On December 2, the Supreme Court will consider constitutional challenges to "assault weapon" bans in Connecticut and Cook County, Illinois, that cover widely owned rifles, including the AR-15. As the plaintiffs in those consolidated cases see it, such laws plainly violate the Second Amendment because they prohibit arms in common use for lawful purposes. In briefs filed on Wednesday, Connecticut and Cook County urge the justices to reject that test, saying a weapon's popularity is not dispositive. The relevant question, they say, is whether their rifle restrictions fit a historical tradition of banning "unusually dangerous weapons."

Cook County and Connecticut have the burden of showing that their laws are "consistent with this Nation's historical tradition of firearm regulation," the test established by the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen. On the face of it, that is a daunting challenge.

In the 2008 case District of Columbia v. Heller, the Supreme Court said the Second Amendment protects the right to own "bearable arms" that are "in common use" for "lawful purposes like self-defense." That description indisputably encompasses "AR-15 platform and similar semiautomatic rifles," the firearms at issue in these cases. But Heller also recognized "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Cook County and Connecticut argue that the rifles they have deemed intolerable fall into that category.

"There is a robust historical tradition of regulating unusually dangerous weapons that
compromise public safety," Cook County says. "Such regulations, which long
predate the founding, have included outright bans and other restrictions on exceptionally dangerous weapons like launcegays, trap guns, Bowie knives, and slung shots."

Cook County argues that its ordinance is "relevantly similar" to those historical restrictions because it targets "exceptionally lethal weapons that are disproportionate to the end of self-defense." AR-15s are "offensive weapons of war designed for maximum lethality and are not customarily used for self-defense," the brief says. "The purpose and operation of the ban is consistent with our Nation's historical tradition and accounts for the exceptional dangerousness of these technologically advanced weapons."

The ban is "an appropriate contemporary restriction implemented by the legislature in response to dramatic technological change and unprecedented societal concern," the brief says. "It is tailored to respond to the particular dangers presented in areas with mass casualty exposure and acute public safety risk."

Connecticut offers a similar argument. One problem with this defense is the premise that "assault weapon" bans focus on "exceptionally lethal weapons." As critics of such laws have been pointing out for decades, the features they target, such as folding stocks, pistol grips, and barrel shrouds, do not affect a rifle's basic operation. With or without them, a rifle fires the same ammunition at the same rate with the same muzzle velocity. And because AR-15s use intermediate-caliber ammunition, they are arguably less lethal than shotguns and many hunting rifles that are not classified as "assault weapons."

Cook County's emphasis on technological developments is also questionable. Constitutional guarantees establish principles that courts routinely apply to technologies that did not exist at the founding. Although the Framers did not have radio, television, or the internet, for example, the First Amendment nevertheless constrains government regulation of those media.

More specifically, Heller rejected the idea that modern weapons are not covered by the Second Amendment by recognizing a constitutional right to own semiautomatic pistols. The Supreme Court said "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The Court confirmed that point in the 2016 case Caetano v. Massachusetts, which involved a state ban on stun guns.

Cook County also asserts that AR-15s are not suitable for self-defense, a claim that would be hotly contested by many owners of such rifles, who commonly report using them for that purpose. "Plaintiffs have shown that AR-15s are well-adapted for self-defense," U.S. District Judge Peter Sheridan wrote in 2024, when he reluctantly concluded that New Jersey's AR-15 ban was inconsistent with Heller while expressing his dismay at that result. "Evidence has been presented to the Court that the build of the AR-15 makes it well-suited to self-defense because it is 'light weight, [has] very mild recoil, and [has] good ergonomics'; it is a weapon which is 'well suited to younger shooters, female shooters, and other shooters of smaller stature.'"

Sheridan added that "the AR-15's design features—including the effectiveness of its cartridge for self-defense use and its better continuity of fire when used with available magazines—make the AR-15 a good choice for self-defense." And he noted that "the AR-15 has been used recently in several, relatively high-profile self-defense events in Florida, Illinois, Texas, Pennsylvania, and Oklahoma."

Cook County and Connecticut are also wrong in suggesting that self-defense is the only "lawful purpose" that matters. While Heller emphasized the use of handguns "in defense of hearth and home," it did not say that was the full extent of the Second Amendment right. To the contrary, the phrase "lawful purposes like self-defense" implies that the right extends to other uses, such as hunting, pest control, and target shooting. The decision explicitly mentioned hunting as a "reason Americans valued the ancient right."

The briefs are misleading in another way that may prove decisive. They conflate "dangerous and unusual" with "unusually dangerous," which is not the same thing.

During the 19th century, state legislators restricted (and sometimes banned) weapons such as Bowie knives, spears, sword canes, slungshots, and brass knuckles. But the historical evidence suggests those weapons were not targeted simply because they were "unusually dangerous." Legislators were also concerned about how the weapons were typically used.

Solicitor General D. John Sauer, who filed a brief supporting the challenges to the AR-15 bans, notes that the 19th-century laws targeted weapons associated with "duels, brawls, and other criminal activities." And in reviewing those laws, state courts distinguished between arms favored by criminals and arms commonly used for lawful purposes.

In 1871, for example, the Tennessee Supreme Court held that legislators could ban weapons that were "not usual" but could not ban "the usual arms of the citizen." The top courts of Texas, Arkansas, West Virginia, North Carolina, and Michigan concurred that the right to arms encompassed weapons commonly owned by law-abiding people, including rifles.

AR-15s and similar rifles readily pass that common-use test. In January, the National Shooting Sports Foundation, the gun industry's trade association, reported that Americans own more than 32 million "modern sporting rifles," its preferred term for the models covered by "assault weapon" bans. Survey data suggest that somewhere between 16 million and 25 million Americans have owned AR-15-style rifles. Last year, a unanimous Supreme Court described the AR-15 as "the most popular rifle in the country."

According to Cook County and Connecticut, however, none of that matters. "Once it is established that a regulation pursues a legitimate public safety objective in a permissible manner, raw ownership numbers cannot immunize a firearm from regulation," Cook County says. It argues that opponents of its ordinance have misconstrued the significance of the common-use test and misunderstood how it interacts with Bruen.

"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," the Supreme Court said in Bruen. "To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

The common-use question, Cook County argues, figures only in the first Bruen step: "the inquiry whether the weapon at issue is one 'the Second Amendment protects.'" But even if ownership of AR-15s is covered by "the Second Amendment's plain text," it says, that does not resolve the question of whether they can be banned, which depends on the historical analysis required by the second step of the Bruen test.

"This Court's decision in Bruen confirms that the Second Amendment's step-two inquiry does not insulate popularly owned firearms from regulation," the brief says. In
Bruen, it was "undisputed" that "handguns are weapons 'in common use' today for self-defense," including "outside the home." But "instead of being the end of this Court's inquiry, that observation was just the beginning." The decision also included an "extended analysis" of the historical laws that New York cited to justify its "proper cause" requirement for carry permits. "If lawful common use alone were enough to forbid regulation," Cook County argues, "there would have been no need to engage in that careful and prolonged analysis."

The question in Bruen was not whether the Second Amendment precludes "regulation." It was whether New York's specific approach, which required residents to demonstrate a "special need" before they were allowed to exercise the right to bear arms, was consistent with the historical tradition. That is why the Court considered (and rejected) the purported historical analogs that New York offered.

Cook County conflates requirements for carry permits, the issue in Bruen, with an outright ban on ownership, the policy it is defending. Connecticut likewise blurs the distinction between carry restrictions and complete prohibition.

"The Bowie knife was 'widely carried by Americans of all stripes,' including 'upstanding citizens and villains' alike," Connecticut's brief says. "The widespread use of Bowie knives and other weapons for lawful purposes did not prevent dozens of States from restricting those weapons." But those laws generally restricted or banned public carry. They rarely made it illegal to acquire or possess a Bowie knife, which is the approach that Connecticut and Cook County have taken with AR-15s.

That policy is hard to reconcile with Heller. I will quote Sheridan again, since his comments made it clear that he would have preferred to uphold New Jersey's AR-15 ban. Under Heller, he said, "a categorical ban on a class of weapons commonly used for self-defense is unlawful." Given "the Supreme Court's clear direction on this point," he concluded, New Jersey's law "is unconstitutional" as applied to "the Colt AR-15 for use for self-defense in the home."

