#19 - Next Year's Election at This Year's Court
A Nuke From Texas Dropped at the Steps of SCOTUS
Welcome back to Lex Liberas and this week’s newsletter on all things Constitution, law, and constitutional law. On Sundays I send out these newsletters, and on Fridays I write about the deeper issues and challenges surrounding our constitutional order. To read those wonderful articles, make sure to subscribe here.
Otherwise, please share this post with any constitutionalists in your circles. There are certainly a number of stories worth sharing.
Alright, let’s get into it.
News Desk - This Week’s Top Ten Headlines
Major Texas Redistricting Dispute Arrives at Supreme Court
Over the course of the week, a case challenging the legality of Texas’s attempts at midterm congressional redistricting was decided by a lower court, stayed by the Supreme Court, and scheduled to be briefed by tomorrow at 5:00pm EST. With the recent resignation of Republican Congresswoman Marjorie Taylor Greene, control of Congress may well rest on this and similar cases in California, New York, and Indiana. The most remarkable news in this case is not its review by the Supreme Court however (which was, as is rare for SCOTUS, legally mandatory), but the bombshell of a dissent from one of the three judges hearing the case below. Unlike most cases, this one did not follow the typical path from district court to appeals court to SCOTUS, but was instead legally required to be heard by a trial court composed of two district judges and one circuit judge. The core legal question, as discussed here in the Louisiana v. Callais case, is whether this map was a legal partisan gerrymander or an illegal racial one, and two of the three judges took the latter position and released their ruling on Tuesday. The circuit judge, Judge Jerry E. Smith, released his dissent separately the following day, and spent all 104 pages of it absolutely ripping into the entire case from top to bottom. Not only does he accuse the majority of rushing their decision and leaving him out of it, but he adopts a tone that, search til the die you die, you will not find in any other federal judicial ruling. Judge Smith accuses the majority opinion’s author, Judge Brown, of “the most outrageous [conduct] … by a judge that I have ever encountered in a case in which I have been involved,” and “the most blatant exercise of judicial activism that I have ever witnessed.” Summarizing this all as “the pernicious judicial misbehavior of Judge Jeffrey Vincent Brown,” Judge Smith then spends several pages tying the law firms and amici in the case to Alex and George Soros. “It’s all politics, on both sides of the partisan aisle,” he wrote, saying “George and Alex Soros have their hands all over this.” He proceeded to follow each assertion up with tangible evidence linking the firms and groups to the infamous billionaires. With such a bold and polarizing opinion, the Supreme Court will have a fine line to walk should they wish to rule for Texas, as the immediate accusation will be their partisan bias against George Soros. Moreover, the Department of Justice has gone to great lengths to call the redistricting effort a racial one for PR purposes, directly contradicting Texas’s position. Regardless, it is fairly reasonable to foresee the Court ruling for Texas and upholding these maps, but it is even more reasonable to assume that a federal judicial opinion of this kind may never be written for decades more.
Supreme Court Adds Asylum Immigration Case to Docket
In news that ranks only a few Jalapenos lower on the spiciness scale, the Court agreed to hear a challenge to a Ninth Circuit case that struck down the Trump administration’s “metering” policy, which turned back asylum seekers at border ports of entry before they could formally apply for asylum. The appeals court held that individuals encountering border officials have “arrived in” the United States under federal law, while the administration argues this defies both the legal text and longstanding precedent by applying U.S. law extraterritorially. Immigrant rights groups contend the case is moot since the policy was rescinded years ago, but the government warns it could cause “‘untold interference with the Executive Branch’s ability to manage the southern border.’” Although this case was granted review before the Court stayed the Texas dispute, it’s refreshing to see a non-elections case, even if the core issue remains as politically charged as possible.Court Passes on Mental Health Prisons and High School Prayer
In other news from the Supreme Court, the justices declined to hear two cases: an appeal by the New Orleans sheriff seeking to end a federal court order requiring the city to build a special mental-health jail facility, and a First Amendment challenge by a Christian school that wanted to broadcast a prayer over the loudspeaker at a public high school football game. Justices Alito and Thomas dissented in former case, and Justice Gorsuch would have also granted the case. The Court also requested the federal government’s views in a water-rights dispute between Nebraska and Colorado.Court of Appeals Decides COVID Case After Five Years
The Eleventh Circuit ruled on Thursday that Florida County ordinance from 2020 that closed all beaches under threat of arrest constituted a physical taking under the Fifth Amendment. The court treated it as a per se physical taking, rejecting the county’s argument that the temporary nature of the closure made it only a “use restriction.” Now the case will head back down to the lower courts for a determination of the just compensation owed to private beachfront owners. Despite the pandemic response seemingly far removed from today’s discourse, this marks a major post-COVID takings precedent and could signal positive developments among the courts in applying the Cedar Point decision from 2021.
