Eugene Volokh's Blog, page 75

[Eugene Volokh] "Houston Housing Authority Cited over a Dozen Cases in a Legal Brief. Almost None of the Quotes Exist."

Houston Chronicle (R.A. Schuetz) reported yesterday:

In a lawsuit over whether a woman should have lost her housing subsidy, the Houston Housing Authority's lawyer asked a judge not to force the agency to prevent the woman's eviction while the case was being decided. The brief, submitted by a law firm that frequently represents cities and agencies in the Houston area, cited over a dozen cases in support of its argument.

The only problem? Almost none of the quotes actually exist, a Chronicle analysis shows….

The firm's managing attorney "said in an email that because the court required the brief to be filed within a short timeframe, the quick turnaround 'prevented our usual multi-attorney review.'"

But he did not address why 11 of the 13 cases directly quoted did not actually contain those quotes or why many did not seem related to what his firm had quoted them as saying. He also did not respond when asked if artificial intelligence, which is known to "hallucinate," or say things that are not true, had been used to draft the brief.

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[Josh Blackman] Today in Supreme Court History: June 17, 1963

6/17/1963: Sherbert v. Verner is decided.

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[Stephen Halbrook] Second Amendment Roundup: U.S. Files Amicus Brief in Illinois Rifle Ban Challenge

[Brief argues that no “militaristic” arm exception exists.]

The United States has filed an amicus brief in Barnett v. Raoul, the challenge to Illinois' ban on semiautomatic rifles and standard magazines pending in the Seventh Circuit.  This is the first time the Department of Justice has ever argued against such a ban.  It defended the federal ban that was enacted in 1994 and expired in 2004.

As the brief recalls, in Bruen (2022) the Supreme Court emphatically reinforced the Heller rule that the Second Amendment protects firearms in common use by law-abiding persons for lawful purposes.  "Regrettably, not every State got the message. Just a few months after Bruen, Illinois outlawed some of the most commonly used rifles and magazines in America via a so-called 'assault weapons' ban."  And after that, in Bevis v. City of Naperville, the Seventh Circuit overturned the district court's preliminary injunction against enforcement of the ban on the basis that the plaintiffs were unlikely to prevail.

As the United States argues, Bevis got it wrong even under pre-Bruen precedents.  Thereafter, multiple Supreme Court Justices have expressed disagreement with Bevis, and Justice Kavanaugh said that the Court is likely to grant certiorari "in the next Term or two."  (See my post here.)  Moreover, the district court in Barnett heard critical, unrebutted evidence in a multi-day bench trial and found that the ban violates the Second Amendment.

The brief covers familiar ground, but does condition some of its statements with an eye toward future defense of federal law.  It says that "many" (not all) of the banned firearms, particularly the AR-15, are "Arms" under the Second Amendment, which per Heller "extends, prima facie, to all instruments that constitute bearable arms."  For purposes of the brief, it does not challenge the district court's findings that .50 caliber rifles and pistols are not protected.  (The district court was "not convinced that any law-abiding citizen would keep a .50 caliber sniper rifle at home for self-defense purposes," although that ignores militia use.)  But the brief adds "cf." the Supreme Court's recent statement in Smith & Wesson Brands v. Estados Unidos Mexicanos that ".50 caliber sniper rifles . . . are both widely legal and bought by many ordinary consumers."

While in the future the Department of Justice will continue to be called upon to defend the restrictions of the National Firearms Act, the NFA's definition of a "destructive device" does not include .50 caliber (= one half inch) barreled firearms.  It instead covers a weapon "the barrel or barrels of which have a bore of more than one-half inch in diameter," excluding shotguns found to be "particularly suitable for sporting purposes."  The brief adds that "at least one type of weapon banned by the Act—grenade launchers—may not qualify as an 'Arm' because it is more like artillery or explosives."  All of these items are within the NFA's definition of "destructive device."

The brief also touches on another NFA device, silencers, which Congress (with the apparent approval of the Administration) is currently seeking to remove from the NFA.  (See my post here.)  In explaining that the Illinois Act violates the Second Amendment by banning magazines that are in common use, the brief generalizes that "firearm attachments that are useful to the exercise of the right, including magazines, suppressors, and other firearm attachments" are protected.  It references its recent Supplemental Response in United States v. Peterson arguing that "a complete ban on suppressors would be unconstitutional."  That concession may assist in challenging state laws that totally ban suppressors.  But the Response also argues that the NFA's tax and registration requirements survive Second Amendment scrutiny.

Most of DOJ's Barnett brief is devoted to the familiar theme that the banned rifles meet the Heller-Bruen common-use test.  The district court's multi-day bench trial made extensive factual findings that are not clearly erroneous.  If it wants to overturn these findings, the Seventh Circuit will have to engage in substantial judicial antics to reach a preconceived result.

There is one legal point on which the brief uniquely took issue with the Bevis claim that "militaristic" firearms are not even "Arms."  It goes without saying that, lacking capacity for full auto, the semiautomatic AR-15 simply "is not a military weapon," which explains why no military force in the world issues it as a standard service arm.  Textually, the Second Amendment's prefatory clause—"A well regulated Militia, being necessary to the security of a free State"— does not limit the scope of its operative clause.  It protects arms both for individual self-defense and collective self-defense.

Historically, "the English and American people were the first line of defense from military invasion, insurrection or public unrest, and even government oppression."  Precedents from the nineteenth and early-twentieth centuries confirm protection for possession of arms for the common defense.  As Thomas Cooley wrote in The General Principles of Constitutional Law in the United States, "The arms intended by the Constitution are such as are suitable for the general defen[s]e of the community against invasion or oppression[.]"

The brief was signed by Chad Mizelle, Acting Associate Attorney General, and Harmeet K. Dhillon, Assistant Attorney General, Civil Rights Division.

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[Eugene Volokh] Professors' Labor Unions Lack Standing to Challenge Government's Cancellation of Grants and Contracts to Columbia

From Judge Mary Kay Vyskocil's opinion today in American Association of University Professors & American Federation of Teachers v. U.S. Dep't of Justice (S.D.N.Y.):

[P]laintiffs seek a preliminary injunction requiring Defendants to pay out to non-party The Trustees of Columbia University in the City of New York … "approximately $400 million in federal grants and contracts to Columbia," funded by the American taxpayers, which several executive agencies recently terminated because, among other reasons, the grants and contracts "no longer effectuate[d] … agency priorities" and "for the convenience of the Government." Plaintiffs further seek to prospectively enjoin Defendants from terminating, "pausing," "or otherwise interfering with" more than $5 billion in active taxpayer-funded grants and contracts to Columbia. Conspicuously, Columbia, whose grants and contracts were terminated and whose funding is the subject of the relief Plaintiffs seek, is not a plaintiff.

