Eugene Volokh's Blog, page 136

[Eugene Volokh] 11 Court Opinions in the Last 30 Days Mention AI-Hallucinated Material, and …

[that's likely just the tip of the iceberg.]

I did a Westlaw search, and found that 11 court opinions in the last 30 days mention that a party had likely included AI-hallucinated case citations or (in one instance) AI-hallucinated quotes from real cases; ten involved court filings, and one involved a party's communication with opponents. That's a rate of over 100 per year.

And that's likely just the tip of the iceberg, since the overwhelming majority of all court cases in the U.S. are state trial court cases, and opinions in those cases only rarely make it onto Westlaw. Eight of the cases I found were federal trial court cases, two were state appellate cases, and one was a state trial court case. This makes me think there are many more state trial court cases in which such hallucinations were noticed and mentioned but which aren't on Westlaw, and still more in which such hallucinations weren't mentioned or weren't even noticed.

Six of the cases involved pro se litigants, but five involved lawyers.

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[Josh Blackman] What Should Trump's Circuit Nominees Look Like?

When President Trump's first term began, he inherited a slew of circuit court vacancies. However, for his second term, there are likely to be far fewer circuit court seats to fill. By my count, Trump can make appointments to fill one seat on the First Circuit (Maine), two seats on the Third Circuit (Delaware and New Jersey), one seat on the Sixth Circuit (Tennessee), one seat on the Seventh Circuit (Wisconsin), and one seat on the Ninth Circuit (California). (If I've forgotten any others, please email me).

What should Trump look for in filling these seats? In a series of writings, Mike Fragoso sketches out how Trump 2.0 judges may differ from Trump 1.0 judges.

At the Federalist, Fragoso explains:

The approach adopted to pick judges in 2017 worked extremely well. But, in the end, it's 2025, not 2017. The times and the law have changed, in no small part thanks to Trump's judicial appointments. While Trump will surely keep looking for talented and well-credentialed lawyers to put on the bench, he will hopefully adapt his methods to reflect the needs of today and anticipate those of tomorrow.

And what are those needs of today and tomorrow? Fragoso suggests that the type of nominee may depend on the balance of the circuit. At Public Discourse, Fragoso writes that Trump should appoint judges to liberal circuits that will appeal to Justice Barrett, the Court's median voter:

On circuits dominated by liberals (such as the First or Fourth or the District of Columbia), the only chance conservatives have is intervention by the Supreme Court. It therefore makes sense to find conservative judges for liberal courts who can effectively speak the language of [Barrett's] process-formalist originalism in order to optimize the chances of Supreme Court review.

In other words, lower-court judges who think like Barrett are more likely to catch Justice Barrett's attention in a cert petition.

By contrast, in conservative circuits, there is no need to appoint a Barrett-centric judge:

On circuit courts dominated by conservatives (such as the Third, the Fifth, the Sixth, or the Eighth), the opposite is probably the case. They don't need the Supreme Court to save them; they're typically the court of last resort. In that case the more William Rehnquists the better, because Barrett's jurisprudential inclination is not to police their day-to-day rulings.

I'm not sure this is accurate. Justice Barrett has a tendency to reverse the Fifth Circuit on a fairly regular basis.

At National Review, Fragoso applies this approach to the vacancy for Chief Judge Sykes's seat. (Fragoso clerked for Sykes). The Seventh Circuit is, more-or-less, a court in equipoise. Here is how Fragoso breaks down the votes:

What does this mean practically? It means that for conservatives to win at the Seventh Circuit, they must run the ball up the middle. There is simply not a cohesive conservative bloc on the court. Brennan is a movement conservative; Kirsch is a hard-nosed prosecutor conservative; Easterbrook is Easterbrook; St. Eve is an establishment conservative; Scudder is a moderate conservative; Kolar seems to be a conservative moderate; and Pryor seems to be a liberal moderate. Maldonado and Jackson-Akiwumi always hold down the left flank, usually joined by Lee.

You see the nomenclature: movement conservative, prosecutor conservative, establishment conservative, and moderate conservative. If you think all Republican-appointed judges are the same, you are quite wrong. By the way, I think Judge Brennan will soon be the Chief Judge of the Seventh Circuit. I hope Chief Justice Roberts is ready for a movement conservative on the Judicial Conference.

