The Volokh Conspiracy

Supreme Court Rejects Missouri's Attempt to Sue New York Over Trump Prosecution

Jonathan H. Adler — Tue, 06 Aug 2024 15:16:12 +0000

This morning, as expected, the Supreme Court rejected the state of Missouri's attempt to sue the state of New York over the prosecution of Donald Trump and the imposition of a gag order during the pendency of appeals. Missouri had filed a motion for leave to file a bill of complaint against New York in the Court's original jurisdiction. To call the underyling legal theory aggressive would be an understatement (something about how the state law prosecution of a presidential candidate unconstitutionally inhibits the ability of Missouri voters and electors to support the candidate of their choice). Missouri invoked the Court's original jurisdiction by styling this as a dispute between one state and another, and thus sought to bring this suit, in the first instance, in the Supreme Court.

The justices are not having it. The order reads in full:

Missouri's motion for leave to file a bill of complaint is denied, and its motion for preliminary relief or a stay is dismissed as moot. Justice Thomas and Justice Alito would grant the motion for leave to file the bill of complaint but would not grant other relief.

This means the Court split 7-2 over whether Missouri should be allowed to file its bill of complaint, but was unanimous in rejecting Missouri's request for relief in this case. (In other words, Justices Alito and Thomas would let Missouri make their case, but would not grant any of Missouri's requested relief, which included enjoining the gag order imposed on Trump by New York courts.)

No doubt some commentators will read this order as an indication that Justices Alito and Thomas believe that Missouri's filing had merit. Those that do so will show they know very little about the Supreme Court's original jurisdiction and the long-standing debate over whether the Court has jurisdiction to reject bills of complaint filed by states against other states.

The reason that Justices Thomas and Alito dissented form the denial of Missouri's motion for leave to file the bill of complaint is because they believe that when a state seeks to invoke the Court's original and exclusive jurisdiction, the Court is obligated to hear the case. This is also not a new view. See, for instance, this dissent by Justice Thomas, joined by Justice Alito, in Arizona v. California. It reads in relevant part:

The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, "[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction." §2, cl. 2 (emphasis added). In this circumstance, "[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

Our original jurisdiction in suits between two States is also "exclusive." §1251(a). As I have previously explained, "[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief." Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable.

The Court has provided scant justification for reading "shall" to mean "may." It has invoked its "increasing duties with the appellate docket," Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (internal quotation marks omitted), and its "structur[e] . . . as an appellate tribunal," Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 498 (1971). But the Court has failed to provide any analysis of the Constitution's text to justify our discretionary approach.

Justice Thomas raised this concern when Nebraska and Oklahoma sought to file a bill of complaint against Colorado over marijuana legalization too.

As I have noted before, Justice Thomas is making a serious argument, and one which I suspect may be correct. Note that this would not mean that the Court has to actually hear oral argument. Rather it would mean that the Court has to accept the bill of complaint and resolve it on the merits—something that would be quite easy to do in a case like this, but might be more difficult in other contexts (e.g. the dormant commerce clause). I suspect the justices do not want to open this door lest they invite other filings in the sorts of cases they prefer to see percolate up through the lower courts, but it is not clear to me the Constitution gives the Court that choice.

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United States v. Abbott and State War Powers

Josh Blackman — Tue, 06 Aug 2024 12:30:38 +0000

Last week, the en banc Fifth Circuit resolved the buoy case. I am happy to pass on this guest post from Professor Robert Natelson, who co-authored an article on the war powers of the states.

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On July 30, the U.S. Court of Appeals for the Fifth Circuit ruled that the district court should not have granted the United States a preliminary injunction ordering Texas to remove a barrier lying in the Rio Grande River. The case was United States v. Abbott, and it was decided on the issue of navigability. However, the case also has implications for states' power to wage defensive war—and particularly defensive war against illegal immigration.

Andrew T. Hyman and I recently published an examination of those issues in the British Journal of American Legal Studies. We focused mostly on Founding-era evidence of the kind probative of the Constitution's original meaning. Our article played a role in the case—but, as described below, a rather unusual one.

The Parties' Contentions

The State of Texas had placed a 1000-foot floating barrier in the Rio Grande near Eagle Pass, Texas, a busy border-crossing area. The state justified the barrier by invoking state war powers to stem an "invasion."

The U.S. government claimed that Texas's power to respond to the alleged "invasion" had expired. The government also maintained that the state right of self-defense had been qualified by the congressional Rivers and Harbors Appropriation Act of 1899, which forbids obstructing navigable waterways without federal consent. (The Constitution grants Congress jurisdiction over navigable waterways as a component of the Commerce Power.)

Texas countered that under traditional navigability tests, the Rio Grande was not, and never had been, navigable above the city of Roma, Texas—far downstream from the Eagle Pass floating barrier.

State War Powers

The Constitution granted federal officers and entities, as well as the government itself, certain enumerated powers. As confirmed by the Tenth Amendment, it reserved the remainder to the states and the people. Moreover, where the Constitution did not specify that federal authority was exclusive, the states retained concurrent, although subordinate, jurisdiction.

Among the concurrent powers reserved to the states was the prerogative of making war. However, Article I, Section 10, Clause 3 limited that prerogative considerably:

No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

In international law terms, Congress could authorize state participation in offensive war. But states retained unconditional power to wage defensive war.

As our study pointed out, this clause retained a balance between federal and state war-making that was approximately the same as that prevailing under the Articles of Confederation.

But only approximately. The Constitution added one further constriction and four expansions of state war powers. Specifically, the Constitution (1) denied state power to issue letters of marque and reprisal—an additional restriction on offensive war but (2) discarded the former limitations on states' ability to wage defensive conflicts.

The Constitution also granted the federal government supreme power to regulate immigration (Article I, Section 8, Clause 10). However, states also retained subordinate concurrent power over that subject. This was recognized in the portion of Article I, Section 9, Clause 1 that referred to free migration as opposed to the importation of slaves: "The Migration . . . of such Persons as any of the States now existing shall think proper to admit . . . .".

Mr. Hyman and I investigated the Founding-era meaning of "invasion" and "invaded" to determine if, as three U.S. appeals courts have opined, those terms were limited to formal attacks by foreign military forces. We found they certainly were not. Both 18th century dictionaries and contemporaneous usage supported definitions broad enough to encompass peaceful but unauthorized cross-border incursions that resulted in damage. For example, in the years before the Constitution was written, both Benjamin Franklin and Pennsylvania officials referred to a peaceful but unauthorized wave of immigration into their state as an "invasion."

We also learned that during the Founding era, migrants entering a country illegally were considered, or treated as, "alien enemies." They were not accorded the same rights as "alien friends." It made no difference whether an illegal migrants' country of origin was friendly or hostile.

Finally, we examined Founding-era international law to determine the sorts of tools a sovereign may use to fight a defensive war. Not surprisingly, these included barriers to thwart invaders.

So based on our findings, it appeared that Texas was on sound constitutional ground when invoking its defensive war powers to justify building a barrier—at least until one considers the Rivers and Harbors Appropriation Act.

The Court's Decision

Under that law, if the Rio Grande is "navigable" at the point where Texas constructed its barrier, then a conflict arises between congressional exercise of the Commerce Power and state exercise of defensive war powers.

In United States v. Abbott, the court avoided that conflict. In an opinion written by Judge Don R. Willett, the court concluded that the Rio Grande was not navigable in the area of the barrier, because the river above the city of Roma had never been a "highway of commerce." Although there was some evidence that a ferry had crossed the river near Eagle Pass, Judge Willett held that ferries crossing rivers merely cover gaps in land routes. A ferry may indicate that a lake is navigable, but "Lakes are obviously not rivers."

Chief Judge Priscilla Richman concurred in the decision, but would have left open the possibility that adequate proof of a ferry route could show navigability.

Judge Ho's Opinion

Judge James C. Ho wrote a concurring-and-dissenting opinion focusing on the state right of self defense. He argued that the U.S. government's request for a preliminary injunction should have been dismissed because when a state, in good faith, claims it has been invaded and invokes its war powers, the legality of its decisions are non-justiciable political questions:

Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that's a nonjusticiable political question not susceptible to judicial reversal. I see no principled basis for treating such authority differently when it's invoked by a Governor rather than by a President. If anything, a State's authority to "engage in War" in response to invasion "without the Consent of Congress" is even more textually explicit than the President's.

In Judge Ho's view, however, "good faith" decision making is a prerequisite to non-justiciability. In this respect and in some other respects, his analysis is similar to ours. We wrote:

"Insurrection" and "invasion" not only trigger the federal government's duty under the [Guarantee] Clause, but also trigger exercise of state war powers. If the terms are too vague for courts to define for federal purposes, then they also are too vague for courts to define for state purposes. If [Guarantee] Clause cases are held to be non-justiciable because the Constitution commits the decision of whether and how to protect states against invasion to the political branches of the federal government, then the Constitution even more clearly commits (as demonstrated by the Self-Defense Clause) the determination of whether a state has been "Invaded" or in "imminent Danger" to the state government. If redressibility issues impede justiciability in [Guarantee] Clause cases, then they could also impede justiciability when a state has gone onto a war footing and raised an army.

To be clear: If federal officials are proceeding in good faith to crush an insurrection or repel an invasion, the courts should not second-guess their tactics. But judicial intervention is appropriate when federal officials utterly neglect their duty or adopt measures so plainly insufficient as to demonstrate a lack of good faith effort.

Judge Ho's concurrence matched our conclusions in another respect as well: Both he and we doubted whether a federal law, even if clearly contradicting the right to state self-defense, could take priority over that right. ("[F]ederal statutes," he wrote, "ordinarily must give way to federal constitutional rights.") This makes sense: Self-defense is inherent in sovereignty, and the Supreme Court has defended less important aspects of state sovereignty from otherwise-valid congressional action. Examples include the protection of a state's decision on where to locate its capital and protection of state officials from federal "commandeering."

Judge Andrew S. Oldham also concurred, primarily to dispute Judge Ho's foray into constitutional issues. Judge Oldham rested his conclusion solely on a finding of non-navigability.

The Dissents

In his dissent, Judge Stephen A. Higginson argued that the federal government should be able to rely on ferry traffic across a river to prove the river's navigability.

Judge Dana M. Douglas's dissent challenged the majority's evidentiary conclusions on navigability, maintaining that the federal government had presented ample evidence that the Rio Grande near Eagle Pass qualified as navigable. She also concluded that once Congress has an opportunity to respond to an invasion, state war powers cease:

Clause 3 provides that a state may engage in war without consent of Congress only when it is "actually invaded, or in such imminent Danger as will not admit of delay." . . . See, e.g., Articles of Confederation of 1781, art. VI, para. 5 (limiting a state's power to engage in war "till the united states in congress assembled can be consulted"); Robert G. Natelson & Andrew T. Hyman, The Constitution, Invasion, Immigration, and the War Powers of States, 13 Brit. J. Am. Legal Stud. 1, 17 (2024) (noting that, in regard to state war powers, the Constitution resulted in "a balance between federal and state prerogatives roughly similar to that under the Articles of Confederation") . . . .

In other words, because the scope of state war power under the Constitution is roughly equal to the scope under the Articles, and because the Articles required consultation and/or consent by Congress, then state war power under the Constitution is similarly limited.

Unfortunately, the publication she relied on—ours—directly contradicted her conclusions. We wrote that under the Articles of Confederation, states "retained virtually unlimited flexibility to engage in defensive land war—even after Congress had been consulted—except for power to strike pre-emptively at non-Indian enemies."

More importantly, we found that the Constitution had removed the Articles' constraints on state defensive war:

[O]n the land side, the Constitution preserved general state control over their militias while providing that "No State shall, without the Consent of Congress . . . keep Troops . . . in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." This limitation omitted the Articles' contingent requirement of consultation with Congress. (Italics added.)

We have written to Judge Douglas advising her of the discrepancy.

####

Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor at the University of Montana. He is the author of "The Original Constitution: What It Actually Said and Meant" (3rd ed., 2015).

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Lawsuit Over Alleged Discriminatory Refusal to Let Church Lease School Property on Weekends Can Go Forward

Eugene Volokh — Tue, 06 Aug 2024 12:27:34 +0000

From Pines Church v. Hermon School Dep't, decided last week by Chief Judge Lance Walker (D. Me.):

Plaintiffs The Pines Church and its lead pastor, Matt Gioia, looking for a new space to accommodate their growing congregation, requested a twelve-month lease to hold Sunday services at Hermon High School. The Defendant Hermon School Department's School Committee, after meeting and discussing the challenges associated with such a relationship, did not make a motion to vote on the requested twelve-month lease. Furthermore, the Committee members refused to second a motion to vote on a six-month lease. Ultimately, the Committee voted to offer Plaintiffs a month-to-month lease.

Plaintiffs filed this civil action, alleging that the School Committee's refusal to extend a long-term lease was motivated by animus against their sincerely held religious views …. The School Department offers a competing characterization of events, maintaining that the School Committee's decision was influenced by concerns about entering into a long-term lease agreement.

Before the Court are the parties' competing motions for summary judgment. Plaintiffs rely on the relatively blatant bias and the inferences that arise from the interrogatories posed by one Committee member who demanded to know from Pastor Gioia the Church's "position" on a spate of religious, political, and cultural flashpoints before evaluating whether to extend a lease on behalf of a publicly funded school.

Plaintiffs also rely on a somewhat more tepid bias, sanitized through fear-of-association comments by others, along the lines that association with the Church may not fit with the Committee's "goals" and may therefore create a "negative image" by not comporting with the School Department's "mission" and evidently its own beliefs. This evidence certainly is probative of Plaintiffs' position that the School Committee's refusal to offer Plaintiffs a lease was motivated by unconstitutional considerations, such as animus toward the Church's orthodox religious beliefs.

For its part, the School Department counters that the School Committee's decision, save for the one Committee member's bill of particulars put to the Pastor, simply resulted from humdrum, benign space and cost concerns, although that narrative is far from conclusive based on the summary judgment record. These competing characterizations of the Committee's motivations form the most conspicuous reason I deny summary judgment to the parties in favor of a jury trial.

D.C. Circuit Strikes Down Automated Filtering of Supposedly "Off-Topic" Comments on NIH Site

Eugene Volokh — Tue, 06 Aug 2024 12:01:47 +0000

In last week's People for Ethical Treatment of Animals v. Tabak, the D.C. Circuit (in an opinion by Judge Bradley Garcia, joined by Judges Karen LeCraft Henderson and Patricia Millett), held that NIH's automated filtering of comments on Facebook and Instagram pages was unconstitutional. The filtering was supposedly aimed at blocking "off-topic" posts, but it did so by filtering out words "such as … 'animal,' 'testing,' and 'cruel.'" This was unconstitutional, the court held because a government-agency-run comment section was a "limited public forum," where restrictions on public speech had to be "reasonable in light of the purpose served by the forum" and "viewpoint neutral," requirements that weren't satisfied here:

Reasonableness is to be assessed in light of the purpose of the forum, which here is to "communicate and interact with citizens," and to "encourage respectful and constructive dialogue" through the public's comments. Reasonableness in this context is thus necessarily a more demanding test than in forums that have a primary purpose that is less compatible with expressive activity, like [speech by attendees at a] football stadium …. In service of those purposes, NIH's off-topic restriction furthers the "permissible objective[s]," of creating comment threads dedicated to each post's topic and allowing the public to engage on that topic, instead of being distracted or overwhelmed by off-topic comments.

But NIH must "draw a reasonable line," informed by "objective, workable standards," between what is considered on-topic and what is considered off-topic. "Although there is no requirement of narrow tailoring," the government "must be able to articulate some sensible basis for distinguishing what may come in from what must stay out." This NIH has not done.

In the context of NIH's posts—which often feature research conducted using animal experiments or researchers who have conducted such experiments—to consider words related to animal testing categorically "off-topic" does not "ring[ ] of common-sense." For example, consider NIH's July 20, 2021 Instagram post, which featured a photo of the eye of a zebrafish. The caption read, in part: "This picture of an anesthetized adult zebrafish was taken with a powerful microscope that uses lasers to illuminate the fish." It is unreasonable to think that comments related to animal testing are off-topic for such a post. Yet a comment like "animal testing on zebrafish is cruel" would have been filtered out because "animal," "testing," and "cruel" are all blocked by NIH's keyword filters.

The government admits that animal testing comments would be on-topic for that post and instead argues that the off-topic rule is still reasonable because a reasonable policy may be both over- and underinclusive. That argument assumes the zebrafish post is an outlier. But the record indicates otherwise. A substantial portion of the NIH posts included in the stipulated record either directly depict animals or discuss research conducted on animals. To say that comments related to animal testing are categorically off-topic when a significant portion of NIH's posts are about research conducted on animals defies common sense.

Worse, the government fails to provide any definition of "off-topic" in its Comment Guidelines, to its social media moderators, or even in this litigation. See Oral Arg. Tr. 29:4–7 (NIH arguing that "off topic" is a "commonly understood" term but providing no explicit definition); id. at 29:20–21 (NIH stating that "[t]here's nothing in the comment guidelines that define[s] what off topic means"); id. at 54:22–55:25 (NIH stating its moderators use their "experience"). And without such guidance, in this context at least, it is far from clear where the line between off-topic and on-topic lies.

Take another recurring example from the record: An NIH post highlighting a study by a researcher who regularly conducts experiments on animals but did not conduct any such experiments in the particular study highlighted.

One could argue that a comment criticizing that researcher's general use of animal testing is on-topic, because the post introduced the researcher as a "topic" of the post. But one could also reasonably think that such a comment is off-topic because the specific study highlighted is the relevant "topic," and the study itself did not involve animal testing. Simply announcing a rule against "off-topic" comments does not provide "objective, workable standards" to guide either NIH's social media moderators or the public as to how to divine "what may come in from what must stay out." Though we have never required a speech restriction to demonstrate "perfect clarity," the problem with NIH's off-topic rule goes "beyond close calls on borderline or fanciful cases." Moreover, while NIH claimed in this litigation that there was an "alarming number of repetitive, off-topic" comments about animal testing, NIH provided no line (either to us or to its own social media moderators) demarcating what is an acceptable number of off-topic posts and what is too much.

"It is 'self-evident' that an indeterminate prohibition carries with it '[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.'" It is perhaps no surprise then that NIH's moderators originally added terms like "PETA" and "#stopanimaltesting" to the keyword filters which were then, during this litigation, removed once NIH realized those terms "may have signaled a certain viewpoint." The district court forgave these keyword choices as "an overzealous attempt by a NIH social media manager to tamp down irrelevant posts." To us, however, these missteps are confirmation that NIH's policy does not "guide[ ]" its social media managers with any "objective, workable standards." That undermines the reasonableness of the NIH policy.

NIH's off-topic policy, as implemented by the keywords, is further unreasonable because it is inflexible and unresponsive to context. In American Library Association, for example, even though the pornography filters erroneously blocked some websites that did not show pornographic content, the Supreme Court held that the policy was reasonable in part because library patrons could easily disable the filtering software by asking a librarian to unblock the site either temporarily for their own use or permanently for use by others.

By contrast, NIH's moderation policy lacks comparable features. The keyword filters apply automatically to comments on all NIH posts. They do not account for the topic of any given post or the context in which a comment is made—for example, a long comment that is generally responsive to the post would be filtered out if it uses any one of the keywords. Further, NIH does not employ any manual review of comments to restore otherwise on-topic comments that have been removed, turn off its filters when it posts content that is likely to make certain keywords relevant, or even routinely review its keyword list to consider whether its keywords should be removed (at least absent a lawsuit). Users seemingly have little, if any, ability to ask NIH to restore their comments; indeed, they typically are not notified when their comments are filtered out. The permanent and context-insensitive nature of NIH's speech restriction reinforces its unreasonableness, especially absent record evidence that comments about animal testing materially disrupt NIH's ability to meet its objective of communicating with citizens about NIH's work.

Finally, NIH's off-topic restriction is further compromised by the fact that NIH chose to moderate its comment threads in a way that skews sharply against the appellants' viewpoint that the agency should stop funding animal testing by filtering terms such as "torture" and "cruel," not to mention terms previously included such as "PETA" and "#stopanimaltesting." The right to "praise or criticize governmental agents" lies at the heart of the First Amendment's protections, and censoring speech that contains words more likely to be used by animal rights advocates has the potential to distort public discourse over NIH's work. The government should tread carefully when enforcing any speech restriction to ensure it is not viewpoint discriminatory and does not inappropriately censor criticism or exposure of governmental actions.

For all of these reasons, we hold that NIH's off-topic restriction, as currently presented, is unreasonable under the First Amendment. We therefore do not separately address whether the specific keywords used to implement the off-topic rule are, by themselves, viewpoint discriminatory….

PETA was represented by Stephanie Krent, Ashley Ridgway, Katherine A. Fallow, Alexia Ramirez, and Jameel Jaffer.

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Today in Supreme Court History: August 6, 1792

Josh Blackman — Tue, 06 Aug 2024 11:00:17 +0000

8/6/1792: Justice Thomas Johnson takes judicial oath.

Justice Thomas Johnson

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Biden-Harris on Supreme Court Term Limits

Steven Calabresi — Tue, 06 Aug 2024 04:14:13 +0000

President Biden launched an attack on the independence of the federal judiciary on July 29th when he endorsed the packing of the U.S. Supreme Court. He did this in an op-ed in the Washington Post and then in a partisan speech that same day commemorating the 60th anniversary of the passage of the Civil Rights Act of 1964. His Vice President, Kamala Harris, endorsed Biden's comments and indicated that she would be more aggressive on this issue than Biden has been. Packing the Supreme Court is thus a key issue in the 2024 presidential and senatorial elections, as GOP Senate candidates running in red or purple states like Montana, Ohio, Pennsylvania, Wisconsin, Michigan, Nevada, and Arizona should make clear.

