The Volokh Conspiracy

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

Recently, of course, the Trump Administration has been searching for ways to reduce federal government spending, searching for wasteful or duplicative programs. As part of that comprehensive effort, the Justice Department recently announced that some of its programs will be cut, including some programs involving services for crime victims. Catholic University law professor Mary Leary has recently published this op-ed calling attention to the cuts and urging the Department to exercise caution in cutting these programs. While I don't know the details as well as Professor Leary does, I want to join her in generally urging the Department to maintain as much funding as possible for crime victim support, particularly for legal services to victims in criminal cases.

I've seen news reports that Attorney General Bondi is restoring some funding that was initially slated to be cut. I hope that some of the other funding can be restored as well. And, more important, going forward it is critical that funding for crime victims' services continues to be one of the Justice Department's priorities.

As one example of the cuts, the National Crime Victim Law Institute (NCVLI) had a substantial part of its funding slashed. In 2004, funding for NCVLI was linked to the passage of the Crime Victims' Rights Act (CVRA). Since then, NCVLI has helped establish legal clinics in a number of states across the country, including in my home state of Utah. These clinics assist crime victims to protect their rights in criminal proceedings. I discuss some of these long-standing and important efforts by the legal clinics in my article about the history of the Crime Victims' Rights Movement (at pp. 93-94).

One of the often-overlooked benefits of supporting crime victims in protecting their rights in criminal cases is that it allows an independent voice to be presented. Victim service providers help to amplify that voice, by supporting efforts of crime victims to present arguments that might otherwise be overlooked—creating a valuable and independent perspective on how criminal cases should proceed. An example comes from an amicus brief, which I helped NCVLI, the National Center for Victims of Crime (NCVC), and other crime victims' rights organizations to file. This brief supported Dr. Carter Page's motion to be recognized as a "crime victim" during the sentencing of Kevin Clinesmith. Clinesmith was an FBI agent who made false and material misstatements in a high-profile case. Specifically, Clinesmith provided false statements during the Crossfire Hurricane investigation into whether individuals associated with the Donald J. Trump for President Campaign were coordinating activities with the Russian Government. Clinesmith lied in an application to the Foreign Intelligence Surveillance Court (FISC) to renew a FISA warrant to surveil Dr. Page's private communications. Clinesmith's false statements resulted in a warrant application that the FISC approved without having before it all relevant information.

My amicus brief for crime victims' rights organizations explained why Dr. Page was directly and proximately harmed by Clinesmith's interference with the fair judicial consideration to which he was entitled. This harm made Dr. Page a "crime victim" with protected CVRA rights. Accordingly, the organizations argued (without addressing, one way or the other, the merits or demerits of the Crossfire Hurricane investigation) Page was entitled to speak at Clinesmith's sentencing. The brief explained:

This criminal case has been widely discussed across the country, with strongly held and differing views resolutely expressed. This brief, however, is entirely agnostic on any such views and any resulting political ramifications. Instead, this brief takes a more limited—but extremely important—foundational procedural position. Amici believe that in enacting the CVRA, Congress required this Court to hear from any victim who was harmed by the Defendant's crime, with the definition of "victim" being expansive. And it is precisely because differing views exist about this case that hearing from the victim here is extremely important. If this Court grants Dr. Page the opportunity to provide a victim impact statement before it imposes sentence, then the public will have greater confidence in the case's outcome—which is one of the reasons why Congress included victims in the criminal justice process by enacting the CVRA.

The issue was squarely presented to the district judge handling the matter, Judge James Boasberg, who surprisingly ducked the issue. Judge Boasberg ruled that he would allow Dr. Page to speak at sentencing for ten minutes as a matter of discretion, rendering it unnecessary for a formal determination of whether Dr. Page was a "crime victim." But the important point is that, through crime victim advocacy, an additional perspective was heard on the how false warrant applications can have far reaching harms—highlighting an issue that otherwise might not have received judicial attention.

