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It may look like a righteous response to DeSantis’ bigotry. But the heart of the suit is very different.
It’s easy to see why Disney’s excellent lawyers from big law firms WilmerHale and O’Melveny are trying to frame this through the lens of free speech: Federal courts are reluctant to strike down otherwise valid laws because they might be pretext for the suppression of speech. But this case is more about contract law than free expression. And by invoking the Constitution’s contracts clause, and leaning on it so heavily, Disney is playing with fire. There is a reason this provision has sat moribund for nearly a century: Interpreted broadly, it could give courts immense power to help corporations and employers escape regulation. The federal judiciary should not be handed another open-ended invitation to halt progress at the behest of the unscrupulous and powerful—which, free speech gestures aside, is what this is.
Disney’s DeSantis saga began when the company publicly opposed a bill barring public school teachers from discussing LGBTQ people, families, and issues in class. The governor retaliated through a flurry of legislative action that has culminated in an effort to abolish Disney’s self-governance. For 55 years, the company has controlled the area in which it operates, known as the Reedy Creek Improvement District, through a board allied with Disney. As part of his feud, DeSantis signed legislation replacing the Reedy Creek board with a new commission, whose members he would appoint. Shortly before the Reedy Creek board turned over the reins, though, it executed an agreement with Disney granting the company continued authority over its properties and stripping the DeSantis commission of almost all its power. By its own terms, the agreement continues “until 21 years after the death of the last survivor of the descendants of King Charles III.”
It appears that Disney and the Reedy Creek board followed all applicable laws in drafting, publicizing, and executing this contract. They even advertised it through two public notices in the Orlando Sentinel, as required by Florida statute. The governor and his allies just missed it. But they would not accept that they were outplayed; instead, DeSantis’ new commission issued a “declaration” attempting to void the agreement. That move led Disney to file this suit in federal court.
But the company did not ask the court to simply enforce their contract as written. Instead, it accused state officials of violating the Constitution by voiding the agreement. Its primary theory is that these officials ran afoul of the contracts clause, which says that no state may pass a law “impairing the obligation of contracts.” The most recent Supreme Court case that Disney could cite to support this argument is from 1902, so understanding it requires a brief history lesson.
The contracts clause became a tool of mischief during the Lochner era, the period from the 1890s to the 1930s when the Supreme Court routinely invalidated health, safety, and economic regulations. The clause fit neatly into the court’s conception of a constitutional “liberty of contract” that sharply limited state oversight of the marketplace. During this period, for instance, SCOTUS repeatedly used the contracts clause to preserve private monopolies over the water supply, preventing local governments from constructing their own water works. It also struck down a Kansas law, enacted during a financial panic, that let mortgage-holders stay in their homes for several months after foreclosure.
During the Great Depression, both Congress and the states passed a number of laws to assist impoverished families that appeared vulnerable to legal challenges under the contracts clause. At the time, the twilight of the Lochner era, the court regularly struck down regulations designed to protect working people, like minimum wage requirements. So it was an ominous sign when the Supreme Court took up a challenge to a Minnesota law enacted in response to the Depression. The statute gave residents who defaulted on their mortgage two extra years to reclaim their homes after foreclosure.
Surprisingly, in 1934, the Supreme Court upheld the law by a 5–4 vote, announcing a new rule that states could alter contracts so long as they did so in a “reasonable and appropriate” way. Ever since, the contracts clause has largely sat dormant, subsumed to modern society’s greater interest in sensible regulation. Most recently, in 2018, the Supreme Court passed up an opportunity to revive the clause.
Just five years later, the Supreme Court looks very different—far more eager to turbocharge constitutional provisions with radical new readings that curb governments’ power to protect their citizens. Plaintiffs have taken note. During the pandemic, landlords, developers, and real estate associations flooded the courts with lawsuits claiming that various COVID-19 orders — especially eviction moratoria, rent stabilization laws, and wage increases—violated the contracts clause. Anti-vaxxers also urged the courts to wield the contracts clause against vaccine mandates. The vast majority of these claims failed. But some conservative judges leveraged eviction restrictions to resuscitate Lochner-era ideas about “freedom of contract.”
Disney has no good reason to join this game. By all appearances, the company executed a valid contract with the Reedy Creek board, adhering to every procedural rule in the book. If DeSantis’ hand-picked commission won’t honor it, Disney can ask a court to enforce its terms as written—it doesn’t need to go this route to preserve its autonomy. It can also pursue its First Amendment claim by building a case that the governor’s allies retaliated against its protected expression. There is no need to open Pandora’s box by launching an assault on states’ broader power to modify contracts. The Supreme Court’s conservative supermajority has given itself enough reasons to bring back the deregulatory zeal of the Lochner era.
Disney should not hand it another one. The consequences could be severe given the legal climate; the contracts clause cases just keep on coming. Hotels cite the clause to battle severance pay for workers and rehire of laid-off employees. Delivery apps used it to combat caps on the amount of “commission” cash they can extract from restaurants. Corporations deployed it to fight data privacy laws. Police unions have seized upon it to hobble disciplinary procedures and conceal records of misconduct from the public.
These arguments have not yet carried the day in court. But plaintiffs keep raising them, because it is impossible to know how far SCOTUS will go to implement conservative policies from the bench. That’s why far-right anti-government groups like the New Civil Liberties Alliance encouraged the Supreme Court to use the COVID eviction cases to “reinvigorate” the clause: They sense an opportunity to restore it as a cudgel against progressive regulation. It would be a sadly ironic victory if the House of Mouse’s enlightened quest for justice empowered the courts to resurrect this dangerous zombie legal doctrine.
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Sen. Bernie Sanders, I-Vt., participates in a Democratic presidential primary debate at CNN Studios in Washington, Sunday, March 15, 2020. (photo: Evan Vucci/AP)
The Vermont senator added that the “choice is pretty clear” for voters who “believe in democracy.”
