There are bad takes on AI, and then there are bad takes on AI. Some of you think my takes on the use of AI in gaming are bad. Cool, love you, kiss kiss. I think the takes from folks on both extremes, the never-AI-ers and the AI evangelists, are pretty awful most of the time. I’ll accept your love and kisses in return. And I particularly don’t like it when those in gaming journalism act like there is zero place for this technology in the industry nearly as much as I absolutely hate it when those within the industry itself fuel the concerns about it by claiming AI will do all the things most gamers feverishly don’t want it to do. I can assure you it can be very frustrating being me when it comes to this particular topic. And, no, I don’t expect any sympathy over it.

But what Tim Sweeney just said about Steam’s use of AI disclaimers on its platform might well be one of the dumbest fucking things I’ve ever heard someone in the industry say.

In the past few months, video game publishers and developers have been going all in on generative AI with the justification that it speeds up and improves development. In the attempt to help gamers make informed choices about their purchases, Valve has started enforcing AI disclosures on Steam, which Epic Games CEO Tim Sweeney believes is irresponsible of the company, as it has a negative impact.

“It’s unfortunate that so many developers now are put into this position. If you want to launch a game, and get it as widely publicized as possible, you’ve got to put it on Steam so people can wish list it, and if you want to play it on Steam, then you have to get this Scarlet Letter of AI attached to your product, and now there is a hater community trying to kill the game,” Sweeney said to PC Gamer in a new interview. “I think it’s really irresponsible of Valve. They shouldn’t do it, because it makes it much, much, much harder for a game developer to have a chance of success. You have to choose from either not using tools that can make you way more productive, and probably failing due to competition that does.”

First, to quibble with the article: claiming that “video game publishers and developers” writ large are “going all in” on generative AI is just plain wrong. In fact, there are plenty of developers and publishers out there that have flatly sworn off the use of this technology entirely. And that’s a good thing, to my way of thinking. Every experiment needs a control group, after all.

But the real issue here is just how tone deaf and idiotic it is for Sweeney to chide a rival platform for the severe crime of informing customers about the content of the games they purchase and how they were created, specifically on a hot button issue like the AI in gaming. While I, too, have made it clear that I think pre-judging every game that made any use of AI at all in development is a mistake, the cure for it is certainly not obfuscating that information from the very people that pay for these games.

Customers are supposed to be making informed buying decisions. I didn’t really think that was a matter open for debate. And Steam making that information transparent to the public is quite literally the opposite of “irresponsible”. It’s being very responsible to Steam’s customers. As for calling such disclosures a “scarlett letter”, well, I think the lady doth protest too much, as it were.

Especially when it’s obvious why Sweeney is taking this position.

To be fair, it’s not surprising to see Tim Sweeney staunchly defending the use of AI in game development, as Epic Games’ upcoming Unreal Engine 6 is going all-in with AI integration.

Now, Sweeney went on to talk about how generative AI can be used by developers to reduce the need for game makers to buy pre-made assets off of asset stores, content libraries, and reduce the economic costs for developing a game as a result… and I think those arguments are interesting and worthy of debate.

But pretty blatant attempts to try to inoculate the ecosystem against backlash for games produced by Epic’s engine by purposefully making the consumer less informed is an absolute loser of an argument.

Legal systems have always struggled to keep up with rapid technological change, and things are no different in the world of generative AI. There are still relatively few rulings on the new issues that the roll-out of AI-based services is raising. That makes a ground-breaking judgment from a court in Germany particularly important. It concerns the AI Overview that sits at the top of the Google’s search results. The Decoder summarizes the court’s ruling:

The Regional Court of Munich hit Google with a temporary injunction barring the company from spreading false claims about two Munich-based publishers through its AI-generated search overviews (case no. 26 O 869/26). The court classified Google as a direct infringer because the “AI overview” is its own content, not just a list of search results.

Google’s AI overviews had falsely tied two publishing companies to scams, subscription traps, and shady business practices for certain search queries. According to the court, the AI mixed up information about other, genuinely sketchy companies with the plaintiffs and drew connections that didn’t appear in any of the linked sources. The publishers sent Google a cease-and-desist letter, but Google didn’t respond appropriately.

The legal innovation here is that the local German court held Google liable for the content of its AI Overview. Unlike traditional search results, which simply point to external sources of information, Google’s AI Overview made statements that were original, the court said:

Google’s AI overviews work nothing like traditional search results, the court argues. The AI rewrites and judges results “in its own words and according to its own structure,” the ruling says. In the case at hand, for example, it opened with confident claims like “Yes, [company] is known for dubious business practices,” then built its own structure with a summary, red flags for the alleged scam, and tips for users.

The court also found that the AI overview made claims “that are not even made in the search results.” None of the linked sources drew any connection between the plaintiffs and the shady companies the AI mentioned. The court called these “the defendant’s own statements.”

Google argued that people using its search engine could check the results, but the court dismissed the idea that this was the responsibility of the users. Leaving aside the fact that research from the Pew Research Center last year found that “Google users are less likely to click on links when an AI summary appears in the results,” there is also the difficulty of checking statements that have been made up (as in this case), which therefore come with no reference links. The court also dealt with the issue of free speech protection for AI-generated content:

An AI’s opinion is “not the expression of an acquired conviction of the persons expressing it, but the result of an algorithm,” the court wrote.

Offering AI-powered research is “above all an expression of Google’s business activities” and “at most a secondary expression of an interest in being able to freely express one’s opinion and beliefs.”

In a statement given to The Decoder, Google said “We invest deeply in the quality of AI Overviews to ensure that the overwhelming majority of responses provide accurate information, and they are designed to reflect the information that exists on the web.”

Since there is no way to ensure that AI responses are 100% correct, this judgment is a big problem for Google, not least because the company plans to place AI Overviews at the heart of its new AI-saturated search engine, as Techdirt reported recently. Not surprisingly, Google has announced that it will appeal against the ruling, which comes from a local German court. If a higher court upholds the judgment, one solution would be for Google to remove AI Overviews in Germany. That would be messy, but doable. But it’s not clear how other AI companies such as chatbots could do the same, since the AI-generated response generally forms the basis of the whole service. Some might choose to discontinue their operations completely in any jurisdiction that adopts a similar position to the Munich court. That would make the roll-out of international services more difficult.

In a post on his blog, the security guru Bruce Schneier points out that if the ruling stands and is adopted elsewhere, it could have important implications not just for things like Google’s AI Overviews and chatbots, but also for the increasingly popular AI agents:

More generally, liability concerns could mean that many current use cases for agents won’t be commercially viable. Companies may not be able to profitably operate AI lawyers, doctors and media influencers if they are held responsible for what they say and do.

Schneier says that he is “OK with this outcome”:

There’s nothing in the law that requires us to accommodate AI systems if they are fundamentally untrustworthy, just as we don’t need to accommodate untrustworthy human systems. Any company that won’t stand by the statements its agents make—whether human or AI—doesn’t deserve users’ time or money.

Clearly this question of AI and agentic liability requires urgent legal clarification. The German decision should at least help to concentrate people’s minds on the topic.

Follow me @glynmoody on Mastodon and on Bluesky.

While we’ve been discussing a bunch of other Supreme Court end-of-term decisions this week, we should also call out two decisions the Supreme Court thankfully decided not to make. These non-decisions continue to help preserve First Amendment speech protections.

First, and most importantly, they rejected Alan Dershowitz’s attempt to appeal his laughably embarrassing SLAPP suit against CNN, which was filed in the hopes of getting it before this Supreme Court as part of the ongoing and extremely dangerous project by the rich and powerful to dismantle the “actual malice” standard found in NYT v. Sullivan. If you want to learn more about that dangerous project, listen to the podcast I recorded with reporter David Enrich, whose book, Murder the Truth, goes deep on this issue.

Dersh seemed to really hope that his case would be the one to overturn Sullivan, but it’s not to be. The Supreme Court denied cert. Of course, with that denial, Justice Clarence Thomas decides to pen another whiny blog about how much he hates the “actual malice” standard. He cites his own previous whining as well as his mentor’s, former Judge Laurence Silberman, who picked up the same cause soon after Thomas starting yelling about it.

The “actual malice” standard for public figures “bears ‘no relation to the text, history, or structure of the Constitution.’” Berisha v. Lawson, 594 U. S. ___, ___ (2021) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 2) (quoting Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251 (CADC 2021) (Silberman, J., dissenting)….