NCVLI also joined with Brad Edwards and me, when we advocated for victims of Jeffrey Epstein's sex trafficking organization. A Florida district court rejected the victims' efforts to throw out a non-prosecution agreement blocking prosecution of Epstein's co-conspirators. We sought review in the Eleventh Circuit. And NCVLI filed an excellent amicus brief, arguing that Epstein's victims should be able to press the case for prosecuting Epstein's co-conspirators in Florida federal court. (Ultimately, Epstein's lead co-conspirator, Ghislaine Maxwell, was successfully prosecuted in the Southern District of New York.)

By highlighting NCVLI and NCVC, with whom I have worked frequently, I don't mean to overlook many other crime victim service providers, including other legal service providers. These organizations form a vital part of contemporary criminal justice efforts to ensure that crime victims' voices are heard. As Professor Leary points out in her op-ed, the modern crime victims' rights movement traces its roots back to President Reagan's 1982 Task Force on Victims of Crime. The Task Force found that the nation's criminal justice system was "appallingly out of balance" for victims, with a "neglect of crime victims" that was "a national disgrace." The Task Force identified the need to have Congress provide federal funding "to assist in the operation of federal, state, local and non-profit victim/witness assistance agencies that make comprehensive assistance available to all victims of crime." That recommendation remains just as valuable today.

I began this post with a question: Should funding crime victims' rights be a DOJ priority? Ultimately, each Administration and each Attorney General will have to answer that question for themselves. Fortunately, for this Administration, it appears that the answer is straightforward. President Trump has promised his Administration's "unending support to every victim of crime." As the process of reviewing crime victims' funding moves forward, I hope that organizations providing legal services to victims in criminal cases—such as NCVLI, NCVC, and others—will receive the support that they deserve.

Over the years, I have written at length about judicial courage. And I'm not alone. Both President Donald Trump and Vice President Kamala Harris have cited this virtue. Now, Vice President J.D. Vance has done the same.

Hugh Hewitt interviewed Vance about what he would look for in a Supreme Court nominee. Vance replies that a Justice should have demonstrated "real courage" by standing up to the crowd. Critically, they must identify a time in which they faced that sort of pressure, and did not back down. It is not enough to talk the talk; you have to walk the walk.

HH: "I know Vice President Pence, when he was serving in your office, he had the last interview with every Supreme Court nominee potential. And if you are in that position down the road, what do you want to know about a Supreme Court nominee?

[Vance:] Oh, that's a good question. I've never been asked that question, Hugh. You always ask the best questions, man. But, you know, I guess what I would try to understand is how persuadable they are by the mob. Because what we've learned from our Supreme Court over the last 10, 15 years, but especially over the last few years, is that the mob really comes after these guys for high-profile decisions. And obviously, you don't want to prejudge an outcome, but I just want a person with real courage. I think this is what makes Alito and Thomas so special, is that they're just willing to stand in defiance of a lot of incredible media and social pressure. I mean, if you're in the Supreme Court, you are literally inside the beltway. You consume beltway media. That's who you see day to day. You have to have a particular special character. And so I guess I'd ask some questions that try to tease that out a little bit. I'd ask them, you know, when have they ever stood up to the crowd? When have they ever, you know, had people attack them for their views? And if they've never, ever had to stand up to public pressure, they're probably not the right person for the Supreme Court."

Vice President Vance is 100% correct. It is telling that Vance did not identify any of the Trump appointees as demonstrating judicial courage.

I would also point to Judge Ho's recent interview in the Wall Street Journal. Ho explains that judges cannot fear being booed:

Without naming names, Judge Ho complains about "fair-weather originalists" on the bench: "If you're only an originalist when it leads to the results you want to reach, then you're not really doing originalism at all." Even when judges want to follow the law, they may face temptations to do otherwise. "It's been said that judges are like umpires and referees," Judge Ho says, alluding to Chief Justice John Roberts's 2005 confirmation hearing, in which he promised to "remember that it's my job to call balls and strikes."

