PrawfsBlawg

Abstention is down on its luck these days

(Thanks to Gerard for the title):

Another district court has declined to abstain from an action to enjoin a state proceeding to remove a 1/6 insurrectionist from the ballot under § 3 of the Fourteenth Amendment. This time it is the Northern District of Georgia in a suit by Marjorie Taylor Greene. The court does a better job than the Eastern District of North Carolina in Cawthorn. In fact, I think the court got it right. The state  ballot-challenge proceeding is a private dispute--between a challenging voter and the candidate--in a state-run proceeding, rather than a state-initiated and state-enforced proceeding. That resembles the PUC proceeding at issue in Sprint and does not fit the second category of a quasi-criminal civil enforcement action. And it does not fit the third category of a uniquely important judicial order (akin to contempt or pre-trial sequestration or post-trial appellate bonds), lest all private proceedings and all orders within those proceedings fall within Younger. (The Georgia court reached the correct result on the merits and refused to enjoin the state proceeding).

A distinct question is whether some other abstention doctrine should be in play, to keep state defendants from running to federal district court just because, as the EDNC court held, really important federal interests are in play. One possibility is Colorado River, which allows abstention to avoid parallel litigation. A better candidate Burford, which requires abstention in deference to state proceedings that are part of an integrated state regulatory scheme. Do elections qualify? Are they the equivalent of Texas regulating oil drilling?

Judge Sutton on universal injunctions

Judge Sutton wrote a concurrence (begins at p.18) critiquing the power to issue universal injunctions, both from an Article III and remedial prospective. Along with Judge Manion's concurrence, this is the best judicial explanation for why universal injunctions are improper and why arguments for them collapse under their own logic. Sam Bray reprints the whole thing.

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part II

Our second SB8 article has been published in SMU Law Review. This focuses on the commonality of defensive litigation against constitutionally invalid law and how defensive litigation might play out.The third piece, on New York Times as historical analogue, will be published in Houston Law Review next fall.

"Favorable termination" requires non-conviction and nothing more

Here is my SCOTUSBlog recap on Thompson v. Clark, decided Monday. Kavanaugh writes for six, holding that favorable termination for a Fourth Amendment malicious prosecution claim need only show that the proceedings ended without a conviction. Alito dissents for himself, Thomas, and Gorsuch, rejecting the idea of malicious prosecution as a seizure under the Fourth Amendment. The result is not surprising given oral argument, down to Alito likening such a claim to mythological creatures--today it is the chimera, at argument it was a centaur).

"Don't say gay suit" filed

Complaint here (my wife is friends with two of the plaintiffs). I am trying to figure out whether this runs into some standing/11th Amendment/EPY problems from not having the correct defendants.

The law prohibits schools and teachers from discussing certain topics in and out of class and requires schools to report LGBT+ students to their families; it subjects teaches, administrators, and school boards to suit by random objecting parents. Plaintiffs are a collection of advocacy organizations, students, parents, and one teacher; defendants are DeSantis, State Board of Ed, BoE members, Commissioner of Education, and several school boards.

Despite the similarity of the private-enforcement scheme Florida adopted, most plaintiffs do not have the SB8 problem. Their rights are violated because teachers, administrators, schools, and school boards--fearing private suit and liability under the law--follow this invalid law in allowing or not allowing certain speech and in doing or not doing certain things. In essence, the state legislature compels local governments to violate students' rights by siccing parents on those local governments for failing to violate students' rights. Although limiting speech and discriminating out of fear of suit rather than (necessarily) a desire to stifle expression or to discriminate, teachers and school boards in following this law in the classroom act under color of state law and violate students' and parents' rights. So I think a violation is sufficiently imminent if a student can allege "I have two mothers and it is clear that teachers will not allow any discussion of my parents in class because this law exists and they are worried about being sued."

The one plaintiff who might have a problem is the teacher, who is subject to enforcement only by a private suit by an as-yet unidentified parent, but no government sanction; that teacher is similarly situated to an abortion provider under SB8, in that he protected speech is chilled by the threat of suit by an unknown rando. The teacher's claim might depend on how the BoE or a local school board implements the law and whether they impose governmental sanction on a teacher apart from any private lawsuit. For example, does the school threaten to fire or sanction teachers who violate the law and gets sued? Or does the school threaten not to indemnify-and-defend a teacher who gets sued for violating this law? That would constitute further government action disadvantaging that teacher because of her constitutionally protected conduct and in furtherance of an invalid law.

That said, jurisdictional/procedural questions remain. Although DeSantis is the villain in the complaint's narrative (and really any narrative in this verkakte state), I doubt he is a proper defendant, because he plays no role in enforcement. I also wonder if a court might find some claims, although against a proper defendant, premature. Perhaps the necessary imminent harm to the plaintiffs depends on further action by someone  to put the statutory limits into action--a school or board imposing regulations with some penalties or a teacher actually silencing that student with two mothers who wants to draw a picture of her family.

I have focused on the procedure and jurisdiction rather than the substantive constitutional violations at this point. Some seem iffy. There is a First Amendment claim based on a right to receive information. But a student or parent does not have a First Amendment right to dictate the curriculum, so cannot base a violation from the school refusing to teach certain matters in the classroom. The question is whether equal protection adds something when that curricular decision is motivated by discriminatory animus (there are 14th Amendment and Title IX claim in the mix for that purpose). Or whether vagueness adds something because no one can figure out what the curriculum is.

The complaint makes noise (although does not base a claim) on the use of "diffuse" private enforcement as nefarious and invalid. I obviously reject the argument here for the same reasons I reject it as to SB8.

Update: And just like that: A parent in St. John's County complained about a teacher wearing a "Protect Trans Kids" t-shirt at school, and the school administration asked the teacher to change shirts (which she did). This is not directly about the new law; district policy prohibits teachers from wearing clothing or apparel with written messages. But I wonder if the regulation was honored more in the breach and that this (and other) teachers wore message-bearing clothing without incident. And if the new law empowered the parent to complain, where most parents let it go. The story illustrates a couple of things. First, it shows how we get state action from civil enforcement, unlike in SB8--legally empowered parent complains, school takes action, school's actions violate rights. Second, it shows what the legal arguments might look like. If teachers regularly wear message-bearing clothing but only the teacher with the pro-LGBTQ+ message is asked to change out of fear of suit under the new law, it helps plaintiffs establish standing by showing that having to change shirts was not caused by the neutral policy (which is ignored anyway) but by the school's actions in response to the new law.

Double it

The Utah legislature overrode Governor Spencer Cox's veto and enacted a law banning trangender girls from participating in girls sports. Cox garnered national attention last week in vetoing the bill while pointing out statistics on mental health and suicidality in transgender youth compared with the one transgender girl seeking to play sports in the state. The legislature also passed a bill allocating $ 500,000 for schools to cover the costs of defending the ban.

But that amount misses by a half. If the bans are declared constitutionally invalid, the boards are going to be on the hook for the plaintiffs' reasonable attorney's fees in successfully challenging the law, beyond whatever they spent to defend it.

More offensive SB8 actions

Abortion-funding organizations have filed lawsuits against the Thomas More Society (ND Ill) and the America First Legal Foundation (DDC), seeking to enjoin them from bringing actions to declare SB8 constitutionally invalid and to enjoin them from enforcing the aiding-and-abetting provisions of SB8. Both defendants have initiated pre-suit discovery proceedings in Texas court, seeking to gather information about the organizations' funding efforts; they use that as the basis for standing, arguing that it shows an intent to enforce.

There should not be a Younger problem. The target of a pre-suit discovery proceeding cannot challenge the constitutional validity of the underlying law that might be the basis for the suit; the organizations therefore lack the adequate opportunity to raise their federal constitutional rights in that proceeding.

The complaints have several potential problems as pleaded. First, they lack allegations that the defendants act under color, which is necessary to state a constitutional claim. Second, I wonder if they may be subject to a § 1404 motion to transfer venue. Plaintiffs went to the defendants' "homes" to get out of Texas. But if the purpose of a suit is to challenge the validity of Texas law and to stop the initiation of suits in Texas courts under Texas law, it seems as if a district court within Texas would be a more proper forum. I had not considered this issue until now and I have to give it more thought. Third, the fourth claim alleges SB violates due process by expanding who can bring state-court suits beyond Article III; that is nonsense.

As an abortion-rights supporter, I am glad to see the community moving past the simple approach of WWH (which was bound to fail) and identifying real, if more complicated, ways to challenge the validity of the law.

Exclusivity and personal rights in bounty litigation

Those insisting that SB8 is unprecedented and those warning of every new law "modeled" on SB8 ignore that we have been leaving in a similar world for some time. Two Ninth Circuit cases show the prevalence of such laws and the broader implications of the surrounding procedural arguments.

California law requires businesses to post signs when their produces contain certain carcinogens. "Any person in the public interest" may bring suit against a business that fails to post signs; the penalty is $ 2500 per violation per day, with "any person" keeping 25 % plus attorney's fees. Like California's former false-advertising laws, private enforcement is not exclusive and the AG and other public officials can initiate enforcement actions.

In B&G Foods, the target of a state enforcement action brought a § 1983 action against the "any person" state plaintiff (a serial enforcer). The court assumed the "any person" was a state actor, then held the lawsuit barred by Noerr-Pennington, under which a person cannot be liable under federal law (including a § 1983 constitutional action) for the petition activity of seeking relief in state court. In California Chamber of Commerce, the court declared the state law constitutionally invalid as violating business' First Amendment rights against compelled expression; it enjoined the AG and an intervenor environmental organization from future enforcement.

The federal plaintiff in B&G did what Rocky and I proposed--sued the "any person" state plaintiff as a state actor to enjoin that enforcement action and to establish precedent about the constitutional validity of state law. I think the court was correct in rejecting the claim, although for the wrong reason. I would say the state plaintiffs did not act under color because their enforcement authority is not exclusive and they do not keep the entire public-serving penalty. If these plaintiffs act under color, then every private A/G and qui tam plaintiff acts under color; it should not be that broad. At the same time, although seemingly consistent with Ninth Circuit precedent, this expands Noerr-Pennington by giving state and local governments petition rights. It thus protects private persons who act on behalf of the government, as opposed to petitioning on behalf of their personal/private interests, which was the original basis for NP. We may have to explore that more in-depth.

