The Volokh Conspiracy Archive

Friday Open Thread

What's on your mind?

Eugene Volokh | 6.6.2025 7:47 PM

The New York Times has a profile of fired Muhlenberg professor Maura Finkelstein that portrays her as a martyr for academic freedom.

Here is what David L. Bernstein and I wrote about her case in our forthcoming article:

Finkelstein claims that her dismissal was a response to her re-posting the following from another source:

Do not cower to Zionists. Shame them. Do not welcome them in your spaces. Do not make them feel comfortable. Why should those genocide-loving fascists be treated any different than any other flat-out racist. Don't normalize Zionism. Don't normalize Zionists taking up space.

We are not in a position to judge whether Finkelstein's dismissal was solely or primarily the result of this posting. Regardless, if taken at face value, Finkelstein's claim raises the question of where to draw the line between faculty statements of political opinions that should be protected and faculty statements that give rise to reasonable inference that they are unwilling or unable to follow federal law and university rules prohibiting discrimination against Jewish and Israeli students.

FIRE argues that although "Finkelstein's speech may be offensive," her post is protected by Muhlenberg's promises of free speech and academic freedom. The authors, by contrast, believe that Finkelstein's speech at least raises the implication that she would not welcome "Zionists" "taking up space" in her classroom, and obviously faculty members are not permitted to exclude or even discriminate against Zionist students--even if you ignore the question of whether discrimination against Zionists constitutes discrimination against Jews under federal law.

At the very least, then, Finkelstein's rant provides ample justification for the university to inquire and investigate as to whether (a) Finkelstein was willing to affirm that her remarks do not apply to her obligations as a Muhlenberg professor; and (b) that she had not taken and did not intend to take exclusionary or discriminatory measures against "Zionist" students.

And that's taking Finkelstein's claim at face value, which I have reason to believe is very unlikely to be the whole story. But I would agree that this tweet alone, absent evidence that it reflected her actual behavior toward students, was not sufficient reason to fire a tenured professor.

UPDATE: This article by Northwestern lawprof Steven Lubet provides details about additional allegations against Finkelstein.

From today's Eleventh Circuit decision in Naples Pride, Inc. v. City of Naples by Judges Robert Luck and Andrew Brasher:

In 2023 and 2024, Naples Pride, Inc. applied for a permit under the City of Naples, Florida's special event ordinance to hold a drag performance at a city park. Both years, the city granted a permit but with two conditions: first, that the drag performance had to be held indoors, and second, that attendance had to be limited to adults eighteen years or older. The performance went on with those two conditions.

The same thing happened in 2025. Naples Pride applied for a permit to hold the same drag performance at the same city park on June 7, and, in January 2025, the city granted the same permit with the same two conditions. The only difference this time was that, in April 2025, Naples Pride sued the city, claiming that it violated the group's First Amendment free speech rights by adding the two permit conditions under the special event ordinance. Naples Pride moved to preliminarily enjoin the city from enforcing the two conditions, and the district court granted the motion. The district court concluded that: the drag performance was protected expression under the First Amendment; the event was a traditional public forum; and the two permit conditions were viewpoint- and content-based restrictions.

The city now moves to stay the preliminary injunction. "Under the traditional standard for a stay, we consider four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." But "when the balance of equities weighs heavily in favor of granting the stay—we relax the likely-to-succeed-on-the- merits requirement. In that scenario, the stay may be granted upon a lesser showing of a substantial case on the merits."

Here, for three reasons, the city has a substantial case on the merits that the district court abused its discretion in preliminarily enjoining the permit conditions. First, "[a] delay in seeking a preliminary injunction of even only a few months—though not necessarily fatal—militates against a finding of irreparable harm," which is a "require[d]" element for "[a] preliminary injunction." Naples Pride delayed seeking an injunction by more than "only a few months." The city added the conditions to Naples Pride's permit in 2023—two years ago—yet Naples Pride did not move to preliminarily enjoin the permit conditions until April 2025. Even after the two conditions were added by the city in January 2025 for this year's drag performance, Naples Pride still delayed in moving for a preliminary injunction by "a few months." The group filed its motion in April 2025.

