Wise advice to lawyers from Judge Raymond Kethledge in Fifth Third Mortg. Co. v. Chicago Title Ins. Co. (6th Cir. 2012).
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Virginia Court Reverses $1M Libel Judgment for School Board Chair Called "Sexual Predator/Harasser" by Activist
The speaker's comments, the Virginia Court of Appeals held, "comments constitute non-actionable opinions based on fully disclosed facts."
From Petrak v. Sawyers, decided last week by the Virginia Court of Appeals (Judge Vernida Chaney, joined by Judges Frank Friedman and Stuart Raphael):
In December 2017, Petrak, who led the "Prince William Committee (PWC) for Quality Education" and had previously pursued recall efforts to oust Sawyers from his Chairman position, publicly responded to a prior 2014 comment made by Sawyers on Facebook. Sawyers had commented on a local librarian's public photograph, referring to her as "[s]uch a LILF." {Sawyers did not dispute that he called the librarian "such a LILF." Petrak maintains the acronym referred to a distasteful innuendo. However, Sawyers testified that LILF meant "Librarian I'd Like to Fund."}
In response, Petrak posted in the public Facebook group, "PWC Education Reform," sharing a series of statements calling Sawyers a "SEXUAL PREDATOR/HARASSER." These statements were accompanied by screenshots of Sawyers's LILF comment, a tweet in which Sawyers thanked Senator Al Franken, and a photograph of Franken engaging in inappropriate conduct.
Petrak's comment reads as follows:
Parental Rights Over Children's Religious Practice
From two interesting (and little-known) 1840s American cases that point in somewhat different directions.
[1.] In Commonwealth v. Armstrong, 1 Pa. L.J. Rep. 146 (Ct. Quarter Sess. Lycoming County 1842) (Lewis, J., apparently writing for three judges), the father threatened a Baptist minister with violence for baptizing the father's 17-year-old daughter (who had already been baptized Presbyterian, and whom the father had warned the minister not to baptize). The court concluded that the father had acted illegally, and ordered him to put up a $500 bond to assure his future good behavior. But because the decision of who should pay court costs was discretionary, the court concluded that it should evaluate the complainant minister's culpability as well:
If [the minister] has interfered with the lawful authority of the father over his own offspring, in its minority, and therefore provoked him in his excited feelings, to meditate the personal injury, and to make the threats complained of, it would be just that the [minister] should pay the costs which his own first wrongful act had occasioned.
And the court concluded the minister did act wrongly:
If [a father] should come to the conclusion that the attendance of his child upon the ministration of any particular religious instructor is not conducive to its welfare, he may prohibit such attendance, and confine it [the child] to such religious teachers as he believes will be most likely to give correct instruction and to secure its welfare here, and its eternal happiness in the world to come.
He cannot force it to adopt opinions contrary to the dictates of its own conscience, but he has a right to its time and its attention during its minority, for the purpose of enabling him to make the effort incumbent on him as a father, of "training it up in the way it should go." He may not compel it, against its own convictions of right, to become a member of any religious denomination; but after it has been initiated, with its own free will, into the religious communion in which its parent belongs, he may lawfully restrain it, during its legal infancy, from violating the religious obligations incurred in its behalf, by placing itself under the control of a minister whose opinions do not meet its parent's approbation.
Jack Smith Miscalculated The Odds of Drawing Judge Cannon, and After He Lost, Asked SG Prelogar For Permission To Seek Cannon's Removal
A new book provides an inside look to the Florida Special Counsel investigation.
Carol D. Leonnig and Aaron C. Davis, two reporters for the Washington Post, wrote a new book about Jack Smith's prosecution of Trump in Florida. These sorts of "inside look" books are always intriguing, but it is important to keep in mind who has the greatest incentive to talk to the press: people who are unhappy that their preferred outcome didn't happen. Everything in these books should be taken with a mound of salt.
The duo published an excerpt from the book, which includes this note on sourcing:
The account is drawn from interviews conducted for the book "Injustice," including with senior officials in the Trump and Biden administrations, government prosecutors and federal agents, as well as outside advisers who were firsthand witnesses to one of the most challenging periods in Justice Department history. Many people agreed to be interviewed only on the condition of anonymity because they feared damage to their careers or retribution from those angered by their candor.
I don't think these prosecutors are just afraid of retribution from Trump and Republicans. I think they are also afraid of retribution from Democrats as well. Look at what happened to those who spoke out against Biden's decision to stay in the race. And we haven't even started talking about the Autopen.
