RELIST WATCH ByJohn Elwood on Jan 12, 2022 at 3:35 pm

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

At this Fridays conference, the Supreme Court will vote to grant the last cases that will be argued this term (barring expedited briefing on some emergency matter). The court has an unusual number of relists this week, including an unusual number of cases that would be blockbusters if the court decides to take them. There are so many relists 17 cases, and thats if you only count a cluster of 33 (!) Oklahoma cases as a single case that I have to be extremely summary. Its like the long conference in January.

I could reach the limit of our Twitter-shortened attention spans just talking about relists that explicitly ask the Supreme Court to overrule its precedents. There are a pair of cases asking the court to invalidate Harvards and the University of North Carolinas affirmative action programs, and in the process overrule Grutter v. Bollinger, which upheld diversity-based affirmative action programs. The cases are Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina, 21-707. The court earlier asked for the U.S. solicitor general to weigh in on the Harvard case; she recommended that the court deny review, saying that the challengers seek[] to relitigate case-specific factual disputes that both lower courts resolved against them and that the case would be a poor vehicle for reconsidering Grutter. Well see if the court is persuaded.

Then theres 303 Creative LLC v. Elenis, 21-476, presenting a recurring question the court first confronted in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about whether an artist (here, a website designer) can be compelled to perform work celebrating a same-sex wedding that is inconsistent with their sincerely held religious beliefs. The case also presents the question whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable underEmployment Division v. Smith, and if so, whether the Supreme Court should overruleSmith. (The court faced but did not decide the issue of whether to overrule Smith in last terms Fulton v. City of Philadelphia, Pennsylvania.)

Two terms ago, the Supreme Court held by a 5-4 vote in McGirt v. Oklahoma that Congress had not clearly disestablished a Creek Nation reservation covering much of eastern Oklahoma, and thus the area remained Native American territory for the purposes of a federal criminal law, eliminating the states ability to prosecute crimes there. With the death of Justice Ruth Bader Ginsburg, who provided a necessary vote to the McGirt majority, and the confirmation of her replacement, Justice Amy Coney Barrett, the state is now asking the court to reverse itself. The state has 33 petitions pending in criminal cases asking that McGirt be overruled so many petitions they have two petitions just involving respondents named Jones, and another two with respondents named Martin. The state has designated Oklahoma v. Castro-Huerta, 21-429, the lead petition, but if the court decides to grant review, it could choose a different vehicle. If the court grants review, it may want to ask the parties to brief the additional question whether Oklahoma was required to file an environmental impact statement in view of the sheer tonnage of paper filings.

Moving on to potential blockbusters that dont explicitly call on the court to overrule precedent. Sackett v. Environmental Protection Agency, 21-454, is a long-running Clean Water Act dispute that has already been the subject of one major Supreme Court decision. The Sacketts are a husband and wife who are challenging the governments assertion of CWA authority over their home. They invoke Rapanos v. United States in which a splintered majority of the Supreme Court held that theCWA does not regulate all wetlands. Justice Antonin Scalia, writing for a four-justice plurality, concluded that only wetlands that have a continuous surface water connection to regulated waters may themselves be regulated under the act. Justice Anthony Kennedy concurred only in the judgment, applying a more fact-intensive (critics would say vague) significant nexus test. The Sacketts argue that the court should adopt the pluralitys narrower test as the governing standard.

There are also four cases challenging the constitutionality of the Indian Child Welfare Act of 1978. Congress passed ICWA to respond to concerns that state child-welfare practices were causing large numbers of Native American children to be inappropriately removed from their families and tribes and placed with non-Native foster families or adoptive parents. ICWA established minimum federal standards for most child-custody proceedings involving Native American children. The en banc U.S. Court of Appeals for the 5th Circuitstruck down some provisions of ICWA as unconstitutional. According to the 5th Circuit, some provisions violate the 10th Amendment because they impermissibly commandeer the states. Those provisions, it concluded, include a requirement that state agencies bear the cost and burden of providing expert testimony to support placing Native children in foster care, a requirement that state agencies provide remedial services to Native families, and a requirement that state agencies maintain certain child-placement records.