Fragoso explains that any nominee to succeed Sykes should not be a "movement conservative" or an "arch-conservative," but should instead be someone willing to persuade the more-moderate members of the en banc court.

To succeed en banc, then, conservatives will need to persuade three of Easterbrook, St. Eve, Scudder, and Kolar. The best way to do that is to replace Sykes with a judge who is smart, personable, and credible enough to help persuade those very smart, very experienced, and relatively non-doctrinaire members of the court to agree with him or her. The left flank is utterly unpersuasive on the Seventh, so there is an opportunity to turn the middle toward the right — but not if the right is perceived by the center as doctrinaire or otherwise non-credible. Replacing Sykes with an arch-conservative will yield some great dissents.

And in turn, that more moderate appointee can issue favorable rulings, without requiring the parties to seek cert:

This matters for a number of reasons. The Supreme Court simply doesn't grant cert anymore. Well, it does, but exceedingly rarely and never when you want it. So one must assume that politically salient cases will die in the circuit. This is important because Indiana is a conservative innovator state and Wisconsin is a political battleground. With those cases terminating in Chicago 99 percent of the time, it's more important to secure judgments than to own the libs with a stirring dissent.

This is a shot-across-the-bow at the sort of appointees from Trump's first term that have generated the most headlines. Indeed, the Trump judges have blown away the Obama judges in terms of citations. Many of those Trump noms are better at writing dissents than persuading moderate colleagues. But then again, what does it mean to persuade colleagues: dilute and water down a position to avoid saying anything important. If the goal is to simply get courts to generally vote in a conservative direction without actually advancing conservative jurisprudence, then Fragoso's advice makes a lot of sense. But, if one believes that judges take an oath to faithfully interpret the Constitution, and those votes should not be cast with an eye towards cobbling together an en banc majority, then Fragoso's advice is problematic.

In 2009, Laurence Tribe wrote that President Obama should select Elena Kagan for the Souter seat because she would be effective at bringing Justice Kennedy to the liberal wing of the Court. Fragoso is basically offering the same advice, but in reverse: Trump should select judges who will bring moderates to the right. On the Supreme Court at least, I don't think I've seen a moderate-conservative bring a moderate to the right. The ratchet seems to only go to the left. Can anyone really persuade Frank Easterbrook to do anything other than what Frank Easterbrook wants to do? If so, he would have probably taken senior status many years ago. Perhaps the one outlier is Chief Justice Roberts persuading Justices Breyer and Kagan to join his Medicaid Expansion ruling, but NFIB is sui generis in every way.

In my view, Fragoso's advice seems short-sighted, as balances of courts shift over time. Will Trump's legacy on the courts really be defined by appointing a bunch of personable and persuasive individuals who put originalism and textualism on the back-burner when the votes aren't there? I'm skeptical. As I've written, all Presidents should focus on nominees who have exhibited judicial courage, and stay away from nominees whose primary focus is on getting along. Indeed, lower court judges have a duty to flag issues for the Supreme Court review: there is a trickle-up relationship between lower courts, stare decisis, and originalism. I freely admit my approach may yield fewer favorable en banc votes. But from my position, at least, ideas matter more than fleeting majorities.

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[Keith E. Whittington] On Judicial Impeachments

Over at The Dispatch, I have a new piece on the impeachment of federal judges. In a Truth social post, President Donald Trump did what no sitting president has done before, publicly called for the impeachment of a federal judge. In doing so, he stoked the flames of MAGA world which, since the start of President Trump's second term, has become very unhappy with the third branch of government. People of influence and power are now regularly floating extreme solutions to Trump's judicial problem, and impeachment is just one of the options apparently on the table.

As a practical matter impeachment is not easy, as Trump's own first term of office amply demonstrated. As a matter of constitutional principle, the abuse of power by a federal judge might well justify impeachment and removal, but identifying such abuses of powers is likely to be difficult and controversial. There are circumstances when impeaching a federal officer in the House might be a reasonable move even when conviction in the Senate is unlikely, but the House should think carefully about what they are trying to accomplish and how they can best accomplish it before embarking on any impeachment effort.