There is much here to cover.
First, Smith decided to bring the case in Florida rather than in DC. There were concerns that Trump would likely move to change venue, and any verdict could be overturned on appeal.
Curiously, Garland was not interested in the merits of the case, but was interested in whether Cannon would draw it:
Smith soon shared the prosecution memo with the attorney general's office, and a few days later he went to discuss the plan with Garland in person. The attorney general was known to get into the minutiae of some cases, but he didn't raise issues with the evidence or strength of the case. However, he did want to know more about the decision to seek an indictment in Florida. Smith and his team explained their analysis.
Yet, we learn that Jack Smith doesn't know how to forum shop. Specifically, he failed to accurately calculate the likelihood that Judge Cannon would draw the case:
Senior counselors followed up with Smith's staff and in the following days reported back that the concerns seemed sound. Some members of Smith's team, they reported, had also analyzed the likelihood Cannon would get the case, calculating the odds that she would be randomly assigned to oversee it at just 1 in 6.
But before a final decision was made, the team members realized they had not fully accounted for a key factor: judges' caseloads in the Florida district. Reexamining the pool of potential South Florida judges, they found that some judges located closest to Mar-a-Lago did not work full time or had trials scheduled that would limit their availability.
The real chance of drawing Cannon was far higher, nearly 1 in 3, they calculated.
Amateur move. Strategic litigators on both sides of the aisle keep very detailed statistics about how district court assignments work. These processes factor in the type and amount of cases that senior status judges draw (some senior status judges only take criminal or civil, but not both). These processes also look at a judge's caseload, to determine if they might request fewer cases. Some savvy lawyers even keep tabs on when judges announce they are taking vacations. I am very surprised DOJ did not have this skillset on board. Maybe the fact that the special counsel office is siloed from DOJ limited their access to this information. Or, DOJ may be so DC-focused, they don't pay attention to assignments in the hinterlands.
Second, we learn some details about Jack Smith's taking of the oath. The circumstances of this oath have always been shrouded in some secrecy. I know there have been FOIA requests about it.
Trump's announcement the next day that he would seek another term sent Garland's office right back to Smith. But the attorney general's senior staff recognized a potential issue. Following the operation, Smith had been prescribed powerful painkillers, and they worried the sedatives could compromise Smith's ability to legally take the oath of office. Smith decided to leave no doubt about his mental state: He discharged himself from the hospital against doctor's orders. At home, he went cold turkey, taking no prescription drugs before Garland announced his appointment on Nov. 18.
I guess he took the oath in the Netherlands? Who administered the oath, we do not know.
Third, after Judge Cannon found that Smith's appointment was unlawful, he asked Solicitor General Prelogar for permission to appeal, which she granted. And Smith also asked for permission to ask the Eleventh Circuit to remove Judge Cannon.
In August 2024, as Smith and his team were finishing up their appeal of Cannon's ruling, he had also secretly concluded that Cannon should be removed as the presiding judge. Smith presented the appeal to Solicitor General Elizabeth B. Prelogar for her approval, as special counsel regulations required. He also asked her if he could seek to have Cannon removed by the appellate court, an unprecedented move for a special counsel. . . .
Prelogar approved the appeal of Cannon's ruling but rejected Smith's plan to seek the judge's removal, saying he didn't have a strong enough basis to do so. Smith decided not to ask Garland to overrule Prelogar. If Smith had asked and Garland then turned him down, the Justice Department would have been required to notify Congress, and the disagreement would have surely become public.
I had long wondered whether Prelogar approved the appeal. It is said that the Special Counsel is "independent." But this is not true. Under DOJ regulations, the Solicitor General must approve any appeal. So yes, the Biden Justice Department did approve this appeal to the Eleventh Circuit. It is balderdash that political appointees were not involved in the prosecution against Trump.
The request to remove Cannon makes little sense. At this point, there was a final judgment, and the case was bound to the Eleventh Circuit and then to the Supreme Court. A remand to Judge Cannon could be more than a year away. Why would he want to remove her at this juncture? The higher court would either affirm or reverse the merits ruling.
Finally, Smith didn't need to ask Garland for permission. It is very likely that SG Prelogar asked AG Garland for his opinion. If so, there is a clear workaround to the rules concerning the interactions between the AG and Special Counsel.
