Wednesday, September 27, 2023

Is John Roberts Actually Right about the Need for a SCOTUS Ethics Code?

My new essay on Slate explains why I have regretfully begun to reconsider the value of a Supreme Court ethics code, although only because I fear that the justices who need it most would be the least likely to follow it. The headline (which I did not write) is ironic.

Here is the gist:

It Turns Out John Roberts Was Right About Supreme Court Ethics Rules

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts took it upon himself to explain that the Supreme Court, unlike every other court in the U.S., had “no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” I disagreed strongly at the time, as have many observers ever since, who have demanded that the court adopt a set of written ethics rules. But I am beginning to have my doubts. It may turn out that Roberts was right, although not for his stated reason that his colleagues are “jurists of exceptional integrity and [unquestioned] character and fitness.”

The real reason to stop hoping for a Supreme Court code of ethics is that it would probably have no meaningful effect on the justices who need it most. They would simply ignore or evade it, just as they have disregarded existing ethics legislation.

Justice Elena Kagan recently joined the call for a Supreme Court code of conduct, telling an audience at Notre Dame Law School that it would “go far in persuading other people that we were adhering to the highest standards of conduct.” I fear that comes too late. Justice Samuel Alito has already declared that he does not recognize the authority of federal ethics laws, never even acknowledging the federal courts’ Code of Conduct, while Thomas simply ignores them.

You can read the entire piece on Slate.

Posted by Steve Lubet on September 27, 2023 at 02:48 PM | Permalink | Comments (0)

Tuesday, September 26, 2023

13th Annual Junior Federal Courts Workshop

The George Washington University Law School will host the 13th Annual Junior Faculty Federal Courts Workshop on March 8-9, 2024. The workshop pairs a senior scholar with a panel of junior scholars presenting works in progress. It is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, constitutional law, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

Continue reading "13th Annual Junior Federal Courts Workshop"

Posted by Howard Wasserman on September 26, 2023 at 12:50 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Congress Isn't the Boss of Him

My new essay on The Daily Beast explains how Justice Samuel Alito made a point of breaking his written commitment to the Senate Judiciary Committee regarding the standard for recusals, going out of his way to show that Congress isn't the boss of him. Here is the gist:

On April 25, all nine justices of the U.S. Supreme Court signed a Statement on Ethics Principles and Practices, which they submitted to the Senate Judiciary Committee.

“In regard to recusal,” the justices unanimously declared that they “follow the same general principles and statutory standards as other federal judges.”

It took Justice Samuel Alito less than five months to renege on his written commitment to his colleagues and the public. In a four-page statement issued on Sept. 8, Alito declined to recuse himself from a major tax case, without a single citation, reference, or acknowledgement of either the federal recusal statute or the “general principles” that he had so recently agreed to follow.

Instead of applying statutory law or Supreme Court precedents, Alito invented an entirely new rule, never before invoked by any justice.

You can read the entire piece at The Daily Beast.

Posted by Steve Lubet on September 26, 2023 at 04:09 AM | Permalink | Comments (0)

Saturday, September 23, 2023

Legal Time Travel

When I advise students on papers involving current topics, I tell them to be aware that a new case could come out that would require them to revise their work. This will certainly be the case for the draft papers on the possible application of Section Three to Donald Trump. The Supreme Court will probably decide the issue before the papers are published.

This creates a curious situation. The Court's opinions may well cite the draft papers. But then the draft papers will be revised to cite the Court's opinion. There's nothing wrong with any of that, but there's a paradox in there somewhere.

Posted by Gerard Magliocca on September 23, 2023 at 01:41 PM | Permalink | Comments (0)

Saturday Music Post - Like a Rolling Stone

"Like a Rolling Stone" is literally a song that needs no introduction, but here is a short one nonetheless. It is beyond question one of the greatest rock songs ever recorded. Rolling Stone (the magazine) ranked it number one in both 2004 and 2010, although it fell to number four in 2021. Other rankings -- by the Guardian, Pitchfork, Uncut, and others -- have had it between first and fourth. I doubt that any serious Rock music critic would list it out of the top five of all time. Of course, these rankings are all kind of silly, given the breadth of the music and varying tastes, so please just enjoy the music.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on September 23, 2023 at 12:36 PM | Permalink | Comments (0)

Thursday, September 21, 2023

"Yes, Prime Minister" on Embezzlement

I haven't done one of these posts in a while.