Towards the end of his interview on CNN’s State of the Union, Sanders—who ran against Biden in the 2020 Democratic presidential primary—was asked about the president’s recent re-election campaign announcement. Specifically, anchor Dana Bash wanted to know if Biden’s age could be a drag on his election prospects—a topic the president joked about during Saturday night’s White House Correspondents’ Dinner.
“He would be 86 years old by the end of his second term. You're one year older than President Biden,” Bash noted. “Is his age something that voters should consider in 2024?”
Saying “age is one thing,” the Vermont senator stated that “experience is another thing” before asserting that voters need to look at a candidate’s record. “Which side are they on? Are they on the side of the billionaire class, or are they on the side of working people?” Sanders mused.
Pointing out that it’s “no great secret that he and I have strong differences of opinion,” the progressive lawmaker said that any issues he may have with Biden pale in comparison to the alternatives proposed by the GOP.
“But when we live in a nation where you have a major political party, the Republican Party, where many, not all, but many of their leadership doesn't even believe in democracy, they maintain the myth that Trump won the last election, they're trying to keep people from voting, they're trying to deny women the right to control their own bodies, so that's a whole issue out there,” he declared. “If you believe in democracy, you want to see more people vote, not fewer people vote, I think the choice is pretty clear, and that choice is Biden.”
Finally, Sanders insisted that if the president stuck to a few core principles, he would easily secure a second term in office.
“And, second of all, what I do believe is, the Democrats and the president have got to be stronger on working-class issues,” the senator said. “They have got to make it clear that we believe in a government that represents all, not just the few, take on the greed of the insurance companies, the drug companies, Wall Street, all the big money interests, and start delivering for working-class people. You do that, I think Biden is going to win in a landslide.”
Currently, Biden’s approval rating sits at just 43 percent, and polls show him in a dead heat with Republican frontrunners Donald Trump and Florida Gov. Ron DeSantis.
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The conservative legal activist Leonard Leo helped the dean of the law school broker a $30 million deal with donors to rename the institution after Justice Scalia. (photo: Erin Schaff/NYT)
George Mason University’s law school cultivated ties to justices, with generous pay and unusual perks. In turn, it gained prestige, donations and influence.
Just months earlier, Neil M. Gorsuch, a federal appeals court judge from Colorado, had won confirmation to the Supreme Court seat left vacant by the death of Antonin Scalia, the conservative icon for whom the school was named. For President Donald J. Trump, bringing Judge Gorsuch to Washington was the first step toward fulfilling a campaign promise to cement the high court unassailably on the right. For the leaders of the law school, bringing the new justice to teach at Scalia Law was a way to advance their own parallel ambition.
“Establishing and building a strong relationship with Justice Gorsuch during his first full term on the bench could be a game-changing opportunity for Scalia Law, as it looks to accelerate its already meteoric rise to the top rank of law schools in the United States,” read the memo, contained in one of thousands of internal university emails obtained by The New York Times.
By the winter of 2019, the law school faculty would include not just Justice Gorsuch but also two other members of the court, Justices Clarence Thomas and Brett M. Kavanaugh — all deployed as strategic assets in a campaign to make Scalia Law, a public school in the Virginia suburbs of Washington, a Yale or Harvard of conservative legal scholarship and influence.
The law school had long stood out for its rightward leanings and ties to conservative benefactors. Its renaming after Justice Scalia in 2016 was the result of a $30 million gift brokered by Leonard Leo, prime architect of a grand project then gathering force to transform the federal judiciary and further the legal imperatives of the right. An ascendant law school at George Mason would be part of that plan.
Since the rebranding, the law school has developed an unusually expansive relationship with the justices of the high court — welcoming them as teachers but also as lecturers and special guests at school events. Scalia Law, in turn, has marketed that closeness with the justices as a unique draw to prospective students and donors.
The Supreme Court assiduously seeks to keep its inner workings, and the justices’ lives, shielded from view, even as recent revelations and ethical questions have brought calls for greater transparency. Yet what emerges from the trove of documents is a glimpse behind the Supreme Court curtain, revealing one particular version of the favored treatment the justices often receive from those seeking to get closer to them.
The documents show how Scalia Law has offered the justices a safe space in a polarized Washington — an academic cocoon filled with friends and former clerks, where their legal views are celebrated, they are given top pay and treated to teaching trips abroad, and their personal needs are anticipated, from lunch orders to, in Justice Gorsuch’s case, house hunting.
By law, justices may earn outside income from a limited number of sources: book advances and royalties, investments, and teaching. The judicial code of conduct specifically encourages teaching. Many justices have augmented their government salaries, which now hover beneath $300,000, by holding classes at schools including Harvard, Duke and Notre Dame.
But Scalia Law quickly moved to the front of the line, in part by offering generous benefits. For teaching summer courses that generally ran for up to two weeks, Justices Gorsuch and Kavanaugh each made salaries that approached the legal cap on certain outside income, roughly $30,000 in recent years.
The school also creates bespoke programs for the justices in far-flung locations. Justice Gorsuch has traveled to Iceland and Italy to teach; Justice Kavanaugh has taught in Britain. During the first pandemic summer, both justices pressed on with their classes, teaching at stateside resorts. (Only Justice Thomas has routinely held his classes on campus, with two of his former clerks as co-professors.)
“When a justice is with us, we do everything we can to engage the justice with our students,” the law school’s dean, Ken Randall, said in a statement. He added, “Law schools serve students, and their education is undoubtedly enhanced by the justices teaching or visiting or speaking with students.”
At times, the justices’ teaching has intersected with their positions on the court.
Justices Gorsuch, Kavanaugh and Thomas regularly used employees in their chambers to coordinate their outside academic duties, despite a judicial advisory opinion — which the justices say they voluntarily follow — that staff members should not help “in performing activities for which extra compensation is to be received.”
And in a number of instances, the justices’ co-professors filed amicus briefs, trying to sway the court on pending cases, the records show.