Last July, the U.S. Court of Appeals for the 3rd Circuit agreed and went further, extending that conclusion to "the full class of semi-automatic rifles" banned in New Jersey. "Together, Heller and Bruen teach that bans or broad prohibitions on possessing or carrying of a class of weapons in common use for lawful purposes fail to find support in our Nation's tradition of firearm regulation," Judge Arianna Freeman, a Joe Biden appointee, wrote in the majority opinion. "That principle resolves our inquiry here."

To beat back the challenges to their laws, Connecticut and Cook County will have to persuade the justices that the 3rd Circuit's understanding of Heller and Bruen is wrong, meaning they are free to ban firearms in common use for lawful purposes. That seems like a tall order, and Cook County's position is especially puzzling. According to its brief, the fact that a weapon is covered by the Second Amendment does not mean Americans have a right to possess it. The more you think about that claim, the less sense it makes.

The post Defending Its AR-15 Ban, Cook County Urges SCOTUS To Ignore the Rifle's Popularity appeared first on Reason Magazine.

On November 3, the U.S. Supreme Court will hear oral arguments in a case that asks whether Colorado has unlawfully discriminated against a religious preschool because the school is barred from participating in the state's universal preschool program due to its refusal to accept LGBTQ families. In addition to involving multiple hot-button political and cultural issues, the case also has big implications for the future of federal antidiscrimination law.

St. Mary Catholic Parish v. Roy is not about a state law that directly prohibits a religious preschool from operating. Rather, at issue here is a government requirement that any preschool that wants to participate in the state's universal preschool program, and receive the public benefits that follow, must first satisfy various criteria, including that "each preschool provider provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability."

According to the Catholic preschools overseen by the Archdiocese of Denver, however, complying with that rule would force the schools to violate their religious beliefs. "It is undisputed that these preschools would otherwise be eligible [universal preschool] providers," the schools told the Supreme Court. "They are excluded solely because of their religious exercise—namely, their religious practices of ensuring that all enrolling families are supportive of the Catholic Church's teachings on sex and marriage and of treating enrolled four-year-olds in accordance with their biological sex."

These schools can point to a pair of recent Supreme Court precedents that will very likely count in their favor. In Espinoza v. Montana Department of Revenue (2020), the Court held that if a state provides educational subsidies that help parents send their children to private schools, the state "cannot disqualify some private schools solely because they are religious." Then, in Carson v. Makin (2022), the Court held that Maine's tuition assistance program violated the Constitution by excluding private schools that offered "sectarian" education. "A State's antiestablishment interest," the decision said, "does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise."

I would expect the outcome of St. Mary Catholic Parish v. Roy to follow in this same general pattern and hold something to the effect that when a state provides an educational public benefit, it must make some sort of accommodation for the religious views of the recipients.

---

In Other Legal News

Justice Elena Kagan made news a few months back when she defended her conservative colleagues on the Supreme Court from the oft-heard charge that they are totally in the tank for President Donald Trump. "I don't see this as a court that is just like, 'We're just going to rubber stamp what the current administration does.' You know, quite the opposite," Kagan said. "I think that that is a bad rap." In support of her argument, Kagan pointed to the fact that the Supreme Court had recently ruled against Trump on the two big issues that Trump himself valued the most: tariffs and birthright citizenship.

Kagan was in the news again on Tuesday, this time because she publicly blasted those same conservative colleagues for issuing decisions on voting rights and political gerrymandering that, in Kagan's words, have produced "a democracy that does not work as well as it should." According to Kagan, the Court's conservative majority "has kind of blinded itself to the very deleterious effects of their rulings on how the political system works."

Does this mean that Kagan has now stopped defending the conservative justices from the pro-Trump charge? Not at all. In fact, as The New York Times put it, "she reiterated her defense of the conservative-dominated bench from a July appearance and said it was a 'bum rap' to suggest the court had been too deferential to Mr. Trump."

I don't know about you, but I find Kagan to be a refreshing public figure in these simplistic, partisan times. She is a staunch legal liberal with clearly stated objections to what the Supreme Court's conservative majority is getting up to, yet she refuses to be associated with the laziest progressive attacks on the Court. How many people of comparable public stature these days are willing to call out the shortcomings of their own side?

The post A Religious Preschool Is Barred From a State's Universal Preschool Program. SCOTUS Will Decide What's Legal. appeared first on Reason Magazine.

The battle to save the global court and its capacity to enforce accountability for the most heinous crimes is one struggle with many fronts, writes Marjorie Cohn.

The U.S. Supreme Court has denied an emergency petition from the Trump administration, which sought a stay on a lower court’s injunction on a policy that would have denied gender-affirming care to federally incarcerated transgender people.

That policy was implemented by the Bureau of Prisons (BOP) after President Donald Trump signed an executive order in January 2025 that denied the existence of transgender people. The order also directed federal agencies to take steps that would be consistent with that view, and included specific instructions for the BOP.

“The Attorney General shall ensure that the Bureau of Prisons revises its policies concerning medical care to be consistent with this order, and shall ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex,” the order reads.

After the BOP conformed to the order, a group of incarcerated trans people who had been receiving gender-affirming care sued the administration. The group is being represented by the American Civil Liberties Union (ACLU), which argued that their Eighth Amendment protections against cruel and unusual punishment were being infringed upon.

A federal judge agreed, and, in August, ordered the policy to be blocked. The Trump administration challenged that finding, but the U.S. Court of Appeals for the District of Columbia Circuit upheld it, prompting Solicitor General John Sauer to submit an emergency appeal to the Supreme Court.

The court has regularly ruled against transgender people, allowing state bans on trans athletes’ participation in sports, ruling in favor of a ban on transgender people in the military, and upholding state laws that bar gender-affirming care for trans children and teens. Yet on Wednesday, the court denied the Trump administration’s request.

“The application for stay presented to The Chief Justice and by him referred to the Court is denied,” the order read, giving no further explanation. Two justices for the court — Samuel Alito and Clarence Thomas — would have granted the Trump administration’s request for a stay, the document said.

The ACLU heralded the high court’s denial of the emergency petition, stating, “This ruling affirms that federal prison officials can’t deny transgender people essential health care.”

Around 1,000 federally incarcerated trans people have also been diagnosed with gender dysphoria. The ruling means these individuals can continue receiving gender-affirming care while they remain in federal prisons or jails and the case moves forward in the lower courts.

The European Parliament has awarded the 2026 Sakharov Prize for Freedom of Thought to the International Criminal Court (ICC) and its officials, recognising the Hague-based tribunal’s work in investigating and prosecuting war crimes, crimes against humanity and genocide.

Announcing the decision in Strasbourg on Thursday, 22 October, European Parliament President Roberta Metsola said the award reflected the European Union’s commitment to multilateralism and international institutions.

Metsola praised the Court for its work in upholding international law and justice. The announcement was met with a standing ovation in the parliamentary chamber.

The decision comes amid an escalating confrontation between the European Union and the administration of US President Donald Trump over the ICC’s jurisdiction and independence.

Washington’s sanctions against the Court

On 9 October, the United States imposed sanctions on the ICC as an institution, extending measures previously directed against individual judges and prosecutors.

The restrictions place the Court under the US Treasury’s sanctions regime, limiting financial transactions involving American individuals, businesses and institutions. Washington has issued several temporary and limited exemptions intended to allow specified operations to continue.

The measures followed earlier sanctions against senior ICC officials, including Court President Tomoko Akane, and form part of Washington’s campaign to prevent the tribunal from exercising jurisdiction over American personnel.

US Secretary of State Marco Rubio has argued that the ICC threatens American sovereignty by asserting authority over nationals of countries that have not accepted its founding treaty.

The Court rejected the latest restrictions, describing them as an attempt to obstruct the administration of international justice.

Established under the Rome Statute, the ICC operates independently of national governments and investigates serious international crimes where its jurisdictional requirements are satisfied.

Neither the United States nor Israel is a party to the Rome Statute.

