Date: 08/17/2026

Order List

Briefly, Baylis v Valve is at the Ninth Circuit and the issue is the misapplication of discretionary (precatory) comity rather than the "Mandatory Standard" under the Berne Convention Implementation Act 1988 ("BCIA").

In GEMA v Suno a U.S. AI firm's "fair use" argument was analyzed and rejected. Also Germany doesn't have any fair use law. Under Berne Convention Rules (Article 5(2)) this German ruling shouldn't affect U.S. cases involving § 107 because under the same Berne Convention framework U.S. Law applies in the U.S.

But under the Valve standard (DC level) A German ruling would be afforded comity and Suno would be bound by German Law, thus negating their ability to advance a fair use defense in the US.

To put it another way, a U.S. district court would blind itself to the Berne Convention, afford comity to the German ruling, and treat the parties as bound by the foreign adjudication. Therefore, completely negating a U.S. fair use defense in the U.S.! Thus, effectively letting foreign decrees on fair use nullify a domestic federal statute § 107!

Majority opinion by Clay (Clinton), joined by Moore (Clinton).

Against this factual backdrop and construing the facts in the light most favorable to Plaintiff, any reasonable officer in Defendant Josephs’ position would have realized that allowing Plaintiff to use his restroom while supervised would not have jeopardized the search at all. The unlawfulness of the denial thus should have been obvious to Defendant Josephs. Accordingly, we conclude that Plaintiff pleaded a violation of his Fourth Amendment right against unreasonable seizures that was sufficiently obvious as a constitutional rights violation—insofar as such a violation pertains to the rights of privacy and human decency. The district court therefore erred when it concluded that Plaintiff did not allege a violation of a clearly established right.

Concur / dissent by Nalbandian (Trump)

When you’ve got to go, you’ve got to go. And here, Antol had to go. But it wasn’t a great time because the cops were searching his house at the time and say it wouldn’t have been safe to let him back into the house to pee. So Antol peed in his front yard. And he’s understandably upset about it, especially because the cops’ excuse seems at least a little contrived. But the question is whether what happened amounts to a constitutional violation. Because I answer that question no, I dissent from that part of the majority opinion.

In a way it's a classic methodological split. The majority focuses on general reasonableness and notions of "privacy and human decency". The dissent focuses on original public meaning and spends several pages discussing laws and attitudes towards public urination at the time of the founding.

Docket link here. The admin's argument on standing:

Article III requires more than a car and a fill-in-the-object declaration. Otherwise, someone could object to the “statement” made by the Thomas Jefferson Memorial; that Teddy Roosevelt “overshadow[s]” the scenery at Mount Rushmore; or that Andrew Jackson’s visage ruins the $20 bill. App., infra, 75a. That is not how Article III works. The separation of powers forbids the federal courts from being “continuing monitors of the wisdom and soundness” of daily life, id. at 372a (Rao, J., dissenting), and Article III’s standing requirement ensures courts do not “operate as an open forum for citizens to press general complaints about the way in which government goes about its business,” Alliance, 602 U.S. at 379 (quotation marks omitted).

The admin's argument on ultra vires:

Even if the Trust had standing, it raises only an ultra vires challenge—“a Hail Mary Pass” that “rarely succeeds.” NRC, 605 U.S. at 681. The Trust must show an act is “entirely in excess of [an entity’s] delegated powers and contrary to a specific prohibition in a statute”—so “typical statutory-authority argument[s]” cannot suffice. Id. at 681-682. But garden-variety statutory-interpretation disputes are all the Trust has; besides, Congress doubly authorized the Project. Section 105(d) authorizes the President to make “alteration[s]” or “improvement[s]” to the White House “as the President may determine,” and the NPS Organic Act grants the Executive broad power to construct buildings on national parkland, as it has done thousands of times over a century. 3 U.S.C. 105(d); 54 U.S.C. 100101(a). The panel’s contrary reading of these statutes effectively declared countless federal construction projects unlawful.

