The Volokh Conspiracy Archive

On the morning of Friday, May 23, Harvard filed a 72-page complaint and a 59-page motion for a temporary restraining order against the Department of Homeland Security and other officials. There were nearly thirty exhibits.

Shortly after the case was filed, the case was assigned to Judge Allison D. Burroughs. (She presided over the Harvard affirmative action trial). And almost immediately she granted an Ex Parte TRO.

Accordingly, Defendants, their agents, and anyone acting in concert or participation with Defendants are hereby enjoined from: A. Implementing, instituting, maintaining, or giving effect to the revocation of Plaintiff's SEVP certification; B. Giving any force or effect to the Department of Homeland Security's May 22, 2025 Revocation Notice.

ECF does not have time stamps, but the case could not have been on her docket for more than a few hours.

I have a serious question: did Judge Burroughs even read the 72-page complaint and 59-page motion for a TRO? What about all of the pages of exhibits? Did she have any time to reflect upon it or consider countervailing arguments?

I think of Judge Hendrix. The ACLU expected him to resolve a complex case in the span of hours. The judge, prudently, said that it was not possible to move that quickly. But the Supreme Court in A.A.R.P indicated that lower court judges should just reflexively enter ex parte TROs to preserve the status quo. This mode of judging is reckless, but the Supreme Court has given it a green light.

Published in today's Chronicle of Higher Education (registration required there, reprinted here with permission):

We write as generally right-of-center lawyers, scholars, and former government officials to affirm the central importance of academic freedom and to speak out against the Trump Administration's attempts to restrict the speech of Harvard and other universities. We see plenty of problems with the academy, including those related to antisemitism. But having the federal government control the viewpoints that are taught and tolerated at universities is not the solution. Under the First Amendment, such decisions are to be left to universities, not commandeered by government officials, even when the government is attaching conditions to grants and other subsidies. As Chief Justice William Rehnquist wrote in Rust v. Sullivan (1991):

The university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.

The demands the Administration has made of Harvard University are especially troubling. The requirement that Harvard "audit those programs and departments that most fuel antisemitic harassment or reflect ideological capture" expressly targets the expression of disfavored viewpoints. We do not share those viewpoints ourselves, but the First Amendment protects all viewpoints, whether they are anti-Israel or pro-Israel or anti-Palestinian or pro-Palestinian, or even when they supposedly "fuel" antisemitism, racism, sexism, or other such beliefs. Title VI hostile educational environmental rules may permissibly ban certain kinds of harassment based on race or national origin. But Title VI does not, and cannot, require that universities generally suppress the expression of offensive views or ideologies where they fall short of discriminatory harassment.

If the demand that Harvard "immediately shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives" were confined to programs that actually engage in illegal discrimination, it would likely be permissible (if the proper procedural requirements were followed). But "DEI … programs … and initiatives" seems to embrace programs that merely aim to teach "diversity, equity, and inclusion" viewpoints. Again, whether we support such programs or not, they are protected by the First Amendment against federal government attempts to suppress them because of their viewpoint.

The Fifth Circuit decision holding that libraries may remove books based on the books' viewpoint may lead some to ask: Hasn't the Court resolved this before, in Bd. of Ed. v. Pico (1982)?

[1.] It turns out that it hasn't. Four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:

The plurality … issue[s] a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point….

[This case] poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here.

Justice White concurred with Justice Brennan's opinion solely as to the propriety of remanding for a trial on whether the school board removed the books based on viewpoint or instead based on their being "in essence, vulgar" (which even the challengers "implicitly conceded" would be a permissible basis for removing the books, at least if they "were pervasively vulgar"). But he disagreed with Justice Brennan on the consequence of any such finding:

Justice Brennan's view was that, if there was a finding that the removals were based on viewpoint, that would mean the removals violated the First Amendment.
Justice White's view as that, if there was such a finding, "there will be time enough to address the First Amendment issues that may then be presented" (which echoes his conclusion that he saw "no necessity for" resolving those questions in his opinion).

So, as a Fifth Circuit en banc held in 1982, "the Supreme Court [in Pico] decided neither the extent nor, indeed, the existence vel non [i.e., existence or not], of First Amendment implications in a school book removal case.").

From today's majority en banc opinion by Judge Kyle Duncan in Little v. Llano County; I hope to blog more about the case, including the dissents, later today:

We consider whether someone may challenge a public library's removal of books as violating the Free Speech Clause.