Judge Ho doesn't find that metaphor comforting. He says actual umpires tend to be biased in favor of the home team. He refers me to a 2011 book, "Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won." The authors note that home teams have an edge in every major sport and argue, as Judge Ho summarizes it, "that the leading cause of home-field advantage is the referees, and it's because the referees are worried about the booing of the crowd." I read the chapter and found the evidence credible. The home crowd in Judge Ho's analogy isn't the spectators in the courtroom but "cultural elites," who cheer as well as boo.

Ho connects this theme with the Chief Justice's ongoing whirlwind tour to save the Republic. A group of elite New York lawyers give Roberts a round of applause, so he obviously thinks he is on the right side of the issue. But in reality, the crowd is just working the refs.

Five days after I interviewed Judge Ho, Chief Justice Roberts spoke at an anniversary celebration for the U.S. District Court in Buffalo, N.Y. He said the judiciary's role is "to obviously decide cases but in the course of that to check the excesses of Congress or the executive, and that does require a degree of independence."

"At that," the New York Times reported, "the crowd applauded."

"In sports there's a term for this, right?" Judge Ho says. "It's known as 'working the refs.' And this is a phenomenon that I've seen affect judges throughout my career."

I am currently working on essay about the Chief's role in causing our current morass. Stay tuned.

From Senior Judge Christopher Boyko's decision Monday in Conrad v. Madison Local School Dist. Bd. of Ed.:

According to his Verified Complaint, C.C. wore the shirt on November 25, 2024, underneath a flannel shirt. Plaintiff alleges:

The phrase "Let's Go Brandon" communicates criticism of certain media outlets for a well-documented pattern of misreporting facts in a politically biased fashion. In this particular incident, a large crowd at a NASCAR race was heard shouting a profane disdain for then-President Joseph R. Biden, chanting "F*** Joe Biden." The reporter on the scene reported the chant as "Let's go Brandon," as if the chant was actually praise for the winner of the race, whose first name was Brandon. From that point forward, that moment was perceived as a microcosm of a larger problem, and "Lets Go Brandon" became a popular expression of certain people's opinion toward the media and American politics.

Plaintiff alleges C.C. wore the shirt the previous school year without complaint. However, on this particular day, Defendant Krista Ferini, a teacher and registered democrat, told C.C. to "button that up. I know what that means." C.C. complied and buttoned up his flannel shirt. Later that day, while in a classroom that lacked air conditioning, C.C. took off his flannel shirt. When Ferini saw C.C. without the flannel covering up his Let's Go Brandon t-shirt she wrote him up. Due to the write-up C.C. reported to Defendant Andrew Keeple, Principal of C.C.'s school. Keeple instructed C.C. to wear the flannel the rest of the day and to never wear the shirt to school again.

Free Speech

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5/14/1973: Frontiero v. Richardson decided.

Earlier today, a three-judge panel of the US Court of International Trade heard oral arguments in the case challenging Donald Trump's massive "Liberation Day" tariffs brought by the Liberty Justice Center and myself on behalf five US businesses harmed by the tariffs. The Administration claims that the President's imposition of 10% or higher tariffs on virtually every nation in the world is authorized by the International Emergency Economic Powers Act of 1977 even though IEEPA doesn't mention tariffs at all, and its invocation requires the existence of a "national emergency" and an "unusual and extraordinary threat" to the United States.

Audio of the oral argument is available at the Court of International Trade website. It's generally difficult to predict the outcome of a case based on oral argument. Judges will sometimes rule on issues that get little or no play in argument. Still, I was encouraged by the fact that all three judges seemed skeptical of the government's claim that IEEPA gives the president virtually unlimited power to impose tariffs. And, as we have argued from the beginning, the government's position amounts to saying that the president can impose tariffs of any amount, on any nation, at any time, for as long as he wants.

The issue of limits came up again and again during the argument. Judge Restani noted to the government's lawyer that "[t]here's no limit, is what you're saying — there's no limit." She also suggested that the government's position would enable the president to declare that a shortage of peanut butter qualifies as a "national emergency" and an "unusual and extraordinary threat" justifying tariffs. She did not strike me as happy with that state of affairs.

