Eugene Volokh's Blog, page 41

[Eugene Volokh] Warning About AI Hallucination During D.C. Federal District Court Bar Admission Ceremony

I just joined (this morning) the bar for the U.S. District Court of the District of Columbia, which is to say the federal trial court in D.C. One feature—peculiar in my experience of federal court bars—is that all new members of this particular bar have to appear in person to be sworn in in a collective ceremony, conducted once per month. Fortunately, I had been invited to do a couple of talks in D.C. Saturday and today, so I didn't need to fly in just for the occasion.

Here's what struck me: There were some brief remarks from District Judge Dabney Friedrich, and besides some general points about civility, the need to maintain a reputation for professionalism, the call to do pro bono service, and the like, the judge also included a specific warning about the tendency of AI tools to hallucinate. Looks like the court is taking the matter quite seriously.

The post Warning About AI Hallucination During D.C. Federal District Court Bar Admission Ceremony appeared first on Reason.com.

[Eugene Volokh] California Racial Justice Act and Racially Themed Language in Undercover Questioning

["Ramsey contends that conducting an undercover operation targeting an African American inmate by using racial slurs ... and introducing and admitting into evidence a recording from the undercover operation violates [the Act]."]

From Tuesday's decision in People v. Ramsey, by Justice Frances Rothschild, joined by Justices Helen Bendix and Gregory Weingart (expurgations in original, as are the unexpurgated slurs):

Rashaud Ramsey appeals the judgment of conviction for murder….

Police arrested Hassan [Ramsey's alleged coconspirator] on November 10, 2022, more than a year after the Ramsey interrogation and almost two years after the shooting. Detectives placed him in a cell with an undercover law enforcement officer and audio-recorded their conversation. The recording was played at trial.

The officer asked Hassan, "Wassup with you? Why you got your head down [B]lack man?" Hassan responded that he was "messed up" and did not know what to do. The officer told Hassan, "Got to keep your head up. Wassup N***a? I've been through some shit. But what the fuck they talking to you about?"

Hassan told the officer that his cousin and his cousin's friend killed a "boy, and shot his brother and his sister." He admitted he was at the scene of the murder but denied participating in it.

The officer said, "So, so you said your peoples was up in the house? So what happened with their shit n***a?" Hassan responded that "[b]asically, what was supposed to go down was a robbery, and a robbery didn't take place." Hassan explained that his cousin and the friend had asked him to participate in a robbery, and Hassan agreed. While in the car Hassan's cousin and the friend talked "some nonsense" about killing someone. Hassan told them it was not worth it, and they did not need to kill anybody. They appeared to agree, but once they got to the crime scene, Hassan's cousin and the friend "bust[ed] in shootin[g]."

The officer asked what Hassan did with the guns. Hassan responded that his cousin and the friend got rid of them. He admitted he had touched one of the guns, and when shots were fired he ran out of the house. Hassan's cousin accidentally shot his friend as they ran away.

The officer asked if "these n***as is like, like, y'all just talking and they said man, let's go hit these n***as [the victims], or what?" Hassan responded they were just talking about what they could do to get money, and believed the victims had jewelry or some money. The officer asked how they got into the house. Hassan responded that they arrived in his cousin's friend's car, entered through an open window on the side of the house into a dark, unoccupied room. His fingerprints might be in the car but would not be in the house because he wore gloves and a mask, which he later discarded….

Ramsey contends for the first time on appeal that admission of Hassan's jailhouse statements violated the California Racial Justice Act of 2020 because the undercover law enforcement officer posing as a cellmate used the word "nigga" a few times in referring to Hassan, his accomplices, including Ramsey, and the victims.

The Racial Justice Act provides that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." A violation of the statute occurs where, inter alia, "a law enforcement officer involved in the case … exhibit[s] bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin."

A violation also occurs if, during trial, "the judge, an attorney in the case, a law enforcement officer involved in the case … use[s] racially discriminatory language about the defendant's race … or otherwise exhibit[s] bias or animus towards the defendant because of the defendant's race …. This paragraph does not apply if the person speaking is relating language used by another that is relevant to the case." …

Ramsey contends that conducting an undercover operation targeting an African American inmate by using racial slurs … and introducing and admitting into evidence a recording from the undercover operation violates [the Act].