Patrons of a county library in Texas sued the librarian and other officials, alleging they removed 17 books because of their treatment of racial and sexual themes. The district court ruled that defendants abridged plaintiffs' "right to receive information" under the Free Speech Clause and ordered the books returned to the shelves. On appeal, a divided panel of our court affirmed in part. We granted en banc rehearing.

We now reverse the preliminary injunction and render judgment dismissing the Free Speech claims. We do so for two separate reasons.

First, plaintiffs cannot invoke a right to receive information to challenge a library's removal of books. Yes, Supreme Court precedent sometimes protects one's right to receive someone else's speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.

That is a relief, because trying to apply it would be a nightmare. How would judges decide when removing a book is forbidden? No one in this case—not plaintiffs, nor the district court, nor the panel—can agree on a standard. May a library remove a book because it dislikes its ideas? Because it finds the book vulgar? Sexist? Inaccurate? Outdated? Poorly written? Heaven knows. The panel majority itself disagreed over whether half of the 17 books could be removed. For their part, plaintiffs took the baffling view that libraries cannot even remove books that espouse racism.

Some short excerpts from yesterday's long opinion in State v. Darraji (Wash. App.), written by Judge Tracy Staab and joined by Chief Judge Robert Lawrence-Berrey:

Prosecutors are prohibited from injecting improper bias into a trial by playing into religious or cultural prejudices. But not all references to religion or culture play into improper bias. When relevant and grounded in the evidence, it is not improper for a prosecutor to present testimony or argument related to religion and culture. Indeed, such evidence may be necessary to prove a fact at issue, such as motive. That is what happened in this case.

The State charged Yasir Darraji with second degree felony murder …. The State's evidence was that Yasir, an Iraqi immigrant, was upset that his former wife, Ibtihal Darraji, had changed her behavior and beliefs in ways that did not conform to Iraqi culture. Yasir himself framed his concerns about Ibtihal in terms of his Iraqi culture and Islamic beliefs.

After police found Ibtihal's murdered body inside a burning vehicle, the investigation focused on Yasir, largely due to evidence of his admitted disapproval of Ibtihal's behavior, which he described as culturally and religiously motivated. Given this specific factual circumstance, Yasir's religious beliefs and cultural affiliation were relevant to the State's case. It therefore was not improper for the State to present evidence and arguments pertaining to religion and culture to the jury….

In February 2020, the State charged Yasir with second degree murder against an intimate partner, committed during the course of a second degree assault by strangulation….

At trial, the State's theory was that Ibtihal's rejection of traditional Iraqi culture and Islamic beliefs, and her embrace of American culture and Christianity, was the source of conflict between the former spouses. Their fighting and insults escalated until Yasir strangled Ibtihal to death in her car, drove the vehicle to a different location, and lit the car on fire with Ibtihal's body inside.

5/23/1991: Rust v. Sullivan is decided.

I am happy to share this guest post from Seth Chandler, the Foundation Professor of Law at the University of Houston Law Center. I think the AI gets some things quite right and some things quite wrong. Then again, my own track record of predictions is not great, so perhaps GPT will soon beat me!

Trump v. CASA in an AI Crucible: An Experiment in Simulating Supreme Court Opinions

Last week, the Supreme Court heard arguments in Trump v. CASA, Inc., a case scrutinizing "universal injunctions" in the context of President Trump's controversial executive order on birthright citizenship. This prompted me to conduct a novel experiment: could a large language model, given only the argument transcript and its background knowledge, realistically simulate the forthcoming Supreme Court opinions? I tasked an AI with predicting each justice's vote, drafting abridged versions of the various opinions, and even considering the strategic interplay between justices—and the output was surprisingly coherent.

Here's the outcome as reported by a simulated Linda Greenhouse (leading American legal journalist).

In a sharply divided 6-3 decision, the Supreme Court significantly curtailed the power of federal courts to issue "universal" or "nationwide" injunctions, a ruling with immediate and far-reaching consequences for a controversial executive order seeking to limit birthright citizenship. While stopping short, for now, of deciding the ultimate constitutionality of President Trump's order, the majority opinion, authored by Justice Amy Coney Barrett, effectively allows the administration to implement its policy for many, even as it keeps protections in place for the specific plaintiffs involved in the lawsuits.

