The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

In advance of the release of his memoir, Life, Law & Liberty, retired Justice Anthony Kennedy sat down with Adam Liptak of the New York Times for an interview.

The book discloses (or perhaps confirms) that Justice Kennedy drafted the Court's opinion in Bush v. Gore. In the Liptak interview, Kennedy acknowledges the problems with opinions produced under time pressure:

In his book, Justice Kennedy disclosed that Chief Justice William H. Rehnquist had assigned him the majority opinion in Bush v. Gore, the 2000 decision that delivered the presidency to President George W. Bush. It was "a close case" and "a close call," he wrote, and he concluded that the majority opinion should be unsigned, which it was.

The court issued its decision, by a 5-to-4 vote on the key issue, the day after the case was argued. Justice Kennedy said that sort of quick action, like the court's recent spate of emergency rulings, was not ideal.

"The court just has to do the best that it can," he said. "But it does need time."

Justice Kennedy also offered these comments on originalism:

In the interview, Justice Kennedy said he had reservations about originalism, which seeks to interpret the Constitution as it was originally understood and has become the intellectual core of the conservative legal movement. Originalism is a starting place, the justice said, but it cannot be the whole story.

"The framers were not so self-assured that they thought they knew every component of liberty," he said. "The meaning of liberty is disclosed over time."

He acknowledged that his view empowered judges. "So what is it that prevents the court from ruling on every interesting and important and essential political and social issue of our times?" he asked, suggesting that there must be some constraints.

Asked to describe those constraints, he said, "You just have to, in case by case, decide whether or not this is absolutely essential to liberty."

After a long delay (see post here), on September 10 the Third Circuit finally reached a decision in Koons v. Attorney General of New Jersey, which upheld many of New Jersey's prohibitions on firearm possession in public places. Like a handful of other states, New Jersey reacted to New York State Rifle & Pistol Ass'n v. Bruen, which invalidated New York's limitation of handgun carry licenses to persons with a "proper cause," by a sweeping ban on places where firearms may be possessed.

Bruen held: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Yet as explained below, Koons would rely heavily upon a fake citation that misled it to get that historical tradition backwards. Further, while firearms may be restricted in certain "sensitive places," Bruen continued, that does not include "all places of public congregation that are not isolated from law enforcement." But Koons held just the opposite about many such places.

In setting about to find Founding-era analogues to that of New Jersey, Koons correctly read the 1328 Statute of Northampton as providing that "going armed offensively was prohibited in fairs, markets, in the presence of justices or ministers, or in similar places." It added that two states enacted versions of that offense, including a 1786 Virginia statute with an explicit "terror" element. For North Carolina, it cited A Collection of Statutes of Parliament of England in Force in the State of North Carolina 60–61 (Francois-Xavier Martin ed., 1792), which it referred to as "hereinafter N.C. Statute of Northampton."

Far from being a law, Martin's Collection was a self-published book that simply reprinted, among other British laws, the Statute of Northampton. Citing Justice Breyer's dissent in Bruen, Koons continued, "North Carolina's 1792 statute was so traditional that it retained references to the King." Yet this "statute's" six references to "the King," supposedly enacted sixteen years after independence was declared, should have been a dead giveaway that North Carolina enacted no such law.

For its purported Founding-era analogues, Koons is a cookie-cutter repetition of the flawed Second Circuit's decision in Antonyuk v. James (2024), which initiated a false history of Founding-era law to uphold New York's wide-ranging ban on where firearms may be possessed. Antonyuk began with the Statute of Northampton's language that one shall "bring no force in affray of the peace, nor to go nor ride armed … in Fairs [or] Markets…." But Bruen held that the Statute "has little bearing on the Second Amendment adopted in 1791." As held in Sir John Knight's Case (1686), the Statute applied only to "go[ing] armed to terrify the King's subjects" with evil intent, a common-law offense.

That offense was codified in Virginia's 1786 statute providing that no person shall "go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country." Bruen read that law and similar ones as restricting the carrying of arms only in a manner to cause "terror," not to prohibit peaceably carrying in public. Antonyuk conceded that "the Virginia statute differed from the medieval English Northampton statute in that it prohibited conduct and not simply carriage, i.e., bearing arms in 'terror' of the county [sic]…."

The Antonyuk court next turned to "a 1792 North Carolina statute replicating the 1328 British statute and prohibiting firearms in fairs or markets …." It claimed that "the North Carolina statute, like the Northampton statute, appears to have prohibited firearm carriage in general at fairs and markets regardless of conduct." And it cited this "law" as Martin's above Collection of Statutes. The following traces actual North Carolina law, none of which the Second Circuit even mentioned.

