The Volokh Conspiracy Archive

I continue to remain confounded by the Eleventh Circuit's Judicial Council decision to make Judge Betsy's reprimand private. (Yes, I know her name, but Judge Betsy has stuck.)

As I noted in a post quickly written before sundown yesterday, the Council identified a clear conflict of interest, but left the public unaware of which judge possesses that conflict. How can litigants possibly determine if a judge should be disqualified if they do not know the identity of the judge? I would propose a per se rule: whenever the Council identifies a clear conflict of interest, the reprimand must be public.

How could it be that not a single member of the Eleventh Circuit Judicial council felt compelled to dissent? Indeed, the Eleventh Circuit does not even publish the names of the members of the Council on the memorandum, other than Chief Judge Pryor. I've been unable to find the current members of the Council anywhere online. I found another order from August 7, 2025 that lists the following names:

WILLIAM PRYOR, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges; ALTONAGA, PROCTOR, HOWARD, GARDNER, BEAVERSTOCK, MARKS, BAKER, and WINSOR, Chief District Judges.*

I understand this membership may change every year, so I'm not sure which members remain.

I would gladly point to several distinguished members of the Fifth Circuit who took a different path.

In May 2024, the Fifth Circuit Judicial Council issued a private reprimand of a judge. The facts were serious:

A law enforcement agency filed a complaint against a United States district court judge. The complaint alleges that the subject judge revealed sensitive and confidential information regarding a law-enforcement public corruption investigation, which the judge learned in a sealed bench conference in a criminal case pending before him, to a family member. The complainant alleges that the information was eventually relayed to the target of the investigation, and that the disclosure allowed the target to attempt to obstruct the investigation and brought the investigation to an early end. The target of the investigation was convicted of obstruction of justice and other offenses.

But the "subject judge" was not outed because he was really, really sorry, and promised it would never happen again. (Sound familiar?)

In a letter to the Special Committee, the subject judge stated that he would never intentionally interfere with a law enforcement investigation and he understands the risks and consequences of disclosing confidential information about government investigations. He also committed to avoid such disclosures in the future. The Special Committee found the judge's representations to be sincere and that his commitment to avoid such disclosures in the future appropriately addresses their concerns raised by the complaint.

Nineteen members of the Judicial Council considered this case:

RICHMAN, Chief Judge, ELROD, STEWART, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, OLDHAM, WILSON, ZAINEY, JACKSON, FOOTE, MILLS, REEVES, KINKEADE, ROSENTHAL, GILSTRAP, and MOSES

But four members dissented, and would have disclosed the name of the "subject judge"

Pursuant to Rule 24(a)(2) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, it is ordered that the name of the subject judge not be disclosed. Circuit Judges Jennifer W. Elrod, Gregg J. Costa and James C. Ho and District Judge Carlton W. Reeves would publicly disclose the name of the Judge who is the subject of the complaint.

Good for Judges Elrod, Costa, Ho, and Reeves. And for those keeping score at home, these judges are on very different positions along the ideological spectrum, yet they all agree on this important ethical issue: people who misbehave should receive public scrutiny.

Other judges on the Council, who I know and respect, were silent. Why?

While I'm at it, let me raise another issue. It is unclear when the original complaint was filed. But this case stretched at least 2.5 years. A footnote lays out this timeline:

The judges named in the caption were members of the Judicial Council when this matter was considered and approved by the Council in November 2021, and they concurred in the decision. Judge Costa resigned from the Court effective August 31, 2022. The Judicial Council terms of Judges Willett, Ho, Duncan, Foote, and Rosenthal expired December 31, 2021.

It took nearly three years to settle this matter. In the interim, Judge Costa had resigned from the court, and other members were no longer participating on the Council. I favor a legislative reform to put a clock on settling these matters. The public needs to know about misconduct in a timely fashion.

