[O]n October 2, 2019, the parties informed the Court that they reached an agreement in principle, and this case was dismissed with prejudice …. [O]n July 18, 2025, Plaintiff moved to seal the public docket and associated filings in the case, as the "record contains sensitive personal information, including references to medical history and allegations of racial discrimination, which continue to cause reputational harm and professional hardship" ….
Plaintiff … argu[es] that the presumption of public access is outweighed by the following factors: the case was resolved without a finding of liability; the filings contain sensitive personal and medical information; the continued public availability of the record has caused harm to Plaintiff's employment prospects; there is no ongoing public interest in the contents of the file; and Plaintiff asked his former counsel to have the case sealed and relied on counsel's representations that the case would be closed ….
A brief excerpt from the plaintiff's declaration in support of the motion to seal the case file:
In 2018, I filed a civil rights action against my former employer …. Based on an arbitration clause in the onboarding paperwork, the Court compelled the matter to private arbitration. I had believed that the arbitration process would limit public visibility of the record, but later learned the docket remained accessible….
While the intent of the lawsuit was accountability, I did not anticipate that these documents would remain publicly available through court databases and search engines.
Plaintiff alleges Defendant engaged in "a coordinated online campaign making false statements," such as "accusing Plaintiff of design/invention theft, racism, ... and encouraging the public to report Plaintiff's online shopping platforms on sites like Etsy, Shopify, and TikTok as fraudulent and/or ... [as] selling counterfeit goods.'"
From Owen v. Askew, decided July 24 by Judge Ann Aiken (D. Ore.); I'm skeptical about this, because the relief is before any trial on the merits (and thus isn't based on any final determination on the merits that certain allegations are false), because it's an ex parte TRO entered just six days after the suit was filed and before defendant was even served, and because it extends beyond even alleged defamation to "harassing conduct." (For more, see my Anti-Libel Injunctionsand Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases.) But whatever I think, the judge thought different, and the decision struck me as worth noting. Here's the judge's summary of plaintiff's allegations:
Plaintiff in this case is the owner of a business, Elegance & Geekery LLC, which sells hair accessories. Defendant Breana Askew is a resident of Florida who does business as Breromi. Defendant Kiandra Demone Boyce is a resident of Georgia.
Beginning on July 14, 2025, Askew "began a coordinated online campaign making false statements," including "publicly accusing Plaintiff of design/invention theft, racism, selling counterfeit versions of goods Defendant Askew claimed she owned patents and trademarks covering, and encouraging the public to report Plaintiff's online shopping platforms on sites like Etsy, Shopify, and TikTok as fraudulent and/or engaged in illegal activity including selling counterfeit goods."
Askew's campaign is based on her claim that Plaintiff is selling a hair accessory which Askew claims infringes on her patent. Plaintiff alleges that "Askew's only claim to any intellectual property is her filing of an application (not yet reviewed) for a trademark over the phrase 'Magnetic Hair Clip' and a filed patent application (not yet published)" and that the "content of that application has never been provided, so no one knows what she is even claiming she has rights to."
Plaintiff alleges that between July 14 and July 17, 2025, Defendants "engaged in an online smear campaign, attempting to leverage public hate and harassment as a means of forcing Plaintiff to flee the market." This campaign is "ongoing" and "will likely continue without court interference." Among other things, Defendants have accused Plaintiff of racism, theft of intellectual property relating to the hair clip, and the sale of counterfeit goods. Boyce has attempted to coordinate a large number of third-party complaints to Plaintiff's vendors in an effort to have Plaintiff's store removed from online platforms.
When can a religious group, like a church or school, lawfully fire an employee for violating its religious teachings? Under a constitutional rule called the "ministerial exception," religious groups have broad leeway to hire and fire "ministers"—broadly defined to include employees who perform important religious functions. But what about any employee like a secretary or janitor, who may not perform important religious functions? What legal protections do religious groups have when they hire and fire non-ministers?
This is the question presented in a spate of new cases now hitting appellate courts nationwide and likely, eventually, landing in the Supreme Court. It is also the question addressed in my forthcoming article in the Notre Dame Law Review, Religious Hiring Beyond the Ministerial Exception.
The article provides a comprehensive analysis of six potential legal protections for the religious hiring of non-ministers. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exemption; and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the article examines the key caselaw, breaks down the arguments for and against applying the protection, and identifies key pressure points and unanswered questions. The result is, I hope, a much-needed roadmap of an important issue of pressing interest to scholars, jurists, and practitioners alike.
Thanks to Eugene for inviting me to guest-blog about this issue. This first post will define the problem I'm addressing and explain why it has become such a pressing issue in federal court. Future posts will unpack the potential legal solutions and explain what courts are getting right and what they're getting wrong.
The ministerial exception
To understand religious hiring for non-ministers, it's important first to understand the key legal doctrine governing the hiring of ministers: the ministerial exception.
I'm delighted to report that Luke Goodrich of the Becket Fund—one of the most prominent, successful, and ecumenical religious liberty litigation groups in the country—will be guest-blogging this week about his forthcoming Notre Dame Law Review article, Religious Hiring Beyond the Ministerial Exception:
Can a religious school fire its secretary for entering a same-sex marriage? Under the First Amendment's "ministerial exception," religious employers have a constitutional right to select their "ministers"—broadly defined to include individuals who perform important religious functions. But what about an employee, like a secretary, who is not a minister? Do religious groups have any legal protections for hiring non-ministers?
