The Volokh Conspiracy

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

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Administrative Law

Eleventh Circuit Upholds For-Cause Removal Requirement for Administrative Law Judges

Will the en banc court agree? Will the Supreme Court?

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Yesterday, in Walmart v. Chief Administrative Law Judge, a unanimous panel of the U.S. Court of Appeals rejected Walmart's challenge to the constitutionality of protecting Administrative Law Judges in executive branch agencies from removal without cause.

In an extensive and quite thorough opinion by Judge Hull, joined by Judges Jordan and Jill Pryor, the court concluded that the duties and authority exercised by ALJs are sufficiently constrained that limiting ALJ removal does not entrench upon executive power under Article II or otherwise prevent the President from fulfilling his obligation to "take care" that the laws are faithfully executed."

Here is the key portion of the opinion summarizing the court's analysis:

No doubt, the "general rule" is that under Article II the President has the "unrestricted" power to remove executive officers. See Seila Law, 591 U.S. at 215. To date, the Supreme Court has enumerated only two narrow exceptions to this Article II rule: (1) "one for multimember expert agencies that do not wield substantial executive power," id. at 218; see also Humphrey's Ex'r, 295 U.S. at 631-32, and (2) "one for inferior officers with limited duties and no policymaking or administrative authority," Seila Law, 591 U.S. at 218; see also Morrison, 487 U.S. at 691.

We are not concerned with the first exception. In the district court and on appeal, neither party previously asserted that ALJs are members of multimember expert agencies under Humphrey's Executor or single directors of independent agencies. See Seila Law, 591 U.S. at 213 (single Director of CFPB); Collins, 594 U.S. at 251 (single Director of FHFA).

As to the second exception, the parties still agree that the Department's ALJs are inferior officers properly appointed by the Attorney General. So the constitutional question becomes whether they have "limited duties and no policymaking or administrative authority" as required by the second exception. Seila Law, 591 U.S. at 218; Morrison, 487 U.S. at 691; see also Wilcox, 145 S. Ct. at 1415 (acknowledging "narrow exceptions" to the President's Article II removal power).

Under the second exception, the pivotal Article II inquiry remains whether the APA's § 7521(a) removal restriction unconstitutionally interferes with the President's necessary power to take care that the laws are faithfully executed. See Myers, 272 U.S. at 164; Morrison, 487 U.S. at 689-90. In other words, does the ultimate exercise of executive power remain within the purview of the President or those directly accountable to the President? See Morrison, 487 U.S. at 689-90.

After thorough consideration, and applying the Supreme Court's governing analysis and largely the same factors considered by other circuits, we conclude the APA's § 7521(a) removal restriction is constitutional . . .

The court adds:

In holding § 7521(a) constitutional, we respect the Constitution's carefully calibrated separation of powers. Even though the Constitution is silent about removal of executive branch officers, the Supreme Court has instructed that Article II's Take Care Clause and Appointments Clause grant the President the broad power to remove executive branch officers. But importantly here, the Constitution in Article II also explicitly grants Congress a say in how inferior officers, including the Department's ALJs, are appointed. The constitutional authority of Congress to vest the appointment of inferior officers implies authority to limit and regulate the removal of those inferior officers so appointed. Striking down § 7521(a)'s straightforward "good cause" removal restriction on inferior officers with such limited duties as ALJs would upset the Constitution's balance of governmental power.

I would expect that Walmart will seek review of this ruling, perhaps initially with a  petition for rehearing en banc, then followed by a petition for certiorari. This is a particularly liberal panel for the Eleventh Circuit, so an en banc petition would make some sense. On the other hand, Judge Hull's opinion is quite thorough, and other judges on the circuit might think that if any court is going to take the next step with regard to limitations on removal, it should be the Court at One First Street.

Race Discrimination

Principal's Race Discrimination Lawsuit Over "We Can Malcolm X Her" Allegations Can Go Forward

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A bit of backstory, from a 2019 N.Y. Daily News story (by Michael Elsen-Rooney & Stephen Rex Brown):

A white principal and four black teachers at a Bronx middle school have filed dueling lawsuits accusing the other of racism as fallout continues over allegations that the embattled administrator barred Black History Month lessons.

Former Bronx Intermediate School 224 Principal Patricia Catania, who is white, grabbed headlines in 2018 when the Daily News reported on accusations she prohibited English teacher Mercedes Liriano from teaching lessons on the Harlem Renaissance and confiscated a student's poster on African-American musical genius Lena Horne.

