Mike Sacks

@mikesacks.bsky.social

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Senior Advisor @courtacctability.bsky.social. Democracy advocate. Former political-legal journalist. Retired competitive air guitarist. Former Congressional Candidate. Second-Best dad ever.

Before TYMKOVICH, MURPHY, BACHARACH, Circuit Judges. BACHARACH, Circuit Judge. Appellate Case: 25-3174 Document: 38-1 Date Filed: 07/21/2026 Page: 2 This case involves the constitutionality of restrictions on free speech in public forums. Forums can be public based on tradition or designation. Wells v. City & Cnty. of Denver, 257 F.3d 1132, 1145 (10th Cir. 2001). When a forum is designated as public, the government can impose restrictions on speech if they're narrowly tailored to serve a significant governmental interest. Doe v. City of Albuquerque, 667 F.3d 1111, 1130-31 (10th Cir. 2012). For example, cities may designate a library as a public forum and adopt narrowly tailored restrictions with a purpose to provide a place to read and study free of distractions. Id. at 1128-29. Does that purpose allow a city to prohibit the display of signs inside the library? We answer yes because the signs could disturb library patrons who are reading or studying. Background On multiple occasions, Justin Spiehs visited a public library in Lawrence, Kansas, and displayed signs. The staff found that these displays violated the library's policies and told Mr. Spichs either to remove his signs or to leave. Mr. Spiehs sued the City of Lawrence and library employees, challenging the restriction on signs as a denial of free speech and equal protection, deprivation of procedural due process, and retaliation for protected speech.
Before ELROD, Chief Judge, and SMITH and WILSON, Circuit Judges. CORY T. WILSON, Circuit Judge: This case springs from the intersection of a harrowing accident and the laudable societal goal of improving and safeguarding mental health in the workplace. But the case turns on a more pedestrian question of statutory interpretation: Whether the Occupational Safety and Health Administration (OSHA) can require employers to record employees' work-related mental illnesses via the rulemaking authority conferred upon OSHA by § 8 of the Occupational Safety and Health Act (the Act), 29 U.S.C. § 657(c)(2). Based on the text of the statute, the answer is no. Therefore, we grant the petition Case: 25-60108 Document: 60-1 Page: 2 Date Filed: 07/21/2026 No. 25-60108 for review, vacate the agency's rule doing so, 29 C.F.R. § 1904.5(b) (2) (ix), and set aside the citation and penalty issued by OSHA in this case.
Comments: The American people hate this idea. If you build it over our opposition, the leaders we will elect will tear it down and leave no trace, so to render Trump even more forgettable than Ozymandias.
Mike Sacks @MikeSacksEsq • 7/1/21 I'm halfway through the audiobook of The Iliad and I'm convinced Homer was really a 12-year-old boy with no sense of plot Mike Sacks @MikeSacksEsq•7/5/21 Ok now after nearly 12 hours of tediously gory hand to hand combat descriptions I think we just finally got to the one death that triggers story's second act. Almost 5 hours to go! Mike Sacks @MikeSacksEsq • 7/9/21 Wait it's over and...no Trojan Horse? [checks wikipedia] The Roman better be a better storyteller than his Greek canonical predecessor...but Homer still has the Odyssey to prove he wasn't just a 12-year-old boy hopped up on plotless blood and guts and gods.
FREEMAN, Circuit Judge, filed the Opinion of the Court with whom CHAGARES, Chief Judge, and HARDIMAN, BIBAS, PORTER, MATEY, MONTGOMERY-REEVES, and BOVE, Circuit Judges, join, and with whom PHIPPS, Circuit Judge, joins in part. MATEY, Circuit Judge, filed a concurring opinion with whom MASCOTT, Circuit Judge, joins. PHIPPS, Circuit Judge, filed an opinion concurring in part and concurring in the judgment. MONTGOMERY-REEVES, Circuit Judge, filed a concurring opinion. MASCOTT, Circuit Judge, filed an opinion concurring in part and concurring in the judgment. CHUNG, Circuit Judge, filed an opinion concurring in part and dissenting in part. SHWARTZ, Circuit Judge, filed a dissenting opinion with whom KRAUSE, RESTREPO, and SMITH, Circuit Judges, join. KRAUSE, Circuit Judge, filed a dissenting opinion with whom RESTREPO and SMITH, Circuit Judges, join. SMITH, Circuit Judge, filed a dissenting opinion.