Technically, Biden and Harris are probably calling for a statute that would unconstitutionally limit the voting rights of Supreme Court justices to 18-year terms in violation of Article III of the Constitution. I base this inference on my knowledge of the proceedings of President Biden's Supreme Court Reform Commission, since Biden's July 29th op-ed and speech provided no specifics. The Biden-Harris proposal of July 29th reflects the fact that a solid majority of voters oppose court packing, but voters like the idea of Supreme Court term limits by a large margin. Term limits on Supreme Court justices could be legally imposed by constitutional amendment, which would require a bipartisan consensus, and, if the term limit were long enough, it might be somewhat reconcilable with judicial independence. In reality, the Biden-Harris proposal is both a disguised court packing plan, which voters rightly oppose, and it is also unconstitutional and the greatest threat to judicial independence since President Franklin D. Roosevelt tried unsuccessfully, in 1937, to increase the size of the Supreme Court from 9 to 15 justices.

Biden tipped his hand that he is asking for a statute imposing an 18-year term limit on the voting rights of Supreme Court justices in cases or controversies before the Supreme Court because, in his July 29th proposal, he called for a constitutional amendment to overturn a recent Supreme Court case that he disagreed with, but he pointedly did not call for a constitutional amendment to enact an 18-year term limit on Supreme Court justices' voting rights on cases before the Supreme Court. Biden also did not specify whether such a package would apply retroactively to the nine current Supreme Court justices or prospectively, as some members of his Presidential Commission on Supreme Court reform have suggested it should. President Biden, and some members of his Commission, seem to think that the mere passage of a statute and not a constitutional amendment is all that is needed to eliminate the voting rights of Supreme Court justices once they have served for 18 years. I am not aware of any Republican member of Biden's Commission or of any right of center legal scholar or lawyer who currently thinks that what Biden-Harris are contemplating is constitutional.

How would the Biden-Harris plan work in practice if the Democrats win the 2024 election this November 5th? Imagine that sometime after noon on January 20, 2025, Senate Democrats, if they are still in the majority, eliminate the filibuster for a Supreme Court packing effort, disguised as an 18-year term limits bill on voting rights of Supreme Court justices on cases or controversies before the Supreme Court, which requires 60 votes to end debate. Then imagine that Kamala Harris has been elected president, that the Senate has ended up tied 50 to 50 as happened four years ago in the election of 2020, and that Kamala Harris's Vice President holds the tie breaking vote, enabling Supreme Court packing to pass in the Senate by a partisan vote of 51 to 50. Finally, imagine that Democrats win a slim majority in the House of Representatives. The Biden-Harris court packing statute, disguised as an unconstitutional 18-year statutory term limit on Supreme Court justices voting power would become a law awaiting judicial review as to its constitutionality.

All of this could easily happen, and with the retirement of Senators Joe Manchin and Kyrsten Sinema there are probably no Democrats left in the Senate who would oppose the abolition of the filibuster if it stood in the way of enacting such a statute. Based on their voting records between 2021 and 2023, when the Senate was last evenly divided, and fresh off a successful 2024 reelection campaign, Montana Senator Jon Tester, Ohio Senator Sherrod Brown, Pennsylvania Senator Bob Casey, Wisconsin Senator Tammy Baldwin, and Nevada Senator Jacky Rosen would be highly likely to join the rest of their party. If red-state Senate Democrats do not intend to join the Biden-Harris court packing bandwagon, they should publicly and loudly denounce the Biden-Harris court packing plan right now, before the November 5th election, and commit to voting against it.

Although the details remain to be spelled out, the immediate effect of an unconstitutional retroactive court packing law, disguised as a term limits law, would be to remove as voting members of the Supreme Court, on cases before that Court, three out of the six of the moderate, libertarian, and conservative Republican-appointed current life-tenured Supreme Court Justices who have served for more than eighteen years: Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Strikingly, no progressive or Democratic-appointed Justices would be removed. Such a law would then allow President Harris and a Democratic Senate to appoint three new progressive justices—one for each of the removed justices who have served for longer than 18 years. The number of justices would also technically increase from 9 to 12, although the 3 term-limited Justices would no longer have a vote on cases before the Supreme Court. This combination is what makes the Biden-Harris proposal, if retroactive, a court packing plan and not a term limits plan.

To be sure, the new progressive justices, in turn, would be unconstitutionally term limited to 18 years. But this would be a long time far into the future—in 2042. Meanwhile, the law would immediately remake the voting membership of the Supreme Court from a 6 to 3 moderate, libertarian, and conservative Republican-appointed majority, into a Supreme Court with a 6 to 3 Progressive Democratic-appointed majority, and three Republican-appointed members without a vote on cases before the Supreme Court: Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. President Harris's court packing bill, if it applied retroactively, would change the Supreme Court from a 6 to 3 majority of voting moderate, libertarian, and conservative Republican-appointed Justices to a 6 to 3 majority of voting progressive Democratic-appointed Justices through her new appointees. Thus, a retroactive court packing statute, disguised as an 18-year term limit on Supreme Court justices, would unconstitutionally give Democrats a 6 to 3 voting majority on the Supreme Court perhaps until 2042.

A prospective court packing law that simply added three new 18-year term limited justices, for each justice who has served more than 18 years, would lead to a 12-member Supreme Court that is tied 6 to 6. Either way, the statute Biden and Harris have in mind is a court packing law and not an 18-year term limits law. I am basing my discussion of what Biden and Harris may have in mind on conversations with key members of President Biden's Supreme Court Reform Commission, a number of whom are close personal friends. Either way, whether it is retroactive or not, the term limits statute the Biden Commission on Supreme Court Reform proposal favored, which never made its way into the public eye, is unconstitutional. Perhaps President Biden meant to put forward this proposal in his second term, which he will no longer serve due to his withdrawal as a candidate for President in 2024.

This proposed Biden-Harris "term limits" / court packing plan described above is the greatest threat to judicial independence since President Franklin D. Roosevelt tried unsuccessfully to pack the Supreme Court in 1937. His proposal would have increased the number of justices from 9 to 15—6 justices for each of the then-9 justices who were over the age of 70. The Court's membership has been fixed at 9 justices since 1869—a period of 155 years. Other than FDR's unsuccessful 1937 court packing plan, and some short-term court packing during the immense crisis of the Civil War, no Supreme Court packing law has ever passed in 235 years of American history. The size of the Supreme Court did increase from 6 justices at the founding, to 7 and then 9, before 1861, as the population and number of states in the union increased exponentially. None of those increases were motivated by a desire to pack the Supreme Court outright, as is explained in Joshua Braver, Court Packing: An American Tradition?, 61 Boston College Law Review 2747 (2020). While I think that what FDR tried to do in 1937 was also unconstitutional, I will confine my comments today to addressing the constitutionality of what I know to be the plan for statutory court-packing as term limits on justices' voting, which the Biden Commission on Supreme Court Reform considered.

The present nine life-tenured justices would be duty-bound to hold statutory term limits schemes, whether retroactive or prospective, unconstitutional. The term of office and powers, including the power of voting on cases before the Supreme Court, of life tenured Supreme Court can no more be altered by statute than can be the term of office or powers of the President, the Vice President, Senators, or Representatives, or of any state elected officials. Congress could not by statute take away the Vice President's tie breaking vote when the Senate is equally divided. Biden and Harris, of all people, should understand that, having served both as Vice Presidents and Senators.

The insurmountable constitutional and legal problem with President Biden's Supreme Court term limits statute in any form is that Article III, Section 1 of the Constitution says explicitly that:

"The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour …." This clause, on its face, renders any term limits, retroactive or prospective, on the Supreme Court judges unconstitutional. Such term limits cannot be achieved by the subterfuge of eliminating voting rights on cases of Supreme Court justices but not the justices' title, for reasons implicit in U.S. Term Limits Inc. v. Thornton, 514 U.S. 779 (1995) (limit on eligibility to be on the ballot is a subterfuge for an unconstitutional term limit).

Since 1761, British law has defined "good behaviour" to mean life tenure absent conviction of a felony. The Framers of the U.S. Constitution clearly understood it to mean at least that too, with a felony on its own probably insufficient absent a special impeachment and conviction proceeding in addition. That is also how tenure during good behavior has been widely understood by Americans, including American Presidents, from 1789 until President Biden's speech on July 29, 2024.

The only clause in the Constitution that even comes close to empowering Congress to legislate as to the Supreme Court reads as follows in relevant part (emphasis added):

The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Congress thus does have the power to make "necessary and proper laws for carrying into execution" the judicial power of the life tenured justices and judges. Congressional power over the judiciary under this Clause has, however, been construed to be limited by the critical principle of judicial independence, which is the right way in which to construe it. See Plaut v. Spendthrift Farm Inc., 514 U.S. 211 (1995) (opinion of the court by Scalia, J). I think, as Plaut ruled, that the Necessary and Proper Clause does not allow the Congress to retroactively require courts to effectively reverse themselves on previously adjudicated cases, which is merely an implication of the principle of judicial independence. Much less does it allow Congress to effectively nullify Supreme Court Justices' life tenure by curtailing the justices' voting rights on cases before the Supreme Court after 18 years when the President and Congress are "displeased" with the Court's decisions.

Some too-clever-by-half law professors (to some extent including me, 22 years ago) have claimed that proposals of the type considered by the Biden Supreme Court Reform Commission are not really an attack on the Justices' life-tenure. They argue that from 1789 to 2024, Supreme Court justices have held two federal, judicial offices: the first deciding cases that come before the Supreme Court, and the second riding circuit or hearing cases on the lower federal courts. Congress first curtailed and then eliminated circuit riding in the Nineteenth Century at the request of the Supreme Court justices themselves when it created many lower federal court judgeships. But, even today, Supreme Court justices are also circuit justices who hear requests for stays from their home circuits. They can also decide federal court of appeals or district court cases in any circuit when they are designated to do so by a lower federal court chief judge.

Yet the abolition of circuit riding was constitutional for the same reason the Supreme Court upheld the abolition of 16 federal court of appeals judgeships created by the lame duck John Adams Administration and a lame duck Federalist Congress in February of 1801. See Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803). Congress can abolish a level of inferior court judgeships, the inferior judges of which have tenure during "good behaviour," and it can stop Supreme Court justices from hearing cases on inferior courts, but it cannot redefine "good behaviour" to constitute voting rights on the Supreme Court for only the first 18 years of a Supreme Court justice's service.

The law professor proponents of statutory term limits claim that Congress could retroactively redefine the office of Supreme Court judge to clarify that justices vote only on Supreme Court cases for the first eighteen years after their appointment as Supreme Court judges, and then for the rest of their lives they have tenure during good behavior as circuit court judges who still have the title of Supreme Court judge but not the power to vote on cases before the Supreme Court. But this position is in my now considered judgment a mistaken view. I have changed my mind on this in the last 22 years, as I will explain further below. Everyone has long understood that the primary responsibility of the "office" of Supreme Court Justice is to serve as the final arbiter who votes in cases or controversies properly before the Supreme Court.

Moreover, the office of "judge of the supreme court," unlike the office of circuit judge, which Congress created by statute in 1789, is one of the very few offices created by the Constitution, itself, and not by a federal statute. This is made clear by its mention in the Appointments Clause, which explicitly says that: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

Congress has no power by statute to alter this constitutionally created and tenured office or its powers, an office and powers that are currently held by nine life-tenured men and women. In this office, which the Constitution itself creates, those nine Justices have the duty (in Latin, officium, from which the English word "officer" is derived) to vote on all cases or controversies before the Supreme Court. Similarly, Congress cannot alter the terms of offices, or the powers of those who hold such offices, as the Members of the House of Representatives, the Members of the Senate, the President, the Vice President, presidential electors, the Chief Justice of the United States, and ambassadors and other public ministers and consuls. The Supreme Court has also correctly rejected efforts by State legislatures to impose term limits on members of Congress notwithstanding the state legislatures' express and residual authorities to regulate elections and ballot access under the Tenth Amendment. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

All offices of the United States other than the ones noted above (except for the Speaker of the House of Representatives and the President Pro Tempore of the Senate) are created by Congress by statute and can be term limited by Congress; but that's not so for any "supreme or inferior" federal court judgeships. Congress can no more change the term of the "office" or the voting rights of Supreme Court justices or "Judges" by statute than it can do so as to the term of office or the powers of the President, the Vice President, Senators, or Representatives. Nor can the states change the term of office of any federal officials by, for example, effectively imposing term limits on their federal Senators and Representatives. See U.S. Term Limits.

The American people adopted the Twenty-Second Amendment to limit U.S. presidents to no more than two elected terms or a total of ten years in office. This was an exceptionally wise and bold move, which exempted from the two-term limit the then-serving President, Harry S. Truman. Just as it was necessary to pass a constitutional amendment to limit presidents to two terms prospectively, it is also necessary to pass a constitutional amendment to term limit or change the voting powers of Supreme Court justices, and a constitutional amendment would also be necessary to change the term of office or powers of the Vice President, or of Senators or of Representatives. No-one thought, in 1947, that Congress could by statute pass as "necessary and proper" a law that carried into execution the President's "four-year term of office" by adding the limit that he could serve for only two four-year terms. The Framers of the Constitution considered these sorts of ideas and rejected them out of hand, as the words of the Constitution show. Nor did anyone think that such a statute could have left Franklin D. Roosevelt with the title, but not the powers, of the presidency, when he began his third term as President in 1941, while some other individual also called the President somehow had all the powers that belonged to FDR under the Constitution.

The Biden-Harris plan is thus unconstitutional and should not be taken seriously by anyone. And it is also bad public policy for at least five reasons.

First, it would in practice be the end of judicial independence, which has been essential to the rule of law and the endurance of the American experiment. Instead, it would hopelessly politicize the Court, both immediately and in the long term. The new Court majority would owe their jobs to the current President and Congress far more directly than the does the current majority of Supreme Court justices. The next time Republicans win the presidency and simple majorities in both Houses of Congress, they would simply repack the Supreme Court themselves.

Such a move by Biden and Harris, with the certainty of a tit for tat by Republicans, is a great threat to our constitutional republic. What the Democrats do without bipartisan support in 2025, the Republicans will certainly do again without bipartisan support whenever they get a trifecta. It is no exaggeration to say that in short order this would end the 235-year American experiment with constitutional democracy.

A second policy problem, considered by Biden's Supreme Court Reform Commission, is that when that plan is fully implemented, it would provide that one of the nine seats on the Supreme Court would open every two years over an eighteen-year cycle. This would give every two-term president four seats to fill, which is almost always enough to tip the balance on the Supreme Court. As of 2024, we have had fifteen presidents who have served eight or almost eight years in office. They include George Washington, Thomas Jefferson, James Madison, James Monroe, Andrew Jackson, Ulysses S. Grant, Grover Cleveland, Theodore Roosevelt, Woodrow Wilson, Franklin D. Roosevelt, Harry S. Truman, Dwight Eisenhower, Ronald Reagan, Bill Clinton, and Barack Obama.

What would it be like to live in a country which has had fifteen major shifts in constitutional caselaw instead of, or possibly in addition to, the perhaps five or six major shifts in caselaw that our life tenured Supreme Court has produced? The Supreme Court would become much like the National Labor Relations Board, which is quickly dominated by labor unions during Democratic Administrations and by the Chamber of Commerce during Republican Administrations. So much for the rule of law and the Constitution. What is next? Abolishing the fifty states or the Senate by statute?

A third policy problem that bears noting is that the Biden-Harris term limit of 18 years would have cut short the tenure of many Justices long admired by Progressives, among others Thurgood Marshall, Louis Brandeis, Joseph Story, William J. Brennan, Jr., John Marshall Harlan the elder, Oliver Wendell Holmes, Hugo Black, John Marshall, and John Paul Stevens.

Do Biden-Harris, and Democratic Senate candidates in red states like Montana and Ohio, really want to cut short the judicial careers of all people like this? After all, many Supreme Court justices are said by progressives to "grow in office." That would happen to a much lesser degree with a statutory term limit of 18 years on the service of Supreme Court justices.

A fourth policy problem with the Biden-Harris plan is that twice in American history when one party controlled the presidency, the Congress, and the Supreme Court the results were catastrophic. In 1944, when New Deal Democrats controlled the presidency, Congress, and the Supreme Court, they abused their power in Korematsu v. United States, 323 U.S. 214 (1944). Six of the eight Democratic appointees on the Supreme Court voted to let President Franklin D. Roosevelt send 100,000 Japanese American citizens to concentration camps solely because of their race.

An earlier abuse of power occurred in the late 1790's when the Federalist Party controlled the presidency, the Congress, and all the federal courts. Between 1798 and 1801, Federalist Party justices and judges appointed by Federalist Party Presidents, George Washington and John Adams, used the Sedition Act of 1798 passed by a Federalist Party Congress to jail Democrats for, among other things, calling President Adams "pompous," "foolish," "silly," and a "bully." The courts jailed and fined citizens and even a congressman from Vermont, even though the speech in question was clearly constitutionally protected under the First Amendment.

The fifth and final public policy problem is that in arguing for an 18-year term limit for U.S. Supreme Court justices, President Biden gives great weight to the fact that other constitutional democracies have term limits or mandatory retirement ages on their "equivalents" to our Supreme Court justices. Biden misses, however, the fact that the United States differs greatly from all of those other much less free, much less wealthy, and much less populous constitutional democracies. From 1789 to the present, the United States has been "a shining city on a hill," which all of the other constitutional democracies formed since 1875 have strived imperfectly to emulate. Millions of Southern, Eastern, and Central Europeans; Arab and Sub-Saharan Africans; West, South, and East Asians; and Central and South Americans would all come to live in the United States, if they legally could do so, while virtually no Americans, including oppressed Black Americans, try to leave our country.

I suspect that judicial life tenure is one of the reasons why the United States is freer than any other constitutional democracy. I also suspect that the high level of certainty in U.S. law, especially Supreme Court caselaw, has reduced the risk factor in investment in the United States. This in turn explains why the United States has the highest GDP per capita of any of the G-20 nations, which are constitutional democracies.

Salman Rushdie could publish The Satanic Verses in the United States and be confident that he would not be prosecuted for doing so in 20 years. Sadly, this is not the case in Canada, Germany, France, Brazil, India, or many other constitutional democracies, in some of which, like India, I have been told by scholars that Rushdie's book is banned. Elon Musk can start SpaceX in the United States and be confident that it would not be nationalized with inadequate just compensation in twenty years. Sadly, this is not the case in many other constitutional democracies.

Our life tenured Supreme Court, and the certainty that it creates have played a central role in establishing the liberty and prosperity evidenced by our unequaled GDP per capita among the G-20 nations. I lay out the evidence for this claim in 700 pages in a two-volume recently published book series, The History and Growth of Judicial Review: The G-20 Common Law Countries and Israel (Oxford University Press 2021) and The History and Growth of Judicial Review: The G-20 Civil Law Countries (Oxford University Press 2021). The research I did for these two books caused me to rethink my earlier support, as a policy matter, for Supreme Court term limits of 18 years accomplished by constitutional amendment or statute. See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J. of L. & Pub. Pol. 769 (2006), and a 2020 op-ed in The New York Times. I once in 2002 signed an op-ed with Professor Akhil Reed Amar endorsing statutory 18-year term limits, but I recanted that view in my 2006 law review article with Lindgren, writing that statutory term limits were unconstitutional and unwise.

The other constitutional democracies that have term limits or mandatory retirement ages on their Supreme Courts or Constitutional Courts—their equivalents to the U.S. Supreme Court when it comes to having the power of judicial review—all give much more power to those "courts" than the U.S. Constitution gives to the U.S. Supreme Court. All of these foreign "courts" have the power to issue advisory opinions; lack a strict standing doctrine, like the one set forth by the U.S. Supreme Court; or allow citizen/taxpayer standing, which is not allowed in the U.S. and which hugely broadens the range of issues which a Supreme Court or Constitutional Court can rule on. Several foreign Supreme or Constitutional Courts have the power to declare constitutional amendments unconstitutional. Several also allow their current justices or judges to select their successors without meaningful input from elected officials.

This medieval guild system of incumbent judges selecting their judicial successors resembles the medieval guild system of U.S. law schools where faculty members select their own successors, a job which faculties do not do very well. In contrast, U.S. Supreme Court justices are selected by democratically elected officials through presidential nomination and senatorial confirmation. This reduces the counter-majoritarian difficulty, which judicial review creates.

In short, the reason why so many foreign countries have term limits, or age limits, and the U.S. Supreme Court justices do not, is because the foreign equivalents to our Supreme Court justices are significantly less constrained in other ways. They are therefore more in need of additional constitutional restraint than is the U.S. Supreme Court because they are not really "courts" as Americans have always understood that word.

Court packing, or term limits, would sharply undermine the independence of our judiciary. It's unconstitutional, and it's bad policy. I hope that Senators of both parties speak out against it.

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Today in Supreme Court History: August 5, 1974

Josh Blackman — Mon, 05 Aug 2024 11:00:15 +0000

8/5/1974: Shortly after the Supreme Court decided United States v. Nixon, President Nixon released the "smoking gun" tape recorded in the Oval office.

President Richard Nixon

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Monday Open Thread

Eugene Volokh — Mon, 05 Aug 2024 07:00:43 +0000

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Justice Gorsuch Explains What Collegiality Means

Josh Blackman — Sun, 04 Aug 2024 17:25:21 +0000

It seems that Justice Gorsuch is going through the media circuit in advance of his book launch. Yesterday I wrote about this interview with the Wall Street Journal. Today, David French of the New York Times published a transcript of his NMG sit down. To go back to one of my hobby horses, when a publisher gives a book deal to a Justice, with a large advance, the publisher knowns that the media will gladly sit down for interviews in Supreme Court chambers. This is free press that cannot be purchased–well it can be purchased with a substantial advance. All the more reason to place a cap on royalties for Justices. I digress.

French and Gorsuch had an extended discussion of what was learned from the COVID cases. In truth, we need to reflect a lot more on that period than we have. So many of us (present company included) made some terrible decisions. Our faith in the power of government and self-professed "experts" was largely misplaced. And nothing that has happened since the pandemic has restored my faith. Chief Justice Roberts's "super-precedent" in South Bay has not aged well. I have to imagine that distrust was lurking in the background of Loper Bright.