Amid the furor, Catania sued Liriano, two other black teachers at the school and two teachers union employees, alleging they'd waged a "maligning, malevolent, and racist campaign" to oust Catania as principal because she was successfully cracking down on under-performing educators….

"We can Malcolm X her, by any means necessary we will get her out. Change through violence," UFT rep William Woodruff allegedly said in January 2017.

In Catania v. United Fed'n of Teachers, decided Monday by Judge Gregory Woods (S.D.N.Y.), the judge rejected much of plaintiff's claims, but allowed some to go forward; recall that all the factual allegations described below are just allegations at this point—the court simply held that plaintiff had plausibly alleged enough to allow the case to proceed:

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Free Speech

Hamtramck (Michigan) May Stop Flying Pride Flag and Other Flags on City Flagpoles

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From Monday's decision by Judge David Lawson (E.D. Mich.) in Gordon v. City of Hamtramck:

This case concerns a dispute over the display of flags on a series of 18 flagpoles located on city sidewalks lining Joseph Campau Avenue in the City of Hamtramck's downtown historic district. It is undisputed that the flagpoles are on public property and owned by the City. At the center of the dispute is the display of a Gay Pride flag, once sanctioned by [the city Human Relations Commission] and then banned by city government after a change in administrations and a corresponding policy reversal. The plaintiffs, Russ Gordon and Cathy Stackpoole, were members of that commission before they were dismissed for pressing the issue….

In 2021, the Hamtramck City Council authorized the display of a Pride flag at a city-owned flagpole, but then in 2023 it reversed course, implementing this resolution:

WHEREAS, the City of Hamtramck is one of the most diverse cities in the United States, in which we should proudly promote and embrace its diversity; and

WHEREAS, the City must and will serve and treat its residents equally, with no discrimination, or special treatment to any group of people; and

WHEREAS, the City has authorized in the past, the Human Relations Commission to install nations['] flags on the City flagpoles to represent the international character of the City, Resolution 2013-102: and

WHEREAS, each religious, ethnic, racial, political, or sexually oriented group is already represented by the country it belongs to; and

WHEREAS, the City does not want to open the door for radical or racist groups to ask for their flags to be flown; and

WHEREAS, this resolution does not in any way, shape or form infringe upon the fundamental right of an individual or business in the City of Hamtramck to engage free speech. Nor does this resolution limit speech by public employees provided that such employees engage in such speech in a protected time, manner and place.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hamtramck, Wayne County, Michigan, that the government of the City of Hamtramck does not allow any religious, ethnic, racial, political, or sexual orientation group flags to be flown on the City's public properties, and that only, the American flag, the flag of the State of Michigan, the Hamtramck Flag, the Prisoner of War flag and the nations' flags that represent the international character of our City shall be flown.

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Free Speech

N.Y. Legal Aid Attorneys' Claim Can Proceed Against Union, Alleging Retaliation Over Lawsuit Against Anti-Israel Union Resolution

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From Kopmar v. Ass'n of Legal Aid Attorneys, decided yesterday by Judge Paul Oetken (S.D.N.Y.) (though see also another post this morning rejecting a different part of the claim):

Plaintiffs, who are public interest lawyers in the greater New York City area, … Plaintiffs allege that their local chapter of the Association of Legal Aid Attorneys ("ALAA"), unlawfully retaliated against Plaintiffs for suing in New York state court to prevent the ALAA from promulgating a resolution that Plaintiffs viewed as antisemitic {and that] Plaintiffs characterize as "an 1,147-word diatribe against Israel"}…. Plaintiffs have stated claims under the LMRDA, at least as to the ALAA and members of its Amalgamated Council. The LMRDA protects Plaintiffs' right to freedom of expression, as well as their right to sue, largely irrespective of the content being expressed. Thus, … the ALAA and its officers were barred from disciplining Plaintiffs in retaliation for that lawsuit….

Section 101 of the LMRDA enumerates certain rights that all union members shall have, including the right to sue, and the right to freedom of expression. Section 609 makes it unlawful for a union to "fine, suspend, expel, or otherwise discipline" any member for exercising such rights ….