Here, the context of the undercover officer's use of the word "nigga" shows it was intended to create rapport with Hassan rather than to "explicitly or implicitly appeal[ ] to racial bias." "Nigga is not an unambiguous racial epithet in today's world, especially when used intraracially." (Daniel v. Wayans (Cal. App. 2017).) The term "can be an affectionate greeting, a compliment, or a term of respect." The undercover officer used the word "nigga" with Hassan in a neutral if not friendly sense. {Ramsey assumes the officer was Black, but the record does not reflect his race.} Nothing in the record shows Hassan interpreted the word as a racial insult or statement of racial bias or animus.

Ramsey thus could not have established at trial, and no factfinder reasonably could have found, that the officer used racially discriminatory language within the meaning of the Racial Justice Act or exhibited racial bias or animus toward even Hassan, much less Ramsey.

Noah P. Hill and Thomas C. Hsieh represent the state.

The post California Racial Justice Act and Racially Themed Language in Undercover Questioning appeared first on Reason.com.

[Eugene Volokh] Woman Repeatedly Badmouthed Ex-Lover, Ordered Not to Say Anything Online About Him, Lost Gun Rights

[She had admitted that some (though not all) of the speech was false, but the injunction (entered in a restraining order case, not following a full defamation trial) extends to all speech, not just falsehoods: "Even speech otherwise protected by the First Amendment may be enjoined if it disturbs the petitioning party's peace."]

Stafford v. Molano, decided Friday by California Court of Appeal Judge Brian Hoffstadt, joined by Judges Carl Moor and Dorothy Kim, upheld a restraining order (which included the provision that "Respondent shall not post about Petitioner online") that was apparently largely based on two sorts of speech:

allegations of sexual assault, which defendant had apparently admitted were false, and allegations of nonconsensual taking of an intimate photograph, which I think defendant never recanted.

I don't think the decision is correct (see here for my general views on the matter)—especially since the injunction forbids even nondefamatory speech, and was expressly not based on a finding that all the speech was false. But this is indeed the way recent California court decisions have been going.

1. First, as to the apparently retracted allegations of sexual assault:

[Molano and Stafford] started a relationship at the end of 2021 while Molano was working for Stafford's construction business. Stafford is married to another woman. Until around Spring 2024, Molano and Stafford sustained an on-again-off-again affair that was, to the say the least, rocky. Molano sometimes threatened Stafford that she would destroy his life and his business if he left her.

Molano subsequently acted on her threats. At some point, Molano posted a photo of her bare back on the Google profile of Stafford's company with a comment "warning clients that [Stafford] was a predator." In October 2023, Molano posted two public comments on the Facebook profile of Stafford's wife (1) stating that Stafford had sexually assaulted Molano and suggesting that the wife go to the courthouse to see the criminal charges for herself, and (2) displaying a photo of bruises with an explanation that the bruises were "from your husband pinning me on the floor, pressuring me to have sex with him in his office." Molano reported the same accusations to the building manager for Stafford's business.

Molano then purported to retract her statements. She signed and had notarized a statement drafted by Stafford in which Molano denied the accusations she made to the building manager. And Molano made further posts on Stafford's wife's Facebook profile apologizing for her prior posts and explaining, "It didn't happen. I was mad. I was mad. It wasn't true." Stafford was neither arrested nor criminally charged based on any of Molano's earlier allegations….

Molano filed a petition for a domestic violence restraining order against Stafford based on allegations of sexual assault. The trial court denied the petition in May 2024. {Molano also pursued a small claims action against Stafford; she lost.} As the parties were leaving the courthouse following the court's ruling, Molano became "belligerent" toward Stafford. Later that day, she sent him a text message saying he is "going to pay big time." …

2. Now, as to the intimate photo:

In March 2024, Stafford took a photo of Molano "in a compromised position" to, in Stafford's own words, create "evidence" that "this is [a] cooperative" sexual relationship in case a "judge, a police officer, or anybody" later accuses him of sexual assault. The parties dispute whether Molano was aware Stafford took the photo…. In the weeks that followed [Molano's "going to pay big time" message to Stafford], Molano (and occasionally her friends) posted several negative reviews of Stafford's company on various websites:

