Sunday, September 27, 2020

The Barrett Nomination

At Judge Barrett's confirmation hearing, I would be interested to know if she gave any consideration to declining the nomination. Someone should ask her. Maybe the answer is no. Maybe the answer is yes, but she concluded that she should accept. Either way, I'd be interested to hear her reasoning. This question strikes me as entirely appropriate and might be more illuminating than the standard game that Supreme Court nominees play with the Senate. 

In the interests of full disclosure, Judge Barrett and I were in the same summer associate class in 1997. I don't have any particular recollections of her though.

Posted by Gerard Magliocca on September 27, 2020 at 09:00 PM | Permalink | Comments (13)

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 25, 2020

JOTWELL: Campos on Civ Pro Unavailability Workshop

The new Courts Law essay comes from Sergio Campos (Miami), discussing the Civil Procedure Unavailability Workshop, a remote civ pro workshop that Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) established late last spring. (I did one of the talks, on Erie and SLAPP laws). Edward Cheng (Vanderbilt) originated the program with an evidence workshop.

Posted by Howard Wasserman on September 25, 2020 at 11:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 22, 2020

Jamelle Bouie misunderstands judicial supremacy and other comments

Jamelle Bouie calls on Democrats to reject judicial supremacy. Unfortunately, he does not seem to understand what judicial supremacy is or what it means to fight it. Instead, he conflates challenges to judicial supremacy with court reform. He offers the historical example* of Jeffersonians undoing the Midnight Judges Act--eliminating judgeships, restoring a SCOTUS seat, and restoring circuit riding. But none of that had anything to do with judicial supremacy. That was a dispute between competing parties in the political process about the structure of the federal courts, which everyone agrees was and remains within congressional control. It has nothing to do with who, if anyone, gets the final word on constitutional meaning. And the Court had no say in either the original act or the Jeffersonian response. One can support court packing or other  proposals for reforming the structure of the courts while believing in judicial supremacy.

[*] Bouie's other example is Lincoln's First Inaugural, where he suggests ignoring Dred Scot as precedent as to the validity of the Missouri Compromise, while recognizing that he is stuck with the judgment in that case. This envisions judicial departmentalism--bound by the judgment, free to ignore precedent.

Kevin Drum comments on Bouie's column and understands the issues better, arguing for jurisdiction stripping as the answer. This hits on something I did not consider or address in my work on judicial departmentalism. Departmentalism collapses into judicial supremacy because many (most?) constitutional questions devolve into judicial ones, producing a court judgment that the executive must enforce and obey, on pain of contempt. The solution--for those who want one--is stripping the courts of jurisdiction to decide some constitutional issues. But not because it eliminates courts' power to make new precedent--since the the other branches can ignore that. But because it eliminates courts' power to produce new judgments, which the other branches cannot ignore.

Posted by Howard Wasserman on September 22, 2020 at 10:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Segall Court and a stopping point to Court-packing

As I was completing my prior post on the time passing for Eric Segall's eight-person partisan-divide Court, I thought of a way to save that plan and to put a check on infinite tit-for-tat Court expansion through mutual disarmament: Expand the Court to twelve with three Democratic appointees, then run the Segall plan with a 6-6 partisan divide.

Posted by Howard Wasserman on September 22, 2020 at 11:28 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Implementing the Carrington Plan (Updated)

With the prospect of attempted court-packing looming in the event of a President Biden and Democratic Senate, thoughts turn to alternatives involving 18-year terms and regularized appointments. The Carrington Plan, introduced in 2009, would achieve this by statute through the creation of the position of "senior justice," a Court of more than nine, but cases heard by a panel of the nine junior-most members.

The benefit of the Carrington Plan is that it could be done by statute. The 2009 version contained a sunrise provision, taking effect only with the first vacancy after passage and allowing current members to serve until death or retirement. This was to avoid constitutional objections to Congress violating Article III by changing the nature of the Justice's position--after 18 years, although still an Associate Justice, the person does not adjudicate cases. I was not, and am not, convinced by the constitutional arguments. If Congress can strip the Court of some (if not all) of its appellate jurisdiction, it can strip individual Justices of their role in exercising that jurisdiction. It is complicated and uncertain, but the constitutional problem is not obvious.

But the sunrise may be necessary to make it work across a full Court, because a President cannot make a regular biennial appointment if the junior-most Justice has not reached 18 years.

This was not the case in 2009, when Carrington and others presented the plan to Congress. Five Justices already had served 18 years and two more were close.Had it been implemented then, the Court could have turned over under the plan within 16 years: 2009 (Stevens), 2011 (Scalia), 2013 (Kennedy), 2015 (Souter*), 2017 (Thomas), 2019 (Ginsburg), 2021 (Breyer), 2023 (Roberts--who would have reached 18 years), 2025 (Alito, who gets a couple extra years on the Court). By 2025, we have an entirely new primary Court.

