PrawfsBlawg

"Zombie statutes," non-universality, and judicial departmentalism

The opening paragraph of this Fifth Circuit opinion by Judge Costa accurately describes judicial review (H/T: Josh Blackman):

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA.L.REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example. See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH.ST.L.REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO.L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

The opinion deals with what Costa calls "zombie statutes"--laws in one state that remain on the books but are unenforceable (at least judicially, more on that below) in light of SCOTUS precedent declaring an identical law from a different state invalid. The challenge here was to a Houston ordinance requiring initiative/petition circulators to be registered voters; SCOTUS in Buckley v. American Constitutional Law Foundation declared an identical Colorado law to violate the First Amendment. The Fifth Circuit held that the plaintiffs had standing and that the case was not moot--there was sufficient threat of enforcement despite Buckley and the city's addition of an Editor's Note to its code--stating that it would accept petitions from non-registered voters and provided a form for such petitions--was not sufficient to moot the case.

This "zombie law" concept is interesting. I wish I had it in front of me (or had thought of the term myself) when writing about the link between non-universality and judicial departmentalism. Because those concepts inform what makes a zombie law.

Because of non-universality, the concept should not be limited to the situation at hand--State B's law is a zombie because of a decision involving State A's law. State B's law can be a zombie because of a decision involving that law as to non-parties to the prior litigation. It also means we could have federal zombie laws. The point is the same in all--the prior judgment spoke to the challenged law and the involved party, not to any other law or any other party.

Because of judicial departmentalism, it is arguably unfair to call any law a zombie law. Because if the government believes, in its independent judgment, that the law is constitutionally valid, it acts within the full scope of its constitutional power in enacting or enforcing it, regardless of contrary precedent. In that sense, the law is alive and enforceable. On the other hand, maybe zombie is the right term because the laws are undead--they are alive in remaining on the books and in remaining enforceable by a departmentalism government, but the actual or threatened enforcement is DOA in court, where SCOTUS precedent binds and determines the outcome. On a third hand, maybe we need distinct terms to capture distinct concepts--law on the books but no intention to enforce v. law on the books with intention to enforce--rather than lumping everything as a zombie.

Update on Jewish World Series

I erroneously wrote that this year's Rays-Dodgers World Series had one Jewish player--Dodgers OF/DH Joc Pederson. But I forgot about Rays lefty reliever Ryan Sherriff, the grandson of Shoah survivors. Sherriff saw his first action in Friday evening's Game 3, pitching one scoreless inning, walking one and striking out one. This is the seventh World Series in which both teams have at least one Jewish player, the third in the last four.

We came close to a different first--a Jewish pitcher facing a Jewish batter.* Sherriff pitched the seventh and went to the mound to begin the eighth, with Pederson leading off. But Pederson does not bat against lefties, so he was pulled for a righty pinch-hitter in the Dodgers' regular platoon. At which point Sherriff was pulled for a righty pitcher.

[*] The linked article notes that Ken Holtzman of the A's faced Steve Yeager of the Dodgers in Games One and Four of the 1974 World Series, with Yeager getting two hits in five at-bats. But Yeager converted to Judaism after his baseball career, so this did not count at the time.

Declaratory judgment of protected speech

The Lincoln Project erected these billboards in Times Square, suggesting lack of concern about COVID by Ivanka Trump and Jared Kushner. Attorney Marc Kasowitz sent the Lincoln Project a two-paragraph letter stating the billboards are "an outrageous and shameful libel" and that if they "are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages."

Needless to say, the statements on the billboard are not libelous, regardless of whether they are outrageous or shameful. And it is doubtful that Javanka will recover compensatory and punitive damages, let alone enormous ones. The billboards imply callous disregard for COVID deaths, which is non-actionable opinion. The quotation from Jared comes from a Vanity Fair article about the administration's COVID response. The full statement is that New York Governor Andrew Cuomo did not do enough to get PPE, so "his people are going to suffer and that's their problem." It is at least ambiguous whether "their" refers to Cuomo or "his people" (meaning New Yorkers); so even if it leaves a false impression, it does not rise to actual malice. The juxtaposition of their photos with body bags and death tolls is hyperbole. And, again, these are government officials.

Anyway, this letter is no different from the many bumptious letters that President Trump and other Republicans send to their human and bovine critics over plainly protected speech. They often give attorneys a chance to wave the banner of the First Amendment in their responses. But Popehat views these letters as a genuine threat to free speech when in furtherance of "abusively frivolous" defamation claims (which this letter is). So he offers a proposal:  The "'That's Not Defamation' Declaratory Relief Act:"

Under the statute, the Lincoln Project could send a demand to Kasowitz and the Kushners to withdraw the threat. If they don’t withdraw the threat, Lincoln Project can sue under the statute seeking a declaration that the speech is not defamatory. They can bring the equivalent of an anti-SLAPP motion immediately. If they prevail, they get an order that the speech is not defamatory ....AND they get attorney fees collectible from (this is key) either the Kushners or Kasowitz. If the judge finds the threat was frivolous, he or she can impose penalties on top of the fees. Would make legal threats have consequences.

White views attorneys as a big part of the problem. We expect people who believe they have been wronged to be angry and to lash out. We perhaps should expect more restraint from public officials and in the past we got it, but the human reaction is understandable. Attorneys are supposed to understand the law, to recognize the difference between hurt feelings and actionable defamation, and to talk their clients off the ledge, especially from throwing around money and power. An attorney who sends a letter such as this does the opposite; indeed, he exacerbates those money-and-power imbalances.

A declaratory judgment of protectedness is theoretically available under the current Declaratory Judgment Act, but defendants do not avail themselves of the option. Likely because most such letters are empty threats (Donald Trump has yet to sue over 2016 reporting of sexual-assault allegations) and the defendant's prefer avoid litigation, especially because attorney's fees are not recoverable under the current law. White's proposal makes the attorney demand part of the game.

There is an interesting Fed Courts angle to this. Under Skelly Oil, an action seeking a declaration that speech is constitutionally protected/non-defamatory does not arise under federal law, because the underlying enforcement action (a defamation suit) would not arise under federal law. It could only reach federal court on diversity. So if White wants these cases in federal court, the statute should include a jurisdictional grant that does not rely on the Well Pleaded Complaint Rule.

Still getting jurisdictionality wrong

An unpublished Ninth Circuit opinion holds the district court lacked subject-matter jurisdiction over a copyright dispute because, as alleged, all infringing acts occurred outside the United States. But this should be a merits rather than jurisdictional issue. That the infringement took place outside the United States means U.S. copyright law was not violated because it does not "reach" or "prohibit" non-U.S. conduct. And the plaintiff's rights under U.S. copyright were not violated. All of which, Morrison v. Australia National Bank tells us, are merits questions to be resolved on 12(b)(6), not jurisdictional questions under 12(b)(1). It is amazing that courts continue to get this wrong. Especially since the court cited Twiqbal and looked only to the allegations in the complaint, which lacked any facts showing U.S.-based conduct.

Panel: The Jurisprudence and Legacy of Justice Ginsburg

FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., Friday, October 30. Register here. The event is open to the public.

