Jeffrey Toobin had a remarkable column in the New York Times, titled "The Plan for a Radically Different Supreme Court Is Here." What is that plan? Read the article from top to bottom, and you won't find an actual plan. Not even the concept of a plan.
The ostensible purpose was to suggest that the American Constitution Society could be a viable alternative to the Federalist Society. There is glowing praise of ACS's newish President, Phil Breast. This column follows another glowing profile of Brest by Carl Husle in the Times in October. (I don't recall any such similar fanfare for Sheldon Gilbert, who has effortlessly taken the helm of FedSoc.) Yet if you peel a few layers deep off Toobin's lede, you realize precisely why ACS can never rival FedSoc. It is not because of lack of funds or lack of power, but due to a lack of ideas. In short, despite their best efforts, there is no viable alternative to originalism.
Like many Democrats, Mr. Brest rejects originalism and believes there should be a different way to interpret the Constitution. "We have to have an affirmative message around constitutional interpretation in the same way there has to be an affirmative message around elections and politics," he told me. "And it can't just be, 'We're not originalists' in the same way that A.C.S. can't just be, 'We're not the Federalists.' That's not how I view the organization, and that's not how I want to be part of the solution to countering originalism. There has to be an affirmative piece there."
What is that "affirmative" theory? Brest has no clue. The only viable strategy is "antitrumpism."
For now, under Mr. Brest, the A.C.S. seems headed for an approach that looks like the one that Democratic politicians have so far adopted: aimed more at opposition to Mr. Trump's record rather than on a specific, alternative vision for the Constitution. In his opening message to the group, Mr. Brest described the A.C.S. as building "a bulwark against overreach by the Trump administration and the Roberts court." This is understandable, perhaps even wise, because in the view of Mr. Brest's universe of allies, the Trump administration has violated constitutional norms under any interpretive theory.
So much for a ruling for the ages.
How does that approach translate to judicial philosophy? In other words, what would a future Democratic President look for in judges? Brest also doesn't know:
Mr. Brest has pledged that A.C.S. will continue its Biden-era focus on judicial appointments. "As an organization, we will stay on top of legislators, we will stay on top of the next administration, to make sure that judges are the No. 1 priority going forward," he said.
As for what those judges will stand for — as opposed to what they stand against — Mr. Brest has no clear answer. He, along with other Democrats, will need one.
I've lost count of the number of law review articles that attack originalism and textualism. Frankly, I've stopped reading them because they don't matter anymore. There was an ideological battle that was waged and won. And until the left can put forward a viable theory to compete, originalism will remain the dominant jurisprudential force. As Justice Scalia would say, FedSoc doesn't need to outrun the bear, we only need to outrun ACS. After half a century of great debate, the originalists are still not tired of winning.
From a decision last week in Smith v. Solomon, by Judge André Birotte Jr.:
Plaintiff files the [application] in a case voluntarily dismissed on January 28, 2026. Plaintiff now requests an order directing the "immediate redaction and removal of all personal identifying information ("PII")—including Plaintiff's legal name, address, or any identifying data" from PACER, PacerMonitor, CourtListener, any automated third-party docket-aggregation websites, any public-facing pages generated by the Court, or any publicly viewable filings in this matter. Plaintiff argues that the appearance of his full legal name in court documents threatens his safety, privacy, and well-being.
First, Plaintiff asks the Court to redact certain documents pursuant to Federal Rule of Civil Procedure 5.2. As an initial matter, it is not clear to the Court that any of the information Plaintiff seeks to have redacted falls within the scope of information that may be redacted under Federal Rule of Civil Procedure 5.2. Moreover, as stated in the Local Rules, "[i]t is the responsibility of the filer to ensure full compliance with the redaction requirements of Federal Rule of Civil Procedure 5.2." Plaintiff himself filed the information at issue without redactions. Thus, the Court cannot retroactively redact any information.