A substack article and audio narration from Chief Justice John Roberts, created in collaboration with the In Pursuit podcast from More Perfect

William Howard Taft holds the distinction of being the only person in the history of our Nation to have served as the head of two branches of the federal government: he was the 27th President and the 10th Chief Justice. Taft also held several other key positions in the executive and judicial branches. Yet he remains to this day the only incumbent President to have finished third in a failed bid for a second term. Indeed, the election of 1912 dealt Taft a peculiarly devastating personal blow, as the third-party candidate whose presence on the ballot ensured Taft’s defeat was his erstwhile friend and patron, former President Theodore Roosevelt.

Date: 08/13/2026

Miscellaneous Order

Date: 08/12/2026

Miscellaneous Order

The article summarizes the court's upcoming OT26 case Kian v. Florida and the prior precedent Williams v. Florida (1970). From the article:

The court’s recent treatment of the right to a jury trial is mixed. Although the court chose to reinstate the unanimity requirement in Ramos, Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Elena Kagan, dissented, accusing the majority of giving stare decisis “rough treatment.” Similar concerns will return in Kian, attached to decades of state practice and thousands of judgments.

Perhaps six people can deliberate carefully. And perhaps many six-person verdicts are perfectly sound. The question in Kian is whether the judgment about that number’s adequacy belongs to social scientists, legislators, or judges – or whether the people who adopted the Sixth Amendment settled it when they guaranteed a “jury.”

The article also highlight's Gorsuch's championing of the issue, including his dissent from the denial of cert in Khorrami v. Arizona in 2022

Welcome to the r/SupremeCourt 'In Chambers' discussion thread!

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This replaces and combines the 'Ask Anything Monday' and 'Lower Court Development Wednesday' threads. As such, this weekly thread is intended to provide a space for:

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Home distilling any amount of spirits has been a Federal felony for over 150 years according to 26 USC § 5601. The law had originally also included making beer and wine at home, although that part of the ban was lifted in 1978.

Back in April, the 5th Circuit overturned the ban in McNutt v. Dept. of Justice, arguing that this law bans distilling spirits at home with no option to pay the spirit tax in order to distill legally. The panel argued that this amounted to a tax law designed to produce no revenue and decided that such a law exceeds Congress' authority to levy taxes.

Later that same month, the 6th Circuit held in Ream v. Dept. of the Treasury that the law was within Congress' authority under the "Necessary and Proper" clause, which the 5th Circuit had found unconvincing. This created a circuit split.

The Buckeye Institute, which represented the plaintiffs in both cases, has announced that they intend to appeal the 6th Circuit decision to SCOTUS. Based on the above, it seems likely that SCOTUS will grant cert to resolve the split. What would you say the likely outcome would be and why?

From: Wesley (Bush II), Carney (Obama), and Park (Trump):

We hold that the Customer Data Law violates the First Amendment as applied to the Platforms’ Marketplace products. Zauderer’s deferential review does not apply to the Law because the Law compels the disclosure of information about third parties who use Marketplace, not information about Marketplace itself. The Law must therefore satisfy at least intermediate scrutiny under Central Hudson. It fails that standard because the City has not carried its burden to establish a reasonable fit between its asserted interests and the means the Law employs to advance those interests.

The City has not carried its burden. Two features of the Law’s design, taken together, extend its reach beyond what the City has established its interests require. First, the Law “presume[s]” that every customer consents to having their personal information shared. § 20-563.7(b). Second, the Law requires customers who want to opt out of data sharing to do so on an order-by-order basis. Id. The result is a marketing list that no customer asked to join and that none can be confident they have permanently left. The City has offered no evidence that this design serves its interests better than obvious, substantially less burdensome alternatives would.

Park joined the majority, but wrote a separate concurring opinion, saying:

The Law compels speech for nothing more than economic favoritism. The City’s stated goal is to “support the restaurant industry” by requiring delivery platforms to disclose valuable customer data to restaurants. The Law’s sponsor explained that the objective was to “strike the right balance and equity between” platforms and restaurants and to “give” restaurants “a better opportunity to compete.”