From the piece:

Indeed, impeachments in general should be a last resort to addressing abuses of power. While there are certainly occasions when nothing short of impeachment and removal will be adequate to remedy the problem posed by a misbehaving officer, we have more routine tools for addressing constitutional abuses. In the case of lower court judges, the first and most routine tool for addressing rulings that seem to be incorrect is to appeal that ruling to a higher court. If a judge has truly acted in a manner that is beyond the pale, then correction by an appellate court can be easily achieved. Only if a judge seems to make it a practice of engaging in such behavior should the blunt tool of impeachment become necessary. The administration seems to have little patience this time around for normal governing procedures, but litigation requires some patience as cases are argued, decided, and appealed.

Read the whole thing here.

For a broader examination of the impeachment power and the law and politics of using it, check out my most recent book.

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[Eugene Volokh] Honestly with Bari Weiss Podcast on Mahmoud Khalil, Speech, and Deportation

I was delighted to be one of the guests on this podcast, which was recorded yesterday and just released this morning:

The other guests were Mark Goldfeder (National Jewish Advocacy Center) and Jed Rubenfeld (Yale Law School). I hope you folks enjoy listening to it as much as I enjoyed participating in it.

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[Jonathan H. Adler] The LSAT Is Not What It Used to Be

[Derek Muller explores recent changes in the test, how it is administered, and how it affects US News rankings.]

The Law School Admission Test (LSAT) has undergone significant changes over the past two decades--changes in its composition, administration, and score reporting--that may be affecting its reliability as a predictor of law school performance. In addition, US News has changed its weighting and treatment of LSAT scores, altering the incentives for law schools to prioritize the LSAT scores of applicants, though it is not clear many law schools have altered their admissions practice accordingly (at least not yet).

Derek Muller explores these changes and their implications in a long and highly informative post at Excess of Democracy. It begins:

The LSAT is an important predictor of law school success. It does a very good job of predicting who will perform well in law school. The higher your LSAT score, the higher your law school grades are likely to be. It is not perfectly correlated, but it is well correlated. When combined with your undergraduate grade point average (UGPA)—yes, regardless of your major, grade inflation, school disparities, and all that—it can even further predict law school success.

But the LSAT has changed over the years. As has its weight in the USNWR rankings. Many law school admissions practices, however, look at the LSAT like it's 2005—like the test scores resemble what they did back then, and like the USNWR rankings care about them like they did back then. A lot has changed in a generation.

Muller summarizes some of these changes, the aggregate effect of which may be to reduce the LSAT's predictive value.

The LSAT, as a raw score, is less predictive of ability than it was 20 years ago. That is, a 170 or a 160 means less than it did 20 years ago. It may still be predictive in the aggregate. That is, a 170 means a higher likelihood of success than a 160. But there are error rates in that 170 that were unknown 20 years ago—the 170 likely overstates the "true" value compared to 20 years ago. Relatively speaking, and in terms of its validity as a statistical matter, it's still valuable—it just has a different value than before.

Likewise, schools have continued to rely on the LSAT but used it in a way that makes it less predictive than it is designed to be—by relying on the highest score, for instance, or by refusing to use the index score. This is exacerbated by the fact that LSAC allows more retakes than it did a generation ago, and it allows cancellation of scores in mechanisms unknown a generation ago.

More recent developments, including the acceleration of extra time test-takers and the dropping of logic games from the LSAT, promise to further dilute the predictive validity of the LSAT in yet-unknown ways.

For more detail, and a discussion of how law schools have (and perhaps should) respond to some of these changes, read the whole thing.

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[Eugene Volokh] D.C. Judge's Thoughts on Use of AI by Judges

From D.C. Court of Appeals Judge John Howard's concurrence last month in Ross v. U.S., about the possible upsides and downsides of judges using AI (entirely apart from whether they use AI results as arguments in their opinions):

To be clear, I cast no aspersion on the use of AI by my colleagues. I find it interesting. AI tools are proliferating and we ignore them at our own peril. Not only for the concerning capabilities they now give parties with ill intent, but for the great utility such tools could potentially provide in easing the strain on our increasingly overburdened courts.