Arrest warrants involving Russia and Israel

The dispute with Washington has intensified since the ICC issued arrest warrants in November 2024 for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant over alleged war crimes and crimes against humanity connected with military operations in Gaza.

Israel rejects the Court’s jurisdiction and disputes the allegations. Washington has similarly opposed the proceedings against Israeli officials.

The ICC has also pursued investigations into Russia’s invasion of Ukraine. In March 2023, its judges issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, Russia’s commissioner for children’s rights, over the alleged unlawful deportation and transfer of Ukrainian children.

Further warrants followed in 2024 against senior Russian military commanders and officials in connection with attacks on Ukraine’s civilian infrastructure.

The proceedings demonstrate the geographical scope of the Court’s investigations, although its ability to secure arrests depends heavily on cooperation from individual states.

The ICC has no independent police force and relies on national authorities to execute its warrants.

European Parliament backs international justice

The ICC’s nomination for the Sakharov Prize was submitted by the Socialists and Democrats group in the European Parliament.

Its selection comes as European lawmakers examine how the EU should respond to American sanctions affecting the Court and organisations supporting its activities.

The October restrictions have raised practical questions about access to banking, technology services and other infrastructure required by the tribunal.

European governments must also consider how to support an institution established through an international treaty while maintaining relations with Washington.

The Sakharov Prize carries no legal authority to reverse American sanctions or compel governments to cooperate with ICC investigations. Nevertheless, the award represents an explicit institutional endorsement of the tribunal at a time when its operations face increasing external pressure.

Other nominees and award ceremony

The ICC was selected from three finalists announced earlier this month.

The other nominees were Tanzanian opposition leader Tundu Lissu and Iranian sisters Taraneh and Romina Rahimi, whose cases have attracted international attention over political persecution and judicial proceedings.

The Sakharov Prize, established by the European Parliament in 1988, is named after Soviet physicist, dissident and Nobel Peace Prize laureate Andrei Sakharov.

It recognises individuals and organisations defending human rights, freedom of expression and fundamental liberties. The award includes €50,000.

Previous recipients include Nelson Mandela, Malala Yousafzai and imprisoned journalists.

In 2025, the prize was awarded jointly to Belarusian journalist Andrzej Poczobut and Georgian journalist Mzia Amaglobeli.

The formal presentation of the 2026 prize is scheduled for 16 December at the European Parliament in Strasbourg.

The award places the ICC alongside previous Sakharov laureates while drawing further attention to the unresolved dispute between Washington and European governments over international criminal jurisdiction.

ProPublica ha ottenuto le 18 pagine dell’intesa voluta da Trump; c'è anche un oligarca indagato

Author withdrawn from France’s Prix Goncourt last month has repeatedly denied using artificial intelligence to write novel

The publisher of top-selling Haitian Canadian writer Thélyson Orélien, who was removed from France’s most prestigious literary prize list last month, has confirmed the author used artificial intelligence to help write his novel C’était ça ou mourir (It Was Either That or Die).

Orélien has denied allegations that he used AI on his breakthrough novel and, last week, Canadian publisher Les Éditions du Boréal said it was standing by the 38-year-old writer.

Continue reading...

© Photograph: Joel Saget/AFP/Getty Images

© Photograph: Joel Saget/AFP/Getty Images

© Photograph: Joel Saget/AFP/Getty Images

The Supreme Court on Wednesday refused to allow the Trump administration to immediately enforce new medical restrictions for transgender people in prison. The decision leaves in place a lower-court block on the policy.

In late August, President Donald Trump announced what he called the “biggest oil deal in world history.” Since then, the full text of the accord — which grants the U.S. sweeping access to Venezuela’s oil reserves — has been one of the most sought-after secrets in Washington, DC.  ProPublica has reviewed a copy of the […]

The post The secret terms of Trump’s Venezuelan oil deal appeared first on Asia Times.

Three years after ending affirmative action in higher education, the Supreme Court will hear another case on race-based admissions, this time in middle schools.

On Monday, the Supreme Court agreed to hear Association for Education Fairness v. Montgomery County Board of Education. The case, which was originally brought forth in 2020 by the Association for Education Fairness (AFEF), a coalition of Montgomery County, Maryland, parents, alleges that Montgomery County's selection process for magnet programs (gifted programs for STEM and humanities studies in middle schools) violates the Constitution's Equal Protection Clause by discriminating against Asian American students. The county insists that the selection process is race-neutral.

Montgomery County changed its selection process in the 2021–22 school year. According to reporting from The New York Times, the county was facing pressure from community groups, including the NAACP and Citizens Assisting and Sheltering the Abused (CASA Inc.), over the underrepresentation of black and Latino students in its magnet programs. Previously, students were selected based on test scores and grades. The new process implemented a lottery system in which high-achieving students are placed in a selection pool and selected at random.

The AFEF's central complaint is that the new system factors school poverty levels into the criteria for pool eligibility. This means students' eligibility depends on their scores relative to students in similarly affluent or disadvantaged schools, rather than the general population. They argue that since Asian Americans are concentrated in high-performing, lower-poverty schools, they have to clear a higher bar to become eligible. The group alleges the new system has caused fewer Asian American students to be admitted into magnet schools, a claim that is backed up by admissions data (which also show that the share of Asian American applications has fallen). The AFEF also cites Montgomery County's 2015 hiring of Metis, a national consulting firm, to recommend ways to make the system more "equitable" as an indication of the county's effort to "racially balance" its magnet programs.

​The complaint was dismissed by U.S. District Judge Paula Xinis in 2022, who ruled that the parents hadn't shown the policy disproportionately harmed Asian American students, citing the fact that they made up a larger share of admitted students than of the applicant pool. Xinis drew a distinction between accounting for economic disparities, which she called "wholly permissible," and racial discrimination. "Alleged disparity in treatment based on socioeconomic status alone does not make plausible discrimination on account of race," she wrote in the ruling. The tension raised by Xinis sits at the center of many debates regarding diversity, equity, and inclusion, as factors like poverty levels can often become a proxy for race; therefore, policies that are neutral on their face can still disparately impact a certain race.

In February, the 4th Circuit Court of Appeals upheld the dismissal, ruling that precedent from the Coalition for TJ v. Fairfax County School Board (2023) requires parents to show the policy disproportionately harmed Asian American applicants, which they hadn't. However, there is a real legal question as to whether racial groups should have to prove they were harmed as a group, as opposed to the individual, and lower courts have given mixed answers.

The ​Pacific Legal Foundation (PLF), a public-interest law firm representing the AFEF, litigated a similar case in New York City, where the city implemented an economic need index in its admissions process for competitive high schools, aimed at increasing the number of black and Hispanic students. Again, parents alleged that the requirement discriminated against Asian American students. In 2024, the 2nd Circuit Court of Appeals found that if the city intended to discriminate, the parents don't have to prove Asian Americans were harmed as a group and that harm to an individual was enough for the case to move forward. The case was sent back to the district court to determine whether the city intended to discriminate, where it remains pending.

​The Supreme Court will now settle the issue and determine "whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool," according to SCOTUSBlog. 

In a statement on Monday, PLF Senior Attorney Chris Kieser said, "The Constitution protects students as individuals, not as members of a racial group. A school district should not be able to defeat a discrimination claim by showing that its policy did not harm enough Asian American children. Every family deserves admissions rules that judge their child on their own merit."

The post Supreme Court Takes Up Accusations of Race-Based Middle School Admissions appeared first on Reason Magazine.

HRF alleges that Sean Glass likely gave the order to open fire. His alleged responsibility extends across Gaza: attacks on Al-Shifa Hospital, destruction of UNRWA headquarters, and the razing of entire neighbourhoods—devastation he publicly celebrated.

The U.S. Supreme Court's 2026–2027 term just got a whole lot boozier. On Monday, the justices agreed to hear arguments later this year or next in the case of Department of Justice v. McNutt. At issue is whether the 1868 federal ban on distilling liquor at home is unconstitutional because it exceeds the lawful regulatory power of the federal government. If any modern Supreme Court case ever deserved its own drinking game, this one is it.

