This week I recorded an episode of the National Constitution Center’s “We the People” podcast on “What the 2025-2026 Supreme Court Term Revealed About the Roberts Court.” I was joined by Masha Hansford of Davis Polk & Wardwell, and the conversation was moderated by the NCC’s Julie Silverbrook. I enjoyed the discussion. I hope VC readers find it worthwhile.

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Socialist calculation problem: Remember the libertarian moment? Well, this feels like the socialist moment. 

Young insurgent candidates on the left, many of whom have current or former ties to the Democratic Socialists of America, are winning in the Democratic Party. It’s basically the “socialism” rap from the 1998 Warren Beattie movie, Bulworth, played out in real life. And rather than fight back, the party’s leadership seems to be mostly embracing those left-of-center wins. 

Yes, as Shane Goldmacher reports in The New York Times, some avowedly moderate Democratic activist groups like Third Way want to fend off the takeover of what the group calls “radical, far-left candidates.” 

But the same article also notes that after progressive insurgent Abdul El-Sayed won yesterday’s big Senate primary in Michigan on a campaign that harshly critiqued the party’s center, “most party leaders—from Gov. Gretchen Whitmer of Michigan to Senator Chuck Schumer of New York to former Vice President Kamala Harris—quickly embraced Dr. El-Sayed’s Senate candidacy, given the stakes of the Michigan seat at the play.”

There are real questions, however, about whether El-Sayed can actually win that seat in November.

A separate Times story frames the upcoming midterm as a test of a long-running argument inside the party: “Since Senator Bernie Sanders exploded onto the national stage in 2016, progressives have argued that their party’s path to victory runs through a populist economic agenda that can attract a broad coalition of working-class voters. Centrists have pushed back, saying such proposals alienate the moderate voters the party must sway to win back areas where it has lost ground in recent years.” The centrists may have a point. 

In the days leading up to the vote, El-Sayed’s radical campaign looked like it would coast to victory. Some polls had him up by double digits. But in the end, he only won the primary by a narrow margin. 

His problem, it turns out, is that like so many of the party’s new radical-left up-and-comers, he doesn’t perform well with the party’s key voting blocks. Democrats know this. Puck reports that “Democratic lawmakers repeatedly pushed the D.S.C.C. [Democratic Senate Campaign Committee] to fund attack ads against El-Sayed,” focusing on his dicey associations with controversial characters like Hasan Piker.

One question going into the primary was whether a loudly left-leaning candidate would play outside of deep blue, highly educated coastal metro areas—places like New York’s so-called commie corridor. 

So who is the constituency for El-Sayed’s brand of fiery populism? Turns out that even in Michigan, it’s basically the same demographic that lives in New York’s commie corridor. 

As The Wall Street Journal notes: “El-Sayed topped [moderate rival Haley] Stevens in counties where bachelor’s degrees are plentiful, including those that are home to the University of Michigan and Michigan State. But he lagged behind in counties with lower educational attainment, a sign that working-class voters might be skeptical of candidates modeling themselves as champions of the working-class.” El-Sayed is not an outlier in this respect. The new working-class populism, it turns out, is not very popular with the working class. But with El-Sayed’s win, and others, Democratic leaders are standing behind it. 

Burrito Wars. Socialism is dividing the left. So what’s dividing the right? Burritos. Specifically, burritos that supposedly cost $20.

pic.twitter.com/TEGeIyoC06

— The Drunk Republican (@DrunkRepub) August 5, 2026

As is often the case with social media arguments, this one takes some twists and turns and doesn’t exactly proceed in an easy-to-follow, linear fashion. 

But Matt Yglesias had a terse, reasonably useful summary of how things went. 

Matt Walsh says high grocery prices are a key vulnerability for Trump.

Andrew Kolvet says expensive Chipotle doesn’t hurt either.

Thiessen defends Trump.

Vance calls Thiessen fat. pic.twitter.com/tpuaNktpuN

— Matthew Yglesias (@mattyglesias) August 5, 2026

In many ways, this is a debate about inflation.

Burritos don’t quite cost $20, unless you have them delivered (or you’re eating really fancy burritos).

