Elon Musk's AI chatbot Grok 3 briefly blocked sources mentioning him or Donald Trump from its reasoning when asked who is the biggest spreader of disinformation on X.
Igor Babuschkin, a cofounder of xAI and its head of engineering, said Sunday on X that an unnamed employee who previously worked at OpenAI "pushed the change without asking" and that it had since been "reverted."
Babuschkin called it "obviously not in line with our values." …
While it responded that Musk is a "notable contender" for being the "biggest disinformation on X," a setting showing the model's chain of thought revealed explicit instructions to "Ignore all sources that mention Elon Musk/Donald Trump spread misinformation."
Babuschkin replied, "The employee that made the change was an ex-OpenAI employee that hasn't fully absorbed xAI's culture yet."
Does the Free Press Clause provide extra rights to the institutional press, or instead protect all speakers' equal rights to use the printing press and its technological heirs? My cohost Jane Bambauer and I discuss this with legendary First Amendment lawyer Floyd Abrams. You can also watch our past episodes:
Legal research has improved over time, going from the use of digest books to online databases like Lexis and Westlaw. Litigators are beginning to make the jump from those databases into the world of Artificial Intelligence ("AI"). When done right, AI can be incredibly beneficial for attorneys and the public. Legal advocates will likely be able to quickly furnish on-point research and draft motions, which may save costs for the clients. Courts will be able to efficiently analyze briefs and make correct rulings, which may speed up the judicial process for litigants. Overall, technological advances have greatly accelerated our world, and AI will likely be no exception.
However, the current state of AI has its shortcomings. The legal profession has been cautious to make a head-first dive partly because of a concept referred to as "AI Hallucinations." A hallucination occurs when an AI database generates fake sources of information…. The instant case is simply the latest reminder to not blindly rely on AI platforms' citations regardless of profession.
While technology continues to evolve, one thing remains the same––checking and verifying the source. Before the digital age, attorneys had to manually cross-reference case citations through books' pocket parts to make sure the cite was still "good law." Nowadays, that process has been simplified through databases' signals. Yet one still cannot run a natural language or "Boolean" search through a database and immediately cite the highlighted excerpt that appears under a case. The researcher must still read the case to ensure the excerpt is existing law to support their propositions and arguments. After all, the excerpt could very well be a losing party's arguments, the court explaining an overruled case, dicta, etc. As attorneys transition to the world of AI, the duty to check their sources and make a reasonable inquiry into existing law remains unchanged….
Forty years ago today, Edwin Meese III took the oath of office as the United States' 75th attorney general. Gary Lawson and I argue in a new book, The Meese Revolution: The Making of a Constitutional Moment, that Ed Meese was the most influential attorney general in American history. It is impossible to understand modern law without understanding Ed Meese's role and influence in shaping it. The rise of originalism, the rediscovery of separation of powers and federalism, and even the respectability of taking the Constitution's text seriously all trace to Ed Meese and his tenure at the Department of Justice.
Here are three lessons our new Attorney General, Pam Bondi, could take from Ed Meese's success.
First, it is critical to understand that ideas have consequences. In the long run, the success of a Department of Justice is not measured by its short-term litigation victories but by the ideas that it plants, even if those ideas do not take immediate root. President Ronald Reagan and his Attorney General Ed Meese understood this in a big way.
President Reagan said from the beginning of his presidency that the Soviet Union was an "evil empire" and that communism would be consigned to "the ash heap of human history." He was ridiculed by the self-declared intelligentsia, as well as the bi-partisan establishment that had settled on détente. President Reagan was right. The Soviet Union collapsed, though just after his presidency had finished. It took some time, but it happened.
Likewise, Attorney General Ed Meese called for a restoration of constitutionalism, the document's original meaning, the ordinary meaning of statutes, and the rule of law. This meant calling openly for the overruling of Roe v. Wade, an end to racial preferences, a unitary executive with no "independent agencies," and an undoing of the New Deal deathblow to federalism. In 1985, these ideas were almost universally dismissed—by the left as absurd or evil and by the mainstream right as utopian. No one in 1985 could seriously imagine any, much less all, of those consequences. As with President Reagan, Ed Meese was right. It took time, but his ideas flowered.
