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.
Samuel Alito was the only Supreme Court justice on Monday to signal that he wanted to help Missouri revive a restriction for sex offenders on Halloween.
The high court rejected review of that case and others on its order list announcing the latest actions in pending appeals. It takes four justices to grant review of a petition, and most denials pass without comment from any of the justices, which makes even an unexplained notation like Alito’s significant. The list only said that he “would grant” the state’s petition, without explaining why.
Although justices sometimes explain their disagreements, they don’t always do so. In any event, that Alito stood alone here is unsurprising. He generally backs law enforcement and has split from his colleagues in other First Amendment disputes.
The state sought Supreme Court review after a lower court struck down a law that required registered offenders to post signs that say: “No candy or treats at this residence.”
In the petition the justices denied Monday, Missouri asked them to take the case to settle what it said is a nationwide divide over whether sex-offender notifications unconstitutionally compel speech under the First Amendment.
The state called the rule crucial to enforcing its prohibition on sex-offender participation in Halloween “because it helps prevent children from approaching sex offenders’ doors and assists police in detecting sex offenders who (like Respondent) unlawfully participate in Halloween.”
The respondent to the petition in this case is Thomas Sanderson. Before he was convicted of a sex offense in 2006, he and his family had consistently put on elaborate Halloween displays. Missouri passed the law in question while he was incarcerated. When he was released in 2008, he was told that he was “grandfathered in” and could continue the annual displays. Apparently it was not an issue until 2022, when he was reported to the police and charged with violating the law.
Upholding a lower court ruling favoring Sanderson’s constitutional challenge, the U.S. Court of Appeals for the 8th Circuit said there was “insufficient evidence to support the State’s assertion that the sign mandate is the least restrictive means of achieving its goals.”
Successfully opposing review at the Supreme Court, Sanderson said there was no real division to resolve among the lower courts. He said that the appeals court in his case “applied settled First Amendment doctrine to strike down an unusual speech compulsion,” and that “no court of appeals or state high court disagrees with that ruling.”
The post Over Alito’s objection, justices decline to review Halloween-sign rule for sex offenders appeared first on MS NOW.
Last week, it was double jeopardy in Oklahoma. This week, it’s car seizures in Chicago. The through-line is Justice Neil Gorsuch joining Justice Sonia Sotomayor for the second week in a row to call out what they see as government abuses.
It’s not a new phenomenon for the Obama and Trump appointees to team up in a certain type of case that lends itself to bipartisan agreement.
But early in the new court term, they continue to distinguish themselves from their colleagues on the nine-member bench who haven’t shown the same interest in drawing attention to these appeals the court refuses to hear.
“I again encourage courts considering this issue to take care that due deference to state police powers does not eclipse constitutional rights,” Sotomayor wrote Monday in the case of O’Donnell v. Chicago, joined by Gorsuch. The issue, in their view, is that the city’s vehicle forfeiture scheme offends the Fifth Amendment’s prohibition on taking private property for public use without “just compensation.”
Per Sotomayor’s statement, the city takes vehicles when drivers fail to pay as few as two parking tickets — after that, she wrote, the city “can do as it pleases with the vehicle, with no obligation to pay compensation, offset the unpaid ticket debt, or return any surplus to the owner if the vehicle is sold for a profit.”
Her statement appeared on the court’s latest order list, which is a routine scheduled document that announces the latest action on pending petitions. It takes four justices to grant review of a petition, and most of them are denied without comment from any of the justices. That’s what makes it notable when justices speak out in connection with denials.
To be sure, Sotomayor and Gorsuch didn’t dissent from the O’Donnell denial, as justices sometimes do in their separate writings. As was the case with her statement that Gorsuch joined last week on a double jeopardy issue, the duo agreed with their colleagues that the Chicago case didn’t warrant review. Sotomayor noted that the nation’s lower courts are divided on the constitutional issue, and that the split would “benefit from further percolation” before the high court steps in.
So, the subject could return to the justices in a future case, where petitioners can count on at least two justices showing interest. They would need two more to win review.
The denial in the O’Donnell case (and many others that went unremarked upon by any justices) came as the court granted review in two new appeals that will both be closely watched this term.