And there are ways to economize on food, though they require some advance planning and responsibility. 

“A burrito shouldn’t cost $20.” But that’s what it costs.

This is why I pack a lunch every single day, no exceptions! I almost forgot this morning, so I went back to the kitchen even though I was running late.

Note that when I was a financially irresponsible young person, I… https://t.co/kgeHP1Gvvc

— Robby Soave (@robbysoave) August 5, 2026

But food prices really have gone up since COVID-19, thanks first to inflation resulting from former President Joe Biden’s overspending, and then to price increases stemming from President Donald Trump’s tariffs, war in Iran, and labor crackdowns. 

But look deeper, and it’s really an argument between the right’s domestic populists and more internationally focused conservative hawks. 

The intra-right burrito debate basically has two camps: On the one hand, there are folks like Ben Shapiro, who are more supportive of the war in Iran (at least in theory, if not necessarily the precise way it has been executed), but who would also like to see an end to Trump’s tariffs and a revitalized focus on market-friendly domestic economic policy.

Current “common good conservative” inflation messaging: $20 burritos are a human right but also every serious methodology for making them cheaper (i.e. kill the tariffs, break the unions, and deregulate the food supply chain) isn’t America First, so we need to complain a lot… https://t.co/GKST1az6jf

— Ben Shapiro (@benshapiro) August 5, 2026

On the other side are right-wing war skeptics, some of whom have supported populist domestic economic policies, like tariffs. 

So which is the more important conservative priority: Trump’s unpopular tariffs or Trump’s unpopular war? 

Under Trump, it turns out, we get both. 

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Scenes from the greater Boston area: Boston’s restaurants are in deep, deep trouble, reports The Boston Globe. I recently visited The Baldwin Bar, a fantastic Chinese bar/tiki bar hybrid in Woburn, Massachusetts, about half an hour from Boston proper. I’ve been several times before, and the food and drinks remain excellent. But even on a weekend night, it felt half empty. It’s a shame; Boston could use a great food scene. But regulations, taxes, and overall food-price inflation have made it tougher than ever to operate a restaurant. 

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QUICK HITS

• University of Cambridge professor Jason Arday, once vaunted as the youngest black professor in the university’s history, has resigned after mounting questions about plagiarism and fabrication in his academic work and personal history. Arday has denied academic malfeasance. But it has been pretty obvious that there were multiple serious problems with his work and his biographical claims; what’s notable is how long Cambridge and others stood by him. Arday has a book scheduled to come out next week. When The New York Times asked about the book in light of the scandal, the publisher “had no comment beyond the statement about Arday it released last week, citing ‘the professionalism and integrity he has brought to every stage of the publication.'” We’ll see how long that position can hold.
• A Senate panel has obtained a copy of the iPhone Anthony Fauci used during COVID-19, reports The Wall Street Journal. 
• The Department of Government Efficiency (DOGE), the government savings effort headed by Elon Musk, got a lot of details wrong, including touting some spending cuts that never actually happened, according to a new report from the Government Accountability Office. 
• James Cameron, the blockbuster director behind Aliens, the first two Terminator films, True Lies, and Titanic, might finally be moving on from the Avatar films. I hope he makes some non-Avatar movies! 

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Suncor Energy (USA), Inc. v. County Commissioners of Boulder County, the dispute over whether federal law preempts claims against fossil fuel companies for alleged harms from climate changes exacerbated by the companies’ alleged conduct, will be the very first case heard by the Supreme Court this October.

Suncor is obviously an important environmental case, but its significance is far broader. If the claims are allowed to proceed–and if the plaintiffs are able to overcome the other hurdles to making their case (a significant if)–quite a bit of money could be at stake. In addition, if the justices reach the merits, the case could dramatically alter the law of federal preemption.

Given the significance of the case, it should be no surprise that waves of amici filed briefs. By my count, there are forty top-side briefs supporting the fossil-fuel companies’ preemption claims, including a brief by the Solicitor General. There are also twenty-eight bottom-side briefs arguing against preemption (including mine).

