Monday, July 07, 2025
The Ghost of Miranda
One subject that drew a lot of attention from Birch Bayh's Senate Subcommittee was Miranda. Blockbuster hearings were held in 1966 that included testimony by Arlen Specter (then a young prosecutor in Philadelphia fresh off serving on the Warren Commission) and Truman Capote. Why Truman Capote? He was a celebrity, and that was sometimes a consideration for these hearings to get the media engaged. But as the author of In Cold Blood, he testified that confessions were needed sometimes to catch guilty criminals and that Miranda was wrong. It was an interesting perspective.
The Subcommittee also (for the only time) took its show on the road. Miranda hearings were held in Houston, Milwaukee, and other cities to give local police a change to give their views and give other Senators a chance to get attention in their states. None of these hearings led to a constitutional amendment proposal that reached the floor of Congress. Instead, Congress passed the Crime Control Act of 1968.
What are some of the lessons here? One is that constitutional issues can be huge and then disappear. Nobody in politics cares about Miranda now. To be sure, Miranda was narrowed by subsequent decisions. But a more important factor is that police departments and ordinary folks just got used to Miranda warnings over time and concluded that they were not such a big deal. The Supreme Court confirmed this consensus in the Dickerson case in 2000.
Another lesson is that Warren Court decisions were often subjected to careful scrutiny by Congress through the Bayh Subcommittee. Sometimes this review served as a safety valve for criticism of a decision. Sometimes there were reform proposals that led to action short of a constitutional amendment. Sometimes ideas were developed that could be deployed in fresh litigation. The Bayh Subcommittee was in dialogue with the Warren Court on other issues such as school prayer and legislative reapportionment. I'll elaborate on this in another post, as it will probably be a theme of my book.
Finally, maybe Congress should hold more hearings outside of Washington. Show the flag, you might say.
Posted by Gerard Magliocca on July 7, 2025 at 07:59 AM | Permalink | Comments (0)
Sunday, July 06, 2025
A Dual Track for Article Five Amendments
I spent much of last week in the Birch Bayh Archives researching my next article and book. Over the next few weeks, I'm going to talk what I found there and reflect on some themes as I start sifting the material.
Let's begin with a little nugget. When the Direct Election Amendment was under consideration in 1969 to abolish the Electoral College, language was drafted in the Senate Subcommittee on Constitutional Amendments providing for a three-year time limit for ratification by state legislatures. But then the draft said that if the proposal was not ratified by enough legislatures within three years, Congress could submit the proposal to state conventions and they would have four years to get their own three-fourths tally ratify.
This was a clever idea. You still have what is now the standard seven-year time limit. But the proposal gets two separate bites at the apple. If the proposal was not overwhelmingly popular, the convention option can kick in to provide for fresh and focused elections on what would be a more difficult or controversial issue in at least some states. But only if Congress triggers that machinery--perhaps a future Congress would not be keen or would see the handwriting on the wall.
Maybe this suggestion was too clever or complicated to be put into the final draft --I'm not sure yet when it didn't make the cut. One thing I am sure of is that this sort of proposal would be constitutional under Congress's Article V powers and precedents.
Posted by Gerard Magliocca on July 6, 2025 at 07:20 AM | Permalink | Comments (0)
Saturday, July 05, 2025
Was a University of Illinois Architecture Professor Denied Tenure because He Is a Zionist? UPDATED
Moving to the front with the correct link.
So submits my friend and co-author Cary Nelson, emeritus professor at UIUC and former president of the AAUP, in the case of Dr. Benjamin Bross. Writing on behalf of Faculty for Academic Freedom and against Antisemitism:
Other than Dr. Bross having published several more essays and having received enthusiastic reviews of his teaching, the only other notable feature in his tenure profile came in the wake of Hamas’s October 7, 2023, assault. Bross, who had kept quiet about his Zionist sympathies, now made them public. Before October 2023, Bross received a glowing third-year evaluation, a nomination for a scholarly prize, and an invitation by his school’s director to write a second book; in 2024, his tenure review committee suddenly went against the department’s prior endorsements of Bross and recommended denying him tenure through a one-sentence notice that his publications and teaching were inadequate. Meanwhile, other faculty were expressing their rage at Israel’s conduct of the war in Gaza.
Now procedural negligence gave committed anti-Zionists an opportunity to act: first, when they were appointed to a Zionist’s tenure review committee and apparently saw no cause to recuse themselves; second, when they recommended outside reviewers instead of the senior faculty member in the candidate’s field of urban studies (as the School of Architecture requires); and third, when it came to an up-or-down vote on tenure.
As the letters attest, one of Benjamin Bross’s tenure review committee members apparently expressly told another person in the program that Dr. Bross’s Zionism was unacceptable.
Another one of Bross's tenure review committee members signed a “Call for Immediate Action” letter tht condemned Israel for its role i the current Gaza war. In any case, the UI rules are clear:"Any faculty member with a conflict of interest, or the appearance of a conrflict of interest, should not participte (e.g., review, evaluate, advoacte, or vote) in a candadte's promotion and tenure review."
You can read the entire article here.
Posted by Steve Lubet on July 5, 2025 at 03:15 PM | Permalink | Comments (0)
Saturday Music Post - Stayin' Alive
"Stayin' Alive" was written by the Gibb brothers for the 1978 movie Saturday Night Fever, for which it was kinda perfect even for those of us (including me) who never liked disco (looking at you, Alex). It wasn't nominated for an Oscar that year -- maybe the Academy also disdained disco -- but it won four Grammys in 1979. In 2004 was listed by Rolling Stone as number 189 of the 500 Greatest Songs of All Time. In a 2021 update, it was ranked 99, which is pretty strange for a song that was released 43 years earlier. I have no idea what happened to the 90 songs it jumped, not to mention all the new music recorded in the 17 year interim. Unsurprisingly, most of the covers are by female vocalists, and they are not all disco.
Anyhow, I figured it wouldn't hurt include one disco number after all these years. The iconic Travolta clip is at the bottom of today's post at The Faculty Lounge.
Posted by Steve Lubet on July 5, 2025 at 06:37 AM | Permalink | Comments (0)
Friday, July 04, 2025
Happy 4th
Trapped at home during COVID summer (2020), we marked the holiday with a family reading of the Declaration of Independence, along with Frederick Douglas's "What to the Slave is the 4th of July," as read by James Earl Jones (of course). It became a mini family tradition. Join us after the jump, hopefully not for the last time.
Posted by Howard Wasserman on July 4, 2025 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)
Thursday, July 03, 2025
Speed dial
I am not a fan of Justice Sotomayor's writing, even when I agree on the substance--it comes across as over-wrought without being lyrical. But check out the final line of her dissent from the Court's "clarification" of the third-country removal order--"Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial." That's a great line.