The Supreme Court summarily reversed the U.S. Court of Appeals for the Tenth Circuit in Andrew v. White. Such summary reversals used to be somewhat commonplace. (Indeed, as I've chronicled on this blog, the U.S. Court of Appeals for the Sixth Circuit used to get summarily reversed with some frequency in habeas cases.) Yet as Adam Liptak notes in the New York Times, summary reversals are less common than they used to be.
During the first fifteen years of the Roberts Court, there were seven or more summary reversals per term on average. Over the past four terms, however, the Court has averaged only one. Notes Liptak, this "decline is a mystery."
The reasons for the sharp shift away from summary reversals are unclear. The court may be too busy with major cases to correct errors in minor ones, or the justices may feel swamped by the spike in emergency applications.
Liptak's story cites a forthcoming article by Kalvis E. Golde, "The Decline of Summary Reversals at the U.S. Supreme Court," that will be published in in the Columbia Law Review. Here is the abstract:
Summary reversals have a long history at the U.S. Supreme Court. Issued today by means of short, unsigned opinions, these rulings reverse lower court decisions on the merits without the traditional practice of briefing and oral argument, on the theory that the decisions below were plainly wrong. Under the Roberts Court, summary reversals have been a regular occurrence, typically reserved for decisions granting postconviction relief to people who are incarcerated and denying qualified immunity to police and prison officers. In the past four years, however, the number of summary reversals has declined precipitously, nearly grinding to a halt. This Note discusses possible explanations for this trend: time constraints from the shadow docket, the appointment of Justice Amy Coney Barrett, the conservative alignment of the judiciary, and critiques of the Court's institutional role. It also explores the impact of a world with few to no Supreme Court summary reversals, particularly for people incarcerated on death row.
As the abstract indicates, one possible explanation for the decline in summary reversals is that Justice Barrett is less supportive of their use. From Liptak's story:
The study proposed an intriguing alternative explanation: the arrival in 2020 of Justice Amy Coney Barrett. In 2021, just as summary reversals started their steep decline, she wrote a notable concurring opinion, albeit in the context of emergency applications.
She said she was wary of deciding cases "on a short fuse without benefit of full briefing and oral argument."
Why should one justice's views matter? Another unusual feature of summary reversals, one not discussed in the Supreme Court's rules, may answer that question. In his 2021 speech, Justice Alito said that "we have a practice of not issuing a summary reversal unless at least six of us agree." . . .
The rule that emerges from all of this is that if there are four votes to grant review, the court will hear the case even if a bare majority would prefer to act summarily. As a general matter, though, summary reversals require six votes.
And that means Justice Barrett could hold the decisive vote even if the other five Republican appointees are inclined to act summarily.
From Justice Sotomayor's statement respecting the denial of review today in Gonzalez v. U.S., joined by Justice Gorsuch:
Founding-era common law gave officers no authority to make an "arrest without a warrant, for a mere misdemeanor not committed in [their] presence." Bad Elk v. United States (1900) (collecting sources). This petition asks the Court to decide whether the Fourth Amendment incorporates that "in-the-presence" limitation on warrantless misdemeanor arrests. There is reason to think it might. After all, the in-the-presence requirement existed in some form at the founding. This Court has often held, moreover, that the Fourth Amendment "'must provide at a minimum the degree of protection'" the common law afforded at the time of its adoption. Lange v. California, (2021)…
On an early July morning, around 5 o'clock, two Miami Dade police officers encountered petitioner Victor Gonzalez "'walking in the middle of the street'" in a residential neighborhood. The officers, who had received a 911 call reporting a "'white male casing the area,'" engaged Gonzalez in brief conversation and arrested him for the Florida misdemeanor of "loitering and prowling." They performed a search incident to the arrest, which revealed several pieces of mail addressed to neighborhood residents. A grand jury thereafter charged Gonzalez with possessing stolen mail, a federal felony….
