The Good & The Bad In Erica Schwartz’s Confirmation Hearings To Lead CDC
from the two-sides-to-every-schwartz dept
There’s a lot of health news going on in the country right now, in no small part to the absolutely pitiful and pathetic job RFK Jr. is doing heading up HHS. It is a near certainty that by the end of this week, the CDC will have published an updated case count for measles that is greater than last year’s total case count, which was itself the largest since the 90s. Pertussis is also surging. There’s that new outbreak going around where you apparently just shit your pants constantly, like some kind of minor South Park character or something.
And so it was something of a breath of fresh air when the Trump administration nominated Erica Schwartz to lead the CDC, all because she appeared to be well qualified for the role and hadn’t said anything crazy-pants about things like vaccines. That this has become the standard for a feel-good HHS story is telling, but it was welcome news all the same.
Commenting on the nomination, Kennedy said he wouldn’t commit to taking CDC advice on vaccines, nor would he commit to not directly interfering with CDC operations and policy making.
Kennedy’s response Tuesday suggested Schwartz could face an equally short tenure. His answer came amid an exchange with Rep. Raul Ruiz (D-Calif.) in a hearing of the House Committee on Energy and Commerce. Ruiz asked Kennedy: “If Dr. Schwartz is confirmed, will you commit on the record today to implement whatever vaccine guidance she issues without interference?”
Kennedy replied without hesitation: “I’m not going to make that kind of commitment.”
Which is part of what informed senators to ask Schwartz about resisting Kennedy’s fuckery in her confirmation hearings. Sadly, it appears that Schwartz refused to demonstrate that she in fact has a backbone.
[D]uring a hearing sometimes marked by heated exchanges, Dr. Erica Schwartz repeatedly declined to say whether she would resist political pressure from Health Secretary Robert F. Kennedy Jr. over vaccine policy.
Committee Chairman Bill Cassidy, R-La., repeatedly questioned Schwartz about whether she would have authority to make personnel and policy decisions without political interference from the Health and Human Services Department. Schwartz did not directly answer whether she could hire and dismiss CDC employees independently or whether she would refuse directives from Kennedy that conflicted with scientific evidence.
Asked by Sen. Maggie Hassan, D-N.H., whether she would carry out an order to discontinue a public campaign encouraging influenza vaccination, Schwartz replied, “I don’t speak in hypotheticals.”
And so, once again, the country will get to wonder whether the CDC really does have an actual director, or just some figurehead placed there to give Kennedy’s insanity the veneer of consensus. This is a very real problem given our current context and, frankly, these questions should not be terribly difficult to answer. For someone with integrity, at least, the answer should be something like, “As CDC’s Director, it would be my responsibility to refuse any order that would make the country less healthy, no matter who it comes from. And as CDC Director, I would have that authority by the nature of the position.”
All of that being said, Schwartz did at least reaffirm her sanity on the topic of vaccines.
Ranking Member Sen. Bernie Sanders, I-Vt., asked Schwartz if she would remove a webpage updated last November on the CDC’s website on autism and vaccines. The webpage states that a link between the two has been ignored despite many studies finding no such link.
Schwartz said she accepted there is “overwhelming evidence” vaccines don’t cause autism, but did not commit to removing the webpage.
“Senator, I have been in situations where I have had to go to my superiors in the military to have conversations, very difficult conversations, about things that may have been concerning to the troops or to the military personnel, and I will do the same with [Secretary Robert F. Kennedy Jr.],” she replied.
Once again, great that she is sane when it comes to vaccines, less great that she won’t commit to actually doing the right thing and removing the nonsense from CDC’s website.
I’m still relatively optimistic about Schwartz leading CDC. It may be that she didn’t want to publicly embarrass what would be her new boss if confirmed. It may be that she ends up pushing back hard on Kennedy’s attempts at interfering with her agency if confirmed, which will probably end up with her being fired. Even that would be fine by me, since it would be one more glaring data point of chaos at HHS under Kennedy.
If that led to Kennedy’s firing, it would be worth it.
Filed Under: autism, cdc, erica schwartz, health & human services, rfk jr., vaccines
FCC Officials Took Pricey Gifts From Paramount As The Company Needed Approval For Billion-Dollar Deals
from the the-appearance-of-a-conflict-is-a-conflict dept
This story was originally published by ProPublica. Republished under a CC BY-NC-ND 3.0 license.
The rich and famous who filed into the Kennedy Center’s opera house in December were there to enjoy one of the nation’s most exclusive celebrations of the performing arts: the center’s annual honors gala.
The black-tie event, hosted by President Donald Trump, prioritized tickets to people who donated more than $75,000 to the center. This year, it feted Hollywood icon Sylvester Stallone, the legendary glam rock band Kiss and the Grammy Award-winning disco pioneer Gloria Gaynor.
Among the attendees that evening were two lower-profile government officials whose regulatory decisions had been crucial to the future of the gala’s broadcast sponsor, CBS, and its parent company, Paramount.
Five months earlier, Federal Communications Commissioner Olivia Trusty cast a decisive vote approving Paramount’s historic $8 billion merger with Skydance Media. Now, the commissioner and a guest enjoyed the star-studded celebration thanks to tickets gifted to her by Paramount worth more than $12,000, according to ethics disclosure records obtained by ProPublica.
The other commissioner who approved the merger watched from a prized perch. FCC Chair Brendan Carr and his wife sat in a private skybox with Paramount CEO David Ellison and other executives from Paramount and CBS. Such seats sold for $125,000 a ticket, according to Kennedy Center guidelines.
It’s unclear if Paramount gifted Carr the premium seats because the FCC has yet to make public his financial disclosure for last year.
However, past disclosures show Carr and Trusty are among seven FCC commissioners who have accepted Kennedy gala tickets from CBS or its parent company over the last decade. Ethics experts told ProPublica this poses a blatant conflict of interest since the commission regulates the network. Carr’s previous financial statements show he has accepted tickets at least seven times since his 2017 appointment, totaling over $63,000 in gifts.
Last December’s ceremony attended by Trusty and Carr took place as Paramount was launching a hostile takeover bid for Warner Bros. Discovery, a move that would later result in a merger agreement that requires FCC approval.
Federal ethics rules ban employees from taking gifts from any entity that does business with, is regulated by or seeks official action from their agency.
Four ethics experts told ProPublica that by accepting the premium tickets Trusty and Carr compromised the FCC’s impartiality and should not take part in any upcoming decision on the merger.
“There’s no way that any top federal regulator should ever, ever accept a gift from a regulated company with interests their work will foreseeably affect,” said Walter Shaub, who led the federal Office of Government Ethics from 2013 to 2017. “The appearance of taking gifts like that is terrible. What’s at stake is nothing less than the public’s trust in government.”