Chamber did not address whether the advocacy group acts under color, which should have been necessary to enjoining them from future enforcement. On the other hand, I credit the court with self-restraint in not enjoining non-party private persons from bringing new enforcement actions.

The Younger analysis was not much better

Gerard explains why the district court in Cawthorn was wrong on the merits. Here is why the court was wrong in not abstaining under Younger.

    1) The court held that the federal proceedings had gone further and faster than the state proceedings, therefore the federal proceeding did not interfere with the state proceedings. This reverses the presumption that a state proceeding be allowed to continue and that the district court stay its hand. Courts consider the relative progress of the proceedings where the federal action is filed first; courts abstain if the federal action had not gone very far. (This is problematic, because it creates perverse incentives for prosecutors, but it is what we are stuck with). It does not work in reverse; if the state proceeding is filed first, the federal court cannot proceed, full stop.

    2) The court also said the relative progress and the multiple layers of state proceedings meant Cawthorn did not have an adequate opportunity to raise his constitutional arguments i. But adequate opportunity is about whether the party has an opportunity to raise and have resolved issues in the state proceeding, including on subsequent state judicial review of an administrative proceeding. Federal courts do not superintend (otherwise-constitutional) state processes and decline abstention if those state proceedings do not move to the liking of the district court.

    3) The court said this case iimplicates "federal interests in interpreting federal law and the U.S. Constitution." As stated, this swallows Younger. All Younger cases require interpretation of federal law and the U.S. Constitution; if the state proceeding involved only state law, the federal court would not have jurisdiction from which to abstain. So if interpretation of federal law is sufficient, no court would abstain. The whole point of Younger is that any "federal interest" in interpreting federal law is not exclusive or can be satisfied by SCOTUS review of the state proceedings.

The Fourth Circuit should not reach the merits, as Gerard suggests, because abstention, as defined, is warranted here.

No offensive challenges to SB8 against licensing bodies

In Whole Woman's Health v. Jackson, an offensive challenge to SB8, eight Justices (all but Thomas) held that litigation could proceed against state licensing bodies (medical, nursing, pharmaceutical, etc.) to enjoin them from "indirectly" enforcing the heartbeat ban by using performance of a prohibited abortion as the predicate for an administrative sanction. The Court remanded to the Fifth Circuit, which certified to the Supreme Court of Texas whether state law allowed such indirect enforcement. The state court on Friday answered that certified question "no," holding that making private civil litigation the "exclusive" enforcement mechanism meant that no state body had any power to regulate or sanction any person for any SB8 violations in any way.

This is a setback, although a relatively minor one because the action against the medical board could have limited effect. An injunction would have stopped the boards from pursuing licensure actions against providers. It would not have protected those aiders-and-abetters (advocates, Uber drivers, etc.); the state does not license or regulate them or their behavior. And it would not have stopped private "any persons" from bringing civil suits. The suit and injunction would have provided federal precedent declaring SB8 constitutionally invalid and a speedier path to SCOTUS review of the merits. But it would not have stopped the main enforcement mechanisms or cleared the way for providers to return to medical practice as usual.

There may be a way to salvage this action and push federal litigation. One plaintiff, Alan Braid (the doctor who announced having performed a prohibited abortion in the Washington Post), is a defendant in two state-court actions over that abortion, one brought by the Texas Heartbeat Project and one by a disbarred Arkansas lawyer under house arrest. Braid could amend the complaint to name them as defendants acting under color and seeking to enjoin them from pursuing their civil actions. (Braid also has a § 1983 and interpleader action in federal court in Illinois against a third SB8 plaintiff who nonsuited).

Meanwhile, Braid can move to dismiss the pending state actions on the ground that SB8 is constitutionally invalid and proceed to litigate the constitutional issues defensively in state court.

In a bizarre way, this might help judicial challenges to SB8. As Rocky and I argue, this offensive challenge was dubious, given how SB8 was drafted and how it operates. Unable to pursue any "ordinary" mechanism, providers and advocates can focus on unusual-but-available mechanisms on which they are more likely to succeed.

Disaggregating government and its employees

Civil rights doctrine suffers from strange and inconsistent disconnects between government and government officials, especially law enforcement. Municipal liability is difficult (and state liability impossible) because individual officers are the presumptive targets of litigation. Individual officers have qualified immunity because it is unfair to hold them individually liable for all but the most egregious mistakes (and even then . . .). But indemnification means the municipality pays any judgment and thus bears the costs, if not the liaiblity, for the rare non-immune constitutional misconduct. The government bears the burden (and costs) to handle misbehaving officers outside of constitutional liability.

But that disconnect leaders to this Second Circuit case holding that the New York Police Benevolent Association, the officers' union, could intervene in a lawsuit challenging New York and NYPD policies during the 2020 George Floyd protests. The PBA, on behalf of its members, had a distinct interest in defending police policies and practices against constitutional challenge, an interest the government of New York City could not adequately protect. It is true that an employer's interest may diverge from that of its employees. But the logic of this decision places the union, on behalf of its members, on an equal footing with the municipal government and the department (which has never shown itself hostile to or willing to do anything about misbehaving officers) in making public policy and in deciding what policies are constitutionally valid and wise.

If only they could sue the state

SCOTUS holds that the (new) state AG should have been allowed to intervene when the (new) secretary of health services declined to continue litigating the offensive challenge to the constitutional validity of a 15-week abortion ban. Justice Alito writes for 6; Kagan writes for herself Breyer, agreeing that intervention should have been allowed but objecting to majority grounding its analysis in constitutional imperatives surrounding state power to defend its laws; and Sotomayor dissents.

Of course, all of this could be avoided by recognizing that the state enforces state law (through whichever individuals state law designates) and allowing rights holders to sue the state to stop enforcement of the law (by whichever individuals state law designates). Were the challenges to the abortion ban able to sue and litigate against Kentucky, there would be no need for the federal court to consider intervention; the question of who is deciding Kentucky's litigation choices and strategy could be resolved within the state executive.

Egbert v. Boule argument

My SCOTUSBlog recap and the transcript. A couple of moments of levity, which I used in the headline. The first involves Gorsuch saying the Smuggler's Inn "has been disparaged in its quality today" and Boule's counsel interjecting "unfairly." The second involves Alito, asking why Boule told Egbert about his arriving guest and wondering what he might do if "one of us was going to check in" and Kagan adding "suspicious characters," which made Alito laugh.

I do not predict these things because I always get them wrong. But the argument went better for Boule than I expected. Everyone pushed Egbert's counsel and the U.S. about how this case differs from an ordinary 4th Amendment Bivens claim and did not push back much on Boule's argument that the analysis ends when events occur near the border. I do not know if that means Boule wins. But they seemed to be wrestling with the mess they created in Abbassi.

The future of Bivens

I am covering Egbert v. Boule for SCOTUSBlog; argument is tomorrow. My preview is here. The plaintiff is a character--he runs the "Smuggler's Inn" B&B near the Canadian border, has "SMUGLER" as his license plate, knew that some guests used his property to get into Canada (his land abuts a fenceless border), and was convicted of violating Canadian immigration law for helping people cross the border. The case arose from Boule trying to keep a Border Patrol agent from questioning a B&B guest and the agent getting pissed off and reporting him to the IRS and other agencies. Given the characters involved, the case resembles Wilkie v. Robbins--western iconoclast who does not trust or want to cooperate with the government and government officials responding by abusing legal apparatuses to make his life difficult.

The case will tell us what, if anything, remains of Bivens. The cert petition asked the Court to reconsider Bivens, but the Court did not grant on that QP. The agent (although not the U.S.) argues that Bivens extensions are categorically barred. The question is whether being a Border agent and/or being near an international border overcomes the many ways this case is closer to Bivens than to the Court's recent rejections.

Quick thoughts on the Jackson nomination (Update)

1) The new attack appears to be "high reversal rate." Steve Vladeck shows some (noisy) numbers which suggest her reversal rate is lower than average. But why does this matter? Reversal means two or three randomly assigned court of appeals judges disagreed with her. It does not mean she was "wrong" or "incorrect" or "bad" in some platonic sense, so as to make her unqualified. This argument should run aground on the statement by (appropriately) Justice (Robert) Jackson--"we are not final because we are infallible, we are infallible because we are final." The court of appeals reversal is "right" because we have a hierarchical judiciary. It should not suggest anything about the wisdom or qualifications of either the trial judge reversed or the appellate judges reversing. I suppose someone could try to make a point about reversals suggesting someone outside the mainstream, whatever that means. But R. Jackson's comment works for mainstream as much as for correctness--the court of appeals defines the mainstream because it is final.

2) Jackson's trial-court experience will be a plus because the widest range of experiences among members of a multi-member body is a good thing. I am not sure of its broad doctrinal effects. I have been trying to think of recent major procedural decisions that made life difficult or easy for district courts and how having a former trial judge might have changed the Court's decision. Twiqbal was decided by a Court without trial experience (Sotomayor joined the Court a few months later), but but the Court has not done much with it in recent years. The 2015 discovery amendments empowered trial judges to manage cases, but those came about through the REA rather than through case resolution. Sotomayor was the lone dissenter on the narrowing of general jurisdiction, but I cannot tell how her judicial experience affected her position.

Jackson's trial experience may be less about forward-looking doctrine than about resolution of individual cases, especially those on the shadow docket. The increased activity in emergency relief and cert grants before judgment reflect a certain distrust of trial-court judges. SCOTUS gets to decide, not one district judge somewhere. Cares therefore should not remain in the trial court for long, the rhetoric of appellate deference disguises close review, and the trial court's decision (granting or denying relief) should not have real effect; the trial judge is a quick step for parties to clear before the real work begins on appeal, not owed real deference. Perhaps Jackson will push back on this trend and push her colleagues to show actual deference to trial courts.

