It all started when several 6-foot-tall black-and-white portraits of Bakersfield Sound legends like Buck Owens and Merle Haggard went missing following the surprise closure of Trout’s Oildale honky-tonk in 2017.Read more

Kern County’s ambitions for becoming a carbon management hub could get a financial boost from a state program offering up to $11 million in cap-and-invest money in support of demonstration projects that would pull greenhouse gas directly from the atmosphere.Read more

No fewer than three local memorial ceremonies were held Thursday in Bakersfield in commemoration of National Peace Officers Memorial Day and National Police Week.Read more

Downtown Bakersfield residents are taking issue with a proposal by California Water Service to build sizable filtration tanks near Mill Creek Linear Park to remove an insidious pollution from local drinking water.Read more

Lawyers for a group of Republican legislators (along with an election official and two registered voters) urged the U.S. Supreme Court on Thursday afternoon to leave in place a ruling by the Virginia Supreme Court which struck down an amendment to that state’s constitution allowing the Virginia General Assembly to enact a new congressional map. Calling the request to pause the state supreme court’s ruling “extraordinary,” the legislators stressed that the case involved “state courts applying state law to hold state actors accountable.”The 15-page filing came just three days after the state’s attorney general, Jay Jones, and other Virginia Democrats asked the justices to block the state supreme court’s decision and allow the state to use the new map, which is expected to strongly favor Democrats, in the 2026 elections.The Virginia General Assembly had adopted the new map in February of this year, as part of the ongoing effort by states across the country to give one political party or the other an advantage in the U.S. House of Representatives. But before the state could actually use the map, it needed the state’s voters to approve an amendment to the Virginia constitution that would give the General Assembly the power to draw a new congressional map outside of the normal cycle following the decennial census. Voters approved that amendment in April by a margin of around three percentage points.A divided Virginia Supreme Court invalidated the amendment on May 8. It ruled that because the General Assembly had not followed proper procedures when it put the new amendment on the ballot, the referendum was not valid. Specifically, the majority reasoned, under the state constitution the General Assembly must approve a proposed amendment to the constitution during two different legislative sessions, which must be separated by an election to the General Assembly’s House of Delegates. But in this case, the majority said, more than 1.3 million votes had already been cast by the time the General Assembly first voted on the amendment on Oct. 31, 2025, and thus “the General Assembly passed the proposed constitutional amendment for the first time well after voters had begun casting ballots during the 2025 general election.”Jones and the Virginia Democrats defending the General Assembly’s actions came to the Supreme Court on Monday, asking the justices to intervene. They contended that the dispute implicates “two critical issues of federal law” – specifically, the meaning of the term “election” under federal law, and the idea that the state court so “impermissibly transgressed the ordinary bounds of judicial review” that its ruling should be reversed. Moreover, they added, the Virginia Supreme Court’s ruling “overthrows [a] democratic outcome just days before the Commonwealth must begin its preparations to administer the 2026 midterm election.”In their filing on Thursday afternoon, the Republican legislators countered that it is too late for the Supreme Court to intervene now because Jones had “‘identifie[d] May 12 as the point of no return’ for on-the-ground election preparations.” Indeed, they noted, Virginia Gov. Abigail Spanberger has now indicated that Virginia will not use the 2026 map in the upcoming elections.The Supreme Court should also leave the Virginia Supreme Court’s ruling in place, the legislators continued, since Jones and the Democrats did not make any of their arguments based on federal law until they reached the Supreme Court. Because they “never raised federal claims below,” the legislators contended, “[t]he Virginia Supreme Court didn’t decide any. This Court shouldn’t consider them for the first time.”Read more

The Supreme Court on Thursday afternoon issued an order that continued to block a ruling by a federal appeals court in Louisiana which had barred the mailing of mifepristone, one of two drugs used in medication abortions – the most common form of abortion in the United States. Justice Samuel Alito, who handles emergency appeals from the U.S. Court of Appeals for the 5th Circuit, had last week temporarily put the lower court’s order on hold until 5 p.m. EDT on Monday to give the justices time to consider a request from two companies that manufacture mifepristone; he then extended that hold until Thursday at 5 p.m. Thursday afternoon’s order by the court, which was not sent to reporters until 5:26 p.m., extended that pause once again, and allows mifepristone to continue to be sent through the mail, while litigation continues in the lower courts.Justice Clarence Thomas dissented, arguing that the drug companies “cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”Justice Samuel Alito also dissented. He called the court’s