PrawfsBlawg

Challenging private enforcement

Rocky and I discussed this in our SMU piece, but I have been thinking about it more of late.

B8 and other exclusive-private-enforcement (or "vigilante federalism") draw two related-but-distinct objections. They force rights-holders to litigate their rights defensively, cutting off most offensive litigation; while offensive litigation is not constitutionally required, it offers certain advantages, notably not forcing rights-holders to "act at their peril" as a condition of litigating their rights. And they force rights-holders to litigate in state court.

The second objection arises from two limits on federal jurisdiction--the Well-Pleaded Complaint Rule and Article III standing. Both prevent the defendant/rights-holder from removing a state-court action to federal court. Under the WPC, federal jurisdiction requires the federal issue to appear in the complaint; the rights-holder's federal defense does not provide a basis for federal jurisdiction and thus for removal. And laws allowing "any person" to sue cannot be in federal court even absent the WPC, because a random "any person" plaintiff likely does not have Article III standing (even if he might have standing under more forgiving state law).

Of course, both judge-made limits on federal jurisdiction suffer from significant problems. The WPC arguably undermines the purposes of federal question jurisdiction (uniformity, expertise, respect); those needs are present regardless of the procedural posture in which the federal issue arises. A defendant needs expertise for a federal defense as much as a plaintiff needs expertise for a federal claim. Standing is stupid and not really jurisdictional, as I have argued. And even if jurisdictional, Andy Hessick argues that federal courts should apply state standing rules in diversity cases. Without both stupid doctrines, the defendant could remove the vigilante-federalism action and litigate in federal court, where she has a (perhaps) fairer and less-captured forum and a shorter path to SCOTUS.

This does not address the first objection--rights-holders should not be forced into defensive litigation. But the question is what is the real objection?

Saturday Music Post - The Last Thing on My Mind

In the early 1960s, Tom Paxton was one of the young folk musicians hanging out in Greenwich Village; a group that included Bob Dylan, Joan Baez, Phil Ochs, Janis Ian, and others. According to Dave Van Ronk, who was in a position to know, Paxton was the first of the group to perform mostly his own material, at a time when even Dylan was still singing traditional folk songs. They were sometimes called topical or "protest singers" for their songs about the civil rights and peace movements. Unlike Dylan, Paxton actually went south to register voters in the Mississippi Summer. (Dylan performed at the March on Washington, but he was not otherwise a movement activist). It's hard to recall the time when Tom Paxton was mentioned along with Bob Dylan. Nobody would ever suggest Paxton for a Nobel Prize, but he did write some beautiful songs, including "Bottle of Wine," "Ramblin' Boy," and "The Marvelous Toy," which were recorded by Pete Seeger, Joan Baez, the Chad Mitchell Trio (for which Paxton unsuccessfully auditioned), Harry Belafonte, Willie Nelson, Glen Campbell, and Peter, Paul, and Mary, among many others.

 Paxton wrote and recorded "The Last Thing on My Mind" in 1964. I saw Paxton perform live several times, but my tastes were so parochial back then, I am embarrassed to admit, that I was unaware of the uptempo cover by Dolly Parton and Porter Wagoner, which was their first big hit in 1967.

The clips are on The Faculty Lounge here.

"Let the Voters Decide"

In discussing Section Three of the Fourteenth Amendment, I sometimes get this question: "Why not just let the voters decide if someone should hold office?" I have a draft paper that discusses this issue in some detail, but let me make some brief points here.

1. Voters decide among eligible candidates. They don't decide who is an eligible candidate.
2. A Section Three violation (if there is one) is not technical or de minimus. For example, suppose a candidate needs to submit a certain number of signatures to get on the ballot. She falls two or three short or there are a couple that were filled out incorrectly. An election official could well say that this relatively minor error should not prevent the voters from having another choice. But that argument does not work for Section Three.
3. Congress is free to grant Section Three amnesty to a candidate to let the voters decide. Neither election officials nor the courts have that power.
4. The point of Section Three is that certain people cannot hold office even if voters choose them. Thus, "let the voters decide" is tantamount to nullifying Section Three. People could not vote for Jefferson Davis after 1868 no matter how much they wanted him.

In a separate post, I'll take up the argument that disqualifying Donald Trump from the presidential ballot would be "bad for America."

More on write-in ballots

Building on Gerard's post, I wrote this in 2016 and this in 2014 about limitations on write-in voting under Florida law (the later post has some useful reader comments addressing Gerard's question). F0rmer Florida Rep. Ileana Ros-Lehtinen wanted to write-in Jeb Bush for president in 2016; I wanted to avoid voting for Ros-Lehtinen in 2014. Florida law requires "write-in candidates" to qualify in advance (so they are not really write-in candidates in the sense Gerard describes). Florida excludes uncontested elections from the ballot because the voter has no choice but the unopposed candidate. Both reflect a prohibition on "let me write in a random name on election day."

Write-in Candidates

Primary elections are underway, which got me to thinking about the following problem. Suppose I want to vote for my neighbor, who is eligible to serve in the office for which I am voting. But my neighbor is not a candidate. So I march down to the polling place and ask to write in her name. The poll worker responds "That's not allowed under state law." I respond "But I have a constitutional right to vote for whomever I want who is eligible!"

Turns out, though, that you don't. Some states do not permit write-in votes, in toto or for certain elections. Most states do in some form, which raises the question of whether such a right should be recognized. (Granted, if I can write-in someone I can also say "Mickey Mouse" or "Abe Lincoln," but let's stick to living, eligible people for the moment.) There is good sense in saying that voting rights should not be restricted by the ballot. U.S. Term Limits v. Thornton did talk about write-in candidates, but I'm not sure what other cases have.

World Economic Forum on Agile Governance

Today in Tokyo, I am attending the World Economic Summit on Agile Governance: Governance Principle & the Pluriverse. That is a mouthful - here is the description: 

Digital and physical spaces increasingly coexist in today’s world, creating what some have called a cyber-physical systems (CPS) society. The role of cyberspace as both a source of value and a shaper of the “real” physical world is expanding, yet the social vision and governance model for such a society remains underdiscussed. Efficiency and manageability are hallmarks of highly digitalized CPS societies, but they can also be more humanistic if governed wisely. A well-run CPS society can handle complexity and respond to the diverse needs and values of its members, facilitating harmony and coexistence. The concept of the pluriverse encourages the development of a new, digital-age common sense – a shared vision that enables collaboration and agile governance suited to the needs of our emerging epoch. It is a worldview that includes radical difference and diversity, based not on a modern ontology that universalizes one type of rationality and separates humans and nature, but on a relational ontology in which all living beings and artifacts are interconnected and the principle of non-hierarchy is recognized.

This meeting is part of the G7 Digital and Tech Ministers’ taskforces that I am part of. We have been developing principles for the new digital economy.

Working with Japanese officials and academics on these questions has been particularly rewarding and illuminating for me -- in my book The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, I compare the attitudes of the Europeans and Americans to Japanese and Korean societies in the vision on how automation, AI and robotics can help [or harm] society. The taskforce has confirmed for me that Japan is forward-thinking on these issues compared to European counterparts that focus disproportionately on the risks and potential harms of AI. Of course both are needed - the critical and constructive. 

Never a Good Idea to Throw Down with Jon Stewart

Comments are open, but will be monitored.

 

Harry Belafonte (1927-2023)

 

Roberts to Durbin: Drop Dead

Chief Justice Roberts "respectfully decline[d]" Sen. Durbin's "invitation" to appear before a Senate committee to discuss the wave of ethics concerns surrounding the Court. The letter included a new statement of ethics principles, signed by the nine Justices. Citing "separation of powers concerns and the importance of judicial independence," Roberts (ever the wannabee-but-incomplete-historian, as per his Year-End Reports) recites a laundry list of the times in which the Chief Justice or President has testified before congressional committees, as all were on "mundane matters of judicial administration." Imagine a student whose answer begins and ends with "this has not happened before on a matter this serious, therefore it cannot happen now."

Of course, my students take class assignments more seriously than the Chief Justice of the United States takes a request from the Chair of the Senate Judiciary Committee about a public controversy that undermines the Court's shaky reputation. Roberts' statement rests on a series of unspoken principles that capture the political and constitutional moment.

• Because the Supreme Court is constitutionally required, it is not subject to any congressional control or oversight. Roberts could put off Durbin on the barest of reasons. Durbin declined to "invite" Justice Thomas because he knew Thomas would refuse to accept. Steve Vladeck has a thread on this, arguing for considering the separation-of-powers issue in its full historical context, not of the uniquely modern-and-unchecked Court.

• I do not know how the Court would react if Congress tried to bring back some control--for example, expanding the Court's mandatory docket or reinstating circuit riding (whatever that might mean without the old circuit courts). Would the Justices push back against this rejection of the Court as a complete government in itself, despite the historical pedigree?

• A subpoena is not coming, which is why Roberts does not fear escalation. Committee Republicans will not agree to a subpoena and Durbin lacks the political will to try. Anyway, Roberts would sue to challenge it, arguing that it lacks any legitimate legislative purpose (because of separation of powers and SCOTUS's special place and the historical fact that no CJ has been subpoenaed). At worst, he ties it up until the end of the Congress. At best, no district judge would deny that injunction. Recall Roberts' opinion in Mazars and the deep distrust of congressional (as opposed to judicial) subpoenas. (Side point: I remain unable to square Speech or Debate immunity with the right to pre-enforcement challenges of subpoenas).

• The triumph of the Levinson/Pildes separation-of-parties thesis, introduced in 2006 (another lifetime) but truer than ever. Madison and Hamilton's assumed that Congress would destroy a Chief Justice and Court that rejected Congress' constitutional role in this way--Congress acted as an institution to check other institutions. But the introduction of organized--and ideological--parties destroys that framework. Senate Republicans do not see the (Republican-appointed) Justicses' actions as the problem to be investigated and checked; they see their Senate colleagues' actions as the problem to be resisted, making life difficult for their ideological compatriots in the other branches.

Florida drops one effort to destroy the First Amendment

The Florida bill to overhaul defamation law, set up a challenge to New York Times, and allow public officials to sue critics into oblivion is dead, at least for now. (H/T: Volokh). A cynic (including my co-author) would say that some Republicans figured out that the changes were more likely to hurt conservative media. I think they could not get their shit together and it will return next year.

Harry Belafonte and the First Amendment

Harry Belafonte died Tuesday, at the age of 96. Belafonte was one of the celebrity signatories to Heed Their Rising Voices, the editorial advertisement seeking support for MLK and the civil rights movement that gave rise to New York Times v. Sullivan.

Slate Is Unfair to Tucker Carlson

Nitish Pahwa writes on Slate,

Tucker Carlson—the Fox News star whose brand of barely disguised racism, anti-immigrant nativism, Republican Party fealty, uninhibited disinformation, Trumpist election denial, and bizarre culture-war monologuing turned his show into the highest-rated cable news program in American history—was abruptly canned on Monday morning.

That is totally unfair. Tucker never, ever disguised his racism.

Is the Violence in Sudan “Partly Our Fault”?

When I saw the headline of an oped in the Sunday New York Times – “The Violence in Sudan is Partly Our Fault” – I expect to something shady or sinister, such as secret arms sales or coddling dictators. Instead, the essay by Jacqueline Burns, former adviser to the U.S. special envoy for Sudan and South Sudan, tell a story of failed well-meaning attempts – by the U.S. and others – to bring contending sides to the bargaining table. As was probably predictable, it turned out that the leaders of the various armed forces were never really interested in peace, but only in consolidating their power and waiting for an opportune moment to take over. Sure, they signed agreements, but they never intended to honor them.