3) The meaningful point is her experience as a public defender and defending Guantanamo detainees, about which Andy Koppelman writes.

4) Jackson will be confirmed, probably with 2-3 Republican votes (I read the over-under is 56; take the under). Everything around it will be noise, although with some "soft on crime" demagoguery to spice things up.

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part I

The first of Rocky's and my (hopefully) three SB8 articles has been published in American University Law Review. This focuses on how providers cannot and can challenge SB8 through offensive litigation, including why WWH was correct and other offensive options the Court did not consider. AULR's editors were impressive in turning the piece around in less than three months after the Court's decision We are editing the second piece, forthcoming in SMU Law Review and focused on how defensive litigation may play out. The third piece, on New York Times as historical analogue, sits on a law review editorial desk near you.

Israel, Jewish teaching, and a strange law (Updated)

A teacher at a Jewish school in Westchester County, N.Y. has sued the Temple and Temple leaders, alleging that she was fired for writing statements critical of Israel on her personal blog (the post at issue was written after she was hired, before she started, and on my birthday, which may not be a material fact). The suit is brought under a provision of New York law that prohibits adverse employment action based on a person's "legal recreational activities," which the plaintiff alleges includes blogging (no comment). The story has garnered s attention, in the Jewish press because it exposes possible fault lines within the Jewish community over Israel and how anti-Zionism fits into Jewish teaching. A number of Jewish academics and leaders issued an open letter to the Temple supporting the woman.

The claim seems to me doomed under the ministerial exemption. Our Lady of Guadalupe says teachers are ministers (for FMLA and ADA purposes, but the First Amendment idea should carry), at least if their duties touch minimally on the religious. Paragraph 11 of the complaint says:

The job was secular rather than religious, and no religious ordination or training was required. The teaching responsibilities were essentially limited to the teaching and tutoring of the Hebrew language to WRT’s learners and students. The other job responsibilities involved assisting and supporting the development of social, cultural and community service programs for the teenagers in the WRT community. 

I doubt that is sufficient to get around the First Amendment. She is teaching Hebrew at least in part because it is necessary for students to learn prayers and "social, cultural, and community service programs" are part of the core of what a Temple does.

But I am wondering if we even reach the First Amendment. Does this law preclude an employer from taking action against someone who expresses or reveals objectionable views, views the employer believes inconsistent with its mission, if done as part of a lawful recreational activity? Can a kosher deli fire a waiter who attended the Unite the Right Rally? What if the Temple fired a custodian or security guard who attends a rally in support of Holocaust denial? If the law prohibits these actions, does that raise First Amendment problems as to the employer, who must employ someone with objectionable political views? If the employer could fire those employees, how does it get around this law? Can the employer fire a person not for their recreational activities (blogging, attending a rally) but for their expressed views, using the lawful recreational activities as evidence of those views?

Employment lawyers, please help.

Update: My colleague Kerri Stone offers this primer from a law firm discussing the law in the shadow of the 2020 protests. It seems to suggest that the law gives employees broad rights against adverse employment action for non-work expressive activity. It mentions a 2017 lawsuit by a NY Post sportswriter fired for comparing the inauguration of Donald Trump with Pearl Harbor and 9/11; the suit was dropped, but it might have had legs.

Update II: A reader emails to argue that the lawsuit is frivolous because the ministerial-exemption issue is so obvious and that this suggests an ulterior motive by the plaintiff, her lawyers, and those supporting her. There is a genuine moral question of whether and how synagogues should be open to competing views on Israel and whether support for Palestinian justice is consistent with Jewish commitments to social justice. But that is for the Jewish community and each synagogue to resolve. It does not belong in court. The ministerial exemption exists because courts should not be telling religious organizations what its. And that is why the reader suggests the plaintiff, her lawyers, and those supporting her may have an ulterior motive.

District court preliminarily enjoins UF conflicts policy

From Friday. The opinion by Judge Mark Walker is near perfect. He loses a point at the end when the court appears to make the injunction universal by ordering UF to take no steps to enforce the conflicts policy "with respect to faculty and staff requests" to testify or consult on cases, not limited to requests from the plaintiffs. The court denied relief as to the policy prohibiting faculty from including institutional identification when signing amicus briefs, because the court could not determine whether that was a university or a "figment of Dean Rosenbury's imagination."

This is not a good opinion for defendants or their lawyers. The opinion begins by comparing UF to the erosion of academic freedom and free speech at Hong Kong University (including removal of a memorial to the victims of Tiananmen Square) not from overt actions of the Chinese government but from university administrators wanting to keep Beijing happy; footnote 12 adds that "[i]f those in UF's administration find this comparison upsetting, the solution is simple: Stop acting like your contemporaries in Hong Kong." The court emphasized the intemperate statements of the chair of the Board of Trustees, which Walker said "made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee." Walker calls out UF's lawyers for: 1) failing to adequately brief Pickering or to recognize Pickering as applicable; 2) trashing the plaintiff professors (who continue to work for their client and to educate the students who pay their client for an education) as traitors, robbers, mercenaries, political hacks, and disobedient liars; and 3) failing to identify UF's interests or how professors' testimony disrupts UF's mission despite four opportunities to do so (including the court continuing argument for a week to give defense counsel an opportunity prepare).

The opinion came on a rough day for the State University System. FIU President Mark Rosenberg resigned out of the blue citing family health reasons, an explanation the Miami Herald eyed with suspicion. This comes a week after FIU's provost resigned. Four Florida universities--FIU, UF, North Florida, and South Florida--are about to enter presidential searches. And the state is considering legislation (when not working on bills compelling the national anthem, prohibiting public-school teachers from talking about LGBTQ+ issue or helping LGBTQ+ kids, and prohibiting teaching historical events that make white people feel bad) that would exempt early stages of presidential searches from sunshine laws. And now a federal court found that the flagship university regards faculty with, at best, contempt.

Ann Arbor opts for more speech, not enforced silence

A group of anti-Israel protesters has demonstrated outside Ann Arbor's Beth Israel Synagogue every Shabbat since 2003. A tort lawsuit by some congregants against the protesters rightly failed. The Ann Arbor City Council last week passed a resolution "'condemn[ing] all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue." and declaring "'its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.'"

The Council passed the resolution on Tuesday evening, three days after Colleyville (which it does not mention), although it was in the works for several months. The synagogue had been calling on the city to do something for several years. The Council issued a resolution in 2004, a year after this began, but nothing more recent. The mayor has publicly condemned the protests and apologized to the congregation.

The resolution also "'calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry.'” Which, that ought to do it, thanks very much, Ray. The group leader and the lead defendant is Henry Herskovitz, who I assumed was Jewish-but-vehemently anti-Israel; it seems he "identifies himself as a former Jew and has spread Holocaust denial and praised neo-Nazis in blog posts."

The Forward quotes Rabbi Nadav Caine that the synagogue declined involvement in the lawsuit out of hope and faith that the city would take a stand. That point is too bad. I had hoped the synagogue stayed out of the lawsuit because they knew the lawsuit could not and should not succeed. While they could not stop the congregants, they knew enough not to get involved.

David Super has a post about performative politics, which I may want to discuss further. Performative politics can take many forms. This resolution is one example of the form--dictum with no legal force and no likely practical force. But Brandeis might have had such performative steps in mind. Like the synagogue, the city can do nothing to stop these speakers or their speech. But they can take a public stance against those speakers and their speech as part of the public dialogue.

Republicans and conservarives love univeral injunctions now

Again. As if the handwringing and all that legislation was not based on any real commitment to particularity.

Judge Brown tries to play reluctant universalist, citing Gorsuch and Thomas, calling it a product of the "unique facts before it" and the only way to avoid confusion. Nonsense. He offers one fact to justfy universality--the plaintiff, Feds for Medical Freedom, has a lot of members and continues to add more. But like most justifications for universality, this proves too much. Many organizations have a lot of members. Is universality appropriate in all associational standing cases? Only in associational standing cases involving large associations? And if so, what makes an organization large? Feds for Medical Freedom (Except The Other Vaccinations We Had To Take And Blood-And-Urine Samples We Must Provide) has 6000 members*--where does largeness begin? Or is it only large organizations fighting for causes Judge Brown likes?

[*] Does largeness depend on some denominator? The federal workforce is more than 2 million people.

The claim that tailoring relief is not practical is a cop-out. Here is a tailored injunction--"The US cannot enforce the vaccine policy against members of FMFETOVWHTTABAUSWMP." Ordinary rules of equity have the parties and court monitor ongoing compliance with that injunction and adjust the injunction to changing circumstances--identifying group members, litigating attempts to enforce the policy against individuals, and notifying the court of new FMFETOVWHTTABAUSWMP members who gain the protection of the injunction (which does not even require the court to modify the injunction, since the association is the protected party). It makes no sense to preemptively declare that process "unwieldy" and expand the scope of the injunction from the 6000 members to more than 2 million people who are not members.

Don't worry, though. Judge Brown will take a strong stance against universality beginning in 2025.

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

The Court without comment refused to grant mandamus ordering the Fifth Circuit to remand to the district court, which means the case now goes on certification to the Texas Supreme Court. Breyer, Sotomayor, and Kagan dissented--Breyer in a short opinion, Sotomayor in a longer one.

Sotomayor recognizes this as a nonsense delay tactic and calls the majority out for not standing behind its words in WWH. She also acknowledges the limited relief that an injunction of the medical board would provide, saying she had hoped the district court could enter some "mitigating relief," although without describing what that would or could have been. She did up her rhetorical game, calling this a "disaster for the rule of law."

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

When laws send a message

From the Eastern District of Pennsylvania, rejecting a challenge by a group of Italian-Americans to Philadelphia changing the city's official holiday from Columbus Day to Indigenous People's Day. The court, rightly, the plaintiffs lacked standing based on the city's policy insulting Italian-Americans by declining to celebrate Columbus. I continue to believe what this really means is that the plaintiffs did not suffer a violation of their substantive constitutional rights, but the point is the same.