In Association for Education Fairness v. Montgomery County Board of Education, the court that struck down race conscious university admissions in 2023 agreed to consider a challenge to the Maryland district’s magnet middle schools.
Challengers argue that the district’s lottery system is too hard to access for Asian American students who are packed in “high-performing, low-poverty elementary schools.” Unsuccessfully opposing review, the district stressed that the ultimate admissions decisions are random, adding that it’s “difficult to even conceptualize” how a lottery-based system could be intentionally racially discriminatory.
The legal question that the court will consider in the Maryland case involves what plaintiffs must prove to show that a facially neutral admissions policy is racially discriminatory. The answer carries nationwide implications.
The other new case taken up by the court on Monday asks whether the government can ban people from making liquor at home.
That’s been the case for more than a century, but a federal appeals court struck down the restriction, which led the Justice Department to ask the high court to step in. Notably, the opposing parties — people who want to distill at home and the Hobby Distillers Association — agreed that the justices should review the issue so that the court can provide a nationwide resolution on the matter, which has divided lower courts.
The legal question in that case, DOJ v. McNutt, is whether the federal prohibition on producing distilled spirits in certain locations, including homes, exceeds congressional power.
The court will hear arguments in both appeals later in the term, with rulings expected by July.
The post Sotomayor and Gorsuch join forces again to warn against rights abuses appeared first on MS NOW.
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.
On Sunday, newspapers Estadao and Folha revealed for the first time that the Brazilian Federal Police had sent a new investigation to the Supreme Federal Court (STF) to examine suspicions of money laundering involving presidential candidate Flavio Bolsonaro and lawyer Willer Tomaz.
RELATED:
Lula da Silva Beats Flavio Bolsonaro in Debate Ahead of Runoff
The investigation seeks to clarify the relationship between them and possible irregularities in financial transactions detected during another probe related to the movement of capital through betting activities.
The journalistic revelation came hours before a televised presidential debate in which Workers’ Party leader Lula da Silva challenged the far-right senator to authorize Brazilian authorities to examine his bank accounts and phone so the Brazilian people could learn the origins of his personal wealth and his family’s fortune. Flavio Bolsonaro refused to do so.
On Oct. 8, the case file for the new investigation arrived at the Supreme Court and was assigned by lottery to Justice Alexandre de Moraes. Previously, he oversaw the case that ended with a 27-year prison sentence for coup plotting against former President Jair Bolsonaro, Flavio’s father.
Brazil’s election offers a simple choice:
— BRASILWIRE (@BRASILWIRE) September 21, 2026
Governance from Brasilia or from Washington.https://t.co/TORegJQvQK
De Moraes was also the justice responsible for the proceedings in which Eduardo Bolsonaro, the far-right presidential candidate’s brother, was sentenced to four years in prison for attempting to coerce judges and orchestrate U.S. sanctions against Brazil to obstruct the case against his father.
According to investigators, an analysis of data extracted from digital files linked to lawyer Willer Tomaz revealed records indicating a close relationship between him and Flavio. Items found in the material examined by the Federal Police included references to meetings, parties and gatherings, as well as the lawmaker’s personal documents.
The investigation also indicates that a bank account linked to Willer Tomaz recorded transactions totaling about 130 million reais between March and May 2025. Investigators seek to establish the origin and destination of these funds, as well as verify possible connections to companies and financial operations related to the betting sector.
The case also includes information about payments for Flavio’s trips to Europe and an account linked to Alcazar Holding, in which the senator was identified as the “master user.” Both Flavio and Willer deny any wrongdoing and say their relationship is one of “friendship.”
teleSUR/ JF
Sources: Estadao – Folha – La Jornada
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:
- 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?
- 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?
- 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?
- 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.
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.
According to The Washington Post, "The chairman of the Republican-led House Oversight Committee is investigating two D.C.-based activist groups over hosting what he called 'jury nullification training sessions,' claiming that their instructions given to potential jurors were an illegal attempt to subvert federal prosecutors."
