Over the Summer, the Supreme Court will grant miscellaneous orders as needed for individual cases. And usually, towards the end of July and the end of August, the Court issues a formal orders list. Most of the entries are denials of rehearing or orders in pending cases. But today's order list had a surprise entry: a cert grant!
25-246 JOUPPI, KENNETH J. V. ALASKA The petition for a writ of certiorari is granted.
The question presented is "whether, in determining whether a fine contravenes the Excessive Fines Clause, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant's wrongdoing."
This case has an unusual posture. The cert petition was filed in August 2025. On November 25, the case was distributed for the December 12 conference. No action was taken on the petition for some time. It appears the Justice may have been holding the case pending the resolution of Pung v. Isabella County, which was decided on June 23. On June 25, the Petitioner filed a supplemental brief arguing that Pung "proved largely irrelevant to this case, plenary review continues to be warranted" and "casts no doubt on the cert-worthiness of the petition here." Respondent did not file anything. The case was then conferenced for the June 29 cleanup conference. But there was no grant on June 30, along with the other cases.
Now, nearly three weeks later, there is a grant.
What happened here? Did the Justices tentatively decide to grant on June 29, pending some further internal deliberations? Maybe a Justice wanted to take one more look before granting? Did the Justices (gasp!) talk about the case over the summer break? Maybe they just wanted to get the case on the docket to fill up the fall calendar?
This process is very unusual.
SCOTUSBlog identified a few other instances where the Court granted a case over the summer. For example, in August 2012, cert was granted in Chafin v. Chafin. But this was a case distributed for the long conference that was granted earlier. Did the Justices find time amidst the Obamacare summer to talk about the case?
SCOTUSBlog identified two other cases granted in August 2021, Johnson v. Arteaga-Martinez and Garland v. Gonzalez. Both cases were conferenced at the July 1 conference and granted about a month later.
Somewhat relatedly, next week I will have a essay published arguing that the Court should eliminate the summer recess, in part, to avoid cert petitions piling up over the summer. Today's orders list is a useful data point!
Tyler Austin Harper of the Atlantic has a recent X thread in which he challenges progressives to recognize that academia is often closed to people with perspectives that diverge from progressive orthodoxy:
Here's the brass tacks question progressive academics seem to want to avoid answering: does anyone seriously believe that a geographer critical of immigration would be likely to be hired by an elite American university? Or would those views put them at a profound disadvantage?
What about a pro-life ethicist whose work argues that abortion is murder, and who believes that bodily autonomy arguments do not override moral duties to the fetus? Would they be hirable in any Gender Studies department at any elite (non-religious) university in America? ….
Even in recognizing the problems, however, Harper adds in some common tropes that serves to understate it. Here's the first one: "And of course conservative views are well-represented at certain places (e.g. George Mason) and in certain law schools and business schools."
Conservative views are not "well-represented" at my university. If we include libertarian/free market views within the scope of "conservative," they are well-represented at the law school and the economics department. But these two units are together a tiny (albeit publicly prominent) part of a university that serves forty thousand students. And to the extent the faculty's views are salient, the rest of the university's faculty is overwhelmingly left-wing, just as one would expect at a typical state university in the suburbs of a major left-leaning metro area. And if anything, administrators even moreso, as again is typical.
So one can't properly use my university as the exception that proves the rule; it's rather an example of a university that has two small enclaves of non-progressive-dominated thought. Don't expect to find even one analogue to Todd Zywicki or Tyler Cowen in the History, Anthropology, Cultural Studies, Sociology, and other departments.
Harper also writes: "Universities and departments have to be more open to a wider spectrum of worldviews. (That includes viewpoint diversity in departments like economics!)"
This implies that Harper believes the myth, which I encounter all the time, that economics departments are bastions of free market, "right-wing" thought. It's true that economics departments are more ideologically balanced that other university departments. But various studies conducted from 2003 to 2016 showed that the ration of Democrats to Republicans ranges from somewhere between 3 and 4.5 to 1. There is no reason to believe it's become more balanced since.
Nor is it the case that economics professors are libertarian on economics, but progressive on everything else. As a study published in 2007 found:
People often suppose or imply that free-market economists constitute a significant portion of all economists. We surveyed American Economic Association members and asked their views on 18 specific forms of government activism. We find that about 8 percent of AEA members can be considered supporters of free-market principles, and that less than 3 percent may be called strong supporters. The data are broken down by voting behavior (Democratic or Republican). Even the average Republican AEA member is "middle-of-the-road," not free-market.
So kudos to Harper for stating and acknowledging the problem. But the ideological imbalance is even worse than he suggests. And contrary to what some apologists would have you believe, this is not simply the product of progressive ideas outcompeting non-progressive ones; at this point, a right-leaning college senior would have to be career-suicidal to contemplate pursuing an academic career in fields like anthropology or history, unless he wanted to keep his views to himself, in both his scholarship and personal interactions, indefinitely.
Last week, in Rutledge v. Walgreen Co., the Second Circuit revived failure-to-warn claims under state law relating to maternal use of Tylenol during pregnancy and its alleged links to autism in children. The district court had rejected the plaintiffs' expert testimony in a careful, extensive Rule 702 opinion, and the Second Circuit reversed that ruling.