On June 9, 2024, Molano posted a Yelp review stating, "Predator. Manipulator. Physically and sexually abusive. And now trying to blackmail me with pics. Currently pressing charges. Do not let this creep in your home. Really sick person." A nearly identical one-star review was posted under a different name. On June 11, 2024, Molano posted a comment to a work-related photo on Stafford's Facebook page stating, "You're going to prison." On an unknown date, Molano posted another Google review stating "Invasion of privacy. Took naked pics without consent and is trying to blackmail. Sexually, physically abusive. Gaslighting. Manipulative. Narcissist. He has multiple sexual harassment cases and pending charges." On July 17, 2024, Molano posted another Yelp review stating: "If you look up [Stafford], the owner of the company, he took inappropriate pics of me without permission. That's invasion of privacy, sextortion, and against the law. You can look up the court case yourself. I submitted one of the inappropriate pics as evidence. Ladies, stay away from this creep." Yelp reported that 174 users read the review….

3. Stafford then got a domestic violence restraining order against Molano (emphasis added):

{After he filed the DVPA [Domestic Violence Prevention Act] petition and served [a separate defamation lawsuit, which is still pending], Molano posted another review stating, "Owner assaulted me and took inappropriate pics of me and is trying to file a defamation case when I literally have a video and recordings. He's just mad nobody will want to work with him, especially women. Don't let the fake ratings below fool you."} … [At the hearing], Molano freely admitted to authoring the posts, including some by aliases….

On September 26, 2024, the trial court issued a restraining order in favor of Stafford by enjoining Molano from making any public posts about Stafford and his business. The court found that Molano's conduct in "publicly posting allegations of sexual misconduct by [Stafford] on his business websites and wife's public Facebook page, is conduct that would destroy the mental or emotional calm of [Stafford]," and thus "disturb[ed] [Stafford's] peace," which is a basis for relief under the DPVA.

The [trial] court explained that its finding was independent of whether Stafford had sexually assaulted Molano. When Molano stridently announced that she was "going to go public with this regardless," the court extended the duration of the restraining order from one year to three years….

And the Court of Appeal affirmed (emphasis added):

The DVPA empowers a trial court, upon "reasonable proof of … past … acts of abuse," to enjoin conduct that constitutes "abuse." As relevant here, "abuse" includes conduct that "disturb[s] the peace of the other party"—that is, conduct that "destroys the mental or emotional calm of the other party." Even speech otherwise protected by the First Amendment may be enjoined if it "disturb[s] the [petitioning party's] peace." (Bassi v. Bassi (Cal. App. 2024); In re Marriage of Evilsizor & Sweeney (Cal. App. 2015) ["prohibiting [husband] from disseminating the contents of [wife's] phones does not amount to a prohibited restraint of protected speech because [husband's] conduct constituted 'abuse' under the DVPA"]; Phillips v. Campbell (Cal. App. 2016) [restraining boyfriend from posting "photographs, videos, or information about [girlfriend] to any internet site" does not violate the First Amendment "'because [boyfriend's] ability to continue to engage in activity that has been determined after a hearing to constitute abuse [under the DVPA] is not the type of "speech" afforded constitutional protection'"]; In re Marriage of Nadkarni (Cal. App. 2009) [allegations that husband accessing and disclosing private e-mails disturbed wife's peace could constitute abuse to support temporary restraining order].) …

The same logic would apply not just to domestic violence restraining orders following a romantic breakup, but also to harassment restraining orders more broadly.

The firearms restriction wasn't challenged on appeal, but it was indeed automatically imposed, pursuant to California law, by the trial court.

The post Woman Repeatedly Badmouthed Ex-Lover, Ordered Not to Say Anything Online About Him, Lost Gun Rights appeared first on Reason.com.

[Ilya Somin] Perils of the Pentagon's Plan to Use Military Lawyers to Adjudicate Immigration Cases

[The plan is illegal for multiple reasons, is likely to lead to poor decisions, and could undermine military readiness.]

