PrawfsBlawg

How Far Have We Have Come?

In 1869, the Wyoming Territory gave women the right to vote. The Utah territory followed suit in 1870. But when women's suffrage was discussed at length by the House Judiciary Committee in 1871, these reforms were not mentioned. This struck me as odd, so I looked into the issue and discovered that nobody in Washington (including activists like Susan B. Anthony) were aware of these developments at the time. Wyoming and Utah might as well have been Mars and Venus.

Today, of course, we instantly know everything that happens everywhere. Is that better or worse?

We Are Hiring!

At my law school, that is. We are looking to fill one legal writing and two tenure-track positions this year. Feel free to reach out for more information. 

The Core Crisis of Our Time is an Institutional Crisis, pt. MMDCLIX

Also in anti-institutionalist news, this forthcoming book attributed to Kevin Roberts, head of the Heritage Foundation, a sometime Washington think tank, with an introduction attributed to J.D. Vance. (There are occasions where I think the listing of an author is true-to-fact, and occasions--say, judicial opinions, Ivy League admissions essays, and celebrity autobiographies--where one should avoid making a firm assumption to that effect. This is one of the latter occasions.) It is currently titled Dawn's Early Light: Taking Back Washington to Save America. The book's description suggests that "Washington" (and possibly also "America") should be understood here as more of a placeholder, given the number of institutions outside of Washington that it wishes to "take back." Its salvific vision is straight out of the Battle of Bến Tre:

Chapter by chapter, it identifies institutions that conservatives need to build, others that we need to take back, and more still that are too corrupt to save: Ivy League colleges, the FBI, the New York Times, the National Institute of Allergy and Infectious Diseases, the Department of Education, BlackRock, the Bill and Melinda Gates Foundation, the National Endowment for Democracy, to name a few.

I have had interesting discussions with interesting and thoughtful conservative friends who despair of various institutions, although in my view some of their despair is overly pessimistic, or reasonably pessimistic but overly operatic. (In many instances, I have had interesting discussions with similarly thoughtful liberal friends who despair of the same institutions, generally for the same reasons.) I haven't read the book, so I'm going out on a limb here, but I don't think this book is a gateway to such conversations. If the description holds, it seems to have far more in common with those on the left whom I have criticized for taking a view of institutions that purports to be critical or reformist but is ultimately either destructive of or fundamentally indifferent to them. In any event, since my examples of anti-institutionalism generally focus on the left, given that my home institution is the academy, I offer this prominent example as a reminder, as much to myself as others, that the phenomenon is best defined as a social and not, in the colloquial sense, a political one. (May I add, despite being a big fan of capitalism and a frequent bore on the topic of everyday, small-c corruption being more important than large-C "Corruption," that anyone who makes $600,000 as the head of a former think tank should go easy on the phrase "too corrupt to save.")

Of obvious note to a) the presidential election, b) my location of the book in, as academics these days would say, an anti-institutionalist "space," and c) the general cravenness of authors, publishers, and politicians: the book until recently had the charming subtitle "Burning Down Washington to Save America."  

Law School Entry-Level Hiring Posting Schedule 2024-2025

The usual posts will occur this year regarding entry-level law school hiring.

The post collecting information about Hiring Committees is up.

On August 22, 2024, AALS will release the first distribution of FAR forms to schools. If/when anyone publicly posts the number of FAR forms, I will post Number of FAR Forms in First Distribution Over Time (last year's FAR Forms Over Time post).

Also on August 22, I will post Law School Hiring Spreadsheet and Clearinghouse for Questions, 2023-2024 (last year's Hiring Spreadsheet and Clearinghouse Post).

Around September 5, I will post the VAPs and Fellowship Open Thread (last year's VAPs and Fellowship Open Thread).

Congressional Staff "Dissent" Has Nothing to Do with the Constitution; or, More Anti-Institutionalism

I will not detail the many ways in which I disagree with the notion that congressional staffers need a "dissent channel" or ought to engage in anonymous actions designed to undercut their own, democratically elected employers; the ways in which I think it reflects a fundamental failure to understand institutions, if not a fundamental lack of interest in institutions and institutionalism; the ways in which I think it is weird that members' staff, in the words of a news story today, want to "amplify their own voices on Capitol Hill" but without identifying themselves, quitting, or running for office themselves; and so on. I will simply make three points about the story. 

First, the story quotes a "a spokesman for the Congressional Progressive Staff Association" as saying that "aides who participate in the dissent channel are carrying out an important function of their jobs on Capitol Hill," because:

“While we may work for and be employed by the United States Congress, our ultimate sworn oath is to the Constitution — to the people of the United States,” he said. When staff aides see a “clear difference” between their boss’s position and the feedback they are hearing from citizens in their district, he added, they are “obliged” to say something.

The bit about "an important function of their jobs on Capitol Hill" is bosh, of course, because publicly dissenting from their members' views is not part of their jobs on Capitol Hill and therefore not an important function of those jobs. Informing their own bosses of the facts, even when they don't want to hear them, is often a part of those jobs; informing the world at large that they disagree with their members' positions is not.

But the bit about the oath is interesting. Of course the first part is true: they swear an oath to support and defend the Constitution.* It is not an oath of loyalty to their boss, just as an executive office staffer is ultimately loyal to the Constitution, not to the particular person who happens to work in the Oval Office. The insistence on personal loyalty, and apparent failure to understand the distinction between personal loyalty to President X and constitutional loyalty to the office of the president within constitutional constraints, was poisonous within the Trump administration. More recently, President Biden's own focus, as he considered whether to run again, on personal loyalty, and his reliance only on a personally loyal cadre of aides, did him no credit and very little benefit either. But certainly a congressional aide's duty to the Constitution is higher than, and shapes, his or her duty to the individual member he or she serves. Usually, of course, the conflict is served by protesting internally and then quitting if that is not enough, not by staying on board and complaining anonymously.

Regardless, the strange bit is arguing that this oath is "to the people of the United States," itself an odd move--the oath is not to the people but to the Constitution agreed to by "We the People"--and then moving from that to the idea that any of this has something to do with what happens when aides see a difference between their boss's position and "the feedback they are hearing from citizens in their district." Not polling, not any carefully collected data, but anecdotal feedback. One may suspect a rather large helping of dishonesty or disingenuousness here. The dissent channel focuses solely on Gaza. If the staffers find that they are getting "feedback" from citizens in the member's district that counsels a stronger stand in favor of Israel's position, would they still believe they have a constitutional duty to speak out? May I suggest the answer might be "who's kidding who?"

But even if the argument were somehow sincere, it's still wrong. Members having a different position from the sentiment of the people in their district or state at any given time is not a violation of the Constitution. If anything, it's a feature of the Constitution, a feature of both the "republican" and "democratic" parts of "republican democracy." The members are the people's representatives, not their lackeys or ventriloquists' dummies. They may in good conscience feel obliged not to follow their constituents' wishes. The built-in remedy for this, noteworthy especially in the short terms of House members, is that constituents can vote them out. I'm not sure I could say anything about this that Edmund Burke didn't already cover in his speech to the electors of Bristol, which I trust that every halfway educated staffer on Capitol Hill has read. In between elections, which serve to confirm or reject the positions taken, "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion." The "obligation" the staffers purport to feel, and purport to derive from the Constitution, does not exist. 

Second: Despite all that, let's go with it. If these staffers want to dissent on the Israel-Gaza conflict and only on that, okay. It seems odd, not because they have no basis to claim that there is immense suffering happening there, but because there is so much immense and generally ignored suffering happening in so many places. But if they're going to dress up their area- and subject-specific desires in constitutional garb based on some duty to voice dissent from their bosses when there is air between the members' positions and the views of their constituents, doesn't the language of constitutional duty suggest they must open the field of dissent far past the Gaza conflict? Shouldn't these constitutionally loyal staffers create an anonymous dissent channel in which aides who feel that members have gone against constituents' views on any issue, and in any direction, can carry out their constitutional "obligation" to anonymously note that fact, come hell or high water? Say that their member, a few weeks ago, declared--as did a large number of progressive members--their loyalty to President Biden and his candidacy for a second term, but the staff received feedback telling them that constituents wanted Biden to refuse to run again. Or say the member declared loyalty in public but private told staff they thought Biden was unfit to serve a second term. Would they not be obliged to say so? If there is strong anti-immigrant sentiment in such a district, particularly from the more powerless constituents in that district, and that sentiment is not reflected in their member's statements and positions, are they not "constitutionally" obliged to raise the red flag of warning? I confess I would be intrigued by a general, multi-directional "dissent channel." But no one seems to be asking for that. Is their focus on one issue and in one direction not, if we are to believe the stated justification, an abdication of their constitutional duty and of their oath? It seems to me the obvious answer is yes. But the even more obvious answer is that they do not in fact believe the justification or have the slightest interest in going against their members on other issues except for this one, regardless of the views of constituents. They simply want to dissent on Gaza, and Gaza alone, and would like to do so without being fired. They would like to be a first-and-a-half branch on a single issue, but with better job security.  