Yes, this was a real CNN program in the COVID era. Image Credit: CNN. Court Throws Out Trump Lawsuit Against CNN
A few days before ruling in their COVID case, the Eleventh Circuit unanimously dismissed President Trump’s defamation lawsuit against CNN. Holding that CNN’s repeated use of the phrase “the Big Lie” to describe Trump’s claims about the 2020 election was a non-actionable opinion, the Court saw the term as inherently subjective and ambiguous (akin to calling someone a “fascist”). The panel also ruled that the district court properly denied Trump’s post-dismissal motions for reconsideration and leave to amend, and that whether CNN used the phrase five times or 7,700 times was irrelevant once the phrase itself was deemed opinion.Court Rules Against DC Guard Deployment as Chicago Case Continues
After the resolution of the California National Guard case and the predictable progression of the Oregon and Illinois cases, I had quite forgotten about the youngest sibling in the family, the Washington, D.C. case. This week, a district judge ruled that the deployments for general crime-deterrence patrols is unlawful and exceeds presidential authority under the D.C. Code and federal statutes governing the D.C. National Guard. Specifically, the court held that the president may only activate the D.C. Guard at the request of civil authorities and that the Department of War cannot federalize out-of-state Guard members for non-military law-enforcement missions without state authorization. Appeal incoming.Court Allows Use of Force to Counter ICE Protests
Perhaps in a foreshadowing of where the block on the D.C. Guard is headed, the Seventh Circuit vacated a lower court injunction on Thursday that had sharply restricted federal use of force against protesters during ICE operations in the Chicago area. The panel ruled that the lower court’s use of a nationwide injunction was impermissible, unworkable, and violated separation of powers principles by effectively turning a single district judge into a supervisor of executive-branch operations. The court also questioned the plaintiffs’ standing to obtain such sweeping prospective relief and lifted the injunction immediately, while the underlying First and Fourth Amendment challenge will proceed to full briefing and argument.Texas Designates Muslim Associations as Terrorist Organizations
On Wednesday, Governor Abbott issued an executive proclamation designating both the Muslim Brotherhood and the Council on American-Islamic Relations (CAIR) as “foreign terrorist organizations” and “transnational criminal organizations.“ This prohibits both organizations from purchasing or owning land in Texas, imposes enhanced criminal penalties, and can opens the groups up to lawsuits under state anti-gang statutes. The move relies on recent legislation countering the rise of political Islamic influence in Texas, but may raise potential preemption issues, as terrorist designations are traditionally a federal function.Lower Court Pauses Funding Cuts to State Universities
In North Carolina, a federal court issued a sweeping preliminary injunction blocking the Trump administration from enforcing its “Task Force Policy” against the University of North Carolina system. Relying on the Administrative Procedure Act and the First Amendment, the Court ruled that the administration was likely to lose its case for withholding research funding to force changes in campus speech policies. The injunction applies system-wide, required only a $100 nominal bond, and took effect immediately with no stay pending appeal. Needless to say, this ruling raises a few questions, some of which I addressed a few months ago.Comey Indictment Faces Severe Questions of Impropriety
This week, the Magistrate Judge in the James Comey case ordered the Justice Department to disclose all grand jury materials to the defense team. The judge cited a “disturbing pattern of profound investigative missteps” by prosecutors, including potential violations of Comey’s Fourth Amendment rights, improper handling of attorney-client privileged materials from a 2019-2020 probe, and lead prosecutor Lindsey Halligan’s alleged “fundamental misstatements of law” to grand jurors that may have tainted the entire indictment. This disclosure is rarely seen in criminal proceedings, and almost certainly would not have come down absent the political process that reshuffled the DOJ attorneys at the last minute. This allows Comey’s team to seek dismissal of the charges, potentially with new materials in their toolbox.
