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Sure, but as is recognized in a wealth of contexts involving government confidences (including executive privilege), the deliberative confidence rationale for suppressing such disclosure weakens with age, not to mention when confronted with the 1st am. This isn't an edge case for the press clause.

Relevant to that balance as well, the state's interest in safeguarding the attorney-client relationship is not the same as its interest in other confidences. Not all confidences need to be treated equally by the Bar rules.

I would think age of the materials quite relevant to how effectively the state's interest in confidentiality can compete with First Amendment interests in not chilling journalism about an entity exercising state power. There's no avoiding some kind of balancing here.

I was thinking of, e.g., busing orders, which I don't think were unethical. At bottom, it's an exercise of judgment about the nature/magnitude of the injustice (and, in that case, its relation to the integrity of the court's own authority).

fwiw, I think that's sometimes, if rarely, appropriate in their equitable discretion (assuming they also think the policy is unlawful)

The code of conduct seems to me to lack the resources to distinguish the release of confidential materias to Adam Liptak versus the public generally. (And are retired justices "ex-Justices"? Is SGB an A3 judge? If so, on what court?)

Curious how you think age of the materials should factor. What if the memos were 30 years old? 100? And what of the papers issue? As you know, WHR was mad about Marshall's papers being released so soon after his death. Do you think that implicates judicial ethics? bsky.app/profile/jama...

This, from @stephenesachs.bsky.social, is interesting. I'd think it relevant (at least to a 1A balance) that it's 10-yr-old memos, not opinion drafts. Also, it would follow from this analysis that justices releasing their papers, eg, might violate the Code of Conduct, which I think can't be right.

Also a poor understanding of how teaching adults works. Teaching normative texts means teaching their arguments in addition to the shortcomings of those arguments. They should be careful what they wish for.

Without committing to specific numbers, a federal anti-SLAPP law for high-government officials should clearly be on the agenda of the next sentient Congress.

I thought you mightn't. I'll only note that part of what people are finding alarming about these memos (though the alarm isn't new, as you note) is remedial innovation in response to a perceived power grab. Now, with a far larger power grab, district courts are being ordered to stay in their lanes.

I agree with much of this, but it seems to me that your fourth point leaves some serious--dare I say scandalous--questions as to why the Court does not seem more alarmed now than it was then. The things you say *we* now know seem to have escaped the current majority's notice.

I think it’s fine that the justices sell books. I think it’s not fine that they stay on the Court for life.

I generally agree, at least in the absence of clear congressional blessing.

Most striking to me about these memos is the radically different assessment of the harm imposed by the president not being able to pursue his initiatives. Over the last 15 mos., that harm has in numerous cases been treated as almost per se serious and irreparable. Here, it gets no analysis at all.

This is an especially useful exercise in law, where the power of the state routinely rests on inherited wisdom. Interrogating those claims and tracing their genealogy is a great pedagogical exercise for students and can provide for a great paper for scholars.

Probably safe to delete "said she".

An extraordinary document.

I do think some critics of the academy simply misapprehend--or apprehend but wilfully misdescribe--what teaching is, and conflate exposure with indoctrination. Some of this is just incognizance, but some is opportunism or projection from people with authoritarian personalities (in Adorno's sense).

It is true that there's a dearth of conservative faculty. I wish there were more, but this seems to me less an intellectual or epistemic problem than a political and social one, since it makes universities easy political targets and deters conservative students.

This thread seems just right to me. I learned economics from Marty Feldstein and Greg Mankiw. This is not unusual. There is also LOTS of teaching of conservative ideas by non-conservatives, just as many conservatives teach progressive ideas. Good teachers teach the field, not their personal views...

So much on my mind, I just can't recline,
Blastin' holes in the night 'til she bled sunshine.

Academic work can be bad or misconceived or subject to partisan capture, of course, but a field’s misalignment with the political spectrum outside the field isn’t reliable evidence of that.

It’s obvious on reflection but bears occasional repeating that there’s no reason to think the ideological spectrum of professionally validated academic work should align with the contemporary political spectrum. Sometimes it’s left of it and sometimes right….

Constitutional double jeopardy doesn't generally apply across jurisdictions, but I wonder if an exception would be made if, e.g., a state just said any federal conviction automatically, as such, gives rise to a state prosecution. This isn't that, but may raise similar concerns. Not my area.

At a blush I'd think the strongest arguments against it would be (1) a Supremacy Clause argument a la McCulloch (state is specifically burdening the exercise of federal power) or (2) more weakly, a double jeopardy argument grounded in the state prosecution being parasitic on federal conviction. . .

I agree! Though I also think the personal politics of a professor is a *very* noisy signal of which ideas they expose their students to.

Tbf, there are few social problems in 2026 A.D. bigger than the suppression of conservative ideas. Like, has anyone heard from Heritage lately?