With no apparent sense of irony, lawyers for an organization called "Protect Democracy" insist that a district court judge should order the Executive Branch immediately to restore the flow of taxpayer dollars to an elite university, which funding Defendants represent is inconsistent with the priorities of the duly elected President of the United States. Our democracy cannot very well function if individual judges issue extraordinary relief to every plaintiff who clamors to object to executive action. Neither the Executive Branch nor the Legislature ever awarded the grants and contracts at issue to Plaintiffs or any of their members. The funding that Plaintiffs ask this Court to commandeer was awarded to Columbia, which is conspicuously absent from this case. If any funds have been wrongfully withheld, such funds may be recovered at the end of a successful lawsuit by the appropriate plaintiff in an appropriate forum.

Plaintiffs lack standing to assert the claims they purport to allege in this case. They are inserting themselves into a quarrel between the Executive Branch and non-party Columbia, which, Plaintiffs' own submissions make clear, Columbia wishes to resolve cooperatively, and perhaps through administrative appeals, without resorting to litigation that might further imperil Columbia's resources and reputation. Indeed, Plaintiffs' and Columbia's different assessments of the litigation risks simply underscores that non-party Columbia is the party with "the personal stake in the litigation." This Court has no authority to opine on the legality of Executive Branch actions against an entity that is not a party to this case.

As the Supreme Court has stressed, "plaintiffs must demonstrate standing for each claim that they press against each defendant, and for each form of relief that they seek." The principal relief Plaintiffs seek is a judicial order commanding executive agencies to pay out money to non-party Columbia pursuant to grants and contracts that were previously awarded by executive agencies to non-party Columbia. However, as set forth above, neither Plaintiffs nor their members were ever the recipients of those grants and contracts. "Absent a contractual relationship there can be no contractual remedy." Hillside Metro Assocs., LLC v. JPMorgan Chase Bank, Nat. Ass'n (2d Cir. 2014) (holding that a party lacks prudential standing to enforce a contract "to which it is neither a party nor a third-party beneficiary").

{Plaintiffs' members may have benefited from federal funds, but "[p]roving third- party beneficiary status requires that the contract terms clearly evidence an intent to permit enforcement by the third party in question." Here, Plaintiffs offer no evidence that their members were third-party beneficiaries to any grants or contracts. Rather, the relevant evidence demonstrates that, for example, the NIH awarded grants to Columbia alone (which, in turn, designated the principal investigator on the grant from among its faculty). With respect to enforcement, Plaintiffs' own evidence suggests that Columbia had to conduct "appeals" of "the University's federal research portfolio" and was merely enlisting "help to be prepared to file such appeals" from Plaintiffs' members. This evidence suggests that non-party Columbia's grants and contracts did not contemplate enforcement by Plaintiffs' members.}

{Relatedly, Plaintiffs purport to assert a claim pursuant to the "unconstitutional conditions" doctrine, but, as Plaintiffs themselves quote the Second Circuit explaining, that doctrine prohibits the government from placing "a condition on the receipt of a benefit or subsidy that infringes upon the recipient's constitutionally protected rights." Neither Plaintiffs nor their members are "the recipient" of any of the grants or contracts at issue in this case.} …

Furthermore, with respect to each of their numerous claims, Plaintiffs fail to show any cognizable injury to themselves and fail to show injuries to their members that are fairly traceable to any defendant. Organizations, such as Plaintiffs, may assert standing in two ways. First, an organization may assert "standing in its own right to seek judicial relief from injury to itself." Second, an organization may "assert 'standing solely as the representative of its members.'" The second "approach is known as representational … standing." Id. To establish representational standing, "an organization must demonstrate that '(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'"

Plaintiffs unconvincingly assert that "[e]ach Plaintiff independently has" standing in its own right "because Defendants' actions have 'directly affected and interfered with [Plaintiffs'] core business activities,' not merely their 'abstract social interests.'" Plaintiffs' core business is to be labor unions. Query how many of the "1.8 million" dues-paying members of the AFT, including nurses and paraprofessionals, believe its core functions include paying a cavalry of lawyers to argue the "transcendent" importance of taxpayer funding for an elite university. {According to the docket sheet, at least eleven attorneys represent Plaintiffs in this case.}

To be sure, Plaintiffs submit evidence that the AAUP is not only a labor union but also a "membership association" with a "mission" to "advance academic freedom." Nevertheless, Article III standing requires "far more" than an alleged "setback" to the AAUP's interest in academic freedom. To establish an injury-in-fact to itself, the AAUP must show a concrete harm that has actually occurred or is "certainly impending." The AAUP submits that it has suffered an injury because it has "diverted internal resources of staff time and expenses to assist Columbia members in the [Middle East, South Asian, and African Studies, i.e.,] MESAAS Department and other departments prepare to respond to the Trump Administration's demand[] that the MESAAS Department be put under academic receivership, and to respond to the internal governance steps Columbia has announced."

Fatally for Plaintiffs, the Supreme Court has held that "an organization that has not suffered a concrete injury caused by a defendant's action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant's action." The AAUP cannot establish an injury-in-fact merely because it elected to expend resources preparing to respond to a potential development that has not occurred and is not "certainly impending." The Columbia MESAAS Department is not under academic receivership. As discussed further below, any resources Plaintiffs expended "respond[ing] to the internal governance steps Columbia has announced" are not injuries traceable to Defendants. Neither the ATF nor the AAUP has demonstrated a cognizable injury to itself.

Turning to representational standing, Plaintiffs fail to establish that any injuries their members may have suffered are fairly traceable to Defendants. As noted above, the Court does find that some of Plaintiffs members used federal grants to Columbia for their academic work. The loss of professional opportunities or income may certainly constitute an injury in some cases. However, here, Plaintiffs have not demonstrated that it makes a difference to their members whether the funding for their research and salaries comes from American taxpayers, non-party Columbia's multi-billion-dollar endowment, the largess of Columbia's donors, or the eye-popping tuition bills paid by Columbia students, including the Jewish students who apparently paid for the privilege of being threatened with violence on their way to class.

