The Volokh Conspiracy Archive

Today's a busy day! SCOTUSBlog has published my new installment on Supreme Court reform. This piece focuses on (who else?) the Chief Justice. I write that the Chief should delegate some of his powers to the associate justices.

Here is the introduction:

Under longstanding tradition, the chief justice presides over oral argument and the justices' private conferences. I propose a change. The chief justice should delegate these presiding duties to his colleagues. Doing so would promote trust among the justices and allow for the experimentation of different leadership styles.

There are two primary duties to be delegates: presiding over oral argument and presiding over the conference.

The division of labor here could be done in different ways. For the simplest approach, each year, the justices could draw a number from a hat to select the presiding justice for a given term. Once a justice serves as chief, his or her name will be taken out of the hat until all other active members have served. That approach would provide more stability and continuity in the chief's seat. It would also give the presiding justice time to develop an approach to the important role. A justice could opt out of having his or her name drawn at random. This system would be entirely voluntary – but I suspect most of the junior justices would jump at the chance to preside, barring some other extenuating circumstances.

The justices could also rotate during a given term. The court is in session for approximately nine months out of the year from October through June. There is usually one sitting per month. Each of the nine justices could serve during one sitting as presiding officer for oral argument and for the conference. In fairness, the court usually does not hold oral arguments in May and June (although they should.) But I have little doubt that this could be worked out.

Perhaps most critically, my approach would allow different members of the court to assign majority opinions. Here, more justices would be able to direct the trajectory of majority opinions. And since the selection would be random, justices could not game which opinions they can assign. Moreover, the ordering would not be announced to the public in advance. This information might allow litigators to time cert petitions and emergency applications to shop for particular presiding officers. (On the lower courts, savvy litigators know when certain judges are sitting on emergency motion panels and can time their cases accordingly.)

Again, this is yet another reform that would change the power structures on the Court without affecting its composition or jurisdiction. All of these proposals for term limits and expansion only purport to treat the symptoms and not the root cause.

Last week, a panel of the U.S. Court of Appeals for the Fifth Circuit granted a petition for review of a Biden Administration Department of Energy direct-to-final rule limiting the energy use of stoves and ovens.

Judge Oldham wrote for the panel in Mississippi v. Department of Energy, joined by Judge Ho. Judge Haynes concurred in the judgment. The intro of Judge Oldham's opinion, makes clear he does not like the rules at issue.

The Biden Administration proposed numerous regulations to make home appliances more expensive and less useful. See, e.g., Louisiana v. DOE, 90 F.4th 461 (5th Cir. 2024). As part of that effort, one official even proposed banning gas stoves. See Ari Natter, US Safety Agency to Consider Ban on Gas Stoves Amid Health Fears, Bloomberg (Jan. 9, 2023), https://perma.cc/7E2V-DFN5 (quoting statement of Consumer Product Safety Commission official Richard Trumpka, Jr.). These efforts generated significant controversy and public backlash.

Rather than confront that controversy, the previous Administration attempted to dodge it. In this case, the Department of Energy created new regulations on home cooking appliances, including gas stoves, through a "Direct Final Rule." What does that mean? It means the Biden Administration promulgated a rule without giving the public advance notice or the opportunity to comment on it. Petitioners are several States that are aggrieved by the Direct Final Rule. Their objections are well taken, so we grant the petition for review.

Although the Energy Policy Conservation Act provides for the promulgation of direct-to-final rules, so as to facilitate the quick adoption of consensus-based or otherwise non-controversial standards, the panel concluded the Department overstepped here, and had sought to use the DFR process to evade engaging with substantive objections to the new rules. Judge Oldham writes:

The previous administration's gas-stove measures were among its most controversial energy proposals. The idea that all that controversy could be elided using the DFR—a mechanism designed for consensus rulemaking—is untenable. And it's all the more untenable in the face of the EPCA's comment and review provisions, which the Department would have us rewrite.

