10/25/1795: Justice John Blair resigns from the Supreme Court.
Today in Supreme Court History: October 25, 1795
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Solar panels, campus protests, and not much due process.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Governor Abbott Appoints Kyle Hawkins As Justice Of The Supreme Court Of Texas
I am pleased to report that Kyle Hawkins is the newest member of the Texas Supreme Court. I got to know Justice Hawkins during his tenure as Texas Solicitor General. With principle and courage, he represented Texas before the United States Supreme Court and the Supreme Court of Texas. I, for one, was partial to his argument in California v. Texas, even if the Supreme Court was not.
Justice Hawkins will be a brilliant jurist and a committed originalist.
Texas is very lucky to have him. Dare I say, Texas might have the deepest state supreme court bench in the country?
Here is the announcement:
Governor Greg Abbott appointed Kyle Hawkins as Justice, Place 7, on the Supreme Court of Texas for a term set to expire on December 31, 2026.
"Kyle Hawkins is a proven defender of both the U.S. and Texas Constitutions," said Governor Abbott. "Most recently, as a lawyer for President Trump's Department of Justice, he fought for the freedom of states like Texas to administer Medicaid programs consistent with pro-life values. As Texas Solicitor General, he litigated critical cases at the highest levels of the state and federal judiciary, from challenging the federal overreach of Obamacare to defending Texas' election integrity measures. In private practice, he has handled complex civil disputes at the heart of our thriving economy. Hawkins' tremendous experience will be an asset to the highest court in Texas as he remains steadfast in his dedication to the rule of law and the preservation of the liberties granted by God and enshrined by our founders."
Kyle Hawkins of Austin is a partner at the firm Lehotsky Keller Cohn LLP. Hawkins has over 16 years of experience in public and private practice. Previously, he served as Counselor to the U.S. Solicitor General, the Texas Solicitor General, and as a commercial litigation partner in the Dallas and Houston offices of Gibson Dunn & Crutcher. He previously served as a law clerk to Justice Samuel A. Alito Jr. of the U.S. Supreme Court and to Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit. Additionally, he served as an Adjunct Professor of Law at the University of Texas Law School, where he taught seminars on constitutional law and oral advocacy. Hawkins received a Bachelor of Arts from Harvard College and a Juris Doctor from the University of Minnesota Law School.
Friday Open Thread
What's on your mind?
Two Federal Judges Apologize For Issuing Opinions With AI Hallucinations
An intern and a law clerk used generative AI, and the judges didn't catch the hallucinations.
In July, I wrote about Judge Julien Xavier Neals of the U.S. District Court for the District of New Jersey, who withdrew an opinion that used generative AI. Judge Henry T. Wingate of the Southern District of Mississippi likewise withdrew an opinion that used generative AI. Both opinions included made-up citations, which were obvious hallucinations.
Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, wrote to both Neals and Wingate.
Both judges wrote to Judge Robert Conrad, the Director of the Administrative Office of the U.S. Courts.
Judge Neals explained that a law school intern used generative AI, in violation of chambers policy, as well as the student's law school's policy:
As referenced in the Senator's letter, a "temporary assistant," specifically, a law school intern, used CHATGPT to perform legal research in connection with the CorMedix decision. In doing so, the intern acted without authorization, without disclosure, and contrary to not only chambers policy but also the relevant law school policy. My chambers policy prohibits the use of GenAI1 in the legal research for, or drafting of, opinions or orders. . . .
I would be remiss if I did not point out as well that the law school where the intern is a student contacted me after the incident to, among other things, inform me that the student had violated the school's strict policy against the use of GenAI in their internships.
Judge Neals has his chambers in Newark. We can guess which law school the student attends.
Judge Wingate explains that his law clerk used generative AI. However, the draft was published prematurely before it was checked:
In the case of the Court's Order issued July 20, 2025, a law clerk utilized a generative artificial intelligence ("GenAI") tool known as Perplexity strictly as a foundational drafting assistant to synthesize publicly available information on the docket. . . .
The standard practice in my chambers is for every draft opinion to undergo several levels of review before becoming final and being docketed, including the use of cite checking tools.1 In this case, however, the opinion that was docketed on July 20, 2025, was an early draft that had not gone through the standard review process. It was a draft that should have never been docketed. This was a mistake. I have taken steps in my chambers to ensure this mistake will not happen again, as described below
Judge Conrad also sent a letter to Senator Grassley. The AO does not keep statistics on judges who have withdrawn opinions with hallucinations:
We are aware anecdotally of incidents in which judges have taken official action (such as those described above) relating to the integrity of court filings in which the use of AI tools was in question, although we currently do not systematically track such activity at the national level.
We learn that the AO convened a task force on generative AI.
The interim guidance cautions against delegating core judicial functions to AI, including decision-making or case adjudication, and it recommends that users exercise extreme caution especially if using AI to aid in addressing novel legal questions. It recommends that users review and independently verify all AI-generated content or output, and it reminds judges and Judiciary users and those who approve the use of AI that they are accountable for all work performed with the assistance of AI.
I suspect some district court judges will impose the requisite layers of review to detect hallucinations. Other district court judges, who delegate much of their work to law clerks, will not perform these checks.