In April, the U.S. Court of Appeals for the 5th Circuit found the federal ban on home distilling to be unconstitutional because Congress lacked the proper authority to issue such a ban in the first place. It was not a legitimate exercise of the congressional authority "To Lay and collect Taxes," the appellate court reasoned, because "the purpose of a tax is to raise revenue for the government;" yet this law "amount[s] to an anti-revenue provision" that only "prevents distilled spirits from coming into existence." And if it does not exist, of course, the government cannot tax it.

The 5th Circuit also denied that the federal ban on home distilling could be saved by the government's appeal to the Necessary and Proper Clause, which says that Congress has the authority "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

But the federal ban on home distilling cannot be "necessary" to the execution of the enumerated taxing power, the 5th Circuit argued, because the provisions of federal law at issue "tax nothing, and are distinct from the regulation of distilling alcoholic products that is permitted by federal tax law."

Nor did the 5th Circuit find the ban to be "proper." "By purporting to ban activity without a plain connection to the exercise of Congress's taxation power," it held, "Congress has essentially—and 'improperly'—invaded the reserved police and regulatory power of the states."

The Trump administration lost this case at the 5th Circuit and has now successfully urged the justices to hear its appeal. In its petition seeking review, the Trump administration faulted the 5th Circuit for its overeagerness to "second-guess" the "legislative judgment" of Congress. Instead, the Trump administration argued, the federal judiciary owes a great deal more deference to the federal government's regulatory priorities in a case like this. "A law is necessary and proper if it is 'convenient' or 'useful' for carrying an enumerated power into effect, and 'plainly adapted' to that legitimate end," the Justice Department's brief argued. "That is the case here."

This case may lead to an interesting divide among the Supreme Court's more conservative members. In United States v. Comstock (2010), a 7–2 Supreme Court embraced the Necessary and Proper Clause as sufficient constitutional grounding for the Adam Walsh Child Protection and Safety Act, which had empowered federal officials to order the indefinite civil commitment of "sexually dangerous" individuals who had already finished serving their prison sentences. Chief Justice John Roberts joined the majority opinion in that case, while Justice Samuel Alito voted in concurrence. In other words, they both endorsed a broad view of congressional power under the Necessary and Proper Clause. By contrast, Justice Clarence Thomas, joined by the late Justice Antonin Scalia, voted in dissent. The Comstock ruling, Thomas protested, "comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'"

Are we about to see a similar Alito-Thomas split over the proper reach of federal power in this case? And what about Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh? Will one or more of them play the Scalia part and similarly reject the Trump administration's broad reading of the Necessary and Proper Clause?

Stay tuned.

The post Trump Administration Urges SCOTUS To Uphold Federal Ban on Distilling Liquor at Home appeared first on Reason Magazine.

Today, the Supreme Court decided to hear Association for Education Fairness v. Montgomery County Board of Education, a challenge to "facially neutral" discrimination against Asian applicants to selective public magnet schools in Montgomery County, Maryland. The admissions criteria are, on their face, racially neutral. But evidence indicates they were likely adopted for the purpose of reducing the percentage of Asian students in entering classes. More specifically, the case addresses the issue of "[w]hether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool." This issue is increasingly important since the Supreme Court banned most explicit racial discrimination in college admissions (and, by extension, school admissions) in SFFA v. Harvard (2023).

The lower court ruled that, even if there is evidence that a facially neutral admissions policy was enacted for the specific purpose of reducing the number of admitted students from a specific racial or ethnic group, it must still be upheld so long as the percentage of admitted students from that group is as high or higher than the percentage of applicants from that group.

The case is similar to (and based on) Fourth Circuit decision in Coalition for TJ v. Fairfax County School Board, which the Supreme Court refused to take in 2024 (though three conservative justices indicated they did want to hear it) [my wife Alison was one of the attorneys representing the plaintiffs in that case]. The present case is also from the Fourth Circuit. In my view (see here and here), the earlier Fourth Circuit decision is badly wrong and would - if the same approach were adopted by the Supreme Court - license all kinds of invidious, unconstitutional discrimination against Asians and other minorities:

Longstanding Supreme Court precedent holds that evidence of unconstitutional motivation for "facially neutral" policies shifts the burden of proof to the government to show that they would have enacted the same policy even in the absence of illicit motives. If they fail to prove that, then the policy must be subjected to strict scrutiny, which it would be unlikely to survive. In the TJ case, the Fourth Circuit majority opinion by Judge Robert Bruce King holds that even the most blatant discriminatory motivations do not trigger strict scrutiny so long as the group being targeted for discrimination by "facially neutral" means  is still represented in proportion to its percentage of the relevant population (or more). Under the new admissions policy, Asians were still 54% of accepted applicants (as compared to 73% under the old one). Since that is still higher than the Asian percentage of the applicant pool, evidence of discriminatory intent becomes irrelevant….

I and others have previously compared today's anti-Asian discrimination in selective educational institutions to discrimination against Jewish applicants in earlier eras.  Under the Fourth Circuit's reasoning, old-time policies using facially neutral means to reduce the percentage of Jewish students at elite universities would be perfectly legal, so long as Jewish applicants were admitted in the same [or higher] percentages as other groups. And that would be true no matter how extensive the evidence that the new policy was motivated by anti-Semitic prejudices, or that Jewish applicants had to have stronger academic records to be admitted than those required of gentiles.

The same point applies to all kinds of discrimination against racial, ethnic, and religious minorities. So long as facially neutral means are used and the overall success rates of different groups are similar, this reasoning would allow even the most blatant discriminatorily motivated policies intended to reduce the participation of some groups for the benefit of others. There are many situations where members of some minority groups are "overrepresented" in educational institutions, government contracting, and elsewhere, relative to their percentage of the applicant pool or of the general population. Jews, Muslims, Asians, atheists, and Mormons are obvious examples of groups that fit that bill in a variety of educational and professional settings.

If a federal or state government adopted a seemingly neutral policy to try to reduce the percentage of blacks among professional football or basketball players, that too would pass muster, so long as the percentage of blacks in the the relevant pro sports leagues remained at least as high as the percentage of blacks among those seeking employment as players…. Progressives and others inclined to support today's decision should consider whether they are really willing to live with these troubling implications.

Since I wrote the above, the ideological valence of anti-Asian discrimination in education has shifted somewhat. For a long time, many left-wingers defended such discrimination (along with discrimination against white applicants) on the grounds that it is necessary to achieve "diversity" and compensate Blacks and Hispanics for the history of discrimination against those groups. Most conservatives condemned it because it violates principles of constitutional color-blindness.

During the second Trump Administration, however, right-wing nativists have increasingly defended discrimination against Asian immigrants on such ridiculous grounds as that they work too hard (thus making it too difficult for whites to compete with them), or even that they undermine the supposed value of racial "homogeneity." The political right actually has a long history of anti-Asian bigotry. But recently the problem has gotten much worse, after a period in which it was diminishing because conservatives (rightly) condemned such discrimination as a violation of color-blindness. The growing anti-Asian bigotry among right-wing nationalists is similar to and linked with their growing tendency towards anti-Semitism. Indeed, as many commentators have pointed out, the two prejudices are similar in many respects. Both Asians and Jews are condemned for supposedly working too hard, emphasizing academics too much relative to other activities, and supposedly dominating various business and intellectual fields.

The left-wing rationales for anti-Asian discrimination are little better than the right-wing ones. If you truly value diversity, it makes no sense to disfavor Asian applicants as a class. They add as much or more to diversity as any others. Indeed, as I have pointed out before, lumping all Asians in one category makes no sense, as this group includes a vast range of different ethnicities and cultures, covering more than half the world's population.

The compensatory justice rationale for anti-Asian discrimination collapses under the weight of the fact that many Asian groups have themselves faced extensive discrimination at various times in American history. Discrimination against Chinese and Japanese by federal and state governments has a long and sordid history, of which Japanese internment during World War II is just one particularly awful example.

It is important to recognize that "facially neutral" policies adopted for the specific purpose of excluding particular racial or ethnic groups differ from those that merely have an unintended disparate impact. The former are deliberate efforts to discriminate on the basis of race, whereas the latter are probably inevitable in a diverse society where groups differ from each other in various ways. For example, laws banning violent crime disproportionately affect any group which is, on average, younger than others, since young people (especially young men) have much higher crime rates than older ones.