In 1749, the North Carolina General Assembly passed "An Act to put in Force in this Province, the several Statutes of the Kingdom of England, or South-Britain, therein particularly mentioned." It included several statutes of Edward III, but did not include the Statute of Northampton. This 1749 Act was published in A Collection of All the Public Acts of Assembly of the Province of North-Carolina (1752), which was confirmed by the General Assembly. That volume also included two enactments passed in 1741. First, the state's "Act to Appoint Constables" required that constables take an oath to arrest "all such Persons as, in your Sight, shall ride or go armed offensively, or shall commit or make any Riot, Affray, or other Breach of his Majesty's Peace." While no act of Assembly made that a crime, it reflected the common-law offense of an affray.

Second, and by contrast, the state's "Act concerning Servants and Slaves" provided: "That no Slave shall go armed with Gun, Sword, Club, or other Weapon, or shall keep any such Weapon, or shall hunt or range with a Gun in the Woods, upon any Pretence whatsoever, (except such Slave or Slaves who shall have a Certificate, as is hereinafter provided;)…." So, it was a crime for a slave to "go armed" per se, but it was an offense for a free person to go armed only if done so "offensively." It goes without saying that, if a master could issue a certificate to authorize a slave to go armed peaceably, the master could also go armed peaceably.

Antonyuk would have been aware of the 1741 law on going armed offensively, because it was cited by the Supreme Court in U.S. v. Rahimi (2024). In fact, the Supreme Court granted cert, vacated the Second Circuit's 2023 Antonyuk judgment, and remanded it for further consideration in light of Rahimi. In its second Antonyuk decision, the one reviewed here, the Second Circuit made no material changes.

Nor did Antonyuk bother to consult any other North Carolina statutes. In 1787, the General Assembly commissioned James Iredell to revise and compile all laws that remained in force and to leave out acts that are repealed or obsolete. (Iredell would serve as a Justice on the U.S. Supreme Court from 1790 until 1799.) The compilation was approved by an act passed in 1791 and was published as Laws of the State of North-Carolina. It contained the two "going armed" laws passed in 1741: the constable's oath to "arrest all Persons as, in your Sight, shall ride or go armed offensively," and the prohibition that "no Slave shall go armed" without a certificate from the master.

The Antonyuk court cites Martin's A Collection of the Statutes as the source of the alleged North Carolina "law" that replicated the Statute of Northampton in North Carolina. Yet Martin himself was well aware of the terror element of the common-law offense of going armed. In 1791, Martin published a manual entitled The Office and Authority of a Justice of the Peace and of Sheriffs, Coroners, &c. It defined "affray" as "a fighting between two or more; but there must be a stroke given or offered, or weapon drawn…." The terms "stroke offered" and "weapon drawn" are practical ways of describing the crime of going armed offensively.

Apparently in 1791, Martin began work on a book he self-published in 1792 under the title A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina. That was only his second year as a member of the bar. This was wholly his private work and did not bear oversight by any other person, much less approval by the North Carolina legislature. He noted in the Preface that "many, even among the most respectable, professors of the law disagree in regard to the applicability of a number of British statutes…." He modestly wrote: "How far my endeavors have been attended with success, remains to be decided."

Unfortunately, Martin's Collection "was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State." That was the conclusion of the Commissioners of 1833, who the General Assembly appointed and directed "to collate, digest, and revise, all the public statute laws of the State." They consisted of then-Governor James Iredell Jr., state Supreme Court Justice William H. Battle, and Judge Frederic Nash, who later became Chief Justice of the state Supreme Court.

Perhaps the defects in Martin's Collection were attributable to his inexperience in the law, as he was only admitted to the bar in 1789, and inability to master the English language, as his native language was French. A modern source states about Martin's publications: "Both his newspaper and his books contained many errors, some attributable to his incomplete mastery of the English language, others to carelessness and poor proofreading."

One of the English statutes that Martin printed in A Collection was Edward III's Statute of Northampton of 1328. That would be a clue good enough even for Inspector Jacques Clouseau of the Pink Panther series that this was not a statute passed by the North Carolina legislature, given its references to "the King's servants," "the King's precepts," "the King's justices," "the King's Ministers," "the King," and "the King's pleasure." Only a few years earlier, the Americans had fought a bitter war to gain independence from the hated King.

The Second Circuit in Antonyuk repeatedly claims the Statute of Northampton from Martin's Collection to be a North Carolina "law," but meticulously avoids quoting any of the phrases referring to "the King." Its only actual quotation from Martin's book was its reference to the "North Carolina law prohibiting 'to go nor ride armed by night nor by day, in fairs, markets'…."

Revisions of North Carolina law appeared in 1804 and 1821. They included the same constable's oath to arrest those who "go armed offensively" and the same prohibition on slaves going armed at all. In 1837, the legislature mandated that "all [of] the statutes of England or Great Britain heretofore in use in this State, are hereby declared be repealed and of no force and effect from and after the first day of January next [1838] …."