Picks of the Week - Articles Worth Your Time
11 Reasons Why (the Jim Comey indictment could get tossed out)
By Chris Geidner at Law Dork
Probably the first and last time I will link to anything from Law Dork, but this is a useful summary of the Comey case as of today.
Parental Rights
By Amy Howe at SCOTUSBlog
Summarizes the recent activity at the Supreme Court over parental rights in public schools, particularly over gender ideology and sex transitions.
Originalism Can Revive Article V
By McGinnis and Rappaport for Law and Liberty
Takes apart the ridiculous claim that originalism stalled the amendment process and neatly flips the narrative on its head. For more on Article V, see my piece earlier this month.
Quote of the Week
“What’s the difference between God and a federal district judge?
Answer: God doesn’t think he’s a federal judge.”
Judge Jerry Smith in LULAC v. Abbott (the Texas redistricting case)
NOT the News - Fake News on the Law
I am introducing this section to debunk postings of news headlines on the Supreme Court and the law as I encounter them. The past few weeks have delivered a barrage of highly viewed tweets, posts, and headlines that are anywhere from pure lies to deliberately misleading bait. Without further ado, this week’s fake news:
Headline: “BREAKING: Supreme Court just handed Trump the immigration equivalent of a nuclear button.” A number of these posts circulated this weekend, and reached over four million users on X. Continuing on, the post says “in a 5–4 ruling, they confirmed he can use the 1798 Alien Enemies Act to treat Tren de Aragua as what it is: an invading foreign force.” In fact, this post is a direct lie, and refers to the decision Trump v. J.G.G. from over nine months ago, a case that has made waves in the lower courts, but has not returned to the Court.
Headline: “MAJOR BREAKING: The U.S. Supreme Court IMMEDIATELY OVERTURNS activist judge ruling that struck down Texas’ new Republican-friendly 2026 Congressional map. Justice SAM ALITO issued the order. The map is BACK, for now, while SCOTUS formally considers the appeal.” This post, of course, refers to the Texas redistricting case, but mischaracterizes the administrative stay as overturning the ruling below. Obviously, no final decision has been made yet. This post reached over 1.1 million viewers on X.
Headline: “BREAKING: Supreme Court met in private Friday discussing President Trump’s birthright citizenship order declaring that children born to parents who are in the United States illegally or temporarily are not American citizens.” This post came from the X account Leading Report, and thankfully is not as blatantly false as the first two. While the justices met to discuss a number of petitions for certiorari on Friday, they did so in a process called a conference, which occurs literally almost every Friday. Furthermore, there is no evidence the current petition in the birthright citizenship case was discussed.
I am not sure whether to continue using this section when necessary, so I will leave it up to all of you loyal readers who have made it this far today. Please vote in the poll below on whether to keep this new section!
Papers and Research - Scholarly Selections
Interim Orders, the Presidency, and Judicial Supremacy, by Jack Goldsmith
As always, Professor Goldsmith is a must-read, and his recent contribution to the Harvard Law Review goes in-depth on the most important legal issues of today.
The Standing Realignment, by Re and Priel
From the abstract: “For many years, liberals have favored broad standing and conservatives narrow standing. Yet that pattern has disappeared and may be reversing. We studied the Supreme Court justices’ votes on standing . . . Our results show a stark change in voting patterns . . . We label this development ‘the standing realignment . . .’”
Thank you very much for reading. Please like or comment, and have a Happy Thanksgiving!
In liberty,
Ethan Savka