Salvadoran immigrant Kilmar Abrego Garcia - illegally deported by the Trump Administration to imprisonment in El Salvador without any due process - is now back in the US. After the Supreme Court ruled that the Administration had to "facilitate" his return, the administration repeatedly insisted they had no power to do so, and otherwise verged on defying court orders. But as Trump admitted, in reality the administration could have secured his return any time they wanted to. Salvadoran President Nayeb Bukele was keeping Abrego Garcia in prison only because of arrangement with Trump, under which the US paid him to detain Garcia and hundreds of other migrants deported without due process, in violation of the Fifth Amendment.

The Venezuelans deported under the Alien Enemies Act are also victims of an illegal invocation of that law (see my recent amicus brief on that subject); most have never been convicted of any crime, and many (possibly a majority) entered the US legally.

As the Abrego Garcia case shows, Trump could easily return these people to the United States simply by asking the Salvadoran government to release them, and making clear he means it. Courts should tolerate no more excuses on that subject!

The outcome of this case also shows that the administration is susceptible to judicial and political pressure, even in the immigration field. The lawyers, activists, and others who pursued this matter - initially against seemingly insurmountable odds - deserve great credit. The rest of us should learn from their success, and build on it.

ABC reports that Abrego Garcia will now face charges for supposed involvement in a scheme to illegally transport "thousands" of undocumented migrants. We shall see whether those charges have any merit. Perhaps I am too cynical. But I suspect that if the Administration actually had strong evidence of extensive illegal activity by Abrego Garcia, they would have revealed it a long time ago, rather than keep on suffering legal and PR setbacks. The prosecution may be a face-saving maneuver. We shall see when it gets to court. At any rate, even a possibly questionable prosecution in a court with proper due process is far better than deportation to imprisonment with no due process at all.

Elsewhere, I have argued that the sort of activity Abrego Garcia is charged with should not be a crime at all, because most of our immigration restrictions are unconstitutional and deeply unjust. But even those who differ with me on these points have reason to oppose deportation without due process, especially when it is deportation to imprisonment, of the kind inflicted on Abrego Garcia and hundreds of others.

If left unchecked, such policies can become a tool for deporting and imprisoning anyone the administration chooses to target, including even legal immigrants and US citizens. As prominent conservative Fourth Circuit Judge J. Harvie Wilkinson pointed out in his concurring opinion in the Abrego Garcia case:

The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.

The best way to decisively close that loophole is for courts - and the rest of us - to compel the return of all those illegally deported without due process, and ensure that such a thing can never happen again.

UPDATE: ABC reports that a high-ranking prosecutor in the Nashville, Tennnessee US attorney's office, where Abrego Garcia will be tried, recently resigned because he believes the indictment against Abrego Garcia was brought for political reasons. That doesn't definitively prove the charges are bogus. But it should heighten our suspicions.

From Judge Tom Barber (M.D. Fla.) in Trump Media & Tech. Group Corp. v. WP Company LLC:

This lawsuit for defamation by Plaintiff Trump Media & Technology Group Corp. ("TMTG") against Defendant WP Company LLC (the "Post") arises from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023 …. The second amended complaint narrows TMTG's defamation claim to two statements from the Post's article relating to a purported finder's fee paid to Entoro Securities to secure an $8 million loan. Those statements are:

"The companies also have not disclosed to shareholders or the SEC that Trump Media paid a $240,000 finder's fee for helping to arrange the $8 million loan deal with ES Family Trust"; and

"The recipient of that fee was an outside brokerage associated with Patrick Orlando, then Digital World's CEO"

TMTG alleges these statements were false and were made with actual malice, that is, with knowledge they were false or with reckless disregard as to whether they were false….

The Post's article purported to be based on sources that included internal documents shared with the Post by former TMTG officer Will Wilkerson. The article did not point to any witness statement or written confirmation that TMTG made the finder's fee payment, but it did refer to an invoice from Entoro and a referral fee agreement calling for the payment.

In yesterday's Aviel v. Gor, D.C. Circuit Judge Gregory Katsas, joined by Judge Nina Pillard, held that the President likely lacked the power to fire the CEO of the Inter-American Foundation, though he had the statutory authority to fire the Foundation's Board of Directors:

This case involves a dispute over whether plaintiff Sara Aviel is presently the Chief Executive Officer of the Inter-American Foundation (IAF), a government corporation that issues grants to further development in the Caribbean and Latin America. The IAF is run by a Board of Directors appointed by the President with the advice and consent of the Senate. In turn, the Board appoints and supervises the Foundation's CEO.