The 5th Circuit also affirmed the district courts judgment that ICWAs preference for adoptive placement with other Indian families and Indian foster home[s] violates the equal-protection component of the Fifth Amendment. The 5th Circuit upheld other provisions of the act. The court has relisted a total of four petitions, two filed by the federal government and a group of Native American tribes seeking to revisit 5th Circuit holdings invalidating provisions, and two filed by the state of Texas and private challengers seeking to overturn parts of the 5th Circuit decision upholding other ICWA provisions. The petitions are Haaland v. Brackeen, 21-376, Cherokee Nation v. Brackeen, 21-377, Texas v. Haaland, 21-378, and Brackeen v. Haaland, 21-380.

In January 2019, the Supreme Court denied apetition for certiorarifiled by a football coach at a public high school in Washington state who claimed that he lost his job because he prayed on the field after games. At that time, four justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh notedthat they concurred in the decision to deny review because the factual record was too undeveloped to grant preliminary relief to the coach, emphasizing that they did not necessarily agree with the decision (much less the opinion) below. Since then, the district court and U.S. Court of Appeals for the 9th Circuit have again rejected the coachs claims. InKennedy v. Bremerton School District, 21-418, Coach Kennedy is back, asking the justices to review whether his conduct is private and protected by the First Amendment.

California has enacted a number of laws over the years that regulate the sale of items ranging from foie gras to fuel based on the method of production that the state believes is too carbon-intensive. Challengers regularly argue that such laws violate so-called dormant commerce clause principles by discriminating against (or seeking to alter) disfavored out-of-state production methods. A number of challenges to such laws have reached the court over the years, but National Pork Producers Council v. Ross, 21-468, is the first one since 2014 (the foie gras case) that I can recall being relisted. California bans the sale of pork in the state unless the sow from which it was derived was housed with 24 square feet of space and in conditions that allow the sow to turn around freely without touching her enclosure. Challengers argue that almost no farms satisfy those standards, and farmers almost universally keep sows in individual pens that do not satisfy those standards during the period between weaning and confirmation of pregnancy, for animal health and business reasons. Challengers argue that the law is impermissibly extraterritorial because virtually all the pork consumed in California is raised outside the state.

With that, we have to go into full Relist Watch Select mode if we are going to have any hope of ever getting through all these relists. The remaining relists raise the following issues. Each of them is fascinating on its own terms; I give them brief treatment only because there is such an embarrassment of riches this week.

Thats all for this week. Until next time, stay safe!

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199Issues: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violatingTitle VIof the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.CVSG: 12/8/2021(relisted after the Jan. 7 conference)

Students for Fair Admissions, Inc. v. University of North Carolina, 21-707Issues: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.(relisted after the Jan. 7 conference)

Wisconsin v. Jensen, 21-210Issues: (1) Whether a persons statement expressing fear about a possible future crime is testimonial under the Sixth Amendments confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the persons statement aimed at ending an ongoing emergency is non-testimonial.(relisted after the Jan. 7 conference)

George v. McDonough, 21-234Issue: Whether, when the Department of Veterans Affairs denies a veterans claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of clear and unmistakable error that the veteran may invoke to challenge VAs decision.(relisted after the Jan. 7 conference)

Haaland v. Brackeen, 21-376Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 namely, the minimum standards ofSection 1912(a), (d), (e), and (f); the placement-preference provisions ofSection 1915(a) and (b); and the recordkeeping provisions ofSections 1915(e)and1951(a) violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWAs placement preferences for other Indian families and for Indian foster home[s]; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.(relisted after the Jan. 7 conference)

Cherokee Nation v. Brackeen, 21-377Issues: (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act provisions 25 U.S.C. 1912(a), (d), (e)-(f),1915(a)-(b), (e), and1951(a) as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs claims that ICWAs placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred by affirming (via an equally divided court) the district courts judgment invalidating two of ICWAs placement preferences, 25 U.S.C. 1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard ofMorton v. Mancari.(relisted after the Jan. 7 conference)

Texas v. Haaland, 21-378Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in theIndian Child Welfare Actand its implementing regulations violate the Fifth Amendments equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congresss child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.(relisted after the Jan. 7 conference)