I found the most enlightening exchange to turn on collegiality. I think that is a term that many people use to mean different things. It was well known that Justices Scalia and Ginsburg were dear friends, and often socialized together. They were collegial. But did RBG ever persuade Scalia to change his mind, at least on a big case? Probably not. Does that mean they were not collegial?

Of late, Justice Kagan has been pushing the latter conception of collegiality–that it entails having an open mind, and a willingness to be persuaded. I have to imagine this push is part of her effort to corral Justice Barrett's votes at every opportunity. If there is any common thread with Joan Biskupic's reporting, is that Justice Kagan flipped Justice Barrett in several cases. I've yet to see any indication that a conservative Justice has flipped a liberal member of the court to reach a conservative outcome. Flipping is not ambidextrous–it only works on the left.

I for one, reject the notion that collegiality entails a willingness to reconsider your views. It is always a judge's role to find the truth, and determine the best answer to a particular legal dispute by his or her best lights. And that process primarily entails weighing the arguments advanced by counsel, and deciding which side should prevail. To be sure, judges on a multi-member court will lobby one another for this position or that position. And to maintain relations, it is important to be willing to listen. But I do not think collegiality requires anything more than listening. Indeed, there are problems with this sort of ex-post lobbying that happens after the briefs are submitted and arguments conclude. Perhaps the parties have obvious rejoinders to some post-hoc position raised, but there is no chance to discuss it. The vote at conference reflects an assessment of the actual case, as it is presented. But when votes change after conference, invariably, it will be because of some newly-determined facet of the case that the parties did not have the chance to address. The Court could always order re-briefing and re-argument, but alas, the pattern has been to simply decide cases on grounds that would be entirely foreign to the lower courts. NetChoice and Moyle comes to mind.

David French poses this question to Justice Gorsuch, which he sort-of-answers, indirectly.

French: Justice Kagan gave some remarks to the Ninth Circuit recently where she talked about this issue of collegiality within the court. There's been some friendships, for example, most famously of Justice Ruth Bader Ginsburg and Justice Antonin Scalia. Also recently, Justice Sonia Sotomayor gave a speech in which she said some really kind things about Justice Clarence Thomas and the way that he interacts with court personnel.

But Justice Elena Kagan said something interesting. She said the collegiality that America should be looking for — and I'm paraphrasing — is not "Do we go to the opera together?" but "Are we open to each other?" Are we collegial enough to where we are open to each other? What is your temperature check on the collegiality of the court?

Gorsuch: Well, you're not going to drag me to an opera, David.

French: I wasn't expecting to.

Gorsuch: There's a lot in that question.

French: Yeah.

Gorsuch: I don't know whether you want me to talk first about the court.

French: Let's go first with the court and then with the culture.

Gorsuch: Sure. So with the court, I think it is important that we're friends and that we enjoy each other's company. We have a nice dining room upstairs. Lovely dining room, but it is the government, and we bring our own lunch. And oftentimes you'll see the chief justice with a brown bag and a peanut butter and jelly sandwich. OK. Those moments are important. They're human. But I also take the point that collegiality in a work environment means being able to work together well. And can I share just some numbers with you that I think tell the story on that?

Gorsuch goes on to explain that the Court decides many cases unanimously, and that he often votes for the "liberal" side of the case. And he says those unexpected coalitions are evidence of "collegiality."

Gorsuch: We decide the 60, 70 hardest cases in the country every year where lower courts have disagreed. That's the only point to get a case to the Supreme Court. We just want federal law — largely our job is to make sure it's uniform throughout the country, and if the circuit courts are in agreement, there's very little reason for us to take a case, unless it's of extraordinary importance.

So most of the work we do is when lower court judges disagree about the law. Magically, I think in this country there are only about 60 or 70 cases. You could argue a little bit more, a little bit less, but there aren't thousands of them. They're very few in number.

There are nine of us who've been appointed by five different presidents over the course of 30 years. We have very different views about how to approach questions of statutory interpretation, constitutional interpretation about political disagreements or interpretive methodological disagreements. Yet we're able to reach a unanimous verdict on the cases that come before us about 40 percent of the time, I think it might have been even higher this last term. I don't think that happens automatically.

I think that's the product of a lot of hard work. I think that's proof of collegiality. OK? That is what we do and we do well. Now people often say, "Well, what about the 6-3s?" Fair enough. Fair enough. But that's about a third of our docket. And it turns out they aren't always what you think they are. About half the 6-3s this last term are not the 6-3s you're thinking about.

Okay, Gorsuch does not actually answer the second part of Kagan's question. The fact that the Justices vote in unusual ways reflects the fact that all of the Justices are, to various extents, heterodox. They are not–contrary to what you might read–ideologues. Trust me, if we had an actual MAGA Court, things would look very different. But Gorsuch does not even hint that collegiality requires a willingness to be persuaded. It is the facts of a case, and the arguments advanced by counsel, that determine the unusual lineups.

I would like this same question posed to Justice Barrett. I think she might see things differently.

French also asked about Justice Kagan's ethics proposal. Gorsuch explains that the facts changed since Kagan's speech. Namely, President Biden wrote a pointless op-ed and Senator Schumer introduced a nuclear bill.

French: We're running out of time, so I do want to get to a couple of other questions. One, Justice Kagan also raised this interesting idea regarding ethics. And she talked about that the Supreme Court has a code of ethics that she appreciates, but she also talked about the possibility of enforcement through — and I'll read the quote here, one moment — "If the chief justice appointed some sort of committee of highly respected judges with a great deal of experience, with a reputation for fairness, you know, that seems like a good solution to me."

And a reason for that, the creation of sort of an outside judicial panel would, part of it would be to protect the court, to provide an outside voice that could not only adjudicate potentially valid claims but also debunk invalid accusations. And she made it clear she was speaking only for herself. What's your reaction to that concept?

Gorsuch: Well, David, since that talk, there's been some developments in the world, and this is now a subject that's being intensely discussed by the political branches, and I just don't think it would be very useful for me to comment on that at the moment.

In hindsight, would Kagan still have given her remarks, knowing what would come the following week? Or perhaps Kagan knew what was coming, and gave her remarks to shift the Overton Window? We are working with a crafty, plugged-in operator here, so be skeptical. How does that work for collegiality?

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Today in Supreme Court History: August 4, 1961

Josh Blackman — Sun, 04 Aug 2024 11:00:13 +0000

8/4/1961: President Barack Obama's birthday. He would appoint two Justices to the Supreme Court: Sonia Sotomayor and Elena Kagan.

President Obama's appointees to the Supreme Court

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Some Highlights From Justice Gorsuch's WSJ Interview

Josh Blackman — Sun, 04 Aug 2024 02:21:03 +0000

Justice Gorsuch gave a wide-ranging interview with Kyle Peterson in the Wall Street Journal. The focus is his new book, which will be released on Tuesday. There are also some insights into how the Court functions post-COVID, and how his chambers operate.

First, Gorsuch strongly intimates that the Dobbs leak did not come from his chambers. I doubt any NMG clerks lawyered up, or refused to turn over their devices:

Did the Covid pandemic and the 2022 leak of the Dobbs abortion ruling change how the high court operates? Not much, apparently. "Unsurprisingly, the court has taken more security precautions with respect to its internal drafts," Justice Gorsuch says. He declines to detail what he told his clerks about the leak. "I can tell you," he says, in a low steely voice, "that it was very important to me that anybody who works for me was totally cooperative with the investigation. And they were."

Second, Gorsuch seems to appreciate the interminable round-robin format:

Oral arguments, influenced by pandemic teleconferences, have become "a little more leisurely." Lawyers now get two minutes to speak and settle in before the interrogating begins, which Justice Gorsuch says he loves: "They're all overcaffeinated and underslept, and they have a point they want to make." At the end, each justice is given a turn for final queries. "You don't have to elbow your way in," he says. "You never leave oral argument thinking, gosh, there's a question I wanted to ask."

I am not a fan. Then again, I'm not the one trying to ask questions.

Third, Gorsuch does not like his own writing:

Then comes the work of drafting rulings, where Justice Gorsuch says his colleagues shine. "I think we have an unusually large number of very gifted writers on the court right now," he says. "I'm not patting myself on the back. I put myself kind of in the middle of the pack, frankly." Asked if he has a favorite of his opinions, he answers without pausing to think: "Nope. I hate 'em all. Do you like reading your old writing?" Sometimes the job requires it. "Inevitably I think, ah, I wish I'd said this differently, ah, I didn't explore that enough."

I agree, and would put Gorsuch around the middle of the Court with writing prowess. My current top three are Roberts, Kagan, and Barrett. But Gorsuch writes in his own distinct tone, which works for him. On that point…

Fourth, Gorsuch states that he writes his own opinions. This is not surprising, since his tone is so distinctive, term-after-term:

What is his drafting process? "I like to have a law clerk do something," Justice Gorsuch says, even if he ultimately follows the practice of his old boss, Justice Byron White: "He'd say, write me something. And he'd read it. And then he'd throw it away. And then he'd write his own thing." This isn't to say the clerks are wasting time: "It's informative to see how another mind might approach the problem."

But then Justice Gorsuch sits down to write a complete draft himself. "It's a pretty intense, lock-yourself-in-a-room-with-the-materials process," he says. "At the end of the end of the end of the day," he says, repeating himself for emphasis, "I'm the one who took the oath, right? And I have to satisfy myself, that I've gone down every rabbit hole, and I understand the case thoroughly, and I'm doing my very best job to get it right."

I appreciate that Justice Gorsuch is now writing books at a regular clip. It is unfortunate that Gorsuch's royalties pale in comparison to his colleagues'. But that shouldn't matter. Gorsuch is writing about important legal topics, in much the same way that Justices Scalia and Breyer did. Gorsuch is trying to affect the long-term legal conversation. The other Justices are trying to… well, write about themselves.

For what it's worth, Gorsuch seems to identify as a libertarian-but-not-a-nut:

Whatever the cause, he worries that the U.S., with its accumulated statutory commands and regulatory crimes, is on the far side of what one might call the legal Laffer curve. "Too little law poses problems," he says. "I love my libertarian friends, but I am not with them on anarchy, OK? Law is essential." And yet: "Too much law actually winds up making people fear law rather than respect law, fear their institutions rather than love their institutions."

I can relate.

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Today in Supreme Court History: August 3, 1994

Josh Blackman — Sat, 03 Aug 2024 11:00:12 +0000

8/3/1994: Justice Stephen Breyer takes oath.

Justice Stephen Breyer

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Short Circuit: A Roundup of Recent Federal Court Decisions

John Ross — Fri, 02 Aug 2024 19:30:00 +0000

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition! In 2013, a Clovis, Calif. officer disclosed to a fellow officer that his girlfriend had filed a confidential domestic violence complaint against him—knowing full well that she was trapped in a room with him at that very moment. He then brutally attacked her. And though the Ninth Circuit ruled earlier this year that it was "obvious" that disclosing the report put her in grave danger, it granted the first officer qualified immunity anyway, finding that no factually identical prior case gave the officer fair notice the disclosure was unconstitutional. The decision reinforces a circuit split and also conflicts with Supreme Court precedent that says a factually identical case is not necessary in situations where an official has time and opportunity to deliberate (as opposed to a split-second decision on the use of force). Today, IJ asked the Supreme Court to weigh in.

Is school choice racist? Did it originate with post-Brown v. Board opposition to public school integration? Shameful mistruths! IJ Senior Attorney Michael Bindas takes to the Syracuse Law Review and sets the record straight.

Over at the Advisory Opinions podcast, IJ's Anthony Sanders indicts Justice Oliver Wendell Holmes Jr., who turns out to have been a bit of a bad egg Constitution-wise.

The USDA goes after Amazon for allegedly aiding and abetting violations of the Plant Protection Act and the Animal Health Protection Act because importers of illegal plant and animal products had them delivered through Amazon fulfillment centers. An ALJ agrees and fines the company $1 mil. D.C. Circuit: But SCOTUS has told us that aiding-and-abetting liability requires culpability. As for USDA's argument that its strict-liability reading of the statute is entitled to Chevron deference . . .
Fun fact: People for the Ethical Treatment of Animals once operated a blog called "The PETA Files," a name that apparently no one on their staff ever read out loud. But that's not the limit of their online presence—they also like commenting on the Facebook and Instagram pages of the National Institutes of Health. Seeking to moderate "off-topic" comments, NIH deploys a keyword filter, concealing comments containing words like "PETA," "cruelty," and "torture." PETA sues, alleging the filter policy violates the First Amendment. D.C. Circuit: And it does. NIH can exercise some moderation, but it has to draw reasonable lines, which the filter policy does not.
The DFINITY Foundation is a Swiss-based nonprofit that develops technology that enables the Internet Computer blockchain and its ecosystems, which are powered by novel "chain-key cryptography," allowing smart contracts to serve web directly to end users and mass market Web3 services to run entirely on-chain, all while being governed by a protocol-integrated DAO that decides using liquid democracy. Your summarist doesn't know what any of that means, but can confirm that the Second Circuit has rejected the Foundation's defamation lawsuit against financial analysts who speculated as to why the Foundation's cryptocurrency token lost 95% of its value within two months of its release.
North Carolina officer attempts to stop an allegedly stolen car, eventually blocking it into a dead-end section of a parking lot. Officer leaves his car while the driver of the stolen car tries to turn around and drive away. The officer fires one shot through the windshield and more shots through the passenger window, killing the driver. His estate sues for excessive force. District court: Dismissed; the claims in plaintiff's complaint are contradicted by bodycam footage. Fourth Circuit: They're not blatantly contradicted, and that's what it takes for video to torpedo an otherwise valid complaint. Case un-dismissed.
West Virginia officer seeks to stop motorcyclist whose passenger isn't wearing a helmet. The motorcyclist flees! But police soon have the pair (plus the motorcyclist's girlfriend) surrounded in their house. Was it a clearly established constitutional violation for officers to (allegedly) force their way into the home? Fourth Circuit: Indeed, the warrantless entry claim goes forward. But it was not excessive force to shoot the motorcyclist dead after he jumped out a window and pulled an AR-15 on an officer. Partial dissent: The officers should also have gotten QI for shooting the unarmed girlfriend, who jumped out after him.
Fifth Circuit: Do these tanker-truck drivers transport property in "interstate or foreign commerce" even though they only move crude oil inside Texas? Our precedent—which we very pointedly do not say is correct—requires us to say the answer is yes. Judge Oldham, concurring: And let's have a quick word about how bonkers that precedent is.
Allegation: After three youths driving in New Orleans ask an officer for his help in looking for a lost chihuahua, the officer gets a funny feeling and—along with another officer—tails the youths and orders them out of the car at gunpoint. Everything being in order, they're permitted to leave. Unreasonable seizure? Excessive force? Might be, says the Fifth Circuit, reversing the lower court's judgment in favor of the officers. Sadly, however, the panel also notes that it is unable to grapple with plaintiff's argument that qualified immunity sits on a throne of lies—only the Supreme Court can do that.
In 2021, Galveston County, Tex. officials redraw voting maps and eliminate the sole majority-minority district, where a combination of Black and Hispanic voters had outnumbered white voters. Fifth Circuit (en banc, 12-6): We overrule our precedent that had allowed coalitions of different minorities to bring voter dilution claims under Section 2 of the Voting Rights Act.
A fleet of airlines challenge a proposed DOT rule regulating how they disclose fees during the booking process and seek a stay while their challenge goes forward. DOT: Surely you can't be serious? Fifth Circuit: Don't call me Shirley. And if Congress had wanted to allow rulemaking in this area they would have said something about it. Stay granted.
Is the Rio Grande "navigable"? The en banc Fifth Circuit splits on this subject as it applies to a 1,000 foot stretch where Texas' governor installed some tethered buoys. The majority reverses a preliminary injunction but the full trial is still upriver. And one concurring judge says that if the governor thinks there's an invasion—like there was from 19th century cattle rustlers—courts must abdicate defer. Dissents: Haven't y'all read Gibbons v. Ogden?
New Orleans crime lab employee warns superiors that one of their drug tests is unreliable. They respond that the lab's employees will themselves be subjected to the potentially unreliable drug tests, and the employee asks to go on leave. His supervisor then goes to his home with two other armed officers to conduct a "wellness check," and they both force their way into the home and force him into a police car to take him to police headquarters. Employee sues, saying the home search and his seizure violated the Fourth Amendment. Qualified immunity? Fifth Circuit: No immunity for the supervisor, but the Nuremberg defense works for the two other officers.
Consider this timeline. 2018: Brentwood, Tenn. police detective gets a search warrant for a lawyer's private Facebook records. 2020: Lawyer learns of the search through discovery in a criminal proceeding against her. 2022: Detective testifies that one of the main reasons she got the search warrant was because the lawyer criticized the police, and the lawyer brings a First Amendment retaliation suit. Is the lawsuit timely under the one-year statute of limitations? Sixth Circuit (per curiam): Under our circuit's discovery rule, the lawyer knew about the search and who did the search in 2018, and that's enough to start the clock. Claim time-barred. (Any equitable-tolling argument was forfeited.) Concurrence 1: The real problem is just that the facts show the lawyer should have known in 2018 that she was being retaliated against. Concurrence 2: Our discovery rule seems wrong, and Supreme Court precedent says what matters is just whether the elements of the cause of action have occurred, whether or not the plaintiff knew about them.
Ohio school district prohibits students from intentionally using another's non-preferred pronouns that rise to the level of harassment. Parents with children in schools who believe that biological sex is immutable challenge the policy under the First Amendment. Sixth Circuit: You can use their names, thus avoiding pronouns, or not speak to them at all. No injunction. Dissent: The policy is a viewpoint-based regulation that compels students to speak in a manner with which they disagree, namely that biology doesn't determine gender. It should be enjoined.
Teen witnesses two assailants—one who is 320 pounds and one who is bald—commit a murder in Saginaw, Mich. in 2015. At a lineup, a police sergeant presents two suspects—neither of whom are bald or weigh anywhere near 300 pounds. The teen says they are not the assailants and later, at trial, testifies to the same. But wait! The sergeant produces a report saying that on the day of the lineup the teen did indeed finger the suspects, who spend over five years incarcerated before they're cleared. Sixth Circuit: Their fabrication of evidence and malicious prosecution claims against the sergeant can go forward.
Hamilton County, Ohio judge is indicted on multiple felony charges, including claims that she backdated documents to prevent appeals. Her 2014 trial attracts a great deal of interest; two people attending a pretrial hearing are arrested for taking pictures in the hallway (charges later dropped). They sue. Sixth Circuit (2018): No qualified immunity. Sixth Circuit (2020): Qualified immunity for all claims other than official-capacity claims. Jury (2022): One arrestee's rights were violated, and she gets $35k in damages plus $500k in attorney's fees. Sixth Circuit (2024, unpublished): The arrest was not in retaliation for protected conduct or caused by the county's failure to train its employees, so the jury verdict is reversed and money yanked. (The judge was convicted of improperly using her position to help her brother, spent 75 days behind bars, and saw her law license suspended.)
Portage County, Ohio woman left near dead with severe head injuries after a hammer attack. She first has no memory of what happened, but, after police show her a photo of a man who they say did it, she eventually (months later) says she knew all along that he did it. Suppress the identification? Ohio Court of Appeals (2018, over a dissent): Nah. The cop shouldn't have done that, but her identification of the man was nonetheless reliable. Sixth Circuit (2024, over a dissent): Calling the cop's procedures "'impermissibly suggestive' is a gross understatement." Habeas granted.
Listen, friends: We've all had that deposition where we thought opposing counsel crossed the line from zealous representation to unreasonable and obstructive conduct. Don't curse them out afterwards. Definitely don't physically push them. And definitely, definitely don't later tell the district judge you "unintentionally" brushed against them. Seventh Circuit: Sanctions award affirmed.
The Seventh Circuit voted to go en banc last year because its take on the Rooker-Feldman doctrine was a mess. After careful deliberation, the en banc court holds that the Rooker-Feldman doctrine is, in fact, a mess and that SCOTUS should really do something about that. In the meantime, if you add up the votes across three dueling en banc opinions, different parts of which are joined by different judges, the court reaches at least a few holdings about how it's going to apply Rooker-Feldman going forward, but, honestly, your summarist ran out of fingers trying to count the votes and respectfully refers you to the summary in Judge Hamilton's lead opinion, which we're sure is right.
Lobbying gets a bad rap, but, the Eighth Circuit reminds us, petitioning the gov't for a redress of grievances is, in fact, a core component of the First Amendment. As a result, Missouri's prohibition on former state legislators and staff working as lobbyists for two years after they leave office is subject to strict scrutiny, which it comes nowhere close to passing.
Allegation: Over the course of three days, pretrial detainee at White County, Ark. jail repeatedly alerts officers that a spider bite has caused an infection in his arm and hand, which are oozing pus and swelled to the size of a small watermelon. They ignore him. Eighth Circuit: We've previously held that ignoring a detainee's serious medical need for two days is unconstitutional. The lower court's denial of qualified immunity to the officers is affirmed.
Man suffering from mental illness calls Las Vegas police for help. Though he's unarmed and nonthreatening, two officers drag him to the ground and pin him down. He dies of asphyxiation. Officers: We stopped kneeling on him after he was cuffed; in the prior case at issue, officers continued pinning down the decedent after he was cuffed. Ninth Circuit: No need for a factually identical case here; he wasn't a threat. No qualified immunity.
Allegations: Georgia political candidate runs for city commission on a platform of "replac[ing] Caucasian employees with African Americans," including, specifically, the white city manager. He's elected, warns the city manager he'll be replaced with a Black city manager, and encourages the other Black commissioners to vote to do just that. The fired city manager is then told he can't return to his former position as finance director because he "did not look like" them. Eleventh Circuit: "The question for us is whether those allegations permit the inference that the City Commission fired McCarthy because he is white."
There are two things your summarist knows to be true: Defamation lawsuits draw more attention to the alleged defamation, and nobody is ever going to start referring to Twitter as X. Relatedly, the Eleventh Circuit (per curiam) holds that former Chief Justice of the Alabama Supreme Court Roy Moore cannot sue over tweets calling him a pedophile, which were inspired by multiple news reports of women who accused Moore of groping them while they were underage.
Each week, the federal courts of appeals decide cases with complicated facts featuring lurid tales of murder, mayhem, and misadventure. So when the Eleventh Circuit starts its opinion with "Warning: This is going to get messy," you know what you're going to get: an extended discussion of class-certification standards under Rule 23.
Defendant: Google had to pull my account information in response to gov't's "geofence" warrant, and I want all the evidence suppressed. Eleventh Circuit: Maybe it did. But the only account information Google actually turned over in response to that warrant belonged to your girlfriend's daughter, so you don't have standing to object.
Georgia prison officers invasively strip-search a woman visiting her inmate husband for seemingly no reason, violating prison policy in the process and dissembling about the incident afterwards. Woman sues under the Fourth Amendment, and officers assert qualified immunity. Eleventh Circuit: Strip searches are "embarrassing and humiliating," the Constitution requires that prison visitors can be subjected to them only if there is reasonable suspicion and the search is not more intrusive than necessary, and most circuits had held as much when this search occurred. But our circuit doesn't allow out-of-circuit precedent to clearly establish the law (or care that prison policy was violated), so the officers get qualified immunity. Concurrence 1: We should take this case en banc because our refusal to consider an out-of-circuit consensus goes against Supreme Court authority. Concurrence 2: K. Newsom, Considerations on Qualified Immunity, 44 11th Cir. L. Rev. 211 (2024).
One of the great joys of civil procedure is that you can, as in this Eleventh Circuit case, recite truly bonkers allegations about secret affairs with appellate judges and quid-pro-quo arrangements to spring criminal defendants and then just say there's no need to bother with any of it because the whole thing is barred by the Rooker-Feldman doctrine anyway.
Wayne County, Mich. sheriff's deputies seek to forfeit woman's car based on allegation that her passenger might have had drugs in the car at some previous time (no drugs were found). Michigan Supreme Court (over a dissent): To be forfeitable under the statute, a car has to be used to transport drugs for their sale or receipt. That didn't happen, so no forfeiture. (This is an IJ case.)