In the wake of Justice Kavanaugh's CASA concurrence, this order shows the majority's palpable contempt for district judges.* Not just SCOTUS supremacy, but contempt. They proceed as if the district court decision--and, more importantly, the remedy it grants and the monitoring of that remedy--is less than a full order of a court of competent jurisdiction that parties (or at least the government) must obey subject to appellate review. District court decisions are preliminary pronouncements, an inconvenient-and-inefficient, unfortunately necessary speedbump on the way to SCOTUS' meaningful ruling. And the executive need not obey or respect them as anything more than a preliminary recommendation. Worse, the Court seems increasingly likely to reject that "recommendation."
[*] Not a new phenomenon. Recall Justice Scalia in the Iqbal argument:
Well, I mean, that's ovely, that -- that the -- the ability of the Attorney General and Director of the FBI to -- to do their jobs without having to litigate personal liability is dependent upon the discretionary decision of a single district judge.
The latest episode of Preet Bharar's Stay Tuned With Preet features Melissa Murray, Trevor Morrison, and Jack Goldsmith. In discussing CASA, either Trevor or Jack (can't remember who) argues that SCOTUS wanted to get the Administration off the backs of district courts, to tamp down on the accusations of lawless judges. Perhaps. But the Court seems to be offering the Administration reasons to not take trial courts and their orders seriously or treat them as worthy of respect in the interim.
Posted by Howard Wasserman on July 3, 2025 at 07:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Why Ever Bother Calling a Trump Regime Press Office?
It's been a remarkable week for the press. In a week in which the president's corruption* and authoritarianism were displayed, inter alia, in a letter from his personal lawyer threatening to sue CNN and the New York Times for defamation for accurate reporting on intelligence reports concerning the United States airstrike on Iran--a letter that was rightly met with the response, "No retraction is needed. No apology is forthcoming."--here's another item in the annals of Trump regime contempt for both transparency and the role of the press in investigating and reporting on government. Granted, it involves an insane person, but insanity is no disqualification for high office in this regime.
The lunatic in question this time is Director of National Intelligence Tulsi Gabbard, who wrote on the regime's de-facto official channel to complain that a Washington Post reporter had engaged in what she called "harassment" of ODNI staff. Gabbard said: "Instead of reaching out to my press office, she is calling high level Intelligence Officers from a burner phone, refusing to identify herself, lying about the fact that she works for the Washington Post, and then demanding they share sensitive information." I assume Gabbard is lying or engaging in subterfuge about the last three items on her bill of particulars and did not conceal her identity from the individuals she spoke to. And I'm not sure what relevance the use of a burner phone has, except that acting under the assumption that your government wants to investigate or persecute you is good journalistic practice under this regime (and has been a good idea under other administrations too, at least in the national security area).
But I'm struck by that phrase, "Instead of reaching out to my press office." Press or communications offices can be a good thing and good press people can be useful, honest brokers. Frequently, they are also experienced and expert about the subject matter of the agency or company whose media relations they handle. But of course they are there for efficiency and transparency, not because there is some kind of rule or expectation that you should always turn to them first. If your question is for the Department of Homeland Security's Director for Crisis and Weather Management, and you have that person's phone or office number, that's who you call or visit. Whether that person wants to tell you to talk to go to the press office instead is their business, not yours. And if you're not sure who to call, or are doing a more comprehensive piece, and you have a list of 200 employees, you call all 200 people on that list. This is called reporting, not harassment. As the Post's executive editor said today: "Reaching out to potential sources rather than relying solely on official government press statements regarding matters of public interest is neither nefarious nor is it harassment. It is basic journalism." Indeed, it's the kind of journalism we always need more of, and precisely why Substack pages or skimming through Twitter feeds are no substitute for heavily staffed pressrooms.
It is not administration-specific that good reporting requires more than simply going to the press office with one's hand out. But it's especially true given the staffing of this regime. In any administration, the good practice would be to make the best possible use of the press office and also try to find and communicate directly with sources. But the question one must ask about this regime is: Why would one bother to talk to a Trump regime press office at all? Its press practices, and the staffing of its press offices, have been remarkably consistent across agencies. It is a customary joke or assumption that all press people lie. But lying is quite literally not incidental to but the primary job of press offices under Trump v. 2, and they undertake it with both energy and determination.
Beyond this, the press people in the current regime are unreliable not only because of a constitutional propensity to lie, but because they simply lack the expertise and experience that actually makes someone in a press office at a specialized agency valuable. ODNI is a good example. During the Obama administration, the spokesperson for the office had previously spent two decades in the Marine Corps and did media relations there and elsewhere before taking the job. The DNI press person during most of the first Trump administration spent ten years working in that office before taking on the communications director role. The person in that role during the Biden administration served in the Navy, then as a civilian in the National Counterterrorism Center, ODNI, and the CIA before coming back to the communications role at ODNI. The person Gabbard thinks reporters should go to, first and probably last, for information about complex matters of national security graduated from college in 2020, has been flacking on the Hill ever since, and has no background in intelligence or national security.
This is not a personal insult; I don't have that background either. But clearly she is not qualified to do the job, if that job involves something other than bullshitting. This is entirely characteristic of virtually all of the regime's press hires. Of course, more generally it's characteristic of the regime's appointments altogether. From the man in the Oval Office all the way down, the staffing of the regime looks as though, some 40 years ago, Donald Trump ran across the phrase "Peter Principle" in a copy of Forbes and assumed the article was recommending it as good management practice. In short, not only is there no good reason to go to the ODNI press office first, but there is little reason for a reporter who knows much more about the subject than the agency's spokesperson does to go there at all. And the same is true across the whole branch.
*Why corruption, in this context? Because it's not some claim that the journalists violated national security law, but a personal lawsuit brought by Trump's private lawyer. (How, exactly, that lawyer has the information or security clearance necessary to make some of the claims he makes in the letter, except as mere flourishes, is beyond me. But this is not a regime that takes management of confidential information especially seriously.) And that lawsuit can be yet another ring on the cash register, especially with respect to a company like CNN, if you have someone around who is servile and/or unscrupulous enough to use his office as leverage.
Posted by Paul Horwitz on July 3, 2025 at 04:55 PM in Paul Horwitz | Permalink | Comments (0)
Title VI action v. Haverford College dismissed
Here, this time with prejudice, because plaintiffs largely failed to clean-up the press-release pleading the court dismissed in January. There also is this line at the end of the opinion--"Oral argument was suffused with emotional rhetoric, giving this Court little comfort in the prospect for further refinement of facts adequate to support a claim," a strong warning about the perils of performative litigation.
