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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Amendment Roundup: The Militia of the Sea
The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding
Jonathan Goldstein, Adjunct Professor at University of Pennsylvania Law School, has published a comprehensive analysis of the power of Congress to "grant letters of marque and reprisal, and make rules concerning captures on land and water," U.S. Const., Art. I, § 8, cl. 11. Historically, this meant that private citizens could possess cannon and ships and could wage war at sea on enemies approved by Congress.
"You couldn't buy a cannon when the Second Amendment was passed," President Joe Biden quipped in 2022. Well, actually you could, and you still can. Cannon were never restricted until included in the revision of the National Firearms Act in 1968, which taxes and requires registration of "destructive devices," defined as weapons that expel a projectile by the action of an explosive or other propellant, the barrel of which has a bore of more than one-half inch in diameter, excluding sporting arms.
According to Heller, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The Marque and Reprisal Clause was adopted in the original Constitution prior to ratification of the Second Amendment, and it has an interesting history of its own.
For fresh insights into the obscure Marque and Reprisal Clause, see Prof. Goldstein's new article "The Militia of the Sea: The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding." Here's the Abstract:
Courts and litigants increasingly say the Second Amendment reaches only the weapons one person can carry. The Constitution refutes that twice, in a single Article.
Article I, § 8, cl. 11 lets Congress "grant letters of marque and reprisal, and make rules concerning captures on land and water." That is a license to send a private citizen to war at sea in his own ship, with his own cannon, for profit. A license presupposes what it licenses. The Clause takes a privately owned, cannon-armed fleet as given; nothing in the Constitution creates it. Two clauses later, Article I, § 10 forbids a state to "keep troops, or ships of war in time of peace" without the consent of Congress. The Framers made a sovereign ask permission to keep a warship. They made the shipowner ask no one.
Under Article I, the only power over private armed force at sea that Congress received was power over the commissioning of that private force on behalf of the United States. Congress did not give permission for the ship owner to arm the ship with cannon. The Founders who ratified the Constitution's Article I in 1788 and the Second Amendment three years later in 1791 did not appear troubled that private parties owned heavily armed ships. Indeed, they took the widespread ownership of such heavily armed ships as a given, so much so that Congress principally concerned itself not with the private ownership of significant armaments, but rather with the transformation of that private ownership into a lawful use on behalf of the federal government itself.
With textual support from a documented record of roughly 1,700 Revolutionary-era privateering commissions — granted per voyage, in the years before the Constitution was ratified — this Article refutes the modern categorical claim that heavy arms were never "arms."
Donald Trump's Unsustainable Presidential Administration
The second Trump Administration insists on acting unilaterally, and that will make many of its policy changes unsustainable over time.
The second Trump Administration has pursued an aggressive deregulatory agenda, with a particular focus on environmental regulation. From day one the Administration has sought to roll back regulatory burdens and curtail the regulatory reach of administrative agencies, the Environmental Protection Agency in particular. With a few notable exceptions, these deregulatory efforts have relied upon presidential unilateralism--a combination of executive orders, presidential directives, and agency actions that lack legislative support. In this regard, the Trump Administration has built upon--and dialed up-- the degree of presidential unilateralism we have come to expect in the twenty-first century.
One consequence of this approach to regulatory policy is that little of what the Trump Administration is achieving will be particularly sustainable. Executive Orders can be rescinded just as easily as they are issued. Deregulatory short-cuts, such as aggressive assertions of "good cause" to avoid notice and comment--if successful--will be available to Trump's successors to move policy in the opposite direction.
Those few areas in which the Trump Administration's are likely to be the most lasting are likely to be those in which the Administration has foregone presidential unilateralism, and has instead sought to work with, or have its actions reified by, other branches. So, for instance, deregulation resulting from the passage and signing of Congressional Review Act resolutions will be more lasting and sustainable than that accomplished through the administrative process. And insofar as the Trump Administration is claiming that certain deregulatory moves, such as repeal of the "harm" definition under the Endangered Species Act, these actions will only be successful if the underlying statutory interpretations embraced by the Trump Administration are ultimately embraced by the courts.