New case! In 2009, officials tried to install a new sewer line on Melisa and Michael Robinson's property, a small mobile home community they own and operate in Okay, Oklahoma. But they made a hash of it! They didn't grade the pipes properly, and sewage backed up into the homes. They hit an underground power line, killing the power and blowing out tenants' refrigerators and air conditioners. Moreover, officials never bothered to obtain the necessary easement or even notify the Robinsons before they started digging. All of which, after 13 years of litigation, led to the Oklahoma Supreme Court (and a jury) declaring the whole thing to be an unconstitutional taking. The Robinsons are now owed over $200k, but—and here's where IJ comes in—the town says it does not have to pay and that court-ordered judgments are merely unenforceable IOUs. Fiddlesticks! The Fifth Amendment is made of sterner stuff, and the gov't must pay for what it takes. Click here to learn more.

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I've Looked at Law from Both Sides, Now

Sasha Volokh — Fri, 02 Aug 2024 14:52:23 +0000

Hey all, I wrote this right after Joni Mitchell sang "Both Sides, Now" at the Grammys in February, but I only just got around to recording it and posting it on YouTube. Enjoy, and please share with the lawyers or law students in your lives!

P.S. If you want more law songs, check out my "You Don't Need a Canon" (studio version here, music video version here) and "The Ballad of FDA v. Brown & Williamson". Or, if law isn't your thing, try "Palladio Shark" or my "Sasha Reads" playlist of favorite poetry.

P.P.S. My favorite version of "Both Sides, Now" is the original Judy Collins recording, but also check out the version from the recent movie CODA (album version here, partial movie clip here). My song uses the CODA arrangement at 1.5x speed.

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Today in Supreme Court History: August 2, 1923

Josh Blackman — Fri, 02 Aug 2024 11:00:10 +0000

8/2/1923: President Calvin Coolidge's Inauguration. He would appoint Justice Harlan Fiske Stone to the Supreme Court.

President Calvin Coolidge

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Trump is Wrong (and Offensive) re Harris's Racial/Ethnic Identity

David Bernstein — Fri, 02 Aug 2024 02:01:08 +0000

Given Donald Trump's recent remarks about Kamala Harris' racial/ethnic identity, it's an unfortunate coincidence that I posted something earlier this week noting that Harris once emphasized her Indian heritage more.

So just to formally disassociate myself from Trump's views, no, I do NOT think that Harris is faking a black identity, and the fact that she once gave more public attention to the Indian part of her heritage as part of her political persona does NOT mean that she is insincere in also having a black identity.

And it's quite silly and offensive to say she can't identify with *both* her black and Indian heritages. And she has! From what I can tell, from the earliest point in her public career she was quite forthright in stating that her (largely absent) father was black, her mother was Indian, and that her mother took pains to raise her with exposure to both cultures and identities.

Not surprisingly, she emphasizes one or the other publicly depending on the context–doing an Indian cooking segment with Mindy Kaling vs. speaking to a gathering of her historically black college sorority, for example. And of course sometimes there is political salience to emphasizing one identity or another. But she's is, after all, a politician, so she should be expected to act like one!

As the author of a book about modern racial classification in the US, one thing I've noted is that she rarely if ever refers to herself as "multiracial." That's also quite understandable. A 'multiracial' movement gained steam in the US in the early 1990s, powered primary by young activists with one black and one non-black parent. One thing that particularly irked them was that not only could you not check "multiracial" on the Census and other federal forms (you still can't), but you had to choose only one racial box to check, you could not check "Asian American" and "Black," for example (now you can, since 1997). But when Harris came of age a bit before this was a "thing," so it's not surprising that she doesn't use the multiracial nomenclature.

UPDATE: Here is Trump's statement, made during an interview at a conference of black journalists: "I didn't know she was Black until a number of years ago when she happened to turn Black and now, she wants to be known as Black. So, I don't know, is she Indian or is she Black?… she was Indian all the way, and then all of a sudden she made a turn, and she went—she became a Black person." I suppose Trump is also a product of his times, when you had to "choose" one identity, at least officially, but I suspect that it more comes down to him trying to turn a segment of black voters against her by falsely suggesting that she's exploiting a black heritage that she previously neglected.

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Sixth Circuit Puts Net Neutrality Rule on Ice

Jonathan H. Adler — Fri, 02 Aug 2024 00:15:14 +0000

Today a panel of the U.S. Court of Appeals for the Sixth Circuit granted broadband providers' request for a stay of the Federal Communications Commission's rule that would classify broadband internet providers as common carriers under the Communications Act, often referred to as "net neutrality." According to the panel, the broadband providers were likely to succeed on the merits–in part due to the major questions doctrine–and this justified staying the rule pending review of their petitions. The panel consisted of Chief Judge Sutton and Judges Clay and Davis.

From the court's unanimous per curiam order:

Broadband internet refers to the set of platforms that permit users to access the internet at speeds faster than dial-up services. . . . Over three-quarters of Americans have access to high-speed broadband service. . . . In addition to renting or constructing the physical network connecting computers, broadband internet providers offer other services that enable subscribers to access content from "edge providers"–namely websites, such as Google, Netflix, and Amazon, that host content on their own networks. . . . These services include DNS, short for Domain Name Services, a "phonebook" that matches web addresses (e.g., http://www.ca6.uscourts.gov) with their IP (internet protocol) addresses. And they include "caching" services that speed up data access by storing copies of edge provider content closer to the user's home system. . . .

The Communications Act of 1934 covers broadband providers, and it gives the Federal Communications Commission authority to promulgate rules and regulations under the Act. The extent of that regulatory authority turns on whether the providers count as common carriers under the Act. If a business counts as a common carrier, it must comply with Title II of the Act, which includes rate-review regulations and non-discrimination obligations. . . . For other businesses, the Commission may impose only the ancillary regulations authorized under Title I, which generally preserve the ability of companies to respond to market conditions. . . .

The development of the internet presented the Commission with a classification challenge. When Congress first enacted this law in 1934, it defined common carriers to include anyone involved in "wire communications." . . . Think telephone companies and the monopolies that went with them. But by the 1970s, telephone companies and others had begun competing to offer data processing services through telephone wires. . . . Common carrier rules designed for telephone-wire monopolies, the Commission realized, could inhibit the development of "data information services." . . . The Commission responded by distinguishing the "basic transmission service" that transferred data between two points from the "enhanced service" that allowed subscribers to interact with data stored elsewhere.

Responding to these developments, Congress enacted the Telecommunications Act of 1996. It established a new category of "telecommunications service," which offers "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." . . . The Commission must treat telecommunications service providers as common carriers. . . . The 1996 Act also created a new category of "information service," which applies to a company that offers "a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." The Commission may not treat information service providers as common carriers. . . .

After passage of the 1996 Act, the Commission for many years took the view that broadband internet access services were information services, not telecommunication services. That left them free of Title II's common carrier requirements. . . .

Reviewing a decision from the Ninth Circuit, the Supreme Court upheld this classification under Chevron. [See Brand X]. . . Specifically, the Supreme Court found that the classification of broadband internet access offered through cable modems as an information service was a permissible interpretation of the Communications Act. . . .

In 2010, the Commission continued to treat broadband internet services as something covered by Title I but opted to alter its rules based on a debate over the risk that broadband providers could favor some edge providers' content over others. . . . The Commission tried to use its Title I authority to impose "open internet" rules on broadband providers that banned them from blocking or unreasonably discriminating between lawful content. . . . A federal court invalidated this rule on the ground that the Commission could impose such requirements only under Title II.

The next chapter unfolded in 2015. That year, the Commission promulgated a rule that categorized broadband providers as common carriers and required net neutrality under Title II. . . .

In 2018, the Commission returned to its prior view. It issued a new rule that broadband providers fall under Title I and do not qualify as common carriers. . . . The D.C. Circuit again upheld the classification and again did so under Chevron. . . .

On May 22, 2024, the Commission switched positions again. Under its current rule, the Commission has classified broadband providers as common carriers under Title II. . . . The rule requires broadband providers to disclose "accurate information regarding the network management practices" and forbids them from engaging in blocking, throttling, paid prioritization, and "unreasonable interference" with users and edge providers. . . . The rule at this point forbears other Title II regulations, including rate regulation and tariffing. . . .

The petitioners are likely to succeed on the merits because the final rule implicates a major question, and the Commission has failed to satisfy the high bar for imposing such regulations. Although the petitioners have raised other arguments in support of their position that the FCC exceeded its authority in promulgating the rule at issue, such as whether broadband can be classified as a telecommunications service under the Communications Act and the stare decisis effect of the Brand X decision, we decline to reach those arguments at this preliminary stage.

An agency may issue regulations only to the extent that Congress permits it. . . . When Congress delegates its legislative authority to an agency, it presumably resolves "major questions" of policy itself while authorizing the agency to decide only those "interstitial matters" that arise in day-to-day practice. . . .When Congress upsets that presumption and delegates its power to alter the fundamental details of a regulatory scheme to an agency, it must speak clearly, without "hid[ing] elephants in mouseholes." The more an agency asks of a statute, in short, the more it must show in the statute to support its rule.

Net neutrality is likely a major question requiring clear congressional authorization. As the Commission's rule itself explains, broadband services "are absolutely essential to modern day life, facilitating employment, education, healthcare, commerce, community-building, communication, and free expression," to say nothing of broadband's importance to national security and public safety.

Congress and state legislatures have engaged in decades of debates over whether and how to require net neutrality. Because the rule decides a question of "vast economic and political significance," it is a major question. . . . The Communications Act likely does not plainly authorize the Commission to resolve this signal question. Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers. To the contrary, Congress specifically empowered the Commission to define certain categories of communications services–and never did so with respect to broadband providers specifically or the internet more generally. . . . Absent a clear mandate to treat broadband as a common carrier, we cannot assume
that Congress granted the Commission this sweeping power, and Petitioners have accordingly shown that they are likely to succeed on the merits. . . .

Chief Judge Sutton also wrote a separate concurrence, emphasizing that even without the major questions doctrine, the FCC would likely lose. As Sutton notes, "The best reading of the statute, and the one in place for all but three of the last twenty-eight years, shows that Congress likely did not view broadband providers as common carriers under Title II of the Telecommunications Act."

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Senator Schumer Goes Nuclear With "No King Act"

Josh Blackman — Thu, 01 Aug 2024 21:43:09 +0000

Very little actually surprises me anymore. Even something unexpected is generally within some range of possibility that I anticipated. The "No Kings Act," which was introduced today by Senate Majority Leader, surprised me. No, just not surprised. It stunned me. I was actually speechless.

At a high level, the statute purports to reverse Trump v. United States, eliminate criminal presidential immunity (but not civil), and divests the Supreme Court of appellate jurisdiction over any prosecution of a former President, or even a challenge to the statute itself.

Let's walk through the bill. Section 2 explains that the "purpose" of the law is to "clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress." Clarify? That statement expressly conflicts with the holding of Trump. And Section 3 provides, "A President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress." This statement flatly contradicts how a majority of the Supreme Court interpreted Article II.

Curiously, the statute says nothing at all about civil immunity under Nixon v. Fitzgerald. Apparently that made-up immunity, which was the basis of Chief Justice Roberts's decision, is A-Okay. Also, nothing in Trump even hinted that the Vice President has immunity. This provision could have some unintended consequences for the Vice President acting as President of the Senate, who (under modern law) receives some protections under the Speech or Debate Clause.

It gets worse, The law provides that federal courts "may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress." If taken literally, this statute directs lower courts to not follow binding Supreme Court precedent–they cannot consider the exact thing that the Supreme Court said must be considered. If only Republicans responded this way to Planned Parenthood v. Casey: federal courts "may not consider' whether a law imposes a substantial burden on access to abortion. That would have been so simple!

Congress is certainly free to make such statements. It is a coordinate department of government that is entitled to interpret the Constitution. But unless we are willing to cross the rubicon of judicial supremacy, lower courts would be required to ignore Congress and follow SCOTUS. Now don't get me wrong. I despise Cooper v. Aaron. If it takes Trump Derangement Syndrome to blow up judicial supremacy, then that may have been worth it. I think of Heath Ledger as the Joker walking away from the exploding hospital. But Schumer doesn't quite have the chutzpah to go that far. Instead, he proposes a ham-handed way of playing keep-away from John Roberts.

Section 4 of the law modifies judicial review of "any criminal proceeding commenced by the United States" against a President or former President. Actions can be brought in the applicable district court. But here comes the kicker: the judgment of the court of appeals with regard to immunity is final!

"The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President."

A conviction of the President of the United States would stop with the inferior courts, and most likely, the D.C. Circuit, which by the way, will have a Democratic-appointed majority for at least the next two decades or so. If only President Reagan had thought of this idea when he had appointed the majority of judges on that court!

What else can SCOTUS not do? The bill lists eight items that the Supreme Court cannot do it itself, or direct other courts to do:

(A) dismiss an indictment or any other charging instrument;

(B) grant acquittal or dismiss or otherwise terminate a criminal proceeding;

(C) halt, suspend, disband, or otherwise impede the functions of any grand jury;

(D) grant a motion to suppress or bar evidence or testimony, or otherwise exclude information from a criminal proceeding;

(E) grant a writ of habeas corpus, a writ of coram nobis, a motion to set aside a verdict or judgment, or any other form of post-conviction or collateral relief;

(F) overturn a conviction;

(G) declare a criminal proceeding unconstitutional; or

(H) enjoin or restrain the enforcement or application of a law.

This is breathtaking. If Attorney General Garland were to lock up Donald Trump at Guantanamo Bay, and the D.C. Circuit looks the other way, the Supreme Court would have no habeas power to release him. I'm old enough to remember debates about the Suspension Clause and jurisdiction stripping from the Bush era. Democrats apparently favor full the full panoply of habeas rights for the mastermind of 9/11, but not for Trump. Priorities. If only Lincoln had such powers! John Merryman and William McCardle could not be reached for comment.

So what should the judiciary do with such a statute? Well, the bill imposes strict limits on whether these restrictions can even be challenged. Facial challenges must be brought within "180 days after the date of enactment of this Act." As I think about the Court's "facial" analysis in Rahimi and NetChoice, I cringe. Certainly this statute must have some constitutional application? So a facial challenge would fail, right? What if the President breaks the law on Etsy?

And if President Harris wins, and lets this statute go into effect, a facial challenge could never be brought. To test the constitutionality of this statute, future Presidents would have to wait to be indicted, after they leave office. A facial challenge would no longer be possible. Everyone who criticized Whole Woman's Health v. Jackson and S.B. 8 can switch sides. I can think of standing arguments why a sitting President would be able to challenge this law in office, notwithstanding its limitations–talk about a chilling effect–but I'll save those points for another time.

And an as-applied challenge "may only be brought not later than 90 days after the date of such enforcement or application." I don't even know when this clock would start ticking. If a former President is indicted, and a district court (following this statute) denies immunity, would the defendant then bring a collateral civil challenge to the statute in federal court? Wouldn't there be abstention doctrines at play? Wouldn't it make the most sense to consider the immunity issue on direct appeal–and that appeal would necessarily consider the constitutionality of the "No King Act"? Even under Justice Barrett's conception of immunity, the denial of immunity would trigger an interlocutory appeal. Maybe I'm missing something, but I have no idea how an as-applied challenge would even work here.

Let's say that a former President manages to bring some sort of as-applied challenge in a timely fashion in the right court. The statute even purports to define the appropriate standard of review: "A court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional." A presumption of constitutionality, coupled with a "clear and convincing evidence" standard! James Bradley Thayer and Oliver Wendell Holmes would be proud.

Is there any other similar statute that directs the courts to apply a particular standard of review? Some of the bills to "overrule" Loper Bright direct Courts to apply Chevron deference. That could work under the APA (assuming Justice Thomas is wrong on whether Chevron is unconstitutional). But can Congress direct the courts how to interpret a claim of constitutional immunity? I think the Supreme Court would find this statute unconstitutional, but they would have no power to hear the case!

Oh, and by the way, challenges to the statute itself can only be litigated in the District of Columbia District Court, and the D.C. Circuit. And the buck stops with Chief Judge Sri Srinivasan:

In a civil action under this subsection, a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.

The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.

More jurisdiction stripping!

To be sure, this bill is prospective. We can imagine what an Attorney General Jeff Clark would do with this bill, right? Certainly this bill can't be about Trump, right? Ex Post Facto Clause, right? Wrong.

If an action at the time of its commencement is not subject to subsection (a) or (b), but an amendment, counterclaim, cross-claim, affirmative defense, or any other pleading or motion is filed such that the action would be subject to subsection (a) or (b), the action shall thereafter be conducted pursuant to subsection (a) or (b), as applicable.

Huh? Am I reading this right? Any existing criminal that is in effect now could be brought under the auspices of this bill. In other words, if any pleadings are made about immunity in Judge Cannon's court, she would then be required to reject an immunity claim? Could this be the rule?

There is one provision that I can't quite make heads-or-tails of:

No court may issue relief sua sponte on the ground that a provision of this Act (including this section), or its enforcement or application, is unconstitutional.

What is going on here? I think this is hinting at an issue where some other federal court, hearing some related issue, may opine on the constitutionality of the statute.

Perhaps the most brazen part of the bill is Section 6(b)(vi):

All appeals from the United States District Court for the Northern District of Texas, Amarillo Division, shall be taken to the United States Court of Appeals for the District of Columbia Circuit, which shall have exclusive jurisdiction to hear an appeal in a civil action under this subsection. This provision shall be known as the "Stealth Impeachment of Judge Matthew Kacsmaryk Law."

No, Section 6(b)(vi) is not in the bill, but you believed it. And you better believe progressives will try to strip the Fifth Circuit of jurisdiction.

***

Let me be clear. This bill has no chance of passage in the current Congress. And if Trump wins, I think the judiciary is safe for another four years. But if Harris prevails, and the Democrats have majorities in both houses, they will find a way to pass this bill. Remember, this is not some sort of fringe proposal from the Squad, but was introduced as a priority bill by the Majority Leader. The whirlwind cometh. Once the Supreme Court's jurisdiction is stripped for presidential immunity, it is only a matter of time before similar bills are passed for abortion, the Second Amendment, RFRA, and so on. This bottomless hole keeps going deeper.

President Biden's pointless op-ed, which did not even bother to specify whether a statute could impose term limits, was apparently just a warm-up act. Senate Democrats are going all-in on destroying the judiciary as we know it. Remind me again how cataclysmic it was when Trump referred to "Obama judges"? I welcome comments from the Never-Trumpers who think Kamala Harris is the last chance to save our republic.

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No Part IV For Biskupic?

Josh Blackman — Thu, 01 Aug 2024 16:05:11 +0000

This morning I did something I have not done in some time. I loaded CNN.com. I wanted to see the latest in Biskupic's series of "Exclusive" reports on the Supreme Court. There was nothing. I checked again, and again, and again. No Part IV. It is just past noon eastern now, and still nothing. Is this series over? If so, we learned very little. The primary new insight was about Barrett's flip in Moyle from the emergency docket to the oral argument. Everything else was pretty apparent from the published decisions.

I have a love-hate-yawn relationship with Biskupic's reporting. I am always eager to see the scintillating details, even though I deeply regret that people are still leaking to the press after Dobbs. These sorts of stories do irreparable damage to the collegiality and openness of the Justices. And to what purpose? Does anyone, other than a few nerds, really care about how the sausage is made? In the end, I yawn because not much is learned. Really, the cost to the judiciary of these leaks far exceeds whatever trivial value we gain from these "Exclusive" stories. We went a few years without any Biskupic scoops, and everything was just fine.

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Gillespie Interviews Barnett on Originalism, Obamacare, and the Libertarian Movement

Josh Blackman — Thu, 01 Aug 2024 15:43:08 +0000

I encourage everyone to watch Nick Gillespie's cool interview with Randy Barnett. They touch on Randy's role in developing originalism, the challenge to Obamacare, and the future of the libertarian movement. I would also commend Randy's recent essay, fittingly titled "Libertarianism Updated." And if you haven't bought Randy's new book yet, you should. I'm sure he would be happy to sign it next time you see him.