Virginia Canter, who served as an ethics lawyer at the White House, Treasury Department, and Securities and Exchange Commission during the presidencies of George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama, said the commissioners who accepted tickets cannot participate in this matter without damaging the integrity of the government’s decision-making process.
“This is shocking. Pretty disturbing, that’s what I would say. I just don’t understand what they were thinking,” said Canter, who now works as chief counsel for ethics and corruption at the nonpartisan government watchdog group Democracy Defenders Fund.
The FCC’s review of the merger is one of the final hurdles facing a historic $110 billion consolidation of two of the five largest film studios in Hollywood. The deal would unite Paramount Skydance with Warner Bros., bringing under the control of one company Paramount+ and HBO Max streaming services; CBS and CNN; and scores of other major broadcast channels, cable networks, and digital platforms.
The new megacorporation, which could reshape how millions will access news, movies, sports and video games, faces fierce opposition from inside and outside Hollywood. More than 5,000 actors, producers and entertainment workers — including stars such as Robert De Niro, Javier Bardem, Joaquin Phoenix and Glenn Close — signed an open letter decrying how the consolidation would eliminate jobs and compromise “the integrity, independence, and diversity of our industry.”
On Monday, California, New York and 10 other Democratic states filed a lawsuit seeking to block the merger under federal and state anti-monopoly laws.
American and international regulators are evaluating the deal for its potential national security implications and impacts to consumers worldwide. Last week, the British government signaled it planned to investigate whether the new entertainment titan that would emerge from the union would unfairly stifle competition. The FCC’s ongoing review includes examining the Middle Eastern sovereign wealth funds backing the deal, including from Saudi Arabia, Qatar and Abu Dhabi.
The FCC usually has five commissioners — all appointed by the president and confirmed by the Senate to serve five-year terms — but the agency currently has only three. Any vote by the full commission would likely be decided by Republicans Carr and Trusty over Democrat Anna Gomez. Gomez was not at the December 2025 show but has accepted tickets from Paramount in the past. Because the FCC requires a three-commissioner quorum for a vote, any recusal could leave the panel unable to decide on the merger. Carr could decide to ask staff to approve the deal rather than bring it to a commission vote, but the ethics experts said he should recuse himself from any decisions affecting the Paramount merger.
The experts warned the commissioners’ gifts might become central in legal challenges and said the Justice Department should investigate potential violations of federal rules or laws.
Neither Carr nor Trusty responded to ProPublica’s requests for comment. Gomez said in a statement that she followed agency advice when she attended the event in 2023 and 2024. Her statement did not elaborate or otherwise address why taking gifts from Paramount did not pose a conflict of interest.
An FCC spokesperson said agency ethics officers have for years cleared commissioner appearances, finding it consistent with ethics law.
“FCC Chairs and officials have attended the same event, in the same ways, consistently from the Trump Administration to the Biden Administration to the Obama Administration,” the FCC said in a statement. “There has been no change in recent years.”
Shaub called the justification outrageous.
“It’s no excuse to say that you took the gift because everyone else was doing it or that your agency has had a bad habit of indulging in gift taking for a long time,” Shaub said. “That kind of explanation doesn’t work for school children, and it sure as hell doesn’t work for government officials who are supposed to have better judgment than a fifth grader.”
Despite their oversight role, FCC members have long enjoyed a night out at the Kennedy Center courtesy of CBS or its parent company. Seven of the 10 commissioners who served since 2016 accepted tickets worth more than $260,000, according to a ProPublica analysis of ethics disclosures.
Carr’s predecessor, Jessica Rosenworcel, who was appointed FCC chair by President Joe Biden and stepped down in January 2025, attended regularly.
Rosenworcel and several other former commissioners who accepted the tickets did not respond to requests for comment. The one commissioner who didn’t accept a single gift, Nathan Simington, said he received the Kennedy Center invites from CBS and Paramount but turned them down because it “wasn’t my cup of tea.”
A review of 10 years of disclosures shows commissioners accepted paid trips from various sponsors to appear at banquets and speak at conferences. Some of those gifts came from other media companies regulated by the FCC. NBCUniversal, ABC-Disney and Fox News, for instance, paid for commissioners to attend White House Correspondents’ Association dinners, records show. The total value of the combined gifts topped $308,000. But the vast majority came from CBS and its parent company.
Melissa Zukerman, Paramount’s chief communications officer, said it was a decades-long “CBS practice to invite government officials from both parties” to the Kennedy Center show. She didn’t address why the practice continued after new ownership took over last year, the purpose of the gifts or whether the tickets posed a conflict of interest.
Carr, who joined the FCC as a staffer in 2012 and rose to become the agency’s general counsel, was appointed to serve as a commissioner by Trump during his first term. Since then, Carr has accepted tickets annually, except when the 2020 event was postponed due to the COVID-19 pandemic, according to his public disclosures.
Carr did not respond to an email request from ProPublica for his latest ethics report, which would indicate whether Paramount also paid for him to attend last December’s gala. The FCC referred us to the Office of Government Ethics, which told us that the FCC had not yet provided the disclosure. The FCC did not respond to our subsequent requests for the record.
A 2009 Office of Government Ethics memo gave federal employees the right to attend Kennedy Center events but explicitly said officials cannot accept free attendance “offered by persons other than the Kennedy Center and its trustees, officers and employees.” In 2016, the ethics office tightened its gift requirements, warning officials to avoid any appearance “of loss of impartiality.”
There is an exemption to the gift rules that allows free entry to gatherings that are widely attended and paid for by third parties, but only if certain conditions are met.
The event must “further agency programs or operations,” and the agency’s interest in an official attending must outweigh “concern that the employee may be, or may appear to be, improperly influenced in the performance of official duties,” according to the federal rules.
As an example, the Office of Government Ethics said an industry-wide seminar attended by more than 100 people could be allowed if the employee’s participation would be in the agency’s interest. But those attending should “represent a range of persons interested in a given matter” and the event must provide a “structured opportunity” to exchange ideas and views among invitees.
The office clarified in a 2007 memo that performing arts presentations would not count even if they, like the honors gala, have a reception before or afterward at which officials can mingle with other attendees.
Canter, the former White House ethics lawyer, said it would be a “stretch” for the FCC to argue the exemptions apply to the Kennedy Center’s annual show, where famous musicians perform and celebrities laud those who are being honored. “It’s not what we would consider a widely attended gathering,” she said.
Kedric Payne, general counsel and senior director of ethics at the Campaign Legal Center, a nonpartisan watchdog group, noted that federal rules also require agencies to weigh the market value of the attendance, its relevance to the agency, any sensitive pending matters involving the donor and whether accepting free tickets creates an appearance of preferential treatment.