Most discussion of the case–and, indeed, many of the amicus briefs–focus on the policy context. Accordingly, folks who want urgent action to address climate change tend to support the respondents, and those who are skeptical of such policies (or who are concerned about energy prices), support the petitioners. This is understandable, but threatens to obscure the underlying legal issues, as does conspiratorial talk about what shadowy interests are supporting one side or the other.

As I try to show in my brief, there is no statute or precedent that supports wholly preempting these cases. This does not mean the claims should succeed, nor does it mean there are no constitutional or other grounds to force a narrowing of the claims. But those other grounds are not encompassed by the question presented and are not being advanced by the petitioners. What is before the Court is whether federal law or the constitution wholly precludes bringing claims under state-law for interstate harms of the sort alleged here. It is a narrow question. It is also one that I think is relatively easy and straightforward. We will see if a majority of the Court agrees.

for those interested, here are my prior posts on this subject:

• Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted, Oct. 27, 2021;
• Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022;
• Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023;
• Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023;
• D.C. Circuit Rejects Oil Company Attempt to Remove District’s Climate Suit to Federal Court, Dec. 19, 2023;
• William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023;
• Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024;
• Are State Law Climate Change Tort Suits Preempted by Federal Law?, May 3, 2024;
• Supreme Court Denies Certiorari in Climate Tort Suits, Jan. 13, 2025;
• Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits, Mar. 10, 2025;
• William Barr Discovers the Economics of Tort Law (and Misrepresents the Law Governing Interstate Pollution), Nov. 3, 2025;
• Placing Climate Tort Litigation in Context (Updated), Nov. 7, 2025;
• A Second Round with William Barr on Litigation Over Interstate Pollution, Dec. 2, 2025;
• Court Dismisses Trump Administration Effort to Block Michigan Climate Lawsuit, Feb. 4, 2026
• Climate Change Goes Back to the Supreme Court — Colorado Edition, Feb. 23, 2026.
• Previewing Suncor Energy v. Boulder County, Mar. 6, 2026.
• Amicus Brief in Suncor Energy v. County Commissioners of Boulder County, Aug. 3, 2026.

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From O.A. v. Devita, decided June 25 by L.A. Superior Court Judge Dean Kitchens, but just recently posted to Westlaw:

The following summary is derived from the allegations in Plaintiff’s complaint. Plaintiff is a high school boy with a disability who had a long-standing friendship with Defendant’s son, M.S., another boy with a disability. Plaintiff is diagnosed with rare and serious genetic conditions causing neurocognitive delays. He also has a language disorder, anxiety, and specific learning disabilities…. Plaintiff has known M.S. for seven years and have been in many of the same special education classes. They also were a part of the same soccer league.

On October 10, 2022, Plaintiff went to M.S.’s home for a playdate allegedly supervised by Defendant and M.S.’s stepfather …. On November 4, 2022, the boys had another playdate allegedly supervised by Defendant. On May 12, 2023, M.S. reported to his teacher that Plaintiff had pressured him to do “sexual things.” Plaintiff was suspended after the report pending an investigation.

During the initial investigation, Defendant allegedly posted several negative statements about Plaintiff on her Twitter account which were recognized by other members of the community. Defendant also allegedly called the coach of the boys’ soccer league and stated that Plaintiff had sexually assaulted M.S. After calling the coach, Plaintiff alleges that Defendant approached them at a softball game and stated that Plaintiff had pulled a knife on M.S. and been physically and verbally abusive since grade school. Plaintiff also alleges that Defendant used the soccer league’s member list to call other parents and warn them about him.

Plaintiff alleges that Defendant also called the director of Beyond Karate, where Plaintiff has been a participant, and told her that Plaintiff had assaulted M.S. She also allegedly communicated with other participants of the program, stating that Plaintiff had raped M.S. She also allegedly circulated a link containing documents related to her request for a restraining order against Plaintiff.

On June 16, 2023, the school concluded its investigation and determined that the actions between Plaintiff and M.S. were not forced. Defendant instituted separate proceedings that effectively expelled Plaintiff from high school for multiple months.

Plaintiff sued for, in relevant part, defamation, and the court allowed the case to go forward:

First, Defendant argues that the absolute defense of truth applies to each of her statements…. Here, Defendant presents evidence that Plaintiff admitted to the school principal he had not thought M.S. wanted to engage in sexual activity and that Plaintiff regretted his actions and admitted to “being dumb.” This evidence would tend to show the veracity of Defendant’s accusations that Plaintiff engaged in non-consensual sexual activity with her child.