The committee chair in question, Rep. James Comer (R–Ky.), has set his sights on the groups known as Free DC and Harriet's Wildest Dreams because they, in Comer's words, believe "that potential jurors should not make decisions impartially based on applying the law as instructed to the facts presented before them in the case, but based on their subjective, personal beliefs and activist agendas."
I hate to break it to Comer, but many prominent members of America's Founding generation would have agreed with those D.C. activists.
The debate over jury nullification asks whether there is a proper place in our legal system for a jury to acquit, not because of any lack of evidence of a defendant's guilt, but because the jury believes the underlying law that was supposedly broken, or the prosecutor's particular enforcement of that law, to be unconstitutional.
In 1791, the influential Founding Father James Wilson, who was a signer of both the Declaration of Independence and the U.S. Constitution, delivered a widely discussed lecture on law at the College of Philadelphia. "Whoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act of the legislature," Wilson said. "When a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge." Needless to say, jurors are among those "called to act" in this very manner. Jurors therefore have their own "right to judge" the constitutionality of the law (and prosecution) before them.
Thomas Jefferson made a similar point in a 1789 letter to Thomas Paine. "The trial by jury," Jefferson wrote, is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." How else may a jury hold the government accountable to the principles of the Constitution than by judging for itself the constitutionality of the government's actions, including the actions of the police and prosecution?
According to Comer, the job of a juror is mechanically "applying the law as instructed to the facts presented before them in the case."
But that's not what Founding Fathers such as Wilson and Jefferson thought. They argued that the job of the juror was to apply the text of the Constitution to the actions of the government and to acquit the defendant if either the law or its enforcement came up short. As Alexis de Tocqueville put it in his great book, Democracy in America, the jury "places the real direction of society in the hands of the governed, or a portion of the governed, and not in that of the government."
The U.S. Supreme Court heard oral arguments this week in two cases that are worth keeping track of.
The post Jury Nullification Is Not a Crime appeared first on Reason Magazine.
Thanks to a 2005 DUI conviction in Pennsylvania, Edward Williams permanently lost the constitutional right to keep and bear arms. But he did not realize that until a decade later, and his confusion on that point is understandable.
The federal law that stripped Williams of his Second Amendment rights is commonly described as applying to "felons," and Williams' offense was a misdemeanor. But although his sentence did not include any time behind bars, his crime theoretically could have sent him to prison for up to five years. That was enough to trigger 18 USC 922(g)(1), which covers anyone convicted of "a crime punishable by imprisonment for a term exceeding one year."
When a lawyer alerted Williams to that wrinkle, which made his continued ownership of firearms a federal felony, he got rid of his guns. But he did not think that requirement was fair, reasonable, or constitutional, and this week a federal appeals court agreed. The U.S. Court of Appeals for the 3rd Circuit recognized a historical tradition of disarming "physically dangerous individuals" whose possession of firearms would pose a threat to public safety. But it said Williams plainly does not fit into that category.
"The federal government spent nearly a decade trying to permanently disarm a peaceable man over a nonviolent misdemeanor—and it lost bigly," says Brandon Combs, president of the Firearms Policy Coalition, which supported Williams' lawsuit. "The government does not get to turn a nonviolent conviction into a lifetime ban on exercising a constitutionally protected right."
The 3rd Circuit's en banc decision in Williams v. Attorney General affirms a 2023 ruling by a federal judge who likewise concluded that disarming Williams was unconstitutional. It elaborates on the logic of Range v. Attorney General, a 2023 decision that restored the gun rights of a Pennsylvania man who had been convicted of food stamp fraud. In both cases, the 3rd Circuit held that applying Section 922(g)(1) to the plaintiffs was not "consistent with this Nation's historical tradition of firearm regulation"—the Second Amendment test established by the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen.
Writing for the majority in Williams' case, 3rd Circuit Judge Paul Matey acknowledges that the Supreme Court has described "longstanding prohibitions on the possession of firearms by felons" as "presumptively lawful." But "those longstanding customs restricted the violently dangerous (within which some felons would be included), not felons writ large," he says. "Felons were restricted because they posed a physical danger, rather than for their offense of conviction."