In February 2025, the President removed all the incumbent IAF Board members, as permitted by statute. The President then purported to unilaterally designate Pete Marocco as an acting member of the Board. Both the President and Marocco then purported to remove Aviel from her position as the Foundation's CEO.

Aviel sued various government officials, including the President, and sought injunctive relief to continue serving as CEO. The district court granted a preliminary injunction requiring the defendants to recognize her as still holding that office. The government appealed and sought an emergency stay.

We deny the stay because the government is unlikely to succeed on the merits of its contentions that Aviel … was permissibly removed from her position as CEO ….

The governing statute authorizes the IAF Board of Directors—not the President—to appoint the CEO, and it is silent regarding the question of removal. That means the Board—not the President—has the power to remove Aviel. As the Supreme Court explained in Free Enterprise Fund v. PCAOB (2010), "Congress may vest in heads of departments" the appointment of inferior officers, and, "[i]f Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal." Likewise, in In re Hennen (1839), the Court noted that if Congress vests a department head with the power to appoint and remove an inferior officer, "the President has certainly no power to remove" the inferior officer directly….

From a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last month but just released Tuesday):

The videos [of the arrest] showed the defendant and [Redacted] on top of each other, falling down the stairs while being tackled by police officers. While they all were tumbling down, a gun fell from their area. Defendant's [Redacted] exclaimed right away that the gun was [Redacted]. The gun was in fact registered to [Redacted] and [Redacted] had a license to carry it.

The defendant was prosecuted on the theory that he was the one possessing the gun, which would be a crime because the defendant (but not the man he was fighting, whose gun this was) was a felon. Among other things, the court rejected the request for a warrant to search defendant's phone:

The affidavit here does not "demonstrate that [[Redacted]] was engaged in [illegally possessing a firearm] and keeping [evidence of that] in his [phone]." "Here, there is no evidence that [[Redacted]]" took pictures on his phone of any firearms, let alone the one for which he is charged of a crime. Indeed, there was no pre-arrest investigation at all. The universe of information to support the government's charges and this search is limited to what happened in the few seconds when law enforcement tackled [Redacted] and [Redacted] in the stairwell of [Redacted] home.

Lacking facts and evidence specific to [Redacted], the government falls back on "boilerplate language" that "provide[s] few, if any, particularized facts of an incriminating nature [specific to the defendant's phone] and little more than conclusory statements of affiant's belief that probable cause existed regarding [evidence on every defendant's phone]." Specifically, the government states:

From a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last month but just released Tuesday):

The videos [of the arrest] showed the defendant and [redacted] on top of each other, falling down the stairs while being tackled by police officers. While they all were tumbling down, a gun fell from their area. Defendant's [redacted] exclaimed right away that the gun was [redacted]. The gun was in fact registered to [redacted] and [redacted] had a license to carry it.

The underlying criminal prosecution of the defendant was for that defendant's allegedly possessing a firearm as a felon, but the government applied for a search warrant seeking, among other things, [redacted]'s DNA, which in context appears to be the DNA of the person who was fighting with defendant. (As is often the case with opinions that contain multiple redactions, one needs to guess at what each redaction relates to.)

[Redacted] has lived, worked, and survived in challenging circumstances. [Redacted] testified at the detention hearing why [redacted] obtained the firearm in question: to protect [redacted] and [redacted] home. In so doing, [redacted] dutifully followed the Supreme Court's direction that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

But despite [redacted] doing things the right way—legally purchasing and licensing [redacted] firearm—the government seeks court authorization to violate [redacted] bodily autonomy for DNA evidence. But evidence of what? A crime? There is no cause to believe [redacted] has committed or participated in a crime. The only purpose of the search is to disprove [redacted] possession of the firearm [redacted] is authorized to carry.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Victory! Five years ago, a SWAT team blew up Vicki Baker's house in an attempt to apprehend a fugitive. But, sad news, last year SCOTUS declined to take up the question of whether destroying an innocent person's house is a Fifth Amendment taking requiring just compensation. (Two justices called for more percolation below.) But now! Thrilling news! This week, a federal court reentered judgment in Vicki's favor under the Texas Constitution. Click here to learn more.