“The ethics rules are designed to prevent this exact situation,” he said, adding that it is an “obvious conflict of interest” for an official to “accept expensive gifts from anyone with decisions pending before the agency. This matters because it makes the public question whether official decisions are free from the improper influence of wealthy special interests.”
An FCC official familiar with the legal guidance given to the commissioners said they were told the event met the criteria for the “widely attended gathering” exception. (The source was not authorized to talk publicly about agency legal discussions.)
Shaub, the former Office of Government Ethics head, disagreed, saying it would be “hard to understand what compelling interest the FCC could think it had in letting its commissioners” attend the gala.
“What possible reason could have outweighed the obvious ethics concerns?” he asked.
Federal rules require written authorization for an official to accept free entry to a widely attended gathering. The FCC did not respond to our requests to provide the authorizations for the Paramount tickets or say who authorized them. Two senior ethics officials at the agency, Kathleen Fulp and Lauren Northrop, did not respond to requests for comment.
While December’s event came at a particularly sensitive time for Paramount and the FCC, it wasn’t the first.
More than a year earlier, in September 2024, Paramount had filed paperwork seeking the commission’s approval for its merger with Skydance Media. A month later, the FCC launched an investigation of CBS after a conservative group complained about a “60 Minutes” interview with Democratic presidential candidate Kamala Harris. Trump later filed a lawsuit alleging the network deceptively edited the interview — an accusation CBS denied.
Then in November, less than two weeks after his election victory, Trump declared he would appoint Carr as FCC chair. Almost immediately, Carr accused CBS of biased election coverage and said it would be an obstacle to approving the Paramount-Skydance merger.
That December, Carr and three other commissioners — Rosenworcel, Gomez and Geoffrey Starks — accepted Kennedy Center gala tickets from Paramount worth a combined $48,156.
On Jan. 16, 2025, just days before Rosenworcel stepped down from the commission, she announced the agency was dismissing the election complaint against CBS. She and Gomez called the outcome a victory for the First Amendment.
But days later, Carr, the incoming FCC chair, reopened the investigation.
To resolve Trump’s lawsuit, CBS agreed to pay the president $16 million, a decision criticized by legal experts who decried Trump’s claims as baseless.
Two days after Trump posted on social media that he had received the settlement money, the FCC took up the Paramount-Skydance merger. To meet Carr’s demands, Paramount agreed to appoint an independent ombudsperson who would evaluate claims of bias. The company also pledged to eliminate its diversity, equity and inclusion initiatives.
By then, Starks and Simington had unexpectedly stepped down from the commission. Trusty, a Trump appointee, had been confirmed by the Senate the previous month.
Trusty and Carr voted in favor of the merger. Gomez voted against, blasting the approval for requiring “never-before-seen forms of government control over newsroom decisions and editorial judgment.”
Experts said that while Trusty had no conflict yet, Carr and Gomez did. The fact that Gomez voted against Paramount did not mean she didn’t face a conflict under the rules, Shaub said.
Federal rules only require those who accept improper gifts to make a prompt reimbursement, but Shaub and the other experts said Carr and Gomez should have abstained from the vote.
“If you repay the face value of the ticket, the gift rules don’t require you to recuse — though common sense and any kind of conscience might lead you to recuse voluntarily for the good of the country,” Shaub said. “But if you refuse to repay the donor, I don’t see how anything short of recusal could remotely remediate the problem.”
With the Paramount-Skydance merger greenlit by the FCC, Ellison, the new company’s CEO, then set his sights on acquiring Warner Bros. Discovery.
Warner at first rebuffed Paramount’s overtures and on Dec. 5 — two days before the Kennedy Center gala — accepted a bid from Netflix to buy its studio and streaming assets. Ellison responded by making numerous calls to administration officials and had a long talk with Trump, according to The Wall Street Journal.
On the night of the gala, Trump told reporters the Netflix deal “could be a problem” and that he planned to get directly involved with the regulatory approval. Inside the Kennedy Center, Carr and his wife sat with Ellison in an exclusive skybox, Bloomberg reported. (Gomez said in her statement to ProPublica that she declined Paramount’s “invitation because of serious concerns about press independence connected to conditions Paramount agreed to as part of its merger transaction before the FCC.”)
Hours after the gala ended, Paramount announced it was launching its hostile takeover bid of Warner Bros. Discovery.
About three months later, Carr publicly endorsed Paramount over Netflix on CNBC, promising swift approval.
If one or more commissioners choose to abstain from a merger vote because of ethical concerns, what would happen next is unclear. Under federal conflict of interest rules, an agency designee could theoretically permit commissioners to vote after considering several factors, including “the difficulty of reassigning the matter,” the nature of the relationship between the commissioners and Paramount, and the “effect that resolution of the matter would have upon the financial interests” of the firm.
Carr could bypass a full commission vote entirely, as he did with the recent acquisition of Tegna by Nexstar Media Group. In that case, Carr delegated authority to FCC staff to approve the takeover.
But any decision on the Paramount deal — whether by the full commission or by staff at the direction of the chair — is likely to be challenged.
Richard Painter, a former White House ethics attorney in the administration of George W. Bush, said while courts often defer to the government’s judgment, they also can become skeptical if a regulatory agency is shown to have violated ethics rules.
“A judge may very well say that the merger decision of the FCC isn’t worth jack because the process was corrupted,” he said.
Filed Under: anna gomez, brendan carr, conflict of interest, david ellison, disclosure, ethics, fcc, jessica rosenworcel, kennedy center, nathan simington, olivia trusty
Companies: paramount
Cops Continue To Prove They Can’t Be Trusted With Surveillance Tech
from the give-em-an-inch-and-they'll-take-a-panopticon dept
This is probably nothing more than another data point in a deluge, but it’s worth pointing out because it’s instructive.
Cops are using a whole lot of surveillance tech these days. Flock Safety has been especially aggressive in pursuing the law enforcement market, offering cops access to a nationwide network of cameras, including many owned and operated by private citizens.
Flock — and its law enforcement partners — have generated a lot of negative press over the last couple of years. Some of this is due to cops abusing their access and/or performing searches for federal agencies that aren’t allowed to directly access Flock’s database. Some of this is due to Flock itself, which has seen the negative press and largely chosen to ignore it.
But now Flock has real problems. Federal legislators are demanding answers to uncomfortable questions. And dozens of cities are attempting to rid themselves of Flock cameras following public outcry and/or evidence of abuse by those with access.
In San Francisco, it’s a blend of both. And the answers/excuses made by Flock and the SFPD make it clear law enforcement agencies cannot be trusted with the tech they now have easy access to.
“During a routine compliance audit in May, SFPD officials found that the Northern California Regional Intelligence Center (NCRIC) had queried SFPD’s Flock network on behalf of federal and out-of-state agencies. There were 299 improper inquiries over approximately one year, which accounts for 0.005% of inquiries over that period,” the release states.