Instead, Thomas believes that public figures deserve extra special protection from critics, again citing his own previous whining:

Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby, 586 U. S. 1172, 1177 (2019) (THOMAS, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice standard for public figures.

Thankfully, seven other Justices have no interest in this. However, Thomas did get Gorsuch to sign on to this, which perhaps isn’t surprising, as he’s joined Thomas’s anti-actual malice crusade in the past. However, in Enrich’s book, he uncovers that Gorsuch’s hatred for “actual malice” was based on a study… that was wrong. Apparently Gorsuch hasn’t adjusted his position, even though the data he has relied on has been proven to be incorrect. Not great, but at least this misinterpretation hasn’t infected others on the court yet.

The actual malice standard is what makes First Amendment speech protections function in practice — it’s the mechanism that keeps powerful people from drowning critics in expensive litigation. I get that Clarence Thomas hates the fact that people criticize him and his rich and powerful friends, but that’s a reason for him to go retire somewhere, not to rewrite one of the core planks that makes the First Amendment work.

The other denial is a bit less eventful. The Court refused to hear an appeal from Donald Trump on his $5 million loss (by jury verdict) in one of the defamation suits filed by E. Jean Carroll against him:

In November, Trump came to the Supreme Court, asking the justices to hear his appeal. He contended that Carroll’s lawyers should not have been allowed to introduce testimony by other women who also alleged that Trump had assaulted them, as well as the 2005 “Access Hollywood” tape in which Trump bragged about grabbing women by their genitals.

In her brief responding to Trump’s petition, Carroll argued that even if the jury should not have been allowed to consider the evidence, it ultimately would not have made a difference because the rest of her case was so strong. She asked the justices to deny review.

On Monday, the justices did so, without a noted dissent from the denial.

Of course, this is just one of two separate cases that Trump lost to Carroll on, and he’s also appealing the other one — the $83 million verdict — and that’s still pending. However, for now Trump appears shocked that his buddies on the Supreme Court didn’t get him out of this particular pickle. Once again, nothing short of total, unconditional loyalty will ever satisfy Trump.

In the meantime, though, we have the Court passing on these two cases, both of which might have messed with the basic standards regarding defamation. Passing on both means that, for now, the Supreme Court hasn’t taken a sledgehammer to First Amendment protections.

Plenty of people are going to disagree with this headline. But why should I bother defending it when I can let the government dig its own hole?

From Executive Order 14367, issued by President Trump last December:

Illicit fentanyl is closer to a chemical weapon than a narcotic.  Two milligrams, an almost undetectable trace amount equivalent to 10 to 15 grains of table salt, constitutes a lethal dose.  Hundreds of thousands of Americans have died from fentanyl overdoses.

The manufacture and distribution of fentanyl, primarily performed by organized criminal networks, threatens our national security and fuels lawlessness in our hemisphere and at our borders.  The production and sale of fentanyl by Foreign Terrorist Organizations and cartels fund these entities’ operations — which include assassinations, terrorist acts, and insurgencies around the world — and allow these entities to erode our domestic security and the well-being of our Nation.  The two cartels that are predominantly responsible for the distribution of fentanyl in the United States engage in armed conflict over territory and to protect their operations, resulting in large-scale violence and death that go beyond the immediate threat of fentanyl itself.  Further, the potential for fentanyl to be weaponized for concentrated, large-scale terror attacks by organized adversaries is a serious threat to the United States.  

As President of the United States, my highest duty is the defense of the country and its citizens.  Accordingly, I hereby designate illicit fentanyl and its core precursor chemicals as Weapons of Mass Destruction (WMD).

The Trump administration defending its extrajudicial murder program, currently being carried out in international waters off the shores of South America:

Anna Kelly, a White House spokeswoman, emphasized in a statement late on Wednesday that the strike took place in international waters and did not put American troops at risk. She said that Mr. Trump had directed the attack in “defense of vital U.S. national interests and in the collective self-defense of other nations who have long suffered due to the narcotics trafficking and violent cartel activities of such organizations.”

“The strike was fully consistent with the law of armed conflict,” Ms. Kelly said.

Here’s the Secretary of Defense, claiming the boat strikes referenced above were justified acts of war:

Speaking to reporters Wednesday, Hegseth was asked what legal authority the Pentagon had invoked to carry out its deadly strike on a vessel officials claim was carrying drugs.

“We have the absolute and complete authority to conduct that,” Hegseth said. “First of all, just the defense of the American people alone. 100,000 Americans were killed each year under the previous administration because of an open border and open drug traffic flow. That is an assault on the American people.”

Terrorism and enemy combatants, says the government, in reference to foreign gang members who also engage in drug trafficking:

The administration has designated more than a dozen of the region’s criminal groups as foreign terrorist organizations. Where U.S. border forces once limited themselves to intercepting boats suspected of carrying drugs to the United States, the military has instead been firing without warning on such vessels, including those not obviously headed for the U.S., killing more than 200 people.

Now the targeted killing of Guerrero, without due process and in a foreign country, has further blurred the line between how the U.S. government views Islamic terrorist networks that plot violence against Americans and criminal groups that more often want to sell them drugs. His death was less like the capture of a Latin American drug lord than the remote-controlled assassination of a jihadist leader.

This all seems pretty clear.

1. Drug trafficking is terrorism and an act of war.
2. Drug traffickers are terrorists and enemy combatants.
3. Fentanyl is a weapon of mass destruction.
4. Therefore, anyone involved in distributing this drug is a terrorist.

Here’s the other half of the headline: won’t somebody think about the children? Anne Milgram — who served as the head of the DEA from 2021 to 2025 certainly did. Milgram was the candy-colored clown who insisted the only reason drug traffickers might add color to their fentanyl was to target kids, completely ignoring the fact that even illicit products rely on branding and differentiation to ensure repeat business.

This went on for months. Here’s Milgram insisting multicolored product that sometimes resembled “sidewalk chalk” and other times resembled chewable vitamins existed only to turn kids into addicts or corpses:

“Rainbow fentanyl — fentanyl pills and powder that come in a variety of bright colors, shapes, and sizes — is a deliberate effort by drug traffickers to drive addiction amongst kids and young adults,” DEA Administrator Anne Milgram said in a statement.

Here’s a stupidly credulous Senator Josh Hawley demanding the DEA do more to prevent “rainbow fentanyl” from killing children:

On August 30, 2022, the Drug Enforcement Administration (DEA) issued a warning about so-called rainbow fentanyl, which your agency says is a “deliberate effort by drug traffickers to drive addiction amongst kids and young adults.” The warning noted that the DEA has seized brightly-colored fentanyl in 18 states and that the drug is being found in all forms, including pills, powder, and blocks resembling chalk. Two of the recent seizures occurred in St. Louis, Missouri.

Issuing a warning is a step in the right direction. But it is not enough. We should stop the flow of deadly drugs across from the southern border, seize all rainbow fentanyl contraband, and imprison all who manufacture and distribute these horrible drugs.

And here’s another senator demanding the DEA — and the rest of the federal government — do something (there’s a suggestion it might involve regulating social media services) to keep kids from being killed by “rainbow fentanyl.”

“The flood of counterfeit, fentanyl-laced pills falsely marketed as legitimate prescriptions is driving a dramatic spike in overdose deaths among young people in this country,” wrote Senator Collins.  “This heartbreaking data remarkably predates the infiltration of ‘rainbow’ fentanyl in U.S. markets.  Rainbow-colored fentanyl recovered in Maine has resembled candy and easily could be mistaken for children’s Flintstone vitamins, according to one Maine police chief.”

“While I applaud DEA’s ongoing enforcement efforts and public awareness campaign to educate the public about the dangers of fentanyl and counterfeit pills, the reality is that drug traffickers continue to use social media to advertise and sell drugs to teens and young adults,” Senator Collins continued.  “There is no time for delay.  National trends already show that as the supply of illicit fentanyl increases, so do overdose deaths in Americans of all ages. This crisis requires an all-of-government response, and we must be using every tool in the tool box—including partnerships with the private sector—to stop this scourge of drug poisonings.”

Again, this seems to be pretty basic:

1. Fentanyl is becoming increasingly colorful.
2. Colors attract kids.
3. Kids die.
4. People involved in trafficking fentanyl are killing kids.