AI tools are more than a gimmick; they are coming to courts in various ways, and judges will have to develop competency in this technology, even if the judge wishes to avoid using it. Courts, however, must and are approaching the use of such technology cautiously. Specific use cases are being considered and we must always keep in mind the limits of different AI tools in how and when we use them, particularly with regard to security, privacy, reliability, and bias, to ensure ethical use.

Broadly, an AI system can be susceptible to bias at multiple points in its execution. Model Code of Judicial Conduct Rules 2.2 and 2.3, dealing with impartiality and fairness and bias, prejudice, and harassment, are potentially implicated in reliance on a system infected with bias. Ignorance of the technology seems like little defense in consideration of the duty of competence in Rule 2.5.

Other issues abound, but security and confidentiality of court information are particular concerns. Accordingly, before using an AI tool a judicial officer or staff member should understand, among many other things, what data the AI tool collects and what the tool does with their data.

The quote has many attributions that "if it is free, you are the product." Many AI tools benefit from what we feed into them, documents, prompts, etc., virtually every aspect of our interaction trains and hones such tools. That is part of the early-mover advantage of ChatGPT in particular, which blew away previous records to reach one million users in five days—and 100 million within two months of going live. As of January 30, 2025, it was estimated to have approximately 300 million weekly users. It is hard to imagine a company that could afford to pay that many people to test and develop their model. However, such a system raises serious practical and ethical issues for a court. Security is a preeminent concern. I briefly look at a few hypotheticals in the context of this court to illustrate.

First, take the use case of a judge utilizing an AI tool to summarize briefs filed with the court well in advance of oral argument—a practice, along with summarizing voluminous records, that some AI tools appear to be quite adept at. It is the practice of this court to announce the members of a particular panel of judges the week before an oral argument. Should a judge be using an AI tool that trains on the data they submitted, they have now surrendered data which includes—at bare minimum—the submitted data, i.e. the briefs of the parties, and potentially personally identifying data, i.e. a username, IP address, and email address. Data which, reviewed together, could expose the judge's involvement on the panel to individuals and systems with access to that data before that information is public.

Next, fast-forward past argument and assume our hypothetical technophile jurist decides they will have the AI tool aid them in the preparation of a decision. AI tools offer many potential use cases here. For one, perhaps with careful prompting, detailing the types of facts or story that is desired, the AI tool could be used to pull from the record and produce a first draft of the factual rendition section of the decision. It could develop an initial statement of the standard of review and controlling law. In varying degrees of quality, depending on the tool and inputs, it could formulate a first take at some analysis.

However, again, should the AI tool be training itself on the data, someone with access to the data would have access to judicial deliberative information and potentially personally identifying login/user information that could identify the judge as well. Of even more concern, as the data trains the tool, another user could stumble upon it or some aspects of it regurgitated by the AI tool. Even if the odds are miniscule, confidential judicial deliberative information has potentially leaked out ahead of a decision in this scenario.

Consider further the scenario that any of the material used in either prior hypothetical contained sensitive information that would otherwise be subject to redaction, i.e. social security numbers, account numbers, minor's names, etc. If unredacted briefs or records were loaded into the AI tool, it would be an instant failure of the court's duty to protect such information. Three hundred million users, in the scenario of ChatGPT, described above, would potentially have access.

I pause briefly here to note that such concern does not appear to arise from the use of AI in this decision. The dissent's generalized hypothetical questioning, without more, does not strike me as remotely unique to this case in a way that could even inadvertently expose deliberative information. The majority's use of ChatGPT provides comparison by prompting the tool against the facts of a previous case for analysis. It strikes me that the thoughtful use employed by both of my colleagues are good examples of judicial AI tool use for many reasons—including the consideration of the relative value of the results—but especially because it is clear that this was no delegation of decision-making, but instead the use of a tool to aid the judicial mind in carefully considering the problems of the case more deeply. Interesting indeed.

The previous examples that I described as potential improper use of an AI tool, however, could be accomplished with the use of an AI tool with robust security and privacy protections. Even more exciting, AI companies have begun to announce the release of government oriented tools which promise to provide such protections and allow for such potential use cases.