Each of these searches performed on behalf of federal agencies broke state law. To its credit, the SFPD pulled the plug on access following the results of this audit. And while that’s the sort of response we’d like to see from more law enforcement agencies, the statements issued by those involved (SFPD, Flock) make it clear the only way to prevent abuse is to never allow cops to have access to this tech in the first place.
Here’s what Flock Safety had to say about the audit results:
A Flock spokesperson in February said the company had disabled its national lookup feature for all California agencies and is confident its privacy protections comply with state law, local policy and community expectations.
[…]
In response to the San Francisco audit, Flock spokesperson Paris Lewbel told KTVU that the searches were not a result of a software malfunction, platform issue, unauthorized access, or any failure of the Flock system.
Without more information, it’s impossible to tell whether the first statement issued by Flock (in response to a lawsuit) is true. It could be that feds asked the SFPD to perform local searches, which would lend credence to Flock’s initial statement. The fact that 299 potentially illegal searches took place over the last year doesn’t generate a whole lot of confidence in either the supply or demand side of the Flock equation.
The second statement makes things a bit more clear: this wasn’t SFPD officers going outside of any limitations imposed by Flock or the department itself. Instead, they broke the law by running searches they most likely knew violated state regulations. In other words, this wasn’t Flock enabling lawlessness. This was cops working within the system to violate the law.
The implication gets even stronger now that the SFPD has issued its own statement. This appears to have been officers breaking the law, rather than the law being (accidentally or otherwise) bypassed because the software wasn’t configured correctly.
The San Francisco Police Department identified the activity through a routine audit of its own Flock network and took immediate action, Lewbel noted.
He added that no out-of-state or federal agencies had direct access to SFPD’s Flock system or any California Flock system.
The first sentence means something. The second sentence, however, is meaningless. The limitations placed on access by Flock and SFPD policies were circumvented to perform exactly the sort of searches they were meant to prevent. This audit could have come back completely clean if SFPD officers hadn’t decided to break the rules.
And even if 299 illegal searches are only “0.005%” of the total number of searches, that doesn’t mean the other 99.995% of searches were justified. Most people assume ALPR databases are only accessed when a license plate generates a hit due to prior placement on a watch list. That’s an false impression that’s been perpetrated for years by law enforcement, which constantly claims these are used to track down car thieves, kidnappers, bank robbers, and other dangerous criminals.
But when audits are only looking for searches that route around parameters, they don’t see all the searches being made by cops who are bored or are tracking their exes or trying to hunt down women who are doing nothing more than seeking to terminate unwanted pregnancies. The “0.005% of searches” assertion is likely misleading as well. Plaintiffs suing the state over its ALPR use alleged more than 1.6 million illegal searches during the same time period across the state. Not only that, but the number of total searches is likely inflated by those triggered by the system itself, which involve minimal interaction by officers utilizing the ALPR network.
On one hand, if we decide Flock is actually telling the truth this time, the blame lies with the officers who choose to break the rules and the law. On the other hand, if Flock’s representation of the facts is inaccurate, it only means cops who knew what the law was chose to break it simply because they easily could. Neither of these scenarios add up to the SFPD being trustworthy. And splitting the difference just means we can’t trust the SFPD’s camera provider either.
Filed Under: alpr, license plate readers, location tracking, san francisco, san francisco police, surveillance
Companies: flock safety
To Dodge A Fight With Trump, Law Firms Cut Deals. Now The Deals Are Creating A Fight With Trump.
from the so-how-did-the-caving-work-out-for-you? dept
A few weeks ago, David Lat went on the Serious Trouble podcast and mentioned that things actually hadn’t turned out that poorly for the craven big law firms that had caved to Donald Trump’s ridiculous attacks on any law firm he didn’t like. The law firms that fought back keep winning in court, as it’s obviously ridiculous and unconstitutional to punish law firms because you don’t like the clients they’ve defended. And, to some extent, Trump’s legal strategy has succeeded in creating a chilling effect. Lat had earlier reported how the Big Law firms are mostly missing from the many, many legal challenges against Trump’s nonsense policies.
Of course, many of the “settlements” involved promises of pro bono work in support of MAGA/Trump causes, though it’s unclear if any of that has really turned up. There had been some talk last year that Trump’s personal lawyer, Boris Epshteyn, had tried to get those firms to help Trump negotiate his bullshit trade deals, though it’s unclear if that went any where.
Epshteyn’s involvement is interesting, because it has also been reported that he was the one who actively negotiated the craven “settlement” deals by the law firms that caved, despite not being a federal government employee.
That’s become a real problem for the firms. The American Bar Association had sued the White House last year to try to stop these attacks on law firms. Given the reporting on Epshteyn’s involvement (again, not as a government employee), the ABA has been demanding copies of communications involving Epshteyn.
This appears to have made the DOJ nervous (gee… wonder why?) and it has taken the somewhat strange step of issuing subpoenas to a bunch of the law firms, including most of the ones that “settled” with the administration, while also demanding that some of their top people sit for depositions. And all these big law firms who decided to ditch any principled stand and to agree to a deal with Trump are now put in the awkward position of deciding if they now need to fight the administration they already caved to… or reveal information they’d probably prefer not to reveal.
Mr. Epshteyn serves as Mr. Trump’s personal lawyer but negotiated the deals with the firms. Mr. Bannon has publicly praised the deals, saying that he hoped Mr. Trump’s executive orders against the law firms would destroy them.
In response to the demands the Trump administration hand over documents, the Justice Department has asked a federal judge to quash the requests. So far, the judge has not ruled. But in the meantime, the Justice Department subpoenaed the nine law firms that cut deals with Mr. Trump — and four that have fought the executive orders in court — for the same information the association was seeking from the administration.
The government’s subpoenas marked an escalation of the battle surrounding the lawsuit, and aim to put the law firms’ leaders under the same kind of pressure that the bar association’s subpoena put on Mr. Epshteyn, according to people familiar with the matter.
The subpoenas ask for all communications the firms had with Mr. Epshteyn and “any communications concerning the implementation, enforcement or monitoring of” agreements between the firms and the White House, according to the subpoena reviewed by Times.
Apparently, the strategic idea is that by issuing subpoenas to these law firms (again, most of whom already caved and basically admitted that they’re toadies of the administration), perhaps they’ll step in to the fight and help the DOJ try to block the sharing of Epshteyn’s communications. And that creates a fairly uncomfortable choice for these supposedly big, powerful law firms.
The demands have caught the firms flat-footed, unsure of how to respond. Faced with that uncertainty, they have hired high-powered Washington lawyers to represent them as they gear up to face the Justice Department….
