Open Thread
What’s on your mind?
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The Logic of Voting for a Lesser Evil - and Other Writings on the Ethics of Voting
Compendium of links to some of my writings on the morality of voting.
Tomorrow is election day. And - to put it mildly many of the options before voters are far from wonderful. In all too many races, the candidates with a realistic chance of winning are all bad. This situation, like other recent elections, raises difficult questions about such issues as whether people have a duty to vote, whether it is permissible to vote for a badly flawed candidate if the alternative is even worse, and how to balance competing issues in making voting decisions.
I've written about these kinds of issues in some detail, previously, and this post links and and summarizes some of those writings. This is not a post about which candidate you should vote for in any given race. I've already written a post about why - in most cases - the Democrats are the lesser evil in races for federal offices this year (state and local elections are often a different matter). I've also written about why libertarians (like me) should seek political alliances with "abundance liberals" and why the previous "fusionist" alliance with conservatives probably cannot and should not be revived in the near future.
This post doesn't argue for any particular voting choice, but rather compiles pieces about how we should make such decisions in general - and whether we should make them at all. Much of the post is adapted from a similar one I put up in 2024. Unless otherwise noted, these pieces were all published right here at the VC blog:
1. "The Logic of Voting for a Lesser Evil"
This post was inspired by the 2016 election, but almost all of it remains relevant today. In it, I explain why it is both permissible and desirable to vote for the lesser evil in an election where all of the viable options are bad. I address a variety of counterarguments, including claims that voting for a lesser evil makes you morally complicit in that candidate's wrongdoing, arguments that it's better to cast a "protest vote" for a candidate that has no chance of winning, arguments based on the very low probability that your vote will be decisive, and more. Here's a brief excerpt:
Imagine an election where the only options are Queen Cersei from Game of Thrones, and Sauron, the Dark Lord from Tolkien's Lord of the Rings. If Cersei wins, she will kill many innocent people, and oppress others. But she will leave much of the population more or less alone (as long as they don't openly oppose her or threaten her family in any way). If Sauron wins, he will kill far more innocent people, and make the survivors his slaves.
You can instead cast a protest vote for a vastly better alternative, such as Gandalf….. But, by assumption, these are purely symbolic options, because they have zero chance of prevailing. If the protest voter would otherwise have backed Cersei, the net effect of his decision to protest is to increase the likelihood of the worst possible outcome: the triumph of Sauron.
Under those circumstances, it seems clear that a person who ensures a Cersei victory has done a good deed. He or she will have saved large numbers of people from slavery or death, even though the Cersei regime would be a deeply unjust one.
The Cersei-Sauron hypothetical was obviously inspired by the contest between Trump and Hillary Clinton, and is an exaggerated version of that tradeoff. But I think it works for many other elections, as well - including many of the choices voters face this year.
Notice how my logic is different from that of those who say you can only vote for a candidate if he or she meets some minimal threshold of character or good policy. On my approach, it is morally justifiable to vote for almost any candidate - even a cruel despot like Cersei - so long as the only feasible alternatives are even worse.
Canadian columnist John Robson responded to my piece in the National Post, and I, in turn, posted a rejoinder.
2. "Justifying a Moral Duty to Vote is a Lot Harder than You Might Think."
Many people, including some political theorists, believe we have a moral duty to vote. I disagree. Indeed, I think - in many cases - it's better if you don't vote, especially if ignorance and bias make it likely you will make a bad decision. Casting a ballot motivated by ignorance and bias is often worse than not voting at all.
3."Is there a Moral Duty to Vote in an Election Where the Stakes are Unusually High?"
Even if there is no general duty to vote, perhaps we are morally required to do so in situations where the stakes of an election are unusually high. In this post, I explain why I disagree - at least with respect to most voters. There is, however, a limited kernel of truth in this argument. An excerpt:
There is a kernel of truth to the claim that you have a duty to vote if the stakes are high enough. But the resulting moral duty applies far less often than advocates of the argument tend to assume. And the same reasoning actually implies many people have a moral duty not to vote.
Let's start with the kernel of truth. Imagine there's an election for a powerful political office that pits Gandalf (the benevolent wizard in J.R.R. Tolkien's Lord of the Rings) against Sauron, the despotic dark lord from the same story. If Sauron prevails, millions of people will die or be enslaved, while Gandalf would rule justly if he manages to win. And all you have to do to ensure Gandalf's victory is check his name on a ballot. If you do so, Gandalf wins; if not, Sauron does.
In this scenario, it seems like you have a moral duty to vote for Gandalf, at least barring some kind of extraordinary exigent circumstance. In a real election, of course, the odds that your vote will make a difference are far smaller than in this stylized example….
However, a large enough difference between the two candidates could potentially justify a duty to vote for the "right" candidate, even if the odds of casting a decisive ballot are very low….
But notice that the duty in question is not an obligation to participate in the process for its own sake. It's a duty to help good triumph over evil in a situation where you can do so at little or no cost. If you have a moral duty to vote for Gandalf in these types of scenarios, it follows that you also have a moral duty not to vote for Sauron. Indeed, the person who votes for Sauron is more worthy of condemnation than the one who merely abstains. The former is actively helping evil win, while the latter "merely" chooses not to help stop it.