As state courts across the country cautiously consider these issues, the National Conference of State Courts has taken a lead in coordinating efforts. It has put together an AI Rapid Response Team and created a policy consortium, constantly updating resources. And the D.C. Courts have not stood idly by, creating our D.C. Courts AI Task Force and partnering with the National Conference of State Courts. As the use of AI begins to appear at the D.C. Courts, litigants and the citizens of the District can be assured that cautious and proactive thought is being directed by our judges and D.C. Courts team members, toward the beneficial, secure, and safe use of AI technology.

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[Josh Blackman] Apply for the 14th Annual James Wilson Fellowship

[Young Lawyers, Law Clerks, and Law Students are welcome to apply for our Summer 2025 Fellowship on August 3-8, 2025. ]

I am happy to pass along this announcement from my friends at the James Wilson Institute:

The 14th James Wilson Fellowship

Old Town Alexandria, VA, August 3-8, 2025

Deadline to Apply: April 23, 2025

In partnership with First Liberty Institute's Center for Religion, Culture, and Democracy, JWI Co-Directors, Profs. Hadley Arkes and Gerry Bradley, joined by other distinguished scholars, will offer an in-person seminar over seven days in the Washington, D.C. area, on Natural Law and its bearing on our jurisprudence. The course will focus on discussing the central points of a jurisprudence of Natural Law, such as the classic connection between the "logic of morals" and the "logic of law," the properties of moral truths and the principles of judgment, and how we would see certain landmark cases differently if they were viewed through the lens of Natural Law. Our main objective is to restore a moral coherence to our jurisprudence.

Application

Please submit the following package of materials to be considered for the James Wilson Fellowship. An electronic package of materials in separate PDF files is greatly preferred, though not required:

1. Personal Information Full name, DOB, mailing address, preferred telephone number, and email.

2. Resume/CV Undergraduate and graduate education with degrees expected, professional experience, fellowships, internships, awards, and publications.

3. Personal Statement In 500 words or fewer, please explain what draws you to the Fellowship for the James Wilson Institute and this project on the recovery of Natural Law: why are you interested in spending a week with peers studying Natural Law and its connection to our jurisprudence? Have you done any reading on the subject, or are you interested in acquiring a firmer hold on it? Have you read any of Prof. Arkes's or Prof. Bradley's writings, with their perspectives on Natural Law?

4. Legal Writing A journal article, legal brief, course paper, or other relevant piece excerpted up to 15 pages.

5. References Contact information (email and telephone number) for two references, academic or professional.

6. Official Academic Transcripts All undergraduate and graduate work; may be submitted separately from the application package via undergraduate and graduate transcript services.

All electronic application materials must be emailed to: Fellowships at JamesWilsonInstitute.org

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[Stephen Halbrook] Second Amendment Roundup: Attorney General to resume removal of disabilities

[ATF is prohibited by appropriations riders from considering petitions.]

The Gun Control Act (GCA) prohibits persons with certain legal disabilities from possession of firearms.  It also provides a procedure to petition to remove those disabilities on a finding that the person will not be likely to act in a manner dangerous to public safety.  Since 1992, appropriations riders have been enacted to prohibit the Bureau of Alcohol, Tobacco, Firearms and Explosives from considering such petitions.  Attorney General Pam Bondi has announced an interim final rule that will allow her office to process the petitions directly.

Persons with felony convictions and other legal disabilities are prohibited from having guns by 18 U.S.C. § 922(g).  However, § 925(c) provides that such persons may apply to the Attorney General for relief from such disabilities if the circumstances and the person's record and reputation are such that "the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest."  A denial may be reviewed by a federal court.

Annual appropriations riders since 1992 have prohibited ATF from using funds to consider petitions to remove disabilities.  The Attorney General had previously delegated authority to ATF to exercise its powers under 18 U.S.C. chapter "44 (related to firearms)," which is the GCA.  28 C.F.R. § 0.130(a)(1).  The interim final rule changes that to refer to chapter "44 (related to firearms), except for 18 U.S.C. 925(c)."  The Attorney General thus resumes administration of the disability removal function.

The rule also removes 27 C.F.R. § 478.144, which was the long moribund ATF regulation about processing disability removal petitions.  That regulation reflected its origin in 1968 by requiring that applications be submitted "in triplicate."