Brackeen v. Haaland, 21-380Issues: (1) Whether theIndian Child Welfare Act of 1978s placement preferences which disfavor non-Indian adoptive families in child-placement proceedings involving an Indian child and thereby disadvantage those children discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWAs placement preferences exceed Congresss Article I authority by invading the arena of child placement the virtually exclusive province of the States, as stated inSosna v. Iowa and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.(relisted after the Jan. 7 conference)

Kennedy v. Bremerton School District, 21-418Issues: (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.(relisted after the Jan. 7 conference)

Nance v. Ward, 21-439Issues: (1) Whether an inmates as-applied method-of-execution challenge must be raised in a habeas petition instead of through a42 U.S.C. 1983action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmates first habeas petition.(relisted after the Jan. 7 conference)

Sackett v. Environmental Protection Agency, 21-454Issue: WhetherRapanos v. United States in which the Supreme Court held that theClean Water Actdoes not regulate all wetlands, but without a majority opinion explaining why that is so should be revisited to adopt the pluralitys test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.(relisted after the Jan. 7 conference)

National Pork Producers Council v. Ross, 21-468Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Courts decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim underPike v. Bruce Church, Inc.(relisted after the Jan. 7 conference)

303 Creative LLC v. Elenis, 21-476Issues: (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artists sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable underEmployment Division v. Smith, and if so, whether the Supreme Court should overruleSmith.(relisted after the Jan. 7 conference)

Vega v. Tekoh, 21-499Issue: Whether a plaintiff may state a claim for relief against a law enforcement officer under42 U.S.C. 1983based simply on an officers failure to provide the warnings prescribed inMiranda v. Arizona.(relisted after the Jan. 7 conference)

Shoop v. Twyford, 21-511Issues: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in28 U.S.C. 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.(relisted after the Jan. 7 conference)

Love v. Texas, 21-5050Issues: (1) Whether Texas Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Loves rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Loves rights under the Sixth and 14th Amendments to the United States Constitution.(relisted after the Jan. 7 conference)

Oklahoma v. Brown, 21-251; Oklahoma v. Kepler, 21-252; Oklahoma v. Hathcoat, 21-253; Oklahoma v. Mitchell, 21-254; Oklahoma v. Jackson, 21-255; Oklahoma v. Starr, 21-257; Oklahoma v. Davis, 21-258; Oklahoma v. Howell, 21-259; Oklahoma v. Bain, 21-319; Oklahoma v. Perry, 21-320; Oklahoma v. Johnson, 21-321; Oklahoma v. Harjo, 21-322; Oklahoma v. Spears, 21-323; Oklahoma v. Grayson, 21-324; Oklahoma v. Janson, 21-325; Oklahoma v. Sizemore, 21-326; Oklahoma v. Ball, 21-327; Oklahoma v. Epperson, 21-369; Oklahoma v. Stewart, 21-370; Oklahoma v. Jones, 21-371 ; Oklahoma v. Cooper, 21-372; Oklahoma v. Beck, 21-373; Oklahoma v. Jones, 21-451; Oklahoma v. McCombs, 21-484; Oklahoma v. McDaniel, 21-485; Oklahoma v. Shriver, 21-486; Oklahoma v. Martin, 21-487; Oklahoma v. Fox, 21-488; Oklahoma v. Cottingham, 21-502; Oklahoma v. Martin, 21-608Issue: Whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 7 conference)

Oklahoma v. Williams, 21-265; Oklahoma v. Mize, 21-274; Oklahoma v. Castro-Huerta, 21-429Issues: (1) Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (2) whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 7 conference)

Knight v. Pennsylvania, 20-7805Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was documented prior to age 18 to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Holcombe v. Florida, 21-53Issues: (1) Whether a criminal defendant establishes an actual conflict of interest that adversely affects counsels representation when the attorney engages in joint and dual representation i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the presumed prejudice conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsels conflict of interest a conflict which is described by the prosecutor as not waivable and the judge thereafter fails to inquire into the nature and scope of the conflict.(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164Issues: (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a churchs determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light ofFulton v. City of Philadelphia, because Virginia has enacted a system of individual exemptions to its property tax law, and the city may not refuse to extend that [exemption] system to [the Church] without compelling reason.(rescheduled before the Oct. 8 and Oct. 15 conferences; relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Arrow Highway Steel, Inc. v. Dubin, 21-27Issues: (1) Whether the dormant commerce clause may be used to invalidate the application of a states neutral, non-discriminatory tolling statute to defeat the enforcement of a former residents stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.(relisted after the Dec. 3, Dec. 10, and Jan 7 conferences)

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Blockbuster watch: Affirmative action, same-sex weddings, and other big relists - SCOTUSblog

Kentucky state Sen. Danny Carroll is back this year with another controversial proposal that would shield personal information about a wide range of "public officers" and their families from public view and would let them sue journalists and otherswho spreadsuch details.