A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg. Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator: Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)

Panelists:

            Richard Albert (University of Texas)

            Deborah Dinner (Emory University)

            Scott Dodson (UC-Hastings)

            Atiba Ellis (Marquette University)

            Daniel Epps (Washington University-St. Louis)

            Abbe Gluck (Yale University)

            B. Jessie Hill (Case-Western Reserve University)

Breyer as assigning justice

A fun one-off thing to watch for this Term--will  Justice Breyer have an opportunity to assign a majority opinion as senior-most associate justice in the majority? It would take an odd line-up: TheChief and Thomas in dissent and Breyer leading a majority of himself and four of Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. Trying to imagine the case that would produce that lineup with the Chief.

Prawfs' moment in the sun

One drawback to paying zero attention to the Barrett confirmation hearings: I missed that Barrett did a guest stint here in March 2008 (I was doing a semester-long guest stint at that time that led to Dan inviting me here permanently). Her six posts are listed among her "Opinion, Editorals, and Letters" section in her CRS bio. One post, about potential retroactivity problems in eliminating the crack/powder distinction, was the subject of an exchange with Sen. Booker; Booker asked why she did not discuss the injustice of the distinction--a stupid question justifying the amount of attention I devoted to the hearing. (H/T: Josh Blackman, who pays more attention than I do). (If you want to subject yourself to it, it is around the 7:17:00 mark).

Booker described us as a "well-known legal academic" blog, which is nice. Barrett called us "LawPrawfsBlawg." Oh, well.

Ford arguments

Here is the transcript from Wednesday's argument in Ford and here is my SCOTUSBlog story. A few additional thoughts:

The Justices do not seem to understand or recognize that the prevailing analytical approach has 3 parts (at least as it has developed): 1) Purposeful availment; 2) Relatedness; 3) Unreasonableness. A lot of the hypos conflated the three. The Chief's hypo about the small manufacturer in Maine could be resolved on the third prong (much like Justice Breyer's hypos about Egyptian shirts and Brazilian coffee in his Nicastro concurrence). Other hypos were about purposeful availment rather than relatedness. Justice Kavanaugh tried to disaggregate them in his colloquy with plaintiff counsel, giving him a chance to describe the differences between the first two steps and why they do not run together. But I do not know whether it will take. (There is an argument that the three-step approach is wrong and inconsistent with Shoe, but this is where we are until the Court changes it. So it would be helpful if they recognized their analysis).

Justice Kavanaugh explored the World Wide connections with both sides, including quoting specific language from the case. Counsel for Ford argued that the issue is open because Audi and VWA did not challenge jurisdiction. Counsel for plaintiffs argued that there is a reason for that--jurisdiction over a nationwide manufacturer for defects in its products forms the "core" of specific jurisdiction.

I am bad at predictions, so I will not make one. But the Justices were less hostile to the plaintiffs' position than I anticipated. I do not know what that means for the outcome.

On a different note, it was easier writing the argument recap (what I have found the hardest of the three SCOTUSBlog pieces for each case) under the new argument format because it was easier to take notes and to organize the piece--Intro and nine mini colloquies per side, with less need to scour many pages for common themes. Although I was raised in the Scalia-led free-for-all that also is reflected in law-school moot court, this format is growing on me and I am curious if they will maintain some version of this when the Court returns to face-to-face. And if Court membership expands.

JOTWELL: Effron on Rose on online class action notice

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Amanda M. Rose, Classaction.gov (U. Chi. L. Rev., forthcoming), on a government website to handle class-action administration.

Impementing SCOTUS term limits

I missed the introduction of this bill last week, which Eric Segall discusses. It provides for appointments in the first and third year of a presidential term. It also provides that the Senate shall be deemed to have waived its advice-and-consent authority if it does not act on a nomination within 120 days of the appointment and the nominee shall be confirmed. This is cute, designed to prevent the McConnell move of sitting on a nomination, although it does not stop a determined Senate majority of one party from blocking everyone a President of the other party nominates. I have seen other proposals for a statute or Senate rule that failure to confirm within a certain time shall be deemed confirmation.

The bill does not make the Balkin move of giving senior justices specific SCOTUS-related responsibilities. But current Justices are not required to retire from "regular active service," so there are no problems of changing the tenure of sitting Justices. But appointments will begin upon passage, with new appointees serving as active Justices for 18 years. Presumably, the Court will expand until current Justices retire.

But this creates some strange Court dynamics as the new system takes effect. Justice Srinivasan appointed under this law in 2021 would be active until 2039, then forced into senior service. Meanwhile, in 2039, six current Justices (seven if you include Barrett) would be in their early 80s or younger and likely still wanting to remain active. A big chunk of the current Court would form a "core" that might continue for another 30 years, while an "outer" Court changes around them. The demand for incrementalism due to non-retroactivity creates some difficulties.

Balkin solves the 18-year conundrum

Proponents of 18-year terms with regularized appointments biennial conflict over a procedural problem: Whether it can be done by statute without changing the nature of the position for current justices. Requiring a Justice to assume "senior" status and changing the nature of the job--no longer hearing SCOTUS cases--is arguably inconsistent with the life tenure that came with the original appointment.

Jack Balkin has solved the problem with an expansion of past proposals and his argument in his new book. Under Balkin's proposal, all Justices remain active until they leave the Court. Instead, Congress changes how the Court hears cases. Original-jurisdiction cases are heard en banc and all Justices decide cert. petitions.  But appellate-jurisdiction cases (i.e., all but one or two cases each year) are heard by a panel consisting of the nine junior-most Justices. More-senior Justices fill-in (in reverse seniority) if there is a recusal or vacancy among the 9-Justice panel and can sit on courts of appeals.

There should be no question that this can be done through ordinary legislation, because it does not change the job description. Rather, it changes the responsibilities of each Justice, akin to requiring circuit-riding that dates to the founding, and how the Court hears cases, unquestionably within Congress' power to structure and organize the Court.

"Relatedness" in personal jurisdiction--Ford and World Wide Volkswagen

SCOTUS on Wednesday hears arguments in Ford v. Montana Eighth Judicial District and Ford v. Bandemer, considering whether there can be specific jurisdiction over a defendant who sells and ships products into the forum state but not the specific unit involved in the events at issue. The Court must decide whether "give rise or relate to" reflects one concept or whether "relate to" is a distinct and broader concept and how much broader. I am covering the case for SCOTUSBlog. Larry Solum offers some thoughts.

This case is the spiritual successor to World Wide Volkswagen, answering questions that were unnecessary 40 years ago and reflecting recent doctrinal shifts. Audi and Volkswagen of America did not challenge personal jurisdiction, recognizing that they were subject to jurisdiction based on the large number of cars that they sold, marketed, serviced, and shipped to the state, although they did not sell or ship the Robinson's car to Oklahoma (they shipped that to NY). Whether this was general "doing business" jurisdiction or some broader conception of specific jurisdiction was unresolved, although it was the topic of academic debate between Mary Twitchell and Lea Brilmayer.

