PrawfsBlawg

Undermining district courts

Speaking of SCOTUS' Order staying the injunction in McMahon, a WH spokesperson said the Court "once again recognized what radical district court judges refuse to accept--President Trump, as head of the executive branch, has absolute constitutional authority to direct and manage its agencies and officers." Not that the majority cares--obviously--but this statement illustrates every problem with the Court's approach to these cases and orders.

The top of the judicial hierarchy is actively undermining the lower levels it is designed to lead. By summarily rejecting district judges' hard work, the Court tees up the administration to criticize district judges as radicals who disobey or try to make-up law out of personal opposition to Donald Trump and whose orders the government  therefore can disregard because only SCOTUS matters. This is not new. Despite John Roberts's peans to district judges in the occasional year-end report, a tenor of disrespect for (beyond mere disagreement with) district judges burbles under the surface with SCOTUS. Many legal doctrines (especially procedural stuff, such as pleading rules or everything surrounding qualified immunity) reflect an unstated disrespect for district judges, or at least their ability to achieve what SCOTUS wants.* Some of this enhances the Court's power (the theme of Lemley's Imperial Supreme Court and of Justice Kavanaugh's CASA concurrence). But it is leaking out to the executive--SCOTUS is giving its imprimatur to those outside the judiciary to criticize and ignore lower courts as out of control. And despite Roberts' umbrage when law professors criticize judges, he remains silent when the President--who, according to his spokesperson, has "absolute" power in certain areas--does it.

[*] I always return to Scalia's snark about "the discretionary decision of a single district judge" preventing the AG and FBI director from doing their jobs.

The Court exacerbates this by not explaining or justifying the order. The failure to explain obviously gives the administration opportunities to score propaganda points by inventing an explanation. The Court did not say the President has absolute authority over agencies, which is not a true statement of law. But the absence of a counter-narrative from the Court allows the executive to fill the space with a justification that becomes true.* But SCOTUS' silence allows the Administration to use those false reasons as the basis for criticizing and ignoring district judges--district courts refuse to accept or respect the law and rightful presidential power as SCOTUS understands it.

[*] Sure, the statement may prove if the Court eventually rules against the administration. But by then we will not have a functioning Department of Education, so no one will care.

SCOTUS: Trump can burn down the government, for now . . . and later (Updated)

I have not particularly celebrated lower-court decisions preliminarily enjoining enforcement of Trump's various unlawful stuff. Because I have anticipated that SCOTUS will stay the PI and allow Trump to follow through on whatever plans the district court has held violate the Constitution and federal law pending a final judgment. And that has proven the case, according to Steve Vladeck, in all 15 of the Administration's requests for emergency relief on which the Court has ruled.*  The latest is McMahon v. New York, an unsigned unexplained ruling staying an injunction preventing DOE from firing half the agency employees, expressly as the "first step on the road to a total shutdown" of the department and despite district court findings that the cuts mean the department cannot carry out its statutory duties.

[*] The Court has provided a majority opinion in three (including CASA, in which the Court took the unusual step of holding argument) and offered no explanation at all in seven. 

So this is over; Trump can do what he wants, for now. And since the damage now is irreparable, he can do what he wants forever. The courts cannot stop anything because SCOTUS has made itself the only court that matters at the earliest possible moment and it is not inclined to stop the Administration from doing anything until and unless the case ends in a final loss for the government. The status quo to be preserved with the balance of equities is "the administration can carry out whatever policies it chooses until a final judgment declaring those policies invalid." That it will be too late to unwind the damage if the administration's actions prove unlawful seems to be beside the point. I assume the majority has made a back-of-the-napkin merits calculation that government will win, so there is no need to wait. Of course, by not even trying to explain (depriving us of the opportunity to, in Justice Barrett's words, "read the opinion") we have no clue. All that remains is inconsistency between this case (stay the injunction of a Trump policy) and the student-loan case (allow the injunction of a Biden policy to remain in place pending SCOTUS resolution).

Some things to watch:

• Will district judges continue to do the hard work of holding evidentiary hearings and issuing TROs and preliminary injunctions against obviously unlawful actions, knowing what is overwhelmingly likely to happen? Or will they leave the government action in place and proceed (as quickly as possible) to summary judgment and a final judgment? Will plaintiffs stop seeking preliminary relief, knowing all of this? This may reflect the final fallout of the imperial Supreme Court--SCOTUS "is hamstringing them by bypassing longstanding procedural and substantive rules and its own doctrine in order to reach out, take, and decide major legal questions that either are not presented at all or have not proceeded through the courts to establish a record." Update: Alternatively, maybe they follow Ann Lipton: "My vague hope is that lower courts hearing these cases will, when awarding interim relief, flat out say words to the effect of, "I get SCt has been rejecting these injunctions but they haven't explained their reasoning, so I remain guided by existing precedent."