Reading the arguments, I  was reminded of the travel-ban cases in which plaintiffs argued for standing and a universal injunction based on the message of exclusion sent by the regulation, independent of any enforcement or action under it. I argued at the time that this is not a sufficient injury (substantive violation) and does not create the predicate for beyond-the-plaintiffs relief, because it is the enforcement of law or policy that violates rights, not the law or policy itself. This case presents the same issue. But I wonder how many people who argued for message-of-exclusive standing in 2017 disagree with this decision.

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.

A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:

 

The return of three-judge district courts?

Steve Vladeck proposes as a solution to the problems of shadow dockets, emergency litigation, and plaintiffs shopping for one judge (often in a single district or division) to issue the injunction that will provide the basis for emergency relief. Steve is correct about three-judge courts with immediate SCOTUS review as the solution to those problems--plaintiffs cannot judge-shop, cases move quickly but in a less emergent way, decisions should better and better explained, and the process will look more normal.

I would propose an addendum that three-judge courts do not solve the distinct problem of universal injunctions, because having three judges as opposed to one judge does not overcome the basic limitation on the court's remedial power and the inability of any court to bind or protect non-parties with its judgment.

The spreading demand for offensive litigation

The demand/assumption that all constitutional and civil rights litigation must be offensive forms the core of the procedural complaints surrounding SB8. It is constitutionally and legally intolerable for there not to be a mechanism for offensive, pre-enforcement constitutional review, before anything happens. And it is constitutionally and legally intolerable to make a rights holder suffer a violation and seek defensive or retroactive remedies for the violation. And the insistence is spreading, which gives lie to the SB8-exceptionalism arguments. Consider:

• Med mal plaintiffs unwilling to deal with the constitutional validity of the state's damages cap within the tort suits they brought, instead trying to carve the constitutional issues into a separate federal lawsuit.

• Animal rights organizations suing to stop the filing of tort claims that might implicate the First Amendment. This one is particularly relevant to the SB8 debate. Critics of my arguments have insisted that the abortion right is different because of the large numbers affected, so that allowing the claims in WWH would not allow speakers to beat potential tort suits into court.

• In a case currently before the Fifth Circuit, United Airlines pilots allege that the company's vax requirement constitutes religious discrimination under Title VII and seek an injunction to stop the airline from placing them on unpaid leave for failing to get vaccinated. This lawsuit has no basis in Title VII, which requires an actual adverse employment action (such as placement on unpaid leave) that has not occurred; the expectation under the statute is that the plaintiffs suffer the adverse action, then sue for damages or to undo it. Nevertheless, two judges on the Fifth Circuit panel seemed receptive to the plaintiff's argument, accepting the view that retroactive remedies against a completed (as opposed to threatened) are insufficient.

• The First Circuit denied rehearing en banc in Equal Means Equal v. Ferriero, leaving a unanimous panel dismissing for lack of standing. Plaintiffs are women and women's organizations seeking an injunction compelling the U.S. archivist to declare the ERA ratified. The plaintiffs claimed that, without the archivist certifying and publishing the ERA as ratified, Massachusetts and state law did not do enough to stop or prosecute gender-based violence. The court held that the archivist did not cause plaintiffs' harm--that harm resulted from Massachusetts not vigorously protecting women from gender-based violence, including by punishing it as a hate crime (query whether the ERA would require states to bring hate-crimes charges in all gender-based violence cases, any more than the 14th Amendment requires hate-crime charges in all racist violence). The lawsuit also presumes that ERA-compelled hate-crimes charges would stop future gender-motivated violence. The whole thing reflects an insistence that legal questions--is the ERA valid--must be decided in the pre-enforcement ether, rather than on the ground where the state acts ex post and the question for the court is the state of the law in response to that situation.

• On this unfortunate anniversary, we can return to a question that was all the rage one year ago--what if Trump had self-pardoned and who would have standing to challenge that pardon and how. Everyone created all manner of fanciful lawsuits, ignoring the obvious--DOJ would prosecuted Trump, Trump would defend with the pardon, and the court would decide its validity. The idea that the constitutional issue would be resolved defensively never entered the conversation.

UF profs have standing to challenge outside-activities policies

I was wrong on this one. The district court held that the professors have standing and that the amended policies did not moot the case. A few thoughts:

• The court was more forgiving than I expected in defining the plaintiff's intention to engage in future conduct. It was sufficient that they intended to participate in future litigation adverse to the state; the court ignored the speculative intermediate steps by third parties that must occur before the policy can be applied to them (someone must file a lawsuit, someone must seek to hire these plaintiffs, etc.). This is a better approach, but it is more forgiving than courts often are, certainly outside the First Amendment context.

• The court found an intention to enforce the (amended) regulations and either deny permission or retaliate against them for testifying off several points. First, the court inferred intent to enforce from the fact that the state continued to defend this lawsuit. Eleventh Circuit case law allows that, but it seems circular--there is standing if the state defends, but if the state failed to defend the plaintiff would win by default or the state would confess judgment. Second, and much more fun, the court relied on a rant by the Chairman of the Florida Board of Governor, then days after the UF president adopted the new policy with the hope of lowering the temperature or making the problem go away. The chairman went off about putting a stop to the "wrong" of faculty members who "improperly advocate political viewpoints" and how state leaders who support the school are "fed up" with what professors are doing. As the court characterized it, "[i]n short, Plaintiffs’ activities anger Tallahassee, that threatens the University’s funding, and so the University must halt Plaintiffs’ activities. . . . Here, the threat is explicit, and so Defendants have 'a problem.'” Sometimes they cannot help themselves and they make this too easy.

• The case was not mooted by the school granting permission to testify or by recent changes to UF's outside-activities policies, following the recommendations of an advisory committee (creating a presumption in favor of permission and requiring heightened proof to deny permission). As to the latter, the amended policies do not correct what the plaintiffs allege to be the constitutional defects in the policy--the lack of a time limit for deciding (which allows the university to run out the clock), the unbridled discretion, and the possibility that the university might deny permission to avoid pissing off the governor and the Board.

As to the former, this illustrates the importance of framing the case. To the extent the plaintiffs sued to reverse the recent denials of permission, the rescission of those denials would moot the case--they got what they wanted. But the plaintiffs framed the case as a broader challenge to future applications of the outside-activities policy against future attempts to serve as experts, which are likely once the current "firestorm" dies down. That latter framing works only if they will testify in the future, which they satisfied through the court's forgiving approach to future intent.

Federal Judge: "Stop wasting my time with your § 1983 lawsuits"

(H/T: Eugene Volokh), from Brock v. City of Ord, NE: Guy Brock is a town gadfly who sent letters of complaint to various municipal officials; those officials agreed to sue Brock in state court seeking damages and an injunction prohibiting from sending letters to town officials unless related to him or his property; the state claim was dismissed. Brock then filed a § 1983 action seeking damages; the court denied a 12(b)(6) motion, concluding Brock stated a claim and the officials were not entitled to qualified immunity (because it should be pretty damn obvious that you cannot get a prior restraint to stop people from complaining about public officials).

But then there is this:

But just because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victory—but instead, he's filed another lawsuit in response, despite facing no current peril.

This Court's docket is full of cases genuinely implicating lives,livelihoods, and liberty—but instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble.

Shorter: "Yeah, I guess the defendants did a bad thing, but the plaintiff is really in the he wrong here. He fought back the attempted constitutional misconduct and no longer faces any constitutional violations, so he should take that victory and go home. Stop bothering the nice officials of Ord, NE or wasting my precious life-tenure time."

Judge Gerrard (an Obama appointee, by the way, so this is not partisan) is essentially telling people not to file § 1983 damages actions, at least where no physical or property injury, and thus real money, is not at stake. A purpose of § 1983, as expanded in Monroe, is to provide a vehicle for retroactive remedies after the constitutional violation has ended and the constitutional peril has ended. Damages compensate the plaintiff for any costs incurred (e.g., Brock hired a lawyer to defend the bullshit state-court proceeding) and to deter defendants from future constitutional misconduct (not getting away with an attempted violation will not deter--that officer may say "oh well, it didn't work that time, maybe it will work next time"). Addendum: We also should take issue with how Gerrard minimizes this as a "squabble" that he must "referee," as opposed to a blatant, if small-value and non-systemic, abuse of government power and attempt to stop a member of the polity from exercising a constitutional liberty.

Imagine a judge writing this about Monroe, which involved some physical misconduct (pushing or kicking Monroe and his family) but no real physical harm; mostly it was about police entering and trashing the house without a warrant and Monroe's arrest and 10-hour detention. He was released from detention and never charged, meaning his rights were "vindicated" and he faced "no current peril." Perhaps Fourth Amendment rights are different and more worthy of retrospective litigation--they affect lives, livelihoods, and liberty. But the First Amendment is a pretty important liberty, even if its monetary value is small.

This is a timely issue because I am waiting to see whether we see § 1983 actions from the various municipal attempts to make people remove "Fuck Biden" signs from their yards and homes. Those actions would fit the category of case Judge Gerrard does not like--their rights were vindicated when the municipal-court actions failed and they face no current peril, so they should take their victory and go home rather than wasting his precious time.

I am preparing to teach Civil Rights this semester and I am working on the next edition of my book. Judge Gerrard's rant will find a place in both.

An inexplicable lawsuit

A class of of state med mal plaintiffs sued a bunch of doctors, hospitals, professional associations, health networks, the Attorney General, and several state judges; the plaintiffs want a DJ and injunction declaring that the Seventh Amendment is incorporated and that Texas' cap on non-economic damages violates the Seventh Amendment. Bloomberg reported on the order dismissing claims against the judges in light of WWH (because everything comes back to SB8). Otherwise, the case seems to be moving towards a hearing on the request for injunctive relief. But I am baffled by how this case is moving forward. Other than the AG arguing that plaintiffs lack standing because their federal claims depend on winning their cases and showing entitlement to non-economic damages that would be limited by the cap, the remaining defendants' briefing has focused on the merits of whether the Seventh Amendment should be incorporated and whether the damages cap is constitutionally invalid.