Finally, and in keeping with how I started out, it seems to me the fundamental error of the whole thing, if we are to take it seriously at all and not simply see it as an instantiation of strong opinion about Gaza from one rather rarefied segment of the population, is the anti-institutional view that everything, and every institution, however structured, ought to be democracy all the way down. The Times story I linked to notes quite correctly that staff have often been treated poorly on the Hill and often without recourse. One has every right to object to that. But this is a question of believing Congress as an employer ought to be just to staffers and to workers on the Hill, not that Congress as a staffed institution ought to be democratically structured. I cannot help but see a connection between the attitude struck by staffers in this somewhat unduly sympathetic story, and the terrible piece published by University of Chicago professor Anton Ford in the Chronicle of Higher Education that similarly misapplies the democracy-all-the-way-down position to the university, an institution for which that argument is equally ill-suited and misplaced. The belief that every institution ought to be democratically structured at every level is not inherent in the belief in a democratic polity; it may, if anything, be harmful to the long-term well-being of democracy in such a polity. It certainly is not a sound idea for Congress as an institution. 

* At least I'm assuming it to be true, because the source said so and should know better than I do. I confess that I'm familiar with a statutory oath requirement for officers and other covered employees in the executive and judicial branches, I'm not familiar with one for congressional staff, and I didn't immediately find such a requirement in a quick search of the U.S. Code. But if you can't trust a congressional staff association spokesperson, who can you trust?

Law Schools and State Court Clerkships

Although I get its emails, I don't read Above the Law, haven't for years (probably since before David Lat's departure), and can't imagine why anyone would. But I offer sincere credit where it's due: my generally-ignored email from that site tells me it is publicizing a list of law schools that are the most active and successful in securing state court clerkships. Kudos to author Staci Zaretsky for her post. (It doesn't change my mind about the truism that the post-Lat site is dreadful.) The schools at the top of the list, from Princeton Review, are

1. Seton Hall University School of Law (no change)
2. Rutgers School of Law (no change)
3. University of Maryland Francis King Carey School of Law (ranked #4 last year)
4. Widener University Delaware Law School (ranked #7 last year)
5. Vermont Law and Graduate School (unranked last year)
6. University of Hawaii at Manoa William S. Richardson School of Law (ranked #8 last year)
7. Drexel University Thomas R. Kline School of Law (ranked #3 last year)
8. University of St. Thomas School of Law (MN) (ranked #5 last year)
9. University of Minnesota – Law School (ranked #10 last year)
10. University of Montana School of Law (unranked last year)

One notes that: 1) none of these schools are the vaunted "prestige" schools; 2) federal clerkships confer more status and prestige on their recipients (and on the schools that are successful in placing federal clerks) than state court clerkships; and 3) in my view, state court clerkships may well be more important and can offer better training in more areas of law than federal court clerkships.

Of course the third point is debatable. To the extent that it is true, however, that suggests that (4) prestigious law schools, despite the verbiage, are less interested in sending their graduates places that provide the greatest potential for being "change agents" tout court. Rather, they, and the vast array of professors, commentators, advice networks, and so on that steer people to federal clerkships for ostensibly non-crass, social-change-oriented reasons, are interested in jobs that achieve such goals provided that those jobs also confer a sufficient amount of status and prestige. Professors who are happy to talk about how it is a scandal that law schools don't teach more state constitutional law, how much action there is in state constitutional law, how state supreme courts can serve as a bulwark for rights against conservative federal courts, and so on would nevertheless be aghast at the idea of steering their best and brightest toward state supreme courts rather than federal district or appellate courts. In the British gentlemen's phrase, it just isn't done. And the process becomes self-reinforcing. In faculty hiring, for instance, we all treat federal court clerkships as proxies for the quality or promise of the candidate, even where the candidate's interest is in an area of law that is mostly dealt with in state courts, because they generally are a proxy for various achievements.

As Vonnegut would say, so it goes.  

P.S.: In fairness, let me add a note from a correspondent, who suggests that because it is harder to form pipelines from state court clerkships to firm jobs, post-clerkship outcomes, rather than prestige, may be a big part of where law schools focus their efforts. I take the point, and take it as a critique (although it was offered in a warm and collegial fashion) rather than calling it a friendly amendment or something of the sort. I suppose I'd say on the one hand that I think the point certainly can explain and justify rational choices on the part of applicants and schools, and on the other that, just as I'm not sure that firms' disproportionate focus on graduates of a small number of schools, even as against top students at other schools, is entirely rational or that immurement in prestige as such has nothing to do with it, so I'm not entirely sure it makes sense that federal clerkships are prized more highly than state court clerkships by firms, to an extent that then drives other actions within the larger ecosystem.  

A civ pro puzzle

Something I was thinking about while listening to several papers on personal jurisdiction at SEALS last week. It shows how the analysis has shift under us:

Imagine the facts of World Wide Volkswagen in 2024: Defective car sold in New York by two New York companies (distributor World Wide and dealer Seaway) and two non-New York companies (Audi from Germany and VWA from New Jersey), accident occurs in OK.

Before 2011, we mostly agreed on the following:

    1) No jurisdiction over WW and Seaway in OK

    2) General "doing business" jurisdiction over Audi and VWA in OK (although this was the subject of the Twitchell/Brilmayer debate)

    3) General jurisdiction over all defendants in New York--Audi and VWA on "doing business" and WW and Seaway because they are incorporated there.

In 2024, I think we have the following:

    1) No jurisdiction over WW and Seaway in OK

    2) Specific jurisdiction over Audi and VWA in OK under Ford, because they serve the OK market for the same cars (although not the car in the accident). Not general jurisdiction because neither is at home and Daimler/Good Year reject doing business.

    3) General jurisdiction over WW and Seaway in NY because each is "at home" there.

    4) Specific jurisdiction over Audi and VWA, although the theory depends on where Audi and VWA designed, manufactured, and sold the car to World Wide for distribution:

        • If any of that happened in New York, then specific jurisdiction because the case "arose" in New York because something about the defective product occurred there.

        • If all of those things happened outside New York (i.e., Audi sold the car to WW in New Jersey), specific jurisdiction would require the "related to" analysis of Ford--they serve the NY market for the same cars as the one at issue in the case, even if their NY activities did not involve the car at issue.

Saturday Music Post - O Come, Angel Band

"Angel Band" was originally a poem titled "My Latest Sun Is Sinking Fast," written by Jefferson Hascall in 1860. It was first set to music by William Bradbury and published in 1862, becoming a staple of gospel music in the following 150 years. It was popularized by the Stanley Brothers version in the soundtrack album of the film "O Brother, Where Art Thou."

Today's first clip features Bradley Walker, who was born with muscular dystrophy and has been in a wheelchair his entire life. He has performed with the Oak Ridge Boys and other country stars in a group called Brothers of the Heart. I especially like the fiddle player, who seems classically trained. He plays mandolin with the Oak Ridge Boys on the second clip.

You can see them all at The Faculty Lounge. 

The Youngstown Concurrence and Originalism

On the Originalism Blog, Mike Rappaport has a critique of Trump v. United States that includes the following passage:

"There are many other problems with the Court’s opinion from an originalist perspective. One particularly worth mentioning is that the Court repeatedly cites Justice Jackson’s concurrence in the Steel Seizure Case, even quoting the erroneous and outrageous line that there is a “poverty of really useful and unambiguous authority applicable to concrete problems of executive power.”  I am tempted to echo Lady Margaret Thatcher here, and to slam down a copy of Jackson’s concurrence on the table, saying “This is not what we believe!”'"

I've been puzzling over this issue in my book on the Youngstown concurrence. Justice Jackson's opinion is anti-originalist (not entirely, but mostly). Yet no Justice has ever criticized his reasoning. Indeed, the Court just doubled-down on what he said. What's up Doc?

Maybe the contradiction between originalism and Justice Jackson's opinion just needs more time to become clear. But that seems wrong: it's a pretty obvious tension.

Another thought is that Chief Justice Rehnquist and Chief Justice Roberts strongly supported the opinion. Rehnquist because he was Jackson's law clerk when the concurring opinion was written. Roberts because he was Rehnquist's law clerk when Dames & Moore was written. So there is a nostalgia halo of sorts around the opinion for these two leading conservatives. Granted, neither was/is an originalist, but you could call them fellow travelers that might influence others. That's not an entirely satisfactory answer either. 

Maybe there is something about executive power questions that appeals to the more pragmatic spirit of Justice Jackson's work. Judges may not like an originialist straightjacket when they face high-profile fights between Congress and the President.

You could say that this problem falls into in a zone of twilight.

Mensches for Kamala Gets It Wrong [UPDATED with Jimmy Cagney]

Here is the pitch for a new group called Mensches for Kamala, announcing: "We are a group of mensches. We want to elect Kamala. We'll be in touch about the menschiest ways to make that happen."

