It is the true definition of love.Read more

The gentle breeze moves across the American flags. The flags ripple, and for a moment the field becomes more than a display. It becomes a reminder that freedom is not free.Read more

It’s summer, it’s hot and the cool blue waters of the Kern River may look inviting, but local officials have a simple message: Stay out, stay alive.Read more

State Sen. Melissa Hurtado, D-Bakersfield, had two jobs to do at a news conference at Meadows Field Airport on Friday.Read more

Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not reflect the official opinions of SCOTUSblog.The Supreme Court shapes constitutional and statutory meaning in an era defined by rapid technological change. But, despite presiding over disputes that involve online conduct, the court itself is strikingly absent from that world. This absence is especially notable in social media. Can – or should – the court continue to remain so disconnected?This is not idle speculation. Across the globe, high courts have begun to embrace social media as a tool for transparency and civic engagement, offering real-time updates, summaries of their decisions, and direct communication with the public. By contrast, our Supreme Court continues to rely on traditional methods – written opinions, limited audio of oral arguments, transcripts, and occasional public appearances – to convey its work. At the same time, the justices have acknowledged the profound influence of digital platforms on speech, governance, and public perception and have expressed concerns about misinformation and the real-world harms that can stem from online ignorance.The court needs to bridge this gap. To so, it should adopt a semi-limited, institutional approach to things like social media – using official, nonpartisan channels to communicate clearly with the public while preserving judicial neutrality, in a manner comparable to how some state court judges have used their platforms in furtherance of their official duties. This model would enhance transparency and accessibility without exposing individual justices to the risks associated with certain kinds of online engagement. In other words, the judiciary should recognize that thoughtful participation – not complete disengagement, as is the case now – is the best path forward. And it should do so sooner rather than later.SCOTUS’ mixed relationship with social mediaThe Supreme Court maintains a striking institutional distance from social media. As far as we know, none of the nine sitting justices operate public personal accounts on platforms like X, Facebook, or Instagram, a choice that reflects longstanding norms of judicial neutrality and a desire to avoid even the appearance of impropriety. (Of note: in 2020, Justice Elena Kagan did say she “lurks[s] on Twitter.”)Although some close relatives of the justices maintain limited and largely private presences online, they are careful to maintain personal and professional identities without implicating the court. One notable exception is Ginni Thomas, the wife of Justice Clarence Thomas. In the aftermath of the 2020 presidential election, Thomas used social media and private communications to promote claims of election fraud and to urge political officials to take action related to the certification of the election results. Her outspoken online activity and broader political advocacy brought renewed attention to the potential risks posed by even indirect connections between the court and online discourse.These activities, which became public through reporting and congressional investigation, sparked widespread debate over judicial ethics, recusal, and the extent to which a justice may be affected by the political conduct of a justices’ close family members. But, above all, they made one thing clear: while the justices themselves remain absent from social media, the realities of modern communication inevitably reach the court’s orbit.Perceptions of social media at the high courtAs for the court’s engagement with social media through its opinions, this has not amounted to any sort of unified doctrine, but a collection of various concerns that cut across ideological lines.During oral argument in Moody v. NetChoice in 2024, for example, Justice Amy Coney Barrett candidly acknowledged that the regulatory landscape surrounding digital platforms makes her “a little bit nervous.” That hesitation was not simply about the novelty of this medium, but about the difficulty of applying traditional First Amendment frameworks to a space shaped by private actors, algorithmic enhancement, and global reach. This in turn has led the court to question how far regulation can – or should – go in such a rapidly developing area.In Biden v. Knight First Amendment Institute, decided in 2021, a GVR (grant, vacate, and remand) decision, Thomas, in a concurring opinion, suggested that dominant social media companies may function as “common carriers,” and raised alarms about their ability to control access to speech in what increasingly resembles a modern public square. In contrast, the court’s other members have tended to focus more on social media as a source of misinformation and real-world harm, emphasizing the risks of under-regulation. At a 2021 