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Today in Supreme Court History: August 1, 1942

Josh Blackman — Thu, 01 Aug 2024 11:00:09 +0000

8/1/1942: Military commissions conclude for eight nazi saboteurs. The Supreme Court upheld the constitutionality of these trials in Ex Parte Quirin.

The Stone Court (1942)

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Thursday Open Thread

Eugene Volokh — Thu, 01 Aug 2024 07:00:26 +0000

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737 MAX Crashes Victims' Families Object to Boeing's "Sweetheart" Plea Deal

Paul Cassell — Wed, 31 Jul 2024 22:10:41 +0000

Earlier today, I filed a motion for the Boeing 737 MAX crashes victims' families, asking the district judge to reject the plea deal that the Justice Department and Boeing have negotiated. I argue that the proposed plea agreement is a "sweetheart" deal that is an inadequate response to the deadliest corporate crime in U.S. history. Because the motion raises interesting issues of crime victims' rights and corporate accountability, I wanted to post the motion here and highlight the arguments it contains.

As noted in earlier posts here, here, here, and here, I have been working with other lawyers (pro bono) for about two-and-half years now, representing some of the families who lost loved ones in the crashes of the two Boeing 737 MAX aircraft. To quickly recap where things stand, after two deadly crashes in 2018 and 2019, in January 2021, Boeing admitted that it concealed safety issues with the 737 MAX from the FAA. Boeing swiftly and secretly negotiated a deferred prosecution agreement (DPA) with the Department, apparently resolving its criminal liability for its deadly conspiracy to defraud the FAA.

But since then, in October 2022, the district judge handling the case (Judge Reed O'Connor in the Northern District of Texas) concluded that the 346 families who lost family members in the crashes represent "crime victims" and that their Crime Victims' Rights Act (CVRA) rights were violated by the Department covertly negotiating the DPA. And then, while issues of how to remedy that rights violations were being debated, in May of this year, the Justice Department concluded that Boeing had breached its DPA commitment to improve safety at the company. Following that breach determination, Boeing was subject to prosecution for the charge of conspiring to defraud the FAA that had been filed against it. And last week, the Department and Boeing announced the specific terms of the plea agreement they had reached to resolve the prosecution.

It is often assumed that once the parties in a criminal case (the prosecutors and defense) reach a plea, that's the end of things. But under the federal rules, a district judge must approve the plea agreement under what is essentially a public interest standard. And my brief for the victims' families argues strenuously that this plea deal is not in the public interest. From the introduction (some citations omitted):

Boeing's lies to the FAA directly and proximately killed 346 people, as this Court has previously found. And yet, when the Government's and Boeing's skilled legal teams sat down behind closed doors to negotiate a plea deal, that tragic fact somehow escaped mention. Instead, what emerged from the negotiations was a plea agreement treating Boeing's deadly crime as another run-of-the-mill corporate compliance problem. The plea agreement rests on the premise that the appropriate outcome here is a modest fine and a corporate monitor focused on the "effectiveness of the Company's compliance program and internal controls, record-keeping, policies, and procedures …." And as a justification for such lenient treatment, the plea agreement relies on an incomplete and deceptive statement of facts that obscures Boeing's true culpability.

The families object, as the Crime Victims' Rights Act gives them the right to do. The families respectfully ask the Court not to lend its imprimatur to such an inappropriate outcome. Indeed, the families' first objection is that the Court would not be allowed to make its own determination about the appropriate sentence for Boeing but merely to rubber stamp what the parties propose through a "binding" plea deal under Fed. R. Crim. P. 11(c)(1)(C).

In the pages that follow, the families provide eight substantial objections to the proposed plea, including its deceptive factual premises, its inaccurate Sentencing Guidelines foundation, and its inadequate accounting for the deaths Boeing caused. This Court has previously stated that when it has authority "to ensure that justice is done," then "it would not hesitate." This proposed agreement is not justice. The Court should not hesitate to reject it.

My motion advances eight different and independent arguments about why the district judge should reject the plea, specifically:

The proposed Rule 11(c)(1)(C) binding plea agreement destroys the judge's ability to craft a Fair and Just Sentence;
The Parties have "swallowed the gun" by hiding relevant facts About Boeing's true culpability;
The proposed plea agreement unfairly allows Boeing to escape accountability for directly and proximately causing 346 deaths;
The proposed plea agreement surreptitiously and unfairly exonerates Boeing's then-senior leadership for their involvment in the conspiracy;
The proposed $243 million fine to be imposed is inadequate under recognized general principles of sentencing;
The proposed compliance monitor provision is inadequate because it creates unenforcable obligations;
The plea agreements provisions requiring Boeing to make new investments in compliance, quality, and safety programs is also essentially unenforcable; and
The agreement's restitution provision is misleading and unfairly allows Boeing to tie Up restitution awards through extensive litigation and appeals.

You can read the entire motion and incorporated memorandum here. And, in connection with the families' argument that the parties have deceptively concealed the facts surrounding the conspiracy, the families have prepared a more complete and expansive statement of facts–found here.

The Justice Department and Boeing now get two weeks to respond, and I get five days to reply. After that, the issue of whether to approve the plea will be in the hands of Judge O'Connor.

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En Banc Fifth Circuit Rules for Texas in Water Buoy Case, but Doesn't Resolve Issue of Whether Illegal Migration Qualifies as "Invasion"

Ilya Somin — Wed, 31 Jul 2024 15:50:46 +0000

(Illustration: Lex Villena; Free Speech Coalition)

Yesterday, in United States v. Abbott, the en banc US Court of Appeals for the Fifth Circuit ruled in favor of Texas in a case where the federal government is suing the state for installing floating buoy barriers in the Rio Grande River to block migration and drug smuggling, thereby creating safety hazards and possibly impeding navigation. The Biden Administration claimed this violates the Rivers and Harbors Act of 1899.

Texas argues the federal government incorrectly interpreted the statute, but also asserts that one of the "invasion" clauses of the Constitution gives it the power to install the buoys even if federal law forbids it. Article I, Section 10, Clause 3 of the Constitution states that "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in defiance of federal statues, and even in the absence of congressional authorization for war.

In an 11-7 decision largely divided along ideological lines (with more conservative judges in the majority), the en banc Fifth Circuit overturned appellate panel and trial court decisions that had ruled in favor of the federal government.

The majority decision is based on statutory arguments, concluding that the relevant stretch of the Rio Grande is not covered by the Rivers and Harbors Act because it isn't "navigable." On that issue, I think both sides have some good arguments, and I will leave it to analysts with greater interest and expertise. Significantly, the majority does not address Texas's "invasion" argument, thereby not overturning the panel and trial court rulings against Texas on that issue.

Texas has also advanced the "invasion" argument in another case, one dealing with the legality of the states SB 4 law, giving law enforcement broad powers to detain and expel undocumented migrants. So far, both the district court and a Fifth Circuit panel have ruled against the state on that point.

In a recent Lawfare article and an amicus brief in this case, I have explained why illegal migration and drug smuggling do not qualify as "invasion" under the text and original meaning of the Constitution. An "invasion" is an organized armed attack. In addition, I outline the dangerous implications of Texas's argument. If accepted by courts, it would give states nearly unlimited power to start wars without congressional authorization, and give the federal government a similar blank check to suspend the writ of habeas corpus (thereby allowing it to detain people, including US citizens, without charges).

In a concurring opinion in the en banc court, prominent conservative Judge James Ho argues that the court should have addressed the invasion argument. He contends that the meaning of "invasion" is a "political question" that the judiciary is not permitted to address. Other courts that have ruled that invasion is a political question have simultaneously concluded that the matter is left up to the federal government (while, in several cases, also simultaneously concluding that illegal migration does not qualify as invasion). Judge Ho, however, argues that courts must defer to the Texas governor's assertion that there is an invasion, at least so long as the governor is acting in "good faith."

This theory has breathtakingly awful implications. It implies a state governor can declare the existence of an "invasion" virtually any time he or she wants, and then "engage in war" in response—even without authorization from Congress. Moreover, Ho argues the governor can continue military action indefinitely, even if the federal government has had time to consider the situation, and opposes the state's actions.

The "good faith" restriction is not much of a constraint. Political partisans can persuade themselves that almost any interaction with foreigners they find threatening qualifies as an "invasion." If illegal migration and drug smuggling qualify, why not economic competition (many "national conservatives" view imports as a national security threat)? Why not supposedly harmful cross-border cultural influences (dangerous foreign ideas and art forms are "invading" our people's minds!)? And that list can easily be extended.

If this conclusion were required by the text and original meaning of the Constitution, perhaps there would be no way around it. But that isn't so. As explained in my article and amicus brief, historical and textual evidence overwhelming demonstrate that only an organized armed attack qualifies as an "invasion." As James Madison put it, invasion is "an operation of war." Nor is there any original meaning evidence indicating that courts must defer to state governments on this issue.

The "political questions" doctrine is a judicial invention, not something embedded in text and original meaning itself. I am skeptical that the doctrine makes much sense at all. Even if it should be used in some contexts, there is no reason to think the meaning of "invasion" is the kind of issue that courts cannot or should not resolve. The meaning of that term is at least as clear as that of many other words in the Constitution that courts routinely interpret. At the very least, the political question doctrine should not be interpreted to mandate the absurd consequence that a single state can start a war virtually anytime it wants—since there is virtually always some substantial amount of illegal migration and cross-border smuggling, at least so long as we have drug prohibition and severe migration restrictions.

Judge Ho also argues that actions by nongovernmental groups can qualify as "invasion." This may be true in some situations, as in the case of attacks by insurgents or terrorist groups. It does not follow that illegal migration, drug smuggling, or other ordinary criminal activity qualify.

Moreover, most of the evidence he cites relates to a situation in the 1870s where the governor of Texas used state militia to combat large-scale cross-border banditry from Mexico. This episode—occurring almost a century of the enactment of the Invasion Clause—sheds little light on the text and original meaning. In a recent opinion, Supreme Court Justice Amy Coney Barrett rightly cautions against reliance on "[h]istory (or tradition) that long postdates ratification." This is the kind of thing she had in mind.

In addition, the 1870s history doesn't really support Judge Ho's position. In an 1874 letter to the Attorney General (which Judge Ho helpfully reprints in an appendix to is opinion), Texas Governor Richard Coke argued that the Mexican bandits had gone beyond ordinary criminality, and "were making war on the people of Texas and their property." He also stressed that Texas state forces were "not authorized to cross the river for purposes of retaliation, nor to make war on the territory or any of the people of Mexico, but only to pursue marauders going out of Texas, and take from them and bring back property found in their possession belonging in Texas." This stops short of claiming a right to "engage in war." Perhaps most important, the Governor acknowledged that "the officers of the United States Government… have the power to prevent… enforcement" of his order to the Texas troops, and that he will withdraw the order if the federal government requests it. That's a far cry from the claim of virtually unlimited power to declare an "invasion" and engage in war in response claimed by Governor Abbott today.

The dissenting opinion by Judge Dana Douglas has additional criticisms of Ho's opinion on the "invasion" issue. I don't agree with all of her arguments. But she's right to point out that Texas's position "would enable Governor Abbott to engage in acts of war in perpetuity."

In a concurring opinion, Judge Andrew Oldham (another prominent conservative jurist), contends that Judge Ho is wrong to argue the majority was required to address the invasion issue. I think Judge Oldham is probably right about that question, but will leave it to commentators with greater expertise on civil procedure.

Yesterday's ruling is not a final resolution of the buoy case. Technically, it only lifts the preliminary injunction against the buoys issued by the district court. However, the majority's analysis makes clear that the trial court will have to resolve the case in favor of Texas on the issue of "navigability." If so, the invasion question need not be addressed, since the en banc majority signaled it does not have to be.

However, the invasion argument is still in play in the SB 4 case, and Texas—and perhaps other states—are likely to continue making it in the future. So long as they persist in doing so, I will keep on explaining why that argument is dangerously wrong.

UPDATE: In the original version of this post, I indicated that the vote in the en banc Fifth Circuit was 11-6, rather than the correct figure of 11-7. I apologize for the mistake, which has now been corrected.

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Biskupic Part III Confirms What We Already Knew: Justice Alito Lost Majority Opinions in NetChoice and Trevino.

Josh Blackman — Wed, 31 Jul 2024 14:26:51 +0000

On July 1, the Court decided Moody v. NetChoice. Later that day, I speculated that Justice Alito was assigned, and lost, the majority opinion. I had no inside information. I do not have any leaks. Rather, I was able to track the Court's assignments in each sitting, observe that Alito was short an assignment, and realize that Alito's separate opinion read very much like a majority opinion. Indeed, Alito signaled as much with this fourth-wall-breaking jab:

For these reasons, I am therefore compelled to provide a more complete discussion of those matters than is customary in an opinion that concurs only in the judgment.

Two weeks earlier, I speculated that Justice Alito lost the majority opinion in Gonzales v. Trevino. The per curiam majority was unusual. I wrote:

Why is this a per curiam opinion? It is possible that Justice Alito was assigned the majority opinion, but lost it, and the Chief came in to salvage the majority with a narrow per curiam. At present, Alito does not have any assignments from the March sitting.

Again, I had no inside information. I only need to read and to count.

Now, Joan Biskupic's exclusive third installment confirms what we already knew: Justice Alito lost the majority opinions in NetChoice and Trevino.

Here is Biskupic's lede.

The hardline approach Supreme Court Justice Samuel Alito takes usually gets him what he wants.

This year it backfired.

Behind the scenes, the conservative justice sought to put a thumb on the scale for states trying to restrict how social media companies filter content. His tactics could have led to a major change in how platforms operate.

CNN has learned, however, that Alito went too far for two justices – Amy Coney Barrett and Ketanji Brown Jackson – who abandoned the precarious 5-4 majority and left Alito on the losing side.

As a result, the final 6-3 ruling led by Justice Elena Kagan backed the First Amendment rights of social media companies

It is rare that a justice tapped to write the majority opinion loses it in ensuing weeks, but sources tell CNN that it happened twice this year to Alito. He also lost the majority as he was writing the decision in the case of a Texas councilwoman who said she was arrested in retaliation for criticizing the city manager.

And to be clear that Alito was not a source, Biskupic includes this disclaimer:

Alito declined CNN requests for an interview.

At conference, it seems that Justices Barrett and Jackson were more amenable to Judge Oldham's analysis in the Fifth Circuit. Remember, Justice Jackson has signaled that she will be the most hostile member of the Court to free speech claims.

A few days later, as the justices met in private on the dispute, they all agreed that NetChoice's sweeping claims of unconstitutionality had fallen short and that the two cases should be sent back to the lower courts for further hearings.

The justices, however, split over which lower court largely had the better approach to the First Amendment and what guidance should be offered for lower courts' further proceedings.

Alito, while receptive to the 5th Circuit's opinion minimizing the companies' speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservatives Clarence Thomas and Neil Gorsuch and, to some extent, Barrett and Jackson.

This is the key insight that Biskupic provides here: that Barrett and Jackson formed the majority at conference. I speculated as much, but Biskupic states it with some degree of confidence.

But Justice Kagan, the old-school liberal, favored a more robust conception of free speech:

On the other side was Kagan, leaning toward the 11th Circuit's approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by their users. She was generally joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.

If Biskupic's accounting is right, then Justice Thomas would have assigned the majority to Justice Alito:

Alito began writing the court's opinion for the dominant five-member bloc, and Kagan for the remaining four.

But then what happened? Surprise, surprise, Justice Barrett changed her mind. Or, if I had to speculate, she was never much settled on the issue in the first place. She was all over the map at oral argument. She had already stayed the Fifth Circuit's ruling a year earlier, so had been thinking about the case for some time. Yet, there was still no clarity. Justice Barrett, as I've written many times before, is figuring things out as she goes along. Law professors perhaps champion that virtue as one of open-mindedness and reasonableness. But the risk is that she can be unduly influenced. And Biskupic suggests it was Kagan who, once again, won Barrett over. As I presumed.

But when Alito sent his draft opinion around to colleagues several weeks later, his majority began to crumble. He questioned whether any of the platforms' content-moderation could be considered "expressive" activity under the First Amendment.

Barrett, a crucial vote as the case played out, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying types of algorithms platforms use.

Please remember that every word that Elena Kagan writes and utters in public is designed to curry Justice Barrett's vote. And we can only presume similar conversations occur behind the scenes. Never forget that. Going forward, no majority opinion with Barrett as the fifth vote is safe. Chief Justice Roberts for all of his warts in the past, has been a stalwart of late. If I was looking to hire a lateral professor to teach Federal Courts and Legislation, Professor Barrett would be on the short list. But for the Supreme Court? No way. Please don't let anyone blur this distinction.

Biskupic hints that once Barrett flipped, Jackson joined part of Kagan's majority to make the vote 6-3 rather than 5-4. It would have taken a stand for Justice Jackson to stay with Justice Alito. It was a free vote. But she wrote separately.

Jackson then joined much of Kagan's analysis as well, including that a private company's collection of third-party content for its platform could itself be expressive and therefore subject to First Amendment considerations when a state attempts to regulate.

Biskupic suggests that the votes were in flux till the very end of the term:

The give and take among the justices in the social media cases took until the very last day of the term.

One wonders if the Court had its last day in June, rather than July, would the bottom line have been different? Onto the next case.

Trevino was decided on June 21. Biskupic writes that the majority in that case fell apart a few weeks before:

A few weeks before then [NetChoice being decided on July 1], the separate majority Alito had tentatively won in the dispute over an alleged retaliatory arrest in Texas fell apart because of how extensively he wanted the court to rule.

At conference, the Court agreed to reverse the Fifth Circuit:

When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.

But Alito tried to go too far:

But as he began writing, he went further than the other justices in his review of Gonzalez's case. Alito and his colleagues realized he couldn't "hold five," as the expression goes, for a majority.

A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit's reasoning, the Supreme Court said the 5th Circuit had applied an "overly cramped view" of the court's precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.

Biskupic does not tell us the question I raised: who wrote the per curiam? Was it Roberts? Or Kagan? She refers obliquely to "a new majority."

Biskupic also hinted that Alito's absence from the handdown was related to this friction:

On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito's chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.

Justices sometimes skip one of these final days of the annual session, but usually there's an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.

Alito returned for the final four announcement days of the term, yet sometimes appeared preoccupied. On the last day, when Kagan announced the decision in the NetChoice case, Alito was reading through material he had brought along to the bench.

I made a similar observation, querying why Chief Justice Roberts announced the per curiam opinion.

***

Like with her first and second installments, we don't learn much new, and we are left wanting to know what actually happened–something Biskupic does not know. Moreover, Justice Kavanaugh is entirely invisible in these stories. I think Team Kavanaugh has cut off Biskupic. She has nothing on him.

Yesterday I mused to myself that Part III would be about NetChoice. My prediction is Part IV will about Rahimi. Biskupic will tell us about how Justices Kavanaugh and Barrett split on the history-and-tradition test, and how Justice Gorsuch struggled with the as-applied issue. Plus there will be an aside on Vidal v. Elster. And Part V will be about Trump v. Anderson, and how Roberts cobbled together a majority. I hope there is some insight into the Barrett-Kagan dispute, which I still can't make heads-or-tails of. I don't have any inside information. Those were my observations from simply reading the opinion.

The post Biskupic Part III Confirms What We Already Knew: Justice Alito Lost Majority Opinions in NetChoice and Trevino. appeared first on Reason.com.

On the Biden/Harris Court "Reforms"

Keith E. Whittington — Wed, 31 Jul 2024 13:23:52 +0000

New from me in The Dispatch is a breakdown of the administration's newly announced "reforms" for the U.S. Supreme Court. The announcement is remarkably light on details, and there are better and worse directions that the Democrats could go with this. So far the Biden/Harris team has declined to endorse the progressives' most favored proposal of expanding the size of the Supreme Court, but even this is a big shift to the left by the White House as we head into the 2024 elections and a clear signal that radical attacks on the Court will be on the agenda if the Democrats manage to claim both Congress and the White House.

Yet another reminder that for those who care about constitutional government, there are no good choices on the ballot this year.

From the piece:

As a matter of constitutional norms, a statutory term of service under current circumstances would in fact be a serious challenge to judicial independence. The current White House is not shying away from saying that it wants to shuffle justices off the court because it is unhappy with the substance of its decisions. Perhaps there could be a neutral rationale for setting a mandatory retirement age to avoid the problem of infirm judges—but there is nothing politically neutral about current proposals. They recall how a leader of the Jeffersonian senators once told John Quincy Adams that Federalist judges needed to be impeached because, "we want your offices, for the purposes of giving them to men who will fill them better."

Read the whole thing here.

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Congratulations to Brady Kelly, Back-to-Back Chief Justice of FantasySCOTUS for OT 2022 and 2023

Josh Blackman — Wed, 31 Jul 2024 12:30:55 +0000

The October 2023 Term of FantasySCOTUS finally came to a close. This term, Chief Justice Roberts cemented himself as the Court's center, as Justice Barrett continues to separate herself from the other Trump appointees. On the whole, this term was more predictable than some recent years. And the FantasySCOTUS prediction market did quite well. In the aggregate, our crowd predicted 83.05% of the cases accurately, up from 75% last term, and 81% the term before.

I am happy to announce that the Chief Justice is Brady Kelly. Brady has now won the competition two years in a row. Players receive ten points for each correct prediction of a Justice's vote. We recorded 59 merits cases (DIGs do not count). A perfect score would have been 5,900 points. Brady scored 4,950 points. Bill Corteal, who was the champion in OT 2021, was the runner-up with 4,750 points.