Oh gosh, these big powerful lawyers who used to fight the government now have the government putting them in such an impossible position… that they have to hire other lawyers to figure out what to do? Please, someone fetch me the smallest violin.
Meanwhile, the firms that caved and promised to support Trump’s MAGA agenda are worried that if they fight these bogus subpoenas, they’ll be right back to square one, facing a new bullshit executive order that they were too chickenshit to stand up and fight against earlier:
But the Justice Department’s demands have placed the firms that made deals with Mr. Trump in a particularly difficult position, leaving them uncertain how to respond, according to the two people. Some firms fear that if they oppose the administration they will be hit with an executive order, one of the people said.
Maybe, next time, don’t cave. Don’t abandon all principles. Don’t meekly give in to a bully who was never going to leave well enough alone.
While some of the subpoenas went to the law firms that have fought back against Trump, it seems much easier for them to come out and fight the subpoenas, if they choose to do so. Or, hell, they could just cough up Epshteyn’s approaches to get them out there anyway.
When dealing with an authoritarian bully, never obey in advance, never give in when you can stand up for your rights. Those big law firms — Paul Weiss, Kirkland & Ellis, Latham & Watkins, Skadden Arps, Willkie Farr, Milbank, A&O Shearman, and Simpson Thacher — caved and now face even further embarrassment. There’s one other firm that’s in a weirder position. Cadwalader (NY’s oldest law firm) was another big law firm that caved, but… just recently merged with Hogan Lovells, which has not caved. And Hogan Lovells is claiming that Cadwalader’s promises to the Trump admin don’t apply to the merged firm. Good luck with that!
Either way, it’s hard to feel much sympathy for the position the Trump admin is now putting these firms in. They had a chance to show backbone when it actually mattered, and they folded. Immediately. Now they get to hire more lawyers to figure out how to avoid ratting out the guy they folded for. Lat may have been right that things “hadn’t turned out that poorly” — but ask again in a few months, once these firms are done choosing between betraying Trump or betraying themselves.
Filed Under: boris epshteyn, caving, donald trump, executive orders, law firms
Companies: a&o shearman, hogan lovells, kirkland & ellis, latham and watkins, milbank, paul weiss, simpson thatcher, skadden arps, wilkie farr
Daily Deal: The 2026 Microsoft Azure Architect & Administrator Exam Prep Bundle
from the good-deals-on-cool-stuff dept
The 2026 Microsoft Azure Architect & Administrator Exam Prep Bundle has 9 courses covering a wide range of Azure skills designed to help you pass your certification exams. Courses also include hands-on sections to help you put into practice what the lessons have covered. It’s on sale for $40.
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Filed Under: daily deal
Florida’s Stop WOKE Act Shut Down (Again) By Eleventh Circuit Appeals Court
from the stopping-the-stoppers dept
Florida Republicans’ bigoted little piece of speech policing — the former “Stop WOKE Act” — has already been terminated multiple times by federal courts. Two lawsuits with two sets of plaintiffs have generated the same results: a ruling declaring the law unconstitutional and an injunction blocking the state from enforcing it.
The law aims to directly regulate speech in classrooms, allowing the government to punish teachers and administrators from engaging in any speech the Florida GOP doesn’t agree with. In practice, this means eliminating discussions about racism, equitable treatment, or anything related to LGBTQ+ issues.
The two lawsuits have generated some pretty stark paragraphs from presiding judges. Both take their cues from pop culture. Noting the cognitive dissonance of state lawmaking, the court said this in 2022:
In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.
The same court said this when the second lawsuit against the Stop WOKE law crossed its desk:
“It was a bright cold day in April, and the clocks were striking thirteen,” and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves. This is positively dystopian.
The state appealed both decisions. The Eleventh Circuit Appeals Court upheld the injunction in March 2023. The state continued to assault the court with motions to undo this injunction, prompting the Eleventh Circuit to issue this additional order:
The Clerk is DIRECTED to treat any motion for reconsideration of this order as a non-emergency matter.
Forced to wait its turn, Ron DeSantis and his MAGA buddies have had to wait more than three years just to find out they still won’t be able to enforce this blatantly unconstitutional law. The state’s lawyers will read the whole thing looking for ways to argue this differently if (or when) the US Supreme Court decides to hear their appeal.
But anyone wanting to know how this turns out for Florida’s public service bigots won’t have to dip too far into the 85-page ruling. By the middle of the fourth page, you’ll know what you need to know. From the decision [PDF]:
When several groups of professors challenged Florida’s new restrictions, the State cast about for an existing case or doctrine that could support its speech ban in the university setting. Finding none, it tried to marry public-employee speech cases with government speech doctrine, resulting in a new rule: if the government pays a professor’s salary, it has total control over her classroom speech.
That is not a blessed union. Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth. This new rule also runs headlong into the Supreme Court’s repeated, if imprecise, endorsements of academic freedom. If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it.
The injunction stays in place, presumably forever. While there are certainly some members of the Supreme Court who would love to tie their precedent and ethics into knots just to block speech they personally don’t like, this doesn’t appear to be the case they’d choose since it would likely generate precedent that might work against the bigots in the Supreme Court when they go to bat for bigots in the White House.
The appeals court has already blocked the other part of the law — the clauses attempting to regulate speech in private workplaces by forbidding mandatory meetings that promoted views the GOP doesn’t agree with. The last ditch attempt to claim the government can regulate speech in college classrooms doesn’t fare any better, even if it’s not quite as clear cut in terms of constitutional violations as telling private companies what they can and can’t say.
Claiming that all speech by government employees is “government speech” is a non-starter. The state couldn’t find precedent to support its novel take on the First Amendment. And the few odds and ends it threw at the judicial wall in hopes of seeing something stick failed as well.
More credibly, the State explains that it also seeks to protect its “most cherished ideals.” But that justification fails, too. Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them.
The court spends 50 pages dismantling each and every one of the state’s arguments, citation by citation. There can be no doubt the law is unconstitutional, not that it matters to the state, which has already announced it will be appealing the ruling. But this is censorship that can’t even be bothered to pretend it’s anything but the very thing it claims it is opposed to. “Individual Freedom Act” (as it was renamed), my ass.
Florida seeks to strip public university professors—and by extension their students—of the ability to fully engage with ideas that are, for better or for worse, very popular in some academic circles. The State asks us to consider its rules a means of targeting discrimination. But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind.
There’s a dissent that runs nearly as long as the opinion. Written by Judge Barbara Lagoa (someone with a history of anti-trans rulings), it’s 30+ pages of wasted time. To paraphrase: none of these plaintiffs should have been granted standing, much less relief and also: [bunch of Justice Alito quotes].
Doesn’t really matter, since it’s the dissent but I guarantee if anyone’s going to start polling for an en banc rehearing, it’s going by Judge Lagoa.