Next, Plaintiff argues the Court has the authority to protect litigants that file cases under pseudonyms. While the Court does have authority to permit a party to file under a pseudonym, the Court will exercise that authority only once a moving party has met their burden pursuant to a motion to use a pseudonym. The "normal presumption in litigation is that parties must use their real names." To overcome this presumption, a moving party must demonstrate that the "party's need for anonymity" outweighs the "prejudice to the opposing party and the public's interest in knowing the party's identity." Again, Plaintiff has not filed any motion to file the case under pseudonym nor has he made any argument overcoming the presumption against anonymity in his [application]….
Plaintiff's [further] argument that his information should be redacted pursuant to the California Safe at Home confidentiality program is also not persuasive. The California Safe at Home program is administered by the California Secretary of State's Office and offers a substitute mailing address for certain individuals who are in fear for their safety. While the Court recognizes the value of this program and Plaintiff's membership, he has not provided any explanation as to why this program requires or merits retroactive redaction of documents filed by Plaintiff himself.
A magistrate judge recommends a $10K sanction for a lawyer's repeated incorrect citations, and has some things to say about the pattern he has been seeing in his own court.
[T]his is the third time in the last year that the Undersigned has faced a similar issue. We live in a world of rapid technological advancement. A world in which many individuals have concerns that their jobs may be replaced by increasingly educated machines.
The practice of law is not just a job, it is a profession; a profession with standards and ethical responsibilities. One of the most troubling aspects of these situations is the lack of respect for the profession, and the lack of respect by the offending attorneys for their own personal capabilities, that these situations represent.
One would expect that, when individuals choose this profession, they do so in part because they believe they have some talent for the work. One would expect that, after several years of law school, and more years of practice, those attorneys believe they bring some level of value to their clients beyond that of a machine. Yet these situations represent an abdication of those personal and professional responsibilities to those very machines, which to date have not proven themselves up to the task.
While the Undersigned has long recognized the value of the proper and efficient use of technology, my confidence in the profession and the generations of lawyers who have shaped it prevents me from believing that it can ever be replaced by a machine, no matter how advanced. However, the preservation of that profession requires ever increasing levels of diligence and vigilance from each and every attorney and judge involved in the process. Absent that, someday clients may well be better off accepting advice from a machine as opposed to a careless and inattentive attorney. That is a day the profession of law must not allow to come to pass….
Some more details on the particular transgressions in the case:
"AI presents opportunities for efficiency gains to be sure, but the costs to clients and public faith in attorneys is steep where ethical duties and judgment are cast aside and a litigation put on autopilot."
A passage from one of counsel's filings, particularly noted by the court.
Some excerpts from the long discussion in Parker v. Costco Wholesale Corp., decided in November by Magistrate Judge S. Kate Vaughan (W.D. Wash.), but only recently posted on Westlaw:
The Court identified material misstatements and misrepresentations in those filings, which contained hallucinated case and record citations and legal errors consistent with unverified generative artificial intelligence ("AI") use and ordered Counsel to show cause as to why sanctions should not issue. The Court outlines its observations before turning to Counsel's explanations….
Review of Plaintiff's Response to Defendant's Motion for Summary Judgment ("MSJ Response") indicated the filing relied on inapplicable law, misrepresented and misquoted the law and the record, and included a wide array of idiosyncratic citation errors. For brevity, the Court summarizes the most egregious examples….
[Among other things,] Counsel included hallucinated and inaccurate quotes to the record. This was particularly egregious given that he sought to demonstrate a question of material fact precluded summary judgment and attempted to do so by relying on mischaracterized evidence….
Viewed collectively, these legal, citation, and factual errors bore the hallmarks of unreviewed AI-generated work product or exceedingly negligent drafting….
The quality of Counsel's filings further deteriorated….
Plaintiff's Reply was otherwise notable in two respects. First, the text appeared to have been copy-pasted from a generative AI program without any quality control. Straight, as opposed to curly, apostrophes and quotation marks remained throughout, indicating the content was likely not typed into a word processor. At some point, the program apparently experienced, and documented, an "[ ]artificial error[.]"