event, Justice Sonia Sotomayor warned that the digital information ecosystem poses an “extraordinary challenge” to how Americans receive news. At the same event, Justice Neil Gorsuch echoed those concerns, emphasizing that misinformation can erode democratic stability from within – highlighting that anxieties about social media’s impact on democracy are not confined to one ideological perspective but reflect a broader, bipartisan concern. Building on this theme, Justice Ketanji Brown Jackson in 2024 suggested that an overly rigid application of the First Amendment could “hamstring” the government’s ability to respond to harmful content, particularly in high-stakes contexts like public health crises.Social media among judges not on the Supreme CourtThe justices’ concerns have played out, albeit in very different ways, throughout the judiciary. Although, as noted, the Supreme Court’s engagement with social media has been sparing (to put it lightly), that is not the case with the judiciary in general. For federal judges, there isn’t a defined code of conduct explicitly for social media, though judges are supposed to uphold the same standard online that they would in person. In many states, however, judges are generally permitted under codes of conduct to operate on social media within carefully constructed ethical frameworks that prioritize impartiality, restraint, and public confidence. In Texas, the Texas Code of Judicial Conduct permits online engagement so long as judges avoid political activity, public commentary on pending cases, and any conduct that undermines the judiciary’s integrity. Similarly, Illinois allows judges to maintain a presence on platforms like Facebook or LinkedIn but cautions against connections or communications that could suggest bias or improper influence. California takes a slightly different approach, explicitly recognizing social media as a permissible tool for outreach while warning against ex parte communications and online interactions with attorneys or litigants. And New York emphasizes an “appearance of impropriety” standard, instructing judges to use social media cautiously to avoid any perception that their neutrality could be compromised. Taken together, these jurisdictions reflect a consistent principle: social media is not prohibited, but it is tightly regulated so as not to damage judicial legitimacy.With this in mind, some state court judges are beginning to explore how digital platforms can translate complex legal processes into accessible information. Georgia Court of Appeals Judge Stephen Dillard, for instance, recently argued that social media, when used carefully, offers a way for judges to explain procedures, highlight court operations, and humanize the judicial role without compromising judicial impartiality. In this sense, judges can act as interpreters not only of the law, but “legalese” itself, making the work of the courts more transparent and understandable to the communities they serve.This is not without its dangers, somewhat highlighted by the example of former Texas Supreme Court Justice Don Willett. Prior to becoming a judge on the U.S. Court of Appeals for the 5th Circuit, Willett was widely known for his active and often engaging presence on social media, using Facebook and X (then Twitter) to promote civic education and make the judiciary more accessible to laypersons. But during his 2017 nomination to the circuit court, Don Willett’s social media presence – though widely regarded as humorous and accessible – subjected him to increased scrutiny. That attention highlighted a broader concern that even well-intentioned, informal posts can be removed from their original context and, in a judicial setting, raise questions about impartiality and judicial bias. In response, Willett indicated that he would step back from social media use as a federal judge to avoid any potential issues and to preserve the appearance of neutrality.Other judges have demonstrated how social media can be used to meaningfully enhance public trust in the judiciary. One of the most prominent examples is Rhode Island Judge Frank Caprio, whose courtroom clips – widely circulated on platforms like Facebook and YouTube – have reached millions of viewers. Through these videos, Caprio explains legal outcomes in plain language, often emphasizing fairness, compassion, and judicial discretion. In doing so, Caprio has acted as a bridge between the public and the often-opaque language of the law, reinforcing the idea that social media, when used thoughtfully, can strengthen confidence in judicial institutions rather than undermine it.At the same time, more recent examples illustrate how digital and visual communication can raise new concerns. In a dissent in Duncan v. Bonta, U.S. Court of Appeals for the 9th Circuit Judge Lawrence VanDyke included a self-produced video demonstrating firearm mechanics – an unusual form of judicial expression that circulated widely online. VanDyke framed this as an effort to clarify the factual basis of his argument. Critics, however, dismissed it as a stunt, which cheapened the judiciary. Earlier this year, Delaware Chancery Court Chancellor Kathaleen McCormick reassigned several cases involving Elon Musk after Musk’s attorneys alleged