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Supreme Court Takes Up Accusations of Race-Based Middle School Admissions

Supreme Court building | Sean Pavone/Dreamstime/Midjourney/Fatima Ruiz

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

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

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

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

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

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

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

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

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

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

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Hind Rajab’s Alleged Killer Is in the United States. HRF Demands His Arrest.

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

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EU Parliament Backs International Criminal Court in The Face Of Trump’s Sanctions

European People’s Party, Social Democrats, Liberals, Greens, and the Left agreed on the need for a firm response.

On Tuesday, all political groups in the European Parliament, except the far right, expressed support for the International Criminal Court (ICC) in the face of recent sanctions and pressure from U.S. President Donald Trump.

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Trump Revives Election Fraud Rhetoric Ahead of Key Midterm Elections

During a debate in the European Parliament, Kaja Kallas, the European Union (EU) High Representative for Foreign Affairs, warned that the measures adopted by the United States jeopardize the overall functioning of the international court.

Kallas noted that the six-month period during which certain operations will continue provides an opportunity to attempt a diplomatic solution and assess the legal implications of the sanctions.

The EU’s top diplomat also stated that EU member states must work together to ensure that the ICC can continue to function both at its headquarters and in the various locations where it conducts investigations.

Mark Carney just got a standing ovation from European Parliament after he takes a stand against Trump.

The world doesn’t respect us anymore. The world is partnering against us.

America first means America alone. pic.twitter.com/6NgB8H5UtK

— Brian Krassenstein (@krassenstein) September 17, 2026

The EU official acknowledged that the European Union can do more to protect the court and recalled that the leaders of the 27 member states recently called for new initiatives aimed at mitigating the impact of the U.S. measures.

One of the main demands of the MEPs was the activation of the so-called blocking statute, a mechanism that would prevent European companies and operators from having to comply with sanctions imposed by third countries when these sanctions contravene international law.

Representatives from the European People’s Party, Social Democrats, Liberals, Greens, and the Left agreed on the need for a firm response from Brussels to protect the ICC and preserve its independence from external pressures.

Venezuelan Acting President Delcy Rodriguez visited the International Italian-Latin American Organization (IILA) headquarters in Rome to reaffirm Venezuela’s commitment to multilateral diplomacy and to cooperation between Europe and Latin America. She met with IILA Secretary… pic.twitter.com/PqQIc69RFZ

— teleSUR English (@telesurenglish) October 13, 2026

teleSUR: JP

Source: EFE

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U.S. Arrest Warrant Against Raul Castro is Politically Motivated: Sheinbaum

She maintained that the measure seeks electoral support among certain sectors.

On Tuesday, Mexican President Claudia Sheinbaum said she believes the arrest warrant issued by a Florida court against former Cuban President Raul Castro is primarily politically motivated and linked to the U.S. elections.

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Cuban President Rejects U.S. Arrest Warrant Against Gen. Raul Castro

The Mexican president’s statements came after the Florida Attorney General’s Office announced it had obtained a state arrest warrant for Raul Castro, 95, in a case related to events that occurred in 1996.

Sheinbaum maintained that the measure seeks support among certain sectors of the U.S. electorate. During her morning press conference, she stated that the judicial decision responds to political interests related to the November elections in the United States.

The indictment accuses the former Cuban leader of conspiracy to commit first-degree murder in connection with the downing of two planes belonging to the Brothers to the Rescue organization.

“Es político”, afirma Claudia Sheinbaum al dar su opinión sobre la orden de detención contra el expresidente cubano, Raúl Castro. La presidenta mexicana considera que el caso también tiene relación con las elecciones de noviembre en Estados Unidos. pic.twitter.com/17oxb2t0bQ

— La Periodista (@LaPeriodista_MX) October 20, 2026

The text reads, “‘It’s political,’ affirms Claudia Sheinbaum when giving her opinion on the arrest warrant against the former Cuban president, Raul Castro. The Mexican president considers that the case also has a connection to the November elections in the United States.”

In that incident, which occurred on February 24, 1996, Cuban military fighter jets shot down two civilian aircraft that had departed from Florida, in which four people died. The reopened case coincides with stringent measures taken by Washington against the island.

Florida Attorney General James Uthmeier maintains that Castro, who was then Minister of the Revolutionary Armed Forces, was part of the chain of command that authorized the military operation.

The arrest warrant comes in addition to the charges filed in May by U.S. federal authorities against the former Cuban leader for his alleged involvement in the same events.

#WorldCup2026 | @CharlieMontero_ continues his journey through Mexico and discovers the incredible friendship and positive energy shared between Japanese fans and Mexican supporters.