In a motion filed yesterday, the Trump Administration indicated their intent to appeal the US Court of International Trade's order requiring payment of refunds to all those businesses who paid illegal tariffs imposed by Trump using the the International Emergency Economic Powers Act of 1977 (IEEPA). The IEEPA tariffs were invalidated by the Supreme Court, in a case I helped bring and litigate (along with the Liberty Justice Center, and others).

When Judge Eaton of the Court of International Trade (CIT) issued his order in March, I thought the administration might appeal on the grounds that it is inconsistent with the Supreme Court's ill-advised strictures against universal injunctions in Trump v. CASA, Inc. (decided last year). But, in the intervening nearly three-month period, the administration did not appeal, and indeed even set up a tariff refund system that has begun issuing payments to businesses victimized by the illegal tariffs. Victor Schwartz, owner of V.O.S. Selections, the lead client in our case, is one of those who have already gotten a refund.

The administration now plans to argue that only those businesses who filed lawsuits are entitled to recovery. To my mind, this situation illustrates why we need universal injunctions in some types of cases. We have many thousands of businesses and other importers who were forced to pay over $166 billion in illegal tariffs. Requiring each of them to file their own lawsuits would be a huge waste of time and money, and major burden for smaller, less well-funded organizations. It would also significantly delay some of the payments, leaving taxpayers on the hook for interest payments when the refunds are finally issued.

In a previous post about the refund issue, I noted additional reasons why Judge Eaton was right to issue a universal injunction here, most notably that Trump v. CASA only applies to injunctions issued under the Judiciary Act of 1789 and its successors, not to the separate 1980 jurisdictional statute from which the Court of International Trade gets its authority.

As I have also noted in previous posts, even complete refunds for illegally collected tariffs cannot fully remedy the harm they cause. Among other things, they cannot compensate consumers who had to pay higher prices, or businesses who lost sales or suffered from diminished investment and disrupted relationships with suppliers. These factors argue against staying injunctions against the collection of illegal tariffs, as the courts mistakenly did in our case (but the CIT recently ruled the other way in the ongoing Section 122 tariff case).

The government's demonstrated unwillingness to issue complete refunds to all the victims is another reason not to stay injunctions against the Section 122 tariffs, or any other illegal tariffs the executive might try to impose.

In the meantime, it is unclear how long this appeal will take to be resolved, and whether tariff refunds will continue in the meantime. I hope the the Federal Circuit and the Supreme Court (should the case get there) rule against the administration, and refuse to stay Judge Eaton's ruling while the litigation continues.

UPDATE: Technical procedural issues aside, the administration has a moral and legal duty to refund all the money, and it should not be hard to see why. As I noted in a previous post:

[T]he Trump Administration can easily resolve the refund issue simply by giving up this legal fight and issuing refunds to all those forced to pay the illegal tariffs. That would not be hard to do. The government has a record of all the payments and who made them. Calculating interest also is not difficult. The government could just make electronic payments or send checks to all those entitled to them.

Ultimately, the government illegally seized billions of dollars and therefore must pay them back. If I unjustly and illegally take your property, I have a duty to give it back, and pay interest. The same principle applies when the federal government does it. You don't have to be a legal theorist or a tariff expert to grasp this simple point.

NOTE: As I have previously noted, I am no longer a member of the V.O.S. Selections legal team, because my role ended after the Supreme Court issued its decision. Thus, I am not involved in the refund phase of the tariff litigation.

From Judge Sheri Polster Chappell (M.D. Fla.) yesterday in Shriteh v. NYP Holdings, Inc.:

This is a defamation case. Plaintiff operates seventeen vape retail stores in southwest Florida under the trademark name "the King of Vape." Christenson, writing for the New York Post, authored and published an article about Plaintiff titled, "Florida's Israel-hating 'King of Vape' Faces Bipartisan Crackdown on Sale of Illicit, Kid-Friendly Chinese E-cigs." The article allegedly included several false statements about Plaintiff resulting in damages….

When ruling on a prior motion to dismiss, the Court determined Plaintiff is a public figure subject to the actual malice standard. Why? Because Plaintiff's own allegations indicated he was a public figure.