Litigants should check any adverse decision for hallucinations. This simple step will be cheaper than filing an appeal.
In Search of a "New Environmentalism"
A series of essays at Law & Liberty
This month's Law & Liberty Forum features a series of essays explaining the need for a "New Environmentalism" and what such an environmentalism might look like. Steven Hayward has the lead essay. I authored a response, as did Richard Morrison and Allan Carlson. Hayward will have a reply next week.
Hayward's essay begins outlining the need for change:
Is it possible that we have reached a turning point for environmentalism? Perhaps we have already reached it, but don't fully recognize it yet?
Let's start with a basic axiom: the environment is too important to be left to environmentalists. Ever since the first Earth Day in 1970, which can be said to mark the birth of the modern environmental movement, environmentalism has been wedded to a narrow and often fanatical policy architecture that can accurately be described as demanding billion-dollar solutions to million-dollar problems, almost always choosing strategies that maximize political and legal conflict. The result is a kludgy regulatory regime and ongoing political gridlock. Sometimes, policy delivers perverse results in the form of worsening some environmental conditions.
He offers a brief explanation of how environmental protection reached this point, and identifies several policy reform ideas.
My contribution, "Liberal Principles for a New Environmentalism," offers my own account of how modern environmental policy went wrong and what environmental protection grounded in classical liberal principles would look like. It begins:
Congress constructed the edifice of federal environmental regulation atop a pile of misconceptions and mistaken assumptions. Once erected, it has withstood meaningful efforts at reform, and atrophied. However much some existing laws helped address twentieth-century environmental problems, they are increasingly obsolete and ill-suited to today's environmental challenges.
Steven Hayward is absolutely correct that "it is long past time for something new," and properly identifies many of the key attributes upon which a "new environmentalism" could be built. The case for greater utilization of property rights and supplementing market incentives for environmental purposes, such as through prizes, is quite strong. Substantial challenges remain, however. The environmental policy establishment shows little sign of altering course, and, at present, right-of-center political leaders show little interest in a serious or substantive approach to environmental policy.
The birth of the modern environmental movement coincided with an explosion of federal environmental legislation. In less than a decade, Congress enacted a raft of statutes seeking to counteract the environmental consequences of industrialization and centralize control of environmental policy in Washington, DC. Yet, as Hayward suggests, the specific contours of the new regulatory regime were premised upon mistaken, and in some contexts quite harmful, assumptions. For many in the nascent political movement, an environmental crisis required a reconsideration of basic liberal ideals, such as the importance of individual liberty and a belief in progress. In reality, it would have been more productive to commit more fully to applying classical liberal principles to ecological concerns—but that was not the road taken.
Like Hayward, I believe this requires recognizing the importance of property rights, particularly for conservation purposes, harnessing markets, and paying due regard to economic incentives. Unlike Hayward, I am not particularly sanguine about what sorts of policy progress is currently possible.
Particularly with the benefit of hindsight, the outlines of an alternative environmental agenda should be visible, one that recognizes property rights as the foundation of effective conservation, embraces the importance of local community input, and encourages technological innovation and market-driven efficiency improvements. Such an alternative is in line with classical liberal principles and would align with constitutional values far more than the sprawling regulatory edifice we currently have in place.
The problem is that few political leaders have been willing to embrace such an alternative vision of environmental progress. As Hayward recounts, the initial wave of environmental lawmaking was a bipartisan enterprise. Over time, Republican lawmakers grew disenchanted with the growth of centralized environmental regulation and the environmentalist movement's near-unending appetite for further government constraints on productive economic activity. Yet few were willing to consider, let alone embrace, an alternative policy vision.
My essay concludes:
Despite the tremendous environmental progress of the past century, serious environmental challenges remain. Meeting such challenges in an effective and efficient way, without sacrificing other societal needs, will require turning away from the environmental paradigms of the past and embracing the sort of new environmental vision Hayward recommends. The real question is whether there are any political leaders willing to embrace such an environmental agenda and push for reform. Looking at Washington, DC these days, the forecast is cloudy.
Today in Supreme Court History: October 24, 1894
10/24/1894: U.S. v. E.C. Knight argued.
Zionism and Title VI
How campus antidiscrimination law might apply to campus protests.
I've recently posted on SSRN a new essay, "Zionism and Title VI," forthcoming in the Harvard Law Review Forum. HLR had asked me to respond to an essay by Professors Ben Eidelson and Deborah Hellman, applying Title VI's antidiscrimination rules to recent campus protests. Here's the SSRN abstract of my draft paper:
Universities across America have been accused of failing to protect their Jewish and Israeli students by failing to enforce their own rules on campus protests. Under Title VI of the Civil Rights Act, no one may be excluded from participation in a federally funded activity on the ground of race or national origin. Yet while some protests have allegedly targeted Jews or Israelis for exclusion from campus spaces, more are alleged to have targeted Zionists, those who support a national home for the Jewish people.