• I wonder what Sam Bray makes of this. He argues that preliminary injunctions should not be merits previews but a way to protect a court's "remedial options," with a rebuttable presumption in favor of the plaintiffs. Clearly if DOE no longer functions (or even exists) by the time of final judgment, the courts have lost remedial options.

• Garrett West argues that purely nullifying constitutional provisions should not form the basis for offensive litigation (because they do not impose constitutional duties); these provisions nullify and thus exist only as defenses. In a soon-to-be-submitted article, I consider the problem of structural provisions that never trigger adjudicative proceedings and thus the opportunity for defensive nullification. This case illustrates that situation: The separation-of-powers and Take Care violations here play out in the real world--delays in processing paperwork to accept students receiving student loans, causing schools to be unable to enroll students or provide services; delays in receiving necessary funds and thus being able to provide services; etc. None of this happens within an adjudicative proceeding and an opportunity to raise the Constitution as a defense.

Interpleader and exclusive private enforcement

In the early days of S.B. 8 and all it has wrought, Teddy Rave (Texas) proposed a creative path to federal court for potential S.B. 8 defendants--statutory interpleader. The holder of a definite fund or res places the fund in the court, which litigates and resolves disputes over proper ownership among competing claimants to that fund. Dr. Alan Braid--a Texas doctor who announced in the Washington Post that he had performed a post-heartbeat abortion, triggering three lawsuits--tried it. He deposited $ 10,000 (the minimum amount recoverable for one violative abortion) in the Northern District of Illinois (where one of the S.B. 8 plaintiffs resides) and asked the Court to decide which of the three claimants should get the money--or to decide that none should get it, because S.B. 8 is constitutionally invalid.*

[*] Dobbs complicated the case, since the substantive ban on early abortions now is valid. Braid shifted his constitutional arguments to challenge S.B. 8's procedural mechanisms, which I am not sure should be litigated in this posture.

The Seventh Circuit approved the process, sort of.*

The court acknowledge that this is not the typical interpleader, which involves a disinterested stakeholder and a fund such as an insurance fund or bank or estate assets. But Braid's claim fits the deliberately broad statutory language for claims "in the nature of interpleader." This can include money arising from a tort or statutory violation on which the stakeholder is not neutral-and-disinterested and on which the stakeholder resists any liability to any of the claimants on the fund. Braid's potential liability was definite enough (even if not-yet determined)--he has a single pot of $10,000 which only one of three competing claimants can recover, on which claims exceed the value of the fund (since all seek at least $ 10,000 but only one shot of $10,000 is recoverable), and on which Braid contests his liability and responsibility to pay anyone.

Of course, it did not matter that this could fit interpleader--the court of appeals sua sponte raised and abstained under Colorado River. The federal action lacked "formal symmetry" with the state action--only one federal defendant had an ongoing state claim, the federal action is more efficient, and S.B. 8 imposes problematic procedures in state court. But they were parallel enough--similar parties litigating similar issues (the validity of S.B. 8). And enough of the 10 Colorado River factors weighed heavily in favor of abstention--the centrality of Texas-law issues to both actions, the fact that state courts obtained jurisdiction first, the risks of piecemeal litigation and conflicting judgments, and the appearance of forum-shopping. The court was not swayed, nor should it have been, by arguments about S.B. 8's defective procedures.

Final thoughts:

    1) I still think this is wrong as to interpleader. That process is designed to resolve competing claims over an existing fund, not to litigate liability on a state-law claim that might cause the fund to come into existence (or not). Otherwise, every tort defendant facing multiple damages actions in state court would try this move.

    2) The limiting principle here might involve an S.B. 8 quirk. Multiple "any person" plaintiffs can sue over one abortion but a defendant can pay only one judgment for one violative procedure. Thus, unlike three tort plaintiffs recovering for their damages, three S.B. 8 plaintiffs fight over one statutory damage amount. Ironically, that limiting principle allows a state to enact S.B. 8 copycat and preempt this strategy by allowing multiple recoveries for one violation--cutting off interpleader (because the fund is less definitive) and making life more difficult for the targets of the law.