Antonyuk should have done the research necessary to understand the above statutory history before making its sweeping conclusion that North Carolina banned the mere carrying of arms, at least in fairs and markets, without any offensiveness element. But this failing is worsened by the court's failure to acknowledge North Carolina's judicial precedents on the issue.

In State v. Huntly (1843), the North Carolina Supreme Court upheld an indictment alleging that the defendant armed himself with pistols and threatened to kill others, "to the terror of the people…." The court stated that the Statute of Northampton did not create this offense, and in any event whether it was previously in force was now moot based on the above 1837 law. As stated in Sir John Knight's Case, the Statute was but "in affirmance of the common law." While a citizen "is at perfect liberty to carry his gun" "for any lawful purpose," "he may not carry a weapon "to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people."

The Antonyuk court would have been aware of Huntly, as Bruen and Rahimi both discussed it. And Antonyuk disregarded several other North Carolina precedents, not one of which recognized carrying guns in fairs and markets to be an offense per se. Most recently, in State v. Lancaster (2023), the state Supreme Court held that "the elements of the common law crime of going armed to the terror of the public" includes going armed in a public place "for the purpose of terrifying" others, and "in a manner which would naturally terrify" others.

Having constructed this non-existent "North Carolina model" of "prohibit[ing] firearms in quintessentially crowded places notwithstanding behavior," Antonyuk claimed that three state laws in the late 19th century followed and confirmed that supposed Founding-era model, which sufficed to establish a historical tradition of restrictions per Bruen. That raises the issue of whether these laws are too late and too few to be proper analogues, particularly given that they are not consistent with any Founding-era law. We'll cover that topic in the next post.

Stephen Halbrook is a Senior Fellow with the Independent Institute. His latest books are America's Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? He is also author of The Founders' Second Amendment, Securing Civil Rights, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France. He has written over 30 law review articles and has testified in Congressional hearings on firearm law bills. He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, National Association of Criminal Defense Lawyers, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. In D.C. v. Heller, he filed an amici curiae brief on behalf of a majority of members of Congress.

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On Tuesday, the Court heard oral argument in Chiles v. Salazar. This case considers the constitutionality of Colorado's ban on conversion therapy.

As a general rule, the First Amendment protects speech, but not conduct. It is true that some conduct, like flag-burning, has speech-like properties, so is protected by the First Amendment. It is also true that some speech incidental to conduct is not fully protected by the First Amendment. The doctrine here is complex.

During argument, several Justices asked how to draw the line between "treatment" and "non-treatment." This questions seemed to presume that treatment would not be protected by the First Amendment, while non-treatment (that is speech) was protected by the First Amendment.

Colorado argues that therapy that consists entirely of speaking is still a form of medical treatment, and is therefore considered conduct, rather than protected speech. Chiles, by contrast, argued that her therapy that consists entirely of speaking is not a form of medical treatment, and should be considered speech rather than conduct.

I'm not sure the line between treatment and non-treatment really matters. James Campbell, counsel for Chiles, explained that the line doesn't matter "because the First Amendment depends on the difference between speech and conduct, not on the difference between treatment and non-treatment." And I agree with Hashim Mooppan, the Deputy Solicitor General, that treatment and non-treatment are just "labels" that don't make a conceptual difference.

Still, I think there might be a way to draw this line based on how the care is received. First, care that consists entirely of talk, which implicates only the senses of hearing and sight, is not medical treatment. Second, care that is not limited to talk, which implicates the senses of touch, taste, or smell, would be medical treatment. The First Amendment protects the former category of care, but not the latter category of care.

So-called "aversive" therapy, which might include electro-shock therapy, is not limited to talk, but implicates the sense of touch, so would be medical treatment. I don't think any would argue that shock therapy is protected speech. Providing a patient with medicine that they have to ingest would implicate the sense of taste, so would be medical treatment. Any type of surgery that requires a scalpel would clearly be medical treatment.

The treatment at issue in Chiles does not involve any physical touching. And Chiles is not licensed to prescribe medicine or perform any sorts of medical treatment. Her all-talk care, which can only be heard, is not treatment, and is not conduct, but is speech.

I don't think this issue is conceptually difficult under the First Amendment.

Next Tuesday, the Supreme Court will hear argument in Ellingburg v. United States. The question presented is whether criminal restitution under the Mandatory Victims Restitution Act (MVRA) is penal and thus subject to the restrictions of the Constitution's federal Ex Post Facto Clause. This is an important issue for the crime victims' rights movement. If restitution is characterized as punishment rather than compensation, then the restrictions of the Ex Post Facto Clause (and perhaps other restrictions as well) apply to Congress and state legislatures as they craft restitution regimes. Because of the importance of the issue to the movement, I've joined Allyson Ho, Brad Hubbard, Matt Scorcio, and other lawyers at Gibson Dunn in filing an amicus brief urging the Court to affirm the judgment below in Ellingburg and hold that restitution compensates victims rather than punishes defendants.