Back to the headline, bearing in mind everything detailed above. Absorb the context because here comes the connective tissue:

Even as it battled the deadliest drug epidemic in American history, the U.S. Drug Enforcement Administration permitted hundreds of thousands of fentanyl pills to hit the streets of New Mexico between 2023 and 2025, according to three current and former DEA agents and government records reviewed by The Associated Press.

DEA agents repeatedly monitored shipments of fentanyl pills — but did not seize them — as federal prosecutors sought to bring bigger criminal cases against traffickers of a synthetic opioid that the White House last year designated a ” weapon of mass destruction.”

So… this looks like material support of terrorism? To use the government’s own heated rhetoric, deliberately allowing fentanyl to end up in the hands of American citizens is the equivalent of supporting enemy forces, perhaps with the added bonus of helping them kill more children.

It certainly had a noticeable effect in New Mexico, where most the drugs were ignored by the DEA who theorized it could get better busts if it endangered more Americans:

Albuquerque, which has a neighborhood so besieged by drugs it’s known as “War Zone,” and other regions in New Mexico remain at the epicenter of the fentanyl epidemic. While overdose deaths nationwide fell 14% last year, government data show New Mexico tallied a 21% spike.

And I’m going to stick with my headline, despite what the DEA thinks of me:

“Public descriptions suggesting that DEA knowingly permitted fentanyl to reach communities are false and fundamentally mischaracterize the facts,” DEA spokesperson Amanda Wozniak wrote in an email. She said the investigations involved court-authorized wiretaps “in which agents and prosecutors conducted real-time surveillance, intelligence gathering, and operational analysis targeting larger drug trafficking organizations.”

The first sentence has nothing to do with the second. The first sentence asserts that facts already in evidence are false. Records and personal statements by DEA officials make it exceedingly clear the DEA allowed large amounts of fentanyl to flow into New Mexico because the amounts were somehow too small to be worth seizing.

Agents, for example, deciphered coded chatter over cellphones and closely surveilled a transaction at a mobile home park in Albuquerque in June 2023, according to a 66-page report reviewed by AP. Agents wrote in the report that traffickers delivered 74,000 pills as part of that deal, a figure federal prosecutors later confirmed in a court filing.

Days earlier, another DEA report showed, investigators watched the same distribution ring deliver a spare tire hiding another suspected fentanyl shipment that similarly went unseized.

The second sentence of the DEA’s defense of its actions is meaningless. It’s like a cop shop defending police brutality by explaining that the department performs hundreds of traffic stops a year as part of its investigative efforts. We all know the DEA engages in long-term investigations using surveillance, wiretaps, and intelligence gathering. None of that is being disputed here. What people want to know is why the DEA felt a quantity like 74,000 pills should be ignored just to extend an investigation.

Let’s work backwards from the DEA’s own celebratory math, as delivered by Trump’s ex-Attorney General Pam Bondi:

During a televised Cabinet meeting the following day, she effusively praised Trump for the accomplishments of his first 100 days. “Since you have been in office,” she gushed, “your DOJ agencies have seized more than 22 million fentanyl pills, 3,400 kilos of fentanyl, which saved—are you ready for this, media?—258 million lives.” That figure amounts to roughly three out of every four Americans, or nearly the entire adult population according to the most recent U.S. Census.

258 million lives divided by 22 million pills equals roughly 11.7 lives per pill. Here’s how 74,000 pills (and that wasn’t even the only shipment the DEA ignored!) adds up in DEA Maths:

In case you can’t see or read the calculator screenshot, the death toll is 867,818. That’s more than double the number of lives lost by US soldiers in World War II (418,500). And at least the soldiers who died in WWII weren’t children, who are apparently the new hot thing for international drug cartels.

The DEA will keep trying to talk its way out of this. Every time it does, it needs to be shut down. It’s aiding and abetting the flow of illicit drugs into the US. Even if the ultimate goal is bigger busts and taking down cartel leaders, it can’t pretend it’s not part of the problem. Especially not in New Mexico, where its hands-off tactics appear directly related to an anomalous spike in fentanyl overdoses.

The Luminar Neo Bundle includes a one time purchase of the software, an introductory course on how to use it, and 6 add-ons. Luminar Neo is an easy-to-use photo editing software that empowers photography lovers to express the beauty they imagined using innovative tools. Luminar Neo was built from the ground up to be different from previous Luminar editors. It keeps your favorite LuminarAI tools and expands your arsenal with more state-of-the-art technologies and important changes at its core. Meanwhile, the recognizable Luminar design is retained, making Neo simple to use and fun to explore. It’s on sale for $80.

Note: The Techdirt Deals Store is powered and curated by StackSocial. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Look, 5-4 Supreme Court decisions count just as much as 9-0 ones, and a 5-4 decision getting it right is still a win, but for a number of reasons, the 5-4 decision in Trump v. Barbara, regarding the issue of birthright citizenship is terrifying.

This isn’t a complicated issue. This isn’t an issue that should even be before the Supreme Court at all. The text of the Fourteenth Amendment is crystal clear:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The history of the Fourteenth Amendment and every single damn case about this particular issue from after it was added to the Constitution until now has been abundantly, ridiculously clear: anyone born in the US is a US citizen. The only exception is kids of diplomats who are not considered “subject to the jurisdiction thereof.” The whole question of whether a child born in the US to foreign-born parents is a citizen was settled clearly in 1898 in US v. Wong Kim Ark and literally no one has seriously questioned this issue at all since then.

Until a group of freaking racists took over the White House and wanted to drum up hatred of foreigners and anyone not white. The Stephen Miller-led White House issued a hilarious/terrifying executive order pretending to overrule the clear meaning of the Fourteenth Amendment. That executive order was quickly challenged, and a year and a half later, the Supreme Court has ruled that the Fourteenth Amendment means what everyone knew it meant from the beginning. But just barely.

Chief Justice John Roberts, joined by Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, issued what should have been a 9-0 one page ruling saying “yes, we can fucking read the plain text of the Fourteenth Amendment, and it says exactly what it says, and no, the President can’t overturn that by executive order, no matter how racist he is.”

Instead, in the past 17 months or so, a whole industry of grifting academics came out of the woodwork to manufacture, from absolutely nothing, made up claims that the interpretation of the Fourteenth Amendment was in dispute. Justices Gorsuch, Thomas, and Alito used that shoddy scholarship, among other things, to justify their arguments that Stephen Miller is somehow right about the Fourteenth Amendment not applying to a situation where it clearly applies.

Justice Kavanaugh “concurred” in part on the judgment, but not on the basic Constitutional interpretation, which is the whole ball game.

Kavanaugh’s faux-concurrence is particularly insane, given that one of the reasons we hear from the conservative wing of the Supreme Court regarding things like the Second Amendment and abortion rights is that due to “history and tradition,” we have to interpret these parts of the Constitution as they were originally interpreted, not based on any changes in the world. Except, here, Kavanaugh is suddenly, magically, stupendously, a believer in the “living Constitution” where he gets to rewrite the meaning based on different circumstances.

Could you imagine Kavanaugh writing this in a case about gun control, for example:

The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.

Kavanaugh now insists that these “modern situations” include the rise in undocumented immigration to America that means we need to completely revise our understanding of the Constitution. Somehow “modern situations” don’t apply to things like assault weapons as compared to muskets when we’re talking about the Second Amendment.

Jay Willis at Balls and Strikes gets the situation exactly right:

The fact that Trump’s nakedly xenophobic attack on birthright citizenship earned four votes—four fucking votes—is a national embarrassment, and a heart-stoppingly frightening signal about what may lie ahead if Trump (for any reason) gets to replace Roberts or one of the liberal justices in 2027 or 2028. The upshot of Barbara is that, as a country, we are but one MAGA dead-ender away from a Court that is willing (and maybe excited) to undo Reconstruction, just as soon as Republican politicians bring a case that will allow them to do it. 

For more than two centuries, the Court has proclaimed itself to be the ultimate authority on the law, with the unreviewable power to say what it means, no matter how unpopular its rulings might be. These days, what passes for “courage” from the Court is an opinion that makes clear to Trump that there is a limit to the justices’ willingness to allow him to unilaterally amend the Constitution, but that he is really, really close to persuading them to get rid of it.