The Court's recent decisions (several authored by Justice Ginsburg) narrowing general jurisdiction to "home" (meaning principal place of business and state of incorporation for corporations) changes the calculus for Ford, which stands in the same position as Audi and VWA. There is no general jurisdiction, because Ford is not incorporated or headquartered in Montana or Minnesota, just as Audi and VWA were not incorporated or headquartered in Oklahoma. So this squarely presents how far (or not far) relatedness extends, including whether it reaches cases in which the defendant has contacts with the forum that are "identical" or "similar to" the out-of-state contacts that caused the accident.

This could be the most significant of the recent wave of P/J cases. If the Court narrows the relatedness standard and finds no specific jurisdiction, it could make it difficult for plaintiffs to sue manufacturers in the locus of the accident, which usually is the plaintiff's home. Instead, often-less-resourced plaintiffs will have to travel to the better-resourced defendant's home (having to sue Ford in Michigan) or to some third state where the defendant did have contacts (such as where Ford manufactured or made first sale of the car at issue). Either is less convenient and more burdensome for the plaintiff. Waiting to hear arguments, but I expect the Court to be more divided on this case than in most of the other recent PJ cases.

Finally, on a teaching point. I use World Wide to show the intersection between subject matter and personal jurisdiction and the strategic choices that parties must make. Depending on the outcome in Ford, everything about WW would be different if the case arose now.

The Robinsons sued Audi, VWA, World Wide (the regional distributor), and Seaway (the dealer) in Oklahoma state court in 1975. Audi and VWA recognized they were stuck in Oklahoma, but wanted to be in federal court. WW and Seaway, both from New York, destroyed complete diversity because the Robinsons were from New York (the accident in Oklahoma prevented them from reaching Arizona and establishing the new residence so as to change their domiciles). So Audi and VWA financed WW and Seaway to challenge personal jurisdiction through the OK courts and to SCOTUS. Following the SCOTUS decision and the dismissal of WW and Seaway in 1980, Audi and VWA removed. But that strategy is unavailable under current law. In 1988, Congress amended what is now § 1446(c)(1) to prohibit renoving later-becomes-removeablae diversity cases more than one year after filling. So Audi and VWA now gain nothing from financing WW and Seaway to get out of the case. Given the cost of litigation, would WW and Seaway thus decline to challenge personal jurisdiction, litigate in Oklahoma, and hope to shift the blame onto the manufacturers?

On the other hand, if the Court rejects jurisdiction in Ford, Audi and VWA would have a different strategy--join WW and Seaway in getting the case dismissed from Oklahoma.

Thomas and Alito defend Kim Davis

SCOTUS denied cert in Davis v. Ermold, which held that Kim Davis did not enjoy qualified immunity in refusing to issue marriage licenses to same-sex couples because it offends her religious beliefs. Justice Thomas, joined by Justice Alito, issued a cri du ceour respecting the denial of cert., lambasting Obergfell as creating a "novel constitutional right" having "ruinous consequences for religious liberty."

Three things.

First, Thomas proceeds as if Smith no longer is good law and that the First Amendment demands an opt-out from a generally applicable law or satisfaction of strict scrutiny. He cites Smith in a footnote, but to argue that Obergefell is more illegitimate because not done through the legislative process. This seems disingenuous. I doubt that if Kentucky had legalized SSM by statute with no religious accommodation, Thomas would be more willing to accept those ruinous consequences for religious liberty.

Second, I am waiting for a good argument for why having issue licenses to same-sex couples is more a violation of religious liberty than having to issue licenses to inter-racial couples or inter-faith couples. All can be, and have been, subject to religiously based objections by some people. Would Thomas be staking out this position if someone denied a marriage license to Noah Cohen and Mary-Margaret O'Reilly?

Third, whatever one believes about a private baker or photographer, it should not extend to a government official performing her official functions. Her job as a public employee is to carry out the law. If that law offends her religious or other sensibilities, then she should quit. We would not allow someone to enlist in the Army and then refuse to fight in a war; we would not allow an atheist police officer to refuse to conduct traffic at a church. There is no reason to allow a clerk to refuse to issue a marriage license.

MLB MVP cancels Landis

The Baseball Writers Association of America (BBWAA), which awards the MLB leage MVP awards, has removed the name of former commissioner Kennesaw Mountain Landis from the award, citing his history of racism and his actions in keeping baseball segregated.

As I wrote in my prior post, the narrative of Landis as affirmatively racist active opponent of integration has carried the day. A scholarly counter-narrative sprouted in the '00s that he was a man of his time who did not push the owners to sign African American players, but has been largely forgotten in this discussion--whether because it has been historically discredited or because it has lost the day.

A Jewish MLB post-season

No baseball on Yom Kippur 5781. But this is shaping up as one of the great Jewish MLB post-seasons. Ten of the 13 Jewish MLB players are in the post-season spread across eight teams (five NL, three AL). This includes four starting position players (Alex Bregman of Houston, Ryan Braun of Milwaukee, Joc Pederson of the Dodgers, and Rowdy Tellez of Toronto, who will miss the opening round with an injury); one starting pitcher (Max Fried of Atlanta); and three workhorse relief pitchers who can be expected to log some big innings in a format with no travel and thus no off-days.

Bad legal reporting yields bad legal takes

Over the weekend, media outlets reported that a federal judge had removed or ousted William Pendley Perry as acting director or as person functioning as director of BLM. This prompted ALittleRebellion to make Bad Legal Takes for insisting that "no judge has the power to remove any executive appointee." In fairness, he may have made it more for further insisting that Perry "must ignore any such diktats," a screed about constitutional determinations under Article V, and a later insistence that "advice and consent" does not mean approval, just informal consultation.

But this tweeter's basic point--judges cannot remove executive appointees--is correct. Fortunately, the judge did not remove an executive appointee. The court declared that Perry was serving in the role in violation of federal law, enjoined him from continuing to act in that capacity because any conduct in the office is unlawful, and asked the parties to identify actions that may be invalid because enacted by someone unlawfully serving a role. All of which is what judges have the power to do and are expected to do in resoling cases and controversies. The problem--that long predates the rise of Twitter Law--is that much of the mainstream media does an awful job of covering courts and judicial processes, resulting in in fundamentally inaccurate reporting and information such as this. Which the uninformed of Twitter Law can run with as proof of an out-of-control judiciary with power-abusing judges who must be stopped.

Proving anti-Jewish discrimination

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

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

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

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

JOTWELL: Campos on Civ Pro Unavailability Workshop

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

Jamelle Bouie misunderstands judicial supremacy and other comments

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

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

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

The Segall Court and a stopping point to Court-packing

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

Implementing the Carrington Plan (Updated)

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

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

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

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

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

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

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

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

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

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

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

Remembering Justices

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

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

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

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

New Courts (Updated)

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

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

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

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

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

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

Structural principles and SCOTUS appointments (Updated Again)

Two preliminary points.