Judge Katzmann suggested that the government's position amounted to "deleting" the role of the judiciary from reviewing the legality of tariffs. Judge Reif - whom some observers believed was the judge least likely to support our case - seemed troubled by the fact that the government's ultra-broad interpretation of IEEPA would allow the president to bypass a number of other statutes that authorize the executive to impose tariffs in narrower circumstances, but only after following mandated procedural rules. If IEEPA grants the kind of sweeping authority Trump claims, there would be little point to these other laws.

In fairness, the judges also had some tough questions for LJC Senior Counsel Jeffrey Schwab, who argued the case for us. In particular, they focused on the issue of whether we have a standard for judging what qualifies as an "emergency" or an "unusual and extraordinary threat."

I think, as Jeff noted in oral argument, the longstanding and entirely normal trade deficits that the administration cites in this case, are so obviously neither an emergency nor unusual and extraordinary that the court could simply say they don't meet any plausible standards. As Jeff put it, an umpire doesn't have to precisely define the strike zone to call a ball on a pitch that's so far from the plate that it goes behind the batter and can be considered a wild pitch.

But if the court wants to articulate a standard, they should, as Jeff later indicated, conclude that, as the House of Representatives report leading to IEEPA put it, "emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems." Trade deficits are pretty obviously neither rare nor brief, and they are clearly "normal ongoing problems." Similarly, as even the government's counsel suggested, an "unusual and extraordinary threat" must be something that is "not usual." Trade deficits are in fact entirely "usual."

I was also struck by the fact that none of the judges asked about remedies or the scope o the injunction that should be imposed against the tariffs if we prevail, including whether the injunction should be nationwide or limited to our clients.

Overall, I am guardedly optimistic, though it's always possible that the judges' statements in oral argument don't fully indicate their thinking. We tentatively expect a ruling from the court within the next few weeks.

I have gone over the legal issues in the case in greater detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War." See also my post on why these sweeping tariffs threaten the rule of law.

There are also several other cases challenging the tariffs, including one filed by twelve states led by Oregon, which will be heard by the same CIT panel on May 21. In addition, there is the aptly named Princess Awesome case filed by the Pacific Legal Foundation on behalf of ten businesses (also before the CIT), a case filed by the state of California in federal district court, one by the New Civil Liberties Alliance (challenging tariffs against China on behalf of an importer, filed in district court), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada, filed in district court; that court ruled the case should be transferred to CIT, and the plaintiffs have appealed that ruling).

A short excerpt from the long opinion today in HM Florida-ORL, LLC v. Governor, decided by Judge Robin Rosenbaum, joined by Judge Nancy Abudu:

Justice Potter Stewart famously offered a non-definition of obscenity: "I know it when I see it." Jacobellis v. Ohio (Stewart, J., concurring). Many know Justice Stewart's quip. But it's not, in fact, the law.

The Constitution demands specificity when the state restricts speech. Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech "obscene." An "I know it when I see it" test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead.

Yet Florida's Senate Bill 1438 (the "Act") takes an "I know it when I see it" approach to regulating expression. The Act prohibits children's admission to "live performances" that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most. And Florida's history of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns. We therefore hold that the Act is likely unconstitutional on its face and affirm the lower court's injunction against its enforcement….

Secretary Griffin argues that the Act dutifully observes [the] requirements [in Miller v. California (1973), the leading precedent on obscenity] so it reaches only unprotected speech. The Act, she argues, "specifically defines" the activities that constitute an adult live performance: anything "depict[ing] or simulat[ing] nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in [Section] 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts."

She continues, asserting the Act then bars children's admittance to performances that feature such representations and meet all three prongs of the Miller test: appeal to the prurient interest, patent offensiveness, and the lack of serious value. And, Griffin says, the statute adjusts the standards for the second and third prongs of the Miller test to be "for the age of the child present." That is, prohibited performances must lack serious "value for the age of the child present" and be "patently offensive … with respect to what is suitable material or conduct for the age of the child present." …

But the court concluded that the term "lewd conduct" goes beyond the boundaries of Miller, in part because it's not well-defined:

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Free Speech

Defamation Lawsuit Against Def Con Cybersecurity Conference Dismissed

"[I]t is irrelevant that Defendant Def Con did not know at the time the Transparency Reports were published whether Hadnagy had or had not engaged in sexual misconduct. Rather, if the sexual misconduct implications were in fact true at the time the Transparency Reports were published, Def Con is shielded by the truth defense."