The Constitution at least presumptively bars racial discrimination by government, whether motivated by left-wing objectives or right-wing ones. And such discrimination is forbidden even if cloaked in "facially neutral" garb. Otherwise, the government could easily discriminate against virtually any group simply by targeting some characteristic that correlates with group membership. Hopefully, the Supreme Court will recognize that and rule the right way in this case.

NOTE: The plaintiffs in this case are represented by the Pacific Legal Foundation, a public interest group that was my wife's employer until recently. As noted above, she helped represent the plaintiffs in a previous case (also litigated by PLF), on which the lower court ruling in this case was based. She is not one of the attorneys in this case, and is no longer with PLF.

The post Supreme Court Will Hear Case on "Facially Neutral" Discrimination Against Asian Students in Admissions to Public Magnet Schools appeared first on Reason Magazine.

Today, the Supreme Court decided to review the case of Department of Justice v. McNutt, which challenges a federal law banning home distilleries. The key question in the case is whether the law in question is justified by the combination of the tax power and the Necessary and Proper Clause (which gives Congress the power to make laws "necessary and proper" for executing other powers granted to the federal government). This is likely to be most important Supreme Court Necessary and Proper Clause decision since at least NFIB v. Sebelius (2012), which ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power; it cannot be a "great, substantive and independent" power. This case is likely to further clarify the meaning of "proper," perhaps by explicating in more detail what counts as a "great…and independent" power.

In the lower court decision in this case, the Fifth Circuit ruled that the law is not "proper" and even that it isn't "necessary." There is also a Sixth Circuit decision that went the other way, thereby creating a circuit split.

As explained in my earlier posts on the Fifth and Sixth Circuit decisions (linked above), I think this law is not "proper," and I hope the Supreme Court strikes it down. I summarize the reasons why in my post on the Fifth Circuit ruling:

The Fifth Circuit… concludes that the law in question exceeds Congress' authority under the Necessary and Proper Clause, which grants the power to makes laws "necessary and proper" for carrying into execution other federal powers. I think the court is right that the law in question is not "proper." The Supreme Court, in NFIB v. Sebelius(2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. See my analysis in this article. The power claimed here is clearly "great and independent." As Judge [Edith] Jones notes, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."

I elaborated further in the post criticizing the Sixth Circuit decision:

[T]he Sixth Circuit is badly wrong to conclude that the law is "proper." As explained in  my earlier post, the Supreme Court, in NFIB v. Sebelius (2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. The power to ban any home-based activity that might serve a substitute for taxable activity outside the home is clearly a "great and independent power." As Judge Edith Jones explains in the Fifth Circuit ruling, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."

The Sixth Circuit tries to address this point by claiming alcohol is somehow special….

This distinction between alcohol and all other commodities is totally arbitrary. The same reasoning could justify banning home production of anything else that is more easily taxed if produced outside the home. And there is a long history of home production of all kinds of other commodities taxed or severely regulated by the government, ranging from cigarettes to illegal drugs, to pornographic videos.

While Judge Edith Jones (author of the Fifth Circuit decision) is one of that circuit's most conservative judges, the ruling was also joined by liberal Obama appointee Judge James Graves. On the other hand, the Sixth Circuit decision was written by prominent conservative Judge Raymond Kethledge. We shall see if the Supreme Court also divides on this issue in a way that cuts across conventional ideological and jurisprudential lines.

As noted in my post on the Fifth Circuit case, I think Judge Jones is not persuasive in arguing that the home distillery ban isn't "necessary," as well as improper. That argument is unlikely to prevail under the Supreme Court's expansive definition of "necessary, "  dating back to McCulloch v. Maryland (1819), where Chief Justice John Marshall famously ruled that "necessary" includes any measures that may be "useful" or "convenient" for implementing an enumerated power.

As also noted in my posts on the two lower court rulings, I think the government has a better argument that this law is authorized by the Supreme Court's badly misguide precedent on federal power under Commerce Clause (which grants Congress power to regulate interstate commerce). But the Supreme Court is apparently not going to review that issue. The question presented submitted to the Court in McNutt is limited to the Necessary and Proper Clause.

The post Supreme Court Will Hear Necessary and Proper Clause Case on Federal Law Banning Home Distilleries appeared first on Reason Magazine.

That's part of libel plaintiff's argument(filed last week) for subpoenaing defendant's AI queries in Fontainebleau Florida Hotel, LLC v. Botach; the defendant is popularly known as Rabbi Shmuley Boteach. From the introduction:

The Court asked whether Botach's communications with AI platforms fall within the scope of "damages" discovery permitted by ECF No. 261, and specifically how those materials relate to malice and the statutory cap on punitive damages. Precedent from the United States Supreme Court and Eleventh Circuit, as well as Florida law, answers that question directly.

Under Fla. Stat. § 768.73(1)(c), the cap on punitive damages lifts entirely where the fact finder determines that "the defendant had a specific intent to harm the claimant" at the time of the injury. As discussed below, legions of cases from trial courts to the Supreme Court hold that post-defamation conduct is probative of whether defamatory statements were made with intent to harm. Specific intent is therefore not background color to the damages trial or damages discovery. Discovery into Botach's intent to harm Plaintiff is damages discovery, and the AI materials are the most direct evidence of that intent.

Botach did not merely publish an errant falsehood on a blog or make a heated statement in a debate. He methodically engineered his attacks—drafting, refining, and iterating for painful effect through the most potent technologies known to humankind. The prompts and chats are his mental state reduced to writing, and they are probative of damages.

And from the defendant's response:

The Court should sustain the objections to the proposed AI-provider subpoenas as drafted and apply the same limits to the overlapping Seventh Request for Production. The issue is whether these demands fall within the scope of "discovery limited to damages." The unresolved punitive amount permits discovery concerning punishment for the adjudicated wrong, not an unrestricted inquiry into Defendant's research or litigation conduct.

The amended complaint already alleges knowing falsity, deliberate fabrication, repeated publication, financial motive, and specific intent to harm. Plaintiff did not pursue AI discovery before the general discovery cutoff. But under the guise of "discovery limited to damages," Plaintiff seeks every responsive AI exchange concerning this litigation, the Hotel, Plaintiff's lawyers, every court order, and the judges. It reaches accounts associated with an expansively defined "Botach," without limiting production to his queries or material used in the actionable publications. The Court should enforce the reopening order before requiring any production and independently preserve substantiated work-product objections.

For more backstory on the case, an excerpt from the long Report and Recommendation issued July 29 by Judge Marty Fulgueira Elfenbein in Fontainebleau Florida Hotel, LLC v. Botach:

This action arises from an encounter between Defendant and then-hotel guest Faiz Akbar … in the lobby of Plaintiff's hotel in December 2024. The Parties sharply dispute the nature of the encounter, who initiated or escalated it, and whether Plaintiff responded appropriately to Defendant's subsequent complaints.

Plaintiff's operative First Amended Complaint alleges that Defendant published false statements concerning the incident and Plaintiff's response to it, including statements that Plaintiff discriminated against Defendant because he is Jewish, knowingly permitted an antisemitic assault to occur on its premises, removed Defendant rather than the alleged aggressor, and refused to cooperate with law enforcement. Based on those allegations, Plaintiff asserts claims against Defendant for defamation and tortious interference with business relationships.

Defendant filed a Counterclaim and Third-Party Complaint asserting claims against Plaintiff and naming Jeffrey Soffer … and Akbar as Third-Party Defendants. Defendant's Counterclaim alleges, among other things, that he was subjected to an antisemitic verbal attack at the hotel, that Plaintiff failed to protect him or adequately cooperate with the ensuing investigation, and that Plaintiff thereafter excluded him from its properties. Defendant asserted claims under federal civil-rights statutes and a claim for tortious interference with business relationships….

The merits of the Parties' competing claims are not directly before the Court in the Motion for Sanctions. Instead, the dispute concerns Defendant's conduct during the litigation, the meaning and scope of the District Court's February 20, 2026 Order …, and whether Defendant's subsequent social-media activity violated that Order in a manner warranting sanctions under Federal Rule of Civil Procedure 16(f) or the Court's inherent authority….