Still, it is hard to “fault” the U.S. for trying. Burns never confronts what would have happened in the absence of U.S. and European diplomacy. It’s not as though the armed militias would have found a non-violent solution among themselves.

Burns does point out that most negotiations invariably neglected the voices and interests of women and other marginalized groups. That was surely wrong and blameworthy, but it is again hard to see how that would have made a difference to Generals Mohamed Hamdan and Abdel Fattah al-Burhan, who have instigated the current fighting that threatens to destroy Khartoum.

In fact, Burns notes that the eventual inclusion of women and marginalized groups, praiseworthy as it was, ended up making no difference:

Earlier this year, the various armed groups and civilian representatives once again met to finalize an agreement on the transition. This time, even though the negotiations included consultations with women and other previously marginalized groups, it was far too little, too late. Weeks after the meeting, the Rapid Support Forces and the army, on which Mr. al-Bashir’s rule had depended, are doing battle in the streets of Khartoum.

Was it “too little, too late”? Or were the generals out for their own power no matter who was at the negotiating table?

Burns’s solution, in her closing paragraphs, is to stop prioritizing “the voices of the armed and corrupt over those seeking real political reform and representation.” Thus,

The insidious nature of contemporary international conflict resolution is that, in its single-minded drive to get armed groups to put down their guns, those fighting for the real and lasting reforms necessary for peace too often get cast aside.

I just don’t see how negotiations to put away guns can succeed without speaking mainly to the people with guns. “Those fighting for . . . real and lasting reforms” will be at the mercy of the gun-holders unless something can be done to disarm them.

Of course, Burns did not write the headline, but it is still wrong to suggest that the U.S. is even partly at fault for the crisis in Sudan, at least for the reasons discussed in her oped. I do not mean to suggest that I have better information than she does about the situation in Sudan. Regrettable as it is, however, I suspect that realism will be more important than idealism when it comes to ending violence.

Social media and state action

The court granted cert in a case from the Ninth Circuit (finding state action) and a case from the Sixth Circuit (finding no state action and taking a very different analytical approach).

Beyond the conclusion, I am concerned for how the Court approaches this. Some lower courts apply a "close nexus" test, which usually applies to purely private actors engaging in private conduct having some government connection or requirement. The analysis here should be different, where the defendant is a government employee/official and the question is whether that official status enabled his conduct. These cases should look more like rogue or off-duty cops, as opposed to labor unions collecting fees through a government-controlled process. It is a subtle difference, but it is more than semantic.

On the other hand, dammit--the publisher said no substantive changes on these edits.

Oral Arguments in Groff: Reconciliation and Reasonableness

The following is by my colleague Kerri Stone, commenting on last week's arguments in Groff v. DeJoy.

On April 18, 2023, the Supreme Court heard oral argument in the case of Groff v. DeJoy. In this case, the plaintiff, a mail carrier who was an Evangelical Christian, asked to not work on Sundays as a reasonable accommodation under Title VII in order to practice his religion. The U.S. Postal Service denied this request, maintaining that this was not a reasonable accommodation and would confer an undue hardship on it. The questions presented were: “1. Whether this Court should disapprove the more-than-de-minimis-cost test for refusing Title. VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 2. Whether an employer may demonstrate ‘undue hardship on the conduct of the employer's business’ under Title VII merely by showing that the requested accommodation burdens the employee's co-workers rather than the business itself.”[1]

As noted above, at the center of the oral argument lurked the issue of the continuing viability and meaning of the 1977 Supreme Court case of Trans World Airlines v. Hardison, a case with a similar request for an accommodation that would afford the plaintiff a day off each week to observe his sabbath, that held that the defendant did not violate Title VII. The Court so held because, it said, an employer need not afford a religious accommodation that involves “more than a de minimis cost,” and the defendant airline had argued that the proposed accommodation would impinge upon its critical operations and function.  The Court found that since TWA made reasonable attempts to accommodate the plaintiff, but could not effectuate a shift or job swap, and the seniority system that prevented the plaintiff from getting the days off that he needed had been agreed to by the union and the defendant,  no deprivation of others’ rights under the seniority system was required.

The plaintiff in Groff has argued that Hardison standard fails to comport with Title VII, under which, he maintains, a reasonable accommodation can only be refused if it confers an undue hardship on the defendant. Solicitor General Elizabeth Prelogar, representing the Biden administration, for her part, advanced the argument that Hardison, should survive in some form.

Headlines like “Supreme Court may require employers to be more accommodating of religion,”[2] “Supreme Court seems sympathetic to postal worker who didn’t work Sundays in dispute over religious accommodations,”[3] and “Justice Samuel Alito appears eager to overturn 50-year-old precedent in favor of Christian postal worker who refused to deliver Amazon packages on Sundays”[4] all speak to observers’ seemingly shared sense that the Court is poised to overturn, or at least roll back the Hardison rule.  Indeed, NBC has reported that Justice Neil Gorsuch said that "Some courts have taken this de minimis standard and run with it ... and that's wrong and we all agree that's wrong," adding that perhaps, "we could do a good day's work and put a period at the end of it by saying that is not the law."[5] As NBC reported, the Justices seem poised to push back against the low employer standard:

That approach seemed to be favored by Justice Amy Coney Barrett, too, who suggested the case be sent back to lower courts with the instruction: ‘to be clear, de minimis doesn't mean trifling costs.’ The seeming consensus on the bench on at least some of the issues in the case was illustrated by a remark by Justice Elena Kagan.’ I'm so happy that we are all Kumbaya-ing together,’ she said.[6]

            I have a few thoughts about this case and about the signals that the Court may have sent that the standard for employer refusal to accommodate ought to be altered or at least clarified. Several scholars, I among them, have taken interest over the years in the disparity between the Title VII Hardison/de minimus standard for an employer’s refusal to make a religious accommodation, and the ADA ‘s “undue hardship” standard for an employer’s refusal to accommodate a disability. The latter standard asks whether the employer is being forced to incur a “significant difficulty or expense.”[7] To the extent that the Title VII standard may now, after decades, be brought in line with the ADA standard, I have several thoughts.

            First off, what was ever meant by the Hardison Court by “de minimus cost”? In other words, what do religious accommodations tend to look like? This was touched upon at the argument, but most seem to be for special food, permission to wear religious articles at work, space and time to pray during the day, and time off for a sabbath or an observance. Of these, only the time off seems to invoke notions of any significant “cost.” This cost seems to come in the form of disrupting pre-set systems whereby the accommodated person receives a benefit in the form of a scheduled slot or time off that was not initially supposed to go to them. In contrast, while a disability accommodation could involve days off, it could also entail the reassignment of certain tasks (like lifting), physical/structural changes to the workplace, or purchasing special equipment like books, software, or devices.

Secondly, why was there initially such a long-standing disparity between the Title VII and ADA accommodation standards? Is it because although ADA accommodations can sometimes displace or be seen to inconvenience an accommodated employee’s colleagues, this is seen as much more pronounced in Title VII cases? An amicus brief filed by the American Postal Workers Union in support of the defendant has alleged that a victory for Groff in this case will engender a “religious preference” when it comes to the scheduling of work on the weekends and systemic disadvantage for those who are not members of an accommodated faith. This supports the notion that he “cost” that has been too high for defendants for all these decades often comes in the form of premium pay for rescheduled workers, displaced, inconvenienced colleagues, and the loss of morale that comes from the sentiment that the group of accommodated people is somehow “favored.” 

Groff’s attorney at oral argument posited that undue hardship can only be claimed when the business as a whole is impacted, but not necessarily when the sole effect or impingement is on colleagues. Justice Kagan, however, raised the issue of how blurred a distinction that is; does imposing on colleagues necessarily impact the employing entity as a whole? Justice Barrett, for her part, approached the question as one of the erosion of morale, probing the specifics of what that would have to look like and how bad it would have to get before the standard for lawfully refusing a proposed accommodation was met. 

Thirdly, one must ask whether it makes sense to bring the two standards into any kind of harmony with one another. It is interesting to note that while Title VII harbors no sincerity-of-belief test for religion, ADA adjudications have long had bottle necks at the juncture at which class membership is determined—is the plaintiff “disabled” within the meaning of the Act? Perhaps it has not been coincidental that courts have been more loath to ratchet up the standard for employer refusal to accommodate in Title VII cases. Indeed, Justice Roberts and Justice Barrett pointed to the respective numbers of accommodation-seeking plaintiffs in each category and the respective levels of “discreteness” of the categories as they pondered the question of whether the ADA standard could really be imported in any meaningful way into Title VII.

Groff’s attorney invoked the absurdity of trying to reconcile the concept of “undue hardship” with anything more than a “de minimus cost,” and noted that the ADA’s “significant difficulty or expense” test made much more sense in context. The Solicitor General, for her part, urged that even in the Hardison opinion, the two terms were used together and that the concepts could be harmonized without creating a fracture line after so many decades of jurisprudence based off of Hardison.

Again, the Justices, particularly Justice Gorsuch, indicated that they were inclined to try to seek “common ground” reconcile the terms at issue, particularly as the whole undue hardship question is so fact -specific and context-dependent. There were simultaneous signals from the Justices that no proper reading ought to be that a simple “trifling” could rise to the requisite level—in other words, employers asked to make religious accommodations need to do more than incur the most minor of costs. 

It is also interesting that religious discrimination/failure-to-accommodate plaintiffs have been subjected to a higher standard than have their counterparts suing under the ADA because in recent years, religious claims and the protection of religion and religious employers have all enjoyed great favor in the courts. Notably, the Supreme Court recently ruled in favor of a dismissed public employee who coached football after he alleged that he was fired for leading prayers after games on the field.

Interested to see what others think will happen to the undue hardship standard and to Hardison as precedent as the Justices seek “common ground,” reconciliation. It is likely, judging from the oral argument, that the Court will try to leave Hardison undisturbed, while simultaneously underscoring that a trifling cost or burden will not suffice for an employer to lawfully refuse to effectuate a religious accommodation? But what will the necessary clarification of the standard look like? Will the Justices parse out the standard across different types of requested religious accommodations? How will “cost” be quantified at all? Is the notion of the cost coming at another’s expense, like a zero-sum game, what was initially meant by more than de minimus?

Finally, what about the fact that Congress has not acted to change the standard in Title VII to the ADA standard? Justice Jackson expressed reservations about disrupting the standard in place since 1977 when Congress has been aware of it for as long and failed to take any action. What would overreach versus appropriate adjustments/clarifications look like here?

 

[1] https://www.supremecourt.gov/docket/docketfiles/html/qp/22-00174qp.pdf.

[2] https://abcnews.go.com/Politics/supreme-court-require-employers-accommodating-religion/story?id=98662988.

[3] https://www.cnn.com/2023/04/18/politics/groff-dejoy-supreme-court-religious-liberty/index.html.

[4] https://lawandcrime.com/supreme-court/justice-samuel-alito-appears-eager-to-overturn-50-year-old-precedent-in-favor-of-christian-postal-worker-who-refused-to-deliver-amazon-packages-on-sundays/.

[5] https://www.nbcnews.com/politics/supreme-court/supreme-court-hears-christian-postal-workers-religious-claim-rcna80013.

[6]Id.

[7] Enforcement Guidance: Reasonable Accommodations and Undue Hardship Under the Americans with Disabilities Act, U.S. EQUAL EMP. OPPORTUNITY COMM'N (2012), https://www.eeoc.gov/policy/docs/accommodation.html [https://perma.cc/67RF-LXT3] [hereinafter Enforcement Guidance].