Indeed, Plaintiffs' own evidence demonstrates that "Columbia has committed to providing salary coverage during this immediate period of uncertainty for personnel whose grants have been terminated." Plaintiffs' own evidence also demonstrates that Columbia has relied on "generous alumni" to alleviate certain "unanticipated expenses." Insofar as Columbia elects not to use its various private resources to fund specific research and personnel, Plaintiffs' members' quarrel is with Columbia.

Plaintiffs likewise fail to establish representational standing based on the alleged chilling of their members' speech and academic freedom. The numerous declarations in which Plaintiffs' members (and other individuals affiliated with Columbia with whom Plaintiffs appear to have no relationship whatsoever) attest to their "subjective" feelings of being chilled are not sufficient for standing. Plaintiffs have not demonstrated that Defendants have harmed them because of their protected First Amendment activities or threatened a specific, imminent future harm for such protected activities.

Plaintiffs contend that their "members fear that their speech and scholarship, if not aligned with the Trump administration, could trigger additional punitive funding freezes" and "demands by Defendants that their academic departments, too, be placed in academic receivership." Plaintiffs also contend that Columbia's announced reforms reflect Columbia simply "acquiesc[ing] to" Defendants' "demands." Plaintiffs' contentions about their members' fears, Defendants' possible future actions (and the purportedly punitive nature of such actions), and Columbia's actions are all purely subjective and speculative. Evidence in the record, including Plaintiffs' own evidence, contradicts Plaintiffs' account.

As discussed above, Defendants submit evidence that they have terminated funding to Columbia because such funding was used in ways that was no longer consistent with agency priorities and for the convenience of the government. Plaintiffs posit that any "reasonable person would understand that Defendants' actions" were "directed squarely at suppressing speech, association, and academic freedom rights." According to Plaintiffs, Defendants acted to punish "any support for Palestinian freedom and an anti-war perspective." However, evidence submitted by both sides supports finding that the defendant executive agencies were responding to incidents other than protected speech and activities.

Indeed, Executive Branch communications about the termination of funding to Columbia expressly cited Columbia's protracted failure to respond to the occupation of an academic building, "Hamilton Hall," and other "disruption[s] of [the] teaching, research, and campus life" that the taxpayers were supposedly funding. March 13 Letter; see NIH Letter ("Columbia's ongoing inaction in the face of repeated and severe harassment of Jewish students has ground day- to-day campus operations to a halt" and "deprived Jewish students" and others "of learning and research opportunities"). Columbia's own reports, which Plaintiffs put into evidence, identified incidents of "physical harm to students." Rosenthal Decl., Ex. 53 at 2–3 (reporting that Jewish students "were on the receiving end of … physical assaults," and there was "a recurring lack of enforcement of existing University rules and policies"). This evidence does not support the subjective feelings of Plaintiffs' members that funding has been or will be cut to punish protected speech and scholarship. Thus, in light of the Supreme Court's instruction to perform an "especially rigorous" standing inquiry before proceeding to the merits of a claim that "an action taken by one of the other two branches of the Federal Government was unconstitutional," the Court concludes that Plaintiffs fall short of demonstrating that their members have experienced more than a subjective feeling of chill in response to actions by any defendant.

Relatedly, as noted above, Plaintiffs fall short with respect to traceability. Based on Plaintiffs' own evidence, it was Columbia, not any of the defendants, that reached out to Plaintiffs' members to advise them that their scholarship was not aligned with the funding priorities of the Executive Branch based on Columbia's own "analysis," which analysis Columbia had performed "[e]arlier [in the] year," before the termination of any funding and before the March 13 Letter. That email expressly was unrelated to any "notifications" about "antisemitic actions."

Crucially, Columbia had been planning the reforms it announced in its March 21 Memo, which was about antisemitism on campus, for "many months" before any of the defendants made any demands. Moreover, Columbia did not merely implement the steps listed in the March 13 Letter from executive agencies, but rather exercised independent judgment. For example, as noted above, Columbia did not comply with the demand to place the MESAAS Department under academic receivership but, instead, appointed a "new Senior Vice Provost" to review Columbia's whole "portfolio of programs in regional areas," starting with the Middle East, with goals to "promot[e] excellence" and "intellectual diversity." Such "independent action of [a] third party not before the court" breaks the causal chain between Defendants and any alleged injury. Insofar as Plaintiffs' members feel chilled by any actual changes that have taken place at Columbia, such as the review of the MESAAS Department, Plaintiffs have not shown that Columbia's actions were merely the "predictable" response to the demands of the executive agency defendants.

Furthermore, Plaintiffs stress that "[d]espite Columbia's compliance," funding has not been restored. Yet Plaintiffs apparently fail to grasp that one possible inference from this state of affairs is that funding cuts were made and maintained not to punish speech but because, for example, it is not consistent with the priorities of the NIH under the current, democratically- elected President, to continue to fund Columbia's research into the impact of climate change on the mental health of women in East Africa. Declining to fund such research is not a First Amendment injury….

The Court simply notes that the Supreme Court's recent, albeit brief, opinion in Department of Education v. California (2025), raises several additional hurdles for Plaintiffs. As noted above, the Supreme Court characterized DOE "grants" as contracts and ruled that, as such, the district court in that case likely lacked jurisdiction to order relief because "the APA's limited waiver of immunity does not extend to orders to enforce a contractual obligation to pay money," and "the Tucker Act grants the Court of Federal Claims [exclusive] jurisdiction over suits based on … contract[s] with the United States." In all events, the principal relief Plaintiffs seek is money, and it is well-established that a party cannot show the irreparable harm required to obtain a preliminary injunction where "money damages" can provide redress.

The Court also notes, with respect to the merits, that Plaintiffs posit, without citation to any authority, that the Executive Branch may not count repudiating antisemitism among "agency priorities" within the meaning of 2 C.F.R. § 200.340(a)(4). The Court is not aware of authority for that particular limitation on agency priorities. Rather, all of Plaintiffs' arguments that Defendants violated the APA (and the separation of powers) by failing to comply with procedural requirements for cutting funding pursuant to Title VI simply presuppose that Title VI is the exclusive vehicle by which the Executive Branch may withdraw financial support for an institution that allows religious discrimination.

