (iii) using and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(A)(iii).
The government sought the death penalty on the "discharging a firearm to commit murder" charges, filing a notice of intent that listed various statutory aggravating factors justifying such a punishment. That notice also included, as relevant here, three non-statutory aggravating factors: (i) the effect of Gendron's crimes on the surviving victims; (ii) Gendron's racist motive for the shooting; and (iii) Gendron's hope of provoking further violence.
The district court struck all three of these factors. It concluded first that the government could not point to the surviving victims' injuries because only the shootings resulting in death constituted capital crimes. It then found that 18 U.S.C. § 3593(f), which bars juries from "consider[ing] the race" of capital defendants or their alleged victims, prohibited the government from arguing Gendron's racist motive as an aggravating factor. Finally, it held that the First Amendment protected Gendron's statements about his goal of inciting further violence and that the incitement aggravator unconstitutionally punished Gendron's speech.
Misrepresentation About Ex-Employees May Be Criminal Libel
Cal. Labor Code § 1050 provides,
Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor.
Mead v. Bev. Hills Unif. School Dist. (Cal. Super. Ct. June 24, 2026)—a civil case—concluded that this covers any employees as agents, and can cover publishing material on YouTube, on the theory that "members of the public" who can view the material "would also include prospective employers." (Cal. Labor Code § 1054 makes § 1050 violations civilly actionable as well as criminally punishable.)
The fact pattern was that Mark Mead, a school district director of school safety, alleged that Carey, a journalism teacher, manipulated video of Mead to purport to show that he was choking a student. Mead was fired, and then sued the school district and Carey for defamation and related claims. The court allowed the § 1050 claim to go forward, and in the process it interpreted § 1050 in a way that would mean criminal punishment in such a situation would be allowed as well.
My Interview with Judge Altman on Anti-Semitism, Israel, and Judging
"What happened after October 7 in our sacred institutions, at our universities, in our Western media outlets, in our international NGOs and nonprofits, is that we completely forgot the ways that we had learned to tell truth from fiction."
Over the past three years, the rise of anti-semitism has come as a surprise to many. It shouldn't have. The groundwork for this resurgence of the oldest hatred has been laid by elite institutions for generations. October 7, 2023, was merely the spark that rekindled the conflagration.
We all owe a debt of gratitude to Judge Roy K. Altman (SDFL) who has made it his mission to teach the world, and the legal profession in particular, about the scourge of antisemitism.
Judge Altman was kind enough to answer some of my questions, which are now published in Civitas Outlook.
Here is an exchange about the false dichotomy between anti-semitism and anti-zionism.
JB: There is a common argument: the protestors are not anti-Semitic, they are anti-Zionist. How would you explain the distinction between these concepts?
RA: There is no distinction. In the 1800s, there was Jew hatred that was all over Europe. It was very prevalent, and it was uncomfortable for much of the ruling class. They said, "The Jews are bad but we don't want violence in our society. We've moved past that, we're much more sophisticated than that."
Wilhelm Marr came up with the idea of giving Jew hatred a different name, so that it would seem more anodyne, less violent, and less hateful than it was. He came up with this idea of anti-Semitism. It was more sophisticated, it was intellectually based, and it wasn't inappropriate, because it wasn't Jew hatred. Anti-semitism wasn't violence based on race; it was based on intellectual and philosophical disputes about a people and the people's role in the broader society.
Well, we're just doing the same thing over again now. Anti-Semitism over time became untenable because the Holocaust showed that, as anodyne as you wanted to make it, and as intellectual as you wanted to make antisemitism seem, ultimately antisemitism was just a word that came to represent the Jew hatred that had always existed and percolated in society. The Holocaust brought to the fore just how violent that Jew hatred, whether it's called antisemitism or something else, can really be.
Now we've come up with a new word. We're not really talking about Jew hatred; we're not really talking about antisemitism. Let's give it a new intellectual name, anti-Zionism. It's just hatred of Zionists, not Jews. In fifty years, once it becomes clear that anti-Zionism, like anti-Semitism, led to the rape and murder of hundreds or thousands or millions of Jews, then we're going to come up with a different word, right? Because we're going to say, okay, yeah, we realize anti-Zionism also brought the violence of Jew hatred to the fore; let's call it something else, maybe we'll call it anti-Abrahamism, or whatever, but again, it's just the same thing. You're putting lipstick on a pig. You're calling it a word that's new, that to your mind is an anodyne word, an innocuous word to label something that we all know is an ancient hatred.