Northwestern University Law Review Exclusive Empirical Cycle - 2023

[Originally published March 20; moving to the top because the deadline is approaching.]

The Northwestern University Law Review is pleased to announce its sixth annual issue dedicated to empirical legal scholarship, to be published in Spring 2024. The exclusive empirical submission window will be open from March 20 to April 30.

 

The NULR Empirical Issue spotlights high-quality empirical research within the pages of a general readership law review. We welcome pieces which make use of any and all empirical methods—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest. You can see the diversity of our published empirical scholarship on our Past Empirical Issues page.

During the exclusive empirical submission window, NULR accepts empirical articles on an exclusive basis only. Participating authors agree to withhold the manuscript from submission to any other publication until receiving a decision from us. Participating authors also agree to accept a binding publication offer, should one be extended.

As in the past, the NULR Empirical Issue review process features a unique opportunity to have your article peer-reviewed by seasoned experts in the field. In order to facilitate the extensive peer review process, publication decisions will be issued by August 18, 2023.

Interested authors must submit articles and essays via Scholastica. More information about submission requirements and the empirical selection process is available on our Empirical Submissions page. Please contact Senior Empirical Editor Rachel O’Sullivan with questions at [email protected].

Saturday Music Post - While My Guitar Gently Weeps

Today's clips of "While My Guitar Gently Weeps" are on The Faculty Lounge.

"Punish Treason, Reward Loyalty"

Mark Graber's new book on Sections 2, 3, and 4 of the Fourteenth Amendment is now available for pre-order. To pinch a phrase from Larry Solum: "Highly recommended!" This book will probably get a lot of attention in the upcoming Trump litigation (as well as the debt ceiling debate). Here is the Abstract:

In contemporary constitutional politics, Section 1 of the Fourteenth Amendment—which includes the citizenship, privileges and immunities, due process, and equal protection clauses—is the star of the show. But this was not the focus for the Republican members of the Thirty-Ninth Congress. Their interest was instead in Sections 2, 3, and 4. Today we tend to think the purpose of the Fourteenth Amendment was to protect persons of color. But the Republicans engaged in Reconstruction saw its purpose as preventing “rebel rule” by punishing treason and rewarding loyalty, particularly the loyalty of white men who remained faithful to the Union during the Civil War.

In this first of three planned volumes for the University Press of Kansas’s Constitutional Thinking series, Mark A. Graber aims to restore to contemporary memory the Fourteenth Amendment drafted by those Republican and Unionist members of Congress who supported congressional reconstruction.

In Punish Treason, Reward Loyalty, Graber breaks new ground researching Reconstruction, the Fourteenth Amendment, and constitutionalism by highlighting the importance of Sections 2, 3, and 4 to the representatives in the Thirty-Ninth Congress and their relative indifference to Section 1. His work underscores the importance and impact that legislative primacy and partisan supremacy had to Republican constitutional thinking about constitutional authority immediately after the Civil War.

Centered on Reconstruction and constitutional reform, Graber shows anew the Republican effort to prevent rebel rule by empowering and protecting loyalty.

No standing even if you say obnoxious things

I forgot about the Connecticut attorney challenging a state law prohibiting ridiculing or holding people or groups up to contempt on account of creed, religion, color, and other characteristics. I wrote about the lawsuit 18 months ago, doubting standing based on his private practices of sharing Dave Chapelle videos and making fun of his Italian-American friends. The district court agreed that he faces no credible threat of prosecution, although only after the Connecticut Supreme Court answered a certified question that the statute does not cover private non-commercial conduct.

Interpretive Divergence

I've posted my case study of the New York Court of Appeals on SSRN, showing how the Court sustains formalism in contract interpretation whilst embracing a kind of pragmatism about statutory interpretation.  "Interpretive Divergence" is forthcoming in Notre Dame's Journal of Legislation.  Here is the abstract:

It can sometimes feel as if those who study legal interpretation assume that there should be harmonization in the law of interpretation: that courts should be interpreting legal documents—wills, contracts, statutes, constitutions—with similar concerns in mind. Those who like legislative history for statutory interpretation might be predicted to like parol evidence in contract interpretation. Teachers can tend to associate permissive admission of extrinsic evidence with a politically liberal ideology and more restrictive interpreters as politically conservative, however imperfect the correlation. This Essay focuses attention on the New York Court of Appeals, which is decidedly textualist about contract interpretation but decidedly purposivist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Essay then reflects on the practice of divergence, revisiting assumptions about why anyone might have thought harmonization was sensible.

About That $3450 "Article Publishing Charge" at Elsevier

Inside Higher Ed has a story about the mass resignation of editors at Elsevier's top neuroscience journal, in protest of the for-profit publisher's refusal to reduce the article publishing charge (APC) from $3450 to below $2000. Yes, you read that correctly, there is a fee of $3450 for authors to publish in the open-access NeuroImage (and its companion NeuroImage: Reports), which Elsevier has refused to reduce, even at the insistence of its 40 mininally-paid (or unpaid) editors and editorial board members.

Here are some excerpts from the article, which is worth reading in full:

The editors wrote in an email, “As you have confirmed that the APC will not be reduced, all editors from both journals are now resigning with immediate effect.”

They’re starting their own journal, taking themselves, the Twitter profile they were using and (almost) the same name. They plan to publish their new Imaging Neuroscience with MIT Press.

“Scientists and funders increasingly feel that it is wrong for publishers to make such high profits, particularly given that the publishers do not fund the original science, or the writing of articles or payments to reviewers and pay minimal editorial stipends,” the announcement said. “As a result, authors and reviewers are increasingly refusing to work with high-profit journals.”

This certainly makes law review publishing -- supported by free labor, but always open access -- look better in at least one regard.

You can read the full story at Inside Higher Ed (not paywalled).

Comments are open.

Dr. Glaucomflecken on the Economics of Academic Publishing

Comments are open.

 

What are the Best and Worst Times to Look at History?

"The answer to both questions, I should think, it: When it's relevant and current. It's the best time to do so because it's, um, relevant. And it's the worst time because moments of currency are when most people do the worst job of looking at history and, unless they are otherwise expert in the subject and thinking clearly, are most likely to rely on a canned and imperfect narrative."

The writer is Past Paul Horwitz. I started writing this post early last week, after Adam Cohen wrote an op-ed for the Times arguing that one distressing thing about the then-current news concerning Justice Thomas and his acceptance of generosity from a billionaire friend acquired after joining the Court is "the lack of bipartisan outrage at malfeasance that corrodes the standing of the nation’s highest court." Cohen's op-ed contrasts this with the fate of Abe Fortas, who was embroiled in controversy for initially accepting a payment from Leonard Wolfson, a financier ultimately convicted of securities violations. He argues that once the worst of the revelations about Fortas came out, "Congress respond[ed] firmly and in bipartisan fashion," leading to Fortas's retirement from the Court.

Since then, more people have discussed the Fortas story. They include Steve Vladeck, here, and a Washington Post reprint of its story about Fortas's resignation. (Below, I also reference a contemporary story from the Times. What strikes me the most about both stories is that in an era when space was at a premium, both stories were longer and gave more details than contemporary news stories, and also the utter lack of evidence that the endlessly self-trumpeted move away from "objectivity" has improved the quality of journalism in either paper. If anything the reverse is true, although I'm not claiming a causal relationship.) I draw on Cohen below as my foil. I have relatively little to say directly about the question whether, as Cohen argues, Thomas's behavior was far worse. I also have little if anything to say in his defense, and make a general point that applies to both Fortas and Thomas and is critical of both. My broad point is that the Fortas story as it has been presented in its canned-narrative form is incomplete and misses a good deal, some of which disrupts the point that Cohen, at least, wants to make, and thus shows how drawing on history in the moment generally disappoints or misleads. But the fuller version does offer some interesting potential lessons, some of which might suit Cohen and some of which might not, and that certainly wouldn't suit others, either in the camp that is critical of Thomas or in the camp that wishes to portray all of this as no big deal. Find a relaxing seat; uncanned history takes time. In keeping with my views on blogging and service to readers, I have gone unbearably long, left the takeaways until the end but buried plenty of observations in the middle, and omitted a jump page.   

Let's start with Cohen's op-ed and the state of affairs circa Tuesday of last week, after the first-round story about Thomas and his friend-cum-benefactor. Strikingly, Cohen's account omits the killing of Fortas's nomination to the office of Chief Justice of the United States. At that point in Fortas's tale, the Senate had before it at least one fact that can be analogized to Thomas. Cohen describes it misleadingly as "an earlier controversy over a course he was paid $15,000 to teach at American University while on the court." (Other accounts put the payment amount at $20,000.) This leaves out the nature of that invitation. The source of the payment for that course was Fortas's former partner Paul Porter, who lined up the gig at American--with initial plans for it to run indefinitely--and raised the $30,000 needed to pay for the course from rich friends and former clients of Fortas and the firm. At the time, the payment to Fortas represented a bump-up of 40 percent over his salary as a justice. Fortas was sincere about wanting to teach, and Porter said Fortas was unaware of the identities of the donors. At a minimum, however, it's clear that a major purpose of the course and the fundraising was to address Fortas's restlessness and unhappiness on the Court and his displeasure with the large drop in his income. 

The American University payment was only one part of the ammo used against Fortas in the chief justice fight. Another was what we could call culture-war nonsense, which is how the historical record treats it. Or, as we would call it if we were describing, say, the Gorsuch nomination, we could call it tough questioning about outré substantive decisions. A third was something else that may be relevant for analogy-drawing purposes: the well-known fact of Fortas's concurrent service as justice and unpaid advisor to LBJ. This Cohen gently describes as Fortas's "unfortunate habit of continuing to offer advice to President Lyndon Johnson, whom he had long advised, even after joining the court." There was no way to deny the relationship. But it could be finessed; or, as Laura Kalman puts it in her Fortas biography, when quizzed about it in committee, he "simply lied."

In the event, it was not enough. Fortas's nomination failed to get past a cloture vote, and with the writing on the wall Fortas asked Johnson to withdraw the nomination. But we certainly had not gotten to the "firm and bipartisan" part of Cohen's story. Some Democratic Senators defended Fortas throughout the process. The Judiciary Committee's 11-6 vote to send the nomination to the floor included three Republicans for and three Democrats against. The cloture vote was 45-43, well short of the two thirds needed. The count on that vote included ten Republicans voting for cloture, and 35 Democrats voting for it as well, along with 19 Democrats voting against along with 24 Republicans. 

At this point, we could still agree with Cohen's efforts to paint the opposition to Fortas as bipartisan. But, as with the ultimate controversy that drove him from the Court, that would be misleading, because it treats late-60s Democrats and late-60s Republicans as if each were cohesive, ideologically and politically united parties. Of course, they weren't. What killed the cloture vote, and thus Fortas's nomination to be chief, was an alliance between Republicans, less those primarily moderate or liberal Republicans who split off, and the conservative southern Democrats who, with their voters, would soon enough would leave the party.      

Cohen's op-ed, as I've suggested, omits nearly all of this and focuses instead on the controversy that led Fortas to step down from the Court. That controversy involved a payment from Louis Wolfson, a sometime client of Fortas, a man seen by some as shady and whom Fortas liked, according to Kalman. Cohen eases into his account of this issue, initially describing it in the op-ed as Fortas having accepted a payment of $20,000 "to consult for a foundation working on civil rights and religious freedom." But he does note fairly quickly that the plan was for annual payments to Fortas for the rest of his life. 