While Gandalf supporters may have a duty to vote, Sauron supporters actually have a duty to abstain from doing so. Ideally, they should stop supporting Sauron entirely. But they at least should not take any actions that increase the likelihood of his victory.
All of the above analysis assumes that the voter knows which candidate is superior and to what degree. But, in reality, we have widespread political ignorance, and most voters often don't even know very basic facts about how government and politics work. Most are also highly biased in their evaluation of the information they do know….
Unless and until a voter becomes well-informed about the issues and at least reasonably objective in his or her evaluation of political information, she has good reason to question her judgment about which candidate is superior, much less by how much. Thus, she cannot conclude she has a duty to vote to help the "right" side win. She may instead have a presumptive duty to abstain from voting until she meets at least some minimal threshold of political knowledge….
Later in this piece, I note some possible exceptions to situations to the presumptive duty to abstain; there are unusual situations where ignorant voting really is better than no voting, and even unusual situations where ignorance leads to better decisions than knowledge (I expand on the latter possibility in greater detail in Chapter 2 of my book Democracy and Political Ignorance). I also address some other caveats and counterarguments.
Some steps you can take to be a better voter, building on a helpful article in Scientific American. I think a wide range of people can do these things. You don't have to be an academic or policy expert to undertake the task. But I am skeptical that more than a small fraction of the electorate will ever be willing to put in the time and effort.
5. "Suffer the Little Children to Vote"
In this post, I make a tentative argument for letting children vote, so long as they show they have attained a level of political knowledge as high as that of the average adult voter -which is not that high a standard! I expanded on the idea here. I do note the crucial caveat that it may not be feasible to do this, because it's possible government can't be trusted to come up with an objective knowledge test for the children (though we do in fact impose such a test on immigrants seeking to become US citizens). Letting knowledgeable children vote is one of my least popular ideas (which is saying no little, given how many other unpopular views I hold!). But I remain unrepentant about it. My 11-year-old daughter is one of the relatively few fans of this policy.
My proposal should be differentiated from the idea of letting parents cast votes on behalf of their children, endorsed by Republican VP candidate J.D. Vance, among others.
6. "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," in Hana Samaržija and Quassim Cassam, eds. The Epistemology of Democracy (Routledge, 2023).
Many of the most serious flaws of voting arise from the fact that most voters tend to be ignorant about government public policy, and highly biased in their evaluation of the political information they do know. In this article, I go over a range of possible strategies for mitigating this problem. Here's the abstract:
There is broad, though not universal, agreement that widespread voter ignorance and irrational evaluation of evidence are serious threats to democracy. But there is deep disagreement over strategies for mitigating the danger. "Top-down" approaches, such as epistocracy and lodging more authority in the hands of experts, seek to mitigate ignorance by concentrating more political power in the hands of the more knowledgeable segments of the population. By contrast, "bottom-up" approaches seek to either raise the political competence of the general public or empower ordinary people in ways that give them better incentives to make good decisions than conventional ballot-box voting does. Examples of bottom-up strategies include increasing voter knowledge through education, various "sortition" proposals, and also shifting more decisions to institutions where citizens can "vote with their feet."
This chapter surveys and critiques a range of both top-down and bottom-up strategies. I conclude that top-down strategies have systematic flaws that severely limit their potential. While they should not be categorically rejected, we should be wary of adopting them on a large scale. Bottom-up strategies have significant limitations of their own. But expanding foot voting opportunities holds more promise than any other currently available option. The idea of paying voters to increase their knowledge also deserves serious consideration.
I expand upon the foot-voting approach to mitigating political ignorance in more detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. I also recently summarized and extended my ideas on this score in "Strengthen Democracy by Empowering People to Vote with their Feet," an article for the NYU Democracy Project, reprinted as a book chapter in Democracy's Challenges: I00 Ideas, (Robert Bauer, Samuel Issacharoff, Richard Pildes, and Rosa Po, eds., NYU Press, 2026).
How to decide which issues to prioritize over others. Not solely about voting. But highly relevant to voting decisions.
8. "If You Don't Vote, You Still Have Every Right to Complain."
Feeling down after considering the above? This piece might make you slightly happier; even if you don't vote, you are justified in criticizing the policies of the winners! I would add that the same logic shows that, if you vote for the winner on the grounds that she is a lesser evil, you are still justified in complaining about her policies. Vote for Cersei over Sauron, when necessary. But then condemn the evil she does. Just make sure not to be at the wrong place at the wrong time when she decides to purge her critics.
Full Court Denies DOJ Petition In California Election Case In About 7 Hours, No Reply Needed
Justice Kagan likely orchestrated the shadow execution before the petition was even filed.
I think we have seen a new record for speed on the emergency docket. Today, shortly before noon, the Solicitor General filed an emergency application in the California election law case. The brief was about 20 pages long. Circuit Justice never even bothered calling for a response. Shortly before 7:00, the petition was referred to the full Court, and was denied.