A recent essay by Professors Benjamin Eidelson and Deborah Hellman raises doubts about the statutory basis for many such claims. This Response argues that Title VI may apply more extensively to university anti-Zionism than the authors maintain. If made a condition of full participation in university life, anti-Zionism is a form of national-origin discrimination, creating a hostile environment for Israelis forced to abjure their national origin or Jews forced to abjure their nationhood. Israel is the Jewish state in the same ordinary sense in which Greece is the Greek state or Czechia the Czech state; "anti-Hellasist" or "anti-Czechist" restrictions would create hostile environments in just the same way, and the doctrinal arguments for these "untargeted" hostile-environment claims seem stronger than the authors suggest. When a university abandons its ordinary rules, moreover—ceding to a protest movement the authority to deny access to campus spaces or resources—it bears greater responsibility for that movement's actions and renders more menacing that movement's demands.
The Response concludes by noting that even when Title VI is silent, or even when free-speech doctrines might insulate violent slogans or student-group expulsions, the legal questions don't exhaust the moral ones. The campus anti-Zionist movement needn't be classified as antisemitism in law for it to be antisemitic in fact.
And from the introduction:
"When You Soon Return to Allah": "Harmless Islamic Reference[] About Life and Death" or an "'Absolute' and 'Direct' Threat" to Ex-Wife?
"Allah does not forget, however. This is how people earn their final place in the [h]ereafter."
Colorado Court of Appeals decisions were for a long time not available on Westlaw, and even access to them on the court's own site was limited. They have recently been put online, in batches, and some have come up in my searches; here's In re Weinraub & Carpenter, decided in 2019 by Colorado Supreme Court Justice Monica Márquez (sitting by designation on the Court of Appeals), joined by Judges Stephanie Dunn and James Casebolt:
In 2007, the parties married. During their marriage, father worked as an imam and administrator at a mosque in Denver. For her part, mother worked as a homemaker managing the household affairs and caring for the parties' five children.
In April 2016, following an incident of alleged domestic violence, which resulted in a criminal protection order, mother petitioned for dissolution of marriage…. Both parties are devout Muslims ….
The court upheld certain restrictions on the father's parenting time:
[Colorado law] authorized the district court to restrict father's parenting time so long as there was an allegation that the children were in imminent physical or emotional danger…. [In her petition for such a restriction, m]other included … [an] email exchange in which father wrote the following to mother:
Indiana County Elected Tax Assessor's Filings Contain AI Hallucination
From Tippecanoe County Assessor v. Goergen, one of several such opinions released that day by the Tax Court of Indiana (written by Judge Justin McAdam):
The Tippecanoe County Assessor, Eric Grossman, filed an original tax appeal in this Court without counsel. In his appeal petition, Grossman challenges the denial of a continuance by the Indiana Board of Tax Review as biased and raises constitutional claims related to Petitioner's "constitutional rights to due process and fair assessments."
The Tax Court concluded that Grossman couldn't represent the county because he wasn't a licensed lawyer, and only licensed lawyers may represent people or entities other than themselves in court. But it added the following:
The risks of allowing a non-attorney to represent others in court is made plainly apparent in Grossman's brief when he cites Hamilton Cnty. Assessor v. Allisonville Rd. P'ship, 170 N.E.3d 1117 (Ind. Tax Ct. 2021)—a case that does not exist. {While the Court cannot be certain of the origin of the fictitious case cited in Grossman's brief, it appears likely to be the result of a hallucination by generative artificial intelligence. The Court admonishes Grossman for citing a fictitious case in his brief and "caution[s] attorneys and pro se litigants alike against using AI to conduct legal research without independently verifying the citations generated. Judges must be able to rely on the authenticity of the authorities cited by the parties to make just decisions." Litigants have a duty to verify the authenticity of authoritative sources cited to the Court and ensure they are used accurately.} …
I reached out to Mr. Grossman, and he responded, graciously and in detail. Here is a written statement that he passed along:
A Monstrous Misunderstanding of Martin v. Mott: Why the Supreme Court Should Stay Its Hand Rather Than Judge Perry's Temporary Restraining Order
A guest post by Prof. John Dehn.
President Donald Trump's attempts to federalize the National Guard and use it for domestic law enforcement are the subject of ongoing litigation in California, Oregon, and Illinois. What follows is a guest post on this important issue by Professor John Dehn, a leading experts on legal issues surrounding domestic use of the military. Prof. Dehn is also a former US Army officer, who spent fifteen years serving as a military judge advocate.
Building on a previous guest post, coauthored with Josh Braver, Dehn explains why judicial deference to presidential invocations of emergency powers to federalize the National Guard is not required by the Supreme Court's 1827 decision in Martin v. Mott., which has become a central focus of contention in these cases.
I myself have written about the Illinois litigation here, California litigation here and here, and about the more general issue of judicial review of emergency powers here. What follows below was written by John Dehn, not by me (Ilya Somin), though I generally agree with it, and certainly agree on the bottom line conclusion:
The Trump administration has misinterpreted, and to this point some appellate judges have misunderstood and misapplied, the Supreme Court's narrow decision in Martin v. Mott. The administration claims Martin establishes that presidents possess judicially unreviewable authority to determine whether exigent circumstances justifying a domestic use of the armed forces exist. This would mean that President Trump may federalize and deploy National Guard troops whenever and wherever he deems appropriate. In support, it primarily relies on one sentence of the Martin opinion, which Justice Story described as a "sound rule of [statutory] construction" rather than a doctrine of constitutional law.
