Brazilian far-right presidential candidate Flávio Bolsonaro has rejected President Luiz Inácio Lula da Silva’s reelection and vowed to seek the annulment of the vote, citing a Supreme Federal Court decision to extend voting hours amid allegations of disruptions to public transport.
RELATED: Massive Celebrations Erupt Across Brazil After Lula’s Run-off Victory
The Superior Electoral Court (TSE) confirmed Lula’s reelection on Sunday. Bolsonaro, however, declared the result unacceptable and announced plans to challenge it in court.
“It is impossible to recognize the election results,” Bolsonaro said. “We will turn to our legal team and request that these elections be annulled.”
Bolsonaro based his challenge on a ruling by Supreme Federal Court Justice Cristiano Zanin, who extended voting by two hours after the Workers’ Party (PT) reported alleged irregularities affecting voter transportation in several cities.
The ruling came shortly before polls were due to close at 5 p.m. Zanin ordered polling stations nationwide to remain open until 7 p.m. Brasília time, citing the seriousness of the allegations and the urgency of the measure.
The PT accused mayors opposed to Lula of failing to comply with electoral court orders requiring municipalities to provide free public transport at full capacity on election day, as they would on a regular working day. The party also called for those responsible for the alleged violations to be caught in the act.
In Salvador, electoral authorities ordered the arrest of Pablo Souza, the city’s mobility secretary, over suspicions that he had withdrawn buses to disadvantage Lula. The northeastern city is governed by União Brasil, a center-right party allied with Bolsonaro. In the first round of the presidential election, Lula received 65% of the vote in Salvador, compared with 27% for Bolsonaro.
Brazilian trade union federations also denounced transport disruptions in several cities on election night and called for immediate action by the authorities.
In a statement, the unions condemned what they described as the deliberate obstruction of eligible voters’ right to participate in the election. They alleged that some cities had reduced their bus fleets despite a Supreme Federal Court order requiring public transport to operate at full capacity on election day.
The disruptions left thousands of people waiting at bus stops, uncertain whether they would reach polling stations in time. In some cases, the unions said, voters were unable to cast their ballots.
Bolsonaro’s campaign also sought an extension of voting hours, according to local media reports. His team requested additional time in cities across São Paulo, Paraná and Santa Catarina states, citing difficulties caused by heavy rainfall.
The dispute recalls the aftermath of the October 2022 presidential election, when Lula defeated Flávio Bolsonaro’s father, Jair Bolsonaro. The former president repeatedly challenged the result and conspired to overturn it.
On Jan. 8, 2023, thousands of his radicalized supporters stormed the Congress, presidential palace and Supreme Federal Court buildings in Brasília. Jair Bolsonaro was subsequently tried and is now serving a 27-year prison sentence for conspiring against Brazil’s democratic order and attempting a coup.
Is there an exception to the 5th Amendment's promise that government cannot take private property without "just compensation"? The Supreme Court declined to address that question this past Monday when it rejected a trio of petitions asking the justices to consider whether people should be compensated when law enforcement seizes or destroys their property.
Two of the cases concerned individuals who were not accused of a crime but whose property nevertheless became collateral damage as police pursued a suspect. In June 2022, police fired 30 tear gas canisters into Amy Hadley's home in South Bend, Indiana. Officers smashed windows, tore down security cameras, ransacked furniture, ripped down a panel and a fan, and punched holes in the walls as they searched for a fugitive named John Parnell Thomas, who had never been there. The police had erroneously concluded that Thomas accessed the internet via the IP address at Hadley's home. According to Hadley, the police caused at least $16,000 in damages, which insurance only partially covered.
About two months later, a SWAT team in Los Angeles arrived at Carlos Pena's North Hollywood printing business and destroyed it, along with his equipment inside, crippling his livelihood after a fugitive broke in and barricaded himself in the shop. (The suspect ultimately escaped.) Pena alleged approximately $60,000 in damages in his suit against the city, which declined to compensate him for his losses. His insurance also refused to step in—as is common in such cases, as policies often exclude damage caused by the government.
The third petition concerned Chicago drivers whose vehicles were seized by the city over modest unpaid parking tickets. Ryan O'Donnell's vehicle was impounded and sold for scrap because of about $524 in debt. Michael Goree's was seized and relinquished to the lienholder over a debt that did not belong to him; the $560 in unpaid tickets were for a different vehicle owned by his co-signer.
In all of these cases the lower courts' reasoning came from a similar place. Hadley, O'Donnell, and Goree's petitions were heard by the U.S. Court of Appeals for the 7th Circuit, which has adopted a categorical rule: Property destroyed in the exercise of "police power" is immune to claims under the Takings Clause, the U.S. Constitution's pledge that government cannot usurp private property without fairly compensating the owner. Pena's case went to the U.S. Court of Appeals for the 9th Circuit, where the judges have declined to issue such a sweeping exception but have instead ruled that governments are exempt from paying out claims when the police actions in question were "necessary."
In a statement, U.S. Supreme Court Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, outlined the many inconsistencies between the circuits on the topic. "It is still an 'open question' whether these or any other approaches are consistent with this Court's precedents. Few of these decisions likewise explain the source of any such police-power exception to the Takings Clause—whether the common law, the Constitution, or elsewhere," she wrote. "Such questions thus continue to 'benefit from further percolation' in the lower courts before this Court chooses to intervene."