Rick Hasen calls it a mercy killing. I think shadow execution is more appropriate.
Indeed, this ruling was likely orchestrated by Circuit Justice Kagan before the petition was even filed. The government's case was dead on arrival. And Kagan spared California the fate that befell Missouri, which had to file a pointless brief that no one would read.
Will Alito or Thomas Retire if Democrats Win the Senate?
While the Ginsburg example looms in the background, the answer depends on what values the justices are trying to maximize
Will Justice Thomas and/or Alito retire if Democrats take the Senate in tomorrow's election, hoping that the lame-duck Senate will confirm a nominee chosen by President Trump? In recent conversations, I've heard increasing speculation and support for this possibility among some judicial conservatives. And I hear corresponding worry among progressives.
Both sides think the election may create a brief, very consequential window for a Republican Senate to replace two aging justices. The GOP Senate would have to confirm their replacements before January 3, 2027. There would be political costs and procedural obstacles, but it could be done. Justice Barrett was confirmed by a Republican Senate within a month of her nomination on the eve of the 2020 election.
The rationale for retirement is straightforward: Don't get trapped in the actuarial straitjacket Justice Ginsburg found herself in when she failed to retire in 2014 (when she was 81). That was her last clear chance of retiring with a Democratic president and Senate.
Thomas is 78. Alito is 76. Neither has disclosed a serious health risk, and both have indicated they have no plans to retire this year.
But if Democrats take the Senate (prediction markets currently give them a 75% chance to do so) and if they play the sort of constitutional hardball over Supreme Court confirmations that Republicans have played in the past ten years, there's very little chance the new Senate would confirm any likely Trump nominee. Democrats needn't reject every possible Trump nominee--just those who would be likely to satisfy the conservative legal movement. So the president might not get another Supreme Court appointment before he leaves in January 2029. Calls for the eldest conservative justices to retire would surely intensify.
It's worse than that for judicial conservatives. If a Democrat wins the White House in 2028, the next opportunity for a Republican president to make an appointment might not come until January 2033. There are some important "ifs" packed in there, but they are well within the range of reasonable possibilities.
In January 2033, Thomas would be 84, Alito 82. Even assuming both remain healthy and active, that's a substantial amount of succession risk for conservatives to accept when they could potentially lock in their seats for another generation this winter.
A rational justice who prioritizes preserving his seat for something close to his judicial philosophy might well retire. But a rational justice might prioritize (or at least see himself as prioritizing) other things: continued service, jurisprudential influence, institutional reputation, and personal legacy. Justices do not see themselves simply as strategic agents of the political coalitions that produced their appointments.
For purposes of predicting what Alito and Thomas might do, the Ginsburg example cuts both ways. It illustrates the risks of refusing to retire when one's political allies control the presidency and Senate. At the same time, it illustrates the limits of assuming justices will subordinate their personal preferences regarding tenure, legacy, and judicial responsibility to the interests of that coalition.
Like Ginsburg, Thomas and Alito would probably resist renewed and intense calls for their immediate retirement. They might figure that:
(1) one of those additional "ifs" won't come to pass—that Republicans will retake the Senate in '28 or retain the White House;
(2) in any event, they'll outlast whatever period of Democratic control ensues (i.e., the mirror of the Ginsburg gamble);
(3) they've all but publicly committed themselves to staying on for now (Justice Alito says he will stay on through this term and Justice Thomas may want to pass Justice Douglas' record tenure, which would happen in May 2028); and/or
(4) a lame-duck retirement immediately after an electoral defeat would be seen as an unseemly concession to the sort of overtly political behavior by judges they've long publicly decried.
Progressives may dismiss this last consideration. Many critics see Thomas and Alito as essentially unscrupulous political actors who wouldn't hesitate to time their retirements in order to preserve another generation of conservative control. But that assumes they understand their own judicial behavior the way their harshest critics understand it. I doubt they do.
They may regard voting in accordance with their understanding of the Constitution—even when the results consistently advance conservative policy objectives—as fundamentally different from announcing their retirements right after voters have elected a Democratic Senate. On this view, they might think the former is acceptable judicial behavior while the latter is not.
On the other hand, they could see strategic retirements, which are hardly unprecedented among justices, as distinguishable from the politicized judging they've denounced. Choosing the circumstances and timing of retirement is compatible with their judicial philosophies. And many conservatives might well applaud their retirement decisions as responsible constitutional stewardship.
But a retirement announced immediately after the election to permit the outgoing Republican majority to confirm a successor, would be unusually conspicuous. Whatever their views about strategic retirement as a general matter, I'm guessing Thomas and Alito would regard the reputation cost to the Court—and to themselves—under these circumstances as too high.
The irony is that Ginsburg's cautionary example supplies the strongest argument for Thomas and Alito to retire, but also a good reason to doubt they actually will. Justices may be political actors in some respects, but they are not necessarily the political instruments their allies wish them to be.