I am hardly an expert on the underlying subject matter in general, or how it was presented to the district court in particular, and have no desire to become one, so I can't claim to know whether the district court was correct as an initial matter.
Nevertheless, in reading the opinion, I saw three errors in the Second Circuit's legal analysis.
First, the Court leads off its analysis by quoting the text of Rule 702, but then proceeds to cite Daubert v. Merrell Dow Pharmaceuticals and other cases from before the 2000 and 2023 amendments to the Rule. It also refers to its the analysis it is undertaking as a "Daubert inquiry."
That doesn't inherently mean that the court is going to undertake an incorrect legal inquiry, but it does suggest that the court has not fully absorbed the fact that "Daubert" is no longer the operative standard, and any caselaw or analysis that conflicts with the 2000 and 2023 amendments (the latter intended to admonish wayward judges who were declining to enforce the 2000 amendment) is void.
Second, my read of the opinion is that as a practical matter it undertakes de novo review, though the court does give very brief lip service to the correct standard of review, abuse of discretion. Abuse of discretion means that the district court's opinion may only be reversed if its reasoning was "manifestly erroneous," not if the Second Circuit simply disagreed with its conclusions, as seems to be the case here.
Third, and I think most important, the court explains its grossly incorrect understanding of how the district court was supposed to approach its Rule 702 review: "The gatekeeping role of the district court is to shield the jury from testimony by even qualified experts that is outside the boundaries of ordinary scientific discourse and thus constitutes 'junk science.'"
That is simply wrong. There is nothing in the text or history of Rule 702 that suggests that courts may only exclude testimony from qualified experts if it's so outside that the boundaries of science that it can reasonably be deemed "junk science."
Recall the wording of the text. Expert testimony is admissible if:
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.
That is not a "let-it-all-in unless it's junk science" standard. That, instead, is a "carefully scrutinize the testimony for reliability" standard. Much unreliable scientific testimony falls far short of "junk science," but still fails to meet the underlying standard.
Overall, the trend in federal courts since 2023 regarding Rule 702 seems positive. But the Second Circuit in general, and Judge Guido Calabresi--who, I should say, I love and respect from his time as the dean when I attended Yale Law School--in particular, have been generally recalcitrant about applying first Daubert/Joiner and then amended Rule 702 to uphold the exclusion of plaintiffs' evidence in major tort litigation. Hopefully, this backsliding will not start a trend.
In an update to my post on the Hawaii Supreme Court's lawlessness, I pointed out that the Hawaii legislature actually imposed a duty on all state officials to abide by the "Aloha Spirit."
§ 5-7.5 "Aloha Spirit". (a) "Aloha Spirit" is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, "Aloha", the following unuhi laulā loa may be used:
"Akahai", meaning kindness to be expressed with tenderness;
"Lōkahi", meaning unity, to be expressed with harmony;
"ʻOluʻolu" meaning agreeable, to be expressed with pleasantness;
"Haʻahaʻa", meaning humility, to be expressed with modesty;
"Ahonui", meaning patience, to be expressed with perseverance.
These are traits of character that express the charm, warmth and sincerity of Hawaii's people. It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi. "Aloha" is more than a word of greeting or farewell or a salutation. "Aloha" means mutual regard and affection and extends warmth in caring with no obligation in return. "Aloha" is the essence of relationships in which each person is important to every other person for collective existence. "Aloha" means to hear what is not said, to see what cannot be seen and to know the unknowable.
(b) In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit". [L 1986, c 202, § 1]
In my post, I joked that Texas should just instruct all of its officials to contemplate and reside with the life force and give consideration to "Christ's Spirit." Of course the response is that such a law would violate the Establishment Clause. But why should the Hawaiian statute fare any differently?
This statement has all the hallmarks of a traditional religion. I realize Hawaii used the word "spirit" in a secular sense, but a key attribute of many religions is the notion of a "spirit" that is imbued in people from some higher power.
The statute states that the Aloha Spirit "was presented as a gift to the people of Hawaiʻi." Presented by whom? That certainly suggests there is some power, apart from the Hawaiian people, who granted this spirit. That sounds quite a bit like many faiths. One might say that Hawaiians were endowed by their creator with an inalienable spirit.
The statute also imposes a near-complete moral code, requiring people to be kind and understanding to others. Sounds a lot like the Golden Rule. Indeed, I applaud the Hawaiian legislature for distilling an entire nondeist religion into a few paragraphs. Rabbi Hillel would be proud that the entire faith could be recited while standing on one foot.
The brain is hardwired to believe in a higher power. Even people who reject formalized religion still seek some sort of spirituality, even in nondeist terms. Perhaps they believe in "Mother Nature" or something else. For Hawaii, the higher power is the "Aloha spirit."
The obvious question, then, is whether the "Aloha Spirit" violates both the Guarantee Clause and the Establishment Clause? Hawaii may argue that the "Aloha Spirit" is not an actual religion. That is an argument I would gladly receive. I've been arguing for some time that the courts need to be more diligent about determining what is, and is not a religion. If the courts afford "most favored" status to religions, and grant exemptions to self-professed believers, the perverse incentive for people to manufacture false faiths becomes too strong.