But this case should never go near the merits. That the parties and the court are steaming headlong towards that reveals how litigants and courts have disconnected constitutional litigation from, well, litigation.

First, we should be clear about context. This is not SB8--potential state-court defendants run to federal court with their potential federal defense to liability, seeking a remedy that would prevent state litigation. Here, the federal plaintiffs are the state plaintiffs and most of the federal defendants are state defendants; the plaintiffs have lopped off one piece of the state litigation that they initiated--their constitutional challenge to their anticipated defense--and turned that into a federal case, the resolution of which would control the state litigation. Let us count the ways that this is not permissible.

• No Cause of Action. Both § 1983 and Ex parte Young require a defendant who acts under-color. Private litigants do not act under color when they avail themselves of ordinary laws and rules within litigation--especially when they are defendants in that litigation, dragged into court by the plaintiffs. So the state-court defendants (doctors, hospitals, and providers) should not be subject to this suit.

• Eleventh Amendment/Lack of Standing. The AG did not argue, relying on WWH, that it does not enforce the damages cap, which arises in private tort litigation, not through any governmental enforcement. Maybe the AG has some "residual" enforcement power that has not been disclaimed. But it seems odd not to raise it.

• Lack of Subject Matter Jurisdiction. Standing aside, I do not see how this action arises under federal law. Mottley provides the analogue--plaintiffs have state-law claim, defendants have a statutory defense (federal in Mottle, state here, but the point is the same), plaintiffs argue that the statute on which the defense will rely is constitutionally invalid. Mottley held that the defense and response to the defense does not provide federal jurisdiction under the Well Pleaded Complaint Rule; instead, the state court adjudicates the defense and federal response and the Supreme Court can review that judgment. But imagine that after filing their breach-of-contract claim, the Mottleys sued the railroad in federal court for a DJ that the free-pass law (which they expected the railroad to raise in defense) was constitutionally invalid--that is this case. But allowing that claim would undermine the WPC, by allowing the federal response to a defense to provide the basis for a federal forum, rather than leaving the entire case in state court subject to SCOTUS review.

If the medical defendants do not act under color and § 1983/EPY cannot provide the cause of action, the cause of action must be the DJA. But then we have a version of a Skelly Oil problem--a party impermissibly basing federal jurisdiction off an issue that would not arise on the face of the WPC in the enforcement claim in state court. And, again, this case is a step removed from Skelly because this is not the state defendant trying to beat the state plaintiff into court, but the state plaintiff trying to forum-shop by breaking up the case.

Now there is an argument, with which I would agree, that the WPC is wrong--cases such as the underlying med mal actions, in which a federal issue is certain to play a major role, should be deemed to arise under. But that is not the world in which we live. And plaintiffs should not be able to subvert the rule that we are stuck with.

• Abstention. No one has raised Colorado River abstention, although it would seem to fit. The state actions were filed first (by the same people filing the federal action), it creates piecemeal litigation by breaking a key issue in the state case into separate federal litigation, and there is no reason to believe the state court cannot adjudicate the federal issues.

I do not understand the point of this strategy--what do they gain by pursuing the issues in this posture? They must want a federal forum, but they are not legally entitled to it. They must want one injunction and judgment stopping defendants from raising the damages cap. But not every doctor or (I presume) every hospital, clinic, and health-care provider is a defendant and thus not every doctor and provider can be subject to the injunction. No single person or entity can be enjoined in a way that protects the entire class. They are proceeding on the understanding that the law itself can be declared or enjoined, but that is not how this works--remedies run against persons ("any interested party" in the language of § 2201).

This action should be rejected on procedural grounds. But neither the defendants nor the court seem to recognize the many problems with this suit.

A different Court contingency

Orin Kerr offers a Twitter thread on the contingency of how we got to the current Supreme Court from Obama's nomination of Garland in early 2016--how we went from Garland as Scalia's replacement to the expectation of Hillary Clinton replacing Scalia, Ginsburg, and maybe Kennedy and Breyer to create a Court on which Kagan is the median Justice to what we now have. Orin writes: "Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. . . . Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock."

I have thought much the same--it is the main reason I was so broken up on November 9, 2016. While I did not foresee RBG dying, it was obvious what would happen with the Court over the next four years. As a citizen and political liberal, I watched the prospect of a left-leaning Court--for the first time in my conscious lifetime, Fortas having resigned when I was less than a year old--evaporate.

But consider another contingency that is as interesting. Imagine Clinton wins but the Senate remains in Republican hands, which I saw as a likely outcome as of early October 2016. McConnell and Grassley--having tasted success and incurred no costs (in fact, having been rewarded) for blocking Garland--would not have allowed Clinton to appoint anyone to the Court.* So we would have had two, and probably four, more years of an evenly divided Court--a genuine and sufficiently long experiment in the workability of Eric Segall's proposed permanent evenly divided Court.

[*] Grassley is making noise about the same steps should the Republicans gain control of the Senate next years, based on the "principle" that a Senate of one party does not confirm Justices for a President of the other party.

Trump tries to fight Younger again

Donald Trump filed suit in federal court against New York AG Letitia James, seeking to enjoin James from continuing with the state investigation of him and the Trump Organization. He supported the pleading with an unhinged rant. The suit has everyone reviewing their notes on Younger abstention. George Conway read Trump's rant as an attempt to invoke the "plaintiff-is-cuckoo-for-Cocoa-Puffs" exception to Younger.

This is not the first time Trump has run to federal district court to avoid a state investigation or that he has had to tangle with Younger. He did the same thing against Manhattan DA Cy Vance's subpoenas seeking Trump's tax returns. The district court abstained, rejecting arguments about bad faith and presidential immunity. But the Second Circuit reversed on that (while affirming on the merits, which SCOTUS then affirmed). The Second Circuit held that Younger's core justification is avoiding friction between state and federal governments, but that friction is present in actions involving state proceedings against federal actors, thus the avoiding-friction rationale does not push the federal court towards abstention.

It was a nonsense basis for avoiding abstention. But whatever its merits, it does not apply to a former President hoping to avoid conduct unrelated to his office. Trump's best shot is bad faith (which the complaint and the rant set-up), but I doubt a court will find that it would be impossible to obtain a valid investigation or conviction. And that a prosecutor is a political rival of the target, without more, should not establish harassment.

Trump's Younger problems mirror a point in a Guardian article about Trump's increasing anxiety over the January 6 investigation--"The trouble for Trump – and part of the source of his frustration, the sources said – is his inability, out of office, to wield the far-reaching power of the executive branch." His position within the executive branch and holding federal power helped him avoid Younger the first time; it is not available now.

Dorf on limiting bounty hunters

In (properly, IMHO) rejecting what he called the courts-and-clerks theory in WWH, Justice Gorsuch argued that this litigation theory lacks a limiting principle--every defamation defendant with a First Amendment defense would sue the clerk to stop the filing of the threatened lawsuit. Michael Dorf offers a limiting principle; Rick responded on Twitter to question the idea that the federal Constitution prohibits states from selectively weakening their standing rules; pointed to my post arguing that the Florida law allowing parents to sue schools for teaching that slavery and Jim Crow were bad things is not like SB8; and urged me to respond to Mike's column. So here goes.

I think this is the money graf from Mike's column:

Likewise, if a state so loosens its standing rules in the way that Texas did for SB8, and if it does so for the obvious purpose of insulating from federal judicial review a law that chills the exercise of a constitutional right, then it is appropriate to adapt the analysis of Vermont Agency for a different purpose: to determine whether the plaintiffs who sue under that law are bounty hunters who have been delegated power by the state rather than garden-variety private parties whose efforts to seek remedies for their own injuries also provide public benefits. In the rare circumstances of a law like SB8, then, the equitable remedy of Ex Parte Young would be available against state court clerks, the state attorney general, and any other government officials over whom jurisdiction would be necessary to vindicate constitutional rights and frustrate the state’s efforts to circumvent its legal obligations.

I will respond with three points.

I do not think there are any circumstances in which clerks and judges can be sued as the mechanism for enjoining enforcement of a law for which they are not the enforcing officials. Ex Parte Young nor § 1983 are designed to allow suits against those who enforce the laws--in § 1983 terms, those who "subject or cause to be subjected" the plaintiff to a violation. Judges and clerks do not do that.

Mike may be correct that there are federal constitutional limits on state standing or procedural rules, including equal protection limits to selectively altered standing or venue rules. But those constitutional defects do not create the predicate for offensive federal litigation where none existed; instead, they are further federal defenses to be raised in the state proceeding and that might provide a basis for SCOTUS review.

There is something to Mike's distinct between bounty hunters and ordinary plaintiffs. What flows from that is not an overhaul of the process. Instead, it is to convert the bounty hunters--who are the enforcers of the law--into state actors subject to pre-enforcement suit or to a post-enforcement § 1983 action for damages.

Fed Soc Courthouse Steps on SB8

Stephen Sachs and I did an episode of the Fed Soc Courthouse Steps podcast on the SB8 cases and what happens next. We were wrong about one thing--the Court remanded not to the district court (the expected move after cert before judgment and the partial affirmance of the district court) but to the Fifth Circuit, where Texas now asks for certification to the Texas Supreme Court of the state-law question of whether the licensing boards can use SB8 violations as the predicate for administrative action.

These steps slow the already-limited effect of any pre-enforcement offensive injunction. The focus must shift to defending the three pending state-court actions.

Not everything is SB8, or abandoning the private attorney general

Anthony Colangelo (SMU) warned that people seem "hypnotized" by the admitted strangeness of SB8, at the risk of throwing away established procedure, much of which benefits left positions.