A spokeswoman for the Supreme Court declined to comment for this article.
Some of the records reviewed by The Times were obtained through a public-records request, which the university fulfilled only after the court was allowed to review the documents. Many of them were held back or arrived heavily redacted. In a statement, Scalia Law said the court had been consulted for security reasons. (In addition, The Times examined records obtained years ago by the activist group UnKoch My Campus.)
By any number of metrics, Scalia Law’s closeness to the justices has coincided with a striking upswing in its fund-raising and academic standing. The number of graduates receiving prestigious clerkships has steadily increased, and that has helped the school attract higher-caliber students. Scalia Law is now tied for 30th place in the U.S. News & World Report rankings, a big jump in a relatively short time. In the process, it has become something of a hub of conservative legal thought, and legal society, in the capital.
Scalia Law has hit its stride in part by capitalizing on the conservative outcry against “woke” elite institutions of higher education. Having a robust conservative alternative like Scalia Law “adds to the debate,” said C. Boyden Gray, a major donor to the school who held senior positions in both Bush administrations. “It is very healthy.”
Yet to a lesser degree, the school has also been able to entice the court’s liberals: Justice Elena Kagan, who has called for the court’s conservative and liberal wings to rediscover “common ground,” joined Justice Gorsuch as a distinguished guest when he taught his summer course in Iceland in 2021. Justice Sonia Sotomayor spoke on a Scalia Law panel with him the same year.
In late 2019, Justice Kagan emailed a George Mason professor who had clerked for Justice Thomas. “George Mason,” she wrote, “seems a really good place to be.”
Justice Gorsuch may have felt the same way when the law school, courting him in 2017, asked him to help choose the Italian city where, for two weeks the following summer, he would co-teach a seminar on national security and the separation of powers. A memo offered options including Padua, a “first-tier city in a picturesque setting,” Venice, with its “seven-mile-long-sandbar known as Lido” and Bologna, “Italy’s most prestigious academic city.”
In the end, the class would be in Padua, where the law school put up the justice and his family in what a listing described as an “aristocratic,” antique-filled apartment in the heart of the old town.
A draft handbook for the trip, emailed to Justice Gorsuch, made clear that his teaching responsibilities would be limited to the mornings, leaving plenty of time for excursions, including planned visits to Bologna and Florence.
“Fantastico!” the justice responded.
A Bridge to the Court
The rebranding as the Antonin Scalia Law School became official on July 1, 2016. Right away, the dean at the time, Henry Butler, began sending out save-the-dates for a dedication. At the top of his mind: ensuring that justices would be there.
The plan was for a day of celebrations in October, framed as a nonideological tribute to a justice beloved by his colleagues on both right and left. The renaming announcement quoted Justice Ruth Bader Ginsburg praising her close friend as “a law teacher, public servant, legal commentator and jurist nonpareil.”
But there was another aim, to raise money, with the justices as a draw. Justices Thomas and Ginsburg were to speak at a banquet in Washington’s historic Union Station. According to a seating chart, there would be tables named for the justices assigned to them: Justice Thomas (to be seated with Mr. Leo), Justice Samuel A. Alito (with former Vice President Dick Cheney) and Justice Ginsburg (with then-Judge Kavanaugh).
The Charles Koch Foundation bought a $100,000 “platinum” sponsorship; the law firms Kirkland & Ellis and Gibson, Dunn & Crutcher were among those buying gold packages for $50,000, according to the program.
That mixing of the justices and the law school’s fund-raising brought a last-minute inquiry from the Supreme Court’s public information office. The court, according to an email to the dean from one of the school’s event planners, said it could not “clear the program” without confirmation that the dinner was “not a fund-raiser, because Supreme Court Justices cannot be involved in any fund-raising activities.”
Ultimately, Justices Thomas and Ginsburg did not speak, though both attended.
“Damn, this thing has be a lot of work,” the dean wrote to Mr. Leo, then the executive vice president of the Federalist Society, the conservative legal organization, and a co-chairman of the dinner. “But it is huge for Scalia Law (much bigger than the money.)”
Mr. Butler, who retired as dean in 2020, referred questions for this article to Scalia Law. The school said it could not answer them, since they related to Mr. Butler’s tenure.
The law school, established at George Mason only in the late 1970s, had carved out a distinctive place on the right flank of legal academia. Its Law & Economics Center, devoted to one of the pillars of conservative legal thought — the idea that courts must consider the economic impact of the law — had offered training to more than 5,000 federal and state judges. Among the school’s most prominent alumni — indeed its only Supreme Court clerk — was William Consovoy, who had helped persuade the high court to strike down key provisions of the Voting Rights Act.
For all that, a year after Mr. Butler took over as dean in 2015, the law school’s U.S. News ranking dropped to 45th. “Falling out of the top 50,” administrators wrote, “would be a disaster from which the law school would have a very difficult time recovering.”
By then, Mr. Butler had turned to Mr. Leo for help. He was a rising power in the conservative ecosphere, helping to steer money to advance the Federalist Society’s mission of filling the courts with judges who would interpret the Constitution according to the founders’ intentions. In September 2015, the dean sent Mr. Leo a five-year plan rooted in their shared belief that opportunity, and a deep well of donor money, lay in doubling down on the law school’s efforts to become an alternative to the left-leaning institutions that ruled the rankings.
Scalia Law, Mr. Leo wrote in response to questions from The Times, “is a model for what legal education should be in our country — grounded in objective analysis and truth-seeking, respect for the Constitution, and civility and balanced dialogue.”
The windfall, and the way forward, came quickly. About two weeks after Justice Scalia’s death on a Texas hunting trip in February 2016, Mr. Butler and Mr. Leo struck a $30 million deal with donors to rename the school for him.
Ten million dollars came from the Charles Koch Foundation; the balance, the school explained, came from an anonymous donor who had approached Mr. Leo. (The benefactor is widely believed to be Barre Seid, an electronics manufacturing mogul and conservative donor who would later make an extraordinary $1.6 billion contribution to a political group controlled by Mr. Leo.)