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

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

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

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

In an early publication, I argue that the Constitution's structural questions can be understood and answered by resort to one, some, or all of three competing principles--democracy, separation of powers, and partisanship. The principles may conflict. Or they may undermine original structures--the system was supposed to be based on separation of powers because political parties were unknown and conceptions of democracy limited. Or emphasis on one principle may lead to a different conclusion than emphasis on another principle. Any conclusion is presumptively constitutionally valid; the question is choosing among several valid options, depending on choice of principle.

In 2016, McConnell could have framed the refusal to hold hearings and a vote on Merrick Garland's nomination in separation-of-powers terms. The Senate is required to provide "advice and consent" and the Senate establishes its rules of proceeding. It thus can exercise that advice-and-consent power through whatever rules of proceeding the majority of the body sees fit, including by withholding advice or consent through inaction. This would have gone against historical norms and practices. But it would have fit the model of an independent Senate doing what it believes best. It also would have preserved separation of powers as to the executive--not suggesting that the President's constitutional power runs out earlier than the four years enumerated in the Constitution.

Instead, McConnell framed his "rule" of no election-year confirmations in terms of democracy--the People should have a say in who makes this appointment. And several Senators, notably Graham in fall 2018, have affirmed the "rule" in those terms and on that principle. This framing is problematic on its own terms. The People had a say when they re-elected President Obama in 2012 with the understanding that he would be President, and exercise executive power, for four years. On this understanding, democracy was forward-looking to what the coming popular majority might do, not backward-looking to what the prior, still-controlling popular majority had done. In any event, that rule, based on that democratic principle, is absolute: No confirmation during the final year of a presidency.

Here is McConnell's statement on Ginsburg's death and the new vacancy:

In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.

McConnell has shifted the controlling principle from democracy to partisanship (or partisanship reframing democracy). The right of the coming majority to pick the new President and influence the new justice yields to unified party control of the Senate and White House. A Senate controlled by one party does not confirm nominees of a President of another party in an election year. But the same restriction does not apply when the Senate and President are of the same party--party control is more important than forward-looking democracy. One can agree or disagree with McConnell's conclusion or plan, but it does reflect proper application of that principle. Alternatively, the partisan outcome of backward-looking democracy reaffirming unified party control is more important than unknown forward-looking democracy. Either way, this represents the explicit triumph of the Pildes/Levinson thesis that we have a system of separation of parties rather than powers.

McConnell also shifts the segment of the People that matters. The segment of the public that elected 1/3 of the Senate is more democratically important than the segment who re-elected Obama in 2012 or who will decide the presidency in November. This produces a strange vision of democracy, in which the popular will of a small sub-part prevails over the will of the whole.*

[*] Compare statutory presidential succession, the issue on which I described these principles. Congress put the Speaker and President Pro Tem at the top in the name of democracy. The line should pass to officers elected by some popular segment and placed in their positions by fellow officers elected by different popular segments, thus representing some national majority. But critics of legislative succession justify their conclusion in democratic terms by resort to a different majority--cabinet officials enjoy "apostolic democratic legitimacy (Akhil Amar and Vik Amar coined the term) by virtue of their appointment by, and in service of, a nationally elected officer.

McConnell's conclusion--OK not to vote on Garland, OK to confirm Barrett)--represents a plausible argument from these competing principles. But that is neither the rule nor the principle on which he relied four years ago. Any charge of hypocrisy (which, again, McConnell does not care about) derives not from the change in conclusion but from the change in controlling principle to justify divergent conclusions.

Update: For the first time, President Trump said something I agree with: McConnell did not want to consider Garland, but the current situation is difference because Republicans now have the Senate and can do what they want. Yes. Whether framed as separation of powers or partisanship, there is a distinction and Republicans can run with that distinction. But, again, the problem, and the hypocrisy charge, comes from framing the Garland move as a matter of democracy, no doubt out of a felt need for a "neutral principle." Trump feels no such need.

Dorf on ending the anthem at sporting events

Michael Dorf considers the argument, floated by former NBA coach Stan Van Gundy, for eliminating the national anthem from sporting events. We do not do it at any other public or entertainment gatherings (movies, plays, concerts); it is not the type of event requiring public ritual (compare, e.g., a government proceeding); and it is creating more problems than it solves. It also is an historical accident--a band played it spontaneously during the Seventh Inning Stretch at a game in the 1918 World Series (in the closing month of World War I)--that caught on.

I confess that I enjoy the anthem as part of the game. But I see Dorf's and Van Gundy's point.

Testing the Koufax Curse

In anticipation of the High Holy Days, the Forward has published a summary version of my longer study of Jewish players' and teams' performance on Yom Kippur.

Cancel culture as a circle of baseline hell

Thinking out loud.

Skip Bayless' comments on Dallas Cowboys quarterback Dak Prescott ("being quarterback of the Cowboys is too important a position for someone who struggles with mental-health issues, or at least not for someone who wants to talk about those issues") are so stupid that they are unworthy of a response. They are noise--an "inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." They certainly are too stupid to have been spoken in a media outlet that purports to be a forum for serious discussion, even of sports. And they suggest that Bayless is an unserious person.

Will Bayless be "canceled"--fired, suspended, or whatever? Fox Sports issued a statement disagreeing with Bayless' comments and saying they had "addressed" the issues with Bayless. I expect that to end it--no cancellation. And I do not expect Bayless to apologize or otherwise address it.

The separate question is whether Bayless should be cancelled, to which critics of "cancel culture" will say no. But I wonder if those who oppose cancelling someone for bad speech are trapped in a form of Rick Hills' baseline hell-the inability to establish a neutral baseline from which to analyze a problem. I presume that even the strongest critic of cancel culture would agree with the following:

    1) A private media organization could decide that it should not hire Bayless because it does not like his views on mental illness.

    2) A private media organization is not obligated to pay money and provide a platform to any person, so it can decide who it does or does not wish to give a platform based on the content of his speech and whether the organization shares, agrees with, and wishes to promote those views.

    3) The decision not to hire Bayless because of his absurd views would be a valid exercise of the organization's expressive rights--a decision about with what people and views it wishes to associate.

If the above is true, then firing Bayless should not raise different issues or problems. Either is an exercise of the media organization's judgment as to the views it wants to promote and with which it wants to associate. It would require a distinction between beginning and continuing--that ending a relationship because of disagreement with speech is different than declining to begin a relationship because of disagreement with speech. But that is a baseline problem--it rests on a belief that the starting point (on the platform or not on the platform) makes a substantive difference.

Similarly, sponsors could make the three decisions described above as to whether to sponsor Bayless' program and decline to buy time, from which it follows they could pull their money after-the-fact. To say otherwise requires the same distinction-without-a-difference between ending a relationship because of speech and declining to start that relationship because of speech.

I also wonder if we can distinguish cancelling Bayless for his speech from cancelling the Chicks or Mel Gibson or a professor for his speech. With the latter, we are cancelling from a primary role (making movies, making music, teaching classes) because of their out-of-role speech. But cancelling Bayless would reject him from his primary role because of his behavior in that primary role. Does that make a difference?

JOTWELL: Mangat on Weinstein-Tull on local courts

The new Courts Law essay comes from guest Leonard Mangat, reviewing Justin Weinstein-Tull, The Structure of Local Courts (Va. L. Rev., forthcoming), analyzing the hidden-but-consequential practices of local courts.