Specifically, in the Second Amended Complaint (and each preceding complaint), Plaintiff alleged that prior to immigrating to the United States in 2000, he was "a respected journalist working in Gaza and reporting for the New York Times, Reuters, and CBS News, whose courageous efforts were recognized in 1993 when he received the John R. Aubuchon International Freedom of the Press Award." He also alleged he co-authored a book, Beyond Intifada, with "esteemed Israeli professors" which "has been recognized for its contribution to understanding the human impact of the Israeli-Palestinian conflict." And he repeatedly alleged that Defendants issued and made the defamatory statements with actual malice.

The Court held that these allegations indicate he is a public figure and, thus, he must allege Defendants acted with actual malice. And because Plaintiff failed to plausibly do so, the Court dismissed the Second-Amended Complaint with leave to amend to adequately allege actual malice.

Rather than comply with the Court's directive and sufficiently allege actual malice, Plaintiff tried to get clever. In the Third-Amended Complaint, Plaintiff removed all factual allegations the Court relied upon when determining Plaintiff is a public figure. And he now argues he does not need to allege actual malice because nothing in the Third Amended Complaint suggests he is a public figure. But such creative pleading will not fly.

From Thursday's decision in The Satanic Temple, Inc. v. Newsweek Digital LLC, written by Judge Alison Nathan and joined by Judges José Cabranes and Sarah Merriam:

In October 2021, Newsweek Digital LLC (Newsweek) published an article entitled "Orgies, Harassment, Fraud: Satanic Temple Rocked by Accusations, Lawsuit." The article, written by Washington-based journalist Julia Duin, details several internal disputes between members of The Satanic Temple (the Temple) and its leadership. The Satanic Temple responded by suing Newsweek for libel, claiming that many statements in the article were false and defamatory. By the time the case reached summary judgment, only one statement remained at issue: A quote from a former Satanic Temple member describing "[a]ccounts of sexual abuse being covered up in ways that were more than anecdotal" (the cover-up quote) within the organization.

On summary judgment, the district court concluded that no rational juror could find Newsweek either knew or entertained serious doubts that this quote was false prior to publication, and therefore it granted summary judgment in favor of the magazine…. [I]n recognition of New York's choice to offer greater protection to defamation defendants than the First Amendment requires, we affirm ….

New York's anti-SLAPP statute requires libel plaintiffs to show "actual malice" (i.e., knowing or reckless falsehood) when they sue over publicly made statements on matters of "public interest," whether or not the statements are about public figures. In this respect, it protects libel defendants more strongly than First Amendment law does. The court held that this provision of the anti-SLAPP statute is substantive rather than procedural, and thus applies in federal court. And it reasoned,

5/30/1865: Justice John Catron dies.

The "subject judge" in the Eleventh Circuit attended a partisan event for a District Attorney. That would create a conflict of interest for any matters affecting that District Attorney. The Memorandum focused at some length about a potential conflict with the boyfriend's police department, but there was little focus on a conflict with the District Attorney.

The Eleventh Circuit's decision to make the reprimand private is confounding on so many levels. Perhaps the most problematic aspect is that the memorandum identified a clear conflict of interest, but deprived the public from knowing which judge had that conflict of interest. How could a litigant who has a case before the subject judge determine whether there is a basis to disqualify?

This question is not a mere hypothetical. The United States sued Brad Raffensperger, the Georgia Secretary of State, for election records. The case was assigned to Judge Eleanor Ross. She, apparently, thought there was no conflict and continued to preside over the case. Then again, given the fact that this is a civil matter, it is unlikely that Judge Ross read any of the briefs or made any actual decisions. She may not even know the case was assigned to her!

Now, the United States has moved to disqualify Judge Ross--sort of.