This Article provides a comprehensive taxonomy of legal protections for the religious hiring of non-ministers. It analyzes six protections. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exception; and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the Article examines the leading caselaw (where it exists), analyzes the arguments for and against the protection, and identifies key unanswered questions. The result is a much-needed roadmap of an emerging legal issue of great importance to scholars, jurists, and practitioners alike.
After providing this roadmap, the Article addresses the deeper problem of determining which legal doctrines offer the best "fit" for protecting the religious hiring of non-ministers. As the Article explains, Title VII's religious exemption offers strong statutory protection for the religious hiring of non-ministers. But recent developments in state law are taking that statutory protection off the table in some cases, forcing courts to grapple with thorny constitutional questions that neither courts nor commentators have yet explored.
I've teamed up with well-regarded civil rights lawyer, Caree Harper, to fight the Department's effort to vacate L.A. Sheriff's Department Officer Trevor Kirk's conviction.
Over the last several days, the Justice Department has attempted to vacate the conviction of a police officer the Department's career prosecutors had convicted of using excessive force. Because I believe it is important to hold police officers accountable when they violate the law and harm victims, I've teamed up with well-known civil rights lawyer, Caree Harper, to fight the Department's dismissal effort. As Ms. Harper and I explain in our brief filed late last night, the Department has made no real showing of any reason why that properly obtained conviction should now be erased.
The case involves L.A. County Sheriff's Department deputy Trevor Kirk, whom a jury convicted in February of a felony civil rights violation for assaulting and pepper spraying an elderly woman. The relevant events were captured on video.
On June 24, 2023, while responding to a call for service at a grocery store in Lancaster and handcuffing another individual, Kirk encountered J.H. She was seated in her car, and then left her car to film Kirk with her phone. Then, Kirk approached Victim J.H. Without giving her any commands, Kirk attempted to grab her phone. J.H. turned away from Kirk, meaning Kirk was unable to seize the phone. So Kirk grabbed J.H. by her arm, hooked his left hand behind her neck, and violently threw her to the ground. J.H. told Kirk, "It's already on YouTube Live," implying that her video had already been made public. Kirk responded, "Stop, I don't give a sh** . . . ." Kirk then stuck his knee on J.H.'s shoulder. When J.H. yelled at Kirk to "stop," Kirk cocked his right arm back with a clenched fist and said, "Stop or you're gonna get punched in the face."
J.H. told Kirk that she would sue him if he punched her. Kirk then pressed his knee into J.H.'s neck. J.H. said, "Get your neck off my . . . off my . . . I can't breathe." While on top of Victim J.H., Kirk used his LASD radio to misleadingly report that he was "in a fight." Shortly thereafter, without giving any additional commands to J.H., Kirk sprayed J.H. twice in the face with "pepper spray." As a result, J.H. received medical treatment at a hospital approximately 40 minutes after the assault. In addition to physical pain, J.H. suffered various physical injuries.
The indictment recounted the foregoing facts and charged Kirk with the felony of depriving Victim J.H. of her rights under color of law, in violation of 18 U.S.C. § 242.
In May, the Justice Department convinced the judge handling the matter (Judge Stephen Wilson, a Reagan appointee) to reduce the conviction from a felony to a misdemeanor, through the maneuver of moving to dismiss the part of the indictment alleging serious bodily injury—leaving only a misdemeanor excessive force conviction in place. The Department also proposed a binding plea agreement with a straight probationary sentence. Judge Wilson rejected the proposed plea deal as too lenient, in light of the officer's clear betrayal of the public trust. In early June, Judge Wilson sentenced the officer to four months in federal prison.
The latest developments arose late last week, when the Justice Department abruptly moved to dismiss the criminal indictment against the officer. The Department gave as its only reason the fact that it had decided not to defend the conviction of the officer on appeal.
Late yesterday, Ms. Harper and I filed our response to the Department's motion to dismiss. Here's our introduction, touching on federal jurisdictional issues and other reasons the Court should deny the motion: Read More
From the July 25 decision in Fuhr v. Smithby N.Y. trial court judge Gerald Lebovits:
This action arises from a dispute about who should house a dog and her litter of puppies. Plaintiffs, Kristopher Fuhr and Sara Obstarczyk, are foster parents for rescue pets in New York State. A Good Dog Rescue, a pet-adoption organization, and Lisa Smith, the president of A Good Dog Rescue, are the defendants….
On January 10, 2025, plaintiffs signed a foster agreement with defendants temporarily to foster Lily, an adult dog, and Lily's litter of eight puppies. Plaintiffs allege that Smith was unable to foster Lily and the litter, because Smith's home had recently been contaminated with Parvovirus, a highly contagious canine virus that can be deadly to puppies/unvaccinated dogs. Plaintiffs began fostering Lily and her puppies in their home on January 11, 2025.
On March 8, 2025, Smith texted plaintiffs that she would retrieve Lily and her puppies from plaintiffs' home on March 14, 2025. On March 13, 2025, plaintiffs responded that they would continue to foster Lily and her litter because they believe that Smith's home is still contaminated.
According to plaintiffs, over the next several weeks defendants posted on social media (mainly Facebook) that plaintiffs were housing Lily and Lily's puppies in breach of the foster contract. Defendants' posts contained personal information, including plaintiffs' address and phone numbers. Plaintiffs allege that defendants' social-media posts prompted third parties to send plaintiffs threatening voicemails and emails, which forced plaintiffs to flee their home. Plaintiffs are currently keeping Lily and her puppies at an undisclosed location.