[*] Or Souter retires, as he did, in 2009 and everyone gets pushed back two years.

But the current Court structure prevents that clean implementation. In 2021, two Justices are beyond 18 years and four are close; those six would be replaced by 2031. But then it runs out. In 2033, the time for the next appointment, Gorsuch will have been on the Court for 16 years, two years short of the end of his term as active justice.

It would be unfortunate if the time for the best plan has passed, much as the time for Eric Segall's eight-person partisan-split Court passed in 2017.

Updated: Steven Calabresi (Northwestern) argues in The Times for a constitutional amendment and offers a solution to this problem: The eight current Justices would draw lots for the order in which their terms would end beginning in 2023, meaning some Justices may serve fewer than 18 years (e.g., if Kavanaugh drew short straw in 2023, he would serve five years). We could modify Calabresi's proposal and retain basic equity by going in reverse order through Alito Kagan, then drawing lots among Gorsuch, Kavanaugh, and Barrett in 2033. This ensures everyone serves at least 15 years, which Calabresi argues is longer than the term on other constitutional courts.

Also, note this feature of Calabresi's proposal--he is not messing around:

Failure to confirm a justice by July 1 of a president’s first or third year should lead to a salary and benefits freeze for the president and all 100 senators, and they should be confined together until a nominee has been approved. The vice president would act as president during this time and the Senate would be forbidden from taking action whatsoever on any of its calendars.

By the way, with all of this in the news, I must rethink the order of my Fed Courts class for next semester. I save jurisdiction-stripping and the issues of congressional control over the Court, including proposals for term limits and other restructuring, for last--they are highly theoretical topics that my students are better able to handle at the end of the course. The problem is that I have not gotten to this the last couple of years. But the life tenure and term limits stuff now is too central to the political discussion. I may put SCOTUS structure, including term limits, up front (the class begins with SCOTUS jurisdiction), even if jurisdiction stripping and similar issues remain at the end.

Posted by Howard Wasserman on September 22, 2020 at 11:22 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, September 21, 2020

Secrecy in Higher Ed Hiring

Here's what's been happening at GW - and here's a taste of my interview in the Hatchet today:

"Orly Lobel, a distinguished professor of law at the University of San Diego, said while the president doesn’t have a legal obligation to speak about the hiring process, he isn’t legally barred from it either.
Lobel said a president’s only limitation to revealing information would be signing a non-disclosure agreement. She said depending on how the NDA was drafted and the scopes of the contract, LeBlanc may have limits in speaking out.
“It is good practice for a university to have relative transparency in hiring processes,” she said in an email. “Though the reality is that these organizations, especially private universities, have been increasingly conducting hiring processes with opacity and secrecy.
She said the president could supply some information about the hire rather than information that was disclosed during the vetting process, like reassuring the community that the people involved in the process were independently investigated.
Lobel added that universities have a high interest in doing “due diligence” with respect to candidates, like contacting previous employers and vetting the candidate so that there “aren’t any skeletons left uncovered.”
“This is especially true at universities where faculty governance is a fundamental principle,” she said. “Especially true these days when we know that systematic patterns of wrongdoing and hushing of unlawful and unethical activities have been exposed in a range of institutions.”"

Posted by Orly Lobel on September 21, 2020 at 11:55 PM | Permalink | Comments (0)

Remembering Justices

Jack Balkin describes what Sandy Levinson and he call the "biography rule," dividing Justices between those whose primary achievement and notoriety derives from their service on the Court and those who would have had biographies written about them had they never served on the Court. Balkin places Ruth Bader Ginsburg in the second category, based on her advocacy for women's rights.

I wonder if we can sub-divide that second category: Whether their greater legacy is from their service on the Court or from their great pre-Court achievements. I think Taft is in the latter box, at least for non-lawyers; more lay people know he was President of the United States than know he was Chief Justice, even if he was better in the latter than the former role. I think Black and Warren go in the former box; Warren had a greater effect as Chief Justice than as Governor of California or unsuccessful VP candidate, Black a greater effect as a Justice than as a Senator.

What of Ginsburg? Balkin highlighted her opinion for the Court in U.S. v. Virginia and her dissent in Shelby County. She earned a reputation as a "great dissenter" (following in the footsteps of Holmes and Brennan), especially after Stevens left the Court in 2010 and she became the senior-most Justice in dissent. I would add her jurisdictionality opinions (she wrote numerous opinions narrowing the class of rules regarded as jurisdictional) and her opinions on personal jurisdiction (she wrote the opinions adopting and reifying the "essentially at home" standard for general jurisdiction).