Here, whether viewed as "infringement" of Plaintiffs' Section 101 rights, or as "discipline" prohibited by Section 609, the ALAA may be liable if the charges against Plaintiffs were based on Plaintiffs' protected conduct. Members of the ALAA "filed charges and initiated expulsion proceedings against plaintiffs," and the ALAA defended the propriety of those charges against Plaintiffs' appeals until Plaintiffs finally prevailed before the PRB. That is sufficient to state at least an infringement claim, and likely a discipline claim as well, as to the union….

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Free Speech

N.Y. Legal Aid Attorneys Union's Anti-Israel Resolution Didn't Violate Antidiscrimination Law

"Reading antidiscrimination laws to prohibit the voicing of views critical of a foreign state, or support thereof, would raise serious doubts about their constitutionality, which the Court must avoid."

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From Kopmar v. Ass'n of Legal Aid Attorneys, decided Tuesday by Judge Paul Oetken (S.D.N.Y.) (though see also another post this morning allowing a different part of the claim to go forward):

Plaintiffs, who are public interest lawyers in the greater New York City area, … Plaintiffs allege that their local chapter of the Association of Legal Aid Attorneys ("ALAA"), unlawfully retaliated against Plaintiffs for suing in New York state court to prevent the ALAA from promulgating a resolution that Plaintiffs viewed as antisemitic {and that] Plaintiffs characterize as "an 1,147-word diatribe against Israel"}…. Plaintiffs have not stated retaliation claims under Title VII, the NYSHRL, or the NYCHRL, because their state-court lawsuit did not oppose any discrimination made unlawful by those statutes….

At no point did Plaintiffs argue that the Resolution had only been adopted because the ALAA discounted or repressed the views of its Jewish members, in fact almost exclusively using the word Jewish when referring to Plaintiffs' clients who might be offended by the Resolution, and to Jewish colleagues with whom Plaintiffs' professional reputations might suffer. Reviewing these allegations, the Court sees nothing alleging differential treatment of Plaintiffs because they are Jewish, or based on any other protected status….

Moreover, because the ALAA's Resolution was political speech on a matter of public concern, this case is "rife with First Amendment overtones." Cf. Gartenberg v. Cooper Union (S.D.N.Y. 2025) (cleaned up). While it is true that "invidious private discrimination … has never been accorded affirmative constitutional protections," Title VII, like the NYSHRL and NYCHRL, nonetheless must respect "the fundamental principle that governments have 'no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" When speech involves matters of "public concern"—as the current debates about Israel and Palestine surely do—it is "entitled to 'special protection' under the First Amendment" and generally "cannot be restricted simply because it is upsetting or arouses contempt." …

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Free Speech

Hate Speech and the European Court of Human Rights: Article 17, Memory Politics, and the ECtHR's Selective Silencing

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In this fourth guest entry on The Volokh Conspiracy, I examine a domain where the European Court of Human Rights (ECtHR) and the now defunct European Commission on Human Rights (EComHR) has shown a bold willingness to restrict speech, namely speech related to totalitarianism and genocide. But the ECtHR's boldness in some cases is matched by inconsistency in others, raising a fundamental concern, when the memory of atrocity becomes a matter of legal privilege, which histories are protected, and which are negotiable? Through a close reading of key decisions, this post highlights what I call the Court's "hierarchy of historical suffering."

Article 17 and the totalitarian legacy

Article 17 of the European Convention on Human Rights (ECHR) prohibits the use of Convention rights for the destruction of such rights. The Court has interpreted this provision, especially in cases involving Nazi ideology and Holocaust denial, as a near-automatic bar to Article 10 protection. In Kühnen v Germany (1988), the EComHR declared inadmissible the complaint of a neo-Nazi convicted for distributing propaganda. The Commission reasoned that by invoking Article 10 to spread ideas that were fundamentally incompatible with the values enshrined in the Convention, the applicant sought to undermine the very rights the Convention was designed to protect.

A similar logic was followed in B.H, M.W, H.P. and G.K. v Austria (1989). The applicants were convicted of engaging in activities motivated by National Socialist ideology, including the production and dissemination of pamphlets denying the Nazi genocide of six million Jews. As members and leaders of the Aktion Neue Rechte party, they advocated for the reintroduction of traditional Nazi songs and titles within the organisation. They were sentenced to conditional terms of imprisonment under the National Socialism Prohibition Act, receiving sentences of nine, three, eighteen and twelve months respectively. The EComHR found that, considering Austria's historical context and the underlying purpose of the Convention, the corresponding penalties imposed on the applicants were justified. It determined that Austria's measures were consistent with the limitations outlined in Article 10(2), interpreting all relevant provisions through the lens of Article 17. It noted that 'in view of the historical past forming the immediate background of the Convention itself' the restrictions to the applicants' activities were justified in the interest of national security, territorial integrity and for the prevention of crime.