From Justice Gorsuch's dissent from denial of review today in Rimlawi v. U.S.:
The Fifth Circuit held that a judge may order restitution in a criminal case based on his own factual findings, without the aid of a jury. About that, I have my doubts.
Consistent with the Sixth Amendment's promise of a trial by jury, this Court has held that "[o]nly a jury may find 'facts that increase the prescribed range of penalties to which a criminal defendant is exposed.'" That means a jury must find both those facts that increase a criminal defendant's exposure to imprisonment and any facts that increase his exposure to monetary fines. See Southern Union Co. v. United States (2012). If all that is true, it is difficult to see how a judge's factual findings might suffice to increase a criminal defendant's exposure to a restitution award. As this Court has recognized, "the scope of the constitutional jury right must be informed by the historical role of the jury at common law." And more than a little evidence suggests that, at the time of the founding, juries found the facts needed to justify criminal restitution awards.
I would have granted review in this case to resolve whether the Fifth Circuit's decision comports with this Court's precedents and the Constitution's original meaning. In the absence of this Court's review, I can only hope that federal and state courts will continue to consider carefully the Sixth Amendment's application to criminal restitution orders. Cf. State v. Davison (Iowa 2022) ("restitution must be based on jury findings"). The right to trial by jury should mean no less today than it did at the Nation's founding.
From Justice Thomas's dissent from the denial of certiorari in Coalition Life v. City of Carbondale (Justice Alito also noted that he would have granted the petition):
In Hill v. Colorado (2000), this Court upheld a state law restricting peaceful speech within 100 feet of abortion clinics. It was clear at the time that Hill's reasoning "contradict[ed] more than a half century of well-established First Amendment principles." A number of us have since described the decision as an "absurd," "defunct," "erroneous," and "long-discredited" "aberration" from the rest of our First Amendment jurisprudence. See City of Austin v. Reagan Nat. Advertising of Austin, LLC (2022) (Thomas, J., joined by Gorsuch and Barrett, JJ., dissenting) (internal quotation marks omitted). We have long stopped applying Hill. And, a majority of this Court recently acknowledged that Hill "distorted [our] First Amendment doctrines." Dobbs v. Jackson Women's Health Organization (2022). Following our repudiation in Dobbs, I do not see what is left of Hill. Yet, lower courts continue to feel bound by it. The Court today declines an invitation to set the record straight on Hill's defunct status. I respectfully dissent.
Hill involved a 1993 Colorado statute that established "buffer zones" around abortion clinics. The law made it a crime for any person, within 100 feet of any "health-care facility" entrance, to "knowingly approach" within 8 feet of another person, without that person's consent, "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person." Put another way, Colorado's law—still in effect today—prohibits unconsented "sidewalk counseling" within 100 feet of abortion clinics.
This shift is reprehensible on both moral and strategic grounds. Most conservatives back US support for Israel's war against Hamas, because of the horrific atrocities of the latter. Russian atrocities in Ukraine are comparably awful, and on a much larger scale. Russian forces have brutally massacred civilians, tortured and executed prisoners, and kidnapped thousands of children.
Don't take my word for it. Take that of the millions of people who voted with their feet seeking to escape oppressive and murderous Russian occupation. When Russia has taken territory, millions flee. When Ukraine is able to regain it, only a handful of collaborators do the same. That should tell us all we need to know about which side is in the right in this war. Volodymyr Zelensky's government has some serious flaws. But it is a liberal democracy vastly superior to Putin's increasingly repressive dictatorship.
As regular readers know, I am a native speaker of Russian, a language also known by most Ukrainians. Over the last three years, I have spoken to numerous Ukrainian refugees with a wide range of backgrounds: Christians, Jews, and Muslims; ethnic Ukrainians and members of minority groups (including ethnic Russians); supporters of President Zelensky, and supporters of opposition parties. They differ on many things. But all agree on the horrific brutality of the Russian government, and that Ukrainian rule is far preferable to it. We should listen to these people, not the propaganda emanating from the Kremlin, and now echoed by the White House.