Case-in-point: Florida Governor Ron DeSantis announced Wednesday a new proposal giving parents a cause of action to sue schools for teaching Critical Race Theory (which a different law enacted earlier this year prohibits). This is a stupid proposal, which, given the source, is redundant. But the use of private civil litigation sparked immediate, and inaccurate, comparisons to SB8. Ed Kilgore in New York Magazine complained about "pernicious vigilante enforcement"  that allows parents who do not want their children to learn accurate history to "[s]trike a blow against wokeness and get paid!" It "create[s] a witch-hunt atmosphere complete with financial incentives for nuisance lawsuits."

This overeaction--again, to a stupid, pernicious, anti-intellectual, ahistorical proposal that should be opposed on its merits--threatens to throw away essential private civil rights enforcement in a way I doubt the author wants to intends.

An action under this bill is indistinguishable from a § 1983 action challenging the removal of a book from the library or the a school conducting a Mass as part of its Christmas play. The school has legal obligations (do not remove books in a way that violates the First Amendment, do not endorse religion), students (and their parents) have rights (not to lose access to a book, not to be compelled to engage in religious practice), § 1983 authorizes a person to sue the school and school officials for remedies for those practices, and § 1988 allows them to recover attorney's fees. This stupid bill imposes on schools an obligation (do not teach CRT), gives students (and parents) a right (not to be subject to learning CRT), and authorizes the students and their parents to sue for remedies for those practices, including attorney's fees. The rights at issue in the § 1983 action are constitutional while this is a state statutory right, but that distinction does not matter. (Imagine a federal statute requiring schools to "maintain age-appropriate literature in the library" and a private right of action and we would be in the same place).

The distinction lies in how critics of this law such as Kilgore feel about the substantive rights at issue. He (like most liberals) does not want school to pull Beloved or Slaughterhouse Five from the school library and does not want schools to impose on students participation in a Catholic Mass; he does not want schools barred from teaching CRT (which we all know is code for teaching the historical truth about slavery, Jim Crow, segregation, redlining, police abuse, etc.). But then frame the objection in those terms; focus on the inanity of saying that stopping the teaching of Jim Crow is necessary to stop the U.S. from becoming Cuba in 1961. The problem with this bill is its substance, not the enforcement procedures.

Kilgore's complaints about the private cause of action could have come from any conservative critic of students and parents who file civil rights lawsuits against schools: "Section 1983 allows parents to '[s]trike a blow against [Christianity, good morals, age-appropriate education, simple patriotism] and get paid!'" "Section 1983 and § 1988 create a witch-hunt atmosphere giving financial incentives to file nuisance lawsuits."  Framing the objection in procedural terms and treating all private attorneys general as the equivalent of SB8 undermines essential civil rights enforcement. And the point becomes more obvious if we take it out of schools and think about anti-discrimination laws or environmental laws. Conservatives have been complaining about these frivolous lawsuits against government for years. Making that the crux of the debate over this stupid Florida bill plays into their hands and will have harmful consequences for civil rights enforcement.

There is interesting potential for dueling claims that put schools in a bind. Can a parent bring a claim because Beloved is in the school library? And what happens if removing the book to appease that parent subjects the school to a First Amendment suit by someone who wants the book in the library? Fun times.

California threatens to follow Texas

California Governor Gavin Newsom reacted to SCOTUS's decision in WWH by announcing plans to create an SB8-style law making actionable the manufacture, sale, or distribution of assault weapons or ghost gun kits or parts. Everyone is trotting out the told-you-so's, as we see the slippery-slope prophecy realized. Except for the lefties insisting that the five Justices who rejected most offensive claims in WWH will find a nonsense distinction in this case.

I would be shocked if this produces a formal bill, much less a law, as opposed to Newsom grandstanding. Especially if the few pending SB8 actions move forward to their appropriate and inevitable defeat, perhaps followed by successful § 1983 damages actions against those plaintiffs. This strategy cannot work in the long term; judicial procedure is equipped to address and vindicate rights in a defensive posture. Litigation takes time, energy, and resources--which is what the objections to these laws are about.

The irony of the first threat coming from California, of course, is that California's pre-2004 consumer-protection laws authorized "any person" to sue for damages against false advertising. When a plaintiff sued Nike over false statements in what clearly should have been understood as non-commercial speech (addressing public controversy over its foreign-child-labor practices), no one questioned the lawsuit, and the First Amendment issues, playing defensively in state court. Justice Breyer wrote a blistering dissent from the DIG, but never doubted that it was proper for California to rely on private enforcement of its laws, even by someone lacking any injury.

Putting the "judicial" in judicial departmentalism

Justice Sotomayor's dissent rests on judicial supremacy, that popular branches violate the Constitution when they act contrary to SCOTUS precedent, likening this law to Calhoun and nullifcation. Josh Blackman takes the dissent to task, mostly on the principle that the Supremacy Clause does not include judicial opinions as part of the supreme law of the land.

I want to offer a different spin on two points Josh makes in conclusion.

He writes:

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent, but do not give it any more effect than the law requires.

SB8 violates a Supreme Court precedent--it enacted a law banning pre-viability abortions, which precedent says a state cannot enforce. (In other words, the state enacted a zombie law, a new law whose constitutional validity (under judicial precedent) is plain. I think Lincoln would say "indeed, but that is ok." Lincoln's First Inaugural hinted at a more brazen position. He would have continued to enforce the Missouri Compromise--the law declared invalid in precedent--as to parties and situations not involving Dred Scot and Sanford. That is, he would have violated the precedent of Scot. Lincoln recognized that judgments as to parties are binding; everything else is fair game.

Josh concludes this way:

Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.

The practical reality is that the Court gets the final word on most constitutional questions. At some point a case challenging the validity of the heartbeat ban finds its way into court and litigation; a court applies Roe and Casey to declare the law invalid or overrules Roe and Casey to declare it valid. Either way, the court decides. The point of judicial departmentalism is that the court decides within litigation and that outside litigation other branches can do as they wish. Litigation takes time and effort and is not always efficient or simple; a state can delay the inevitable if wiling to pay political or actual costs, with negative consequences to rights and rights holders. And litigation is piecemeal, resolving issues as to discrete parties and discrete disputes, but leaving for future litigation issues involving different parties or disputes. The dissent's position insists that subsequent and repeated litigation should not be necessary--a state must fall in line with the Court's basic statements and it undermines the Constitution by acting otherwise and forcing new litigation and forcing the court to decide anew.

Update: I mistakenly left comments open and a few people left thoughtful comments. Then the bullshit started, so I have closed them.

Suing sheriffs

The Court's SB8 decision is, depending on perspective, a limited victory for providers (some limited path to offensive litigation, a federal DJ, and federal precedent) or a tragic defeat (nothing stops private plaintiffs from filing SB8 actions against providers and advocates). The search continues for some defendant(s) whom a federal court could enjoin so as to stop all SB8 suits.

A new theory is to sue sheriffs and other local law-enforcement who would enforce the damages and injunction awards in a successful SB8 case. This has been kicking around the ConLaw Prof listserv for months and Ilya Somin lays out the case. The theory is that by an enforcing a negative judgment against the defendant, the sheriffs are adverse to that defendant; that is different than clerks and judges, who act before the defendant's liability has been established.

I do not believe it works--or at least I doubt the five Justices who rejected what Gorsuch called the "clerks-and-courts" theory would accept it. Here is why:

1) The sheriff and the litigation loser are not adverse, independent of the judgment. The adverseness remains between the defendant and the plaintiff who successfully sued him for violating the law. The sheriff and the clerk operate the state machinery in which the party's adverseness plays out (machinery that allows assertion of constitutional issues), at opposite ends of the process. But both are neutral between the parties and the rights, claims, and defenses asserted, other than as they are found by the court. The sheriff has no interest other than in enforcing a presumptively valid judgment.

2) It similarly interferes with the state judicial process by depriving courts of the opportunity to hear and decide cases within their jurisdiction. It rests on the same erroneous premise that having to litigate (as opposed to being held liable on the claim) violates rights. The state judge may rule in favor of the provider (in fact must, if she follows binding prededent), in which no constitutional violation occurs. A losing party cannot challenge an unfavorable state judgment by enjoining the sheriff from enforcing that judgment; the loser is expected to appeal. It makes no sense to allow a party who has not yet lost (or even been sued) to preemptively challenge the judgment before it is entered. Along those lines, note that no federal claim lies against the sheriff if the judgment is enforced and later reversed; the defending party goes through the state proceedings to disgorge whatever he lost.

3) The sheriff's task in enforcing the judgment is ministerial. The sheriff has no discretion whether to enforce the judgment, as the clerk has no discretion whether to accept the order. The sheriff likely does not know or review the substance or merits of the underlying judgment. Sheriffs would have to review and evaluate every judgment, perhaps having to parse a judgment on multiple claims, some of which can be enforced and others of which cannot.

4) The theory is boundless and without limiting principle. It cannot be limited to SB8, so every defendant would avail itself of this strategy.

5) The claim is too speculative. The sheriff violates rights by enforcing the judgment; that violation requires an intervening act by a separate actor--the judge must enter judgment against the provider. But that may not happen, if the judge acts as she should in following precedent to reject liability under SB8. The court will not presume the state judge will do this. The sheriff theory goes a step beyond the clerk theory. The latter required one presumption--that someone would file the suit they are authorized to file. The latter requires that presumption, plus the additional presumption that the judge will get it wrong.

My guess is the WWH plaintiffs and their lawyers recognized this. They threw every defendant they could think of into that lawsuit. That they did not include sheriffs must mean they knew that was a longer shot than the unprecedented theories they attempted.

SCOTUS gets SB8 right

Contrary  to my reading at oral argument, the Court (per Justice Gorsuch) basically adopted our position: 1) Unanimously reject claims against state judges; 2) 5 (Gorsuch, Thomas, Alito, Kavanaugh, Barrett) reject claims against clerks; 3) same 5 reject claims against the AG because he lacks enforcement power, including the attempt to reach private plaintiffs through the AG; 4) 8 Justices (all but Thomas) allow claims against licensing boards; 5) Unanimously reject claims against Dickson because there is no indication he intends to sue. Gorsuch explains perfectly that: some constitutional issues are raised as defenses;  there is no constitutional right to pre-enforcement federal review; the existence of SB8 does not create an actionable constitutional injury; and if states enact copycat laws, they can be addressed in the same ways.