Willis also points out that, even if the majority ruling got this correct, tons of people had to suffer for a year and a half waiting for what should have been dismissed out of hand:

Trump v. Barbara is the stupidest Supreme Court case in recent memory: the nation’s nine fanciest lawyers spending God knows how many hours pondering a question about the Fourteenth Amendment’s meaning that a bright sixth-grader could have answered without difficulty in roughly 30 seconds. The fact that a bare majority of the Court eventually arrived at the howlingly obvious, so-simple-it-feels-like-a-trick-question result—and only after months of forcing noncitizen parents to wonder if their children would soon be rendered stateless—is not evidence of the justices’ boundless intellect or analytical rigor. It is a damning indictment of an institution that is teetering on the brink of stuffing the entire enterprise of constitutional governance in the garbage.

And, there is fear among many that this 5-4 ruling is just a prelude to something way worse. Elie Mystal at The Nation makes this point clearly:

Trump tried to change the definition of citizenship by executive fiat in clear opposition to the text of the 14th Amendment, and he almost got away with it. This time. And we know there will almost certainly be a next time; the Supreme Court loves to give Trump multiple bites at the apple whenever he is trying to graft bigotry onto the Constitution.

As has happened in the past, the dissents laid out the road map for how Trump or future bigots might get around the Citizenship Clause. Trump tried to take out both children of people with temporary status (like people on work visas) and children of people without proper status (like people who have overstayed travel visas or crossed the border in secret), and that appears to have been his mistake. The dissenters have different arguments for why the children of people who have temporary status should be denied rights than for why children whose parents are out of status (or never had status) should be denied those rights. It’s possible, even likely, that if Trump attacks these two groups separately, he’ll squeak his way to five votes on one or both fronts.

Yes, a 5-4 decision is still a win and it still counts in the books as a win, but the fact that Republicans like JD Vance are already salivating about how they just need to put one more MAGA-brained Justice on the Court and they get to overturn the Fourteenth Amendment as soon as possible should be a warning to everyone who actually believes the Constitution should be seen as saying what it clearly says.

In that video, JD Vance admits that MAGA is just salivating about getting another vote on the Supreme Court to try again on this issue. He literally says, if they can get one of the five Justices who signed onto the majority off the Supreme Court before Trump leaves office, he hopes they can get someone else on instead who will flip the vote.

As Moira Donegan notes, a “5-4 ruling on birthright citizenship is an invitation to try again.” And they will try.

This kind of ruling is why the entire judicial system needs a radical rethink, and quickly. As we’ve seen this week, the Supreme Court is clearly broken. And a 5-4 decision, while still a win for common sense and the plain reading of the Constitution, feels like a hollow victory — one that is likely not long for this world without a radical change to the way the Supreme Court functions.

Last fall, Ezra Klein was getting a lot of attention for his book Abundance, which basically argued that America had become bureaucracy-obsessed and fallen out of love with building things. I thought it was mostly simplistic cack, downplaying or ignoring the fact that the U.S. government has become so blisteringly corrupt, it clearly no longer functions in the public interest.

As a longtime telecom beat reporter I was particularly struck by Klein’s chapter on broadband, which mostly seemed to amplify Republican attacks. One of Klein’s biggest targets was the infrastructure bill and Broadband, Equity, Deployment, and Access (BEAD) program, which was part of the 2021 infrastructure bill, and set aside $42.5 billion for improved internet access.

BEAD was never going to be a poster child for government efficiency. But as I noted at the time, Klein’s criticism of the program was bizarre and simplistic, downplayed why the program was taking so long (we had to remap the entirety of U.S. internet access, for one), and ignored how other legislation that same year (like ARPA) was delivering much of the abundance Klein claimed to be looking for.

I could tell from reading Klein’s Abundance chapter on broadband that he didn’t spend much time talking to telecom policy experts. After Klein’s attacks made inroads on the podcast circuit (including on Jon Stewart’s) they were then picked up again by right wing media, further perpetuating the idea that BEAD was a completely useless boondoggle:

I bring it up because a little more than a year later and this BEAD program really is now a boondoggle under Trumpism, as Sean Gonsalves and I explored in a new feature over at The Verge.

Republicans, it should be noted, voted against the infrastructure bill and ARPA, but can still routinely be found taking credit for the improvements they opposed.

Last election season, Republicans ran on the idea that they’d reshape BEAD and trim the fat. Instead they’ve stripped away all oversight, eliminated any requirements that taxpayer-funded broadband be affordable or equitably deployed, and gone out of their way to redirect money away from future-proof fiber toward Elon Musk and Jeff Bezos low-Earth-orbit satellite broadband networks.

Republicans — and the Joe Rogan infotainment universe — are positively convinced that Starlink is akin to magic. So they’ve decided to throw billions of taxpayer money at Bezos and Musk in exchange for slower, more expensive, congested low-Earth orbit satellite connectivity that chips away at the ozone layer. It’s worth noting they’re being given billions for service that already exists and was already set to be deployed.

In our Verge piece, we talked to minority communities in Louisiana who were slated to get fiber upgrades, but are now being shoveled toward Starlink service (that already existed) thanks to Republican BEAD changes. They are very aware they’re now getting the short-end of the stick:

“The most frustrating part is that it was a zero dollar investment in infrastructure,” Wills told The Verge. “Nothing fundamentally changed. People with Starlink are going to just get mailed a box and many won’t be able to install it. And we still won’t have anybody really served,” leaving the community with “no growth in our economic potential.”

“No money will stay here,” he said. “No jobs will be created from this — no installation jobs, zero construction jobs, or even any small stimulus.”

Republicans are then claiming they “saved taxpayers money” by throwing money at billionaires for satellite broadband they already planned to deploy. States and the Trump administration are now bickering over these $20 billion in “non deployment funds.” Congress said this money had to be used for broadband access; but the law under Trumpism is very clearly optional. It’s a giant mess.

All of this corrupt retooling has caused endless new delays, pushing real-world deployments out by another year or two. As of this writing, the $42.5 billion program has only provided new (fixed wireless) connections to a handful of homes in Louisiana and Nebraska (the Trump administration tried to use this as a press op highlighting how amazingly successful their revamp has been).

Due to the higher costs of deployment created by stupid tariffs and pointless wars, many additional fiber deployment bids originally supposed to be funded by BEAD are likely to go into default and be cancelled, opening up the possibility of Musk and Bezos getting billions more in taxpayer subsidies. It’s expected that this whole mess will get significantly uglier later this year.

Curiously, Ezra Klein hasn’t made a peep. All the press coverage last election season about how BEAD was a boondoggle is nowhere to be found now that the program is a bigger boondoggle than ever. And it’s a bigger boondoggle than ever because the U.S. is too corrupt to function, something that needs to be addressed (and candidly acknowledged by our press) before we can even begin to sniff “abundance.”

I’ve always felt that the abundance movement was an influence campaign by affluent centrists to pre-empt genuine populist progressive reform as the response to authoritarianism. The abundance movement always struck me as Clinton-era vibes-based deregulatory corporatism with a new coat of paint; something seemingly supported by its proponents’ curiously limited attention span.

It should be obvious at this point that JD Vance is a purely political creature. There’s no virtue to find in there, no moral stances firmly taken, nor anything resembling a true political ideology. There is only the attainment and retention of more and more power. You need look no further than Vance’s prior status as a self-affirmed “never Trumper” that compared the current president to Hitler, only to flip-flop completely and become both Trump’s greatest defender and running mate. He wants to be president, of course, and will take whatever action or stance he thinks gives him the best chance to sit behind the Resolute Desk.

Now, I’m not particularly keen on giving free political advice to someone so loathsome, but I don’t think I’m breaking new ground when I say it’s not a great idea for Vance to brag about how this administration has so perfectly neutered the free press that they could do a bunch of Watergates and it wouldn’t be a major issue for them.

Vice President JD Vance on Thursday said the Watergate scandal that brought down President Richard Nixon would have been a blip in today’s news cycle, and he drew parallels between Nixon and President Donald Trump — arguing that both were targeted by “deep state” forces.

“If Watergate happened tomorrow, it would be like a 12-hour news story. The idea that it would have taken down a presidency is crazy,” Vance said.

He went on: “If you look at the story of how the deep state took down Richard Nixon, it’s not all that different from what the same groups of people, the same institutions tried to do to Donald Trump in the first Trump administration.”