    3) A further irony: Rocky and I argued that singular recovery was one (of three) keys to the argument that S.B. 8 plaintiffs act under color and are subject to § 1983 suit. Singular monetary recovery means the process looks more like criminal prosecution (a traditional-and-exclusive government function) than ordinary tort litigation--a singular sanction against the wrongdoer rather than damages to make an injured person whole. So a state shifting the recovery scheme to avoid interpleader might also avoid the under-color problem, all while making life worse for the targets of the law.

    4) It is hard to imagine any attempted interpleader action that will not satisfy the same Colorado River factors, requiring the federal court to abstain. The interpleader requires the same initial steps--individual violates the statute and gets sued in state court under state law. There always will be parallel litigation to the federal action. State law always controls these parallel actions and the state-court action always will have been first-filed, two factors pushing towards abstention. The court thus opened the door to interpleader as a response to exclusive-private-enforcement regimes, but Colorado River makes it unlikely any person can avail themselves of that move.

Happy 4th

Trapped at home during COVID summer (2020), we marked the holiday with a family reading of the Declaration of Independence, along with Frederick Douglas's "What to the Slave is the 4th of July," as read by James Earl Jones (of course). It became a mini family tradition. Join us after the jump, hopefully not for the last time.

 

 

 

And because it fits this year:

 

 

Speed dial

I am not a fan of Justice Sotomayor's writing, even when I agree on the substance--it comes across as over-wrought without being lyrical. But check out the final line of her dissent from the Court's "clarification" of the third-country removal order--"Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial." That's a great line.

In the wake of Justice Kavanaugh's CASA concurrence, this order shows the majority's palpable contempt for district judges.* Not just SCOTUS supremacy, but contempt. They proceed as if the district court decision--and, more importantly, the remedy it grants and the monitoring of that remedy--is less than a full order of a court of competent jurisdiction that parties (or at least the government) must obey subject to appellate review. District court decisions are preliminary pronouncements, an inconvenient-and-inefficient, unfortunately necessary speedbump on the way to SCOTUS' meaningful ruling. And the executive need not obey or respect them as anything more than a preliminary recommendation. Worse, the Court seems increasingly likely to reject that "recommendation."

[*] Not a new phenomenon. Recall Justice Scalia in the Iqbal argument:

Well, I mean, that's ovely, that -- that the -- the ability of the Attorney General and Director of the FBI to -- to do their jobs without having to litigate personal liability is dependent upon the discretionary decision of a single district judge.

The latest episode of Preet Bharar's Stay Tuned With Preet features Melissa Murray, Trevor Morrison, and Jack Goldsmith. In discussing CASA, either Trevor or Jack (can't remember who) argues that SCOTUS wanted to get the Administration off the backs of district courts, to tamp down on the accusations of lawless judges. Perhaps. But the Court seems to be offering the Administration reasons to not take trial courts and their orders seriously or treat them as worthy of respect in the interim.

Title VI action v. Haverford College dismissed

Here, this time with prejudice, because plaintiffs largely failed to clean-up the press-release pleading the court dismissed in January. There also is this line at the end of the opinion--"Oral argument was suffused with emotional rhetoric, giving this Court little comfort in the prospect for further refinement of facts adequate to support a claim," a strong warning about the perils of performative litigation.

The court's analysis reflects the Ben Eidelson/Deborah Hellman arguments about why plaintiffs may struggle to plead Title VI claims. In particular, the court held a firm line that: 1)  the college's failure to silence offensive-but-constitutionally protected speech (which was true for much of the speech at issue) cannot form the basis for Title VI liability and 2) the college's good-faith efforts to balance competing interests (such as allowing a sit-in to run its course) cannot establish deliberate indifference.

The court did find the plaintiffs sufficiently pleaded a breach-of-contract claim based on Haverford's alleged failure to investigate and resolve bias allegations under college policy, although only for nominal damages. Two thoughts on this. First, it shows the benefits of small-bore litigation efforts. Rather than a massive effort to litigate antisemitism writ large under a statute not necessarily designed for those purposes, plaintiffs may succeed by showing a discrete non-federal violation as to them.