All good intentions aside, that is just wrong.

As all Yiddish speakers will attest, you don't call yourself a mensch. It is a distinction to be noted by others, not self-bestowed. At most, you could say something like, "I want to be a mensch," but that's it. Otherwise, you might as well call yourself a "stable genius."

Also, the plural of mensch is menschen, not mensches.

And speaking of menschen:

 

 

Constitutional Recognition

In my research for my next article, I came across the following proposition that deserves consideration:

"[T]he recognition of facts in the Constitution must not be held to be a sanction of what is so recognized."

The immediate reference points for this statement was slavery and the 3/5th Clause. Anti-slavery lawyers denied that the Constitution sanctioned slavery even though the text recognized slavery. But in the 1870s, advocates for women's suffrage argued for the same rule should apply to Section Two of the Fourteenth Amendment. The provision used the word "male" to refer to voters because all voters were male, but this was recognition rather than sanction.

I'm wondering what other provisions might be described as descriptive rather than normative. 14/2's mention of states disenfranchising felons is one possibility, but there may be many more.

Federal Judges Are Mirroring the Supreme Court on Financial Disclosures

My new essay for The Hill has been in the queue since last Tuesday, and there has been a lot of news since then, so it is not about Biden, Harris, or Trump. But judges’ financial conflicts are still pretty important, and they continue to make poor excuses for non-compliance.

Here is the gist:

Federal judges are mirroring the Supreme Court on financial disclosures

There must be something about life tenure that makes it nearly impossible for federal judges to take responsibility for faults in their financial disclosures. The leading example is Supreme Court Justice Clarence Thomas, who once claimed he had “inadvertently” failed to disclose 20 years of his wife’s employment. 

Perhaps inevitably, the resort to implausible excuses and obfuscations appears to have filtered down to the trial courts. 

One case involved Judge Lewis Liman, of the Southern District of New York, who presided over a multi-billion dollar antitrust case even though his wife held stock in Bank of America, the lead defendant.  

He ruled in favor of Bank of America and the other defendants, dismissing the case in its entirety, without ever advising the parties of the stock holding.

Liman’s eventual disclosure of the financial conflict, coming months after he dismissed the case, was patently inaccurate.

You can read the rest of the story at The Hill.

Two Notes on Gerontocracy

First, I remain convinced that the most interesting and valuable piece of legal scholarship in American constitutional law I have read in the past year or two is Sam Moyn's piece on gerontocracy in Granta, "The Trouble With Old Men." This despite because of the fact that it a) mentions Hesiod, James Frazer, and the regrettable lack of mandatory retirement in American universities more frequently than it does the United States Constitution, which is mentioned exactly zero times, and b) is not published in a law review. 

Second, and with essentially no hope at all, I would say that for anyone who is serious about Supreme Court term limits for other than uninteresting short-term reasons, this--the season of Biden, Ginsburg, Trump, and Feinstein (to mention only those whose age has been or come close to front and center)--is about as good a time as one is likely to get to make some progress, 22nd Amendment-style, on a bundled, prospectively oriented constitutional amendment that provides both reasonable term limits on the Court and reasonable age limits in the executive and legislative branches.  Even if one doesn’t change the lower age limit, it seems to me that 30 years (if one sets the upper limit at 65) is a pretty substantial window of opportunity in which to seek and take one’s opportunity to run for the presidency. (For what it’s worth, I felt the same way in 2016 and 2020 and considered it somewhere between questionable and dishonorable for a number of candidates in both parties, including Trump, Clinton, and Biden, as well as Sanders and Warren, to seek the office. Offices are not entitlements, and the possibility that the vagaries of time and chance might cause a particular politician to miss his or her shot should bother no one except for the politician. Nor was there any adequate excuse, even during wartime, for Roosevelt to make virtually a deathbed run for a fourth term.)

Aaron Sorkin out-Aaron Sorkins Aaron Sorkin (Several Update)

Update: This aged well. See if the Romney-for-VP thing catches on. (Further Update: To be clear, I do not expect it to catch on. I find interesting the prospect of a Harris/Shapiro ticket, under which the First Gentleman, VP, and Second Lady would be Jewish--sparking complaints about the power behind the throne).

I have written about the insufferability of Aaron Sorkin. But we find ourselves in a Sorkinian moment, as a successful Democratic president wrestles with whether, in light of recently exposed health concerns, he should leave the election and not seek a second term. One can imagine Joe Biden--also a devout Catholic--wandering the National Cathedral shouting at God in Latin and telling him "You get Harris!" In fact, some have urged a Sorkinian solution by proposing that Harris select a Republican as VP--names include Mitt Romney (who, by the way, is 77) or Adam Kitzinger, a former GOP congressman who twice voted to impeach Trump.

Realizing that everyone is stealing his insipid thunder, Sorkin outdoes himself in today's Times by descending to outright stupidity: The Democrats should nominate Romney as President. Never mind that Romney is 77, so you are offering a super-annuated person to replace a candidate who is struggling because of his age. Never mind that Romney disagrees with just about every meaningful position in the Democratic Party platform and every ideal that the mean liberal Democratic voter (to say nothing of the progressives) believes in. Policy does not matter; only politics and getting to 270. Of course, I am not sure why Sorkin (or anyone else) believes Romney can get to 270. There are not so many Never-Trump Republicans (to whom Romney appeals as a policy matter), especially to overcome the many Democrats who would stay home.* And why is Romney better than any non-Biden Democrat--except in his appeal to Republicans. In other words, Sorkin's proposal reduces to "Democrats must sacrifice everything to bail out the Republicans who went off the rails."

[*] And perhaps not wrongly. It is one thing to tell young progressives to show up for Biden (or any non-hard-left Democrat) because he will get you some of what you want on some timeline, even if not everything or as fast. It also is one thing to tell Republicans to show up for a Democrat when their party has abandoned them. It is something entirely different to tell Democrats to surrender any policy preferences by choosing a less-offensive Republican over another Republican.

Although, I guess if a well-known playwright was going to go off the rails, it could be worse.

Religiously Affiliated Law Schools conference: "Forming Lawyer-Stewards"

This year's (well, it's biennial) Religiously Affiliated Law Schools conference will be held on September 12-13, 2024, at Fordham.  The theme is "Forming Lawyer-Stewards:  The Special Role of Religiously Affiliated Law Schools."  Fordham's new president, Tania Tetlow, will be the keynote.

More information, including registration (there's CLE available!) is here:

 

Saturday Music Post - Shall We Dance to the Music, Cheek to Cheek, All Night (in the Streets)

Today's clips -- featuring Julie Andrews, Wilson Pickett, Fred Astaire, Martha Reeves, Sly and the Family Stone, and more -- are at The Faculty Lounge.

 

Not the Best Response

“I’ll feel, as long as I gave it my all and I did [as] good a job as I know I can do, that’s what this is about."

                    Joe Biden, July 5, 2024

“Whatever the result my be, I shall carry to my grave the consciousness that I at least meant well for my country."

                    James Buchanan, January 8, 1861

 

The Fifteenth Amendment and Women's Suffrage

I'm writing a paper on the constitutional arguments for women's suffrage during Reconstruction. One interesting move that the advocates made was to say that the Fifteenth Amendment conferred or recognized a general right to vote. The argument went something like this:

1. The Fifteenth Amendment begins by acknowledging: "The right of citizens of the United States to vote."
2. Women are citizens of the United States.
3. States may regulate but may not extinguish a national right.
4. Therefore, women have some constitutional right to vote.

Victoria Woodhull also argued that women fell under the Fifteenth Amendment's language barring states from denying the right to vote on the basis of "previous condition of servitude" because women were previously held in servitude. I'm not saying that these arguments were right, but I don't think they resurfaced after 1871. 

Why is this jurisdictional?

Hunter Biden moved to dismiss his indictment for lack of jurisdiction arguing that special prosecutor David Weiss' appointment is constitutionally invalid under the Appointments and Appropriations clauses, in light of Thomas' Trump concurrence and Judge Cannon's decision to dismiss the documents case.

I leave to others the constitutional merits. My question: Why is this a jurisdictional defect? The motion describes this as an indictment "brought by an unauthorized prosecutor" and concludes that this means the court lacks jurisdiction, citing Trump and a 1991 9th Circuit case treating a challenge to a special AUSA's authority as going to the court's jurisdiction. But the cited portion of Trump does not use the word jurisdiction and the 9th Circuit case came a decade before the Court righted the ship on the jurisdictional label.

I focus on civil cases and perhaps criminal cases are different. But I think this comes back to conflating types of jurisdiction. The jurisdiction (i.e., "authority" or "authorization") problem is one of executive or prosecutorial authority--the official pursuing the prosecution lacks the constitutional authority to pursue the case. But the absence of executive jurisdiction to act should not strip the court of adjudicative jurisdiction, just as the absence of legislative jurisdiction to enact the law being enforced does not strip the court of adjudicative jurisdiction. Both require the court to exercise its power and grant judgment for the defendant on the merits.