Our amicus brief is filed on behalf of a crime victim's mother, Ms. Debra Ricketts-Holder, whose son was senselessly murdered in cold blood in 1993. His murderer was sentenced to life without parole. When the murderer was resentenced thirty years later, as required by the Supreme Court's decision in Miller and Montgomery, Michigan sought restitution to reimburse Ms. Ricketts-Holder for the costs she paid to bury her 17-year-old son—a cost no mother should have to bear. The trial court awarded Ms. Ricketts-Holder restitution for her son's funeral expenses.

The murderer (Neilly) then challenged the restitution award as having been awarded under a new regime, in violation of the Ex Post Facto Clause. In Neilly, the Michigan Supreme Court rejected his argument. The Court held that restitution statutes operate to "provide a civil remedy for victims' injuries rather than to provide a criminal punishment for defendants." Neilly has sought review of this Michigan decision in the U.S. Supreme Court—and his petition is apparently being held for resolution of the federal Ellingburg case.

Yesterday, I blogged about how the Supreme Court should DIG Ellingburg, because Ellingburg was sentenced under the discretionary Victim Witness Protection Act (VWPA) rather than the MVRA. So any issue about the MVRA is not properly before the Court. But if, nonetheless, the Court considers the merits, it should affirm the Eighth Circuit's decision below that restitution is not criminal punishment and therefore is not subject to the Ex Post Facto Clause.

Starting from first principles, it would be odd to call restitution punishment. Consider a case (like Ellingburg) where a bank robber is caught escaping with cash from a bank. It makes no sense to say that, when the bank robber is ordered to give the cash back to the bank, that is "punishment." Instead, in common understanding, the bank is simply being restored to the position that it was in before the robber took the bank's money.

Our amicus brief adopts this commonsense approach. It argues that, from antiquity to today, Anglo-American law has understood restitution as a means to compensate crime victims for their losses, not to punish offenders for their crimes. This victim-centered understanding runs from the Old Testament through the English common law familiar to the Founders to contemporary American statutes—including the federal Mandatory Victims Restitution Act. Any attempt to recast restitution as a criminal penalty misunderstands both its legal heritage and its fundamental design. Read More

Politics

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I published a new Op-Ed wit my Heritage Guide co-editor John Malcolm in the Washington Times. We explain how the originalist revolution began in the late 1980s, even if it would have been difficult to discern at the time.

Here is the opening:

As they celebrate the 250th anniversary of the Declaration of Independence next year, many Americans will remember fondly the patriotism and pageantry of the 1976 bicentennial. Few people were even aware of the bicentennial of 1987, the 200th anniversary of the signing of the Constitution.

Yet by the end of President Reagan's administration, the originalist revolution was underway. Indeed, with the benefit of hindsight, the preceding three years changed the course of the Constitution.

First, in 1985, Attorney General Edwin Meese III battled Justice William J. Brennan in a public debate about originalism. Second, in 1986, Reagan, after Meese's advice, elevated William H. Rehnquist to chief justice and nominated Antonin Scalia to the high court. Third, in 1987, though Judge Robert Bork's nomination was unfairly blocked, his unapologetic embrace of originalism set the template for future nominees.

The Roberts court turns 20 this year, but we should proudly celebrate the fourth decade of the originalist revolution.

And from the conclusion:

As the court continues to decide cases consistent with original meaning and reject precedents made up by legal activists in robes, we should be thankful for the wisdom of these four jurists. In the new edition of the Heritage Guide to the Constitution, which we co-edited, Justice Samuel A. Alito Jr. wrote, "If we can envision a Mt. Rushmore of originalism, the three visages we would see carved in stone are those of Robert Bork, Edwin Meese III and Antonin Scalia."

We would respectfully add one more visage to the mountain: Rehnquist. In the mere span of three years, these four individuals set the Constitution on a course correction. In 2037, on the Constitution's 250th anniversary, there will be a lot more to celebrate.

The Heritage Guide to the Constitution will ship next week. In many regards, this book is a testament to the originalist revolution.

From State v. Every, decided by the Tennessee Court of Criminal Appeals yesterday, in an opinion by Justice John W. Campbell, Sr., joined by Judges Robert L. Holloway, Jr., and Matthew J. Wilson:

We glean the following facts from the record: On April 12, 2021, a Knoxville police officer shot and killed an African American male student in a bathroom at Austin-East High School. The incident caused social unrest, and community members began demanding transparency about the shooting, including the release of the officer's body camera video. On the evening of April 19, 2021, the Defendant and a group of protestors entered the Knoxville City-County Building during a Knox County Commission meeting. The Defendant activated the siren on a bullhorn and spoke through the bullhorn to demand release of the video. Uniformed police officers quickly escorted her and six other individuals out of the building and arrested them for disrupting the meeting.