that her LinkedIn activity reflected bias against him. The controversy stemmed from a LinkedIn “support” reaction tied to a post celebrating Musk’s loss in separate litigation (McCormick denied any bias and stated she may not have intentionally engaged with the post). Both incidents demonstrated how online activity can generate intense scrutiny and complicate public perceptions of judicial impartiality in the digital age.The Supreme Court and the online worldAs the examples above demonstrate, the judiciary’s engagement with social media has begun, even if it is still in its infancy. And whether it likes it or not, the Supreme Court cannot remain immune from this. This is especially true as Millennials and Gen Z, many of whom have lived much of their life on social media, come to fully dominate the legal profession – and eventually the judiciary itself. So where does this leave us?First, as some state courts have done, the justices should adopt official, nonpartisan social media channels to provide plain-language summaries of opinions, highlight oral arguments, and explain procedural developments. Such an approach would enhance transparency without compromising judicial neutrality or inviting the risks associated with personal commentary. Judge Caprio provides a great example here, explaining his opinions and courts processes in plain language while avoiding any partisan or inflammatory rhetoric.Second, justices’ family members should remain free to express themselves online without being pressured into silence due solely to their proximity to the court. A justice should not automatically be viewed as endorsing or aligning with every statement, opinion, or post made by a spouse, child, or other relative, particularly where the activity is personal, nonpolitical, or unrelated to matters before the court. At the same time, situations involving direct political advocacy, active involvement in matters connected to pending litigation, or online activity that creates a substantial appearance of bias may reasonably raise serious ethical and recusal concerns.Third, and perhaps most controversially, I would encourage Supreme Court justices to go beyond purely institutional communication and, within appropriate ethical boundaries, use social media to express limited aspects of their personality and public identity. While official court accounts can improve transparency and procedural understanding, carefully managed personal accounts could help make the judiciary appear more human and accessible to the public. For example, justices could share educational interests, civic initiatives, historical reflections on the court, or moments from public events that allow the public to better understand the individuals behind the institution. At a time when many Americans perceive the judiciary as distant or opaque, this type of measured personal engagement could strengthen public trust by reinforcing that even those on the highest court are not abstractions, but flesh-and-blood public servants operating within the realities of modern civic life.The question is not whether social media will shape public understanding of the judiciary – it already does – but whether the courts, and the Supreme Court in particular, will play an active role in informing that understanding or remain defined by it from the outside.Read more

Yesterday’s decision in M&K Employee Solutions v. Trustees of the IAM National Pension Fund was pretty much exactly what you would have expected given the argument: a brisk rejection of the idea that the Employee Retirement Income Security Act of 1974 obligates actuaries to use out-of-date assumptions when they work on pension plans.The case involves a multiemployer pension plan, a common arrangement in which a group of employers in a particular industry band together, collectively agreeing to provide specifically defined benefits to all covered employees. A natural question under those arrangements is what happens when one employer decides to leave the group. Under ERISA, the departing employer must make a payment to the plan equal to the employer’s share of any benefits attributable to past work that are unfunded, based on an actuary’s calculation “as of” the “measurement date,” the last day of the year before the employer withdraws.Because the calculation necessarily is made after the date of the employer’s withdrawal, but “as of” the “measurement date” in the preceding year, the statute contemplates a gap between the state of contributions and obligations that set the departing employer’s responsibility and the date on which the responsibility is calculated. The issue in this case is whether the background economic assumptions – in particular the discount rate of interest that is crucial to the amount of liability – are supposed to be accurate on the date of calculation or based on assumptions the actuary was using during the preceding year (before the employer withdrew). The question often matters a lot. In this case, for example, the departing employer owed more than three times as much under the interest rate that was current on the date the actuary made the calculation as it would have owed under an interest rate set the previous year.Justice Ketanji Brown Jackson’s brisk opinion