There is another issue here that is not addressed. Judge Cannon found a violation of the Appointments Clause. She also found that there was not a valid appropriation for his prosecution. Smith did not seek a stay of that ruling. Therefore, every dollar spent after Judge Cannon's ruling, arguably, was unlawful. I do not know if there may be an Anti-Deficiency Act violation, or perhaps a possible qui tam action.
Calling High School Student "Low IQ" and "Special Ed" at School Meeting About Cheating Can Be Defamatory
From last week's decision in Hamson v. Foothills Christian Academy Soc'y of Backus, MN, decided by Minnesota Court of Appeals Judge JaPaul Harris, joined by Judges Francis Connolly and Jon Schmidt:
The following facts derive from the evidence in the summary-judgment record and are framed in the light most favorable to [Hamson] as the nonmoving [party].
Hamson was enrolled as a student at Foothills, a private school, for the 2021-2022 academic year. At that time, Foothills used a password-protected computer grading system to track student assignments and grades. Some teachers and administrators could only unlock assignments, review student progress, and grade work, while other teachers and administrators could also change or override grades.
During the school year, a teacher's aide learned that students were logging into the system using a teacher's credentials and changing their grades. Hamson's former teacher also noticed that Hamson's assignments were being modified in the system. The teacher's aide "conducted an in-depth investigation on every student within [the] high school classroom" to discover when the grades were being overridden, and by whom. This investigation took place on April 4, 9, and 11, 2022. During this investigation, the teacher's aide gathered "strong evidence" that several students, including Hamson, used a former teacher's account to access the system and change their grades. Ecker confronted Hamson, and she admitted that she altered her grades.
Today in Supreme Court History: October 28, 1787
10/28/1787: James Wilson gives speech to the Pennsylvania ratification convention, arguing that there was no need for a Bill of Rights.
How Property Rights and Markets Are Overcoming the Marine Tragedy of the Commons
A discussion on the "Taboo Trades" podcast.
Last week, I was a guest on Kim Krawiec's "Taboo Trades" podcast--"a podcast about things we are not supposed to sell, but do anyway"--to discuss how tradeable rights have helped advance marine conservation. The discussion drew upon my (co-authored) article "Learning How to Fish," which had been previously published in the UCLA Journal of Environmental Law and Policy.
As we discussed, fishery conservation is a particularly good example of how property rights and markets can advance environmental goals. This is not merely a matter or economic theory, as we now have substantial empirical evidence of how the use of such tools can work.
One thing that is particularly neat about the "Taboo Trades" podcast is that it is put together by Professor Krawiec's class on "Taboo Trades" at the University of Virginia Law School. While Prof. Krawiec invites the guests, her students do most all of the questioning, which makes for a neat experience as the guest.
For those interested, the episode is available for a listen here.
Monday Open Thread
What's on your mind?
Listening to Justice Barrett
My review of Amy Coney Barrett's Listening to the Law.
I reviewed Justice Amy Coney Barrett's Listening to the Law: Reflections on the Court and the Constitution for Civitas Outlook. My bottom line: the book is a worthwhile contribution to the shelf of books by sitting Supreme Court justices.
My review begins:
Amy Coney Barrett was not a likely judge, let alone a likely Supreme Court justice. A young Amy Coney did not even aspire to be a lawyer. She only settled on law school after college, over pursuing an English PhD, and excelled. She was an exceptional student who earned the admiration of her classmates and the profound respect of her professors, who would soon invite her to become a colleague. In 2002, she joined the faculty of the Notre Dame Law School, seeming to fulfill her professional vocation.
Just as her intellect had always attracted the notice of her peers, then-Professor Barrett attracted notice within the conservative legal movement. This led to her appointment to the U.S. Court of Appeals for the Seventh Circuit — one of several academics placed on the appellate bench during President Trump's first term — and just three years later, her elevation to the U.S. Supreme Court, replacing Justice Ruth Bader Ginsburg.
Within a year of joining the Court, Justice Barrett signed a book deal reportedly worth $2 million. The deal raised eyebrows in some quarters, even though most other recently confirmed justices have done the same, and some have earned more. Justice Barrett's book itself, Listening to the Law: Reflections on the Court and the Constitution, should not provoke much controversy, however. An instant New York Times best-seller, it is a valuable contribution to public discourse about the role of the courts and the Constitution.