The court upheld defendants' conviction for "disrupting a lawful meeting," defined as "with the intent to prevent [a] gathering, … substantially obstruct[ing] or interfere[ing] with the meeting, procession, or gathering by physical action or verbal utterance."

Taken in the light most favorable to the State, the evidence shows that the Defendant posted on Facebook the day before the meeting and the day of the meeting that the protestors were going to "shut down" the meeting. During the meeting, the Defendant used a bullhorn to activate a siren for approximately twenty seconds. Witnesses at trial described the siren as "loud," "high-pitched," and "alarming."

Free Speech

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10/8/1888: Chief Justice Melville Fuller takes the judicial oath.

Justice Barrett's new book is not a memoir. Though she sprinkles the book with some anecdotes about her family, Listening Law is quite guarded concerning how Barrett came to be where she is now. Her press appearances have likewise been fairly controlled, and she seems to repeat the same sets of pre-scripted answers. Yet, if you read between the lines, we can start to tie some threads together.

The first thread is that Justice Barrett did not aspire to be a judge before becoming a lawyer. Barrett's father was an attorney. But the Justice said in a recent press appearance that she wanted to be a teacher, like her mother. By contrast, some of Barrett's colleagues had their sights on the bench at a young age. In her high school yearbook, Elena Kagan wore a robe and held a gavel, and included a Felix Frankfurter quote. Samuel Alito's Princeton Yearbook said, "Sam intends to go to law school and eventually to warm a seat on the Supreme Court." Justice Jackson said that Judge Constance Baker Motley (with whom she shares a birthday) was a "North Star for me in my career." I don't get the impression that a young Amy Coney aspired for the bar or the bench, in the ways that some of her colleagues did.

From Ader v. Ader, decided last week by N.Y. trial court judge Joel M. Cohen:

This case adds yet another unfortunate chapter to the story of artificial intelligence misuse in the legal profession. Here, Defendants' counsel not only included an AI-hallucinated citation and quotations in the summary judgment brief that led to the filing of this motion for sanctions, but also included multiple new AI-hallucinated citations and quotations in Defendants' brief opposing this motion. In other words, counsel relied upon unvetted AI—in his telling, via inadequately supervised colleagues—to defend his use of unvetted AI….

Plaintiff [had] identified inaccurate citations and quotations in Defendants' opposition brief that appeared to be "hallucinated" by an AI tool. After Plaintiff brought this issue to the Court's attention, Defendants submitted a surreply affirmation in which their counsel, without admitting or denying the use of AI, "acknowledge[d] that several passages were inadvertently enclosed in quotation" and "clarif[ied] that these passages were intended as paraphrases or summarized statements of the legal principles established in the cited authorities." Plaintiff then submitted a letter in rebuttal to the Surreply Affirmation, to which the Court invited Defendants to respond. Defendants did not respond.

As set forth in detail in the Rebuttal Letter and the papers in support of the instant motion, defense counsel's explanation of the citation and quotation errors as innocuous paraphrases of accurate legal principles does not hold water. Among other things, the purported "paraphrases" included bracketed terms to indicate departure from a quotation (not something one would expect to see in an intended paraphrase) and comments such as "citation omitted." Moreover, the cited cases often did not stand for the propositions quoted, were completely unrelated in subject matter, and in one instance did not exist at all.

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From Civil Servant 1 v. Office of Special Counsel, decided yesterday by Chief Judge James Boasberg (D.D.C.):

Plaintiffs Civil Servants 1–5 are former federal employees whose jobs were "terminated during their probationary periods as part of the Administration's mass firings in February 2025." They each filed a prohibited personnel practice (PPP) complaint with the Office of Special Counsel, only for the agency to summarily close each of their cases because they were probationary employees. Plaintiffs now bring this lawsuit alleging that OSC unlawfully closed thousands of probationary-employee complaints without considering their individual merits, undermining the workplace protections once afforded to probationary workers and violating the Administrative Procedure Act….

Generally, a complaint must identify the plaintiffs. That requirement reflects the "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' and, more specifically, from the tradition of open judicial proceedings." A party moving to proceed pseudonymously thus "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." …

Plaintiffs have failed to meet their burden to show that their privacy interests outweigh the public's presumptive and substantial interest in learning their identities.