Indeed, Defendant need not show the literal truth of every statement made. By proving that Plaintiff engaged in non-consensual sexual activity, Defendant would prove that the gist of her remarks were truthful. Thus, Defendant has met her burden of demonstrating the application of the complete defense of truth to Plaintiff’s cause of action for defamation.

Plaintiff must then demonstrate the existence of a triable issue of material fact. Plaintiff presents evidence that M.S. did not accuse Plaintiff of rape or sexual assault. Additionally, Defendant acknowledged that the principal did not believe the conduct described by M.S. was forced.

Indeed, Plaintiff’s suspension was later overturned, and he was exonerated of misconduct. This substantial evidence alone creates a triable issue of material fact as to the veracity of Defendant’s statements. Thus, the Court finds that Plaintiff has met his burden as well. Accordingly, the Court does not grant summary adjudication based on Defendant’s defense of truth.

Second, Defendant argues that her defamatory statements were opinions which are not provably false or true…. Here, Defendant presents evidence that she reconveyed the opinion of mental health professionals that M.S. had experienced “assault” and “physical abuse.” While it is true that whether certain actions qualify as assault or abuse may be a matter of opinion, accusations of the same imply facts capable of proof…. While sexual assault can describe a range of conduct, it is not a matter of opinion as it declares or implies facts. Thus, Defendant has not met her burden of demonstrating that her statements were a matter of opinion.

Third, Defendant argues that she acted with reasonable care in making her statements. To prove defamation, a private individual plaintiff must show that the defendant did not act with reasonable care in checking the truth or falsity of information before publishing it. Here, Defendant offers evidence that at the time she made alleged defamatory statements, she had been briefed by the school of Plaintiff’s assault and had been told by M.S. of the events. Based on this information from multiple sources, Defendant has met her burden of demonstrating that she acted with reasonable care in making the defamatory statements.

Plaintiff must then demonstrate the existence of a triable issue of material fact. Plaintiff submits evidence that Defendant failed to investigate what occurred on November 4, 2022, before accusing Plaintiff of assault. This was one of the dates on which M.S. allegedly reported he was assaulted. Yet Plaintiff submits evidence that Defendant did not ask M.S. what occurred that day or discuss the matter with Jason DeVita, even though he had been supervising the playdate.

A jury could determine that Defendant did not act reasonably in failing to properly investigate the matter before making accusations. Thus, Plaintiff has demonstrated that triable issues of material fact exist with respect to whether Defendant acted with reasonable care. Accordingly, the Court does not grant summary adjudication on this ground either.

Fourth, Defendant argues that her statements were privileged. Communications are privileged if made without malice to a person interested in that matter by one who is also interested. The privilege is recognized “where the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest.” Once a common interest is demonstrated, it is the plaintiff’s burden to show that the defendant acted with actual malice in making false statements.

Here, Defendant has failed to demonstrate that all her statements are protected by the common interest privilege. Defendant argues that she made statements to a community of parents in the Santa Monica area with children with disabilities who fraternized together. These parents shared the interest of keeping their children safe.

However, whether these various individuals, including school parents, personnel, teachers, community members, and other people connected to the disability-serving program in which Plaintiff participated qualify as sharing a common interest is a disputed factual issue. Indeed, Plaintiff maintains that these individuals did not share a common interest under Civil Code section 47, subdivision (c). Defendant has not presented legal authority demonstrating that a common interest exists between all individuals who know or associate with Plaintiff. Thus, summary adjudication is not appropriate on this ground, either….

A plaintiff may recover punitive damages where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice…. In defamation cases, malice may be shown through Defendant’s having reasons to doubt the truth or having relied on unreliable sources or failed to verify them. Here, Plaintiff presents evidence that Defendant failed to check with witnesses to the alleged assault before making accusations. This evidence suggests potential malice through Defendant’s failure to verify her sources….

Ariel Harman-Holmes represents plaintiff.