From Quinteros v. Innogames, decided Friday by Ninth Circuit Judges Jacqueline Nguyen, Eric Miller, and Daniel Collins:
Penny Quinteros appeals the district court's dismissal of her third amended complaint asserting various claims based on harassment Quinteros says she suffered while playing defendants' online video game, Forge of Empires….
First, a bit of the factual backstory from the district court decision, by Judge Ricardo Martinez (W.D. Wash.) (some record links added):
For purposes of this Motion, the Court will accept all facts in the latest Amended Complaint as true. The Court will briefly summarize the relevant facts….
Plaintiff, using the moniker "TwoCents," played Forge of Empires "almost every day without interruption from 2016–2019 for over 10,000 hours of game play."
Plaintiff maintains that the game is psychologically addictive and that she became psychologically dependent or addicted. Plaintiff alleges that instead of warning players of the addictive nature of the game, InnoGames exploited players with "micro-transactions." Relying on representations made by InnoGames that the game was fair, Plaintiff sought to excel at the game. Her dependence on the game and/or desire to progress resulted in her spending over $9,000 on micro-transactions.
Around July of 2016, Plaintiff began experiencing gender-based harassment from other players, including some she alleges "were secretly InnoGames moderators, senior moderators, and community managers." These players and/or "staff members" accused Plaintiff of being a man and started to solicit Plaintiff's online friends and co-players to no longer engage with her socially or for game activities. Plaintiff pleads:
These other players, and secret InnoGames staff moderators, told the plaintiff that she had to prove she was a woman by sending a photograph of her breasts to them. They told her this was the only way they would stop harassing her. The plaintiff fell victim to this manipulation, and relying on statements from InnoGames and Julie Blan that the game was fun, fair, and the rules were enforced equally, sent a picture of her breasts (in a somewhat see-thru bra) to what she considered a friend and neutral third-party player, known as Gensmoky, via a screenshot link.
{Plaintiff alleges she registered a copyright for this photo of "her breasts in a somewhat see-thru bra" three years later, on September 3, 2019. The photo has been filed as an exhibit by Defendants. The Court denied a motion to seal this exhibit. That Order described the image as "a photograph depicting Plaintiff Ms. Quinteros' upper torso in an opaque, teal sports bra covering her entire chest." Where a sports bra would naturally dip down in front, Plaintiff tucked in a note covering all exposed skin. The note reads, "fuck off [unintelligible] Macy, DD, and the [unintelligible] Love, TwoC[ents]."}
From Barnes v. Scola, decided Thursday by Judge Richard Seeborg (N.D. Cal.):
Selena Scola is an actress, entertainer, and influencer. Scola began performing under the name Lexi Love in 2004 in adult films. Between 2004 and 2010, she starred in over 600 such films. During this time, she also worked as a featured dancer at night clubs across the country and was hired to help promote companies at industry expositions. She appeared at red carpet events, award shows, and conventions and guest-starred on radio talk shows.
In 2009, she became an advocate for safe sex in the adult entertainment industry and began speaking out about conditions under which she would not work on an adult film. Then, in 2010, Scola shifted from acting in adult films. She worked as a consultant on adult films and continued to attend industry events and appeared on radio shows but began expanding her work, again under the name Lexi Love, into independent films, television shows, commercials, video games, music videos, musical recordings and tours, film and podcast production, and other entertainment and influencer roles. Scola also grew and maintained a strong, monetized social media presence. She holds U.S. Trademark Registration No. 7,727,806 for LEXI LOVE in International Class 41, covering talent agency and management services, as well as entertainment performance services.
Cody Barnes is a professional drag performer who alleges she began using the name Lexi Love in 2009. Barnes also performed under the names Alexstacy Love, Lexi DVV Love, and Lexi V. Love—the latter of which she used as recently as 2021. Then in 2025, Barnes' fame grew with her participation in Season 17 of the popular show RuPaul's Drag Race. Barnes' casting was announced in December 2024, and the season aired between January and April 2025. Barnes, as Lexi Love, appeared in every episode. WOW produced Season 17, and Paramount aired it on MTV.
In December 2024, with the announcement of Barnes' participation in RuPaul's Drag Race, Scola learned of Barnes' use of the name and contacted Paramount's MTV and Barnes to inform them of her trademark rights. Yet, Barnes' use of the name continued. In August 2025, Scola sent cease and desist letters to Paramount, WOW, and Barnes. Barnes again continued to use the name and encouraged her fans to do the same, and Paramount and WOW continued to post content featuring Barnes as Lexi Love. Throughout this time, Scola sent takedown requests to social media platforms and third parties regarding Barnes' use of the LEXI LOVE mark.
Barnes's fame has diluted Scola's online presence. Scola has been tagged repeatedly on social media by users intending to tag Barnes, searches for Lexi Love return content about Barnes, and, as a result of Barnes' fame, Scola has lost business opportunities. Scola has sent numerous takedown requests regarding Barnes' content and accounts using the Lexi Love name.