The above, at least, is the argument I make in "Unsustainable Presidential Administration," my contribution to a forthcoming Harvard Environmental Law Review symposium on environmental law in the first 18-months of the second Trump Administration. My essay is now up on SSRN, and will be published as part of a stellar symposium issue later this year.
Here's the abstract:
The first Trump Administration prioritized speed and salience over legal soundness, and its unilateral deregulatory efforts—some fairly characterized as "regulatory slop"—were largely undone once Trump left office. This essay argues that the second Trump Administration, despite being more prepared and more aggressive, has not learned this lesson: it continues to elevate executive branch unilateralism over the slower, harder work of legislative or judicial engagement. The administration's reliance upon executive orders and unilateral action has sacrificed sustainability for speed. Where the administration's efforts are most likely to result in lasting legal or policy change, the administration is relying upon cooperation with other branches, such as by working with Congress to pass Congressional Review Act resolutions or prompting judicial review and endorsement of new understandings of existing environmental laws.The Administration's unilateral actions may be consequential, but they are not sustainable: lasting change to environmental law will come only through legislation or judicial ratification, not executive decree alone.
Do Colleges Owe Partial Refunds for Online-Only COVID Transition?
The Second Circuit asks New York's highest court to indicate what New York law says on this.
From yesterday's opinion in Becerra-Paez v. Syracuse Univ., written yesterday by Second Circuit Judge Beth Robinson, joined by Judges Dennis Jacobs and Debra Ann Livingston:
There is a split between how federal and state courts have applied New York contract law to claims for breach of contract regarding tuition in the context of universities' COVID-related transitions to remote learning. In Rynasko v. New York University (2d Cir. 2023), we evaluated whether a plaintiff plausibly alleged an implied agreement for a generally in-person education and access to on-campus facilities and services. Two subsequent decisions from the Appellate Division of the New York Supreme Court—Croce v. St. Joseph's College of New York (N.Y. App. Div. 2d Dep't 2023) and McCudden v. Canisius College (N.Y. App. Div. 4th Dep't 2025)—required that a plaintiff allege a specific promise of an exclusively in-person education.
We recently determined that this split, which implicates significant state policy interests, warranted certification to the New York Court of Appeals [New York's highest state court -EV]. Beck v. Manhattan College (2d Cir. 2025). The Court of Appeals accepted the question, but we withdrew the certification after the parties negotiated a resolution and sought to withdraw the appeal. Because we remain unable to confidently predict how New York's highest court would apply New York contract law in this context, we CERTIFY a question to the New York Court of Appeals. We reserve decision on all claims pending resolution of the certified question….
The factual background:
Court Rejects Ghislaine Maxwell's Constitutional Challenge to Epstein Files Transparency Act
From Judge Loretta Preska (S.D.N.Y.) in yesterday's Giuffre v. Maxwell:
On March 18, 2016, the late Judge Sweet issued a protective order … barring Plaintiff Virginia Giuffre, Defendant Ghislaine Maxwell, and their attorneys from sharing confidential discovery information produced as part of this case with any third party, including the Government. The Protective Order allowed the parties' attorneys, by designating a document as confidential, to represent that the document's contents implicated one or both of the parties' privacy interests and thus keep the document under seal unless the opposing party objected. The parties were thereafter permitted to file dozens of documents and motions largely or entirely under seal.
Paragraph 12 of the Protective Order provided that, at the conclusion of the case, all confidential documents and copies thereof were either to be returned to the party that designated it confidential or destroyed. However, Paragraph 14 of the Protective Order also provided that the "Protective Order may be modified by the Court at any time for good cause shown following notice to all parties and an opportunity for them to be heard."
Journal of Free Speech Law: "Milton, Mill, and (Maybe) Aristotle on Why Hearing Horrible Speech Makes You a Better Person," by Andrew Koppelman
The article is here; here's the part of the Introduction that summarizes the core of the argument:
How do you sell the idea of free speech to people who worry that words hurt? In the last few years, there have been increasing demands, most prominently on college campuses, to shut down hateful speech. Many Americans, especially younger adults, think that such speech ought to be restricted. A defense of free speech needs to explain why we should let people say vile things that no one should ever say to anyone….