Journal of Free Speech Law: "Protecting the Thinking Process in Human-AI Interaction: The Forum Interstitiale Between Thought and Expression," by Caroline De Cock
The article is here; the Abstract:
International human rights law protects freedom of thought absolutely and freedom of expression subject to limitations. The relevant established doctrine calls the two sides of that line the forum internum and the forum externum. However, the line was drawn when thinking left no trace, and with current technological developments, it no longer holds.
Within the span of six months in 2026, a United States court ordered that 20 million ChatGPT conversations be provided as evidence under ordinary discovery rules, two federal courts reached opposite conclusions on whether a litigant's exchanges with a chatbot were protected at all, and the Supreme Court held that location records kept by a third party remain constitutionally protected. Records of where a person's body had been were protected, while records of how their mind worked were not.
The law currently has no category for the search query, the exploratory prompt, the unfinished draft, or the confession made to a machine. The U.S. answer has been a quarrel about privilege: Courts refuse to grant AI exchanges between users and chatbots protection because the machine is not a professional, like a doctor or a lawyer, and the industry asks for a new privilege because it claims the model behaves like one. Both the courts and the industry assume that protection depends on what the person is using, i.e., what the machine is. This Article argues that it depends on what the person who uses the machine is doing.
Prof. Francesca Gino's Contract and Discrimination Claims Against Harvard Business School Dismissed
"In 2021, allegations were brought against [Gino] claiming that she committed research misconduct, which triggered an approximately 18-month long inquiry and investigation by HBS administrators and faculty," and eventually to her tenure being revoked and her being fired.
Some short excerpts from the long decision by Judge Myong Joun (D. Mass.) today in Gino v. President & Fellows of Harvard College:
Plaintiff Francesca Gino is a former tenured professor at Harvard Business School ("HBS") and brings this action against Defendants President and Fellows of Harvard College ("Harvard") and Defendant Srikant Datar ("Dean Datar"). In 2021, allegations were brought against Plaintiff claiming that she committed research misconduct, which triggered an approximately 18-month long inquiry and investigation by HBS administrators and faculty. In March 2023, the investigation committee found, by a preponderance of the evidence, that Plaintiff committed research misconduct…. In May 2025, Harvard revoked Plaintiff's tenure and terminated her appointment with HBS.
Plaintiff claims that Harvard breached its obligations under various policies and procedures governing the investigation of the research misconduct allegations and the tenure revocation proceedings. Specifically, Plaintiff argues that a jury could find that Harvard deviated from its policies and procedures such that Harvard could be found in breach of those agreements, and that Harvard did not carry its burden of proving research misconduct or grave misconduct. Plaintiff also alleges that the proceedings and related findings, including the adverse employment actions taken against her, were pretext for gender discrimination….
In approximately June of 2021, three professors—Leif Nelson, Joseph Simmons, and Uri Simonsohn, who publish under the name "Data Colada"—presented their allegations against Gino to HBS Professor Max Bazerman during a 90-minute Zoom call…. [Eventually, a Harvard] Investigation Committee issued its 41-page Final Report with nearly 1,200 pages of supporting documents, finding by a preponderance of the evidence that Plaintiff committed research misconduct intentionally, knowingly, or recklessly with regard to all five allegations.
The Investigation Committee's Final Report considered and rejected Plaintiff's contentions that unnamed "bad actors," research assistants, or other co-authors might have instead been responsible for the data anomalies. The Investigation Committee concluded that Plaintiff's "repeated and strenuous argument for a scenario of data falsification by bad actors across four different studies," involving "different co-authors, different journals, different lab personnel, and different home institutions" and spanning eight years, was "highly implausible." The Investigation Committee recommended corrections of the scientific record, putting Plaintiff on unpaid leave, and initiation of steps leading to termination of employment….
The court granted summary judgment on all these issues, in Harvard's favor. Here's an excerpt of the discussion of her breach of contract claims:
Fifth Circuit Will Decide En Banc Whether § 230 Preempts Texas Mandates on Social Media Platforms
The Fifth Circuit ordered en banc rehearing Wednesday; here's an excerpt from the long panel opinion (Computer & Comm. Industry Ass'n v. Paxton), decided in July by Fifth Circuit Judges Dana Douglas and Patrick Higginbotham (I posted about the case then):
[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." …
My New Dispatch Article on the Legal Case Against Trump's Section 338 Tariffs Targeting Canadian Imports
It explains why the Section 338 tariffs are illegal, and part of a broader pattern of tariff power grabs.
Today, The Dispatch published my new article on the case challenging Trump's Section 338 tariffs against Canada. Here is an excerpt:
Courts have already ruled against two avenues President Donald Trump used to impose his tariff regime. That hasn't stopped his efforts to attempt to deploy obscure or outdated trade law provisions to justify new import levies.
His latest tool is the Smoot-Hawley Tariff Act of 1930, the notorious legislation that gravely exacerbated the Great Depression.
Section 338 of that law is the basis of Trump's massive 50 percent tariffs on a variety of Canadian imports, including motor vehicles, furniture, dairy products, and more. On October 20, Gellert Global Group Corp., a major food importer and producer based in New Jersey, filed the first lawsuit challenging those tariffs before the U.S. Court of International Trade, the federal court with jurisdiction over tariff cases.