The Kentucky Press Association sharply criticized the legislation this week, saying it's unconstitutional and "a broadside attack on the First Amendment" that violates Kentuckians' due process rights and "will chillthe ability of citizens and journalists alike to speak and write about" public servants.

"It will conceal from the public basic information that has long been available without incident and is essential for citizens to oversee elected and appointed public officials paid with their tax dollars," the KPA's general counsel, Jon Fleischaker and Michael Abate, said in a statement.

"It also will jeopardize the ability of businesses, agenciesand courts to perform routine public functions that depend on the free flow of information regarding public records concerning birth, death, marriage, insurance, property ownership, taxesand political contributions."

Latest: Kentucky lawmakers move to recoup state's $15 million Braidy Industries investment

Carroll's new legislationresembles a hotly debatedbill he filed last year.The legislature approveda modified version ofthat proposal, but Gov. Andy Beshear was able to veto it.

Carroll, R-Benton,was unavailable for comment Wednesday, but an assistant said hehas been working on this legislation with Rep. John Blanton, R-Salyersville. Blanton was involved in modifying Carrolls public records bill last year. He could not immediately be reached for comment.

He also sponsored a highly criticized proposal in 2021that would have made it a crime to insult a law enforcementofficerto the point it could provoke a violent response from them. That bill passed only the Senate, and he recently filed a largely similarbillfor this session.

Carroll's newpublic records legislation, Senate Bill 63, would:

SB 63 also would prohibit public agencies from disclosing "personally identifiable information in records that would reveal the address or location of a public officer" if that person says they don't want that information released.

Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, told The Courier JournalCarroll's latest bill would upend Kentucky's open records law and morph it into a non-disclosure law.

Personal information already is well-shielded by the current law, said Bensenhaver, a former assistant attorney general, adding:"The truth is the privacy exception to theopen records law is so well-developed, and so well-interpreted and understood, that it will in most instances protect this type of information."

More: Gov. Andy Beshear proposes billions for health and human services in 2-year budget plan

She also predicted Carroll's bill would be struck down in court if it becomes law,with taxpayers footing the bill for the legal proceedings."This bill cannot survive any kind of challenge," she said.

Fleischaker and Abate, of the Kentucky Press Association, said the way thisbill is writtencould leadpublic officers to claim basic details, such as their name or employer,must be withheld.

Among other consequences,they said: "This could result inagencies repeatedly withholding public records that have been critically important to exposing egregious abuses by law enforcement officers..."

They also criticized the bill's incredibly broad definition of "immediate family member" as well as the wide array of data the bill classifies as "personally identifiable information."

Fleischaker and Abate raised major concerns as well about how the bill would let public officers and theirso-called immediate family membersfile civil lawsuits against peoplefor posting "personally identifiable information" about them.

Kentucky CRT: Kentucky's anti-'critical race theory' bills draw ire of students, educators

Carroll's bill says someone can be sued for thatif:

"This significant financial liability may be imposed with merely a subjective assertion that the sharing of the information placed the public officer in reasonable fear of physical injury or harm to their property," Fleischaker and Abate said. "Citizens and journalists simply will not know whether they can talk about, or report on, public officials, employees, or controversies that happen to turn on the myriad categories of information protected by the law."

Morgan Watkins is The Courier Journal'schief political reporter. Contact her atmwatkins@courierjournal.com. Follow her on Twitter: @morganwatkins26.

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Lawmaker is back again with plan to shield records on Kentucky public officers - Courier Journal

A New Hanover County Board of Education member said a resolution to censure her wont deter her from her mission to hold those on the board, and in the school district, accountable.

The board passed a resolution to censure member Judy Justice in a 5-2 vote Friday afternoonafter Justice was accused of revealing confidential personnel information to someone who was not permitted to have it. Justice said after the meeting she felt the move was personal, and she plans to continue pushing for more transparency from the district going forward.