Second, plaintiffs face a strategic choice. They likely want to appeal the Title VI dismissal. But the court's decision is not final because the contract claim remains. The court might certify the order as final as to the Title VI claims under FRCP 54(b). They have a good argument--Title VI forms the heart of the case and it would benefit the litigation process to determine whether plaintiffs plausibly pleaded those claims (that is, whether the district court was wrong) now, rather than waiting. Alternatively, plaintiffs could voluntarily dismiss the contract claims--which they likely do not want to do, as those represent their best hope for any recovery right now. Interestingly, the court did not (at least in this order) decline supplemental jurisdiction over that state claim, another way of creating finality.

Trump plays procedural games, wins procedural prizes (Updated Twice)

Donald Trump voluntarily dismissed his BS lawsuit against the DesMoines Register and pollster Ann Selzer over her erroneous final-weekend poll that showed Kamala Harris winning Iowa. Some people are using this as another TACO and "See, we must fight Trump" moment. Turns out it is more procedural.

Trump sued Selzer, her company, and the Register in state court. I had not paid much attention because the suit is nonsense and the Register and Selzer (represented by FIRE) seemed ready to litigate a strong First Amendment position

I also assumed it would stay in state court because Selzer and her company are Iowa citizens. But they snap-removed. Trump then filed an amended complaint adding two Iowa politicians as plaintiffs (destroying diversity) and moved to remand. Last month (I missed this), the court denied the motion. First, the court held snap removal is permissible. Second, the court denied leave to amend the complaint to add the non-diverse plaintiffs. Although Trump filed the amended complaint within the matter-of-course time period of FRCP 15(a)(1)(B), under circuit precedent (and Wright & Miller) a plaintiff must seek leave when adding a new party, especially when adding the party destroys diversity jurisdiction. Leave to amend was improper because the new plaintiffs are no indispensable and were added for the explicit purpose of destroying jurisdiction and Trump will not be prejudiced by having to litigate alone. With the Iowa plaintiffs not in the case, jurisdiction remained and the court had no basis to remand.

So I imagine Trump dismissed this action with plans to refile in a different state court with the Iowans as plaintiffs. Then some things to watch: 1) How quickly can they serve Selzer and the company to preclude another snap removal; 2) Selzer may remove and try to argue that the Iowa plaintiffs are fraudulently joined; 3) Is there some other basis on which to stop this type of gamesmanship?

Update: Later Monday, the Register moved to strike the Notice of Dismissal. First, a petition to appeal the denial of remand is pending in the Eighth Circuit (the district certified the snap-removal issue as a controlling issue of law). Second, Trump seeks to dismiss the federal action to pursue the same case (with the two Iowa plaintiffs added) in a different court (Trump filed that new lawsuit in Iowa state court Monday). The combination raises two problems. A party cannot voluntarily dismiss through FRCP 41 if an appeal, including a still-unresolved request to appeal, is pending. And the combination of issues reflects Trump's effort to voluntarily dismiss to avoid an adverse ruling (possible affirmance of the remand issue) and to obtain a more favorable forum, both grounds for a court to reject voluntary dismissal. 

According to the Register, timing matters. Iowa enacted an anti-SLAPP statute that takes effect on Tuesday but that does not apply retroactively. Trump made these moves now to get out of federal court and have the sole action in state court filed before the SLAPP statute takes effect.

Stay tuned.

Updated Again (July 3): The district court struck the notice of voluntary dismissal and declined to dismiss the action. Because an aspect of the case is in the court of appeals, the district court cannot dismiss the action unless Trump takes steps to have the appeal dismissed, which he has not done.

This seems a momentary blip. Trump will seek to have the appeal dismissed, then refile his voluntary dismissal. While Trump is clearly trying to forum shop, I would be surprised if the federal court continues to resist dismissal.

But things might get fun if the trial court refuses to dismiss. Trump might then ask the federal court to abstain under Colorado River, although I doubt a federal court that refuses to voluntary dismiss would exercise discretion to abstain. That leaves us with parallel litigation and a race to the finish--whether with Trump as party to both actions or the state court action featuring only the Iowa plaintiffs (assuming they want to pursue litigation and are not in the case to destroy complete diversity). The defendants also might try to remove the new state court action and argue that the Iowa plaintiffs are fraudulently joined (which did not come up on the remand motion).

Again, stay tuned.

At least residents of Oświęcim, Poland pretended they didn't know

Disgusting.

Maybe those shouting that Zohran Mandami is a dangerous and unreconstructed antisemite will buy some merch when Trump follows through on his threats to send him there.