The fact of the matter is that over fifty percent of the world's Jews live in Israel, and about ninety percent of the world's Jews view Zionism and the existence of the state of Israel as an integral part of their Jewish identity. So, as a practical matter, the two things are co-extensive. The Jews who are not Zionists, who are anti-Zionist, are a tiny fraction of the population, even though they have an outsized voice in our academic institutions. As a practical matter, to hate Zionists is to hate Jews. As a matter of law, we don't allow you to say in a jury selection process, "I'm going to exclude all the people with dreadlocks and who like a certain kind of music." We're not going to allow you to do that, because we know that's a proxy for black people, and we're not going to allow you to exclude black people on the ground that you used a different proxy, a different word.
Well, here we're doing the same thing; we're saying we're going to exclude from our civic organizations, from our literary clubs, we're going to block from our campus protests, our rallies, and our classrooms people who are ninety percent of whom we know are Jewish. That doesn't work. It doesn't work with black people, it doesn't work with any other group of people, and it cannot work with Jewish people.
And here is an explanation of why he chose to write his new book, Israel on Trial.
RA: I wrote the book not as a judge, but as an American who loves this country. I honestly believe that the country is built on our ability to tell truth from fiction. Alexis de Tocqueville came in the 1830s, and he looked around. He said it's not just that they have these institutions; it's that they've built a virtuous populace. By being virtuous, they can be free. The essence of being virtuous and free was this ability to make the right choices. The government wasn't going to tell us which choices to make, but it trusted us to make choices that were beneficial to the whole. We had all kinds of training grounds for practicing how to be a good, free, and virtuous people. One of those, of course, was the jury system.
People say to me all the time, "Oh, juries don't know what they're talking about; they don't know antitrust law; they don't know patent law. How are they going to make these important decisions for our society?" First, I think they're wrong. I think juries get it right much more often than you would think. Second, that also misses part of the point of why the jury system is important. The jury system isn't just an algorithm for getting to what is "the right answer." The jury system was a real-life practice ground, a training ground for us to become a free people. It taught us how to make important and momentous decisions for ourselves in some of the most important cases and disputes in our society.
What happened after October 7 in our sacred institutions, at our universities, in our Western media outlets, in our international NGOs and nonprofits, is that we completely forgot the ways that we had learned to tell truth from fiction. We had begun to buy lies that were being pushed on us by our geostrategic adversaries, not just Hamas, obviously, but the Muslim Brotherhood through Al Jazeera, the Chinese Communist Party through TikTok, and other channels.
I took it upon myself to travel around the country to figure out how this is happening to us. In the course of those travels, I had thousands of conversations, many of them with people who see the world, frankly, differently than I do, but I came to recognize that their entire debate about Israel, and really the entire debate about America and its relationship with Israel, was driven by six main claims that people believe about the Jewish state. I have two pieces of good news: one, they're all false, and two, they're all, at their core, legal claims.
Read the whole interview and buy the book.
§ 230 Preempts Texas Mandates on Social Media Platforms, Fifth Circuit Holds by 2-1 Vote
An excerpt from the long opinion in Computer & Comm. Industry Ass'n v. Paxton, decided Friday by Fifth Circuit Judges Dana Douglas and Patrick Higginbotham:
[1.] [Texas] H.B. 18 … imposes requirements on DSPs [Digital Service Providers]…. With the exception of its age-verification requirement, H.B. 18 applies only to DSPs whose digital service "connects users in a manner that allows users to socially interact with other users on the digital service," "allows a user to create a public or semi-public profile for purposes of signing into and using the digital service," and "allows a user to create or post content that can be viewed by other users of the digital service," including via a message board, chat room, or other "landing page, video channel, or main feed that presents to a user content created and posted by other users."
{H.B. 18 exempts from its coverage state and local government websites, financial institutions, medical websites, small businesses, higher education websites, employee management software, school education software, and e-mail and direct messaging services that provide only those services. H.B. 18 also exempts digital services that "primarily function[ ] to provide a user with access to news, sports, commerce, or content primarily generated or selected by the [DSP]" and provide only incidental social functions.}
H.B. 18's monitoring and filtering requirement mandates covered DSPs to develop and implement a strategy to prevent known minors' exposure to "harmful material" and other content "that promotes, glorifies, or facilitates" "suicide, self-harm, or eating disorders"; "substance abuse"; "stalking, bullying, or harassment"; and "grooming, trafficking, child pornography, or other sexual exploitation or abuse." "Harmful material" is defined with reference to its definition in the Texas Penal Code [to refer to obscene-as-to-minors sexually themed material]….
