Joanna Schwartz

My latest, a collaboration between @propublica.org + @nytimes.com, is on the cover of today's New York Times Magazine.

The gift link leads you to the excellent audio version of the story by Julia Whalen:

www.nytimes.com/2026/02/22/m...

Supreme Court Says You Can’t File Tort Suits Against Postal Carriers Who Won’t Deliver Mail to Black People According to Clarence Thomas, mail that your mail carrier steals from you is really just “lost,” if you think about it.

You can't sue the government if postal workers accidentally drop the glassware you ordered or lose a letter from your pen pal

The Supreme Court ruled yesterday that this means you also can't sue if postal workers refuse to deliver your mail because you're Black

ballsandstrikes.org/scotus/posta...

Justice Department Sues University of California Over Antisemitism

Well, the DOJ has done it: they have filed a lawsuit against the University of California over antisemitism.

The complaint contains some falsehoods. But as someone who teaches and writes about Title VII, I'm equally struck by what the complaint doesn't say.

A few thoughts— 🧵

ICE took their papers—and won’t give them back Immigrants are being released from detention without documents proving their status.

NEW from @julialurie.bsky.social: Immigrants in Minnesota are being released from ICE detention without the work permits, Social Security cards, licenses, and other documents that prove their status

ORDER Therefore, based on the foregoing, and on all the files, records, and proceedings herein, IT IS ORDERED THAT effective March 1, 2026, Petitioner Fernando T.'s Motion for an Order to Show Cause and Request for Compensatory Sanctions [ECF No. 15] is GRANTED as follows: Respondents are found in civil contempt of this Court's January 20, 2026 Order; Compensatory civil contempt sanctions are awarded in favor of Petitioner in the amount of $568.29, representing Petitioner's documented travel expenses incurred as a direct result of Respondents' violation of the January 20, 2026 Order; and Respondents shall pay the sum of $568.29 to Petitioner (or to Petitioner's counsel if payment was advanced by counsel) on or before April 1, 2026. Dated: February 23, 2026 s/ Eric C. Tostrud Eric C. Tostrud United States District Court

NEW: Judge Eric Tostrud, a Trump appointee, issued civil contempt sanctions against DOJ today for moving a man out of Minnesota against an order, not releasing him under the timeline ordered, and not returning him to Minnesota.

[h/t @kyledcheney.bsky.social ]

ICE whistleblower Ryan Schwank, a former ICE instructor and attorney, testifies that agents were trained to disregard constitutional rights.

Number of new law review articles in Westlaw JLR database with "Abolition" (or a variant, like "Abolitionism") in the title, by year of publication:

2017: 9
2018: 6
2019: 12
2020: 9
2021: 34
2022: 31
2023: 34
2024: 35
2025: 17 (so far—not all 2025 issues are out).

Incredible opinion. It holds that the common ICE tactic of jumping out of an unidentified rental vehicle and seizing suspected noncitizens while masked violates the Fourth Amendment because the *manner* of the seizure is incompatible with a free society governed by the rule of law.

Judge orders takeover of Arizona prison health care following years of barbaric medical neglect A federal judge ruled in 2022 that "no legitimate humane system would operate" like Arizona's prison health care system. Three years later, that same judge found the problems still hadn't been fixed.

Latest: A federal judge has stripped control of Arizona's prison healthcare system from the state after more than a decade of litigation over appalling medical neglect and $2 million in contempt fines reason.com/2026/02/20/j...

A wide & growing range of laws are now subject to strict scrutiny if they burden a plaintiff's sincerely held religious belief. Current doctrine requires courts to defer to a claimant's characterization of her own beliefs & burdens when deciding a religious exemption request, making this threshold test exceptionally-indeed, many scholars argue, excessively-easy to pass. But a less deferential approach would risk making civil courts the arbiter of which religious beliefs are orthodox, reasonable, or true. This Article demonstrates that SCOTUS once had an effective solution to this double-bind. Historically, the Court expected religious exemption claimants to show that they were obligated to follow a religious "law" that shared basic features with secular laws, including generality, clarity, and administrability. The Article reaches this insight by reading religious exemption cases alongside a line of cases with which they are rarely linked: church property disputes. Starting in the late 19th c., the Court encouraged churches to give their religious commitments legally cognizable form in private law instruments like trusts and church "constitutions." During the 20th c., the Court imported this practice into the context of individual religious exemption claims. The source of religious rules of conduct could now be personal conscience rather than church doctrine-but believers still needed to frame these rules in legalistic terms when invoking the protection of civil courts. The choice between deciding religious questions or deferring absolutely to religious litigants, then, is a false one. From the 1870s through the 1980s, the Court's prophylactic legality requirement prevented courts from interfering in religious doctrine and minimized frivolous religious exemption claims. Recognizing this history reveals that the current "hands-off" approach to religious belief statements not only is not constitutionally required, but carries constitutional hazards of its own.