Is there something different about criminal law and the prosecutorial power that changes this analysis?

More on Rankin's revenge

I was a bit glib and non-specific in this post. But it now appears more than a few teachers out there have made comments on social media to the effect that they wish Thomas Matthew Crooks had better aim; Libs of TikTok and Moms for Liberty have found and identified many of those teachers and their posts and are demanding scalps; and attention-starved and/or craven public officials are making noise about firing and/or decertifying those teachers. So let me try the fuller analysis here.

The leading, and factually similar case, is Rankin v. McPherson. A clerical worker in the sheriff's office had a conversation with her co-worker/boyfriend after hearing news of the attempted assassination of President Reagan, in which she said something to the effect of "if they attempt to shoot him again, I hope they get him." SCOTUS held that her firing violated the First Amendment. Her statement was on a matter of public concern and was not a threat or otherwise unprotected. And the Pickering balance--employee interests in commenting on matters of public concern against interests of the government employer in promoting workplace efficiency--favored the employee. The statement was made in a private conversation (albeit one in the workplace) and did not affect her co-workers, workplace relationships, performance of anyone's job, or overall functioning of the agency. As a clerical employee, she did not have contact with the public as part of her job and did not affect the office's law enforcement functions.

Ironically, Twitter exchanges I have seen fail to mention or discuss Rankin, which is a somewhat forgotten case (as so many Marshall opinions are) even among the First Amendment crowd.

In thinking about Pickering, it is worth remembering that the case involved a teacher, fired over a teacher over his letter to the editor criticizing the school board's funding priorities. Criticism of the school board did not per se affect the functioning of a school in terms of his classroom duties, his harmony with fellow teachers, or the ability of his superiors to control and discipline him. And the Court would not presume that the teacher brought his negative views into the classroom.

So what happens if schools fire or discipline teachers because of these social-media posts? As with the statements in Rankin, expressing hope outside the workplace that a political leader would be assassinated (whether as a wish for a future shooter or regret for a past shooter's failure) is non-job speech, touches on a matter of public concern, and is not a threat or incitement or otherwise unprotected. Everything thus turns on Pickering. These teachers spoke entirely outside the workplace to the public at large rather than at work to a colleague. The statements lack even a remote connection to their jobs or to their employers, because they were not talking about the school district or education (contra Pickering). Teachers are public-facing employees. But schools cannot assume that teachers will bring their personal political views into the classroom as to allow them to fire teachers who express views that school administrators find offensive or contrary to the values of the school. Absent some evidence that the teachers will attempt to convince their students that Crooks should have bought a better scope or otherwise that assassinating Donald Trump would be a good thing,* the school cannot argue that the teacher's publicly expressed political views that never find their way into the school or curriculum undermine discipline or the efficient educational operations.

[*] Which would constitute a fireable offense because elementary and secondary teachers exercise less control over their classroom speech.

The problem may be actual or anticipated parent reaction--a school might be able to argue that functions have been disrupted or undermined if parents complain or object to their children being in one of these teachers' classes. While that sounds like a heckler's veto, lower courts have rejected the idea that Pickering's disruption prong constitutes such a veto--as the Second Circuit put it, parents are not outsiders to the speech and speaker but participants in public education whose cooperation is required for the system to work.

Cases in which teachers have lost on Pickering tend to involve statements that go towards children and the teachers' possible interactions with children--a guidance counselor publishing a sexist relationship-advice book; a school counselor indicating an unwillingness to handle trans kids as the school deems fit; a teacher with a membership in NAMBLA; or a teacher who blogs critically about her students. Nothing that these teachers said bears on their students or on what they teach. Indeed, if these teachers can be fired for these obnoxious statements about world events, it seems to follow that schools could fire teachers for holding or expressing an array of obnoxious beliefs on an array of matters of public concern. Something I thought Libs of Tik Tok and Moms for Liberty decried as cancel culture . . .

When motive matters

Orin Kerr has a Twitter thread* on whether Thomas Matthew Crooks' motive matters.

[*] On Gerard's post on leaving Twitter: In one sense, I was never "on" Twitter because I never posted; I only got an account when Twitter stopped allowing people to read without joining. But I regularly read those law profs, lawyers, and journalists--including Orin--who continue to blog there and highlight new cases and issues that I may write about here, use for my own work, or use in class. Even if fewer people do this, I think it is enough to keep checking and keep reading. Still have not posted and never will.

Orin posits three possible reasons: 1) Crooks was insane; 2) Crooks was a lefty who believed the "Trump is a threat to democracy" of Mother Jones and Rachel Maddow; 3) Crooks was hard right and believed Trump too moderate. Orin asks how much the actual reason matters to understanding what happened or to how to respond.

I would argue it matters whether it was # 2 because of Republican efforts, aped and aided by the media, to use this to silence sharp (if accurate) criticism of Trump. If we know he is not a lefty, then the narrative of "violent rhetoric from the left" cannot (or at least should not) take hold or be given credence. But that is, to this point, the most consequential effect of the event (along with, I suppose, the BS "Trump has changed narrative").

On-point precedent (Updated)

The latest target of Libs of Tik Tok has on-point precedent on her side. Maybe there is a difference between a special-ed teacher and a clerical police employee, although I doubt it. The school would have to show some risk that she has brought or will bring her heinous political views into the classroom. Unless cop-porn has changed the legal landscape.

Update: Seems to be spreading and escalating. A teacher in Oklahoma City posted "[w]ish they had a better scope" and the state superintendent announced that he was coming for her license, insisting that "[n]o one in Oklahoma education system will support the assassination of @realDonaldTrump. It will not be tolerated. Ever!" Interesting response--query whether it extends to those supporting the assassination of anyone else (suppose Crooks decided to shoot at Biden--new reports suggest he picked his target at random). Or to those who, for example, insist that Derek Chauvin was justified in killing George Floyd. Otherwise, this guy gave himself a viewpoint-discrimination problem, atop everything else.

Bye-Bye Twitter/X

I deactivated my Twitter/X account the other day. I'd been thinking about this for the past few months. Given that I blog on two platforms, I could never figure out why I was on Twitter. I suppose one answer was that some traditional blogging migrated to Twitter--I'm looking at you, Orin Kerr--and I wanted to read that. But there is less of that there now. During the Section 3 litigation, I also felt some obligation to be on there for people who were looking for information. But that's dormant now, so that rationale doesn't exist either.

In the end, I think Twitter/X is a waste of time. I reached this conclusion years ago about cable news and never looked back. 

Ballots, bullets, and media narratives (Updated)

Donald Trump won reelection when that bullet whizzed past him on Saturday. This means neither that I wish Trump had been killed nor that the shooting was the Reichstag Fire. Rather, the shooting will affect media coverage of the race in a way that I believe will affect a significant number of voters and that I do not believe Biden can overcome.

First, Trump's reaction--to adorn t-shirts and history books for years to come--reinforces the narratives of Trump as a "fighter" and of Trump as younger and more vigorous and tougher than Biden. It is no longer just that Trump and stand and scream for hours (even if what he says is nonsensical and/or frightening). It is that Trump leaped to his feet after getting shot in the ear. MAGA types had long trafficked in strange images of Trump as muscle-bound strongman. Now a real example feeds that image.

Second, the media narrative will make impossible the accurate Democratic argument that Trump is an authoritarian who undermines and threatens the constitutional order. Any criticism of Trump or discussion of Trump's dangerousness will be criticized by MAGA and reported by the media as the left inciting and calling for more violence against Trump (with constant reminders of the shooting). Biden and Democrats cannot make the core argument against Trump's election without being criticized for raising the temperature and setting the stage for more violence. At the same time, the media will play up (as it has begun to do) the narrative of Trump as a "changed man," seeking to unite rather than divide and finally become President of the whole United States. Anything Trump says at this week's RNC and beyond will be framed around and reported as reinforcing that supposed change and desire to unify, regardless of its substance and as the things he pursues remain inherently divisive. The media has long been unwilling or unable to accurately report what Trump says and does, trapped by what some have called the bias towards normalcy. The shooting and its aftermath offer a different bias through which to launder the danger.

Third, these narratives have developed before we know the shooter's motives, whether this was politically motivated, and whether the narrative of "Trump is dangerous and must be stopped" (even if in context every sane person knew that meant the ballot box) had anything to do with the shooting. The narrative is that it did and thus Democrats must change their message and stop criticizing Trump.

Finally, this from David Frum: "Nobody seems to have language to say: We abhor, reject, repudiate, and punish all political violence, even as we maintain that Trump remains himself a promoter of such violence, a subverter of American institutions, and the very opposite of everything decent and patriotic in American life." I would add that even if some people had that language, the media could not and would not present it to the world.