The United States respectfully requests that Judge Eleanor Ross recuse herself from the above-captioned matter. The Eleventh Circuit's Judicial Council found that a "Subject Judge" committed judicial misconduct by attending a partisan and political event. That event reportedly honored Fulton County District Attorney Fani Willis, who rose to nationwide fame for her failed prosecution of President Trump for alleged crimes related to the 2020 election. Public reporting has identified the Subject Judge as Judge Ross. This reported misconduct necessitates Judge Ross's recusal because, if Judge Ross is indeed the Subject Judge, it creates the appearance of bias. A judge who attended a party celebrating the election of a Democrat best known for prosecuting 2 a Republican President for alleged election interference cannot then preside over a case concerning that President's efforts to ensure election integrity.

The Department of Justice can't even say with certainty that Judge Ross is the conflicted judge. How could they? The Eleventh Circuit Council deprived the public of that essential information because Judge Ross said she was really, really sorry.

I've given this issue some more thought. The Memorandum of the Eleventh Circuit included so many facts that it was obvious who the judge was. A friend said he fed the opinion into ChatGPT and it spit our Ross's name in a second. None of these facts were necessary to support what was a private reprimand. If the Council omitted the fact that the interns started right after the party, or simply said there was an event for an elected official (not a DA), it would have been much tougher to drill down the facts. Is it possible that the judges on the Council deliberately included so many identifying facts to quietly signal who the judge was, without saying so out loud? If so, this is not a move to be celebrated. The statute requires confidentiality for proceedings, and that mandate cannot be evaded with some clever dropping of facts. Indeed, if I was Judge Ross, I would be furious. The Council agreed to issue a private reprimand, and then released a report that outed her without much work.

This entire situation stinks many ways over.

I hope Judge Ross actually reads DOJ's brief and recuses. Or she could just do the honorable thing and resign. But her friend Fani Willis refused to step down and won re-election. So that may be the model.

I invited Professor Arthur Hellman, an emeritus professor at the University of Pittsburgh, to write a guest post on what should come next for Judge Ross. Professor Hellman is a leading expert on judicial ethics, and has testified before Congress on this important topic before.

District Judge Eleanor Ross of the Northern District of Georgia has now been "outed" as the "Subject Judge" of the judicial misconduct order issued by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (JC&D Committee) on May 22. The Committee agreed with the Judicial Council of the Eleventh Circuit that three actions by Judge Ross constituted misconduct under the Judicial Conduct and Disability Act of 1980 (JCDA). The Committee also agreed that the remedial measures ordered by the Judicial Council, the strongest of which was a private reprimand, were appropriate.

These remedial measures have understandably been sharply criticized as woefully inadequate, given the seriousness of two of the findings of misconduct. It is still possible that the Judicial Council or the JC&D Committee could reverse course, but on the assumption that that will not happen, I agree with Josh Blackman that the next step is consideration of the constitutional process of impeachment.

As it happens, one of the findings of misconduct by Judge Ross corresponds closely to conduct that was one basis for impeaching District Judge Samuel B. Kent in 2009. Specifically, the JC&D Committee (p. 5) summarized the third misconduct finding as follows: Judge Ross "made numerous, material false statements to the Chief Circuit Judge and the Chief District Judge when initially responding to the allegations." Compare that with the statement on the House floor by Rep. Jim Sensenbrenner, a member of the House Judiciary Task Force on Judicial Impeachment, explaining Article III of the articles of impeachment against Judge Kent (p. H7061): "Clearly, everyone would agree that a judge who lies to a judicial body investigating his conduct … is not fit to remain on the bench." The House unanimously agreed to Article III as well as three other articles of impeachment. Judge Kent resigned his judgeship and avoided a Senate trial that would have resulted in certain conviction and removal from office.

I testified as an expert witness at the hearing on the possible impeachment of Judge Kent, and my testimony was cited both in the House Report and on the House floor. I write here to explain why the Kent impeachment proceeding provides a solid foundation for introducing articles of impeachment against Judge Ross.

Like the Ross proceeding, the Kent impeachment involved a judge who lied in the hope of covering up sordid sexual conduct. But Judge Kent's conduct was much worse – on multiple occasions, he sexually assaulted court employees and abused his power as the sole Article III judge in the Galveston courthouse. Those sexual assaults provided the basis for two of the articles of impeachment. But the House voted separately on each article, and Task Force members who explained the articles to their colleagues gave considerable attention to the false statements.