Cohen does not say, however, that the payments were to go to Fortas's wife for the rest of her life if he predeceased her. Nor does he note that Wolfson's payment had as much and as little to do with sincere support for research into civil rights and religious freedom as the payment to teach at American University. In both cases, the history makes clear, a primary purpose for both payments was to supplement Fortas's income, which was a drop from what he had been making in private practice. Wolfson also wanted, at a minimum, to be close to the great and be able to brag about it, although he also attempted to trade on Fortas's name in defending himself against government investigation. The income-supplementing point would have been clearer had Cohen noted that the source of what he calls, using the passive tense, the payment "to teach at American University" was his former partner Paul Porter, who lined up the gig at American--the initial plan was for the course to run indefinitely--and raised funds from rich friends and former clients of Fortas. Cohen notes that Fortas quite the Wolfson-funded foundation he belonged to, returned the first payment, and didn't take any more. He might have pointed out that Fortas didn't disentangle himself from Wolfson until after he'd been pressed to do so by his law clerk, Daniel Levitt, and only after telling Levitt to mind his own business. (Meanwhile, Fortas was busily trying to line up other arrangements, with bodies like the Twentieth Century Fund and the Russell Sage Foundation. For reasons that always escape me, but that seem to involve a blind spot of political sympathy and an establishment-oriented sense of what is and is not au fait, we seem to have a blind spot when it comes to bien-pensant foundations, also funded by plutocrats, that bestow garlands, perks, and comforts on justices and buy access and proximity to them. Judges, academics, and law schools that speak truth to power would be lost without billionaires and multi-millionaires and their tax-reduction vehicles.) 

We now get to the nut of Cohen's argument. He notes that the Wolfson stories came out in part because of, and were pushed by, efforts by the new Nixon administration. He then notes that Democrats began joining the Republicans in calling for Fortas's resignation, and that these included moderate and liberal Democrats. This is true and perfectly commendable. But it's something of a romantic depiction. For one thing, he might have noted that the Judiciary Committee had become aware of a connection between Wolfson and Fortas in September 1968, and both the committee and Attorney General Ramsey Clark declined to pursue the issue. He might have acknowledged that even after the stories came out, some Democrats remained in Fortas's corner, privately or publicly, and others simply remained silent. He might have noted that Justice William O. Douglas, who had his own corrupt relationships and thus had some stake in the matter, urged Fortas to hold fast--and that, when the Nixon Administration pushed to impeach Douglas, House Democrats killed the effort.

Finally, Cohen might have shed some light on our propensity to overlook and forgive the faults of our friends and allies, at least until enough time has passed to safely allow a different historical judgment to form, by observing that it took years for many to think of Fortas primarily as an ethical failure rather than as a great Warren Court justice and liberal brought low by Nixonian tactics. As Lucas Powe notes in his history of the Warren Court and American politics, two years after Life Magazine had published its revelations about Fortas, it ran the results of a survey of constitutional law scholars rating Supreme Court justices prior to the ones appointed by Nixon. Powe writes: "In anticipation of the ethical blindness that would descend upon the profession generally, Fortas was rated--along with Brennan, Douglas, and Harlan--as near great."

Similarly, a look at the law review literature between Fortas's resignation and the reassessment occasioned by the passage of time, by Bruce Murphy's book about Frankfurter and Brandeis, and later by the publication of Kalman's biography shows very little scholarly interest in Fortas or his ethical lapses. He was mostly passed over in silence, as one does with embarrassments. One is never surprised when law review eulogies soft-soap their subjects, only when they don't. Nevertheless, one might note that on Fortas's death, Justice William Brennan wrote in the Yale Law Journal that Fortas's "work, career and character...exemplified the judicial role at its best," and that the other tribute it published, which stuck determinedly to Fortas's civil liberties work titled "Abe Fortas: A Man of Courage," stuck to Fortas's civil liberties work in the late 40s and 50s and was titled "Abe Fortas: A Man of Courage." That tribute may have followed the strategy of Anthony Lewis, the definitional center of establishment legal liberal opinion, whose Times column eulogizing Fortas began, "When Abe Fortas died on April 5, people inevitably thought about his service on the Supreme Court and his forced resignation. But there is reason to reflect on his earlier years as a lawyer." I'm not privy to faculty-lounge gossip from the 70s and 80s. But I suspect that in those corners, the assessment of Fortas during that period would not have seen Fortas as a villain or rogue, but as a disappointment and a fool, who (along with LBJ) stupidly gave the Nixon administration the tools to launch the Burger Court "counter-revolution."

This history is, to my mind, much more interesting than the canned narrative Cohen provides. (Of course he had much less space to work with, a point with which I have some sympathy but not much; not writing an op-ed is always an option. But it's also beside the point. The convenience of a canned narrative lies not in the fact that it's short, but in the fact that it's canned: it's conventional, neat, digestible, usable, and comforting.) It's also more instructive. I take no position on whether, at the time Cohen published the op-ed, he was right in saying that Thomas's conduct--as of the state of knowledge about it at that time--was "far more egregious in scale than Fortas's," although I do think both that Cohen can make a reasonable argument on that point and that his assertions on the point, at the time and with the information he had then, are also both contestable and overconfident. But I am happy to take the assertion that Thomas's conduct (again, as of our state of knowledge after the first ProPublica story) is as bad as or worse than Fortas's. I am happy, too, to say Cohen makes a reasonable point in saying there was more bipartisan condemnation of Fortas and that this sort of bipartisanship is devoutly to be wished for. 

But it seems to me the fuller history suggests some different points than Cohen makes. The first is a simple point of clarification. The version of the story in which Fortas's resignation as showing admirable bipartisanship and today's treatment of Thomas as showing wicked partisan complicity is overstated and (perhaps inevitably) presentist. As is almost always the case, a close-up view of the past muddies the waters and makes confident assertions of this sort difficult. It shows that bipartisanship was closer to the exception than the rule, and that much of the bipartisanship, notwithstanding Cohen's examples, had to do with the makeups of both parties being very different. (I don't think this is the entire explanation. Cohen's examples of moderate-to-liberal senators criticizing Fortas--but, note, later in the process, not necessarily during the nomination to the chief justiceship--are good ones, albeit not necessarily representative. I think it is quite possible that some norms around both the senatorial role and the expectations that office holders have for themselves and others have changed, in some ways positively and in many ways negatively. Query whether many of the desires that are strongly expressed about what one's party should do, how its representatives should behave, and who should be elected would ease or exacerbate these very problems.)

A look at how that past has been received over time also complicates matters. Cohen is free to say that the meaning of the Fortas affair is clear. But he might more properly say, "The 2023 version of the meaning of the Fortas affair is clear." A 1973 version, 0r a 1983 version, might be different. (Indeed, as I suggest below, it's not even clear that the 2023 version for Cohen is the same as Cohen's version of the lesson of the Fortas affair in 2020.) That earlier version might be the "clear" lesson that Nixon was a bastard, full stop; or that, absent stronger resistance, unscrupulous politicians will leverage scandal to force judges off the court so they can reshape it to their own ends, even if others have engaged in that behavior or the so-called bad actor returned the money or the rules or their application are unclear (which is more or less the 2020 Cohen "lesson"; or that judges should be above reproach not because we care what they did, for the most part, but so that they are not vulnerable to the underhanded tactics of their enemies. Certainly the historical judgment of Gerald Ford is not that he behaved admirably by seeking to impeach William Douglas, even if Douglas acted wrongly. And although Cohen praises some Democratic senators for criticizing Fortas, I can't think of many examples of praise for Mitchell or Nixon or the Life Magazine reporter for revealing Fortas's conduct. At the least, the fact that the received wisdom on the Fortas affair was different at different times should make us less confident of the "lessons" we draw from it today and more aware of the distortions that enter in when we render history "usable."      

A point related to this is that both structure and actual preference today favor a political alignment that encourages the kind of situation that Cohen deplores. Plenty of people and interest groups deplore ideological diversity in their own party and view so-called party moderates as false friends and bad influences who should be drummed out of the party. (They tend to approve of moderates on the other side, at least once they've been elected, while favoring and sometimes working toward the election of the more extreme members of the other party at the primary stage.) Plenty of people in both parties think presidents who nominate moderates for judgeships are failing in their duty and ceding victory to their opponents. It's possible that some of the moderate or liberal Democrats who publicly criticized Fortas would have done so no matter what, and that this represents a genuine falling-off in our politics--albeit a falling-off that many perversely desire. But it's also possible that without the Southern Democrats, the ranks would have closed around Fortas much more fully and successfully. The road to a saner response to misconduct by judges and other officials runs directly through ideological and party impurity.  Insofar as they also serve as pressures for party purity and against heterodoxy, the interest groups that play a huge role in the political ecosystem may simultaneously help to uncover and publicize ethical lapses by their adversaries and help maintain a system in which those efforts become one-sided and partisan and fail. (There are exceptions. Some groups focus on ethics from a bipartisan perspective. But of course the picture is muddier than that. CREW calls itself nonpartisan but that is a transparent  stretch. Public Citizen is supposed to be but doesn't always act like it. It's hard for a group to keep funding, support, and staff for the mere mission of holding everyone to high ethical standards.)   

Another point is that, then and now, most people who support a justice's politics will remain silent even if they privately question that justice's conduct. Today they would just need to call out numbers to justify that silence, where the numbers represent ritualized responses in the game of culture-war politics: "23," for instance, might mean, "[X] is happening in the world right now, and this is what you decide to complain about? I'm too busy focusing on [X] to talk about this," and "42" might be, "This is coming from a reporter with a clear bias, and although I've been arguing for openly political journalism, I decline to trust that journalism when it comes from the other side, so I'll wait for more before commenting." But silence has always been an option and remains so. Where they are silent, moreover, that silence might not suggest approval; on the other hand, it may well be that they quietly consider the bad actor a fool who handed over ammunition to his or her unscrupulous enemies rather than a villain. 

A further point is that the Fortas affair and its "lessons" should make us more hesitant in assigning a role to the "villains" and "heroes" in such a story, or at least moderate our interest in the relevance of that question. ProPublica is a gift to journalism, especially given how little actual journalism there is. (Even leaving aside the death of local papers, on any given day I may find a good investigative piece in the Times but will almost certainly find a piece about Succession--at least five, actually, in the last seven days--or something equally trivial and cheap to produce. (It is either ironic or indicative or both that Nikole Hannah-Jones, who once reported on a story in Tuscaloosa involving my wife for ProPublica, effectively ceased doing journalism when she joined...the New York Times.) But of course its tendencies lean liberal or left. Does it matter? If ProPublica revealed valuable and disappointing or scandalous information about Justice Thomas through actual reporting, are its politics relevant? If someone like Sheldon Whitehouse, who hasn't a nonpartisan bone in his body, uses this occasion to push for information or reform, does it matter that his main interest may be scoring points or giving a Democratic president a Supreme Court seat to fill? By extension, if--as Cohen takes to be the case--Mitchell and Nixon did indeed reveal unethical and disqualifying conduct by Fortas (a point that was of course contested at the time and later), do we care that they were acting for their own ends? Do we care that Life Magazine leaned right? We should care about the accuracy of the report, and we may care about the tactics involved in obtaining or disseminating the information, although in the latter case we care for process reasons and not because those criticisms alter the underlying facts. But should we care beyond that? It is clear that some of Thomas's defenders do, even though those questions don't alter the fact of whether Thomas acted improperly or foolishly or not.