Suck it, DeSantis. Until that happens (if it ever will), your stupid hateful law is as dead as the eyes of your sycophants.
Filed Under: 11th circuit appeals court, 1st amendment, florida, free speech, ron desantis, stop woke act, woke
Writers Guild Of America Also Sues Paramount, Citing Looming Merger Layoff Bloodbath
from the do-not-pass-go,-do-not-collect-$200 dept
Not long after twelve states sued Paramount claiming its $111 billion merger with Warner Brothers would harm market competition, the Writers Guild of America (WGA) filed their own lawsuit, warning that the massive debt load from the media industry’s latest megamerger will result in an ocean of layoffs for an already reeling U.S. entertainment industry.
The lawsuit notes that the current film industry is dominated by just five players: Disney (ABC), NBCUniversal (Comcast), Sony, Paramount (CBS), and Warner Brothers. Comcast recently restructured to make it easier to sell off its NBC and Universal properties, opening the door to a lot of very quick consolidation in addition to the speedy Skydance/Paramount/Warners merger.
“With fewer competitors, the merged Paramount-Warner Bros. entity would have both the incentive and the ability to lower costs by suppressing writers’ wages and reducing output. Writers will be paid less and have fewer employment opportunities,” the WGA complaint said.
Supreme Court precedent (for whatever that’s worth anymore) has long indicated that any merger
yielding a post-merger market share exceeding 30% (which this deal does) is presumptively anticompetitive. The WGA notes that muted competition will result not just in fewer jobs, but lower wages and fewer opportunities for creatives overall across both film and television.
“With fewer competitors, the merged Paramount-Warner Bros. entity would have both
the incentive and the ability to lower costs by suppressing writers’ wages and reducing output.
Writers will be paid less and have fewer employment opportunities,” the lawsuit states.
While Paramount would like to pretend this is a debate, and most U.S. press outlets bury the lede, U.S. history is vividly clear on the harms created by media consolidation. That was most recently personified by AT&T’s disastrous acquisitions of DirecTV and Time Warner, which resulted in upward of 50,000 layoffs, higher prices, worse service, and no shortage of shuttered creative projects.
The rushed acquisitions of both CBS/Paramount and Warner Brothers — all so Larry Ellison’s son can play media mogul — have created a particularly heavy debt load of $79 billion. Such debt is always paid for by consumers and labor, often in more ways than one.
Paramount has promised to release 30 theatrical releases per year and to keep them in exclusively for theaters for 45 days, but as I’ve long made clear, pre-merger promises are utterly worthless. Especially in a country dead set on steadily lobotomizing its public interest regulators. As we’ve seen with consolidation in sectors like wireless, America’s favorite pastime is pretending to ignore the harms of pointless mergers.
This is a pretty clear example of the kind of consolidation that should be blocked for the benefit of labor, markets, and consumers, but despite a lot of rambling pretense about a love of free market competition and entrepreneurial spirit, America consistently fails to walk the talk on antitrust, the impact of which is abundant and getting exponentially worse under pay-to-play Trumpism.
Filed Under: antitrust, consolidation, film, hollywood, jobs, larry ellison, layoffs, media, mergers, movies
Companies: paramount, warner bros., writers guild
Sony Deletes A Bunch More Movies From The Accounts Of People Who ‘Bought’ Them
from the poof-it's-gone dept
In all of our discussions about how the digital revolution has created a system in which people don’t actually own the things they think they’re buying, I get particularly frustrated by the lack of change in it all. We’ve spilled much ink complaining that this clearly anti-consumer practice needs to be done away with, where an unsuspecting public thinks they’re buying “a thing” only to learn months or years later that “the thing” they bought was actually a license to use/view/listen to another “thing”, and that license exists at the pleasure of the company that collected the money for it. And if you want to see the lack of change or action really honed in upon, let’s take a look at Sony’s PlayStation Store.
In 2022, due to “evolving licensing agreements” with distributor StudioCanal, German and Austrian users had hundreds of movies disappear from their PS accounts, long after buying them through Sony. Then in 2023, it happened again in America, specifically when Sony ended its licensing agreement with Discovery after the Warner Bros. merger, which, of course, has since been bought by Paramount Skydance. That resulted in customers having hundreds and hundreds of episodes of TV shows deleted from their accounts. Nowhere in any of this were there refunds, of course. No recompense at all, actually. Just a thing you thought you’d bought taken away from you by the very people you thought you bought it from.
And now it’s happening again. Due to another licensing agreement fallout with StudioCanal, hundreds of movies and TV shows are being ripped from the accounts of PS Store customers, and there appears to be fuck all that they can do about it.
This news was brought to people’s attention by X user somatyk, who posted the notification they had received from PlayStation this week. Along with the unapologetic news that the purchased movies would be deleted from their account on September 1, the message concluded with, “Click here for a full list of affected titles that will no longer be supported. Thank you.” The same warning is now reproduced in full on the PlayStation website, along with the list of 551 films and TV series that are being pulled from people’s libraries.
As Kotaku notes later in their post, part of what is striking in all of this is the sheer mundanity of the announcement. Because there have been no consequences, or any action at all from the public or government, Sony treats this all as if it’s perfectly normal and no big deal. You can tell me all you want about how the Ts and Cs in these purchases do in fact note that the nature of the purchase is a temporary licensing of the content for an undetermined time period… but I can promise you that the public in general doesn’t understand that. They think they’re buying a thing, not a license.
And that’s because of the purposeful obfuscation of that fact. Sony damned well knows that the vast majority of people don’t read those Ts and Cs. It knows that the public largely doesn’t understand how these backend licensing agreements with distributors work, or that they even exist. And Sony isn’t exactly putting out a big blinking sign on its store pages informing the public of all of this. Instead, the company is only too happy to collect money from a public that is being purposefully kept ignorant of what they’re buying.
Of course, when you scroll past the endless EULAs when you first use your PlayStation, and click “Agree” the first time you load the store, you’re unwittingly agreeing that nothing you buy is really truly bought, and that it can be taken away from you at any point, and there’s nothing you can do. The same is true of your games.
This, too, will probably pass without any real action. The government has done its best to gut our consumer protection agencies, so they won’t be any help. Angry customers won’t coalesce into activism or action, most likely. And I’ll probably be writing another one of these posts in a couple of years when it all happens again.
But it shouldn’t be that way. There are common sense things that can be done to better inform the public. Rules for how the store should inform people with each and every purchase. Someone just needs to demand it be done.
Filed Under: eula, ownership, playstation, playstation store, video games
Companies: sony, studiocanal
A Troubling Milestone: Most Supreme Court Rulings Are Secretive Votes With Little Justification
from the shadow-court dept
This story was originally published by ProPublica. Republished under a CC BY-NC-ND 3.0 license.