The ruling, handed down in Trump v. CASA, Inc., represents a major victory for the executive branch in its efforts to rein in what it has long decried as judicial overreach by individual district judges halting federal policies across the entire country. Justice Barrett, joined by Chief Justice John Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh, grounded the decision in Article III's "case-or-controversy" requirement, asserting that judicial relief must generally be confined to redressing the specific injuries of the plaintiffs before the court, not every person potentially affected by a policy.

The Court vacated the nationwide injunctions previously entered by three lower courts, which had barred enforcement of the executive order that aims to deny U.S. citizenship to children born in the U.S. if either parent is in the country unlawfully or on a temporary visa. The majority found that such broad relief was "legally and historically dubious" and an abuse of discretion, arguing that traditional equitable remedies authorized by the Judiciary Act of 1789 did not encompass injunctions benefiting non-parties in ordinary cases. However, the Court left a sliver of possibility for universal relief in "rare cases" where it is "necessary to fully redress a plaintiff's own injury," a standard it found was not met in this instance.

While the majority opinion recognized "serious questions about the executive order's constitutionality under the Fourteenth Amendment's Citizenship Clause," it deliberately sidestepped a definitive ruling on that "momentous question" at this preliminary stage. Instead, the focus remained narrowly on the scope of injunctive power. Justice Barrett emphasized that the decision was not a final adjudication of the merits and that the Court was prepared to address the underlying constitutional issue "expeditiously".

The decision effectively means the executive order can be implemented against newborns whose families are not part of the current lawsuits or residents of the plaintiff states (like New Jersey and Washington), for whom protections remain. This outcome, the majority acknowledged, means "some number of U.S.-born children will be denied recognition as citizens in the short term".

So the Department of Homeland Security announced today. A few tentative thoughts; if it turns out that I have erred in my understanding of the facts or of the program, I'll update them as necessary:

[1.] Unsurprisingly, student and exchange visitor visas are issued only to people who can show that they really are students and exchange visitors, and at recognized institutions that fulfill the visa program's goals. There are therefore procedures both for certifying and decertifying educational institutions as eligible for the Student and Exchange Visitor Program.

[2.] Equally unsurprisingly, institutions have to provide various information about students and the students' conduct. The DHS letter claims that:

On April 16, 2025, Secretary Noem demanded Harvard provide information about the criminality and misconduct of foreign students on its campus. Secretary Noem warned refusal to comply with this lawful order would result in SEVP termination….

Harvard University brazenly refused to provide the required information requested and ignored a follow up request from the Department's Office of General Council. Secretary Noem is following through on her promise to protect students and prohibit terrorist sympathizers from receiving benefits from the U.S. government.

I can't speak to what Harvard's alleged failures were, or whether they are sufficient under the statute to justify decertifying it.

[3.] At the same time, as with other broadly available benefits, the government generally can't deny them based on the viewpoints that Harvard expresses, declines to express, or tolerates and indirectly supports. And the letter suggests that the government's actions stem at least in part from such viewpoints. Consider, for instance, the list of "Facts about Harvard's toxic campus climate":

From today's majority opinion in Trump v. Wilcox (see also Josh's post below):

The Government has applied for a stay of orders from the District Court for the District of Columbia enjoining the President's removal of a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), respectively. The President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given.

The application for stay presented to The Chief Justice and by him referred to the Court is granted. Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau (2020). The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument. The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty. A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.

Finally, respondents Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve's Board of Governors or other members of the Federal Open Market Committee. We disagree. The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States. See Seila Law footnote 8.

And an excerpt from the considerably longer dissent by Justice Kagan, joined by Justices Sotomayo and Jackson:

For 90 years, Humphrey's Executor v. United States (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey's undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.

The two such agencies involved in this application are the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). But there are many others—among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good. And that congressional judgment, Humphrey's makes clear, creates no conflict with the Constitution. Rejecting a claim that the removal restriction enacted for the FTC interferes with "the executive power," the Humphrey's Court held that Congress has authority, in creating such "quasi-legislative or quasi-judicial" bodies, to "forbid their [members'] removal except for cause." Indeed, that conclusion "cannot well be doubted."

The briefing in Trump v. Wilcox concluded on April 16. The case has been pending for nearly a month. Who knows what sorts of negotiations took place to get to this faux-Solomonic ruling. Justice Kagan's eight-page dissent, however, did not take a month to write. She could have probably cranked this out in an afternoon.

In this dissent, Kagan tell us what she really thinks about President Trump. A few excerpts stand out.

First, she issues a not-so-subtle rebuke that Trump must "follow existing precedent."