It would seem that as of last week, Cohen does not think we should care beyond that. He praises Democratic senators who urged Fortas to resign, saying they "were more concerned with the court and the country than with their ideology or their party," and although he notes that Nixon was pushing the effort to get rid of Fortas, "including with some improper leaks," he soft-soaps the history on that point and doesn't suggest that Fortas should have stayed on that account. But in his 2020 book Supreme Inequality, Cohen gives an almost entirely different picture. There, Fortas suffered a "forced resignation" (as opposed to Earl Warren's strategic resignation, timed to allow Johnson to fill his seat, which Cohen praises as Warren's "plan for saving the Court") at the hands of the underhanded Nixon administration, whose depredations he describes in loving detail; there is no praise offered for Democratic senators who abandoned Fortas, no paeans to bipartisanship, lots of leaning on the "no technical rules broken" and "other people did it" lines of argument, and plenty of criticism of Warren for not sticking by Fortas. The Cohen of 2023 confidently describes the Fortas resignation as "a blueprint for how lawmakers could respond today." The Cohen of 2020 calls the whole episode "disreputable"--for Fortas's adversaries, to be clear, not Fortas, who gets off with a verdict of "problematic." The judgments are so different that it would be natural to assume they were written by two different people.

It seems to me that if one thinks Fortas did nothing wrong, then one can argue he could or should have stayed on the Court regardless of who was pushing for his resignation and how bipartisan the effort was. If he did do wrong, then he could or should have stepped down regardless of who was scheming for his resignation and regardless of whether his critics were bipartisan or not. Similarly, if Thomas did not act improperly (and even aside from questions of fact, the Two Cohens, like the rest of us, may have an inconsistent set of metrics for whether technical compliance, according to a technical, lawyerly interpretation, is enough, or whether impropriety sufficient to suggest resignation is a matter of the spirit or the letter), he can or should remain, without any particular regard for whether his defenders are self-interested partisans and with equal disregard for the identity of his critics. If he acted improperly, he can or should resign even if the controversy is also or even primarily an effort to find a weak link and pull on it in an effort to change the composition of the Court, and regardless of whether he has or lacks support from Republican lawmakers. The judgment of history--which, as we've seen, won't be one judgment but a shifting series of judgments, even for the same person--will be what it is. The judgment of the individual judge about what integrity and propriety demand is its own question, which can't be shaped by the composition of either one's critics or one's defenders.

A final lesson of the Fortas affair and its comparison to the Thomas affair is, I think, true and valuable and somewhat neglected in the current discussion, and has become ever more true as more stories about Thomas's relationship with Crow have come out. Much of the discussion has centered on Corruption with a capital "C," thus making it important whether Crow was a real "friend" or someone deliberately cultivating a judge who may as a result rule in favor of the causes that person supports. But I don't think Wolfson's unsavory nature was as important, as a takeaway from the Fortas affair, as the fact that he liked to be well-connected, to know people, largely for its own sake. People love to have important friends. In that group, which includes most of humanity and almost all of humanity in the professional-managerial-creative class, the people who most love being near the powerful or famous move to LA or DC and make it a lifelong pursuit. The great and wealthy and famous, who are magnets for these people, have two options: they can accept it as their due, or resist it. The fact that some of these people might become genuine friends changes nothing. It certainly does not change what matters most: the small-c corruption of it all. (I might add that although they became friends long before one became a Supreme Court reporter for NPR and the other a Supreme Court justice, even Nina Totenberg admits that remaining an intimate of Ruth Bader Ginsburg led to small-c corruption for both of them.) I have no reason to disbelieve Thomas when he says that Crow is a genuine friend, but also not much reason to care. Crow's generosity to Thomas might be both sincere and financially trivial to him, in the same way that the Aspen Institute or Salzburg Global Seminar needn't count their pennies when cultivating Justices as summer speakers and teachers. But it's just...gross, and unnecessary, and, whatever the justices themselves might think of this or that friendship or invitation and their reaction to it, corrupting. 

One wants justices to live something of the life of human beings, with the social contact that is necessary for a human being to remain sane. But for the period of their tenure, I prescribe a fairly insulated, artificially cloistered life, with the deliberate shedding of a number of old and genuine friends and acquaintances and extreme caution in making new ones. No dinners with Nina, no vacations with Harlan, no fancy holiday parties, no star appearances at ACS or FedSoc or the AALS, no bloody memoirs and no book tours, and no "A-lister" rounds of the "embassy party scene." I give full credit to Thomas for a different way in which he has remained social and fought isolation: by touring the country in his motor home. I'm all in favor of Little League and Boy Scouts and trips to the Safeway. But between a sane and social life in which new friendships, naturally enough for rich and powerful people, are going to involve other rich and powerful people, and a depressingly lonely and isolated life, I counsel the latter. That it might make them miserable is of no consequence to me. That's especially true because its cure is always at hand and involves what they all ought to be doing anyway: serve for ten or fifteen years and then move on.  

 

 

Viewpoint discrimination in synagogue protests (Updated)

I have written the past couple years about ongoing anti-Israel (drifting many descending into blatant anti-Semitic) protests outside an Ann Arbor synagogue. Several congregation members brought a tort claim against the protesters. The claim (rightfully) failed in the Sixth Circuit. Ronald Lewin, a veteran religious-liberty litigator, sought cert, arguing that protest (at least the sort of obnoxious protests at issue here) should be prohibited outside houses of worship, as obnoxious protests are prohibited outside reproductive-health facilities. SCOTUS denied cert.

But then we have this story-- a gay Orthodox Jew has protested outside a Florida Orthodox shul every Shabbat and holy day, after the rabbi asked him and husband not to return because homosexuality violates Jewish law. I cannot identify a more appropriate place for this protest, showing the problem with Lewin's categorical bar. And if this protest is ok, we encounter obvious and egregious content (if not viewpoint) discrimination.

Update: An Ann Arbor resident suggests I understated the anti-Semitic nature of some of the protesters and signs (such as "Jewish power corrupts"), so I amended my language accordingly.

Live Streaming Opinion Announcements

This morning the Supreme Court accidentally live streamed part of the opinion announcements. They should just live stream all of these announcements. I see no reason why they are different from oral arguments.

In the past, opinion announcements involved more ad-libbing from the Justices and sometimes got very heated. Perhaps that's why they don't want this released live, but that's not a great reason.

Fox and Dominion settle

For $ 787.5 million, just on the Fox side of meeting halfway. Unsurprising.

Settling the typical defamation is problematic from a First Amendment standpoint--the court loses an opportunity to declare First Amendment values and the prospect of that even a nuisance settlement (which partisans will pitch as more, see Nicholas Sandmann) will incentivize new suits. Dominion was the rare case in which the plaintiff had a genuine chance to win and the evidence from the summary judgment record showed genuine wrongdoing by the media outlet. The settlement thus deprives the public of insight into the Fox News' problematic operations. And Fox News and others retain incentives to do this all over again.

Shakedown, 1979

I waited in line for 1 hour, 21 minutes to get gas today. And I ended up at that station because every place closer to FIU, closer to my house, or on the way from my kid's school to work was out.

Torrential rains last Wednesday caused flooding north of Miami (Fort Lauderdale Airport was closed for a couple days) and slowed gas trucks from getting through to Miami-Dade. There is enough gas. But people began panic-buying and hoarding (drivers filled multiple gas cans in addition to their cars), straining supply. They say it may be a couple of weeks before the situation normalizes.

Fortunately, our governor is handling the problem by threatening to build a prison and release prisoners next to Disney World.

(BTW, Steve: Include this in your list of great baselines).

 

FIRE adopts preferred first speaker

According to FIRE Executive VP Nico Perrino, in an op-ed endorsed by the Chief of the LAPD. Here is the central basis for the claim:

Protesters have every right to engage in peaceful, nondisruptive protest. But they do not have the right to take over someone else’s event and make it their own. This is a basic point, and we understand it in almost every other context. Nobody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors or to scream at a public library book reading.

Just because the public is invited to attend an event — and sometimes to speak during a Q&A period — does not make it the public’s event to disrupt or transform as it pleases. Your distaste for a speaker doesn’t grant you a right to prevent a willing audience from listening to that speaker.

There must be places in a free and pluralistic society where groups can freely associate and share ideas without first seeking approval from a crowd of hecklers. Colleges are such spaces. It’s the very reason they exist.

The first speaker has full First amendment rights and can say or not say what he wants. Counter-speech is proscribed--peaceful (must all speech be "peaceful') and not interfering with the first speaker (who presumably can speak over the counter-speaker). Maybe the counter-speaker has a right to speak during Q&A. But the first speaker controls who gets to speak in that window and presumably can ignore any counter-speaker or any audience member who wants to challenge what he says.

Perrino works off the paradigm of the Judge Duncan/Stanford debacle--invited speaker in a reserved speaking space on a college campus with an audience space that likely is a non-public forum.I see three big problems with Perrino's argument. But he draws from that paradigm a general principle: counter-speaking to and over a speaker in the moment is not protected speech.

I see several problems with that focus and that conclusion.

 

1) Perrino may be broadly right about that paradigm. He tries to bolster the point that "[n]obody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors," bolstered by a recent story about audience members singing "I Will Always Love You" during the finale of the show The Bodyguard.

Rather than "heckling is never protected speech," a better framing is "heckling is protected speech, but it yields to content-neutral rules in a forum." This may seem semantic, but semantics matter. A rock concert is protected speech, although it may have to follow neutral noise regulations; driving around town playing music and speaking through a speaker is protected speech, although it may yield to neutral noise regulations. If heckling is never free speech,  it remains unprotected when the forum-and its rules and expectations--changes. While the audience should not sing along at a musical, the audience does (and the performers expect the audience to) sing along at a rock concert in the same theatre. Cheering speech at a soccer match looks different than cheering speech at golf tournament.

2) The premise that "heckling is never protected speech" affects what counter-speakers must do and the form of counter-speech FIRE's solution is the alternative program--find a room elsewhere and express your ideas to a separate audience. But that is not counter-speech or protest, as it does not allow counter-speakers to be heard by, respond to, or protest their target.

Counter-speakers could instead take to a nearby public forum (e.g., a public campus space near the building containing the reserved space) and protest there. But Perrino's view forecloses that option. If heckling is never protected speech, then counter-protesters cannot heckle in a traditional public forum; the original rally or demonstration remains s "someone else's event" that counter-speakers "take over" (at least to the extent they are loud and can be heard). That traditional public forums allow for competing groups to be heard or that the rules account for "prolonged, raucous, boisterous demonstrations" does not appear to matter.

Worse, it carries to speakers and counter-speakers occupying the same public forum. Thus, counter-protesters on the of the U Va sidewalks cannot outnumber and outspeak the Proud Boys walking on the campus streets chanting "Jews will not replace us." Pro-equality protesters on the sidewalks around city hall cannot outnumber and outspeak the Klan or Nazis holding a rally on the steps. Students at FIU cannot outnumber and outspeak the bigoted "preacher" using the quad. This is an impoverished view of the role of counter-speech.

3) Perrino's analysis is incomplete within his reserved-classroom paradigm because he does not define "peaceful" or "nondisruptive." If peaceful means non-violent, the word does nothing--neither original nor counter speech can be violent. If peaceful means silent or nonverbal, that proves too much. Audience members can react out-loud to speech--booing, hissing--up to some undefined point of disruption. (Stanford Dean Jenny Martinez recognized this in her post-Duncan letter). No one has defined disruption--whether it means preventing the reserved event but does not include momentary reactions that cause the speaker to pause or delay but that do not undermine the event.