The familiar arguments for free speech aren't responsive to these concerns. Consider a few pronouncements by the Supreme Court. The judges sometimes focus on good consequences: "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." "The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it." Sometimes they just invoke rights: "The right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.'"
Suppose that you (like many today) are unmoved by these considerations, that you don't believe that the good consequences are likely to follow, or that you don't believe that people have a right to say worthless and harmful things. What reason have you to want to live in a regime that protects such speech?
Fortunately, some classic formulations of free speech do not depend on optimism or the bald claim of rights. John Stuart Mill's essay On Liberty is best known as an attack on government censorship. But the state is not the only censor he worries about.
He denounces "a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself." He fears a population "whose whole mental development is cramped and their reason cowed by the fear of heresy," and "who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral." John Milton made a similar argument in 1644: censorship can induce a "gross conforming stupidity," and officials should understand that "that which purifies us is trial, and trial is by what is contrary."
No Second Amendment Right to Export Guns (Including to Haiti)
"John Adams, Oliver Ellsworth, Rufus King, Albert Gallatin, Robert Morris, James Monroe, Joseph Story, Jonathan Trumbull, James Madison, Henry Clay, [and] John Quincy Adams ... knew a thing or two about the Constitution."
An excerpt from the longish decision in Monday's U.S. v. Clerfe, written by Third Circuit Judge David Porter, joined by Chief Judge Michael Chagares and Judge Jane Roth:
Derby Clerfe purchased handguns in the United States and smuggled them to the Republic of Haiti in violation of numerous federal laws. He was indicted for and later pleaded guilty to one count of conspiring to violate federal laws that prohibit exporting firearms without filing an export information ….
We agree with the government that "keep[ing] and bear[ing[] Arms" does not encompass sending them abroad in violation of arms-trafficking laws.
We begin with Heller, which explicated the meaning of the phrases "keep arms" and "bear arms." Looking to founding-era dictionaries and treatises, the Supreme Court concluded that "the most natural reading of 'keep Arms' in the Second Amendment is to 'have weapons.'" … By comparison, Clerfe's conduct—exporting arms abroad—involved dispossessing himself of firearms….
Libel Lawsuit Over Highly Publicized L.A. Landlord-Tenant Dispute Thrown Out
The court is unmoved by plaintiff's claims that defendants' coverage of the underlying dispute led to people threatening her.
From Doe v. Nexstar Media Group, Inc., decided July 27 by L.A. Superior Court Judge Gary Roberts:
This case arises from a publicized landlord-tenant dispute between Plaintiff Jane Doe … and Defendant Aleksandar Jovanovic …. Plaintiff alleges that [Jovanovic] made various false statements about Plaintiff to various third parties, including various news outlets for the sole purpose of terrorizing her, spreading outrageous lies about her, resulting in obscene threats to her physical safety….
Plaintiff alleges …. "Defendants Jovanovic and Rucci played out this strategy by effectively making themselves stars of Defendant Nexstar's show "Banfield" hosted by Ashleigh Banfield …. On numerous episodes, Banfield hosted Defendants Jovanovic and Rucci, outrageously and falsely stating, or otherwise inferring that Plaintiff was engaging in criminal conduct, and other false stories. Defendant Nexstar otherwise plastered Plaintiffs image all throughout the internet and the national media, shaming Plaintiff, a sexual assault survivor, inciting numerous third parties to threaten Plaintiff with physical violence." "Defendant Nexstar also posted Plaintiffs image all over the national media and the internet, shaming and humiliating her with lies."
"Nexstar know[s] that Plaintiff has received numerous threats to her personal safety because her image and personal information is posted on the internet in connection with a "doxing and smear campaign" and still refuses "to remove Plaintiffs image and personal information from websites they own or otherwise control." "Plaintiff objectively and reasonably fears for her safety because [] Nexstar are posting her image and personal information on websites they own or otherwise control and Plaintiff, as a sexual assault survivor, has received numerous abhorrent and vile threats to her safety."