It should go without saying that the President must likewise follow existing precedent, however strong he thinks the arguments against it—unless and until he convinces us to reject what we previously held. Yet here the President fired the NLRB and MSPB Commissioners in the teeth of Humphrey's, betting that this Court would acquiesce. And the majority today obliges—without so much as mentioning Humphrey's.

So much for departmentalism. Indeed, Trump's own Solicitor General acceded to the myth of judicial supremacy. Then again, Humphrey's Executor concerned the FTC. As far as I can recall, there is no Supreme Court precedent on point concerning the NLRB and MSPB. Indeed, there is an argument that the FTC as it existed in the 1930s is quite different than the FTC of today. So Trump didn't violate any existing Supreme Court precedent. And really, the only way for the President to challenge a precedent is to take some action inconsistent with the precedent.

Second, Kagan asks "Why is this President different from all other Presidents?"

And as to the President's interest in firing Wilcox and Harris, the majority gives it more weight than it has borne in almost a century. Between Humphrey's and now, 14 different Presidents have lived with Congress's restrictions on firing members of independent agencies. No doubt many would have preferred it otherwise.

Kagan would probably think that Trump is the wicked son.

Third, Kagan engages in some word play. She says the Court's decision to uphold the removal makes Trump's administration more "subservient."

But can it really be said, after all this time, that the President has a crying need to discharge independent agency members right away—before this Court (surely next Term) decides the fate of Humphrey's on the merits? The impatience to get on with things— to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go.

But the import here is greater. Kagan is calling out Trump's administration as a bunch of toadies and lackeys. Indeed, I've written that Roberts cannot stomach overruling Humphrey's Executor if it would mean giving Trump more power.

We will have to just sit and wait until June 2026 to figure out the fate of Humphrey's Executor. Yawn.

On the plus-side, my workload for the next few weeks got a tad lighter. I was planing to edit St. Isidore's and Wilcox for our casebook supplement, and maybe even for inclusion in the Fifth Edition of our casebook (forthcoming in November 2025). Now, neither case warrants inclusion. I've checked my records, and usually by Memorial Day, there is at least one case already decided that warrants placement in the supplement. But as of today, I have nothing. This term will remain unsatisfying, at least till the end.

At One First Street, life comes at you fast. On May 22 at 10:00 a.m., the Court 4-4'd in St. Isidore v. Drummond, letting the Oklahoma Supreme Court's decision stand. I wrote:

Before the case was even argued, I made a crude prediction to several reporters that the Chief would take the easy-out, and just vote to 4-4 affirm. There would be no opinion, and the Court could focus on more important issues. The children of Oklahoma really didn't matter.

What was that "more important issue"? Trump v. Wilcox. After 5:00 p.m. on May 22, after the markets closed, right before a holiday weekend, the Court issued a two-page per curiam opinion in the removal power case. (I'm sure Roberts was humming the Jimmy Buffet song when planning the release time.) The Court, by an (ostensible) 6-3 vote, stayed the lower court rulings that reinstated a member of the NLRB and a member of the MSPB. The actual legal analysis can be compressed in a single sentence:

The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.

Nowhere does the Court mention Humphrey's Executor. It's like Voldemort! I'm not at all convinced Roberts actually overrules Humphrey's Executor when push comes to shove. But he at least signals Wilcox will lose.

Then, the Court includes a bizarre throwaway line about the Federal Reserve, which is in no way even relevant to the parties in this case.

The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.

Why is this argument even in here? Roberts is doing damage control. I agree with Justice Kagan's dissent:

Because one way of making new law on the emergency docket (the deprecation of Humphrey's) turns out to require yet another (the creation of a bespoke Federal Reserve exception). If the idea is to reassure the markets, a simpler—and more judicial—approach would have been to deny the President's application for a stay on the continued authority of Humphrey's.

John Roberts is not a judge. He is a mediator. He issues a conservative ruling against the MSPB and the NLRB (which frankly no one cares about) but issues a liberal advisory opinion in favor of the Fed (which everyone cares about).

At some point, the five conservatives should stop joining these missives. Just rule on the case as you think best, and let Roberts spin his wheels. These sorts of rulings do nothing to instill confidence in the Court as an actual legal body. No one actually believes that Roberts is behaving as a judge when he issues rulings like this. And I say this as someone who thinks Humphrey's Executor should have been overruled decades ago.