On March 11, 2025, Defendant served a subpoena on the Miami Beach Police Department seeking video footage of the underlying incident that Plaintiff previously provided to the department. The Miami Beach Police Department produced responsive surveillance footage to Defendant's counsel on March 26, 2025, and counsel thereafter transmitted that footage to Defendant. On April 2, 2025, before the entry of a protective order, Defendant posted an excerpt of the surveillance footage to his public Instagram account, which had more than 90,000 followers. On April 7, 2025, the Parties jointly moved for entry of a stipulated protective order governing discovery in this action. The Court entered the Parties' Stipulated Protective Order on April 9, 2025.

The Protective Order provides that material produced by a nonparty is automatically treated as "Outside Counsel Eyes Only" for thirty days following production without the need for an affirmative designation by a party. The Protective Order further prohibits the use of discovery material for any purpose unrelated to this litigation, including any public, commercial, business, or personal purpose. The Protective Order restricts access to material designated as "Highly Confidential" or "Outside Counsel Eyes Only" to specified persons and does not permit unrestricted public dissemination of such material….

On April 10, 2025, one day after entry of the Protective Order, Defendant again posted the surveillance footage to his social-media accounts. On April 16, 2025, Plaintiff formally designated the materials produced by the Miami Beach Police Department as "Highly Confidential," and Plaintiff's counsel communicated that designation to Defendant's counsel. Defendant's counsel then informed Defendant of the designation, after which Defendant removed the footage. Defendant contemporaneously published a social-media post acknowledging that he was "required under the rules to remove the video."

Notwithstanding his knowledge of the Protective Order and Plaintiff's confidentiality designation, Defendant again posted the surveillance footage on September 17, 2025…. Although Plaintiff requested severe evidentiary and litigation-ending sanctions [over this], the undersigned concluded that those sanctions were not then supported by the record because a lesser sanction had not previously been imposed for the violation. The undersigned instead awarded Plaintiff its reasonable attorney's fees and costs attributable to the sanctions motion and expressly admonished Defendant that the Protective Order was not optional. The undersigned further warned Defendant that any future violation of the Protective Order would be treated with the utmost seriousness, including case-dispositive sanctions.

After further proceedings concerning the amount of the award, the Court ordered Defendant to pay Plaintiff $15,000.00 no later than April 26, 2026….

Separate from the Protective Order dispute, the District Court addressed Defendant's social-media activity in connection with pretrial scheduling and discovery matters. On February 10, 2026, Plaintiff moved for an extension of time to take Defendant's deposition and represented that Defendant had repeatedly scheduled and cancelled depositions based on asserted physical limitations while simultaneously publishing social-media content showing him engaged in activities including ice skating, kayaking, and bicycling. The District Court granted Plaintiff additional time to take Defendant's deposition and stated that it was "deeply disturbed by this trend." The District Court cautioned Defendant that sanctions, "potentially including the striking of Defendant's pleadings," would be imposed if the conduct continued….

[In a] February 20 Order, the District Court observed that the communications between the Parties had become "toxic," particularly in light of Defendant's online communications, and agreed with Plaintiff that the time had come for the matter to proceed toward resolution. The District Court stated that it was "deeply disturbed by Defendant's conduct," including his "continued social media attacks aimed at Plaintiff and its counsel" and his attempt to effect service at an address he knew belonged to Soffer's child. The District Court then expressly "DIRECT[ED] Defendant to cease such harassing conduct and social media references to Plaintiff and its counsel during the course of this litigation." …

In the Motion for Sanctions, Plaintiff contends that Defendant continued to publish social-media content referencing Plaintiff, Plaintiff's counsel, and this litigation almost immediately after entry of the February 20 Order. Plaintiff identifies multiple occasions between February 26 and May 28, 2026, on which Defendant allegedly violated the Order. [For more details, see the opinion, but here's one example. -EV] …

The May 24, 2026 social media publications constitute perhaps the most egregious violations of the February 20 Order. To recap, in one video, Defendant alleged that a member of his family was confronted and threatened in Jerusalem by an individual who invoked Plaintiff's counsel. Defendant specifically identified Plaintiff's counsel as the attorney representing the hotel in this action and asserted that this lawsuit was filed to "intimidate and silence him" after he publicly alleged that he had been threatened with murder in an antisemitic attack. Defendant further stated that it "remains unknown whether anyone connected to the ongoing litigation had prior knowledge of, encouraged, or otherwise played any role in the confrontation" and that he "has endured nearly two years of legal and public harassment by [Plaintiff's counsel] and the hotel in an effort to financially and personally destroy him after speaking out about the alleged antisemitic attack."

In the other May 24, 2026 post, Defendant referred to Plaintiff, Soffer, and Plaintiff's counsel, Burstyn, by name, and questioned whether Burstyn appeared in materials associated with Jeffrey Epstein. The post also referenced Burstyn's representation of another client, questioned Burstyn's role in events preceding the death of Virginia Giuffre, criticized Burstyn's representation of Plaintiff, and concluded with an assertion concerning public distrust of attorneys, stating that Plaintiff's counsel "is the reason that 84% of Americans believe that attorneys are scumbags."

These posts did not merely allude to Plaintiff—they expressly identified Plaintiff, Plaintiff's counsel, and the upcoming trial. They therefore violated both components of the District Court's directive. They constituted social-media references to Plaintiff and Plaintiff's counsel, and they also plainly continued the very social-media attacks that prompted the District Court's intervention. These publications therefore fall squarely within the conduct the District Court sought to halt and cannot reasonably be characterized as compliance with the February 20 Order….

And the Magistrate Judge therefore recommended sanctions against the Defendant:

The totality of the record demonstrates that Defendant willfully chose to disregard a clear judicial command. It is undisputed that Defendant knew of the District Court's February 20 Order. Nevertheless, Defendant continued making prohibited social-media references over approximately three months.

The violations were not confined to a single publication or a single day. Instead, Defendant repeatedly returned to social media to discuss Plaintiff, Plaintiff's counsel, and the pending litigation. That pattern is inconsistent with negligence or misunderstanding….

Further, Defendant knew the significance of an order, the requirement that he comply with an order, even if he disagreed with it, and the consequences for failing to follow an order. Not only has Defendant already been sanctioned for violating an order of this Court, but Defendant was also warned about the potential for graver consequences if he violates any other orders….

Turning to the issue of whether lesser sanctions would suffice, the record contains multiple warnings of escalating specificity. The District Court first warned Defendant on February 10, 2026 that continued misconduct could result in striking Defendant's pleadings. Then, on February 20, 2026, the District Court directed Defendant to cease social-media attacks and references to Plaintiff and its counsel. Less than one week later, the undersigned warned Defendant that Court Orders are not optional, that Defendant could not take matters into his own hands, and that future violations would be treated with the utmost seriousness, including the potential for Rule 37(b)(2)(A) sanctions. Those warnings did not produce compliance. Another admonition would repeat a measure the record has already shown to be ineffective with Defendant.

Further, the Court previously imposed a sanction in the form of a $15,000.00 fee award based on Defendant's knowing violation of the Protective Order. The violations of the February 20 Order followed that ruling and the accompanying admonition…. [T]he prior monetary sanction did not deter Defendant from again disregarding a pretrial directive….

At his deposition, Defendant admitted under oath that his social-media publications were intended to cause Plaintiff and Plaintiff's counsel to reconsider their conduct and litigation strategy. Consistent with that testimony, Defendant's May 24 and May 28 posts publicly accused Plaintiff of attempting to destroy him through this litigation, attacked Plaintiff and Plaintiff's counsel personally notwithstanding the Court's directive prohibiting such conduct, and attempted to rally public opinion by requesting "your support" in his trial "Against 'that Hotel' in Miami" where he will "absolutely defeat the antisemitism-deniers."

Defendant therefore used repeated violations of the Court's Order as an extrajudicial litigation tactic designed to influence whether, and under what conditions, Plaintiff continued to prosecute its claims against him. That objective directly implicates the integrity of the judicial process. The pattern of Defendant's repeated, willful violations of the February 20 Order when coupled with his stated intention behind his social-media posts and his history of sanctions and admonitions demonstrate that lesser sanctions will not suffice.