"We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons."
Although district court Judge April Perry and a Seventh Circuit panel correctly concluded that Martin is not controlling in the context of National Guard deployments to support domestic law enforcement activities, the Ninth Circuit has twice concluded that this single, unqualified sentence represents binding Supreme Court precedent. It seems some judges and even some esteemed commentators do not appreciate the very limited context to which this sentence applied, and therefore the much narrower principle or doctrine that it should be understood to establish. Here, I want to briefly add something to what I have already written about this case (with Professor Joshua Braver) and then explain why the Supreme Court should stay its hand rather than Judge Perry's temporary restraining order.
Martin v. Mott was a replevin action that collaterally attacked the court-martial conviction of a militiaman, Jacob Mott, who disobeyed an order to muster and whose mare had been seized by Martin, a deputy U.S. marshal, to satisfy the fine imposed. Justice Story's opinion addressed various challenges to that order and the prior proceedings. Regarding the sentence for which he is being cited, Story's primary concerns were the negative consequences that allowing Mott's claims would have on: discipline in the ranks, the authority of the military chain of command, and the security of the country. His opinion did not address, and in the context of the case could not have addressed, the general ability or authority of courts to review a president's purported justification for the mobilization and use of the armed forces under a statute, or the legality of any measures he may direct them to employ. No issues beyond the legal authority for the mobilization order, the court-martial, and the resulting seizure were raised.
Any doubts about this understanding of Story's opinion are clarified by his citation to an 1814 opinion from the Supreme Court of New York in Vanderheyden v. Young, about which Story wrote, "the reasons in support of [the rule Story posited] were most ably expounded by Mr. Justice Spencer." As it turns out, reviewing Spencer's exposition of that rule is incredibly helpful to understanding Story's opinion. In a suit for damages against an officer who presided over the court-martial of another delinquent New York militiaman, Justice Spencer more completely articulated the rule of construction on which Story relied but only partially articulated:
It is a general and sound principle, that whenever the law vests any person with a power to do an act, and constitutes him a judge of the evidence on which the act may be done, and, at the same time, contemplates that the act is to be carried into effect, through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is, quoad hoc, a judge. His mandates to his legal agents, on his declaring the event to have happened, will be a protection to those agents; and it is not their duty or business to investigate the facts thus referred to their superior, and to rejudge his determination. [emphasis added]
Justice Spencer also explained that any contrary doctrine "would be monstrous" for military discipline (using terms later echoed by Justice Story). If soldiers could challenge such orders in this way, he said, "[n]o man would dare to obey the orders, either of the president, or of his superior officer, lest, peradventure, the president had either abused his authority, or misjudged, in relation to the occurrence of the fact, which authorized him to call forth the militia."
Thus, Story's citation to Vanderheyden establishes that the cited sentence in the Martin opinion pertains only to the military chain of command and to damages or other redress available to disobedient militiamen punished by their superiors. It is not a general statement about the authority of courts to review such presidential determinations in suits for relief from actual or impending injuries stemming from a president's alleged misuse of statutory powers involving the armed forces.
But there are even more reasons why Martin v. Mott should not be understood as controlling in the present litigation. For example, the Act at issue in Martin has been amended and was later deconstructed and codified not only in 10 U.S.C. § 12406 but also 10 U.S.C. § 251, § 252, § 253, and § 254. The lower federal courts have yet to fully address and account for the effect of these changes, as Judge Nelson's confused concurring opinion in the most recent Ninth Circuit decision demonstrates.
Additionally, the use of federal armed forces or federalized National Guard troops for domestic law enforcement is now generally prohibited by the Posse Comitatus Act, "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress." (emphasis added) It is also a sound rule of statutory construction that exceptions to general criminal prohibitions are to be construed narrowly, which arguably empowers courts to ensure that a president has done so. Thus, one might fairly conclude that even if the President invokes the Insurrection Act, an exception to the Posse Comitatus Act, and notwithstanding any statutory text that appears to grant broad presidential discretion to do so, courts may engage in judicial review to determine whether his invocation was proper. Dalton v. Spector is not controlling when a president exercises statutory discretion in a way that raises constitutional issues, as has been alleged in Illinois v. Trump.
Moreover, as Professor Steve Vladeck has explained, an overbroad reading of this sentence from Martin would be monstrous for the Constitution, the country, and the rule of law. Generally applying Story's incompletely articulated rule of statutory construction to statutes authorizing domestic use of the armed forces in emergencies is not only irreconcilable with recent Supreme Court decisions addressing similar issues (e.g. Loper Bright), it also would allow a president to unilaterally militarize or supplant the Constitution's framework for civil governance on a whim. Congress possesses no constitutional authority to grant a president such discretionary power, and courts should generally interpret statutes in a manner that avoids raising such serious constitutional issues. (E.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council) For the same reasons, the Court should not interpret Mott or the present circumstances as falling within the category of a non-justiciable political question.