order “remarkable,” and he contended that “[w]hat is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization,” the court’s 2022 decision overturning the constitutional right to an abortion.The dispute over mifepristone is not a new one for the Supreme Court. In 2023, in a lawsuit brought by several doctors who are opposed to abortion on religious or moral grounds, as well as medical groups whose members are opposed to abortion, U.S. District Judge Matthew Kacsmaryk rescinded both the FDA’s initial approval of the drug in 2000 and its 2016 and 2021 expansions of access to it, which included allowing the drug to be used through the 10th week of pregnancy, allowing health-care providers who are not physicians to prescribe the drug, and permitting it to be prescribed without an in-person visit.The 5th Circuit concluded that the challenge to the FDA’s approval of mifepristone in 2000 had come too late, but it upheld the portion of Kacsmaryk’s ruling that rolled back the agency’s 2016 and 2021 changes that had expanded access to mifepristone.The FDA and Danco Laboratories, which makes mifepristone, appealed to the Supreme Court, which ruled in 2024 that the doctors and medical groups did not have a legal right to sue, known as standing, to challenge the Food and Drug Administration’s expansion of access to mifepristone. In a unanimous ruling, Justice Brett Kavanaugh wrote thatalthough the challengers’ objections were “sincere,” they did not give them a right to bring a lawsuit, because the doctors and medical groups had not shown that they would be harmed by the FDA’s mifepristone policies.Louisiana went to federal court last fall, seeking to reinstate the in-person dispensing requirement. After U.S. District Judge David Joseph paused the proceedings while the FDA finished its own review of mifepristone’s safety, Louisiana went to the 5th Circuit. That court agreed that Louisiana has a right to sue. It reasoned that, by allowing mifepristone to be prescribed by telehealth and sent by mail, the “FDA ‘opened the door for mifepristone to be remotely prescribed to Louisiana women,’” even though Louisiana generally bars abortion. Moreover, the court of appeals continued, the in-person dispensing requirement should be restored while the litigation continues, because (among other things) the state is likely to prevail in its challenge to the expansion of access to mifepristone.The drug manufacturers, Danco and GenBioPro, came to the Supreme Court on May 2, asking the justices to intervene. They argued that, like the doctors and medical groups in the 2024 case, Louisiana does not have standing to challenge the in-person dispensing requirement. If anything, Danco suggested, “Louisiana’s theory—that it can base standing on having to pay those doctors if someone who received FDA-approved mifepristone through the mail seeks follow-up care to treat a complication—is a more attenuated version of the” theories that the court specifically rejected two years ago. And Louisiana’s claim that it is injured because of the disconnect between federal law and its own state law is not the kind of injury that courts can review, Danco said. Putting the 5th Circuit’s order on hold, GenBioPro argued, merely “will allow the years-long status quo to remain in force while the Food and Drug Administration (‘FDA’) completes its ongoing review” of mifepristone’s safety.In its response to these requests, Louisiana insisted that it has a legal right to sue because its sovereignty has been injured, both by the violation of its laws and by its inability to enforce those laws, and because it has incurred costs as a result of the roll-back of the in-person dispensing requirement – for example, it has had to spend more than $17,000 to investigate three cases involving mifepristone sent through the mail from out of state, and it has had to pay “over $92,000 in Medicaid dollars … for emergency room care and hospitalization resulting from just two mifepristone-induced abortions in 2025.”Moreover, Louisiana argued, it is likely to prevail on the merits of its claims. It emphasized that the FDA itself is not defending the decision to allow mifepristone to be sent through the mail. And both lower courts, it said, “also rightly concluded that Louisiana is likely to succeed in its” argument that the FDA violated the federal law governing administrative agencies when it reached that decision. For example, the state wrote, the lower courts agreed that the FDA had relied too heavily on the absence of data reflecting adverse effects from the use of mifepristone when it had eliminated the mandate to report such data.Read more

A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.On the ground floor of the Supreme Court building, a statue of the Supreme Court’s most influential chief justice, John Marshall, greets visitors with an outstretched hand. On the wall behind him, in gilded lettering, is one of his most influential contributions to the U.S. Reports: “IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS.”True enough. The Supreme Court embraces this role enthusiastically, taking up only those cases that present “important federal question[s],” by which it mostly means important questions of federal law.But often the cases that come before the court involve “important federal questions” that are more factual in nature. For example: does glyphosate, a key ingredient in Roundup, cause cancer? Last month, the court heard argument in an appeal from a jury verdict finding that it does. The parties have not asked the court to decide whether the jury’s finding was