The regulation had one provision that the Attorney General should not replicate in how her office administers the program: "Relief will not be granted to an applicant who is prohibited from possessing all types of firearms by the law of the State where such applicant resides."  That is improper because § 925(c) is designed to remove the federal disability and shield one from federal prosecution.  Further, depending on state law, a state court or other entity that removes state disabilities may be unlikely to do so as long as the federal disability stands.

As reasons for the interim final rule, General Bondi explains that the issue "has taken on greater significance given developments in Second Amendment jurisprudence since 1992."  President Trump's Executive Order of February 7 directed the Attorney General to examine all regulations "to assess any ongoing infringements of the Second Amendment rights of our citizens."  The commentary to the interim final rule explains: "Consistent with this Order and with the Department's own strong support for all constitutional rights, including 'the right of the people to keep and bear arms' enshrined in the Second Amendment, the Department has begun that review process in earnest…."  Accordingly:

From the Department's perspective, regardless of whether the Second Amendment requires an individualized restoration process for persons subject to 18 U.S.C. 922(g), 18 U.S.C. 925(c) reflects an appropriate avenue to restore firearm rights to certain individuals who no longer warrant such disability based on a combination of the nature of their past criminal activity and their subsequent and current law-abiding behavior while screening out others for whom full restoration of firearm rights would not be appropriate.

However, it continues, the Department "also supports existing laws that ensure, for example, that violent and dangerous persons remain disabled from lawfully acquiring firearms."  That's exactly the direction in which some courts have been moving when they decide that, under the Second Amendment, categorical bans cannot be applied to persons who are not violent or dangerous.  Other courts have upheld categorical bans and rejected as-applied challenges.  As explained in my recent post, there is a clear circuit conflict on the issue that warrants resolution by the Supreme Court.

But maybe the interim final rule, depending on the nature of the case, will get the Supreme Court off the hook.  If persons with legal disabilities may now apply to the Attorney General for relief, the issue may become moot in many cases, as it did in BATF v. Galioto (1986), in which the Court ruled that an equal protection challenge to § 925(c) became moot when the Firearm Owners' Protection Act of 1986 extended the statute to include all § 922(g) disabilities, including mental commitments.

However, there are some circumstances where an administrative process may not necessarily moot a Second Amendment claim.  In Range v. Attorney General (3rd Cir. 2024), which I previously discussed here, Bryan Range should never have been disarmed in the first place.  As the court explained, "today, felonies include a wide swath of crimes, some of which seem minor."  For instance, "returning out-of-state bottles or cans" in Michigan is a felony, as is uttering "profane language by means of radio communication" under federal law.  Unqualified deference "gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label."  While the Supreme Court's Rahimi holding "did bless disarming (at least temporarily) physically dangerous people," the government had no evidence that Range "poses a physical danger to others or that food-stamp fraud is closely associated with physical danger."

By ruling in a case like Range, the Supreme Court will give general guidance regarding the types of convictions that should or should not result in disarming a person.  The line will undoubtedly be drawn in terms of whether the type of crime would pose a threat of danger and violence to others.  Guidance from the Court will also assist the Attorney General in deciding which applicants deserve to have disabilities removed and which do not.  It should also encourage legislatures to be more cautious in labeling offenses that don't deserve the appellation as felonies.

The interim final rule will lessen the burden of district courts having to decide as-applied challenges to the undoubtedly large numbers of plaintiffs who will otherwise mount challenges. Challengers who obtain relief administratively will not need to file Second Amendment claims.  The rule regenerates an administrative procedure that will be far less expensive for applicants and simultaneously checks abuse of discretion by allowing review by the district courts.

As the commentary explains, the rule is exempt from the usual APA requirements of notice and comment and a 30-day delay in effective date because it relates to a matter of agency organization, procedure, or practice.  However, comments are welcome by June 18, 2025, before a final rule is issued.

* * *

The ATF website shows that its leadership now includes Kash Patel as the new Acting Director while Marvin Richardson continues as the Deputy Director.  Scroll down and you'll see Robert Leider as Assistant Director/Chief Counsel.  An Associate Professor of Law from George Mason University, Robert is a well-respected scholar on both the Second Amendment and firearm law issues.  You can hear an interview here on Robert's plans to reform ATF.  Congratulations to Chief Counsel Leider.

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[Josh Blackman] Justice Alito Calls To Reconsider Justice Scalia's Proudest Accomplishment

[Even Nino nods on the Confrontation Clause.]

