Friday, February 27, 2015

It's white, no blue . . . aaaah

Doesn't this illustrate everything that Dan Kahan, current GuestPrawf Dave Hoffman, and others (including me) have been saying about video evidence? If no one can agree on the color of the dress,* how can anyone agree on whether the force used was excessive or whether the protesters were peacefully gathered and marching?

* It's light blue and gold.

Posted by Howard Wasserman on February 27, 2015 at 04:23 PM in Howard Wasserman | Permalink | Comments (0)

Thursday, February 26, 2015

Declaring victory?

At CoOp, Ron Collins discusses the ACLU's new 2015 Workplan: An Urgent Plan to Protect Our Rights, which listed 11 "major civil liberties battles" that the organization plans to focus on--none of which have anything directly to do with the freedom of speech or of the press. Ron wonders why, given the ACLU's history and founding purpose. He emailed ACLU Executive Director Anthony Romero about this and was told Romero intends to respond.

I look forward to hearing Collins report on Romero's response. But let me offer one possible (if not entirely accurate) answer: We won. There are no "major civil liberties battles" to be fought or won with respect to the freedom of speech. Yes, we still have situations in which government passes laws or does other things that violate the First Amendment and those must be fought in court. But the First Amendment claimant wins most of those cases and much of the doctrine seems pretty stable at this point; it simply is a matter of having to litigate. Importantly, these do not (or at least do not appear to) reflect a systematic assault on free speech rights across wide areas of the country on a particular matter. There is no overwhelmingly adverse legal precedent that must be changed (compare surveillance), no overwhelming series of incidents highlighting the problems (compare police misconduct), and no systematic assault on a right by political branches or other majoritiarian institutions (compare Hobby Lobby; reproductive rights; voter ID).

The only "major battle" arguably to be fought on the First Amendment is over campaign finance. But the ACLU is famously divided over that issue, with past leaders fighting among themselves and divisions within the current leadership. The rules governing public protest have evolved to overvalue security at the expense of the right to assemble and speak in public spaces, especially at singularly important events (political conventions, meetings, etc.). But there are so many variables at work there, it is hard to see how to create a battle plan on that.

That's it. Police still seem unsure about what to do with people filming them in public, but that is not because the doctrine is not clear. The student-speech doctrine is a horror show, but that is not an issue on which you hinge your fundraising. Campus speech codes are a pervasive and systematic problem (but see Eric Posner), but the ACLU may be divided on that issue as well (since much of the targeted speech is deemed racist, sexist, etc.). And anyway, other organizations (notably FIRE) have made this their specialty. Not every challenged trademark involves a racial slur. Am I missing something else?

Note that I do not mean to suggest that we won and that there are, in fact, no more systematic threats to free expression. Yes, I feel a lot better about my right to burn a flag, defame the President, or watch "Fifty Shades of Grey" than I do about my daughter's future right to control her body. But it would be a mistake for the ACLU (or anyone else) to declare victory on free speech and drop the mic.

Posted by Howard Wasserman on February 26, 2015 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (12)

Wednesday, February 25, 2015

JOTWELL: Erbsen on Klerman & Reilly on forum selling

The new Courts Law essay comes from Allen Erbsen (Minnesota), reviewing Daniel Klerman & Greg Reilly's Forum Selling, which discusses how particular courts make themselves attractive places for parties to forum shop. The article and the review essay are worth a read.

Posted by Howard Wasserman on February 25, 2015 at 11:23 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, February 24, 2015

Another twist in the march to marriage equality

Two weeks ago, Judge Granade enjoined Mobile Probate Judge Don Davis to stop enforcing the state's SSM ban and to begin issuing marriage licenses to same-sex couples. Last week, Davis refused to grant a second-parent adoption to Cari Searcy and Kimberly McKeand, the plaintiffs in the first action in which Judge Granade invalidated the state ban. Davis entered an interlocutory decree granting Searcy temporary parental rights, but declining to issue a final adoption order until after SCOTUS decides the Marriage Cases this spring. Searcy and McKeand have filed a new action against Davis, seeking not only an injunction, but also compensatory and punitive damages (I have not been able to find the complaint).

First, this illustrates the importance of determining the true and proper scope of an injunction. In Strawser, the Court enjoined Davis from enforcing the SSM ban and to issue licenses to Strawser and some other named plaintiffs. But that is the limit of the court order. It does not and cannot apply to enforcing (or not) the SSM ban as to anyone else or in any other context. Thus, the argument that Davis is bound by any court order to grant this adoption is wrong. Otherwise, we have, at most, persuasive authority that the SSM ban is unconstitutional, nothing more.

Second, this new lawsuit seems to have other problems. Adoption decisions by probate judges, unlike decisions to grant or deny marriage licenses, appear to be judicial in nature, involving petitions, hearings, evidence, interlocutory and final orders, and appeals. This raises a couple of issues. First, if this is a judicial act, Davis is absolutely immune from damages--Davis was named in Searcy's original action and this was one argument he made in his motion to dismiss. And if Davis was acting in a judicial capacity, then under § 1983 the plaintiffs at this point can only obtain a declaratory judgment but not an injunction. Second, if this is a judicial act, this action should be barred by Rooker-Feldman--Searcy and McKeand are state court losers (they did not get the remedy they wanted in state court) and functionally are asking the federal court to reverse the state court decision. This argument is a bit weaker within the Eleventh Circuit, as there is some district court caselaw that Rooker-Feldman only applies to final state court decisions but not interlocutory orders. Still, if Davis was wrong to deny the adoption in a state judicial proceeding, the plaintiff's move is to appeal, not to run to federal court.