Eugene Volokh | 5.13.2025 5:02 PM

A short excerpt from today's long decision by Magistrate Judge Brian Tsuchida in Hadnagy v. Moss (W.D. Wash.):

This case involves a defamation claim brought by Plaintiff, a past participant of the Def Con annual cybersecurity and hacking conference, against Defendant, the Def Con conference organizer. Plaintiff Hadnagy hosted a social-engineering village called SEVillage at the Def Con conference. Def Con's Code of Conduct prohibits "harassment," which includes "deliberate intimidation and targeting individuals in a manner that makes them feel uncomfortable, unwelcome, or afraid" and Def Con reserves the right to expel participants for harassment. Def Con permanently bans "repeat offenders and those who commit more egregious offenses."

Based on a report of retaliation by Hadnagy made by a former employee and a Zoom call in which others complained of Hadnagy's conduct, Def Con banned Hadnagy from its conferences and on February 9, 2022, issued the following "Transparency Statement":

We received multiple CoC [Code of Conduct] violation reports about a DEF CON village leader, Chris Hadnagy of the SE Village. After conversations with the reporting parties and Chris, we are confident that the severity of the transgressions merits a ban from Def Con.

Hadnagy alleges in his lawsuit that this statement led to wide-spread speculation the transgressions were sexual in nature.

Free Speech Libel

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I should note up front that both of the firms involved (the massive 1700-lawyer national one and the smaller 45-lawyer predominantly California one) have, to my knowledge, excellent reputations, and the error is not at all characteristic of their work. As to the lawyer whose outline apparently started this, the court notes that he "candidly admitted … what happened, and is unreservedly remorseful about it." Likewise, the court adds, "In their declarations and during our recent hearing, [the lawyers'] admissions of responsibility have been full, fair, and sincere. I also accept their real and profuse apologies."

But that I think just shows that all firms, however large and respected, need to be extra careful about having all their submissions thoroughly checked.

From Special Master Michael Wilner's order last week in Lacey v. State Farm Gen. Ins. Co. (C.D. Cal.):

The attorneys representing Plaintiff in this civil action submitted briefs to the Special Master that contained bogus AI-generated research. After additional proceedings and considerable thought, I conclude that an award combining litigation sanctions against Plaintiff and financial payments from the lawyers and law firms is appropriate to address this misconduct.

I also conclude that additional financial or disciplinary sanctions against the individual attorneys are not warranted. This was a collective debacle, and is properly resolved without further jeopardy.

AI in Court

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Last week, President Trump and Stephen Miller commented that the Administration is "looking" at whether the privilege of the writ of habeas corpus may be suspended. Insofar as Administration officials are actually looking at this question, they may want to revisit "Suspension and Delegation," an article from the Notre Dame Law Review written by then-Professor Amy Coney Barrett. (I blogged about this article in 2020 when then-Judge Barrett was nominated to the Supreme Court.)

In "Suspension and Delegation," Barrett concurred with the conventional understanding that only Congress has authority to suspend the writ of habeas corpus. More provocatively, she also suggested that there are limits on the extent to which Congress can delegate suspension authority to the President, and that some such prior suspensions were unconstitutional.