NA

The Pentagon is planning to divert up to 600 military lawyers (known as "JAGs" - members of the Judge Advocate General's corps) to serve as temporary immigration judges. The idea is to dispose of immigration cases faster.  As Samantha Michaels explains in a helpful Mother Jones article, this is illegal, and is likely to lead to poor decisions in immigration cases, given that most JAG lawyers lack relevant expertise:

The Trump administration has decided to get more immigration judges from an unprecedented source: the military.

On Tuesday, the Associated Press reported that the Pentagon plans to send up to 600 military lawyers to the Justice Department to temporarily run immigration courts around the country. Some of them could receive their new assignments as early as next week.

The arrangement would help the Trump administration tackle a backlog of immigration cases. But military lawyers have little or no experience with immigration law. And some former military lawyers worry the plan isn't even legal. It "should raise all sorts of alarms," Daniel Maurer, a former Army attorney who also taught law at West Point, told me recently.

I spoke with Maurer in July, after President Trump first hinted that he'd be open to the idea of deploying military attorneys—known as Judge Advocate Generals, or JAGs—as immigration judges in Florida. That idea, floated by Gov. Ron DeSantis, hadn't yet come to fruition. "There is no clear precedent for what DeSantis and the president are doing," Mark Nevitt, a law professor at Emory University who served as a Navy JAG, told me at the time.

"This would be unlawful," added Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles who was an Air Force JAG.

In particular, VanLandingham said, turning military lawyers into immigration judges would likely violate the Posse Comitatus Act, a federal law that bars US troops from participating in civilian law enforcement or "executing the laws," unless otherwise authorized to do so by the Constitution or Congress. It's "frightening," VanLandingham said of the plan, because "the use of military courts to hear civilian cases is the essential component of martial law."

Current and former JAG lawyers have suggested to me that this move could also undermine military readiness, and impair the military justice system. The 600 JAGs the Pentagon may reassign to this function are a substantial proportion of the armed forces' total of 7300 JAG lawyers. JAGs serving as immigration judges are obviously not performing their regular functions, and those functions may end up getting neglected.

I would add that there is a more fundamental constitutional problem here: migrants threatened with detention or deportation - like others threatened with severe deprivations of liberty by the government - should have their cases adjudicated by impartial, neutral judges, not people subject to removal and other discipline by the very executive branch authority that filed the case against them. I think most military lawyers would strive hard to be fair, and I have great respect for the JAGs I have met over the years, including a number of my former students. But the threat of retaliation for decisions the administration doesn't like creates a dangerous incentive structure.

Sadly, this problem is not limited to JAGs who may potentially act as immigration judges. Even in normal times, many immigration cases are heard to by executive branch "judges" subject to removal by the Justice Department. Earlier this year, Trump fired numerous executive-branch immigration judges who the administration believed were not on board with its draconian deportation agenda.

The Due Process Clause of the Fifth Amendment mandates that government cannot deprive people of life, liberty, or property without due process. Detention and deportation are obvious severe deprivations of liberty. And there is no exemption for immigrants or non-citizens. During the Founding era, it was generally understood that the Due Process Clause applies even to non-US citizen pirates captured in international waters. If so, it also applies to migrants within the US.

Adjudication by an official subject to being fired or disciplined for making decisions the executive doesn't like is obviously inimical to due process - whether the "judge" is a military JAG officer or a civilian executive branch employee. As the Supreme Court put it in Marshall v. Jerrico (1980), "[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process." A judge under the control of the executive cannot be genuinely "impartial and disinterested," since he or she has an obvious interest in catering to the preferences of superiors.

Conservatives readily see this problem in areas outside the immigration context, as when executive-branch agencies adjudicate civil penalties for violations of economic regulations. In such cases, they rightly argue there are violations of due process, and of the Seventh Amendment's guarantee of a jury trial in civil cases where significant penalties are at stake. Immigration detention and deportation imperil liberty and property rights at least as much as any economic regulation, and often much more.

Unfortunately, due process is one of a number of areas where the courts have allowed double standards under which immigration restrictions are to a large extent exempt from constitutional restraints that apply to all other government policies. That double standard should be ended. The administration's plan to use military JAGs as immigration judges is a particularly egregious tip of a much larger iceberg.

UPDATE: I have made a few additions to this post.