Sotomayor was quoting herself. In 2024, she released similar remarks in response to a petition from Texas woman Vicki Baker, whose house in McKinney had been hollowed by a SWAT team attempting to capture a fugitive. The high court declined to hear Baker's case, although she finally found relief under the Texas state constitution this year.
"It's possible that the Court sincerely doesn't think the lower courts have done enough thinking on this important but novel issue," Patrick Jaicomo, a senior attorney at the Institute for Justice who represented Hadley, tells me. "Still, we've brought them 5 cases from 5 circuits. How much more percolation is needed?…The Court is going to have to address this important issue, and it's not clear what another circuit decision or 6 might do to aid that consideration."
Though Sotomayor's statement ran in parallel to the one two years ago, its slightly sharper warning intimated that we may be inching closer to a resolution. "I again encourage courts considering this issue to take care," she wrote, "that due deference to state police powers does not eclipse constitutional rights."
The post Police Destroyed Their Homes and Businesses. The Supreme Court Won't Say Who Should Pay. appeared first on Reason Magazine.
Brazilian voters are choosing between President Luiz Inácio Lula da Silva and Senator Flávio Bolsonaro in a presidential runoff after neither candidate secured a majority in the first round. More than 158.7 million people are eligible to vote, with polling stations open from 8 a.m. to 5 p.m. local time, according to the Superior Electoral Court (TSE).
RELATED: Lula Pledges Universal Full-Day Schooling in Brazil
In the first round on Oct. 4, Bolsonaro, of the Liberal Party (PL), received 47.03% of valid votes, or 56,104,503 ballots, while Lula, of the Workers’ Party (PT), won 45.16%, or 53,879,538 votes, according to official TSE figures. Neither surpassed the 50% threshold needed to win outright.
Voter abstention emerged as a significant factor in the first round, with 33,469,244 people staying away from the polls, representing 21.08% of registered voters. Both campaigns sought to attract those who did not vote, as pre-election polls pointed to a statistical tie.
The final day of campaigning on Saturday brought closing rallies from both candidates. Speaking in São Paulo, Lula attacked his rival, calling him a “liar,” a “militiaman” and unqualified for the presidency.
“A person like that does not have the political, moral or ethical qualifications to become president of the Republic,” Lula told reporters.
Bolsonaro received backing during the campaign from U.S. President Donald Trump, who described the senator’s first-round result as “a great victory.”
On Oct. 20, Lula framed the election as a choice over Brazil’s national sovereignty, saying voters would decide whether they wanted “a Brazil that kisses the Brazilian flag or one that gets down on all fours before the U.S. flag.”
Voting is compulsory for literate Brazilian citizens aged 18 to 70. It is optional for illiterate citizens, those aged 16 and 17, and people over 70.
A total of 918,876 Brazilians registered to vote abroad across 134 countries, accounting for about 0.5% of the electorate, according to the TSE. The number represents a 358% increase from 2010.
Text Reads: The Brazil we dream of is built together with the people—through struggle and hope! ❤️🇧🇷
Thank you to every Brazilian who stands by our side on this journey. It is this strength that drives us, and this unity that empowers us.
Tomorrow, let’s transform all this energy into the future! Together with the people, we will achieve so much more, secure new rights, and continue building a Brazil that is even fairer for everyone. Let’s do this together. Vote 13—vote for Brazil.
Overseas voters cast their ballots in person in 186 cities and can vote only for president and vice president. Women account for 57% of registered overseas voters and men for 43%, while the largest age group is between 40 and 44.
The United States has the largest number of registered Brazilian voters abroad, with 265,400, followed by Portugal with 134,700, Japan with 88,300, Canada with 46,400 and Germany with 41,500.
Sunday’s elections also include gubernatorial runoffs in Acre, Amazonas, Rio Grande do Norte, Espírito Santo and Tocantins, as well as the Federal District. None of the candidates in those contests secured more than 50% of valid votes in the first round.
Several municipalities are also electing mayors. In Chopinzinho and São João, both in the state of Paraná, voters are taking part in a referendum on changing the territorial boundaries between the two municipalities.
The runoff will determine whether Lula remains president or Bolsonaro takes office, concluding a campaign shaped by a narrow first-round margin, high abstention and competing appeals over Brazil’s political future and national sovereignty.
From Wednesday's decision in Fontainebleau Florida Hotel, LLC v. Botach [Rabbi Shmuley], decided by Magistrate Judge Marty Fulgueira Elfenbein:
Plaintiff's four subpoenas to the AI Providers and its Seventh RFP seek the same information, specifically Defendant's communications with AI platforms since December 3, 2024, concerning various categories of subjects:
- All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to the Fontainebleau Hotel.
- All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to this litigation.
- All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to counsel for Plaintiff.
- All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any employee, owner, or representative of the Fontainebleau Hotel.
- All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any Court Order entered during this litigation.
- All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to Judge K. Michael Moore or the undersigned.
In addition, to these six categories, Plaintiff seeks one more category of documents in the subpoenas to the AI providers (but not in the Seventh RFP), consisting of:
- All of Defendant's AI Communications regarding Requests 1 through [6] that have, since their creation, been deleted….
Plaintiff [argued] that Defendant's AI communications may reveal the extent of his alleged malice toward Plaintiff, the intentionality underlying his conduct, and evidence relevant to the determination of punitive damages, including whether an exception to Florida's statutory cap [on punitive damages] applies….
Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged matters relevant to a party's claims or defenses and proportional to the needs of the case. The Rule expressly recognizes that information within the permissible scope of discovery need not be admissible in evidence to be discoverable…. The District Court's Order at ECF No. [261], which authorized the Parties to conduct "discovery limited to damages," also governs the scope of discovery at this juncture…. Thus, the relevant inquiry is whether the particular AI communications sought by Plaintiff bear a sufficient relationship to the damages issues remaining in this action….
The degree of reprehensibility, the defendant's intent, and the circumstances surrounding the wrongful conduct are … relevant to determining an appropriate punitive-damages award…. To the extent Defendant used AI platforms to generate, revise, or refine statements concerning Plaintiff, its counsel, or its representatives, those communications may reveal not merely the final content of Defendant's statements but also the purpose for which the statements were created, the instructions Defendant supplied, and the effects he sought to achieve. Such information may provide evidence of the intent underlying Defendant's conduct that cannot necessarily be discerned from the resulting public statements alone. The Court does not determine that those communications will establish malice or specific intent to harm; it determines only that they bear a sufficient relationship to those disputed damages issues to warrant discovery….
According[] to Defendant, his alleged hostility does not necessarily prove constitutional actual malice, and it therefore should not be considered when deciding whether punitive damages are appropriate. Constitutional actual malice in a defamation action concerns knowledge of falsity or reckless disregard for truth. By contrast, the reprehensibility inquiry and the specific-intent exception under section 768.73(1)(c) require consideration of the defendant's culpability and intent to harm the claimant. Evidence of hostility, planning, or deliberate efforts to inflict or amplify injury to Plaintiff may be relevant to those questions when sufficiently connected to the alleged wrongful conduct here.
Plaintiff seeks evidence not simply to establish that Defendant disliked the Hotel, but to determine whether Defendant deliberately engaged in conduct intended to cause injury and whether that intent bears on the reprehensibility and statutory treatment of the punitive damages sought. The Court therefore rejects Defendant's argument that because hostility does not necessarily prove constitutional actual malice, it should not be considered when deciding whether punitive damages are appropriate.
Nor does the fact that some requested communications postdate the original publications render them categorically undiscoverable. Subsequent statements and conduct may, depending on their content and context, provide circumstantial evidence of a defendant's earlier intent or reveal a continuing course of conduct relevant to the injury. The temporal relationship between a communication and the alleged injury may affect its probative value, but it does not create an absolute bar to discovery….
The Court does not hold that every subsequent statement by Defendant may support an award of punitive damages. The Supreme Court has cautioned that punitive damages may not be used to punish a defendant for unrelated or dissimilar conduct merely because that conduct reflects poorly on the defendant's character. But the permissible scope of discovery is broader than the scope of evidence that may be ultimately admitted at trial. The present inquiry is whether the requested information is relevant and proportional under Rule 26(b)(1) to the damages issues remaining in this case.
Here, Plaintiff alleges a continuing course of conduct directed toward the Hotel, its personnel, and its representatives, including conduct involving AI-generated content. Plaintiff has also identified testimony from its damages expert concerning the alleged cumulative effect of Defendant's continuing online activity on the Hotel's reputation and business. As such, Defendant's communications with AI platforms concerning the Hotel and the Hotel's employees, owners, or representatives, including Plaintiff's counsel, may reveal information relevant to Defendant's alleged intent to harm Plaintiff, the nature and persistence of the challenged conduct, and the extent to which that conduct allegedly amplified Plaintiff's injuries. The Court therefore concludes that Request Nos. 1 (seeking AI communications about the Hotel), 3 (seeking AI communications about Plaintiff's counsel), and 4 (seeking AI communications about any employee, owner, or representative of the Hotel) in the subpoenas to the AI providers and the Seventh RFP fall within the scope of damages discovery authorized by the District Court….
Further, to the extent Request No. 7 in the subpoenas to the AI providers … seeks Defendant's AI communications regarding Requests Nos. 1 through [6] that have been deleted since their creation, the Court concludes that this Request is authorized by the District Court's Order only to the extent it seeks any deleted AI communications regarding Request Nos. 1, 3, and 4….
But the court rejected the other requests, which dealt with AI communications "concerning or relating to this litigation" (2), "concerning or relating to any Court Order entered during this litigation" (5), and "concerning or relating to Judge K. Michael Moore or the [Magistrate Judge]" (6):
Starting with Request No. 2 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to "this litigation." That formulation is exceptionally broad. It encompasses potentially every AI exchange on matters having no meaningful connection to the amount of damages or Defendant's alleged intent to harm Plaintiff. Plaintiff has not established that every communication relating to this litigation bears on an issue remaining for the damages trial….
Turning to Request No. 5 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to any Court Order entered during this litigation. Such communications may include Defendant's attempts to understand an Order, research its consequences, consider procedural options, or evaluate the litigation. The fact that Defendant may have expressed disagreement with, frustration about, or hostility toward a Court Order does not, without a sufficient connection to the alleged injury, make the communication relevant to Plaintiff's damages. Although Plaintiff contends that Defendant's reactions to Court Orders reflect the depth of his hostility and the reprehensibility of his conduct, that theory is too attenuated to justify discovery of every AI exchange concerning every Order entered in this case. The Court therefore finds that Request No. 5 exceeds the permissible scope of damages discovery.