Im fighting the battles trying to help the district, and when they fight me, theyre in essence fighting against doing good things for the district, Justice said.

Justice and board Vice Chairwoman Stephanie Walker were the only two members to vote against the censure. A censure does not result in any action it's simply a tool to let Justice know the board does not support or agree with her actions.

Related coverage: New Hanover school board member under scrutiny says censure is 'deflecting from the real issues'

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Kraybill said after the meeting she was made aware of allegations Justice had violated the code of ethics by disclosing personnel information in the fall. The board previously passed a vote of no confidencein June after then-Chairwoman Stefanie Adams accused Justice of lying during a board meeting.

DuringFriday'smeeting, the board went into a closed session to discuss personnel matters that could not be disclosed to the public. After, Justice was given a chance to address the board and thepublic andbrought forth a list of 10 ways other board members had violated the boards code of ethics that had gone unaddressed.

This witch hunt is personal and everyone on this(board)knows it, Justice said during her statement. It is time we did our job for the people and serve the people, not some peoples individual agendas.

Justice also alleged Superintendent Charles Foust had accused her of harassing him. Attorney Colin Shive interrupted Justice, saying he would advise her to move on from that subject to avoid revealing further personnel information. Kraybillsaid the subject was not germane to the topic at hand.

Justice went on to say it was her first amendment right to bring up the accusation and said she had no intention of bringing up confidential personnel information.

As Justice continued her statement about the alleged harassment, Foust interrupted her, saying he had 275 emails to prove she had harassed him.

I will provide emails if thats what you want, Foust said. You cannot and you will not do that.

Call to audience: Is New Hanover school board trying to censor public comments? Chairwoman proposes change.

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Justice said the emails she sent him had to do with her asking him to do his job. She said after the meetingFoust has not communicated with her in months, though its district policy that the superintendent communicates regularly with members of the board. She alleged he does not respond to her emails or phonecalls, andsaid thats concerning as shewas elected to represent the public before the school district.

Kraybill quickly called the meeting to recess, and she and Foust went to a separate room to speak with Shive. When they returned, Shive called Justice back and spoke with her for several minutes behind closed doors. Walker also went with Justice to speak with Shive.

When Justice returned, she said she felt the censure vote was taking away from important issues going on in the district, like the continued strain on staff and students from the COVID-19 pandemic and decades of sexual abuse allegations against former teachers and administrators.

Several community members attended the meeting as well, holding signs reading I support Judy and attempting to speak with board members while they recessed.

How is this whats best for the kids? one audience member asked theboard, butdid not receive a response.

Kraybill said after the meeting the vote was not personal, and she hopes the board can be unified moving forward to get to those important topics impacting the district.

The community has been very critical of this board, and boards before us about not being transparent, not handling issues in a timely manner," Kraybill said. When I found out that this had occurred, I just said we need to jump on it and get it resolved.

We've got that behind us, and we should be ready to go,shesaid.

Reporter Sydney Hoover can be reached at 910-343-2339 or shoover@gannett.com.

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'This witch hunt is personal': School board votes to censure member in tense New Hanover meeting - StarNewsOnline.com

The Supreme Court has blocked the Biden administration from enforcing a vaccine and testing mandate for large employers, reports the New York Times. The mandate would have required employees either to be vaccinated against the coronavirus or participate in routine testing. The vote on the case was 6 to 3, with Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor in dissent.

The founder and leader of the far-right group known as the Oath Keepers was charged with seditious conspiracy in an investigation into the Jan. 6, 2021 attack on the Capitol, writes the Washington Post. Stewart Rhodes was indicted and arrested after a federal grand jury introduced a new set of charges against a small group of Oath Keepers. According to the indictment, Rhodes and 10 other Oath Keepers are allegedly responsible for organizing a wide-ranging plan to storm the Capitol and disrupt the certification of President Bidens 2020 election victory. Rhodes is the most high-profile person charged in the investigation thus far.

Rep. Kevin McCarthy refused an interview request from the House select committee on Jan. 6, reports the New York Times. On Wednesday, the committee sent McCarthy a formal request to be questioned about his knowledge of former President Trumps state of mind and ongoing conduct in the days following the attack on the Capitol. In a letter to McCarthy, the committee wrote that they are particularly interested in discussions he may have had with Trump about the presidents potential removal or resignation from office. In a statement refusing the interview request, McCarthy wrote that the investigation into Jan. 6 is illegitimate and that the committees only objective is to damage its political opponents.