Interestingly enough, the Trump Administration has also sought to evade the notice-and-comment process in some of its rulemakings, embracing an unconventional (and quite aggressive) interpretation of the "good cause" exception within the Administrative Procedure Act (APA). I discuss two examples in my forthcoming article, "Unsustainable Presidential Administration," one of which also involves the Department of Energy (repeal of the showerhead definition), as well as the OIRA memo encouraging agencies to use the "good cause" exception more aggressively. The Fifth Circuit's rationale could cause problems for such efforts, particularly if adopted by other circuits.

When I studied the First Amendment circa 2007, we struggled to reconcile two Establishment Clause cases decided on the same day. In McCreary County, the Court held that a display of the Ten Commandments posted on the wall of a courthouse was unconstitutional. And in Van Orden v. Perry, the Court held that a large stone monument of the Ten Commandments on the grounds of the Texas Capitol could remain. Justices O'Connor and Breyer cast the deciding votes in each case. In the latter decision, Justice Breyer worried what would happen if the people saw a large edifice on state property being demolished.

At the same time, to reach a contrary conclusion here, based primarily upon on the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U. S., at 717–729 (Breyer, J., dissenting).

The rule, as we learned it, is the Constitution permits taking down a piece of paper but does not permit demolishing a heavy stone monument.

This history makes me think of the pending East Wing case. According to the government, nearly 60% of the structure is already built. Let's say the Supreme Court denies the stay. What happens? Would Judge Leon force the government to leave the partially-exposed construction zone on the White House grounds indefinitely? Would he order the government to close it up in some ad hoc fashion that he decides, but which fails to provide the intended defenses to the underground facility? Would he force the government to tear down all of the above-ground structures? What would that image convey to the American people who are already concerned that the judiciary is usurping our democracy? How would our foreign adversaries, who are planning attacks on the White House, see that act?

Enjoining an executive order is an abstract act that most people cannot understand. But ordering bulldozers onto the White House property to tear down a structure is something everyone can see. Indeed, I can see a world where those bulldozers are not allowed through the gate. Judicial supremacy has its limits. A court-ordered demolition of a White House national security facility, broadcast to the entire world, would be a Rubicon that should not be crossed.

This summer I have spent some time proposing different reform of the Supreme Court that have nothing to do with its composition or jurisdiction. As I often say, the clearest way to affect how the Justices do their job is to make the Justices do more of their own work. My latest proposal, published in Civitas, seeks the curtail the cult of judicial celebrity on the left and the right. In short, Congress should make the Supreme Court boring again.

The task is actually straightforward: make the Supreme Court Justices feel like lower court judges. I would ask and answer two questions. First, what should they do when they are not working? The same sorts of mundane activities that lower court judges engage in. There should be no special perks for being a Justice. Second, what about outside income? Justices should not profit from their jobs. Any book royalties should be donated to the Holmes Devise. Congress could increase the Justices' salaries, but they would have the same cost of living as other judges in Washington, who have far fewer perks. As we say in Texas, these steps will make sure the Justices do not get too big for their britches.

From the conclusion:

These proposals would change nothing about the Court's docket, decisions, or deliberations. But they would hopefully curtail the cult of judicial celebrity. Indeed, these proposals, more than Court packing, term limits, or jurisdiction stripping, would change how Justices understand their role in the operations of the federal government and would slowly change citizens' perceptions of their stature in the government. affect

Congress has not engaged in regular lawmaking for some time. Does this require structural reform, such as abolishing the filibuster? Some seem to think so. I am skeptical. If Congress is reluctant to legislate, there will be difficulty cobbling together the requisite number of votes whether 51 or 60 votes are required. If there is insufficient reason to craft a legislative vehicle that can pass, it will not get passed.

Legislative quiescence is a serious problem, but it is not as if Congress never acts. Must-pass legislation gets enacted, albeit often after much consternation (and the occasional government shutdown). What I believe this illustrates is that creating stronger incentives for Congress to act, and to revisit existing laws, is fruitful path for encouraging more regular lawmaking, including the reauthorization of programmatic statutes.