Matey argues that "focusing on physical dangerousness corrects the erroneous argument" that "only law-abiding and responsible citizens can exercise the rights protected by the Second Amendment"—a claim that the Supreme Court rejected in the 2024 case United States v. Rahimi. "We find no history that supports disarming irresponsible people, where 'responsible' is defined by the whim of the sovereign or the will of the majority," he says, alluding to the danger of allowing legislators to whittle away at the Second Amendment by criminalizing an ever-widening range of conduct.
Matey emphasizes "the novelty of forever restricting all felons from possessing firearms for lawful purposes." The original restriction, which Congress approved in 1938 as part of the Federal Firearms Act, applied only to violent crimes such as murder, manslaughter, rape, kidnapping, robbery, and assault with a deadly weapon. In 1961, Congress expanded the ban to cover nonviolent crimes punishable by more than a year in prison.
Williams' 2005 DUI conviction qualified for two reasons. He had a prior DUI conviction, stemming from a 2000 arrest in State College. And when he was arrested again in Philadelphia four years later, his blood alcohol concentration was a whopping 0.223 percent. That made his second offense a first-degree misdemeanor, which carries a maximum prison sentence of five years.
Since then, Williams has stayed out of trouble. "He has done nothing violent, let alone dangerous, for over twenty years, and has held steady employment at the same job for over three decades," Matey notes. Williams drinks only occasionally, and a psychological evaluation found he "has a normal personality, without psychopathology and without addiction or violent tendencies."
The Justice Department nevertheless argued that Williams' continuing disarmament is consistent with the Bruen test, which requires historical analogs that are "relevantly similar" in motivation and scope. In making that case, the government relied mainly on early laws aimed at "habitual drunkards"—the same analogy that the Supreme Court unanimously rejected last June in United States v. Hemani, which involved the federal ban on gun possession by "unlawful" drug users.
Although the Justice Department "acknowledges it may proscribe Williams's possession of firearms only if he 'presently poses a physical danger if armed,'" Matey says, it "offers no evidence to establish this as the aim of the habitual drunkard laws." Those laws, the Supreme Court noted in Hemani, "did not seek to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation."
Nor did the habitual drunkard laws permanently disarm people, as Section 922(g)(1) does. "Most statutes capped the commitment of habitual drunkards to the state inebriate asylum, prison, or hard labor to a few months or years," Matey notes. "Others provided for an indefinite period of incarceration, but had no indication that upon release individuals continued to forfeit their arms. Rather, once someone was 'safe' to 'go at large,' they were restored to the status of a full rights-bearing citizen."
Contrary to the considerations that the Supreme Court deemed relevant in Hemani, Matey says, the Justice Department "fails to show that Williams threatens to 'misuse[] a gun while intoxicated,' or that he 'poses a danger to himself or others as a result' of
alcohol abuse. In fact, much like those nineteenth-century drunkards released from custody and restored their rights, the record shows that Williams poses no present physical danger from the use of a firearm, or anything else."
The 3rd Circuit is one of three federal appeals courts that have allowed people with nonviolent felony records to argue that Section 922(g)(1) is unconstitutional as applied to them. But such challenges have been blocked in six circuits, notwithstanding compelling historical evidence that the law reaches much farther than the Second Amendment allows. So far, the Supreme Court has declined to accept any of the many petitions asking it to resolve that circuit split.
The post The 3rd Circuit Upholds the Gun Rights of a Man Who Committed a Nonviolent Misdemeanor 2 Decades Ago appeared first on Reason Magazine.
When a president starts with a predetermined policy and then goes looking for a statutory pretext to justify it, he is building on shaky ground. President Donald Trump illustrated that point once again in July, when he announced a third round of broad tariffs after his first two attempts ran into legal trouble.
Shortly after taking office in 2025, Trump claimed to have discovered a previously unnoticed delegation of extensive tariff authority in the International Emergency Economic Powers Act (IEEPA), a 1977 law that does not mention import taxes and had never been used to impose them. That claim was rejected by every court that considered it.
Last February, the Supreme Court ruled that IEEPA does not authorize tariffs at all. But Trump had a backup plan: Hours after that decision, he announced another sweeping set of tariffs, this time relying on Section 122 of the Trade Act of 1974.