Now, the issue will linger in the D.C. courts for some time, and come to the Supreme Court in a cert petition next term.

My essay about the Chief Justice keeps writing itself.

From Mediaite (Zachary Leeman) yesterday:

"Original Sin" co-author Alex Thompson revealed a Democratic insider told him they were "amazed" at how "easily" the media swallowed "spin" about former President Joe Biden's health….

It goes on to quote Thompson:

The media fell short, and the biggest example of that is, if the media was on top of this, then Biden's debate performance should not have been such a shock to so many people ….

I had one conversation with someone, this was after the election, while we were reporting this book, and this person said, "Listen, yes, we deserve blame for X, Y, Z. We were hiding him. We were." But this person also sort of got in my face, and they said, "Listen, the media deserves some blame, too." Like we were sort of amazed at some of the stuff we were able to spin and get on….

They're just like, "You guys should not have believed us so easily." And I thought that was like a really interesting, but I also think that's true. I think the media, … in a lot of ways, was not skeptical enough and did not remember the less[on] that, they do it to different degrees, but every White House lies.

This reminds me of the essay I prepared for the Free Speech in Crisis & the Limits of the First Amendment in March; I was invited to participate on the Media Environment panel, for which the description was:

It is widely believed that a profoundly broken media system is responsible for bringing the current administration into power, and for critics, the political crisis it has unleashed. Is this correct? And if so, what is to be done about it? How can public opinion be harnessed to serve constitutional purposes in the new media landscape? How can and should the media system be reformed? And what can free speech law do about any of this?

Just two weeks ago, my Free Speech Unmuted co-host Prof. Jane Bambauer (Florida) and I discussed Garcia v. Character Technologies. (Besides being a leading First Amendment scholar, Jane also teaches and writes about tort law.) I'm therefore especially delighted to pass along some thoughts from her on yesterday's decision in the case:

AI, Free Speech, and Duty [by Jane Bambauer]

The case against Character.AI, based on the suicide of a teenager who had become obsessed with his Daenerys Targaryen chatbot, produced an important opinion yesterday. Judge Conway of the U.S. District Court in Orlando declined to dismiss almost all of the plaintiffs' claims, and also refused "at this stage in the litigation" to treat AI or chatbot output as speech under the First Amendment. I think the opinion has problems.

Eugene has already laid out some of the reasons that the court's First Amendment analysis is flawed. (E.g., could the Florida legislature really pass a law banning ChatGPT from producing content critical of Governor DeSantis? Of course not.) I want to pile on a little bit—I can't help myself—and then connect the free speech issues to the analysis of tort duty.

Is Chatbot Output "Speech"?

The defendants (Google and Character AI) argued that chatbot output is protected speech, much like computer-generated characters in video games. The defendants made analogies to other expressive technologies that were once new as well. But the court found that these arguments "do not meaningfully advance their analogies" because the defendants didn't explain how chatbot output is expressive.

In the court's opinion, with an assist from Justice Barrett, chatbot output is not expressive because it is designed to give listeners the expression that they are looking for rather than choosing for them:

Our peer-reviewed Journal of Free Speech Law, which is now four years old, has published over 100 articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Christopher Yoo (Penn), and many others—both prominent figures in the field and emerging young scholars, including ones who didn't have a tenure-track academic appointment. (This list doesn't include our reprinting others' symposia, which have also included many other top scholars, such as Robert Post, Mark Tushnet, Geoffrey Stone, Lee Bollinger, Jeremy Waldron, Danielle Citron, Genevieve Lakier, and more.) The articles have been cited so far in 11 court cases, over 325 articles, and at least 100 briefs. And note that all the articles have only had four years or less to attract these citations.

I expect that many authors are planning to submit articles on free speech to the usual law reviews when the submission cycle restarts in August. But if you submit exclusively to us before that, we will give you an answer within 14 days; and then if you'd like to have it published quickly, we can publish it in within several weeks, if it's sufficiently clean and cite-checked by your research assistant. This means your article can be published by us, if it's accepted, almost a year (or more) before it would be published by the law journals.

Of course, also please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.

All submissions must be exclusive to us, but, again, you'll have an answer within 14 days, so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:

A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.

This episode features a conversation with Daniel Hemel on President Donald Trump's threat to rescind the tax exempt status of Harvard University. Hemel is a professor of law at New York University Law School, with an expertise in taxation, nonprofit organizations, and constitutional law.