Bad Legal Takes does Talmud

There are reports of protesters in D.C. trying to keep media from recording the demonstrations, including by assigning "minders" to keep reporters from getting too close and using open umbrellas to keep them from seeing.

In response to a reminder that they are in a public space, this legal scholar argues that "by using umbrellas to surround themselves they are creating a quasi-private space for themselves and if in that atmosphere say they do not wish to be filmed they could win a lawsuit."

(Almost certainly) unknowingly, this genius invoked the concept of the eiruv, which is the subject of the current tractate in Daf Yomi (the 7 1/2-year cycle of reading one page of Talmud a day). An eiruv establishes a broader private domain in which Jewish people can carry on Shabbat by connecting multiple private domains into a single private domain through a series of markers and partitions. The Talmud establishes specific and complex rules as to what is sufficient to establish an eiruv. I am quite sure a raised umbrella does not qualify.

Getting qualified immunity wrong

This letter, from the lobbyist from the Oregon Coalition of Police and Sheriffs to an Oregon legislative committee considering a host of police-reform bills. Benefit of the doubt: The author (according to his LinkedIn page) is not an attorney and he might be talking about some state tort qualified immunity doctrine  rather than § 1983 federal qualified immunity. But presuming he is talking about § 1983, this is not good.

The letter says:

• "Qualified immunity is a legal principle that applies not only to law enforcement officers, but all public employees and officials" (emphasis in original): The only legally accurate statement in here.

• "It states that a public official cannot be sued . . . so long as those actions occur legally within the scope of the public employee's official duties. Qualified immunity is never a shield for illegal activity. It is not applicable if a public employee is acting outside the scope of their responsibilities." (emphasis in original). This is so wrong, which is why I was unsure whether he was talking about a state tort defense as opposed to § 1983. But as an explanation of § 1983, it conflates "under color of law" with immunity. A public official acts under color, and subject to liability, when performing his public job responsibilities; whether immunity applies is a second and distinct question. And the argument ignores the mounting cases in which courts find that an officer, under color of law, did something unlawful (e.g., making a prisoner sit in feces for four hours or stealing property in executing a warrant) but is not liable because no prior officer did the precise thing in the precise manner within that federal circuit.

• "The purpose of Qualified Immunity is to ensure that litigation does not completely place a public employee at the mercy of litigious counterparties." Sort of. It does not protect those employees just because. It protects them so that they will do a better job of policing when they can exercise judgment free from the fear of litigation. But when the result of a doctrine is that some (many?) officers acting as if they are unchecked, that doctrine may not be serving its intended purpose.

• I will not quote the whole thing, but the letter argues that qualified immunity also protects legislators. who are "uniquely and powerfully positioned to broadly deprive individuals of their rights." Again assuming he is talking about immunity from federal suit, he is wrong in the opposite direction. Legislators enjoy absolute immunity for their votes and legislative actions. But that distinction is based on the fact that individual legislators are less able to harm someone, there are political and electoral checks, and any violation is caused by the enforcement of legislation, remedied by a suit against the enforcing executive (who, of course, can claim qualified immunity). Executive immunity is (and should be) more limited than legislative immunity because executives interact with the public and can act individually to violate rights. Oh, and they can shoot people.

Again, if he is attempting to talk about state tort immunity, ignore the above--I know nothing about Colorado law so I do not know if what he says is correct. But if he is attempting to talk about federal claims under § 1983 or if he confused the two, this is a poor piece of advocacy.

Universality, facial invalidity, and the First Amendment

I am a couple of days late to this Third Circuit decision declaring invalid as-applied, but not facially, the age-verification, labeling, and record-keeping requirements of the Child Online Protection Act. But the court reversed on scope-of-injunction, limiting the bar on enforcement to the named plaintiffs.

Two bits of good news. The court dropped a footnote that "nationwide" is the imprecise term, citing Justice Thomas' Trump v. Hawaii concurrence that the problem is not geographic scope but "universal character." And the court ended in the right place--with an injunction particularized to the individual plaintiffs.

The bad news is how it got there. These plaintiffs--journalists, commercial photographers, and producers of sex-education materials--were niche actors and different from typical players in the pornography industry. Given their unique facts and positions, the remedy protecting them should not protect differently situated actors. But that should not matter. Even if non-party pornographers were similarly situated to the plaintiffs, absent class certification, the injunction should not protect beyond the plaintiffs; it is unnecessary to accord complete relief or to remedy the violation of those plaintiffs' constitutional rights.

One point of confusion is that two associations--the Free Speech Coalition and the American Society for Media Photographers--were plaintiffs in the case, although their claims were dismissed for lack of associational standing. An injunction protecting an associational plaintiff can become broader, as in protecting the association it must protect its members (Michael Morley describes this as a de facto class action). But this injunction never protected the associations, who lacked standing. But that proves the point. There is no reason to consider the organizations' standing if the injunction protects them at the end of the day. Particularity in the injunction is more consistent with the other rules of civil litigation.

Ornstein on filibuster reform

Norm Ornstein argues in The Atlantic that even in a best-case scenario, Democrats in 2021 would be unable to eliminate the filibuster. And, he suggests, perhaps they should not eliminate it, lest the Senate become a mini House in which the majority always gets its way and the minority lacks formal power. Ornstein's solution is to flip the default on continuing debate:

Instead of 60 votes required to end debate, the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.

The committed minority would have to be at the Senate around the clock, ready to hit the floor for a vote to continue debate. It would impose a physical and political cost on the minority prolonging debate rather than on the majority seeking to end it and get to a simple-majority vote. He hopes that would limits its use to the extraordinary case.

This also offers a nice example of how default rules operate and how altering a default alters conduct and procedure.

Infield flies, triple plays, and multiple outs on the same guy

A crazy play in Monday's Twins-White Sox game (video in story; H/T: Allan Erbsen at Minnesota): The Twins attempted to turn a triple play off a dropped "humpback liner," but messed up and ended up with one out.

White Sox have bases loaded, none out. Batter hits a low-flying flare behind second. The second baseman drops the ball (perhaps intentionally ) and has it scramble away from him. The runner on second starts to go, then retreats to second. The second baseman flips it to the shortstop covering second who catches the ball while standing on the base. He then throws to the first baseman, who tags the runner on first retreating, while the batter stands on first. The first baseman throws to second, where the runner there beats the tag. They then thrown to home plate (after a discussion), where nothing is happening.

After umpire consultation, the result: The batter is safe at first. The runner on first was out, the remaining runners are safe where they were. One out, bases still loaded. What happened after jump.

No infield fly. The ball was not hit high enough (it lacked the necessary parabolic arc). This is the tricky play that umpires and players struggle with. I would guess the runner on second retreated on a belief that the rule had been invoked or the ball was going to be caught. But it clearly had not been. One announcer started talking about this, without acknowledging how low the ball was hit.