Chris Walker and I explored this issue some in our paper, "Delegation and Time." I discuss it further in "Making Congress Legislate Again," my contribution to today's Civitas Outlook symposium on structural reform. From my essay:

Including expiration dates or sunsets in new legislation is one way to encourage Congress to reengage with specific policy areas more frequently. Congress can still punt when an authorization expires, such as by extending deadlines piecemeal, as is sometimes done with continuing resolutions. But there is still value in forcing legislators to acknowledge their responsibility and cast their votes.

Many existing programs already contain time-limited authorizations, even if Congress has not observed them. This is the case with most major environmental statutes, which, as noted above, have not been reauthorized (let alone significantly revised) this century.

Adding sunset provisions or expiring authorizations to new laws would be a positive change, but we need not wait for it. It is also not a cure-all, as expired authorizations matter only if they are allowed to take effect. The Congressional Budget Office regularly reports which programs have expired authorizations, ostensibly to prevent appropriations for them.

As it happens, current congressional rules may already require Congress to revisit existing programs. Current House and Senate rules already prohibit appropriating funds for unauthorized or expired federal agencies and programs. Blocking such appropriations should require no more than raising a point of order. While such objections can be overruled (and congressional leadership has ways of making procedural objections difficult), raising them would be a start.

Many think the answer to Congress's inability or unwillingness to legislate requires rewriting the rules or broader structural reforms. A better start might simply be enforcing the rules we already have.

The full symposium, with contributions from Steven Hayward, Josh Blackman, John Yoo, and William Voegeli is here.

Thanks to Wikipedia for the koala photo.

Blog readers know that I'm interested in legal language, and that includes punctuation (see, e.g., "Punctuation Matters. At the Heart of This Case Is the Placement of a Comma" and "A, B or C" vs. "A, B, or C"—the serial comma and the law). There was an interesting Florida case on punctuation and the law a few weeks ago, and I thought I'd pass along an item about it from Ken Adams, author of A Manual of Style for Contract Drafting (5th ed. 2023), published by the American Bar Association:

Comma Mischief from the Florida District Court of Appeal

A pervasive problem of our judicial system is poor textual interpretation. A recent example is the decision of the Florida District Court of Appeal in Treasure Coast Classical Academy, Inc. v. Optima Foundation, Inc., No. 4D2025-1577, 2026 WL 2104076 (Fla. Dist. Ct. App. July 22, 2026).

The Opinion

Optima provided services to Treasure Coast Classical Academy, Inc. The academy sued Optima in the Nineteenth Judicial Circuit Court, Martin County, Florida. Optima moved to dismiss the complaint for improper venue, arguing that all causes of action had to be brought exclusively in Collier County, Florida.

Here's the sentence at issue:

State Governing Law/Venue/Waiver of Jury Trial. The rights of all parties hereto shall be subject to the jurisdiction of and be construed according to the laws of the State of Florida, with venue in Collier County, Florida.

8/18/1920: The Nineteenth Amendment is ratified.

In April, the en banc Fifth Circuit upheld the constitutionality of Texas's law requiring the posting of Ten Commandments in public school classrooms. For much of the past four months, I wondered whether the ACLU would take the risk of filing a cert petition. On the one hand, separationists must publicly state they will fight to the last stage to ensure there is no religion in the classroom. On the other hand, the Supreme Court could set a broader precedent that would set back separationism far more than Kennedy v. Bremerton did. Why not just let Louisiana and Texas go to avoid setting a nationwide precedent. A conservative Fifth Circuit litigator told me he was certain the ACLU wouldn't seek cert here. The move was just too risky.

Today, the ACLU filed a cert petition in the case.