Here is the abstract:

A suspension of the writ of habeas corpus empowers the President to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: the writ may be suspended only in cases of "rebellion or invasion" and when "the public Safety may require it. " Congress alone can suspend the writ; the Executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive legislative authority over suspension, the statutes that Congress has enacted are in tension with it. Each of the suspension statutes has delegated broad authority to the President, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power. Indeed, if all of these prior statutes are constitutional, Congress could today enact a law authorizing the President to suspend the writ in Guantanamo Bay if he decides at some point in the (perhaps distant) future that the constitutional prerequisites are satisfied. Such a broad delegation undermines the structural benefits that allocating the suspension decision to Congress is designed to achieve. This Article explores whether such delegations are constitutionally permissible. It concludes that while the Suspension Clause does not prohibit Congress from giving the President some responsibility for the suspension decision, it does require Congress to decide the most significant constitutional predicates for itself that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power. Congress made this determination during the Civil War, but it violated the Suspension Clause in every other case by enacting a suspension statute before an invasion or rebellion actually occurred and in some instances, before one was even on the horizon.

Assuming that Justice Barrett still adheres to these views, she is unlikely to embrace Administration arguments in favor of suspending the writ or limiting its use by individuals alleged to be unlawfully present in the country or otherwise subject to deportation.

On Friday, April 18, the Supreme Court issued an administrative stay of the alien's removal in the case formerly known as A.A.R.P. v. Trump.

There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court. See 28 U. S. C. §1651(a).

The Court ruled mere moments before the Fifth Circuit issued its order. Now, nearly a month later, the matter remains pending before the Court.

It is obvious to me that the Supreme Court was not really interested in waiting for the Fifth Circuit. Indeed, the Court probably thought it better to issue this interim ruling that created the impression that the bad judges in Texas were dragging their feet. No one in the media would pay attention to the case in the day and weeks after. All that matters is the initial headline.

But in reality, the government is stuck. The Supreme Court provisionally certified a class, which the District Court declined to certify. Many of the aliens in Texas are clearly removable under other authorities, but the Court's blunderbuss injunction blocks their removal on any grounds. And the Supreme Court has shown not even the slightest interest in resolving this dispute.

The Solicitor General has now come back to the Court with a supplemental memorandum regarding the emergency application, that has been pending for nearly a month.

The brief explains that the plaintiffs no longer need the Court's emergency ruling, since they have pursued further judicial relief:

Intervening developments make clear that neither interim nor permanent relief is warranted; that the equities now weigh particularly heavily against relief; and that, at a minimum, this Court should modify the temporary injunction to allow the government to remove these unlawfully present aliens pursuant to non-AEA authorities, which applicants have conceded the government should be able to do. . . .

Other developments also bear out the lack of grounds for relief. It has now been more than three weeks since this Court entered an order precluding the removal of all members of the putative class. That three-week time frame constitutes more than adequate opportunity to pursue judicial relief under any standard. Thus, no putative class member now has any plausible claim to denial of notice or opportunity to be heard. See Trump v. J.G.G., 145 S. Ct. 1003 (2025).

Moreover, many of the aliens in the "putative class" can be removed under other authorities. Yet the government is still handcuffed because of John Roberts's late night blue plate special:

Meanwhile, the equities have also swung further against relief. The Department of Homeland Security (DHS) estimates that there are some 176 putative class members. App., infra, 50a. Because this Court's order categorically prohibited removing those 176 putative class members even under non-AEA authorities, the government has been detaining these aliens instead of removing the many putative class members who may be otherwise removable under non-AEA authorities, such as Title 8 of the United States Code. Unsurprisingly, given that the putative class members were detained based on their membership in a designated foreign terrorist organization, they have proven to be especially dangerous to maintain in prolonged detention. Some 23 putative class members recently barricaded themselves in a housing unit for several hours and threatened to take hostages and harm ICE officers, as described in the appended Declaration of Joshua D. Johnson, Acting Field Office Director for the Dallas Field Office of U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security.

I remain baffled why the Court is willing to move heaven and earth to provide assistance to criminal aliens, but does nothing when other litigants come to the Court seeking emergency relief.

The government offers an easy way out of this morass:

Especially given those developments, the government requests that the Court lift its administrative injunction and deny further relief. The putative class members are not proper parties and have received adequate notice and opportunity to pursue habeas petitions. And the named petitioners have filed habeas petitions and have not shown an imminent risk of removal while those petitions are pending. At a minimum, the Court should modify the administrative injunction to permit the removal of any aliens eligible for removal under non-AEA immigration authorities.