It appears the Twins second baseman intentionally dropped the ball, hoping to start a double (perhaps triple) play. Or he closed his glove too quickly, which happens. But this looks pretty intentional. If the umpires called that, the batter would have been out and the play dead. This play illustrates the need for the rule--the runner on second retreated expecting the ball to be caught and was hung out to dry when the ball was not caught. This is a pure anti-deception rule. The other announcer picked up on this.

Having gotten away with the intentional drop, the second baseman's plans were foiled because he was unable to play the drop cleanly off the ground and it skittered away from him. This gave the batter sufficient time to reach first.

The Twins still could have gotten a double play around second base had the shortstop covering caught the ball and tagged the runner before stepping on the base. Once the ball fell (and intentional drop not called), the runner on second was forced to advance and retreating to second was not an option; he could have been tagged out even if standing on second base, which no longer was a "safe" base for him. But by stepping on the base first, the infielder put out the runner who had been on first; the runner on second was not forced to advance and could return safely to his current base.

The first baseman erred by tagging out the runner on first attempting to retreat, who already was put out on the force at second. In essence, the Twins put out the same baserunner twice--kind of a double play, I suppose. But the first baseman had no other option, since the batter had reached first safely.

Presuming the second baseman dropped the ball intentionally, he might have been looking for a triple play in two ways.

    1) Throw to the shortstop to tag the runner at second, then tag the base, then relay to first to get the batter; had he played the ball cleanly off the ground, this might have worked.

    2) Throw home to force out the runner on third, then throw to third to force the runner on second, then throw to second (shortstop covering) to force the runner on first. This would have been a 4-2-5-6 triple play, which the author of the linked MLB article says happened once, in 1893 between the Brooklyn Grooms and an older version of the Baltimore Orioles. This also would have been a clear option, since the play was right in front of the fielder when he picked up the ball.

Is it any wonder lawyers love baseball?

Separation of powers, separation of parties, and subpoena enforcement

Following on Monday's post about the D.C. Circuit holding the House lacked a cause of action to enforce a subpoena: I mentioned that Congress could fix this by enacting a statute creating a right to sue. But that effort would offer an interesting test of the Levinson & Pildes "separation of parties, not separation of powers" thesis.

The President would likely veto any such bill. He will not want to subject himself and the executive branch to subpoena-enforcement actions. And he will want to retain control over subpoena enforcement actions, through DOJ.

The question then becomes whether Congress will override that veto. A legislature committed to separation of powers--and the Madisonian conception of ambition counteracting ambition--would override the veto, asserting its institutional prerogatives against executive recalcitrance. But Congress has been interested in checking the executive only when he is from the opposing party. So the question is whether sufficient Republicans in both houses would override a Trump veto or sufficient Democrats in both houses would override a Biden veto. And the answer to that is not clear. Perhaps each party will play a long game--"override my co-partisan President now so the power exists when the opposing party is in the White House." But the answer is not clear.

D.C. Circuit has a busy day

As has been widely discussed, today is Judge Griffith's last day on the court, so it wanted to get some things out.

First, the en banc court in an 8-2 per curiam denied Sullivan's Michael Flynn's petition for writ of mandamus, concluding that Flynn had an adequate alternative remedy via district court proceedings on the motion (which may result in dismissal) or appeal or further mandamus of any district court decision. The court also declined to order the case reassigned to another district judge. Griffith wrote a short concurrence, emphasizing the purely legal (rather than political) nature of the dispute in the case.

Second, Griffith wrote for a 2-1 panel that the House (held by the en banc court to have standing to sue to enforce a subpoena against Don McGahn) could not sue to enforce because it lacked a cause of action to sue. Neither Article I (the source of the right to subpoena information), equity, nor the Declaratory Judgment Act provides an existing cause of action. Congress can fix the problem by enacting a statute creating a right to sue. This confirms why, as I wrote following the en banc decision, standing is such a colossal waste of time. It also reflects a D.C. Circuit (and perhaps Supreme Court) that seems determined to push the House to start fining and jailing witnesses who refuse to comply with subpoenas by cutting-off the civil-suit alternative. Like its predecessor, it may not withstand en banc review.

Judges Rogers dissented, arguing that Art. I and the DJA provide a right to sue. She continues to argue there is jurisdiction over the action under § 1331, a point the majority found unnecessary to address. McGahn argued there was no jurisdiction over an action by the House because no statute grants that jurisdiction, while  § 1365 grants jurisdiction over actions by the Senate. The implication is that § 1365 provides the sole basis for jurisdiction in actions by the Senate, superseding § 1331. And since there is no House counterpart to § 1365, the House cannot rely on § 1331. But this ignores the plain text of § 1331, which gives jurisdiction over anything that arises under, without Congress having to do more. As Rogers pointed out, § 1365 was enacted when § 1331 had an amount-in-controversy requirement, so a separate statute was necessary to give jurisdiction over all possible actions. Many separate jurisdiction grants were enacted for similar reasons. But since Congress eliminated the AIC requirement in 1980, none has been read as anything more than vestigial and certainly not as precluding § 1331.

Palin lawsuit against New York Times continues

Sarah Palin sued The Times over an editorial describing a link between the shooting of Gabby Giffords and Palin's PAC's publishing a map featuring gun sights "targeting" Democratic districts. The case has a convoluted procedural history. The district court held an evidentiary hearing on a 12(b)(6) motion seeking information to aid the plausibility analysis, then granted a 12(b)(6); the Second Circuit held that the evidentiary hearing was improper, then reversed the order granting the 12(b)(6).

The district court on Friday denied summary judgment to both parties. Palin had moved, arguing that stare decisis on constitutional issues is less rigid and that actual malice should not apply in the changed factual and media circumstances of the 55 years since New York Times. The court made quick work of rejecting that argument, explaining the difference between horizontal and vertical stare decisis and dropping the cute line that "binding precedent . . . does not come with an expiration date."*

[*] Usually.

The court denied the defendants' motion. It concluded that a reasonable jury could find the editor (and thus the paper) acted with actual malice as to alternative, defamatory meanings of the words in the editorial and actual malice as to the falsity of that alternative meaning. This is an unusually (although arguably appropriately) forgiving view of actual malice. The court sounds at several points as if it believes the evidence favors the defendants and does not believe (by clear-and-convincing evidence) they acted with actual malice. But the court is conscious that the weighing of evidence is not appropriate for summary judgment and must be the subject of a trial.

3d Circuit reveals division on union clawbacks

After Janus v. AFSCME declared invalid union agency-fee statutes as violative of the First Amendment , the next question became whether the non-members could clawback frees from within the past 2-3 years (within the statute of limitations). The Seventh, Second, Sixth, and Ninth Circuits said no and without dissent, relying on some form of good-faith defense to § 1983--because the unions believed the fees permissible under state law and judicial precedent.

The Third Circuit joined the chorus in an action against the Pennsylvania Teacher's Union, but  revealed the first deep divides. Judge Rendell adopted the prevailing view of a good-faith defense, along with principles of equity and fairness, to preclude liability where a private actor relied on prevailing law. Judge Fisher concurred in the judgment, relying on a historic principle that that judicial decisions declaring laws invalid or overruling precedent did not generate retroactive civil liability. And Judge Phipps dissented, arguing that neither defense existed at common law, so the actions to recover past fees should proceed.