Update: Tom Nichols, also in The Atlantic. He blames bad-faith GOP partisans more than the media for engaging in what Ed Luce calls “an Orwellian attempt to silence what remains of the effort to stop [Trump] from regaining power.” But if the move comes from partisans, it "seems to be working" with the media--MSNBC canceling Morning Joe on Monday and The Times apologized for an op-ed, published before the assassination, calling Trump unfit for office. But I think this confirms my original point that it is on the media. Political leaders are going to political leader, especially bad-faith actors such as Rick Scott and Mike Collins. Things fall apart when the media cannot or will not stand up to that bad faith. As journalism professor Jay Rosen puts it, the trust-in-media problem is that the media do not trust themselves.

A Home Distillery and Prohibition

In more mundane news, there was an interesting District Court opinion out of Texas holding that the federal ban on at-home distilling is unconstitutional. The Court concluded that the ban, first enacted in 1868, exceeded Congress's power under the Commerce Clause and was not a tax. This decision could give the Supreme Court an opportunity to revisit cases like Wickard and Raich.

That said, I think that there is also a Twenty-First Amendment issue here. The Amendment implies that the states should take the lead in issue related to alcohol regulation. This was, of course, ratified well after 1868. I wonder whether Congress's powers here should be read more narrowly. Coming soon to Fifth Circuit courtroom near you.

Tessie Prevost Williams, unsung hero of school desegregation, dies at 69

From the Washington Post:

But the same morning that Bridges faced fulminating White mobs to enter the first grade at William Frantz Elementary, three other 6-year-old African American girls braved the same gauntlet as they integrated McDonogh 19, another elementary school in the Ninth Ward, just two miles away.

On the Monday in November that was set for their first day at their new schools, the girls were picked up at their homes by U.S. marshals assigned to protect them.

Over the course of the day, the school emptied out of White students. “All of a sudden you see children disappearing,” Mrs. Prevost Williams told Devlin. “Someone would come and just snatch a child out of the classroom.” White families found other schools for their children to attend and in many cases moved away. For all of first grade and half of second, the girls were alone, a classroom of three.

At that point, the marshals were no longer present, journalists had turned their attention away from New Orleans and the girls, in many respects, were on their own. Their experience became “progressively worse as they went throughout their academic career,” said Mark Cave, a senior historian at the Historic New Orleans Collection.

Students kicked and hit the girls, spat upon them, pushed them down the steps, struck them with baseball bats and ripped their clothing. The teachers did nothing to stop the abuse and at times encouraged it. Mrs. Prevost Williams remembered one of them as “the devil’s bride.”

It is a story of incredible dignity and resolve, confronted by appalling hatred and depravity. You should read the entire obituary here.

A Serious Issue, Unseriously Reported

As Paul Caron notes, Inside Higher Education has an article suggesting that Columbia law professor Katherine Franke faces potential dismissal by her university. If she were dismissed or seriously disciplined for the statements that apparently are the focus here, statements that I find rather silly, that would be a cause for serious alarm and objection. Whatever one thinks of what she said, it is not proper cause for academic dismissal. Those who are concerned to protect academic freedom should watch vigilantly.

That said, may I note that the article is so poor that it cannot possibly count as a serious and reliable account. (It is also dismally written. I don't know whether the fault is the reporter's or the editors'. Wherever the fault lies, something went very wrong for the lede to be relegated to the thirteenth paragraph.) Despite a mild genuflection toward the idea of seeking comment elsewhere, it is essentially a single-source story, that source being Prof. Franke, and it mostly simply retails her own arguments and complaints. The idea that she may be fired--something that should not happen, based on what is presented here, and that I would of course oppose--is based wholly on this statement: "The university did send a copy of its Office of Equal Opportunity and Affirmative Action policies, which include termination as one of multiple possible sanctions for alleged discrimination and harassment. Franke says her lawyer has told her she has a 50-50 chance of being fired." I am not sure I would take a list of sanctions that includes dismissal as strong evidence of what will actually happen, and I am disinclined to give much weight to a second-hand report of a lawyer's probability estimate.

At the risk of tiresome repetition, I would oppose such an outcome. But neither this story, nor a story published--on the very the same day--by The Intercept, which is better written and better done but otherwise mostly identical in its substance and sourcing, should yet be taken as serious indicators of what is to come. I was not a journalist for very long, although I was glad to learn a few journalism skills at the university at which Prof. Franke teaches. But from that perspective, and especially given their overlap, both stories seem closer to transcription or to a PR campaign than to serious independent journalism.  

More on the continued usefulness of Younger

A third post on the 11th Circuit and rethinking Younger:

The Volokh Conspiracy's weekly Short Circuit roundup includes the case, along with a link to an Institute for Justice amicus brief. IJ offers a slightly different argument than Judge Rosenbaum for rethinking Younger. Pre-enforcement offensive litigation has expanded since the 1970s when the Court decided Younger and its early progeny, because the Court has developed a greater willingness, especially in First Amendment cases, to find the threat of prosecution sufficiently imminent. In this case, that means a "phonebook's worth" of similarly situated PACs and organizations could sue Georgia in a pre-enforcement challenge to these laws. Abstention in this case therefore does not serve Younger's stated purposes: Someone else can bring the federal court into the mix via pre-enforcement action, leaving state courts and agencies no room to operate, just not the plaintiffs with the most concrete injuries (the ones facing actual rather than threatened enforcement).

An interesting argument, although it might prove too much. Constitutional litigation is atomized, with different cases challenging a particular law as to different rights-holders. So there is nothing inconsistent if some cases involving some rights-holders must remain in state court while other cases involving other rights-holders can be in federal district court. Maybe a case such as this one, involving general campaign-finance regulations, is different.

Saturday Music Post - Iko Iko

Originally titled "Jock-a-Mo," the song now known as "Iko Iko" was written and released by Chess Records' Checker subsidiary in 1953 by James "Sugar Boy" Crawford. It tells the story of competition between two bands of Mardi Gras parade "Indians." The lyrics are just random chants -- as Crawford explained in an interview -- although some have tried to impute meaning to them. Crawford's record didn't chart, but the Dixie Cups had a hit with an a cappella version in 1965. One of them had evidently only heard her grandmother singing it and, unaware of Crawford's release, and believing it to be a traditional song, claimed the copyright. (Evidence, btw, that such copyright claims were common at the time, and not only by Pete Seeger.) Litigation followed, with Crawford mostly prevailing.

"Iko Iko" has been closely identified with New Orleans, though many of the numerous covers have been by non-NOLA artists, whose clips you can enjoy at The Faculty Lounge.

JOTWELL: Bookman on Dickinson on state courts and democracy

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Gerald S. Dickinson, Judicial Laboratories, ___ U. Pa. J. Const. L. ___ (forthcoming 2025), exploring state courts' unique powers and unique roles in preserving and promoting democracy.

The Greek Way

I am now reading this book by Edith Hamilton. Back in the 1950s and 1960s, The Greek Way was one of those books that powerful people in Washington often had on their shelf. (Much like people now have The Power Broker). Justice Hugo Black was a big fan. So was Robert Kennedy. Indeed, quotes that RFK used in two of his famous speeches were lifted directly from Hamilton's book.

While there are some parts that are dated or obscure, the book makes many powerful observations and is written in an arresting style. I'll see if Justice Black drew on any material from The Greek Way in his opinions.

More on Younger--Exhaustion and the limits of defensive litigation

I am thinking through some points in my post about 11th Circuit Judge Robin Rosenbaum's call for rethinking the scope of Younger, at least in electoral speech cases.

Rosenbaum argues that "Younger has evolved to allow states to impose a state-exhaustion requirement on those trying to exercise core First Amendment rights." This is a bit nit-picky, because I agree with her basic criticism. But it is inaccurate to say Younger imposes an exhaustion requirement. An exhaustion delays federal litigation by requiring the plaintiff to pursue other procedures before going to federal court. But the plaintiff should get to federal district court eventually. On the other hand, when the federal court abstains under Younger, that plaintiff will never return to federal district court in a § 1983/EpY action. The rights-holder remains in state administrative and judicial proceedings, with the possibility of a federal forum through SCOTUS review of the state's highest court. Rather than creating exhaustion, Younger limits offensive pre-enforcement § 1983/EpY litigation and compels defensive litigation on important free speech issues. Still potentially problematic, depending on one's views of the lines between offensive and defensive litigation. But not as inconsistent with the text and purpose of § 1983.

The key to Rosenbaum's argument is an objection to Younger's application to state administrative proceedings (at least in First Amendment case), which delay access to state courts. She identifies two arguable problems. First, while Younger perhaps fairly presumes parity between state and federal courts in willingness to vindicate federal rights, that presumption should not apply to state administrative agencies, even with eventual state judicial review. Second, delaying access to state court may delay the first meaningful opportunity to raise federal issues--a rights-holder has an adequate opportunity so long as he can raise issues in some state proceeding, even if it does not come until several steps down the line. That is, if the PAC cannot raise First Amendment issues before the hearing board, it is enough that it can appeal the board's decision to a state appellate court and raise the First Amendment there--regardless of how long it takes to get to that second level of review.