The obvious comparator for Ginsburg is Thurgood Marshall. Both established significant equal protection law as litigators and their careers on the Court were similar (RBG served three years longer). But the prevailing view (rightly or wrongly) is that Marshall affected the law more as a litigator than as a member of the Court (putting aside the significance of being the first African American Justice) and authored relatively few canonical opinions that are remembered as "Marshall opinions." I expect that Ginsburg will be remembered more for her work as a Justice, if for no other reason than because a segment of pop culture adopted her in that role in a different cultural environment than Marshall worked. But time will tell.

Posted by Howard Wasserman on September 21, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

YLJ Submissions Deadline

 

Posted by Howard Wasserman on September 21, 2020 at 08:31 AM | Permalink | Comments (0)

Reynolds on cameras in the classroom

An article of note by Glenn Reynolds (Tennessee) on using (inexpensive) real cameras to create a better-looking remote classroom.

Posted by Howard Wasserman on September 21, 2020 at 08:30 AM in Article Spotlight | Permalink | Comments (0)

Sunday, September 20, 2020

New Courts (Updated)

It is said that the change of one Justice changes "the Court." Not at the the obvious macro level of partisan/ideological divides and case outcomes, but in small and incalculable ways involving positions and interactions among Justices. The Court in October 2017 was going to be different that the Court in January 2016, whether Merrick Garland or Neil Gorsuch was junior-most Justice, even if case outcomes look more similar with Gorsuch than they would have with Garland.

On that metric, we are about to get our fifth and sixth different Courts since October Term 2015: A nine-Justice Court with Scalia until February 2016; an eight-Justice Court until April 2017; a nine-Justice Court with Gorsuch until October 2018; a nine-Justice Court with Kavanaugh until two days ago; an eight-Justice Court until someone (I continue to believe Amy Coney Barrett) is confirmed (I presume this will not happen by October 5, but I put nothing past Mitch McConnell); and a nine-Justice Court with Barrett (or whomever). And I am will make a weak prediction that Breyer retires by summer 2022 if Biden wins and the Democrats retake the Senate--making it seven Courts over about eight terms.

Which makes the period from 1994, when Breyer joined the Court, to 2005, when Roberts became Chief, unique. There was one Court for 11 years and one month, the second-longest-serving Court. The longest is an 11 1/2-year gap between the appointment of Justice Duvall in 1812 and the appointment of Justice Story in 1823--another universe in terms of the Court's prestige and power and the attention paid to it. Otherwise, there have been mulitple five-ish-year Courts throughout history, including one between Kagan's appointment and Scalia's death. I wonder if we will see this kind of stability any time soon.

I also wonder whether the recentness of this anomaly influences some of the new opposition to life tenure. Despite more individual Justices serving ever-longer terms and increasing life expectancies, there still is (sometimes rapid) turnover within the Court. Barrett is 48 and Barbara Lagoa, the other leading candidate, is 52. But even adding either to Kavanaugh and Gorsuch (both 55 or younger) and a hyp0thetical young Biden appointee, it leaves two Justices in their 70s and two over 65. It seems unlikely that we will see another decade-long Court.

The arguments against life tenure shift from longer-lasting Courts to the randomness of timing and who makes appointments. It seems insane that Donald Trump will make more appointments in one term as Obama, Bush II, and Clinton each made in two terms.* The real benefit of the Carrington Plan for 18-year terms is regulating the appointments process--every President gets the same number of appointments in the same time served and on the same regular schedule.* On the other hand, the notion of a "new" Court every two years supports critics of the plan, who worry about the instability the system would create. Of course, we have been getting a version of that system, accidentally and with the attendant political collisions and overreactions, for six years.

[*] Even FDR is prey to this temporal randomness. We accept that it makes sense that FDR appointed 8 Justices, since he was President for 12 years. But note the timing. He made zero appointments in his first term (during a 5+-year Court between the appointments of Cardozo and Black), five appointments in his second, and three in his third. Had FDR been a one-termer, he would have had the same effect on the Court as Jimmy Carter. Had he not violated the two-term norm (or had the 22d Amendment been in place in 1940), he still would have appointed the majority of the Court.

Posted by Howard Wasserman on September 20, 2020 at 01:12 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Structural principles and SCOTUS appointments (Updated Again)

Two preliminary points.

First, for Ruth Bader Ginsburg, may the memory of the righteous  be a blessing (zekher tzadik livrakha). It is said that a tzadik (a righteous person, particularly one who is humble in life and whose righteousness becomes fully known only after her death) dies on Rosh Hashanah. I write this on the yahrzeit (anniversary of death) of my father-in-law, a truly righteous person.

Second, I expect Trump to nominate and the Senate to confirm Amy Coney Barrett (Seventh Circuit),* although it is not clear whether the confirmation will be prior to or following the election. Ilya Somin's proposal (both sides stand down--no confirmation until after January 20 in exchange for a Democratic promise not to expand the Court) is a brilliant compromise that he recognizes is unlikely to happen. And McConnell, Lindsey Graham, et al., do not care about being accused of hypocrisy in any shift in their views of confirming Justices during an election year.