New on the Short Circuit podcast: Scott Lincicome of Cato breaks down what's up at the Court of International Trade and IJ's Jeff Rowes breaks down the Texas attorney general.

In 2019, New York decriminalized abortion, authorized them throughout pregnancy (limiting them after 24 weeks to circumstances with a non-viable fetus or when the mother's life/health is at risk), and eliminated fetal homicide from the state's criminal laws. This, claims a social worker and a viable fetus dubbed Baby Nicholas, violates fetuses' constitutional rights to life and equal protection. Second Circuit: No standing. The social worker has only speculated that, at some point in the future, an unidentified woman may seek to obtain an abortion of an unidentified fetus from an unidentified abortion provider—and that isn't enough. As for Baby Nicholas, the risk of harm is too attenuated to provide standing, whether for damages (a risk of future harm that never materialized) or injunctive/declaratory relief (insufficiently imminent harm).
Atlantic City, N.J. fire dept. prohibits employees from having beards because they inhibit the seal on protective breathing masks used while fighting fires. But Mr. Smith, the technician who maintains the masks, says his Christianity requires a beard and that nobody in his role has had to do fire suppression for decades. Third Circuit (via shifting majority over two partial dissents): Unlike the more famous Smith, this Smith has a viable religious liberty violation. Read More

From the introduction and conclusion of a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last week but just released Wednesday):

The government has moved to seal seemingly forever an order of the Court. But this is the Court's order, not the Executive's order. So the Court, not the Executive, decides unsealing. For the reasons stated below, the Court DENIES the government's attempt to muzzle the Court….

No secret courts. This means no forever sealed judicial decisions—including warrants—as they are the foundation for secret courts. Without visibility, the public cannot hold courts or the government accountable. The Framers knew this. Thomas Jefferson said "wherever the people are well informed they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights." Transparency is foundational to what makes America great.

Transparency requires courts to timely unseal—with redactions if needed—every judicial decision, including search warrants. Courts abdicate their duty to ensure transparency if they only monitor unsealing in high profile warrants.

The largely unsealed May 6 order appears to be here; here's an excerpt from the long May 29 decision justifying the unsealing (with redaction) of the order:

President Donald Trump signs two executive orders on April 2 instituting tariffs — President Donald Trump signed two executive orders on April 2 instituting tariffs on a wide range of countries. ( Andrew Leyden/ZUMAPRESS/Newscom)

Last week, the US Court of International Trade issued a major ruling striking down Trump's massive "Liberation Day" tariffs and other tariffs imposed under the the International Emergency Economic Powers Act of 1977 (IEEPA). The ruling came in a case filed by Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs, and also covers a related case filed by twelve states led by Oregon. The case is now on appeal to the US Court of Appeals for the Federal Circuit, and that court has issued a brief "administrative stay" temporarily blocking enforcement of the CIT decision to give time to consider whether there should be a more permanent stay pending appeal.

The stay question may seem like one of those technical legal issues of interest only to lawyers and academics. But, in this case, it has great practical significance. If we defeat the government's motion for a stay pending appeal, the tariffs will be quickly lifted (probably within a few days after the administrative stay ends), and businesses that have previously paid IEEPA tariffs can begin the process of getting them refunded. That would stop the vast damage these tariffs are inflicting on many thousands of businesses (like our clients) who depend on imports, and tens of millions of consumers who face higher prices on a vast range of goods. If, on the other hand, the Federal Circuit grants the motion for a stay pending appeal, the tariffs will stay in place until the appellate process is over, which could take months, or even a year or more (if the case gets to the Supreme Court).

I won't go over the arguments on the stay issue in detail here. But those interested can read the government's motion for a stay here, and our response here.

One factor courts consider in assessing a motion to stay is which side is likely to ultimately prevail on the merits. I've written about the merits at length elsewhere (e.g. here), and obviously I think we deserve to win! I will merely note that the Trump administration continues to claim IEEPA gives the president virtually unlimited power to impose any tariffs he wants, on any nation, for any reason, for any length of time. I am hopeful that appellate judges will find that unacceptable, just like the CIT panel did.