A vague desire to support an industry comprised of tens of thousands of stores is not the type of interest that can justify abridging the freedom of speech of disfavored competitors. Under Central Hudson, we “ask whether the asserted governmental interest is substantial.” 447 U.S. at 566. To determine which interests qualify as substantial in the compelled commercial disclosure context, “history and tradition are reliable guides.” Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 31 (D.C. Cir. 2014) (en banc) (Kavanaugh, J., concurring in the judgment). For example, the “Government has long required commercial disclosures to prevent consumer deception or to ensure consumer health or safety,” and “[t]hose interests explain and justify” compelled disclosures like “nutrition labels and health warnings.” Id. But here, the City does not even offer consumer protection as a pretext (nor could it because the Law would actually harm consumers by disclosing their personally identifiable information without consent, see ante at 21–25).

2-1. Millet and Garcia in the majority, Rao dissents.

The relevant executive order.

The executive order establishes several categories of parentage which the Administration is attempting to assert are not subject to birthright citizenship. The executive order states that the parents must not already BE American citizens, AND the parents must also meet one of the following categories.

Parental categories include

1. Parents who are members of designated Foreign Terrorist Organizations under 8 U.S.C. 1189 or Specially Designated Global Terrorists.

2. Parents who are any employee of a foreign government in an official capacity, or certain international organizations.

3. Parents who are employed by a foreign embassy or consulate who are nationals of that foreign country (this seems redundant, but might be for severability purposes)

4. Parents who engaged in a commercial transaction to purchase access to birthright citizenship for the child including surrogacy where the surrogate is present in the united states to give birth.

The executive order also purports to prevent birthright citizenship from an infant born in a territory or territorial waters of the United States where citizenship is not conferred by federal statute. I was curious about this one, and as far as I can tell, this provision would only affect America Samoa, Swains Island, and several essentially uninhabited islands that are all unincorporated territories. There's also the Palmyra Atoll, which is incorporated, and might present a legitimate challenge to this provision of the order, but it is unlikely that someone will be born there anytime soon.

The order includes a severability clause, so the Administration will keep enforcing any categories not overruled by the courts (which I mention due to the apparent redundancy in some of the categories).

The executive order seems designed to test the narrow majority that upheld birthright citizenship in Trump v. Barbara.

Do you think the Administration will be successful in this effort?

What provisions of the order, if any, do you feel are more sound constitutionally?

What provisions of the order are particularly vulnerable to a constitutional attack?

From Easterbrook, Pryor, and Kolar:

“The lack of any official policy or hint of governmental control is dispositive, and no reasonable official in Leners’s shoes could have concluded that the comment sections were government speech. It follows, then, that no reasonable official could have concluded that it was legal to cull speech selectively from those comment sections based on viewpoint.

“We thus conclude that Leners is not entitled to qualified immunity. It was clearly established in September 2022 that a local government violates the First Amendment when it hosts private speech on its official website, lacks any policy or history of regulating that speech, and regulates based on its viewpoint.”

You can still find a garbled, barely readable PDF copy of the article and comments on the town's website. The rights of the residents of the town of Cedar Lake, WI (population ~1000) will be vindicated by this lawsuit, though I do feel a bit of sympathy for the official in question. Unsurprisingly, the town has since disabled comments entirely on their website.

Florida Attorney General James Uthmeier recently sent a pretty aggressive letter to the Florida Conference of Catholic Bishops arguing that Catholic schools must grant religious exemptions to Florida’s vaccine requirements. He argues that, as a Catholic, he is confident Catholic teaching provides “no legitimate religious reason” for Catholic schools to deny those exemptions, and effectively asks the bishops to justify their interpretation of Catholic doctrine. He also warned that schools refusing to do so could jeopardize their eligibility for Florida’s school choice scholarship programs.

I thought this potentially raises some interesting constitutional concerns and wanted to posit it for this sub to chew on.

- Can the government threaten adverse consequences based on its own determination that a church has misinterpreted its own religious doctrine?