The announcement rewound an earlier controversy set off by revelations that gifts to George Mason from the Koch brothers had come with influence over hiring decisions. The Koch foundation, in a statement, said it was deeply committed to “fostering an open exchange of ideas among a diversity of perspectives.”
The double deal was a master stroke.
The money would, among other things, allow the law school to support new research centers organized around areas of special concern for the legal right, including a Center for the Study of the Administrative State and a Liberty & Law Center.
The renaming would be a bridge to the court.
At the morning dedication ceremony on Oct. 6, Justice Kagan spoke on behalf of the court. In addition to the Union Station dinner, Mr. Leo hosted a private luncheon for justices and other V.I.P.s, offering vegetarian or lobster risotto. (“Lobster is great,” the future Justice Kavanaugh wrote, emailing his menu choice.)
In all, the school collected at least $750,000 that day, records show. Seven justices — all but Chief Justice John G. Roberts Jr. — attended some portion of the festivities.
That it could not be eight came courtesy of the Senate Republican leader, Mitch McConnell, who had refused to consider President Barack Obama’s choice to replace Justice Scalia before the upcoming presidential election. When Mr. Trump won, he inherited the opportunity to fill the open seat — with a conservative, drawn from a list of candidates developed by Mr. Leo.
It was also a chance for Scalia Law to fast-track its ambitions.
Wooing the Justices
As Judge Gorsuch moved to the top of the list for the court seat, he convened a war room of confidants to lobby for his nomination and help frame a confirmation strategy. Among them was Jamil N. Jaffer, a Scalia Law professor and founder of its new National Security Institute. Mr. Jaffer had clerked for the judge on the appeals court and counted him as a friend and mentor.
After the Supreme Court confirmation, Mr. Jaffer acted as the Gorsuches’ unofficial relocation consultant, meeting with a real estate agent and touring at least one equestrian estate in Virginia. “Thanks, Jaffer 🙂,” the justice’s wife, Louise Gorsuch, wrote after he sent an aerial video of the property. The justice followed up by asking Mr. Jaffer to arrange a tour for his wife.
Mr. Jaffer agreed to take time off from Scalia Law to join the new justice’s chambers as a temporary clerk. He also began recruiting Justice Gorsuch to co-teach a law school class the following summer in Italy.
In response to questions from The Times, Mr. Jaffer said it was “terrific opportunity” for students to learn from Justice Gorsuch, whom he described as “an esteemed scholar in his own right.” He said he had been glad to volunteer his personal time to help the justice’s search for a home, “as I would for any friend.”
On the faculty, Justice Gorsuch would join Justice Thomas, who had recently completed his first semester teaching alongside Neomi Rao, a former Thomas clerk who would become a Trump administration official and federal judge. That September, Mr. Jaffer sought Justice Gorsuch’s feedback on the draft memo for the Italy program, which laid out why he would be such a prize catch for Scalia Law.
“Justice Gorsuch is, of course, the newest member of the Supreme Court and the youngest to be appointed to the high court in a generation,” the proposal said. “He also holds the seat of the Law School’s namesake, Justice Antonin Scalia, and is widely believed to be a worthy successor to the legacy of that great man.”
The proposal included descriptions of the potential sites, relying in part on advice from Mr. Leo, who could use his “significant connections in Rome and at the Vatican,” should they be required.
Other law schools have hosted justices on expenses-paid trips abroad. New York University, for example, sent Justices Ginsburg and Sotomayor to a conference in Portugal in 2019, though they did not receive teaching salaries. In 2016, Tulane paid Justice Alito to teach in Berlin and Paris, according to his disclosure from that year, and covered his expenses. Notre Dame, which counts Justice Amy Coney Barrett as a longtime faculty member, has recently been vying for the court’s attention, sending Justice Alito to Rome and Justice Kavanaugh to London.
But judicial ethics guidelines require only that the justices make note that such travel took place; they do not have to disclose how much their flights, lodging and meals cost. In Justice Gorsuch’s case, it was not an insignificant amount, according to the records obtained by The Times.
For the justice’s first course in Padua, an email to his staff quoted a price of $3,771 for airfare. During his Iceland class, the school reimbursed him $5,250 for his lodging, in addition to paying his salary. The records show the school spent thousands of dollars more on flights and accommodations for special guest speakers — the justice’s friends, colleagues and other notables.
“While our guests are with us, I expect them (from experience in Padua) to want to eat, drink and be merry with us (especially with NMG),” one of the coordinators wrote, referring to Justice Gorsuch.
Amanda Frost, a law professor at the University of Virginia who specializes in legal ethics, said she found such arrangements troubling. “Some of this sounds like all-expenses-paid vacations, with a little teaching thrown in,” she said in an interview.
For Scalia Law, the next piece of the puzzle would be the next Trump appointee, Justice Kavanaugh.
He had taught at Harvard Law School for a decade while sitting on the appellate court in Washington. But that relationship ended amid a campus storm over allegations during his confirmation that he had engaged in sexual misconduct years before. The judge angrily denied the allegations and lamented, “I may never be able to teach again.”
Within weeks of his confirmation, Scalia Law came calling. The new justice already had ties to the school. He had spoken there at least twice and was friendly with faculty members and ideologically aligned; he once cited three Scalia Law professors in a single decision.
Mr. Jaffer and another professor scheduled a visit with him at the court, followed by Mr. Butler, who then emailed the justice on Jan. 15, 2019, setting out the details of a proposed multiyear contract.
“Exact terms as the Gorsuch contract,” the dean wrote. “The contract will need to make its way through university administrative labyrinth. But things are preapproved. We do not plan to make an announcement of your appointment at this time.” (After word got out in March and protests ensued, the dean assured his new colleague that “all the ruckus” had come from the university’s main campus, not the law school.)