Another key factor is which side is likely to suffer "irreparable harm" if they lose on the stay issue. We argue that our clients - and thousands of other businesses - will suffer great irreparable harm if a stay is imposed. They will lose sales due to higher prices, good will can be lost, relationships with suppliers and investors will be disrupted, and more. Those harms can't be made up merely by refunding tariff payments months from now, after the appellate process concludes. On the other hand, as explained in our brief, the government doesn't suffer any legally cognizable harm from being denied the right to impose illegal tariffs. And US credibility on the international stage will, we explain, suffer more damage if the administration continues to try to use illegal tariffs as leverage in negotiations with trading partners than if that travesty is ended immediately.

Another issue at stake here is whether the CIT injunction should be stayed with respect to non-parties, but immediately implemented with respect to the plaintiffs in the two cases. We argue that only universal implementation can fully prevent irreparable harm to our clients. In addition, a partial stay would be unconstitutional, violating the Constitution's requirement that tariffs be uniform, as explained in this passage from our brief:

As the CIT observed in its ruling granting summary judgment:

There is no question here of narrowly tailored relief; if the challenged Tariff Orders are unlawful as to Plaintiffs they are unlawful as to all. "[A]ll Duties, Imposts and Excises shall be uniform throughout the United States," U.S. Const. art. I, § 8, cl. 1, and "[t]he tax is uniform when it operates with the same force and effect in every place where the subject of it is found." Slip Op. 48–49 (quoting Head Money Cases, 112 U.S. 580, 594 (1884)).

A non-uniform tariff imposed as a result of a ruling staying the injunction for nonparties would be unconstitutional, since it would, by definition, not "operate with the same force and effect" everywhere. Id. In addition, it would necessarily create a highly non-uniform tariff schedule, thus rendering that schedule unconstitutional.

If the Federal Circuit denies the government's motion for a stay, they could potentially ask the Supreme Court to impose one. I will have more to say about that eventuality when and if it occurs.

That's from Magistrate Judge Zia Faruqui (D.D.C.) last week in In re: Search of One Device and Two Individuals. The context is the government's request to seal a court order—see this post for more—and the government's argument, in the process, "that courts must be highly deferential to the government's determination that unsealing would impede its investigation." But I take it that the judge's sentiment would carry over into other decisions as well, especially if other judges take a similar view:

Blind deference to the government? That is no longer a thing. Trust that had been earned over generations has been lost in weeks. Numerous career prosecutors have had to resign instead of taking actions that they believe violated their oath of office, or worse, were fired for upholding that oath. See, e.g., Tom Dreisbach, Why a DO J prosecutor resigned, telling coworkers and bosses 'you serve no man', NPR (Mar. 20, 2025) (noting that seven federal prosecutors resigned from Justice Department due to conflicts between administrative directives and their ethical and legal obligations); Glenn Thrush & Adam Goldman, Justice Dept. Fires Prosecutors Who Worked on Trump Investigations, N.Y. Times (Jan. 27, 2025) (stating that more than a dozen prosecutors were dismissed in "an egregious violation of well-established laws meant to preserve the integrity and professionalism of government agencies"). On the flip side, Department of Justice leaders have decried criminal investigations from the prior administration as ranging from witch hunts to illegal. See, e.g., Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan 6. prosecutions, Wash. Post (Jan. 27, 2025) (reporting that Justice Department is reviewing Jan. 6 prosecutors for "ruthlessly" prosecuting more than 1,500 individuals which was "an unprecedented, third-world weaponization of prosecutorial power.").