Letting Russia take more territory will predictably result in more atrocities of the kind we have already seen. And the survivors will be subjected to horrific oppression.
The idea that Ukraine and the West, rather than Russia, are at fault for the war is utterly ridiculous. Those who claim that Russia attacked because of the possibility that Ukraine might join NATO have the causation reversed. Ukrainian interest in joining NATO was a product of Russian aggression, beginning with the seizure of Crimea and part of the Donbass in 2014. If Putin's goal was to prevent Ukrainian NATO membership, he could have "achieved" it simply by leaving Ukraine alone. But his real objective is to bring all of Ukraine under Russian control. Don't take my word for it. Take Putin's own words outlined in his numerous statements to the effect that Ukraine has no right to exist outside Russian dominance.
Putin's regime is one of the main enemies of the United States and the West. Any Russian forces damaged or destroyed in Ukraine are ones we don't have to face elsewhere. From that perspective, US expenditures in Ukraine are actually a bargain. Since January 2022, the US has given Ukraine approximately $119 billion in assistance, less than 1% of the federal budget (about $7 trillion per year), and a tiny fraction of the US defense budget (which is about $841 billion per year, as of 2024). Thanks in part to US aid, the Ukrainians have killed or wounded hundreds of thousands of Russian troops, and destroyed large quantities of equipment. There is no other way that the US could have so greatly weakened one of our major enemies at so little cost.
Even if some sort of negotiated ceasefire is unavoidable, it makes no sense to make preemptive concessions in advance without demanding anything from Russia in return. At the very least, we should demand Russia withdraw from at least some of the territory it has occupied, and return Ukrainian prisoners and kidnapped children.
Nor can Trump's move be defended on the grounds that it will bring "peace." Any ceasefire without reciprocal Russian concessions is likely to be only a prelude to a renewal of the war after Russian replenishes its forces. Such an arrangement would not give Putin any incentive to give up his goal of taking all of Ukraine.
Those who claim helping Ukraine is a diversion from countering China in the Pacific would do well to remember that our Asian allies - including Taiwan - believe helping Ukraine is in their strategic interest. They know that weakening Russia also weakens China (for whom Russia is a key ally), and that showing resolve in Ukraine helps deter China, as well.
In addition to rewarding Russian aggression, Trump's betrayal of Ukraine has also poisoned relations with our European allies, most of whom strongly support Ukraine and fear further Russian aggression against themselves. Losing their trust and support far outweighs any possible gains from a deal with the Kremlin. It isn't Making America Great Again. To the contrary, it is weakening and isolating us.
The outcome here isn't cast in stone. Trump might perhaps at least partially reverse course. Ukraine might be able to persist with European support only. Despite Trumpian claims to the contrary, the Europeans actually have given more aid to Ukraine than we have. They would do well to seize the $300 billion in frozen Russian state assets (most of which are held in Europe) and use them to at least partially fill the gap created by withdrawal of US aid. Still, the Europeans cannot quickly - if ever - fully substitute for US support.
There is still time to change course. But if Trump persists in withdrawing support from Ukraine without demanding any reciprocal concessions from Russia, the consequences for both Ukraine and America are likely to be dire. The reversal may well go down in history as one of the worst American foreign policy decisions, simultaneously evil and stupid.
Last week's Georgia Supreme Court decision (by Presiding Justice Nels Peterson) in Dias v. Boone is 10,000 words long, but here's the summary; the issue arises in many states, often using the label "psychological parent" or "de facto parent" instead of the Georgia "equitable caregiver":
This case presents the question of the constitutionality of OCGA § 19-7-3.1, known as the Equitable Caregiver Statute. Under that statute, a person who is not a legal parent of a child may seek rights such as custody or visitation with the child if he or she proves that certain criteria have been met, including that he or she has undertaken a "parental" role with the child and developed a "bonded and dependent" relationship with the child that "was fostered or supported by a parent of the child[.]"