Particularly noteworthy are the opening remarks of the Chairman of the House Judiciary Committee, Rep. John Conyers. He said (p. H7055):

"The committee is recommending impeachment not merely on the fact that the judge has pleaded guilty and has been sentenced to prison; rather, it is his conduct--making false statements to his fellow judges in an official inquiry and sexually assaulting courthouse personnel--that the committee has independently determined to constitute high crimes and misdemeanors warranting his impeachment and removal from office."

The Chairman of the Task Force, Rep. Adam Schiff, summarized my testimony (p. H7056) as "conclud[ing] that making false statements to fellow judges, as well as abusing his power as a Federal judge to sexually assault women, were independent grounds that would justify and warrant Judge Kent's impeachment and removal from office."

Rep. Sensenbrenner summarized my conclusions in similar language (p. 7060) before making the statement I have already quoted.

Members of the House also had the report of the Judiciary Committee on the impeachment articles. That report (p. 19) quoted my hearing testimony: "False testimony by a federal judge in a judicial misconduct proceeding falls easily within the realm of 'high crimes and misdemeanors' that warrant impeachment."

Note that neither the floor statements nor the House Report rely on the precise context of Judge Kent's false statements, nor do they specify that the statements were made under oath (as I assume they were).

So this is one of those rare instances in which the Judiciary has found that a sitting judge has engaged in conduct that is almost identical to conduct that the full House "has independently determined to constitute high crimes and misdemeanors warranting [a judge's] impeachment and removal from office." What should happen next? At the least, I agree with Fix the Court that the House Judiciary Committee should establish a bipartisan Task Force similar to the one that investigated the allegations against Judge Kent. The Task Force would conduct an inquiry into whether Judge Ross should be impeached. It would not consider any other matters.

I have not said anything here about the conduct that was the subject of Judge Ross's false statements. Although not an appalling abuse of power like Judge Kent's conduct, the characterization in the Eleventh Circuit Special Committee report (p. 16) might support a separate article of impeachment. But that is an issue for another blog post.

I repeat my call for the House to begin an impeachment inquiry of Judge Eleanor Ross. I also think the House should subpoena all records from the Eleventh Circuit Judicial Council to facilitate those proceedings. There may be some probative documents that explain why the Council chose to make the reprimand private. The primary basis of the impeachment proceeding would be Judge Ross's brazen lies to the Chief Judge of the District and the Chief Judge of the Circuit. She had sex with her paramour (who has been identified in the press) several times over the course of a year. This wasn't a one-time thing. She certainly had time to think through what she would do if she was caught. But she exhibited a complete lack of candor on multiple occasions. If any litigant ever pulled this sort of chicanery with federal investigators they would be indicted for making false statements. And if a suspect tried to destroy evidence (such as by cleaning a couch cushion) they would have been charged with obstruction of justice. But Judge Ross was only given a slap on the wrist. We need to figure our more.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Today, Liberalism.Org published my new article "Liberalism's Uneasy Relationshp with Democracy." Here's an excerpt:

Liberalism—defined as the political philosophy that prioritizes individual freedom and human happiness—has always had an equivocal relationship with democracy. Democratic governments generally feature much greater liberty and happiness than other types of regimes. Liberals should resist the temptation to embrace authoritarianism.

But there are also multiple ways in which democracy can often threaten liberty and human welfare. These dangers include the tyranny of the majority and widespread voter ignorance. Democracy can also be a threat to its own perpetuation, by bringing to power authoritarian political movements. These are all longstanding problems. But recent events demonstrate their continuing—and in some cases growing—significance. Liberals need to acknowledge their gravity and more aggressively pursue various potential solutions. These include limiting and decentralizing government and possibly measures to make it more difficult for illiberal anti-democratic movements to take power.