Democrats in the House passed voting rights legislation that combines the Freedom to Vote Act and the John Lewis Voting Rights Amendment Act, according to the New York Times. Both the Freedom to Vote Act and the John Lewis Rights Amendment Act have previously passed in the House and were denied a vote on the Senate floor. The passing of this repackaged legislation comes the day after President Biden delivered a speech encouraging Democrats to eliminate the 60-vote threshold required to end a filibuster, specifically on voting rights legislation. This will be the Senates fifth time voting on such legislation. The previous four attempts to debate the bills have failed due to Republican filibusters.

The Republican National Committee (RNC) stated that it will require Republican presidential candidates to boycott debates conducted by the Commission on Presidential Debates, reports Politico. The threat of boycotting future presidential debates comes after complaints from Republicans in recent years that the commission is biased against GOP candidates. In a letter to the commission, RNC officials wrote that, the RNC has a duty to ensure that its future presidential nominees have the opportunity to debate their opponents on a level playing field, and that, the RNC will take every step to ensure that future Republican presidential nominees are given that opportunity elsewhere.

On Tuesday, the Cybersecurity and Infrastructure Security Agency, FBI and National Security Agency released a jointcybersecurity advisory, reports The Hill. The advisory outlines tactics, techniques and procedures commonly used by the Russian state, in addition to threat detection actions, guidance on incident response and measures to mitigate cyberthreats. The agencies released the advisory to warn organizations of cyber threats and help the cybersecurity community reduce the risk presented by these threats.

Negotiations with Russia on tensions surrounding Ukraine continue in Vienna at the Organization for Security and Cooperation in Europe (OSCE), writes the Wall Street Journal. Delegations from Ukraine were present at the meeting, marking the first time this week that Kyiv has had a seat at the negotiating table. Russias deputy foreign minister reported that if the U.S. military activity continues to provoke and pressure Russia, Moscow may potentially deploy its troops to Venezuela and Cuba in retaliation.

Russian-led troops have begun to withdraw from Kazakhstan following violent protests and political unrest in the nations capital, writes Reuters. Upon their departure, Kazak President Kassym-Jomart Tokayev thanked the Russian-led troops for their assistance with stabilizing the country. Vladimir Putin declared Russias mission in Kazakhstan to be a success and expressed hope that this practice of using our armed forces will be studied further. The Russian defense minister reported that the withdrawal of Russian-led troops will be completed by Jan. 19.

In the first criminal trial concerning state-led torture in Syria, a German court has convicted a Syrian colonel for crimes against humanity, according to BBC News. Anwar Raslan was sentenced to life in prison for his involvement in the torture of more than 4,000 incarcerated people at a Syrian prison. UN rights chief Michelle Bachelet said that Raslans conviction was a landmark leap forward in the pursuit of truth and justice. This ruling marks the first time a criminal court has recognized that the Assad regime has committed crimes against humanity against Syrian citizens.

ICYMI: Yesterday on Lawfare

Jen Patja Howell shared an episode of the Lawfare Podcast in which Natalie Orpett, Benjamin Wittes and Alan Rozenshtein discuss Trump v. Thompson, presidential immunity and the First Amendment.

Paul Rosenzweig analyzed the problems with the U.S. approach to homeland security.

Hadley Baker shared an episode of Lawfare No Bull that provides a straightforward account of Tuesdays Senate Judiciary Committee hearing on the threat of domestic terrorism

Howell also shared an episode of Rational Security in which Alan Rozenshtein, Quinta Jurecic and Scott R. Anderson sat down with Natalie Orpett to discuss the weeks biggest national security news stories.

Jordan Schneider shared an episode of ChinaTalk that features a discussion with Stony Brook Universitys Michael Barnhart about what U.S.-China relations can learn from U.S.-Japan relations in the leadup to WWII.

Elena Kagan and Alan Rozenshtein analyzed the five-hour Thompson v. Trump oral argument that took place on Jan. 10.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Check out relevant job openings on our Job Board.