A horse is a horse, of course, of course…. unless the horse is the focus of a major takings case, in which a federal court will generate over 100 pages of opinions regarding whether the owner can sue under the Takings Clause to be compensated for its seizure.
The case of Fulton v. Fulton County, recently decided by the US Court of Appeals for the 11th Circuit, arose because Fulton County, Georgia authorities sought to charge Brandon Fulton (no relation to the person the county is named after) with animal cruelty. In the process, they seized his horses. Ultimately, the charges were dropped, but county authorities refused to return Fulton's horses, or compensate him for them.
For various procedural reasons, he could not sue for compensation under either state law or federal statutes. Therefore, he sought to sue directly under the Takings Clause of the Fifth Amendment, which requires "just compensation" whenever the government takes "private property." The issue of whether the Takings Clause is "self-executing" - whether people can sue under it in the absence of legislation authorizing a remedy - is one the Supreme Court avoided addressing last year in DeVillier v. Texas (where they held they did not have to reach it because the plaintiff had a remedy under Texas state law, which cold be pursued even in federal court).
The Eleventh Circuit has now addressed the issue in this case, in a divided 2-1 decision, which generated over 100 pages of opinions. To my mind, however, the issue is readily resolved by clear and simple points made early in Judge Robin Rosenbaum's compelling majority opinion:
In Greek mythology, the Greek gods condemned Tantalus to eternal hunger and thirst, all while forcing him to forever stand in a shallow pool of water under a tree with low hanging fruit. Though the remedy for Tantalus's hunger and thirst was right at hand, he could not take advantage of it. The water receded when Tantalus bent down to drink, and the fruit rose to just above his grasp when Tantalus tried to reach it.
Our Founders did not do to us what the Greek gods did to Tantalus. Our Constitution explicitly promises exactly two remedies: "just compensation" if the government takes our property, and the writ of habeas corpus if it tries to take our lives or liberty. And the Constitution delivers directly on each. It doesn't taunt us by naming these remedies but then holding them out of reach, depending on the whims of the legislature.
So even if Congress doesn't legislate a procedure by which a person can obtain one of these remedies, the Constitution's promise is not illusory. A person can bring a case directly invoking either constitutional remedy….
The Dissent responds by saying we are "creat[ing] a new right of action" and leaving "constitutional wreckage in the wake…." But its answer that the Takings Clause includes no direct cause of action ignores the original public meaning of the Clause and transforms the Constitution's promise of "just compensation" into nothing more than a Tantalus-type taunt. Most respectfully, we don't think that's "judicial humility…"; we think it's judicial abdication. We have a duty to apply the Constitution as written. So we respectfully decline to read out of the Constitution the relief it expressly promises for taken property.
The Framers of the Fifth and Fourteenth Amendments provided a real remedy in "just compensation" for government takings. They guaranteed the ability to recover "just compensation" directly under the Constitution.
I completely agree! The Takings Clause says the government must pay just compensation whenever it takes private property. No ifs, ands, or buts. And no exception for cases where Congress and state governments don't legislate a remedy. The whole point of a constitutional right is to constrain the powers of government. Thus, it makes no sense to give that very same government the power to nullify the right in question by failing to provide a legislative remedy.
Moreover, as detailed in the amicus brief I filed in DeVillier (along with the Cato Institute), in Knick v. Township of Scott (2019), the Supreme Court made clear that victims of takings have a right to bring Takings Clause cases directly in federal court, and cannot be relegated to state court (see also my article about Knick and its significance). Still less can they be kept out of court entirely, as would have happened to Mr. Fulton if the Takings Clause were not self-executing.
In dissent, Judge William Pryor argues that Fulton failed to take advantage of various alternative ways to bring a claim. To the extent these alternative paths were in state court, they cannot vitiate his right to bring a claim in federal court. Knick rightly held that federal constitutional takings plaintiffs have a right to go to federal court, as is also true of victims of other constitutional rights violations (see my article on Knick for additional reasons why this is a vital principle). As Judge Rosenbaum notes, "the Takings Clause promises a federal remedy independent of the whims of states."
As Judge Pryor recognizes, Fulton tried to sue under Section 1983 of the federal Civil Rights Act of 1871, but the suit was dismissed for procedural reasons. Thus, he had no available federal remedy, other than one directly under the Constitution. Even if a statutory path was also available, that should not preclude the constitutional path.
I am also not much impressed by Judge Pryor's argument that there is a paucity of cases where takings cases were brought directly under the Constitution in the early republic. At that time, the Bill of Rights only applied against the federal government, and that government was not generally understood to have the power of eminent domain. Almost all takings were conducted by state and local governments. Even after the enactment of the Fourteenth Amendment made the Bill of Rights applicable to state governments in 1868, it took courts many decades to recognize that the Takings Clause applies to states and localities. This history is discussed in much greater detail in Chapter 2 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.
Judge Pryor relies extensively on the amicus brief filed by legal scholars James Ely and Julia Mahoney, and Prof. Mahoney's other writings. He rightly calls them "renowned legal scholars." But the Ely-Mahoney brief actually cuts against his position. It argues that a direct constitutional remedy is required by the Fifth and Fourteenth Amendments whenever "there are no existing procedures to provide just compensation or the existing procedures are inadequate." This is just such a case.