Finally, Request No. 6 in the subpoenas and the Seventh RFP seeks all AI communications concerning or relating to District Judge K. Michael Moore or the undersigned Magistrate Judge. The Court likewise finds that Defendant's private communications with AI platforms concerning judicial officers, without more, do not bear a sufficient relationship to the damages Plaintiff seeks for the alleged harm to the Hotel. The discovery inquiry is not whether Defendant has criticized the judiciary; it is whether the requested information is relevant and proportional to the damages issues remaining in this action. A request encompassing every AI communication about the judges presiding over this litigation exceeds that scope. The Court thus finds that Request No. 6 exceeds the permissible scope of damages discovery.
The Court recognizes Plaintiff's argument that Defendant's criticism of the judicial process may demonstrate the persistence of his alleged hostility. But the Supreme Court has cautioned against using dissimilar conduct as a basis for punishing a defendant for being an objectionable person rather than for the conduct that injured the plaintiff….
And the court rejected the argument that the communications were categorically "protected work product":
Federal Rule of Civil Procedure 26(b)(3)(A) generally protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." The doctrine is designed to protect the adversarial process by preserving the privacy necessary for litigation preparation….
The Eleventh Circuit's interpretation of Rule 26(b)(3)(A) confirms that work-product protection is not limited to materials prepared by counsel but extends to materials prepared by or for a party or its representative in anticipation of litigation….
When determining whether a document is protected under the work-product doctrine, "litigation need not necessarily be imminent … as long as the primary motivating purpose behind the creation of the document was to aid in possible litigation." The document must have been "created principally or exclusively to assist in anticipated or ongoing litigation." "Just because a document may have been used later to assist in litigation … does not mean it was principally prepared for such purpose." …
Here, communications independently generated by Defendant to create, revise, or disseminate content concerning the Hotel, its personnel, or Plaintiff's counsel are not transformed into attorney work product merely because Defendant is a litigant or because the resulting content may bear on this action. To the extent such communications were created for the purpose of producing public-facing statements or pursuing Defendant's independent activities, rather than preparing the defense of this litigation, they ordinarily would not satisfy Rule 26(b)(3)(A). The Court therefore rejects Defendant's blanket work-product objection to Request Nos. 1, 3, 4, and 7.
However, that conclusion does not foreclose a properly supported, document-specific claim of protection. If a particular communication was prepared because of this litigation and otherwise satisfies Rule 26(b)(3), Defendant may assert the protection in accordance with the Federal Rules. Defendant must, however, identify the withheld material and describe the nature of the asserted protection sufficiently to permit Plaintiff to assess the claim without revealing the protected information itself….
[I]f Plaintiff serves the subpoenas on the AI providers and requires them to produce the document directly to Plaintiff's counsel, Defendant will be deprived of the opportunity to determine whether there are any work-product protected documents within the production that should otherwise be withheld and identified on a privilege log. For that reason, the Parties are DIRECTED to meet and confer to discuss the logistics of how the AI providers, to the extent they have responsive materials, will be instructed to produce such materials….
Some backstory on the lawsuit from an earlier post, Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit (District Judge K. Michael Moore had since adopted the Magistrate Judge's Report):
This case arises from an incident that occurred at the Fontainebleau Florida Hotel …. Plaintiff alleges that the following events occurred:
After more than an hour of loitering, Defendant Boteach engaged in an uneventful conversation with a registered guest of the Hotel and the two parted ways. More than an hour later (after midnight on Sunday, December 2, 2024), Defendant Boteach engaged in a verbal altercation with the same registered guest wherein the guest and Defendant Boteach exchanged hateful words at each other.
The guest used language that was heinous and accused Defendant Boteach of being a "baby killer" and other words that are easily interpreted as antisemitic. Defendant Boteach, in turn, hurled anti-Islamic words at the registered guest and repeatedly shouted, "Allahu Akbar? Are you going to blow yourself up or something? … he uses the expressions of, like, suicide bombers." Within hours, Defendant Boteach posted an edited video of the exchange on Instagram and began his campaign of threats against the Hotel, its ownership, its outside lawyer, and its employees—who had nothing to do with the altercation except that Hotel security de-escalated and ended it.
Plaintiff alleges that following the altercation, the Defendant, who the FAC [First Amendment Complaint] describes as a "social media influencer and rabbi" with "hundreds of thousands of social media followers[,]" went on a "multi-week assault on the [Hotel], its personnel, and representatives—creating AI videos purporting to show them celebrating antisemitism, comparing them to Nazi collaborators, falsely accusing them of banning Jews from the property, and fabricating statements that they embraced a policy of Judenrein, i.e., the extermination of six million Jews." The FAC alleges that Defendant falsely stated that he was denied entry to the Hotel because he is "too Jewish," that the Hotel refused to cooperate with law enforcement's investigation of the incident, and that he "was trespassed from the Hotel for being 'too Jewish[.]'"
Plaintiff further alleges that "Defendant Boteach published a statement that, in part, called for guests 'who have booked' at the Hotel to 'cancel your reservations'" and to "'be smart and cancel and give your hard-earned money to a hotel that doesn't abide antisemites.'" Moreover, Plaintiff alleges:
At all hours of the day and night, Defendant Boteach proceeded to harass the Hotel and its representatives. For example, he posted a "headshot" photograph of the head of the Hotel's outside counsel with the words "DIGITALLY DECAPITATED" and later, at 3:49 am, menacingly threatened that counsel was "about to have a really interesting Shabbat" when he arrived at his synagogue, which Defendant Boteach identified by name and location. Defendant Boteach directly contacted counsel's clergy and posted harassing images of them.