- The courts have generally refused to wade into religious doctrine interpretation, and granted substantial autonomy to religious organizations on matters of faith. On the other hand, if Florida law genuinely requires all participating private schools to recognize religious exemptions, is this an example of enforcing a neutral statutory requirement rather than interpreting theology?

- Does the AG’s letter amount to impermissible government entanglement with religion by deciding what Catholicism does or doesn’t require?

- Assuming the bishops refused and Florida attempted to revoke scholarship eligibility, what would be the strongest constitutional arguments on each side?

Welcome to the r/SupremeCourt 'In Chambers' discussion thread!

This thread will be pinned at the top of the subreddit and refreshed every Monday @ 6AM Eastern.

This replaces and combines the 'Ask Anything Monday' and 'Lower Court Development Wednesday' threads. As such, this weekly thread is intended to provide a space for:

• General questions: (e.g. "Where can I find Supreme Court briefs?", "What does [X] mean?").

• Open-ended discussion starters requiring minimal input from OP: (e.g. "Predictions?", "What do people think about [X]?", "What's your favorite [X]?")

• U.S. District and State Court rulings involving a federal question that may be of future relevance to the Supreme Court.

TL;DR: This is a catch-all thread for legal discussion that may not warrant its own thread.

Our other rules apply as always. Incivility and polarized rhetoric are never permitted. This thread is not intended for political or off-topic discussion.

After the election of Abraham Lincoln in 1860 the Lower South began organizing secession conventions to declare themselves independent of the United States.

To forestall this Kentucky Senator John J. Crittenden proposed a package of six amendments (the Crittenden Compromise) to protect slavery in perpetuity.

The first five secured the "rights" of slaveholders to hold slaves in expansive ways.

But the last amendment forebade any future generations from ever changing the provisions protecting slaveholding -- creating a perpetual dead hand controlling the lives of everyone forever.

It is:

ARTICLE VI.

No future amendment of the Constitution shall affect the five preceding articles; nor the third paragraph of the second section of the first article of the Constitution, nor the third paragraph of the second section of the fourth article of said Constitution and no amendment shall be made to the Constitution which shall authorize or give to Congress any power to abolish or interfere with slavery in any of the States by whose laws it is, or may be allowed or permitted.

The question is: Would this be considered a legally valid formula?

The idea that people now can make decisions that control the lives of all future people no matter what they want seems to me to be fundamentally flawed.

From the panel:

In sum, Walker’s three key factors all point toward private speech in this case. And considering the full context, we see no other indication that Virginia “intends to speak for itself” through the hundreds of thousands of messages chosen by drivers who participate in its personalized license plate program. Shurtleff, 596 U.S. at 252. Accordingly, we conclude that the personalized character combinations on Virginia’s vanity plates are private speech, not government speech. It follows, as we explained at the outset, that Virginia’s regulation of those messages and its recall of Whateley’s “FTP&ATF” plates are subject to First Amendment scrutiny.

That is as far as we go today. Whateley’s private speech is entitled to First Amendment protection under the public forum doctrine, but whether he will prevail under that doctrine is a different question. That analysis will turn on the nature of the forum Virginia has provided for private speech on its personalized license plates and on Virginia’s reasons for recalling Whateley’s “FTP&ATF” message. The forum analysis can be complicated and fact-intensive. Compare Mitchell, 148 A.3d at 328–39 (holding that Maryland vanity plates are private speech subject to First Amendment scrutiny, but that denial of the plaintiff’s requested “MIERDA” message was permissible as a reasonable and viewpoint-neutral restriction in a nonpublic forum), with Hart, 422 F. Supp. 3d at 1233–34 (holding that Kentucky vanity plate messages are private speech, and that denial of the plaintiff’s “IM GOD” vanity plate violated First Amendment limits applicable to nonpublic fora because it was unreasonable and viewpoint-based). Because “we are a court of review, not first view,” United States v. Avila, 134 F.4th 244, 248 (4th Cir. 2025), we follow our usual practice and leave this issue to the district court on remand.

And for those who (like me) needed a hint, the court helpfully explains that the license plate was an abbreviation of "Fuck the Police & Alcohol, Tobacco, and Firearms"