Update: Thanks to commenter Edward Still for sharing the Complaint, which is as bad as I thought. It asks for an injunction against a judge without having gotten a declaratory judgment; it asks for damages and attorney's fees against a judge for what the complaint itself makes clear is a judicial act; and it asks the district court to "strike" an order of a state-court judge and to command that state judge to grant parties relief. I am not big on Rule 11 sanctions against civil rights plaintiffs, but this one asks for so much that is so obviously legally barred by clear statutory language as to be a bit ridiculous.

Posted by Howard Wasserman on February 24, 2015 at 10:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, February 23, 2015

John Oliver on electing judges

Obviously, I would disagree with the part that suggests Roy Moore is defying federal courts or federal orders. But the rest, as it highlights the ridiculousness of electing judges and the perverse incentives that creates, just sings.

 

 

Posted by Howard Wasserman on February 23, 2015 at 05:35 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, February 20, 2015

Holmes and Brennan

My new article, Holmes and Brennan, is now on SSRN. This is an article-length joint book review of two terrific legal biographies--Thomas Healy's The Great Dissent and Lee Levine and Stephen Wermiel's The Progeny. I use the books explore the connections between Abrams and Sullivan as First Amendment landmarks and between the justices who authored them and who are widely regarded as two leaders in the creation of a speech-protective First Amendment vision.

The abstract is after the jump.

This article-length book review jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The review then explores three ideas: 1) the connections and intersections between these watershed opinions and their revered authors, including how New York Times and its progeny brought to fruit the First Amendment seeds that Holmes planted in Abrams; 2) three recent Supreme Court decisions that show how deeply both cases are engrained into the First Amendment fabric; and 3) how Brennan took the speech-protective lead in many other areas of First Amendment jurisprudence.

Posted by Howard Wasserman on February 20, 2015 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 18, 2015

Collins on Terrorist's Veto

Great post from Ron Collins at CoOp on the need for democratic society's to stand firm in the face of the terrorist veto, which he calls the "savage cousin of the heckler's veto."

Posted by Howard Wasserman on February 18, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, February 17, 2015

And more crazy in Alabama

With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an  Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.

The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.

First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.

Second, as has frequently been the case here, the big question is one of Alabama law--how much control the attorney general has over privately initiated litigation on behalf of the State. The Attorney General can seize control over litigation initiated as the state by local prosecutors and other executive officers; it is less clear whether he can do the same when suit is brought by private actors. The plaintiffs argue for a a broad understanding of FRCP 65 as to the scope of injunctions.

Third, as predicted, the state tries to play the abstention card. Also as predicted, they screwed it up. The state tries to argue that the Anti-Injunction Act bars the federal court from enjoining this pending state proceeding, emphasizing the narrowness of the statute's exceptions. But one exception is when Congress expressly authorizes an injunction by statute, which it did in enacting § 1983. Strawser and all other actions challenging SSM bans are § 1983 actions, so the AIA imposes no limit on the injunction here. The state also tries to argue Rooker-Feldman, a doctrine which also has no application here, since the plaintiffs are not state-court losers or even parties to the state court action.

Posted by Howard Wasserman on February 17, 2015 at 05:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Sunday, February 15, 2015

If possible, Alabama could get more confusing

Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.

So how will this play out and what effect will it have?

This sort of mandamus action has been attempted before, in a slightly different context. In Oklahoma and South Carolina, state attorneys general sought to mandamus individual county clerks who intended to issue licenses in light of a federal appeals court decision invalidating SSM bans in other states. These clerks were under no federal injunction and there had been no decision addressing bans in their own states. But now-binding Fourteenth Amendment precedent made legally certain what would happen in any federal action challenging those bans, so the clerks were simply avoiding that lawsuit and injunction. The mandamus was intended to make the clerks wait and not to issue licenses unless and until compelled to do so.

In Alabama, probate judges other than Don Davis of Mobile who are issuing marriage licenses are doing so on the persuasive force of the district decision, but without an injunction. They, too, are trying to avoid a lawsuit, one whose outcome is both more and less obvious than in the other two cases. Here, there is only persuasive, and not binding, federal precedent, although it involves a declaration as to this state's marriage ban.

The mandamus action raises a whole series of state-law questions. One is whether these organizations have standing, as their only injury seems to be that probate judges are doing something the petitioners don't like. It also would require the court to conclude that a probate judge is forbidden (not simply not obligated, forbidden) from adhering to district court precedent. It is not clear whether the petition also will require the court to decide the constitutionality of its marriage ban, which would be the only federal issue in play; otherwise, any decision is insulated from SCOTUS review.

The mandamus petitioners rely on one fundamental misunderstanding--that the only court of competent jurisdiction to declare the state's marriage-equality ban unconstitutional is SCOTUS. This erroneously minimizes the effect of lower-court precedent. While only SCOTUS precedent binds state courts, here probate judges are performing administrative functions; they can be sued in federal court, where circuit court precedent will be binding and district court precedent is at least persuasive. Again, I really believe the question of federal precedent in state court is beside the point. And in taking this step, petitioners misunderstand that point.