Like Justice Gorsuch, scheduled to teach in Padua again that summer, Justice Kavanaugh would teach his two-week class abroad — at a university in Surrey, southwest of London, with accommodations for his family nearby in Runnymede, on the River Thames, where Magna Carta was signed. “We will find a nice cottage for them,” Mr. Butler wrote.
Now three of the nine justices were ensconced at Scalia Law. “Conservatives always had a network,” one donor to the school said in an interview. “Now they had a lounge.”
Leverage
After a flurry of events in the fall of 2018 marking the second anniversary of Scalia Law, Mr. Butler sent an email blast to the school’s friends and colleagues with the subject line “Five Supreme Court Justices Came to Scalia Law School Last Week … Here’s Why.”
The school had spent months pushing for the justices’ presence. A highlight was a dinner, with several justices, that collected $1.4 million. “Last week, Scalia Law made history,” wrote the dean, whose message included four photos of the justices.
Scalia Law was walking a fine line: marketing its closeness to the justices amid the court’s demands for opacity. In the emails obtained by The Times, court officials repeatedly pushed for media blackouts and tightly controlled announcements about events. “Photos may not be used on social media or for any endorsement, promotional or fund-raising purposes,” a court employee wrote before an event featuring a justice.
Despite the prohibition against enlisting court staff members to help with paid outside work, records show that much of the labor of keeping up with the justices’ teaching and other activities at Scalia Law fell to their chambers’ administrative staff — organizing class materials and student papers, managing student visits and coordinating guest lectures.
Justice Gorsuch’s staff used the justice’s login to create an online “forum/discussion” space for students and post readings, and submitted his grades to the school. The staff of Justice Thomas requested his class roster and collected his syllabus, helping to track down missing reading materials. Justice Kavanaugh’s chambers inquired about when he would get his paychecks, and whether he would get a raise.
At the law school, Mr. Butler sought to convert his closeness with the justices — he was on a texting basis with Justices Kavanaugh and Thomas — into bragging rights with donors. He also began calling in favors. The emails show Scalia Law beseeching the justices to attend a host of law school activities, as guests or speakers. Students were given tours of the court, escorted by justices. “I know the students were THRILLED to have the opportunity to get a behind-the-scenes look at the Court,” Jennifer Mascott, a Scalia Law professor who had clerked for Justice Thomas, wrote to her former boss.
And in July 2019, Mr. Butler emailed Justice Gorsuch on behalf of the Property and Environment Research Center, a Montana-based property rights group that describes itself as “the home of free-market environmentalism.” Mr. Butler sat on the group’s board at the time, and Justice Gorsuch, who is seen as generally sympathetic to landowner rights, was a natural ally.
“I believe you will love a visit to PERC and the Yellowstone Club in Big Sky — with its legendary skiing,” Mr. Butler wrote, attaching an invitation from the group’s chairman, Loren Bough. “Or, if you prefer to come in the summer, Loren will treat you to visit to his family’s ranch which is renowned for having some of the best trout fishing in Montana.”
The invitation was extended the month after the Supreme Court agreed to hear a property rights case of interest to groups like PERC. It involved a dispute between a group of Montana landowners and the Atlantic Richfield Company, owners of a Montana superfund site. On Oct. 22, PERC co-filed a brief asking the court to rule in favor of the landowners.
In a statement, PERC said that it had never received a response from Justice Gorsuch and that “there was no connection” between the invitation and the brief it filed “months later.”
But the law school records show that Mr. Butler continued to push, sending two follow-up emails, and, in early October, asking his staff to set up a meeting with the justice to discuss the invitation.
The court ultimately ruled for the company, with Justices Gorsuch and Thomas in dissent.
Law schools and professors also frequently ask the court to take positions on specific cases, by filing amicus briefs. Such “friend of the court” briefs are an approved means by which outside parties can seek to influence the justices. They are often read by clerks, who forward only those making the most salient arguments, though a brief from someone connected to a justice can have an advantage.
Scalia Law professors are not simply regular filers; a quarter of the school’s briefs submitted to the court since the justices joined the faculty have been written by professors who served as the justices’ co-teachers, some while classes were ongoing.
Helen Alvaré, an associate dean, taught with Justice Kavanaugh in Britain in 2019, and again at the Nemacolin resort in Pennsylvania in 2020. In between, she filed a brief supporting the Trump administration’s expansion of exemptions to the Obamacare contraception mandate.
Ms. Mascott filed briefs in two cases in March 2022, while teaching with Justice Thomas, and a third brief that May as she prepared for an on-campus summer program with Justice Kavanaugh.
Justice Thomas appeared to echo her legal reasoning in his dissenting opinion in a case involving state sovereign immunity. Her brief in another case, involving the Department of Veterans Affairs, so caught Justice Gorsuch’s attention that he name-checked her during oral arguments.
“And what do we do with Professor Mascott’s amicus brief?” he asked the government’s lawyer.
Ms. Frost, the legal ethics professor, said that filing briefs in cases before the court while teaching with a justice could create “the appearance of impropriety,” even if the cases were never discussed. “It’s the proximity in time that’s concerning,” she said.
Mr. Randall, the current dean, said the briefs were often signed by many lawyers, some of them known to the justices. “I doubt that familiarity is limited to law professors,” he added.
A Place at the Table
This summer, Justice Gorsuch will teach in Portugal. Justices Kavanaugh and Thomas have no confirmed plans to teach, though the school says it would welcome them.
Together with the name change, the court’s connection to the school has been felt in the money flowing from conservative donor networks.
In fiscal year 2019, Mr. Butler reported a record fund-raising haul of more than $60 million; of that, $50 million came in a bequest from the Rouse family, major conservative donors. Fund-raising has remained strong — $22.5 million in 2021.
Mr. Gray, the veteran of the Bush administrations, has given $3 million and had his name affixed to the school’s Center for the Study of the Administrative State. In 2021, the Gray center joined with the Heritage Foundation to sponsor a celebration of Justice Thomas’s 30th anniversary on the high court — confirmation of Scalia Law’s elevated place in the conservative legal universe.