Here is the Top 10:

Brady Kelly

I profiled Brady last year in this post. This year, I asked him to provide some more detail on how he makes predictions. Here are his comments:

This term, I changed approaches and put in a prediction for every case prior to oral arguments. I changed as needed after oral arguments, but I appreciated A) being able to form an opinion prior to seeing potentially misleading headlines, and B) the ability to (separately) hold myself accountable to predictions without the benefit of oral arguments. Interestingly, Justice Gorsuch had my least accurate predictions pre-oral arguments and my most accurate ones post-oral arguments. In terms of the most difficult cases, I found FBI v. Fikre challenging, and found Moore v. U.S. the hardest to wrap my head around. But honestly, I'm just glad there wasn't another habeas corpus case. There were a few cases where I guessed the outcome about right but guessed incorrectly how it would be counted (e.g. Devillier v. Texas), and then others where I didn't think it was terribly difficult but nonetheless got it very very wrong (e.g. Snyder v. U.S.). I felt the easiest three to predict were NRA v. Vullo, LePage Bakeries, and Sheetz (at least the QP itself). It seems like there are some really difficult questions waiting to come up in a future Sheetz-type case.

Congratulations to Brady, and everyone else who participated. The 16th season of FantasySCOTUS will launch on the first Monday in October.

The post Congratulations to Brady Kelly, Back-to-Back Chief Justice of FantasySCOTUS for OT 2022 and 2023 appeared first on Reason.com.

Today in Supreme Court History: July 31, 2018

Josh Blackman — Wed, 31 Jul 2024 11:00:03 +0000

7/31/2018: Justice Anthony Kennedy retired.

Justice Anthony Kennedy

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Struggling with Standing

Jonathan H. Adler — Tue, 30 Jul 2024 17:53:30 +0000

Conservative litigants have lost quite a few cases on standing grounds in recent years. I have an article discussing this in the September issue of National Review (titled "Standing Up" in the print edition). Here's a taste:

FDA v. Alliance for Hippocratic Medicine is one of several cases in recent years brought by conservative plaintiffs advancing conservative causes to the Court, only to founder on the shoals of standing. Also this term, in Murthy v. Missouri, the Court concluded that social-media users lacked standing to seek an injunction barring federal officials from pressuring social-media platforms to suppress or deplatform unpopular speech as "disinformation." Whatever improper conduct officials had engaged in to suppress speech in the past, Justice Amy Coney Barrett explained, no plaintiff could show the imminent threat of government action necessary to justify an injunction.

AHM and Murthy are not aberrations. In recent years the Court has turned away conservative challenges to the Indian Child Welfare Act, the Affordable Care Act, and Biden-administration immigration policies as well, all on standing grounds. If some hoped (or feared) that a conservative Supreme Court would loosen the standing barrier against policy-oriented litigation, they were sorely mistaken.

That a conservative Supreme Court insists on enforcing traditional rules of standing should be no surprise. Stringent standing rules have been a core element of conservative jurisprudence for decades. Current doctrine was shaped by the late justice Antonin Scalia as much as by anyone else, and it has also been a priority of Chief Justice Roberts, who sees it as a way of preventing political activists from using the courts to fight policy battles that belong in Congress or at the ballot box.

The idea of standing is grounded in Article III of the Constitution, which limits federal-court jurisdiction to "cases" and "controversies." The idea is that an individual litigant should have a sufficient stake in the outcome of a legal dispute to justify the exercise of federal jurisdiction over his claim. "In more pedestrian terms," as then-judge Antonin Scalia explained in a 1983 law-review article, "it is an answer to the very first question that is sometimes rudely asked when one person complains of another's actions: 'What's it to you?'" It is not enough to care deeply about a particular question. One has to have a sufficiently tangible stake if one wants one's arguments heard in a federal court.

In the article I also discuss some of the recent complaints about standing doctrine from the Right, including those put forward by Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit. I engage the latter quite extensively in my Wake Forest Law Review article, "Standing without Injury."

The complaints about standing from the Right, combined with continuing concerns about third-party standing, associational standing, and state standing, make standing doctrine poised for revision, and potentially in ways that do not easily conform to ideological priors or even to linear characterization (e.g. "easier"/"harder"). I suspect standing could become easier in some contexts, but more difficult in others. The question then will be whether standing's current critics will be happy with the end result. I have my doubts.

The post Struggling with Standing appeared first on Reason.com.

Biskupic's Second Installment on Trump Immunity

Josh Blackman — Tue, 30 Jul 2024 15:26:50 +0000

It looks like Joan Biskupic will have a multi-part series. Maybe five parts, like in the bad 'ol days when the Supreme Court had more leaks than the Titanic. Part I was on Moyle. Part II turns to Trump immunity.

Frankly, there is not much insight here. Almost everything she wrote could have been deduced from simply reading the opinions. Again, I wonder how much of what Joan comes from sources with actual inside info, versus people who have informed speculation. Let's break things down chronologically.

First, a note on sourcing. Biskupic expressly states that Roberts "declined to comment."

Roberts declined to respond to CNN's questions about the recent term and this case.

I don't remember seeing a similar denial in past Biskupic pieces. I think Roberts wanted to make painfully clear that he was not a source for Biskupic. I understand this was an issue with Biskupic's book on Roberts, where certain things were said on background that were attributed to the Chief Justice. There are no doubts here.

Second, we learn there was broad consensus to reject Jack Smith's petition for certiorari before judgment:

The immunity case first arrived at the justices' door in December. Seeking to move the prosecution along, Smith had tried to persuade the court to take early review of the case, before US appellate court action. After the US appellate court ruled, Smith urged them to let the decision – which had spurned the Trump claim of immunity – stand.

Both efforts by the special counsel were in vain. Sources told CNN that there was broad understanding among the justices that they would need to decide the matter themselves, and only after the usual appellate court hearing.

No one dissented from the Court's order. That suggests there was consensus. But if sources confirm it, then it must be true! With the benefit of hindsight, would the Justices have had such a consensus if they knew how long the D.C. Circuit panel decision would take? I doubt it.

Relatedly, Smith has not yet moved to expedited his Eleventh Circuit appeal–something Seth Barrett Tillman wrote should not be granted. Smith may simply be willing to let this case litigate in the normal process, and hope no broad precedent is set on the special counsel regulations.

Third, after oral argument, the Chief Justice assigned the opinion to himself, and made no efforts to forge any compromise with the Court's left wing:

Sources familiar with the negotiations told CNN there was an immediate and clear 6-3 split, as the justices met in private in the oak-paneled conference room that adjoins the chief justice's chambers.

Roberts made no serious effort to entice the three liberal justices for even a modicum of the cross-ideological agreement that distinguished such presidential-powers cases in the past. He believed he could persuade people to look beyond Trump. . . .

Roberts may also have sensed that the liberals were simply not going to accept any version of his sweeping presidential immunity.

This case was not about this President, or any other President. It was about the presidency.

Sources familiar with the internal debate told CNN that Roberts believed that he could assert the large and lasting significance of the case and steer attention away from Trump. As he ended up writing in his opinion, "unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies."

Rather, Roberts would only negotiate an agreement with the Court's conservative members:

In their private session on the case the next day, however, the votes on the core issue lacked any ambiguity and Roberts was ready to write with bold strokes that a former president is entitled to presumptive, if not absolute, immunity for all official acts. Further, Roberts' construction of official acts, as opposed to private ones, was extensive.

The sharp divide between liberals and conservatives meant that virtually all of Roberts' negotiating would be among his people on the right.

Roberts was content to have a 6-3 majority, or if needed a 5-4 majority, with Justice Barrett peeling off.

That brings us to Justice Barrett

Third, for the second consecutive piece, Barrett comes off looking like a glowing, consensus-making moderate.

Barrett was the lone justice on the right-wing who tried to close the gap with dissenting justices.

It isn't clear that Biskupic has any inside information about what Barrett did. Everything written here is entirely deducible from the published decision. Like this part. Is this Biskupic's speculation or inside info?

Barrett, in general, may have been trying to situate herself in the middle. On several occasions throughout the annual session Barrett separated herself from her conservative brethren. Notably, she fully broke from them in the Fischer case, when the Roberts majority narrowed the reach of a federal obstruction statute that had been used against scores of January 6 defendants.

I would have liked to see some discussion about whether the liberals even considered joining Barrett's concurrence, to perhaps flip the majority. But we learn nothing.

Fourth, Biskupic writes that Roberts abandoned his traditional institutionalism this term.

The chief justice, now 69 and about to begin his 20th term, appears to have abandoned his usual institutional concerns. . . .

All told, Roberts appears to have reached a turning point. His vision for the high court became more aggressive, and he has perhaps shed the aura of ineffectualness that permeated some public commentary in recent years.

He kept the most important cases for himself, including one that reversed a 1984 precedent giving federal regulators considerable power over health care, food and drug safety, the environment and consumer affairs. (As chief, Roberts makes most opinion-writing assignments; he regularly keeps important cases, but in the past has shared more and evened out assignments among the eight associate justices.)

And it seems the conservative Justices are more agreeable with Roberts--unsurprising because he is agreeable with them.

At the same time, his dealings with his conservative colleagues were more agreeable.

People close to justices on the far-right told CNN those justices were heartened by Roberts, after years of suspicions about his efforts at the center of the bench, most famously with his switched vote in 2012 that upheld the Affordable Care Act.

Biskupic also suggests that Roberts was feeling embittered after standing alone in Dobbs.

Not this year, so very unlike 2022, when Thomas and other conservatives pushed through the Dobbs ruling and Roberts stood alone between embittered factions. The chief justice chided his colleagues on both sides for displaying "a relentless freedom from doubt on the legal issue."

This year, he stepped to the right, and he displayed no doubt.

I made a very similar point after Loper Bright was decided:

And why did Roberts pull the trigger in Loper Bright–especially after he stopped short in Kisor? I think Roberts was personally humiliated that he couldn't broker a compromise in Dobbs, and was stuck on the outside looking in. It was position of weakness for the Chief Justice to be. Once Roberts realized there were five votes to overrule Chevron, he did not want to be left in the cold. If you can't beat 'em, join 'em.

I don't know how long this Roberts rapprochement will last. Let's see who wins the election.

Finally, we get this charming vignette hat doesn't really advance any narrative:

As the justices were drafting opinions, the court hewed to age-old routines. Law clerks arranged their traditional end-of-term skit for late June. Roberts and Justice Clarence Thomas continued with their planned reunions of former law clerks. And Roberts, for the first time in several years, readied to teach in a summer program abroad sponsored by New England Law Boston in Galway, Ireland.

To continue the theme, the Court really is like a reality show, with shifting alliances, though no one can get voted off the island.

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Kamala Harris's Indian Background Was Once a More Prominent Part of Her Curated Image

David Bernstein — Tue, 30 Jul 2024 11:34:20 +0000

I was looking through some online archives available through my university's library, and noticed that there was a time in her political career that Kamala Harris talked a lot more about her Indian heritage.

For example, from 2009 (this was reprinted online in 2020): "One of the most influential people in my life, in addition to my mother, was my grandfather (TV Gopalan), who actually held a post in India that was like the secretary of state position in this country. My grandfather was one of the original independence fighters in India and some of my fondest memories from childhood were walking along the beach with him after he retired and lived in Besant Nagar in Madras." I take it that she was exaggerating both his contribution to Indian independence and the post he held …

From a 2003 profile (similar to one available here):

A product of two cultures, Harris delights in her multiculturalism. Her grandfather was an Indian diplomat who served in posts in Delhi and Zambia, and an aunt, an obstetrician in Chandigarh, is so beloved by her patients that they often leave baskets of fruit on her doorstep after she delivers their babies. In the 1940's, Harris told the San Francisco Examiner recently, her grandmother drove around India in a VW bug, urging village women through a bullhorn to use birth control. "Even though my grandma had an arranged marriage when she was 12, she and my grandfather were very open-minded people," she said. [Though they were initially "not too happy" when her mother declined an arranged marriage and married a black man she had fallen in love with instead.]

By 2019, the Los Angeles Times reported: "She seldom delves into her Indian heritage, reflecting a broader reticence to share personal stories beyond a handful of well-worn anecdotes."

I don't think any of this is damning in any way, but it's interesting to see how ambitious public figures curate their image over time. At some point in Harris' political career, for example, she thought talking about her grandmother's arranged marriage at age 12 and how that didn't stop the grandmother from being an outspoken feminist was helpful, and at some point she decided it wasn't.

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Today in Supreme Court History: July 30, 1956

Josh Blackman — Tue, 30 Jul 2024 11:00:44 +0000

7/30/1956: Congress enacted a resolution, declaring that the motto of the United States is "In God we Trust." The Supreme Court declined to grant review in Newdow v.Congress, which considered the constitutionality of that motto.

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Leaks From Moyle

Josh Blackman — Tue, 30 Jul 2024 02:51:55 +0000

We are about a month removed from the end of the term, and Joan Biskupic has an exclusive on the deliberations behind Moyle v. United States. Kudos to Joan for getting a scoop, which have been pretty rare the past few years. And she suggests there is a "series," so perhaps we will see Part II tomorrow?

Again, I will offer my usual caveats about SCOTUS reporting. I will assume the Biskupic accurately relayed what was told to her, but I will also assume that the various leaks she received were intended to advance certain interests. In Washington, D.C., information is power, and those who wield it do so to achieve specific goals. Never forget that. There is a reason that President Biden announced his stepping down from the race on X, after having only told a few people. Biden, or at least his team, managed to pull off the impossible D.C. trick: keeping a secret.

For a refresher on Moyle, read my septet of posts (1, 2, 3, 4, 5, 6, 7).

First, Biskupic describes her sourcing this way:

This exclusive series on the Supreme Court is based on CNN sources inside and outside the court with knowledge of the deliberations.

In the past, Biskupic has attributed her material to a Justice, but here the sourcing is a bit more opaque: "sources inside and outside." We are likely talking about double- or even triple-hearsay. A Justice told something to someone inside the Court, and someone inside the Court told that thing to someone outside the court. Barely two years after Dobbs, the SCOTUS sieve is leaking again. Chief Justice Roberts should dust off that retirement letter.

Second, we learn about how the stay was granted in January. Biskupic reveals the vote was 6-3.

No recorded vote was made public, but CNN has learned the split was 6-3, with all six Republican-nominated conservatives backing Idaho, over objections from the three Democratic-appointed liberals.

To no one's surprise, Justice Barrett was the pivotal vote. At the time, she was persuaded by Idaho's arguments.

[Justice Barrett] would eventually deem acceptance of the case a "miscalculation" and suggest she had been persuaded by Idaho's arguments that its emergency rooms would become "federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States's mandate to perform abortions on demand."

But Justice Barrett would later change her mind.

Third, what crystalized the change was the oral argument.

But over the next six months, sources told CNN, a combination of misgivings among key conservatives and rare leverage on the part of liberal justices changed the course of the case. . . .

During the April 24 hearing, signs that the conservative bloc was splintering emerged.

Justice Amy Coney Barrett, who had earlier voted to let the Idaho ban be enforced, challenged the state lawyer's assertions regarding the ban's effect on complications that threatened a woman's reproductive health. She said she was "shocked" that he hedged on whether certain grave complications could be addressed in an emergency room situation. Barrett's concerns echoed, to some extent, those of the three liberals, all women, who had pointed up the dilemma for pregnant women and their physicians.

In this post, I highlighted how Justices Sotomayor and Kagan set up Justice Barrett's reversal. My speculation closely tracks Biskupic's accounting.

Fourth, Biskupic relays that at conference, there was no clear majority opinion.

The first twist came soon after oral arguments in late April, when the justices voted in private on the merits of the conflict between Idaho and the Biden administration. . . . There suddenly was no clear majority to support Idaho, sources said. In fact, there was no clear majority for any resolution.

As a result, Chief Justice John Roberts opted against assigning the court's opinion to anyone, breaking the usual protocol for cases after oral arguments.

When the Moyle opinion leaked, I wondered who would have assigned the majority opinion. Turns out the answer is that Roberts assigned it to no one.

Instead, as best as I can tell from Biskupic's reporting, Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett jointly wrote the opinion--while trying to keep the votes of Justices Sotomayor and Kagan.

Judging from the public arguments alone, there appeared a chance the court's four women might vote against Idaho, and the five remaining conservatives, all men, in favor of the state and its abortion prohibition.

But at the justices' private vote two days later, Roberts and Justice Brett Kavanaugh shattered any split along gender lines. They expressed an openness to ending the case without resolving it.

Fifth, Biskupic alludes to the various negotiations that happened. In short, Roberts-Kavanaugh-Barrett had to keep Kagan and Sotomayor on board. Why? I'm not entirely sure. In no universe would those two vote to keep the stay in place. So there were always going to be five votes to dissolve the stay. And Kagan and Sotomayor ultimately agreed with only part of the majority opinion. Was that so important? If there were three votes to DIG and three votes to affirm the Ninth Circuit, the end would be the same. Optics matter.

Biskupic writes:

Instead, a series of negotiations led to an eventual compromise decision limiting the Idaho law and temporarily forestalling further limits on abortion access from the high court. The final late-June decision would depart from this year's pattern of conservative dominance. . . . [Roberts and Kavanaugh] worked with Barrett on a draft opinion that would dismiss the case as "improvidently granted."

Biskupic offers some detail on how Barrett reversed herself. Here, she comes off looking extremely open-minded. Moreover, this sort of accounting suggests that she will be skeptical of claims from red-state AGs going forward. I'm not sure who leaked this information, but it is definitely painting Barrett in a particular light:

Barrett had come to believe the case should not have been heard before lower court judges had resolved what she perceived to be discrepancies over when physicians could perform emergency abortions, even if a threat to the woman's life was not imminent. . . . She would eventually deem acceptance of the case a "miscalculation" and suggest she had been persuaded by Idaho's arguments that its emergency rooms would become "federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States's mandate to perform abortions on demand." She believed that claim was undercut by the US government's renouncing of abortions for mental health and asserting that doctors who have conscience objections were exempted.

In essence, Barrett, along with Roberts and Kavanaugh, were acknowledging they had erred in the original action favoring Idaho, something the court is usually loath to admit. They attributed it to a misunderstanding of the dueling parties' claims – a misunderstanding not shared by the other six justices, who remained firm about which side should win.

To be sure, Roberts and Kavanaugh changed their minds as well, but they are just supporting actors here. Barrett is on center stage.

During internal debate from the end of April through June, the court's three other conservative justices – Samuel Alito, Clarence Thomas and Neil Gorsuch believed the facts on the ground were clear and that Idaho's position should still prevail. They said the 1986 EMTALA did not require hospitals to perform any abortions and could not displace the state's ban.

Alito, who had authored the 2022 decision in Dobbs v. Jackson Women's Health Organization overturning Roe, was adamant that the text of EMTALA required the opposite of what the Biden administration was advocating. He said the law compels Medicare-funded hospitals to treat, not abort, an "unborn child."

Sixth, Justices Alito, Gorsuch, and Thomas come across looking stubborn, obstinate, and intransigent. It seems that that no one supporting this troika talked to Biskupic. That is the problem with inside reporting. Sometimes you only get one side.

With Alito, Thomas and Gorsuch unchanged in their opposition to the proposed off-ramp, Barrett, Roberts and Kavanaugh needed at least two other votes for a majority to dismiss the case.

Two of the liberals, Sonia Sotomayor and Kagan, were ready to negotiate, but with caveats. They disagreed with Barrett's rendition of factual discrepancies and – more crucially – they wanted the court to lift its prior order allowing the ban to take effect while litigation was underway.

This was one case in which liberals, usually holding a weak hand because of their sheer number against the conservative super-majority, had greater bargaining power because of the fracture between the Barrett-Roberts-Kavanaugh bloc and the Alito-Thomas-Gorsuch camp. Debate persisted for weeks over whether the order allowing the ban to be fully enforced should be lifted.

I know Orin, Will, Sam, and most other law professors, disagree with my conception of judicial courage. But you don't have to take my word for it. Look what Justices Alito, Thomas, and Gorsuch wrote in Moyle:

Everything there is to say about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable. . . .

Today's decision is puzzling. Having taken the unusual step of granting certiorari before Idaho's appeal could be heard by the Ninth Circuit, the Court decides it does not want to tackle this case after all and thus returns the appeal to the Ninth Circuit, which will have to decide the issue that this Court now ducks.

At the time, I observed:

And why did [Roberts, Kavanaugh, and Barrett] lose the will? The suggestion here is because this case is "emotional" and "highly politicized." Alito implies that Justices Barrett and Kavanaugh changed their minds because abortion is an "emotional" topic and the case has become "politicized." . . . Alito accuses Barrett and Kavanaugh of ducking and hiding for cover.

Alito, Thomas, and Gorsuch ave said the same thing before. And they are saying the same thing I am. The conservative troika has a front-row seat of how Justices Barrett and Kavanaugh behave, and they use their words precisely. To be sure, I think these actions are likely to backfire, in the same sense that Justice Scalia alienated Justice O'Connor. But we should look to these hints from behind the red curtain to figure out how the Justices tick.

Seventh, that brings us back to Justice. Shortly after Moyle was decided, I wrote this about Justice Barrett:

The most important opinion here is from Justice Barrett. She is the Court's center. And, as I've said before, she seems to still be figuring stuff out on the job. Her Moyle concurrence expresses open regret to granting certiorari before judgment and a stay–not just because the facts on the grounds have changed, but that the Court accelerated the process when it shouldn't have. She also seems mad at Idaho for (as she sees it) exaggerating the justification for the stay.

This is almost, to a tee, what Biskupic wrote. I've made this point before: much of the "inside" information that Biskupic gleans from her sources is apparent to those who closely read the Court's docket. I assure you, I have no inside information, and make no effort to obtain any. It is far more fun to shoot in the dark, since I have no limitations on what I can write (as readers well know).

I sometimes wonder if Biskupic begins with really well-informed speculation (what Deadpool might call–spoiler alert–an "educated wish"), passes off that speculation as inside information, and then asks a source to comment or confirm on that apparent leak. From there, the information cascades down.

Finally, Biskupic quotes from Kagan's remarks before the Ninth Circuit Conference.

During a wide-ranging talk at a legal conference in Sacramento on Thursday, liberal Justice Elena Kagan said the court may have learned "a good lesson" from the Idaho case: "And that may be … for us to sort of say as to some of these emergency petitions, 'No, too soon, too early. Let the process play out.'"

In hindsight, this comment comes across somewhere between valedictory and gloaty.

The post Leaks From Moyle appeared first on Reason.com.