Finally, if the mandamus issues, the real effect will depend on how broad the order is. If it simply applies until a probate judge comes under a federal-court injunction, then its effect is more practical than legal. Formally, no probate judge has any direct legal obligation to issue a license until sued in federal court and enjoined;  the mandamus would simply provide a court order emphasizing that reality. It would force every couple seeking a license to sue every probate judge individually, rather than allowing couples to gain the benefit of persuasive authority. This is inconvenient and inefficient (although not costly, since plaintiffs should get attorney's fees), but not a significant change to the landscape of actual legal obligations. The mandamus also would open the door to the probate judges trying to raise Younger, Rooker-Feldman, Pullman, and Burford in the federal district court; this is what happened in both the Oklahoma and South Carolina cases, although both courts soundly and properly rejected those arguments.

On the other hand, if the mandamus bars probate judges from issuing any licenses until SCOTUS decides the issue of marriage equality, we have genuine problems. The inevitable federal injunction would set up the very direct conflict and confusion the petitioners purport to be trying to resolve. There actually would be directly conflicting orders--a state mandamus prohibiting every probate judge from issuing a license and a federal injunction commanding a named probate judge to do so.

Posted by Howard Wasserman on February 15, 2015 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, February 13, 2015

Mitchell/Hamline

People have been wondering when law schools would close in the new reality. Here comes a sort-of closure: William Mitchell College of Law and Hamline University School of Law are merging, forming Mitchell/Hamline School of Law as stand-alone not-for-profit with a "strong and long-lasting affiliation to Hamline University." The joint announcement from the associate deans at both schools is reprinted after the jump.

We write to share the news that our two law schools have announced plans to combine, to further our shared missions of providing a rigorous, practical, and problem-solving approach to legal education.

The combination will occur following approval by the American Bar Association.  Until then the two schools will continue to operate their current programs, while taking steps to ensure a smooth transition for students when ABA acquiescence is obtained.

Once combined, the law school will offer expanded benefits for its students, including three nationally-ranked programs: alternative dispute resolution, clinical education, and health law; an array of certificate and dual degree programs, and an alumni network of more than 18,000.

The combined school will be named Mitchell|Hamline School of Law and will be located primarily on William Mitchell’s existing campus in Saint Paul. Mitchell|Hamline School of Law will be an autonomous, non-profit institution governed by an independent board of trustees, with a strong and long-lasting affiliation to Hamline University.
 

Posted by Howard Wasserman on February 13, 2015 at 01:56 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, February 12, 2015

You say potato . . .

Does anyone know how the federal judge at the center of the Alabama craziness pronounces her name? I have lived in South Florida for too long, so my instinct is to pronounce it Grah-nah'-day. The non-Spanish version (which I have heard some reporters use) would be grah-nayd'.

If the latter, then recent events have earned her a place on the Mount Rushmore of Appropriate Judicial Names, alongside Learned Hand, John Minor Wisdom, and William Wayne Justice.

Posted by Howard Wasserman on February 12, 2015 at 05:37 PM in Howard Wasserman | Permalink | Comments (6)

Lower federal courts and state administrative actions

Thanks to Amanda for her post about her article and the effect of lower-federal-court precedent on state courts. I look forward to reading it and using it in a larger article on the procedural insanity we are seeing between Windsor and the decision this June.

But I wonder if this issue is just a distraction here, partly triggered by Moore's memo and order, which focused heavily on it. Probate judges are not acting in a judicial capacity or deciding cases in issuing (or declining to issue) marriage licenses. They are acting in an executive or administrative capacity, such that there is no such thing as "binding" or "persuasive" precedent. Absent a federal judgment against him, precedent does not act directly on any executive or administrative actor; its force is in the fact that, if sued, the precedent will bind the court hearing the case and the executive will almost certainly be enjoined.

So the non-binding nature of Judge Granade's original decision is in play here. But not because it is not binding on state courts; rather, because it is not binding on other federal district courts. Thus, the possibility of a different district judge disagreeing with Judge Granade justifies a probate judge, acting in an administrative capacity and performing an administrative function, in not immediately following that decision.

Posted by Howard Wasserman on February 12, 2015 at 05:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Now we have a meaningful federal order

The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.

So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:

1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.

2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.

3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.

4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.

Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2.  In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.

Posted by Howard Wasserman on February 12, 2015 at 05:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

LSAC Report on Best Practices

A report recommending to LSAC best practices on accommodating LSAT test-takers with disabilities has issued from a panel convened pursuant to a consent decree between LSAC and DOJ. Here are the Executive Summary and the full report. (H/T: Ruth Colker (Ohio State), the sole lawyer on the panel).

Posted by Howard Wasserman on February 12, 2015 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (11)

Bazelon sort-of defends Roy Moore

Emily Bazelon makes a sort-of defense of Roy Moore in The New York Times Magazine, turning out many of the arguments I have been making here.

Posted by Howard Wasserman on February 12, 2015 at 09:29 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, February 11, 2015

The wrong vehicle?

Judge Granade has scheduled a hearing for Thursday to decide whether to add Alabama Probate Judge Don Davis back into the case as a defendant and whether to enjoin him from enforcing the state ban on same-sex marriage. That injunction is all-but-certain to issue. Believe it or not, however, it may not end the controversy. We still have a scope-of-the-injunction problem. Since Searcey and her wife remain the only plaintiffs, the injunction would only compel Davis to allow Searcey to adopt her wife's child. That's it. Even as to Davis, the effect of the opinion as to anyone else's rights would be merely persuasive.

The problem is that Searcey may be the wrong litigation vehicle for getting probate judges to issue licenses, since it is not a marriage-license case but an adoption case. And it seems to me that it is impossible to turn it into a license case by adding new plaintiffs (through joinder or intervention) who are looking for licenses rather than to adopt, since they are seeking entirely different relief. Perhaps the fact that the same-sex marriage ban (and whether the plaintiffs are or can be married) is a common question of law or fact. But the questions are arising in such wildly different contexts and settings.