I would hope that over the past month, Justices Gorsuch, Kavanaugh, and Barrett have seen how flawed the process was. Perhaps they joined the Chief's opinion based on less-than-perfect information about what the Fifth Circuit would do. Justice Alito and Thomas's dissent has improved by the day. This time for reflection may alter the relief offered.

On Sunday, I predicted that the Supreme Court will avoid resolving the various nationwide injunction issues in the birthright citizenship cases. Instead, the Court would issue a merits ruling based on the Fourteenth Amendment to make the case go away.

A few colleagues said I was wrong, and that the merits issue was not adequately briefed. I'm not so concerned. The Court can always restore the case to the docket for the fall and order supplemental briefing. Injunctions are in place now, so time is not of the essence.

Another colleague suggested that the Court will find the national injunctions are improper, but suggest that the lower courts could certify nationwide classes under Rule 23. I suppose that option is preferable, since we would avoid the murky equitable power to issue nationwide injunctions. Rule 23 at least has the imprimatur of Congress (assuming the Rules Enabling Act is constitutional). But as a practical matter, courts are already certifying national classes in ex parte TRO hearings. I am skeptical there would be much of a practical difference if the Court goes down that road. The emergency docket will still remain active.

What will the Court do? I was pondering this question today, and I think I figured out the Chief's play. We will get a second helping of his blue plate special from the DACA case. The Court will simply find that the executive branch failed to adequately consider the reliance issues with suspending birthright citizenship. Specifically, the order did not explain how the policy would affect parents and their unborn children. Roberts can even cite Dobbs!

I know that the President's executive order is not subject to the APA, and Department of Regents is not directly on point. Details. The Chief can fashion some equitable principle based on reliance interests and hardships, and BAM! The Court then will never need to decide the meaning of the Citizenship Clause. Indeed, this punt would likely eliminate the issue for the foreseeable future.

My predictions are not very accurate, so please take this post with a heaping of salt.

Justice David Souter passed away last week. I clerked for him early in his tenure on the Court, in October Term 1992, and ever since the news, I've been thinking about him—talking with friends, family, and former colleagues who've reached out to share memories and condolences.

To be honest, I hadn't planned to write anything about my time with him. He never cared much for public tributes, and I have always felt awkward telling stories about him, even good ones. I wasn't a close friend or confidant, just one of his former law clerks, and I didn't want to presume on my association with him. But I've come to feel that sharing a few memories, especially those that highlight what kind of person he was, might be helpful. Someday, historians will write about him. Maybe personal recollections like mine will add something.

Justice Souter was a remarkable person and a true gentleman. He never had his head turned by Washington. That's an astonishing virtue. Washington is full of people with relatively unimportant jobs—chief assistant to the assistant chief—who nonetheless lord it over others. Justice Souter, who held one of the most powerful positions in the country, never made an issue of it. He simply did his job as he saw best. His rulings disappointed conservatives, but it's wrong to maintain, as some do, that he changed his views because of praise from Washington insiders. He didn't pay attention to those things. His fundamental convictions, in which he had great confidence—those of an old-fashioned, Yankee Republican—were always his own.

When I clerked for him, he was in his early 50s. I remember him once casually remarking in chambers, "I'll do this job until I'm 70, and then I'll go home"—meaning, of course, New Hampshire. At the time, I doubted him. Supreme Court Justices rarely resign. It's too good a job, and besides, most come to identify so completely with the role that they have a hard time giving it up. But he did what he said, retiring at the age of 69. I have read that he timed his retirement to coincide with a Democratic president, and maybe that's true. But I know it wasn't the sole reason. He had talked about it long before. Read More

From Judge James Lorenz's order yesterday in S.E. v. Grey (S.D. Cal.):

The school activity at issue occurred in the context of the buddy program, a weekly class pairing younger and older students. The buddy program is a mandatory part of the school curriculum. P.D. and S.E., both fifth graders, were each paired with a kindergartener. In this program, "students in the older classroom mentor students in the younger classroom."

