Saturday, June 22, 2024

On Responding to Muddy Complaints -- and a Comment on Departmentalism

Granting everything Rick says, my point is that Roberts's response to lower court confusion was too SCOTUS-centric. He could have said something such as "firearms regulation is necessarily indeterminate and we'll give you as much to go on as we can as part of a continuing process." Instead, he said "we've explained it twice; nevertheless, lower courts have misunderstood what should be 'a commonplace task for any lawyer or judge,' so we'll just have to do it again."

If the principle is hard to apply, that's one thing. Just say so. If the lower courts "misunderstood" SCOTUS's directions, that's SCOTUS's fault, which is something the Chief cannot bring himself to admit.

Let's put it this way: An umpire calls balls and strikes. If the players cannot understand which way the call went, that's the umpire's fault and nobody else's.

Now, on to departmentalism.

Howard argues that the Alabama legislature acted legitimately when ordering every public school classroom in the state to display the Protestant Ten Commandments, even though there is contrary Supreme Court authority prohibiting it (actually, the statute lists eleven commandments, which I guess is closer to the 21 verses in Exodus). Without such seemingly unconstitutional legislation, he explains, "a court could never reconsider or revisit precedent."

That is logical, but where does it end? An unconstitutional statute, after all, imposes burdens on people while it is making its way through the courts -- especially given Howard's view that many statutes can only be challenged defensively.

Does a legislature have an obligation --prudential or ethical, if not legal -- to avoid acting unconstitutionally in the hope that a law might be upheld after several years of enforcement?

Let's say that a legislature decides that the juvenile death penalty is permissible, notwithstanding Roper v. Simmons. Would it be "legitimate" to start seeking the death penalty for fifteen-year-olds, while waiting to see what happens at SCOTUS? If so, an untold number of young defendants would probably plead guilty to lesser offenses, for fear of execution. And some number would have to be actually sentenced to death, and presumably placed on death row, before an effective defensive challenge could be raised.

So the statute would have a serious effect even if eventually found unconstitutional (which the drafters might consider a success).

Like I said, where does it end?

Posted by Steve Lubet on June 22, 2024 at 07:13 PM | Permalink | Comments (0)

On complaining about mud: a response to Steve

Steve echoes, in his recent post on the Rahimi case, a complaint that we are hearing from some law professors, namely, that the Court has not yet provided a clear (enough) standard for distinguishing firearms regulations that comply with the Second Amendment from those that do not.  I like clarity; I'm kind of a formalist; I generally like "rules" more than "standards" (in law); so, I think I "get" the impulse.  Still, the complaint seems, to me, misplaced. 

Now, to engage the issue, it seems to me, one has to accept the premise that the Second Amendment has something to do with regulations besides those dealing with the National Guard.  Those who profess to hold the view that the Second Amendment provides no protections to -- has nothing to say about -- individuals who wish to own, buy, possess, and use firearms wouldn't seem to have much constructive to say about the doctrinal question presented in a case like Rahimi.  And, it seems to me that, to constructively engage the Court on this matter, one has to accept, if only for the sake of argument, that the Second Amendment's judicially enforcement content has some connection to the "original meaning" of the Second and Fourteenth Amendments.  That is, if one's view is that the answer to Second Amendment questions that come up in courts is "uphold the regulations that are sound policy, and strike down the ones that are not", it doesn't seem to me that there's much point to wrestling with the Court's efforts to announce and apply "originalist" (and capable-of-being-understood-by-regulators-and-lower-courts) doctrines.

So, has the Court dropped the ball? Are things actually "mud"? I'm not sure, but . . . compared to what? It seems unlikely to me that lower courts have less to go on, when it comes to firearms regulations, than they did under, say, the "effects" part of the Lemon test in the 1970s and 80s . . . or most areas of con law, including ones that Rahimi critics like.  The law with respect to cooperation between religious schools and public authorities, for example, is way, way clearer now than it was 40 years ago, but my sense is that this clarity doesn't make most online legal scholars happy. Is the inquiry that Rahimi calls for any "muddier" than the one that, say, all applications of "strict scrutiny" in rights cases call for? (Is the question whether an interest is, or is not, "compelling" any "muddier" than the question whether a particular firearms regulation is meaningfully like a regulation that was accepted at the time of the relevant ratifications?) 

Posted by Rick Garnett on June 22, 2024 at 02:54 PM in Rick Garnett | Permalink | Comments (0)

Rahimi: Still Clear as Mud

Con Law specialists will have much to say about the content of Rahimi, but I have a further observation from an advocacy perspective.  Chief Justice Roberts's majority opinion describes the holdings in Heller and Bruen, and then says:

Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases.