DOROTHY WAINWRIGHT: What's a different way of looking at embezzlement?

SIR DESMOND GLAZEBROOK: "Usually, it's just a chap who's advanced himself a short-term, unauthorized, unsecured, temporary loan from the company's account and invested it unluckily. You know, horse falls at the first fence, that sort of thing."

Posted by Gerard Magliocca on September 21, 2023 at 01:44 PM | Permalink | Comments (0)

Maybe I'm part of the problem

With Yom Kippur upon us, it is time to confess my sins in response to Paul's post, because I am part of the problem:

Prior to COVID, I wore slacks and a tie when teaching (often a tie linked thematically to the day's class), although I wore shorts, a polo, and a quarter-zip on non-teaching days (I live in Miami, where it is hot 49 weeks a year and very warm the other three weeks).*

[*] A former student sued me a few years ago. The complaint, alleging a due process violation, included allegations about how I dressed).

When I taught online during COVID, I adopted my non-teaching outfit for the video classroom space. The shorts were out of camera and the quarter-zip-and-polo looked nice enough. I lived in Philly and taught online during fall 2020; John Fetterman was running for Lt. Governor, and, needless to say, I became a fan.

Continue reading "Maybe I'm part of the problem"

Posted by Howard Wasserman on September 21, 2023 at 10:26 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

More in memory of JoAnne Epps (Guest Post)

The following post is by my FIU colleague Kerri Stone; Kerri served as a Freedman Teaching Fellow at Temple prior to joining FIU.

I met JoAnne Epps when she was not yet President JoAnne Epps, nor Provost JoAnne Epps, nor even Dean JoAnne Epps, but Associate Dean and Professor JoAnne Epps, and I was a teaching fellow at Temple University’s Beasley School of Law. Although fellows were not eligible to be hired onto the faculty from the teaching market, JoAnne, along with others on the faculty, spent time and energy mentoring us and making sure we could handle ourselves everywhere from a classroom to an academic conference, to a faculty meeting. Because she was a generous mentor, we were the beneficiaries of her vast wisdom, advice, and stories.  We learned from her example that a law professor could be simultaneously warm and funny, but also rigorous and formidable. We all turned to her for advice countless times, and as busy as she was, she made the time for us. Having spoken to others over the years, I now know that she made everyone—her students, her most junior colleagues, and her friends, even those she hadn’t seen in years—feel like she had all the time in the world for them. That is a real gift.  I was reminded of this gift of hers again just a few years ago, when JoAnne came to Miami and made the time to visit my law school to address our faculty. I was lucky enough to be invited to lunch with her and a mutual dear friend of ours on our faculty, Professor Joelle Moreno. Sitting with the two of them, laughing and discussing our lives and careers, is something I still remember vividly. JoAnne Epps was a true mentor and friend whose graciousness and generosity one-on-one will always be her legacy alongside her tremendous accomplishments in the legal academy.

Posted by Howard Wasserman on September 21, 2023 at 07:38 AM in Teaching Law | Permalink | Comments (0)

Wednesday, September 20, 2023

Some Thoughts on the Remarkable JoAnne Epps (Guest Post)

JoAnne Epps--former faculty member, law dean, provost, and acting president at Temple--died Tuesday. The following remembrance is by my FIU colleague Joelle Moreno. If you have and would like to share remembrances or experiences with Prof. Epps, feel free to email them to me; I am happy to post a collection.

JoAnne Epps is the reason I am a law professor.

We met 30 years ago this summer. I was a new(ish) DOJ prosecutor sent to Boulder, Colorado to hone my trial skills. I’m not sure what I expected from NITA Nationals, but teaching was not a priority at my law school, and it showed. After three years of boring, self-important, pedantic performances from my own faculty, I was wholly unprepared for JoAnne.

Continue reading "Some Thoughts on the Remarkable JoAnne Epps (Guest Post)"

Posted by Howard Wasserman on September 20, 2023 at 06:49 PM in Teaching Law | Permalink | Comments (0)

Dress Codes and Dress "Code"

I was surprised that the New York Times coverage of the change in Senate dress codes did not draw a closer connection to one of its own stories, which appeared in the paper on Sunday, a couple days after Majority Leader Schumer--quietly and late on Friday, with the inevitable purpose of that timing: to bury the news--told the Senate of the change. That story appeared in the always target-rich Style section. It focused on the clothing choices of "Gen Z politicians," which it described as chock-full of Doc Martens, berets, and mismatches. As is fairly common, the sub-headline to the story drew on a passage from the story, but altered and subtly it, in a way that called attention to the story's actual meaning. The sub-headline reads, "Many of the country’s youngest elected officials hope to express authenticity through their clothing choices." The actual line in the piece is that "some [of the lawmakers interviewed] said their clothing choices reflect a priority to appear authentic."