That provision allows tariffs in response to "fundamental international payments problems" caused by "serious United States balance-of-payments deficits." In May, the U.S. Court of International Trade (CIT) ruled that the new tariffs were illegal because Trump had failed to "identify balance-of-payments deficits within the meaning of Section 122."
Although that decision was stayed pending appeal, Trump's Section 122 tariffs, which were subject to a 150-day statutory limit, expired on July 24. Trump then switched to Plan C, invoking Section 301 of the Trade Act, which authorizes tariffs in response to a foreign "act, policy, or practice" that is "unreasonable or discriminatory" and "burdens or restricts" U.S. commerce.
Trump's Section 301 tariffs supposedly targeted countries that had failed to "impose and effectively enforce a prohibition on the importation of goods produced with forced labor." The alleged offenders included 86 economies that accounted for nearly all U.S. imports.
In separate complaints, the Liberty Justice Center (LJC) and the law firm Akin Gump, which had played leading roles in challenging Trump's prior tariffs, immediately asked the CIT to block the new import taxes. By and large, they noted, the government had failed to explain how the targeted countries had fallen short, how their alleged failures burdened U.S. commerce, or why the new tariffs could be expected to ameliorate the problem they were supposed to address.
The LJC argued that the forced-labor issue was "simply a pretext" for reinstating Trump's "invalidated global tariff regime." It added that Trump's reading of Section 301, like his interpretation of IEEPA, would violate the "major questions" doctrine, which requires clear congressional authorization for policies of "vast economic and political significance."
This was Trump's "third attempt" to "impose essentially the same set of sweeping global tariffs," Akin Gump's lawyers wrote. "The third time's not the charm."
The post Trump Keeps Coming Up With Legally Dubious Tariff Justifications appeared first on Reason Magazine.
Imagine getting a bill from your local government for $900,000 because they see a greenhouse on your property and just assume you're growing marijuana without a permit.
Imagine government demanding $400,000 because you didn't know to fill out a single-page form.
Or you get slapped with a $100,000 fine for parking your car on your own property.
It sounds absurd, but as my newest video shows, that's really happening.
How can that be? Doesn't America's Constitution say government may not impose "excessive fines"?
It happens because some bureaucrats, savoring their power, act like tyrants.
At least now there is hope for a remedy. One of these excessive fine cases has reached the Supreme Court.
Ken Jouppi worked as a pilot in Alaska for 30 years, until one day, state troopers stopped his plane before takeoff.
"I didn't think we had anything to hide," he says. "They searched the airplane, opened up this lady's boxes of groceries and found beer."
Transporting beer. That was his crime.
"Isn't beer legal in America?" I ask Jouppi's lawyer, Mike Greenberg.
"In most places," he replies. But some towns in Alaska ban beer.
Jouppi was convicted of bootlegging.
Every pilot must know which town has what rule, and search everybody?
"They think pilots should search people's luggage," says Jouppi. "It was such a terrible thing to do to another individual, invade their privacy, and assault their dignity….I just didn't feel right about doing that."
Alaskan officials say the beer was visible, so Jouppi should have known about it. They jailed him for three days and seized his plane.
"That airplane was my primary source of income," says Jouppi. "Without it, I didn't have a business anymore."
I assumed such excessive punishment would be dismissed quickly by a court. But it wasn't.
"Jouppi has been fighting to keep his plane for 14 years," says Greenberg. "The plane is still sitting on a tarmac….It's a ludicrous situation where the state has every interest in going after valuable assets rather than actually fighting supposed harms of alcohol."
Greenberg's law firm, the Institute for Justice, took Jouppi's case, and now the U.S. Supreme Court will hear it.
I hope he wins. It's just wrong when governments destroy lives for small mistakes.
They're also doing that to Tuncay Saydam, a retired professor.
The IRS demands he pay $400,000 because he didn't know to fill out a one-page form about an old bank account in his native Turkey.
"The fines," says Saydam, "will destroy my life….We have never been rich."
His unpaid tax is less than $30,000. But the IRS demands he pay them more than $400,000. A California court upheld that penalty. Northern Californian Chief Magistrate Judge Donna Ryu wrote, "Government suffered a significant tax loss."