Why is there such a special bond between them?

Find out here on teleSUR English. pic.twitter.com/Tn5dmE83CT

— teleSUR English (@telesurenglish) June 15, 2026

teleSUR: JP

Source: EFE

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Las Vegas tourist found guilty of harming flamingo at iconic hotel in drunken encounter caught on video

A Canadian tourist who took a flamingo from its habitat at a popular Las Vegas Strip hotel and carried it through the property was found guilty Monday of animal cruelty after prosecutors argued the bird was injured during the bizarre encounter.

Mitchell Fairbarn, of Ontario, Canada, was convicted of felony and misdemeanor animal cruelty charges after jurors deliberated for about five hours.

The case stemmed from a March 3 incident at the Flamingo Las Vegas Hotel and Casino, where Fairbarn removed a 27-year-old Chilean flamingo named Peachy from its enclosure and brought the bird to his hotel room.

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Surveillance footage presented during the trial showed Fairbarn holding the flamingo inside an elevator and carrying it through a hotel hallway as the bird squawked.

Prosecutors argued Fairbarn deliberately caused the bird pain, pointing to footage of him pulling Peachy by its feet and feathers found on the hotel floor.

CALIFORNIA TEEN FACES PRISON AFTER VIRAL VIDEO SHOWS HIM SQUARING UP, REPEATEDLY KICKING SEA LION IN THE FACE

Las Vegas police were called after hotel security reported the flamingo missing from its enclosure.

When authorities found Peachy, the flamingo was missing seven or eight feathers, had blood on its feathers and suffered injuries to its wings.

VIRAL BUSINESSMAN WHO ALLEGEDLY BRAGGED ABOUT WEALTH CHARGED IN FEDERAL ENDANGERED SPECIES HARASSMENT CASE

Fairbarn's defense attorney, Josh Tomsheck, acknowledged his client made poor decisions while intoxicated but argued he never intended to injure the animal.

"He should not have done that, should not have gone into the habitat, shouldn't have touched a bird, shouldn't have taken Peachy inside," Tomsheck told jurors. "The truth is, Mitch was drunk. Mitch was stupid. He made bad decisions."

ONE OF WORLD’S OLDEST ORCA WHALES FOUND WITH POSSIBLE SHOTGUN WOUNDS AS OFFICIALS LAUNCH INVESTIGATION

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Peachy is doing well physically but remains more anxious during veterinary examinations, according to Tiffany Moore, medical director of Lone Mountain Animal Hospital, who treated the bird.

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Fairbarn remains under house arrest as he awaits sentencing on Dec. 1.

SUSPECT IN VIRAL MONK SEAL HARASSMENT VIDEO SAYS HE WAS DOXXED AS FEDERAL COURT FIGHT BEGINS

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He faces up to four years in prison on the felony conviction and an additional six months for the misdemeanor offense.

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During the trial, prosecutors acknowledged Fairbarn had received death threats following the incident and was unable to return to Canada when his father died while the criminal case was pending.

ATTORNEY FOR MAN ACCUSED OF THROWING ROCK AT ENDANGERED HAWAIIAN MONK SEAL SAYS CLIENT WAS PROTECTING TURTLES

LISTEN TO THE NEW 'CRIME & JUSTICE WITH DONNA ROTUNNO' PODCAST

Clark County prosecutor Haley Willming argued those consequences resulted from his own actions.

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"None of that would have happened had he not done what he did, had he not made the choices he made," Willming said.

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The Flamingo Las Vegas, one of the Strip's oldest resorts, is known for its wildlife habitat, which houses flamingos, turtles, koi fish and other animals.

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Trump Administration Urges SCOTUS To Uphold Federal Ban on Distilling Liquor at Home

homedistilling | Ioannis Syrigos/Dreamstime/Midjourney

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

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

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

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

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

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

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

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

Stay tuned.

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

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Brazil Protesters Accuse Meta of Election Interference

Brazilian protesters outside Meta headquarters in São Paulo denounce alleged Instagram restrictions on Lula’s campaign ahead of the presidential runoff.

Demonstrators demand algorithmic transparency as Brazil’s electoral court gives Meta 24 hours to prove equal treatment of presidential campaigns.


Hundreds of Brazilians protested outside Meta’s São Paulo offices on Monday, accusing the technology giant of restricting the reach of President Luiz Inácio Lula da Silva’s campaign while boosting far-right candidate Flávio Bolsonaro, six days before the presidential runoff. The demonstration coincided with a court order giving Meta 24 hours to prove it was treating both campaigns equally.