I have added the emphasis but one hardly needs to. One doesn't need a keen eye to spot the difference between being authentic, whatever that means, and having "a priority to appear authentic." Perhaps the subhed could be rescued if one read "express authenticity" as "convey authenticity" or "perform authenticity." But I don't think that's what it was trying to convey. And what it does seem to convey is certainly not expressed in the interviews themselves, which features many clothing labels and bold assertions, little originality, and occasionally, a clearer glimpse at intentions. Thus, one lawmaker says, a little sadly and a little strategically, "I feel like there’s a direct connection between Doc Martens, and a certain style, and progressive young people." Another says, "I wear what I want to wear" and "I'm my own gal"; that turns out to mean Ann Taylor, Ralph Lauren, and Calvin Klein, but not in matching sets. And a third--again with the Doc Martens!--"has also been known to wear a black beret, a style of hat adopted by the Black Panthers, at public appearances," and says "it felt me." But it is also necessarily a costume--more specifically, an "I am invoking the Black Panthers" costume--and he acknowledges that it has become a politically useful recognition tool. Someone from an organization that supports candidates from historically marginalized groups tells the paper, "They can only be who they are....They are just unwilling to pretend in a way that is really appreciated." The story of course makes it clear that a quote like this is itself a politically useful performance of independence and authenticity. It's uniforms all the way down.

It's hard not to read this piece alongside the Senate dress code change, which has occasioned two Times stories: one is a reasonably straightforward recounting and the other is a reasonably straightforward bit of partisan propaganda and apologetics under the guise of a "Congressional Memo." The gist of that rather Internet-meme-heavy piece is that this is a bunch of "hand-wringing" by mostly Republican hypocrites--that the change raises the genuine (and to my mind interesting) question "what it means to show respect for the body in which one serves," but that the complainers live and act too awfully, in ways the column lists at length and with relish, to have any standing to object. For good measure, it raises the "how dare you worry about issue X when you could be worrying about issues A-W" objection, a favorite of social media and almost never a sound one. In fairness, if the piece is itself a bit of a performance, the people complaining in the piece are themselves performing, making a loud show of outrage for the cameras, which is why they are predominantly Republican. For their own electoral and political reasons, the Democrats would naturally complain or express concern mostly in private, and I don't doubt that some or even many have.

My own view, as an institutionalist and as one more in an endless number of people who believe in the importance of shoring up our institutions and respect for them (even if often undeserved) in a time of increasing assault on them, and perhaps increasing indifference to the idea of institutions as such, is that the change is bad and a bad idea, and that it's understandable that Schumer, who is not much of an institutionalist, did his best to do it all on the QT. For possibly the first and last time in my life, I think Rep. Marjorie Taylor Greene, despite her own manifest and multivarious failings in the fields of institutionalism and basic dignity and respect, gets it right when she says, "Dress code is one of society’s standards that set etiquette and respect for our institutions." That is correct, the messenger notwithstanding. And, of course, the leading indication that the change is neither progressive nor evolutionary is that it applies to the senators alone and not to the many officers who work hard on the Senate floor daily, or the many staffers who regularly visit the floor. (The second Times piece, once it has almost exhausted its partisan purposes, gets around to this in the last two paragraphs of the story, although even then it does its best to paint it as a typically Democratic concern, despite the fact that only one Democrat voiced it and the story otherwise paints most Democrats as being right about not objecting.) The proper description of a rule change that applies only to the members of the Senate and not to its staff is decadent and aristocratic.