The rest of the article outlines these dangers and potential measures to mitigate them in greater detail. I build in part on my previous writings, such as my book Democracy and Political Ignorance: Why Smaller Government is Smarter, my more recent article "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," and writings on the need to constrain emergency powers.

My previous Liberalism.Org essay addressed the issue of how "Immigration Restrictions Restrict Americans' Liberties." I will continue to be a regular contributor to the site.

Liberalism.Org is a new initiative of the Institute for Humane Studies, led by Jason Kuznicki, formerly of the Cato Institute. Its purpose is to explore, promote, and revitalize liberal political thought in an era where illiberal and anti-liberal movements of various types are on the rise. Jason provides an overview of the project and its purposes here.

The other regular contributors are prominent libertarian or libertarian-leaning thinkers (though some may prefer terms like "classical liberal"). They include Radley Balko (leading expert on criminal law and law enforcement issues), Janet Bufton (prominent Canadian classical liberal thinker and political commentator), Prof. Michael Munger (Duke University), Sarah Skwire (Liberty Fund), and Prof. Matt Zwolinski (U of San Diego, coauthor of The Individualists: Radical, Reactionaries, and the Struggle for the Soul of Libertarianism). I look forward to continuing to work with this impressive group!

From Judge Annemarie Carney Axon (N.D. Ala.) in yesterday's Spears v. N.Y. Times Co.:

Plaintiff Kai Spears was a walk-on basketball player for The University of Alabama men's basketball team and developed close friendships with other teammates, including Brandon Miller. In the early hours of the morning on January 15, 2023, Mr. Spears and Mr. Miller visited Moe's Original BBQ in Tuscaloosa, Alabama.

Unbeknownst to Mr. Spears, another teammate—Darius Miles—asked Mr. Miller to bring Mr. Miles a gun that he had left in Mr. Miller's car. So Mr. Miller headed to Mr. Miles, and Mr. Spears started back to his dorm. A few minutes later, gunfire erupted on the Strip, and Michael Davis, Mr. Miles's childhood friend, shot and killed Jamea Harris using the gun that Mr. Miller had brought to Mr. Miles.

{Two months later, the Times published an article, titled "A Fourth Alabama Player Was at a Deadly Shooting, in a Car Hit by Bullets." The opening line said that the "fatal January shooting that involved players from the University of Alabama basketball team could have been even more deadly, as surveillance video showed that two players were in a car struck by bullets in the crossfire."

It added that Mr. Spears was in the car with Mr. Miller at the time of the shooting and that Mr. Miles had asked Mr. Miller to bring Mr. Miles's gun to the scene. The story said that the University had tried to "distance itself from the shooting" and keep "quiet" other players' involvement. The article then discussed widespread criticism that Mr. Miller and the University received when Mr. Miller continued to play after the shooting.}

The statements about Mr. Spears were false, and this lawsuit followed….

The court concluded that Spears has the burden of showing "that the allegedly defamatory statements were false in all material respects," but it concluded that he had introduced enough evidence of that to go to the jury:

In my last post on the VC, I would like to say a bit about so-called "hate speech" (which I address in the last chapter of my book, arguing that it should be constitutionally protected in public schools). I say "so-called," because it might be better to drop the term "hate speech" insofar as it implies an extreme aversion to a particular group. However, in this post, I will use the term for convenience.

No single legal definition of hate speech exists. The term is notoriously difficult to define with sufficient precision. As a result, those who support anti-hate speech codes on college campuses, for example, must say more about what to do about invariable vagueness and overbreadth problems than they usually do. That hate speech is constitutionally protected in the U.S. has not stopped university administrators to try to make it much harder for students to express certain ideas with impunity.

I doubt that any anti-hate speech code at a public school could be formulated and applied in a way that would not ban or chill speech that ought to be constitutionally protected. Such codes would be ripe for overreach and misapplication, apart from allowing viewpoint discrimination. It is important to understand that even if a particular word—like a racial slur—has little, if any free speech value most of the time, the fundamental problem is that if the government can ban that word, then it also has the authority to ban other words, regardless of the context and the intent of the speaker or writer.