[*] The alternative name appears to be Barbara Lagoa, a former Justice on the Supreme Court of Florida and recent appointee to the 11th Circuit; Lagoa is Cuban-American and the appointment might be an attempt to shore-up support among the Cuban-American community in Florida. Lagoa was in the majority holding that Florida did not violate the 14th or 24th Amendments in requiring ex-felons to repay unknown fees before their voting rights could be restored.

After the jump, I want to think about the "shift" in these positions.

Continue reading "Structural principles and SCOTUS appointments (Updated Again)"

Posted by Howard Wasserman on September 20, 2020 at 12:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, September 19, 2020

Fourteenth Amendment Esoterica

I'm come across a curious law that I want to write about. In June 1868, Congress enacted a law to admit several of the ex-Confederate states to the Union upon certain conditions. One, of course, was that they ratify the Fourteenth Amendment. The Act then said this:

That the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, changed as, &c. except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State.

The states covered by this Act were North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida.

Why do I find this interesting? A few reasons. First, this is at odds with the Supreme Court's statement in Shelby County that the states are on equal footing with respect to voting rights. Some states in the South are treated differently in that they are still subject (at least formally) to the Act's requirement. Now you could say something like the following in response: Congress lacks the power to tell a state what to do in its organic law once the state is readmitted. Thus, the post-admission condition stated here is unconstitutional. Maybe, but that gets you into deep waters that I won't go into here.

Second, the Act gives a contemporaneous interpretation of Section Two of the Fourteenth Amendment. The Act refers to crimes as are now felonies. Suppose we said that states could only disenfranchise people convicted of felonies recognized in 1868. That (as others have observed) would be less sweeping than the way a state such as Florida imposes felon disenfranchisement now.

Anyway, this may just be a sideshow in my Section Three article, but I need to give this further thought.

Posted by Gerard Magliocca on September 19, 2020 at 09:04 PM | Permalink | Comments (2)

Rosh Hashanah more joyous than Yom Kipper

So less expectation that Jewish players will sit out. This begins with Hank Greenberg in 1934, who played (on advice of rabbis) on Rosh Hashanah but sat on Yom Kippur.

On Friday night (Erev Rosh Hashanah), Alex Bregman (Astros)  went 0-for-4 in a loss; Kevin Pillar (Rockies) went 2-for-4 with 2 runs scored in a loss;, and Ryan Braun (Brewers) went 2-for-2 in a win. Pitcher Max Fried (Braves) gave up a run on three hits in 5 innings in a blowout win, running his record to 7-0. And relief pitcher Ryan Sherriff (Rays) pitched a scoreless ninth to earn a save. That is a pretty good day. (H/T: Jewish Baseball News).

The Astros, Rockies, and Brewers play evening games on Saturday, beginning 7 p.m. or later. While Rosh Hashanah is two days outside Israel, fewer Jews observe the second day and so it is rarely part of the conversation about playing "on" the holy days.

This will be it for baseball on the holy days 5781. Yom Kippur begins at sundown next Sunday. That is the final day of the regular season; all MLB games are scheduled for afternoon and should be complete. Monday (Yom Kippur) is an off-day before the beginning of the post-season Tuesday. And MLB will not hold one-game tie-breaker playoffs during that off-day; any ties for division winner or wild-card spots will be determined by a series of tie-breakers.

Posted by Howard Wasserman on September 19, 2020 at 08:31 PM | Permalink | Comments (0)

Friday, September 18, 2020

"Law Like Love": Jeffrie Murphy, RIP

I was very sorry to learn of the passing from this life of Prof. Jeffrie Murphy (RIP).  Here's the Arizona State University announcement.  For me, Murphy's punishment-theory and criminal-law work was influential -- formative, really -- and he was also a kind and generous advisor and mentor.  My Criminal Law students (thanks to Joshua Dressler and Stephen Garvey) have, for years, encountered a bit of his work with Jean Hampton, and I've used his little essay, "Law Like Love", as well as "Christianity and Criminal Punishment", to conclude my class in recent years.  If you're a Crim teacher, and you want a bracing read, check out his "'In the Penal Colony' and Why I Am Reluctant to Teach Criminal Law." May his memory be a blessing.

UPDATE:  I really should have quoted this, from the ASU announcement:

For those who knew Murphy, he was always larger than life: a big man with a booming voice and a strength of conviction in his work and scholarship that was never outmatched. His early experiences as head of the Philosophy Department led to a deep and abiding hatred of administration — which gave him ample time to explore his greatest passions: the teaching of gifted students and exploring the contours of moral philosophy and its connection to the law.

Posted by Rick Garnett on September 18, 2020 at 02:15 PM | Permalink | Comments (1)