The post Perils of the Pentagon's Plan to Use Military Lawyers to Adjudicate Immigration Cases appeared first on Reason.com.

[Ilya Somin] Trump Forcibly Returns Russian Dissenters who Fled Putin

[It's a new low in US refugee/asylum policy; simultaneouly unjust and counterproductive.]

Bradley Greeff | Dreamstime.com

The London Times reports that the Trump Administration has been deporting Russian dissenters who fled Vladimir Putin's authoritarian regime, sending them back to Russia, and even apparently helping Russian authorities persecute them:

On August 27, less than a fortnight after President Trump's summit with Putin in Alaska, dozens of Russians were rounded up and deported. Among them was Artyom Vovchenko, 27, a deserter from the war in Ukraine. He is facing a prison sentence of up to decade or could be sent back to the front line.….

Although the deportation of Russians to Russia has accelerated under Trump, the policy began under his predecessor Joe Biden. According to Dmitry Valuev, 46, president of Russian America for Democracy in Russia, an organisation that supports political refugees, deportations under Biden were smaller in number.

He said Russian deportees on those flights avoided returning to Russia by begging for their passports during layovers in China and Morocco and buying flights to alternative destinations.

However, the US now appears to have enlisted the help of the Egyptian government to ensure the migrants are delivered back to Moscow.

The first mass deportation this year took place in June when 47 Russians were put on a flight to Egypt and returned to Russia via Cairo.

On August 27, between 30 and 60 people were sent to Russia on the same route. Some tried to get off the plane in Cairo but were restrained by Egyptian officials and forced to board the onward flight to Moscow, according to Valuev. He believes that US immigration authorities are now working with the Russian FSB [Putin's secret police agency].

I think the June deportation and the August deportation were co-ordinated with the Russian authorities," he said. "The middlemen in the US immigration system and the Russian FSB could not talk to each other directly without approval from higher up. Someone gave that approval."

When the dissidents arrived in Russia, the Russian authorities were given documents relating to their asylum applications in the US. Those dossiers, outlining their political beliefs and criticisms of Putin, could be used to prosecute them back home, campaigners believe.

Khodorkovsky said the treatment of Russian dissidents by the US posed the question of "whether the current administration is prepared to act as a leader of the democratic world".

He said the deportations were particularly troubling given the Russians were "accompanied by documents that can help fabricate criminal cases against them, and all of this at the expense of the American taxpayer".

"This is no longer about democratic leadership — it's about the risk of being seen as an ally of dictators," he said.

As the article notes, abusive treatment of Russian dissenters fleeing Putin occurred under Biden, as well. And I condemned it at the time. But Trump's expansion of the deportations and collaboration with the Russian government is worse.

Beginning soon after Russia's full-scale invasion of Ukraine, I have argued the US and other Western nations should open their doors to Russians fleeing Putin's increasingly repressive regime. It's the right thing to do for both moral and strategic reasons. Morally, it's wrong to bar people fleeing brutal repression and, in some cases, seeking to avoid being drafted into an unjust war of aggression. Strategically, we benefit from depriving Putin of valuable manpower and from enabling the Russian refugees to contribute to our economy and scientific innovation (Russian immigrants and refugees are disproportionate contributors to the latter).  I have also advocated for Ukrainian refugees, whose interest I cannot easily be accused of neglecting.

Of course, under Trump, policy often seems to be driven by a desire to kowtow to Putin and imitate his authoritarian methods. From that standpoint, deporting dissenters back to the regime that oppresses them makes a kind of sense. Just not the kind that any minimally decent person should ever support.

UPDATE: I suppose this is of a piece with Trump's efforts to deport refugees from other oppressive anti-American regimes, such as those who fled Cuba and Venezuela, Iranian Christians, and Afghans who fled the Taliban.(including many who aided the US during the war). But, in one sense, this is even worse, in that US authorities are directly collaborating with the dictatorship in question.

The post Trump Forcibly Returns Russian Dissenters who Fled Putin appeared first on Reason.com.

[Josh Blackman] Does A Supreme Court Justice Have To Move To The Swamp And "Burn The Boats"?

[I've long thought it would be positive if Justices maintained their primary residences outside of D.C.]