A short excerpt from the long opinion in Does v. Democratic People's Republic of N. Korea, decided yesterday by Judge Timothy Kelly (D.D.C.):

In January 1968, North Korea chased down and captured the U.S.S. Pueblo in international waters, killing one of the ship's crew and taking the rest hostage. For the next eleven months, North Korea beat, starved, interrogated, and tortured the survivors to extract false confessions from them. Before the year was up, North Korea got the admission and the apology that it wanted from the United States for supposedly violating North Korean territorial waters. And the hostages, having served their purpose, were released.

This case is the latest of several in which some of the Pueblo's crew members, their families, and their estates sued North Korea under the Foreign Sovereign Immunities Act and state tort law. North Korea failed to appear, and Plaintiffs moved for default judgment. For the reasons below, the Court will grant their motion and award long-overdue compensation to these victims of state-sponsored terrorism.

As to the statute of limitations, the opinion says this:

From H.C. v. Contreras, decided yesterday by California Court of Appeal Justice Mark Snauffer, joined by Justices Bert Levy and Donald Franson:

Bethany G. sought a protective order protecting H. C., her minor son, from H. C.'s father, Rudy C. Numerous witnesses testified at a hotly contested hearing after which the parties filed closing briefs. Rudy's brief, submitted by counsel, contained fictitious caselaw and misstated the law. Counsel for Bethany directly and swiftly pointed the errors out to the trial court.

The trial court declined to issue the requested order, but its ruling erroneously relied on a nonexistent case and a serious legal misstatement—the very same shortcomings Bethany had already noted. As explained below, we reverse for further proceedings….

After the evidence was presented, but before the trial court ruled, Rudy's counsel filed a closing brief. Most pertinent here, the brief contains the following portions:

The event is free, but you need to register at the event page. From the page:

On June 2 at the Library of Congress, Eugene Volokh, one of the country's preeminent First Amendment scholars and a Federalist Society member; Emerson Sykes, a staff attorney at the ACLU who focuses on free speech; and Mary Anne Franks, professor at the George Washington University Law School and a leading thinker on the relationship between free expression and equality—in conversation with moderator David Lat, founder of Above the Law and Original Jurisdiction—will dig into the questions that the headlines have missed.

If you're in D.C. Tuesday, please do come by; should be a lot of fun.

Following up my earlier post about the truly outrageous so-called "Settlement Agreement" between the IRS and our President, thirty-five (!) retired federal judges have submitted a "Motion for Relief from Judgment or Order," calling that Agreement "the product of collusion and a fraud on the Court." Accordingly, they ask the Court to use its power under FRCP 60 to set aside its earlier judgment dismissing the case, re-open the case, and "commence an inquiry into whether the Court was deceived, including with respect to the existence of an underlying case or controversy and any purported arms-length negotiations undertaken to resolve it."

The purported "settlement" that the parties never placed before this Court raises profound questions about the parties' candor toward the Court and manipulation of the judicial system, which threatens to undermine confidence in the administration of justice. As former judges, Movants have an interest in bringing to the Court's attention these concerns and the availability of relief under Rule 60 of the Federal Rules of Civil Procedure, which allows the Court to set aside the judgment and reopen the case. . . .

The Court was deceived. Despite Plaintiffs not having mentioned any settlement in their Notice, the Department of Justice ("DOJ") publicly announced a "settlement" of this action shortly after Plaintiffs filed their dismissal. That "settlement" commandeers the contrived sum of $1.776 billion from the United States Treasury, to be handed out to recipients chosen by a commission effectively controlled by the President. The DOJ is calling this the "Anti-Weaponization Fund." The day after the "settlement" containing the Anti-Weaponization Fund was announced, the DOJ announced that it had subsequently agreed to release "any and all claims . . . whether presently known or unknown, that—as of the Effective Date of the Settlement Agreement—have been or could have been asserted by [the United States] against any of the Plaintiffs or related or affiliated individuals . . . or parties . . . by reason of, with respect to, in connection with, or which arise out of . . . any matters currently pending or that could be pending . . . before Defendants or other agencies or departments." The plain language of this extremely broad provision sweeps in Internal Revenue Service ("IRS") audits of Plaintiffs' tax returns and all other claims the United States might have against Plaintiffs—extraordinary benefits for which no consideration was provided to the government.