The court held that defendants' speech was presumptively covered by California's anti-SLAPP law, which allows prompt dismissal for speech on various matters of public concern, including speech related to pending court cases:
Today in Supreme Court History: August 12, 1795
Open Thread
What’s on your mind?
First Legal Challenges to Trump's New Birthright Citizenship Executive Order
They were filed by plaintiffs in two cases challenging his earlier order, which was struck down by the Supreme Court.
A few days ago, I wrote about Trump's new birthright citizenship executive order and why the vast bulk of it is unconstitutional under the Supreme Court's ruling in Trump v. Barbara, which struck down his earlier executive order denying birthright citizenship to children of undocumented immigrants and those on temporary visas. Yesterday and today, the first two legal challenges to the new order were initiated.
They were filed by the plaintiffs in two of the cases challenging the earlier orders. The plaintiffs in Barbara v. Trump are seeking modification of the injunction against the earlier executive order or a new injunction making clear that they cannot be deprived of birthright citizenship under the new order. In CASA, Inc. v. Trump, the plaintiffs are seeking a lifting of the stay of proceedings and a status conference addressing the new order. I expect they, too, will eventually seek an injunction against the latter order.
Both cases involve class actions certifying a class of children who would lose citizenship under Trump's initial birthright citizenship order (those born to parents who are undocumented immigrants or non-citizens in the US on temporary visas). Class certifications are one of the tools available to get around the Supreme Court's unwise ban on universal injunctions established by its unwise ruling in the CASA case last year.
I think almost all of the people affected by the new order do, in fact, fit into the classes certified in these two cases, in the sense that they are all children of non-citizens who either entered the US illegally or are here on temporary visas of some kind. The principal exceptions are children born in American Samoa (the only people covered by the part of Trump's order applying to children "born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute"), and perhaps children born to surrogate mothers who contracted with noncitizens outside the US (this is an element of the part of Trump's order dealing with "birth tourism"). The vast majority of babies born in American Samoa are - I presume - born to permanent legal residents of that territory. Many of the surrogate mothers may actually be US citizens and the sperm and egg donors (if non-citizens) may not ever set foot in the United States at all (whether legally, or otherwise).
There may be various procedural obstacles to using these earlier cases to challenge the new executive order. Some of these procedural issues are outside my expertise, so I will have to leave them to others. But I do think the plaintiffs are right to point out 1) that the new order is clearly an outgrowth of the earlier one, and 2) much of it is clearly unconstitutional under Trump v. Barbara.
I expect, also, that state governments will be able to challenge the new order, just as some successfully did so in the lower courts, with the previous one. Lawsuits filed by states are another potential way to secure a universal (or at least very broad) injunction after Trump v. CASA, Inc.. Last year, after CASA, the US Court of Appeals for the Ninth Circuit granted one in a birthright citizenship challenging the original order.
Because the new order affects far fewer people than the original one, there may be more procedural obstacles to challenging it. But I expect eventually they will be overcome, and courts will hopefully invalidate it. There will also, of course, be wrangling about the proper scope of the resulting injunctions. I think universal injunctions are often well-justified. After Trump v. CASA, Inc., there are still various pathways to get them (or, rather, remedies very similar to them); but the Supreme Court has not so far given us definitive rulings on exactly how often those remedies are available.
NH Federal Court Provisionally Certifies Class Of Pregnant ISIS Brides Seeking Birthright Citizenship For Their Children
No, that didn't actually happen, but it is ripe for the Babylon Bee.
In reality, the ACLU has filed a "motion to clarify the preliminary injunction" in Barbara v. Trump asking the court to rule that children of aliens who are members of foreign terrorist organizations, including declared Alien Enemies, are birthright citizens.
Indeed, the danger of that asserted authority is heightened because the scope of the purported exception is so unclear. The Order says that "alien enemy" is "defined to include" members of certain groups designated as terrorist organizations by the Administration. EO2 § 2(a) (emphasis added). But "include" does not mean "limited to." And this Administration has already demonstrated a willingness to use extremely loose and unfounded criteria to designate individuals as "alien enemies" purportedly under the Alien Enemies Act. See Perla Trevizo, et al., Now That They're Free, ProPublica (July 30, 2025), https://www.propublica.org/article/venezuelan-men-cecot-interviews-trump (describing the role of ordinary tattoos in the Administration's designations under the Act). That demonstrated track record is all the more reason to protect the class from this unlawful Order.