Update: Thanks to the commenter below for correcting me. The events are happening in Strawser, an action brought by a male couple in January, originally against Attorney General Luther Strange and which produced a (largely meaningless) injunction against him; Davis has been added as a defendant and a hearing on a preliminary injunction against Davis is scheduled for Thursday. In addition, according to this story, there is a second action in the Southern District by several couples, naming Davis and Moore as defendants.

Now we are beginning to see some progress. Once Davis is directly enjoined to issue licenses, expect everyone else to fall in line.

Posted by Howard Wasserman on February 11, 2015 at 02:31 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (10)

JOTWELL: Walsh on Re on Narrowing Precedent

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing new PermaPrawf Richard Re's Narrowing Precedent in the Supreme Court (Colum. L. Rev.). As always, both are worth a read.

Posted by Howard Wasserman on February 11, 2015 at 01:44 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Dorf on Roy Moore and Alabama

Mike Dorf's take on Roy Moore and the events in Alabama. Mike concludes "that while Chief Justice Moore's memo was a lawyerly piece of work, it ultimately does not advance his (distasteful) cause. It's at best a cover for his Faubusian agenda." He argues that Moore ultimately was playing a losing hand because couples always could sue the probate judges in federal court (because, as I have argued, issuing the licenses is not a judicial function). In playing it, therefore, Moore was simply trying to play Orval Faubus (or George Wallace, to keep it in the same retrograde state).

I agree that Moore likely is doing all this for bigoted reasons. But that is not necessarily established by the fact that the probate judges could be sued and enjoined. I never read Moore as denying that or denying that this would change the analysis and their obligations (certainly some probate judges recognized as much). Moreover, what difference should it make that Moore's position will ultimately prove a loser? The question is whether it is wrong to force the plaintiffs go through the process of establishing their legal rights and of not departing your preferred position (non-issuance) unless formally compelled to do so, even when you know exactly how it will play out (and even when it likely will cost the taxpayers attorney's fees).

There is an obvious comparison between Alabama and Florida. In both states, officials charged with issuing licenses (county clerks in Florida, probate judges in Alabama) took the position that they were not bound by the initial district court order or opinion invalidating the state ban. And in both, the federal court issued a "clarification" that the earlier injunction did not compel any non-parties to issue licenses, but the Constitution did (whatever that means). But then they part ways. In Florida, the county clerks folded their tents following the clarifying order and began issuing licenses across the state,* although I they were not legally compelled to do so by that clarification and did so only as a strategic choice of avoiding being sued. But the Alabama probate judges, and Moore, have not done the same; unlike the Florida clerks, they seem intent on making the plaintiffs take the steps of obtaining those individualized federal injunctions.

* Mostly. Clerks in several counties avoided having to issue licenses to same-sex couples by ceasing issuing licenses at all.

So two questions: 1) Why is Alabama playing out differently. Is it Moore and other officials playing Wallace/Faubus by demanding formal legal processes? 2) Is it wrong of them to demand those processes be followed (and by that I mean not merely less preferable or more expensive, but morally or legally wrong)?

Posted by Howard Wasserman on February 11, 2015 at 12:44 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, February 10, 2015

The irony of trying to have it both ways

Much of what is happening with same-sex marriage in Alabama right now is a product of  a hierarchical and geographically dispersed judiciary. The district courts hear cases first and may decide quickly, but the decision (beyond the parties themselves) has limited precedential value. The courts of appeals and SCOTUS create sweeping binding precedent, but it takes longer to get those decisions.

Had the Eleventh Circuit or SCOTUS ruled that the Fourteenth Amendment prohibits same-sex marriage bans, the obligations of state officials would be clearer. It would be certain that any district court would order them to issue the license because the precedent would be binding and that to not issue licenses would subject them to contempt. It also would be certain they would be on the hook for attorney's fees. And they may even be on the hook for damages, because the law would be clearly established. But we are still early in the process in Alabama, so we only have a persuasive-but-not-binding opinion from a district court. And we see what we would expect--it is persuading some actors, not persuading others; when lawsuits start coming, it may persuade some district courts and not persuade others.

In the short term, of course, this may give us Swiss cheese--one report this morning said 16 out of 67 counties are issuing licenses. Uniformity within the state comes with that binding precedent from the reviewing court. But it takes time.

There is a way to avoid Swiss cheese, of course: Have the district court decision and order stayed pending appeal. Then everyone will be able to marry at the same time--once the reviewing court provides binding precedent that same-sex marriage bans are invalid, after which everyone is bound. Of course, no one on the pro-marriage equality side wants to wait. I would guess everyone would strongly prefer marriages in 16 counties to marriages in none.

But that is the choice. You can have marriages begin without binding precedent, but not every official or court will go along with the precedent, so not everyone will gain the benefit of it. Or you can get uniformity from the eventual binding precedent so that everyone will be bound and everyone will benefit, but you have to wait. You cannot get both. And while frustrating, it is wrong to attribute this procedural reality to malfeasance by state officials.