Finally, bureaucrats in Humboldt County, California, took aerial photos of people's property to search for unlicensed marijuana farms.
When they saw greenhouses, they fined property owners.
Blu Graham was fined $900,000, "$30,000 a day, when all I've ever done is grow vegetables in my greenhouses."
"There actually was no marijuana on the property!" says Greenberg. "They were just guessing that if you built a greenhouse, this must be connected to marijuana."
Finally, a lawsuit got the county to promise to end its ruinous fine system.
But it took four years.
Why do governments fight to keep outrageous fines that punish largely innocent people?
"Unlike other forms of punishment," says Greenberg, "fines make the government money. The prosecutor's office, state troopers, they get to keep the proceeds. It's an abusive system because they have every incentive to continue to prosecute."
I invited the heavy-fining judges and government lawyers to appear in my video to explain these fines. None would agree to talk about it.
Bureaucrats always want more money. It's a reason the Constitution prohibits excessive fines.
I trust that the Supreme Court will put a stop to these abuses.
COPYRIGHT 2026 BY JFS PRODUCTIONS INC.
The post How Local Governments Turn Minor Violations Into Financial Ruin appeared first on Reason Magazine.
Back in 1983, the Supreme Court declared that "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." That increasingly doubtful proposition underpins a nationwide network of more than 144,000 AI-assisted cameras that track the travels of innocent motorists across the country billions of times each week.
So far, state and federal courts have almost uniformly rejected constitutional challenges to automated license plate readers (ALPRs) installed by companies such as Flock Safety. But in a decision that could signal a shift in the legal treatment of Flock cameras, a federal judge in Oklahoma recently recognized that they enable "a type of indiscriminate mass surveillance."
ALPRs are much more sophisticated than the technology that the Supreme Court considered in 1983, when it approved the warrantless use of a radio transmitter that helped police tail a suspected methamphetamine manufacturer's car. Three decades later, by contrast, the Court said police should have obtained a search warrant before attaching a GPS tracker to another drug suspect's car.
The majority opinion in the latter case emphasized the physical intrusion necessary to install the tracker. But five justices embraced an alternative rationale, saying GPS tracking impinges on reasonable expectations of privacy by revealing potentially sensitive information about the target's historical whereabouts.
That theory came to the fore in a 2018 case involving mobile-phone location data collected by cell sites, which the majority said implicated the Fourth Amendment because "individuals have a reasonable expectation of privacy in the whole of their physical movements." The Supreme Court reiterated that principle this year, extending it to data collected by Google's Location History feature.
"An individual has a reasonable expectation of privacy in records about his cell phone's location," Justice Elena Kagan said in the majority opinion, "and police intrude on that constitutionally protected interest when they demand the information." By similar logic, U.S. District Judge Sara E. Hill concluded this month in the Oklahoma case, people have a reasonable expectation of privacy in ALPR records, and police therefore generally need a warrant to search them.
Those databases include "information about all vehicles that pass by any network-connected camera at all times," which police can peruse "on demand," Hill noted. "Freedom from persistent, dragnet-style surveillance while in public is not a foreign concept in our society, and it is a reasonable expectation that society already accepts," as reflected in the Supreme Court's cellphone decisions.
Like cars, cellphones "move in public places where people can see you in plain view," Hill wrote. "But it becomes constitutionally problematic when law enforcement can indiscriminately and passively catalog your whereabouts over an extended period of time and then use that information for any purpose whenever convenient."
At this point, Hill's decision is an outlier. "It appears that nearly every court examining the issue to date has determined that ALPR technology use is not a search under the Fourth Amendment because people have no reasonable expectation of privacy in their movements on public streets," she noted.
Last month, for instance, a federal judge in California held that ALPR database searches are "clearly distinguishable from and less extensive than the 'near perfect surveillance' achievable" with cell-site or Location History data. And the day after Hill's ruling, a state judge in California rejected a challenge to San Jose's Flock camera network, saying "there is no reasonable expectation of privacy in license plate data collected from cameras directed solely at public streets."
A federal lawsuit involving the same city's ALPR system, which the Institute for Justice filed last April, is still pending. So are challenges to Flock cameras in cities such as Wichita, Kansas, and Norfolk, Virginia.