The court's analysis reflects the Ben Eidelson/Deborah Hellman arguments about why plaintiffs may struggle to plead Title VI claims. In particular, the court held a firm line that: 1) the college's failure to silence offensive-but-constitutionally protected speech (which was true for much of the speech at issue) cannot form the basis for Title VI liability and 2) the college's good-faith efforts to balance competing interests (such as allowing a sit-in to run its course) cannot establish deliberate indifference.
The court did find the plaintiffs sufficiently pleaded a breach-of-contract claim based on Haverford's alleged failure to investigate and resolve bias allegations under college policy, although only for nominal damages. Two thoughts on this. First, it shows the benefits of small-bore litigation efforts. Rather than a massive effort to litigate antisemitism writ large under a statute not necessarily designed for those purposes, plaintiffs may succeed by showing a discrete non-federal violation as to them.
Second, plaintiffs face a strategic choice. They likely want to appeal the Title VI dismissal. But the court's decision is not final because the contract claim remains. The court might certify the order as final as to the Title VI claims under FRCP 54(b). They have a good argument--Title VI forms the heart of the case and it would benefit the litigation process to determine whether plaintiffs plausibly pleaded those claims (that is, whether the district court was wrong) now, rather than waiting. Alternatively, plaintiffs could voluntarily dismiss the contract claims--which they likely do not want to do, as those represent their best hope for any recovery right now. Interestingly, the court did not (at least in this order) decline supplemental jurisdiction over that state claim, another way of creating finality.
Posted by Howard Wasserman on July 3, 2025 at 11:23 AM in Civil Procedure, Howard Wasserman, Judicial Process, Religion | Permalink | Comments (0)
Trump plays procedural games, wins procedural prizes (Updated Twice)
Donald Trump voluntarily dismissed his BS lawsuit against the DesMoines Register and pollster Ann Selzer over her erroneous final-weekend poll that showed Kamala Harris winning Iowa. Some people are using this as another TACO and "See, we must fight Trump" moment. Turns out it is more procedural.
Trump sued Selzer, her company, and the Register in state court. I had not paid much attention because the suit is nonsense and the Register and Selzer (represented by FIRE) seemed ready to litigate a strong First Amendment position
I also assumed it would stay in state court because Selzer and her company are Iowa citizens. But they snap-removed. Trump then filed an amended complaint adding two Iowa politicians as plaintiffs (destroying diversity) and moved to remand. Last month (I missed this), the court denied the motion. First, the court held snap removal is permissible. Second, the court denied leave to amend the complaint to add the non-diverse plaintiffs. Although Trump filed the amended complaint within the matter-of-course time period of FRCP 15(a)(1)(B), under circuit precedent (and Wright & Miller) a plaintiff must seek leave when adding a new party, especially when adding the party destroys diversity jurisdiction. Leave to amend was improper because the new plaintiffs are no indispensable and were added for the explicit purpose of destroying jurisdiction and Trump will not be prejudiced by having to litigate alone. With the Iowa plaintiffs not in the case, jurisdiction remained and the court had no basis to remand.
So I imagine Trump dismissed this action with plans to refile in a different state court with the Iowans as plaintiffs. Then some things to watch: 1) How quickly can they serve Selzer and the company to preclude another snap removal; 2) Selzer may remove and try to argue that the Iowa plaintiffs are fraudulently joined; 3) Is there some other basis on which to stop this type of gamesmanship?
Update: Later Monday, the Register moved to strike the Notice of Dismissal. First, a petition to appeal the denial of remand is pending in the Eighth Circuit (the district certified the snap-removal issue as a controlling issue of law). Second, Trump seeks to dismiss the federal action to pursue the same case (with the two Iowa plaintiffs added) in a different court (Trump filed that new lawsuit in Iowa state court Monday). The combination raises two problems. A party cannot voluntarily dismiss through FRCP 41 if an appeal, including a still-unresolved request to appeal, is pending. And the combination of issues reflects Trump's effort to voluntarily dismiss to avoid an adverse ruling (possible affirmance of the remand issue) and to obtain a more favorable forum, both grounds for a court to reject voluntary dismissal.
According to the Register, timing matters. Iowa enacted an anti-SLAPP statute that takes effect on Tuesday but that does not apply retroactively. Trump made these moves now to get out of federal court and have the sole action in state court filed before the SLAPP statute takes effect.
Stay tuned.
Updated Again (July 3): The district court struck the notice of voluntary dismissal and declined to dismiss the action. Because an aspect of the case is in the court of appeals, the district court cannot dismiss the action unless Trump takes steps to have the appeal dismissed, which he has not done.
This seems a momentary blip. Trump will seek to have the appeal dismissed, then refile his voluntary dismissal. While Trump is clearly trying to forum shop, I would be surprised if the federal court continues to resist dismissal.
But things might get fun if the trial court refuses to dismiss. Trump might then ask the federal court to abstain under Colorado River, although I doubt a federal court that refuses to voluntary dismiss would exercise discretion to abstain. That leaves us with parallel litigation and a race to the finish--whether with Trump as party to both actions or the state court action featuring only the Iowa plaintiffs (assuming they want to pursue litigation and are not in the case to destroy complete diversity). The defendants also might try to remove the new state court action and argue that the Iowa plaintiffs are fraudulently joined (which did not come up on the remand motion).
Again, stay tuned.
Posted by Howard Wasserman on July 3, 2025 at 10:01 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Wednesday, July 02, 2025
Zombie laws and Dobbs
Dobbs created the perfect laboratory for zombie laws. Many states had 19th-century bans or near-bans that were obviously unenforceable (in some states enforcement had been enjoined; in others officials knew they could not enforce these laws and so did not try). Post-Roe, states enacted new laws regulating abortion--prohibiting it in narrower circumstances; regulating health-care providers; and regulating funding. Post-Roe, that ban is enforceable, so long as it remains on the state-law books. The question becomes whether the post-Roe legislation impliedly repealed the stricter pre-Roe legislation.
The Fifth Circuit considered this in 2023 as to Texas law but made a big mess. A divided Wisconsin Supreme Court took a cleaner and more direct path, holding that 50 years of "comprehensive legislation about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions" so "thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion."
I will take one contrarian position among liberals--my distastee for Chief Justice Karovsky's concurring opinion (which reflects many of the questions she asked during argument in the case). She traces the history of abortion regulation, tells stories of women affected by abortion bans, and highlights how horrible it would be if Wisconsin's pre-Roe law were in effect and enforceable. Her conclusion:
I tell the stories of Amber, Candi, Josseli, and my great-grandmother Julia to remind us that severe abortion restrictions operate like death warrants. Under such restrictions women, children, and pregnant people are denied life-saving medical care while medical professionals are forced to sit idly at their bedsides, unable to do their jobs. Extreme abortion restrictions revive a time in our history driven by misogyny and racism, divorced from medical science; it is a world that must be left behind.