Although Justice Barrett was an academic, this is not an academic book; far from it. Listening to the Law is written for an educated lay audience. It seeks to elucidate and explain, not break new ground. It is accessible and clear but not simplistic. In this regard, it has much in common with the late Chief Justice William Rehnquist's book on the Supreme Court, though it is also a bit more revealing and prescriptive. Indeed, Listening to the Law is likely the best lay introduction to the Court, the Constitution, and the reigning judicial philosophy in print. (And given how often critics of originalism struggle with fairly characterizing the target of their efforts, quite a few practitioners and legal academics would benefit from reading it too.)
The whole review is here.
Review of The Heritage Guide to the Constitution in the Washington Free Beacon
"It is, quite simply, the most thorough, useful, and readable guide to our fundamental law available today.
Ilya Shapiro, my friend and frequent co-author, reviewed The Heritage Guide to the Constitution in the Washington Free Beacon.
Here is the introduction:
There's a familiar lament among constitutionalists—one heard at law schools, in courtrooms, and across think tank hallways—that most Americans know next to nothing about the nation's founding document. Ask a random college graduate about the Emoluments Clause or the Compact Clause and you'll get a blank stare. Yet even among lawyers and judges, constitutional knowledge is often shallow, piecemeal, or warped by ideology.
What's been missing is a single, reliable, readable, and comprehensive reference work that explains what the Constitution actually says, what its words meant to those who wrote and ratified them, and how those meanings have been interpreted over time
Enter The Heritage Guide to the Constitution, now in its third edition and more indispensable than ever. Originally published in 2005, with an updated edition in 2014, this volume has long been a mainstay for those of us who care about constitutional text, structure, and history. But the new edition isn't just an update. It's a major expansion and refinement, reflecting nearly a decade of scholarship, jurisprudence, and debate.
If the Constitution is our civic scripture, this is the annotated commentary you want by your side—with a foreword by former attorney general Edwin Meese and an introduction by Justice Samuel Alito! Kudos to lead editors Josh Blackman and John Malcolm (both friends and professional collaborators of mine).
And from the conclusion:
The Heritage Foundation has always seen itself as a steward of America's Founding principles, and this book is one of its finest contributions to that mission. In an era when too many view the Constitution as a "living" document to be bent toward whatever policy end is fashionable, the Heritage Guide offers a refreshing alternative: rigorous, sober, historically grounded analysis of the document as it is.
No single volume can settle every constitutional debate, but if you want a reference that will make you smarter every time you open it, this is it. It is, quite simply, the most thorough, useful, and readable guide to our fundamental law available today. And at a time when constitutional literacy has never been more needed, that makes it a civic treasure.
The Heritage Guide to the Constitution is what every serious student of American government—and every citizen who wants to remain free—should own. It doesn't tell you what to think; it gives you the tools to think constitutionally.
If you've purchased the book on Amazon, please leave a review!
Yasiel Puig, AI-Hallucinated Citations, Gambling, and Libel
From an L.A. Superior Court order earlier this month in Yasiel Puig Valdes v. All3 Media, LLC:
In reply, Moving Defendants contend that Plaintiff's opposition should be stricken for citing fabricated cases. Upon review of Plaintiff's opposition, the court confirms that Plaintiff improperly cited to "Edwards v. Hearst Corp. (1991) 53 Cal.3d 30, 43" and "Heath v. San Joaquin Comm. Hosp. Dist. (1993) 15 Cal.App.4th 708, 713-14". (Opp., at p. 5.) These cases apparently do not exist. At the hearing, the Plaintiff's counsel confirmed that those citations do not exist and appeared when Plaintiff's counsel sought the assistance of ChatGPT to assist him in filing the Opposition.
Today in Supreme Court History: October 27, 1787
10/27/1787: First Federalist Paper is published.
Why Fentanyl Smuggling isn't War and Cannot Justify Extrajudicial Killing
Thus, Trump's attacks on boats in the Carribean have no moral or legal justification.
Donald Trump continues to order strikes on boats carrying supposed drug traffickers in the Carribean and the Pacific, killing an estimated 43 people so far. I have previously written about why these attacks are both illegal and unjust. See also insightful analyses by Brian Finucane at Just Security (here and here). Drug smuggling is, at most, a criminal law issue, not an act of war. And, in many cases, the people targeted either were not actually smuggling drugs or were not on their way to the US (US law cannot and does not forbid mere possession of drugs in international waters).