Posted by Howard Wasserman on February 10, 2015 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

And the media does not help

Most counties in Alabama were not issuing licenses as of yesterday, not improperly so as a matter of process. But you would not know it from the media, with headlines such as Most Alabama Counties Defy Feds by Blocking Gay Marriage (ABC News, complete with video of George Wallace in the doorway) and Judicial Defiance in Alabama: Same-sex marriage begins, but most counties refuse (Wash. Post); The Supreme Court Refused to Stop Gay Marriage in Alabama, But the State's Governor and Chief Justice Are Refusing to Listen (TNR); and Alabama's Roy Moore Defies Federal Order, Refuses to Allow Gay Marriage (Slate's Mark Joseph Stern, who can't help himself, calling it a "stunning display of defiance against the judiciary").

Posted by Howard Wasserman on February 10, 2015 at 07:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Monday, February 09, 2015

Comments working again

We have found a temporary fix for the problem with Comments, so readers should be able to resume commenting. Thanks for your patience.

Posted by Howard Wasserman on February 9, 2015 at 11:45 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

No contempt for you

Motion for Contempt denied--as expected and as appropriate. Judge Granade emphasized that Judge Davis is not a party. And she pointed out that her clarification order "noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law." In other words, plaintiffs' lawyers, pay attention to what the judge tells you.

Posted by Howard Wasserman on February 9, 2015 at 04:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Same-sex marriage comes to Alabama

Read the whole thing for reports and photos of same-sex marriages in Alabama (my favorite is the two African-American women posing with the white male judge who married them in Birmingham--maybe we have come some ways.. Roy Moore's Sunday gambit had mixed results; marriages are taking place throughout the state, although not in particular counties. Lawyers are preparing to file an action in federal court against the probate judge in Mobile asking for an injunction--exactly how this should play out.

[Update: Or not. The lawyers for a couple actually filed a Motion for Contempt and Immediate Relief against Judge Don Davis, probate judge in Mobile. But since Davis is not a party to the original action or subject to the original injunction, he cannot be held in contempt by this judge. All they had to do was file a new action, which would have been assigned to Judge Granade for a new preliminary injunction. This is insane.]

[One More: Marty Lederman reminds me that Judge Davis was originally a party to the case, but was dismissed with prejudice for reasons I cannot fathom, beyond, again, no one knows what they're doing here. But it is even less possible to hold in contempt a person who was explicitly dismissed from the case.]

SCOTUS this morning denied a stay in Searcy, from which Justices Thomas and Scalia dissented. In response, AG Luther Strange clarified that, while he is barred from enforcing Alabama's ban, he has no power to issue license, and that probate judges should consult their attorneys and associations.

Josh Blackman has some thoughts on Thomas's dissent. I may have more to say later.

Posted by Howard Wasserman on February 9, 2015 at 12:03 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sue Moore?

Ever looking to escalate, Alabama's Chief Justice Roy Moore has issued an Administrative Order stating:

Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with [Alabama's constitutional and statutory prohibitions on same-sex marriage].

Moore seems to be relying on the fact that no probate judge is subject to Judge Granade's order. So we probably need to read this as implicitly applying "as of Sunday, February 8," but no longer effective when probate judges start getting enjoined by federal district courts on Monday morning.

But Moore's move now has me thinking that commenters to my earlier posts had it right--Moore is the statewide officer who should be named as defendant, with an injunction ordering him to order the state's probate judges to issue licenses. Moore clearly has set himself up as the official with the power to control the enforcement of this particular state law by controlling what state probate judges do, much as California's AG could control county clerks and order them all to issue licenses. Moore concedes he is acting in an administrative capacity. And since this is not a decision arising from actual litigation, neither Younger nor Rooker-Feldman should come into play.

Posted by Howard Wasserman on February 9, 2015 at 12:08 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Sunday, February 08, 2015

Taxonomy of sleazy lawyers

In anticipation of tonight's Better Call Saul premiere, Slate offers this video taxonomy of television attorneys.

Posted by Howard Wasserman on February 8, 2015 at 07:11 PM in Culture, Howard Wasserman | Permalink | Comments (0)

More from Alabama

This article lays out the competing sides of the dispute pretty well. And it shows how complicated this may be getting and how confused many people are by this area of the law.

First, the article talks about Alabama probate judges being jailed for contempt. This would be utterly impossible--Judge Granade cannot hold in contempt anyone who was not party to the federal action, which is only the state AG. But the story then clarifies that contempt would be for violating a future order against a probate judge sued on Monday for refusing to issue a license, not for violating Judge Granade's original order. Which is right, although unlikely--at least Judge Bowden has stated that he will comply with any injunction that may issue should he be sued.

Second, someone mentions the possibility of "sanctions" against the judges, including attorney's fees. This is one of the things Judge Granade mentioned in her "clarification" order, which block-quotes from Judge Hinkle's similar clarifying order in the Florida case

Calling this a "sanction" is wrong, in that it suggests wrongdoing by the non-issuing judge for which he would be punished. Instead, fees would be a routine part of the injunction action. Under § 1988(b), a prevailing party can recover attorney's fees; this would cover a same-sex couple that sues and obtains an injunction ordering the judge to issue the license because the state SSM ban violates the Fourteenth Amendment.

But the attorney's fee question gets another layer because Alabama has vested the licensing power in judicial officers. Section 1988(b) has an exception--"in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction." This was added in 1996, along with an amendment to § 1983 which limits the availability of injunctions against a "judicial officer for an act or omission taken in such officer’s judicial capacity." The amendments together were intended to limit the effect of the Court's 1984 decision in Pulliam v. Allen, which held that absolute judicial immunity does not extend to injunctions or attorney's fees. The effect is to grant judges absolute immunity from attorney's fees to the same extent they enjoy absoulute immunity from damages--whenever they acted in a judicial capacity or performe a judicial function and did not act in the complete absence of jurisdiction.