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Hours into a marathon oral argument on Jan. 10, Judge Amit Mehta of the U.S. District Court for the District of Columbia observed that if there is one thing this hearing has shown it's that this is not an easy case. For nearly five hours Judge Mehta heard arguments about whether former President Donald Trump, Rep. Mo Brooks, Rudy Giuliani and others could be held civilly liable for their role in the Jan. 6 Capitol insurrection. The main lawsuits, brought by Reps. Bennie Thompson and Eric Swalwell, allege violations of 42 U.S.C. 1985(1), a Reconstruction-era statute that created civil liability for conspiracies to prevent public officials from holding any office or discharging any duties.

Addressing issues common to the three lawsuits, Judge Mehta wrestled with formidable defenses raised by Trump and his co-defendants: chiefly that Trump and Books are immune from civil liability for actions taken as part of their official duties, and that the defendants statements leading up to the siege of the Capitol could not satisfy the elements of conspiracy, especially to the extent that the statements were protected speech under the First Amendment.

Immunity

Trump lawyer Jesse Binnall argued for an expansive, highly formalistic vision of presidential immunity, relying on the Supreme Courts ruling in Nixon v. Fitzgerald that presidents are entitled to absolute immunity from civil liability for actions while in office that fall within the outer perimeter of their official responsibility. The crux of Binnalls argument was that the court must entirely ignore the content of Trumps speech on Jan. 6his remarks at the Ellipse and on Twitter over the course of the dayand look only at the presidents conduct to analyze whether he was acting in his official capacity. Because Trump was addressing the American people, Binnall argued, he was acting within his official duties as president and must enjoy immunity, especially since the subject of his speech, electoral integrity, is a matter of immense public concern.

Judge Mehta was skeptical of this all-encompassing vision of the presidents official duties, which potentially would make the president immune from civil liability anytime he opens his mouth. Judge Mehta pushed Binnall on whether there is anything that a president could do or say while in officefor example, as part of a campaignthat would not be immune from liability under his expansive theory of presidential immunity. Binnall said that he could not name an example of anything the president could say that would not fall within his official duties under this theory, but that perhaps signing a lease on a campaign office would not fall within his responsibilities as president.

But if Binnall failed to give Judge Mehta a reasonable standard for the scope of presidential immunity, the plaintiffs struggled to offer one that would withhold immunity in this case while nevertheless being consistent with precedent. The plaintiffs argued that Trump should not enjoy immunity because fomenting an insurrection against Congress was clearly unconstitutional and thus outside his official duties. But as Judge Mehta noted, Fitzgerald held that presidential immunity did not depend on the legality of the presidents action. The plaintiffs were left to argue that Trumps conduct surrounding Jan. 6 was so outrageous that it was clearly beyond the scope of his presidential responsibilities. But where exactly to draw that line remained unclear.

The question of the scope of official duties was also at the center of Brooks claim that he should be immune from liability under the Westfall Act, which requires the government to act as the defendant when federal employees are sued for tort liability for official actions. The Department of Justice joined the plaintiffs in arguing that Brookswho spoke before Trump on Jan. 6 and declared that Todays the day American patriots start taking down names and kicking asswas campaigning and therefore acting outside the scope of his official duties; as a result, Brooks should not be immune from civil liability. But Brooks, who argued on his own behalf, emphasized that his motivation in speaking at the Jan. 6 rally was not simply to support Republican candidates in future elections, but also to convince his fellow congresspeople to vote against the certification of the electoral college votes.

First Amendment

The other major hurdle for the plaintiffs is the First Amendment, which generally protects the sort of political speech that Trump, Brooks and the other rally speakers engaged in (and to that extent cannot serve as the predicate for the plaintiffs conspiracy charges). The plaintiffs emphasized that the defendants could be held liable under even the highly speech-protective standard of Brandenburg v. Ohio, which permits liability for advocacy of the use of force or of law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

In a heated exchange, Binnall, Trumps lawyer, repeatedly pointed to several inflammatory statements that the Democratic plaintiffs had themselves previously made, arguing that if Trumps language was found to be incitement to violence here, but similar language used by others elsewhere was not, the court would be failing to apply the First Amendment equally to Democrats and Republicans. Judge Mehta sharply rebuked Binnall for engaging in whataboutism and for suggesting that he was judging Trump and his co-defendants speech more harshly because of their party.