The Court urges Plaintiffs, and the amici who decry Defendants' alleged failure to follow Title VI to the letter, to review the text of that statute. Title VI does not mention religion. See 42 U.S.C. § 2000d ("No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."). As such, it strikes this Court as unlikely that Title VI is the sole and exclusive "legal tool[]" available to a President who instructs executive agencies to prioritize "combat[ting] anti-Semitism … on university and college campuses."

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[Eugene Volokh] That's No Moon

(Image from European Space Agency.)

From the European Space Agency today, "Proba-3's first artificial solar eclipse":

This March, Proba-3 achieved what no other mission has before – its two spacecraft, the Coronagraph and the Occulter, flew 150 metres apart in perfect formation for several hours without any control from the ground.

While aligned, the pair maintain their relative position down to a single millimetre – an extraordinary feat enabled by a set of innovative navigation and positioning technologies.

Demonstrating the degree of precision achieved, the two spacecraft use their formation flying time to create artificial total solar eclipses in orbit – they align with the Sun so that the 1.4 m large disc carried by the Occulter spacecraft covers the bright disc of the Sun for the Coronagraph spacecraft, casting a shadow of 8 cm across onto its optical instrument, ASPIICS.

And here's the actual corona, with the full occulting:

(Also from the European Space Agency.)

The post That's No Moon appeared first on Reason.com.

[Josh Blackman] See, I Told You So About Justice Barrett

[Justice Barrett compares the Constitution to Odysseus. But I feel like Cassandra. ]

Jodi Kantor published a detailed expose about Justice Barrett. Very little here surprises me. I've laid out the case many times. Based on Barrett's record, she should have never been nominated for the Seventh Circuit, she should have never been put on the Supreme Court "short list" before she decided a case, she should have never been a finalist for Justice Kennedy's seat barely a year into her tenure on the Seventh Circuit, and she should have never been elevated to Justice Ginsburg's seat with so much unknown about her. Yet, all the while, people who held important positions in the conservative legal movement assured us that Barrett was "solid." They could point to nothing tangible to make this case, other than their personal connections with Barrett, her academic credentials, and her Scalia clerkship. In the end, Kantor writes, President Trump picked the candidate he thought would help him get re-elected.

As President Trump was leaning toward appointing Amy Coney Barrett to the Supreme Court five years ago, some advisers shared doubts about whether she was conservative enough. But he waved them away, according to someone familiar with the discussions. He wanted a nominee religious conservatives would applaud, and with an election approaching, he was up against the clock.

Justice Barrett is who she is. I think it is a mistake to say she is "drifting," since she really didn't have a starting place for jurisprudence. She is figuring things out as she goes along. So it is hard to blame Justice Barrett for doing what was entirely predictable. Indeed, I think Barrett is doing exactly what an untested and inexperienced law professor would do if elevated to the Supreme Court. Truly, I don't blame her. People misunderstand my criticism of Justice Barrett.

Other than some members of the Scalia clerk family, Barrett's biggest defenders are in the academy. It's hard to blame law professors--especially those who were friends with Barrett before she was nominated. Moreover, when law professors defend Justice Barrett, they are not merely defending ACB. They are defending their own guild--the notion that a law professor can be the ideal type of judge.

Finally, the blame should not lie with President Trump. He made the best decision he could based on the names put before him. It's not the President's job to vet the pool of Supreme Court nominees. I think he is already experiencing buyer's remorse.

So who bears the blame? The blame should lie with those who pushed Barrett forward at every stage of the process. Despite everything we learned from the Roberts and Souter nominations, people just wanted to believe Barrett would be something she is not. And we will pay the price for that hubris for decades to come.

Kantor quotes Barrett who drew an analogy between the Constitution and Odysseus.

In classroom lectures, she used to say that the country had bound itself to the Constitution the way Odysseus had tied himself to the mast of his ship, to resist whatever political sirens swam up.

To continue the mythological theme, I feel like Cassandra. I predict what will happen, but no one will listen to me. Maybe that will change.

Let's walk through the details from the Times.

First, Kantor offers some new insights about PennEast Pipeline v. New Jersey.

Soon after Justice Barrett arrived at the court she began surprising her colleagues. Chief Justice John G. Roberts Jr. assigned her to write a majority opinion — among her first — allowing the seizure of state property in a pipeline case, according to several people aware of the process. But she then changed her mind and took the opposite stance, a bold move that risked irritating the chief justice.

This case split 5-4. Chief Justice Roberts wrote the majority opinion, which was joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. Justice Gorsuch wrote one dissent, which was joined by Justice Thomas. Justice Barrett wrote a second dissent, which was joined by Justices Thomas, Kagan, and Gorsuch.

Jon Adler writes that Barrett "did not lose the majority so much as she abandoned it by changing her position." That is right. It is also possible that Justice Kagan tagged along with Barrett, turning a 7-2 decision into a 5-4. I've long suspected Roberts tries to keep 5-4s down to a minimum, but these sorts of heterodox splits are hard to complain about. At the time, I noted Kagan's joining of Barrett:

More often than not, Justice Kagan has to suppress those urges to keep a majority opinion. But during oral arguments, and when she is in dissent, Kagan shows her scholarly flair.

I didn't appreciate at the time how Kagan was trying to cozy up with Barrett. PennEast may have been one of the early datapoints. And the double-flip would have really irritated the Chief Justice, since he probably saw EK's game.

I wrote two posts about PennEast back in June 2021. For those who care about the flashback, I praised Barrett's dissent. I wrote:

I'm glad to see that Justice Barrett is flexing her intellectual muscles. Her Penn East dissent was the strongest opinion she has written so far.

I've often thought about PennEast. It showed so much potential. But I haven't seen anything from Barrett in this ballpark in recent years. Instead, we just see this caution and hesitancy.

Second, Kantor elaborates on her previously reporting concerning Dobbs: namely, Barrett did not want to grant cert.

That term, he was pushing to hear Dobbs v. Jackson Women's Health Organization, the case that would eventually overturn the federal right to abortion. Justice Barrett initially voted with him, but voiced concerns about taking on such a big issue so soon after her arrival at the court, then switched to a no, according to two people familiar with the process. Justice Alito and three other male justices, the minimum to accept a case, greenlighted it and bet correctly that she would vote with them on the ultimate decision, upending a right that had stood for a half-century.