Positive non-silent reactions--applause, laughter, cheers, snaps--may cause the speaker to pause or delay; speakers build those delays into their speeches. If the forum rules prohibit non-silent reactions, they must prohibit positive and negative reactions. Otherwise, the rules cease to be viewpoint neutral, as required in a non-public forum.

4) Perrino doubled-down in a Twitter thread, arguing "[i]f you take over someone else's event, call it what it is: punishable civil disobedience, not free speech." On this point, I would recommend Jenny Carroll's (Alabama) forthcoming Yale L.J.  article arguing for a First Amendment civil-disobedience affirmative defense to crimes (e.g., trespassing) arising during protests; the idea is to allow juries to consider the expressive nature of the person's (prohibited) conduct and acquit accordingly. I wonder how the defense would apply in the context of a disruptive counter-protester.

5) That the police chief seized on the simplest version of Perrino's argument--based on the headline that Perrino may not have written--raises further red flags.

6) Perrino (and FIRE) overuse "heckler's veto." Perrino criticizes those who argue that hecking is "'more speech,' not an attempt to carry out a 'heckler’s veto' on the speaker." A heckler's veto occurs when government silences a speaker out of fear of the audience reaction to speech. It might extend to a complete prohibition on a speaker (e.g., the speaker must cancel the event) where government officials fail to enforce a forum's regulations against a hostile audience; Duncan could have become a heckler's veto had the students pushed further. Absent government action and the speaker being prevented from speaking, it is neither fair nor appropriate to call counter-speech a heckler's veto. This framing accepts and instantiates the preferred speaker. It assumes a  "first" speaker and gives him preferred status. It assumes that one speaker has priority, that anyone on the other side is a heckler rather than a speaker, and they censor, rather than counter-speaking or presenting competing ideas, censor. The Proud Boys at U Va have priority over their critics, their critics are not speakers, and their critics do something wrong by appearing in larger numbers and  uttering their message more forcefully.

7) I have made this point before. Under Perrino's argument, the pro-Ally/anti-Nazi patrons of Rick's engaged in a heckler's veto or acted as censors here. Or the rules of Rick's as a forum are different than the rules of a classroom at Stanford Law School. But the "heckling is not free speech" cannot stand as a blanket principle.

 

I plan to return to the preferred first speaker this summer, although I have been struggling to figure out how to approach the problem. This offers some organizational ideas.

A Jewish NBA star

NBA star Domantas Sabonis of the Sacramento Kings is converting to Judaism. He and his Jewish wife keep Kosher and Passover and observe Shabbat (within the confines of an NBA season).

This could be interesting. I think Sabonis is, right now, the third-best Jewish NBA player in history, behind Dolph Schayes and Amar'e Stoudemire (converted in retirement but his career counts as "Jewish" under the Steve Yeager/Joe Horlen Principle). Sabonis is in his seventh year in the league, has made three All-Star teams and should be All-NBA this season. And it could be fun to watch him hopefully stay healthy and climb that ladder. After all, Schayes could not play in today's NBA and Stoudemire struggled with injuries the last five years of his career.

Domantas is the son of Soviet legend Arvydas Sabonis who played seven excellent seasons in the NBA, but whose best years were lost behind the Iron Curtain. Here is a fun story about Arvydas and his connection to legendary LSU coach Dale Brown.

The Debate On Section Three Enforcement

Late last month, Free Speech for People issued a report that I co-authored on enforcing Section Three of the Fourteenth Amendment. I will have more to say about the report, but today I want to make one observation that is part of an ongoing conversation about this issue.

In my original Section Three article and in this report, I contend that Chief Justice Chase’s interpretation of Section Three in his circuit opinion in In Re Griffin was inconsistent with his conclusion about Section Three in the pre-trial proceedings for Jefferson Davis’s treason trial. (For purposes of this post, it’s not necessary to get into the weeds on that claim.)

With their permission, I can say that Josh Blackman and Seth Tillman are working on a paper arguing that Chief Justice Chase’s Section Three interpretations in Griffin and Davis were consistent and that my reading is wrong. The report alludes to a part of their argument in Footnote 12 and then offers some tentative responses. There is no cite there because Josh and Seth are still working on their draft. But we did have some stimulating email rounds about these questions last year which stuck in my head when I was drafting. I want to make sure they get their due credit.

One takeaway from this is that you should be on the lookout for Josh and Seth’s paper, which will make an important contribution to the Section Three debate. Another takeaway is that we need more Section Three scholarship. Finally, there is a lesson here for law students. I disagree with Josh and Seth on some important aspects of Section Three’s meaning and application. But people who disagree can and should engage with each other in the search for truth. Their criticisms are helping me sharpen my arguments, and I hope that my criticisms are doing the same for them.   

Excusing Justice Thomas

I wrote the following short essay over the weekend, before CNN reported that Justice Thomas is planning to revise his 2014 financial report to include the previously omitted real estate sale to Harlan Crow. Having worked on judicial ethics for many decades, I was trying to figure out a way to excuse Thomas's reporting failure, but it turns out there was no excuse. I am posting this now because it may still be of theoretical interest. I will have more to say later about Thomas's repeated revisions -- not a good look for a Supreme Court justice.

Is there an excuse for Clarence Thomas? If I try hard enough, can I figure out a way to justify the non-disclosure of at least some of his financial entanglements with billionaire Harlan Crow? Consider Pro Publica’s latest revelation, that in 2014 Crow purchased three Savannah, Georgia, properties – a house and two vacant lots – from Thomas and his family members, for $133,363, which the justice did not include on his annual financial report.

According to Pro Publica, this "transaction is the first known instance of money flowing from Crow to the Supreme Court justice." Thomas's critics have been quick to condemn him for a "shady" deal, running "afoul of the law," and entering territory "treacherous for the justice and the court on which he serves."

But could there be an innocent explanation?

Thomas evidently had a one-third interest in the real estate, along with his mother and the family of his late brother.  The holdings were included on his report for 2014 as “rental property” with a value of under $15,000, and no mention of the sale. He listed the properties again for 2015, although he no longer owned them, with no valuation and no reported transaction or proceeds, with a footnote stating there was “no rental income for this property,” presumably because the house was still occupied by his mother. The properties were no longer listed on Thomas’s 2016 annual report.

It is at least possible that Thomas disclaimed his share of the proceeds, apportioning the money instead between his mother and the other family members. That would have been in character for Thomas, who is known to be generous and supportive of his family. Such a disclaimer would have to be in writing, of course, but it would not necessarily have been referenced in the tax document and deed located by Pro Publica. If Thomas did indeed disclaim his share, there would have been no income for him to include in the "Investments" section of his disclosures.

Unfortunately for Thomas, there is more to the annual report. In 2014, Thomas valued his third of the properties at less than $15,000, meaning that the aggregate value would have been under $45,000. Crow, however, paid the sellers $133,363 in the same year, or just under triple the maximum estimated value. Even if the justice graciously redirected his share of the proceeds to family members, Crow's payment in great excess of the market value would still have been reportable as a gift to Thomas -- a section that he left blank on his reports for 2014 and 2016 (for 2015, he listed only a $6484.12 bronze bust of Frederick Douglass, given to him by Harlan Crow).

That was the best I could do. After forty years of studying judicial ethics, I could imagine a way to absolve Thomas from one omission, although it ended up implicating him in another. Even so, it was better than the excuses Thomas has come up with for himself.

Saturday Music Post - My Guy

Today's Faculty Lounge music post is here.

 

The Myth of Justice Jackson's Turnabout in Youngstown

I've resumed work on my Youngstown book. One issue that I'm thinking through is a common misperception about what Jackson said in his concurrence.

The misperception goes something like this: Robert Jackson was an aggressive advocate for presidential power as FDR's Attorney General and supported the executive seizure of private property in the interests of national security. But Justice Jackson switched his position and rejected President Truman's seizure of the steel mills. In doing so, Jackson recognized that the law was different from his personal view, much as a judge does by affirming on stare decisis grounds a precedent with which she disagrees.

But this is not accurate. Jackson actually said that his views were consistent and that the FDR seizure was distinguishable from the Truman seizure. In other words, he did say that he changed his position. Why, then, do people think that he did? Part of the answer is that said that as a judge he was not bound by his prior statements as Attorney General and alluded at other points to the difference between serving as an executive advisor and as a judge. But he also made other points suggesting he would not have advised Truman to make the seizure if he had been Attorney General in 1952.

Perhaps this was just brilliant rhetoric. But the question I have is whether the perception that Jackson changed his view because of judicial robes is important to the authority of the opinion. 

More on Clarence Thomas and the Code of Judicial Conduct

My new column for The Hill provides a brief history of the Supreme Court’s refusal to adopt a code of conduct – spoiler: I was the first person to raise it, in 1990 – culminating in Justice Thomas’s flouting the gift disclosure requirements.

Here is the gist: 

The Hill 

The Supreme Court Has No Code of Conduct: It’s Starting to Show

By Steven Lubet, Opinion Contributor – 04/13/23

The U.S. Supreme Court’s refusal to adopt a written code of ethics is a 50-year-old story that has recently gotten lots of fresh attention — for good reasons attributable to the justices’ own poor stewardship of their public trust. The revelation of Clarence Thomas’s undisclosed luxury gifts from Republican mega-donor Harlan Crow is only the latest chapter in his long history of disregard for ethical norms.  

The story begins in 1972 when the American Bar Association published a Model Code of Judicial Conduct, intended to provide mandatory rules for judges’ behavior both on and off the bench. The Judicial Conference of the United States became one of the first bodies to formally adopt the Code of Judicial Conduct, in early 1973. 

At first, nobody seemed to notice or remark upon the Supreme Court’s abstention from the movement toward judicial accountability. I was among the first even to point out the absence of a Supreme Court Code of Conduct, in a 1990 essay, ironically in a journal published by the Federalist Society, which drew about as much attention as most law review articles.

Promises of good faith and voluntary compliance only go so far, especially when certain justices have flouted the rules that apparently apply to everyone else. 

Enter Clarence Thomas. 

The furor eventually shook loose a response from Thomas, who implausibly explained, “Early in my tenure at the court, I sought guidance from my colleagues… . and was advised that this sort of personal hospitality . . . was not reportable.” 

Thomas’s rationalization depends heavily on the meaning of “this sort.” Six of the eight other then-justices have passed away, but neither David Souter nor Anthony Kennedy has confirmed presciently counseling Thomas that decades of lavish travel in the company of political operatives — which he had not yet indulged — would be exempt from future disclosure. 

You can read the full essay at The Hill

JOTWELL: Coleman on Brito, Sabbeth, Steinberg & Sudeall on racial capitalism

The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243 (2022), which explores the racial inequality embedded in state court procedure.

Legislative Expulsions

The recent expulsions of state legislators in Tennessee provides an opportunity to think about the expulsion power more generally. To my mind, these rare acts fall into two categories: a remand and a symbol. 

A remand is where a legislature in good faith thinks that a member's conduct means that the voters would no longer want that person to represent them. An obvious example is a felony conviction. Since a recall is often not possible, expulsion may be the only way to cut short that member's term. The expelled member is then free to seek reelection, and the legislature might be wrong in thinking that the voters no longer support that person. What is clear, though, at least since the Wilkes precedent from Britain in the 18th Century, is that a member that the voters do want will not be expelled a second time.