Now the tougher question: does the Supreme Court have to grant cert? In the usual course, the Justices would always take a case of this significance that (arguably) deemed that Stone v. Graham was abandoned. Then again, the Court's liberals may see a risk in taking this case, and vote to defensively deny cert. If so, would the Chief and Justice Barrett be eager to take the case? The conservatives may also grant to extend the Fifth Circuit's precedent nationwide. But that grant may backfire if there is are five votes to preserve Graham.

The calculus here is not clear.

From today's decision in Massimino v. Benoit, written by Judge Myrna Pérez and joined by Sarah Merriam:

We begin by joining a growing chorus of [eight of] our sister circuits that have recognized a First Amendment right to record law enforcement activity in public. {See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017); Sharpe v. Winterville Police Dep't, 59 F.4th 674, 680–81 (4th Cir. 2023); Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017); American C.L. Union of Ill. v. Alvarez, 679 F.3d 583, 594–95 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).} That right encompasses Massimino's recording of the exterior of a police station from a public sidewalk. {Exterior, as it is used throughout this opinion, means the areas visible from a publicly accessible area outside the police station.} …

The right to record law enforcement activity in public emerges from three foundational First Amendment principles. First, the First Amendment protects the creation of speech, not just the immediate act of expression. Second, speech on matters of public concern—and particularly discussion of governmental affairs—lies at the heartland of the First Amendment's protections. Finally, the First Amendment protects the public's right to gather and access information about the government. We take each principle in turn.

The Trump Administration announced a new program on hacking back last week, allowing United States companies to hack back in some circumstances in cooperation with United States officials. The program is premised on some interesting theories about the scope of the Computer Fraud and Abuse Act, and I think it raises a lot of complicated issues under that statute.

In this post, I wanted to take a look at some of them.

First, here's the language from the Trump Administration's announcement:

. . . . The National Coordination Center (NCC), established pursuant to section 6(d) of Executive Order 14159 of January 20, 2025 (Protecting the American People Against Invasion), shall create, manage, and maintain a Program to authorize Participating Companies, as defined in section 4(f) of this memorandum, to conduct Cyber Surveillance Operations and Cyber Effects Operations against foreign Cyber-Enabled Transnational Criminal Organizations (CE-TCOs), under the control and oversight of the Federal Government. As part of lawful investigatory, protective, or intelligence operations carried out by Federal law enforcement, this Program shall:

(i) be overseen by co-Executive Directors, one from the Department of Justice, designated by the Attorney General, and one from the Department of Homeland Security, designated by the Secretary of Homeland Security (Program Executive Directors). The Program Executive Directors shall be delegated authority to approve, after coordination with each other, cyber operations conducted within the Program by personnel of their respective departments, except that they may not approve operations resulting in Critical Outcomes, as defined in section 4(b) of this memorandum. Cyber operations shall only be approved after coordination between the Program Executive Directors, and any resulting operational action will be exclusively conducted on behalf of and under the supervision of the Federal Government pursuant to the Federal Government's lawful authorities;

(ii) require Participating Companies to enter into contractual agreements with the Department of Justice or the Department of Homeland Security, which shall ensure that Participating Companies undergo rigorous vetting and that their performance adheres to the strict operational procedures outlined in the implementation guidance directed in section 3 of this memorandum; and

(iii) permit Participating Companies to enter into commercial agreements with:

(A) private sector entities, from which the Participating Companies may receive for the purpose of proposing responsive cyber operations to the NCC any threat information collected in the course of those entities' normal business activities; and

(B) Federal, State, local, tribal, and territorial agencies, which will identify CE-TCO threats to the Participating Companies in a manner that enables them to propose cyber operations to the NCC that address those threats.

(b) The NCC shall conduct all Program activities in accordance with the Constitution and all other applicable laws and international obligations of the United States, including section 1030 of title 18, United States Code, thereby ensuring that Participating Companies are acting under the control and oversight of the United States Government.