[2.] Consistent with other courts of appeal, we have interpreted Section 230 to provide DSPs with "broad immunity" from "all claims stemming from their publication of information created by third parties." … Building on Doe v. MySpace, Inc. (5th Cir. 2018), where we had previously held that Section 230 "shielded MySpace from negligence liability for publishing communications between a minor and an adult who later sexually assaulted her," in Free Speech Coalition, Inc. v. Paxton (5th Cir. 2024), we held that an age-verification requirement for pornographic websites was different, and not preempted, because it did not pertain to "immuniz[ing] web service providers from harm caused by unremoved speech on their website," which is "the point of Section 230."
We distinguished between liability "reliant on the harm done by third-party content," which is preempted by Section 230, and "liability purely based on whether plaintiffs comply with the statute," which is not. "[T]he nature of Section 230's protections," we observed, is "to protect a provider from speaker-liability stemming from the speech it hosts." …
Today in Supreme Court History: July 27, 1929
/27/1929: The Geneva Conventions are signed by United States. The Supreme Court would consider the Conventions in Hamdan v. Rumsfeld (2006).
Open Thread
What’s on your mind?
Large Libel Models Decision in China
I just learned about this Large Libel Models case from China (to add to the nine U.S. cases I've seen, plus others from Norway and Germany); an excerpt from Mengchun Zhang (China IP Case Updates) of JunZeJun Law Offices on May 24, 2026, reporting on a Mar. 12, 2026 decision:
Nanjing Intermediate Court: False AI-Generated Statement that a Lawyer Was Sentenced to Three Years' Imprisonment Constituted Defamation …
The court distinguished between ordinary search suggestions and AI-generated answers. While search suggestions such as "related searches" were not found infringing, the court found that the relevant "AI Smart Answer" content was generated through Baidu's AI processing and synthesis of text and images.
The case is significant because the court still found Baidu liable despite its arguments regarding AI hallucination and technological limitations.
How Trump's Tariffs Undermine US Trustworthiness and Credibility—and What Can Be Done to Stop it
Economist David Hebert highlights an underappreciated danger of Trump's tariff mania. It's a serious problem, but one that can at least be mitigated.
I have previously written about how Trump's new Section 301 tariffs are illegal and harmful. The same goes for his earlier IEEPA tariffs (invalidated by the Supreme Court in a case I helped litigate), and Section 122 tariffs (struck down by the US Court of International Trade in May, though litigation continues). In an insightful recent article, economist David Hebert highlights an underappreciated type of harm caused by Trump's tariff policies that cannot be fully remedied by court decisions:
[T]here's a far worse outcome from this that cannot be undone by courts, elections, or policy reversals. These new tariffs and their justifications have only served to further destroy the relationships with allies and trading partners that we had previously taken as given. The costs of this will outlast every tariff schedule, court ruling, and this administration. They won't show up on BLS reports, BEA analyses, or Fed surveys. But they will be felt by every single American for years to come….
Canada, the European Union, the United Kingdom, and Mexico now face 10 percent tariffs for their alleged forced labor practices. Canada and Mexico are, of course, also parties to the USMCA, a trade agreement that this very president negotiated, signed, and called "a colossal victory" only to then walk away from. That same week, the President hit Canada with an additional 50 percent tariff on goods ranging from "wine to hockey sticks to cement" regardless of whether or not those goods qualify under the USMCA.
So in the span of a week, the White House effectively told Canada, our closest trading partner and ally, that America's word means nothing and then told them that they are complicit in forced labor.
An ordinary tariff is a tax. Trading partners are annoyed, sometimes retaliate, and sometimes negotiate. These tariffs are different. We didn't just tax Japanese goods. We announced to the world, as an official finding of the United States government, that Japan is profiting from slavery and needs to be punished for it. Norway, Switzerland, Australia, the United Kingdom, and South Korea are guilty of this, too. Then we set a penalty that just so happens to approximate the Section 122 tariffs that just expired.
Foreign officials must now contend with an even clearer reality: not only is an agreement with the United States not worth the paper it's printed on, but we will accuse you of horrendous practices if it means that an administration can re-impose tariffs. Our trading partners saw that the findings of investigations will be written to fit the desires of an administration instead of the facts on the ground. They learned that not only is America protectionist but that they will publish a serious moral accusation against a friend when doing so is politically convenient.
This changes how other countries will deal with us going forward.
Hebert goes on to explain how, as a result of this decline in US reputation and trustworthiness, foreign trading partners will be less willing to make agreements with us. Similarly, businesses and investors there will be less willing to trade with the United States, lest their commitments be disrupted whenever the current occupant of the White House feels like it.