Until Paramount seized the trophy . . . (Updated)

It appears that institutions will stick together in response to Trump authoritarianism. Not by joining together in collective resistance, as one would hope. But by individually capitulating, thereby providing cover to the next institution to capitulate.

Yesterday was Penn. Today it is Paramount and CBS, which settled Trump's lawsuit arising from the "60 Minutes" interview with Kamala Harris. Paramount will pay $ 16 million to the Trump Presidential Library and agreed to release transcripts of future interviews with presidential candidates (which seems problematic as a free-speech matter), but will not issue an apology to Trump and the public.

Which is worse? I believe Penn takes the prize because of the targeted and personal nature of of the investigation and the settlement--it agreed to publicly hurt one person. But Paramount/CBS may have broader legal and political consequences.

Everyone knows CBS settled so the Trump Administration will approve the pending sale of parent company Paramount, making this look like a cash bribe.* While any Title IX action against Penn was open-but-winnable (it is not clear that Title IX prohibits trans-women from sports and certainly was not the case in 2021), Trump's case (asserting consumer-protection claims from media reporting and emotional-distress injuries) was frivolous as a matter of state law, before even getting to the First Amendment problems (which Bob Bauer highlights). And this (along with Disney's similar $ 16-million settlement of a suit over ABC News reporting) has set the market and incentivizes the Trump to repeat the play in the future.

[*] California and other Blue States have suggested opening bribery investigations. The Freedom of the Press Foundation has threatened a shareholder derivative suit.

CBS and the rest of the media are circling the wagons and pushing two narratives to make its move seem less craven. First is "let's move on," in a way that ignores future risks. Some within CBS news say it is good to put this behind them, while CBS News President Tom Cibrowski said it was important to block out the noise and move forward reporting the news. But that suggests they cannot and will not happen again the next time they report news that Trump does not like. Daily events show the likelihood this will happen again--he already has threatened outlets over reporting that bombing did not "obliterate"Iran nuclear program. Maybe Shari Redstone will have completed the sale and no longer will care. The rest of the journalism world should.

Cibrowski emphasized the no-apology piece of the settlement to suggest that CBS had not lost. But then we get this from Trump's legal team:

"With this record settlement, President Donald J. Trump delivers another win for the American people as he, once again, holds the Fake News media accountable for their wrongdoing and deceit," the spokesman said. "CBS and Paramount Global realized the strength of this historic case and had no choice but to settle. President Trump will always ensure that no one gets away with lying to the American People as he continues on his singular mission to Make America Great Again."

The second narrative is "most cases settle" (CNN's Laura Coates called it Paramount's "prerogative"), in a way that misrepresents what settlement entails, why this case settled, and what it means for journalism. Recall that pre-1960, the New York Times adhered to a no-settlement policy--it was willing to fight defamation actions on less-favorable legal terrain, accept any losses as the cost of doing the public-facing business of journalism, and never face the kind of "they settled because our case was so powerful" demagoguery of the Trump statement. When Southern officials pursued a defamation-litigation campaign over coverage of the Civil Rights Movement and sought judgments in the hundreds of millions, that strategy ceased to be tenable. Sullivan and its progeny reworked that legal terrain, making it more favorable to speakers and media defendants. Media outlets therefore could return to that no-settle strategy; the new legal regime better enabled them to prevail on the merits or take the cost of the rare loss. That legal terrain ensured (or at least made highly likely) that Paramount would have prevailed in Trump's lawsuit. Yet it voluntarily surrendered that strong legal position to secure its private corporate interests, the First Amendment and journalism be damned.

Update: Bauer writes that this is a project for law reform, although I cannot see what law reforms would solve this problem. Paramount had an arsenal of legal weapons and chose not to wield them. So did Disney/ABC. What additional weapons would have prompted these companies to litigate rather than fold? Many push for a federal SLAPP statute, although I do not believe that adds much that Twiqbal and Celotex do not provide. I would like to see a fee-shifting statute (or application of state fee-shifting in federal court). Again, however, if the driving factor is not the financial cost of litigation but the desire to stay in Trump's graces, these protections will not change media behavior. What other reforms would?

Penn wins the trophy for caving

When the story of institutional cravenness in this dark period is written, University of Pennsylvania will live in the Ninth Circle of Hell. Penn was the first to cut its leader loose for attempting to accurately explain free speech to demagogues. Today, Penn caved in a winnable Title IX investigation arising from the 2021 swim season in which trans woman Lia Thomas competed set records for the school (when everyone understood NCAA rules and Title IX to allow this). Here is the DOE announcement, which is as rhetorically repulsive as one would expect; here is the Penn statement, which is as dishonestly anodyne as one would expect.