correct. Instead, Monsanto (Roundup’s manufacturer) argues that the jury was not entitled to make such a finding, given that a federal agency has already decided that glyphosate does not present enough of a cancer risk to warrant a warning label.This type of fact – glyphosate does/does not cause cancer – is commonly called a “legislative fact.” That term distinguishes general facts about the world from “adjudicative facts,” which are the who, what, where, and when of individual cases. The “legislative fact” label nods to the role these inquiries might play in formulating public policy. Yet they sometimes come up in individual cases, in which individual parties are deeply invested in the answer. This month’s column is about who finds legislative facts and the role legislative facts play in Second Amendment litigation.Who decides?The Roundup case focuses with unusual clarity on a question that lurks in many of the cases that attract national attention: who decides factual questions of general import? Not, “did Frank W. Nix import tomatoes from the West Indies in 1886?” But instead, “whether tomatoes, considered as provisions, are to be classed as ‘vegetables’ or as ‘fruit’ within the meaning of the Tariff Act of 1883.” Not, “did Curt Muller require Mrs. E. Gotcher to work in his laundry for more than the ten-hour limit set by Oregon’s maximum hours law?” But instead, whether “long hours of labor [are] dangerous for women, primarily because of their special physical organization.”The answer to that question – the one about “who decides,” not the ones about tomatoes or women’s physical capacities – is “it depends.” Sometimes, Congress acts on a “rational speculation” about the matter in passing a law, and courts must accept Congress’ finding even if it is “unsupported by evidence or empirical data.” Sometimes, a federal agency will make detailed findings of fact that reviewing courts must accept if they are supported by “substantial evidence.” Sometimes, the Supreme Court settles a question based on amicus briefs and independent research. Sometimes, as in the Roundup case, a jury draws its own conclusion based on evidence presented in a courtroom. This is to name just a few of the many ways our judicial system answers factual questions of general import.Here is what is surprising: we do not have very clear rules about when each of the many available methods for settling questions of “legislative fact” is appropriate. One difficulty is that the term itself captures concepts on either side of the law-fact distinction that usually determines “who decides.” Some, indeed many, so-called “legislative facts” play a role in answering questions of law (e.g., knowing the ordinary meaning of “arms” in 1791 helps us understand what the Second Amendment means). Other “legislative facts” are relevant to questions of fact (e.g., knowing the coefficient of friction for wet asphalt helps us know whether John Doe lost control of his car he took the curve at 50 mph in the rain). To take just one instance of “who decides,” if I tell you that “law” is for the judge, while “fact” is for the jury, where do “legislative facts” go?In arguing on behalf of Monsanto, Paul Clement repeatedly emphasized that the finding there had been made “by a single Missouri jury.” Glyphosate is “probably the most . . . studied herbicide in the history of man,” and there is a fairly widespread consensus among regulators that it does not cause cancer. Why, he suggested, should a handful of Missourians get to decide whether Monsanto labels it as a carcinogen?On the other hand, Ashley Keller argued on behalf of plaintiff John L. Durnell, why should a 50-year-old agency finding prevent Durnell from trying to persuade a jury of his peers that his lymphoma was caused by his exposure to Roundup? Maybe that results in a “crazy quilt” of findings about Roundup’s risks from different juries, but “that’s just the consequence of our civil jury system, where you have individual cases or controversies.”In Monsanto v. Durnell, the solution to this conundrum depends not on the justices’ own views about the best way to figure out whether glyphosate causes cancer, but instead on whether Congress has (wisely or foolishly) bound states to follow the federal agency’s determination. But in many other contexts, the Supreme Court’s answer to “who decides” has indeed “turned on a determination that, as a matter of sound administration of justice, one judicial actor” – or legislative or administrative actor – “is better positioned than another to decide the issue in question.”That is not a good way to do things. As I have argued elsewhere, “who decides” should depend on what role a question plays in resolving the case or controversy, and in what procedural consequences follow from that role under the law.Again, take Monsanto. Mr. Durnell needed to prove that glyphosate caused his cancer to prove his case against the company. That is a classic question of fact for a jury, and its susceptibility to generalization – that is, it would follow that glyphosate is a carcinogen – does not change its status as a fact. Sometimes, though, courts must make general factual determinations to answer questions of law – that is, to figure out the legal rule under which the case will be resolved. When this is the role that a so-called “legislative fact” plays in the litigation, different procedural consequences follow. The job of finding it goes to the judge, not the jury, and the judge is not limited to considering evidence presented in a trial-like setting.Legislative facts that figure in questions