To begin, the Court finds that Plaintiffs' privacy interests do not implicate "a matter of a sensitive and highly personal nature." Plaintiffs contend that being "publicly linked to litigation" challenging the current administration "could have long[-]term consequences" for their careers. Certainly, when a plaintiff points to concrete career harms that would result from the disclosure of her identity, this factor favors pseudonymity. For instance, the Court granted pseudonymity for a doctor who was accused of misconduct that, if disclosed, would have prevented her from practicing. Doe v. Lieberman (D.D.C. 2020). [Note that not all judges agree on this point; some categorically conclude that pseudonymity can't be justified by a risk of reputational and professional harms, which is a commonplace risk in civil litigation. -EV]

Free Speech Right of Access

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A short excerpt from yesterday's long Massachusetts high court decision in Weiss v. President & Fellows of Harvard College, written by Justice Scott Kafker:

In a macabre scheme spanning several years, Cedric Lodge, the person responsible for the care of cadavers at the Harvard Medical School morgue, dissected, stole, and sold parts of the bodies of individuals who donated their remains for research purposes….

Decedents' relatives sued Harvard, and the court concluded that the case could go forward, despite "the 'good faith' defense under the Uniform Anatomical Gift Act (UAGA …)":

As outlined in [a criminal] indictment, Lodge stole dissected portions of donated cadavers, including heads, brains, skin, bones, and other human remains, and transported them to his home in New Hampshire. From there, Lodge and his wife sold the stolen body parts to buyers, including the two alleged coconspirators, with whom they communicated via social media websites and cell phones.

Lodge also allowed third parties unauthorized access to the morgue in order to select body parts for purchase. For example, alleged coconspirator Katrina Maclean {the proprietor of "Kat's Creepy Creations"} agreed to meet Lodge at the Harvard morgue at 1 p.m. on Wednesday, October 28, 2020, to purchase two dissected faces for $600. Lodge also assisted Maclean with finding human skin to provide to a third party in exchange for his services tanning other human skin into leather. Coconspirator Joshua Taylor sent thirty-nine electronic payments, totaling over $37,000, to a PayPal account operated by Lodge's wife, including a $1,000 transaction with the memo "head number 7" and a $200 transaction with the memo "braiiiiiins."

While employed by Harvard during the period in which he was dissecting, removing, and selling donated body parts for profit, Lodge commuted to work in a car with a license plate that stated, "Grim-R." …

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The Hoover Institution at Stanford University, where I'm now a Senior Fellow, has long offered up-to-5-year paid in-residence positions (with no teaching obligations) in various fields.

This year, we'll also be considering people who are interested in becoming legal academics. We expect the selection process to be highly competitive: The position is unusually generous, compared to other fellowships, in salary ($165K-230K/year plus a $20K housing allowance), potential length, and lack of teaching obligations.

To be realistically eligible, applicants should have clerkships, top grades, published law review articles, and plans for new articles. It seems likely that most applicants will be from the Usual Suspect academic feeder law schools, but I'm a UCLA law graduate myself, so I'm certainly open to top people from other schools as well. We have no particular preferences for any particular fields within law: We'll gladly consider people who want to work in business law, constitutional law, international law, criminal law, immigration law, and all sorts of other topics.

The application deadline is Nov. 18, and the details are at https://www.hoover.org/hoover-fellows-program. Note that there would be no obligation for people to stay the full five years (and probably an expectation that they would stay no more). If someone gets a tenure-track law school teaching position two or three years into the fellowship—which tends to be the norm in the law market—we would be delighted to see them take it.

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Whoops! What happens if the Supreme Court grants certiorari to review a question presented about a particular statute—but the case does not involve that statute?! That's the situation in Ellingburg v. United States, a case that will be argued next week (Tuesday, October 14). The Court granted review of the question presented "[w]hether criminal restitution under the Mandatory Victims Restitution Act (MVRA) is penal for purposes of the Ex Post Facto Clause." But closely analyzing the proceedings below reveals that the petitioner/defendant was actually ordered to pay restitution not under that mandatory statute but under the discretionary regime of the Victim Witness Protection Act (VWPA). Accordingly, the Court should resolve the case by dismissing it as improvidently granted—or, colloquially, the Court should "DIG."

The Ellingburg case has been largely overlooked in previews of the Court's upcoming Term. But Ellingburg raises an important issue for the crime victims' rights movement: Whether restitution is "penal" in character because it punishes criminal defendants. If restitution is characterized as punishment rather than compensation, then the restrictions of the Ex Post Facto Clause apply to Congress and state legislatures as they craft restitution regimes. And perhaps other constitutional restrictions (such as the right to jury trial) attach as well.

Because of the importance of the issue to the movement, I've joined Allyson Ho, Bradley Hubbard, and other lawyers at Gibson Dunn in filing an amicus brief urging the Court to affirm the judgment below in Ellingburg and hold that restitution compensates victims rather than punishes defendants. Our amicus brief is filed on behalf of a crime victim's mother, Ms. Debra Ricketts-Holder, whose son was senselessly murdered. She received restitution for her son's funeral expenses under an (arguably) ex post facto restitution regime in Michigan. The Michigan Supreme Court affirmed, explaining that restitution statutes "provide a civil remedy for victims' injuries rather than to provide a criminal punishment for defendants." The defendant in that case has sought review in the U.S. Supreme Court—and his petition is apparently being held for resolution of the Ellingburg case.