Further confirmation, beyond the rising rankings and more highly credentialed students, comes from the growing number of graduates winning coveted Supreme Court and circuit court clerkships — a powerful engine of career advancement and networking in the legal world, and an added burnishing of Scalia Law’s reputation.
In 2016, the year of the name change, only one graduate received a circuit court clerkship. And the school had not had a Supreme Court clerk since Mr. Consovoy, who worked for Justice Thomas during the 2008-9 term. (Mr. Consovoy died this year.)
But as the Trump administration, guided by Mr. Leo of the Federalist Society, began to remake the federal judiciary, Scalia Law made it a priority to establish clerkship pipelines. As one professor wrote, “We are hoping to place Scalia Law Alumni who are current members of our Fed Soc student chapter, alumni who were active in Fed Soc, and other Scalia Law conservative and libertarian alums in federal clerkships.”
Since the rebranding, the numbers have steadily risen. In 2021, Scalia Law placed 10 alumni in circuit court clerkships. (More were hired for the district courts; the school celebrated that overall success with a news release headlined “Lucky 21 in 2021!”) Last year, eight graduates secured federal circuit court clerkships, and, for the first time, two were hired by Supreme Court justices.
“While schools like Harvard and Yale still have the best placement in elite jobs and federal clerkships, George Mason has been punching above its weight,” said Derek Muller, a professor at the University of Iowa College of Law who studies legal education and employment outcomes.
All but a handful of Scalia Law’s recent elite clerkships were with judges appointed by Republican presidents. Indeed, clerkships have become a battleground in the ideological warfare over legal scholarship. Two prominent circuit court judges have recently vowed to push back at “cancel culture” by rejecting clerkship applicants from Yale and Stanford.
Mr. Butler once said, “We’re not going to apologize for using our connections” to help students win clerkships. And last year, Ms. Alvaré wrote to Justice Alito to lobby for an applicant. At the time, Ms. Alvaré was busy, in articles, legal briefs and interviews, trying to sway public sentiment on a pending case that would represent the fruition of the conservative legal movement’s animating promise: the end of the constitutional right to abortion.
The student got the clerkship. And in May, Justice Alito made his first public appearance after the leak of his draft opinion — via closed-circuit TV, because of security concerns — at the Antonin Scalia Law School.
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Representative Alexandria Ocasio-Cortez of New York. (photo: Erin Scott/Reuters)
Decision clears way for incumbent New York senator Kirsten Gillibrand to run for re-election unopposed by congresswoman
“She is not planning to run for Senate in 2024. She is not planning to primary Gillibrand,” Lauren Hitt, Ocasio-Cortez’s spokesperson, told Politico.
Gillibrand, who launched her re-election campaign in January for a third Senate term, was widely believed to be facing a number of potential challengers in the state primary, including Ocasio-Cortez.
The announcement follows indications from other New York progressives, including Mondaire Jones and representatives Jamaal Bowman and Ritchie Torres, that they are not considering a challenge.
New York Democrats were hit hard in the midterm elections last year and the loss of four seats to Republican candidates is widely blamed for the party losing control of Congress. Avoiding an acrimonious left v progressive battle, and concentrating on recovering the 2022 losses, is considered the party’s political priority.
“I think it’s divisive. And unless you think you can win, it’s divisive unnecessarily,” Jay Jacobs, chair of the New York Democratic party, told Politico. “It’s using up resources we need to preserve for more coordinated work and the rest.”
Camille Rivera, a New York-based progressive strategist, said that an intra-Democrat contest “could be pretty bruising and give a Republican a leg up”.
Signs of a deal between Ocasio-Cortez and Gillibrand came after rumors of a Senate seat challenge began to circulate last year. Gillibrand has faced criticism for her part in forcing former senator Al Franken’s resignation, accepting donations from indicted crypto king Sam Bankman-Fried and ties to Wall Street.
But Ocasio-Cortez’s staff’s choice of language – “not planning to run” is not the same as “not running”. Bronx representative Jamaal Bowman told the outlet he heard AOC’s name “weeks ago or months ago maybe” as a primary contender but hadn’t heard it since.
Ocasio-Cortez’s indication comes as high-profile progressives have said they’ll support Joe Biden’s re-election bid, despite misgivings about parts of his agenda. Ocasio-Cortez has said she “unequivocally” supports the party’s nominees.
Since Biden’s re-election soft launch on Tuesday, the sitting president has received endorsements from congressional progressive caucus leader Pramila Jayapal, representative Ro Khanna, and squad members Ilhan Omar, Greg Casar and Delia Ramirez.
The endorsements come despite disquiet about Biden’s recent push to the middle on crime, energy policy and immigration.
“I think that people are looking at the incredible accomplishments, particularly the investments in climate change and equity, racial justice, and seeing that this is night and day from what anyone else has been able to do,” Jayapal told the Hill.
Senator Elizabeth Warren has said she’s “delighted” about Biden’s decision. “I’m in all the way,” she told the outlet.
Vermont senator Bernie Sanders, who ran for the Democrat nomination against Biden in 2020, told CNN’s State of the Union Sunday: “If you believe in democracy, you want to see more people vote, not fewer people vote, I think the choice is pretty clear, and that choice is Biden.”
But Sanders leaned on Biden to be stronger on working-class issues, and urged the president and the party “to make it clear that we believe in a government that represents all, not just the few, take on the greed of the insurance companies, the drug companies, Wall Street, all the big money interests, and start delivering for working-class people.”
“You do that, I think Biden is going to win in a landslide,” Sanders added.