Accordingly, the undersigned concludes that striking Defendant's Answer and Affirmative Defenses, dismissing his Counterclaim with prejudice, and entering default judgment as to liability on Plaintiff's well-pleaded claims constitute appropriately tailored remedies that address the institutional harm caused by Defendant's abuse of the judicial process. {This recommendation is not based upon any determination that Defendant's affirmative defenses or Counterclaim lack substantive merit. Rather, it is based upon Defendant's willful violation of this Court's Order, his deliberate use of those violations as a litigation tactic, and the demonstrated inadequacy of lesser sanctions to secure compliance or preserve the integrity of these proceedings.}

With that said, the recommendation of entry of default judgment would not, by itself, establish the amount of Plaintiff's damages. Plaintiff would remain obligated to establish any unliquidated damages through appropriate evidence and further proceedings and Defendant would be able to defend against such damages claims….

[T]he Court [also] finds it appropriate to award Plaintiff its reasonable attorney's fees and expenses incurred as a result of litigating the Motion for Sanctions. The amount should be determined through a separate fee submission with Plaintiff bearing the burden to establish the reasonableness of its counsel's hourly rate along with the reasonableness of the requested fees….

The post "The AI Data Will Provide an Unrivaled View into the Mind of a Defendant …" appeared first on Reason Magazine.

Dominic Cummings is right, says Professor James Alexander: the idea that civil servants are the 'guardians of the constitution' is pernicious in the extreme. But who then should play such a lofty role?

The post Who is the Guardian of the Constitution? appeared first on The Daily Sceptic.

 

Georgetown law Professor Steve Vladeck is one of the leading critics of the conservative majority on the Supreme Court. But in an insightful recent post on his substack, he outlines key reasons why "court expansion" is a bad response to its flaws. The cure is likely to be worse than the disease:

[I]t seems to me that those who are fully onboard the expansion-or-bust train should have to do more than simply assert that having four new Democratic appointees on the Court in 2029 would be a self-evidently "good" thing. If nothing else, proponents of expansion should have to answer the following four questions:

1. How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?
2. If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?
3. If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?
4. What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?

He adds that court-packing could easily "permanently undermine judicial review as an institution." The rest of his piece (which is behind a paywall) offers far from reassuring answers to these questions.

I have offered similar criticisms of court-packing in a long series of articles and blog posts, most recently in a June Lawfare article  where I explained (among other things) why the Supreme Court's recent decision in Louisiana v. Callais doesn't justify packing, and in a July UnPopulist article critiquing a court-packing proposal advanced by Andy Craig. In these pieces, I explain why the Court's record of checking dangerous abuses of government power - though not without serious flaws - is considerably better than many critics claim. In addition, I argue that court-packing is likely to undermine effective judicial review - not only by the Supreme Court, but also by lower courts.

Like Vladeck, I think some of the issues that concern critics of the Court can be more effectively addressed in other ways. For example, in the Lawfare article, I explain how Congress can fix the flaws of the Callais decision by banning or restricting gerrymandering. It could also enact a binding ethics code for the justices. Justice Alito was wrong to suggest otherwise, back in 2023. That said, if your main goal is a sweeping reversal of much of the Court's recent jurisprudence, there may be no easy way to achieve that quickly without court-packing or something like it. I would argue that any benefits that might achieve are outweighed by the enormous costs of destroying judicial review.

In addition, if your objection to the Court's recent decisions is that they often don't do enough to constrain unconstitutional actions by other branches of government or by the states, court-packing is likely to make that problem worse, not better. Destroying judicial review won't enforce tighter constitutional constraints on the executive or bring back Roe v. Wade. To the contrary, it would largely destroy any hope of doing so.

In another recent piece, I assessed "non-packing" rationales for increasing the size of the Supreme Court. There, I argue that these rationales are mostly weak; and, to the extent they have merit, there are better ways to address them than an expansion that amounts to court-packing. I even outline possible ways to increase the size of the Court without creating an opportunity for court-packing (this would require allowing the party that doesn't hold the White House to pick some of the new justices).

The post Steve Vladeck's "Hard Questions About Court Expansion" appeared first on Reason Magazine.

Sacrifica ciò che è scomodo, mai il progetto. Il “pal-washing” in azione.

Segue nostro Telegram.

Un copione già noto

Il 9 ottobre 2026 il Comitato norvegese per il Nobel ha assegnato il Premio per la pace a Navanethem Pillay, giurista sudafricana di 85 anni, già giudice della Corte penale internazionale e Alta commissaria Onu per i diritti umani. La motivazione parla di una persona che ha aperto la strada a un ordine giuridico globale più completo. Il presidente del Comitato, Jorgen Watne Frydnes, ha aggiunto che il premio è un messaggio per chi attacca e mina il sistema internazionale e le sue istituzioni. Il verdetto è dichiaratamente politico, ed è su questo piano che va discusso.

La stessa figura che nel 2011 avrebbe «abbattuto» Gheddafi, spianando la strada al saccheggio del petrolio libico e alla schiavitù dei migranti africani, ora «abbatterebbe» Netanyahu, e preparerebbe così la riabilitazione di Israele. Il filo logico non sarebbe la morale né la pace, ma l’agenda dell’Open Society di George Soros: sacrificare i soggetti diventati scomodi, mai l’essenza del progetto. Qualcuno l’ha battezzata «pal-washing». La domanda di fondo è seria, perché chiede se dietro premi e giurisdizioni dell’ordine liberale ci sia una regolarità.

Occorre sottolineare che il copione è già noto. Vi ricordate quando Barack Obama ricevette il premio Nobel per la pace, inaugurando guerre su guerre? O vi ricordare i personaggi in cerca d’autore come Machado, Mohammadi, o i difensori dei criminali Ucraini? Ma andiamo per ordine.

 

Atto Primo: la Libia

Nel febbraio 2011 Pillay, Alta commissaria, chiese al Consiglio per i diritti umani un’azione vigorosa per fermare le violenze e chiamare i responsabili a risponderne; il Consiglio condannò le violazioni e istituì una commissione d’inchiesta. Il passaggio successivo toccò al Consiglio di sicurezza: il rinvio alla CPI con la risoluzione 1970, poi la 1973, approvata con dieci voti favorevoli e cinque astensioni (Brasile, Cina, Germania, India, Russia). Nessuno sostiene che Pillay abbia deciso la guerra. Conta la sequenza: il linguaggio dei diritti umani aprì la porta, quello della protezione dei civili autorizzò la forza, e l’operazione scivolò verso il cambio di regime. Già in aprile Lavrov accusava la NATO di eccedere il mandato, e un ministro francese ammetteva che il cambio di regime avrebbe richiesto un nuovo voto.

Poi i costi. Nel 2017 l’OIM documentò aste di migranti subsahariani nel sud della Libia, venduti per somme tra 200 e 500 dollari. Il nesso con il crollo dello Stato dopo il 2011 è la lettura più plausibile, benché la fonte documenti il fenomeno e non la sua causa. Il prezzo lo pagarono la Libia e i migranti; la cornice giuridica ne uscì, sul piano formale, intatta, anche se la controversia sul mandato avrebbe poi pesato sui veti di Mosca e Pechino in altri dossier.

Atto Secondo: Bibi

Il 21 novembre 2024 la Camera preliminare I della CPI emise mandati d’arresto per Netanyahu e per l’ex ministro della Difesa Gallant, per crimini di guerra e crimini contro l’umanità. Pillay aveva lasciato la Corte nel 2008, ma ha presieduto la Commissione d’inchiesta Onu che il 16 settembre 2025 ha concluso che Israele ha commesso genocidio a Gaza. Qui il «pal-washing» trova il suo meccanismo. Il diritto penale internazionale lavora su persone: un imputato, un’imputazione, un periodo. Se il caso si chiude con la sorte di un leader, si apre una cesura narrativa, il prima e il dopo di un uomo, dopo la quale lo Stato può presentarsi come reintegrato. La Libia offre l’analogia: là il caso si chiuse con la caduta di un uomo.