All true. And all beside the point. If the legislature did not impliedly repeal this law, Dobbs de-zombified it, and it is enforceable, regardless of how bad it is as policy (unless those ills mean it violates some other provision of the state or U.S. Constitution) If the legislature impliedly repealed, the law is off the books and no zombie has been revived. The answer to that question does not and cannot turn on the law's bad effects or its stupidity and horror as public policy.
Posted by Howard Wasserman on July 2, 2025 at 12:41 PM | Permalink | Comments (0)
At least residents of Oświęcim, Poland pretended they didn't know
Maybe those shouting that Zohran Mandami is a dangerous and unreconstructed antisemite will buy some merch when Trump follows through on his threats to send him there.
Posted by Howard Wasserman on July 2, 2025 at 11:24 AM in Howard Wasserman | Permalink | Comments (0)
Until Paramount seized the trophy . . . (Updated)
It appears that institutions will stick together in response to Trump authoritarianism. Not by joining together in collective resistance, as one would hope. But by individually capitulating, thereby providing cover to the next institution to capitulate.
Yesterday was Penn. Today it is Paramount and CBS, which settled Trump's lawsuit arising from the "60 Minutes" interview with Kamala Harris. Paramount will pay $ 16 million to the Trump Presidential Library and agreed to release transcripts of future interviews with presidential candidates (which seems problematic as a free-speech matter), but will not issue an apology to Trump and the public.
Which is worse? I believe Penn takes the prize because of the targeted and personal nature of of the investigation and the settlement--it agreed to publicly hurt one person. But Paramount/CBS may have broader legal and political consequences.
Everyone knows CBS settled so the Trump Administration will approve the pending sale of parent company Paramount, making this look like a cash bribe.* While any Title IX action against Penn was open-but-winnable (it is not clear that Title IX prohibits trans-women from sports and certainly was not the case in 2021), Trump's case (asserting consumer-protection claims from media reporting and emotional-distress injuries) was frivolous as a matter of state law, before even getting to the First Amendment problems (which Bob Bauer highlights). And this (along with Disney's similar $ 16-million settlement of a suit over ABC News reporting) has set the market and incentivizes the Trump to repeat the play in the future.
[*] California and other Blue States have suggested opening bribery investigations. The Freedom of the Press Foundation has threatened a shareholder derivative suit.
CBS and the rest of the media are circling the wagons and pushing two narratives to make its move seem less craven. First is "let's move on," in a way that ignores future risks. Some within CBS news say it is good to put this behind them, while CBS News President Tom Cibrowski said it was important to block out the noise and move forward reporting the news. But that suggests they cannot and will not happen again the next time they report news that Trump does not like. Daily events show the likelihood this will happen again--he already has threatened outlets over reporting that bombing did not "obliterate"Iran nuclear program. Maybe Shari Redstone will have completed the sale and no longer will care. The rest of the journalism world should.
Cibrowski emphasized the no-apology piece of the settlement to suggest that CBS had not lost. But then we get this from Trump's legal team:
"With this record settlement, President Donald J. Trump delivers another win for the American people as he, once again, holds the Fake News media accountable for their wrongdoing and deceit," the spokesman said. "CBS and Paramount Global realized the strength of this historic case and had no choice but to settle. President Trump will always ensure that no one gets away with lying to the American People as he continues on his singular mission to Make America Great Again."
The second narrative is "most cases settle" (CNN's Laura Coates called it Paramount's "prerogative"), in a way that misrepresents what settlement entails, why this case settled, and what it means for journalism. Recall that pre-1960, the New York Times adhered to a no-settlement policy--it was willing to fight defamation actions on less-favorable legal terrain, accept any losses as the cost of doing the public-facing business of journalism, and never face the kind of "they settled because our case was so powerful" demagoguery of the Trump statement. When Southern officials pursued a defamation-litigation campaign over coverage of the Civil Rights Movement and sought judgments in the hundreds of millions, that strategy ceased to be tenable. Sullivan and its progeny reworked that legal terrain, making it more favorable to speakers and media defendants. Media outlets therefore could return to that no-settle strategy; the new legal regime better enabled them to prevail on the merits or take the cost of the rare loss. That legal terrain ensured (or at least made highly likely) that Paramount would have prevailed in Trump's lawsuit. Yet it voluntarily surrendered that strong legal position to secure its private corporate interests, the First Amendment and journalism be damned.
Update: Bauer writes that this is a project for law reform, although I cannot see what law reforms would solve this problem. Paramount had an arsenal of legal weapons and chose not to wield them. So did Disney/ABC. What additional weapons would have prompted these companies to litigate rather than fold? Many push for a federal SLAPP statute, although I do not believe that adds much that Twiqbal and Celotex do not provide. I would like to see a fee-shifting statute (or application of state fee-shifting in federal court). Again, however, if the driving factor is not the financial cost of litigation but the desire to stay in Trump's graces, these protections will not change media behavior. What other reforms would?
Posted by Howard Wasserman on July 2, 2025 at 11:05 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Tuesday, July 01, 2025
Penn wins the trophy for caving
When the story of institutional cravenness in this dark period is written, University of Pennsylvania will live in the Ninth Circle of Hell. Penn was the first to cut its leader loose for attempting to accurately explain free speech to demagogues. Today, Penn caved in a winnable Title IX investigation arising from the 2021 swim season in which trans woman Lia Thomas competed set records for the school (when everyone understood NCAA rules and Title IX to allow this). Here is the DOE announcement, which is as rhetorically repulsive as one would expect; here is the Penn statement, which is as dishonestly anodyne as one would expect.
Make no mistake from the vague and self-exonerative language: Penn's price is the targeted, ritual, public humiliation of one known-and-named alumna. "We will review and update the Penn women’s swimming records set during that season to indicate who would now hold the records under current eligibility guidelines" means that the name of one person will be stripped from record books for doing nothing wrong other than living her gender identity (at a time when that was legal). We "will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time" means apologizing to people because they had to deal with one known-and-named alumna.
The Trump Administration has targeted vulnerable groups in various ways--immigrants, trans people, poor people, Muslims. This goes beyond that to target and hurt one person, by name.
Penn can claim that it "remains committed to fostering a community that is welcoming, inclusive, and open to all students, faculty, and staff." Cashiering an alumna who did nothing wrong but seek to compete and win for the school's benefit reveals the lie in that commitment. Trans sports participation is a "complex issue." Publicly embarrassing one person to save yourself the cost of a winnable fight is not a complex issue.
Posted by Howard Wasserman on July 1, 2025 at 06:08 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Guido's New Article
The Proper Role of Equality in Constitutional Adjudication: The Cathedral's Missing Buttress is now out in YLJ. Here is the Abstract:
The most difficult and divisive issue in American constitutional law is how to deal with fundamental rights that are not specifically protected in the Constitution. At times, courts have afforded such rights near-absolute protection against infringement. At other times, courts have declined to provide such rights any constitutional protection. Both approaches are misguided. Instead, as argued by Justices Antonin Scalia and Robert H. Jackson, and Professor John Hart Ely, laws infringing these rights should be invalidated if they burden only some in society while leaving the rights of the enacting majority unimpeded.