Surely Barrett couldn't think that the abortion issue would benefit from percolation (like in Snope). And Dobbs didn't arrive on the emergency docket. There was absolutely nothing for a procedural originalist (or is it an original proceduralist) to object to. The only reason Barrett would not vote to grant cert in Dobbs was that she was either (a) worried she might affirm or (b) worried about the optics of overruling Roe so quickly. Kantor supports the latter, but I'm not sure certain. I am still dubious about Judge Thomas saying he hadn't thought about Roe since law school. Had Professor Barrett--a Scalia clerk!--really never thought through about whether she would vote to overrule Roe? And did she not have an answer in mind when she was first confirmed?

But once cert was granted, Barrett promptly joined the majority opinion. There was no half measure, or way to prolong the Roe status quo.

Third, I remained convinced that if the Court had punted on Dobbs, ACB circa 2025 or later would not vote to overrule Roe. Indeed, I think the 2022 term transformed her. That will likely be seen as an inflection point. And Kantor supports that observation:

After Justice Barrett's second term, her agreement on outcomes with Justice Alito slid from 80 percent to 62 percent, according to the analysis prepared for The Times, by Lee Epstein and Andrew D. Martin, both of Washington University in St. Louis, and Michael J. Nelson, of Penn State. At the same time, Justice Barrett was forging bonds with Justices Sotomayor and Kagan. For them, nearly all roads to victory run through the justice from South Bend, Ind.

I am grateful that Justice Alito carried the Dobbs ball across the goal line in that landmark term. And kudos to Justice Kavanaugh for providing the fourth vote for certiorari.

Fourth, the article says in several places that Professor Barrett was not interested in becoming a federal judge:

When others tried to draft her for the bench, she was uncertain about becoming a judge, according to those who know her well. . . .

Though others envisioned her on the bench, she was not sold. By 2017, when a seat opened up on the U.S. Court of Appeals for the Seventh Circuit, covering three Midwestern states, she had a stack of teaching awards and a brimming family life, including a young child with Down syndrome. William Kelley, a Notre Dame colleague with Washington connections, encouraged her but figured she would not pursue it, he said.

"Attention, power, cool things, elitism — she has zero interest," he said of his friend, who once served on the university's parking committee.

I've often said that a person who wants to become a judge should have no business becoming a judge. I suppose the opposite is also true: a person who doesn't want to become a judge has no business becoming a judge. The careful reader may observe a contradiction here. So be it. But I think both statements are true. People who are hell-bent on becoming a judge will say or do anything to appease the right people who can elevate them. On the plus side, wannabe-judges will have been seasoned in swamp culture and can navigate political morasses. On the down-side, wanna-be judges have been seasoned in swamp culture and can navigate political morasses.

In much the same way, Barrett was the worst conceivable candidate precisely because she had never been tested in any meaningful way. Being a smart academic is not preparation for being a federal judge. And don't even try to compare ACB to Scalia, Bork, Breyer, or Ginsburg, who all had relevant experience in the other branches of government. I remain convinced that the closest analogue for Barrett is Justice Frankfurter: an academic with huge expectations, who when given a robe, defaults to restraint.

Indeed, the types of things that Professor Barrett wrote about were bland and dry--not exactly the big-ticket issues that a Supreme Court justice has to grapple with. Kantor writes:

She won a clerkship with Justice Antonin Scalia but then chose the quiet work of a law professor. Not the hotshot kind: "She wasn't trying to break big new ground," recalled Joseph P. Bauer, her civil procedure teacher and, later, fellow faculty member. "She is not going to present an argument that shifts the paradigm, or reconceives ways of looking at things, or makes big moves."

The courses she taught were about the rules of the road — evidence, procedure, the fine-grained reading of laws. In her own scholarship, she delved into questions that even some academics considered too nerdy to answer. Mark McKenna, a former faculty member, said, "I remember people pushing her, Does anyone care about these things?"

A recent article described Barrett as "one of the nation's leading scholars on textualism and originalism." The editors should have fact-checked the statement. Barrett wasn't even a leading scholar on her own faculty. Professor Barrett did not make the top-ten of her own faculty in 2010, 2012, 2015, and 2018. Check the Leiter's rankings from 2015. I'm not sure that Barrett did much actual originalist scholarship--that is, determining the original meaning of any part of the Constitution. I know Barrett critiqued other originalists, like Randy Barnett, but how much originalism did she do herself? Yet, she lectures Justice Thomas and flunks leading originalist litigators about not providing enough proof.

Fifth, Kantor's article makes clear that Justice Alito has zero patience for Justice Barrett.

The differences between Justices Barrett and Alito are deeper, say people who have worked with them, as well as outsiders who see them as foils in a debate over how to interpret and shape the law.

Justice Alito, 75, is in a hurry to take advantage of the conservative dominance on the court, barely disguising his annoyance at times when the other conservatives don't go along with him. Justice Barrett, who is likely to have a much longer future at the court, measures every move. "We can see from her opinions that she's a careful, precise thinker, and she's been thrust into this very volatile environment," said Ed Whelan, a conservative legal commentator.

But who has the patience? Justice Kagan has all the time in the world. Delay is the name of the game. Every time that Justice Barrett votes to deny cert, Justice Kagan will celebrate. Kantor writes:

Initially, the mother of seven appeared to have little in common with Justice Kagan, who had cracked senators up at her confirmation hearing with a joke about spending Christmas at a Chinese restaurant. Some conservatives who have worked at the court are wary of Justice Kagan, because of her record of crafting compromises and narrowing decisions with which she disagrees, and her practice of gathering internal intelligence about the views of her colleagues to see where decisions are going.

Justice Kagan, though, is the only other academic on the court. She also votes with conservatives more than Justice Sotomayor. When Justice Barrett wrote her critique of Justice Thomas's approach in the "Trump Too Small" case — which amounted to a declaration that some versions of originalism went too far — Justice Kagan signed on.

I wrote that Vidal v. Elster was the sleeper case of the term, in that Barrett purported to lecture Justice Thomas about how to do originalism.

Remember, Dean Elena Kagan was distinguished by bringing conservatives to the HLS faculty. In 2009, Laurence Tribe warned President Obama to not pick Judge Sotomayor, and instead select Kagan who would have "purchase" on Justice Kennedy. Tribe could not have imagined how perfectly suited Kagan was to mold and shape Barrett. I've said that John Roberts was George W. Bush's most long-enduring decision. I think Elena Kagan was Obama's most long-enduring decision.

***

What then can be done about Justice Barrett? One approach is to pretend the problem does not exist. Some conservatives would rather stick their heads in the sand, and pretend that Justice Barrett is the distinguished and principled jurist, while Justice Thomas is the partisan hack. They are living in a strange distortion reality field.