On the other hand, the upshot of Younger is to push rights-holders out of federal district court and into state proceedings that must run their (state-determined) multi-level course. It is not clear why the first level must be judicial rather than administrative. Nor is it clear why the opportunity to raise federal issues must come at the first stage of the multi-level process, if that process must run its course before those rights can be vindicated. That is, why does it matter whether the rights-holder can raise and prevail on his federal rights at the first stage if the state will appeal that decision in any event and force completion of those proceedings.

The answer to that goes to preliminary relief, available in offensive federal litigation but not in defensive state litigation. A rights holder (such as the PACs in the Georgia case) can obtain a preliminary injunction in federal court, allowing it to engage in political speech pending resolution of the constitutional questions. From a defensive posture, especially within an administrative process, the rights-holder must remain silent and ride out the proceeding. That, ultimately, becomes the real issue with Younger's push into defensive litigation.

The Triangle of Lawyer Movies

Interesting theory from (non-lawyer) Albert Burneko at Defector (with many comments from lawyers).

Cheering speech in context

Protection for cheering speech--fan speech during sporting events--depends on context. Different sports employ different norms and practices, which affect what is acceptable fan speech. Obviously, the constant thunder of a basketball game at Duke's Cameron Indoor Stadium does not carry over to Wimbledon, where fans cheer between points but are expected to remain silent during play.

That works well enough in trying to define the rules for fans in those stadiums in which First Amendment rules apply and in which the stands can be seen as some kind of public forum. But tennis also apparently has norms limiting what fans cheer for or against and how. Two cases in point from Monday.

Novak Djokovic was upset with the Wimbledon crowd during his victory over Holgar Rune for disrespecting him by shouting "booo" at him; he rejected the idea that it was Rune fans supporting their player by chanting his name ("Ruuuuune"). Alexander Zverev had a long conversation with American Taylor Fritz when they met at the net following Fritz's five-set victory, apparently angry at how loudly some in Fritz's box cheered, especially when it was obvious that Zverev was injured. It probably did not help that Fritz's girlfriend made several (since-deleted) Instagram posts about women supporting Fritz, perceived as referencing several accusations of domestic abuse against Zverev. Indeed, Zverev clarified that Fritz's coaches and trainer were respectful, so it it was someone else being disrespectful--do the math.

So it is ok to cheer for Player A but not against Player B. And do not cheer too loudly. And do not cheer (at least not overly hard and loud) for Player A if Player B is injured. Strange.

The source of the complaints should not surprise. Djokovic cannot get the fans to love him despite being the unquestioned G.O.A.T., so he somewhat leans into the villain role. And Zverev is poster-child for the ATP's perceived unwillingness or inability to hold players accountable for off-court misconduct.

John Roberts Rewrites History

The majority opinion in Trump v. U.S. claims that Federalist No. 70 supports the theory of absolute presidential immunity, when in fact it says pretty much the opposite. Yes, it extols "energy in the executive," but it also lists four "ingredients" for an energetic executive, none of which is immunity. And Federalist No. 69, also written by Alexander Hamilton, actually notes the circumstances in which a former president could be “liable to prosecution and punishment in the ordinary course of law.”

But no matter. All it takes is a poetic rewrite to harmonize the Federalist Papers with Roberts's invention of presidential immunity (with apologies to A.A. Milne):

James, James, Madison, Madison, founding father was he.

James, James, Madison, Madison, stood just five foot three.

James said to his good pal Hamilton,

Alex he said, said he:

Forget all our capers with Fed'ralist papers,

And just say immunity.

Rethinking Younger

Interesting Younger case from the 11th Circuit. The Georgia AG pursued a state administrative action against a PAC associated with Stacey Abrams for failing to register and file various reports. The state commission found reasonable grounds and referred the case to the AG, which referred the matter to the state administrative hearing body. Between those events, the PACs filed a § 1983 action to enjoin the state proceedings. The court held that the district court should have abstained from the federal action.

Judge Newsom wrote another Fed Courts treatise for the panel. Although the PACs filed the federal action before the hearing body received the referral to commence its proceeding, the court applied the piece of Younger under which the court must abstain if the state proceeding commences after the federal proceeding but before any "proceedings of substance on the merits have taken place in federal court." The plaintiffs had filed a complaint and a motion for a preliminary injunction and the court had handled some case-management motions. But the court had not ruled on the PI motion or otherwise engaged with the merits in the few weeks before the state proceeding commenced.* And the fact that the state conducted a thorough multi-year investigation of the PACs undermined the suggestion that the case falls within the bad-faith exception.

[*] The court rejected the district court's reliance on its "experience managing cases" in defining the point at which the state action is too late.

Judge Rosenbaum concurs to call on the courts to "reconsider just how far Younger should extend." Rosenbaum fears Younger in a case involving core political and electoral speech; that speech has achieved greater protection than it had at the time of Younger. Whatever the merits of abstention in 1970s actions involving communists, nude dancing, and "Deep Throat" (speech which the Burger Court was backing away from protecting), Citizens United and other recent campaign-finance cases vault such speech into a unique First Amendment core demanding the "strongest protection." (A cute rhetorical move in a case in which a Republican AG was going after a Democratic PAC). She complains that two of the Middlesex factors--state interest and adequate opportunity to raise federal issues--invariably favor abstention and the exceptions are too narrow to offer help. This imposes an exhaustion requirement for those wishing to engage in core political speech during and around an election. And she identifies the "Goldilocks" problem in Younger--plaintiffs must hit the sweet spot between state enforcement being sufficiently imminent to warrant standing but before that state enforcement has begun.

Recent criticisms of Younger--especially in the work of Fred Smith (Emory)--focus on efforts to challenge proceedings within the criminal justice system, such as bail or the corrupt mess in municipal courts in Ferguson and elsewhere. The argument is that federal courts should not defer to broken state systems that the federal action challenges. Rosenbaum focuses on one area of substantive law that abstention disparately effects, in a way that undermines the substantive purposes of that law.

Court Expansion Is the Only Remedy for the Partisan Super-Majority

My new column for The Hill exposes the partisan nature of the Supreme Court’s presidential immunity decision, and explains that expansion is the only path forward, even if it takes many years. Here is the gist:

A long-game strategy to fix our partisan Supreme Court

Justice Amy Coney Barrett posited that the hackery charge could be refuted if we would only “read the opinions.”

That’s fair enough. But reading just a few passages of Trump v. United States reveals that it was indeed results-driven, lacking the basic attributes of a solid constitutional decision.

Roberts shrugs off the absence of a comparable presidential immunity provision by noting that “there is no ‘separation of powers clause’ either.”

Roberts’s analogy is nonsense. There are actually three clauses in the Constitution that unambiguously provide for the separation of powers — they couldn’t be any more separated — while there is no similar textual support for absolute presidential immunity.

Roberts again waves off the plain text of the constitution, insisting that the impeachment clause “does not indicate whether a former president may, consistent with the separation of powers, be prosecuted for his official conduct in particular (italics original).”

But what else would a presidential bribe be for, other than the conduct of an official act?

The majority opinion consistently fails Barrett’s test for partisan hackery, relying more on judicial sleight of hand than on text or precedent.

Supreme Court expansion does not have a natural constituency among lawyers and the public.

But what other remedy is there for a court that has essentially legalized presidential bribery?

You can read the entire essay at The Hill.

Petitions for Rehearing in the Supreme Court

A petition for rehearing is rarely granted by the Supreme Court. I can recall only one example in the last 2o years (Kennedy v. Louisiana). But I wonder why more litigants don't file one for PR reasons.

Consider a high-profile case in which there will be no further substantive proceedings. You lose in the Supreme Court. Why not file a rehearing petition pointing out why the Court's opinion is wrong or poorly reasoned? Unlike a brief, you can actually respond to the opinion rather than anticipating what the Justices may think. 

Maybe attorneys who are repeat players don't do this because they think they'll look like sore losers. Or maybe filing a rehearing petition just costs money that clients don't want to pay. But I'm surprised that you don't see more rehearing petitions at the Court.

Saturday Music Post - Loving Too Long

"I've Been Loving You Too Long (to Stop Now)" was written in 1965 by Otis Redding and Chicago's Jerry "Iceman" Butler (who, I have to note, served on the Cook County Board of Commissioners 1986-94). It was Redding's second biggest hit, after the posthumously released "Dock of the Bay." The background guitar arpeggios were by Steve Cropper, who also produced the single.

The clips are at The Faculty Lounge.

Maya Moritz on Entry-Level Hiring

Maya Moritz has an extremely informative analysis of hires in the law professor market, with a focus on JD/PhDs.