In most controversial takings cases, conservative judges tend to side with the pro-property rights side, while more liberal ones tend to support the government. Here, the usual alignments are flipped. Judge Rosenbaum is a liberal Obama appointee, and Judge Nancy Abudu (the other judge in the majority) is a liberal appointed by Biden. Judge Pryor is a prominent conservative judge appointed by George W. Bush. Perhaps differences on property rights are outweighed here by differences over the scope of permissible remedies (conservative judges tend to be more wary of broad remedies for rights claimants than liberal ones).
Regardless, the liberal judges are right here, and Judge Pryor - whose work I otherwise greatly respect - is badly wrong. The Takings Clause means what it says, and neither Congress nor a state government can nullify it by failing to legislate a remedy.
After a public outcry, the scheduled vote on the plan to use eminent domain has been postponed indefinitely. If the Town of Toms River does try to condemn the church, there is likely to be a major legal battle.
In May, I wrote about how the town of Toms River, New Jersey, planned to use eminent domain to condemn the Christ Episcopal Church and build and park and pickleball courts on the spot. The plan may have been motivated by a desire to prevent the church from building a homeless shelter on part of its property. In my earlier post, I outlined multiple potential objections to the planned condemnation under the state and federal constitutions, including 1) if the condemned property is transferred to a private party, that may mean it is not being devoted to a "public use," as the Fifth Amendment and the New Jersey Constitution both require (NJ state courts applying their state constitution enforce this requirement far more rigorously than federal courts do under the Fifth Amendment Takings Clause), and 2) there is likely to be a strong argument that this is a "pretextual taking," where the official rationale is just a pretext for a scheme to benefit a private party (here, local NIMBYs who want to block the homeless shelter).
After an initial outcry, the vote on the plan was postponed until July 30. More recently, Mayor Dan Rodrick postponed the vote indefinitely, likely because of growing public opposition. He now says the town will go through with the vote only if a poll of town residents he plans to conduct on the subject reveals majority support for it. At this time, I do not know when the poll will occur or what the wording will be. The wording of survey questions on land-use policy often has a big effect on results.
Dan Paulsen of the Episcopal News Service has a helpful article summarizing the situation and the potential legal issues involved (he quotes a number of takings and land-use experts, including myself):
A New Jersey church was thrust into the national spotlight in recent months when town officials targeted the property for seizure, by eminent domain if necessary, to create new public parkland. Episcopal leaders insisted Christ Episcopal Church in the town of Toms River was not for sale.
Legal experts and property rights lawyers interviewed for this story told Episcopal News Service that Christ Church likely would be on solid ground in fighting to maintain ownership of its 11-acre property, though existing case law leaves unanswered how courts might rule if the church asserts its rights both as a property owner and as a house of worship….
Rodrick first proposed voluntarily buying or forcibly seizing Christ Church's property in April, and the Toms River council voted later that month to move forward initially with his plan. Rodrick said he envisioned creating a multiuse park on the church's property because that part of town lacks recreational facilities….
The mayor's proposed eminent domain ordinance requires a second approval to take effect. A final vote had been scheduled for July 30, but Rodrick postponed it indefinitely after facing a vocal outcry from church leaders and the church's supporters, as well as a petition drive seeking to block the pending ordinance. The mayor's opponents launched a separate campaign attempting to recall him.
"The church and the diocese are prepared for a long court fight to protect our congregation and property from this egregious land grab," the Rev. Lisa Hoffman, Christ Church's rector, wrote in a May message to her congregation. New Jersey Bishop Sally French has said the diocese will do "all that we can" to help defend the church in any property dispute…
Legal experts say an eminent domain proceeding involving a church would not be unprecedented – houses of worship are not immune from governments legally taking some or all of their property, with fair compensation and for public use – though those experts also say they are following the Toms River dispute with keen interest, given the questions it may raise about the proper application of state and federal laws.
"I think what's interesting about it is it kind of stands at the confluences of two different kinds of religious land disputes," Eric Rassbach, vice president and senior counsel at the public interest nonprofit Becket Fund for Religious Liberty, said in an ENS interview.
The first is the general threat of eminent domain, a legal process by which a government can take privately owned property even if the property owner doesn't want to give it up. The U.S. Constitution's Fifth Amendment limits the use of eminent domain by requiring that governments provide "just compensation" when taking property for "public use." Congress and some states have passed laws giving property owners additional protections.
Secondly, Rassbach said, the timing of Toms River's eminent domain threat raises additional red flags, given that the mayor has opposed broader efforts to assist people experiencing homelessness and that some of his constituents had complained specifically about Christ Church's homeless shelter proposal.
The congregation, which has said its outreach ministries are rooted in the Christian call to help those in need, could argue that the town's actions are unfairly limiting how it lives out that call, Rassbach said. Unlike other property owners, houses of worship benefit from additional protections under the First Amendment and a federal law known as the Religious Land Use and Institutionalized Persons Act [RLUIPA]. In Toms River, the town would have the burden of proving it is using eminent domain consistently, fairly and in a way that doesn't place undue burden on the church's exercise of its faith.
As Eric Rassbach of the Becket Fund for Religious Liberty notes in the passage above, if the condemnation goes forward, the church may have a strong religious liberty claim under RLUIPA, in addition to takings claims.