The other option is to criticize Barrett from the right, fairly but accurately, as I've done from years. Yet, perversely, it is the critics of Barrett who are blamed within the conservative legal movement. Look at me! I may write about this topic more in the future.

The post See, I Told You So About Justice Barrett appeared first on Reason.com.

[Eugene Volokh] Restriction on Gun Possession Within 1000 Feet of School Constitutional, at Least When Possessor Is "Behaving Erratically and Menacingly"

[The Fifth Circuit hands down a highly fact-specific decision in a Second Amendment challenge to a federal law.]

From U.S. v. Allam, decided today by Fifth Circuit Judge Cory Wilson, joined by Judges James Graves and Stephen Higginson:

In August 2022, Allam embarked on a road trip in his father's SUV from his home in Brooklyn, New York. By early January 2023, he pulled into Beaumont, Texas, via a circuitous, cross-country route. By the time he arrived in Texas, he possessed an AR-15-style rifle that he had purchased along the way in Pennsylvania. Since leaving New York, he had also been living in the SUV; he continued to do so while he was in Texas.

In Beaumont, Allam began parking his SUV for extended periods next to St. Anthony Cathedral Basilica School, a private school for students from pre-kindergarten through 8th grade. The Beaumont Police Department (BPD) was first alerted to his presence near the school on January 5. When approached by a BPD officer and asked if he had any guns or weapons, Allam replied that he did not. After being advised to park elsewhere, Allam was sighted in the following days near the Beaumont Civic Center and in front of a nearby Jewish synagogue for extended periods, prompting synagogue members to call BPD repeatedly.

Allam returned to the vicinity of St. Anthony around January 22 and remained parked next to the school almost continually, causing "fear and concern" among the school community. Attempts by teachers, BPD, and members of the public to get Allam to leave were unsuccessful. Due to Allam's presence, the school "stopped having any type of outside … activity," including "softball[,] … cheerlead[ing,] … [and] recess," and the school prohibited students from "walking between classes outside."

On Sunday afternoon, January 29, a school parent confronted Allam, who was sitting in his SUV parked adjacent to the school, and asked him to leave the area. Allam responded that he had a "mission" and that no one would ever see him again after Monday. Alarmed by Allam's ominous statement and based on a strong suspicion that Allam possessed a gun, the parent immediately prompted BPD to post an officer near Allam's SUV. Later that Sunday, when Allam began to drive the SUV from its parked location, the officer stopped him for various alleged traffic violations. When Allam refused to comply with the officer's instructions, he was arrested. In Allam's car, the police discovered the rifle, 150 rounds of ammunition, and a loaded thirty-round magazine.

{In addition, the police found "a series of random notes in Allam's phones, several of which contained … descriptions of violent acts, including murder, torture, maiming, hate crimes, and rape … pointed seemingly towards the President of the United States[,] … the United States Government, and its citizens (including women and children)." The notes referenced "various Islamic extremists, terrorists, and dictators in the Middle East." Allam's phone also contained videos and images that showed "dead and dismembered cats," "Allam gutting cats and pulling out their entrails with his hands," and Allam "lighting [a] cat on fire." Also in the car were "children's clothing," marijuana residue, and cocaine.}

When Allam was arrested, he was parked … "… a school-zone sign approximately 40 feet across from the school's property line, adjacent to the school's playground" …. From that vantage point, Allam had a "clear view of the … crosswalk that students use[d] to cross Forsythe Street on their way to the off-grounds basilica."

Allam pleaded guilty to violating 18 U.S.C. § 922(q)(2)(A),

It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone [i.e., is on the grounds of a school or within 1000 feet of a school]…..

[except] (i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the [relevant] State … [which] requires that, before an individual obtains such a license, the law enforcement authorities … verify that the individual is qualified under law to receive the license; [or]
(iii) [when the firearm] is— (I) not loaded; and (II) in a locked container ….}

Allam appealed, arguing the statute was constitutional as applied to him, but the court disagreed:

With some significant exceptions, § 922(q)(2)(A) broadly disarms individuals "in, or on the grounds of, a public, parochial or private school" or "within a distance of 1,000 feet from the grounds" of a school. But in evaluating Allam's as-applied challenge, which is "a narrower consideration" than weighing a facial attack, we "go beyond the language of the [statute]" and analyze its "application to the particular circumstances of an individual." …

Our analysis of Allam's Second Amendment challenge to § 922(q)(2)(A) is driven by the "concrete facts that properly underlie an as-applied challenge to a statute." To recap: For many days leading up to his arrest, Allam exhibited disturbing behavior in several locations around Beaumont—in particular, alarming the members of the St. Anthony school community, who suspected (correctly) that he possessed a gun. His presence was conspicuous enough that people affiliated with the school repeatedly called the police—as did members of the local synagogue when he parked nearby. Despite repeated admonishments from BPD, parents, and community members, Allam's behavior disrupted the school's day-to-day routine over the course of at least several days.

His threatening deportment was capped by his cryptic Sunday-afternoon statement about a "mission" the following Monday, in response to being confronted yet again by a school parent. And just before Allam was arrested—with a rifle, 150 rounds of ammunition, and a loaded thirty-round magazine—he was parked across the street, about 40 feet away, from the school campus. Mindful that our inquiry is bounded by these "concrete facts," id., we turn to applying Bruen's framework….

The Statute of Northampton, first enacted in 1328 in England, provided that, with some exceptions, Englishmen could not "come before the King's Justices, or other of the King's Ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King's pleasure."

The Government offers King Henry VIII's version of the Statute of Northampton, applicable to Wales and which additionally prohibited arms within two miles of a court, as an analogous historical example of a "buffer zone" law. But to assess whether the Statute of Northampton, as a location-based restriction, is "relevantly similar" to § 922(q)(2)(A), we must look beyond the law's text because, in practice, the Statute was not strictly enforced as written. According to scholarship cited by the Supreme Court in Bruen, "[a]n indictment or presentment for violation of the Statute of Northampton had to specify that the arms carrying was [i]n quorandam de populo terror—to the terror of the people." David B. Kopel & Joseph Greenlee, The 'Sensitive Places' Doctrine: Locational Limits on the Right to Bear Arms, 13 Charleston L. Rev. 203, 217 (2018); see also Bruen ("[N]o wearing of Arms is within the meaning of [the Statute], unless it be accompanied with such Circumstances as are apt to terrify the People." (quoting 1 Pleas of the Crown 136)). "[B]y the time of American independence[,] … the old Statute of Northampton … was only applicable to carrying for the purpose of terrorizing other people, and not to carrying for legitimate self-defense." Thus, "the Statute … was no obstacle to public carry for self-defense in the decades leading to the founding."