We decline to adopt a general "irreparable harm" exception by which parties can evade jurisdictional channeling provisions. When Congress channels claims to a particular forum, it imposes the constraints of that forum on the channeled claims. AFGE v. Sec'y of Air Force, 716 F.3d 633, 638-39 (D.C. Cir. 2013). Here, Congress has channeled claims against the Postal Service to the Commission and allowed the Commission up to 90 days to adjudicate those claims. 39 U.S.C. § 3662(a)-(b). An irreparable harm exception would undermine Congress's creation of the exclusive review scheme and the remedial limitations that accompany it. Cf. Patten, 9 F.4th at 928 ("Allowing challengers to proceed through a more general statute is particularly inappropriate when doing so would eviscerate specific requirements of the narrower scheme."). Moreover, the Supreme Court has recognized that many statutory review schemes "require parties to wait before [obtaining appellate review], even when doing so subjects them to significant burdens." Axon, 143 S. Ct. at 904 (cleaned up). With a few exceptions, such burdens do not permit parties to circumvent review schemes established by Congress.
Before: SRINIVASAN, Chief Judge, WILKINS and RAO, Circuit Judges. Opinion for the Court filed by Circuit Judge RAO. RAO, Circuit Judge: In 2020, the United States Postal Service made changes to the collection, processing, and delivery of the mail. Several states and municipalities sued in district court, arguing in part that the postal changes would affect voting by mail in the November 2020 election. The district court entered a preliminary injunction against the postal changes and later granted summary judgment for the plaintiffs on one of their claims. We conclude the district court had no jurisdiction over that claim. Congress created a review scheme that channels certain complaints about Postal Service policies first to the Postal Regulatory Commission, with subsequent review in this court. This statutory review scheme displaced the district court's jurisdiction over the plaintiffs' claim. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). We therefore vacate the grant of summary judgment for the plaintiffs.
I suspect, though, that JUSTICE THOMAS and I disagree about when and how that promise has been denied by this Court. My list is long (and sadly only getting longer). For a sampling, consider: Civil Rights Cases, 109 U. S. 3 (1883); Plessy v. Ferguson, 163 U. S. 537 (1896); De Lima v. Bidwell, 182 U. S. 1 (1901) (otherwise known as the Insular Cases); Downes v. Bidwell, 182 U. S. 244 (1901) (same); Korematsu v. United States, 323 U. S. 214 (1944); Milliken v. Bradley, 418 U. S. 717 (1974); McCleskey v. Kemp, 481 U. S. 279 (1987); Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007); Shelby County v. Holder, 570 U. S. 529 (2013); Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 181 (2023) (SFFA); Louisiana v. Callais, 608 U. S. ___ (2026).
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins as to the introduction and Part I, concurring. I join the Court’s opinion in full. I write separately to respond to some of the themes in the principal dissent. Despite his longstanding endorsement of a “colorblind” Constitution, JUSTICE THOMAS now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to “freed slaves such as Dred Scott,” post, at 56, and those who shared with them certain characteristics, post, at 1 (“no other homeland”); post, at 21 (“called America home”). It is for this reason, he says, that “children who were born in the United States but [to parents] not domiciled here” are not entitled to claim birthright citizenship. Post, at 3–4. But that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification. Even worse, JUSTICE THOMAS’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, concurring in the judgment in part and dissenting in part.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting from the denial of certiorari.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting.
BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined, and in which KAVANAUGH, J., joined as to all but Parts II–C–2 and III.
JUSTICE KAGAN, dissenting.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting.
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI UNITED STATES OF AMERICA, Plaintiff, V. No. 4:25-cr-00103-JMD ANTHONY A. MOORE, Defendant. SENTENCING OPINION The Court issues this opinion to explain why, contrary to common belief, Supreme Court precedent does not prohibit capital punishment for nonhomicide sexual offenses against children. Instead, a person who commits sexual offenses against a child can obtain relief under the Eighth Amendment from capital punishment only if he can prove that "there is a national consensus against capital punishment for that] crime." Kennedy v. Louisiana, 554 U.S. 407, 434 (2008). The Supreme Court's factual finding that a national consensus existed in 2008 against capital punishment for rape offenses involving children does not foreclose a court from finding, two decades later, that any national consensus is long gone and that those who harm children may now be executed.
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting.
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting.
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join as to Parts I, II, III, and V, dissenting.
I'll say again—AIPAC absolutely deserves to be criticized, sidelined, and rejected for its decades of negative influence on American foreign policy, including by working to prevent a peace deal that could have saved thousands of Israeli and Palestinian lives, and to oppose the 2015 Iran deal, which might have prevented the most recent war and again saved thousands of lives in Iran, Israel, Lebanon, the U.S., and beyond. I wish that no politician would accept AIPAC funding. I also wish we could get Super PACs and mega corporate donors out of politics altogether. But informed criticism of AIPAC is different from casting it as the primary evil influence in American politics.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting from the denial of certio-rari.
JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON would deny the petition for a writ of certiorari.