It seems pretty clear that issuing a marriage license lacks the hallmarks of a judicial function (adversary proceedings, appellate review, formal processes) and lacks the exercise of the learned judgment that characterizes judicial decisionmaking and justifies judicial immunity. This is a purely ministerial function, such that a judge acts in an executive capacity in performing it. As such, a probate judge refusing to issue a license would not enjoy judicial immunity from an action for damages,* would not fall within the exception to § 1983 regarding injunctions against judges, and would not fall within the exception to § 1988(b) regarding attorney's fees against judges.

* A judge performing an executive function still can claim qualified immunity. And since it is not clearly established in Alabama that a ban on same-sex marriage is unconstitutional, any Alabama probate judge sued next week almost certainly would enjoy qualified immunity.

Attorney's fees play an interesting and unexpected function in a situation like this--they act as a deterrent to recalcitrant state officials. While formally not bound by the district court decision invalidating the SSM, the threat of attorney's fees puts these officials to a choice: 1) Force plaintiffs to go through the additional step of another lawsuit to obtain an (almost-certain-to-issue) injunction at the risk of having to pay fees or 2) Go along with the district court, even if not legally obligated to do so, to avoid fees. Neither option is right or wrong, but § 1988(b) puts a thumb on the scales in favor of the latter.

Posted by Howard Wasserman on February 8, 2015 at 04:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Saturday, February 07, 2015

Queued up

Ben Bowden, a probate judge in Covington County, AL, announced on Friday that, on his reading of the law, he will not issue marriage licenses to same-sex couples on Monday, when the stay of a district court injunction expires. Bowden concluded that he the district court decision and injunction invalidating the state's marriage-equality ban is not binding on him, thus he will continue to follow the state-law ban until an appropriate court directs him otherwise.

So the issue now is queued up. A couple wanting a license in Covington County can now sue Judge Bowden for an injunction compelling him to issue the license; the issue is ripe, given Bowden's announcement, and the couple will have standing. Covington County is located in the Southern District, so the case likely will be assigned to Judge Granade (most districts have a rule sending "related cases," often broadly defined, to the same judge); she will quickly issue an order reaffirming her earlier opinion that the marriage-equality ban is unconstitutional, ordering Bowden to issue the license, and refusing to stay the order. And Bowden recognized that he will be sued and insisted that he would "fully comply" with an order in a case to which he is a party.

Obviously, this is not the most efficient way of doing things. But the point is that couples will be able to get their licenses, probably on Monday, in fairly short order.

Posted by Howard Wasserman on February 7, 2015 at 04:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Thursday, February 05, 2015

Roy Moore gets it right

And without bigoted or anti-federal rhetoric.

Moore sent a memo on Tuesday to all state Probate Judges, explaining why probate judges are not bound by two recent district court decisions invalidating state marriage-equality bans. (Ed Whelan analyzes the memo at NRO). Moore makes two points, both correct: 1) The attorney general, the only defendant in both Alabama cases, is part of the executive branch while probate judges (who issue marriage licenses) are part of the judicial branch, thus the AG exercises no supervisory authority over them; and 2) federal lower-court precedent is not binding on state courts.* The memo includes an appendix analyzing how the Alabama AG came to be the sole defendant in the two Alabama cases and why he is not, in fact, the appropriate defendant in cases challenging the refusal to issue marriage licenses when (as in Alabama) that task rests with judges or court clerks.

* Citing a  recent article by FSU's Wayne Logan.

Posted by Howard Wasserman on February 5, 2015 at 10:13 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (24)

Better Call Saul

Despite my distaste for all depictions of law, lawyers, and the legal system in pop culture, I am in the anticipatory tank for Better Call Saul. Reviews are sounding pretty good. And the character is just so much fun that I probably can overlook even large mistakes. Some trailers after the jump.

So who else is in?

 

 

 

 

Posted by Howard Wasserman on February 5, 2015 at 09:31 AM in Culture, Howard Wasserman | Permalink | Comments (4)

Tuesday, February 03, 2015

Tiny windows

Julian Zelizer, a historian at Princeton, has a new book titled The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society; he did a talk on it at Politics & Prose. Zelizer's thesis is that LBJ was not the all-powerful "Master of the Senate" who could push through whatever legislation he wanted--and that LBJ recognized that fact. His period of great  legislative achievement was really just the two-year period from 1964-66, when he had overwhelming majorities in both houses and power had shifted away from conservative Southern Democrats. That ended with the 1966 mid-terms, when Southern Democrats returned to power, Republicans gained seats and were less likely to cooperate with him, making it far more difficult for him to achieve as much in the final two years of his presidency (including appoint a replacement for Warren).

This illustrates the broader point that what we think of as eras of particular legal and political achievements often are a product of a much smaller window within that broader era. So, Zelizer argues, the "Great Society" was created largely in two years of Johnson's five-year presidency, when the numbers and personnel lined up. Much less was happening during the other three years.

This matches Lucas Powe's argument about the small window for what we regard as "The Warren Court" and Justice Brennan's power as the intellectual engine of the Warren Court. While Warren was Chief for 15 years, "The Warren Court" really was a seven-year period from 1962-69, when the appointment of Goldberg provided five solid votes (Warren, Black, Douglas, Brennan, Goldberg) for most liberal or civil libertarian positions on speech, civil rights, and criminal procedure. Or, even more narrowly, it might be limited to only the two-year period beginning with Marshall's appointment in 1967, in which there were six liberal Justices and the bloc could afford one defection (by that point, it often was Black) and still maintain a majority.