Since I wrote my earlier post on this issue, I have been in contact with representatives of the Episcopal Church, offering them my assistance with this issue. The Institute for Justice and the Pacific Legal Foundation* - two of the nation's leading public interest law firms specializing in property rights issues - have also reached out, and the same is true of the Becket Fund (which is well-known for its work on religious liberties). Should the town go through with this abusive condemnation, it will likely face a lengthy and difficult legal battle - one that it might well lose. If you are a local government trying to carry out a dubious condemnation, IJ and PLF are probably the people you least want to see arrayed against you in court!
Hopefully, the local government will back off. Even aside from legal considerations, it is deeply unjust to use the power of the state to seize a church merely because it seeks to build a shelter to help the homeless. I don't think you have be an expert on property rights or religious liberties to see that.
But if the town does decide to go through with this travesty, property rights and religious liberty advocates will not stand idly by. Many of us will act to help the church resist in both courts of law, and the court of public opinion.
I will post additional updates on this issue when and if I have anything to report.
*NOTE: The Pacific Legal Foundation is also my wife's employer. But she does not work on property rights issues.
There was a time when the Supreme Court would reverse decisions of the U.S. Court of Appeals for the Sixth Circuit in habeas cases quite regularly,often summarily. This does not happen as much as it used to, but some justices remain concerned that some of the Sixth Circuit's judges are too quick to grant habeas relief.
Chandler v. Brown looks like a potential candidate for summary reversal at One First Street. The original Sixth Circuit panel, consisting of Judges White, Stranch, and Davis, reversed the district court's denial of Louis Chandler's habeas petition. The full court granted en banc review, but only to have the panel amend its initial opinion. Now, the court has denied a subsequent petition for rehearing en banc, over the dissent of four judges.
Louis Chandler sexually abused his eight-year-old foster daughter. At trial, she told the jury in graphic detail about how Chandler molested her. She wasn't the first one Chandler had sexually abused. Three other victims testified about the abuse they suffered at his hands. Even Chandler's wife corroborated his foster daughter's claims of sexual abuse by Chandler.
So how did Chandler convince a panel of this court to grant him habeas relief? He tells us that the state trial court wrongly prohibited a different foster couple from testifying that the victim had previously made false allegations against them soon after they proposed to adopt her. According to Chandler, their testimony could have shown that the victim had a motive to falsely accuse Chandler too, so that she could return to her birth parents. Never mind that, by the time of the victim's testimony at trial, she had been adopted by another family and living with them for almost five years without accusing them of misconduct. Never mind that the victim did not make allegations of sexual abuse against the prior foster parents; she alleged that they did things like hit her with a wooden spoon, pull her by the ponytail, and give her ill-fitting clothes. And never mind that at least one of the victim's accusations against the prior foster parents (that they put soap in her mouth) turned out to be true. (The parents are now on a child abuse registry.) Chandler still claims that his foster daughter's alleged prior accusations against this other couple about these other events were central to his defense to the charged sexual abuse.
A Michigan appellate court held that the trial court committed various state-law errors in the process of excluding this evidence. Ultimately, though, that court held that these state-law errors did not rise to a federal constitutional violation. And it found the errors harmless after assuming (without deciding) that some of Chandler's key evidence might have been admissible.
This federal habeas case thus asks: If a state appellate court concludes that a trial court's exclusion of evidence misapplied an otherwise valid rule of evidence or procedure, when does that state-law violation infringe the federal Constitution? Always? Never? Sometimes? If so, when? The Supreme Court has yet to confront this question, let alone clearly establish the ground rules that should govern it. Cf. Nevada v. Jackson, 569 U.S. 505, 510 (2013) (per curiam). And even if the Court eventually extends its "balancing of interests" approach to this new context, the Michigan appellate court did not unreasonably apply that approach. Id. Indeed, it's doubtful that the other foster couple's testimony would have been admissible even under a proper interpretation of Michigan law. And the state court could reasonably find that Chandler did not have a "significant interest" in presenting this evidence anyway. United States v. Scheffer, 523 U.S. 303, 316–17 (1998). Unlike the excluded evidence in the Supreme Court cases that found a constitutional violation, the excluded evidence here did not concern "'facts' about the alleged crime at hand." Id. at 317 & n.13. So we are hard-pressed to see how the rejection of Chandler's claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). This should foreclose Chandler's claim under the Antiterrorism and Effective Death Penalty Act (AEDPA).
The panel's contrary reasoning violates AEDPA in several ways. It improperly invokes evidence that the state court found forfeited or that was not in the state court record. And it fails to provide the great deference owed to state courts when a petitioner relies on general constitutional principles. The panel's decision also undercuts AEDPA's federalism and comity goals. For example, Chandler's trial required four victims to testify about his abuse. Now these victims must relive their trauma by testifying again. Our full court should have prevented this result because the panel committed the types of errors that the Supreme Court has seen fit to summarily reverse. See Cassano v. Shoop, 10 F.4th 695, 696–97 (6th Cir. 2021) (Griffin, J., dissenting from denial of rehearing en banc) (collecting 22 cases, including 12 summary reversals, in which the Court reversed the Sixth Circuit "for not applying the deference to state court decisions mandated by AEDPA").
The substance of the decision, and the objecting judges, would seem to make Chandler a strong candidate for Supreme Court review, and perhaps even a summary reversal. The question will be whether Michigan files a petition for certiorari.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Two weeks ago, we told you about Greers Ferry, Ark. officials putting a Flock surveillance camera directly in front of the home of retired couple Charlie and Angie Wolf. The Wolfs asked the city to take it down and were rudely rebuffed, but after IJ sent the city a letter explaining that the camera was a bit of a problem Constitution-wise, the city did the right thing and removed it. "We're thrilled that the Wolfs will no longer be subjected to constant warrantless surveillance of their property," said IJ Senior Attorney Josh Windham. "That said, there are still massive Fourth Amendment concerns with the use of these license plate reader cameras, and we urge the city not to renew its contract with Flock Safety when the initial term is up." Click here to learn more.