I would add there is an additional way in which courts are limited in their ability to fix this problem: the judicial process moves relatively slowly. And a great deal of damage can be inflicted in the meantime. During the course of the IEEPA litigation, I had multiple conversations with business people that went something like this:
Business Owner: It's great you're challenging the tariffs. But when is your case finally going to be resolved?
Ilya: It's actually moving at a fast pace, by the standards of the federal judiciary.
Business Owner: That's no consolation to me. I'm losing money every day!
The US Court of International Trade, the Federal Circuit, and the Supreme Court all indeed considered decided the case substantially faster than usual practice. Nonetheless, the litigation took over ten months, during which the government collected some $166 billion in illegal tariff payments, and the US and world economies suffered serious damage. And we are still not done with the process of refunding the illegal tariff payments.
In addition to lost sales caused by higher prices, businesses and investors were hurt by the uncertainty over what the tariff schedule would be going forward, which made it difficult to plan ahead. And that uncertainty may well continue so long as there is fear that the president can impose massive new tariffs whenever he feels like it, after which it may takes months of litigation to overturn them. This is another cost of undermining the rule of law by letting one man's whims dictate the tariff schedule, and thereby control a massive part of the economy.
Nonetheless, the courts and Congress are not as helpless in the face of this problem as Hebert suggests. First, the very fact that illegal tariff power grabs get invalidated (even if too slowly) creates some stability. If people know any such imposition will likely only last a few months, that affects expectations and planning. Uncertainty can be further reduced if the courts continue to rule the right way, and write strong opinions signalling that future tariffs will face tight judicial scrutiny.
Second, as I have emphasized previously, courts can reduce the damage caused by illegal tariffs if they refuse to stay initial rulings blocking them. In that event, illegal tariffs will only be in effect for a few weeks, as opposed to many months. Moreover, refusing to stay initial injunctions sends a signal that the initial ruling is likely to be sustained on appeal, further reducing uncertainty.
When the Federal Circuit stayed the initial ruling against the IEEPA tariffs, that enabled the Trump administration to collect some $166 billion in illegal tariff payments, and greatly increased the harm caused by the illegal policy. Courts should learn from that mistake, and not repeat it (though the Federal Circuit, sadly, did choose to repeat it in the Section 122 case).
Congress could do still more. Ideally, it should just repeal all those statutes that give the president discretionary authority to impose tariffs: Section 122, Section 232, Section 301, and so on. All should go! Basic Economics 101 shows that tariffs are almost never a good way to address problems. While Trump has pushed these authorities far beyond their proper legal bounds, they are pernicious even when used as Congress intended, and the statutory text permits.
Repeal is far from impossible, politically. Trump's tariffs have become highly unpopular. More generally, survey data and experience going back to the nineteenth century show that public opinion can be turned against tariffs when reminded that they increase prices. For those reasons, the majority opinion is likely to support a serious effort to abolish the statutes that make them possible. Though it may be more difficult to overcome the resistance of interest groups that benefit from protectionism. It can't happen while Trump is still in the White House, able to veto repeal legislation. But a more trade-friendly president could well be elected in 2028.
Even if discretionary tariffs are abolished, Congress would still retain the ability to impose tariffs by enacting new laws. It could also still simply ban importation of some types of goods (as it currently does with those produced by forced labor). But US trade would no longer be at the mercy of any one person's whims.
If complete abolition of discretionary tariffs is impossible, Congress could at least reform any remaining delegations of tariff authority to 1) confine them to a narrow set of circumstances, and 2) eliminate judicial deference to executive determinations that the required circumstances actually exist. Make the government bear the burden of proof.
Even if all this were done, a malicious, ignorant, or stupid president could still try to impose illegal tariffs. But businesses and trading partners could confident that his efforts would have no legal effect, and would be swiftly invalidated by courts. He could still make bogus accusations of complicity in forced labor. But allies and trading partners would know his rants will likely have little effect. A rogue executive could still do some damage to US trade policy and credibility. But far, far less than is possible today.
Today in Supreme Court History: July 26, 1892
7/26/1892: Justice George Shiras Jr. takes oath.
Open Thread
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Court Notes Apparent AI-Generated Errors in Court Reporter's Transcript
"[W]e remind the Court Reporter that this court relies on transcripts being true and accurate representations of the transcribed proceedings."