So how should the Supreme Court answer the question presented in Ellingburg about whether restitution under the federal MVRA is penal in character? An answer to that question might potentially shed some light on whether other restitution awards are penal, such as the award in Ms. Ricketts-Holder's case. But, remarkably, Ellingburg was not actually sentenced under the MVRA.

Here are the facts: In 1995, Ellingburg, along with an accomplice, robbed a bank with a sawed-off shotgun, escaping with $15,134.50 in cash. He was caught. In August 1996, a jury convicted Ellingburg of bank robbery and of using a firearm during a crime of violence. The district judge sentenced Ellingburg to 322 months in prison and ordered him to pay $7,567.25 in restitution to the bank—half of the money and his accomplice had stolen. In ordering restitution, the district court applied the VWPA, as the MVRA had only recently been adopted (between Ellingburg's crime and sentencing).

Several decades later, in 2022, Ellingburg finished his term of imprisonment, having paid only a quarter of his restitution obligation. Ellingburg's probation officer continued to seek restitution with interest, citing MVRA provisions allowing an extended period of time to collect restitution and adding interest to the obligation.

Ellingburg, proceeding pro se, challenged the continued enforcement of his restitution obligation under the Constitution's federal Ex Post Facto Clause, U.S. Const., art. I, § 9, cl. 3. He argued that the MVRA's liability extension of his restitution liability from 2016 to 2042 retroactively increased his punishment because the MVRA did not exist when he robbed the bank back in 1995.

The district court denied Ellingburg's motion. After examining the sentencing documents, the district court concluded that "rather than applying the MVRA in ordering restitution, the sentencing court instead applied the Victim and Witness Protection Act of 1982." The district court also held that extending the period of liability for a preexisting restitution obligation did not qualify as an increase in punishment for purposes of the Ex Post Facto Clause.

Ellingburg then obtained counsel and appealed to the Eighth Circuit. The Eighth Circuit affirmed on the ground that, under circuit precedent, MVRA restitution is not criminal punishment and therefore is not subject to the Ex Post Facto Clause.

Ellingburg filed a petition for a writ of certiorari in the Supreme Court. His petition did not disclose that the sentencing court had imposed his restitution obligation under the VWPA. Instead, the petition presented the question whether "criminal restitution under the [MVRA] is penal," extensively discussed the MVRA, and highlighted conflicting appellate decisions about whether MVRA restitution qualifies as criminal punishment.

After the Supreme Court granted certiorari, the government joined Ellingburg on the same side of the question presented. To assure adversarial argument, the Court appointed a very capable amicus (John Bash of the Quinn Emanuel firm) to defend the Eighth Circuit's judgment.

Ellingburg and the Government then filed their opening briefs on the merits, spilling lots of ink supporting their position that restitution awarded under the Mandatory Victim Restitution Act was penal.

The Court-appointed amicus then filed his response, pointing out that this case does not involve restitution ordered under the MVRA. Thus, if the Court were to answer the question presented, it would be handing down an impermissible advisory opinion:

[Ellingburg] asks this Court to decide the nature of "criminal restitution under the
[MVRA]," but the sentencing court did not apply the MVRA in imposing restitution even though the statute was in effect at that time. In the proceedings below, the district court determined that "rather than applying the MVRA in ordering restitution, the sentencing court instead applied the Victim and Witness Protection Act of 1982." For support, the [district] court cited the (now-sealed) 1996 presentence investigation report and 1996 judgment stating that under "[the VWPA], restitution may be ordered in this case."

On appeal [to the Eighth Circuit], [Ellingburg's] opening brief agreed that "the district court judge appears to have sentenced petitioner under the VWPA, the statute in effect at the time of the offense conduct." [Ellingburg] enumerated "several indicators" supporting that conclusion and showing that he was in fact sentenced under the pre-MVRA version of the VWPA[] ….

[Ellingburg] was therefore never subject to "restitution under the [MVRA]," and the question presented is not implicated by this case.

Court-appointed Amicus Br. at 13-15 (some citations omitted).

The Court-appointed amicus is correct: Because petitioner Ellingburg was not ordered to pay restitution under the MVRA, his question presented about how to characterize restitution under the MVRA is not actually presented. The only appropriate result in the case, then, is a DIG. As the Supreme Court has explained in other cases, if it becomes apparent that the question presented is "without legal significance" to the "rights of the parties," Coffman v. Breeze Corp., 323 U.S. 316, 324 (1945), the case should be "dismissed as improvidently granted," Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 566 (1977).

A DIG does not rest on some sort of technicality. Instead, it relies on the commonsense observation that cases will be most accurately resolved when courts decide them against backdrop of a concrete factual dispute. Moreover, others who have an interest in the rule of law at stake in outcome can point to the underlying facts of a case as potential limits on any holding.