In the summer of 2008 when I was a rising 3L, I attended an event on Justice Scalia's book, Making Your Case. During the Q&A session, someone asked Justice Scalia what opinion he was most proud of. Without any hesitation, he said Crawford v. Washington (2004). This landmark decision applied an originalist framework to the Confrontation Clause. Prior to that Crawford, Ohio v. Roberts (1980) imposed a "reliability" standard to determine whether out-of-court testimony could be introduced. But in Crawford, Justice Scalia turned back the clock to the deep historical roots of the right to confrontation.

Or did he?

On Monday, the Court denied cert in Franklin v. New York, a Confrontation Clause case. Justices Alito and Gorsuch wrote statements regarding the denial of certiorari. Alito's statement calls into question Scalia's originalist magnum opus.

Alito explains that the meaning of "witness" in the Confrontation Clause is at odds with the meaning of "witness" in the Confrontation Clause:

In order to reach this conclusion, the Court was required to hold that any person who makes a "testimonial" statement (whatever that means) is a "witness" within the meaning of the Confrontation Clause, but this gave the term "witness" a meaning that is radically different from its meaning in the neighboring Compulsory Process Clause and elsewhere in the Constitution . . . After Crawford, however, only theCompulsory Process Clause's "witnesses" are people who must appear in court and take the stand. When a law uses the same term more than once, we presume that the termmeans the same thing every time it is used. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012). Thus, it is startling to hold that the term"witnesses" in two provisions separated by nothing but asemicolon have very different meanings.

Citing Scalia/Garner to show that Scalia was wrong? Shots fired.

I have written that Justice Scalia's Heller decision failed to account for certain linguistic sources that can now be found in COFEA, but were not available in 2008. It is tough to fault Scalia for not relying on technology that did not yet exist. But this sort of textual evidence about the Sixth Amendment was available in 2006. Justice Alito makes this point:

These powerful textual arguments were known when Crawford was decided, but the Court dismissed them because its study of history led it to believe that the Confrontation Clause was meant to codify a well-established common law right against the introduction of a certain category of what we now call hearsay. More recent scholarship, however, casts doubt on key aspects of Crawford's reasoning.

Alito then cites a slew of law review articles that criticized Crawford.

Alito does not think that every originalist decision ought to be reconsidered when new originalist scholarship is brought forward. But he thinks that step is warranted here, especially where the testimonial/non-testimonial line has proven so unworkable.

Our body of constitutional decisions would be in perpetual turmoil if we reconsidered every decision resting on an interpretation of history that is subsequently challenged inthe law reviews. But as both JUSTICE GORSUCH and I recognize, the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair.

In my view, the problem with Crawford resembles the problem with Heller. In both cases, there was an originalist basis for the constitutional right. But in both cases, originalism did not provide a clear way to apply those rights to present-day circumstances. This is the well-known problem of constitutional construction. In Heller, Justice Scalia advanced a  framework about arms in "common use," "dangerous and unusual weapons," "sensitive places," and so on. (These locutions were likely needed to hold five votes.) None of this came from originalism, and called for ad hoc judicial balancing tests. In many regards, Justice Breyer's Heller dissent proved more useful than Justice Scalia's majority opinion.

The Crawford test followed a similar path. The Court had to offer some test to determine whether a witness had to testify in person. So Scalia offered the distinction between "testimonial" and "non-testimonial" evidence. But this line was apparently invented by the Court, and as not grounded in history.

Bruen favored a "text and history" approach to the Second Amendment. Justice Gorsuch hints that a similar framework may be warranted for the Confrontation Clause:

When it comes to vindicating many other guarantees in the Bill of Rights, we have eschewed "ambitious, abstract, and ahistorical" tests in favor of ones grounded in the constitutional text and the common law that informed it. Kennedy, 597 U. S., at 534 (internal quotation marks and alteration omitted) (Establishment Clause). [FN1] Perhaps we should consider doing the same here.