All of these observations provide ample reasons for the Supreme Court to stay its hand in these cases rather than the temporary order of a lower federal court. Its consideration of the complicated and, as yet, underexamined legal and factual issues in these cases would clearly benefit from further proceedings and, dare I say, additional legal scholarship that is undoubtedly in the works.
There is yet another important reason the Supreme Court should stay it hand in this case: the Trump administration's "unclean hands." Although an administrative stay is not technically a form of equitable relief to which the clean hands doctrine may be applied, federal courts consider similar factors when deciding whether to grant one. The heavy-handed, unconstitutional tactics of Immigration and Customs Enforcement (ICE) agents have undoubtedly increased the number and intensity of the protests against ICE operations in Chicago. In a separate case, Judge Sarah Ellis determined that federal agents in Chicago have used excessive force against protestors, members of the media, and others presenting no imminent threat of harm to the officers or others, which entail violations of (at a minimum) the First and Fourth Amendments. Upon finding that the administration may be ignoring her first order Judge Ellis amended it, granting additional relief. News reports also indicate that ICE has engaged in war zone-like operations that involve what appear to be additional violations of the Fourth Amendment and perhaps of an applicable consent decree as well. This abusive and dehumanizing behavior is not only unconstitutional but seems calculated to instigate the very outrage that the administration now claims it needs federalized National Guard troops to protect itself from. The Supreme Court should not effectively condone such reprehensible and cynical behavior by granting the administration's request for a stay.
John Dehn is associate professor and faculty director, National Security and Civil Rights Program at Loyola Law School.
Help Legislators Legislate Again
Legislative disfunction is at the root of many current controversies, and past legislation bears part of the problem.
Congress needs to get back into the business of regular and routine legislating. Chris Walker and I explored some ways Congress could facilitate that endeavor in "Delegation and Time." This morning, I have a brief essay discussing how well-intentioned legislation—campaign finance legislation in particular—has hampered the ability of members of Congress to do their job. The essay is part of "100 Ideas in 100 Days," an initiative of the NYU Democracy Project.
The essay begins:
Congress is failing at its most basic constitutional function: legislating. While our representatives usually manage to pass appropriations bills and avoid extended government shutdowns, the regular process of lawmaking has largely ground to a halt. This breakdown isn't just about passing fewer bills; it represents a fundamental erosion of Congress's ability to govern. Congress used to revisit and reauthorize foundational statutes on a regular basis. No longer. Old, obsolete laws remain on the books and new laws to address new or emerging problems rarely get enacted. The resulting policy-making vacuum encourages executive overreach and fosters litigation, as federal agencies try to apply outdated statutes to contemporary problems.
Congress is supposed to be a deliberative body in which representatives negotiate, compromise, and build consensus on the nation's most pressing challenges. True legislating requires assembling coalitions to build a majority and overcome procedural hurdles. This, in turn, requires mastering complex policy questions and developing relationships and trust across the aisle. Successful legislating requires recognizing that people of good faith can disagree and accepting that successful legislation rarely pleases everyone completely.
Many factors contribute to this legislative paralysis. Structural rules like the Senate filibuster often get blamed, but these same procedures didn't prevent meaningful legislative action in previous decades. The root causes of persistent obstruction and legislative inertia lie elsewhere. Some contributors are apparent, such as the increase in political tribalism. Others, less so, such as campaign finance rules.
As I discuss, campaign finance laws effectively require members of Congress to spend more time fundraising and less time legislating. The time spent in phone banks and fundraising events eclipses time developing expertise, caucusing with other legislators, and working the legislative process. Worse, these laws incentivize attention-seeking behavior that can attract small-dollar donors from across the country, and effectively discourage compromise and coalition-building. (Put another way, we can thank campaign-finance laws for the likes of Marjorie Taylor Greene.)
The essay closes:
The irony is stark: campaign finance rules designed to democratize political fundraising and reduce the influence of special interests have inadvertently made legislating more difficult. However well-intentioned, limits on individual contributions and party support have undermined the activities necessary for effective governance—relationship-building, compromise, and nuanced policy development.
Loosening existing contribution limits would not be a silver bullet. There are other factors that fuel performative politics and tribal division. But making it easier for legislators to do their actual jobs is necessary if legislators are to legislate again.
Restoring Congress's capacity to govern will require more than procedural reforms. It demands a hard look at how existing laws, including campaign finance limits, shape legislative behavior and undermine our capacity for legislative governance.
My essay is here. The full series of 100 ideas in 100 days, which features contributions from across the political spectrum, is here.
First Circuit Rejects Harassment Claim Based on MIT Anti-Israel Protests: "[W]e Do Not Construe Title VI as Requiring a University to Quash Protected Speech"
A necessarily oversimplified excerpt from the >12K-word Stand with Us Center for Legal Justice v. MIT, decided by First Circuit Judge William Kayatta, joined by Judge Gustavo Gelpi and District Judge William Smith (D.R.I.):
Title VI of the Civil Rights Act mandates that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance." To hold MIT liable for violating this mandate, plaintiffs pursue a hostile environment, or "harassment," theory ….