Even so, though perhaps not a "dead ringer" or "historical twin" of modern "buffer zone" restrictions on firearm possession, the Statute of Northampton is nonetheless of a type of historical location-based regulation relevantly similar to § 922(q)(2)(A)'s application to Allam: the so-called "going armed laws," which the Supreme Court has addressed at length. These laws prohibited "riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land," and were "incorporated into American jurisprudence through the common law." "As during the colonial and founding periods, the common-law offenses of 'affray' or going armed 'to the terror of the people' continued to impose some limits on firearm carry in the antebellum period."

"Why and how" the Statute of Northampton and going-armed laws "burden[ed] the right" to carry firearms, mirror the operation of § 922(q)(2)(A) here, suggesting that "applying [§ 922(q)(2)(A)] to [Allam] is consistent with this Nation's historical tradition of firearm regulation." First, why: Section 922(q) was enacted in response to "concern about violent crime and gun violence," the possibility of "parents … declin[ing] to send their children to school for the same reason," and the "occurrence of violent crime in school zones." These aims are consistent with a longstanding tradition of restricting those who carry firearms "to the terror of people" and those who pose a "clear threat of physical violence to another." Next, how: Section 922(q)(2)(A) delimits schools and buffer zones around them as areas in which firearms may not be carried, subject to significant enumerated exceptions that materially ameliorate the restriction of the right. This roughly maps with how the Statute of Northampton's various location-based restrictions generally operated in practice, as well as the behavior the going-armed laws proscribed. As applied to Allam, then, § 922(q)(2)(A) is relevantly similar to the Statute of Northampton and, more broadly, the going-armed laws of which the Statute is one example.

The other historical evidence proffered by the Government as consistent with modern location-based firearm restrictions is more attenuated. An initial caveat is that "[p]roceeding past the bounds of founding-era analogues … is risky under Bruen, and courts must 'guard against giving postenactment history more weight than it can rightly bear.'" Another is that sporadic regulations, in only a few jurisdictions, likely are insufficient to substantiate a "regulatory tradition." Yet the forerunners the Government adduces are at least aligned with the conclusion that § 922(q)(2)(A)'s application to Allam is "consistent with the principles that underpin our regulatory tradition."

For example, the Government points to early firearm regulations in educational settings as a category of "relevantly similar" firearm restrictions. In the decades following the ratification of the Second Amendment, several colleges banned students from possessing weapons on campus, including the University of Georgia (1810), the University of Virginia (1824), and the University of North Carolina (1838). However, these rules were only limited prohibitions, specifically disarming students but not the public at large. And none of these regulations applied off campus. So they were not really "buffer zone" laws at all, such that, even if campus or student safety was "why" these restrictions constrained firearm possession, "how" they did so is somewhat distinct from § 922(q)(2)(A)'s reach.

The Government also offers later 19th-century statutes from Texas (1871) and Missouri (1883) that more broadly prohibited carrying firearms in educational settings. But like the earlier college restrictions, these statutes restricted firearm carry inside—rather than around—schools. The closest analogue to our case, at least of those proffered by the Government, of this genre of laws is an 1879 Missouri statute that prohibited people from discharging any gun near a school.

Taken together, and discounting for Bruen's caveats about over-weighing scattered or postenactment regulations (here, both limitations apply), these historical firearm restrictions in educational settings perhaps hint at "a tradition of public-carry regulation." They at least buttress our conclusion that § 922(q)(2)(A) hurdles Bruen's test as applied here, i.e., that carrying firearms in a manner that poses a "clear threat of physical violence to another," specifically to school children, could constitutionally be restricted around schools.

Finally, the Government provides several examples of laws demarking buffer zones restricting firearms around polling places. At the time of the founding, to "prevent any violence or force being used at the said elections," Delaware's constitution prohibited any individual from "com[ing] armed" to any polling place on election day or "any battalion or company" from remaining "within one mile" of a polling place during the 24 hours before the polls opened and until 24 hours after the polls closed. And in the late-19th century, as a reaction to efforts by "[a]rmed terrorist organizations … to prevent blacks or white Republicans from voting," a few states prohibited the carrying of firearms on election day around polling places …. However, these buffer zones were time-restricted to certain election-related days. And only Delaware's polling buffer zone dates to the founding era. So even assuming the "why" of these laws mirror the purposes behind § 922(q)(2)(A), "how" they operated is materially more limited than how § 922(q)(2)(A) applied to Allam—he was arrested on a Sunday, presumably when no school-related activities were taking place. Moreover, these regulations suffer from the same limitations as the 19th century school regulations discussed supra: regulations from only four states at best present weak evidence of "a tradition of public-carry regulation." Still, like the educational restrictions, and at least one version of the Statute of Northampton, these laws offer some evidence of the permissibility of limited buffer zones for the purpose of preventing threats of physical violence.

And the court rejected Allam's argument about "the lack of a conclusive historical analogue to § 922(q)(2)(A)'s 1,000-foot buffer zone," because it was focusing on the law as applied to the particular facts in this case:

We need not—and do not—fix how far a buffer zone may stretch before it runs afoul of the Second Amendment to decide Allam's as-applied claim. Section 922(q)(2)(A)'s buffer zone needed to do very little work here, if any. Allam had camped out only 40 feet from school grounds. His SUV was parked on a street bordering campus—adjacent to school zone lighting and signage—at a location where students crossed routinely to get to the off-campus basilica. He was also behaving erratically and menacingly, so much so that people repeatedly called the police, and St. Anthony changed its students' routines and traffic patterns. As applied here, § 922(q)(2)(A) is "relevantly similar" to the Statute of Northampton and going-armed laws and the (limited) historical examples of firearm restrictions in educational settings and buffer zones around polling places, which corroborate the constitutionality of disarming a visibly threatening individual as near a school as Allam was.

Note that, though an earlier version of the federal statute was struck down in U.S. v. Lopez (1995) as exceeding federal power, Congress reenacted the law with a jurisdictional hook that federal courts view as sufficient to provide Congressional authority (though it wouldn't of course defeat a Second Amendment defense): The law applies only when the firearm "has moved in or that otherwise affects interstate or foreign commerce."