Posted by Howard Wasserman on February 3, 2015 at 01:45 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, February 02, 2015

Cameras at SCOTUS, again

Lots of new stuff on cameras in SCOTUS. Dahlia Lithwick's Amicus podcast discusses them this week, interviewing Sonja West (Georgia) and RonNell Andersen Jones (BYU), who together do a great job pretty much destroying the anti-cameras arguments. The only thing they did not mention was what I think is the key response to the "people will only hear snippets" argument--people already only hear snippets, but now they read the text and hear it in Nina Totenberg's voice, rather than in Scalia's or Kagan's. John Oliver pretty well demonstrated this in his Supreme Court Dogs segment (after the jump).

Second, Justice Kagan did a Q&A appearance at University of Chicago last weekend, in which she admitted to being "very conflicted" about the issue. The same article indicates that Justice Sotomayor is hardening her position against cameras (despite saying in her confirmation hearing that she had "positive experiences" with cameras while a lower-court judge).

Kagan being "conflicted" about this will not  move the needle at all, for a reason that West and Jones discuss in their Amicus interview--the collegiality norms on the Court mean that, as long as one Justice remains strongly opposed to cameras, the rest of the Justices are never going to push the issue.

 

Posted by Howard Wasserman on February 2, 2015 at 04:38 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

The Legacy of Ruth Bader Ginsburg

Congratulations to occasional-guest Prawf Scott Dodson (Hastings) on publication of his edited volume, The Legacy of Ruth Bader Ginsburg (Cambridge), featuring a great line-up of contributors. Al Brophy has a full write-up on the book.

Posted by Howard Wasserman on February 2, 2015 at 09:31 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Sunday, February 01, 2015

Rotations

Welcome to February. And welcome to our February guest bloggers--Jennifer Bard (Texas Tech), Michael Coenen (LSU), Andrea Freeman (Hawaii), Seema Mohapatra (Barry), and John Pfaff (Fordham).

And thanks to our January guests for some great stuff--Dan Filler, Paul Gowder, Ann Marciarille, and Eugene Mazos. Some of them will be sticking around through the weekend and the early part of the month.

Posted by Howard Wasserman on February 1, 2015 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, January 30, 2015

LBJ and the Supreme Court

This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).

Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.

First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).

Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.

Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true. 

So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:

1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?

* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.

2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?

Posted by Howard Wasserman on January 30, 2015 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, January 28, 2015

If you say so

Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.

On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).

Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*

* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.

(H/T for all of this: Josh Blackman and Howard Bashman)

Posted by Howard Wasserman on January 28, 2015 at 02:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (8)

#Not all convictions

Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory. More sadly, I am not sure what would happen if you have a star quarterback who is stupid enough to record. Still more sadly, we already know what happens if the non-star is smart enough not to record.

Posted by Howard Wasserman on January 28, 2015 at 09:34 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, January 26, 2015

Epilogue: Moral Panics and Body Cameras

Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that. The editors were kind enough to publish an Epilogue, now available on Commentaries, discussing those subsequent events and how they further illustrate my points about video, body cameras, and moral panics.

Posted by Howard Wasserman on January 26, 2015 at 01:24 PM in Article Spotlight, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Submission angsting: Spring 2015

The submission window is just about to open and we await Redyip's semi-annual return-- some journals already have announced they are accepting submissions. So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Edit: To get to p.3 of comments, click here. To get to the end of comments, click here.

Posted by Howard Wasserman on January 26, 2015 at 09:31 AM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (552)

Sunday, January 25, 2015

The process of marriage equality, once again

This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.

Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they  framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.

With all that, calling everyone a bigot in a legal document is not particularly helpful.

Posted by Howard Wasserman on January 25, 2015 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, January 23, 2015

JOTWELL: Leong on Rush on geographic diversity

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Sharon E. Rush's Federalism, Diversity, Bias, and Article III (Missouri L. Rev.), which explores the role of geographic diversity in the federal judiciary.

Posted by Howard Wasserman on January 23, 2015 at 09:41 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 21, 2015

MDL consolidation and appealability

SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL. I have an opinion analysis at SCOTUSBlog. And I am happy to say I called this one.

Posted by Howard Wasserman on January 21, 2015 at 04:25 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, January 20, 2015

Joachim Prinz, American Jews, and the Civil Rights Movement

This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King). I was personally interested in the story because Prinz performed my Bar Mitzvah in 1981 at B'nai Abraham in Livingston, N.J., where he was Rabbi Emeritus. As students at the Hebrew School, we sort of knew about his involvement with King. But my friends and I were more interested in being outside playing baseball.

Posted by Howard Wasserman on January 20, 2015 at 09:52 AM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, January 19, 2015

Thurgood Marshall and the limits of the judicial role

Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible.

I want to consider a fourth option--the limits of the judicial role. Marshall spent the last thirty years of his career on the bench (with a two-year break as SG, an unusual government-attorney position that is part advocate, part court advisor, part administrative official). As such, he was less of an "advocate" for civil rights than King was or than Marshall had been earlier in his career. While he was a great liberal voice from the Court, he was no longer an advocate. And he was deciding not only civil rights cases, but cases on many other subjects--some of which were at least indirectly about civil rights and racial equality (criminal procedure), others having nothing to do with them (for example, he wrote Shaffer v. Heitner). And even in that role, Marshall was hampered by the fact that by 1971 and certainly by about 1981, he was no longer regularly in the majority on many of these issues; he was a strong voice in dissent, but he, unfortunately, was not directly shaping the law.