Because plaintiffs base their claim so heavily on what the protestors said and wrote, we consider first whether plaintiffs' proposed application of a harassment claim under Title VI comports with First Amendment principles….
{[W]e do not construe Title VI as requiring a university to quash protected speech.} In light of [the] overriding interest in open debate, speech made in public that is related to matters of public concern has been given "special protection under the First Amendment" and thus "cannot be restricted simply because it is upsetting or arouses contempt." Snyder v. Phelps (2011) (internal quotations omitted) (protecting speech of Westboro Baptist Church protestors chanting "God Hates You," "Thank God for Dead Soldiers," and "Priests Rape Boys" at a funeral for a deceased soldier); Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) (finding a community college was not required to restrict a professor's emails related to immigration, race, and the "preservation of [a] White majority" because "[t]he Constitution embraces … a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race").
Similarly, the Supreme Court has long upheld "[t]he essentiality of freedom in the community of American universities," warning that "[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation." … Here, the student protestors engaged in speech on a matter of public concern—the conflict in Gaza—while on the campus of a private university in which they were enrolled. MIT chose to restrict that speech in part and allow it to continue in part. Now, plaintiffs seek to hold MIT liable, under a federal statute, for its failure to curtail that speech even further.
Today in Supreme Court History: October 23, 1991
10/23/1991: Justice Clarence Thomas takes oath.
The Asymmetry on Standing for Liberals and Conservatives
Justice Kagan acknowledged an unspoken truth in standing law: it is easier for blue litigants to have standing than for red litigants.
There are many asymmetries in the law between liberals and conservatives. The Voting Rights Act presents an asymmetry, as the law creates a de facto bonus for Democrats.
Standing doctrine is another significant asymmetry. In theory at least, this procedural doctrine should follow neutral principles, without regard to the merits. But my sense is that standing law is not applied neutrally. More often than not, blue states have standing but red states do not.
This disparity could be chalked up to the preference to dump hard cases on standing grounds to avoid deciding tough issues. But there may be another explanation. Liberals tend to file suits about the enforcement of the law, while conservatives tend to file suits about the non-enforcement of the law. Liberals can usually point to a clear injury in fact because a conservative government is causing that injury through the execution of the law. By contrast, conservatives have a harder time showing an injury because a liberal government is not executing the law, and thus not causing injuries.
Perhaps the most obvious example arises in challenge to immigration policies. Conservatives enforce immigration laws, so standing is clear. By contrast, through policies like DACA or DAPA, liberals do not enforce immigration laws, so states have to get creative on standing. Another prominent example is election law. Conservatives seek to tighten voting rules, through laws concerning voter ID, absentee ballots, ballot access, poll locations, and the like. Liberals try to not enforce those laws, and thereby loosen the rules of voting. The former type of laws create clear injuries in fact, while standing in the latter types of cases are not so clear.
During oral argument in Bost v. Illinois State Board of Elections, this asymmetry was acknowledged in candid terms.
Justice Alito stated the issue plainly:
JUSTICE ALITO: You have several arguments, and I don't want to get into most of them right now. But, on the issue of competitive injury, it's not clear to me why you couldn't have done a lot better than you did in your complaint and alleged what I think a lot of people believe to be true, which is that loosening the rules for counting votes like this generally hurts Republican candidates, generally helps Democratic candidates. Why didn't you pursue that? Why didn't you try to do something with that?
Justice Alito was miffed that Bost did not simply argue that the Democratic Illinois legislature extended the deadline to help Democrat candidates. Injury in fact, ipso facto. In other words, the very nature of the injury is that Republican candidates are generally hurt by the counting of late-arriving ballots. According to Justice Alito, this issue is not speculative, as the injury in Clapper was. Rather, the injury is virtually certain to happen: Democratic voters cast more absentee ballots, and Illinois knew this when it enacted the challenged law.
Justice Kagan acknowledged the premise of Justice Alito's comment:
JUSTICE KAGAN: So I'm curious, Mr. Clement --and I am going to actually limit this to Democrats and Republicans to --for purposes of this question. I mean, in a lot of these suits, it's the parties that sue, right? The RNC sues or the DNC sues. And, as Justice Alito suggested, it's usually fairly predictable what rules the RNC is going to sue on and what rules the DNC is going to sue on, and both have their favorite rules and their disfavored rules. And --and, usually, we don't think about standing in that area. But I'm wondering whether you think, like, I would think that the same standard should basically apply, that whether we think about it or not, what we're really asking is, is this the kind of rule that is likely to put your candidate at a disadvantage relative to where he was before? And, I mean, do you think that there's some separate inquiry for individuals, for candidates, as opposed to parties when they sue for these rules? . . .
Later, Justice Kagan referred back to the types of laws that Democrats challenge, such as restrictions on Sunday voting. Though she didn't say which laws that Republicans favor, she just referred, obliquely, to "different kinds of rules."
JUSTICE KAGAN: I don't think we've ever actually asked the RNC or the DNC to do anything like that. What we've asked the -the parties to do is to --and this is why you don't get these cases thrown out on standing grounds, because there are perfectly easy ways for a party to say why a new rule is going to harm them in the electoral game. You know, when --when Sunday ballot --when Sunday voting is shut down, the Democratic Party rolls into court and says this is going to harm us and the suit goes forward, and similarly for the Republican side on different kinds of rules.