Venezuela Illustrates the Perils of "Democratic Socialism"

Ilya Somin — Mon, 29 Jul 2024 21:38:20 +0000

Venezuelan President Nicolas Maduro. (Rayner Pena/EPA/Newscom)

In yesterday's Venezuelan election, the vast majority of the people wanted to remove socialist dictator Nicolas Maduro from power, but the regime remains in control through a combination of violence and fraud. Venezuela's socialist government has turned what used to be one of Latin America's wealthiest nations into an oppressive hellhole so awful that over 7 million people have fled—the largest refugee crisis in the history of the Western Hemisphere. This terrible experience is relevant to the broader debate over "democratic socialism."

One traditional response to evidence that the USSR, communist China, and other communist states demonstrate that socialism leads to poverty and oppression, is the argument that these regimes failed because they were undemocratic. If government control of the economy is combined with democracy instead of dictatorship, then socialism would fulfill the promise of uplifting the working class. Venezuela's history over the last 25 years undercuts such optimism.

To avoid confusion, I should emphasize that the "socialism" referred to here is government control over all or most of the economy (what Marxists call "the means of production"), not merely having a relatively large welfare state. The latter creates dangers of its own, but not of the same type and scale.

Maduro's predecessor Hugo Chavez first came to power in a democratic election in 1998. For a time, electoral democracy was maintained. But, gradually, the government's control over the economy and centralization of power (itself a requirement of socialism), enabled it to suppress opposition and establish a dictatorship. State control over the economy was a key element of this process. For example, the government used its control over food supplies to suppress opposition. If you oppose the ruling party, you are likely to go hungry. In an economy where there are few or no job opportunities outside the state apparatus, regime opponents also risk unemployment.

Meanwhile, far from uplifting the working class, Venezuelan socialism impoverished them. And that process began even before democracy was fully ended.

In a 2019 piece on "The Perils of Democratic Socialism," I outlined some reasons why democracy cannot cure the flaws of socialism, and why a socialist state cannot remain democratic for long, even if it starts out that way. Here's an excerpt where I highlighted the example of Venezuela:

Perhaps democracy will save us from any potential negative effects of bringing most of the economy under government control…. Any aspiring American Lenin or Hugo Chavez will be voted out of office or—better still—never elected in the first place.

Unfortunately, the democratic element of democratic socialism is unlikely to save us from the severe risks of the socialist part. Voters in democratic systems can and do elect dangerous demagogues. Hugo Chavez was democratically elected.

Closer to home, our own voters elected Donald Trump. And he is far from the first illiberal demagogue who ever achieved political success in American history….

A socialist state that controls most of the economy would also make it nearly impossible for voters to acquire enough knowledge to effectively monitor the government. It would greatly exacerbate the already severe problem of voter ignorance that plagues modern democracy. In a world where most voters—for perfectly rational reasons – do not even know basic facts such as being able to name the three branches of the federal government, it is highly unlikely they will learn enough to properly monitor a socialist state. Most of the powers of government would instead fall under the control of politicians, bureaucrats, powerful interest groups, or worse.

Finally, it is unlikely that a democratic socialist state will actually remain democratic in the long run. If the government controls the vast bulk of the economy, it can, over time, use its control over key resources to reward its supporters and suppress opponents. This has, in fact, actually happened in Venezuela, where the government has used such tools as its control over food resources to incentivize support for the regime, and forestall opposition.

For reasons noted in the 2019 piece, if democratic socialists came to power in the US, it would be harder for them to establish a dictatorship than it was for Chavez and Maduro in Venezuela. But that is in large part because we have more obstacles to the establishment of socialism itself than Venezuela did, such as stronger systems of federalism, separation of powers, and judicial review.

It may still be tempting to conclude that Venezuela's tragedy is the result of defects in their culture or the personalities of particular leaders, such as Chavez and Maduro. But socialist governments have led to similar horrific results in many nations around the world, despite differences in culture and leadership. Either socialism's weaknesses are caused by systemic institutional flaws, rather than local idiosyncracies, or the system tends to elevate awful leaders. Most likely, it's a combination of both.

There are, of course, obvious parallels between Maduro's use of violence and fraud to stay in power after losing this election, and Donald Trump's attempts to do the same after he lost in 2020. One major reason why Maduro may well succeed where Trump failed is that the Venezuelan regime's control of the economy and extreme centralization of power makes it easier for it to suppress opposition. Trump did not control the courts and many other key institutions, and he could not threaten opponents with unemployment and denial of food. Thanks to socialism, Maduro does have these tools of coercion available to him. Fans of democratic socialism would do well to consider whether they want Trump or someone like him to be able to wield such power, should he win an election.

Maduro's regime might yet fall. But it will probably take a mass uprising, large-scale defections by the security forces and regime elites, or some combination of both to make it happen. Socialist institutions make it easier for authoritarians to seize and keep power.

Despite some ideological differences, the "national conservative" policies advocated by Trump, J.D. Vance, and others on the right, pose many of the same dangers as socialism—including the use of state control over the economy to suppress opposition. The difference in slogans and flags between the two movements should not blind us to this underlying similarity.

There is another way in which the Venezuelan experience should give pause to the right, as well as the left. As in the similar case of Cuba, conservatives who rightly denounce socialist oppression should not at the same time try to close America's doors to refugees fleeing it. You can't combat socialism while simultaneously turning your back on its victims.

Like their Cuban counterparts, Venezuelan refugees should not be forcibly consigned to poverty and oppression merely because they had the misfortune of being born to the wrong parents in the wrong place. And, like Cubans, Venezuelan migrants can make valuable contributions to our economy and society—if only we would let them.

In sum, the Venezuelan experience should lead people on the left to reject democratic socialism, if they haven't done so already. For their part, right-wingers would do well to reject similar ideas sailing under the flag of nationalism, and adopt a more welcoming attitude to Venezuelan refugees.

NOTE: I have made minor additions to this post.

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Banana Splits

Josh Blackman — Mon, 29 Jul 2024 21:27:22 +0000

I appreciate the replies from Orin, Will, and Sam. We have very different conceptions on what role a scholar should play and what role a judge should play. My writings in this area are both retrospective and prospective. I look backwards to see what qualifications a judge had at the moment of their nomination. I also look backwards from the present, to the moment of their confirmation, to assess how those qualifications may have predicted their jurisprudence. I feel fairly confident with my retrospective criticism. A person's pre-confirmation record is their record, and it cannot be changed. And a Justice's decisions are available for all to read. I write more posts about Supreme Court decisions than I care to count.

I, admittedly, feel less confident when making predictions about a judge's future trajectory. My experience with a Supreme Court prediction market has given me some insight into the process, but the Justices continue to surprise me, and everyone else, in ways that are hard to fathom. What loop ties things together? Given a Justice's unpredictability after confirmation, it is of the utmost importance to carefully scrutinize all of a prospective justice's actions before the nomination, and try to extrapolate a trajectory.

And those observations bring me back to Justice Barrett. John McGinnis, for example, favorably compares Justice Barrett to Justice Scalia as a scholar-justice. It is true that they were both academics. But the similarities end there. Justice Scalia was the general counsel at the Office of Telecommunications Policy, chaired ACUS, headed the Office of Legal Counsel, argued before the Supreme Court, worked at AEI, a prominent think tank, spent four years on the D.C. Circuit, and was very much in the mix on all issues of public concern.

I think much the same could be said for other academics who became Supreme Court Justices. Elena Kagan was Solicitor General (briefly), served in the White House Counsel, and was the Dean of Harvard Law School--all experiences that prepared her for the Court. Justice Breyer was a famous administrative law professor, but spent many years working in the Senate on Judicial Nominations, and served as Chief Judge of the First Circuit. Justice Ginsburg, in addition to being a well-regarded professor, was at the heart of the ACLU's women's rights litigation project, and then served on the D.C. Circuit for more than a decade. Jump back a few decades, and look at Justice Frankfurter. He advised FDR, was closely involved in New Deal politics, served as an assistant to the Secretary of War, was a JAG, and served in various other government positions. William O. Douglas was a law professor at Yale, but later headed the Securities and Exchange Commission. Joseph Story was appointed to the Supreme Court at the young age of thirty-two, but by that point he had already been a distinguished member of the Massachusetts Bar, a state attorney for Essex County, Massachusetts, served in the Massachusetts House of Representative, including as Speaker, and was elected to the United States House of Representatives.

Am I missing any other Justices who were academics? We can throw Robert Bork in the mix. In addition to being a law professor at Yale, he served as Solicitor General, worked as Acting Attorney General, survived the Saturday Night Massacre, plus a tenure on the D.C. Circuit.

With the exception of Frankfurter, all of these judges held some sort of apex position, in which they were in charge of making difficult, final decisions. The buck stopped with their commission as an "Officer of the United States." And maybe the Frankfurter nomination is telling. He confounded FDR and other New Dealers by how "conservative" he became. He didn't have a judicial background, and wouldn't you know it, he surprised those who supported him by exercising the utmost restraint. The analogue for Barrett is not Souter or O'Connor, but might just be Frankfurter. A person who lacked the background on the bench, or in a position of power, defaults to caution.

To be sure, Justice Barrett had a tenure on the Seventh Circuit. Barrett's Senate Judiciary Committee questionnaire indicated she participated in the disposition of approximately 900 cases between October 2017 and September 2020. According to Westlaw, Justice Barrett wrote about 80 majority opinions, including a handful of dissents and concurrences. That is certainly the start of a record, but it was fairly brief in telling us much about a judicial philosophy--especially since there were so few cues in her record as an academic. By contrast, Judge Kavanaugh participated in the disposition of 2,700 cases. And, according to Westlaw, he wrote about 1,300 opinions (including majority opinions and separate writings.) The analysis in nine of Kavanaugh's 10 most significant opinions were later adopted by by the Supreme Court. Again, for all of my grievances about Justice Kavanaugh (which have thankfully been fewer of late), he was a known quantity--we knew what we were getting. Ditto for Justice Gorsuch.

What about Justice Barrett's record, knowing everything we know about all Supreme Court justices who came before, would indicate that this person should be a Supreme Court nominee? Her potential was vast, but trajectory was unknowable. This is not to say that Barrett was not a respectable academic. She was. I agree with Will that Barrett chose to spend her time on the things that were important to her. As an academic, that was entirely her prerogative. But the overwhelming majority of all academics (present company included) have not done the things needed to qualify for a Supreme Court seat.

I'm reminded of one of my favorite Scalia stories, which is retold in Ted Cruz's 2015 biography:

Everyone knew that two of the stars on the conservative side, and thus possible nominees, were Robert Bork and Scalia, both on the D.C. Circuit. So one day Scalia was walking in a parking garage at the appellate court when two U.S. marshals stopped him. "Sorry, sir," one of them said. "We're holding this elevator for the attorney general of the United States."

Scalia pushed past them, entered the elevator, and pressed a button. As the doors closed, Scalia shouted out, "You tell Ed Meese that Bob Bork doesn't wait for anyone!"

There are things a Justice is not taught in law school.

This topic is perhaps complicated further because so many academics have personal relationships with Barrett–something I don't have. I met her only once, briefly, before she was appointed to the Seventh Circuit. It is difficult to separate the friend you know from the public official they've become. Then again, Justice Kavanaugh served as a guest judge in my high school moot court competition shortly before his nomination. I don't hold back, as you can tell.

As we look forward to the next election, it is important to repeat lessons that have not been learned. A Supreme Court vacancy comes around once in a blue moon. When making the decision of who to select, we must rely on complete knowledge about a person's past practice, and predict the person's likely trajectory. And after the nomination is made, we should be candid and careful to evaluate the decision that was made.

The post Banana Splits appeared first on Reason.com.

"Time to Retire the Notion of Judicial Courage," Reprise

Orin S. Kerr — Mon, 29 Jul 2024 20:10:46 +0000

I share Sam's and Will's basic reaction to Josh's post about the "backbone" of Supreme Court Justices, and I thought I would repost my 2021 take on the whole idea of "judicial courage" from a prior debate with Josh:

Can we simply retire the notion of "judicial courage"? Over a decade ago, I offered this Ambrose Bierce-inspired definition:

The Definition of a "Courageous" Judicial Decision: A judicial decision that stretches the law but nicely matches the observer's policy preferences.

A decade later, that still seems to accurately describe most uses of the term. I mean, I think we get it: When you really want a judge to rule a certain way, or (if they have already ruled) you want to celebrate the judge doing so, it's tempting to clothe that decision in the garb of "courage." Courage, the dictionary tells us, is strength in the face of fear or grief. Describing a judicial decision as "courageous" implies that the judge is a hero for ruling the way you want, and that the only reason they might rule the way you don't want is weakness or fear. This is an easy argument to make within a political culture. It's easy to craft an imagined audience that the Justice is claimed to be afraid of, such that rejecting that imaged audience's view is courageous. But it seems to me that it often resolves to the notion that the courageous thing is to do whatever the speaker wants.

This doesn't mean there are no legal opinions that show courage. In some cases, a judge may feel that the law requires a particular answer that the judge personally opposes and that the judge simultaneously knows will lead to particularly unpleasant personal consequences. This can come up, for example, when a lower-court judge spikes his or her own chance at promotion by handing down a ruling that the judge doesn't like and that significantly hurts their chance at being elevated to a higher court. Consider Judge Jeffrey Sutton's opinion for the 6th Circuit upholding the Affordable Care Act. Given the incredibly successful efforts to make the contrary view the only acceptable GOP view, Sutton's excellent opinion from the standard of traditional conservative judging also ensured he could not appear on a future GOP short list.

But those situations are relatively rare. And as it happens, they're not the kinds of cases that tend to get labeled "courageous" anyway. So on the whole, I think it's probably better to retire the phrase, or at least to be pretty skeptical when it is used.

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Thoughts on Biden's Proposed Supreme Court Reforms

Ilya Somin — Mon, 29 Jul 2024 18:58:03 +0000

(Joe Ravi/Wikimedia/CC-BY-SA 3.0)

Today, President Joe Biden announced his support for three reforms: term limits for Supreme Court justices, a constitutional amendment denying the president immunity for crimes committed while in office, and a binding ethics code for Supreme Court justices. He laid out these ideas in a Washington Post op ed. My general reaction is similar to that outlined in my previous post on this topic: all three ideas are potentially good. But Biden is short on details, and term limits can only be properly adopted by a constitutional amendment. As noted in my earlier post, there is also an obvious political dimension to this announcement:

The Supreme Court has become highly unpopular. Currently, it only has an approval rating of about 36% in the 538 average of recent polls, with about 56% disapproving. Targeting the Court might be good politics…. Moreover, if reports about the proposals are correct, Biden has focused on ideas that are generally popular, such as term limits, while avoiding the much less popular (and very dangerous) idea of court-packing.

While I have been highly critical of several of the Court's recent decisions, I also think the conservative majority has many many good rulings, and that much of the left-wing criticism of the Court is overblown. But majority public opinion has a significantly more negative view of the Court than I do, thereby creating potential political momentum for various reforms.

When these ideas were first floated a couple weeks ago, Biden was still trying to salvage his own presidential campaign. Now, they could help bolster that of VP Kamala Harris (who has endorsed them). Josh Blackman is almost certainly right to note the proposals have virtually no chance of being enacted while Biden is still in office. But I think he goes too far in labeling them "pointless." Now that they have been endorsed by the current and future leaders of the Democratic Party, the chance they might eventually be enacted in some form has significantly increased. That's true of any policy idea adopted by one of the two major parties.

Below are a few comments on each of the three proposals.

Here's Biden on the amendment stripping presidential immunity:

I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders' belief that the president's power is limited, not absolute. We are a nation of laws — not of kings or dictators.

I agree. The Supreme Court's badly flawed recent ruling in Trump v. United States goes way too far in granting such immunity to the president. Biden is wrong to suggest that, in the wake of the ruling, "there are virtually no limits on what a president can do." In reality, the decision is vague on several key points, thereby making it difficult to figure out exactly how much immunity it actually gives the president.. Also, there are non-criminal constraints on presidential power (e.g.—people can go to court to get an injunction against illegal executive orders). Still, broad presidential immunity is a bad thing, and enacting a constitutional amendment to abolish all or most of it would be good.

However, Biden tells us next to nothing about the details of such an amendment. I think the version recently proposed by 49 Democratic members of Congress is very good. Not clear whether Biden—and, more importantly, Harris—would support it, or some other approach. In addition, as I previously noted, the odds against enacting any controversial constitutional amendment are extremely long.

Biden on term limits:

Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court's membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.

Here, I have little to add to what I said before. Term limits for SCOTUS justices are a good idea, with broad support from both experts and the general public. A system of 18-year terms is also good, and similar to that proposed by various legal scholars. But any term limit plan must be enacted by constitutional amendment, not merely by a congressional statute. The latter would be unconstitutional, and would set a dangerous precedent, if it succeeded.

Annoyingly, Biden doesn't tell us whether term limits should be enacted by amendment or statute. He also doesn't address the difficult issue of how to handle current justices. Including them in the term limit plan (effectively forcing some to retire soon) would anger the right. Not doing so would likely offend the left.

Biden on a binding ethics code:

I'm calling for a binding code of conduct for the Supreme Court. This is common sense. The court's current voluntary ethics code is weak and self-enforced. Justices should be required to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.

Unlike with term limits, Congress has broad (though not unlimited) power to enact ethics restrictions on the Supreme Court. I'm fine with requiring justices to disclose gifts (though there should be an exemption for small ones; no need to disclose every time a friend takes a justice out to dinner or the like). Indeed, I would go further and suggest large gifts should be banned outright. It also makes sense to require justices to "recuse themselves from cases in which they or their spouses have financial or other conflicts of interest." Justices already routinely recuse when there are financial conflicts. However, much depends on what qualifies as an "other conflict of interest." I don't think the mere fact that a spouse has been active on an issue in the political arena qualifies.

As for refraining from "political activity," it depends on what counts as such. Justices should not endorse or campaign for political candidates (to my knowledge, no modern justice has done that). On the other hand, it's fine for them to express views on various law and public policy issues. Both liberal and conservative justices routinely do so in variety of writings and speeches. For example, both Justice Gorsuch and Justice Sotomayor have publicly advocated policies to expand access to legal services. Such advocacy is a useful contribution to public discourse, and should not be banned, though I am no fan of Sotomayor's proposal to impose "forced labor" on lawyers (her term, not mine).

Finally, Biden doesn't say how the ethics code would be enforced, or what the penalties for violations would be. For obvious reasons, those details are extremely important.

In sum, all three of these proposals potentially have merit. But the details matter, and Biden hasn't given us much on that score.

The post Thoughts on Biden's Proposed Supreme Court Reforms appeared first on Reason.com.

Against Judicial Bravery Debates

Will Baude — Mon, 29 Jul 2024 17:21:31 +0000

I share co-blogger Sam's misgivings about Josh's post assessing the courage of the justices, which I think demonstrates a fundamental misunderstanding of judicial psychology.

There's a difference between lacking courage, and just not agreeing with your colleagues (or your blog critics) about the right thing to do. I've never seen good evidence that the justices secretly agreed with Josh about the right path in any of these cases and were shying away because of a lack of courage.

Two take two of his examples:

Chief Justice Roberts's infamous vote and opinion in NFIB v. Sebelius have been raked over from every angle, but at bottom, there is not much reason to doubt that he wrote the opinion he wrote because he thought it was the best way to implement his own view about the scope of judicial review in a democracy, implemented through the doctrines of constitutional avoidance, severability, etc. (That's so even if you believe the leaks about the way his vote and opinion evolved at conference, which can more easily be explained on legal grounds.)

The fact that Justice Barrett as a law professor did not write op-eds and amicus briefs or "get into the mix" is also not evidence of lack of courage. It is just as likely that she thought the cases were complicated, had better things to do with her time, or a different view about the vocation of a scholar. Frankly, if more con law professors would get "out of the mix," they would be much better scholars.

Scott Alexander once wrote a post, "Against Bravery Debates," describing the genre of internet argument:

Discussions over who is bravely holding a nonconformist position in the face of persecution, and who is a coward defending the popular status quo and trying to silence dissenters. These are frickin' toxic.

I understand the temptation, and I too have succumbed to it in the past, but I don't think grading the justices on their bravery—especially without evidence that their behavior isn't better explained by thoughtfulness, disagreement, or judicial philosophy—is particularly fruitful or accurate.

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President Biden's Pointless SCOTUS Reform Plan

Josh Blackman — Mon, 29 Jul 2024 16:56:29 +0000

What a difference a fortnight makes. Two weeks ago, Donald Trump was cruising in the polls and President Biden looked to be in jeopardy of losing the nomination. Perhaps as a way to bolster his support among progressives, Biden hinted that he finally was going to propose a plan to reform the Supreme Court. This change was long-simmering, as Biden's SCOTUS commission concluded nearly three years ago. Then, in a flash, things changed. On July 13, Trump survived an assassination attempt by the skin of his ear. Two days, Trump tapped JD Vance as his VP, and the successor of the MAGA movement. On July 19, we got Hulkamania, and Trump gave his RNC speech. Two days later, President Biden dropped out, and VP Harris ascended to the nomination by proclamation. Life comes at you fast.

Here we are, on July 29. And, in an anticlimactic fashion, the lamest duck in modern Presidential history has meekly put forward three suggestions for the Supreme Court that lack any specificity, and will go nowhere, fast.

Biden announced the policy not in the Rose Garden, or on the steps of the Supreme Court, but in a Washington Post Op-Ed. Given the President's communication problems of late, this was probably for the best. The essay is fairly short. It leads with January 6, immunity, and democracy. I know this is a common talking point for progressives, but I'm not sure this point really resonates anymore. That Trump is at least in striking distance of the presidency suggests that all of the talk about democracy the past few years have had no meaningful impact on the populace. I think Barton Swaim's editorial in the WSJ accurately captures how to think about January 6.

It's true that the Jan. 6 riot was a disgrace and an embarrassment to the United States. But Democrats have vastly overinterpreted its political significance. Their belief that it would work as a peremptory argument against a second Trump term was a fantasy.