Litigation ensued, Scola claimed that Barnes infringed her trademark, and the court allowed the claim to go forward:
This case was argued and deliberated nine months before the Supreme Court granted cert in the Cook County case, but was decided two weeks after the cert grant.
The majority opinion was written by Judge Arianna Freeman, a Biden appointee. I concur with Ed Whelan that Freeman deserves some credit for taking this strong stand, and disqualifying herself from any future Supreme Court vacancy.
Ed also praises Judge Tamika Montgomery-Reeves, another Biden appointee, who joined the majority opinion. She too has taken her name off the SCOTUS short list. Yet, she joined the majority despite a reservation. Judge Montgomery-Reeves wrote a short concurrence that raises an important question of timing. She observes that on June 30, the Supreme Court granted certiorari to review AR-15 ban cases from Illinois and Connecticut. Judge Montgomery-Reeves writes, "the Supreme Court has granted certiorari in two cases considering constitutional challenges to statutes nearly identical to the one now before us." Judge Montgomery-Reeves could have voted to hold the cases pending the Supreme Court's resolution. But she didn't. Judge Montgomery-Reeves explained:
I see little reason to decide this case now and get out in front of the Supreme Court. But because the majority has decided to do so, I respectfully concur.
I am perplexed by these two sentences. If Judge Montgomery-Reeves thought there was no reason to decide the case now, she could have simply dissented from the court's judgment, without taking any position on the constitutional analysis. Indeed, Judge Krause's dissent faults her colleagues, including Judge Montgomery-Reeves, for "jumping ahead of the Supreme Court."
It seems just about every term, a circuit court decides an issue that is pending before the Supreme Court. In some cases, the resolution happens after oral argument. There is no hard-and-fast rule. I wrote about this issue in December 2025.
What happened in the Third Circuit? It is useful to look at the chronology.
The New Jersey case was argued before the three-judge panel on July 1, 2025, argued en banc on October 15, 2025, and decided on July 17, 2026. During the entire pendency of the en banc proceedings, Viramontes was stuck in docket purgatory. As I noted, the Court granted the AR-15 case after twenty-one relists over the course of six months. I am fairly certain that the judges Third Circuit expected these relists to result in a denial of certiorari, accompanied by a dissental. As a result, the judges of that court likely proceeded to write the majority and dissenting opinions, and waited until Viramontes would finally be resolved. Judge Montgomery-Reeves was likely prepared to join the majority opinion without reservation. She was "locked in," to use Justice Barrett's phrasing.
But in a surprise to me and others, the twenty-one relists yielded a grant. This shift created an opportunity for the dissenters to argue the case should be held. I'm sure there were some internal deliberations to flip enough members of the majority to put the case on ice until July 2027. For reasons only Justice Montgomery-Reeves knows, she decided to join the majority opinion, so it could be released right away. No one would have ever known if she took the path of minimalism, and simply dissented. Indeed, her vote was not necessary to form an en banc majority.
Perhaps the answer can be found in a footnote from the majority opinion. Judge Freeman wrote, "no party to these long-pending cases has asked us to hold our decision pending the Supreme Court's decision." But the en banc court never needs a request to hold a case indefinitely. En banc courts routinely sit on petitions forever. (Jon Adler recently noted that a case has been pending before the en banc D.C. Circuit for nearly two years.)
Finally, I'd like to commend Judge Paul Matey's scholarly concurrence. He is an extremely meticulous judge, and his opinion reads like a law review article. Take some time to read. It is a complete antidote to the lawlessness from the Hawaii Supreme Court. I'll take Matey's "Garden State Spirit" any day.
A colleague on an academic list asked if I agreed that the Holocaust wasn't unique, but just one of a series of modern genocides. Here is how I responded:
On the contrary, I'd say that
(a) the Holocaust was not unique only in that genocide is not unique;
(b) all genocides are unique, as each has its own causes and trajectory; and
(c) that there are unique aspects of the Holocaust that differntiate in ways that make it worth studying, for example (some of these are more important than others, but all are interesting):
(1) Unlike the typical genocide, it involved multiple countries, governments, and the participation of dozens of different cultural, religious, ethnic, and linguistic groups as perpetrators;
(2) it had the basis in almost 2k years of religion-based hatred, though its ultimate ideology was ironically explicitly anti-religious;
(3) it involved the active, enthusiastic participation of scientists and medical professions in what had been considred the single most advanced scientific nation in the world;
(4) it involved the active acquiescence of the judiciary in the country that led the charge against notions of inherent natural rights in favor of a pragmatic sociological jurisprudence.
And the factor that I think makes the Holocaust most interesting is that the standard genocide involves a longstanding real conflict between different national/religious/ethnic groups. The various Ottoman massacres of Christian minority groups, for example, culminating in the Armenian genocide, while obviously horrific and inexcusable, had their roots in non-imaginary Ottoman concern that its Christian subjects would, if given the opportunity, break free of Muslim/Turkish rule, violently if necessary (as of course happened after WWI, see Greece in particular).