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Sen. Chuck Grassley, R-Iowa, during a Senate Judiciary Committee oversight hearing on Sept. 29, 2022, on Capitol Hill in Washington, D.C. (photo: Mariam Zuhaib/AP)
Under a new rule proposed by the Bureau of Prisons, however, most of the money Hoolan sends to her son would not go to him. Instead, the majority of the money sent to prisoners' commissary accounts would first go to pay their restitution debts and outstanding court fines.
Opponents of the plan say it shifts responsibility to family members, like Hoolan.
"I still love him, and understand addiction," Hoolan said. But "it's more like now I'm paying his restitution and not him."
Sanders agrees with his mother. He hates that he has to ask for help. "My mother is all that I have, and she can only do so much," he said. "The bottom line is, I don't feel that it's her responsibility to pay my restitution."
The new rule would require that 75 percent of all the money family and friends send a person in prison go to pay their outstanding debts.
The Bureau of Prisons is considering the rule change after a Washington Post investigation raised concerns about high-profile people, like sex offender and former rap artist R. Kelly, keeping large sums of money in their prison accounts rather than paying restitution to their victims.
Members of Congress from both parties were outraged to learn inmates were avoiding paying restitution. In a hearing on Capitol Hill last September, U.S. Sen. Charles E. Grassley of Iowa said that "inmates, such as the Boston bomber and Larry Nassar, have thousands of dollars to spend on cigarettes and candy that's stashed at the Bureau of Prisons."
But lawyers and advocates for people in prison feel that the proposed rule goes too far. Shanna Rifkin, deputy general counsel for Families Against Mandatory Minimums, agrees that the Bureau of Prisons should not let wealthy people like R. Kelly avoid restitution, but she also thinks the proposed rule is too broad.
"It's really like a sledgehammer, when you could bring a tool that was much smaller to address the problem," she said.
Other advocates, like Ellen Degnan, a staff attorney with the Southern Poverty Law Center, argue the courts should fix the problem themselves by setting individual payment plans during sentencing.
"Courts can solve this problem," she said. "This is not for the BOP to meddle in."
Even advocates for people who are owed restitution are wary of the proposed rule. Bridgette Stumpf, executive director at the nonprofit Network for Victim Recovery of D.C., thinks the rule has the potential to get some victims restitution more quickly than they would otherwise. Still, she thinks the consequences need to be balanced.
Many of the people who would be impacted by the proposed rule do not owe victim restitution, but instead owe court fines and fees related to their initial sentencing. Sagan Soto-Stanton's husband is one of those people. He has been incarcerated for the last 10 years for a non-violent drug crime, and still has $9,000 worth of court fees to pay off. Seeing the proposed rule was difficult for Soto-Stanton.
"It's already an impact to families like myself that are supporting their loved ones," she said, "but then to do something like this it's only making it more challenging."
The Bureau of Prisons declined NPR's request for comment. In a statement, a spokesperson said that commissary accounts are a privilege, and that the Bureau remains committed to assisting inmates in paying their financial obligations. Officials say they will be reviewing public comments carefully, and that there isn't a deadline for a decision on this rule being made.
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Residents at the Food Bank for New York City in 2013. People ages 50-55 on food stamps will be heavily affected by House Republicans' proposed work requirements. (photo: John Moore/Vox)
Some more people might get jobs. What about those who don’t?
The Lift, Save, Grow Act, the House GOP’s opening bid in the debt ceiling drama, would add work requirements to Medicaid — the health insurance program for low-income Americans — and expand those in Supplemental Nutrition Assistance Program (SNAP, or “food stamps”) and Temporary Assistance for Needy Families (TANF, often called “cash welfare”).
Requiring people to work to be eligible for social program benefits doesn’t save much money in the scheme of things; the Congressional Budget Office found it would save about $120 billion over 10 years, or 0.2 percent of the 10-year budget. But they could have a major impact on the low-income families that rely on these programs. The White House (hardly a disinterested party, but still) projects the Medicaid provisions could put 21 million people at risk of losing their health insurance. (Roughly 90 million Americans currently receive Medicaid benefits.)
Defenders of work requirements for social programs tend to point to evidence that they, well, “work” — that is, that when work requirements are in place, more benefit recipients wind up employed, which they argue is better than the unemployed passively receiving benefits.
One response from opponents is to dispute the evidence. Arkansas, the first state to introduce Medicaid work requirements in 2018, saw no increases in employment as a result, even as the share of the population without health insurance surged. As my colleagues Alvin Chang and Tara Golshan noted a few years ago, a review of several randomized experiments with work requirements for cash welfare found that while they boost employment noticeably early on, the effects fade quickly with time:
Let me make a slightly different argument. I think it’s plausible that work requirements modestly increase work in the short or even long term. But I think they are still a bad idea, because of the effects on the people for whom they do not “work.”
Work requirements inevitably leave in their wake a large group — maybe 20 percent, maybe 30 — who do not or cannot work after their implementation. Those people are then left without either wages or support from the government program that’s now kicked them out. Applied to food stamps and Medicaid, that means creating a group of people who have no cash income, no means of buying food, and no health insurance.
The prospect of abandoning a large group of Americans to that fate should trouble us greatly.
Who is left behind when you add work requirements?
Work requirements are not new. SNAP currently has work requirements for able-bodied adults age 18 to 49 without dependents. The Limit, Save, Grow Act would apply these requirements to people from age 50-55.
Medicaid currently has no work requirements (the Arkansas experiment was blocked by a court). The House bill would change that. Adults aged 19 to 55 without dependents would have to work, do community service, or engage in work training for at least 80 hours a month (about 18 hours a week) to receive Medicaid.
Let’s suppose these requirements, put together, would be startlingly effective at raising 50 to 55-year-olds’ work participation. Let’s say out of the population of adults that age, without dependents, receiving both SNAP and Medicaid, the share holding a job would go from 55 percent (the current level for childless people on Medicaid) to 70 percent. That would be an enormous effect in the context of past work requirements, a huge success.