CBS News published another excerpt of Justice Barrett's book. She describes the difficult decision to move her family from South Bend. Barrett explains the process of selling her old home was like Alexander the Great's adage about "burning the boats."

I really loved my job on the Seventh Circuit and settled into the rhythm of hearing arguments and writing opinions. But after a few years, life took another turn: the White House counsel, who runs the judicial selection process for the president, invited me on behalf of President Trump to interview for a seat on the United States Supreme Court. Though I was deeply honored, I thought hard about whether to go forward. I knew that if I was chosen, both the confirmation process and the work of serving on the Court would require sacrifices, particularly from my family. Unlike my job on the Seventh Circuit, this one would require a move to Washington, D.C. We had a good life, wonderful friends, and close family in South Bend. We were attached to our old Prairie-style home, which was a short walk to campus for tailgates during football season—a fall family high- light. The move would mean changes for Jesse's career and new schools for the children. We knew that public criticism was sure to come. And if I was nominated and confirmed, there would be a long-term loss of privacy for all of us. Public service was appealing, but the changes to our personal life were not. . . .

Jesse and I had a very brief time to make one of the biggest decisions in our marriage. His position was full support on one condition: if we did it, we had to "burn the boats." The phrase comes from a military strategy used by Alexander the Great, who, after landing on the shores of enemy territory, ordered his men to burn the ships they had come in. With the option of exit gone, there was no choice but to forge ahead, no matter the challenge. Likewise for us. There would be difficulties in store, some we could anticipate and others we couldn't. Jesse wisely thought that it would be unsustainable to face the difficulties—whether in the confirmation process or beyond—if we gave ourselves the option to look back, wishing that we could unwind what we had done. There would be no second-guessing and no turning back to our comfortable life in South Bend.

Justice Barrett has alluded to this decision in her past speeches. That fact that she so wrestled with this choice, and made it with her family, reinforces how devoted she is to her family.

When President Trump released his original Supreme Court short list, I celebrated the fact that there was no names from Washington, D.C. And when Trump picked Gorsuch for his first seat, and Barrett for his third seat, I was quite pleased we got Justices from what Justice Scalia called "the vast expanse in-between."

There is, of course, a flip side to this dynamic. A person who is acculturated in the swamp understands how it works--no one is truly your friend, and people only use you to the extent that you can advance their agendas. A person who is acculturated outside the swamp, and is then transplanted to the swamp, may not understand how that dynamic works. In other words, a person reared in flyover country is more susceptible to the worst forces of the Capital District.

One way to immunize yourself to those forces, of course, is to spend as little time there as necessary. Due to the unique nature of the Supreme Court's calendar, I don't think it is even necessary to move. If my math is right, a Justice only has to be in Court about 20 weeks or so per year.

The Supreme Court generally has no in-person activities during the months of July, August, and September. At the end of September there is the long conference, and two weeks of oral argument. There are two weeks of oral argument in November and two weeks of argument in early December. Thanksgiving and Christmas break are safe. Arguments resume the second and third weeks in January. Most of February is free, and there are about four weeks of argument in February into March. There are usually two weeks of argument at the end of April. There are no arguments in May, though there are weekly conferences. June also has no arguments, but there are weekly conferences, and hand-downs.

In the abstract, a Justice could easily commute for this job, and still spend the vast majority of the calendar at home with their family. Indeed, members of Congress usually maintain their primary residences at home, and commute on weekends. The Supreme Court calendar is far more conducive to commuting.

There are, of course, objections. First, what about cost? Wouldn't it be expensive to fly back and forth, and maintain a separate residence in the District of Columbia? No. The Justice wouldn't need to buy a large home in the D.C. area. Many members of Congress keep a bedroom in their offices. I don't think it would be hard to convert part of a Supreme Court justice's chambers into a living quarter. Morever, I would wager that a year of direct flights between D.C. and a home city would be far less than the cost of mortgage payments for a home in the Beltway. If a Justice followed this approach, they wouldn't need a multi-million dollar book deal to buy a home.