Movants submit that this "settlement" is a product of collusion and is itself a fraud on the Court. But the Court need not decide that ultimate issue now. At this juncture, Movants request only that the Court exercise its powers under Rule 60 to set aside its order ending the case based upon Plaintiffs' voluntary dismissal. That will allow the Court to commence an inquiry into commence an inquiry into whether the Court was deceived, including with respect to the existence of an underlying case or controversy and any purported arms-length negotiations undertaken to resolve it.

As set forth below, this Court has the power under Rule 60 to determine whether there has been a "corruption of the judicial process itself," and may set aside a judgment and reopen a case under Rule 60(d)(3), as well as other subsections of Rule 60, whether by this motion or sua sponte. Doing so will allow judicial review of the extraordinary—and historically unprecedented—circumstances presented by this litigation and by the collusive "settlement" that invokes this litigation as the legal justification for its terms. [Emphases not really necessary, but added anyway]

To be continued (I hope). If this "Settlement" is allowed to stand, we have truly lost our way.

From Judge Mark Kearney (E.D. Pa.) yesterday in Doe v. Trustees of the Univ. of Penn.(for more on the quote in the title of this post, see here):

A white non-Jewish male sues the University of Pennsylvania for denying him admission to its Wharton business school master's program because he is not Jewish…. He claims widespread animus in the business community to non-Jewish men and disclosing his name will subject him to physical harm because of "Jewish agencies" ability to harm non-Jewish men. He does not show reasonable fear of severe harm resulting from litigating without a pseudonym. And even if he did, his reasonable fear of severe harm does not outweigh the public's interest in open litigation examining his claims an internationally known business school denies admission of white men because they are not Jewish….

Mr. Doe identifies three harms if he discloses his name: (1) "permanent professional disbarment"; (2) "social stigma"; and (3) "threat of physical violence." Mr. Doe claims in his unidentified "industry," the human resources department are "led and disproportionately staffed by Jewish women" who "already discriminate against non-Jewish White males such as [himself.]" He alleges twenty-five of his co-workers with "Jewish names" received early promotions.

He further argues "many high level managers at large employers have publicly stated their organizations [sic] policies prohibit the hiring of White males;" "some" of these unidentified employers "implement policies" to allow for the hiring of a white male only if an "'exception' were granted," and to Mr. Doe's knowledge these "exceptions" are "given exclusively to Jews;" and the "willingness of [Human Relations] Jews to discriminate against non-Jewish White males" makes it reasonable to conclude he "would be completely debarred from traditional employment" if his name is revealed in his lawsuit against the University for "favoring treatment of Jews" in admissions. Mr. Doe also alleges he "considered establishing his own firm as a work-around to discrimination," but he would need an investment from venture capitalists which are "run by [Venture Capitalist] Jews" who "usually don't invest in firms owned by non-Jewish White males."

Mr. Doe suggests a threat of physical violence to him because Israel's intelligence agency Mossad murdered President John F. Kennedy nearly sixty-three years ago (and "possibly [President Kennedy's] family members") to obstruct President Kennedy's opposition to the interests of "Jewish Supremacists." He claims Mossad is "still active and apparently very powerful" in the United States because of some nebulous connection to the Jeffrey Epstein scandal. Mr. Doe argues litigating under a pseudonym would deter "Jewish agencies" from "murdering" him and he "may have already survived an assassination attempt" through a romantic liaison with a Jewish woman who allegedly attempted to poison him….

5/29/1917: President John F. Kennedy's birthday. He would appoint two Justices to the Supreme Court: Byron R. White and Arthur J. Goldberg.

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