I limiti del percorso giocano a favore della lettura. La Corte non ha una polizia e l’esecuzione dei mandati dipende dagli Stati parte; la Commissione non è un tribunale e non parla a nome dell’intera Onu; lo stesso Comitato, riferisce AFP, ha detto che spetta a una corte stabilire se vi sia genocidio. Il premio non produce effetti giuridici, lo sappiamo, però produce legittimazione per un circuito che promette giustizia e non può garantirla.

Dobbiamo, poi, considerare che dinamiche del genere le abbiamo già viste più volte all’interno dell’ordine globalista che domina in Occidente. L’Open Society Foundations si presenta come il maggiore finanziatore privato al mondo di gruppi per giustizia, democrazia e diritti umani, attivo in oltre cento paesi, e Pillay ha ricevuto lo Stockholm Human Rights Award, lo stesso che nel 2011 è andato a Soros e a Neier. Sembra proprio che si ripeta di nuovo il pattern della agenda sorosiana, fatta di fondazioni, ONG, tribunali, commissioni e burocrazie che condividono un lessico e un orizzonte, quello di un ordine liberale da perfezionare e mai da rimettere in discussione. Chi opera dentro quel lessico può denunciare un governo, un leader, perfino uno Stato, ma non può contestare i presupposti dell’ordine che gli dà legittimità.

Alcuni obietteranno che la Commissione di Pillay attribuisce la responsabilità a Israele come Stato, non soltanto ai suoi leader, il che contraddice l’idea di un’operazione puramente personalizzante. Il secondo è la reazione. Netanyahu ha accusato il Comitato di aver perso la bussola morale, il Ministero degli Esteri israeliano ha parlato di una grottesca strumentalizzazione del premio, e Washington ha annunciato sanzioni contro la CPI poche ore dopo l’annuncio. Tutto vero. Ma avrebbe senso e valore se il sistema occidentale non fosse marcio fin dalle sue fondamenta, se il suo sistema giuridico funzionasse, ma così non è, sotto nessun aspetto (e abbiamo avuto già sufficienti dimostrazioni – non scordiamoci anche il caso Epstein).

Se nei prossimi dodici mesi la caduta politica di Netanyahu verrà presentata come chiusura del caso, anziché come una tappa di un procedimento che riguarda lo Stato, il «pal-washing» guadagnerà peso. Se i procedimenti proseguiranno oltre la sua persona, e se gli Stati parte eseguiranno i mandati, forse ne perderà. Allo stato delle prove la tesi è plausibile e, fino a smentita comprovata, questo è l’ennesimo Nobel della non-Pace, che non possiamo chiamare “guerra”.

On a recent episode of the Bulwark podcast, journalist Ron Brownstein described the election as a contest between “the wave versus the wall.” The wave being voter anger and President Donald Trump’s plummeting popularity. The wall being structural impediments to voters’ voices, such as gerrymanders and the Republican Party’s stark spending advantage. Now we know […]

The post Don’t let Musk and the billionaires buy America’s elections appeared first on Asia Times.

Sacrifice the inconvenient, never the project. “Pal-washing” in action.

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A familiar script

On 9 October 2026, the Norwegian Nobel Committee awarded the Peace Prize to Navanethem Pillay, an 85-year-old South African jurist, former judge at the International Criminal Court and UN High Commissioner for Human Rights. The citation speaks of a person who has paved the way for a more comprehensive global legal order. The Committee’s chair, Jorgen Watne Frydnes, added that the prize is a message to those who attack and undermine the international system and its institutions. The verdict is avowedly political, and it is on this level that it must be discussed.

The very same figure who, in 2011, is said to have ‘toppled’ Gaddafi, paving the way for the plundering of Libyan oil and the enslavement of African migrants, would now ‘topple’ Netanyahu, thereby paving the way for Israel’s rehabilitation. The underlying logic would be neither morality nor peace, but the agenda of George Soros’s Open Society: to sacrifice those who have become inconvenient, never the essence of the project itself. Some have dubbed it ‘pal-washing’. The fundamental question is a serious one, for it asks whether there is a pattern behind the prizes and jurisdictions of the liberal order.

It must be emphasised that the script is already familiar. Do you remember when Barack Obama received the Nobel Peace Prize, whilst launching war after war? Or do you recall figures in search of a cause such as Machado, Mohammadi, or the defenders of Ukrainian criminals? But let us proceed in order.

Act One: Libya

In February 2011, Pillay, the High Commissioner, called on the Human Rights Council to take vigorous action to stop the violence and hold those responsible to account; the Council condemned the violations and established a commission of inquiry. The next step fell to the Security Council: referral to the ICC via Resolution 1970, followed by Resolution 1973, approved with ten votes in favour and five abstentions (Brazil, China, Germany, India, Russia). No one claims that Pillay decided to go to war. What matters is the sequence of events: the language of human rights opened the door, that of the protection of civilians authorised the use of force, and the operation gradually shifted towards regime change. As early as April, Lavrov was accusing NATO of exceeding its mandate, and a French minister admitted that regime change would have required a new vote.

Then there are the costs. In 2017, the IOM documented auctions of sub-Saharan migrants in southern Libya, sold for sums ranging from 200 to 500 dollars. The link with the collapse of the state after 2011 is the most plausible interpretation, although the source documents the phenomenon rather than its cause. Libya and the migrants paid the price; the legal framework emerged, formally speaking, intact, even if the controversy over the mandate would later weigh on the vetoes of Moscow and Beijing in other matters.

Act Two: Bibi

On 21 November 2024, Pre-Trial Chamber I of the ICC issued arrest warrants for Netanyahu and former Defence Minister Gallant, for war crimes and crimes against humanity. Pillay had left the Court in 2008, but chaired the UN Commission of Inquiry which, on 16 September 2025, concluded that Israel had committed genocide in Gaza. This is where ‘pal-washing’ comes into play. International criminal law deals with individuals: a defendant, a charge, a period of time. If the case concludes with the fate of a leader, a narrative break occurs – the ‘before’ and ‘after’ of a man – after which the state can present itself as restored. Libya offers an analogy: there, the case concluded with the fall of a man.

The limitations of the process work in favour of this interpretation. The Court has no police force and the execution of warrants depends on the States Parties; the Commission is not a court and does not speak on behalf of the entire UN; the Committee itself, according to AFP, has stated that it is up to a court to determine whether genocide has taken place. The award has no legal effect, as we know, but it lends legitimacy to a system that promises justice yet cannot guarantee it.

We must also bear in mind that we have already seen dynamics of this kind on numerous occasions within the globalist order that dominates the West. The Open Society Foundations presents itself as the world’s largest private funder of groups working for justice, democracy and human rights, active in over one hundred countries, and Pillay received the Stockholm Human Rights Award, the same prize that went to Soros and Neier in 2011. It certainly seems that the pattern of the Soros agenda is repeating itself once again – an agenda comprising foundations, NGOs, tribunals, commissions and bureaucracies that share a common lexicon and worldview: that of a liberal order to be perfected and never called into question. Those operating within that lexicon may denounce a government, a leader, or even a state, but they cannot challenge the underlying assumptions of the order that grants them legitimacy.

Some will object that Pillay’s Commission attributes responsibility to Israel as a state, not merely to its leaders, which contradicts the idea of a purely personalised operation. The second point concerns the reaction. Netanyahu accused the Committee of having lost its moral compass; the Israeli Foreign Ministry spoke of a grotesque exploitation of the prize; and Washington announced sanctions against the ICC just a few hours after the announcement. All true. But it would make sense and have value if the Western system were not rotten to its very core, if its legal system were functioning properly, but this is not the case, in any respect (and we have already seen sufficient evidence of this – let us not forget the Epstein case either).

If, over the next twelve months, Netanyahu’s political downfall is presented as the conclusion of the case, rather than as a stage in proceedings concerning the state, ‘Pal-washing’ will gain traction. If the proceedings continue beyond his person, and if the State Parties execute the warrants, perhaps it will lose ground. Given the current evidence, the argument is plausible and, until proven otherwise, this is yet another ‘Non-Peace’ Nobel Prize – one we cannot call ‘war’.