On the latest Unpublished Opinions podcast, the team run through a lot of legal news, including the fact that AI keeps apologizing to IJ's Josh Windham.
Social worker at public school in Maine gives 13-year-old "a device used to flatten a female's chest so as to appear male." The teen also starts going by another name and using different pronouns at school—neither of which are disclosed. When mom finds out, she sues the school district for violating her right to direct the upbringing of her child. First Circuit: And we're not going to address that because none of this was a school policy, just employees doing stuff.
In 1995, a 12-year-old reports that his mother's husband, a Boston cop, had been sexually abusing him for years. The cop is arrested, and both the police dept. and state child welfare officials investigate—each determining the evidence supports the allegations. And then … the charges are dropped, he's reinstated, and he continues to serve until his retirement in 2018 (including a stint as head of the police union). In 2022, he pleads guilty to sexually abusing six children. Did the City, its police officers and their union, and the state employees exacerbate the danger to the victims in violation of the Fourteenth Amendment right to bodily integrity? First Circuit: Indeed, they might have. Read More
Professor Steve Vladeck has responded to my Civitas Outlook column and blog post suggesting he has wrongly characterized the Supreme Court's principled formalist jurisprudence for appeasement of the Trump Administration. He claims my criticism of him is "misdirected," my defense of the Court relies on "cherry-picking," and that my defense of the Court is incongruous because one cannot defend the Court for being principled if it does not articulate its principles. He further critiques a New York Times op-ed by Adrian Vermeule which makes some arguments parallel to mine, but which also endorses a more radical response than I have endorsed.
For reasons I will briefly explain below, I stand by my prior assessment in every respect, including the qualifications I have already noted. I also believe much of Vermeule's critique of district courts is well taken. I part company with Vermeule, however, when he suggests that district court overreach and a departmentalist view of the Constitution justify outright defiance of court orders.
Vladeck's first complaint is that my criticism of his accusation that the Court is engaged in "appeasement" worthy of comparison to Neville Chamberlain is "misdirected" because he was merely responding to and characterizing claims by others. However Vladeck may have framed his claim elsewhere, I do not think that is a plausible characterization of his remarks at the National Constitution Center which prompted my column. In those remarks, he made clear that there is "no other way to describe what the Court is doing in these cases" other than in terms that can be summarized as "appeasement" and that "at least some members of the Court may not see themselves as, but are very much acting like, Neville Chamberlain." But don't just take my word for it; roll the tape.
So while Vladeck may now clam he is neither the source nor an adherent of the "appeasement" thesis, he quite expressly embraced it before a live audience at the NCC.
In the [earlier order], the Court found that Netrebko did not allege direct evidence of discriminatory intent…. Netrebko contends, however, that the Court overlooked at least one allegation in the complaint—that the Met replaced Netrebko with exclusively non-Russian artists in the roles for which she had originally been cast….
Among other allegations, [Netrebko] claims that the Met promoted the fact that it replaced her, a Russian, with a Ukrainian artist—and that Gelb even "admitted that [the new performer's] Ukrainian national origin was one reason the Met selected her for the role." Netrebko further alleges that "the Met did not ask artists who were not of Russian origin about their views on Russia's actions or ask them to make statements about the war in Ukraine or denouncing Putin," even though some artists who performed at the Met had "received support from," or even "expressed support for, Putin and/or the Russian government." Together, such allegations support the inference that Netrebko's replacement by non-Russian artists occurred under circumstances giving rise to at least a "minimal" inference of discrimination.
Here's more from the post about last year's decision, which also discusses Netrebko's other claims (as to which the judge didn't change her mind):
After Anna Netrebko, an acclaimed opera singer, refused to repudiate Russian President Vladimir Putin in the wake of Russia's 2022 invasion of Ukraine, the Metropolitan Opera fired her….
A defendant has challenged Acting New Jersey U.S. Attorney Alina Habba's appointment under the Federal Vacancies Reform Act, but he has no real case under the statute's plain language.
Previously Steve Calabresi and I have blogged about how Alina Habba's appointment as Acting U.S. Attorney for the District of Jersey is valid under the Federal Vacancies Reform Act (FVRA). Calabresi's initial post argued that New Jersey judges lacked constitutional power to displace Habba by appointing an interim replacement. But while I disputed that constitutional conclusion, I ultimately reached the same position as Calabresi under the relevant statutes. I concluded that, under 28 U.S.C. § 546 and the FVRA, Habba was appropriately serving as the Acting U.S. Attorney. In my last post, I explained that the Justice Department had made a powerful defense of Habba's appointment under the FVRA. Earlier today, the defendant challenging Habba's appointment filed a reply brief. But that brief fails to engage on the main issues surrounding the FVRA. It appears that the defendant's position is weak and should be swiftly be rejected.