This pattern shows a consistent application of Article 17 to anything related to National Socialism. While one might understand the historical sensitivity of Europe towards the genocidal atrocities of the Nazi regime, the result has been a categorical exclusion of speech directly or indirectly related to this regime that bypasses any balancing test under Article 10(2) of the ECHR on the right to freedom of expression. But this consistency breaks down quickly when it comes to other ideologies.

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Politics

Today in Supreme Court History: July 17, 1862

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7/17/1862:  Congress enacts the Confiscation Act, which empowers the government to seize the property of the rebels. The Supreme Court considered the constitutionality of that law in The Confiscation Cases (1873).

The Chase Court (1873)

President Trump To Nominate Jennifer Mascott To Third Circuit

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I am very pleased that President Trump has announced that he will nominate Professor Jennifer Mascott to the Third Circuit.

I have known Jenn for more than a decade, and have always found her to be a thoughtful scholar, a sharp lawyer, and a kind person. Perhaps most importantly, Jenn has proven herself to be the rare academic with strong scholarly bona fides and practical experience in public affairs. Jenn served in the Office of Legal Counsel during Trump's first term, and now serves in the White House Counsel's Office. That background will serve her well on the federal bench.

Congratulations to Jenn!

Immigration

A Compelling Defense of Immigration Parole Programs

My Cato Institute colleague David Bier presented it in testimony before a congressional committee.

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Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

 

In recent testimony before the House Subcommittees on Oversight, Investigations, and Accountability and Border Security and Enforcement, of the Committee on Homeland Security, my Cato Institute colleague David Bier presented a strong defense of the legality, justice, and effectiveness of immigration "parole programs," which allow broad categories of migrants fleeing war and oppression to enter the US legally. As he describes, there is a long history of such programs, most recently those created by President Biden for migrants from Ukraine fleeing Russian invasion (the Uniting for Ukraine program), and four Latin American nations beset by violence and socialist tyranny (the CHNV program).

David is one of the nation's leading immigration policy experts, and his testimony is must-reading for anyone interested in this issue. Here is a summary:

One legal way for immigrants to enter and participate in US society is parole, an immigration category first created by Congress in the Immigration and Nationality Act of 1952. Over the decades since then, millions of individuals have entered this country as parolees. Although parole is a temporary status, it allows immigrants to adjust to lawful permanent residence if they are eligible through another pathway, which many thousands of parolees have done. Many former parolees are now Americans and continue to contribute to their new home. It is an essential and important feature of America's legal immigration system.

Congress should:

  • protect current parolees from the president's mass deportation efforts;
  • reinstitute the parole processes suspended by the president; and
  • expand those processes to give more people a viable legal option to immigrate legally to the United States.

David explains the advantages of these programs, and ably addresses a variety of legal and policy objections.

I have defended the legality of CHNV in a Supreme Court amicus brief, and in an earlier amicus brief in Texas v. Department of Homeland Security, a lawsuit filed by twenty GOP-controlled states (that case was eventually dismissed by a conservative Trump-appointed federal judge for lack of standing). I also defended it in a 2023 article in The Hill, and criticized Trump's attempts to revoke it in a March 2025 post.

See also my various writings on the success of Uniting for Ukraine and what we can learn from it.

Free Speech

Dungeons & Defamation

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A new libel complaint in Clark v. Gygax (that would be Gary Gygax's son Luke Gygax), over a failed Kickstarter related to a planned new installment in a "tabletop game," "Castle Wolfmoon":

In the published post, Defendant made numerous knowingly false statements, including claims that Plaintiff was misappropriating Gary Gygax's name, that Plaintiff was lying to the public about the Castle Wolfmoon project's authorship, and that Defendant was not associated with the project.

This is of course just at the Complaint stage, so we know only the allegations. But it naturally piqued my interest (as a D&D player from back in the 1970s), and I thought it might likewise interest some readers.