UNITED STATES, PETITIONER v. ALI DANIAL HEMANI ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 18, 2026] JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins, concurring. I join the Court's opinion in full because it correctly applies our decisions in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1(2022), and United States v. Rahimi, 602 U. S. 680 (2024). But I continue to believe that we veered off course in Bruen. See Rahimi, 602 U. S., at 741 (concurring opinion). I write separately to emphasize that means-end scrutiny—the approach courts applied before we adopted Bruen's "history and tradition" metric-of-fers a more rational way of assessing the constitutionality of firearm regulations. As I and others have elsewhere explained, Bruen is un-workable. It imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer "contested historical questions," and "applying those answers to resolve contemporary problems." 597 U. S., at 107 (Breyer, J., dissenting). Given those chal-lenges, it is unsurprising that Bruen's test is vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and
UNITED STATES, PETITIONER v. ALI DANIAL HEMANI ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 18, 2026] JUSTICE THOMAS, concurring. I agree with the Court that §922(g) (3) violates the Second Amendment as applied to respondent All Hemani, and I join its opinion in full. I write separately to call attention to another issue: As a matter of both original meaning and this Court's precedents, §922(g)(3) appears to exceed Congress's enumerated power to regulate interstate commerce. The statute makes it a federal crime for unlawful drug users to possess any firearm or ammunition "in or affecting commerce." 18 U. S. C. §922(g)(3). Under the prevailing interpretation of §922(g)(3), the Government can secure a conviction for unlawful firearm possession "if the firearm possessed" by the drug user "had previously traveled in interstate commerce." United States v. Rawls, 85 F. 3d 240, 242 (CA5 1996) (per curiam). The Commerce Clause does not authorize Congress to "regulate or ban possession of any item that has ever been offered for sale or crossed state lines." Alderman v. United States, 562 U.S. 1163, 1167 2011) (THOMAS, J., dissenting from denial of certiorari). Such an understanding would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." United States v. Lopez, 514 U. S. 549, 567 (1995). So, while the issue was not presented in this case, the Court, and lower courts, should revisit the constitutionality of §922(g).
JUSTICE BARRETT, concurring JUSTICE THOMAS raises some thoughtful points about the Supreme Court's supervisory power. See post, at 14-17 (dissenting opinion). Today's opinion nowhere mentions this power, however, and I do not understand the Court to implicitly assert it. Like JUSTICE THOMAS, I am skeptical that the Supreme Court possesses an inherent, supervisory authority over inferior federal courts. See A. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006). At the same time, I have distinguished exercises of such authority from the development of procedural common law. See A. Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 883-884 (2008). The former concerns narrow, discretionary rules; the latter involves doctrines, like preclusion and abstention, which are "settled by tradition or emergent consensus." Id., at 884. In my view, today's decision rests on longstanding waiver principles and thus falls in the latter category. See ante, at 9 (majority opinion) (comparing appeal waivers to "waiv-ers of other rights held by criminal defendants"). It is well established that a defendant may "intentional[ly] relin-quis[h] or abando[n] ... a known right." Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see Shutte v. Thompson, 15 Wall. 151, 159 (1873) ("[A] court whose province it is to
Mr. Scharf cited President George W. Bush, whose expansive claims of executive power helped lay the groundwork for Mr. Trump's second term. Mr. Bush had claimed that he could indefinitely imprison terrorism suspects at Guantanamo Bay, and that no court had jurisdiction to hear their habeas petitions. But in a landmark 2008 case, the Supreme Court ruled that the detainees still had a constitutional right to file such lawsuits. "The upshot of these cases is that for all persons held in de facto U.S. territory, habeas rights apply, or in the limited circumstance of military detainees, an adequate alternative to habeas must be provided," Mr. Scharf concluded. Mr. Scharf did not say what Mr. Trump should do. But the implication was plain. Suspension of habeas rights without congressional authorization would almost certainly be found unlawiul, and the court fight would become a huge, self-inflicted distraction.
This is the brave new political world we welcome on the 250th anniversary of American independence. It is a world that John C. Calhoun, the avowed defender of slavery "as a positive good" and the leading theorist of nullification, would happily cherish.
Which is why at least part of the solution has to be for Democrats to say the following to everyone who voted for Trump and is now feeling glimmers of doubt, wherever they live: Republicans think you're stupid. Not "You're stupid for voting for Republicans," but "Republicans think you're stupid." Which they absolutely do. They tell you that tax cuts for the rich will help you. They tell you when they lose it's because of voter fraud. Trump tells you rising prices aren't real, and this is a "golden age," and that immigrants are the source of your problems, and that liberal protesters are all paid, and that we already won the Iran war, and that he cares about you. They pick your pocket and laugh at you behind your back.
25A1381 THURSDAY, JUNE 11, 2026 ORDER IN PENDING CASE LOVELACE, COMM'R, AL DOC, ET AL. V. LEE, JEFFERY The application for stay or vacatur presented to Justice Thomas and by him referred to the Court is denied. Justice Thomas, Justice Alito, and Justice Gorsuch would grant the application for stay or vacatur.