The Supreme Court ducked the Alien Enemies Act and invasion issue in AARP v. Trump. I don't think this case will be quite so simple.
The tougher question is whether any state actually has standing to assert the rights of alien enemies. The number of such individuals are so small, and states will have trouble asserting that any actual loss of funding. This executive order cannot be invalidated in its entirety. Each claim will have to be assessed separately.
Justice Clarence Thomas Talking About Thomas Sowell with My Hoover Colleague Peter Robinson
In this episode of The Sowell Legacy, Justice Clarence Thomas joins Peter Robinson for a wide-ranging conversation about the thinker who transformed his life. Justice Thomas recounts discovering Thomas Sowell's work as a young lawyer, the friendship that followed, and the lessons in self-reliance, honesty, and intellectual independence that shaped his own journey—from segregated Georgia to the US Supreme Court. Together, they explore race, education, constitutionalism, courage in public life, and why Sowell's ideas continue to resonate with rising generations.
"In Its 870 Paragraphs, 269 Pages, and 63 Causes of Action," the Complaint
"is just too damned long"—no, actually, it "includes the kind of extraordinary level of extraneous detail that necessitates repleader."
From Brown v. Florida Bar, decided today by Judge Anne Leigh Gaylord Moe (M.D. Fla.) (the case I posted about yesterday, see No Pseudonymity for Autistic Ex-Judge-Candidate, Alleging Failure to Accommodate Disability in Bar Investigation):
During his unsuccessful campaign to be elected as a Circuit Judge in the State of Florida, Mr. Brown alleges that he engaged in "protected political speech, including statements on social media and on his campaign website" about his opponent, a sitting Circuit Judge. His conduct and statements during and after the judicial election resulted in seven complaints being filed with the Florida Bar. The complaints against Mr. Brown alleged various violations of rules that govern judicial elections in Florida…. Among other things, the bar complaints alleged that Mr. Brown (1) made disparaging statements on social media about the sitting judge he ran against; (2) made inappropriate comments about another attorney's paralegal during a court proceeding; (3) alleged that some unnamed person requested a "discreet meeting" (which Mr. Brown alleges is a meeting arranged through a dating site "for purposes other than dating") with the sitting judge he ran against; (4) "sent emails to opposing counsel that were unprofessional and disparaging"; (5) engaged in improper conduct at a deposition; (6) stared at a complainant during a public campaign event; (7) made statements about the wife of the sitting judge he ran against; (8) publicly announced his personal views on a disputed issue of public policy (while also announcing that he would follow the law regardless of those views); (9) contacted and harassed supporters of his campaign opponent; (10) compared a female's pose to that "of a popular musician"; (11) announced that "he had lost faith in the court system"; (12) disparaged an Orange County Sheriff's deputy responding to Mr. Brown's report that his vehicle had been taken without his permission; (13) violated rules related to posting of campaign signs; and (14) caused an attorney's Facebook business page to be removed by flagging it.
Mr. Brown then filed two motions seeking temporary restraining orders against the Bar. In the first, he requested that the Bar be restrained from proceeding on any allegations arising from Mr. Brown's alleged conduct in the judicial election and from filing any formal charges related to those matters because his statements were protected by the First Amendment. In the second, Mr. Brown sought to require the Bar and the grievance committee to allow him to appear in person to make a statement, as an accommodation because he is autistic….
Rules 8 and 10 of the Federal Rules of Civil Procedure provide the basic pleading requirements. Under Rule 8, a pleading must contain the following:
Free Speech Unmuted: Can AI Libel You? The Robby Starbuck Case
Jane and I examine the Robby Starbuck v. Google decision, one of the first major court opinions arising from generative AI "hallucinations."
For past Free Speech Unmuted episodes, see:
Klein and Thompson's Abundance Shows Abundant Lack of Introspection
The authors recognize the need to reconsider policies that make it hard to innovate and build, but do not ask why they and their allies were blind to such concerns for so long.