In contrast, the conflict between Germans ("Aryans") and Jews ("Judeo-Bolsheviks") was almost entirely in the Nazi imagination. Sure, Jews were overrepresented among Communists. That's the grain of truth.
But (a) the vast majority of Jews, and especially German Jews, weren't Communists, and (b) even Communists didn't see Germans, as such, as an enemy, this only existed in the Nazi mind.
So while all nationalist conflcts are based to some degree in irrational mythos, the irrationality of the Nazi war on the Jews was off the charts. The Nazis inveneted a world in which "the Jews" writ large were plotting to undermine Aryan civilizaton in general, and German civilization in particular, so that they could run the world and turn it into a Judeo-Bolshevist empire.
The insanity of this worldview is best captured in the poignant Jewish joke: Nazi brownshirt approaches an old Jewish man in the street in Berlin in 1934, and demands, "Old man, who is responsible for Germany's humiliation in WWI? Who is responsible for the inflation that bankrupted the German middle class? Who is responsible for starving German children in the countryside?" The old man replies, "The Jews. And the bicyclists." The Nazi responds, "Old man, why the bicyclists?" To which the old man shrugs and says, "Why the Jews?"
The Jews, in short, were not a typical ethno-religious group threatening to seize power from the governing group, and in turn were ruthlessly suppressed via genocide. They were a historically oppressed group whose generally successful integration into mainstream society led to a crazy, irrational backlash born of nonsensical conspiracy theory that led to the murder of 6 million people based on pure fantasy. (And also weirdly led to massive denial that this ever occurred, an additional layer of irrationality, only made more irrational by those who take the position "it didn't happen and anyway the Jews deserved it.")
I'm again not saying that other genocides, with which I am less familiar, may not also have their own fascinating idiosyncracies. But true delusion coming more from much of the top of society and spreading even before the genocide through a significant part of mainstream societies throughout Western civilization is rather different than the standard ethnic conflict over territory or resources, or the standard brutal conquests of Genghis Khan or Aztec warriors, or even the greed-and-power-driven massacres accompanying colonization.
From Liu v. Augustine Fellowship SLAA Felowship-Wide Services Inc., decided July 11 by N.Y. trial court judge Judy Kim:
The gravamen of plaintiff's complaint is that in March 2024 her former romantic partner began attending "sex and/or love addiction" meetings organized by defendant Greater NY Intergroup, Inc. … and reading publications by defendant The Augustine Fellowship SLAA Fellowship-Wide Services Inc … promoting "no contact" recovery from sex addiction. Three months later, plaintiff's former partner told her that he had "sex and/or love addiction," for which she was a trigger, and that other Intergroup members and the Augustine Fellowship's literature recommended that he go "no contact"—i.e., cut off all communication with her. He then cut off all interaction with her.
Plaintiff asserts, in the course of her 126-page complaint, that the Augustine Fellowship's publications are deceptive because they "present[] unrecognized psychological concepts as real medical diseases, promote[] recovery and self-diagnosis without scientific substantiation, redefine[] recognized medical terminology, and promote[] "No Contact" without disclosing foreseeable risks." Plaintiff further alleges that she experienced severe emotional distress as a result of her former partner's actions, and sought psychotherapy and psychiatric treatment, at which time she was diagnosed with Major Depressive Disorder, and Generalized Anxiety Disorder….
In the course of a post criticizing the Hawaii Supreme Court's recent "Aloha Spirit" decision interpreting the Hawaii state constitution, co-blogger Josh Blackman suggests that "Red Sox Spirit" might be relevant to interpreting the Massachusetts constitution. It's surprising that it took a New York fan like Josh to see it. But Red Sox Spirit is indeed relevant! Even though I myself didn't see it, previously, despite growing up in Massachusetts.
Red Sox Spirit is all about protecting liberty and resisting tyranny, especially that of the self-proclaimed Evil Empire of Baseball. David "Big Papi" Ortiz - the greatest-ever exponent of Red Sox Spirit - summarized it best: "This is our f-ing city and nobody gonna dictate our freedom":
Under the "history and tradition" approach to constitutional interpretation applied by the US Supreme Court in the 2022 Bruen Second Amendment case, the Massachusetts Constitution should be interpreted in accordance with that principle! It's certainly a crucial element of the state's history and tradition.
Resisting tyranny is central to the Massachusetts constitutional tradition, at its best. The American Revolution began in Massachusetts, in response to British imperial tyranny, and its many violations of liberty and property rights. A few years later, in 1783, Massachusetts became the first state to use its constitution to abolish slavery, when the state supreme court held that it violated the constitutional provision mandating that all men are "free and equal" (Vermont had abolished slavery in 1777, but it was not yet a state at the time).
Today, the state would do well to apply the Red Sox Spirit of constitutional law to curb rent control and exclusionary zoning, which threaten constitutional property rights, and create housing shortages that make it impossible for many to enjoy the liberty the state offers. And, as Josh suggests in his post, protection of the right to bear arms is also central to Red Sox Spirit (even if the state's supreme court has ruled otherwise). After all, the Revolution began because the British sought to confiscate arms kept by the Lexington and Concord minutemen, and those privately owned weapons enabled the people to effectively resist the British and eventually defeat them.