So Judge Beth Bloom (S.D. Fla.) decided in today's O'Leary v. Armstrong, The defendant had earlier failed to defend himself, and had default judgment entered against him as to the falsity of his allegations. The findings of fact:
[Kevin] O'Leary is an internationally renowned entrepreneur, investor, and television commentator. He was the founder of The Learning Company, a company that sold software programs for math and reading. He sold The Learning Company to Mattel in the early 2000s and has been investing in hundreds of businesses since then in all 11 sectors of the economy. O'Leary later became widely known for his role on the television show, Shark Tank, where he and the other "Sharks" evaluate and invest in a range of emerging and start-up businesses. Around that same time, he started appearing on American television networks as a frequent contributor on "business affairs, policy, and technology." In addition to his investing activities and television work, O'Leary also serves as a keynote speaker for major financial institutions. O'Leary's social media presence spans 11.1 million followers, a substantial portion of whom are entrepreneurs.
O'Leary filed this action against Defendant Ben Armstrong—known publicly as "Bitboy Crypto"—for maliciously publishing defamatory falsehoods calling O'Leary a murderer and claiming O'Leary "paid millions to cover" up his role in a murder….
In 2019, O'Leary and his wife were involved in a boating accident in which their vessel struck another boat, resulting in two fatalities. O'Leary was not operating the boat at the time and was never charged with any violation of law. His wife, Linda O'Leary, was charged with careless operation of a vehicle. After a 13-day trial, she was exonerated after the court found the other vessel had been operating without its lights on.
As Steven Calabresi notes, this is the tenth anniversary of Justice Antonin Scalia's death. The American Enterprise Institute hosted a two-day conference on his work and his legacy featuring scholars, judges, former clerks, and family members. On the second day, I participated in a panel focused on originalism and textualism. Other panels focused on such topics as the separation of powers, religious liberty, and administrative law.
John Stuart Mill continues to stir trouble in the twenty-first century. Nowhere is Mill's liberal legacy more fiercely contested than in academia, where scholarly opinion ranges from something approaching idolatry to icy disapproval. Heterodox Academy invokes Mill as a leading light, with Jonathan Haidt and Richard Reeves publishing an abridged version of On Liberty (entitled All Minus One) as a manifesto for the movement. Other scholars have tried to "update" Mill for a new era by adapting his notion of "harm" to include psychological and civic harm. Still others dismiss Mill as an engineer of and apologist for empire, another hypocritical nineteenth-century liberal who supported freedom for the metropole while advocating despotism for the colonial other.
How to reconcile the various versions of Mill—liberal apostle, Romantic utilitarian, faithful servant of the East Indian Company? The volume of Mill scholarship may hinder any effort to answer the question more than it helps: It is now so vast that it seems impossible to master without the help of artificial intelligence: Even if we restrict the topic to Mill and freedom of expression, JSTOR alone houses some 6,000 books and articles that mention Mill and free speech, enough to intimidate even the most energetic reader. The prospect of saying something new about Mill is perhaps yet more daunting.
To their credit, Drs. Christopher Barker and Fara Dabhoiwala have recently paved a fresh pathway through Mill's oeuvre, attempting to explain why Mill did not extend his full-throated support for free speech to what he termed "barbarous" countries. Why, they ask, did Mill insist that colonial Indians, for instance, did not deserve the right (or privilege) of free speech? While copious research has been devoted to Mill's arguments on free speech and to his opinions on empire, surprisingly little has been written on the intersection of the two.
The problem, however, is that the query on India, as posed, est une question mal posée, a complex question that assumes the conclusion and then seeks to explain it. Barker's claim, for instance, that "Mill consistently supports East India Company (EIC) policy restricting publicity and debate in British India" is belied by a more sensitive examination of the evidence. Dabhoiwala's forays down the documentary trail in his new book, What Is Free Speech?, are even more misleading. The real question is how two respected scholars could have limned such skewed portraits of Mill.
One of the greatest privileges of being a federal judge is the honor of presiding over a naturalization ceremony. I do it every year in May, to celebrate the anniversary of my own naturalization in May 1982.
I wasn't born in the United States. I didn't enter this world as an American. But I wake up every morning thanking God that I will leave this world as an American.
I like to say that I'm Taiwanese by birth, Texan by marriage. But most importantly, I'm American by choice.
If you've never attended a naturalization ceremony, there's nothing more inspiring. People from all around the world come together in one room, for one purpose—to become Americans….