The symbol involves kicking people out knowing that they will never return or will definitely come back. For instance, there was no need to expel the southerners who left Congress to join the Confederacy, but there was some important symbolism in expelling them. Likewise, a legislature can expel someone to make a statement even though it's clear that the person will be sent back. This seems to be the result in Tennessee for one of the expelled members. who is already back in office and did not miss a vote. Whether this symbolic expulsion makes sense depends on how you assess the validity of the legislative statement.

Both types of expulsions make more sense when a special election is quickly held to fill the vacancy. Consider a different example--the U.S. Senate. A Senator has not been expelled in ages, but if that happened now typically a governor would pick the replacement. Eventually there would be another election, but that could take years. Expulsion in that context, therefore, should be seen as especially problematic because the voters may get no say on the matter at all for a long time.

Dr. Glaucomflecken on Peer Review

 

Did Anything Happen While I Was Away?

I've been traveling and off the grid for the past two weeks. I see that there was news. More on that some other time.

I do have one pearl of wisdom to offer now though. When I was a young lawyer, the older partner that I worked with would sometimes describe a witness by saying: "He doesn't want to answer a question. He wants to make a speech." I find that this quote works well in many contexts. Sometimes it's a person in a meeting. Sometimes it's a politician. Sometimes it's a federal judge writing an opinion. Feel free to add your own examples.

BILETA Amsterdam/Tilburg this week

Any of our readers in the Netherlands? and even if not -- this event is hybrid:

38th Annual BILETA CONFERENCE Cyberlaw: Finally getting its Act(s) together?

HYBRID: Vrije Universiteit Amsterdam (Amsterdam Law and Technology Institute) and Online

Thursday 13th APRIL – Friday 14th APRIL 2023 (The AGM and informal dinner on Wednesday 12 April, end of the afternoon)

BILETA Directions – Online instructions are sent by e-mail

Final Program

See an overview of accepted abstracts. (Call for abstracts, obsolete)  (BILETA prizes, obsolete)

 

And a day earlier on the 12th, Tilburg University is holding an event for The Equality Machine. Also it is super rainy here in Holland, and if you have recommendations on what to do in the rain besides museums and brewery tours, please send them over!

Bill to Strengthen California's NonCompete Ban

California has had a longstanding policy against noncompetes and other restraints on pursuing one's profession (or another way I prefer to describe it - a longstanding policy to allow talent to be free and flowing and to support labor market competition). And yet, the research pervasively shows that even in California many employees are asked to sign noncompetes. A new bill I helped draft creates an enforcement mechanism when employers unlawfully insert clauses into contracts that are void under California's 16600. The bill also clarifies/codifies the caselaw, as the California courts have long held, that employees have the right to compete in California even if they had signed in the past a noncompete outside of the state. A group of law professors from various fields: IP, contracts, employment and labor law, antitrust law are joining together to send a letter to the California legislature in support of the bill - hearing is set for tomorrow.

If you are interested in joining the letter, email me for more details [email protected]. [and also if you are interested in joining a comment to the FTC in support of the proposed rule to nationally ban noncompetes, email me on that too, but less time-sensitive].

Should Joe Biden Run in 2024? [UPDATED]

It seems generally understood that  Although not yet an official announcement, Pres. Biden said today that he plans to run for re-election in 2024, and the nomination is certainly his if he wants it. I think Biden has been a fine president, and I will enthusiastically vote for him if he runs, with the expectation that he will defeat former Pres. Trump or any other Republican. The great unknowable, of course, is whether he may suffer an adverse health event during the campaign, which might influence voters to prefer a younger, more energetic candidate (if the Republicans nominate such a person). The risk cannot be waved away, so I looked at some numbers.

The mortality rate for Americans 75-84 is roughly 5% per year, reaching over 15% for those 85 and over. Biden is currently 80. He would be 82 on inauguration day in 2025, and 86 at the end of his second term. Median life expectancy at 80 for an American male is 7 years, meaning that half die below the median age (though those with excellent medical care of course tend to live longer).

That is just mortality. The likelihood of a disabling illness or event is greater, although I cannot find statistics for disability after age 65 (which is when disability insurance coverage ends) when it appears to be 30%.

The following presidents were older than 65 at inauguration: William Henry Harrison (68); James Buchanan (65); Ronald Reagan (73); Donald Trump (70); Joe Biden (78). Of these, only Harrison died in office.

Here are the ages of the presidents who died in office, other than by assassination: William Henry Harrison (68); Zachary Taylor (65); Warren Harding (57); FDR (63).

At least two presidents also had debilitating health incidents in office, though they were largely concealed at the time, with ages at their most recent inauguration: Woodrow Wilson (60 at second inauguration; stroke at 62); Dwight Eisenhower (62 at first inauguration; heart attack at 64; reelected at 66).

Preemption Procedure: A Comment on the Shugerman-Kovarsky Debate in People v. Trump

Is People v. Donald J. Trump, No. 71543-23 (N.Y. Co. Sup. Ct.) preempted? This question has generated much debate, but is unlikely derail the ongoing state prosecution, at least procedurally.

The defendant is charged with 34 counts of falsifying business records. The offense is raised to the level of a felony, the indictment charges, because the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The issue is that underlying facts may involve a federal election offense. Prof. Jed Shugerman has pointed out that the federal election law has an express preemption provision, and New York State election law has a separate provision acknowledging the primacy of federal law. Accordingly, there is a potential preemption problem which, according to Prof. Shugerman, might mean that “the case is headed to federal court for a year.” Prof. Lee Kovarsky responded with a persuasive argument that states can sometimes use even preempted federal offenses for their own purposes. No one questions, for example, that a New York attorney convicted of an offense within exclusive federal jurisdiction could nevertheless be disbarred. Prof. Kovarsky writes: “To my knowledge, in no case has a court even suggested that a federal crime can't be an element of a different state offense just because the federal crime falls within the scope of preemptive federal authority.” This seems a hard question. If I were in the NY Co. DA's Office, I would strive mightily to elide it and find safe, state crime.

Nevertheless, whatever the ultimate merits, I do not see how the defendant gets an injunction. True, earlier proceedings related to this very matter, namely, a New York grand jury subpoena, were subject to a prolonged stay as the Supreme Court considered the case. On the merits, the Court ultimately allowed the subpoena. Critically, the stay was based on a circumstance no longer present: Trump was then President. The Court explained: “The Supremacy Clause prohibits state judges and prosecutors from interfering with a President's official duties. . . . federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here.” Trump v. Vance, 140 S. Ct. 2412, 2428–29 (2020). Vance is not precedent for an injunction to protect a private citizen. There was also the stay of enforcement of a House of Representatives subpoena. But there, the question was not preemption, but “whether the subpoenas exceed the authority of the House under the Constitution.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2029 (2020).

Instead, the case now seemingly presents an ordinary claim of preemption in a state prosecution of a private citizen. In that context, 28 U.S.C. § 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

The possibility that a state prosecution is preempted, standing alone, is not a ticket to federal court:

[A] federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear. Rather, when a state proceeding presents a federal issue, even a preemption issue, the proper course is to seek resolution of that issue by the state court.

Bess v. Spitzer, 459 F. Supp. 2d 191, 201–02 (E.D.N.Y. 2006), as amended (Jan. 30, 2007) (quoting Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149–50 (1988)). 

Another judicially recognized exception exists where the defendant proves that a prosecution was “brought in bad faith or is only one of a series of repeated prosecutions,” or that there is otherwise “irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith.” Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir. 1999) (citations omitted). See also Jordan v. Bailey, 570 F. App'x 42, 44 (2d Cir. 2014). “Bad faith” in in this context means “without hope of obtaining a valid conviction.” Perez v. Ledesma, 401 U.S. 82, 85 (1971).

No exception seems to exist. There appears to be no act of Congress providing for federal judicial intervention, and no past or present litigation of these facts for a federal court to protect. Although there is debate about what is required to convict of the offense of falsifying business records, and even more mystery about what the People plan to prove, there is no indication that the prosecution has no chance of success, or is the latest in a series of failed, harassing prosecutions. Accordingly, any preemption issue should be addressed “by the state court.” State rulings would be "subject, of course, to review by . . . [the Supreme] Court or, in a proper case, on federal habeas corpus." 401 U.S. at 85.

One circumstance which neither constitutes bad faith nor tends to support a separate defense is the selective prosecution argument which may be in the offing. Federal constitutional law precedents allow selection of prominent individuals for prosecution. As Wesley Snipes learned to his dismay in a tax case, “[s]ince the government lacks the means to investigate and prosecute every suspected violation of the tax laws, it makes good sense to prosecute those who will receive, or are likely to receive, the attention of the media.” United States v. Snipes, No. 5:06-CR-22-OC-10GRJ, 2007 WL 2572198, at *3 (M.D. Fla. Sept. 5, 2007) (quoting United States v. Catlett, 584 F.2d 864, 868 (8th Cir.1978)). See also United States v. Edenfield, 995 F.2d 197, 200 (11th Cir. 1993) (“For law enforcement officers to choose to investigate prominent offenders is nothing unusual or evil.”)

The limited New York authority on prosecuting celebrities I could find is to the same effect: “assuming the decision to prosecute was based on the fact that the defendants were prominent and newsworthy, this is also not an impermissible basis for selection . . . Publication of the proceedings may enhance the deterrent effect of the prosecution and maintain public faith in the precept that [others] are not above the law.” People v. DiLorenzo, 153 Misc. 2d 1021, 1029–30, 585 N.Y.S.2d 670, 675 (Crim. Ct. Bx. Co.1992) (citing People v. Barnwell, 143 Misc.2d 922, 541 N.Y.S.2d 664 (Crim. Ct. N.Y. Co. 1989)). There is also one lower court case more or less endorsing the the proposition that it is permissible to target individuals for enforcement because they are suspected of other crimes. See People v. Mantel, 88 Misc. 2d 439, 443, 388 N.Y.S.2d 565, 569 (Crim. Ct. N.Y. Co. 1976) (citing United States v. Sacco, 428 F.2d 264, 271 (9th Cir. 1970) (“selection of this defendant for intensive investigation was based on his suspected role in organized crime”) Stuart Green has written thoughtfully about whether prosecuting celebrities and the prominent is consistent with criminal law principles, but the doctrine seems to allow it. Stuart P. Green, Uncovering the Cover-Up Crimes, 42 Am. Crim. L. Rev. 9, 42 (2005).

If the defendant could show that other, similarly-situated offenders who were members of different political parties were not prosecuted by the same office, then that would raise a substantial issue. United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997) (citing, inter alia, United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). But such claims have historically proved difficult to establish. United States v. Lazzaro, No. 21-CR-0173 (PJS/DTS), 2022 WL 16948157 (D. Minn. Nov. 15, 2022); United States v. Woods, 319 F. Supp. 3d 1124, 1141 (W.D. Ark. 2018), aff'd sub nom. United States v. Paris, 954 F.3d 1069 (8th Cir. 2020), and aff'd, 978 F.3d 554 (8th Cir. 2020); United States v. Young, 231 F. Supp. 3d 33, 43 (M.D. La. 2017); United States v. Cameron, 658 F. Supp. 2d 241, 243 (D. Me. 2009).

Crowd-Litigating The People v. Donald J. Trump (N.Y. Sup. Ct.)