Free Speech

Legislature May Choose What Viewpoints May or May Not Be Taught in Public Schools

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From today's decision in Walls v. Sanders, by Eighth Circuit Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender (which I think is generally correct):

[T]he government's own speech "is not restricted by the Free Speech Clause," so it is free to "choose[ ] what to say and what not to say." …

[Arkansas law, "Section 16,"] directs the Arkansas Secretary of Education to ensure the Arkansas Department of Education complies with Titles IV and VI of the 1964 Civil Rights Act by reviewing its communications and materials to see if they "promote teaching that would indoctrinate students with ideologies such as Critical Race Theory, otherwise known as 'CRT', that conflict with the principle of equal protection under the law or encourage students to discriminate" based on someone's protected characteristics. The Secretary must also "amend, annul, or alter" any "rules, policies, materials, or communications that are considered prohibited indoctrination" and "review and enhance the policies that prevent prohibited indoctrination." "Prohibited indoctrination" is defined as:

communication by a public school employee, public school representative, or guest speaker that compels a person to adopt, affirm, or profess an idea in violation of Title IV and Title VI of the Civil Rights Act of 1964, including that:

(1) People of one color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law are inherently superior or inferior to people of another color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law; or

(2) An individual should be discriminated against or receive adverse treatment solely or partly because of the individual's color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law.

Section 16 expressly excludes from its prohibition: (1) discussions about "[i]deas and the history of concepts described" in the "prohibited indoctrination" definition; and (2) discussions about "[p]ublic policy issues of the day and related ideas that individuals may find unwelcome, disagreeable, or offensive." A teacher who violates Section 16 by engaging in "prohibited indoctrination" "could be punished (up to losing his or her license) by the State Board of Education."

Students challenged Section 16 on Free Speech Clause, but the Eighth Circuit rejected that argument:

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Politics

Professor Barrett Was At Home In CASA

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After the Supreme Court decided Trump v. CASA, the Wall Street Journal editorial page took a victory lap. The editors, who have consistently defended Barrett, wrote "What an end-of-term rejoinder to the MAGA loudmouths who have been complaining that Justice Barrett is a pushover." On July 4, the WSJ published a letter to the editor as a follow-up:

A few months ago I ran into Justice Neil Gorsuch and lamented some of his colleagues' recent opinions. I criticized Justice Amy Coney Barrett and Justice Ketanji Brown Jackson in particular, both of whom had recently ruled against the Trump administration. Justice Gorsuch was characteristically gracious and spoke of how each was entitled to his own opinions.

I once was what your editorial "The Supreme Court Kills 'Universal' Injunctions" (June 28) refers to as a "MAGA loudmouth." After reading Justice Barrett's superb opinion in Trump v. CASA, I am a repentant MAGA loudmouth. She is a star—and I regret ever doubting it.

Joel Marks

Richmond, Va.

Did this encounter with Justice Gorsuch actually happen? I find this conversation so implausible. And I cannot find any record for a Joel Marks who is an attorney in Richmond. I searched the Virginia State Bar for a Joel Marks and found nothing. I did find a news story from Henrico County, Virginia, where a Joel Marks complained about a broken water main.

I provide this background to illustrate how poorly the criticism of Justice Barrett is understood. If Marks criticized Barrett for simply ruling against Trump, he has no idea what he is talking about. And if he thinks that Justice Barrett's decision in CASA suggests she will not rule against Trump in the future, then Marks really has no clue what he is talking about. Why then did the WSJ give Marks the time of day? Marks fit the template--those who doubted Justice Barrett now have no doubts.

My doubts remain. Indeed, they are reinforced. These doubts predated Trump's re-election, and were never premised on whether Barrett rules for Trump. Brackeen and Vidal are critical data points, combined with a string of emergency docket rulings, and a consistent record of denying cert on important cases. My concern is this: how much evidence does Barrett requires to reach an originalist ruling? Academics, as a whole, require fully-developed theories based on a volume of scholarly articles to reach a solid conclusion. Judges, generally, do not.

Trump v. CASA should not have been a particularly difficult case. There is fairly overwhelming evidence that universal injunctions are recent innovations, and that under Grupo Mexicano, such novelty is doubtful. Justices Thomas and Gorsuch reached this conclusion years ago with ease. I can imagine Justice Scalia disposing of this case pretty easily.

Yet, Justice Barrett's opinion reads like a law review article that summarizes the academic literature. On point after point, Barrett contrasts the views of Sam Bray, Will Baude, and Michael Morley on the one hand with the views of Mila Sohoni on the other. Indeed, Barrett refers to Amanda Frost as the "mainstream" view. For readers of this blog, these names may be familiar. But for most lawyers, this sort of scholarly debate is quite esoteric.