Ezra Klein and Derek Thompson's Abundance was one of the most talked about policy books of 2025. In broad strokes, the book makes the case for "a liberalism that builds" and thus becomes the basis for a more affordable and more sustainable--or, they would say, abundant--future.
Much of the book provides a useful diagnosis of how existing policies and regulations make it too difficult to build hosing, deploy clean energy, develop innovative technologies, and bring innovations to market. In this respect, it is a useful intervention in policy debates that challenges the contemporary approach to governance to which many of their ideological compatriots are committed. Yet, as I note in my review in Regulation, the book has its blind spots.
Klein and Thompson recognize that many policies long championed by the left have produced unsustainable and undesirable results. Yet they show little interest in understanding why things went wrong. Their analyses of how regulatory policies make it unnecessarily costly and difficult to deploy clean energy and make housing more expensive and less available are sound, but they also are not new. I have been arguing that current approaches to permitting are particularly problematic for clean energy development for decades. Analyses showing how zoning and rent control choke off housing supply are older still.
The question Klein and Thompson do not try to answer is why so many smart policy wonks on the left--themselves included--denied and rejected arguments for abundance before now. In this respect, I do not think their book (or the discussions of it to which I have listened) show much introspection.
From my review:
Klein and Thompson admit they are discovering problems today that they studiously ignored in the past when flagged by market-oriented analysts. The recognition that progressive legal institutions are obstacles to growth, innovation, and solving societal problems is welcome. Yet they show little curiosity as to why they and their fellow-travelers had so many "blind spots" for so long. Other than a brief nod to Mancur Olson, they offer no real explanation for why well-intentioned laws become obstacles to economic and social progress, nor do they show much willingness to second-guess or revisit their own assumptions about the proper role of government in facilitating economic growth, technological innovation, or material abundance. Klein and Thompson may understand what it takes to build political support for supply-side thinking on the political left, but their lack of introspection renders much of their substantive analysis hollow.
They close the book by offering "a new set of questions around which our politics should revolve. What is scarce that should be abundant? What is difficult to build that should be easy? What inventions do we need that we do not yet have?" A more fundamental inquiry would be who decides? And what sorts of institutional arrangements are necessary to answer such questions? In failing to even pose such questions, Abundance does not offer much of an answer to the problems it seeks to solve. Klein and Thompson say they want a "liberalism that builds," but they never really consider how it was that liberalism once built.
New In SCOTUSBlog: The court should hold oral argument outside of the capital
"I am confident there would be a bipartisan groundswell of support to get the justices out of the beltway."
My latest installment on SCOTUSBlog urges the Justices to get out of the beltway, and hold oral argument across the fruited plane.
The most likely sites would be the courthouses where the federal courts of appeals sit en banc, or all together: the U.S. Court of Appeals for the 1st Circuit sits in Boston, the U.S. Court of Appeals for the 2nd Circuit sits in Manhattan, the U.S. Court of Appeals for the 3rd Circuit sits in Philadelphia, the U.S. Court of Appeals for the 4th Circuit sits in Richmond, the U.S. Court of Appeals for the 5th Circuit sits in New Orleans, the U.S. Court of Appeals for the 6th Circuit sits in Cincinnati, the U.S. Court of Appeals for the 7th Circuit sits in Chicago, the U.S. Court of Appeals for the 8th Circuit sits in St. Louis, the U.S. Court of Appeals for the 9th Circuit primarily sits in San Francisco, the U.S. Court of Appeals for the 10th Circuit sits in Denver, and the U.S. Court of Appeals for the 11th Circuit sits in Atlanta. These cities fully represent the different regions of our glorious republic. (The D.C. Circuit, which is a few blocks from the Supreme Court, does not count.) The justices would see New England, the Mid-Atlantic, the South, the Deep South, the Midwest, the West, and what Justice Antonin Scalia called the "vast expanse in-between." All of these courthouses are equipped with benches to seat the nine members of the Supreme Court. There would also be chambers where the justices and their clerks could work. These federal buildings are already secure, and could provide the appropriate accommodations for the justices.