The timeline is important here. To recap the (essentially undisputed) facts, on March 27, 2025, the Attorney General appointed Ms. Habba interim United States Attorney for the District of New Jersey pursuant § 546. (To make his case seem stronger than it really is, the defendant's brief claims that the Ms. Habba was appointed three days earlier, on March 24—citing a CBS news article. But the Justice Department's brief includes as an exhibit the actual appointment order, which is dated March 27, 2025.) Section 546 explicitly limits such interim appointments to a maximum period of 120 days. 5 U.S.C. § 3346(a)(1). Given an appointment of 120-days, Habba's interim appointment would have expired on on Saturday, July 26.
On June 30, 2025, President Trump formally nominated Ms. Habba for the permanent position of United States Attorney for the District of New Jersey and submitted her nomination to the Senate. On July 24, 2025, before the Senate had acted, the President withdrew Habba's nomination. That same day—July 24, two days before her interim appointment expired—Habba resigned her interim position as United States Attorney. The Attorney General then immediately appointed her as a Special Attorney under 28 U.S.C. § 515, which appointment Ms. Habba accepted. Exercising her authority under 28 U.S.C. §§ 509, 510, 515 and 542, among other provisions, the Attorney General also designated Ms. Habba as the First Assistant in New Jersey, effective upon her resignation as the interim United States Attorney. All of this occurred on Thursday, July 24, two days before the 120-day limit period in § 546(c)(2) expired at 12:00 a.m., Saturday, July 26. As a result of her holding the position of First Assistant U.S. Attorney position in New Jersey, by operation of law, Habba then became the Acting United States Attorney under the FVRA, 5 U.S.C. § 3345(a)(1).
In addition, on Saturday, July 26, a senior Department of Justice official notified the former First Assistant that the President would have removed her from the position of United States Attorney if her judicial appointment to that office had somehow become effective. The notification indicated that, in taking that step, the President was exercising his authority under Article II of the Constitution and 28 U.S.C. § 541(c). The former vests "the executive power in" the President; the latter provides that "each United States Attorney is subject to removal by the President."
Against this backdrop, it seems hard to see the argument that Habba is not currently and validly the U.S. Attorney for the District of New Jersey. The defendant's argument turns on a single phrase in the FVRA, which he does not bother to quote in his brief. Instead, the defendant represents that the FVRA "explicitly prohibits individuals whose nominations have been submitted to the Senate from serving in an acting capacity for the same office, regardless of subsequent withdrawal of the nomination. 5 U.S.C. § 3345(b)(1)." But let's look at the text of the statute that the defendant fails to quote. Read More
Justice Kavanaugh spoke at the Eighth Circuit Judicial Conference. He was interviewed by Judge Sarah Pitlyk, who was his former law clerk. (Kavanaugh's clerk tree continues to grow, with President Trump's recent nominations to the Third and Sixth Circuits.)
I have yet to find a video of the event, but there are several press accounts. Politico offers this insight:
Kavanaugh also made clear he closely follows press coverage, podcasts and social media posts about the Supreme Court, what he described as "an ocean of criticism and critiques out there."
"I'm aware of it. I definitely pay attention to it. I think you have to. We're public officials who serve the American people. It's not an academic exercise," said Kavanaugh, who worked as a White House lawyer for President George W. Bush. "It's important for maintaining public confidence in the judiciary and the Supreme Court to know how the opinions are being conveyed and received and understood by the American people."
Oh I bet he does. Indeed, in 2021, the Supreme Court's Public Information Office "clipped approximately 10,000 news articles related to the court and the justices, roughly half of them tweets." The Justices have to go out of their way to not see this content.
I also appreciate that Justice Kavanaugh responded directly to Justice Kagan's missives at the Ninth Circuit Conference about the lack of a written opinion for emergency docket orders.
Kavanaugh . . . said there can be a "danger" in writing those opinions. He said that if the court has to weigh a party's likelihood of success on the merits at an earlier stage in litigation, that's not the same as reviewing their actual success on the merits if the court takes up the case.
"So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that's not going to reflect the final view," Kavanaugh said.
Kavanaugh is right. More and more, it seems that Justice Kavanaugh is speaking out in defense of what the majority is doing--his opinions in Labrador v. Poe and CASA were extremely important. He has become the explainer in chief! Chief Justice Roberts is content in issuing stern end-of-year messages and trying to cheer up Judge Boasberg at Judicial Conference meetings.
Let's say I have not ever talked to my clerks about whether they read SCOTUS blog. I would be surprised if most of the law clerks in the building did not. I have a policy of not reading. I read news. I'm not an uninformed person, but I have a policy of trying not to read any coverage that addresses me. I mean, I kind of generally want to know about the court. But I do try not to read like whether they're positive or negative, I think it's not a very good idea to read and consume media, that's about me, because, you know, I think there are personal and institutional reasons for that, you know, the institutional reason is that judges have life tenure, so that they can be insulated from fear of public opinion. And so to read criticisms of the court, I think, undermines that. So you know, you shouldn't be playing to anyone in the public or any kind of constituency, you know, being happy if you make one segment of the public happy, or, you know, reluctant to anger another. . . .
And then on a personal level, you know, it's just not good to have any of that in your head. Certainly not if it's critical and mean. But even if it's high praise, I mean, like, why should you be reading a steady diet? Or my case, it wouldn't really be a steady diet. But why should you be consuming, you know, flattering, you know, articles about yourself, because on a personal level, I mean, the day that I think I am, you know, better than the next person in the grocery store, checkout line, and you know, is a bad day. So, I would say that I really tried to bracket and put aside, you know, anything, you know, to the extent that I can avoid reading, and if it addresses me in particular.