Here, for example, restitution awarded under the MVRA may significantly differ from restitution awarded under the VWPA. Under the VWPA, restitution is discretionary. In deciding whether to impose restitution, a sentencing court can consider "factors" beyond the victim's loss "as the court deems appropriate," such as the defendant's characteristics, the crime's circumstances, and other concerns. By contrast, under the MVRA's mandatory-restitution regime, a restitution award must cover all relevant victim losses without regard to any considerations other than (for non-violent offenses) impracticability or burden on the court.

In his reply, Ellingburg gamely maintains that the MVRA question somehow remains properly before the Court. Here's the most significant part of his claim:

The court of appeals here … took the view that no ex post facto analysis is necessary at all, on the theory that restitution under the MVRA is a civil penalty to which the Ex Post Facto Clause is categorically irrelevant. This Court has the ability, if it chooses, to review that rationale…. [W]hile restitution under [the VWPA] remains discretionary, it shares other features in common with mandatory restitution under [the MVRA]: each is imposed "when sentencing a defendant" as a "penalty" for the commission of a criminal "offense," compare 18 U.S.C. 3663A(a)(1), with 18 U.S.C. 3663(a)(1)(A); each is subject to the procedures set forth in 18 U.S.C. 3664, see 18 U.S.C. 3556; and each has the same enforcement mechanisms, 18 U.S.C. 3613(f).

Ellingburg Reply Br. at 5 (some citations omitted).

Ellingburg gives away the game in conceding that the MVRA only "shares … certain features" in common with the VWPA. That concession means that a Court ruling on restitution under the MVRA would be advisory as to the parties, because the other features of the VWPA might dictate a different result. A Court decision on the question presented would not decide further proceedings. Rather than render an advisory opinion, the Court should DIG the case.

Tomorrow, I'll discuss why, if the Court nonetheless chooses to consider whether MVRA restitution penal, it should answer the question "no." Restitution is compensation for victims, not punishment of defendants.

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 201–216.

Essay No. 201: The Fifteenth Amendment —Earl M. Maltz
Essay No. 202: The Income Tax Amendment —Andy Grewal
Essay No. 203: The Popular Election Of Senators Amendment —Michael R. Dimino
Essay No. 204: The Senate Vacancies Amendment —Todd J. Zywicki
Essay No. 205: The Prohibition Amendment —Paul J. Larkin
Essay No. 206: The Suffrage Amendment —Judge Edith H. Jones & Jacob R. Weaver
Essay No. 207: The Presidential Terms Amendment —Brian C. Kalt
Essay No. 208: The Repeal Of Prohibition Amendment —Paul J. Larkin
Essay No. 209: The Presidential Term Limits Amendment —Judge Chad A. Readler & Andy Nolan
Essay No. 210: The District Of Columbia Electors Amendment —Derek T. Muller
Essay No. 211: The Poll Taxes Amendment —Derek T. Muller
Essay No. 212: The Presidential Succession Amendment—Sections 1 And 2 —John D. Feerick
Essay No. 213: The Presidential Succession Amendment—Section 3 —John D. Feerick
Essay No. 214: The Presidential Succession Amendment—Section 4 —John D. Feerick
Essay No. 215: The Minimum Voting Age Amendment —Michael R. Dimino
Essay No. 216: The Congressional Compensation Amendment —Giancarlo Canaparo

10/7/1982: I.N.S. v. Chadha was argued.

Financial Times (Ellesheva Kissin) reports:

The Big Four accountancy and consultancy firm will repay the final instalment of its government contract after conceding that some footnotes and references it contained were incorrect, Australia's Department of Employment and Workplace Relations said on Monday….

In late August the Australian Financial Review reported that the document contained multiple errors, including references and citations to non-existent reports by academics at the universities of Sydney and Lund in Sweden….

While Deloitte did not state that AI caused the mistakes in its original report, it admitted that the updated version corrected errors with citations, references, and one summary of legal proceedings….

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Free Speech

Free Speech Unmuted: From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Prof. Eric Heinze

Jane and I speak with Eric Heinze (Queen Mary University of London) about how the digital age has transformed the meaning and limits of free expression, from Britain’s recent Lucy Connolly case—involving online incitement and hate speech—to the philosophical and legal contrasts between the American Brandenburg standard and the U.K.’s more interventionist approach.

Eugene Volokh | 10.6.2025 6:23 PM

Prof. Heinze argues that democracies must rethink free speech in an era dominated by opaque, powerful platforms like Twitter and Facebook, where risk, harm, and accountability are far harder to define. He and Jane and I debate whether governments—or tech companies—should bear responsibility for regulating speech online, and what "freedom" really means when algorithms, not citizens, shape public discourse.

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