Mahogane Denea Reed argued on behalf of the government.

The post Restriction on Gun Possession Within 1000 Feet of School Constitutional, at Least When Possessor Is "Behaving Erratically and Menacingly" appeared first on Reason.com.

[Eugene Volokh] Texas S. Ct. Interprets Texas Constitution's Religious Services Clause (Enacted in 2021)

The Clause provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

In Friday's Perez v. City of San Antonio, the Texas Supreme Court concluded that this provision, when it applies, "is absolute and categorical, meaning it forbids governmental prohibitions and limitations on religious services regardless of the government's interest in that limitation or how tailored the limitation is to that interest." It also concluded that it's a substantive protection, not just an antidiscrimination rule that bars "orders that treated religious services less favorably than secular activities." And it concluded that "the Clause protects not only the right to gather for religious services but also worship practices that are part of religious services."

But the court also concluded that the provision is limited in scope, in relevant part reasoning:

[T]he Clause protects only "religious services"; it does not, for example, purport to protect the broader concept of the "free exercise of religion." … [I]t [also] protects only religious services "conducted … in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief." And … it forbids only government actions that "prohibit[] or limit[]" such services….

Because the Clause supplements and does not supplant the protections already provided by the Free Exercise Clause, the Freedom of Worship Clause, and the Texas RFRA, the linguistic context suggests that the Religious Services Clause does not attempt to independently and comprehensively address all governmental limitations on religious freedoms. And the historical context also confirms that those who drafted and proposed the amendment did not intend that its scope be unlimited.

The House sponsor, for example, stated during the floor debates that "existing local laws and ordinances and rules dealing with the fire code, with health and safety hazards, with zoning restrictions, those with criminal justice and public safety laws, those would still be able to be enforced and this constitutional amendment does nothing to affect those." He went on to say he did not intend the amendment to address "every single instance where a fire code may be violated or where a police officer may need to enter a church to do his or her job." As another House member told the committee, "I don't think there's anybody, any court, anywhere that would read this to say that if there's a true health and safety issue, that you cannot enforce that health and safety issue."

Although we need not address here whether the Clause reaches fire codes, police activity, or "true health and safety issue[s]," we can conclude with assurance, based on the Clause's text and historical context, that it generally forbids governmental enactments that prohibit people from gathering for a religious service (like the COVID lock-down orders), restrict the number or relationships of people who can gather for a religious service (like the COVID orders imposing capacity caps), or regulate the activities in which people may engage when they gather (like the COVID orders prohibiting singing, chanting, or communion).

Beyond that, to provide a helpful answer to this certified question, we need only consider and address the facts as the Fifth Circuit presents them to us. {[Native American] Church members believe that at certain times throughout the year they must participate in certain religious services in the "Sacred Area" [in a local park]—a twenty-by-thirty-foot space among cypress trees on the south shore of the river bend—facing north so they can observe the trees and the cormorants nesting and flying within the "spiritual ecology."} The City's decision to remove and replace trees and deter migratory birds in a popular City park does not purport to prohibit the Church from gathering or regulate what the Church may do when it gathers. Instead, at most, it eliminates or reduces natural elements of the City's real property that the Church believes are necessary components of its religious services. This type of governmental conduct is indisputably different in character from the type of governmental conduct the people sought to proscribe by adopting the new Religious Services Clause.

Unlike the COVID orders that gave rise to the adoption of the Religious Services Clause, the governmental decisions at issue here involve the preservation and maintenance of public property that is owned and managed by the government, not by the Church or its members. Perez agrees that the Clause does not require the City to provide the Church with components that are necessary for its religious services or to prevent limitations on those components caused by other sources. And Perez concedes the Clause does not prevent the City from selling this very property to a private developer or from taking actions that are necessary to ensure that all members of the public can access and enjoy the Lambert Beach area equally with the Church. But in Perez's view, for as long as the City owns the property, the Clause at least forbids the City from taking any action that would deprive the Church of trees and birds that are necessary components of the Church's religious services….

[A]lthough the Religious Services Clause forbids the government from prohibiting or limiting religious services, nothing in its text purports to address governmental preservation and management of public lands or the tensions between such activities and religious liberties. To whatever extent we could construe the text broadly to encompass Perez's claims, the Clause's linguistic and historical context establishes that it does not encompass "limitations" on religious services that result from the government's preservation and maintenance of the natural features of public lands….

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[Josh Blackman] SCOTUS GVRs Roman Catholic Diocese of Albany Back to New York Purgatory

[This case has been pending for nearly a decade, and has been remanded after both Fulton and Catholic Charities Bureau.]

For nearly a decade, the Roman Catholic Diocese of Albany has challenged New York's law mandating that insurance policies cover abortions. A cert petition was first filed in April 2021.But in November 2021, the Court GVR'd the case in light of Fulton. In May 2024, the New York Court of Appeals found that Fulton changed nothing.

In July 2024, the Diocese a second time. The case sat on the docket for nearly a year. On June 5, the Court decide Catholic Charities Bureau. On June 9, the Court scheduled the Diocese petition for the June 12 conference. The Diocese urged the Court to summarily reverse in light of the Wisconsin case:

This Court's unanimous ruling in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, 605 U.S. ----, 2025 WL 1583299 (June 5, 2025), controls the initial question presented in this matter. Unless the Court wishes to grant the petition for other reasons, summary reversal is warranted. Granting the petition to vacate the decision below for a second time and remanding for yet further consideration would needlessly prolong this matter, imposing significant burdens on Petitioners and other religious organizations.

Unsurprisingly, New York sought a remand to keep the case on ice.

Today, nearly a year after the most recent cert petition was filed, and more than four years after the first petition was filed, the Court GVR'd the case in light of Catholic Charities Bureau.

It is difficult to describe how much time and effort has been spent on this case, amid two major landmark rulings. Yet, at least five members of the Court sent the Diocese back to New York purgatory. And I'm willing to bet that Justice Barrett, the Court's premier procedural formalist, was unwilling to grant a summary reversal. Much more on Justice Barrett tomorrow.

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[Josh Blackman] Today in Supreme Court History: June 16, 1960

6/16/1960: The 23rd Amendment is submitted to the states.

The post Today in Supreme Court History: June 16, 1960 appeared first on Reason.com.