I should offer two caveats, one institutionalist in nature and one personal. The first is that I am of course not opposed to changes in a dress code over time. They are inevitable, just like all institutional change, and frequently positive. Some of those interstitial changes strike me as perfectly in keeping with the idea of a respectful dress code even as they mark real changes and efforts at inclusion. Religious headgear, for instance--the newsier Times piece notes that Rep. Ilhan Omar wears a hijab in the House--is perfectly respectful, both to oneself and to the institution; it's neither sloppy nor casual as such. Other changes are no doubt subject to debate; as someone with two fused ankles who relies on comfortable footwear to avoid shuffling around like Frankenstein's monster, I am sympathetic to the appearance of "dress sneakers," but happy to let the point be argued. At any given time, probably most will converge on the view that other items, such as Sen. Cruz's sweaty gym clothes or Sen. Fetterman's hoodies and shorts, are outside the realm of current acceptability. (I would hesitate more over the latter, given his recent illnesses, but he has in fairness been performing political "authenticity" through his clothing choices for a long time.) One may be especially respectful of the fact of change given, to put it in the usual academic terms, the potentially gendered, racialized, and sexualized nature of dress codes. But one can be respectful of that fact, and welcoming of relevant changes, without either thinking erroneously and disrespectfully that any category of person rejects the idea of respectful and dignified dress, or concluding that the best response is simply to have nothing at all--let alone thinking that the best response is to have nothing at all unless you're staff.

The second note is that people sometimes talk about professorial dress codes, and if there were one I would not meet it and would probably ignore or defy it. I am still flabbergasted when I visit some law schools, especially fancy-pants (so to speak) schools, and find suits or their equivalent to be the professorial order of the day. As I've said here before, only in such a lockstep environment could Duncan Kennedy's famed leather jackets be taken as a meaningful act. I generally don't care what my colleagues wear, and especially not what my junior colleagues wear. But I wouldn't build a rule around my choices, and in any event wouldn't call what I wear "authentic"--even when I wear my own (orthotic-modified) Doc Martens. It's closer, perhaps, to a tribute to the sadly disappearing tradition of academic eccentricity, and thus also a kind of performance. Of course students, and the classroom, demand respect, and I hope I give it, in however left-handed a fashion. But the classroom is still not the United States Senate.    


Posted by Paul Horwitz on September 20, 2023 at 02:16 PM in Paul Horwitz | Permalink | Comments (0)

Section Three Symposium (Maybe Later)

A month ago I suggested that we have an online symposium here on Section Three. At that point, I was still concerned that the issue was not getting enough attention.

That's not true anymore. Thus, I don't know that there is a need for such a symposium right now. When we get closer to a Supreme Court case, though, I'll reconsider.

Posted by Gerard Magliocca on September 20, 2023 at 10:55 AM | Permalink | Comments (0)

Tuesday, September 19, 2023

Constitutional Friction

Richard Posner wrote a short book about Bill Clinton's impeachment that contained a fascinating insight. High-profile constitutional disputes share some of the attributes of war described in Carl Von Clausewitz's classic "On War." "On War" is probably the greatest unfinished work ever written (Clausewitz died in an epidemic before the work was complete) and is more philosophic than military.

One of Clausewitz's observations was that war never goes according to plan. (Mike Tyson updated this idea by saying that "Everyone has a plan until they get punched in the mouth."). Complex constitutional litigation (or interpretation) can be similar, in that the issues take on a life of their own and there are often obstacles that don't become clear until the dispute begins. (Clausewitz called this friction in war.)

Another of his points was that there are many surprising twists and turns in war. Things never move in a straight line. This is also true for complex or novel constitutional litigation or disputes. Ordinary litigation is more predictable.

Finally, Clausewitz emphasized the role that chance played in war. You can say the same for some constitutional cases, as I've discussed in some of my historical work. (Senator Robinson's death in the midst of the Court-packing fight might be one example, though people still argue about how important that random event was in defeating FDR's plan).  

Posted by Gerard Magliocca on September 19, 2023 at 01:37 PM | Permalink | Comments (0)

Mea Culpa, Admission, Advertisement, or Fashion Statement?

In the Atlantic, former American Constitution Society executive director Caroline Frederickson writes to express her regret that "[i]n my decade running the American Constitution Society, I never gave much thought to political-economic issues such as antitrust and competition policy—they were just not on our agenda," focusing instead on, inter alia, abortion, voting rights, and "demographic diversity" for judges, but not questions such as "where [they] stood on the question of corporate power." This despite the mantle of progressivism claimed by the ACS and its genealogical ties to the "progressive advances of mid-20th-century America” on questions of "political-economic arrangement[s]."