On this, Vance is sadly correct on multiple fronts, while incorrect on others. A Watergate scandal today probably wouldn’t get as much attention as it did in the 70s, in large part due to the bifurcation of our news media into one traditional media wing and one plain propaganda wing for the proverbial right. But that’s not a good thing. It’s bragging about the culmination of a long term plan to subjugate the press being that you can pull off wild scandals and get away with it. And if you need proof of that, you need only remember that January 6th happened, Donald Trump attempted to pull off a coup to retain the presidency over the clear will of the voters, and then managed to get elected to office again.

Vance’s comparison of Trump to Nixon is also quite apropos, though it’s quite incredible to see him willing to make it voluntarily. Once again, if you’re making a list of the worst political scandals in United States history, Watergate and January 6th are 1 and 1a, with the only argument being in which order you place them.

But it’s what he gets wrong about Watergate that explains why Vance somehow thinks these are good words to say out loud. The Nixon resignation from office was most certainly not the work of some “deep state.” Quite the opposite, in fact. Nixon used what might be called the deep state, or at least government intelligence services and the Justice Department, to attempt to evade accountability for breaking into the DNC headquarters and bugging them. He was caught attempting to hide and destroy evidence of his involvement in this crime. He’s on tape ordering an end to an investigation into his own reelection campaign. He resigned instead of being impeached. None of the above is a matter of debate.

Which is why, when Vance goes even further and happily compares himself to Nixon, I suggest we take him at his word.

Vance then noted his own similarities with Nixon.

“Young senator, vice president, writes some bestselling books, is hated by the media,” he said. “It kind of sounds like JD Vance. I’ve always liked Richard Nixon.”

Nixon was not a perfectly terrible president, but nobody serious wants to compare themselves to Mussolini over the apocryphal claims that he kept the trains running on time. Until the current president, Nixon was clearly the most disgraced American president ever. Again, I don’t really think that is a matter for debate.

What this smells like instead is Vance attempting to will into existence the “renaissance” he claims Nixon’s legacy is undergoing at the moment. I have not heard of this renaissance until Vance decided to talk about it. Normalizing a scandal-plagued president must surely serve some purpose, but I can already see campaign ads in a few years asking the public if they really want another Nixon president, since that was Vance claims to be.

These are not the most talented people, it is clear. I can’t possibly see the percentage for Vance in trying to frame himself as a modern day Nixon. But I suppose there is some honesty in the claim, for what it’s worth.

Call me crazy, but I tend to think when Supreme Court Justices make a big sweeping statement in one case, they should actually follow it through with other cases. You may recall, for example, that in the Dobbs case, where the right to an abortion was overturned, Justice Samuel Alito took the ‘history and tradition’ test and made it the centerpiece of modern conservative jurisprudence — using it to wipe out a 50-year-old precedent. Specifically, his reason for overturning Roe v. Wade was that he, a very weak amateur historian, could find no support for such a right in the history at the time the 14th Amendment was passed.

That very bad amateur historian shtick was on display again this week in the (otherwise good) decision in Watson v. the Republican National Committee, regarding whether or not the federal government could invalidate mail-in ballots received after election day. The majority, written by Justice Amy Coney Barrett, and joined by Chief Justice Roberts, along with Justices Sotomayor, Kagan, and Jackson, pointed out that (duh!) while the federal government sets the date of the presidential election, the states get to determine how those elections are run, including how the ballots are counted, including absentee ballots.

Barrett goes through the history of how absentee and “mail-in” ballots have been used since the Civil War, and for over a century many states have allowed them to be counted, so long as they were post-marked by election day. And democracy has survived without any indication of any problem with those mail-in ballots arriving after election day.

But, to Justice Alito, this is the end of democracy. In a typically overwrought dissent, he claims that this move (which again, many states started doing over a century ago), upsets the entire concept of an election.

The acceptance of these late-arriving ballots effectively postpones the date on which the electorate’s choice is made, and federal law precludes that postponement.

But as Barrett notes in the majority opinion, federal law sets the date of the election, not the date of the vote counting, or the date results get announced. Those are different things, and Alito pretending they’re the same is bizarre for someone who seems to think history should be his guide in legal issues. The majority points out:

The Constitution requires the “Day on which [the electors] shall give their Votes” to be “the same throughout the United States.” Art. II, §1, cl. 4. But it says nothing about the day for receipt, and, of course, 18th-century modes of transmission did not offer same-day delivery. The Constitution therefore envisions a system in which receipt is necessarily divorced from voting, and it sets the crucial, uniform day as the day of voting, leaving receipt to happen down the line. The federal election-day statutes follow the same pattern: They set when the people “shall give their Votes,” ibid., but leave open when those votes must be received.

And here, Alito’s complete ignorance of the history of American elections shines through. All we need to do is go back to the very first presidential election of George Washington, in which election day was set as February 4th, 1789, but Congress waited until April 6th of that year to fully gather and actually count and certify those votes — over a month past the originally planned March 4 inauguration date. The votes were all technically “submitted” — you could loosely say “mailed in” by election day — but it took two months to actually count them (and then over a week for anyone to tell George Washington he’d been elected).

So, I’m sorry, but Alito can spare me with the idea that counting ballots that arrive after election day somehow “postpones the day on which the electorate’s choice is made.” That’s just utter bullshit and wholly inconsistent with the history of this country and the way elections work. The actual election day can be a single day, but the votes can be counted way later, and the results announced even later. Saying that it violates the historical concept of “election day” to allow mail-in ballots that are post-marked by election day makes zero sense at all.

And it’s not like the Washington situation was a one-off of a young country trying to sort out its presidential election system. Four elections later, in the infamous 1800 presidential battle between Thomas Jefferson and Aaron Burr, the US had to wait until months later when the matter went to the House to resolve (perhaps Alito should rewatch the musical Hamilton, which dramatizes this moment).

Or the elections of John Quincy Adams, which was also sent to the House to decide long after election day. Or the infamous Hayes-Tilden fight in 1876, where many of the votes were disputed and it took a specific (and possibly corrupt) “Electoral Commission” to sort things out and give the election to Hayes just days before the inauguration was set to take place.

No matter how you look at it: the US has a long “history and tradition” of voting on election day, and then (sometimes) taking a great long while to sort out who actually won, including waiting to count all the ballots. Mail-in ballots that are post-marked by election day and counted later are perfectly within that tradition, no matter what Alito has to say.

Alito’s entire jurisprudential brand is built on the idea that history and tradition should constrain what courts can do. He made that the centerpiece of Dobbs. But when that same history turns around and bites him — when it turns out the United States has a long, consistent tradition of counting ballots well after election day — suddenly history doesn’t matter anymore. What matters, apparently, is whether the outcome suits the narrative. That’s Alito retrofitting a legal standard to reach an outcome he desires. It should be seen as an embarrassment for a Supreme Court Justice to do so, but as we’ve all learned, Alito has zero shame in cooking up pretenses to reach his desired outcome.

We’ve been waiting for this one for a long time. And while it doesn’t disappoint, it doesn’t leave a whole lot of room for celebration.

Okello Chatrie has been challenging the geofence warrant that led to his arrest and prosecution since 2019(!). Nearly seven years later, he’s a step closer to… well, maybe setting precedent that will help others? That’s how it usually works in cases like these: the person experiencing a new violation of rights sets the precedent. But because there was no precedent, the government is generally given a “good faith” pass, even when warrants seem so far removed from Fourth Amendment principles even the government should have known its warrants were unconstitutional.

The Fourth Circuit Appeals Court handled Chatrie’s case multiple times. It reviewed it twice and still decided the government didn’t do anything (intentionally) wrong when it used a geofence warrant to narrow down its list of suspect and, finally, put Chatrie on trial.

Don’t let the word “warrant” fool you. There are legitimate warrants that adhere to particularity standards meant to deter officers from just searching wherever, whenever. Then there are geofence warrants, which are more comparable to the “general warrants” the Fourth Amendment was put in place to prevent.

When investigators have no idea who they’re looking for, they stop looking for people and start demanding Google cough up tons of location data. The government argues these warrants are “particular” because they only ask the most likely repository of this data to search for this data. Normal people would argue these are “general warrants” because they force Google to search everyone’s location data on the government’s behalf, in hopes of generating a list of devices that match up with the government’s date/location range inputs — something that’s also often far more vague than it should be.