So which prosecutors does the court defer to? The number continues to shrink. Judges have had to reprimand government attorneys for a lack of candor to the court, and worse, probe failures to comply with court orders. See, e.g., Jess Bravin, Trump Has a Trust Problem in Court, Wall St. J. (Apr. 28, 2025) (describing how several judges have expressed doubts about whether government officials are faithfully complying with court orders, with some taking actions such as "excoriat[ing]" officials and "hold[ing] the government in contempt."); Mattathias Schwartz, White House Failed to Comply With Court Order, Judge Rules, N.Y. Times (Feb. 12, 2025) (discussing how Judge McConnell Jr.'s ruling that the Trump administration failed to comply with a court order to release billions of dollars in federal grants signals a rise in defiance against court rulings). These norms being broken must have consequences. High deference is out; trust, but verify is in.}

On Tuesday, I testified before the Senate Judiciary Committee for a hearing about the current conflicts between the district courts and the President. You can watch the video here. The hearing was co-chaired by Senator Eric Schmitt of Missouri. On Wednesday, I met with Senator Schmitt to talk about judicial nominations in President Trump's second term. In particular, we focused on the four picks for the Eastern District of Missouri, who were President Trump's first district court nominees: Cristian Stevens, Maria Lanahan, Zachary Bluestone, and Joshua Divine. All four of these nominees had worked with Senator Schmitt when he was Missouri Attorney General. We also chatted about judicial courage, the role of the Federalist Society, and what lies ahead for the Eighth Circuit.

I've lightly edited the transcript for length and clarity.

JB: Let's start with talking about the first four judges from the Eastern District of Missouri (EDMO). How did you get to be first? I'm from Texas and we still don't have any Texas nominees. Florida just came out a few weeks ago. Missouri was first, right out of the gate.

ES: Well, I think we were ready. The Biden administration halfway attempted to fill some spots, but never really negotiated in good faith. And then, of course, when President Trump won, we knew there would be four openings.

Vice President [Vance is a] very good friend of mine, I spent a lot of time with President Trump on the campaign trail. [I] got to know him and contact frequently. [I made] very clear my interest in in making sure we've got good conservative judges across the country, particularly in my home state, I think that led to us being ready to roll on this, and working really well with the White House team to get these people queued up.

What's really interesting is each of [the four nominees] worked in [the Attorney's General office] when I was attorney general. I think it's a great kind of training ground now for conservative lawyers to get good experience. You view the laws as it's written, not how it should be. We were ready and we wanted to move quickly. We're going to have seven out of the eight eastern District Court [of Missouri] judges now as Trump appointees. The Eighth Circuit is always very solid. I think there are going to be some opportunities within the Eighth Circuit to get some additional appointments in the next three and a half years. In my view, we have really the strongest from a District Court level all the way up to the Circuit in the country, and that's something we proud of.

JB: What is your process for picking judges? Is there a committee with both senators from the state?

ES: Senator [Josh] Hawley and I both have the background of being Attorney General, and knowing some of the people, we had a conversation. Ethan Harper, my general counsel, will interview candidates, and I had conversations with them as well. This [process] was especially unique because I was very familiar with all four of them. They've worked in my office, and they're exceptionally qualified. They've got the right temperament. They were in a lot of the important fights that define my tenure. But this was particularly unique because of the personal connection and having seen them in action and how they handle situations. And their competencies [were] off the charts.

JB: President Trump and Vice President Vance have said courage is an important facet of being a judge. I've heard you refer to fights. We saw soon-to-be judge Hermandorfer, who has engaged in these contentious cases. Why is it so important that judicial nominees have this sense of fight, this sort of backbone, this willingness to engage in this sort of battle? Why is this a good facet to have?

ES: I think there's tremendous amount of pressure from the left, as we've seen, to try to intimidate judges. Look at what they've done before the Supreme Court ruled on Dobbs, and the public pressure from people like Chuck Schumer calling for a whirlwind to be visited upon them, and assassination attempts. I think in many ways, the left wants to operate outside of our judicial system. It's just this sort of Marxist ideology that's captured, sadly, the Democrats and how they view all of these legal fights. And so I feel like I gained a really interesting perspective having been Attorney General in the state during COVID, having had the student loan debt forgiveness case, having had the misinformation case, and the vaccine mandate cases. I certainly learned something in that time, sort of this sort of forging, of being in that kind of position. And you certainly appreciate people who are going to do the right thing, no matter what kind of pressure is out there. And I think that for a judge in particular, especially in this day and age, when there's access to so much more information, I think that's an important quality.

JB: Do you think there's some judicial conservatives who kind of know the right answer, but pull back and say, "I don't know. Maybe we shouldn't do this." Is that something that you've seen or that you that you suspect goes on?