The proper application of Red Sox Spirit to state constitutional law isn't always clear. But, when in doubt, ask what Big Papi would do! And then strike another blow for freedom.
On a slightly more serious note, I think "history and tradition" is a badly flawed approach to interpreting the federal Constitution. Conventional "original meaning" originalism is generally better. But what is best for federal constitutional isn't always the right approach for state constitutions. State courts might be justified in using different interpretive methods than federal courts. And, as jurists ranging from liberal Supreme Court Justice William Brennan to prominent conservative Judge Jeffrey Sutton have argued, states often can and should use their constitutions to protect rights more broadly than the Supreme Court's interpretation of the federal Constitution. For example, many did that in response to the Supreme Court's badly flawed property rights ruling in Kelo v. City of New London (2005). Josh's invocation of Red Sox Spirit is on the right track, there!
I think Josh is right that the Guarantee Clause, which guarantees a "republican form of government" to each state, is justiciable, and should not be considered a nonjusticiable "political question." The political question doctrine is generally a mess. And there is no good reason to think courts are somehow less capable of determining what a republican government is than they are of interpreting any number of other somewhat imprecise provisions of the Constitution, such as the Necessary and Proper Clause, or the Fourth Amendment's requirement that searches must be "reasonable."
Unlike Josh, I am skeptical that Hawaii's gun control policies violate that Clause. The original meaning of the Guarantee Clause probably imposes only fairly minimal requirements, perhaps not much more than that the legislative and executive branches be controlled by elected officials, and that there be no hereditary monarchy and aristocracy. After all, most in the Founding era apparently thought slavery and an extremely limited franchise were compatible with the Clause. Some Hawaii gun restrictions do violate the Second Amendment, however, including those recently invalidated by the Supreme Court. States can protect rights more than the federal Constitution does, but not less.
Unlike Josh, I think that the meaning of "invasion" in the federal Constitution is justiciable. For more, see my article on that subject, where I explain why enforcing the correct definition (a military attack, not illegal migration or drug smuggling) is crucial to protecting the separation of powers and preventing both state and federal governments from abusing civil liberties.
In sum, Josh may (however unintentionally) be onto something with the "Red Sox Spirit"!
UPDATE: I have made a few minor revisions to this post, including correcting my initial misunderstanding about Josh Blackman's position on the justiciability of "invasion."
Now they are reputationally bankrupt. If they don't repair the damage, and convince people to keep writing the checks, many institutions will eventually be financially bankrupt as well.
Academics need to sell the public on the value of their project. They must convince people that the radical pronouncements of the Great Awokening were a terrible mistake, now corrected, and that they are pursuing truth, not political agendas. Many people in academia do understand this, including the administrators who commissioned {the "Report on the State of Scholarship in the Humanities and the Humanistic Social Sciences," commissioned by Vanderbilt and Washington University in St. Louis}.
But many others are still clueless. Even if they grasp, dimly, that something is seriously amiss, they do not understand what it will take to fix the problem. Their idea of a solution is to imperiously inform Americans they arewrong: wrong that academia has let politics infect its work, wrong that reform is needed, and wrong that there are two sexes, male and female.
A recent Echelon Insights poll finds that the "free market economy" is more popular than "capitalism." 53% of respondents say they have a "very" or "somewhat" favorable view of the former, while only 12% have an very or somewhat unfavorable view. By contrast, "capitalism" is viewed very or somewhat favorably by 49%, while the two unfavorable categories combine for 29% (more than the double percentage for "free market economy").
Other polls show similar results. For example, a recent Gallup survey finds 54% have a positive view of "capitalism," but 81% say the same of "free enterprise." A December 2025 Napolitan News Service poll conducted by prominent conservative pollster Scott Rasmussen found 64% of respondents have a favorable view of the "free market," but only 53% say that of "capitalism." A Reason-Rupe poll reached a similar result back in 2015. In Echelon and some other polls, "capitalism" polls unusually badly among younger people, while "free market" mostly does not.
Such variation in responses based on question wording isn't surprising. It occurs with respect to many issues. In a world of widespread political ignorance, many people don't have carefully thought out views on a variety of issues, and can easily be influenced by the way questions are worded. Many are also confused in other ways. Rasmussen's poll even found that 48% of those who have favorable opinion of "socialism" also have a favorable opinion of "capitalism"! Yet rejection of capitalism is a central element of socialist ideology. If capitalism works well, that strongly implies socialism does not (and vice versa).
It is not entirely surprising that "free market" generates more favorable reactions than "capitalism." The former has positive intuitive associations with freedom and choice. The latter has associations with "capital" and "capitalists," which words make many of us think of greedy, selfish business interests and rich people. It is no accident that "capitalism" was first used and popularized by nineteenth century socialists!
In a better world, people's reactions to ideas should not be so susceptible to variations in wording. But in the world we actually live in, libertarians and other free market advocates (notice I did not say "capitalism advocates"!) should take note. As much as possible, we should use "free market" and similar wording (e.g. - "free enterprise"), while abjuring "capitalism." I myself have largely been following that practice for many years. I urge others to do the same.