That post also explains the Magistrate Judge's conclusion that the defendant had repeatedly and willfully violated a court order, and therefore ought to have default judgment entered against him as to liability (with further proceedings to take place as to damages).
Sean Alexander Burstyn (Burstyn Law PLLC), Christopher Ara Ajizian (Christopher Ajizian P.A.) and Todd Rapp Friedman represent the hotel.
The post Some Communications by Rabbi Shmuley with AI Platforms May Be Discovered in Order to Determine Punitive Damages appeared first on Reason Magazine.
Hillary Clinton may no longer be the most influential voice in the Democratic Party, but she remains a member in good standing of the party establishment. So when she expresses support for expanding the number of justices on the Supreme Court, it tells us that what was once a radical idea has gone mainstream.
“We should seriously look at expanding the court while the Democrats are in power,” Clinton said on a recent podcast. “You know, it used to be that you’d have one justice for each circuit. We now have 13 circuits, we should have 13 justices.”
Adding four justices to the court is just one of the potential reforms that have been suggested as a way of curbing the court’s abuses. Others include 18-year term limits for justices, ethics rules with actual teeth (no more billionaire-funded junkets for you, Justice Thomas) and limits on the court’s ability to strike down any law they don’t like. Whichever particular reforms one prefers, it is no longer acceptable for a Democrat to simply decry the latest awful ruling. They have to be willing to entertain fundamental change to the institution.
This shift in Democrats’ thinking is as remarkable as it is recent. Five years ago, Sen. Ed Markey introduced a bill to do just what Clinton and others now favor, adding four justices to the court; it got only two co-sponsors, Sens. Elizabeth Warren and Tina Smith. Joe Biden responded to demands for court reform with Washington’s favorite way of burying an issue: He appointed a commission to study it. They produced a lengthy white paper, but it wasn’t until July 2024 — after he pulled out of the presidential race — that Biden finally endorsed term limits and an enforceable ethics code.
The situation today is far different. Supreme Court reform will almost certainly be part of the 2028 Democratic platform, and just about every politician considering a presidential bid has already come out for at least some version of reform.
The list of potential contenders who have endorsed court expansion — perhaps the most radical of the proposed reforms — is long and getting longer. It includes Kamala Harris, Pete Buttigieg, Rep. Ro Khanna and Rep. Alexandria Ocasio-Cortez. Term limits have been endorsed by Sens. Chris Murphy, Cory Booker and Elissa Slotkin, along with Gov. Andy Beshear. Other potential candidates, including Sen. Raphael Warnock and Govs. Josh Shapiro and JB Pritzker, are taking the “everything should be on the table” approach, not saying specifically what they’re for — which suggests they’re waiting to see what the voters demand. Pressure will only keep building.
What changed? The most important factor is the court’s own behavior. There are the monumental decisions: overturning Roe v. Wade, gutting the Voting Rights Act, eliminating any meaningful restrictions on billionaires pouring money into campaigns, outlawing affirmative action in education and giving the president immunity from prosecution for crimes, among other things. Taken together, the court’s conservative majority is so obviously pursuing its own partisan political project: to remake the law and the structure of the federal government in line with their personal preferences. Yet the justices pretend that they and only they are truly committed to the framers’ intentions and the text of the Constitution.
“We are not part of any political movement, and we are not attempting to further any political agenda,” said Samuel Alito, the most partisan justice on the court. “People think we’re making policy decisions,” lamented Chief Justice Roberts earlier this year, when nothing could be further from the truth. So says the man who has steered the court’s stampede to the right, including achieving his lifelong goal of destroying the Voting Rights Act.
Even Elena Kagan, the most conciliatory of the liberal justices, said in a recent speech that the court’s decisions rubber-stamping partisan gerrymandering showed “a lack of the appropriate concern or understanding of the consequences of their decisions.” With all due respect, Kagan was mistaken: They know exactly what the consequences of their decisions are. That’s why they rule the way they do.
So thanks to the conservative justices, Democrats are moving toward a consensus on court reform. There is no left versus center division within the party on whether the court’s decisions have or haven’t created a crisis. The only question is what should be done about that crisis. Anyone wanting to lead the party is going to have to be willing to take on this court and rebalance the scales. If they don’t, their constituents won’t stand for it.
The post Hillary Clinton thinks we should have 13 Supreme Court justices. Here’s why that matters. appeared first on MS NOW.
The committee was formally established on October 23, at the Federal Legislative Palace in Caracas, one day after being sworn in during a legislative session.
Giuseppe Alessandrello, who presides over the body, announced that its immediate task is to draw up a work schedule under the Law of the Supreme Court of Justice.
RELATED: Venezuela’s Acting Pres. Delcy Rodríguez Meets 2015 Assembly Delegations
Alessandrello said the law opened the selection process to ordinary citizens. Writing on social media, he stated that the legislation brought people into the work of “evaluating and selecting the leadership, in this case of the Supreme Court of Justice, to seek plurality.”
#23Oct || Desde el Palacio Federal Legislativo se realiza la Instalación del Comité de Postulaciones Judiciales. pic.twitter.com/MczZA2GxJ7
— Asamblea Nacional 🇻🇪 (@Asamblea_Ven) October 23, 2026
Text reads: “From the Federal Legislative Palace is carried out the installation of the Judicial Applications Committee.”
The committee operates within a broader national dialogue that authorities describe as “building a new Venezuela.” Officials have repeatedly framed the judiciary as the institution responsible for guaranteeing what they call true and just peace among citizens. “The judicial branch is the institution that will guarantee peace among us,” Alessandrello said.