Make no mistake from the vague and self-exonerative language: Penn's price is  the targeted, ritual, public humiliation of one known-and-named alumna. "We will review and update the Penn women’s swimming records set during that season to indicate who would now hold the records under current eligibility guidelines" means that the name of one person will be stripped from record books for doing nothing wrong other than living her gender identity (at a time when that was legal). We "will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time" means apologizing to people because they had to deal with one known-and-named alumna.

The Trump Administration has targeted vulnerable groups in various ways--immigrants, trans people, poor people, Muslims. This goes beyond that to target and hurt one person, by name.

Penn can claim that it "remains committed to fostering a community that is welcoming, inclusive, and open to all students, faculty, and staff." Cashiering an alumna who did nothing wrong but seek to compete and win for the school's benefit reveals the lie in that commitment. Trans sports participation is a "complex issue." Publicly embarrassing one person to save yourself the cost of a winnable fight is not a complex issue.

History of § 1983

Finally had a chance to read Medina v. Planned Parenthood, holding that Medicaid's free-choice-of-provider provision is not enforceable through a § 1983 action. The upshot is that Red states can block Planned Parenthood from Medicaid funds.

Justice Thomas writes a concurrence arguing that § 1983 has expanded beyond its intended use, especially given the statute's limited use in its early days (and generally pre-Monroe in 1961). Justice Jackson dissents (with Sotomayor and Kagan); she responds to the early-history point by mentioning the difficulties Black plaintiffs faced: physical threats of pursuing litigation, difficulty of finding a lawyer, racist juries, and problematic enforcement mechanisms.

It seems to me the better explanation is the state of constitutional law in the late 19th and early 20th centuries--the Constitution did not secure "rights, privileges, and immunities" to individuals, so there was no point in suing. Plessy in 1896 means most discriminatory policies were constitutionally valid. Slaughterhouse in 1873 rejected incorporation, meaning a state actor could not deprive a person of an RPI secured by the Bill of Rights. Thus, except for Lochnerian substantive due process, no one could bring constitutional claims against state officials; there was no reason to bother.

This suggests one theme of October Term 2024: Limiting public-law litigation by limiting the procedural devices through which that litigation occurs. We can situate Medina with CASA (obviously) and Lackey (preliminary injunctions do not make plaintiffs prevailing parties for attorney's fees). Some cases did go the other way, such as Gutierrez (allowing claims challenging DNA testing) and Williams (rejecting application of state-law exhaustion requirement to § 1983 claim in state court). Worth further thought.

Adversarial Litigation

Yes, the Trump Administration will oppose class certification in CASA and all the other challenges to Trump policies. That says nothing about the correctness of CASA and to treat it as such willfully disregards the nature of constitutional litigation. For better or worse, the system delegates constitutional review to courts in the course of resolving disputes between adverse parties who operate in an adversarial system. Subject to ethical constraints, DOJ attorneys represent the government's best position before the court. Dragging CASA as illegitimate for requiring further litigation in which the government can pursue its favored position is not different in kind from the administration screaming about the illegitimacy of every adverse ruling. Again, had the Court rejected universality in 2024, this hearing would have happened--with the government taking the same position.

Just overrule Bivens already

Justice Gorsuch was right in Egbert, that the Court should close the door to Bivens. But not for the reason he gave--"false hope" to plaintiffs who bring claims believing they could be the lucky one. But because the Court makes itself look ridiculous in rejecting claims. The latest is Monday's per curiam reversal in Goldey v. Fields (pp. 12-14 of Orders List). Plaintiff alleged he was subjected to excessive force while in solitary confinement. (The Court throws in a gratuitous line that "[p]rison officials monitored Fields while he was isolated," suggesting that they do not believe his factual allegations, an irrelevant point right now).

Goldey demonstrates the silliness in both prongs. The case presents a new context because the Court has recognized claims for excessive-force under the Fourth Amendment but never under the Eighth Amendment. And the Court identifies two special factors: pervasive legislation around prisoner litigation and alternative remedies. As to the first: The legislation in the area is the Prison Litigation Reform Act, which erects procedural hurdles (e.g., exhaustion of administrative remedies and sua sponte review of the complaint) around prisoner litigation. As to the second: Those same administrative schemes provide the only alternative remedial mechanism.* But the PLRA  makes sense as applied to federal prisoners only if the plaintiff has a cause of action from some place else other than the PLRA;  Congress would not have required exhaustion as a condition precedent to bringing an action if no action could be brought or if the exhaustion requirement itself provides the basis for rejecting the cause of action. It is also circularity and double-counting.