The government likes to say it doesn’t even need a warrant. Location info generated by phones is “third party” data “voluntarily” relinquished by phone users. The problem with that argument is that the Supreme Court — via its 2018 Carpenter decision — has already made it clear there is at least some expectation of privacy in that data, especially when the government is capable of gathering it en masse.

The time stamp on the Carpenter ruling works a bit in Okello Chatrie’s favor because the alleged crime happened after that ruling. The Supreme Court majority also agrees with Chatrie’s other arguments, including those pointing out geofence warrants cannot possibly satisfy probable cause/particularity requirements generated by Fourth Amendment case law.

Here’s the briefest description of the Supreme Court’s ruling [PDF], as delivered by SCOTUS itself:

Police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information.

More specifically, the Court points to its own precedent:

Everything Carpenter relied on to find that law enforcement officers conducted a Fourth Amendment search when they accessed CSLI records applies as well or better to the police’s accessing of Location History data. First, Location History provides an even more fine-tuned picture of a person’s movements, pinpointing location within around twenty meters rather than within sectors of one-eighth to four square miles; it records location every two minutes or so for a daily average of 720 chartings rather than 101; and it can estimate elevation to reveal which floor of a building a phone is on.

Second, Location History allows police to reconstruct “retrospective[ly],” and with no real effort, people’s comings and goings in any area, enabling “tireless and absolute surveillance” of any number of people in any number of places. Carpenter, 585 U. S., at 312.

And third, Location History implicates personal privacy interests even more than CSLI, because Location History is more the cell-phone user’s own. Most cell-phone users have no awareness of CSLI records, and would never try to retrieve them; by contrast, Google users regularly employ Location History as a personal journal. In that way, Location History resembles other private materials—e.g., emails, documents, photographs, or calendars— that even if stored on Google’s servers, a user reasonably views as his own and expects to be shielded from the “inquisitive eyes” of the government.

While this is a good ruling, it also does little more than tell the Fourth Circuit to do what it has already done: rule the warrant a search under the Fourth Amendment but still give the government a pass for not knowing its warrant was unconstitutional. A concurrence written by Justices Jackson and Sotomayor says the Court should have gone further, declaring this warrant (and any like it — which would be most of them) so unconstitutional the government couldn’t possibly claim to have obtained them in good faith.

Geofence warrants generate waves. The first one is the vaguest. Once more information comes in, investigators approach Google with narrowed lists. These repeat visits are almost never brought to the attention of magistrate judges. If a judge OKs the first search, the government just keeps going back to the well without bothering to seek judicial approval.

This “uncommon, multi-step” process, ante, at 30, meant that officers conducted key portions of the search outside the supervision of “a neutral and detached magistrate,” Johnson v. United States, 333 U. S. 10, 14 (1948). Put differently, officers could obtain additional, sensitive information at steps two and three without having to convince a magistrate that there was probable cause to believe this particular information would uncover evidence related to
the crime. In this way, the warrant left “too much to the discretion of the officer[s] executing the order,” giving them a “roving commission” to collect more data absent any justification to a magistrate.

The facts of this case illustrate why the lack of magisterial oversight is dangerous. When executing steps two and three, law enforcement initially sought unbounded data and account information from all 19 devices identified at step one. Nothing in the warrant prevented officers from obtaining this broad set of data; they narrowed the list only because Google insisted on it.

Because that’s only a dissent, it won’t be taken into consideration when the Fourth Circuit takes its third look at the case. That should have been a point raised by the majority. As it stands, it just means the government will take its good faith ruling and sprinkle it generously on the further unconstitutional acts it engages in while holding a single geofence warrant.

There’s a dissent, of course. And if you can guess two of the three authors, you won’t win anything. No one is going to offer those odds.

JUSTICE ALITO, with whom JUSTICE THOMAS joins as to Part I and with whom JUSTICE BARRETT joins as to Parts II–B, II–C–1, and II–C–2, dissenting.

As is always the case when something isn’t about what this president wants to do/get away with, Alito and Thomas are there to LiveJournal their complaints about constitutional rights:

Eight years ago, I warned that this Court’s decision in Carpenter v. United States, 585 U. S. 296 (2018), would produce one of two outcomes. Either the Court would need to clarify Carpenter’s limits in a future decision, or Carpenter would usher in “revolutionary developments” in our doctrine by giving criminal suspects a “protected Fourth Amendment interest in any sensitive personal information about them that is collected and owned by third parties.” Id., at 385 (ALITO, J., dissenting). Today, the Court takes the country down the latter path. In doing so, the Court sheds Carpenter’s self-imposed boundaries and further destabilizes longstanding Fourth Amendment jurisprudence.

To make matters worse, the majority does all this in an advisory opinion. Although today’s decision will send seismic waves through our Fourth Amendment doctrine, not one iota of the majority opinion will affect the outcome of this case. The Court knows this and does not claim otherwise. Indeed, by refusing to review the one question that could have at least theoretically given Chatrie some hope of relief, the Court carefully set the stage for its planned performance: striking a pose as a great champion of privacy in the digital age. I cannot support this irresponsible escapade.

Note the loaded language, where Alito attaches “giving criminal suspects” to his complaint about recognizing the Fourth Amendment needs to be interpreted in conjunction with today’s realities, not left to be a dusty relic that cannot be expanded to cover things that were impossible to envision more than two centuries ago.

Note also that Alito, et al. bitch about the majority not addressing the one thing that might have helped Chatrie: a ruling on the good faith exception itself. And while I have the same complaint, I would have limited myself to asking the court why it didn’t do this, rather than immediately pivot in the very next paragraph to saying the Court should never have taken this case up in the first place.

The Court should not have granted certiorari in this case, and under any faithful application of our precedents.

Right after that Alito immediately says “Fuck Chatrie,” only sentences after (disingenuously) expressing concern for the Court’s unwillingness to tangle with the “one question” that could have given Chatrie “some hope of relief.”

[I[t should now either dismiss this petition or affirm the decision below based on the “good-faith exception” to the exclusionary rule.

I agree with the dissent in terms of the Court’s unwillingness to draw a bright line that will guide future rulings. But I say that because I think this will just allow law enforcement to roll the dice on questionable searches and hope the muddied water will get them forgiven for willfully bypassing the spirit of this ruling, which unfortunately hasn’t carried over to the letter of the ruling.

But these motherfuckers — Justices Alito and Thomas — think the real harm is that the government won’t be able to engage in as much warrantless surveillance as it would like to:

If the Court maintains its unwillingness to engage with such “line-drawing questions,” ante, at 21, n. 9, Carpenter’s warrant requirement might soon come for all forms of digital surveillance.

Take a long walk off a short pier, boys. You are the worst people to be entrusted with standing as a bulwark against government excess. You welcome it. You absolutely crave it when its one of your boys sitting in the Oval Office. You’re supposed to be serving the entire United States, not just those in the ruling class. But you’d clearly rather give the government unlimited power, rather than ensure the only people guaranteed rights — WE, THE PEOPLE — are allowed to use them.

It is zero surprise that the Supreme Court officially overturned its 91-year-old precedent first created in Humphrey’s Executor. That case held that when Congress designates an agency as independent of the executive branch, the president cannot just fire its commissioners. The Humphrey’s Executor opinion stopped FDR from trying to fire an FTC Commissioner he didn’t like, and reinforced the important idea that Congress could design independent agencies, staffed by experts, that should be less prone to partisan political influence.

The Roberts Supreme Court has been signalling it wanted to overturn Humphrey’s for years, and it finally took until the case brought by former FTC Commissioners Rebecca Slaughter and Alvaro Bedoya* (unceremoniously fired by Donald Trump for being Democratically appointed) to make it official. In Trump v. Slaughter, the Supreme Court said outright that the president can fire commissioners of government agencies and laughed off the idea that Congress could ever create truly independent agencies.

And yet, on the very same day, the same Court said in Trump v. Cook, that the president cannot fire members of the Board of Governors for the Federal Reserve. In that ruling, the majority makes it clear that of course the Federal Reserve should be seen as wholly independent from the Executive Branch and the president can’t fire its Board members, because that would cause chaos!

Both cases involve the same basic fact patterns — involving whether or not the president can fire board or commissioner members of independent agencies. Both decisions were written by Chief Justice John Roberts. Both seem to take wholly opposite views without even a remote attempt by Roberts to explain how he can say both things (on the same day, no less).