I am happy to take this as sincere (with an asterisk, if only because magazines like the Atlantic are not designed for and mostly don't rate high on deep candor). I went back and looked at the ACS's list of occasional policy briefs and other publications, including leafing through the two early ACS books that have long gathered dust on my shelves. To give it its due, it has had a couple of publications that fall more on that side of things, but in general she is right. I can't say it bothered me; I understood its focus to lie elsewhere and I don't expect every group to do every thing. But one might speculate about some of the reasons why it took that focus and, on her account, neglected economic issues. Four possible and possibly related factors occur to me, which perhaps illuminate both Frederickson's piece and the political economy, as it were, of the advocacy sector in which she has spent so many years:

1: Those issues weren't fashionable. Lina Khan was not yet out of grade school when the ACS became a national enterprise. It became a going concern when the present leaders of the Democratic Party were still relatively youthful—merely in late middle age. The issues she now wishes it had focused on more were just not au courant. It is perhaps indicative of this that the piece refers, in a very past-tense, "imagine that" way, to the fact that, way back when, "[e]ven Democrats had gotten on board with parts of the deregulatory agenda." She should know! She was Special Assistant to the President for Legislative Affairs during the Clinton Administration. There was more liberal love in her heyday, and the early days of the ACS, for cost-benefit analysis and tradeable emissions permits than there was for aggressive antitrust law. 

2: The ACS has never been a creature of the left. The issues Frederickson is now concerned to highlight are far more associated with the left than with generic liberalism as it existed roughly between 1990 and 2016. And the ACS, notwithstanding whatever casual linguistic elisions its detractors might use in referring to it, was never a left institution. It was a conventional liberal institution. To be sure, following the usages of the time, it always referred to itself as progressive; but that usage has more to do with the Dukakis-hangover-based decision to use the term "progressive" instead of "liberal" than with any sort of vigorous, old-school, Joe Hill, "Solidarity Forever" progressivism. The genealogical history she invokes in her Atlantic piece was, at least at the time, just that: history. More ACS luminaries in the first decade of the millennium would have had Fleetwood Mac or Joni Mitchell on their CD players than Billy Bragg or Fugazi. I'm not sure much more evidence of its fundamentally liberal-not-left nature is needed than the fact that even this piece lamenting its failure to be more old-school left appears in the Atlantic, which is echt-liberal and follows liberal fashions as routinely as a clock tells the time. It is natural that the group's causes embraced what was fashionable or conventional for liberals and not leftists. 

I wonder, along these lines, what legal scholars on the genuine left make of a piece like Frederickson's. What would someone who, when the ACS was getting off the ground, thought at the time that liberals neglected fundamental questions of economic power, and was busy forcefully saying so to unreceptive elite audiences (when they could secure them), make of a confession like this? What would someone who persisted in then-highly-unfashionable Critical Legal Studies views, in which liberals and soi-disant progressives were not so much allies or cousins as part of the problem itself, make of it? (Pace Samuel Moyn, incidentally, I think many of the folks who are putting "and political economy" or "political economy of" in their law review article titles these days are far closer in relation and inclination to standard-issue liberalism, or its modern and more fashionable variants, than they really are to Critical Legal Studies in any genuine sense. Certainly, to adapt a phrase from Richard Posner, many of them write left—sometimes only as long as the abstract and introduction—and live liberal. Take the very fact of the confession’s placement in the Atlantic as an exhibit, if you like.) Do they feel frustration? Exasperation? Better-late-than-never relief? Or perhaps amusement? 

3: Last-war syndrome. The introduction to the 2009 collection The Constitution in 2020, which was more or less a kind of ACS action agenda, says that "[t]he key to the future is not a return to the battles of the past." Perhaps. But most of us, being attached to our habits and not blessed with prescience, tend to fight the last war anyway, or at best the next election cycle. (Despite the Supreme Court’s shift in focus, more originalism-is-wrong papers are uploaded on SSRN in a given week than traditionalism-focused papers are published in a year.) The ACS spent most of its loudest decade fighting Bush v. Gore (including well after the case was over) and 9/11 issues and burnishing resumes for the hoped-for return of a Democratic administration. Like most groups, it talked about being forward-looking, but most of its activities and publications were firmly rooted in the issue of the day. Or even of the past: it issued more “retrospectives” on various past questions than papers aimed at the future. (In the Constitution in 2020 book itself, two chapters out of 27 focuses specifically on the kinds of issues Frederickson now foregrounds; one, by William Forbath, was more forward-looking; the other, by Frank Michelman, was arguably more of a reprise.) 