First, note the grammar choice. Use of the present perfect continuous tense indicates that the misunderstandings occurred in the past and are still ongoing, which makes them more serious that the simple past or past perfect.

Then note the conjunction "nevertheless." Not, "unfortunately," and certainly not "predictably." In other words, despite SCOTUS's explanations, lower courts got it wrong.

Now the advocacy point: As I taught my students for fifty years: If someone misunderstands you -- especially a judge or juror -- it's your fault, not theirs.

Let me repeat that. It is the lawyer's job to speak or write with clarity. If there is a misunderstanding, it is the lawyer's mistake, not the readers' or the listeners'.

Roberts, however, takes no responsibility for the misunderstanding, in the passages that immediately follow his acknowledgement:

As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. 554 U. S., at 582. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.

As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. 597 U. S., at 26–31. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. 

So you see, SCOTUS already explained everything, and the dense lower court judges just failed to follow instructions. There was nothing wrong with Bruen, as anyone should have been able to see. After all,

Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.” Id., at 28. 

To paraphrase Erich Segal, being Chief Justice means never having to say you're sorry.

Posted by Steve Lubet on June 22, 2024 at 01:29 PM | Permalink | Comments (0)

Saturday Music Post - The Wonder Years

I wonder, wonder why there are virtually no covers of this great song:

But there are plenty of other wondering and wonderful clips at today's post on The Faculty Lounge.

Posted by Steve Lubet on June 22, 2024 at 05:35 AM | Permalink | Comments (0)

Friday, June 21, 2024

Judicial departmentalism and the Ten Commandments

A quick word on the new Louisiana law allowing a sect-specific version of the Ten Commandments in all public-school classrooms.

The governor and legislature acted in a legitimate way. They believe the law constitutionally valid and acted on that view, even if that view runs contrary to binding SCOTUS precedent. And they acted in something other than a purely performative, wasting-taxpayer-dollars way, to the extent they believe (not unreasonably) that the current Court might overrule Stone.

Critics must wrestle with this problem: If Louisiana did not or cannot do this, a court could never reconsider or revisit precedent. It takes a new law or enforcement of an old law to create new litigation allowing the court to resolve the constitutional question and to change the law if it sees fit. If a state cannot do this, decisions declaring that government cannot do something are set in stone (no pun intended) and never can be changed. Whatever one thinks of the constitutional validity and/or wisdom of these displays and whatever one thinks about whether the Court should reconsider Stone, it cannot be that any judicial precedent lies procedurally beyond reconsideration.

Posted by Howard Wasserman on June 21, 2024 at 12:32 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit overrules Ex parte Young

Exaggerating only slightly in Mi Familia Vota v. Ogg. Groups brought an EpY challenge to Texas's bullshit post-2020 "election integrity" law, including through some criminal prohibitions. They initially sued the attorney general, but the Texas Supreme Court held that the power to bring criminal charges rested with local prosecutors, not the AG. So plaintiffs amended to add the DA of Harris County (includes Houston). But the Fifth Circuit held that the DA does not fall within EpY (and thus has 11th Amendment immunity from the § 1983--some statutory claims remain) because: 1) Ogg has general discretion to bring criminal charges and no specific obligation to enforce the challenged statute; 2) her specific duty is to do justice, not to enforce criminal laws through convictions; 3) Ogg has never enforced the challenged law (the lawsuit was filed six days after it took effect) and has agreed not to enforce during litigation.

If not making EpY actions impossible, it offers state officials a roadmap for how to get out of it.

• The court requires that every provision impose a duty on a particular officer to enforce that provision. The DA's general obligation to enforce "criminal laws" is insufficient. But most states do not legislate that specifically. Worse, Texas law generally obligates DAs to "see that justice is done," which is not a duty to enforce. Moreover, discretion is inherent in executive functions, especially prosecutions--the DA possesses some discretion on which cases to bring and when. So even the clearest connection between an official and a particular statute runs aground on that inherent discretion.

• The promise not to enforce is even more problematic. Whether an official will enforce a law is part of justiciability (especially standing); the court now imports that into EpY, exacerbating the conflation of these concepts. Even if this should be part of EpY, the analysis is circular. Ogg promised not to enforce while litigation is pending. But if that promise gets the target defendant out of the suit, the plaintiff has no one to proceed against in the EpY action--the promise not to enforce until the end of litigation ends the litigation.

• The promise not to enforce may not control if plaintiff's can point to enforcement history (again importing a piece of standing analysis). But the court emphasizes that Ogg had no history of enforcement because plaintiffs filed suit less than a week after the law took effect, leaving Ogg no opportunity to do that. The lesson: Do not pursue offensive litigation too quickly. Stated differently, if you use EpY too quickly, your EpY action will fail because the target defendant never enforced the law.