for a unanimous court is squarely on the side of accuracy as of the date that the actuary in fact makes the calculation. Jackson’s take on the statute is that the requirement to make the calculation “as of” the measurement date “means two things. First, the hard data about the plan that feeds the … calculation must be fixed on the measurement date. Second, … the actual … calculation can be performed after the measurement date.” For her, “the key question is whether actuarial assumptions [like the proper discount rate] are akin to the facts about the plan that must be fixed on the measurement date, or whether they are a part of the … calculation itself and can therefore be selected after the measurement date.”Once she has posed that as the question for decision, the case is pretty much over. Jackson explains that “actuarial assumptions … are not factual inputs. Instead, they are predictive judgments about a plan’s anticipated future performance—tools actuaries use to calculate the plan’s [unfunded future obligations].” In practice, she points out, “actuarial assumptions are adopted for the purpose of a particular calculation or measurement; they are not generally ‘in effect’” for some particular time period. In short, “[b]ecause actuarial assumptions are tools used to calculate [unfunded future obligations] rather than hard data about the plan, they cannot be ‘frozen’ on the measurement date.” Thus, Jackson concludes, the statutory “as of” requirement only “sets the reference point for the factual inputs into the … calculation. It has no bearing on when actuaries must select the tools, including assumptions, they use to calculate a plan’s [unfunded future obligations].”Jackson buttresses her conclusion by pointing out that the statute requires only that the actuary’s assumptions must be “reasonable,” “tak[e] into account the experience of the plan and reasonable expectations,” and “offer the actuary’s best estimate of anticipated [future] experience under the plan.” It did not, though, directly specify that actuaries should select assumptions as of any particular date. For other calculations under the statute, in contrast, Congress did much more to specify the relevant assumptions. Congress’ failure to specify the relevant assumptions here, Jackson “presume[s,] is intentional.”In the grand scheme of ERISA litigation, I doubt this will be an important decision. The justices needed to decide it because courts in New York were applying a contrary rule, but it seems unlikely to shed light on the general provisions governing plan administration that spark the great bulk of ERISA litigation.Read more

Last month, The New York Times published a major scoop: the inside story of the Supreme Court’s 2016 order blocking then-President Barack Obama’s Clean Power Plan, an environmental initiative intended to address climate change, on its interim docket.In the story, Jodi Kantor and Adam Liptak suggested that the order “marks the birth … of the court’s modern ‘shadow docket,’ the secretive track that the Supreme Court has since used to make many major decisions.” But Kantor and Liptak’s story was notable for another reason: it relied on a series of confidential internal memos that the Times had obtained from an undisclosed source. This was a rare leak from an institution that prides itself on keeping its internal workings out of the public eye – and has mostly, but not entirely, succeeded.Perhaps the leak that will come to most readers’ minds was also one of the most significant leaks in Supreme Court history. On May 2, 2022, Politico reporters Josh Gerstein and Alexander Ward published what they described as a draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization that would overturn the constitutional right to an abortion recognized in Roe v. Wade.The Supreme Court confirmed that the draft opinion was authentic and announced that the court’s marshal, Gail Curley, would lead an investigation into the leak. In January 2023, however, the court released a report in which it revealed that Curley’s team had “to date been unable to identify a person responsible” for the leak “by a preponderance of the evidence.”The draft opinion itself sparked protests around the country, including at the Supreme Court building and some justices’ houses. Justice Brett Kavanaugh was also the target of an attempted assassination in June 2022. The would-be assassin, who cited the leak of the draft opinion as a motive, pleaded guilty last year and was sentenced to eight years in a federal prison.Although the Dobbs leak was one of the most dramatic leaks in Supreme Court history, leaks of confidential information (without confidential documents accompanying that information) have been significantly more common – if not commonplace – for more than a century.Some of these leaks occurred before the decisions involved were released. Shortly after the Dobbs leak, for example, law professor Jonathan Peters noted that in the 1850s, the New York Tribune revealed the outcome of the Supreme Court’s decision in a dispute between Pennsylvania and the Wheeling & Belmont Bridge Company not once but twice – in 1852 and then again when the case came back to the court in 1854.In 2002, John Owens, now a judge on the U.S. Court