The Court dismissed U.S. v. Texas as improvidently granted, over Sotomayor's dissent. That case returns to the Fifth Circuit.

The Chief and Justice Sotomayor dissented. Both, particularly Sotomayor, continue the theme that Texas is undermining the Court's authority over the Constitution and undermining constitutional rights and the constitutional system of government. The Chief pushed claims against the AG (who has enforcement power co-extensive with the boards) as a way to get at individual enforcers, just as one can sue an AG to reach individual DAs.

Now what? The case returns to the district court for the claims by the providers (but not advocates) against the licensing heads.  The Court rejected the Fifth Circuit's insistence that "exclusive means exclusive"--the absence of public enforcement extended to indirect enforcement. At this point, the Court says, it appears the licensing board have authority to sanction licensees for failing to enforce "all laws" governing medical practice, including the heartbeat ban, thus a provider can obtain a DJ and injunction preventing administrative action against them. This claim is subject to a possible state law claim (which Gorsuch acknowledges) that boards cannot use SB8 violations as a predicate act. The best claim rests with Dr. Braid (the TX doctor who announced performing a post-heartbeat abortion in the Washington Post), because an anti-choice group submitted a complaint against him to the Medical Board,

No injunction against the boards stops private plaintiffs from bringing SB8 actions. Any injunction will protect providers against administrative proceedings seeking to sanction, suspend, or revoke licenses. But it creates federal litigation and a federal judgment that can be fast-tracked to SCOTUS for conclusive precedent on the heartbeat ban's validity. (Query whether SCOTUS might grant cert before judgment again and consider the merits of the heartbeat ban alongside Dobbs). And the district court opinion can have persuasive effect in the meantime.

Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.

TX state court declares SB8 procedures invalid

A state judge in Travis County declared that SB8's procedures violated the Texas Constitution because: 1) the legislature cannot grant"any person" injury-less standing; the $10,000 minimum damages is punishment without due process; and the law delegates enforcement power to private persons. The court granted a DJ but not an injunction. This is a state MDL case consolidating 14 state-court lawsuits by various providers and advocates against Texas Right to Life and other potential defendants. The case addresses the state procedural issues we address in our second paper and an as-yet unwritten fourth paper on state procedure in potential enforcement actions. The court reached those issues pre-renforcement.

I leave to Rocky whether the court got it right on Texas standing; I think the court gave short shrift to past cases in which the legislature has authorized random people to sue. Two other quick thoughts.

1) The court explains that SB8 plaintiffs would act under color of law and an SB8 defendant could raise that as a defense in an enforcement action, therefore the court allows providers to raise state action pre-enforcement, rather than making them wait for ruinous lawsuits to be filed. The court cites a Texas Supreme Court decision adopting the Bobbitt/SBA theory of pre-enforcement standing, requiring a credible threat of enforcement. In the federal litigation, providers cannot show that any particular potential SB8 plaintiff intends to file suit so as to establish standing to sue that person; WWH relies on the goofy theory of suing judges and clerks because they recognize that problem. This court ignores that issue, never explaining why TRTL or any other defendant, even if a state actor in bringing an SB8 action, is the source of the "real and serious threat" to enforce. If Texas standing matches Article III, that cannot be right.

2) The court sounds the recurring theme of similar laws with similar bad procedures attacking gun rights and anti-LGBT+ bakers. The latter is an odd example. As the court notes, lawmakers would not need "any person" to chase the baker. Current law allows for one and perhaps hundreds of easy lawsuits. Again, if the point is SB8 represents some unique and unprecedented procedural attack, the court is wrong.

SCOTUS announced released opinions tomorrow. Maybe we finally get SB8. Although this case may obviate the need to decide the federal cases. If private SB8 lawsuits--the sole mechanism for enforcing the heartbeat ban--are impermissible, there is no need for a federal court to resolve the validity of the heartbeat ban, as there is no threat of enforcement. Perhaps more tomorrow.

Who's afraid of judicial departmentalism

Jason Mazzone argues that Mississippi's SG missed the mark in the Dobbs argument. Asked whether overruling Roe/Casey invites challenges to Griswold, Lawrence, and Obergefell, the SG said those are different because they have clear lines. The correct answer, Jason argues, should have been:

Right now there is no groundswell to overrule those cases, but so what if there is and states ban contraception, same-sex sex, or same-sex marriage? "Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds."

Without using the term, Jason describes judicial departmentalism--SCOTUS adopts a constitutional position, states enact and attempt to enforce new laws that might disagree with and challenge that constitutional position, and new litigation resolves the issue, with the Court adhering to its jurisprudence or changing its mind.

But the Court cannot hear this and such an honest (if accurate) answer would have created more problems for the state. The Justices remain wrapped in the judicial supremacy of Cooper in which the Court gets the last word on the Constitution, the states fall in line, any departure is suspect, and anything that gives states new wiggle room is problematic. Justice Sotomayor was explicit about this position (citing Marbury for the proposition, although Marbury says nothing of the sort). Even those Justices inclined to declare Mississippi's law valid and perhaps overrule Roe/Casey would have pushed back against the idea of doing this again with contraception or same-sex marriage.

The same issue arose in the SB8 arguments. Roberts asked the Texas SG about an amicus brief that made, in sharper terms, Jason's point: The system is designed to allow states to enact laws that diverge from SCOTUS precedent, with future litigation resolving the dispute. The Texas AG ran from the idea, saying that everyone is bound to take and faithfully implement the Court's constitutional interpretation.

What we mean by "let the states decide"

Neil Buchanan is taking bets on how quickly after Dobbs overrules Roe/Casey congressional Republicans propose a federal prohibition on abortion. Buchanan sets the over/under at two days after the start of the next Congress with Republican majorities. I will take the under--a bill will be introduced in this Congress the day after Dobbs, although the first bill with a chance will be when Buchanan suggests.

But is it fair to label this Republican hypocrisy? Yes, the anti-choice mantra has been "let the states decide," a phrase repeated during the Dobbs argument. But the mantra has not been about states v. federal government; it has been about popular/democratic branches (at whatever level) against the court. The objection to Roe and Casey is that it removed the decision from political debate and lawmaking; it did not mean to identify the level of government at which that debate and lawmaking will take place. What they mean by "let the states decide" is "let the majority (as reflected in representation) decide."

I believe a potential ban is a bad idea. I do not necessarily see it as hypocritical.

Now what with SB8?

As Gerard and I wrote, it is not clear why the Court took the SB8 cases, much less on an expedited schedule, or why they would bother deciding them now.

New and deeply cynical take, courtesy of my co-author: The Court overrules Roe and holds in SB8 that states cannot insulate laws from offensive constitutional challenges, allowing claims against clerks, judges, or whomever. Note where that leaves us. The fetal-heartbeat law is likely valid (depending on how much the Court overrules Roe--whether rejecting viability as a line or eliminating all constitutional protection for reproductive freedom), so no harm in allowing those offensive cases to proceed in federal court, as they fail on the merits. But the Court protects the rights the majority cares about--guns, religious freedom--from similar laws channeling constitutional litigation onto defense.

I say obnoxious things so I have standing

A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.

How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company."  In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."

This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a  bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.

Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?

Still no SB8

Weird. With each passing day, the logic of cert before judgment (which required four votes) and expedited review (which required five, I believe) fades. It makes no sense to rush the case, then decide it in the ordinary stream of the Term.

New cynical take: The Court releases the decision on Wednesday morning, prior to the Dobbs argument, allowing WWH to proceed. That "victory" for reproductive freedom pulls public attention off Dobbs, which will contain numerous hints that Roe/Casey are not long for this jurisprudential world.

Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.

Points of departure on SB8

As we await the SB8 decisions,* I want to respond to Ilya Somin's "final word" on the case.  Here is his conclusion:

[*] A few people have pointed out that recent time-crunched merits questions (e.g., census) have come down within 18-19 days from argument, which could make Friday a good target.

And, here, judicial review is an extremely effective tool, particularly in cases where effective enforcement simply requires striking down a law or regulation and barring state officials from enforcing those policies. In the case of SB 8, that means preventing state courts from hearing SB 8 cases that violate the Constitution and enforcing judgments that plaintiffs might win in such cases. States must not be allowed to forestall effective judicial review in such cases by exploiting loopholes in procedural doctrines. If the only way to prevent that is to close those loopholes by limiting the scope of some procedural precedents, then that is a small price to pay for vindicating much more important constitutional principles.

I expect the Court to adopt this reasoning, and perhaps this language, in allowing WWH's injunctive action to proceed. Ilya's argument (and the argument II believe the Court will adopt) rests on four principles: 1) "Effective judicial review" means offensive litigation in federal district court, such that a law that pushes constitutional litigation into a defensive posture "forestalls" effective review; 2) "Striking down a law" is a meaningful judicial remedy; 3) the court can "bar[] state officials from enforcing" an invalid law as a global matter, as opposed to granting rights-holder-specific remedies; 4) the bringing of SB8 cases, as opposed to imposition of liability in those cases, violate the Constitution.

I disagree with each of these principles and therefore with Ilya's conclusion about SB8. There is effective judicial review of the heartbeat ban--providers can raise constitutional invalidity as a defense in state court before state judges bound by the Supremacy Clause and SCOTUS precedent, with SCOTUS review at the end of the process. It is not the ideal forum or the forum that providers and other SB8 defendants would choose, but that is not the same as saying that requiring defensive litigation independently violates due process or that it is constitutionally deficient. SCOTUS has established significant precedent, including precedent about the constitutional validity of certain laws, through defensive litigation, including private civil litigation that originated in state court. SB8 does not differ from these prior cases, from a future defamation suit against constitutionally protected speech, or from a future damages lawsuit against Jack Phillips.