Footnote 7 illustrates the point.

7There is some dispute about whether Wirtz was the first universal injunction. Professor Mila Sohoni points to other possible 20th-century examples, including West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913). See M. Sohoni, 133 Harv. L. Rev., at 943; Brief for Professor Mila Sohoni as Amica Curiae 3; see also post, at 21 (opinion of SOTOMAYOR, J.). But see M. Morley, Disaggregating the History of Nationwide Injunctions: A Response to ProfessorSohoni, 72 Ala. L. Rev. 239, 252–256 (2020) (disputing these examples).

Justice Sotomayor in dissent argues that West Virginia v. Barnette and Pierce v. Society of Sisters were examples of universal injunction. Yet, in a footnote, Justice Barrett leads off by citing Professor Sohonoi, with a see also to Justice Sotomayor's dissent! Doesn't that seem backwards? Shouldn't the Justice come first? And does Justice Barrett discuss those landmark cases, and explain why Sotomayor is wrong? No, she includes a But see citation to Michael Morley who "disputes" those examples. I suppose it is fair enough to cite a law review article that parses some history or arcana. But wouldn't it fall to a Supreme Court majority on how best to interpret landmark Supreme Court cases? I would like to know why Barnette and Pierce did not approve of universal injunctions. This is the sort of footnote that is all too common in academia. When there is contrary authority, just cite someone else who disputes it. But this is not how the Supreme Court usually handles a central disagreement.

I am grateful that Bray, Baude, and Morley have made such a compelling case against universal injunctions. But what if they hadn't? What if the theoretical framework was not so airtight? What if some earlier injunctions could plausibly have been characterizes as universal? Or what if this case came to the Court several years ago when many of these arguments were still being developed? Would Barrett have had enough of a theory to go on? I'm not sure. In short, Justice Barrett was able to write the strong opinion she did because of the scholarly work done by others. What would she have done in a case like Lopez, or even Heller, where the scholarly literature was not so solid?

We will have to wait for the next case that presents a novel constitutional question, and where there is not a clear scholarly consensus. That will provide the real test of where Justice Barrett is--and not the uncertain views of a MAGA loudmouth.

I appreciate my friend Ilya Shapiro's defense of Justice Barrett in the Washington Post. I find myself in agreement with much of it. Still, there are caveats. Ilya writes that Barret "will join the conservative majority on the substance of issues that are squarely presented [like] overturning Roe v. Wade." But Barrett voted to deny cert in Dobbs, and the Court only took the case after (likely) Justice Kavanaugh granted cert. Ilya writes that Barrett gave "Trump the immunity he needed to escape the lawfare he faced in the run-up to the last election." Sort of. It isn't clear which parts of the majority opinion she actually joined, and she would have allowed a trial to consider a range of otherwise immune conduct. Ilya writes that Barrett has "join[ed] the conservative majority" to "preserv[e] religious freedom." Except she refused to join Justices Thomas, Alito, and Gorsuch on overruling Employment Division v. Smith, and has shown no interest in revisiting the interest since Fulton.  Ilya wrote that Barrett voted to "end[] racial preferences in college admissions." But she has denied review in cases where schools are flagrantly violating Students for Fair Admissions. Justice Barrett's Skrmetti concurrence read like the efforts of a law professor to make sense of Footnote Four--a Footnote that has no basis in the Constitution. I am still befuddled why Justice Thomas joined it, given that he agreed with Justice Scalia that Footnote Four should be jettisoned. And Ilya does acknowledge Barrett's opinion in Murthy, which erected an almost insurmountable standard for standing.

I could go on, but I won't. At a high level, Barrett's record look great. But if you drill down just a bit, things look differently. See the wall of receipts.

Still, OT 2024 was far better for Barrett than last term, or the term before. If we are grading terms, I would give her a solid B. I would give Justice Kavanaugh a B+. And Justice Gorsuch would get an A-. All three Trump appointees lose points for AARP. There is always hope for next term.

And with that, I have finished blogging about the decisions of the OT 2024 Term. Perhaps.

Politics

Congratulations To Kirill Muzyka, Chief Justice of FantasySCOTUS for OT 2024

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Kirill Muzyka

The October 2024 Term of FantasySCOTUS finally came to a close. On the whole, this term was a less predictable than some recent terms. In the aggregate, our crowd predicted 76.36% of the cases accurately, down from 83.05% of the cases accurately last term.