RELATED: Brazilian Court Gives Meta 24 Hours to Prove Equal Treatment of Presidential Campaigns

The protest on Faria Lima Avenue called for an end to what demonstrators described as the suppression of progressive political content. Organizers also demanded transparency in content moderation algorithms, protections for activists and journalists, and compensation for damage to public debate.

The Superior Electoral Court (TSE) imposed the 24-hour deadline amid mounting scrutiny of Meta’s handling of the campaigns. The dispute intensified after internal messages emerged in which company employees acknowledged that Lula’s account had faced restrictions compared with Bolsonaro’s. The messages indicated that Lula’s Instagram posts could not be promoted for nearly 24 hours between Oct. 9 and 10.

“META NO SE META!”

Movimientos brasileños ocupan la sede de la plataforma de redes sociales. pic.twitter.com/wetfUpEryA

— Nacho Lemus (@LemusteleSUR) October 19, 2026

Text Reads: “META DON’T GET INVOLVED!” Brazilian movements occupy the headquarters of the social media platform.

TSE Justice Marco Aurélio Bellizze warned that appeals would not suspend the court’s orders and doubled the daily fine for noncompliance from 500,000 reais to 1 million reais, or about $180,000.

The court also ordered Meta to submit individual reports in Portuguese, explain its recommendation algorithms, provide details on electoral advertising oversight, and identify potential networks of fake accounts and AI-generated images.

“Unilaterally replacing deadlines set by the court amounts to noncompliance, particularly in a process whose effectiveness depends on time,” Bellizze said.

Meta maintains that its content moderation policies apply equally to all political actors. Bolsonaro has also sought to join the proceedings, arguing that his own content has been harmed.

Concerns over digital sovereignty

Protesters argued that the dispute exposed the broader influence of social media platforms over Brazil’s electoral process. They noted that 70% of the Brazilian population uses Instagram to obtain information and accused Meta, owned by Mark Zuckerberg, of wielding opaque power over political visibility.

“We cannot say we have fair elections when a company uses its economic, technical and technological power to tilt public debate toward one side, which is what is happening,” said Dani Silva, executive director of Ctrl+Z, one of the organizations behind the demonstration.

The rally was organized by the Não se Meta coalition, which included the Landless Workers’ Movement (MST), Levantamento da Juventude Popular, Brasil Popular, Article 19, Ctrl+Z, Código No Binário, Diracom, the National Forum for the Democratization of Communication and Sleeping Giants Brazil.

Under the slogan “Meta, stay out of our election,” demonstrators displayed signs featuring Zuckerberg alongside U.S. President Donald Trump and chanted for digital sovereignty and Meta’s exclusion from the electoral process.

Activist Veronyka Gimenes, known as Trava Hacker, described the company’s actions as part of what she called “digital colonialism,” alleging that technology companies seek to influence domestic politics across the Global South.

“Digital sovereignty is no joke; it is something that must be taken very seriously,” she said.

Activist Tiana Cauton urged people to take to the streets to demand the democratization of communications. She also expressed hope that a new presidential term would advance “autonomy through our own open and clean social networks.”

Demonstrators said Meta’s influence over political communication had undermined Brazil’s national sovereignty since the 2018 elections, renewing calls for greater accountability for social media platforms during the electoral process.

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Fired OpenAI engineer accused of bugging office won't be released from jail

The Phillip Burton Federal Building and US courthouse in San Francisco.
San Francisco's federal courthouse held the detention hearing for Abdulrahman Alfozan, the arrested and fired OpenAI engineer, on Monday.

Brennan Smart/Bloomberg via Getty Images

  • Abdulrahman Alfozan will stay jailed pre-trial, a San Francisco judge decided Monday.
  • The engineer is accused of bugging a conference room at OpenAI, and he has been fired.
  • Alfozan posed a risk of non-appearance, the judge said, after discussing his ties to Saudi Arabia.

A former OpenAI engineer accused of bugging the AI startup's office was denied release by a San Francisco judge on Monday, meaning he'll have to mount his defense from jail.

The Justice Department arrested Abdulrahman Alfozan on October 9 and charged him with using or attempting to use a device to intercept oral communications. He's accused of placing a recording device behind a television in an OpenAI conference room — an FBI affidavit includes photos of the device wrapped in toilet paper, and a man they say is Alfozan peering behind the TV.

On Monday, the engineer wore a yellow surgical mask and a jail-issued orange sweatshirt to the San Francisco courthouse. Magistrate Judge Alex G. Tse prodded Alfozan's legal team about the risk that he might not appear for a future court hearing.