Trump v. Barbara is one of the Supreme Court's most consequential decisions in recent memory. Most landmark decisions evolved as part of a long-line of cases. Slaughter followed from Seila Law which followed from Justice Scalia's Morrison dissent. Dobbs followed from Casey which followed from Roe. Students for Fair Admission followed from Grutter which followed from Bakke. On rare occasion, the Supreme Court decides an issue in an open field. Heller was one such case where the Supreme Court had to establish an entire new area of jurisprudence. Barbara is another. Both cases were based on text, history, and tradition, and both cases split 5-4 on the constitutional question.

The challenge of teaching Barbara is significant. There are many difficult pedagogical choices. First, where should it even go in the curriculum? It doesn't really fit in with discussions of the Fourteenth Amendment for the Due Process or Equal Protection Clauses. Second, how much of the case should be included? The entire decision stretched nearly 200 pages, and the dissents were more than triple the length of the majority opinion. Third, which issues should be covered? The history sweeps throughout different eras: the English common law, antebellum America, the Reconstruction period, and the late nineteenth century. Fourth, is it still necessary to cover Wong Kim Ark? According to the Chief Justice, the majority opinion flowed naturally from that precedent; the dissent countered that Wong Kim Ark doe not control. Fifth, should the assignment forward-looking, as efforts to restrict birthright citizenship continue?

Randy Barnett and I struggled through these questions for some time. Ultimately, we reached an arrangement to divide the case into six excerpts that stretch about sixty pages to be taught over two classes. But if a professor so chooses, three excerpts, spanning thirty pages, can be taught in a single class. The decision of which excerpts to assign will turn on what the professor seeks to cover. And we placed the case at the end of our chapter on the Fourteenth Amendment, immediately after Plessy. That was the most logical spot to include the decision.

You can download the excerpt from our supplement here. We explain the breakdown as follows:

The decision in Barbara stretched nearly two-hundred pages. All of the opinions offer a deep historical analysis of citizenship stretching back to seventeenth century England. To make the case more digestible, we have split up Barbara into six discrete parts. The first presents the differing conceptions of the majority and dissenting Justices; the next three present different categories of evidence bearing on the meaning of "subject to the jurisdiction"; the fifth posits a statutory rather than constitutional outcome of the case.

The first excerpt presents the majority's and dissenters' rival conceptions of "subject to the jurisdiction." In particular, the majority opinion held that the Fourteenth Amendment adopted a modified version of the English common law rule of birthright citizenship. The dissenters argued that America charted a different course.

The second, third, and fourth excerpts consider different types of evidence of the original meaning of the Citizenship Clause: (a) analysis of the text; (b) the context provided by the citizenship clause in the Civil Rights Act of 1866; (c) the congressional debate over the citizenship clause of the Fourteenth Amendmentment; and (d) post- ratification practice by the executive branch.

The fifth excerpt provides a summary of the judiciary's interpretation of the Citizenship Clause — in particular the Supreme Court's decision in United States v. Wong Kim Ark (1898), a decision from three decades after ratification. Before this excerpt, we reproduce a portion of Wong Kim Ark, so that you can judge what the case decided before reading the Justices' competing characterizations of it.

In the sixth and final excerpt, Justice Kavanaugh takes an entirely different tack. On the one hand, he joins the other dissenters in rejecting the majority's interpretation of the Fourteenth Amendment. Justice Kavanaugh maintains that the President's executive orders violate the original meaning of the Constitution. But on the other hand, all agree that the Naturalization Clause empowers Congress to expand citizenship beyond the original meaning of the Citizenship Clause. Justice Kavanaugh contends that Congress did exactly this when it enacted the Immigration and Nationality Act of 1952. On his analysis, then Congress may cut back on its own expansion of citizenship by enacting a statute returning to the original meaning of the Fourteenth Amendment. No other Justice accepted Justice Kavanaugh's reading of the 1952 statute. We include Justice Thomas's brief rebuttal.

I welcome feedback and suggestions of how to teach the case.