I am happy to announce that the Chief Justice is Kirill Muzyka. Players receive ten points for each correct prediction of a Justice's vote. We recorded 55 merits cases (DIGs do not count). A perfect score would have been 4,950 points. Kirill scored 4,840 points.

Here is the Top 10:

I usually ask the winner several questions to figure out their approach to predicting cases. Kirill's response was so thorough and insightful, that I reproduce it in its entirety:

My name is Kirill Muzyka. I'm from St. Petersburg, Russia, and I'm currently finishing my master's degree in Political Science at the London School of Economics.

My interest in American politics began quite some time ago, but I became especially focused on the U.S. Supreme Court in 2020, following the death of Justice Ginsburg. Her passing turned the Court into a major topic of public debate during the election, and that moment drew my attention. I eventually wrote a paper during my undergraduate studies on the Supreme Court's role in the polarization of American politics, and my interest in the Court has only grown since then.

What particularly drew me in was the contrast between the legal system in the U.S. and in my own country. The Supreme Court's dual nature — both legal and political — was fascinating to me. I was also struck by how the Justices manage to maintain respectful, even friendly, relationships despite deep ideological divisions. That kind of civility seemed rare and especially meaningful in today's political climate.

Since 2022, I've been listening to all oral arguments and making predictions about case outcomes for myself. In 2023, I began submitting predictions publicly through FantasySCOTUS. I've also read all of the Court's opinions from the past 2 terms. I really enjoy trying to understand the different perspectives each Justice brings, and I often try to reconstruct their arguments myself to determine which position I find most compelling. While I'm not a lawyer, I appreciate how the Justices generally write in a way that's accessible to an educated reader. In that sense, I'm especially fond of the opinions by Justices Kagan, Gorsuch, and Barrett — they're usually the clearest and most engaging to read.

When it comes to making predictions, I rely primarily on oral arguments. I think the post-COVID format — where each Justice has time to ask their questions — gives a clearer picture of how they're thinking about the case. If oral arguments don't reveal a clear outcome, I turn to other background factors, like the Justices' previous decisions or their overall judicial philosophy. Some Justices make prediction easier through their questioning. For instance, Justices Alito, Sotomayor, and Jackson often clearly signal their positions during arguments, which allows for solid predictions. Others — like Justices Chief Justice Roberts and Justices Thomas and Barrett,  — tend to be more reserved and balanced in their questioning, so background information becomes more important. Justices Kagan, Gorsuch, and Kavanaugh fall somewhere in between.

When I listen to arguments, I pay particular attention to "friendly" questions — the kinds that help, rather than challenge, an advocate's position. While Justices may press both sides on weak points, they rarely throw supportive "softball" questions to the side they ultimately oppose. I also find Oyez especially helpful — having both the audio and the transcript available in the same place makes it easier to fully understand the Justices' wording and tone.

Because I've been closely following the Court only in recent years, the only personnel change I've directly experienced has been Justice Jackson's appointment. Her style is notably clearer than Justice Breyer's often convoluted questioning, and she typically makes her views evident during argument. That has made case prediction somewhat easier — though not significantly so, given that she's part of the liberal minority and doesn't often determine the outcome.

In terms of case types, I find that technical statutory cases are generally harder to predict than high-profile constitutional ones. For example, this term, cases like Feliciano, Advocate Christ Medical, Bufkin, and Stanley were among the most difficult for me. That's, in my view, because in such cases, oral argument really can make a difference — the Justices often come in without firm views and genuinely explore the issues. In contrast, in more ideological cases, the Justices often already hold strong positions and are less swayed by the details. A good example of this contrast was the one argument I attended in person while visiting the U.S. as a tourist. — Mahmoud v. Taylor. After waiting in line for seven hours, I finally got in. It was a fascinating experience, but I doubt the oral arguments had much influence on the Justices, as they seemed to have already made up their minds based on ideological grounds.

I realize it may seem unusual for a complete foreigner with no formal legal training in the U.S. to be so interested in the Supreme Court. But coming from a country where the rule of law is almost absent, it's genuinely inspiring to watch a legal institution function with such intellectual rigor. While I understand and respect the perspective of those who view SCOTUS as primarily a political institution — "politicians in robes," as some say — I believe that's only part of the story. In reality, the Justices often demonstrate complexity and depth in their reasoning, and their opinions frequently reflect that nuance.