Tse said that Alfozan's wife and son had traveled to Saudi Arabia with no plans to return, and went back and forth with Yasin about a one-way ticket that Alfozan had previously booked to the country. Tse said that Saudi Arabia and the US do not have an extradition agreement, and expressed skepticism that he had sufficient ties to the Bay Area to prevent his departure.

William Pernik, Alfozan's attorney, argued that, rather than being detained, Alfozan should be fitted with an ankle monitor, ordered to stay home, and have limits placed on his use of technology. The lawyer also said Alfozan is willing to put up "essentially all the money his family has" as bond, including a roughly $1 million investment account.

"Everything this man has, he's willing to surrender, and say, 'I'm not going anywhere,'" Pernik said.

Pernik and Nas Yasin, another of Alfozan's attorneys, cited his coming naturalization interview as evidence of his local ties.

"He was weeks away from achieving every immigrant's dream in this country," Pernik said.

Yasin told Tse that she learned Alfozan's wife had obtained a short-term visitor visa to return to the US, to help improve her husband's case for ties to the Bay Area.

Tse also asked Alfozan's legal team a slew of questions about his relationship with Saudi Arabia, including a commitment by the Saudi consulate to pay his bond and support his legal effort.

Nick Parker, an assistant US attorney, appeared for the prosecution. He argued that the threat of forfeiting a $1 million bond wouldn't be enough to convince Alfozan to return if he made it out of the US, because he might be able to earn more money in Saudi Arabia.

"There is a real threat here that once he leaves, the case is over," Tse responded.

The judge scheduled the case's next hearing for early November.

OpenAI called the recording device "sophisticated" when the arrest went public, though it said it hadn't found signs that he'd taken AI model weights, source code, or customer information. OpenAI fired Alfozan.

Alfozan's charge carries a maximum penalty of 5 years. Pernik said in a statement last week that the allegations "appear wholly out of character for him."

Alfozan, 35, has a green card that makes him a lawful permanent resident of the United States. He attended MIT, then worked at Facebook (now Meta) from 2017 to 2023. After a stint at the engineering startup Nash Technologies, Alfozan joined OpenAI in 2025.

FBI agents have already taken Alfozan's Saudi passport.

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Supreme Court Will Hear Case on "Facially Neutral" Discrimination Against Asian Students in Admissions to Public Magnet Schools

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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.

  •  

Over Alito’s objection, justices decline to review Halloween-sign rule for sex offenders

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.

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Mahmoud Khalil takes legal fight to Supreme Court

Mahmoud Khalil, the Columbia University demonstrator who became a flash point in the Trump administration’s crackdown on pro-Palestinian foreign college students, asked the Supreme Court on Monday to take up his case, his lawyers said.  Khalil was jailed for months last year, and he has long asserted his detention was retaliation for his protected speech.  The…

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Sotomayor and Gorsuch join forces again to warn against rights abuses

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.

School admissions, home distilling

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.

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Supreme Court Will Hear Necessary and Proper Clause Case on Federal Law Banning Home Distilleries

A whiskey distilling set up in front of the preamble to the United States Constitution
Illustration: Lex Villena; Ioannis Syrigos

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.

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Supreme court rejects effort to revive plea deal for Khalid Sheikh Mohammed in 9/11 attacks

Agreement would have spared Mohammed risk of execution in exchange for guilty plea and life in prison

The supreme court on Monday rejected an effort to revive a plea deal for Khalid Sheikh Mohammed, the accused mastermind of the attacks on 11 September 2001.

The agreement would have spared Mohammed the risk of execution in exchange for his guilty plea and a sentence of life in prison without parole.

Continue reading...

© Photograph: Janet Hamlin/POOL APF/AP

© Photograph: Janet Hamlin/POOL APF/AP

© Photograph: Janet Hamlin/POOL APF/AP

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Brazilian Police Investigate Flavio Bolsonaro Over Money Laundering

New probe examines financial transactions, ties to lawyer Tomaz and payments for the senator’s trips to Europe.

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:
Governance from Brasilia or from Washington.https://t.co/TORegJQvQK

— BRASILWIRE (@BRASILWIRE) September 21, 2026

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

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"The AI Data Will Provide an Unrivaled View into the Mind of a Defendant …"

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

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

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

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

And from the defendant's response:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And the Magistrate Judge therefore recommended sanctions against the Defendant:

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

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

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

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

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

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

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

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

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

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

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

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Who is the Guardian of the Constitution?

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.

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Steve Vladeck's "Hard Questions About Court Expansion"

Cartoon criticizing Franklin D. Roosevelt's 1937 court-packing plan. (NA)

 

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

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

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

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

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

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

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

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

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

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