The Hawaii Supreme Court argued the 50th state's history was inconsistent with the Second Amendment. Perhaps the Constitution is inconsistent with the "Aloha Spirit."
Hawaii was admitted as the 50th state in 1959. The experience of the Hawaiian people was very, very different from the experience of the people in the other 49 states. The United States of America was established by overthrowing a monarch in 1776. Hawaii remained under the control of a monarch until 1893. During the Nineteenth Century, as the American states and territories lived with a right to keep and bear arms, Hawaii had no such protection. Justice Jackson recounts this history in her Wolford dissent:
Since its time as a sovereign kingdom, Hawaii has never permitted the widespread carrying of firearms in its territory. In 1833, King Kamehameha III of the Kingdom of Hawaii prohibited the possession of "dangerous weapon[s]." Translation of the Constitution and Laws of the Hawaiian Islands, Established in the Reign of Kamehameha III 163 (1842) (reprint 1934) (targeting possession of any "knife, sword-cane, or any other dangerous weapon"). Hawaii maintained this tradition of strictly regulating weapons both before and after it was annexed as a U. S. territory in 1898.
There was an extended discussion of whether Justice Jackson should have relied on racist Jim Crow laws, but the citation to Hawaiian monarchical laws is even more problematic. Why is it relevant that a King imposed a prohibition on carrying arms. King George III, and General Thomas Gage, imposed prohibitions on arms in the Massachusetts Bay colony. That violation of rights triggered the Revolutionary War, and inspired the Second Amendment. There is no reason to cite King Kamehameha's laws as a means to interpret the Second Amendment.
The Hawaii Supreme Court has stated that it interprets the federal Constitution based on the unique legal history of the state. Justice Eddins of the Hawaii Supreme Court wrote in State v. Wilson that the "Aloha Spirit" should inspire how his court reads the federal Constitution:
In Hawai'i, the Aloha Spirit inspires constitutional interpretation. See Sunoco, 153 Hawai'i at 363, 537 P.3d at 1210 (Eddins, J., concurring). When this court exercises "power on behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people" we "may contemplate and reside with the life force and give consideration to the 'Aloha Spirit.'" The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others. See Haw. Const. art. IX, § 10 ("The law of the splintered paddle … shall be a unique and living symbol of the State's concern for public safety.").
The Supreme Court rightly rejected Justice Eddins's reading of the Constitution:
As the plurality explained in McDonald, the Second Amendment has the same meaning in all parts of the United States. 561 U.S. at 784–785, 130 S.Ct. 3020. It cannot give way to "the spirit of Aloha" in Hawaii, any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald). It applies in the same way to our 50th State (where about 8% of adults possess guns) and our 49th State (where the figure is roughly 59%).Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.
The "Aloha Spirit," whatever that is, developed from a very different legal, political, and social set of circumstances than the states on the mainland. Can a state supreme court justice, who takes an oath to the federal Constitution, base his decisions on a "spirit" that is inconsistent with the American history and tradition? Stated more bluntly, is the Hawaii Supreme Court's "Aloha Spirit" consistent with a Republican form of government? Could a justice on the Massachusetts Supreme Judicial Court cite General Gage's seizure of firearms to support the Commonwealth's strict gun control laws? Is there a "Red Sox Spirit"?
Still, I think the problem goes even deeper. Justice Eddins seems to be saying that the Hawaiian legal system is alien from the legal system that developed on the mainland. I don't think Justice Eddins (or his chatbot) has fully thought through the implications of that position. Indeed, there is a relevant Supreme Court case from 1901 about another territory:
If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.
Of course, this passage comes from Downes v. Bidwell, one of the Insular Cases.
The Hawaii Supreme Court argued the 50th state's history was inconsistent with the Second Amendment. Perhaps the Constitution is inconsistent with the "Aloha Spirit."
As states and their courts continue to go off the deep end, we need to give more thought to the Guarantee Clause. One question that has been on my mind: would a state that adopts an expressly socialist system of government be consistent with a Republican form of government?
The Supreme Court ducked the "invasion" issue in Barbara, but the justiciability of these sorts of questions are not going anywhere.
Update: A reader noted that the "Aloha Spirit" is actually part of Hawaii's statutory laws:
§ 5-7.5 "Aloha Spirit". (a) "Aloha Spirit" is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, "Aloha", the following unuhi laulā loa may be used:
"Akahai", meaning kindness to be expressed with tenderness;
"Lōkahi", meaning unity, to be expressed with harmony;
"ʻOluʻolu" meaning agreeable, to be expressed with pleasantness;
"Haʻahaʻa", meaning humility, to be expressed with modesty;
"Ahonui", meaning patience, to be expressed with perseverance.
These are traits of character that express the charm, warmth and sincerity of Hawaii's people. It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi. "Aloha" is more than a word of greeting or farewell or a salutation. "Aloha" means mutual regard and affection and extends warmth in caring with no obligation in return. "Aloha" is the essence of relationships in which each person is important to every other person for collective existence. "Aloha" means to hear what is not said, to see what cannot be seen and to know the unknowable.