This Feature begins by describing the two sorts of protections the Constitution affords to enumerated fundamental rights. Some rights are given full “libertarian” protection, with any infringement subject to close scrutiny. But others, such as the right to property, receive only “egalitarian” protection. Private property may be taken for public use so long as all of society is burdened by the requirement that compensation be provided.
This Feature argues that the Constitution should be read to extend similar egalitarian protections to any number of unenumerated fundamental rights. Encumbrances on these rights run afoul of the Constitution’s egalitarian guarantees if the burdens they impose are unequal. Protection of such rights is not available under the current reading of the Equal Protection Clause because violations of these rights are often not the result of discriminatory intent but rather the enacting majority’s desire to achieve results it deems good without bearing their costs.
This Feature seeks to return the Constitution’s egalitarian guarantees to the purpose contemplated by the Framers. It argues that a law violates these egalitarian protections if a law infringes unequally and substantially the fundamental rights of individuals not positively affiliated with the majority. It outlines factors in evaluating proper judicial remedies for impermissibly unequal laws. And it provides the doctrinal constitutional bases for such judicial action.
Posted by Gerard Magliocca on July 1, 2025 at 04:59 PM | Permalink | Comments (0)
Dear Leader: Yes, I Totally Support Everything You Do, and Ed Martin is a Fine Man
I wanted to lay down a marker, just in case, so please take the headline as an accurate summation of my views. For the record.
The reason for the desire to clarify my natural admiration is this memo from AAG Brett Shumate to the DOJ's Civil Division, stating the policy priorities to be pursued by the division. One of the five items on the list: "Prioritizing Denaturalization." It leads with examples of attractive cases: "The benefits of civil denaturalization include the government’s ability to revoke the citizenship of individuals who engaged in the commission of war crimes,..." But keep that word "include" in mind. Its categories of "priorities for denaturalization cases" likewise leads with the big guns. But it also includes, inter alia, "individuals who engaged in fraud against private individuals, funds, or corporations." Now, I don't think I've done so or been accused of doing so, let alone found liable. But would this not include, at the division's discretion, say, plain-vanilla civil suits for fraud? And does it actually require a negative verdict? Or even a lawsuit? Do I need to go back over the history of my Columbia Record Club membership just to be safe? And it contains two further high-priority categories, both of which are we'll-think-of-something catchalls: "Cases referred by a United States Attorney’s Office or [not "and"] in connection with pending criminal charges, if those charges do not fit within one of the other priorities," and "Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue." That is placing an awful lot of faith in the care, integrity, and goodwill of an awful lot of people.
Of course the focus here is on people like Mamdani or Musk. Undermining the standard argumentative disclaimer that the rantings of individual morons should not be used to tar a whole party, it would appear that Trump actually paid some attention to the urgings of congressman and remarkably frequent liar Andy Ogles about Mamdani, for instance. (See index for multiple references to "Saying, a lot of people are.") But these are prominent individuals. And denaturalization is still tied to the statutory foundation of illegally procuring naturalization or concealment of a material fact or willful misrepresentation. I certainly answered questions honestly on my citizenship application form!
On the other hand, such a wide sweep of discretion, connected to triggers like being referred to the division by no one in particular, might make one go back and look extra carefully at those forms. And the form contains a fair number of catchalls, spread over multiple iterations of the application form whose language has waxed and waned. Are you, like me, a former Canadian? If the president ever decides to push more vigorously on the notion that the United States should use economic force--at least, limiting it to economic force is his current position--to absorb Canada as a single state, something that could happen at 2 a.m. on any given morning on Truth Social, will you be at all inclined to question his judgment? Proceed with caution. Are you a reasonably prominent former Canadian who, say, has been a vigorous proponent of the stripping of nonimmigrant visas, but is still willing to rashly criticize the regime for "blunderbuss tactics" in related areas, or to question the merits or coherence of Trump's tariffs approach? Did you support regime change in Iraq or Afghanistan back in the day? Did it not occur to you to check "yes" to the question, on older forms, "Have you EVER advocated (either directly or indirectly) the overthrow of any government by force or violence?" I would personally consider such an oversight utterly innocent. Still: Double-check your form. Or just make sure not to say anything too critical of any errors or excesses--incidental, I'm sure!--by the Justice Department, the President, the regime, or, I guess, just about any of the wrong people.
Or just hope for the best. After all, there are only some 25 million naturalized American citizens. They can't all say the wrong thing, right? And even if they do, surely their naturalization won't be wielded against them for purely political reasons. Nevertheless, I want to make one thing utterly clear: I think we're in good hands. And the White House renovations have been fabulous.
Posted by Paul Horwitz on July 1, 2025 at 04:48 PM in Paul Horwitz | Permalink | Comments (0)
Happy Canada Day
Now more than ever.
Posted by Steve Lubet on July 1, 2025 at 02:07 PM | Permalink | Comments (0)
Merits and non-universality
Eric Berger (Nebraska) at Dorf on Law criticizes the Court in CASA. His critique includes this:
As the dissent points out, the Court's rejection of the universal injunction is especially bizarre in this case, given that the Executive Order is blatantly unconstitutional under just about every constitutional modality. As a matter of constitutional text, precedent, history, and longstanding practice, this is an unusually easy case (or, at least, seems to be--more on that below). The government argues that undocumented migrants are "not subject to the jurisdiction" of the United States, but the Court already rejected that argument in United States v. Wong Kim Ark. The Court, of course, could overrule Wong Kim Ark, but, in the absence of a massive change in constitutional law, it is strange that the Court would find overbroad a lower court injunction that merely says the government cannot do something that the Supreme Court has already said the government cannot do. It is even odder that the Court does not adequately address this argument.
Phrased differently, even though nationwide injunctions can often be very problematic (a point the dissent shortchanges), the Court fails to explain why such a remedy is inappropriate in this case where the President has unilaterally tried to override clear statements from both Congress (the Nationality Act of 1940) and the judiciary (Wong Kim Ark)on a point of law that has been settled for well over a century. In this respect, the Court's decision mistakenly treated this as a normal executive order, when it was anything but.
But that should not matter. The limits on courts' remedial powers--from Article III, the 1789 Act, or some other source--mean courts cannot enjoin all enforcement of a law that the court finds constitutionally invalid. It should not matter how obviously invalid the law is or how close the merits question is; it should not matter whether the court applied century-old precedent on all fours with the challenged law or decided a question of first impression in the absence of any authority and by resort to first principles. Once the law has been declared invalid, it is (pending appellate review) invalid--degree does not matter. The question then turns to remedy to stop enforcement of that invalid law, which is where the limits on universality kick-in. And no court or scholar has suggested prior to CASA that the degree of invalidity should be a factor in the scope-of-relief question.