Gellert, which imports Canadian cheese subject to the tariffs, is represented by the Liberty Justice Center, a public interest law firm I worked with on the case challenging the massive tariffs Trump imposed under the International Emergency Economic Powers Act (IEEPA). It resulted in the tariffs' invalidation in February by the Supreme Court, which not only ruled that IEEPA doesn't authorize tariffs but also emphasized that tariffs are a congressional power, and that the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." The Section 338 tariffs are a similar power grab.
They are illegal for multiple reasons, part of an ongoing effort by this administration to usurp Congress' constitutional authority over tariffs. In addition, they harm the U.S. economy and poison relations with a key ally. Section 338 of the 1930 Tariff Act has never been used by a president to enact tariffs before; Philip Zelikow, a conservative trade policy expert and former Bush administration official, has shown that Section 338 was superseded by legislation enacted in 1962 and 1974.
Even if Section 338 is still operative, Trump's tariffs on Canadian goods violate its requirements. As the complaint explains, the Canadian trade measures cited by Trump as justification for the new tariffs do not discriminate against U.S. goods; Section 338 can only be used against discriminatory policies. Some of the Canadian measures retaliate against previous tariffs imposed by Trump. Most do not actually treat U.S. goods less favorably than imports from many other countries. In addition, the Section 338 tariffs go well beyond "offsetting" Canadian measures, violating another requirement of the law….
The administration's interpretation of Section 338 also runs afoul of the major questions doctrine, which requires Congress to "speak clearly" when authorizing the executive to make decisions of "vast economic and political significance." Under Trump's approach, Section 338 can be used to impose 50 percent tariffs whenever a trading partner imposes any restrictions on U.S. goods, or simply chooses not to buy them. And the resulting tariffs need not be calibrated to those they are supposed to "offset." This is a blank check to impose massive tariffs against almost any imports at any time—exactly the kind of power the Supreme Court, in its ruling on the IEEPA case, determined the executive cannot have…
If Section 338 is still valid and does grant the kind of nearly unlimited authority Trump claims, that would violate the constitutional "nondelegation" doctrine, which restricts delegation of legislative power to the executive…
The Section 338 tariffs are part of an ongoing series of import taxes Trump has instituted in the wake of the IEEPA decision, seeking to again usurp the unlimited tariff authority the Supreme Court denied him. He previously tried to use Section 122 and Section 301 of the Trade Act of 1974 to essentially replicate the IEEPA tariffs. In both cases, he sought to transform a narrowly limited tariff authority into a blank check to impose massive tariffs at will…
In addition to illegally usurping Congress' authority under the Constitution, these tariff actions raise prices for consumers, greatly reduce economic growth, would impose some $700 billion in new taxes on Americans over a 10-year period, and have failed to increase manufacturing employment, despite Trump's claims that they would achieve that goal.
The tariffs against Canada—combined with Trump's repeated threats to make Canada the "51st state"—have also poisoned U.S. relations with a key ally. The percentage of Canadians with a favorable view of the U.S. has fallen from 54 percent in 2024 to only 33 percent this year—a worse rating than even China's authoritarian regime…. Alienating a key ally and trading partner doesn't make America "great again." It makes us weaker, poorer, and more isolated.
Firing of R.I. Governor's Staffer for Pro-Gaza-Ceasefire/"End to the Occupation" Post Violated First Amendment
From Sanchez v. Almond, decided Wednesday by Judge John McConnell (D.R.I.):
Mr. Sanchez began working at the office of Rhode Island Governor Daniel J. McKee in May 2021 as a "constituent services" staffer. The office is "the first point of contact with the public for the Governor's office" where employees handled calls, emails, letters, walk-ins, constituent problems, requests, and questions about the Governor's positions.
Mr. Sanchez was not a member of senior staff, and did not formulate policy, or policy developments. While the scope of his employment is shaded differently by the parties, they all agree that his duties involved, among other things, helping Rhode Islanders access public benefits and triaging their concerns by referring them to the appropriate departments. The office received roughly 500 calls and 400 emails per month.
Mr. Sanchez's direct supervisor was David Barricelli, who reported to Joseph Almond, Senior Deputy Chief of Staff, who in turn reported to Antonio Afonso, the Chief of Staff in charge of hiring and firing in the Governor's office, including Mr. Sanchez. Mr. Sanchez's performance was never called into question, and he was never disciplined before his termination….
Sanchez was also a Providence City Council member (and his superiors had not objected to his running for local office).
On October 7, 2023, Hamas attacked Israel killing roughly 1,200 people and Israel responded with fierce military actions in Gaza, whose population is overwhelmingly Palestinian. That day, the Governor's office issued a statement condemning "the abhorrent acts of terrorism by Hamas against innocent civilians in Israel" and expressed solidarity with Israel.
The same day, Mr. Sanchez posted on his personal social media a call for "respect of all human rights, especially the Palestinian people who faced atrocities for decades[,] and at the same time condemn all attacks on civilians." Ten days later, Mr. Sanchez posted that the United States was "actively aiding in a genocide" and called for "immediate deescalation and cease-fire."