Second, what about the Justice's absence from the building? My understand is that Justice Stevens lived most of the year at his beach home in Florida, and flew up for oral arguments. He communicated with his law clerks by electronic means. As things stand now, I think some Justices see their law clerks far less than average people might assume. Some of the Justices maintain very busy travel schedules, and may not even be in the building when oral arguments or conferences are not scheduled. Indeed, there might be some value in keeping one or more clerk in remote chambers outside of the District of Columbia. There can be more time to focus and fewer distractions. Maybe some clerks will only want the experience of being at First Street. There are eight other Justices to apply to.

Third, wouldn't a commuting Justice be less able to interact with his or her colleagues? Yes, and I see this as a feature, not a bug. As a general rule, when the Justices make deals and compromises, they invariably move the Court to the left rather than the right. Show me a case where a "deal" led to some more conservative result. At least on the current Court, I think isolationism would help originalism. Cases can be discussed at conference.

The biggest benefit, by far, is that the Justice would spend less time in the awful environment that is Washington, D.C. You can't attend a cocktail party in Georgetown if you are attending a potluck dinner. Your children will not have to be exposed to all the types of protestors and other negative influences. Perhaps most importantly, you will never forget what matters in the real world.

As I've often said, an Article III commission is life tenure, not a life sentence. One doesn't have to burn the boats.

I have considered this thought experiment before Barrett's burning boat point. Maybe the next Supreme Court justice will publicly vow to keep his or her family parked at home, and he commute only when necessary.

The post Does A Supreme Court Justice Have To Move To The Swamp And "Burn The Boats"? appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: September 7, 1958

9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.

The post Today in Supreme Court History: September 7, 1958 appeared first on Reason.com.

[Eugene Volokh] Sunday Open Thread

[What's on your mind?]

The post Sunday Open Thread appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: September 6, 1983

9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).

The Rehnquist Court (1989)

The post Today in Supreme Court History: September 6, 1983 appeared first on Reason.com.

[Ilya Somin] The Government's Cert Petition to the Supreme Court in Our Tariff Case - and Our Response

[We agree the Court should take the case and resolve it as quickly as possible, to minimize the harm caused by the illegal tariffs.]

NA

Earlier this week, the Trump administration filed a petition for certiorari urging the Supreme Court to review the Federal Circuit decision in the case challenging the president's massive "Liberation Day" tariffs, brought by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs (we were later joined by leading constitutional law scholars and Supreme Court litigators Neal Katyal and Michael McConnell). The government also submitted a motion for expedited review.

Today, we submitted a response to the petition, in which we agree the Supreme Court should hear the case and resolve it quickly, so as to put an end to the harm caused by the illegal tariffs as quickly as possible. We previously prevailed in the Court of International Trade, and on appeal in the Federal Circuit, and I hope the Supreme Court - should it take the case - will rule the same way.

Our case is consolidated with one filed by twelve state governments, led by the state of Oregon. Both challenge massive tariffs Trump has imposed under his supposed authority under the International Emergency Economic Powers Act of 1977 (IEEPA).

By now, this litigation has generated thousands of pages of briefs and other filings, and 176 pages of judicial opinions (if I have the count right). But underneath all the legalese, the central issue at stake is actually a simple one: Does our constitutional system give one man - the president - the power to impose any tariffs he wants, in any amount, on any nation, at any time, for any reason? If the answer is "no," then the IEEPA tariffs are illegal.

And the answer should indeed be "no," because the Framers of the Constitution carefully avoided giving the executive the kind of unbridled tax authority claimed by power-grabbing English monarchs, like Charles I. The president cannot wield monarchical power, and letting him do so is an affront to the rule of law.

We have presented an assortment of more detailed reasons why "no" is the right answer to the central question raised by this case: the fact that IEEPA doesn't even mention tariffs and has never previously been used to impose them, that there is no "unusual and extraordinary threat" of the kind required to invoke IEEPA, the major questions doctrine, the constitutional nondelegation doctrine, and more. These points are covered in much greater detail in our various legal filings (see the Liberty Justice Center site for a compilation), and in some of my earlier writings about the litigation.

If the Supreme Court takes the case, there may well be many additional briefs, and other filings. Such materials are important. But it is also essential to remember the deeper principle underlying all the details: the president is not a king, and our Constitution does not grant him monarchical power.

The post The Government's Cert Petition to the Supreme Court in Our Tariff Case - and Our Response appeared first on Reason.com.