An excerpt from Friday's concurrence in Guerra Quezada v. U.S., by Fifth Circuit Judge James Ho:

The Constitution vests Congress—not the judiciary—with the power to "establish an uniform Rule of Naturalization." And that basic principle dictates the correct result in this case. Federal courts may not confer U.S. citizenship on any individual who fails to comply with all of the conditions and requirements set forth in our naturalization laws—and that includes the requirement of physical presence in the United States.

Yet that's precisely what Plaintiffs [who were born outside the U.S. -EV] urge us to do here: They ask us to grant them citizenship, despite the fact that they plainly fail to comply with the physical presence requirement.

Plaintiffs theorize that they're exempt from the physical presence requirement, because the ancestor from whom they claim citizenship was "wrongly turned away at the border" due to "systemic barriers." They invoke a doctrine of constructive presence, based on a series of atextual rulings from the Board of Immigration Appeals.

But the constructive presence doctrine plainly conflicts with the governing statutory text. A number of our sister circuits have so held. And I'm grateful that our court today has agreed to so hold as well….

Some excerpts from Friday's longish decision by Judge Nora Barry Fischer (W.D. Pa.) in Bhattacharya v. Univ. of Pittsburgh:

Plaintiff, Chitrabhanu Bhattacharya, a tenured professor employed in the School of Business of Defendant, the University of Pittsburgh, was suspended without pay for a year, and terminated from the H.J. Zoffer endowed Chair, for "pervasive but not severe" violations of Defendant's sexual misconduct policy….

Plaintiff sued, claiming the University denied him due process, and the court agreed. The court concluded that a one-year suspension from a tenured position, and termination from a $50,000/year chair, were deprivations of "property" that required due process, and that such due process wasn't provided:

Plaintiff contends that Defendant failed to give him adequate notice of the charges against him, or an adequate explanation of Defendant's evidence. He avers, to the contrary, that Defendant provided a July 10, 2023 notice of charges whose "sole allegation was that between June 2022 and May 2023 he engaged in 'unwelcomed verbal advances of a sexual nature.'" The July 10 letter did not disclose any charges of unwanted touching; and (with a single exception) Plaintiff was provided no notice of such charges prior to or at the commencement of a July 27, 2023 interview with Defendant's investigator Laurel Gift, Esq. (in which Plaintiff first learned the specifics of multiple charges against him in the course of being questioned about them by Ms. Gift).

Although Defendant alleges that Plaintiff was "verbally informed of the allegations against him, including allegations of physical touching, during his paid suspension meeting on June 6, 2023," the paragraph of Defendant's [Statement of Material Facts] cited in support of this allegation does not mention physical touching. Ultimately, Ms. Gift concluded that Plaintiff had engaged in pervasive sexual harassment based upon some 16 "behaviors/comments" comprising nine alleged incidents of unwelcome physical conduct and 10 or 11 alleged incidents of verbal behavior, as summarized in a table in her Investigative Report. Crucially, Plaintiff alleges, and Defendant effectively does not deny, that he "had no notice" of nine specified "behaviors and comments listed in the table that he was not asked about during his July 27, 2023 interview or at any other time during the investigation." …

From Wednesday's decision in Phillips v. Parlade, by Judge Gloria Navarro (D. Nev.), where a litigant sued a state court judge in his case:

Plaintiff … argu[es] that judicial immunity does not apply in this matter because Defendant unlawfully delegated her official decision-making duties when she relied wholly on artificial intelligence to issue a judicial ruling, without any discretionary human thought, such that her actions cannot be considered a "judicial act." Plaintiff further argues that because Defendant delegated 100% of her decision-making duties, the rulings were in clear absence of all jurisdiction.

Judges enjoy absolute immunity from civil liability, even if their action was in error, done maliciously, or in excess of their authority. Judicial immunity applies unless the challenged conduct is accompanied by a clear absence of all jurisdiction or where the challenged conduct is not judicial in nature. Courts determine whether an act is judicial in nature by considering whether: (1) the act is a normal judicial function; (2) the events occurred in the judge's chambers; (3) the controversy centered around the case pending before the judge; and (4) the events at issue arose out of confrontation with the judge in his or her official capacity.