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From Luzingu v. Abbott Labs., Inc., decided Friday by Chief Judge Lance Walker (D. Me.):

Plaintiff came to Maine from Angola in 2016, following persecution based on his work as a Christian pastor. He took a position as a Production Group Leader at Defendant’s facilities in Westbrook and Scarborough, Maine, in November 2019. In April 2022, Defendant terminated his employment. Plaintiff alleges that Defendant discriminated against him on the basis of his race in the course of his employment and termination. He also alleges that Defendant retaliated against him after he engaged in protected conduct by making a scheduling decision that accommodated the needs of his Muslim subordinates during Ramadan.

The matter is currently before the Court because Plaintiff electronically signed Defendant’s Employee Agreement as a precondition to his employment, and the Agreement contains a forum-selection clause stating that only the federal and state courts of Illinois will have jurisdiction to hear Plaintiff’s claims….

Plaintiff argues that transfer would be unfair, unjust, and against public policies that favor the free exercise of religion and nondiscrimination. As alleged, Plaintiff is “the sole pastor at his church” and “leads three services per week.” Because of his religious calling and his duties, he maintains, “[t]raveling to Illinois for a deposition or trial would make it far more difficult for him to fulfill his pastoral duties than if the deposition or trial occurred in Maine.”

I am not persuaded that Plaintiff’s religious practices and duties as a pastor justify giving him a special dispensation to avoid application of the Forum-Selection Clause of the Employee Agreement that he acknowledges signing as a precondition to his promotion to a supervisory position. And as for the burden itself, assuming that a special dispensation might be appropriate based on individual needs pertaining to the inconvenience of a particular forum, the Defendant has indicated that Plaintiff’s deposition will take place in Maine.

Moreover, Defendant fairly observes that a trial in Illinois should take only a few days and that telecommunications technology enables Plaintiff to remain connected to his parishioners when court is not in session. I agree with Defendant that the limited time required to conduct a trial of this case in Illinois will not unduly disrupt Plaintiff’s religious observance, even if religious observance is a proper basis to nullify the consequences of a forum-selection clause.

As for Maine law or policy concerning discrimination based on religion, it is unreasonable to suspect that Defendant is enforcing the Forum-Selection Clause against Plaintiff in a selective manner based on the burden that litigation in Illinois would impose on his pastoral duties. Defendant has similarly moved to enforce its forum-selection clause in cases brought by plaintiffs who do not point to their religious practice as cause to avoid the consequences of the Forum-Selection Clause.

In any event, Plaintiff has not identified in Maine law a strong public policy that individuals should be spared the ordinary burdens of contract compliance in matters involving, for example, forum selection or mandatory arbitration because of a temporary interruption in their religious practices….

Plaintiff argues that being forced to litigate this case in Illinois would effectively deprive him of his day in court. In support, he argues that both the emotional and the financial toll of litigating in another state are too much for him. Plaintiff’s protests do not amount to a showing of grave difficulty or inconvenience tantamount to the practical denial of his day in court.

The plaintiffs’ bar in Chicago no doubt includes attorneys who would be enthusiastic to champion Plaintiff’s cause or help Plaintiff’s current counsel to do so. The rules and procedures that will be applied by a federal court in Illinois will be familiar if Plaintiff’s current counsel keeps the case. There is no reason to think that Plaintiff would be subject to any local prejudices in Illinois in terms of the jury pool.

Nor is it apparent that Plaintiff’s case imposes a substantial financial burden that contingent-fee counsel would be unwilling to assist with, particularly as discovery proceedings will look much if not entirely the same in either forum. Plaintiff’s arguments concern the ordinary toll associated with travel in support of litigation, which do not suffice as “grave.”

This leaves individual considerations related to Plaintiff’s religious practice and immigration status. Ultimately, I am unpersuaded that these considerations can fairly be leveraged to favor Plaintiff as compared to any other employee of Defendant who could not claim a special status based on religious practice or ethnicity or immigration status.

The import here is that Plaintiff should be treated like any other employee in his position, not that he should be favored based on his identity….

Hillary Joy Massey, Anthony S. Califano, and Christopher W. Kelleher (Seyfarth Shaw LLP) represent defendant.

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