Firing for "Rot in Hell Charlie Kirk" Post Upheld
In Johnston v. County of Gila (D. Ariz.), Judge Dominic Lanza rejected, on procedural grounds, plaintiff's challenge to a Gila County Personnel Commission decision upholding his firing from his job as "a legal secretary with the Gila County Attorney's Office"; here's the factual and legal analysis from the Commission decision (see exhibit 10):
On September 10, 2025, at around 2:00 p.m. Arizona Time Appellant posted "Rot in Hell Charlie Kirk" on/via his Facebook account.
Multiple GCAO employees, including some who are not Appellant's Facebook friends and/or who do not personally use Facebook, saw and otherwise learned of Appellant's post on September 10 and in the days that followed. Multiple GCAO employees discussed the post with each other and complained about the post to GCAO's Chief Deputy Joseph Collins as well as to Gila County Attorney Bradley Beauchamp.
Beauchamp believed that the post appeared to condone murder based on the victim's political viewpoints and statements and became concerned that this post and perception would reflect on GCAO in the public's eyes and thereby undermine the public's trust in GCAO's official duty to prosecute homicides without bias and without regard to a victim's views, statements, or affiliations. Several other GCAO employees shared the perception that Appellant's post appeared to condone the murder of someone based on their statements and views and shared the concern that this would reflect poorly on GCAO and undermine public trust.
Multiple GCAO employees reported being offended or otherwise bothered by the post. Appellant's post resulted in immediate meetings and changes to office practices due to concerns of disharmony within the office and the effects it would have on GCAO operations.
Appellant's Facebook account was reportedly set to 'private' which Appellant believed would limit his post to only being seen by his existing Facebook friends and that all his friends had to do if they were upset by his post was 'unfollow' him. Notwithstanding Appellant's Facebook account setting and his belief as to the setting's effect on post-exposures, his post apparently reached multiple witnesses within a short timeframe, including some who either were no t his Facebook friends or did not use Facebook at all….
Some Surprisingly Tolerant Judges out There in Pennsylvania
From Commonwealth v. Outlaw, decided Thursday by Pennsylvania Supreme Court Justice David Wecht, writing for a unanimous court:
In June 2022, Philadelphia County Court of Common Pleas Judge Roxanne E. Covington was holding a hearing on a motion to suppress evidence in Marquis McClain's criminal case. Seated in the gallery of the courtroom was McClain's acquaintance, Basile Outlaw. After Judge Covington announced that she would be denying McClain's suppression motion, Outlaw stood up and said "the judge is a cocksucker" loud enough for Judge Covington to hear. Judge Covington responded, "What did you say?" Outlaw replied: "Never mind. I'm leaving." Outlaw then exited the courtroom.
A deputy sheriff and a court employee began searching the building for Outlaw. The trial court recessed the suppression matter to allow McClain's defense attorney to confer with his client in the wake of the court's suppression ruling. The court subsequently adjourned, but Judge Covington asked McClain's attorney to "stick around for another moment … just in case." Around this time, Outlaw came back to the courtroom on his own, at which time he was taken into custody for direct criminal contempt.
Outlaw was tried and sentenced "to fifteen to thirty days' incarceration"; he served thirty days. But the Pennsylvania Supreme Court reversed the conviction:
Promise to Apologize Might Be Enforceable—but Court Can't Order Apology if None Was Finally Agreed to
From Judge Mia Roberts Perez (E.D. Pa.) in Souderton Area for All v. Souderton Area School Dist., decided Sept. 28:
This case began as a case about Plaintiffs' exercise of their First Amendment rights by protesting at a Souderton Area School District ("District") school board meeting. It then became a case about keeping promises. Now, it is a case about which promises this Court can enforce.
When Plaintiffs protested the Souderton Area School Board outside a September 2024 meeting, the government officials for whom their message was intended were not the only ones affected. One school board member was accompanied by her teenage daughter as they exited the meeting. In the parking lot, Plaintiffs Christopher Spigel, Helen Spigel, and Patrick Kitt confronted them. Rather than constraining their critical expression to the adult members of the school board, the protesters directed their ire toward the child, who the District has consistently maintained was frightened by the adult Plaintiffs' conduct.
Here are plaintiffs' allegations as quoted in an earlier decision:
According to the Complaint, in August 2024, Plaintiffs and other District community members learned that then-member of the Board of School Directors of Souderton Area School District (the "Board") William Formica posted lewd comments on social media about Vice President Kamala Harris, disparaging teachers and non-English speakers, and deriding diversity programs. In response, Plaintiff Souderton Area For All ("SAFA") encouraged its members to attend District Board meetings to protest and demand Mr. Formica's resignation.
The August 29, 2024 Board meeting saw high attendance of community members opposed to Mr. Formica's remarks, as well as a rally organized by SAFA to protest. But the Board did not allow SAFA or its members to demonstrate on District property, requiring them to gather on a public sidewalk 80 feet away from where the meeting was held.