In its term that ended last October, the Supreme Court passed an important milestone that went unnoticed: For the first time, it decided more cases by secret ballot, and with few signed opinions, than it did for cases argued in open court.
These decisions, which make up the court’s “shadow docket,” are a fast-track way to get a decision from the top court. They rarely include arguments, have limited briefings and have expedited timetables, and justices infrequently provide explanation of how they voted or to cite legal precedent.
The Supreme Court’s increased willingness to bypass its regular process has empowered President Donald Trump at the same time as the administration has increased use of executive authority. The court has repeatedly green-lit policies of his that lower courts have blocked — and has done so with little to no explanation.
These emergency decisions have thrown lower courts’ processes into turmoil and have sometimes directly contradicted longstanding legal precedent. The outcomes have been consequential: The high court has used the process to limit federal courts from issuing nationwide injunctions and diminished Congress’ authority over federal agencies, and it has allowed for the detention of American citizens by immigration agents.
ProPublica analyzed over two decades of Supreme Court rulings, which cover all of the years under Chief Justice John Roberts and go as far back as the online archives allow. We found that when the last court term ended, justices had issued 63 orders on the shadow docket, as opposed to 56 orders on the more traditional merits docket — where the court hears oral arguments scheduled months in advance and the justices issue signed opinions.
Legal scholars and court watchers were shocked by our finding. They told ProPublica it’s likely the first time in modern history that so many consequential decisions were made in secret by its nine members.
“The patterns show a court going out of its way to enable Trump,” said Stephen Vladeck, a law professor at Georgetown University and a Supreme Court analyst. He said that our findings reinforce the appearance that the justices are voting on their political preferences.
“That’s the real blow to the court’s credibility,” he said.
Representatives from the Supreme Court did not respond to a detailed list of questions.
In a statement, a spokesperson for the White House wrote, “President Trump has faced a historically unprecedented number of injunctions by liberal lower court judges, the same judges who would rather push their own policy schemes and undermine the Administration’s lawful agenda. President Trump will not stop implementing the America First initiatives on which he was elected.”
For the First Time in Two Decades, Decisions on the Supreme Court’s Shadow Docket Outnumber the Merits Docket
There are two ways to get a decision from the Supreme Court. One is to exhaust your appeals to lower courts and ask to argue your case in front of the high court. The justices determine whether to take the case on, and if they do, lawyers argue their case in front of them. The other is to petition the justices directly via the emergency docket — to freeze a lower court ruling or government policy while the case goes through appeal.
The appeals to the emergency docket have long outnumbered those to the merits docket, but most are procedural requests or requests to stay execution for capital offenses. When those are removed, what’s left is known as the shadow docket — cases that seek to skip the usual order of things and ask for a quick ruling from the court’s justices.
The modern shadow docket was born in 2016 when the Supreme Court issued an emergency stay against President Barack Obama’s Clean Power Plan, experts say. Papers obtained by The New York Times show that liberal justices at the time urged Roberts not to decide the case on an emergency basis because it broke with longtime precedent. The conservative justices, meanwhile, forcefully argued that the president’s plan would eventually be overturned by the court anyway and that it would put too much of a burden on the energy industry.
Driven by its numerous losses in lower courts, the current Trump administration appeals to the emergency docket significantly more often than previous administrations, and the court has increasingly agreed to take quick action on its appeals.
The Obama and George W. Bush administrations together filed just eight petitions in 16 years. The Trump administration filed 32 in 2025 alone, an analysis by the Brennan Center for Justice found.
The increased willingness of the Roberts court to intervene on Trump’s behalf — as well as in other issues that favor conservatives and Trump allies — has upended American life, said Donald Ayer, a former deputy solicitor general and deputy attorney general who served under the Reagan and George H.W. Bush administrations.
“On many subjects of real importance to our future, they’ve demolished what used to be the law,” he said.
Public scrutiny of the shadow docket ramped up in September 2021 after the Supreme Court used it to issue a one-paragraph, unsigned opinion that further rolled back abortion rights established in the 1973 Roe v. Wade ruling. In the order, the court refused to block Texas’ Senate Bill 8, the “Heartbeat Act,” which banned abortion after an embryo’s cardiac activity is detectable, typically at six weeks of pregnancy and before many people know they are pregnant. Protests erupted nationwide, and the Senate held a hearing on the shadow docket.
In an unusual public acknowledgement, Justice Elena Kagan referenced the shadow docket by name in her scathing dissent, accusing the majority of green-lighting a “patently unconstitutional law” with only a cursory review in less than 72 hours.
“In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend,” Kagan wrote.
That an opinion was even issued and that four of the justices signed their names to it was uncommon. On the shadow docket, justices do not have to make their votes known. In rare cases, their votes are revealed in terse indications that they grant or deny the application, or even more rarely, as an opinion. We found that just 17% of votes cast had any sort of public record of a vote or opinion.
Responding to public criticism, Justice Samuel Alito contended that the court isn’t to blame for the rise in shadow docket cases. “We do not file these emergency applications,” he said. “Parties file them.”
The debate has continued. “We cannot expect the public to have faith in our judicial system if, without clear explanation, we consistently green-light harmful acts that do real damage,” Justice Ketanji Brown Jackson said during an April speech on the shadow docket at Yale Law School.
Until this past Supreme Court term, emergency applications fluctuated year to year but showed no clear upward trend. The applications are given first to a single justice, who decides if a case is worth referring to the full court. In recent years, justices have referred more of such appeals for a review and vote by the full court.
Last term, when there were both more cases and more referrals to the full court, the appeals to the shadow docket finally overtook those to the merits docket.
Emergency Applications Referred for a Full Court Vote Have Risen Sharply
The cases were consequential. On June 23, 2025, after a lower court had ruled that eight men being deported to South Sudan should have due process, the Supreme Court intervened after a request from the administration to stop that order. The men were deported. The majority didn’t issue an opinion justifying its ruling.
Three months later, the Supreme Court voted to allow immigration agents to stop people based on racial or ethnic characteristics while still-ongoing litigation against it proceeded. To justify the decision, Justice Brett Kavanaugh wrote a rare shadow docket opinion that people who were in the country legally would be “free to go after the brief encounter.” These became known as “Kavanaugh stops.” Last year, ProPublica found more than 170 citizens who had been stopped and detained by ICE agents. The more than 50 Americans held even after agents learned of their citizenship were almost all Latino.
And in May, while an election in Louisiana was already underway, the justices allowed the state to immediately redraw its electoral map, removing one of the two majority-Black voting districts. Louisiana can now use that map for the 2026 midterms as part of a nationwide redistricting battle for control of the House of Representatives — an effort touched off by Trump’s call for Republican-led states to create more safe seats for themselves.
