Seventh Circuit Day, Part 1: The Cases and Arguments

Judges at the bench
Seventh Circuit Judge Frank Easterbrook, Chief Judge Diane Sykes, and Judge Michael Brennan, in Marquette Law School’s Lubar Center on Sept. 25, 2025.

We would have welcomed the unusual opportunity for Eckstein Hall to serve for a day as a venue for the U.S. Court of Appeals for the Seventh Circuit in any circumstances. That the particular occasion—September 25, 2025—was during the final days of the tenure of the Hon. Diane S. Sykes, L’84, as the court’s chief judge, made Seventh Circuit Day “extra special” for the Marquette Law School community.

The memorable day this semester had multiple components, as we will seek to capture in a series of blog posts during the next couple of weeks. The main event was the six oral arguments that the court held, all in cases on appeal from a federal district court in Wisconsin. The panel consisted of Chief Judge Sykes, who presided; the Hon. Frank H. Easterbrook, a judge of the court since 1985; and the Hon. Michael B. Brennan, who joined the court in 2018. Without rivaling Chief Judge Sykes’s claim on us (or ours on her), the latter two judges are familiar to (and with) Marquette Law School: to give only one example for each of their connections, Judge Easterbrook spoke at the groundbreaking for Eckstein Hall in 2008, and Judge Brennan taught here as an adjunct faculty member in the 1990s.

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What Might Explain D.C. Grand Juries’ Failures to Indict?

chairs for the jury

I once had the privilege of serving on a federal grand jury in Washington DC. I describe it is as a “privilege” not out of any reflexive paean to the criminal justice system, which has many flaws, and not because I was especially thrilled to have been selected. My service was particularly arduous; we met from 8am to 4pm five days a week, after which I would complete all of my work each day as a full-time law firm associate. And that continued for five weeks straight, leaving me, by the end, completely exhausted. The sense of privilege I felt came not from the system or the process, but from having the experience of serving with a group of fellow citizens from all walks of life who were all dedicated to completing one task: determining if the government had enough evidence to prosecute someone.

Based on that experience, it was with considerable interest that I read news reports that several grand juries in the District of D.C. have recently refused to return indictments in high-profile cases involving protesters. Three successive grand juries, for example, refused to indict protester Sydney Reid on charges of assaulting a federal law enforcement officer, when an FBI agent assisting in blocking Reid from interfering with an arrest suffered cuts or scrapes on her hand. Why did they refuse? Over on the Volokh Conspiracy, Prof. Josh Blackman suggests that while it’s possible DC grand juries “are carefully attuned to the gradation between felonies and misdemeanors,” he offers an apparently more plausible explanation: DC jurors are a bunch of hacks. DC US Attorney Jeanine Pirro has a similar view.

There’s a temptation, famously mocked by film critic Pauline Kael, to think that the things you and your friends care about are the things that everyone cares about. But despite the attention law professors and lawyers generally pay to politics, much of the rest of the US population is far less interested. I would hesitate to assume that the average grand juror in DC, or LA or Oklahoma City or anywhere else is as steeped in partisan politics as your average social media poster, or law school denizen, or avid consumer of news.

I don’t know what happened in these three grand juries, or in the others that have refused to indict protesters in DC and LA. I did see firsthand however that it is really hard for a requested indictment to fail. There were jurors on my grand jury that were more skeptical of the police, and there was at least one juror who had qualms about the over-criminalization of drug possession. Some defendants were more sympathetic than others. But the few “no” votes on an indictment almost never came anywhere near the 12 necessary to refuse to return a true bill. If the government had evidence on each element, we voted to indict.

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Judge Scudder Discusses “Resorting to Courts” in an Exemplary Hallows Lecture

Honorable Michael Y. ScudderThe Hon. Michael Y. Scudder, judge of the U.S. Court of Appeals for the Seventh Circuit, delivered this year’s Hallows Lecture, yesterday evening, to more than 200 individuals in Eckstein Hall’s Lubar Center. The lecture was exemplary.

The E. Harold Hallows Lecture is an annual highlight at Marquette University Law School. Most often delivered by a judge, the lecture is an opportunity to welcome into our community an accomplished individual from whom all of us interested in the law—students, faculty, other judges, lawyers, and all manner of interested individuals—might learn.

This was not Judge Scudder’s first trip to Marquette Law School, as he presided at the Jenkins Honors Moot Court Finals in 2023 (his similar service in 2021, during the COVID era, having been undertaken remotely by Teams). The judge keeps close to law schools, it would seem—for example, teaching national security law at the University of Chicago Law School and advanced federal jurisdiction at the Northwestern University Pritzker School of Law. Judge Scudder’s interest in legal education, especially in the Seventh Circuit’s region of Wisconsin, Illinois, and Indiana, is impressive and inspiring more generally.

Judge Scudder’s Hallows Lecture was titled “Resorting to Courts: Article III Standing as the Guardian of Free Speech & Democratic Self-Governance.” It proceeds in two main parts.

The first half explains and defends the standing requirement in federal courts. The judge describes the precept’s basis in the “Cases” or “Controversies” requirement of Article III of the Constitution, defends it as a structural limitation on the exercise of judicial power, yet acknowledges the ideological lens through which many individuals seem to view standing issues. The lecture offers a defense of the cases and a strong, institutions-based justification of the concept.

The lecture’s second half explores the relationship between the Case or Controversy requirement and free speech. It emphasizes that the standing requirement—particularly by disfavoring pre-enforcement facial challenges to government policies on very broad grounds—appropriately encourages people to hash out their differences in forums envisioned and intended as policy-setting. This half laments the echo chambers into which many individuals have placed themselves in our society and hopes that more open, respectful, and constructive dialogue, outside of courts, can occur to sort out the “cultural” issues and policies needing resolution at all levels of government.

Here’s a flavor:

. . . . This is how Article III’s limitation on the exercise of judicial power leaves policymaking, and the difficult line drawing it often entails, to the exercise of free speech. Speaking up, objecting, and sharing perspectives with those who differ from us is how we understand, persuade, and, often, find common ground where agreement seems beyond reach.

If that framing is too idealistic in today’s times, I would hope skeptics would at least recognize that the alternative—permitting very difficult legal questions to come to federal court based only on a showing of a genuine worry—casts a vote of little confidence in the role speech can play in finding solutions, or perhaps tolerable compromises, to some of the most divisive questions of our day. And even if these culture war lawsuits should not be viewed as a vote of confidence in federal courts as the ultimate decision makers, they put great pressure on principles of restraint designed to allow democratic processes—whether at the national or local level—to offer answers and outlets for persuasion and compromise in the first instance.

Our constitutional design envisions constitutional answers coming in slower-paced increments than contemplated by pre-enforcement facial challenges like the one Parents Protecting Our Children lodged against the Eau Claire policy. It is not happenstance that the architect who designed the Supreme Court, Cass Gilbert, thought the tortoise an appropriate decorative and symbolic feature for the building’s design. In the same way tortoises move slowly, sometimes the law develops best when principles, doctrines, and answers come with time and, I might add, with more speech and dialogue helping to bridge social divides. Pre-enforcement facial challenges, however, often result in expansive injunctions that apply in one fell swoop—the sort of forward-looking policymaking that is best left to the more democratic branches.

Judge Scudder’s lecture was outstanding, even beyond its timeliness. While versions of it will appear in the fall Marquette Law Review and Marquette Lawyer, one can watch the lecture here or read a working copy of it here.

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