Curious to see if this issue makes its way to SCOTUS before the Court fully pursues qualified immunity.

Bad Legal Takes and the writ of erasure fallacy

Moderate Mentality reminds us that the federal flag-desecration law remains on the books, because a decision declaring a law invalid and unenforceable does not erase it from existence. So, yes, MM, federal officials could use closed-circuit TV and facial-recognition software to try to hold people accountable. As long as those officials do not mind losing in court and being made to pay damages and attorney's fees.

NBA players try a different peaceful protest (Updated Aug. 28)

Vice President Pence's RNC speech this evening was to include criticisms of professional athletes for kneeling during the National Anthem. The criticism has always been disingenuous nonsense--critics demand peaceful protest, then tell the players they are peacefully protesting the wrong way.

So the players will try something new tonight: Not playing. The Milwaukee Bucks announced a boycott of this evening's Game 5 of their opening-round series. The Boston Celtics and Toronto Raptors discussed doing the same in their second-round game scheduled for Thursday. So the NBA canceled all games. No word on whether the Milwaukee Brewers (who have a home game Wednesday evening) or MLB will follow suit, although I doubt it. Update: I spoke too soon and happily stand corrected. The Brewers canceled their game. Other MLB teams are discussing doing the same, including the Mariners, who have the most African American players in MLB.

So what will be wrong with this form of peaceful protest? Does not playing disrespect veterans and troops? Is it wrong to politicize sports? Will Pence change his speech to decry cancel culture while calling for boycotts of this "politicized" NBA? Will everyone admit that the objection is to the message--that police are behaving badly--and nothing more neutral than that? Stay tuned. (Updated: No way on that last one).

August 28 Update: The NBA playoffs will resume Saturday. The league and union agreed to establish a social-justice coalition focused on voting, civic engagement, and criminal-justice and police reform. It also calls on teams that own their arenas to work with local election officials to convert the arena into a polling place. It is interesting that the push for racial justice has swerved into voting rights--recognition that voting rights are as endangered and that everything else happens only if people can vote and vote for officials who will pursue that agenda.

Nomenclature and judicial review (Updated)

The erroneous nomenclature that courts use in describing constitutional review contributes to common misunderstanding. Case in point: The Fourth Circuit decision affirming the convictions of two white-supremacist Charlottesville protesters under the Federal Anti-Riot Act, while declaring invalid certain portions of the statute as inconsistent with Brandenburg. The court talks about "invalidating" the statute, while commentators speak of the court "striking down" or "throwing out" the law, in whole or in part.

But the court did not do anything to the statute or those provisions of the statute--they remain on the books and they remain part of federal law, not erased or thrown out.

A more accurate description of what happens also would be cleaner: The court held that those provisions could not be enforced against these plaintiffs because doing so would violate their First Amendment rights, then affirmed the convictions because their conduct violated other provisions that could be enforced consistent with the First Amendment. The same is true of discussions of severability. The court does not sever some provisions from others--eliminating some and keeping others--because the entire thing remains on the books. I suppose what we call severability could be a way of asking whether the court can enforce some provisions and not others or whether the Constitution prohibits enforcement of all the language in the statute. Or it could be framed as Henry Monaghan described overbreadth--the presence of some constitutional defects means the statute cannot be applied, because there is a right to be convicted only under a constitutionally valid statute.

Either way, it would be cleaner to think about courts applying or not applying some provisions, rather than courts erasing them from existence.

Update: Zachary Clopton (Northwestern) reminds me that my discussion sounds in the debate between Justices Kavanaugh and Thomas described in a footnote in AAPC, which I wrote about after the decision and which Zach wrote about in Yale J. Reg. I think Thomas would agree with the approach I describe. Kavanaugh is correct in AAPC that future enforcement of the invalid provisions will be barred, at least in the Fourth Circuit, as a matter of precedent.

On further thought, this cases illustrates why injunctions should be particularized and why precedent does the real work. The constitutional issue arose in a government-initiated enforcement action--a criminal prosecution against these individuals, who then attempted to defeat enforcement by arguing that the law is invalid and thus cannot be enforced against their conduct. No one believes that the judgment in this case applies to anyone other than the defendants or that the government violates the judgment if it attempts to enforce the "invalid" provisions against someone else; in fact, the only thing the judgment does here is affirm their convictions. The prospective non-party effects of this decision come from the opinion, operating through precedent and stare decisis to require any court within the Fourth Circuit to dismiss a future attempt to enforce those provisions. So I return to my argument that a pre-enforcement injunction anticipates the enforcement judgment--and if the latter is limited to the parties, so is the former.

Scholars' letter on Harris eligibility

Here.

Birtherism 2.0 more insidious than Original Recipe

Counter-arguments from top-line conservative scholars will not be enough to slow this tide. Original Recipe was based on a provably false factual premise--Obama was not born in Hawaii--that allowed it to be dismissed as the ravings of people living in an alternative factual reality. But 2.0 is not about a fact--no one questions that Harris was born in California. Instead, 2.0 is based on a legal argument; however weak and contrary to every judicial and scholarly position the argument, editors (such as those of Newsweek) can rationalize it as a point of scholarly disagreement and a constitutional debate "unlikely to fall quiet any time soon." And the President, editors, and others will bolster the legal position--however descriptively incorrect--by argumentum ad verecundiam, pointing out that Eastman is "very highly qualified and talented" and that he clerked for Justice Thomas and used to be a dean.

Two thoughts on responding. First is to recognize that this is a legal rather than factual dispute. The response cannot be "Eastman is wrong and Harris is eligible because she was born in California;" no one disputes that.* Eastman's argument is that she is ineligible even thought she was born in California, because she was born to non-citizen parents. Second, the conversation must emphasize the difference between descriptive and normative arguments. Descriptively, the prevailing state of current law is birthright citizenship, which makes Harris eligible. Eastman (and soon Trump) is making a normative argument about what he believes the law should be. Any conversation must show why that vision is wrong.

[*] For the moment. Once the fever swamp gets hold of this, who knows where she will have been born or what explanation there will be for why California was not properly admitted to the Union.

Two questions. First, will we see a spate of lawsuits (as we did in 2008) challenging Harris' placement on the ballot, which will be dismissed for lack of standing. Second, if Biden/Harris wins, do they get an OLC opinion on the subject?

JOTWELL: Steinman on Jacobi & Sag on laughter at SCOTUS

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019), analyzing the frequency of laughter during SCOTUS arguments and its dark side as a "weapon of advocacy."

Podcasts on cancel culture

Since I have been writing about cancel culture this week, here is an episode of Noah Feldman's Deep Background podcast, featuring Osita Nwanevu of the New Republic discussing cancel culture and why it is not a threat to free speech. On that note, Nwanevu debated Yascha Mounk on the subject on Slate's The Gist.

Standing for nothing

I agree with the majority of the en banc D.C. Circuit that the House has standing to enforce its subpoena against former W.H. counsel Don McGahn.