ES: My hope is that President Trump sort of writ large for conservatives, has really taught everybody an important lesson about how to fight back and not to back down. What he went through to get back to this is incredible. [Trump had] a historically unique, a monumental accomplishment for that kind of comeback in the face of the Lawfare [and] the weaponization of the Justice Department. It's really important to have people who appreciate the rule of law and understand what that weaponization would look like.

I do think that kind of courage and grit, the willingness to sort of to stick to your guns, even when there's a lot of public pressure pushing you in a direction, is important. I don't think President Trump gets enough credit for this. Sixty years ago, Republicans made a lot of these judicial appointments based on purely relationships, right? And we ended up with some swings and misses. People that ended up not what you expected them to be on the Supreme Court. I think there's a conservative ecosystem now that's really important, of helping us identify people who can be great candidates. And then you add that onto personal experience, which is a little bit unique [witch leads to] four outstanding candidates.

Yesterday's unanimous Supreme Court decision in Ames v. Ohio Department of Youth Services is primarily notable for the ruling that members of "majority" groups alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must not be held to a higher standard of proof than members of "minority" groups. That holding is correct for both the reasons advanced by Justice Ketanji Brown Jackson's opinion for the Court, and the additional points made in Clarence Thomas's concurring opinion (joined also by Neil Gorsuch). But there is another noteworthy element of the ruling that also deserves attention: it reaffirms the rule that discrimination based on sexual orientation is a form of sex discrimination.

Marlean Ames, the plaintiff in the case, explicitly argued that she was a victim of discrimination based on sexual orientation, not generalized discrimination against women, as such. She claims she got passed over for a promotion and then later demoted because she is a heterosexual woman, and her employer - the Ohio Department of Youth Services - discriminated against her in favor of gays and lesbians (first, a lesbian woman, and then a gay man). Nonetheless, all nine justices appear to agree this is a form of discrimination covered by Title VII's ban on discrimination based on sex.

In this case, the sexual orientation discrimination was discrimination against heterosexuals. But, obviously, the same logic applies to the far more common type of sexual orientation discrimination aimed at LGBT people.

The Supreme Court first ruled that sexual orientation discrimination qualifies as sex discrimination under Title VII in Bostock v. Clayton County (2020) (see my analysis of the ruling here and here). At that time, the ruling was highly controversial and three conservative justices (Kavanaugh, Thomas, and Alito) forcefully dissented. In Ames, by contrast, there is not so much as a hint of disagreement. That doesn't mean the Bostock dissenters have changed their minds. But it does suggest there is little or no support on the Court for trying to overrule that decision, or the general principle underlying it. Otherwise, I would have expected one or more conservative justices to at least write a concurring opinion indicating they are backing the majority only because of adherence to stare decisis.

The principle that sexual orientation is sex discrimination goes beyond the Title VII employment context. It also applies to the issue of discrimination under the Equal Protection Clause of the Fourteenth Amendment. Back in 2015, Northwestern University law Prof. Andrew Koppelman and I filed an amicus brief in Obergefell v. Hodges (see also shorter summary of our argument here), urging the Court to strike down laws banning same-sex marriage on that basis. The Court instead invalidated them on different, more dubious, grounds. It is not clear to what extent those grounds also invalidate other types of state discrimination against LGBT people.

But if the Court - including all or most of the conservative justices - now accepts that sexual orientation discrimination is sex discrimination, that logic covers discrimination outside the marriage context. And, as Justice Gorsuch's majority opinion in Bostock holds, it applies to discrimination against transgender people, as well as discrimination against gays and lesbians.

As I argued back when Obergefell was decided, the sex discrimination approach offers a much clearer and more generally applicable standard for assessing sexual orientation discrimination claims than the hodgepodge of reasoning advanced by Justice Anthony Kennedy's opinion for the Court. It renders all state-enforced discrimination against LGBT people presumptively unconstitutional.

That doesn't necessarily mean all such discrimination must be struck down. Sex discrimination is subject to heightened "intermediate" scrutiny under which laws that discriminate on that basis can only be upheld if they are "substantially related" to an "important state interest." In some situations - most obviously segregated bathrooms and sports teams - courts generally accept sex discrimination in contexts where racial discrimination (subject to "strict" scrutiny) is forbidden. That has potential implications for situations where, e.g., transgender women seek to play on women's sports teams.