Paul Clement responded to Justice Kagan's question in a fairly diplomatic sense. He said that Democrats challenge laws that "operate negatively directly on voters."
MR. CLEMENT: And one of the things that I think is particularly problematic is --you said it yourself --like, there are certain of these rules that the Democrats don't like and certain of these rules -
JUSTICE KAGAN: No question.
MR. CLEMENT: --that the Republicans don't like. Well, the rules that the Democrats don't like tend to operate negatively directly on voters. And so, when the --when the Democrats come in, they can marry up with a couple of voters and the Court can say the voters have standing, so we're done, we don't even have to think about the party or the candidate.
By contrast, Republicans challenge laws that make it easier to count votes.
MR. CLEMENT: The Republicans in a lot of these cases are challenging rules that allow you to keep counting ballots forever, keep the voting place open forever.
This, in a nutshell, is the asymmetry.
I think it likely that the Court will find standing in Bost. The Court's conservatives will see this asymmetry, and attempt to level the playing field. There cannot be unilateral disarmament on standing. And Justice Kagan, who served in the White House, sees this political problem. If I had to guess, either Justice Kagan or Justice Kavanaugh will have the majority opinion.
I am not certain about Justice Barrett. Going into the argument, I thought that the standing stickler would find that Bost's injury was too speculative. I also wondered how Barrett would find redressability with this pre-enforcement challenge. Yet, during the argument, Barrett was very quiet and only asked a few questions. She did ask about whether there was a "history and tradition" for this sort of standing, under Transunion. There was no interest on this issue from the other Justices. I don't think Justice Barrett would want to create a "bespoke" standing rule for election cases. She will favor her neutral principle of never finding standing. Maybe she was surprised with the tenor of the argument, especially that Justice Kagan favored a finding of standing? I can see this case going 6-3, or even 7-2 with Barrett and Jackson writing separate dissents. Take my prediction for what you paid.
Finally, there is another unstated premise that was discussed.
What, in particular, is the problem with extending the deadline by two weeks? Why does Bost need to keep his campaign staff employed for those two weeks? Paul Clement stated the obvious: chicanery can happen if there is more time to count ballots:
MR. CLEMENT: And, you know, I think it's telling that what --what you'd be paying for in using your volunteer resources for in that last two weeks is the --the --the --the --the ballot monitoring and the rest and the poll watching as they count these late-arriving ballots, and, you know, no less an authority than the League of Women Voters at page 20 of their amicus briefs says it would be political malpractice not to do this.
Justice Alito echoed this concern:
Why isn't that straightforward? Mr. Clement says, look, it's --it's political malpractice not to continue poll watching and related activities until the --the final bell actually tolls.
What is the fear? I suspect that Bost wold argue that in close elections, Illinois Democratic machines will "find" (gasp!) votes to make up any differences in vote counts. That is why Bost pays his team to keep monitoring the counting until the final bell is tolled.
SCOTUS Still Has PTSD From The 2020 Election
The Court will likely find standing in Bost to avoid the "nightmare scenario" of cancelling votes after they are cast.
Yesterday I wrote about Paul Clement's "Article III of the Deal" in Bost v. Illinois State Board of Election. It seems that the Court will find that a member of Congress has standing to challenge a law that permits the counting of absent ballots that are received two weeks after election day. Before the election, the law does not operate directly on candidates. And even after the election, the late-arriving ballots may have no appreciable impact on the outcome of the race. But during oral argument, several justices were mortified by the prospect of funneling these cases to post-election litigation. Specifically, the Justices worried that if the court finds that the Constitution prohibits counting these ballots, then judges would have to disqualify ballots. Indeed, the Supreme Court in particular might have to decide the outcome of the election!
It seemed clear that the Justices still have PTSD from the aftermath of the 2020 election.
Paul Clement, counsel for Representative Bost, spoke to these fears during his opening:
That decision is not only wrong but dangerous. It needlessly injects federal courts into the role of political prognosticators. It risks denying judicial access to minor party candidates, and it shuffles election disputes into the closest races and the worst possible context: Election disputes after the election, where federal courts are in the uncomfortable position of having to pick the political winners.
Justice Kavanaugh asked what would happen if this challenge was brought after the election. Paul Clement described throwing out votes as the "nightmare scenario."
JUSTICE KAVANAUGH: If it were after the election, how would that play out? In other words, if the litigation over issues like this were funneled to post-election? . . . So let's say the losing candidate sues, challenging this rule, and let's say the Court finds it --post-election, finds it illegal. We faced this in 2020 in some of our many cases pre-election. What's the remedy? . . . Do you throw out those votes? Because, if you do, some of those voters might say: Oh, I actually would have voted earlier if I had known. I'm just trying to figure out how that would play out.
MR. CLEMENT: So I think that would be the right remedy. And I think that's kind of a nightmare scenario for exactly the reason that you point out. And I don't think there's any reason for the standing rules to basically say that you have to decide all these issues in those nightmare scenarios or even in the very closest districts.