At the same time, the Board permitted supporters of Mr. Formica to gather and counter-protest directly outside the meeting's entrance on District property. Due to increased attendance, the Board began requiring meeting attendees to provide photo-ID so that they could prioritize seating for District residents. Several individual Plaintiffs were excluded from meetings as a result of this new rule.
On September 26, 2024, as Board members exited a Board meeting, Plaintiffs Patrick Kitt, Christopher Spigel, and Helen Spigel protested by making cricket noises and accusing the Board of being complicit in Mr. Formica's misconduct through its silence. One Board member was accompanied by her teenage daughter, who was upset and intimidated by the protesters directing questions and accusations to her.
Supreme Court to Consider Successive Habeas Claim in Capital Case, Twenty Years After the Murder
This week, the Court will consider when a death-row inmate may file a second habeas application based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
On Wednesday this week, the Supreme Court will hear oral argument in Guerrero, Director of the Texas Department of Criminal Justice v. Dexter Johnson. It is a capital case involving the kidnapping, rape, and murder of Maria Aparece that Johnson committed in 2006. The case does not involve any claim Johnson is innocent of these heinous crimes, but rather how to interpret provisions in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
AEDPA prohibits successive habeas applications by state prisoners with only two narrow exceptions, including for claims that "rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(2)(A). The question presented seems to answer itself. The Supreme Court has granted cert to decide whether a claim relies on a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" when the Court announced the rule before the filing of the prisoner's prior federal habeas petition. As Texas persuasively argues in its merits brief, Johnson's Atkins claim (that he should not be executed because, he claims, he is borderline intellectually disabled) does not rely on any new rule of constitutional law. The Court decided Atkins v. Virginia in 2002—long before Johnson filed his initial federal habeas application, before his conviction became final on direct review—and even before he committed the capital murder for which he was sentenced to death.
Instead of a change in law, Johnson's claim relies on a new factual predicate: the publication of a new diagnostic manual by the American Psychiatric Association (the DSM-5), under which he was diagnosed with an intellectual disability. But a claim in a successive application based on a new factual predicate must satisfy § 2244(b)(2)(B), which Johnson's Atkins claim does not, because his new evidence has no bearing on whether the jury would have found him "guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B)(ii).
Surprisingly, a Fifth Circuit panel accepted Johnson's argument that he could pursue relief on this "new" claim. And the Fifth Circuit en banc denied further review by a vote of 9-7. Judge Ho (joined by Judges Jones, Smith, and Engelhardt) wrote a dissent from this denial, pointing out that "[e]xtraordinary delays like this are, alas, extraordinarily commonplace in our criminal justice system. And they are far from costless. Never mind the expense to the taxpayer. Such delays also force the family and friends of victims like Maria Aparece to wait for justice—for over two decades, in this case."
I have filed an amicus brief in the case, along with counsel of record Allyson Ho and her colleagues at Gibson Dunn, Brad Hubbard, Matt Scorcio, Brandon Wolf, and Marquan Robertson. Our brief provides a fuller account of the cost to victims' families—such as the Aparece family—who must wait for justice in capital cases like this one. Here's the introduction to our brief:
Twenty years ago, in the early-morning hours of Father's Day 2006, Dexter Johnson abducted 23-year-old Maria Chrisalee Lopez Aparece—"Sally" to her family and friends—and her boyfriend, Huy Ngo, at gunpoint. After terrorizing them, Johnson raped Sally in the back seat of her car while his accomplice taunted Ngo. Johnson then marched Sally and Ngo into the woods, shot each of them in the head, and left them for dead. Johnson and his accomplices then took Sally's car joyriding and used her credit cards to fund a shopping spree. Earlier that evening, Sally had been at home making a card for her father, Protasio Aparece, while he worked a sixteen-hour shift as a registered nurse. After her murder, Sally's family found the unfinished card. They placed it in their living room, in front of the fireplace, alongside Sally's ashes—where it remains today. Johnson's vicious crimes inflicted unbearable pain on his victims and their families.
But that was just the beginning of their suffering. Johnson's serial litigation has robbed the families of even a modicum of peace or closure. It has been two decades since Johnson brutally murdered Sally, and nineteen years since a Harris County jury sentenced him to death—but justice still has not been served. This Court should vindicate crime victims' "important interest in the timely enforcement of a sentence," Bucklew v. Precythe, 587 U.S. 119, 149 (2019), and "powerful and legitimate interest" in "real finality," Calderon v. Thompson, 523 U.S. 538, 556 (1998), by reversing the judgment below and ending an ordeal that has compounded the suffering of Sally's family for over two decades.
You can read the full brief for the Aparece family here, which discusses how excessive delays (like the one in this case) break AEDPA's promise of finality in capital cases and how research confirms that excessive delays in criminal cases harm victims' families.
I hope the Court reverses the Fifth Circuit's decision and brings the Aparece family one step closer to justice.
Today in Supreme Court History: November 2, 2010
11/2/2010: Brown v. Entertainment Merchants Association argued.
Open Thread
What’s on your mind?