I’m thrilled, yes, & also stunned and bewildered, to announce that my job talk paper, Religion as Public Law, will be published in the Yale Law Journal next year. 1/6

Lyons, Remedies, and the Fourth Amendment in Noem v. Vasquez Perdomo - NYU Law Review Recent Case: Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637 (U.S. Sep. 8, 2025) Sharon Brett0* Copyright © 2026 by Sharon Brett, Associate Professor of Law, University of Kansas School of Law. T...

My essay on the Kavanaugh concurrence in Noem v. Vasquez Perdomo is now live with the @nyulawreview.bsky.social online. Many thanks to the incredible editors who helped bring this piece to completion (rage-writing it in one week meant we did a lot of work on it post-acceptance!).

Thanks for this great article. I look forward to reading your book!

How and why police actually support the federal invasions—I have been working on this article for ~6 months, trying to make sense of Trump’s nationwide surge of DHS officers, how it has evolved, what brought us here, and what will remain after it ends.

In 1854, after watching the federal government deploy 2000 federal troops and spend $40,000 sending Anthony Burns back into slavery, Boston's Amos Adams Lawrence said “we went to bed one night old-fashioned, conservative, Compromise Union Whigs and waked up stark mad Abolitionists.”

Trump administration drops appeal of court order blocking $1.2-billion UCLA settlement The Trump administration dropped its appeal of a major higher education case in which a federal judge blocked its $1.2-billion settlement proposal to UCLA over alleged civil rights violations. It will...

This is a genuinely huge, sweeping victory today for the University of California—or rather, for us, its faculty, acting through our faculty associations, while the UC itself maintained a strict policy of deer-in-headlights silence.

The Trump admin has given up its appeal of a powerful injunction:

This is INCREDIBLE. What a win for public education.

(And yet another reminder of the value of *standing up* and *not obeying in advance*!!!)

Congratulations - and thank you - to the faculty in the UC system.

As constitutional interpretation becomes rooted ever more deeply into the past the Constitution seemingly has less and less to say about our present. It seems to offer little principled direction for navigating what many describe as a constitutional crisis. On questions ranging from birthright citizenship and territorial acquisition to aggressive federal immigration enforcement, executive intervention beyond U.S. borders, and the “history and tradition” of annexed territories such as Hawai’i, the Constitution’s familiar sources of authority and traditional narratives seem to falter. These domains appear to tread into empty constitutional landscapes and newly discovered territory. Scholars have increasingly traced this backward-looking orientation to conservative legal movements of the last half century. But the impulse to seek constitutional meaning in the past is not new. Long before the Supreme Court embraced originalism, and long before the modern turn to “history and tradition,” jurists and scholars assumed that the Constitution could not be understood apart from its origins and development. Constitutional meaning was thought to emerge from historical inquiry. The question, then, was not whether constitutional interpretation should engage with the past, but which past—and through what historical method. This Foreword argues that our present constitutional impasse stems, at least in part, not solely from excessive attention to the past but from fixation on a particular kind of past. Modern constitutional theory, I suggest, has been increasingly bounded by what scholars in the historical and social sciences call a methodological nationalism. By nationalism, I do not mean to invoke familiar federalism debates. Nor do I use the term nationalism as a pejorative or a critique of those whose research centers the United States and its founders. Rather, in identifying mainstream constitutional theory as operating within a nationalist frame, I seek to draw attention t…

New Foreword up on SSRN, previewing new projects on the history of constitutional history and what it can teach about legal frameworks at the heart of our "constitutional crisis"-federal Indian law, territorial law, expansion, immigration, and executive power. papers.ssrn.com/sol3/papers....