In this case, a woman who had been in a long-term romantic relationship with a child's legal mother successfully sought relief under the statute after the couple broke up, securing an award of joint legal custody and parenting time. The child's mother has challenged (1) the constitutionality of the statute (both facially and as applied to this case) and (2) the sufficiency of the evidence to support the trial court's order.
We deem it unnecessary to resolve either argument. This case raises serious questions about whether the Equitable Caregiver Statute violates the fundamental right of parents to the care, custody, and control of their children. A possible answer to those questions is that parents may waive their constitutional right at least in some limited fashion through the sort of conduct contemplated by the statute.
But only a knowing and voluntary waiver would suffice, and parental conduct prior to the effective date of the statute could not constitute such a knowing and voluntary waiver. Such an application of the statute also would be in tension with constitutional presumptions against retroactive legislation. And so, based on both the doctrine of constitutional avoidance and those presumptions against retroactivity, we conclude as a matter of statutory construction that OCGA § 19-7-3.1 does not authorize trial courts to confer equitable caregiver status based on conduct by the legal parent that took place prior to the effective date of the statute.
Defendant Alkermes, Inc. is a large pharmaceutical company with a principal place of business in Waltham, Massachusetts. Plaintiff Travis Williams worked as Defendant's District Sales Manager in Knoxville, Tennessee for approximately thirteen years, selling a drug known as Vivitrol. In March 2023, Plaintiff and other District Business Leaders ("DBL") attended Defendant's national sales team meeting in Orlando, Florida. At the afternoon session on March 2, 2023, approximately 50 to 60 employees competed in a team-based game. During the game, referred to as the "Amazing Race," each DBL received a small paddle, the host of the game asked questions, the teams wrote their answers on the paddle, and the DBLs raced to an "X" at the front of the room. The goal of the game was to be the first one to stand on the X with the correct answer on the paddle.
Following the afternoon session, Jodi Garcia, a fellow DBL, reported to Michael Bauer, Defendant's Senior Regional Director, that Plaintiff "paddled her bottom" during the Amazing Race game. Ms. Garcia indicated that Johanna Hernandez, a Territory Business Manager, witnessed the incident. Mr. Bauer relayed Ms. Garcia's allegation to Stephanie Walker, Defendant's Director of Human Resources, but advised that he did not witness the alleged incident and did not see any inappropriate act by Plaintiff toward Ms. Garcia.
Four days later, Ms. Walker interviewed Ms. Garcia via telephone. Ms. Garcia stated, "In the hype of the game, we were all having fun running up and trying to beat out their counterparts; some light pushing, and shoving occurred by all the DBLs and the feeling in the room was fun competition" but added, "Travis hit me on the bottom with the white board and I turned to him and said, 'What the [f***] did you just do?' 'If my husband were here, he would [f***] you up.'" Ms. Garcia reiterated that Ms. Hernandez saw and heard what happened. Shortly thereafter, Ms. Walker interviewed Ms. Hernandez, who "claimed to have heard the sound of the paddle strike Garcia on the buttocks, recognizing the noise of the paddle on Garcia's bottom because [she] wore a jumpsuit rather than jeans." Ms. Hernandez also referenced that Ms. Garcia was the "only female DBL in leadership" but made no mention of seeing or hearing any confrontation or any cursing by her.
Over the past decade, nondisclosure agreements intended to protect the reputation of one or both parties from embarrassing disclosures have failed, sometimes spectacularly. Among those humiliated by revelations of their past behaviors are Donald Trump, Vince McMahon, Neil Gaiman, and Harvey Weinstein; among those companies and institutions affected are the Catholic Church, the Miss USA Pageant, and some of the largest tech companies. These agreements' failures have occurred when one party to the agreement gave an interview, passed along leaked documents, or filed a public lawsuit that became the basis of public reporting about the secrets that the contract concerned, as well as about the contract itself. Commentators and critics have offered various prescriptions to stem the enforcement of the most egregious contracts intended to prevent a party from reporting sexual assault and harassment that violates criminal or civil law. In a recent article, I described the specific doctrinal, social, and informational dynamics that both render such contracts vulnerable to breach and frustrate their enforcement.