My question is: What would happen to the 30 percent of people who didn’t find work (or a training program, or a community service opportunity)? If the work requirements were vigorously enforced (as they would have to be to generate the budgetary savings the GOP wants), these people would lose their monthly food benefit. They would no longer have health insurance if they got sick. And they would not have a job. They would have no source of cash income or government support whatsoever.
We don’t really have a recent precedent for so thoroughly abandoning a group of Americans. In the 1990s, Bill Clinton signed a welfare reform bill establishing strict work requirements on cash welfare — but he did so only because no such requirements were imposed on parents’ access to food stamps or Medicaid. He had vetoed two earlier GOP bills that attempted to limit those programs, later telling journalist Jason DeParle, “I thought there ought to be a national guarantee of health care and nutrition.” After welfare reform, the share of people with no income except for food stamps rose sharply.
What the House GOP is now proposing is to pull that safety net out from under the very poorest. If you are someone who can’t meet the new requirements in the world the House GOP is contemplating, you will not have a guarantee of health care and nutrition to fall back on. You will have nothing but private charity and desperate hope.
One sees a similar dynamic at work with disability insurance. The Social Security Disability Insurance program absolutely discourages people from working. There are excellent, rigorous studies proving this, and it annoys me when otherwise like-minded friends try, in defending the program, to pretend that this isn’t true. The reason to keep SSDI, and to not cut it, isn’t that it has zero effect on work. It’s that efforts to reform it and kick participants off will inevitably throw out people who will still be out of work, disabled, and now extremely poor.
A famous study measuring the effect of disability insurance found that in a group of applicants they examined, 52.2 percent of people denied benefits wound up working and earning at least $1,000 after two years; that compares to only 14.8 percent of people granted benefits who ended up working. That’s a big negative effect on employment.
But think about the 47.8 percent of rejected applicants who still were not working. They’re not getting any earnings, and they’re not getting any disability benefits. They’re just very, very poor. Don’t we owe them something? Would toughening up eligibility to force those who could be pressured to work to do so be worth impoverishing this other population, who wouldn’t work either way? Who perhaps couldn’t, physically, work either way?
Work is a good thing. But mercy is a good thing too. There has been a rough consensus, reflected in government policy, in the United States that poor people should not starve, whether or not they work. They should not die for lack of medical care. There should be a (patchwork, imperfect) safety net to prevent the absolute worst possible outcomes.
The moral case against work requirements isn’t that they don’t work, but that they can never work perfectly. There will always be people kicked off benefits who also do not or cannot work — and they will be without any economic resources at all in one of the richest nations the world has ever known.
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In East Palestine, Ohio, 47 people were killed when a runaway train exploded on 3 February. (photo: Gene J Puskar/AP)
Gas giant New Fortress Energy’s cars would have taken a route from Pennsylvania to New Jersey, hauling its explosive cargo
The proposal’s opponents warned prior to the recent East Palestine wreck that a derailment would likely result in a catastrophe, and those fears were amplified in the Ohio train disaster’s wake.
The plan was significant because it asked for approval to move an “unprecedented” amount of liquified natural gas by rail, and seemed to be designed to circumvent more heavily regulated pipeline transportation, said Kim Ong, an attorney with the Natural Resources Defense Council, which worked to derail the plan.
The Department of Transportation did not give a reason for the denial in federal registry documents, and opponents to the proposal were “surprised” but pleased by the development, Ong added.
“It is hard to say why they decided to do what they did, but hopefully the East Palestine disaster would make them look more closely at the transport of all hazardous and explosive materials across the country,” Ong said.
But she noted the New Fortress plan is still possible as long as Biden’s transit department keeps in place a Trump-era rule allowing liquified natural gas, or LNG, to be transported by rail.
New Fortress did not immediately respond to a request for a comment.
Prior to the East Palestine disaster, 47 people were killed in the town of Lac-Megantic, Quebec, in 2013 when a runaway train exploded. In February 2020, a crude oil train derailed and exploded outside Guernsey, Saskatchewan, and an ethanol train in Kentucky derailed and burst into flames a week later.
Still, the Trump transportation department in 2020 approved a rule to allow 100 or more tank cars filled with 30,000 gallons (114,000 litres) of LNG to be shipped via rail. The decision was opposed by local leaders, unions, fire departments and the National Transportation Safety Board (NTSB).
“The risks of catastrophic LNG releases in accidents is too great not to have operational controls in place before large blocks of tank cars and unit trains proliferate,” the NTSB wrote in a comment on the proposed rule.
Public health advocates note that 22 train cars filled with LNG hold the equivalent energy of the Hiroshima bomb, and the risk to people living near the rail lines was too great.
New Fortress’s route would have taken its trains through Philadelphia and other densely populated areas where about 1 million people live in blast zones. Its destination was Gibbstown, New Jersey from where the gas largely would have been shipped to the Caribbean.
Ong noted it is possible that New Fortress could still sue the transportation department because the Trump LNG rule remains on the books, and advocates have been pressuring US transportation secretary Pete Buttigieg to repeal it after the department missed three deadlines to do so, most recently in March.
“I hope they’re delaying it because they’re developing robust scientific studies and a robust set of evidence that demonstrates that LNG by rail is not safe to transport in any part of the US, under any circumstance,” Ong said.
In a statement, the transportation department downplayed the urgency. It said specialized cars are needed to transport LNG under the new rule, and none had been ordered for manufacture.
The denial leaves the development of an LNG shipping terminal in Gibbstown unclear, though a department spokesperson said external litigation around exports had already halted it. The gas could be shipped by truck, but the volume that needs to be moved could be too large, Ong said.
The proposal was likely an industry test balloon to see if it could ship gas by rail instead of pipelines, which are subjected to much stricter environmental review, public scrutiny, and which can be blocked by state environmental rules, Ong said. By contrast, the federal environmental review for shipping by rail is “brief” and “very narrow in scope”, she added.
“This is overtly an attempt to bypass federal regulations and build out LNG infrastructure in a much more rapid and much less responsible way,” Ong said.
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