How one Minneapolis man is helping neighbors surveil ICE back • Minnesota Reformer When thousands of immigration agents flooded Minneapolis late last year, Garrett Guntly had an idea: a network of neighbor-owned security cameras, pointed towards public areas, that they could use to ...

When thousands of immigration agents flooded Minneapolis late last year, Garrett Guntly had an idea: a network of neighbor-owned security cameras that they could use to monitor ICE activity in the area.

The system has helped neighbors interrupt around a dozen immigrant arrests, Guntly says.

Opinion | We Have to Face What ICE Has Done to Us

"It is when we speak — when we argue, appeal, explain and testify — that we put into practice our belief in the ability of others to understand, reason and empathize...And the people we’ve wronged deserve their chance to speak and be heard."

#GiftLink #GiftArticle

AI is automating injustice in American policing - Salon.com AI has raised deep concerns about police power and the erosion of rights, finding scapegoats instead of solutions

A good update of an article-type that has been written several times a year for the past 15 years and yet we just keep buying and deploying new policing technologies. www.salon.com/2026/02/08/p...

Amna A. Akbar | In South Minneapolis ICE have gone from wearing tactical army gear to Midwestern civilian garb; I have even seen photos of agents in...

a powerful account of what’s happening in Minneapolis from Amna Akbar

www.lrb.co.uk/blog/2026/fe...

209. The Modern Emergency Docket Turns Ten The February 2016 rulings blocking the Clean Power Plan were unprecedented; in retrospect, they were harbingers of a paradigm shift in the Supreme Court's role.

Ten years ago today, #SCOTUS issued five unsigned and unexplained 5-4 rulings granting emergency applications to block President Obama’s Clean Power Plan—a completely unprecedented move that helped to usher in the Court’s modern … (mis)adventures … with its shadow docket.

Me in today’s “One First”:

Prosecutors Began Investigating Renee Good’s Killing. Washington Told Them to Stop.

The Supreme Court has restricted the right to sue federal officers in part because agencies' internal investigations are an alternative way to deter misconduct. That (already farcical) justification is downright ridiculous if the feds shut those investigations down. www.nytimes.com/2026/02/07/u...

News: Judge Vargas has stopped the Trump administration from freezing federal funds for construction of the Hudson River tunnel. Earlier today, she heard workers would otherwise be fired this weekend, abandoning “literally a massive hole in the earth” indefinitely ag.ny.gov/sites/defaul...

“You’re Not Going to Investigate a Federal Officer” It doesn’t happen often, but local law enforcement can arrest and charge federal agents. Legal experts say there’s a moral obligation to at least try to hold federal immigration officers accountable w...

www.propublica.org/article/why-...

Here’s a link to the transcript fyi drive.google.com/file/d/1FnY2...

No police are needed to enforce California’s new no-mask law, senators say Anyone can file a lawsuit against immigration or other officers who violate the No Secret Police Act., author of the bill says.

www.ocregister.com/2026/02/03/n...

Happy Anniversary to those who celebrate cat attorneys.

“This Job Sucks”: DOJ Attorney Asks Judge to Hold Her in Contempt A lawyer working with the Minnesota attorney’s office said she just wants some sleep, after working so hard to try to get ICE to follow court orders.

newrepublic.com/post/206115/...

Today the Equal Access to Justice Act (EAJA) provides that the prevailing private party “in any civil action (other than cases sounding in tort)” brought by or against the United States is entitled to attorneys’ fees and costs if the Government’s position was not “substantially justified” or “special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Adolph “Lee” Michelin and Adewumi Abioye prevailed in habeas actions under 28 U.S.C. § 2241 challenging their immigration detentions. The District Courts found the Government’s positions were not “substantially justified” and awarded the detainees fees and costs. The main question these consolidated cases present is whether a petition for a writ of habeas corpus from immigration detention under § 2241 is an EAJA “civil action.” We answer yes and thus affirm.

3d Cir. holds that habeas corpus petitions challenging immigration detention are "civil actions," so prevailing noncitizens may be entitled to attorneys' fees and costs under the Equal Access to Justice Act.

Gonna be a loooooooooot of these.

www2.ca3.uscourts.gov/opinarch/242...