More on collateral order review of presidential immunity

The latest episode of Divided Argument with Will Baude and Dan Epps explores Trump. Baude praises Barrett's conception of presidential immunity  as an as-applied constitutional challenge to the law. So conceived, however, Baude questions Barrett's conclusion that denial of the defense is immediately reviewable. Immunities receive immediate review, as they protect the person from having to stand trial or stay in litigation for too long. Constitutional defenses--e.g., a separation-of-powers defense to the CFPB (Barrett cites Seila Law as an example) or a First Amendment defense to a flag-burning law--do not, as they protect the person from liability. I want to unpack what I wrote about this.

COD appealability should not turn on labeling something as "immunity" or as a "right not to stand trial." Barrett's point is that immunity is never a distinct concept; it is shorthand for the argument that a law does not apply to the defendant's conduct.* And it is not obvious what makes something a right not to stand trial as opposed to a defense to liability, beyond the label--every defense can be characterized as one or the other.  There is no obvious reason that double jeopardy and qualified immunity are immunities according a right not to stand trial while preclusion and the FTCA judgment bar are defenses to liability.

[*] Justice Alito has said the same about MLB's antitrust immunity--he describes it as a judicially interpreted exclusion of MLB from the scope of antitrust laws and the application of those laws to MLB's conduct

Justice Souter tried to wrangle this issue in two unanimous COD opinions--Will (FTCA judgment bar) and Digital Equipment (private covenant not to sue). Reviewability should turn on the systemic import of the interests sought to be vindicated by immediate review and that would be lost by "rigorous application of a final judgment requirement." Thus, "it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is 'effectively' unreviewable if review is to be left until later." This analysis considers the source of the asserted right (Constitution, statute, common law, contract) and who and what the right protects (individual or systemic interests). Unfortunately, Souter's approach has been lost in favor of simple labels.

Back to Barrett and presidential immunity. Her conception of a constitutional defense to a prosecution places presidential immunity on the same footing as the separation of powers and First Amendment defenses above. So why is the first immediately reviewable and the other two not? She never explains. Souter's considerations about underlying interests provide a way out. Although all derive from the Constitution, the latter two (and certainly the third) protect individual liberty interests; the first protects broad systemic interests of the presidency and the ability of the President to act within the constitutional system. That distinction may be wrong. Separation of powers in Seila Law serves structural interests of preserving the President's removal power; one could argue individual liberties serve structural interests of limiting government power. Maybe Barrett's position, taken seriously, explodes the COD or forcse the Court to make absurd distinctions to ensure COD remains a "small class of claims."

But Barrett's position about presidential immunity is not necessarily wrong or inconsistent with COD--if we accept Souter's position that COD turns on the underlying interests and policies at issue and begin the analysis there.

"Yes, Prime Minister" on Criminal Procedure

On Independence Day and British General Election Day, let's take a look at this gem:

PM Hacker: I want to trace the culprit.

Sir Humphrey: Yes, Prime Minister.

Hacker: And I want a prosecution.

Sir Humphrey: Yes, Prime Minister.

Hacker: And I want a conviction.

Sir Humphrey: (pause) We can try and trace the culprit, we can prosecute, but under the present political system, there are problems about the government actually guaranteeing a conviction.

Hacker: A little drinkie with the judge?

Sir Humphrey: It's unthinkable. There is no way any pressure can be placed on a British judge.

Hacker: Well how does one secure a conviction?

Sir Humphrey: Well simple, you find a judge who won't need any pressure put on him.

Hacker: Oh.

Sir Humphrey: A quiet word with the Lord Chancellor, find a judge who's hoping to be made a Lord of Appeal, and then leave justice to take her own impartial and majestic course.

Hacker: And that does the trick?

Sir Humphrey: Well not always. Sometimes they're so obviously trying for a conviction, that the jury acquits out of sheer bloody-mindedness.

Hacker: So you need a judge with a bit of common sense as well.

Sir Humphrey: Ah yes.

Hacker: Won't be as easy as you make out.

Presidential immunity, Speech-or-Debate, and evidentiary privilege

An email exchange with Lee Kovarsky (Texas)--who has great analysis of the immunity decision on Twitter and in a Seattle University Law webinar --offers a possible justification for treating presidential immunity different from Speech-or-Debate immunity in terms of anevidentiary privilege. Lee concedes this may not justify the criticism or differential treatment--maybe both should include the evidentiary privilege. But it is the first possible distinction anyone has presented to explain unique complaints about the evidentiary privilege and to explain why the majority had to do more to defend it.

My mistake was in thinking about the evidentiary privilege as downstream from immunity simpliciter rather than as downstream from the underlying textual and policy bases for immunity. The issue is not "both are incidents of absolute immunity." The issue is "whether this is properly an incident of the underlying basis for that immunity." They are not the same. Summarizing (not quoting) Lee's argument:

Under the Speech-or-Debate Clause, members "shall not be questioned in any other place." That is a uniquely broad framing; it has a "what happens in the House stays in the House" flavor to it. An evidentiary privilege fits the core of that language--to use legislative acts in court in any manner is to "question" such acts in another place. Presidential immunity rests on policy--ensure "bold and unhesitating action." An evidentiary privilege may be less core to that policy--it is less obvious that using presidential actions as evidence to prove other, non-immune misconduct causes the President to be less bold or more hesitating in his official actions.

Take bribery as the paradigm. Offering evidence in court of a corrupt floor speech or vote as evidence of a bribery scheme questions that act in another place, something the text precludes. Offering evidence of one corrupt pardon to prove a bribery scheme does not run afoul of any textual limitation and does not obviously cause the President to be less unhesitating in offering pardons.

I will add one more piece to this--None of the other policy-based immunities--for example, absolute prosecutorial and judicial immunities under § 1983--includes an evidentiary privilege. Thus, an evidentiary privilege is not inherent to immunity. Something makes Speech-0r-Debate unique among all other immunities--its grounding in far-reaching text.

The counter to this argument is that the Framers (according to James Wilson) included the Speech-or-Debate Clause to "enable and encourage the Representatives of the public to discharge their trust with firmness and success." So legislative and presidential immunities serve similar policies, albeit at different levels of remove.

At the very least, however, this requires analysis and explanation on everyone's part. The majority needed to explain why this evidentiary privilege was essential* to the underlying policies justifying the immunity it established; Justice Barrett needed to explain why it is not essential to an immunity she agreed with, in light of Speech-or-Debate's evidentiary immunity; and the dissent and everyone else criticizing the evidentiary piece needed to identify and work through the distinction Lee came up with.

[*] In that Seattle Law webinar, Steve Vladeck suggested it was not within the QP.

Questioning prosecutorial immunity

Justice Sotomayor respecting (although not dissenting from) denial of cert in Price v. Montgomery County questions prosecutorial immunity--its origins (including noting Alex Reinert's article that Congress abrogated all common law immunities when it enacted § 1983); the misalignment of its scope compared with its policy goals; and the inadequacy of alternative means of remedying prosecutorial misconduct. She does not argue the Court should have granted cert. She argues that the cert denial should not be read as tolerance of the prosecutor's conduct (the Court denies cert for many reason); that the Court may need to step in; and that lower courts must keep immunity with "'quite sparing'" bounds.

Jurisdictionality and presidential immunity

On top of everything else that was bad in Trump, the majority and Justice Sotomayor use language that could be read to suggest that this immunity is a limit on the court's adjudicative jurisdiction rather than a defeat on the merits.

Discussing the first bucket of presidential conduct (conclusive and preclusive), Roberts quotes Youngstown that this bucket "'disables the Congress from acting upon the subject'" and Marbury that "the courts have 'no power to control [the President's] discretion'" and that discretion "cannot be subject to further judicial examination." He repeatedly speaks in the same breath of what Congress and the courts cannot do--"Congress cannot act on, and courts cannot examine, the President’s actions;" Congress "may not criminalize the President's actions . . . Neither may courts adjudicate a criminal prosecution;" or the removal power "may not be regulated by Congress or reviewed by the courts." Justice Sotomayor does the same in arguing against immunity, as by insisting that "'common tribunals of justice should be at liberty to entertain jurisdiction of the offence'"  or stating that "'judicial action is needed" such that "the exercise of jurisdiction is warranted.'"

To be fair, some of this comes from quoting old sources (Marbury and Story's Commentaries) or cases from before the Court grew more careful about using the word jurisdiction or speaking about courts exercising judicial power (Nixon v. Fitzgerald). But it would be unfortunate if the language causes courts (such as Judge Chutkin and the DC Circuit on remand) to backslide. Trump recognizes a disability on Congress and its legislative (or prescriptive) jurisdiction--Congress cannot enact criminal statutes that regulate certain presidential conduct. It is not a limit on the court's adjudicative authority, except in dictating how the courts must resolve any future attempt to prosecute a president and likely dismiss such a prosecution, if attempted.

Justice Barrett's distinct framing of immunity--as a challenge to the constitutional validity of the statute as applied to the President's conduct--also understands immunity as merits rather than jurisdictional limitation. Where the would-be statute of conviction is constitutionally invalid as-applied, the court is not stripped of adjudicative jurisdiction; it rejects the prosecution on the merits due to a defect in the congressionally enacted substantive law.