I am perhaps too much of a deparmentalist for my own good. But the notion that this EO is not a "normal" order because it contradicts Congress and SCOTUS precedent may combine with the SG's concession about following SCOTUS precedent to create some mischief. What can an executive do to challenge and get SCOTUS to overrule precedent? Suppose Trump had a good-faith argument that birthright citizenship is not required? Or suppose a Democratic president wants the Court to overrule Shelby County and allow pre-clearance. The only way to do that is to create litigation by enforcing some law, regulation, or EO contrary to precedent and create the litigation vehicle to make those arguments. But that runs contrary to the SG's concession (unless that concession applies only to interim decisions during litigation). And it would subject the executive to broader remedies for the efforts.
Posted by Howard Wasserman on July 1, 2025 at 11:28 AM | Permalink | Comments (0)
Monday, June 30, 2025
History of § 1983
Finally had a chance to read Medina v. Planned Parenthood, holding that Medicaid's free-choice-of-provider provision is not enforceable through a § 1983 action. The upshot is that Red states can block Planned Parenthood from Medicaid funds.
Justice Thomas writes a concurrence arguing that § 1983 has expanded beyond its intended use, especially given the statute's limited use in its early days (and generally pre-Monroe in 1961). Justice Jackson dissents (with Sotomayor and Kagan); she responds to the early-history point by mentioning the difficulties Black plaintiffs faced: physical threats of pursuing litigation, difficulty of finding a lawyer, racist juries, and problematic enforcement mechanisms.
It seems to me the better explanation is the state of constitutional law in the late 19th and early 20th centuries--the Constitution did not secure "rights, privileges, and immunities" to individuals, so there was no point in suing. Plessy in 1896 means most discriminatory policies were constitutionally valid. Slaughterhouse in 1873 rejected incorporation, meaning a state actor could not deprive a person of an RPI secured by the Bill of Rights. Thus, except for Lochnerian substantive due process, no one could bring constitutional claims against state officials; there was no reason to bother.
This suggests one theme of October Term 2024: Limiting public-law litigation by limiting the procedural devices through which that litigation occurs. We can situate Medina with CASA (obviously) and Lackey (preliminary injunctions do not make plaintiffs prevailing parties for attorney's fees). Some cases did go the other way, such as Gutierrez (allowing claims challenging DNA testing) and Williams (rejecting application of state-law exhaustion requirement to § 1983 claim in state court). Worth further thought.
Posted by Howard Wasserman on June 30, 2025 at 04:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Adversarial Litigation
Yes, the Trump Administration will oppose class certification in CASA and all the other challenges to Trump policies. That says nothing about the correctness of CASA and to treat it as such willfully disregards the nature of constitutional litigation. For better or worse, the system delegates constitutional review to courts in the course of resolving disputes between adverse parties who operate in an adversarial system. Subject to ethical constraints, DOJ attorneys represent the government's best position before the court. Dragging CASA as illegitimate for requiring further litigation in which the government can pursue its favored position is not different in kind from the administration screaming about the illegitimacy of every adverse ruling. Again, had the Court rejected universality in 2024, this hearing would have happened--with the government taking the same position.
Posted by Howard Wasserman on June 30, 2025 at 03:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Just overrule Bivens already
Justice Gorsuch was right in Egbert, that the Court should close the door to Bivens. But not for the reason he gave--"false hope" to plaintiffs who bring claims believing they could be the lucky one. But because the Court makes itself look ridiculous in rejecting claims. The latest is Monday's per curiam reversal in Goldey v. Fields (pp. 12-14 of Orders List). Plaintiff alleged he was subjected to excessive force while in solitary confinement. (The Court throws in a gratuitous line that "[p]rison officials monitored Fields while he was isolated," suggesting that they do not believe his factual allegations, an irrelevant point right now).
Goldey demonstrates the silliness in both prongs. The case presents a new context because the Court has recognized claims for excessive-force under the Fourth Amendment but never under the Eighth Amendment. And the Court identifies two special factors: pervasive legislation around prisoner litigation and alternative remedies. As to the first: The legislation in the area is the Prison Litigation Reform Act, which erects procedural hurdles (e.g., exhaustion of administrative remedies and sua sponte review of the complaint) around prisoner litigation. As to the second: Those same administrative schemes provide the only alternative remedial mechanism.* But the PLRA makes sense as applied to federal prisoners only if the plaintiff has a cause of action from some place else other than the PLRA; Congress would not have required exhaustion as a condition precedent to bringing an action if no action could be brought or if the exhaustion requirement itself provides the basis for rejecting the cause of action. It is also circularity and double-counting.
[*] The other options are habeas and injunctive relief. Claims arising from physical abuse while incarcerated challenge conditions (as opposed to fact) of confinement, which is not cognizable through habeas. And I doubt a plaintiff can establish standing to obtain an injunction against future excessive force (what someone called a "'please don't beat me' injunction"), at least absent some showing of an official policy of placing him in solitary and beating prisoners in solitary.
We can look at this a slightly different way. Congress in the PLRA imposed limitations but not an express cause of action because it presumed the Bivens cause of action existed. The law sought to narrow existing law--Bivens creates a right action (just as § 1983 does) and the PLRA limits that. Congress saw no reason to include a right of action that it would then limit.
No one dissented, suggesting no one regards it as worth the candle.
Posted by Howard Wasserman on June 30, 2025 at 01:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
SCOTUS Indefinitely Revives the Dred Scott Decision
My new essay on Slate explains how the Supreme Court has just given Trump the go-ahead to indefinitely revive the Dred Scott decision. Here is the gist:
The Supreme Court Just Revived a Key Portion of Dred Scott
By Steven Lubet
June 27, 2025
For the first time in over a century, children will soon be born in the United States without the benefit of birthright citizenship, thanks to a ruling by the U.S. Supreme Court on Friday. Although the six-justice majority denied making a decision on the merits, the impact of the ruling will indefinitely condemn many thousands of children to status that has not existed since the era of the court’s infamous Dred Scott opinion.
The upshot is that Trump’s unprecedented decree can continue to strip citizenship from children whose parents—who by definition may be subject to deportation—lack the resources to file their own lawsuit.
Trump’s executive order would actually revive the logic of Dred Scott by creating a new class of outcasts, excluded from the political community solely by virtue of their parentage.
You can read the entire piece on Slate (with free registration).