Like the discussion of presidential immunity, the First Amendment portion of the argument was inconclusive. On the one hand, Trumps words did not explicitly call for violence and were on their face far less inflammatory than what the Supreme Court upheld in Brandenburg and in many cases since. On the other hand, the broader context of Trumps speech, from his months-long campaign to discredit the election to his failure to act after the attack on the Capitol began, suggests, as Mehta noted, that Trumps speech went beyond ordinary political rhetoric, even if it was not the sort of speech that typically qualifies as conspiracy to commit violence.

Ultimately, and despite hours of questioning, Judge Mehta did not tip his hand as to how he will rule on the many complex legal issues that the lawsuits raise. But given the high political and legal stakes, its unlikely that Judge Mehtas decision will be the last word. The parties will almost certainly appeal any outcome to the U.S. Court of Appeals for the D.C. Circuit, and this case may well end up before the Supreme Court, especially on the central issue of presidential immunity.

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After Oral Argument, the Future of Thompson v. Trump Remains Unclear - Lawfare

After Donald Trumps second impeachment trial ended in acquittal, Senate Minority Leader Mitch McConnell (R-Kentucky) suggested that the former president could still be held civilly or criminally liable for his role in the Capitol riot that happened a year ago last Thursday. But as three lawsuits that a federal judge considered this week show, those options require proving that Trump deliberately provoked the violence that day, which is a tall order.

The Trump supporters who broke into the Capitol, interrupting the congressional tally of the presidential election results, came to Washington, D.C., at his behest. They were motivated by Trumps fantasy of a stolen election, which he had been promoting for months and reiterated in a fiery pre-riot speech at a rally a mile and a half from the Capitol.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today, Trump said. While he did not advocate violence, it was foreseeable that at least some of his supporters would interpret his exhortation to fight like hell in defense of a supposedly imperiled democracy as a justification for the use of force.

Still, there is a big difference between reckless rhetoric, which is protected by the First Amendment, and the criminal conspiracy described in lawsuits filed by Rep. Eric Swalwell (D-California), other House Democrats and two Capitol Police officers. All three complaints allege that Trump violated the Ku Klux Klan Act of 1871 by conspiring to use threats, force and intimidation to stop government officials from carrying out their duties.

To prove that claim, the plaintiffs must do more than show that Trump ginned up his supporters outrage with false election fraud claims, or even that he did so in circumstances where he should have known violence was likely. They have to show that the Capitol riot was the culmination of a plan to violently disrupt the ratification of Joe Bidens victory, a scheme in which Trump himself intentionally participated.

Capitol Police officers James Blassingame and Sidney Hemby also claim that Trump violated a provision of the D.C. Code that makes it a criminal offense to willfully incite or urge other persons to engage in a riot. In addition to the requirement that the offense be committed willfully, prosecution for incitement is constrained by the First Amendment.

Even advocacy of illegal behavior, the Supreme Court ruled in the 1969 case Brandenburg v. Ohio, is constitutionally protected unless it is not only likely to incite imminent lawless action but also directed at doing so. Another exception to the First Amendment, for true threats, involves statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

In a brief supporting Swalwells lawsuit, three law professors, joined by legendary First Amendment attorney Floyd Abrams, say these exceptions likely apply here. But whether that is so hinges on what we surmise Trump was thinking when he gave his speech.

Trump explicitly urged Mike Pence, for instance, to reject electoral votes for Biden, a power the vice president did not actually have. But Trump did not threaten Pence with an act of unlawful violence, and inferring such a threat requires speculation about what Trump meant to communicate in light of what his supporters did afterward.

It is likewise not at all obvious that Trump wanted to cause a riot, an outcome that failed to accomplish his ostensible goal, led to his second impeachment and provoked harsh criticism from Republican legislators such as McConnell. If this was all part of a plan, it was a pretty stupid plan.

The urge to punish Trump for his reckless rhetoric is understandable but dangerous. If his opponents succeed, they may regret establishing a precedent that speakers who neither practice nor preach violence can be held legally liable for the conduct of listeners inspired by their words.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum.

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Proving Trump conspired to incite the Jan. 6 insurrection is a tall order - Chicago Sun-Times