In a nation of over 300 million Americans, we're bound to disagree on virtually every issue under the sun. And that's okay. There's nothing wrong with that….
We've all heard the maxim, "I disapprove of what you say, but I will defend to the death your right to say it." … [But i]f you truly detest what someone says, why on Earth would you want to defend their right to say it—never mind defend it to the death?
Today is the ten year anniversary of Justice Scalia's passing. At the time, I could not have fathomed what the ensuing ten years would bring. To commemorate that day, I quote at length from my 2016 book, Unraveled. There are some good nuggets here, a few that I had forgotten!
The news of Scalia's passing broke on Saturday, February 13, 2016, at about 4:30 PM. Within minutes, through what Adam Smith would call the invisible hand , a Republican strategy spontaneously organized on social media: no confirmation until after the election, regardless of who the nominee is. At 4:56 PM, Conn Carroll, a spokesman for Senator Mike Lee (R- UT), tweeted, "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia." Conservative pundits quickly reinforced the message. Sean Davis, who writes at The Federalist , posted at 4:52, "If Scalia has actually passed away, the Senate must refuse to confirm any justices in 2016 and leave the nomination to the next president."
One hour later, before consulting his caucus, Majority Leader McConnell released a statement: "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President." Senator John Cornyn (R- TX) warned that whoever the President nominated had no chance of confirmation, and would "bear some resemblance to a piñata."
Almost immediately all eyes turned to an octogenarian from Iowa. Chuck Grassley, Chairman of the Senate Judiciary Committee, held almost unfettered discretion over whether Obama's nominee would even be considered by the Senate. The New York Times reported that Grassley "arguably" has "more power than any other individual senator in deciding if the process will move forward."
Before a nominee was even named, pressure mounted on the folksy Iowan to hold a hearing. The Des Moines Register called on Grassley to proceed with Obama's nominee. "This could have been a 'profile in courage' moment for Senator Grassley. This was an opportunity for our senior senator to be less of a politician and more of a statesman. It was a chance for him to be principled rather than partisan." In the immediate aftermath of Scalia's passing, Grassley was somewhat noncommittal. He told Radio Iowa , "I would wait until the nominee is made before I would make any decisions."
He called for patience. "One step at a time." The Times observed that early on the Iowan "has given off conflicting signals about his intentions." Republicans defended their opposition to a hearing, citing Democratic filibusters of President Bush's nominees a decade earlier. Democrats countered that they filibustered lower- court nominees, who were at least afforded a hearing, even if they did not receive a vote. Further, the Supreme Court, they argued, was different. Denying a nominee a hearing was the next level up from blocking a nominee's floor vote. Michael Barone's observation is still evergreen: "In politics . . . all procedural arguments are insincere."
In 2010, the Chief Justice lamented the politicization of the confirmation process. "Each political party has found it easy to turn on a dime," Roberts observed, "from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes." Senator Grassley charged that Roberts had it "exactly backwards." The "confirmation process doesn't make the Justices appear political," the Iowan said. Rather, "the confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences." Grassley specifically targeted Roberts's Obamacare decisions. "In fact, many of my constituents believe, with all due respect, that the Chief Justice is part of this problem. They believe that a number of his votes have reflected political considerations, not legal ones." To the extent that the Chief's ACA opinions were designed to keep the Court out of the political arena, the plan backfired in ways that were impossible to anticipate.
After some vacillation, the Republican leadership solidified its position. McConnell and Grassley coauthored an editorial in the Washington Post expressing their shared strategy. "Given that we are in the midst of the presidential election process," the Kentuckian and Iowan wrote, "we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court." As for a question of duty, they wrote that the "Constitution grants the Senate the power to provide, or as the case may be, withhold its consent." The Senate leadership held firm and refused to schedule a hearing for Garland. Many declined to even meet with the nominee.
Circuit Court Judge David Hughes called out Solis on Friday for using AI in a response to a defense attorney's request to have a burglary case dismissed [without disclosing this, as Kenosha County court policy required].
Hughes also blasted Solis for using "hallucinated and false citations," online court records show….
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