4: Follow the money. I don't mean this to refer to Frederickson, the author of the piece; I mean it more generally. Not incidentally, the author bio in Frederickson's piece identifies her as "a visiting professor at Georgetown Law and a strategic councilor on democracy and power at the Open Markets Institute." The latter, for which her piece in effect serves as a bit of PR at the mild expense of her former employer, is a 501(c)(3) that describes itself in its filing as "a team of journalists, researchers, lawyers, and advocates working together to expose and reverse the stranglehold that corporate monopolies have on our country." Such noble struggles take money, or some combination of money and prestige, the latter of which both lures more money and serves as a salary substitute. As such groups go, the Open Markets Institute seems neither highly funded nor profligate. Its Form 990 from 2021 shows gross receipts of around $2,746,000, and it does not spend outrageously on fundraising or on executive salaries; the salaries of the top three executives merely place them in the top 16 percent or so in terms of American household incomes, not including other sources of income or possible spousal income. (By contrast, the American Constitution Society gives Russ Feingold the honor of serving as its president at a cost in salary that, without counting any additional income, places him in roughly the fabled two percent. Surely that identifies it as American liberalism.) 

In the high-minded-causes sector, the necessary money comes from wealthy and ultra-wealthy donors and foundation directors who have convictions and/or the desire to show others that they have them. Even a fairly lean and economical group needs some cash. The Open Markets Institute's major donors thus include a raft of familiar names: the Knight Foundation, the Hewlett Foundation, the Lumpkin Family Foundation, the Omidyar Network Fund, and so on. (A note at the end of Frederickson's confession of regret further specifies that "[s]upport for this 'project' was provided by the William and Flora Hewlett Foundation." I added the internal set of quotes around 'project,' since I have never heard a short penitential piece in the Atlantic described by that label. The folkways of this country are still strange to me.)

I admittedly don't personally see much that is right or good about this general American ecosystem, but in more immediate and specific terms I don't see anything wrong with it; the Open Markets Institute's rather forcefully stated cause is not outlandish and, after all, officially speaking it opposes monopolies, not billionaires, gross amassed or inherited wealth, trust funds and trust fund kids, capitalism, or the outsized influence of the donor class on democratic politics. But the donor class has to be persuaded to fork over the dough for such missions. And that class follows the fashions, among other reasons for making funding decisions. The portion of that class that funds causes that are left rather than right of center is now keener to fund, and/or to be seen funding, economically oriented causes like that of the Open Market Institute than it may have been twenty years ago, when it was happier to fund socially oriented causes. The reasons, interests, self-interest, and incentives of wealthy individual and institutional donors are opaque to me. But it is not surprising, given all these reasons, that the ACS would have focused its energies on the issues it chose and not elsewhere, that its major figures would have done the same, and that the action has now, to some degree, shifted elsewhere on the gameboard. 


Posted by Paul Horwitz on September 19, 2023 at 10:33 AM in Paul Horwitz | Permalink | Comments (0)

Monday, September 18, 2023

Just to Correct the Record

I was quoted in a recent ABC News story that may give readers the impression that I am skeptical that Section Three applies to Donald Trump. This is, of course, not the case. I was merely describing some of the arguments that Trump might make in the upcoming cases. The most complete presentation of my own view is in the NPR interview that I did with Meghna Chakrabarti last Monday.  

Posted by Gerard Magliocca on September 18, 2023 at 08:49 PM | Permalink | Comments (0)

Biden v. Nebraska and Strategic Ambiguity in Judicial Rhetoric

Clarity is often thought to be the cardinal virtue of judicial writing, but judges—like all authors—sometimes make use of strategic ambiguity, too. A fascinating example appeared near the end of the Supreme Court’s most recent term. Appropriately enough, the occasion was an exchange on the propriety of disparaging rhetoric.  

Start with this passage, which appears near the end of the Chief Justice’s opinion for the Court in Biden v. Nebraska:

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. …. Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

The Chief was expressly concerned with “some recent opinions,” but he chose to make this point specifically in Nebraska. Why? The answer may partly have to do with the fact that Justice Kagan authored the dissent in that case. Like the Chief himself, Kagan is an institutionalist. And she had recently heaped collegial praise on the Chief at the Friendly Medal ceremony (see here). The Chief might therefore have expected Kagan to be especially open to a call for mutual respect.