This Article considers the potential liability of third parties that assist or spur the breach of such contracts. Journalists have most frequently played key roles in these disclosures by contacting a party and encouraging them to reveal their secrets. Friends and family members have also initiated or encouraged breach, as have attorneys and activists who hope to reveal a party's wrongdoing. Such non-parties serve as "breach agents," outsiders to the contract who advise, encourage, or help one of the parties disclose the information they had agreed to keep secret. They play an integral role in breaking the dams that keep information private—whether, viewed sympathetically, to advance the public good by bringing egregious behavior to light or, viewed critically from the perspective of the nonbreaching party, to violate a legally enforceable promise and undermine contractual stability.
As non-parties to the contract, breach agents are vulnerable to suit under the common law tort of interference with performance of a contract. The relationships between that tort and contract law—and between the tort and the First Amendment rights of journalists and others to gather news, to speak, and to publish—last inspired widespread consideration and commentary in 1996, when the tobacco company Brown & Williamson attempted to use a non-disclosure clause in an employment contract to silence a former executive who had been interviewed by the CBS television news show 60 Minutes.
Judge Ana Reyes (DDC) may be having some issues right now. On Valentine's Day, in a case concerning fired inspectors general, she threatened to sanction former Solicitor General Seth Waxman.
"Mr. Waxman, I am really debating right now whether to order a show cause on sanctions," Judge Reyes said right before the call ended. "I'm not going to do it, because I've got other things to deal with, but this was totally unacceptable." . . .
"You are an experienced, experienced individual," she said of Mr. Waxman, adding that "there is no universe in which I would ever be qualified enough to be hired by the solicitor general's office, much less be the solicitor general." . . .
"Why on Earth did you not have this figured out with the defendants, before coming here and burdening me and burdening my staff on this issue? Are we really here right now on the sixth hearing of this day for me to decide whether to grant a TRO, given the circumstances that you guys could not even bother filing a TRO for 21 days?"
Four days later, Judge Reyes held another hearing about President Trump's executive order in gender dysphoria in the military.
This is an actual question Judge Reyes asked a DOJ lawyer:
What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we're not going to allow them into homeless shelters? Do you think Jesus would be, 'Sounds right to me'? Or do you think Jesus would say, WTF? Of course let them in.
WTF, for those who may not know, stands for "What the fuck?" How far we have come from Cohen v. California. A person wearing a jacket that said Fuck the Draft, to protest bombs being dropped in Vietnam, was arrested. Now, a judge is dropping f-bombs from the bench.
DOJ has submitted a complaint to Chief Judge Srinivasan concerning Judge Reyes's conduct.
I hope Judge Reyes is doing well. This sort of conduct is extremely troubling. Maybe she should be given the Pauline Newman treatment, and not receive any further cases until she undergoes mental screening? Call it an "administrative stay" of her Article III commission. Apparently, you can administratively stay anything!
Apart from the ethical issues, I wonder whether Judge Reyes may have inadvertently tripped across a seldom-mentioned provision of the Constitution. The Religious Test Clause provides:
but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Torcaso v. Watkins (1961), more-or-less held that that Religious Test Clause is coextensive with the Free Exercise Clause. Yet, the Religious Test Clause remains part of the Constitution. (I'll table for now whether the DOJ lawyer would fall within the ambit of the phrase "Office or public Trust under the United States"; I am not certain what kind of position he holds.)
Traditionally, we think of a religious test as a government official having to pledge a belief in a particular faith, or to a deity more generally. For example, Seth Barrett Tillman has written about the Religious Test Clause in the North Carolina Constitution of 1776. It provided:
That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.