Even when they reject such lawsuits, courts commonly acknowledge that the legal picture could change as the number and capabilities of ALPRs multiply. If so, it seems likely that Hill will eventually be joined by other judges who recognize the perils of "indiscriminate mass surveillance."
© Copyright 2026 by Creators Syndicate Inc.
The post Other Courts Should Heed a Federal Judge's Warning About Flock-Enabled Mass Surveillance appeared first on Reason Magazine.
As one advocate warned India’s Supreme Court on Monday that “this country will burn” unless action is taken to stop what thousands of protesters have denounced as an illegal purge of voters by the head of the Election Commission of India, the court demanded accountability from Prime Minister Narendra Modi’s government. Chief Justice Surya Kant […]
The post Indian Supreme Court demands government answers on voter purge appeared first on Asia Times.
No one knows how the US Supreme Court will rule in Suncor v. Boulder, the case that will kick off the court’s fall term next week and will likely decide whether the city and county of Boulder, Colorado, will be able to put oil giants ExxonMobil and Suncor Energy on trial for deceiving the public for decades about the climate harms of fossil […]
The post Big Oil fears the evidence of its deliberate climate lies appeared first on Asia Times.
This story originally appeared in Common Dreams on Sep. 14, 2026. It is shared here under a Creative Commons (CC BY-NC-ND 3.0) license.
The US Supreme Court on Monday night rejected a bid by the Trump administration to keep onerous US Postal Service rules for mail-in ballots in place, which voting-rights defenders said risked depriving millions of people of the franchise in this year’s midterm elections.
After a back-and-forth legal battle over the USPS rules that dragged on for months, the nation’s highest court issued the 7-2 ruling without elaborating on its legal reasoning, though right-wing Justices Samuel Alito and Clarence Thomas issued dissents in favor of President Donald Trump’s side.
The ruling in USPS v. California was in response to a legal challenge brought by the League of Women’s Voters, the attorneys general of numerous states, and others who argued that newly-announced rules by the Postal Service regarding mail-in ballots, changes prompted by an executive order issued by Trump, would prevent people from having their ballots counted and cause chaos for those trying to administer this year’s elections.
A victory for democracy, a defeat for election deniers. https://t.co/MKjfKmgyTv
— David Crowley (@DavidCCrowley) September 15, 2026
In response to the ruling, the plaintiffs’ legal team said the decision was “a critical step to ensuring free and fair elections this November by maintaining access to mail voting for millions of eligible voters across the United States and lifting the dire threat that the Postal Service would disenfranchise them.”
“Mail voting is safe, secure, and reliable—and the Trump administration has presented no evidence to the contrary, as the courts have repeatedly recognized,” the statement continued. “We will remain vigilant in countering threats to free and fair elections and ensuring that every eligible voter is able to cast a ballot and have it count.”
“Today’s decision is a victory for our democracy and a powerful affirmation of the rule of law,” said California Attorney General Rob Bonta in a statement. “The stakes in this litigation could not have been higher.”
Virginia Kase Solomón, president and CEO of Common Cause, was among the other pro-democracy advocates who welcomed the decision.
“Today’s decision is a major win for the millions of everyday Americans who count on vote-by-mail—our seniors, service members, busy parents, rural voters, and voters with disabilities,” said Solomón in a statement. “Vote-by-mail is safe, proven, and vital; even the president uses it. This executive order was a blatant power grab designed to silence voters and undermine our elections, but it failed because the people and the law were on our side. Our Constitution is clear: states run our elections, and voters choose their leaders—not the other way around. No administration can strip the people of their power.”
Michael McNulty, senior policy director for Issue One, a nonpartisan group that works to defend free and fair elections, also welcomed the ruling, but said vigilance would still be necessary going forward.
“The fight to preserve states’ authority to administer elections is far from over,” warned McNulty.
“President Trump continuously and falsely claims fraud in mail-in voting without evidence,” he added. “Despite voting multiple times with this method, he remains obsessed with centralizing control over elections to tilt the playing field. However, for now, one piece of that centralization effort is blocked, and it ensures that mail-in voting for the midterms won’t be disrupted.”
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