The most common answer to such critiques is that the strikes are justified because the supposed smugglers are transporting fentanyl, and fentanyl overdoses kill thousands of Americans each year. Thus, it is claimed, fentanyl smuggling represents a threat akin to terrorism (labeled "narco-terrorism" by the administration), and Trump is justified in using military force to forestall it.
This equation of drug overdoses with terrorist attacks overlooks the fundamental moral and legal difference between deaths that occur as a result of violent attack and those that occur because consumers voluntarily imbibed a dangerous drug. Many people die every year, at least in part because they chose to adopt dangerous consumer habits. For example, many thousands of deaths per year are obesity-related. Obesity is greatly exacerbated by bad diets. It doesn't follow that manufacturers and sellers of junk food are the moral equivalent of terrorists, and that the US government would be justified in killing them without any due process. The same goes for producers of many other products whose consumption contributes to poor health outcomes, such as alcohol, cigarettes, and more.
In the case of illegal drugs, the negative health effects are actually exacerbated by prohibition. The fentanyl crisis is itself largely a result of the War on Drugs, a predictable consequence of the "Iron Law" of prohibition, under which banning legal markets incentivizes dealers and users to turn to harder, more potent drugs.
In my view, the real evil here is the War on Drugs, which causes immense harm, and violates the fundamental principle of bodily autonomy. People should be able to decide for themselves whether the benefits of taking a given drug are worth the costs, including negative effects on health. The same goes for eating junk food, drinking alcohol, and so on. Ending the War on Drugs would simultaneously protect liberty and greatly reduce the role of organized crime and drug cartels in the drug trade - just as the end of alcohol Prohibition greatly curtailed the role of criminal organizations in that industry.
But at the very least, there is no moral or legal justification for turning the War on Drugs into a real war by executive fiat. Only Congress can authorize war, and it has not done so here (and for good reason).
But don't take my word for the importance of the distinction between terrorism and fentanyl smuggling. Take that of John Yoo! Prof. Yoo, a prominent conservative legal scholar, is the leading champion of sweeping executive power over national security issues. But he nonetheless concludes, in a recent Washington Post op ed, that Trump has gone too far, here:
These attacks risk crossing the line between crime-fighting and war. The Trump administration is right that illicit drugs are inflicting more harm on the U.S. than most armed conflicts have. More than 800,000 Americans have died of opioid overdoses since 1999….
But the U.S. cannot wage war against any source of harm to Americans. Americans have died in car wrecks at an annual rate of about 40,000 in recent years; the nation does not wage war on auto companies. American law instead relies upon the criminal justice or civil tort systems to respond to broad, persistent social harms. In war, nations use extraordinary powers against other nations to prevent future attacks on their citizens and territory. Our military and intelligence agents seek to prevent foreign attacks that might happen in the future, not to punish past conduct….
As an official in the Justice Department's Office of Legal Counsel, I was at my desk on Sept. 11, 2001. I advised that the U.S. could wage war against al-Qaeda without blurring the distinction between crime and war. After 9/11, the U.S. declared that it would wage war for the first time against an organization, rather than a nation. But the drug cartels alone do not present a similar challenge that rises to the level of war.
Crime is generally committed for personal gain or profit rather than a political goal. Drug cartels employ murder, kidnapping, robbery and destruction to create a distribution network, grab turf from other gangs, intimidate rivals or customers, and even retaliate against law enforcement. National security threats, such as terrorist groups, might resemble organized crime in some respects, but the Mafia and drug cartels are unconcerned with ideology and are primarily out to satisfy their greed.
Like a nation, a terrorist group conducts attacks that are highly organized, military in nature, and aimed at achieving ideological and political objectives. A terrorist group might resort to crime for funding, such as stealing money or defrauding charities, but terrorist groups use the money for military and intelligence efforts rather than the mere accumulation of wealth. An enemy's conscious political objective distinguishes war from general crime, which exists at a persistent level, and which society will never completely extinguish.
I think Yoo's analysis here understates the harm caused by the War on Drugs, even in its conventional criminal-justice form. But he's absolutely right about the distinction between crime and war.
There is no war here. Thus, Trump's boat strikes do not even qualify as war crimes. They are just plain ordinary crimes, a form of extrajudicial murder.
Today in Supreme Court History: October 26, 1774
10/26/1774: First Continental Congress ends its first session in Philadelphia.
Sunday Open Thread
What's on your mind?