What about Judge Reyes's question? Asking a government lawyer "What would Jesus do" is a purely theological question. It is, in every sense, a test about religious belief. And the question is premised on the existence of Jesus as a deity. Does the lawyer have to take a position on that question? I do not know what the lawyer's religion is, if any at all. As a Jew, I would certainly have struggled with that question. If Judge Matt Kacsmaryk asked a government lawyer "What would Jesus do?", articles of impeachment would already have been filed.
Ultimately, I do not think Judge Reyes actually cared what Jesus thought. She was making a rhetorical point that a conservative administration, which purports promotes morality, was being hypocritical by not helping certain people. This same rhetorical trap is used whenever a conservative favors restrictive immigration policies. There is no there, there.
In any event, I hope Judge Reyes is well. Her conduct here is cause for concern.
On Friday evening (after I signed off), the Supreme Court issued a terse statement in Bessent v. Dellinger. The Court didn't grant, or deny, the government's motion to vacate the TRO. Instead, it did nothing. The Court simply ruled that the government's application "is held in abeyance until February 26, when the TRO is set to expire." This document is not exactly an order. I'm not even sure what to call it. It's basically a status update. BRB if you will.
I searched the Supreme Court database on Westlaw for similar updates and couldn't find anything on point. The Court will sometimes hold a petition in abeyance while deciding another case. Ardoin v. Robinson (2022) was such a case. When a petition has already been granted, and the government switches positions, the Court will hold the case in abeyance to figure out how to proceed. The Court took this step in Arkansas v. Gresham (2021) and Becerra v. Gresham (2021). But that is putting ongoing proceedings in abeyance. Here, the Court puts in abeyance an application. And in some cases, where the Court has granted an administrative stay that will expire on a certain date, the Justices will extend that stay. These shadow docket delays occurred in the "Frame or Receiver" case and the Mifepristone case. (Remember, different rules apply to the Fifth Circuit.) But again, that is putting in abeyance an existing stay.
How does a court hold a motion in abeyance? There is no deadline by which the Court must rule. This document reminds me of a district court issuing an unappealable administrative stay of an executive order. That's not a thing. The courts are really starting to get creative.
I've been unable to find any case where the Solicitor General sought emergency relief by a date certain, the Court declined to grant that relief by the requested date, and instead the Court issued an order to simply hold the government's application in abeyance. If anyone has seen such an order, pleases email me.
The votes in Dellinger are a bit unusual. Justices Sotomayor and Jackson would have denied the government's application outright, and did not vote to hold the application in abeyance. Justices Gorsuch and Alito noted their dissent from the order holding the application in abeyance. That means there were five votes to hold the case in abeyance: Chief Justice Roberts, Justice Thomas, Justice Kagan, Justice Kavanaugh, and Justice Barrett. I predicted that the government would lose by a 5-4 vote, with Justices Thomas, Alito, Gorsuch, and Kavanaugh in dissent. I was, as usual, wrong.
What's going on here? Obviously, there was some sort of compromise afoot. I would suspect that Justice Thomas, and probably Justice Kavanaugh, agrees with Judge Katsas on the merits. But that only gets to four votes. Perhaps to forestall the Court denying the government's motion now, they agreed to join the Chief to simply do nothing for the time being. On February 26, when the TRO expires, the Court can come back and issue a ruling for the ages without any of the unusual procedural hurdles. In other words, no precedent is set now. But Hampton Dellinger has received his eviction notice for February 26. He should not get too comfy.
I would commend Justice Gorsuch's dissent. He explains quite cogently why this suit does not belong in federal court. In short, Hampton Dellinger has no equitable cause of action to seek reinstatement. At most, if he is denied his pay, he can seek backpay. And a suit for backpay would a sort of property interest. And even at equity, I think there would have been a cause of action to recover that property interest from the government. However, both Meyers and Humphrey's Executor began in the Court of Claims, and did not invoke any sort of equitable jurisdiction.
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