And, as many people are noticing, about the only thing you can say about these two contradictory rulings coming down on the same day is that John Roberts believes in the imperial presidency when it impacts everyone else, but believes in Judicial supremacy when it impacts his retirement funds.

There is no other consistent principle here at all. None. Zero. Zilch.

As Madiba Denne writes in that last Balls & Strikes link:

Throughout Slaughter, Roberts warned that the “unity” of the executive branch would be “destroyed” if presidents could not fire agency officials at will. But in Cook, Roberts was much more worried about the destruction of the stock market. Roberts traced the development of the country’s first banking systems and asserted that the Framers knew “calamities” could arise from “even the suspicion of political manipulation of monetary policy.” The chief recounted at length how President Andrew Jackson opposed a national bank that “he could not control,” and suggested that the president’s meddling directly contributed to “an era of ruinous financial panics.” 

Without an independent central bank, Roberts said, there would be “no way to contain the damage whenever a major institution fell,” “no lender of last resort,” “no elastic currency that could expand to meet demand,” and “no mechanism to ensure that small banks issued loans only within their means.” Roberts concluded that at-will removal would be “corrosive” to the Fed independence that Congress sought to safeguard. The possibility that at-will removal would be similarly corrosive to the independence that Congress sought to safeguard at dozens of other agencies seems not to have crossed his mind.

Roberts ignores that the same reasons the Fed is designed to be independent are why the FTC, FCC, and other agencies were designed to be independent. Congress relied (for basically a century) on the Supreme Court blessing this arrangement to create a variety of independent agencies that lived under the Executive Branch, but were designed purposely by Congress with strong independence in mind.

In the Cook decision, Justice Brett Kavanaugh is the one who actually comes close to blurting out the truth, which Roberts carefully avoids. Kavanaugh admits that Slaughter and Cook stand in contrast, but that contrast is okay to him, because Trump fucking up the Federal Reserve would really fuck with monetary policy, and that’s what he really cares about:

I agree with the Court, moreover, that we should not leave open the question whether the Federal Reserve can remain an independent agency in the wake of Slaughter. After Slaughter, there is a clear choice: Either the Federal Reserve may remain independent (with the Governors removable for cause, not at will), or it may not. Leaving that question open would create significant uncertainty about whether the Court might soon eliminate the Federal Reserve’s independence, and thereby expose the Federal Reserve to political influences and jeopardize the efficacy of U. S. monetary policy. Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple Governors at will, as well as turmoil in the U. S. and world economies.

I would not go down that road. I would not risk destabilizing the U. S. economy just so that we can further mull over an issue that, in various permutations, we have been thinking about for many years.

This is quite the admission, though it’s unclear if Kavanaugh recognizes how astounding it is. He is basically admitting that while Slaughter creates chaos for all sorts of policies — consumer protection, labor relations, financial protection, etc. — that’s all for the little people. As Slate’s Mark Joseph Stern notes, the ruling in Slaughter creates a hugely damaging scenario for all sorts of rights:

The impact of this decision is gobsmacking. It strips independence from a vast range of federal agencies, including those that regulate nuclear energy, consumer safety, unions, hazardous chemicals, mine safety, crypto, and large swaths of the economy.

But those policies don’t matter to the Justices like Kavanaugh. Monetary policy, however, impacts his bottom line, and we can’t have that.

Such is also the situation with Roberts. Those other policies don’t impact John Roberts. But a screwy economic system would really put a dent in his various investment funds.

Denne again:

Part of Roberts’s justification for the outcome in Slaughter is democratic accountability—that removal power is necessary for the president to be the one person “with whom the buck stops.” But Roberts was clear, in Cook, that he’s really just concerned about the bucks: Giving Trump unfettered control over most federal agencies could help the rich get richer, and only screw over the little people, but giving Trump control of the Fed could cause an economic crisis big enough to negatively affect Roberts and his rich friends, too. 

Of course, the reality is that this decision isn’t so much about giving the presidency more power, it’s about giving Roberts’ Supreme Court more power. Yes, in the immediate future, this gives Donald Trump, as president, much greater power over the federal government, which will have many dangerous and damaging results.

But does anyone actually believe that the same John Roberts, who blocked former President Obama’s immigration policies or former President Biden’s student loan forgiveness policies, really believes in giving the executive so much power? Of course not. The lesson from John Roberts is clear: when Republicans hold the presidency, they have nearly unlimited power, with the one exception being when Trump threatens to wreck John Roberts’ investment funds. But when a Democrat is president, then suddenly the Supreme Court tut-tuts about how Congress restrains the power of the Executive Branch and it just can’t do anything about it.

The end result is that the power really resides in the ever-consistent view of John Roberts: Republican presidents can do anything they want, so long as it doesn’t harm Roberts’ investments. Democratic presidents are rightly restrained by Congress, and Roberts’ biggest job is swinging that big dial back and forth depending on who is in the White House.

Roberts has spent years whining about how unfair it is that people think his decisions have a political bias. But, really, if he didn’t want that, he maybe shouldn’t have handed down two rulings on the same day that so nakedly confirm exactly what he’s denied.

* Bedoya had to drop out of the case because while he was suing to get his job back, he couldn’t wait around unpaid for the years this case took, and had to go get a real job.

The Courses Digest, Labs Digest, and Exams Digest Bundle gives you unlimited access to expertly crafted online courses, interactive labs and study tools. Whether you’re aiming for industry-recognized certifications or expanding your tech expertise, this bundle will help you get there with courses on CompTIA, AWS, Microsoft, Cisco, Salesforce, and more. It’s on sale for $70 for a limited time.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

DOGE was always designed to provide flimsy pseudo-efficiency cover for wholesale corruption. It was designed to pretend that the government was “cutting waste and fraud” while a bunch of velour tracksuit wearing con men stripped the country for parts and sold what was left off the back loading dock.

As we’ve since explored, DOGE also burned through billions of dollars, exposed the sensitive data of untold Americans, killed untold millions of people worldwide, and generally distracted dim and misinformed Americans from the fact their government is too corrupt to function in the public interest and is no longer capable of consistently standing up to corporate power.

Enter Brendan Carr, who appears to be under fire for the FCC’s efforts to hide his agency’s correspondence with DOGE bros. Last year, journalist Nina Burleigh and advocacy group Frequency Forward sued the FCC, alleging that the agency violated the Freedom of Information Act by wrongfully withholding agency records. 

In a new filing (via Ars Technica) in the US District Court for the District of Columbia, Burleigh and Frequency Forward say Carr also hid his use of Signal as a communications tool, which they apparently believe he used to communicate with DOGE:

“The evidence clearly demonstrates that the FCC has acted in bad faith by withholding documents responsive to Plaintiffs’ FOIA [Freedom of Information Act] request. The FCC acted in bad faith when it redefined the search criteria without notice to Plaintiffs or this Court. Further, the FCC acted in bad faith by concealing the fact that the Chairman Carr has a Signal account on a phone he uses to conduct government business.”

While Carr’s obnoxious censorship efforts get all the policy and media attention, he’s also been at work destroying the FCC’s consumer protection authority, eliminating media consolidation limits, and dismantling what little corporate oversight we had left at the agency. This was “cleverly” dubbed Carr’s “delete, delete, delete” agenda. Telecom monopolies and robocallers love the plan.

It’s not clear what a bunch of 20-something Elon Musk cult members could have contributed to Carr’s mindless demolition of public interest governance, but it sure would be nice to take a transparent look, given the vast financial conflicts of interest between Musk’s fake government agency and the multiple Musk-owned companies looking (and getting) giant financial favors from the FCC.

Starlink has been getting a lot of favors in particular, with more likely coming given rumors that Starlink wants to launch a wireless phone provider.

“The evidence strongly suggests that Musk bought his way into the White House and to obtain his position as the de-facto head of DOGE, and that he had used his government authority and access to information to earn huge profits for himself and his companies,” the plaintiffs wrote. “Plaintiffs’ FoIA request seeks documents that shed light on the relationship between the FCC, Musk as regulator and Musk and his companies as regulated entities.”

Meanwhile, I still think it’s embarrassing that the press, and some Dem politicians, initially treated DOGE as if it was a good faith effort they could work with. As opposed to what it clearly was all along: corruption and grift under the flimsy veneer of improved government efficiency.