Federal Court Rejects Trump Lawsuit Seeking to Block Certification of Alaska Senate Election Results
The court found the administration lacked standing to bring the suit. But there are also major substantive problems with Trump's position.
Today, in United States v. Alaska, federal district Judge Sharon Gleason ruled against the Trump administration's lawsuit seeking to block certification of Alaska Senate election results on the grounds that doing so might be necessary to prevent "voter confusion" caused by the presence of two candidates with very similar names on the ballot. As I have explained previously, Dan J. Sullivan can potentially be confused with Dan S. Sullivan (the incumbent GOP senator). Evidence gathered by the New York Times suggests Democrats may have deliberately recruited Dan J. to run, in hopes of siphoning off votes from Dan S. on this topic.
Today's ruling dismisses the Trump lawsuit on the grounds that the United States lacked standing to bring the suit. Most notably, it failed the standing requirement of "redressability." The remedy requested by the administration - blocking certification until the federal government could further "investigate" the issue, would not actually redress the harm of voter confusion, and certainly could not do so while maintaining legally required secrecy of the ballots. In addition, Judge Gleason emphasizes that the federal government's proposed remedy would likely intrude on the powers of the state government, create more voter "confusion" than it forestalls:
The Supreme Court "has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election…" "Such late-breaking, court-ordered rule changes can 'result in voter confusion and consequent incentive to remain away from the polls,' and thus undermine the '[c]onfidence in the integrity of our electoral processes . . . essential to the functioning of our participatory democracy.'"
The United States maintains that it is "not seeking to alter the time, place, or manner of Alaska's election" [which the Constitution generally leaves under state control]. And yet it seeks a court order preventing the State from certifying the election if certain circumstances occur; a court order requiring the State to segregate and preserve certain ballots; and a court order permitting the United States to conduct an investigation into the intent of those voters who cast ballots for Daniel J. Sullivan. These requests certainly involve the time, place, and manner of Alaska's election, which are the responsibilities of the State, not the executive branch of the federal government. Clearly, if this Court were to order that certain ballots will be segregated and subject to a future and as yet unspecified investigation by law enforcement, it would likely result in voter "confusion and consequent incentive to remain away from the polls."Such late-breaking changes to the election rules are strongly disfavored.
In addition to these procedural problems with the Trump lawsuit, it also deserves to be rejected on the substantive merits. I covered some of the reasons why here and here. See also the excellent amicus brief filed by prominent election law scholar Rick Hasen, which goes into these issues in greater detail. Quite simply, there is no federal law giving the administration the power to block certification of election results based on "voter confusion."
As explained in one of my earlier posts about this case, Democrats deserve blame for seeking to deceive voters in this way, even though it is highly unlikely it would cause enough confusion to change the outcome of the election (various aspects of the Alaska ballot and election system reduce the already low odds of that happening). But for reasons summarized in the same post, this kind of thing is far from the worst example of exploitation of voter ignorance. Lies and deceptions about public policy issues are far more significant.
Today's decision may be appealed. But I think it highly unlikely that the appellate court (or the US Supreme Court) will reverse it.
12 Defendants Indicted for Threats Aimed at Causing University of Michigan and Others to Sever Ties with Israel
Some excerpts from the long First Superseding Indictment in U.S. v. Hakim (E.D. Mich.), filed Oct. 21, alleging conspiracy to transmit threats in interstate commerce as well as, for two defendants, witness intimidation and destruction of property to prevent seizure (8 of the 12 defendants had originally been indicted in May); the targets included UM officials and businesses connected with them, as well as the Jewish Federation of Metropolitan Detroit:
The defendants are a group of individuals associated with the University of Michigan in Ann Arbor. After the October 7, 2023, Hamas terrorist attacks on Israel, the defendants and unindicted conspirators orchestrated detailed plans to threaten University of Michigan leaders, law enforcement, and businesses with coordinated criminal acts. Their goal included forcing the University of Michigan and other businesses to sever all perceived ties with the State of Israel.
To accomplish this goal, the defendants and their unindicted conspirators, in the Eastern District of Michigan and elsewhere, used encrypted messages, social media, and overseas collaboration platforms to research, target, and attack their victims. Then, they posted pictures of their attacks on social media, along with additional threats and warnings. Their criminal activity included spray painting threats, breaking windows, and throwing glass jars filled with noxious chemicals into family homes. They marked their victims with threatening symbols used by Hamas, including red inverted triangles and red handprints. They used the internet and social media to broadcast their message to ensure their threats and commitment to continuing criminal activity were heard by their victims and others who support Israel….
The defendants and unindicted conspirators coordinated and planned their criminal activity, targeting selected victims using encrypted online group chats, websites, "teach ins" (seminars designed to encourage action), and other meetings. They also initiated an online campaign against their targets by using social media platforms (Twitter/X and lnstagram) that were, at times, connected to student groups at the University of Michigan, including the former Students Allied for Freedom and Equality (SAFE) (University of Michigan's chapter of "Justice in Palestine") and the TAHRIR Coalition.
Today in Supreme Court History: November 1, 1961
11/1/1961: Planned Parenthood League of Connecticut opens center in New Haven, CT.