JS Bach, Re-Imagined
To take our collective mind off of more disturbing news, a recommendation for some new music
My son Sam, as some of you know, is an accomplished pianist and composer here in DC. [his website's here] He and Ralitza Patcheva, a close friend and colleague (and masterful Bach interpreter), have just released an album on Acis Records that is generating (deservedly so, in my opinion) some buzz: The Well-"Tampered" Clavier, in which each of the 24 Preludes and Fugues in Book 1 of JS Bach's magisterial "Well-Tempered Clavier" are rhythmically re-worked and re-imagined.
It's pretty wild: think Bach meets Scott Joplin, Dmitri Shostakovich, and Thelonious Monk.
The CD, and streaming links and other info, are all available here. Have a listen. I realize that a father's recommendation is by its very nature of questionable reliability, and that, ties of blood being what they are, I might urge you to listen even if I didn't think the music was very good. But that doesn't mean that I think this music is not very good - quite the contrary. I am very much a worshipper at the Bach altar, and I think Sam and Ralitza have come up with something that deepens one's engagement with the original while being new and interesting and fun to listen to. See if you agree!
Lying Lawyers
An alarming compendium of DOJ misrepresentations and falsehoods
[Update 10-26: Apologies to the good folks at NYU Law School for mistakenly attributing JustSecurity.com to the Law School at Michigan (where they run a different compendium of legal actions against the Administration at the Civil Rights Clearinghouse.]
[There was a rather fascinating panel discussion at the Society for the Rule of Law summit this past week. [see a summary here ] Three retired federal judges -- Paul Grimm (ex-D MD), Nancy Gertner (ex- D MA), and Michael Luttig (ex- CA4), moderated by Benjamin Wittes of Lawfare -- spoke for an hour about what Judge Luttig called "the most important moment in all of American history . . . when the nation needs the federal judiciary more than it has ever needed it, and will ever need it again."
Judge Luttig[1] described the crisis this way:
Every day of the week, for the past 10 months, [district court] judges are facing the President of the United States and Attorney General of the United States… lying to their face. Lying to the judges. The prosecutors are lying to the federal courts. Meanwhile, outside the courtroom, the President of the United States, and the Attorney General of the United States, are trashing the federal courts. Trashing the individual judges. Calling them every name in the book. Never in American history has this ever happened.
The arguments that are being made… by the Department of Justice attorneys under Pam Bondi are contemptuous. Not just of the Constitution and the rule of law, but contemptuous of the federal courts, and even, if not especially, contemptuous of the individual judges that are hearing the cases. Not only has this never happened in all of American history, not one argument, but the arguments that these people are making to the federal courts has ever been made in American history, dripping with the contempt that these arguments are.
Judge Gertner put it this way:
It's not just an issue of the arguments they're making. They're lying. They are misrepresenting things. One of the things I thought after Trump was elected, and when the political debate made it into the courts, one of the things we know about courts is that there's a level of civility. That the lawyers, true to their oaths, will not lie, will not misrepresent, will not say they do x and do y. What is the most shocking of all — at a time when you're always shocked — is that that's not true. That's not true with respect to the Department of Justice lawyers. They will say x, they will do y, and recent whistleblower accounts suggest that they are openly and brazenly misrepresenting to the court. The system fractures what it happens.
If you think they're exaggerating - "Trump Derangement Syndrome!!" - here is the study Judge Gertner cited, from the Michigan NYU Law School's "Just Security" project, detailing 43 cases where federal court judges have called out the DOJ for having made serious misrepresentations - including a substantial number of outright, bald-faced lies - to the courts.
I know . . . what else is new? "Dog bites man." No point getting worked up about it, since it's only #6, or #17, on the ranked list of threats to constitutional norms and the constitutional order. But even if it's only for the future historian compiling a history of the Trump Era, it is worth noting.
And on a considerably more optimistic note, the panelists expressed a number of interesting thoughts on what they all agreed has been a "spectacular" performance by federal district court judges of all political stripes in the face of this onslaught. A ray of hope in this dismal prospect. They also discussed at length the question of whether or not the Supreme Court has given the lower courts adequate support for their efforts - a subject I'll leave for a future post.
[i] Judge Luttig was appointed to the 4th Circuit by George HW Bush in 1991, and I think it is fair to say that he is as rock-ribbed a Republican – in the old, honorable sense – as they come, and also that he is boiling with rage at the Administration's many-fronted attack on the rule of law.
Today in Supreme Court History: October 25, 1795
10/25/1795: Justice John Blair resigns from the Supreme Court.