The work schedule will set specific periods for the call for nominations, the evaluation of candidates, and the handling of challenges and responses.
The final goal is to present a definitive list of eligible candidates to the National Assembly.
Alessandrello stressed the weight of the assigned tasks, linking them directly to institutional stability. The committee’s operational work and the eventual delivery of the list will follow the terms and periods established by current law.
The process is governed by the Organic Law of the Supreme Court of Justice and the Constitution of the Bolivarian Republic of Venezuela. It covers the selection of both principal and alternate justices of the Supreme Court of Justice.
Subrayó el rol clave de la ciudadanía:
— Asamblea Nacional 🇻🇪 (@Asamblea_Ven) October 23, 2026
"La ley incorporó a los ciudadanos y ciudadanas de la sociedad en este trabajo de evaluar y seleccionar a las directivas, en este caso del Tribunal Supremo de Justicia, para buscar la pluralidad". pic.twitter.com/LhNVkaK6ov
Text reads: “The President of the committee, Giuseppe Alessandrello, highlighted the group’s harmony: “Everything we produce is decided unanimously and the auspices with the work of the committee are positive.” He also emphasized the importance of plurality in this process. He stressed the key role of citizenship: “The law incorporated citizens of society in this work of evaluating and selecting directives, in this case from the Supreme Court of Justice, to seek plurality.”
The mandate extends beyond the high court itself. It also includes related judicial positions, among them the directorship of the National School of Magistrates.
The committee emerged from a process announced earlier this month. The National Assembly opened the nomination period between October 2 and October 9, allowing interested citizens and institutions to take part in the selection of the court’s leadership.
Once the schedule is finalized, the committee will move through successive phases, receiving nominations, reviewing candidates, and addressing any challenges filed against applicants. Each challenge will carry its own opportunity for a formal response before the list reaches the legislature.
The final list of selected candidates will be delivered to the National Assembly for consideration. The body’s work therefore functions as a preliminary filter within a process whose ultimate decisions rest with the legislature.
Welcome back, Deadline: Legal newsletter readers. Supreme Court justices were off the bench this week because they’re in between their October and November hearing sessions. But they still made plenty of news, in both their written work and public comments.
They started by adding two potent cases to a docket that is growing this term in both size and importance. Following last week’s agreement to review a discovery dispute over Elon Musk’s purported government efficiency effort, on Monday the court added two more appeals: on race in middle school admissions and congressional authority to ban home distilling. The court will keep adding cases throughout the year, with all the rulings in argued cases typically coming by July.
Justices Sonia Sotomayor and Neil Gorsuch were together again, speaking out for the second week in a row about a case the court refused to hear. Last week, Gorsuch joined Sotomayor to lament what they saw as unjust prosecution. This week, the Trump appointee joined the Obama appointee to critique what they saw as constitutional problems with car seizures in Chicago. It’s not new for this duo to team up in a certain type of case that lends itself to bipartisan agreement, but they have been ramping up that agreement so far this term.
Sotomayor’s statement appeared on the order list, which, as regular readers know, is an important document that announces the latest actions on pending petitions. That’s where we learned about the two new cases that the court took up and the (much longer) list of cases the court rejected. It takes four justices on the nine-member bench to grant review, and the court denies most petitions.
But Sotomayor’s statement reminds us that the justices occasionally offer their thoughts even when, as here, they agree with the denial but still find it important to highlight broader issues. These writings help us understand the justices’ priorities and what new cases the court might take up in the future.
Another sort of signal came from Justice Samuel Alito, who didn’t explain himself but noted that he wanted to review one of the petitions the court denied on the list. The failed petition came from Missouri officials who wanted the court to revive a rule that registered sex offenders must put signs on their doors for Halloween that read, “No candy or treats at this residence.” An appeals court said the rule wrongly compelled speech under the First Amendment. Although Alito merely noted, without explanation, his difference of opinion, the vote fits with his overall approach, because he generally backs law enforcement and has split from his colleagues in other First Amendment disputes.
Alito had company later in the week when the court rejected the Trump administration’s request to immediately enforce its preferred policy on gender-affirming care in prison. The justices did not explain the rare (albeit temporary) win for transgender people at a court that has ruled against them in a series of other cases. But whatever the justices were thinking, we know it wasn’t unanimous, because Alito and Justice Clarence Thomas both indicated (also without explanation) that they wanted to grant the government’s request.
Justice Elena Kagan made news outside her written work, with an appearance at a law school in Washington, D.C., the sort of speaking engagement that the justices will do from time to time. Kagan, who was dean of Harvard Law School before she became a justice, gave her GOP-appointed colleagues a failing grade when it comes to democracy. Reprising impassioned criticisms of rulings on voting and campaign finance that she has made in dissenting opinions, the Obama appointee said the court “has kind of blinded itself to the very deleterious effect of their rulings on how the political system works and has created a democracy that does not work as well as it should.”
Kagan apparently agreed with her colleagues this week in an election case, when the Supreme Court granted a Republican-backed request from New Hampshire to block the use of student IDs for voting in the midterms. In a brief unsigned order, the high court chided a lower court judge for, as the justices saw it, improperly interfering with state rules right before an election. Justice Ketanji Brown Jackson was the only one to publish a dissent, in which she contended the judge was justified in trying to protect voting rights.