Later, Justice Kavanaugh reiterated that it would be the Supreme Court, in particular, that would have to decide these contests:
Kavanaugh: You've mentioned the word "chaos" a few times. I guess I'm worried about the chaos of post-election litigation and how would that play out in a circumstance like a challenge to this particular ballot-counting rule. In particular, let's suppose post-election challenge; therefore, no real issue of standing in a real close election, and the rule is found invalid. Have you thought about what the remedy would be in that circumstance? And it presumably comes to this Court. Maybe the House elections ride on it, so we know --we know which way we rule what the impact will be, which is never a good position.
Chief Justice Roberts, who is usually very reserved, seemed agitated by the Respondent's rule. He described Illinois's position as leading to a "potential disaster."
CHIEF JUSTICE ROBERTS: I'm sorry. Look, what you're sketching out for us is a potential disaster. In other words, you're saying, if the candidate's going to win by 65 percent, no standing. But, if the candidate, you know, hopes to win by a dozen votes --and there are places in the country where that happens over and over again --then he has standing. But we're not going to know that until we get very close to the election, right? And so it's going to be in the middle, the most fraught time for the Court to get involved in electoral politics. That's when you say we should jump in, as opposed to the more general, broad rule, Mr. Clement's broadest rule, I guess, is, look, he's a candidate. He's challenging a rule in the election. You know,-isn't that enough? And one reason, as I say, we'll be deciding that case then, you know, six months, nine months, maybe two years before the election, as opposed to the day after the votes have been counted.
Chief Justice Roberts, more than any member of the Court, wants to keep the judiciary out of post-election disputes. Then again, Roberts and Kavanaugh did not vote to grant cert in Republican Party of Pennsylvania v. DeGraffenreid (2021). This case would have decided the power of the state supreme court to alter deadlines for mailed ballots, outside the context of a pending election. The majority found the case was moot. Justice Alito, in dissent, aptly stated, "Now, the election is over, and there is no reason for refusing to decide the important question that these cases pose." He was right.
Judge Oldham Wants To Restore A Judiciary Without Horizontal Stare Decisis
Judges would find the law, rather than mechanically following every word that appears in a published opinion.
This evening, Judge Andrew S. Oldham of the Fifth Circuit gave the Joseph Story Distinguished Lecture at the Heritage Foundation. I was pleased to be in attendance. The topic was provocative and will no doubt be controversial. Judge Oldham favors the elimination of horizontal stare decisis. As a result, an earlier three-judge panel on a court of appeals would not bind a later three-judge panel on that same court of appeals. Judge Oldham would eliminate what the Fifth Circuit calls the "Rule of Orderliness." Why is it called the "Rule of Orderliness"? In the absence of this rule, some would argue, there would be disorder, but this rule maintains order.
At first blush, this topic may seem crazy, even heretical. But Judge Oldham has provided a deep theoretical defense of his position. Given this is the Story lecture, Oldham focuses on one of Justice Story's most revered, yet reversed, decisions: Swift v. Tyson. As every 1L learns, Justice Story argued that the common law could be found by federal judges. Of course, Erie reversed Swift. But Steve Sachs has convinced me that Story was right and Brandeis was wrong. Indeed, the classical view was that law could be found. The seriatim opinions in Chisholm v. Georgia, for example, did not purport to state the law; these decisions attempted to find that law. It is a modern, Holmesean innovation that judge can simply "declare" what the law is. And this declaratory vision of the law has, regrettably, given rise to the scourge of judicial supremacy.
From this premise, Oldham argues that every judge, in every case, should "find" what the law is. The judicial oath demands no less. Yet horizontal stare decisis, and the rule of panel precedent, prevent judges from doing just that. Their hands are tied by the rule of orderliness. Rather, as soon as Panel A decides some issue, panels B through Z are required to mechanically follow every jot and tittle of Panel A's decision. It does not matter how poorly reasoned Panel A's decision was, or whether Panel A consulted the Constitution's original meaning, or whether the parties adequately presented all necessary argument to Panel A. There is a first mover's advantage. And the rule of orderliness is premised on not trusting the Judge of Panel B to faithfully find the law. Instead, they have to be told what to do.
Would eliminating the rule of orderliness bring about disorder? Oldham says no. Indeed, he thinks the current regime is extremely problematic. More than 80% of circuit decisions are designated as "unpublished." Moreover, en banc review is exceedingly rare. For example, the Fifth Circuit the en banc court sits about a dozen times per years. Yet, about 10% of the Supreme Court's merit docket is from unpublished cases. So the Justices do not seem troubled by whether a circuit precedent is itself precedential.
Judge Oldham's speech will, as I noted, prove controversial. I suspect several members of his own court, who are vigorous proponents of the rule of orderliness, will vigorously disagree.
I, for one, need to chew on this topic for some time. I already constrain the scope of stare decisis in the lower courts, to pursue the Constitution's original meaning. Judge Oldham's proposal would likely aid my proposal.
I encourage everyone to watch the lecture, and see what you think. Agree or disagree, Judge Oldham will give everyone some food for thought.
Wednesday Open Thread
What's on your mind?