of Appeals for the 9th Circuit, recounted the story of Ashton Embry, a former law clerk to Justice Joseph McKenna who was indicted in 1920 on charges that he had leaked the results of the Supreme Court’s decision in a case involving Southern Pacific Railroad to investors, who made money by selling the company’s stock before the decision was released. Embry’s indictment was dismissed nearly a decade later.Although the draft opinion itself was not leaked in Roe, there were two different leaks disclosing the machinations behind the scenes, and ultimately the results, in that case. The first leak, Peters noted, was an unsigned 1972 article in The Washington Post that described the “internal court struggle over” the case, including the results of the initial vote and efforts by then-Chief Justice Warren Burger to delay the court’s decision. The story also discussed the substance of several private notes and memoranda exchanged among the justices, although it did not publish the notes and memoranda themselves.And in 1973, a law clerk revealed the results of the decision to a reporter for Time magazine, giving him the information “on background” to use after the opinion was released. But the opinion was delayed, and Time instead published the story shortly before the opinion announcement on Jan. 22, 1973. According to Peters, the incident led to Burger’s creation of what became known as the “20-second rule” for law clerks: any law clerk seen talking to a reporter would be automatically fired within 20 seconds.Court insiders have also disclosed confidential information to reporters after decisions have already been released, often shedding new light on the court’s decision-making process even if the results in a particular case are already public. In 1979, journalists Bob Woodward and Scott Armstrong published The Brethren, a detailed, behind-the-scenes look at the first few years of Warren Burger’s tenure as the court’s chief justice. Closed Chambers, published in 1998 by Edward Lazarus, pulled back the curtain on his year as a law clerk to Justice Harry Blackmun.And in October 2004, law clerks who were working at the court when the justices issued their 5-4 decision in Bush v. Gore, which ended the presidential election recount in Florida and allowed for the victory of George W. Bush, spoke with reporters for Vanity Fair. The clerks, who were not identified, offered a detailed look behind the scenes of the court’s handling of the litigation and criticized the court’s decision as driven by partisanship on the part of the court’s conservative justices; the article, and the clerks’ decision to speak with Vanity Fair, in turn drew criticism from other former law clerks and judges. Eight years later, Jan Crawford of CBS News broke the story of an about-face by Chief Justice John Roberts on the validity of the Affordable Care Act’s individual mandate, which required nearly everyone in the United States to buy health insurance or pay a penalty. Roberts, Crawford wrote, “initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, … but later changed his position and formed an alliance with liberals to uphold the bulk of the law.” Crawford attributed her reporting to “two sources with specific knowledge of the deliberations.”In 2019, CNN’s Joan Biskupic reported that Roberts had changed his vote in the challenge to the inclusion of a question about citizenship on the 2020 census, ultimately agreeing with the court’s (then) four Democratic appointees that there was “a significant mismatch between the decision the Secretary made and the rationale he provided.” Much like Crawford, Biskupic wrote that her information came from “sources familiar with the private Supreme Court deliberations.”Just over a year and a half after the leak of the draft opinion in Dobbs, Kantor and Liptak reported on the “inside story” of the Dobbs decision. Among the many details revealed for the first time in their story was that Justice Amy Coney Barrett, who eventually joined Alito’s opinion overturning Roe, at one point voted against taking the case. Moreover, they wrote, although the justices agreed in early January 2021 to grant review, the court delayed its announcement that it would hear oral argument in the case until May, at Kavanaugh’s suggestion.In 2024, Kantor and Liptak pulled back the curtain on yet another set of proceedings at the court that had already concluded, this time involving (among others) the court’s decision granting President Donald Trump broad immunity from criminal prosecution for his acts as president. Roberts, Kantor and Liptak reported, had sent his colleagues “a confidential memo that radiated frustration and certainty.” “He wrote,” they continued, “not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it.”In a recent appearance on Fox News Sunday to promote his new children’s book, Justice Neil Gorsuch criticized the recent spate of leaks, saying that the court needs to be able to “leave room for candid conversations and deliberations with one another.” But with the current divisions on the court, and the aggressive efforts by outlets like The New York Times to uncover more information about what is going on behind the scenes, we may well see even more leaks in the years to come.Read more