The justices are still off the bench for another week, as they are set to return to the courtroom in November to hear the next batch of regularly scheduled arguments. But as Election Day approaches on Nov. 3, they will continue to field unscheduled emergency applications on voting and whatever else comes their way.
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The post SCOTUS Week in Review: Back to school, home spirits and a rare decision appeared first on MS NOW.
“If Donald Trump defies court orders because the Supreme Court said he cannot be prosecuted for actions he takes as president, could those people who carry out his illegal requests be prosecuted or fined even though they are acting on his orders?” — Kit Read
Hi Kit,
Maybe.
The Supreme Court’s 2024 ruling in Trump v. United States only dealt directly with criminal immunity for presidents, holding that they have at least presumptive immunity for all official acts, as well as absolute immunity for acts within their “conclusive and preclusive” constitutional authority.
What all that means in practice hasn’t been fully fleshed out. It would take a follow-up case to clarify the ruling’s limits, and it’s unclear if or when such a case will come.
At any rate, the court focused on presidents in that ruling. It did not grant immunity to aides acting on the president’s behalf.
Yet, while arguments have been made against subordinate immunity, it’s technically an open question that the justices haven’t decided one way or the other.
So the answer to your question at the moment is: maybe.
But you might wonder: What could the argument be for immunizing presidential underlings?
One scholarly account argued that the logic of the immunity ruling “renders the President’s subordinates absolutely immune for a potentially broad range of official acts, even if those acts are otherwise unlawful.” That’s because if the president has complete power over executing the law, then, the argument goes, subordinate actions that implement that power are lawful, as opposed to being unlawful but immune from prosecution.
As with clarifying the immunity ruling’s limits as it applies to presidents, whether the Supreme Court will decide the subordinate immunity question depends on the court taking an appeal that raises that issue in the future. And as with presidential immunity itself, there is no clear candidate for an appeal the court would take to answer that question.
Either way, if a president wants to ensure that any of his henchmen won’t be federally prosecuted, he could always pardon them.
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The post Ask Jordan: Does presidential immunity extend to subordinates who carry out illegal orders? appeared first on MS NOW.
A short excerpt from the long opinion in Jackson Fed. of Teachers v. Fitch, decided yesterday by Fifth Circuit Judge Jerry Smith, joined by Judge Kurt Engelhardt:
In April 2025, Mississippi enacted House Bill 1193 (H.B. 1193), a law designed to keep Mississippi public education funds from being spent on diversity, equity, and inclusion ("DEI") initiatives and similar controversial programs. The law prevents government-run institutions from requiring activities such as diversity training or pushing DEI ideology, so defined, in the course of government-funded business.
H.B. 1193 does four main things. First, it prevents educational institutions from mandating DEI programs and diversity trainings in a variety of contexts. Second, it stops public educational institutions from punishing students for their views on DEI. Third, it prohibits regulated institutions from endorsing or promoting DEI through course materials. Finally, it prevents institutions and their educators from otherwise engaging in DEI methods or actions, preventing bad actors from circumventing prohibitions and frustrating its purposes. The statute also creates an administrative process to handle claims that a given educational institution is not in compliance. H.B. 1193 excepts several activities from its sweep, including scholarly work, the activities of students and their groups, and creative engagement.
Plaintiffs sued, claiming (among other things) that the law violated the First Amendment, but:
The proceedings in the district court were a botch job, to say the least. Judge Henry Wingate issued a temporary restraining order ("TRO") enjoining enforcement of H.B. 1193 that contained several factual assertions nowhere to be found in the record, or indeed, in any proceeding of the case. Those included mention of plaintiffs and defendants not in the complaint, supposed "declarations" from non-existent or never-present individuals, false quotations purporting to be taken from the text of H.B. 1193, and several erroneous claims that the law had already led to the demise of apparently fictitious programs.
After this came to light, Judge Wingate replaced the TRO without explaining.
Forging forward despite the bungled TRO, Judge Wingate issued a pre-enforcement preliminary injunction. The various state defendants appeal.
At oral argument in this court, it was discovered that even the "corrected" TRO—which was incorporated by reference into the preliminary injunction order—still contained hallucinated information (namely, a citation to a purported Fourth Circuit case, "Cousins v. School Bd. of City of Norfolk," that does not exist).
This district judge carelessly exercised his Article III power by issuing sloppy edicts based on falsehoods and fabrications. Upon discovering some of these falsehoods, Judge Wingate dug in his heels and claimed that the hallucinated claims had no bearing on its reasoning; he offered no explanation as to why he included such apparently irrelevant material in the original TRO or why the TRO nevertheless was justified in its absence.
Moreover, the district court got the law wrong. The TRO and preliminary injunction order rested on impoverished legal analysis that barely paid lip-service to the precedents of the Supreme Court or this court, seeming at times purposely to misconstrue the law by manipulating the words of statutes and cases, without regard to their texts' meaning as a whole. The district court—or perhaps, being charitable, its AI agent—ignored and manipulated governing law, apparently to satisfy a policy agenda.
Because of the extraordinarily grave errors by the district court, we vacate and remand for assignment to a different district judge. Per the Supreme Court's decision in Moody, we instruct the new judge to conduct proceedings consistent with federal law as interpreted by the Supreme Court and this circuit….