As someone from an authoritarian background, I'm deeply impressed by a system in which judges must publicly explain their decisions (putting aside the shadow docket), where legal reasoning matters, and where debate — even among ideological opponents — can shape outcomes. While my personal political leanings tend to align more with the liberal side of the Court, I've found that many conservative opinions are more thoughtful and well-argued than they are often given credit for. In my view, the American judicial system — though far from perfect — is an institution of extraordinary interest, and I look forward to continuing to follow it closely.

Well said. The seventeenth season of FantasySCOTUS will launch on the first Monday in October 2025.

Free Speech

Hate Speech and the European Court of Human Rights: The Low Threshold Hatred Paradigm—When "Offence" Is Enough to Restrict Speech

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In this third post in The Volokh Conspiracy guest series, I examine a critical issue in the European Court of Human Rights' (ECtHR) hate speech jurisprudence: its embrace of what I term the "low threshold hatred paradigm." Under this approach, expressions that offend, insult, ridicule, or defame minority groups are routinely held to fall outside the protection of Article 10 of the European Convention on Human Rights (ECHR). This, I argue, has diluted the robust speech protections previously associated with the ECtHR's celebrated precedent in Handyside v The United Kingdom (1976), a landmark case on the freedom of expression and its boundaries. As a result, the ECtHR's jurisprudence increasingly reflects not a balancing of rights, but an asymmetric favoring of state-defined "tolerance" over pluralistic expression. This approach risks insulating majoritarian or institutional viewpoints from critique under the guise of promoting social cohesion.

From allowing speech that may "shock, offend, disturb" to prohibiting offense, insult and ridicule

The ECtHR famously held in Handyside that Article 10 on the right to freedom of expression protects not only inoffensive speech, but also that which "offends, shocks or disturbs." In theory, this forms the backbone of European free speech protection. In practice, however, the ECtHR's hate speech rulings suggest a growing willingness to subordinate the Handyside principles to vague concepts such as the values and spirit of the Convention, particularly when the speech in question targets protected characteristics such as religion, ethnicity, or sexual orientation.

The paradigmatic shift can be traced most clearly to Féret v Belgium (2009), where a far-right member of parliament was criminally convicted for distributing anti-immigration leaflets during an election campaign. The ECtHR upheld the conviction, holding that statements such as "Stop the Islamization of Belgium," were likely to arouse feelings of "distrust, rejection or hatred" and thus justified interference. In a blistering dissent, Judge András Sajó warned that the majority had abandoned the foundational principle that speech must be protected especially "when we face ideas that we abhor or despise." He cautioned that "humans, including judges, are inclined to label positions with which they disagree as unacceptable and therefore beyond the realm of protected expression." According to Judge Sajó, the Féret majority treated the public as susceptible "nitwits," incapable of resisting emotional manipulation. This marked the emergence of a paternalistic framework: citizens need protection not just from direct harm, but from exposure to ideas the ECtHR deems offensive.

The "Féret doctrine" spreads: Le Pen, Zemmour and beyond

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Interesting Third Circuit Statutory / Procedural Immigration Case

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A short excerpt from today's long opinion by Judge Arianna Freeman, joined by Judge Cheryl Ann Krause, in Qatanani v. Attorney General:

The Supreme Court has long recognized that the admission and exclusion of noncitizens is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." But in that endeavor, both political branches have particular roles to play.

On the one hand, the Executive has authority to enforce the immigration laws passed by Congress and to exercise the discretion Congress delegates to it. On the other hand, "the formulation of [immigration] policies is entrusted exclusively to Congress." Indeed, there is "no conceivable subject" over which the "legislative power of Congress [is] more complete" than the admission and exclusion of noncitizens. In this balance, it is the Judiciary's exclusive province to resolve separation-of-powers questions. So where an administrative agency purports by regulation to evade procedures mandated by Congress in the Immigration and Nationality Act ("INA"), it is incumbent upon us to intervene. We do so here.

In 1996, Mohammad M. Qatanani was admitted to the United States on a work visa. In 1999, he applied under 8 U.S.C. § 1255(a) to adjust his immigration status to that of a Lawful Permanent Resident ("LPR"). After lengthy proceedings regarding Qatanani's application, an Immigration Judge ("IJ") twice made fact findings and credibility determinations in Qatanani's favor and granted his application to adjust to LPR status. The IJ issued those orders in 2008 and 2020, respectively.

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