The Missing Word in Trump v. United States

The Court's opinion says that history is silent on the question of prosecuting former Presidents. This is both true and not true. It's not true in that the issue was widely discussed during Watergate. It's true in the sense that no prosecution was brought.

When I think about a constitutional problem, I start with the most relevant historical precedent if there is one. Thus, my analysis of any immunity would start with "Watergate is an example where the President was not immune from criminal liability." This still leaves room for some presidential immunity. (For instance, I think that the Court was probably right to say that ex-Presidents should have immunity in Youngstown Category Three situations.)

The Court, though, does not mention the word "Watergate" in its opinion. That strikes me as a total failure of professional rigor. It's not as if Watergate is an obscure event. Some of the Justices were in college or law school during that time. Now maybe they think that Nixon should have been immune (at least in part), but then they should say something about that. The dissents did not call them out on this lapse though, which may explain the omission.

The penumbra of Trump v. US

I don't have a lot to add to the discourse over presidential immunity from people who know more about this. So let me highlight some incidental points from reading it.

• The majority repeatedly suggests that "speaking to and on behalf of" the public and on matters of public concern is a non-core/official function. This might affect future applications of Lindke and when public officials can block the public from web and social-media sites. To act under color, an official must possess actual authority to speak on the government's behalf. I argued that Knight Foundation (holding that Trump and his aides acted under color in blocking readers from his Twitter feed) would come out differently, because the President lacks formal speaking authority about much of the stuff on social media. But this case suggests I may have been wrong about that--in part because the majority cites Lindke to support this broad presidential power to speak to the public. I wonder if that power to speak holds for the "chief executive" of other governments (e.g., the chairman of the county legislature). If so, Lindke may not be as narrow as I thought.

• It seems to me that Justices Barrett and Jackson take a similar approach to criminal law. Both reject the idea of of "immunity" in favor of a defense to prosecution under the statute. Jackson argues immunity lifts someone from the obligations of the law, as opposed to an individual defense to a prosecution under a particular statute. While agreeing there are limits on prosecuting a former president, she sees that immunity at the statutory level--does the particular statute reach official acts and would allowing prosecution pose a danger of intrusion on presidential authority and function. This sounds similar to a defense as Jackson defines one--it is a constitutional defense to the application of that statute to the president and his conduct.

• Barrett makes explicit what is implicit in the majority--a trial court decision allowing the prosecution to proceed is subject to immediate appeal. The Article II defense is separate from the merits of the criminal charge and making him wait to challenge the decision would undermine the executive authority and affect the President's decisions in office. This has two interesting consequences for the collateral order doctrine.

First, Midland Asphalt v. US says that collateral-order immunity in criminal cases applies to "explicit statutory or constitutional guarantees that trial trial will not occur;" that includes arguments over excessive bail, double jeopardy, and Speech-or-Debate immunity. Lower courts have applied Midland to deny immediate review of denial of a defense of judicial immunity in a criminal case--although that issue is immediately reviewable in a civil action--because no constitutional or statutory provision creates that immunity. The majority makes clear that presidential immunity is atextual, but Barrett does not attempt to connect her argument to Midland's seemingly off-hand dicta. Maybe that means Midland does not limit COD to explicit rights (as suggested in Sell v. US, allowing COD review of an order to involuntarily medicate a defendant to render him competent).

Second, if what we label presidential immunity is an as-applied constitutional defense, it seems to me that COD should apply to other as-applied constitutional defenses to prosecution, such as the First Amendment. It rests on the same idea--the argument that Congress cannot criminalize the alleged conduct (because of the First Amendment rather than Article II, but still) is separate from and collateral to the merits of the prosecution (whether the defendant violated the statute). I imagine it turns on unreviewability on appeal from final judgment, which considers the broad public policy and interests lost by delaying review. The individual importance of the defendant's First Amendment rights differs from the structural importance of presidential independence and authority.

• The majority pretty obviously believes  that everything Trump is alleged to have done--speaking with cabinet officials, speaking with state officials, speaking to the public about the electoral process and how it violated federal law, speaking to the VP--is official conduct. That the President has no role to play in state selection of electors or in the electoral counting is of no matter, because everything that happens in the country on every level is a matter of presidential concern (because he may be asked about it) and thus within his official functions. Other than lying about having sex with an intern and maybe shooting someone himself on Fifth Avenue (as opposed to ordering Seal Team 6 to do it), I am not sure what the President does that is not official. Although it does not conclusively say so, the majority opinion places a thumb on the scale on remand or shows its hand when the case inevitably (if Trump loses the election) returns to SCOTUS.

• I continue to look for a good explanation for why this immunity, once recognized, should not include an evidentiary component. If Speech-or-Debate immunity prevents the prosecution in a bribery case from offering evidence of a legislative act (e.g., a floor speech or vote), it seems to me that this presidential immunity prevents the prosecution in a bribery case from offering evidence of an official presidential act (e.g., granting a pardon or firing his attorney general or urging a state official to do something). I am not arguing that either situation is normatively good or correct. But if both immunities exist (as Barrett believes), why should they have different scopes? Someone please help me with this.

Legal Realism and the Nixon Pardon

I don't like some parts of Trump v. United States, though Trump v. Anderson was far worse. But the result yesterday was predictable. How do I know that? Because President Ford predicted something like this in 1974.

Ford was schooled in Legal Realism at Yale in the early 1940s. Here is the key passage of his Nixon pardon:

I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality.

The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.

During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.

In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would even more be inconclusive with respect to those charges arising out of the period of his Presidency, of which I am presently aware.

The upshot of this was the there was a high likelihood that the courts would not permit a criminal conviction of Richard Nixon. As a result, there was no point in a prosecution. (I quoted Ford's pardon many times to explain why bringing criminal charges against Trump was a mistake, but oh well.) Granted, Ford expressed this concern as a due process question rather than as an immunity question, but the bottom line was the same. And the New York courts may well end up concluding that Trump did not receive due process there.

 

 

The Court's craven view of politics and other thoughts

• The Court holds a craven view of "ordinary politics"--everyone abuses power for their personal self-interests and gain and that exchange of self-interest defines the political game. The legal problem thus is not that self-interest or abusing power but the supposed efforts of legislatures and overzealous prosecutors to criminalize such self-interest and abuse-that is, to criminalize ordinary politics. That explains the Court's efforts to limit anti-corruption laws or SOX's obstruction provision--gratuities and gifts and outsiders' efforts to affect official proceedings are part of the political process and the criminal laws should not be interpreted to stop that. I think the same view explains presidential immunity. Of course the President needs immunity for everything he does in office because of course the President will abuse his office for personal gain--that is just how the political process works and Congress cannot criminalize it or allow an over-zealous prosecutor to prosecute it. Stated differently, Trump using the levers of office to stay in power or for other personal gain does not create a problem--that is the game. Prosecuting one's successor creates the problem.

• Richard Primus on Twitter: Fundamentally, the problem is the same as it has always been: the system is not built to withstand a Holmesian Bad Man as president. I agree. But it seems to me the Court believes the Holmesian Bad Man is our typical (if not ideal) public official.

• I re-up this exchange between Gerard and Paul about why we succeeded as to Nixon and Watergate and have failed as to Trump and January 6. Today's decision took judicial action and criminal law off the table. But the exchange is relevant because I read the decision to repudiate all of Watergate. Under this opinion, it seems to me Nixon could not have been prosecuted for the key actions that got him in trouble--the taped conversations with Haldeman and pushing the CIA to obstruct the FBI investigation--and that Ford's pardon was unnecessary.

• I am surprised by the many people surprised that the Court extended immunity to include a privilege against evidentiary use of immune acts. Legislative Speech-or-Debate immunity has long included such an evidentiary privilege--government cannot use immune legislative acts (e.g., a floor speech or vote) to prove a bribery case.* If the President enjoys a similar absolute immunity from prosecution for "presidential" functions, it seems logical that immunity would extend to evidentiary use. I am not agreeing with the Court's decision to create a speech-or-debate analogue from whole cloth, with the existence of either evidentiary privilege, or with the principle that presidential immunity, lacking a similar textual basis, must be co-extensive with legislative immunity. My point is that if an evidentiary privilege is inherent in one immunity, it is not surprising that it is inherent in the other. And so I am curious why Justice Barrett, who appeared skeptical of immunity during oral argument, drew that as her line and declined to join that portion of the Roberts opinion.

On that note, by the way: I would love to hear from people who study this issue why that textualist point never arose in this case. The framers included the Speech-or-Debate Clause because they did not believe the Article I vesting clause sufficient to establish legislative immunity. No one argued that the Article II vesting clause is not sufficient to establish presidential immunity. Why not?

[*] The court applied this in the prosecution of NJ Senator Bob Menendez, excluding from evidence certain texts referring to Menendez's actions in delaying or not delaying aid to Egypt.