The original TRO—the one actually issued on July 20, 2025—named as plaintiffs eleven individuals and organizations who had never been party to the case; named as defendants two officials who were not actually sued; claimed, without evidence, that three post-secondary institutions had already cancelled DEI initiatives or programming because of the act; further declared, again without evidence, that staff at another school had been told not to discuss certain topics, including "historical interpretations involving systemic racism"; misquoted H.B. 1193 as applying to "race or sex stereotyping," "race or sex scapegoating," "critical race theory," and "institutional bias," despite none of these terms' appearing in the act's text; and referenced purported declarations of four individuals who do not appear in the record at all and may not even exist….
On July 22, 2025, defendants filed a motion to clarify, pointing out these errors. In response, the court, without explanation, replaced the original TRO with a seemingly corrected version. Though that document was docketed on July 22, it was backdated to July 20. Defendants requested that the original order be restored to the docket to keep the record whole and requested that the court explain the inaccuracies in the original order. The district court denied that motion, claiming the factual inaccuracies were merely "clerical."
In response, U.S. Senator Chuck Grassley accused the district court of using artificial Intelligence ("AI") to prepare the TRO, with the substantive errors' arising from AI-generated hallucinations. Fifteen days later, Judge Wingate admitted the errors, claiming that a law clerk had used AI to assist drafting an earlier version of the TRO that was docketed by mistake. His letter stated that he had removed the original TRO from the docket to avoid confusion and that the errors were clerical, in his view, because they did not relate to "core legal reasoning or the ultimate judgment on the merits" but instead to "failure to confirm the accuracy of certain information."
The seemingly corrected TRO did not explain how or why the factual inaccuracies were not necessary to the reasoning of the original TRO. The merits analysis failed to cite a binding authority from after the year 2000. It claims that H.B. 1193 constitutes viewpoint discrimination, without any analysis whatsoever of a state government's authority to regulate its own speech. And the document did not correct all of the errors: At Fifth Circuit oral argument, it was discovered that the doctored TRO cited to "Cousins v. School Bd. of City of Norfolk, 503 F.2d 422, 426–27 (4th Cir. 1974)." That case does not even exist; it is an apparent AI hallucination….
Judge Catharina Haynes did not join these parts of the opinion.
There's also some interesting First Amendment analysis in the case, which I hope to blog about later today. (I'm tied up for the next several hours.) Thanks to @WillChamberlain and Glenn Reynolds (Instapundit) for the pointer.
Anthony M. Shults, Justin Lee Matheny, Rex Morris Shannon, III, and Scott G. Stewart represent defendants.
The post "The District Court—or Perhaps, Being Charitable, Its AI Agent—Ignored and Manipulated Governing Law, Apparently to Satisfy a Policy Agenda" appeared first on Reason Magazine.
A nearly unanimous Supreme Court has granted New Hampshire’s emergency request to block the use of student IDs for voting in the November midterm elections.
The case raised a recurring theme at the high court about the propriety of judges intervening on the eve of political contests, against the familiar backdrop of GOP-backed voting restrictions purporting to ensure election integrity.
On Thursday, the majority said that the district court judge who ruled against the state failed to justify deviating from the general principle that federal courts shouldn’t alter election rules on the eve of an election. Justice Ketanji Brown Jackson dissented, writing she “would not disturb a clearly justifiable federal-court order issued to ensure that the public receives accurate information about a State’s electoral processes.”
The Biden-appointed justice said she wasn’t as sure as the majority that the judge’s action falls under that general noninterference rule, known as the “Purcell principle.” She said the judge was trying to address alleged misinformation rather than change state law.
“When a federal court determines that material misrepresentations are being made about a State’s election rules, an injunction to prohibit that conduct does not contribute to public confusion, it prevents that very problem,” Jackson wrote in her solo dissent.
While New Hampshire’s federal representatives are Democrats, Republicans run the state government. Gov. Kelly Ayotte signed a bill into law this year that prohibits the use of student IDs for voting.
A New Hampshire-based nonprofit called Coalition for Open Democracy sued the state over the law, which the group said needlessly burdens young voters under the guise of trying to solve the “non-existent problem” of nonresident voter fraud.
In a ruling earlier this month, U.S. District Judge Joseph Laplante refused to block the law, called HB 323. But the George W. Bush appointee said related guidance from New Hampshire Secretary of State David Scanlan, a Republican, went too far. Laplante said Scanlan overstepped in barring election officials from considering student IDs even as evidence under a “safety-valve provision” that lets voters prove who they are if they don’t otherwise have a proper photograph.
“The State has offered no independent justification for that broader prohibition,” wrote Laplante, explaining that such justification is needed even for minimal burdens on voting rights. He blocked enforcement of Scanlan’s directive to the extent it “prohibits or discourages election officials from considering student IDs as evidence of voter identity,” and he ordered the secretary of state to issue revised guidance for the midterms.
Laplante declined to halt his ruling, as did an appellate panel over dissent from a Trump-appointed judge. State officials then turned to the justices in Washington, arguing that Laplante’s order risks late-breaking confusion. The Republican National Committee filed an amicus brief supporting the state.
Opposing the state’s emergency application, Open Democracy said granting the application would be the chaos-inducing move. The group noted that Scanlan had already quickly complied with the order to provide revised guidance, and that his website “has told voters since the October 2 Order that supervisors may consider a student ID along with other evidence.”
That guidance is now the status quo, Open Democracy observed. Therefore, it said, granting the state’s application would “reverse the rules for a second time in a month.”
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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.
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.
This article was originally published by Truthout on Oct. 21, 2026. It is shared here under a Creative Commons (CC BY-NC-ND 4.0) license.
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.
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.
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.
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.
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.
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.
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