Standing problems in UF prof lawsuit

Despite UF backing down, the three professors filed suit Friday, seeking to enjoin as violative of the First Amendment "any policy or practice that provides the Univerity discretion to limit Plaintiffs' ability to undertake outside activities, on a paid or unpaid basis, on the ground that the proposed activity is not aligned with the “interests” of the State of Florida or any of its entities or instrumentalities."

Standing is a problem here. The plaintiffs got the relief they are suing for--permission to testify in the case and be paid for it--so they are not suffering an ongoing injury traceable to university policy or practices (or, in my preferred framing, their rights are not presently being violated). They try to get standing through Susan B. Anthony List, where the Court held a plaintiff can establish standing for a future injury where she intends to engage in arguably constitutionally protected activity that is proscribed by the challenged law and there is a credible threat of future enforcement. Consider ¶ 43 of the complaint:

Unless and until it is rescinded or declared unconstitutional to the extent it equates the University’s “interest” with that of the State, the University’s Policy will continue to impede Plaintiffs from serving as expert witnesses or otherwise lending their analysis or expertise to litigation challenging State policies, in violation of the First Amendment.

As pleaded, that does not work. It is framed as if the existence of the policy without a declaration of its invalidity is a unique ongoing or future injury, which it is not. A declaratory judgment requires standing beyond "this policy is in place and will impede us." They need more, but I am not sure if or how they show a likely future injury. They can allege that they regularly testify as experts, including against the state; they will need to request permission; and they risk being denied in a future case because of the anti-state positions they wish to take and the university's discretion. And courts are forgiving of standing in First Amendment cases.

The problem for the plaintiffs is that this is not the typical First Amendment case. In the typical free-speech case, standing is based on the plaintiff's unilateral intended actions ("I want to handbill;" "I want to make possibly false statements about a political candidate") and the obvious presumption that the government will enforce its laws against violators (arresting the handbiller or charging the false statements). Here, standing depends on actions of others. Five things must happen--the state must future rights-infringing laws; those laws must touch on subjects on which the plaintiffs possess expertise; someone must challenge those laws in court; those plaintiffs must need expert witnesses; and plaintiffs must seek to hire these profs as experts. Each is necessary before the plaintiffs would suffer a future injury traceable to the policy--seeking and being denied permission to testify because they are acting contrary to university interests. Until each happens, these plaintiffs need not request permission for these activities and will not be subject to the policy. The court must overlook how speculative and beyond the plaintiffs' control these facts are. Perhaps the court will decide that past history makes each likely to occur and perhaps it will not that this is a First Amendment case and be more forgiving. But a court is unlikely to abide such speculation in an environmental case.

The complaint is inconsistent in identifying the First Amendment problem with the policies, which might affect the standing analysis (showing, again, how intertwined merits and standing are). It identifies four defects. 1) The problem is making profs request permission before testifying, which it calls a prior restraint. 2) The problem is the discretion the policy vests in the university, a position the Eleventh Circuit rejected last year in a challenge to conflict policies at a different SUS institution. 3) The problem is the university denying permission to engage in positions contrary to Florida's "interests," which creates viewpoint discrimination (because a professor could testify in favor of Florida in the same action). 4) The problem is the university equating its interests with those of the state, which is problematic but not necessarily violative of the First Amendment.* These are distinct First Amendment theories with varying likelihoods of success. The likelihood of future injury varies depending on the theory of the case. For example, if the constitutional problem is making profs ask permission for any outside expert activity or testimony, that injury is more likely (since it is obvious they may testify in the future), although the constitutional merits argument is weaker.

[*] If the university and the state are the same, UF's position that the university is the state may prove too much, affecting the eligibility of federal judges to hear these cases. Many judges on the Eleventh Circuit and the Florida district courts serve as adjunct professors, whether teaching full classes or as part of a group of trial-advocacy instructors. They recuse in cases involving the university. But if the university and Florida are the same, then must they recuse in any case to which Florida is a party? That would have dramatic consequences.

The X-factor is the task force that the UF President convened to recommend a new policy for professors who want to testify in cases in which Florida is a party, which was charged to submit a preliminary recommendation by November 29. That new policy could end this dispute, depending on what it says and which of the distinct alleged constitutional defects it resolves. A court may not want to do anything with this complaint for a month, knowing that the situation will in three weeks and the complaint will go away or be materially changed. Perhaps the court will let the case sit until those further developments, especially since the plaintiffs do not need preliminary relief.

Finally, not to (again) beat a dead horse: But how much simpler would it be for a court to say "your First Amendment rights are not being violated in this situation, so you lose your claim"?

Limiting principles

I co-sign this Stephen Sachs post on the failure of the WWH plaintiffs and the Court to identify limiting principles to justify an offensive action (especially against clerks) here that would not allow for offensive actions whenever a state-court defendant may have a constitutional defense. Any limitation still makes SB8 look like many non-extraordinary laws that have been handled defensively. And the things that make SB8 extraordinary (namely the limitations on state processes) can themselves be raised defensively.

This is a perfect framing of the problem that neither the plaintiffs nor the Court discussed yesterday--the courts possess the tools to handle this case as it does many others. The only way this falls outside of historical defensive litigation is if offensive litigation is constitutionally required--something no one argues but that everyone seems to assume as a background principle.

 

More thoughts on the SB8 argument

Additional random thoughts on the SB8 argument after the jump.

Assuming I (and the prevailing wisdom) are correct that the Court affirms the denial of dismissal in WWH and allows it to proceed, the big question is what happens to United States. Everyone, including the Texas AG, seemed to sense where the Court might go in WWH, arguing that this obviates the federal sovereign interest and thus the federal suit. One issue involves interim relief. Note where things stand. If SCOTUS reverses in US, the case goes back to the Fifth Circuit to review the district court decision that the heartbeat ban is invalid under Roe and Casey; it would make sense for SCOTUS to lift the stay of the district court's preliminary injunction, barring enforcement of the law pending review. If SCOTUS reverses in WWH, the case goes back to the district court for further litigation, including of a motion for a preliminary injunction. To the extent there is concern for enforcement of the law between the SCOTUS decision and the district court ruling in WWH, it may be necessary to keep US alive for the interim relief. The Court can resolve that by enjoining enforcement in WWH pending litigation; WWH counsel asked for such relief if the Court believed appropriate.

A few random further random thoughts:

    • Judicial departmentalism is dead. During his round-robin questioning  in WWH, Roberts asked about language from an amicus (I believe it was Jonathan Mitchell's) that "states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." Stone said "other officers within Texas are bound likewise to . . . take the interpretations from this Court and federal law and to faithfully implement them." But that is true only if we accept judicial supremacy. A state legislature or executive can do what it pleases until it reaches court and encounters a judge who is bound by SCOTUS interpretations and the state's case goes up in flames. But saying the state will lose in court is not the same as saying all state officials are bound. Stone could offer no other answer, I suppose. But that is too bad--it shows how far down the judicial-supremacy hole we have gone and how unable we are to speak about constitutional litigation and adjudication with some precision.

    • There was distrust of state-court litigation that has never been part of the doctrine here. The following points were argued explicitly or as foundational assumptions, although none has ever been the case.: 1)  Having to litigate and defend against a claim under an invalid law is a constitutional injury and violations, regardless of whether the person is held liable or sanctioned for protected conduct; 2) Procedural due process limits rules of venue, preclusion, and other procedures; 3) It is not sufficient for a defendant to be able to raise due process challenges to state procedures in state court; there must be a federal forum for it; 4) a state-court forum is insufficient to litigate federal constitutional rights, at least if the state chooses certain procedural rules. I thought Stone did a good job of pushing back on these, but to no avail.

    • The potential copycat laws (guns, religion, etc.) reared their heads from several Justices. I thought Stone did as good a job as he could pointing to other non-hypothetical examples in which rights-holders have been pushed into state court and no one questioned it, including New York Times and Masterpiece Cakeshop in the face of a similar chilling effect.

    • No one acknowledges the process in which Shelley v. Kraemer was decided and how that affects what the case stands for. Several Justices asked whether Shelley overrides the can't-sue-judges language of EPY, because the Court in Shelley spoke repeatedly of how state judges "enforce" the law. But it matters that Shelley was not an offensive action against the judge and did not enjoin the judge; it was a defensive action in which the constitutional limitations on restrictive covenants provided a basis for SCOTUS review and reversal. Broad language about enforcement was unnecessary to the holding or principle of that case. The Court applied the same principle in New York Times, without the inaccurate language about enforcement. But NYT and Shelley involved the same idea--private plaintiff sues for a remedy under state law, the federal constitution limits the state law as applied in court; neither rests on the judge being the "enforcer" or a proper subject for a lawsuit.

A more accurate way of framing it would be that some enforcement occurs through the judicial process, but the enforcer is the person who initiates the process and seeks to establish liability, not the court who adjudicates. When the state prosecutes someone for a crime, that enforcement occurs within the judicial process and it is up to the judge to adjudicate the case; we all would say the AG or DA, not the judge, "enforced" the law by seeking to convict and punish the defendant. Shelley should be framed the same way--Kraemer enforced the restrictive covenant by suing to divest Shelley of the property. The litigant enforces the law; the enforcement occurs within litigation.

    • The WWH attempts to make SB8 seem unique by arguing that it lacks the elements of an ordinary tort claim or ordinary private civil litigation and that it imposes special litigation rules. But that begs the question (yes, I am using that term correctly) of what constitutes the essence of ordinary civil litigation or ordinary tort law or what are "ordinary" litigation rules so we can tell when the state has departed them. Otherwise it is impossible to limit SB8 in any principled way. And that is before we get into why the state's choice of venue or preclusion rules is constitutionally proscribed (see above).

        WWH counsel and Breyer came up with six: Anyone can sue; anywhere; no preclusive effect; Atty fees (heavy and one-way); damages heavy; limits on defenses; Damages not tied to harm; Mandatory injunction to prevent further violations. But no one explains what is problematic about any of those, individually or as a whole. Unless another unspoken point is true--Art. III is constitutionally required in state court, which no one has ever suggested.