So, how did Kagan react? Here is the key passage:

From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage[ ]” those who disagree. Ante, at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” Supra, at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante, at 25. The same is true in our own day.

My main interest is in the portion of this passage that I have underlined. What is happening in those sentences?

Continue reading "Biden v. Nebraska and Strategic Ambiguity in Judicial Rhetoric "

Posted by Richard M. Re on September 18, 2023 at 10:00 AM | Permalink | Comments (5)

Rebuffing Consent-Based Jurisdiction Over the PLO for Overseas Terrorist Acts

The following post is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western), who have been writing and blogging about consent-based jurisdiction. They covered Mallory v. Norfolk Southern Railway for us last Term. We invited them to write a series of posts in the coming days on two recent Second Circuit cases, the first to consider Mallory's scope.

Procedural and transnational scholars have an abundance of puzzles to unravel in the Second Circuit’s recent decisions holding the Fifth Amendment’s Due Process Clause prohibited the “deemed consent” provisions of the federal Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) from establishing personal jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for supporting overseas terrorist acts. The cases are the first federal circuit court decisions interpreting in depth the Supreme Court’s decision this summer in Mallory v. Norfolk Southern Railway Co., which held that Pennsylvania’s corporate registration scheme (which specifies that corporations registering to do business submit to general personal jurisdiction in Pennsylvania for any and all suits) did not violate due process. The Second Circuit’s decisions also rest on questions that have long divided scholars and courts on the transnational scope of the Fifth Amendment’s Due Process Clause and whether the PLO and PA should be afforded due process protections from the adjudicative authority of United States courts. We are grateful to Howard for giving us an opportunity for posting our thoughts and analysis in unpacking some of these issues.

Continue reading "Rebuffing Consent-Based Jurisdiction Over the PLO for Overseas Terrorist Acts"

Posted by Howard Wasserman on September 18, 2023 at 09:31 AM in Civil Procedure, Judicial Process | Permalink | Comments (0)

The 1792 Militia Act

In doing research on the Whiskey Rebellion, I learned that the 1792 Militia Act required the President to get a Supreme Court Associate Justice or a federal district judge from the circuit affected to "notify" him of an insurrection before the militia could be summoned. (Why the Chief Justice was excluded is not clear, but I don't recall how the Chief Justice's circuit duties worked under the Judiciary Act of 1789.)

This notification requirement is fascinating both from a separation-of-powers point of view and because the Act confirms the idea (expressed forcefully in the Youngstown concurrence) that the President's authority to use the military for domestic law enforcement was always seen as more circumscribed.


Posted by Gerard Magliocca on September 18, 2023 at 09:13 AM | Permalink | Comments (0)

The Alito Veto

My new essay at The Hill addresses Justice Samuel Alito’s shocking statement that federal ethics law does not apply to him.

Here is the gist:

Alito wasn’t bluffing: He believes the Supreme Court is above the law

by Steven Lubet, opinion contributor - 09/18/23

Supreme Court Justice Samuel Alito no doubt intended to shock the political world when he told interviewers for the Wall Street Journal that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”

But Alito wasn’t bluffing. His recently issued statement, declining to recuse himself in a controversial case, was issued without a single citation or reference to the controlling federal statute. Nor did he mention or adhere to the test for recusal that other justices have acknowledged in similar circumstances. It was as though he declared himself above the law.  

Alito laid down his marker in the second sentence of the statement, with a blunt declaration that “Recusal is a personal decision for each justice.” That assertion of personal choice goes well beyond the court’s “historic practice” of assigning recusal motions to the justice in question. As both the late Justice Antonin Scalia and the late Chief Justice William Rehnquist have explained, individual justices must still follow the “objective” standard found in the federal recusal statute, mandating the disqualification of any judge or justice “whose impartiality might reasonably be questioned.”  

Instead, Alito’s personal vision dominated his non-recusal statement, ignoring the statutory rule in favor of a previously unknown “sound reason” test of his own devising.

It is yet to be seen whether Alito will continue to consider stock ownership a “sound reason” for recusal, given his newly expressed disdain for the provisions of federal law. He has so far “voluntarily complied” with financial disclosure requirements, but perhaps he will eventually decide there is no “sound reason” for him to keep reporting on his stock holdings.

You can read the entire essay at The Hill.

Posted by Steve Lubet on September 18, 2023 at 08:21 AM | Permalink | Comments (0)