From the opinion Thursday in Williams v. State, by Indiana Court of Appeals Judge Felix, joined by Chief Judge Tavitas and Judge Bradford:
Although "[t]rial records are rarely if ever perfect," Ben-Yisrayl v. State, 753 N.E.2d 649, 662 (Ind. 2001), the Transcript in this case is far from the best.
The Transcript contains various types of errors. There are numerous typos that change the meaning of the testimony, question, or objection. See, e.g., Tr. Vol. II at 137:18, 144:10, 147:10; Tr. Vol. III at 6:13. In some instances, witnesses' and trial attorneys' names are reported incorrectly. Tr. Vol. II at 220:5; Tr. Vol. III at 142:15–20, 143:15, 162:4–5.
At one point in the Transcript, a motion, presumably made by the State, is attributed to the trial court. Tr. Vol. II at 107–08. At another point, an objection, presumably made by Williams, is attributed to the Bailiff. Tr. Vol. II at 177:15. At yet another point, the State's closing argument is attributed to the trial court. Tr. Vol. III at 228:1.
Brian Fitzpatrick Makes the Case for Callais
An argument in support of the Supreme Court's Voting Rights Act jurisprudence one is unlikely to hear in academia.
There appears to be an academic consensus that the Supreme Court's decision in Louisiana in Callais is incorrect. But does this tell us more about the decision or about the legal academy? Brian Fitzpatrick raises this question in a SCOTUSBlog essay "The Case for Callais."
Fitzpatrick's essay begins:
This publication has been inundated with essays by academics critical of Louisiana v. Callais, but has not published a single one in defense of it. So I decided to take it on in my column. After all, I am pretty sure Justice Antonin Scalia would have approved of the decision.
As you will see, I didn't find the assignment particularly difficult. Which raises a question: why has no one else been willing to defend a 6-3 decision of the Supreme Court?
The essay is short, and you should read the whole thing.
Is There Actually an Error in the Supreme Court's Analysis in Loper Bright?
Did the Administrative Procedure Act apply in Chevron v. NRDC?
On Thursday, I noted an interesting footnote in Senior Circuit Judge Ray Randolph's dissent in Hospital Menonita de Guayama v. NLRB (an interesting decision in its own right), suggesting that the Supreme Court's decision ending Chevron deference in Loper Bright Enterprises v. Raimando failed to account for the fact that Chevron had not been an APA case, but was rather governed by the judicial review provisions of the Clean Air Act. But is this so?
An astute reader pointed me to another footnote--this one from a law review article by Professor John Duffy--suggesting that at the time Chevron v. NRDC was decided, the issue from the Court was, in fact, governed by the APA. In FN19, Professor Duffy writes:
Some scholarship suggests that the Chevron case itself was not subject to section 706 because subsection (d) of section 307 of the Clean Air Act (42 U.S.C. § 7607(d)) contains an explicit exemption making section 706 inapplicable. See, e.g., Jack M. Beermann, Chevron Is a Rorschach Test Ink Blot, 32 J.L. &POL. 305, 307–08, 307 n.8 (2017) (stating that "[j]udicial review of EPA rules under the Clean Air Act is governed by 42 U.S.C. § 7607(d) and not by APA § 706"). The relevant provision, however, exempts from section 706 only EPA actions listed in section 307(d)(1), which at the relevant time included fourteen categories of EPA actions, none of which covered the EPA rulemaking being reviewed in the Chevron litigation. See 42 U.S.C. § 7607(d)(1)(A)–(N) (1982). In fact, at the time it was promulgating the final rule challenged in Chevron, the EPA itself analyzed the applicability of subsection (d) of section 307 and correctly determined that rules being promulgated were "not subject to Section 307(d)." Requirements for Preparation, Adoption and Submittal of Implementation Plans, 46 Fed. Reg. 50766, 50770 (Oct. 14, 1981) (codified at 40 C.F.R. pts. 51–52).
So perhaps Judge Randolph spoke too soon.
This is an interesting dispute, but it does not have much bearing on Loper Bright Enterprises. Judge Randolph's point was raised by the petitioners (see, e.g,, the oral argument transcript at p. 87), and the substance of judicial review under 42 U.S.C. § 7607 is not materially different from that under APA § 706 (though there are important procedural differences for rulemakings).
While Chevron made no reference to the APA, the Chevron doctrine was understood to apply to APA cases, so whether the doctrine comports with the APA mattered--a point Judge Randolph concedes. The Court's decision in Loper Bright rejected the Chevron methodology--in particular the requirement that courts defer to reasonable agency interpretations of ambiguous statutory language--not its interpretation of the Clean Air Act or its conclusion that the EPA regulation at issue was permissible.