Correct me if I am wrong. But it appears that People v. Donald J. Trump, No. 71543-23 (N.Y. Co. Sup. Ct), will be the first major case in U.S. legal history to be crowd-litigated. Interventions of law professors and litigators with something to say are not coming on appeal. Instead amicus briefs are being filed now, complete with citation to cases and statutes, and factual analysis, on Twitter, blogs, and op-eds. Major examples are the series on JustSecurity, Prof. Lee Kovarsky’s Lawfare post on preemption, and Prof. Jed Shugerman’s New York Times oped to which Prof. Kovarsky is responding. Eric Columbus maintains an indispensable running list on Twitter. It is reasonably apparent that these writings are not only intended to educate the public, but to communicate with the prosecutors and defense attorneys involved in the case. This is entirely appropriate; if the prosecution is defective, it should end promptly; if it is righteous, the best case for it should be made.

This is a case where, as it happens, there is no shortage of genuine expertise. Defender organizations and prosecutor’s offices who work in the state courts in New York are unusually productive of legal scholars. A quick Google search shows that among many others, alumni of the Criminal Defense Division or Criminal Appeals Bureau of Legal Aid Society of New York include Barry Scheck, Sheri Lynn Johnson, and JaneAnne Murray; veterans of the New York County DA’s Office include Deborah Tuerkheimer, Jeannie Suk Gersen, and Sandra Guerra Thompson. Alan Michaels seems to have been a prosecutor in a now-important New York County decision invlolving the statute at issue in the prosecution.

While none of the above are necessarily following the Trump case, for this crowd litigation to occur, it is necessary for there to be a body of lawyers who are expert in New York practice. Although the criminal laws of no two states are identical, New York law is unusually distinctive. Unlike many states, it does not model its laws on the Federal Rules of Evidence or Criminal Procedure, but instead has its own complicated amalgam of evidence and criminal procedure statutes and rules, along, of course, with caselaw.  The New York Penal Law is an early version of the Model Penal Code, but, to keep things interesting, New York courts regularly find dispositive cases decided under the repealed and supplanted codes. Without a background in New York criminal practice, general smartness or criminal law experience elsewhere may well be unhelpful—inaccurate--in commenting on a New York prosecution, unless it is preceded by full research.

I suspect this continuous workshopping of the case will primarily aid the defense. The prosecution had years to prepare the case, and if they did not think hard about the potential roadblocks and defenses, then their reputations will justifiably be marred. For that reason, given their resources, I assume the case was carefully prepared and war-gamed.  The lead defense attorney, Todd Blanche, is richly experienced, but his website suggests he is now a sole practitioner after years of working with large firms and the U.S. Attorney’s Office in the Southern District of New York.  The scrum of lawyers seen at counsel table at the arraignment may be more in the vein of too-many-cooks rather than a coordinated team.

As a game-theoretic question, I assume the actual prosecutors and defenders will at least glance at these materials. Conceivably, every lawyer or professor comment will be something already spotted and evaluated.  But it would be embarrassing to be surprised, or to lose, on a point which had already been addressed and discussed in the legal community.

Saturday Music Post - You've Been a Good Old Wagon

"You’ve Been a Good Old Wagon (Daddy but You’ve Done Broke Down)" is a classic Bessie Smith blues number, recorded in 1925, introduced to many in the 1960s (including me) by Dave Van Ronk. It turns out, though, that the song was first a ragtime tune, composed by Ben Harney in the 1890s. Harney misleadingly boasted that he was" the father of ragtime," but it does seem that "You've Been a Good Old Wagon" may have been the first published ragtime sheet music.

The Faculty Lounge clips are here.

Pico as Derelict

Dissenting, in Lambert v. California (1957), Justice Frankfurter predicted that the 5-4 ruling would "turn out to be . . . a derelict on the waters of the law."  Whatever the merits of Justice Frankfurter's prediction, I was reminded of it by Howard's recent post about a federal district court order in Texas that invoked Pico to require (quoting the post) "Llano County to return twelve books to the public library shelves and enjoined further book removals."

Let's put aside debates about the Marks rule, or about the semantic content of the Pico opinions by Justices White and Blackmun, or about the wisdom of the Llano County removal decision, or about the tiresome-ness of newspaper reports that refer to the removed books as "banned."  It seems to me that Pico is the among the most derelict-ish rulings of my lifetime.  (Lopez and Morrison, bless their hearts, might be the most, but put them aside, too!)

The federal court in Texas invoked, from a Fifth Circuit case quoting the Pico plurality, a “First Amendment right to receive information” which prevents libraries from “remov[ing] books from school library shelves ‘simply because they dislike the ideas contained in these books.’” But . . .  there is no general "First Amendment right to receive information" and libraries are entirely free to roam through their collections and ditch stuff they have decided isn't worth keeping.  If a local librarian in Llano County were to decide (correctly) that Ayn Rand's novels are not only badly written, but pernicious, there is no constitutional prohibition on tossing them all to make room for more Piketty.  (Yes, I realize that the preceding two sentences are inconsistent with, well, Pico.) 

Whatever rule or principle the Brennan opinion in Pico might be applying -- besides "this seems hinky" -- has not been consistently applied (if it has been applied at all) to "government decisions about what it does with its stuff."  No one really thinkgs that federal courts are authorized by the First Amendment to review the shelf-culling decisions of 2023 librarians regarding the shelf-stocking decisions of their 1953 predecessors.  If the "Pico principle" were taken seriously, I suppose the government would be obligated -- not merely in a nondiscrimination, Carson-type sense, but in a positive, obligatory sense -- to fund parents' decisions to send their kids to parochial schools.  [Ed.:  Sounds good, Rick.  What's your point?]

Pico and public libraries

Judge Pitman (W.D. Tex.) ordered Llano County to return twelve books to the public library shelves and enjoined further book removals. The court said Pico applies with greater force to public school libraries, because schools receive uniquely great deference and public libraries are "designed for freewheeling inquiry." The county has appealed.

During law school, I interned at the American Library Association's Office of Intellectual Freedom. One of my tasks was drafting letters to library boards about limits on the power to remove stuff from the library because of disagreement with content (back then, we worried about internet filters). The letter was usually enough and we never litigated these cases. We are in new times.

SCOTUS Gift Disclosures

If you are looking for a break from indictment and election news, you may be interested in my essay on the new gift disclosure rules for the Supreme Court, and why the justices may not comply with them.

Here is the gist:

The Hill

Will the Supreme Court justices comply with new rules on gift disclosure?

By Steven Lubet, Opinion Contributor – 4/05/23

Sen. Sheldon Whitehouse (D-RI) recently claimed a small victory, when, as he put it, the Judicial Conference of the United States “adopted new, stricter rules requiring far more disclosure of free trips, meals, and other ‘hospitality’ accepted by federal judges and Supreme Court justices.”

Under the old Judicial Conference rule, “judicial officers” were required to report the receipt of gifts worth over $415, with a broad exception for “personal hospitality.” The term “personal” had apparently been interpreted to mean something like “extended by an individual” rather than by a business or corporation, thus allowing the undisclosed acceptance of resort vacations and private jet travel, so long as the invitations were made by acquaintances, even if some other entity was underwriting the expense.

Whitehouse may have spoken too soon.

Chief Justice John Roberts has made it clear that the justices are jealous of their individual prerogatives and do not feel bound by outside constraints.

In his 2011 Year-End Report on the Federal Judiciary, Roberts denied the authority of the Judicial Conference, stating that its “committees have no mandate to prescribe rules or standards” for the Supreme Court.

There is no record, of course, of privately funded travel or vacations that the justices have withheld under a loose interpretation of the “personal hospitality” exemption.

Whitehouse deserves congratulations for prompting the new gift rule, but he has much work ahead of him. The Supreme Court needs its own ethical code, with no hedging or reservations, and the sooner the better.

You  can read the full essay at The Hill.

At Least He Didn't Claim It Was Rigged

In Wisconsin, Milwaukee County judge Janet Protasiewicz defeated former Supreme Court Justice Dan Kelly for an open seat on the state supreme court. It was the second double-digit defeat in two years for Kelly, who was appointed to the court by former governor Scott Walker, as he lost to now-justice Jill Karofsky in 2020. He has not taken it well.

As reported by the Milwaukee Journal-Sentinel:

After the race was called for Protasiewicz, Kelly refused to call his opponent to concede the race, saying he respected the voters' decision but not her.

"I wish in a circumstance like this I would be able to concede to a worthy opponent. But I do not have a worthy opponent to which I can concede," Kelly told supporters at a campaign event in Green Lake, calling Protasiewicz a "serial liar." "I wish Wisconsin the best of luck, because I think it’s going to need it."

He called Protasiewicz's campaign "dishonorable and despicable," and said he was concerned for the future of the state.

"She's demeaned the judiciary with her behavior," he said, referring to Protasiewicz's partisan appeals to voters on the issues of abortion and redistricting. "This is the future we have to look forward to in Wisconsin." 

The Wisconsin Supreme Court will now have a 4-3 liberal majority for the first time in 15 years. Issues facing the court include abortion and partisan gerrymandering.

The Journal-Sentinel story is here.

Old anti-Semitism and current anti-Semitism

Dara Horn, who has a book and podcast about how people think and talk about dead Jews, argues in The Atlantic that focusing on Holocaust education makes current anti-Semitism worse. The piece is long, but here is a money quotation:

One problem with using the Holocaust as a morality play is exactly its appeal: It flatters everyone. We can all congratulate ourselves for not committing mass murder. This approach excuses current anti-Semitism by defining anti-Semitism as genocide in the past. When anti-Semitism is reduced to the Holocaust, anything short of murdering 6 million Jews—like, say, ramming somebody with a shopping cart, or taunting kids at school, or shooting up a Jewish nonprofit, or hounding Jews out of entire countries—seems minor by comparison.

And she closes thus:

I want to mandate this for every student in this fractured and siloed America, even if it makes them much, much more uncomfortable than seeing piles of dead Jews does. There is no empathy without curiosity, no respect without knowledge, no other way to learn what Jews first taught the world: love your neighbor. Until then, we will remain trapped in our sealed virtual boxcars, following unseen tracks into the future.

I serve on a Temple committee working on anti-Semitism programming. In choosing (for this year) to do a program for Yom Hashoah, we had a form of this conversation. Modern U.S. anti-Semitism, however much on the rise and however bad, is unlikely to lead to a repeat of the Holocaust. How we speak, educate, and push back against modern U.S. anti-Semitism should reflect that.

District Court gets defensive/offensive right--standing still sucks

In 2021, I wrote about an Eighth Circuit case in a challenge to Arkansas' exclusive-private-enforcement ag-gag law. An animal-rights organization brought an offensive challenge to the law against several farm owners/potential plaintiffs. A divided court found the chilling effect of the law and the threat of suit established injury-in-fact for standing. I criticized this focus on standing, because the plaintiffs had no § 1983 cause of action against non-state actors; the court did not address that issue because it went to the merits and standing serves as a threshold.

The district court corrected that on remand. It granted defendant's motion to dismiss, concluding that the plaintiffs cannot satisfy § 1983 because the would-be state-law plaintiff does not act under color. The court further rejected plaintiff's argument that in finding an injury the court found state action. While the issues can be "one-and-the-same," the finding of a threshold does not necessarily satisfy the element. Nevertheless, that the plaintiff raised and thought the argument could work shows how far the law of standing has constitutionalized an essentially merits inquiry and needlessly complicated constitutional litigation.The court also explains offensive and defensive litigation and when only one is available--why state action allowing a defense does not equate with state action/under color allowing an offensive action, why every case plaintiff cites arose defensively and thus does not support the § 1983 argument it attempts to make, and why a Fourth Circuit offensive action against a state agency with state-law enforcement power does not support an offensive action against a private would-be plaintiff.