(b) In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit". [L 1986, c 202, § 1]
Maybe Texas should just instruct all of its officials to "contemplate and reside with the life force and give consideration to "Christ's Spirit."
The Trump administration recently adopted new, gratuitously restrictive, rules constraining foreign students at US universities. My Cato Institute colleague David Bier, a leading expert on immigration policy, has a helpful piece summarizing the policy changes, and their pernicious nature:
Previously, international students on F visas, exchange visitors on J visas, and foreign media on I visas were granted admission for their "duration of status"—that is, for as long as they were in status or following the rules of the visa programs. DHS's final rule replaces that with a fixed period of entry of no more than four years (for international students and exchange visitors). But it does far more than end open-ended admission. Littered throughout it is a set of unprecedented restrictions with no statutory basis.
Students can't change majors or transfer schools in year one—and graduate students can't ever. The rule's own summary states it plainly:
For F‑1 students changing educational objectives or transferring to an SEVP-certified school, requiring that the student complete his or her first academic year of a program of study at the school that initially issued his or her Form I‑20 or successor form, unless an exception is authorized by SEVP; Prohibiting F‑1 students at the graduate education level or above from changing educational objectives at any point during a program of study.
Undergrads get one year before this restriction lifts. Graduate students never get it lifted at all, absent a SEVP exception. Change your mind about your PhD topic in year four, and you're the same as someone violating status on day one.
You can't complete a second degree at the same level, or step down a level, ever. Also from the summary:
Requiring any nonimmigrant who has completed a program at one educational level to only be allowed to begin another program at a higher educational level as an F‑1 student and prohibiting a change to the same or a lower educational level while an F‑1 student.
Finish a master's and want a second master's in a different field? Illegal. Finish a PhD and want to pick up an associate's degree in something practical? Illegal.
DHS's real response to people worried about the need to double-major: plan ahead, or too bad. Commenters pointed out this would devastate students in interdisciplinary fields who need two degrees to do their work. DHS's answer:
this rule does not prevent students who need double majors to achieve their goals from planning ahead and enrolling in both at the same time. For example, nothing in this rule prevents someone from doing a J.D./M.B.A. program at one institution with one I‑20 indicating the program end date that accounts for the longer time it takes to complete the double major.
A J.D. and M.B.A. are not even examples of majors at all, as opposed to types of credentials, so whoever wrote this rule doesn't have the slightest idea what students are even doing in higher education. More to the point, though, many people arrive at a US university not already knowing they'll need to pursue a joint degree on day one. DHS's answer to that reality is: you should have known in advance.
As David explains, the new rule also makes it more difficult for foreign students to find jobs and stay in the US after graduation.
From an educational and economic point of view, the new rules make no sense. As David notes, some degrees take more than four years to complete, for various reasons, and there are often good reasons for students to change fields, add additional majors, and the like. The real purpose of all of this is just to reduce the number of foreign students.
That, in turn would, over time, do serious damage to the US economy, especially in combination with other anti-foreign student measures adopted by Trump. Johns Hopkins Prof. Michael Clemens - one of the world's leading immigration economists - recently published a valuable article outlining many of these harms:
For generations, students from around the world have fueled universities in the United States, their top destination by far. Those students don't just sustain a $43 billion export industry in higher education services per year. Many remain after graduation as a key source of high-skill science and engineering workers, and thus innovation and growth in the US economy.
That system is now crumbling. The White House has enacted a spate of policies to restrict and repel international students en masse….
These policies, if sustained, would constrict a key supply of science and engineering talent to the US economy, reducing productivity and slowing economic growth in the long run. Using imperfect but best-available estimates from the economics research literature, we project the loss produced by a sustained decline of one third in international student inflows. Over the course of a decade, real US GDP would be smaller than it would be otherwise—an annual loss, at current GDP, of between $240 billion and $481 billion. The annual loss would be comparable to erasing the entire economy of Wisconsin or South Carolina.
The one-third reduction is extrapolated from the effects of Trump policies adopted even before this latest rule.
Clemens' article outlines the basis for these estimates in detail, and also notes additional harms that they do not consider. For example, many US universities are significantly dependent on foreign-student tuition, which is often used to subsidize financial aid for US-citizen students.
The new policies are also layered on top of Trump's unconstitutional and harmful efforts to deport foreign students who engage in political speech the administration doesn't approve of, a policy which, among other flaws, is a menace to academic freedom.
In addition, the new policies will deny valuable educational and career opportunities to many thousands of would-be students. And for no better reason than that they were born to the wrong parents in the wrong place. Conservatives rightly condemn racial and ethnic preferences in college admissions as unjust and anti-meritocratic, because they judge applicants based on morally arbitrary circumstances ancestry over which people have no control. In previous writings (see here and here), I have outlined why immigration restrictions - including discrimination against foreign students - are unjust for similar reasons, but to a much greater extent, because the effects are much larger. The difference between going to lower-tier school instead of, say, Harvard (the effect of racial affirmative action) is not as great as that between being allowed to study in the US and being categorically excluded.
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