Posted by Steve Lubet on June 30, 2025 at 05:42 AM | Permalink | Comments (0)
Sunday, June 29, 2025
R.Jackson, J., concurring
In her dissent in CASA, Justice Jackson cited the Youngstown concurrence as "R. Jackson, J., concurring". I think this is first use of that description. Recent Supreme Court cases that cite Robert Jackson in the text now say "Justice Robert Jackson" rather than "Justice Jackson" to avoid confusion. I do wonder if all of that is necessary, in that we all know that the current Justice Jackson was not on the Court 75 years ago.
That said, I eagerly await the first cite of H. Jackson. That would be Justice Howell Jackson, who served on the Court from 1893-1895.
Posted by Gerard Magliocca on June 29, 2025 at 03:08 PM | Permalink | Comments (0)
Goldsmith on judicial (or at least SCOTUS) supremacy in CASA
Jack Goldsmith discusses FN 18 of the CASA majority, in which the Court says (on the SG's representation and for the first time) that SCOTUS opinions--their interpretations of the Constitution and constitutional meaning--bind the other branches.
Goldsmith describes this as a potential Marbury moment:
[T]he Court under the guise of judicial weakness proclaims a power that enhances its authority over the ages. The Court acted from a position of relative institutional weakness not unlike what the Marshall Court faced—a hostile executive branch implicitly threatening judicial defiance. And it played its weak hand shrewdly. It ruled in a way that it was previously inclined to rule on universal injunctions, while leaving open many other avenues to lower-court universal relief. And in exchange it extracted a first-ever executive branch pledge of fealty to Supreme Court “judgments and opinions,” which will appear in the forever-citable pages of the U.S. Reports.
Posted by Howard Wasserman on June 29, 2025 at 01:13 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)
On Reading Statutes
One issue if and when the Court reaches the merits on birthright citizenship is the instability created by leaving that determination to executive discretion. Suppose that the Court upholds the current Executive Order. A future President can rescind or modify that order. This means that citizenship will become uncertain for a lot of people and will oscillate depending on who wins the White House. It's antithetical to the idea that citizenship is permanent unless relinquished by the citizen.
But if the citizenship statute is read as codifying the traditional understanding of birth citizenship as applying to the children born here to temporary visitors and people who are here illegally, then presidents lack the power to change this on their own. The 1952 Immigration law copied the Fourteenth Amendment's Citizenship Clause without explanation. You could read it to support or reject the Executive Order. Reading the statute to reject the Executive Order would avoid a constitutional difficulty and the citizenship instability problem.
Posted by Gerard Magliocca on June 29, 2025 at 10:52 AM | Permalink | Comments (0)
Free Speech Coalition and least-bad option
A quick word on Free Speech Coalition, declaring valid Texas' porn-site age-verification law.
Everyone on the Court seems to agree the law is constitutionally valid. The six-justice majority believes the state has the power to enact such a law. And I am not sure the three dissenters disagree. They hedge, but they seem to believe Texas should be able to keep this material away from minors and that requiring adults to prove identity might be an acceptable burden, perhaps after some analysis about the efficacy of filters. Also, neither opinion mentions the right to anonymous speech--which has become more vigorous since Ginsberg--and which is undermined by demanding age verification.
It may be that the Court divided over choosing a "least-bad option" to reach this "law is (or at least may be) valid" conclusion. The majority treats a facially content-based law--one that burdens adult access to some content because of that content--as content-neutral (thus subject to intermediate scrutiny) through some circular gymnastics. The dissent seems a bit blase about the prospect that this law could survive strict scrutiny (when, as the majority points out, one law has survived strict scrutiny before the Court). So which is worse--"watering down" strict scrutiny so it is not as a "practical matter . . . fatal in fact absent truly extraordinary circumstances?" Or making it easier (by applying intermediate scrutiny) for government to burden access for one group to a lot of constitutionally protected speech by inventing a rationale around preventing or burdening access to a different group.
Expect two bad practical consequences from the decision. First, burdens on the porn industry, because compliance with the law is expensive, might cause sites to block access from certain states.Second, the over-inclusiveness of "harmful to minors" likely will limit access (for adults and minors) to important and constitutionally protected (having serious literary, artistic, political, or scientific value for minors) information about sex, sexual identity. Sites will put it behind a wall out of fear of government sanction, even if the speech is likely protected. Both consequences reflect the legislative goal. The majority used the "facial challenge" dodge to avoid adjudicating important questions about the law's scope and application; courts must answer these questions after enforcement efforts that may never come (because sites over-comply) or a wave of lawsuits by non-porn sites and users (adults and minors) seeking access to protected information that also may never come.
Posted by Howard Wasserman on June 29, 2025 at 07:58 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday, June 28, 2025
Non-universality, 24 hours later (updated to 48 hours later)
The temperature around CASA is high. Some thoughts 24 hours after the decision and my original post, and having had an opportunity to think about the opinion and to hear the discourse around the opinion. The podcast Advisory Opinions analyzes the opinion with Will Baude and Dan Epps of Divided Argument.
Continue reading "Non-universality, 24 hours later (updated to 48 hours later)"
Posted by Howard Wasserman on June 28, 2025 at 12:47 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday Music Post - Blueberry Hill
"Blueberry Hill" is best known today for Antoine "Fats" Domino's 1956 R&B hit, but it had been a hit for others over fifteen years earlier. Written in 1940 by Vincent Rose, Larry Stock, and Al Lewis, its first release was a fox trot rendition by Sammy Kaye's big band. The first hit version was by the Glen Miller Orchestra, also in 1940, on the RCA subsidiary Bluebird Records. (Note: Bluebird may be best remembered today for its early blues releases by Blind Willie McTell, Tampa Red, Memphis Minnie, Washboard Sam, and others. I didn't know until researching "Blueberry Hill" that big bands also recorded for Bluebird.) Louis Armstrong also had a hit with "Blueberry Hill" in 1949, with the Gordon Jenkins Orchestra, which was sort of a transitional version that influenced Domino. (Another note: Gordon Jenkins seemed to make a habit of recording with diverse artists, including the Weavers' English translation of "Tzena Tzena" in 1950.)
There have been numerous covers, virtually all of the Fats Domino version, including an unexpected one by an infamous amateur at the bottom of today's post at The Faculty Lounge.
Posted by Steve Lubet on June 28, 2025 at 07:06 AM | Permalink | Comments (0)
Friday, June 27, 2025
They are called universal injunctions and they are not allowed (Updated and Moved to Top)
Trump v. CASA is out. Universal injunctions are impermissible. And, in a footnote, the Court says they should be called universal (rather than nationwide) because that captures the problem. The Court does not touch the merits of birthright citizenship. And it does not reject the injunction in this case; it stays it only to the extent it is broader than necessary to give the plaintiff states complete relief. But the states argue that it is not overbroad because the nature of citizenship and the ability of people to move across state lines requires an injunction that protects beyond the plaintiff states; the Court remands for that analysis.