I was incredulous about this statement at the time, and I remain incredulous. Indeed, as Justice Barrett prepares a media blitz for her forthcoming book, I have to imagine she will follow press coverage about herself carefully. Justice Barrett's planned event with Bari Weiss at Lincoln Center seems to have sold out almost immediately.
I am still fond of Justice Scalia's 2013 remarks about his press diet to New York Magazine:
What's your media diet? Where do you get your news?
Well, we get newspapers in the morning.
"We" meaning the justices?
No! Maureen and I.
Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn't handle it anymore.
What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don't think I'm the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.
So no New York Times, either?
No New York Times, no Post.
And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.
Not NPR?
Sometimes NPR. But not usually.
Reading the press is not necessarily a bad thing. As Mike Davis observed "Sometimes feeling the heat helps people see the light."
But the president's supporters were delighted by her criticism of Justice Jackson, with some crowing that their earlier attacks on Justice Barrett had succeeded.
"Sometimes feeling the heat helps people see the light," Mike Davis, a right-wing legal activist with close ties to…
— ???????? Mike Davis ???????? (@mrddmia) July 7, 2025
Outcomes are hard to predict. But the judges seemed skeptical of the administration's claim that the president has virtually unlimited power to impose tariffs.
Today, the en banc US Court of Appeals for the Federal Circuit hear oral arguments in VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs brought by the Liberty Justice Center and myself on behalf of five small businesses seriously harmed by the tariffs. You can listen to the argument here. Leading appellate litigator and Georgetown law Prof. Neal Katyal argued for us.
The case is consolidated with a similar one brought by twelve state governments, led by Oregon. We are defending a unanimous ruling in our favor by the US Court of International Trade, which held that the International Emergency Economic Powers Act of 1977 (IEEPA) does not grant the president anything approaching unlimited tariff authority, and if it did it would be an unconstitutional delegation of legislative power to the executive.
It is difficult to predict case outcomes based on oral arguments, particularly one with eleven judges that have a diversity of views and interests. Still, I can make a few tentative observations.
First, there seems little, if any, support for the idea that IEEPA grants the president unlimited tariff authority of the kind the administration claims. Multiple judges expressed skepticism that the law gives him the authority to rewrite the tariff schedule or to claim "unbounded authority." Several judges emphasized, as Judge Reyna noted, that "IEEPA doesn't even mention the word tariffs." From the beginning of this litigation, we have emphasized that IEEPA delegates authority to "regulate" importation, but regulation is distinct from taxation.
Even if IEEPA does allow some tariff authority, as the predecessor court to Federal Circuit ruled in United States v. Yoshida International Inc. (1975), with respect to the Trading with the Enemy Act (predecessor statute for IEEPA), it doesn't follow that authority is unlimited. Yoshida held it was not endorsing unlimited tariff authority. It emphasized that the Nixon tariffs were linked to the preexisting tariff schedule set by Congress, and that "[t]he declaration of a national emergency is not a talisman enabling the President to rewrite the tariff schedules." It even noted that to "sanction the exercise of an unlimited [executive] power" to impose tariffs "would be to strike a blow to our Constitution." A number of judges noted today that, if Yoshida applies to IEEPA (thereby authorizing some tariffs), so too do its limitations on the scope of permissible tariff authority.
Some judges also suggested that unconstrained tariff authority would run afoul of the major questions doctrine and constitutional constraints on delegation of legislative power to the executive. The CIT based its ruling in part on these considerations.
Even if IEEPA does allow the use of tariffs, the law can only be invoked in the event of an "emergency" that poses an "unusual and extraordinary threat" to the US economy and national security. Those judges who raised this issue seemed skeptical of claims that what qualifies and an "unusual and extraordinary threat" is left to the unreviewable discretion of the president. Otherwise, IEEPA (assuming it allows tariffs at all) would be a blank check for the president, thereby exacerbating major questions and nondelegation problems.
There is nothing unusual or extraordinary about trade deficits, the supposed threat targeted by the Liberation Day tariffs. We have had them for decades, and today's deficits are well in line with historical norms.
A number of judges raised an issue that was given little consideration by the lower court, and in briefing by the parties: even if trade deficits are not an "unusual and extraordinary threat," perhaps some of their supposed consequences do. Those possible effects include damage to US manufacturing, decline of the defense industrial base or the like.
Claims that trade damages US manufacturing and defense industries are - like trade deficits - far from unusual. Protectionists have advanced such arguments for decades. Far from atrophying or "hollowing out," US manufacturing output has actually grown in recent decades, nearly doubling since 1997. While it has declined as a percentage of GDP, that's largely because other industries (such as services) have grown even more. Perhaps we should have still more manufacturing. But there is nothing "unusual and extraordinary" about its current level. Whatever danger trade deficits pose to manufacturing or defense is not an unusual and extraordinary threat, but a normal policy issue that cannot be addressed through a statute limited to emergency situations. Moreover, as the amicus brief by leading economists points out, trade deficits, as such do not cause a decline in manufacturing.
Finally, it is worth noting that IEEPA only authorizes measures that "deal with" the emergency and unusual and extraordinary threat that justifies its invocation. Trump's imposition of 10% or higher tariffs on virtually every nation in the world goes far beyond merely targeting imports that might plausibly be said to undermine manufacturing or defense.
In sum, it is hard to predict what exactly the Federal Circuit will do here. But I am tentatively optimistic that the court will at least reject claims that IEEPA gives the president virtually unlimited, unreviewable tariff authority.