• The court cites Whole Woman's Health for the proposition that rightsholders are not entitled to bring pre-enforcement EpY challenges to all laws and that some constitutional rights must be asserted defensively. But WWH bars an EpY action against state officials who have no authority or obligation to enforce a challenged law that is subject purely to private enforcement; it does not purport to narrow EpY or to limit the right to bring pre-enforcement challenges to publicly enforced laws. And while some rights in some circumstances must be litigated defensively, a Fourteenth Amendment challenge to a criminal law has never been one of them. At the same time, the court adopts a cribbed reading of the part of WWH that allowed medical professionals' claims against the licensing boards; it refused to credit as binding the fractured views of two four-person opinions.

So at least in the Fifth Circuit, rightsholders cannot pursue offensive pre-enforcement litigation against a law unless that law expressly imposes a non-discretionary duty to enforce on a specific official, the official does not agree to withhold enforcement until the end of the case, and the official has had time to enforce in the past and build a record of intention to enforce.

EpY aside, the case features some interesting appellate jurisdiction issues. Ogg appealed the denial of her sovereign immunity defense, which is generally subject to COD review. But plaintiffs asserted claims under the Rehabilitation Act, Voting Rights Act, and Americans With Disabilities Act, all of which (or at least arguably are--the court played coy as to all but the VRA) abrogate sovereign immunity; they argued that immediate review was improper here, since the case would not end if the court of appeals reversed and found sovereign immunity. The court also considered, but declined, to exercise pendent appellate jurisdiction over the question of the plaintiffs' standing; Ogg argued that because standing and EpY turn on the same issues, the court should consider all.

Posted by Howard Wasserman on June 21, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, June 16, 2024

That's One Way to Put It

From the Sunday New York Times,"Alabama's I.V.F. Shield Law Now Faces a Constitutional Challenge":

“The new challenge to the shield law comes as Southern Baptists, the country’s largest Protestant denomination, voted this week to oppose the use of I.V.F. at their national conference.”

 Yeah, but is it still okay to use I.V.F. at a clinic? (And who would want to do it in the middle of a national conference, anyhow?)

Posted by Steve Lubet on June 16, 2024 at 08:09 PM | Permalink | Comments (0)

Saturday, June 15, 2024


Any present or former journalist, or anyone who has written an op-ed or essay for a general interest publication, knows that editors are keen on compelling openings that suggest to the reader the immense importance of the topic. (Law reviews increasingly demand the same, for roughly the same reason: the authors are trying to captivate student editors who are a short step above being general readers themselves.)

It’s an understandable practice. But it carries with it tremendous temptations to exaggerate, mythologize, or pay implicit tribute to Harry Frankfurt. So we come to the first paragraph of this essay in the online spaces of the midbrow conservative “public intellectual” publication City Journal. I have to wonder: Does anyone really think that anything in this paragraph after the first six words is true? Does the author, a law school graduate, really think so? I just can't see how.   

Hardly anyone reads law review articles, but those who do are among the most influential readers in the country. Supreme Court justices and federal and state judges rely on academic theories to decide important cases and to set the legal doctrines that shape American life. Professors shape their students’ worldviews by assigning articles appearing in prestigious journals to show that they are authoritative—the law equivalent of peer-reviewed. Though these journals are student-run and -edited, they often legitimize the ideas that become law and common knowledge.

Posted by Paul Horwitz on June 15, 2024 at 11:12 AM in Paul Horwitz | Permalink | Comments (0)

Saturday Music Post - I've Just Seen a Face

"I've Just Seen a Face" was released in the U.S. in 1965 on the Beatles' album Rubber Soul (it was on Help in the UK). It was written and sung by Paul, who also played guitar -- there was no bass on the cut. 

McCartney has called it a "skiffle" song, although the original cut (at the bottom of today's post) had a decidedly non-skiffle introduction. It has since been covered mostly as a bluegrass or C&W song. There are no live clips of it by the Beatles, but Paul performed it often with Wings. I don't know if left-handed Paul played the 12-string on the album, but he sometimes played one with Wings.

Paul's left-handed twelve-string is at the bottom of today's post at The Faculty Lounge.

Posted by Steve Lubet on June 15, 2024 at 04:05 AM | Permalink | Comments (0)

Friday, June 14, 2024

JOTWELL: Endo on Michalski & Hammond on pro se litigants

The new Courts Law essay comes from Seth Katsuya Endo (Seattle) reviewing Roger Michalski & Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 453 (2022), on the demographics of pro se litigants.

Posted by Howard Wasserman on June 14, 2024 at 01:03 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, June 13, 2024

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.

Posted by Howard Wasserman on June 13, 2024 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)