of law are especially common in constitutional cases, and judicial handling of them has been lamentably inconsistent. Nowhere is this more apparent than in Second Amendment litigation.Legislative facts in Second Amendment litigationUnder the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, in which the court found there was a constitutional right to carry a firearm, facts about history have become increasingly important in Second Amendment litigation. As I explained in an earlier column, these historical facts are the type of “legislative facts” that are facts about law and should be treated as such. But what about modern day facts? These come up in Second Amendment litigation, too.In United States v. Hemani – a case this term that poses the question whether the government can disarm a man who admits to using marijuana every other day – there are factual questions about the behaviors of habitual drug users. The answer to these questions matters because the court has held that the “Nation’s historical tradition of firearm regulation” permits the government to temporarily disarm individuals found “to pose a credible threat to the physical safety of another.” Can Congress make a categorical judgment that those who abuse drugs pose this sort of danger? If it does, then how closely should a court scrutinize that finding? Or does the Second Amendment demand that a jury “make an individualized finding about whether somebody’s use is impacting their day-to-day life” in a way that makes them a threat to others?Or consider the many cases working their way through the courts in which parties challenge categorical bans on types of weapons (e.g., semiautomatic rifles) or their components (e.g., magazines). The Supreme Court has recognized that the nation’s historical tradition of firearm regulation forecloses bans on weapons that are “in common use.” Is the question whether an arm is “in common use” one the rights claimant must answer as a “question of fact” in the course of proving that his rights are being infringed? Or is it one the government must answer as a “question of law” in the course of proving that its ban fits the Nation’s historical tradition of firearm regulation?The answer does not depend on our gut sense that these matters are factual in nature, or our beliefs about the most efficient way to settle them. It depends, instead, on the law, which in turn demands a careful assessment of their role in the case.Take Hemani: The relevant historical tradition is comprised of regulations that involved an individualized determination that a person was dangerous. It is doubtful whether this historical tradition would accommodate a law that involves a categorical judgement – i.e., that all drug users are dangerous – regardless of the quality of congressional factfinding to support that judgment. Such a law simply would not fit the tradition of individualized assessment. Perhaps Congress could pass a different law, disarming individuals found to be dangerous due to their drug use. Under that law, though, the government would bear the burden to prove to a judicial factfinder (i.e., a jury), on a case-by-case basis, that the individual defendant presents a danger due to his drug use.Arms bans are another matter. In District of Columbia v. Heller, the court acknowledged the existence of a “historical tradition of prohibiting the carrying of ‘dangerous and unusual’ weapons.” And it held that bans on weapons “in common use at the time for lawful purposes” – like handguns today – do not fall within that tradition. The tradition Heller recognized might tolerate a categorical legislative judgment that a type of weapon is “dangerous and unusual.” And the government may be able prosecute someone under such a law without persuading a jury that the individual firearm the defendant possessed was “dangerous and unusual.” But in defending that law against a constitutional challenge, the government would have to satisfy the court that Congress’ judgment that that type of arm is “dangerous and unusual” is correct. Otherwise, the court cannot instruct the jury that a valid law prohibits possessing such an arm. A law banning arms that are in “common use” (and thus not “dangerous and unusual”) would be void, and a jury could not apply it to the facts of the case. Because the “dangerous and unusual”/“common use” analysis determines whether the law banning the arm can supply a rule of decision in the case, the inquiry – like the inquiry about the history of firearms regulation – is a question of law.As it is, practice in lower courts is all over the map. Many lower court judges have treated questions about history and arms ownership alike as evidentiary matters, subject to procedures designed for questions of fact. And others have treated questions about a person’s dangerousness as matters of legislative judgment, to which courts must defer once it is encased in a law disarming a group of people. These practices do not simply violate the procedural rules that govern “who decides” matters of law and fact. Because procedural choices shape case outcomes, they have a significant impact on the substantive right claims at issue in the litigation. It matters a good deal to someone facing jail time for keeping and bearing arms (or speaking or worshiping . . . ) whether he can put the government to its proof that he has acted outside the bounds of his constitutionally protected rights.Legislative facts are everywhere. The court’s Second Amendment cases present an excellent opportunity to provide clearer guidance about who finds them.Read more