Until the buddy class at issue, the buddy program involved art or garden projects, and any books read in the class were selected by the students. The school sent parents a weekly newsletter listing the books the students were reading each week. For the buddy class at issue, the book entitled My Shadow Is Pink was selected by the teachers and was not listed in the weekly newsletter.

My Shadow Is Pink is about a boy who liked to wear dresses and play with toys associated with girls. Because the boy thought he did not "fit in" with his family and peers, his shadow was pink rather than blue. The story involves a conflict between the boy and his father. The father eventually comes to accept his son's "pink shadow" not as a phase but as reflecting the boy's "inner-most self." Although the term "gender identity" does not appear in the book, the author describes it as a children's book on the subject of gender identity. Defendants admit that the book "does address gender identity."

In preparation for the buddy class, the teacher first read the book to P.D. and S.E.'s fifth grade class. The fifth graders then joined their kindergarten buddies, and the teacher showed a read-along video of the book to the fifth graders sitting next to their respective buddies. The video was followed by an "art activity" in which the teacher asked the kindergarteners to "pick a color that represents you," and instructed the fifth graders to trace their respective buddies' shadows on the ground with colored chalk.

Although the class did not involve an explicit discussion of gender identity, the fact that the book addressed this issue was not lost on the students. S.E. described the book as "about LGBTQ." P.D. described it as "about a boy who wanted to change his gender to be a girl."

Because choosing one's own gender identity is contrary to Plaintiffs' religious beliefs, they were uncomfortable with the buddy class. Moreover, as mentors, P.D. and S.E. did not wish to affirm the book's message to their buddies.

Free Speech Gender Identity

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On May 1, 2025, the Harlan Institute held the championship round for the 13th Annual Virtual Supreme Court competition. The top two teams presented oral argument at the Georgetown Supreme Court Institute in the case of Free Speech Coalition v. Paxton. Presiding were Judge Neomi Rao (U.S. Court of Appeals for the D.C. Circuit), Judge Royce Lamberth (U.S. District Court for the District of Columbia), and Judge Matthew Solomson (U.S. Court of Federal Claims).

Noah Ha and Liam Aranda-Michel from Lake Oswego High School in Oregon represented the Petitioner. Lauren Hohlt & Caroline Ready from Creekview High School in Texas represented the Respondent. After a well-argued round, the judges selected the Respondents as the Champions, with Caroline Ready as best oralist.

You can watch the round here:

We are pleased to share these comments from our participants:

5/13/1912: Seventeenth Amendment is approved by the House of Representatives. The Senate approved it the prior month. The Seventeenth Amendment was ratified in 1913.

I have posted a revised version of my draft paper, Data Scanning and the Fourth Amendment. It adds a bunch of new cases, including the various opinions from the Fourth Circuit's en banc ruling in United States v. Chatrie. It also updates the tech section. Abstract below.

A crucial question of Fourth Amendment law has recently divided courts: When government agents conduct a digital scan through a massive database, how much of a "search" occurs? The issue pops up in contexts ranging from geofence warrants and reverse keyword searches to the installation of Internet pen registers. When a government agent runs a filter through a massive database, resulting in a list of hits, is the scale of the search determined by the size of the database, the filter setting, or the filter output? Fourth Amendment law is closely attuned to the scale of a search. No search means no Fourth Amendment oversight, small searches ordinarily require warrants, and limitless searches are categorically unconstitutional. But how broad is a data scan?

This essay argues that that Fourth Amendment implications of data scans should be measured primarily by filter settings. Whether a search occurs, and how far it extends, should be based on what information is exposed to human observation. This standard demands a contextual analysis of what the output reveals about the dataset based on the filter setting. Data that passes through a filter is searched or not searched depending on whether the filter is set to expose that specific information. The proper question is what information is expressly or implicitly exposed, not what raw data passes through the filter or the raw data output. The implications of this approach are then evaluated for a range of important applications, among them geofence warrants, reverse keyword searches, tower dumps, and Internet pen registers.

This is just a draft, and it won't be submitted to journals until August or so. As always, comments are very welcome.

Politics

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