The folks at the National Center on Sexual Exploitation (NCOSE) have spent decades demonizing technology (and speech) they don’t understand, so it seems particularly ironic that they’re now getting benchslapped for allowing AI hallucinated citations in legal filings.

First, some background: NCOSE has gone through a few different branding phases, but for a long while were known as “Morality in Media,” an extraordinarily prudish and busybodyish entity that went around scolding retailers for offering magazines that showed models on the cover for being too sexy.

When they renamed themselves to NCOSE and started focusing on the internet (including the laughably false claim that any porn is a health issue and, now, that it’s a national security issue), they jumped on the anti-encryption and anti-Section 230 bandwagons, and politicians (including many Democratic ones who should have known better) quickly embraced the group under the false pretense that they actually were interested in ending sexual exploitation, rather than locking down the internet, and blocking any speech that acknowledges LGBTQ+ people exist.

Suffice it to say, the group is a far right, anti-sex, anti-speech, and anti-internet group, and it’s ridiculous that any politician supports them.

And now we can add to the list that their lawyers apparently can’t make it through a filing without fabricating citations — and then doubling down when caught. This came out in a convoluted case, in which NCOSE lawyers sued some Nevada brothels for supposedly exploiting women who chose to work there. It is possible that something bad happened in those places, but NCOSE apparently did themselves no favors by hiring a local lawyer whose AI-assisted work they were supposed to review — and then didn’t. Even worse, when the other side called out the hallucinated citations, NCOSE’s lawyers tried to attack the defendant and play down the hallucinations… in a filing with more hallucinated citations:

Let’s have Judge Andrew Gordon explain the basics:

Her briefs contained AI hallucinations. Despite Bistro pointing out these errors in its opposition, JD2 did not withdraw or correct her motion and her reply brief also contained misquotes. Bistro then filed a notice identifying the reply’s misquotes. About a month later, JD2 filed multiple errata, an amended motion for reconsideration, and an amended reply that purported to correct these errors, but the amended motion still contained AI hallucinations.

The order also suggests that NCOSE and the local lawyer they hired engaged in an awful lot of finger pointing and blame passing rather than, you know, doing actual lawyering. And then, once they were on notice of falsified filings, they… didn’t fix them. Indeed, NCOSE’s lawyers continued to rely on a hallucinated citation.

And thus, the defendants win their motion for sanctions, striking the falsified filings from the document, and denying the original request to reconsider an earlier ruling dismissing NCOSE’s exaggerated claims. The court notes that while it was the local lawyer who used the AI (and eventually admitted to doing so), the real problem is with NCOSE’s lawyers:

I have read Guinasso’s affidavit about the serious life events he was experiencing during the time frame of these violations, and I am sorry for his losses and the strain that must have put him under. But, as he acknowledges, that does not excuse the over-reliance on artificial intelligence without a human cite-checking the papers. I credit him for accepting responsibility and implementing procedures that hopefully preclude repeating this incident.

Although JD2’s motion and Guinasso’s declaration request that any sanctions fall solely on Guinasso, that is not appropriate here. There were six NCOSE attorneys on this case at the time. Additionally, the evidence before me shows that the NCOSE attorneys had some responsibility for cite checking. Although the errors may have begun with Guinasso, both Guinasso and Hirsch state that the NCOSE attorneys were supposed to double-check his citations. Moreover, Bistro’s opposition to the original motion for reconsideration should have put all attorneys on notice that there was an AI hallucination problem. Bistro devoted considerable space in its opposition to pointing out those errors, including that cases did not stand for the proposition cited, that quotations did not exist as cited, and that specific cited sources did not exist altogether. Rather than apologize and promptly fix the motion, JD2’s counsel minimized Bistro’s concerns and, in what is a bit of a pattern, criticized Bistro for attacking citation errors, calling Bistro’s concerns quibbling and distraction devices.

The NCOSE attorneys admit they were asked to review the original draft reply brief. That reply brief mentioned that Bistro had challenged citations in the motion for reconsideration. Despite being asked to review the reply brief, Hirsch stated at the hearing that the NCOSE attorneys had not read Bistro’s opposition brief, which is itself disturbing. Reading the draft reply brief should have tipped the NCOSE attorneys off to a potential problem. So laying all the blame on Guinasso’s shoulders for the initial errors is not warranted.

Moreover, Hirsch admits that she drafted the amended filings. The amended motion for reconsideration still contains two critical citation errors. It cites the Marcum case for a proposition that Marcum does not even address, much less stand for. And it cites the Cross case, which does not exist. These are not minor errors. JD2’s reconsideration motion rests in significant part on the argument that, under Nevada law, a contract procured through a threat is void, not voidable, and she cites Marcum and Cross for that proposition. Those errors remain uncorrected to this day, and the briefs with the offending AI hallucinations still have not been withdrawn. At the hearing, Hirsch stated that “even without those cases in there and without the premises that we said that they stood for, the substance of the motion is — stands and is still arguable.” But “[i]t is irrelevant that other cases may stand for the propositions asserted” because if other cases support the propositions, then it is the lawyer’s “responsibility to cite them.” Malkeet Lnu, 2026 WL 1587554, at *8. Moreover, later in the hearing, JD2’s new local counsel candidly admitted that he could locate no existing Nevada law that would support the reconsideration motions’ argument that duress makes a contract void rather than voidable. Thus, the failure to withdraw or correct these citations in the amended motion is significant.

So in the end, the judge orders the plaintiffs lawyers at NCOSE and the local counsel, Guinasso, to pay the defendant’s legal fees.

I also impose monetary sanctions in the form of Bistro’s reasonable attorney’s fees jointly and severally against the National Center on Sexual Exploitation and Guinasso Law, Ltd. Reasonable attorney’s fees are an appropriate sanction under both my inherent power and 28 U.S.C. § 1927. Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017) (inherent power); 28 U.S.C. § 1927 (“Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”). “Citing even a single fake case can be sanctionable because no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that a lawyer has not personally read and verified.” Whiting, 170 F.4th at 461 (simplified)). Citing fake legal authority is not harmless. It wastes the other parties’ and the court’s resources trying to track down the nonexistent cases. Id. at 467 (“Citing fake cases unnecessarily burdens the court and the taxpayers, so courts can and should fine the offending lawyers to reimburse the court for its time.” (simplified)). And the burden it imposes on the opposing party and the court is lopsided because “[w]hile one party can create a fake legal brief at the click of a button, the opposing party and court must parse through the case names, citations, and points of law to determine which parts, if any, are true. As AI continues to proliferate, this creation-response imbalance places significant strain on the judicial system.” Ferris v. Amazon.com Servs., LLC, 778 F. Supp. 3d 879, 880-81 (N.D. Miss. 2025). To rectify that imbalance, an award of fees is warranted in this case.

For what it’s worth the NCOSE lawyers apparently also had tried to argue that the defendants legal fees were its own fault for not filing for sanctions earlier, and the court is (rightly) having none of it:

I reject JD2’s argument that Bistro’s fees are its own fault for not filing a Rule 11 motion. Bistro did not originally seek sanctions and instead was content to point out the errors in its response brief and let the original motion for reconsideration play out on the papers. It was JD2’s counsel who did not read the opposition brief that pointed out the errors, did not withdraw the briefs, decided to instead file the errata and amended briefs, did so without leave of court, left AI hallucinations in the new filings, and materially altered her briefs through a procedural mechanism that did not give Bistro an opportunity to respond to these changes. Despite acknowledging that the amended reconsideration motion still has AI hallucinations, JD2’s counsel has not withdrawn that document or moved to correct it to this day.

The next time NCOSE shows up at a Senate hearing — and they will, because nothing stops a well-funded moral panic lobby from getting a Senate invite — someone should slide this ruling across the dais. Senator Richard Blumenthal has treated NCOSE as a credible voice at KOSA hearings for years, despite ample evidence that the group cares far more about restricting speech than protecting anyone from exploitation. Now there’s a federal judge’s order explaining, in patient detail, that NCOSE’s lawyers fabricated citations, doubled down when caught, and filed corrected briefs that still contained fabrications. The fake cases are still in the record. The organization still hasn’t withdrawn them.

And yet this is who Blumenthal thinks you should trust in helping set internet policy for hundreds of millions of Americans.