But when governments discriminate against LGBT people in situations where more conventional sex discrimination against men or women is forbidden, the anti-LGBT discrimination must also be struck down. If Marlean Ames qualifies as a victim of sex discrimination, the same is true of, for example, LGBT people discriminated against in state education programs, denied adoption rights available to heterosexuals, and so on.

6/6/2005: Gonzales v. Raich is decided.

From yesterday's order in Abrego Garcia v. Noem by Judge Paula Xinis (D. Md.):

The Press Movants rightly contend that, at common law, the public enjoys a presumptive right to access court records, overcome only when outweighed by competing interests. The First Amendment, too, accords the public access, unless there has been a showing of "compelling governmental interest, and only if the denial is narrowly tailored to serve that interest." The right to public access of court records remains critical to promoting "trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Thus, before allowing records to remain sealed the Court must (1) give the public a reasonable opportunity to be heard; (2) consider less drastic alternatives to sealing such as redactions; and (3) explain publicly and with specificity its decision to seal some or all of the challenged documents.

Defendants oppose unsealing on two grounds. Neither withstand scrutiny. First, Defendants wrongly cast all challenged filings as "discovery materials" which have not "historically been open to the press and public." They then contend, essentially, that no good can come to the case by affording the public access to "discovery."

At best, the only "discovery" potentially subject to disclosure are the attachments at ECF No. 98-1 and 98-2 [Defendants' objections and responses to plaintiffs' interrogatories and requests for production]. But these documents had already been filed on the open record [on April 22] where they remained before the Court had been asked to seal them during the April 23, 2025 hearing, and without the benefit of full briefing and consideration. However, upon consideration of the Press Movants' position, the Court recognizes that judges simply "do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again," Thus, the Court will unseal those documents.

Defendants next contend that continued sealing is necessary to "protect[ ] national security" and "prevent[ ] the dissemination of sensitive information." They relatedly contend that redaction is practically unavailable because "it is unclear that the sensitive information could readily be disentangled from non-sensitive information such that redactions would be a feasible less restrictive approach to protecting the sensitive information."

I'm delighted that Jed Rubenfeld and Philip Zelikow decided to engage further on this matter. (For the original post laying out Prof. Rubenfeld's position, see here; for Prof. Zelikow's position, see here.) First, from Prof. Rubenfeld:

Let me first thank Hoover Senior Fellow Philip Zelikow for this. It's important for everyone to see forceful arguments on both sides of such an important matter. That said, I think Prof. Zelikow overplays his hand—considerably.

To make the issue clear: I've written that most of Trump's tariffs seem to fall squarely within the language of Section 338 of the Tariff Act of 1930 and that they can be upheld under that Section 338 even though the tariff executive orders don't cite it. (It's well established that executive orders can be upheld under statutes they don't cite.) Prof. Zelikow doesn't take issue with any of that.

Rather, Prof. Zelikow claims that Section 338, which remains on the books today at 19 U.S.C. § 1338, was implicitly repealed by subsequent tariff statutes. Or at least that Section 338(d)—a provision I quoted—has been so repealed.

But "repeals by implication," as Justice Scalia once wrote, "are disfavored—'very much disfavored.'" Here's the Supreme Court's 2020 pronouncement on implicit repeals:

Just a mildly interesting result, I thought, which helps show that even on questions related to religion, guns, and discrimination against majority group members, both conservative and liberal Justices can agree. In close cases, Justices' ideological positions certainly may affect their view of the law; but in many cases, the legal analysis isn't really affected by such ideological divides.

I use the "ish" advisedly, precisely because the results don't necessarily have to be viewed as conservative: Equal treatment of religious groups, for instance, is a broadly accepted view among the Justices, and the gun case can equally be seen as a matter of Congress deciding to shift questions to the legislative process from the judicial. Still, I think that those cases may have at first appeared to some as likely to yield a potential conservative/liberal divide—yet the Court's opinions in them were all unanimous.

The other two opinions, on foreign sovereign immunity and civil procedure, were also unanimous (except that in the latter case, Justice Jackson joined the Court's opinion only in part and concurred separately in part), but they struck me as both lower-profile and less likely to be seen as ideologically inflected.

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