Roberts once signed on to a Kagan dissent that assailed the shadow docket. But our analysis found that he has referred more substantive cases for a vote by the full court than any other justice, going from just one in the 2005 term when he joined the court to nearly half of all referrals in the last term.
There is an additional difference between the shadow docket and the merits docket. After the court holds public argument, the justices’ ultimate merits decisions are closely watched and extensively covered by the press. The summer’s “decision season,” when the final and most significant rulings come down, has a predictable cadence that ends when the justices go on summer recess. Not so with the shadow docket. Increasingly, the justices are making big decisions after they’ve issued their final merits docket decision, when public attention has waned.
A group of Democrats led by Rep. Jamie Raskin, D-Md., have sponsored legislation to make the shadow docket more transparent.
Raskin told ProPublica that the court’s legitimacy has fallen with every significant decision made without “real opinions or analysis.”
“Lower federal courts have been deciding against the Trump administration in an overwhelming majority of cases with weighty and well-reasoned opinions,” Raskin said in a written statement. “Yet when things get to the twilight zone of the shadow docket, the Supreme Court is overturning 100-page opinions with a flippant sentence or two.” He added, “The result is a body that looks less like a Supreme Court and more like a Royal Court rubber stamping the madness and folly of the Trump Administration.”
“The jurisprudence of the Roberts Court today is as murky as the green algae water in the Reflecting Pool.”
How We Reported This Story
To compare the number of cases on the Supreme Court’s shadow docket to the traditional merits docket, we compared emergency applications listed on the court’s online docket search with counts of decisions compiled in Penn State’s Supreme Court Database (Version 2025 Release 01). For the merits docket, we counted only signed decisions in argued cases, the typical format for those rulings.
The court’s online docket goes back to the year 2000, but our analysis looks at Supreme Court terms from October 2003 to October 2025, where emergency applications are easily identified by the letter “A” in their docket number.
We identified more than 27,000 emergency applications during that period, including thousands of requests that are not commonly understood to be a part of the shadow docket. Most appeals to the emergency docket are the type of requests that were traditionally handled there: procedural requests, such as extending the time to file, and requests to stay execution for capital offenses. The remainder are the focus of our reporting.
Substantive Shadow Docket Cases Are a Small Fraction of All Emergency Applications
We defined a substantive application on the shadow docket as any filing where the full court was asked to intervene in the traditional appeals process, such as staying a lower court’s order.
Most of the cases we excluded are decided by just one justice, each of whom oversees one or more federal circuits and has the power to refer filings to the wider court. When the cases are referred to the full court, they are the subject of a vote by the justices. We ran our approach by multiple experts, all of whom found it sound.
A filer can appeal to another justice if their application is denied. The next justice to receive the application always refers it to the full court. We did not include these renewed applications because our analysis found the court has never granted one.
The court has labeled capital punishment cases only since the October 2017 term. To identify them prior to that, we flagged applications for stays of execution. We then manually reviewed every case referred to the full court. For applications decided by a single justice, we used an AI model to flag potential capital cases by examining the parties on the application and the relief requested. The model flagged over 60 possible capital cases, and those were manually reviewed. Despite our effort, it is possible some capital cases may still be included in our final tallies before the 2017 term.
Although rulings on the shadow docket are typically unsigned and do not include vote breakdowns, we were able to identify how a justice voted in some cases. The analysis is based on either the opinions issued by the justices, most of which are dissenting opinions, or if the justice indicated they would have granted or denied. In some decisions, the justices issued a statement not attached to either a grant or denial. We did not record these as votes.
Filed Under: emergency docket, merits, secrecy, secret law, shadow docket, supreme court, transparency
Fifth Circuit Looks Like It’s Ready To Roll Back Its Decision Recognizing Due Process Rights For Migrants
from the fix-is-in dept
Well, it was fun while it lasted. And even while it still (theoretically) lasts, it’s really nothing more than the Fifth Circuit saying rights can violated, but only for 90 days at a time.
Earlier this month, the Fifth Circuit managed to deliver a very un-Fifth Circuit decision, finding in favor of rights and against the Trump administration’s war on migrants. As almost every court has recognized for decades, people residing in the United States — even illegally — have constitutional rights. The Fifth Circuit has long been one of the exceptions to this rule.
The administration chose to ignore this because doing would slow its horrific roll towards an eventual evacuation of everyone who wasn’t white enough for this administration to recognize as Americans. To justify ignoring long-held constitutional rights, the administration first invoked the Alien Enemies Act (best known for our atrocities against Japanese migrants and residents during World War II). Then it pretended that anyone who had been in the country for weeks, years, or decades should be treated the same as anyone apprehended while illegally crossing the border.
The Fifth Circuit couldn’t bring itself to rule that migrants arrested long after they’ve crossed the border have access to their due process rights on day one of their apprehension. Instead, it decided (without really explaining why) these rights don’t actually kick in until someone has been in custody for more than 90 days.
That meant nothing would really change. People arrested by ICE and other DHS components all over the nation would be hastily relocated to the Fifth Circuit (Texas, Louisiana, Mississippi) ASAP to prevent them from challenging their detention for 90 days. Presumably, the administration hoped to have most of these detainees deported long before they were allowed to invoke their constitutional rights.
Apparently, 90 days of denying rights isn’t long enough. It looks as though enough judges in the Fifth Circuit think these rights should never be available to migrants. Less than a month after handing down its decision, the Fifth Circuit has declared it will be taking another pass at this.
A majority of the circuit judges in regular active service and not disqualified having voted in favor, on the Court’s own motion, to rehear this case en banc,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs. Pursuant to 5th Circuit Rule 41.3, the panel opinion in this case dated July 02, 2026, is VACATED.
So, we’re now back to the Fifth Circuit status quo. The government can ignore constitutional rights on day one and continue ignoring them until they’ve ejected migrants into whatever war-torn human rights hellhole will have them.
Sure, there’s a very slim (I’d say “nonexistent”) chance the petitioners for rehearing think the Fifth Circuit screwed up by giving the administration a 90-day head start on ignoring constitutional rights. But come on. We’re talking about the Fifth Circuit here.
The most likely reason for this rehearing action is that a lot of Fifth Circuit judges think the Trump administration shouldn’t have to recognize the rights of migrants ever, which is why they want to take another stab at setting precedent that would cover some of the DHS’s largest detention facilities.
The best case scenario would appear to be the circuit upholding its previous ruling, with its (unconstitutional) 90-day 14th Amendment snooze button. The worst case scenario is the entire panel agrees with this hideous, racist administration and says anyone in the country without documentation should be treated like someone caught in the act of crossing the border illegally. I’m not holding my breath for a positive outcome. I need that breath for stuff that’s actually feasible and foreseeable.
Filed Under: 14th amendment, 5th circuit, dhs, due process, ice, mass deportation, trump administration
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