I also think the Justices should hold goodwill missions that are not part of book tours. They could promote the reputation of the Court without changing any opinions:
When the justices visit a city, they should perform official good will missions. Justices should visit law schools and other educational institutions. Even better, the justices should go in pairs, so the public can see how justices who do not agree with each other can still engage in a civil fashion. Justice Elena Kagan's recent congressional testimony with Justice Amy Coney Barrett provides a model of civility. These events would not be book talks. I find it problematic that justices, or at least their staff, have apparently prodded groups to purchase books when hosting them. The purpose of these events would simply be to speak to the next generation.
But the purpose of these missions is not just to speak. To borrow from Barrett's new book, the justices should also listen. The justices should hold private meetings with local constituencies to hear how the law affects them. Groups could include government officials, police departments, prosecutors, civil rights groups, public defenders, and others. I don't know how often the justices hear from regular folk about the law. The justices largely reside in their own bubbles. These missions would be an effort to pierce those bubbles. Still, these gatherings could become opportunities to grandstand, so all recording devices would be strictly prohibited.
The justices should also meet with the local press. These reporters might have questions that members of the Supreme Court press group do not. On book tours, the justices will sometimes answer pre-approved questions or speak to favorable outlets. Justice Ketanji Brown Jackson pals around on The View while Barrett chats on Fox News. The justices should not be so guarded. If a reporter asks a question that is inappropriate, the justice can decline to answer. But there is always much that can be said. And I think the press would be impressed with how carefully the justices answer questions.
So far, my posts on SCOTUSBlog have generated broad consensus. My next one probably will not.
I Say No To SubStack, And Chief Justice Roberts Says Yes
"Flagging for you a new essay by Chief Justice Roberts on William Howard Taft for In Pursuit..."
This morning I received an unusual email in my inbox. The subject line was "Chief Justice Roberts publishes essay on William Howard Taft for In Pursuit." For sure, I thought someone was pranking me. But no. It was a press release from DKC, a public affairs company in New York. Obviously, someone compiled a list of people who write about the Court, and paid zero attention to what they wrote. This was almost as tone-deaf as the PR email I received promoting the Federal Circuit's ridiculous AI video.
Here is the message:
Hi Josh,
Hope you're well. Flagging for you a new essay by Chief Justice Roberts on William Howard Taft for In Pursuit, a national initiative in which leading American public figures and scholars share lessons from each American President and select First Ladies.
In the essay, the Chief Justice reflects on how Taft maintained his dignity and principles through his defeat in the 1912 presidential election, thereby leading him to future success as "one of the most consequential Chief Justices in our Nation's history."
I've included a few key sections from the essay below for reference and you can read the full version on In Pursuit's Substack.
I say no to SubStack, and Chief Justice Roberts says yes. Makes sense.
I hadn't heard of the In Pursuit Substack. It seems to be founded by Jim Ambuske, a historian on American history (who I also haven't heard of). The site has been publishing essays since March of 2026. Influential figures wrote written essays on important figures in American history. Barack Obama wrote about Abraham Lincoln. Annette Gordon-Reed wrote about Andrew Johnson. Bill Clinton wrote about Theodore Roosevelt. Jack Rakove wrote about James Madison. Jon Meacham wrote about Andrew Jackson. And now Chief Justice Roberts has written about Taft.
The Chief also recorded an audio version of his essay. There is nothing too insightful here. Roberts does offer praise for Meyers, which the Court vindicated this past term in Slaughter.
At age 63, Taft ascended to the position for which he was most suited by ability and temperament. Chief Justice Taft achieved the success that eluded President Taft. To be sure, Taft opinions are few and far between in modern constitutional law casebooks. A notable exception is Myers v. United States, which upheld a President's power to remove executive branch officials. But as an administrator, Taft made landmark contributions to the Supreme Court and the federal judiciary more generally, escorting it into modern times and ensuring its effectiveness as a co-equal branch under the Constitution.
At present, the Substack about 27,000 subscribers. That number does not strike me as particularly high for the caliber of authors they've gotten. Indeed, that was roughly my estimate of how many unpaid subscribers I could earn by myself. Perhaps this is proof that SubStack is not what I thought it might be.