By the fifth paragraph, Biden finally turns to the Supreme Court, where he sees a "crisis of ethics."

On top of dangerous and extreme decisions that overturn settled legal precedents — including Roe v. Wade — the court is mired in a crisis of ethics. Scandals involving several justices have caused the public to question the court's fairness and independence, which are essential to faithfully carrying out its mission of equal justice under the law. For example, undisclosed gifts to justices from individuals with interests in cases before the court, as well as conflicts of interest connected with Jan. 6 insurrectionists, raise legitimate questions about the court's impartiality.

If there are scandals and crises, where are the articles of impeachment? Has Biden signed onto AOC's proposal? No, of course not. There is no scandal. There is no crisis. Justices took actions that were consistent with the rules at the time. Perhaps Biden thinks those were poor exercises of judgment, but no rules were broken. Biden also embellishes quite a bit. Are Martha Ann Alito's flags "connected with Jan. 6 insurrectionists"? Has Justice Thomas decided any case in which Harlan Crowe was a party? No and no. But really, this is just throat-clearing from Biden. No real substance.

Biden then turns to this three proposals.

First, I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders' belief that the president's power is limited, not absolute. We are a nation of laws — not of kings or dictators.

As all know, a constitutional amendment must receive two-thirds vote from each House, and three-fourths vote of the states. This amendment is a non-starter. It would at least have been useful for Biden to propose some language about what such an amendment would even look like. But he would never do such a thing---or least his OLC would never sign off on it. As unpopular as Chief Justice Roberts's decision is, actually crafting a clear constitutional text for when immunity applies would be extremely difficult. Justice Barrett's concurrence does not fare much better. And the dissenters didn't really try to establish a generally-applicable rule--it was enough that Trump's conduct here lacked immunity. On this point, I would recommend Phillip Bobbitt's sober Just Security essay today. (If I could give a compliment, Just Security, which started off as a more progressive outlet for separation of powers issues, has been starkly more balanced of late than Lawfare, which began as a neutral outlet, but has since drifted away.)

At least with the first proposal, Biden clearly suggests a constitutional amendment is needed. But with the second and third proposals, he leaves the issue open.

The second suggestion concerns term limits:

Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court's membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.

We know a constitutional amendment was needed to impose term limits on the President? Would an amendment be needed for the Justices? Biden does not tell us. He only speaks of a "system." Biden also elides the critical question of whether this proposal would be retroactive, or only prospective. For example, would the current nine Justices be required to retire after 18 years? Or would only new Justices appointed under this "system" be subject to the limit? Or does Biden favor the "panel" approach, in which Justices who have already served 18 years would be forced to take "senior" status and not hear any actual Supreme Court cases? I think that rule is 100% likely to be declared unconstitutional. It should be unanimous. And Biden certainly knows this. Or at least he should know it.

The third proposal cribs Justice Kagan's latest missive, calling on the ethics code to be enforceable.

Third, I'm calling for a binding code of conduct for the Supreme Court. This is common sense. The court's current voluntary ethics code is weak and self-enforced. Justices should be required to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.

Biden does not explain how the code would be enforced? Would he assign lower federal court judges to oversee the Supreme Court? I wrote a long post about this issue yesterday, and I won't repeat those arguments here. But I will repeat my prediction of where this proposal may wind up:

I regret that Justice Kagan started down this road. Given that President Biden will soon announce his own Court reform, this issue is on the wall. Once the filibuster is abolished–as Senator Elizabeth Warren has promised–I suspect the Court will be placed under this regime. My other predictions from four years ago may yet come to fruition.

One final point. A number of President Biden's judicial nominees may need a tie-breaking vote from Vice President Harris. Given that she will be busy on the campaign trial, scheduling those tie-breaking votes may prove difficult. Biden's final judge count is still TBD.

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Ohio State Appoints Professor Lee Strang to Direct New Salmon Chase Center

Jonathan H. Adler — Mon, 29 Jul 2024 15:54:34 +0000

The Ohio State University (tOSU) has appointed Professor Lee Strang as the inaugural Executive Director of the Salmon P. Chase Center for Civics, Culture, and Society. This is good news. Professor Strang is an excellent choice for this position.

From tOSU's press release:

The Ohio State University has appointed legal scholar Lee J. Strang as the inaugural executive director of the Salmon P. Chase Center for Civics, Culture, and Society. Strang is the inaugural director of the University of Toledo's Institute of American Constitutional Thought & Leadership and currently serves as the John W. Stoepler Professor of Law & Values at the University of Toledo, where has been a member of the faculty since 2008.

Lee J. Strang

"Lee is an exceptional constitutional scholar with a wealth of administrative experience, and we are excited that he will join the university to stand up and lead the new Salmon P. Chase Center," said Karla Zadnik, interim executive vice president and provost. "Our shared goal is for the center to become a national leader in teaching, research and engagement on U.S. civics, culture and society."

Initiated in 2023 by the state of Ohio, the Salmon P. Chase Center will be an academic home at Ohio State for teaching and researching the foundation of the American constitutional order and its impact on society. As executive director, Strang will be responsible for organizing the center, overseeing the hiring and appointment of the center's faculty, developing curriculum and delivering academic programming.

Professor Strang is a strong scholar, a dedicated teacher, and someone who commits himself to the institutions of which he is a part. I look forward to seeing what he builds at the Chase Center.

The release also says this about the Chase Center:

When it is fully operational, the center will have at least 15 tenure-track faculty members and provide a variety of innovative educational and collaboration opportunities for students and faculty from across the university. The center will be an independent academic center physically housed in the John Glenn College of Public Affairs. . . .

The Chase Center academic council led the nationwide search for the executive director. The academic council members are scholars with national reputations for academic excellence and come from Ohio and universities across the nation.

[Note: Why "tOSU" instead of "OSU"? Well, if it's "the Ohio State University" then tOSU reflects that fact.]

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Banana Republican

Samuel Bray — Mon, 29 Jul 2024 15:35:29 +0000

I found myself disagreeing with some of the points made in co-blogger Josh Blackman's post this morning entitled "I could carve a judge with more backbone out of a banana." Instead of a point-by-point rebuttal, here is a set of more general observations:

Law is not like the game of Risk, a game of global domination. No legal principle will yield you all the results you want, and principled judging will never yield total domination for any political party or ideology. Anyone who expects that will be disappointed.
The line taken on Justice Barrett bears no resemblance to her actual body of work on the Court so far, which is absolutely sterling, regardless of whether you agree with her on the outcome of any given case. Here, for example, is a more cogent analysis by John McGinnis.
The suggestion that what we need in Supreme Court nomination hearings is more "courage" in an idiosyncratic sense (n. courage, 1a "owning the libs") is exactly wrong. Yes, courage is a virtue, but like most virtues it is not reducible to performative spectacle. Supreme Court nomination hearings have already moved too far in the direction of cable news meets WWF. That is a progression to arrest, not to pursue as if it were the path of enlightenment.
When we evaluate the work of the justices, I am almost tempted to say we should care more about their opinions than their votes. The votes matter, of course. But in current practice, and especially when so few cases are being decided by the Court, it is the rationale and argument expressed in the opinion—with its craft or absence of craft, and its principle or absence of principle—that drives the development of the law. To treat judges as fundamentally being vote-casting officials is a symptom of treating them as legislators.
For legal scholars, there is value in analysis that does not fully collapse into the analyst's perspective on the merits. We should be able to make analytical claims about what the justices are doing—critical, sympathetic, both, whatever—that stand on their own apart from whether the author thinks the Court is right on the merits. Otherwise we run the risk that our legal analysis will shade into station identification and more cowbell.

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Justice Kagan's Ninth Circuit Judicial Conference Remarks

Jonathan H. Adler — Mon, 29 Jul 2024 15:30:04 +0000

Last week, I noted Justice Elena Kagan's remarks at the Ninth Circuit Judicial Conference on Supreme Court ethics, her reaction to losing cases, and other matters. The remarks prompted substantial press coverage and commentary. Now you can view those remarks for yourself, as C-Span has posted video.

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The Behind the Scenes Wrangling in the Idaho Abortion Case

Jonathan H. Adler — Mon, 29 Jul 2024 15:24:21 +0000

CNN's Joan Biskupic has an inside report on what happened at the Supreme Court behind-the-scenes in Moyle v. United States. The case had presented the question whether EMTALA preempts state laws, such as Idaho's Defense of Life Act, that prohibit abortion. The case was ultimately dismissed as improvidently granted, and the stay of a lower court judgment against Idaho was lifted.

From Biskupic's report:

In January, the court took the extraordinary step of letting Idaho enforce its ban on abortion with an exception only to prevent the death of a pregnant woman, despite an ongoing challenge from the Biden administration arguing that it intruded on federal protections for emergency room care.

No recorded vote was made public, but CNN has learned the split was 6-3, with all six Republican-nominated conservatives backing Idaho, over objections from the three Democratic-appointed liberals.

Oral argument in the case was a bit of a mess. There was confusion over what precisely the Idaho law did or did not allow, and the extent of asserted preemption under EMTALA. Further, a weighty constitutional question (whether an exercise of the spending power can preempt state law) lurked in the background. This apparently convinced some of the justices that Moyle was not the clear case they had thought it might be.

According to Biskupic, Chief Justice Roberts refrained from assigning opinion-writing duties at the conference after oral argument, as there may not have been a clear majority disposition.

From Biskupic's report:

Judging from the public arguments alone, there appeared a chance the court's four women might vote against Idaho, and the five remaining conservatives, all men, in favor of the state and its abortion prohibition.

But at the justices' private vote two days later, Roberts and Justice Brett Kavanaugh shattered any split along gender lines. They expressed an openness to ending the case without resolving it.

They worked with Barrett on a draft opinion that would dismiss the case as "improvidently granted."

Barrett had come to believe the case should not have been heard before lower court judges had resolved what she perceived to be discrepancies over when physicians could perform emergency abortions, even if a threat to the woman's life was not imminent.

She would eventually deem acceptance of the case a "miscalculation" and suggest she had been persuaded by Idaho's arguments that its emergency rooms would become "federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States's mandate to perform abortions on demand." She believed that claim was undercut by the US government's renouncing of abortions for mental health and asserting that doctors who have conscience objections were exempted.

Ultimately, Biskupic reports, there was a draft majority opinion on behalf of Roberts, Kavanaugh, Barrett, Kagan and Sotomayor, and dissents from the left (Jackson) and the right (Alito, Thomas & Gorsuch). This line-up effectively prevailed as the Court DIGged the case, over a dissent by Justice Alito (joined in part by Thomas and Gorsuch) and a partial dissent by Justice Jackson. Justice Kagan (joined by Sotomayor in full and Jackson in part) and Justice Barrett (joined by Roberts and Kavanaugh) wrote concurrences.

In Justice Kagan's view, based on remarks last week, the justices may have learned a "good lesson" from the case. From Biskupic's prior report:

The justice went on to say that the court may have learned "a good lesson" this session when it agreed to hear oral argument in an abortion dispute that arose from its emergency docket only to later say it had improperly granted review in the matter.

"And that may be as a good lesson for us to sort of say as to some of these emergency petitions, 'No. Too soon, too early. Let the process play out,'" she said.

I suppose some might suggest the Court's decision to DIG the case reflects a lack of spine or fortitude. To my mind, a judge shows spine and fortitude when they act as a judge, even at the risk of disappointing their friends and allies. In the current environment, that shows more courage than refusing to succumb to the "Greenhouse effect." A stalwart judge should never forget that they are tasked to exercise judgment instead of will, and the proper exercise of judgment will not always produce the political or policy outcome that partisans might prefer.

The post The Behind the Scenes Wrangling in the Idaho Abortion Case appeared first on Reason.com.

"I could carve a judge with more backbone out of a banana"

Josh Blackman — Mon, 29 Jul 2024 12:31:04 +0000

At a recent conference, I invoked Theodore Roosevelt's famous criticism of Justice Oliver Wendell Holmes, Jr. to describe Chief Justice Roberts and Justices Kavanaugh and Barrett: "I could carve a judge with more backbone out of a banana."

Of course, TR's criticism of Holmes was hyperbolic, and a bit unfair. Holmes had survived being shot twice during the Civil War, and developed a distinctive judicial philosophy of restraint. But this aphorism, a century later, still has some appeal.

Is it a fair descriptor of the Court's middle three Justices? Yes and no. (For a refresher, I wrote an essay on Judicial Courage.)

Let's start with Chief Justice Roberts. The defining moment of his tenure was NFIB v. Sebelius. Roberts decided to save the Affordable Care Act. By Roberts's own admission, the saving construction was not the best reading of the law. Still, the Chief Justice felt compelled to reach that conclusion based on his perception of the role of the courts. Was his vote influenced by external factors? No, I don't think he changed his mind based on what some liberal opinion writers would write. Rather, he was worried about how striking down Obamacare would affect the long-term perception of the Court.

Was that an act of spinelessness? Indeed, as I discuss in Unprecedented, conservatives called on the Chief Justice to grow a "backbone," and not change his vote. In my view, judges should go where the law leads, and leave the political stuff to the other branches. But, twelve years later, I have come to peace with Roberts's decision. (I'm still not over his analysis on the Direct Taxes Clause.)

Here comes the compliment. When Roberts made this decision, he engaged in an act of utter selflessness, and courage of the highest level. He knew that he would become ostracized from the right. As best as I can recall, Roberts has not stepped foot in a FedSoc meeting since 2012. And Roberts knew the left would never accept him for Shelby County and countless other decisions. Whatever grace liberals gave him for NFIB would last a few minutes. The great Chief Justice would be a jurisprudential orphan. But he knowingly exiled himself into the breach. This is not the stuff of a banana.

What about Justice Barrett? I've gone through her record many times. As a law professor, she did not take controversial positions on matters of public concern. At most, she had a few press interviews on Supreme Court decisions, like NFIB and King v. Burwell, and made some anodyne critical remarks. But Barrett did not write any op-eds, sign amicus briefs, or get into the mix.

A colleague suggested that Justice Barrett showed her fortitude during her Seventh Circuit confirmation hearing. Everyone remembers the line. Senator Diane Feinstein told Barrett that "The dogma lives loudly in you."

I went back and rewatched the whole clip on CSPAN. After Feinstein said it, Barrett sort of stared blankly in incredulity at Feinstein, and the colloquy ended. Barrett never actually said anything in response. Feinstein pivoted to ask some question of Judge Joan Larsen. I know this "dogma" line made Barrett something of a mini-celebrity, but I never quite understood why. This is not like Clarence Thomas and Joe Biden going toe-to-toe. Moreover, Feinstein at the time was suffering from senility. (It is no coincidence that senile and Senate share the same root.) Feinstein made an utterly inappropriate statement that was universally panned. And Barrett was easily confirmed.

What are the courageous votes that Justice Barrett has cast since she was on the bench? Dobbs for sure–especially since she was the fifth vote. Had she blinked, Roberts could have controlled the majority. For the other cases, Barrett was the sixth vote: Loper Bright, Kennedy v. Bremerton, and SFFA.

By contrast, Justice Kavanaugh's performance during his second confirmation hearing demonstrated courage under fire. He expressed righteous indignation at how he was being treated, and defended himself vigorously. I sometimes wish that Kavanaugh could bring that fire to the bench in some cases. But there is still time.

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Monday Open Thread

Eugene Volokh — Mon, 29 Jul 2024 12:04:55 +0000

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Today in Supreme Court History: July 29, 1942

Josh Blackman — Mon, 29 Jul 2024 11:00:43 +0000

7/29/1942: Supreme Court hears oral argument in Ex Parte Quirin.

The Stone Court (1942)

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What Would It Mean For Lower Federal Court Judges To Enforce A Code Of Conduct Against Supreme Court Justices?

Josh Blackman — Sun, 28 Jul 2024 23:45:48 +0000

When Justice Kagan speaks to the Ninth Circuit judicial conference, after cutting through all the pleasantries and bromides, her primary objective is to give the left a to-do list. She doesn't sob in her office. She punches through walls. This year, Kagan casually floated an idea that has taken shape: Justice John Roberts could appoint some panel of "judges lower down the food chain" to review allegations of misconduct.

As a threshold matter, she threw Justice Thomas under his RV, and raised Justice Alito up his flagpole. Not even a year after the Court adopted an ethics code–which was part of Kagan's earlier wish-list–Kagan is already saying that the rules are not enough. There have to be teeth!

I'll repeat a few points I've made more times than I can count. Ethics codes are not bright-line rules. They merely offer guidance to judges about how to proceed. All federal judges, even the Justices, can request informal advice from their colleagues, or judges on other courts. Though not binding, judges tend to do what others have done. Judicial ethics body have only very limited tools to enforce ethics codes. These institutions can issue private and public reprimands. In extreme cases, they can refer a judge for impeachment. At that point, it is up to Congress to act. But the ultimate death sentence is to prevent a judge from being a judge.

Take the Federal Circuit. The well-respected judges of that court have removed Judge Pauline Newman from hearing any cases until she submits to a health exam with the doctor of their choice. Newman filed a valiant legal challenge, but has lost in the District Court, and her hope now lies in the D.C. Circuit. Moreover, the Federal Circuit recently excommunicated her for another year. Newman is 97 years young. Chief Judge Kimberly Moore and her colleagues are probably waiting for Judge Newman to die. This is a stealth impeachment, and the other federal judges have done nothing about it. They are too busy trying to punish litigants in Texas for filing cases where the venue statutes permit them to file. (There is action afoot in the rules committee–stay tuned.) Anyway, I digress.

These are the things that lower court judges can do to enforce ethics codes. Does Justice Kagan really want to empower the likes of Judge Moore and others to suspend Supreme Court Justices from hearing cases? Or allow some inferior panel to force a Justice to recuse from a particular case? Will there now be entire rounds of litigation before these panels immediately after a cert grant?

The Wall Street Journal editorial board raises some other questions:

Could her panel issue subpoenas to investigate allegations? How would it sanction Justices who enjoy life tenure? Wouldn't setting up such a system encourage frivolous complaints, filed for partisan PR purposes or to make the process into the punishment?

Once this process exists, there will be thousands upon thousands of frivolous complaints. Look at the thousand "orchestrated" complaints filed against Judge Aileen Cannon–so many that Chief Judge Pryor ordered the clerk's office to stop accepting them! And this is only one district court judge. Imagine what will happen for Justices Thomas and Alito. There will be at least one judge somewhere who finds one of these complaints meritorious. Who will be the first Justice to get the Pauline Newman treatment? Did Kagan really think this suggestion through a policy matter?

I haven't even addressed the separation of powers problems: inferior judges sitting in judgment of apex officials. No way this flies.

At the end of the day, all of these calls for "judicial reform" are addressing a problem that barely exists, and mandate solutions that would cause substantial harm to the judiciary. Judge Jim Ho frames the issue well in his new National Review essay:

The double standards aren't an accident. They're intentional. They're a strategy to create a perverse incentive structure for judges: If you rule the way the critics dictate, you won't be criticized. You'll be fêted. But if you don't, you'll be ostracized.

That's why the double standards don't seem to trouble the critics. Because, to the critics, this isn't a debate — it's a war. The critics don't want neutrality. They want conformity. If you don't conform, they'll call you corrupt, unethical, racist, sexist, homophobic. They'll say you're just trolling, or auditioning. Whatever it takes for you to bend the knee. And even if you still won't conform, they'll attack you anyway, because others will get the message and comply.

Critics have repeatedly said that they want to pack the Court. But there's no need for them to pack the Court if they can just pressure the Court to do what they want.

I don't think Justice Kagan sees things in quite this light, but her proposals gives ammunition to those who do.

I regret that Justice Kagan started down this road. Given that President Biden will soon announce his own Court reform, this issue is on the wall. Once the filibuster is abolished–as Senator Elizabeth Warren has promised–I suspect the Court will be placed under this regime. My other predictions from four years ago may yet come to fruition.

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No Sealing of Goldman Sachs Employees' Names in Securities Fraud Lawsuit

Eugene Volokh — Sun, 28 Jul 2024 16:14:35 +0000

From Magistrate Judge Katharine Parker (S.D.N.Y.) Thursday in Ap-Fonden v. Goldman Sachs Group, Inc.:

This securities fraud litigation, filed in 2018 arises out of the 1Malaysia Development Berhad ("1MDB") scandal. Plaintiffs were investors in Defendant the Goldman Sachs Group Inc. ("Goldman"). The parties have moved to seal materials submitted in connection with Plaintiff's motion for class certification….

As a preliminary matter, documents submitted in support of a motion for class certification are judicial documents to which the presumption of public access [to court records] would apply….

In support of its application to maintain certain documents under seal, and to allow for the filing of other exhibits with redactions, Goldman notes that it seeks to redact individuals' names and other personal identifying information of current and former Goldman employees as well as two entities and individuals unaffiliated with Goldman. Goldman states that none of those employees or entities were implicated in any of the alleged wrongdoing at the center of this case. Therefore, Goldman states, "it would be patently unfair and highly prejudicial to these individuals to disclose [their] names."

While redactions of names and personal information of non-parties is occasionally permitted in this district, particularly at the class certification phase, Plaintiffs dispute whether the underlying nonparties are actually implicated in the 1MDB Fraud. In fact, among the names redacted in Goldman's submissions is Lloyd Blankfein, Goldman's then-chairman, and who's statements about 1MDB are specifically at issue in the motion for class certification. Similarly, Plaintiff alleges that some of the names Goldman seeks to redact include individuals who testified publicly at the trial of Roger Ng (one of the architects of the 1MDB fraud.)

In any event, Goldman does not contend that its employees or their titles are nonpublic. Therefore, while they might maintain a privacy interest in having personal details such as phone numbers, email addresses, or actual addresses, they do not have a similar privacy interest in the fact of their employment at Goldman during the relevant period.

Even if Goldman kept the names of its employees confidential, which it does not, the allegation that unsealing the documents would be "unfair" and "prejudicial" to the individuals named therein is no more than "broad allegations of harm unsubstantiated by specific examples or articulated reasoning." At the very least, it is not detailed enough for this Court to make the "specific, on the record findings" that sealing here is necessary to serve higher values….

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