But it reaffirms how little sense standing makes as a threshold Article III inquiry. As Marty Lederman notes, more important questions remain about whether the House has a cause of action, whether there is testimonial immunity, and other executive-privilege objections to the subpoenas. But we now have spent 17 months fighting over this issue and are no closer to a resolution before January 3, when Congress ends, the subpoena expires, and the whole mess becomes moot.

Worse, some of the arguments and disagreement between majority and dissent conflate standing and merits, a common and unavoidable problem. For example, McGahn and Judge Griffith's dissent argue that the House lacks standing because the case raises separation of powers problems and separation of powers underlies standing (sort of). But those stand-alone S/P concerns go to the merits of the case--to whether the subpoena or something sought through the subpoena is valid or whether the executive/legislative balance protects against some disclosures. The result is an attempt at double-counting: Using the possible failure of the House subpoena on its merits with what is supposed to be, but is not, a distinct question.

The court also splits on questions of legislative/executive cooperation and bargaining and perverse incentives that arose in Mazars. The majority argued that without judicial enforcement, the executive would have no reason to bargain, because the House would have no alternative means to ensure compliance (the executive may not pursue contempt against itself and inherent contempt authority has fallen into disuse). The dissent argues that the House will run to the courts rather than negotiate (this is the same argument the Chief Justice used in Mazars).

Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.

More cancel culture and counter-speech

Efforts continue to define and defend criticisms of cancel culture, beyond "I know it when I see it" or "Canceling for me but not for thee." Jonathan Rauch takes a crack in Persuasion (free registration required), identifying six warning signs, the presence of some or all suggest canceling:

• Punitiveness, in that the goal or effect is to cost a job or other opportunities.

• Deplatforming, which includes disinvitations, demands for retractions, and shout-downs.

• Organization

• Secondary Boycotts

• Moral grandstanding, through "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric.

• Truthiness

Punititiveness perhaps helps. But there must be circumstances in which someone's deeds or expression are so egregious that calling for his removal from a job or position or platform should be fair game, such that non-governmental actors can decide to remove him from their circle of discourse and engagement. The person remains free to speak, but private persons need not listen, nor provide him with a platform. And private companies can choose not to retain him as an employee, private consumers can choose not to do engage in business with him, and people and entities in general can elect not to associate with him. If that is permissible, then the dispute is not punitiveness or deplatforming, but where to draw the line. We can identify ridiculous overreactions. But some situations are not ridiculous overreactions.

Five of Rauch's categories involve forms or manners of expression and thus of counter-speech. These purportedly neutral rules perpetuate the problem of the preferred first speaker--they impose unique limits on the type of speech regarded as "legitimate" when used by those who object to a speaker. For example, Rauch does not call for an end to all "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric, only that used in response to someone. He rejects shout-downs, thus obligating counter-speakers to engage civilly and openly through dialogue in a way that original speakers are not obligated to do. A categorical line between organizing (rallying many people to a cause, which is somehow a bad thing) and persuading imposes an obligation of reasoned discourse not placed on an original speaker.

Rauch does treat everyone the same as to truthiness--it is as problematic when President Trump lies and distorts as when left-leaning groups lie and distort. But then we are not talking about cancel culture as some unique threat to free speech. The threat is lying, whoever is lying and wherever that person stands in the exchange process.

These and other efforts bring me back to Chief Justice Rehnquist in Hustler v. Falwell: "If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description [cancel culture] does not supply one."

Judge Reeves on qualified immunity

An opinion to behold from Judge Reeves of the Southern District of Mississippi. (H/T: Michael Masinter). the 72-pager includes a lengthy history of § 1983 from passage in 1871 to the creation of qualified immunity; it calls out racial bias in policing and in society at large (especially in Mississippi) to explain why a search was not consensual. It calls out appellate judges for creatively interpreting Reconstruction statutes to protect older white men while failing to protect African-Americans against government misconduct. It calls directly and explicitly on the Supreme Court to do something (while admitting to not knowing what that should be). And it uses a cute three-point Star Wars allusion to organize the opinion ("§ 1983: A New Hope;" "Qualified Immunity: The Empire Strikes Back;" and "The Return of § 1983"). All while granting the officer qualified immunity for an egregious Fourth Amendment violation (traffic stop and lengthy search with no cause to be found) because he has no choice under current law.

For those who believe in such a thing (I don't), is this judicial activism? Does the judge's role, especially a lower-court judge, include railing against the state of the law, its horrific incorrectness, and its negative effects, especially in such sharp terms? Judge Reeves "applied the law rather than making the law," so he behaved consistent with that typical definition. An opinion is an essay having no direct force or effect. But should judges use these essays for such a cri de coeur?

Debate: Free speech v. Cancel culture (Updated)

Ken (Popehat) White for the position that "cancel culture" is a cynical ploy to undermine counter-speech v. Greg Lukianoff (of the Foundation for Individual Rights in Education) for the position that the real source of protection comes from "free speech culture," which means a culture of accepting other people's views and going along for the ride.

Unsurprisingly, I agree with White. Critics of cancel culture are imposing norms on "more speech" that they do not impose on the speech being rebutted and are essentially insisting that more speech not be too harsh. Lukianoff makes the good point that a culture of free speech is as important as formal legal protection for free speech. But he never deals with White's argument that much of what is derided as cancel culture is counter-speech, including many of the outrageous examples he offers. Lukianoff emphasizes the heralded legal principles "Sticks and stones" and "to each his own," which are possible responses to obnoxious speech. But there is no reason they should be the only responses to obnoxious speech.

Lukianoff kind of proves White's point with his requests: Don't call people hypocrites, welcome temporary allies, and don't lump free-speech advocates (himself or Nadine Strossen) with cynical partisans (Charlie Kirk). The last is well-taken, although most serious free-speech advocates do not do that. But the last is inconsistent with the first, which seems to require us to accept Charlie Kirk's support for free speech rather than recognizing its hypocrisy. In any event, Lukianoff's argument is about policing speech, about declaring some expression out of bounds. His arguments never answer that concern.

Update: As if on cue: Kelly Loeffler--Senator and senatorial candidate from Georgia, co-owner of the WNBA Atlanta Dream, and critic of BLM and kneeling basketball players--cries "cancel culture" because WNBA players wore t-shirts supporting her opponent in the coming election. It is difficult to imagine anything more central to the First Amendment than speech saying "Vote for X." Can it possibly lose protection because spoken in response to Loeffler's statements about about BLM and the flag?

Meanwhile, Auburn is investigating a (non-tenure-track) faculty member for "fuck the police" tweets and a Republican congressman is calling for him to be fired for anti-police hate speech. Proving White's point that there are hypocrites and grifters.

Competing views on the Biskupic articles

Josh Blackman sees this as a threat to the institution that the Chief must repair (through some actions that I am not sure the Chief, as "first among equals," can do) or resign. Dan Epps argues that more transparency is a good thing. Take your pick or land somewhere in the middle.

I will share and concur in a comment from the Conaw List Serv that the Biskupic stories were interesting, but not earth-shattering--some of it could have been gleaned from the opinions themselves or from what we already knew about the Court's operations.