8/17/1988: Republican party nominates George H.W. Bush for President. He would appoint David Souter and Clarence Thomas to the Supreme Court.

President George H.W. Bush's appointees to the Supreme Court

I was extremely pleased to see that President Trump nominated Judge Lee Rudofsky of the Eastern District of Arkansas to a new vacancy on the Eighth Circuit. I have known Judge Rudofsky since his service as Arkansas Solicitor General nearly a decade ago. Judge Rudofsky is a committed originalist and a careful jurist. I echo the Wall Street Journal's strong editorial in support of Judge Rudofsky:

Over the past seven years, Judge Rudofsky has earned a reputation as a cerebral jurist willing to reconsider legal disputes from an originalist perspective. In 2022 he ruled that private parties can't sue under Section 2 of the Voting Rights Act, which was meant to be enforced by the government (Arkansas State Conference NAACP v. Arkansas Board of Apportionment). The left treated his reading of the law as sacrilege, but it was upheld on appeal.

This summer Judge Rudofsky dismissed the equal protection claim from a lawsuit challenging Arkansas's ban on critical-race theory in public schools (Walls v. Sanders). "A desire to protect students from 'left-wing indoctrination' is not tantamount to a discriminatory intent or purpose to adversely impact African American students," the judge wrote. "End of story."

I also appreciate President Trump's trend of elevating district court judges that he appointed to the court of appeals. Perhaps the best predictor of how a circuit judge will perform is past practice. Recently my friend Rob Luther flagged a number of Trump's district court picks from the past two years who should be on the short-list for any vacancy:

Let's review some of Warrington's best, young, District Court nominees/judges in: 1) Missouri (Divine, Benton, Bluestone, Lanahan); 2) Texas (Ganjei, Davis, Mitchell, Colmenero); 3) North Carolina (Orso, Rodriguez, Freeman, Bragdon); 4) Alabama (LaCour); 5) Kentucky (Meredith); 6) Montana (Smithgall Lane); 7) Kansas (Kuhlman); 8) Louisiana (St. John --- already elevated to the Fifth Circuit) and 9) Tennessee (Lea --- and ---today --- Adkisson --- one of Warrington's most active and trusted deputies).

Notably, no Court of Appeals seats are anticipated to open in most of these states anytime soon. In other words, many of these recently-minted District Judges are presumptively a blueprint of the next Republican President's Court of Appeals judges.

These nominations are among David Warrington's most important contributions. And I fully expect White House Counsel Will Scharf (who I've known since law school) to keep the momentum moving forward on nominations.

The Volokh Conspiracy

New in SCOTUSBlog: "The chief justice should share much of his power"

Fifth Circuit Rejects Energy Department Direct-to-Final Rule on Home Appliances

The East Wing and Justice Breyer's Concurrence in Van Orden v. Perry

New in Civitas: Curtail the Cult of Judicial Celebrity

Make Congress Legislate Again

"Comma Mischief from the Florida District Court of Appeal"

Today in Supreme Court History: August 18, 1920

Open Thread

Did The ACLU Make A Mistake By Seeking Certiorari in the Texas Ten Commandments Case?

Second Circuit Joins Courts That Recognize First Amendment "Right to Record Law Enforcement Activity in Public"

Trump Administration Announces New "Hacking Back" Program

How To Teach Trump v. Barbara?

Bloodright Citizenship (Citizenship by Descent): Who Decides?

U Pittsburgh Denied Due Process to Professor as to Sexual Harassment Allegations

Judge's Allegedly "Relying Wholly" on AI in Order Is Covered by Judicial Immunity, Court Rules

Today in Supreme Court History: August 17, 1988

Open Thread

Judge Rudofsky Will Be An Excellent Addition To the Eighth Circuit

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