Finally, consider Richard Posner's suggestion that Marshall's great strength was as a trial lawyer, not as an appellate judge/justice or as SG. In other, Marshall spent the last half of a sixty-year career playing to less than his stengths, thus weakening his influence. Perhaps had Marshall remained in a different role--while continuing to have the same success in that role (and admittedly huge if)--he might have been in an even-more exalted space in the civil rights pantheon.

Posted by Howard Wasserman on January 19, 2015 at 12:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, January 18, 2015

Sponsored posts, explained

You may have noticed a recent "sponsored post" on our feed, and there were some questions from our valued readers about it. We're happy to provide some information.

We were pleased to reach a sponsorship agreement with West in spring 2014. Occasional sponsored posts, written by prominent law professors, are part of that new relationship, and have appeared intermittently since last spring.

We welcome West on Prawfsblawg. But we should make clear that West provides the content of those posts. They do not necessarily represent the views of the other writers on Prawfsblawg, although their subject matter is consistent with this blog's conversation about law schools and legal education.

If you have any questions, please feel free to contact any of the permabloggers via email.

Posted by Howard Wasserman on January 18, 2015 at 02:31 PM in Blogging, Howard Wasserman | Permalink

Wednesday, January 14, 2015

Lubet on Chronic Fatigue Syndrome

At Faculty Lounge, Steve Lubet discusses living withMyalgic Encelphalomyelitis/Chronic Fatigue Syndrome (ME/CFS), a condition with which author Laura Hillenbrand (Unbroken) also lives and which she has talked about recently.

Posted by Howard Wasserman on January 14, 2015 at 12:31 PM in Howard Wasserman | Permalink | Comments (0)

JOTWELL: Tushnet on the Junior Fed Courts Workshop

The new essay on JOTWELL's Courts Law is a guest piece from Mark Tushnet (Harvard) on the Federal Courts Junior Scholars Workshop. Mark presented his comments at JOTWELL's Fifth Anniversary Conference back in the fall. He offers some interesting thoughts about that conference and about the proliferation of junior scholars conferences.

Our own Steve Vladeck began this program all the way back in 2008 and I had the privilege and pleasure of hosting back in 2011. It really is a great program that has taken on an amazing life of its own.

Posted by Howard Wasserman on January 14, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Tuesday, January 13, 2015

Guaranteed salary and understanding the Supremacy Clause

Bills have been introduced in Texas and South Carolina attempting to prevent courts from recognizing same-sex marriages, in part by controlling salaries and funding. The Texas bill prohibits any state or local government employee from recognizing, granting, or enforcing a same-sex marriage license, with anyone who does losing her salary; a separate provision extends this to state judges. The bill also requires the court to dismiss any constitutional challenge to the law and to require plaintiffs to pay fees. The South Carolina bill is similar--no recognizing, granting, or enforcing same-sex marriage licenses, no public funds or salaries spent for doing so, required dismissal of any challenges to the law, while also specifically prohibting the use of any public funds to enforce any court order (including, presumably, a federal court order) to issue a same-sex marriage license.

Obviously, neither bill has a remote chance of passing; trying to stop marriage equality is simply a fool's errand at this point. And there are too many constitutional defects to count. But I want to highlight a couple.

First, a shout-out to the unsung Article III protection--judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Everyone focuses on life tenure as the great bulwark of judicial independence (or as a bad idea whose time has passed); there is less focus on guaranteed salary, even though, as these crazy bills show, it otherwise would be a prime target for a legislature angling to control constitutional adjudication.

Second, I have questioned Slate's Mark Joseph Stern before for the legal errors in his articles (I have no idea if he has a J.D.). Today, he argues that these bills are in "clear violation" of the Supremacy Clause by imposing a sanction on a judge who is just following federal law as declared by the Fourth Circuit (which includes South Carolina) and many, many federal district courts. But neither a federal court of appeals nor a federal district court binds a state court. A state court is free to ignore these decisions. And, at least as a matter of the Supremacy Clause, a state legislature is free to compel its courts to ignore those decisions (there may be other reasons the legislature cannot do this). So why make up reasons that are simply wrong.

Third, what would the Constitution of either state have to say, specifically about the provisions requiring state courts to dismiss challenges to these laws. During the Theresa Schiavo Controversy, the Florida Supreme Court adopted a principle very much like United States v. Klein as a matter of state separation of powers. These bills run afoul of Klein's idea that legislatures cannot tell courts how to decide cases, to the extent that principle applies to state governmental structures.

Posted by Howard Wasserman on January 13, 2015 at 05:50 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

New permaprawfs

We are pleased and excited to announce that Daniel Rodriguez (Dean at Northwestern) and Richard M. Re (UCLA) have joined us as PermaPrawfs. Richard has been on an extended guest-blogging stint here since the summer, while Dan has been a past visitor. And both have done some great solo blogging elsewhere. So they both will provide great new voices to the Prawfs community.

Posted by Howard Wasserman on January 13, 2015 at 07:41 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 12, 2015

More on rotating Chief Justices

At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.

But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?

(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief.  This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]

The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.

Posted by Howard Wasserman on January 12, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, January 05, 2015

Merging systems in the wrong direction

I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.

First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."

Posted by Howard Wasserman on January 5, 2015 at 04:51 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)