It is 119 pages, with concurring opinions from Thomas, Alito and Kavanague and dissents from Sotomayor and Jackson; Sotomayor read her dissent (which sounds like a barn-burner) from the bench. Will have more once I read this (and the other opinions coming today).
Update: OK, I have given it a preliminary read, along with early comments from Mike Dorf and Sam Bray. TL;DR of the opinions:
Barrett: Everything Sam Bray says in his 2017 Harvard piece (the article that started this scholarly conversation) is right. (A friend asked if this was a Notre Dame Law School thing--but I think Barrett was on the bench before Sam got there). There are policy arguments on both sides, but we do not care because it is all about the history.
Thomas (with Gorsuch): "Complete relief" is the ceiling, not the floor--a court cannot grant more-than-complete relief but can grant less-than-complete relief. Also a remedy can protect non-parties through indivisibility only when party-specific relief is "all but impossible;” that is a high bar and courts better not use incidental benefits to revive universality.
Alito (with Thomas): While we're at it, get ride of third-party standing and do not forget that FRCP 23 is narrow and it should be difficult to certify classes.
Justice Kavanaugh: Universal vacatur survives (spoken like a D.C. Circuit alumnus). SCOTUS provides practical universality through precedent via more-aggressive use of the shadow docket.
Justice Jackson: 1) Dispute resolution is incidental to federal courts' primary role of declaring the law, not the other way around. 2) Rule-of-law in a non-monarchy establishes and requires judicial supremacy and anything else is lawless (as Barrett puts it, Jackson "offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush").
Editorial comments:
• I am pleased to win the nomenclature battle.
• The Thomas and Alito concurrences reflect fissures within the six-Justice majority. Three reject the states' argument that the broad injunction they seek is necessary to afford complete relief. Two suggest that class certification should be narrow and rare. As Steve Vladeck argues, one cannot reject universal injunctions and narrow Rule 23; plaintiffs and courts need some mechanism to reach and stop wide-ranging misconduct that causes wide-ranging, identical harm to similarly situated people. The question is whether this represents genuine fissures among the six (such that at least two among Roberts, Gorsuch, Kavanaugh, and Barrett will join Sotomayor, Kagan, and Jackson to uphold class challenges to birthright citizenship and other constitutionally defective Trump policies) or whether this is those four exercising "restraint" in not tipping their hands on unnecessary issues, whereas Thomas and Alito want to put their views out there.
• I would have expected Alito to also target associational standing as means of expanding the scope of litigation and thus the scope of the remedies. After all, the individual plaintiff here is CASA, an organization suing on behalf of its more than 150,000 members
• That is a typical Kavanaugh "please like me, here are all the ways the decision will not be so bad" opinion. He is right that SCOTUS gets to a universal outcome through precedent rather than judgment and remedy. That said, expanding the shadow docket so the Court can--speedily, on limited briefing, and without explanation--superintend the scope of every injunction seems to exacerbate the shadow-docket problems. To tamp this down, Kavanaugh introduces a new concept demanding closer SCOTUS scrutiny in lieu of universality--"major new" (a term he uses 24 times in less than 12 pages) statutes and executive actions. Of course, he fails to define what qualifies as "major new" legal rules. His examples include pretty much every challenged federal enactment of the past decade, meaning SCOTUS should use the shadow docket for every federal enactment that draws a constitutional challenge.
• If one rejects judicial supremacy, Jackson's opinion is hard to read (speaking as someone who genuinely likes her writing). She accepts, without defending, that "the law" is whatever one district court says it is and the executive acts in a lawless manner by acting inconsistent with that judicial determination. So it begs multiple questions throughout in speaking of the law, and disobeying the law, and what things are blatantly unconstitutional, without explaining who decides any of this.
• Jackson offers two lines that are nonsensical. 1) The judicial power is especially great with respect to suits against the executive--except all constitutional litigation runs against the executive (or a non-executive officer performing an executive function). 2) Concern for "blatantly unconstitutional" laws. But constitutional invalidity is like pregnancy--you cannot have just a little bit of it. And she never explains when invalidity crosses that line into "blatancy." Ironically,she offers an example--an executive who orders incarceration of his political foes--that fails on its own procedural terms; that challenge would sound in habeas (if they seek release from custody) and not an EpY action for any sort of injunction, universal or otherwise.
• Beyond that, no one can offer any lines for when universality is proper that do not collapse into "every injunction" or "every injunction involving immigration" or "every injunction involving federal law."
• None of the Justices pursue any form of departmentalism. All accept that the courts (especially SCOTUS) get the last word. The only departure is how the Court expresses that last word--for everyone or for the parties (pending precedent and future litigation). Jackson and some of the online commentary equate departmentalism with a return to monarchical tyranny.
• Some nice online discussion about whether to teach this case, whether in Civ Pro or Fed Courts. I think Jackson's opinion illustrates the "law declaration" model of federal courts in a stark way.
• Plaintiffs in several birthright-citizenship cases have already filed amended complaints seeking class certification. Meanwhile, in the latest episode of "the media sucks," they are engaged in stenography of Trump's victory lap, as if the Court declared his EO valid or even suggested that he is right on birthright citizenship.
• One more thing: To everyone complaining that the end of universal injunctions represents "an alarming development for our constitutional republic" (sorry to pick on the excellent Chris Geidner, many people are doing this): What would your reaction be if the Court reached the same conclusion--narrowed injunction remains in place--in the Mifepristone case or the DACA case or any of the challenges to Obama and Biden policies? Would taking away Judge Kaczmarek's power to enjoin all enforcement of a Democratic president's policies be an "alarming developing for our constitutional republic?" If your answer is no, the explanation must be something other than "Kaczmarek was wrong;" as with challenges to S.B. 8, substantive objections cannot drive procedural arguments.
Posted by Howard Wasserman on June 27, 2025 at 03:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
End All Opt-Outs
Mahmoud v. Taylor holds that parents were entitled to an injunction requiring school to notify them of the use of certain TGBTQ+ content in the classroom and offer their kids an opt-out. The content burdens parents rights to control their children's religious beliefs and does not survive strict scrutiny because the school offers other opt-outs (religious and otherwise).
On one hand, this is Alito driving the anti-LGTBQ+ "ad hoc nullification machine." On the other, what happens if a school eliminates all opt-outs? At least part of why the school policies fail strict scrutiny is that other opt-outs show their feasibility. So could a school say "this is the educational content we believe is appropriate and we are going with it for all students, no opt-outs for any reasons and if you don't like it find another place for your education" (a decision the conservative justices--especially Alito and Thomas--insist deserve deference)? Or does free exercise now give religious believers a right to participate in public functions and to dictate that the content conform to their personal religious beliefs?
Posted by Howard Wasserman on June 27, 2025 at 11:43 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)