On the podcast we discuss how private universities fit into the federal tax code, the legalities of altering the tax exempt status of a university, the implications for the future of a university subjected to such an action, the risks to other nonprofits beyond higher education if the administration were to take such a step, and the intricacies of the controversy over Bob Jones University and the legacy of Bob Jones University v. United States.

Shortly after the Court granted cert in St. Isidore of Seville v. Drummond, I wrote two posts about Justice Barrett's recusal. Before the case was even argued, I made a crude prediction to several reporters that the Chief would take the easy-out, and just vote to 4-4 affirm. There would be no opinion, and the Court could focus on more important issues. The children of Oklahoma really didn't matter.

And so it has come to pass. The Court affirmed the Oklahoma Supreme Court with a 4-4 decision. I am reasonably confident that Justice Kavanaugh voted with the conservatives. And Chief Justice Roberts was with his progressive colleagues. Roberts cast his vote in Carson v. Maikin, but I doubt he would go much further.

Regrettably, we still do not know why Justice Barrett recused. Was it because Notre Dame University was involved? The Notre Dame religious liberty clinic? Or was this because of Nicole Garnett's involvement? If this concerns her friendship with Garnett, the recusal can directly affect some of the allegations against Justice Thomas. Who knows.

I am not aware that any other state has a similar school in the pipeline, so this issue will remain unresolved for some to come.

Update: A colleague flags that Barrett did not recuse in another case brought by the Notre Dame Religious Liberty Clinic. It doesn't seem that Garnett had any involvement with this case. As a general matter, a recusal is triggered at all stages--cert and merits. So if she did not recuse here, the clinic, standing by itself is not the cause of the recusal. Still, it is unclear to me whether Barrett's recusal in St. Isidore was due to the Justice's friendship with Nicole Garnett, or Barrett's connection with clinic through Garnett. Ultimately, I am not certain the cause of Barrett's recusal, but the clinic, standing apart from Garnett should not trigger a recusal.

5/22/1807: Aaron Burr is indicted on charges of treason. Chief Justice John Marshall would preside over Burr's trial.

A lawyer flagged a new standing order from the District of Maryland. It provides, in part:

ORDERED by the United States District Court for the District of Maryland that upon the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on behalf of an alien detainee, the Government/Respondents, including all those acting for them or on their behalf, are ENJOINED and RESTRAINED from removing Petitioners in such cases from the continental United States or altering their legal status, provided that Petitioner's full name and A# have been provided to the Court, either in the Petition or in a separate sealed filing.

Am I reading this right? If a lawyer files a conforming habeas petition, an injunction is automatically entered blocking the removal of the alien. The merits are irrelevant. And this injunction applies to the government, writ large. Has anyone ever seen an order like this before?

This order is pretty clearly designed to thwart the Trump Administration's immigration policies. I can't imagine this order would remain in effect if a different President is in the White House.

The Volokh Conspiracy

Judge Burroughs Grants TRO In Favor Of Harvard Within Hours Of Filing

"Statement on Academic Freedom and Harvard by Right-of-Center Scholars, Lawyers, and Former Government Officials"

The Supreme Court Hasn't Resolved Whether Libraries May Remove Books Based on Viewpoint

Fifth Circuit: Public Libraries May Select or Remove Books Based on Viewpoint

Washington Court Holds (2-1) Prosecutors Didn't Improperly "Play[] into Religious or Cultural Prejudices" in Trial of Iraqi Immigrant Husband for Murdering Wife

Today in Supreme Court History: May 23, 1991

What Does AI Think Will Happen In The Birthright Citizenship Cases?

"Harvard University Loses Student and Exchange Visitor Program Certification for Pro-Terrorist Conduct"

Supreme Court Stays Reinstatement of Fired NLRB and MSPB Members

Justice Kagan Tells Us What She Really Thinks About President Trump

Roberts Swings To The Left In St. Isidore, To The Right In Wilcox

"Listen, the Media Deserves Some Blame, Too": "You Guys Should Not Have Believed Us So Easily"

"AI, Free Speech, and Duty"

Submit Your Articles to the Journal of Free Speech Law, Before You Circulate Them to the Law Reviews

Academic Freedom Podcast on Rescinding Harvard's Tax Exempt Status

As I Expected, SCOTUS 4-4's St. Isidore's Case With Barrett Recused (Updated)

Today in Supreme Court History: May 22, 1807

District of Maryland Standing Order: Any Filed Habeas Petition Will Automatically Block Removal Of Alien

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