At bottom, the dissent hopes to revive that old-time devotion to legislative history. See, e.g., Church of Holy Trinity v. United States, 143 U. S. 457, 464-465 (1892). Instead of winning converts, however, the dissent illustrates why statutory interpretation must focus on the text—or, to borrow from Justice Robert Jackson, why interpretation must be driven by "analysis of the statute" rather than "psychoanal-ysis of Congress." United States v. Public Util. Comm'n of Cal., 345 U. S. 295, 319 (1953) (concurring opinion).
In the dissent's view, the key to this case lies in two Committee Reports expressing Congress's "wish'" that courts liberally imply private rights of action. Post, at 1. The dissent repeatedly faults us for failing to consider these Re-ports, and broadly attempts to defend the use of legislative history in interpreting statutes. Post, at 1, 11-22. Its efforts do not just fail-they backfire. Notably, the dissent does not use the Committee Reports to clarify the meaning of Section 47(b). For instance, the dissent does not consult the Committee Reports to see how their authors used the words on which this case turns: "re-scission at the instance of any party." Nor does it try to identify the circumstances that prompted Congress to retool Section 47(b). Instead, the dissent uses the Reports on a mission impossible: divining how Congress would have wanted courts to resolve the question presented in this case. Its theory depends on the fictional premise that hundreds of legislators (not to mention the President) shared a unified private view of how the statute should apply in a contested circumstance. See F. Easterbrook, Statutes' Do-mains (1983); K. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Ox-ymoron, 12 Int1 Rev. L. & Econ. 239, 241-244, 249 (1992).5 Worse, it violates the fundamental precept that "[wle are governed by laws, not by the intentions of legislators." Conroy v. Aniskoff, 507 U. S. 511, 519 (1993) (Scalia, J., concurring in judgment). 5 The dissent responds that "it is hard to take th[is] criticism seriously" because all statutory interpretation seeks to discern Congress's intent. Post, at 19. But rather than trying to unearth Congress's "actual intent," post, at 1, courts look for "objectified' intent"-the intent that a reasonable person would gather from the text of the law. A. Scalia, A Matter of Interpretation: Federal Courts and the Law 17 (1997). Put differently: The judicial task is to read words, not minds.
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE KAGAN joins as to Parts I and II, dissenting.
It is the job of the judiciary, as Chief Justice John Marshall famously wrote, to say what the law is. Often, this is taken to mean a duty to interpret the Constitution and fix its meaning in place. But to say what the law is and to say what the Constitution means are two different tasks. The law concerns cases and controversies — the application of past precedent and broad principles to present circumstances. Constitutional meaning is more abstract. It deals with the shape and structure of our political community. And as much as courts help build our collective constitutional understanding, the question of meaning is as much the purview of the public as it is the job of a jurist. It is only in the last half-century, in fact, that we have fully conflated legal decision-making with the production of constitutional meaning. The result, as the legal historians Nikolas Bowie and Daphna Renan have written in these pages, is a strong form of judicial supremacy, where the meaning of the Constitution and therefore the structure of our political community are fixed in place by the decisions of a small, cloistered and often self-interested tribunal.
Of course, a statutory right to vote could not do everything a constitutional amendment could. A federal law cannot prevent the enactment of subsequent federal laws. That is a serious shortcoming. But the greatest threats to the right to vote today do not come from Congress. Unlike a constitutional amendment, a statute would be subject to judicial review. But the precedents that counsel deference to Congress under the Elections Clause and the Guarantee Clause are over a century old. 68 We cannot rule out that the Roberts Court might overturn them, yet a Court that would strike down a statutory right to vote despite this firm legal foundation is a Court unlikely to apply a right-to-vote amendment faithfully anyway. And, whereas a constitutional amendment is not politically feasible for the foreseeable future, a statutory right to vote appears politically feasible soon. In 2022, a statutory right to vote in federal elections, dubbed the Right to Vote Act, passed the House and fell just two votes shy in the Senate. 9
RFRA is no outlier. In fact, statutory rights grounded in enumerated powers are an ordinary and important feature of civil rights law. 56 Many of our most significant civil rights statutes (like the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Religious Land Use and Institutionalized Persons Act) create rights parallel to but stronger than their constitutional correlates. 57 This Article argues that Congress can do the same for the right to vote: create an express, affirmative, universal right to vote by ordinary legislation. The key is to circumvent the Boerne problem by eschewing the Fourteenth Amendment entirely, 58 Instead of commanding courts to better protect the constitutional right to vote (which Boerne seems to forbid), Congress can create a statutory right to vote, extend it to all adult citizens, and instruct courts to apply heightened scrutiny to burdens on that right. Think of it as RFRA for the right to vote. All Congress needs is enumerated power over the electoral domain.