[FN1] See also, e.g., SEC v. Jarkesy, 603 U. S. 109 (2024) (Seventh Amendment); Ramos v. Louisiana, 590 U. S. 83 (2020) (Sixth Amendment jury right); Knick v. Township of Scott, 588 U. S. 180 (2019) (Fifth Amendment Takings Clause); Currier v. Virginia, 585 U. S. 493 (2018) (Fifth Amendment Double Jeopardy Clause); District of Columbia v. Heller, 554 U. S. 570 (2008) (Second Amendment); United States v. Bajakajian, 524 U. S. 321 (1998) (Eighth Amendment Excessive Fines Clause); cf. Carpenter v. United States, 585 U. S. 296, 397–404 (2018) (GORSUCH, J., dissenting) (urging a similar approach for the Fourth Amendment).

Perhaps the most likely consequence of Alito's statement is that critics of originalism will be emboldened. See, they will say, even if Justice Scalia's masterpiece of originalism is criticized by Justice Alito, that means that all originalism is bunk! This issue must have been really significant to Justice Alito, if he was willing to throw Justice Scalia's legacy, and originalism itself, under the bus. As best as I can tell, Alito dissented in leading Confrontation Clauses, including Bullcoming v. New Mexico (2011) and Melendez-Diaz v. Massachusetts (2009). Alito's statement has been a long-time coming.

The post Justice Alito Calls To Reconsider Justice Scalia's Proudest Accomplishment appeared first on Reason.com.

[Josh Blackman] The 2025 Edwin Meese III Originalism Lecture: "Originalism, the Administrative State, and the Clash of Political Theories" by Joel Alicea

One of the greatest honors of my career has been receiving the inaugural 2022 Edwin Meese III Originalism Award. My lecture was titled Originalism and Stare Decisis in the Lower Courts. The winners in 2023 and 2024, respectively, were Professors Kurt Lash and John Yoo. I am pleased that the 2025 winner was Professor Joel Alicea at Catholic University. Joel was recently appointed as the St. Robert Bellarmine Professor of Law. He is also the Director of the Center for the Constitution and the Catholic Intellectual Tradition.

Joel's lecture was titled Originalism, the Administrative State, and the Clash of Political Theories. It is well worth a watch and a listen.

This segment of his conclusion is especially thought-provoking:

Originalism's politico-theoretical premises, then, are hostile to the premises undergirding the administrative state and living constitutionalism. The concentration of lawmaking power into the hands of the federal legislature, the delegation of that lawmaking power from Congress to administrative agencies, and the insulation of administrative power from presidential and judicial accountability are not just violations of our fundamental positive law—which would be a contingent conflict that could be obviated by amendments to our Constitution. The conflict runs much deeper, to differing conceptions of the human person and of politics. As Wilson recognized, a political theory that elevates a Founding-era conception of our Constitution will always be in conflict with the political theory of living constitutionalism and administrative power.

And that is why the stakes of the Trump administration's ambitious efforts to dismantle the administrative state are so high. This isn't just a matter of clashing interpretations of the scope of administrative authority under our law; it is a clash of opposing political theories.

That is not to say, of course, that originalist judges do or should decide cases by applying political theory to the facts of a case. I strongly oppose such freewheeling normative reasoning by judges in deciding cases. But it is to say that, in applying originalist methods to resolving cases according to law, originalist judges are relying on a constitutional theory whose implicit normative premises are hostile to the political theory of the administrative state, so it should not surprise us that originalism will often stand opposed to the administrative state.

It required two progressive presidents of extraordinary determination and political skill—Woodrow Wilson and FDR—to create the administrative state and impose a progressive constitutional and political theory on our structure of government. It stands to reason that it will require another president of extraordinary determination and political skill to undo what his predecessors accomplished.

Whether President Trump's efforts will succeed remains to be seen. If they do, he will rank alongside FDR as a president of transformative significance for American government. There is no doubt that, both as a matter of political theory and constitutional theory, much depends on the outcome of the contest the President has undertaken. Thank you.

As I left Heritage, I asked a colleague if President Trump will be more transformational than President Reagan. That sort of question may have once been considered heretical in Heritage, but the answer was a pretty clear "yes." I think I agree. And Joel's excellent speech begins to lay the analytical framework to understand Trump's transformation.

The post The 2025 Edwin Meese III Originalism Lecture: "Originalism, the Administrative State, and the Clash of Political Theories" by Joel Alicea appeared first on Reason.com.