[*] The other options are habeas and injunctive relief. Claims arising from physical abuse while incarcerated challenge conditions (as opposed to fact) of confinement, which is not cognizable through habeas. And I doubt a plaintiff can establish standing to obtain an injunction against future excessive force (what someone called a "'please don't beat me' injunction"), at least absent some showing of an official policy of placing him in solitary and beating prisoners in solitary.

We can look at this a slightly different way. Congress in the PLRA imposed limitations but not an express cause of action because it presumed the Bivens cause of action existed. The law sought to narrow existing law--Bivens creates a right action (just as § 1983 does) and the PLRA limits that. Congress saw no reason to include a right of action that it would then limit.

No one dissented, suggesting no one regards it as worth the candle.

Goldsmith on judicial (or at least SCOTUS) supremacy in CASA

Jack Goldsmith discusses FN 18 of the CASA majority, in which the Court says (on the SG's representation and for the first time) that SCOTUS opinions--their interpretations of the Constitution and constitutional meaning--bind the other branches.

Goldsmith describes this as a potential Marbury moment:

[T]he Court under the guise of judicial weakness proclaims a power that enhances its authority over the ages. The Court acted from a position of relative institutional weakness not unlike what the Marshall Court faced—a hostile executive branch implicitly threatening judicial defiance. And it played its weak hand shrewdly. It ruled in a way that it was previously inclined to rule on universal injunctions, while leaving open many other avenues to lower-court universal relief. And in exchange it extracted a first-ever executive branch pledge of fealty to Supreme Court “judgments and opinions,” which will appear in the forever-citable pages of the U.S. Reports.

Free Speech Coalition and least-bad option

A quick word on Free Speech Coalition, declaring valid Texas' porn-site age-verification law.

Everyone on the Court seems to agree the law is constitutionally valid. The six-justice majority believes the state has the power to enact such a law. And I am not sure the three dissenters disagree. They hedge, but they seem to believe Texas should be able to keep this material away from minors and that requiring adults to prove identity might be an acceptable burden, perhaps after some analysis about the efficacy of filters. Also, neither opinion mentions the right to anonymous speech--which has become more vigorous since Ginsberg--and which is undermined by demanding age verification.

It may be that the Court divided over choosing a "least-bad option" to reach this "law is (or at least may be) valid" conclusion. The majority treats a facially content-based law--one that burdens adult access to some content because of that content--as content-neutral (thus subject to intermediate scrutiny) through some circular gymnastics. The dissent seems a bit blase about the prospect that this law could survive strict scrutiny (when, as the majority points out, one law has survived strict scrutiny before the Court). So which is worse--"watering down" strict scrutiny so it is not as a "practical matter . . . fatal in fact absent truly extraordinary circumstances?" Or making it easier (by applying intermediate scrutiny) for government to burden access for one group to a lot of constitutionally protected speech by inventing a rationale around preventing or burdening access to a different group.

Expect two bad practical consequences from the decision. First, burdens on the porn industry, because compliance with the law is expensive, might cause sites to block access from certain states.Second, the over-inclusiveness of "harmful to minors" likely will limit access (for adults and minors) to important and constitutionally protected (having serious literary, artistic, political, or scientific value for minors) information about sex, sexual identity. Sites will put it behind a wall out of fear of government sanction, even if the speech is likely protected. Both consequences reflect the legislative goal. The majority used the "facial challenge" dodge to avoid adjudicating important questions about the law's scope and application; courts must answer these questions after enforcement efforts that may never come (because sites over-comply) or a wave of lawsuits by non-porn sites and users (adults and minors) seeking access to protected information that also may never come.

Non-universality, 24 hours later (updated to 48 hours later)

The temperature around CASA is high. Some thoughts 24 hours after the decision and my original post, and having had an opportunity to think about the opinion and to hear the discourse around the opinion. The podcast Advisory Opinions analyzes the opinion with Will Baude and Dan Epps of Divided Argument.

• Sam Bray (in The New York Times) and Nick Bagley (in the The Atlantic) attempt to rationally explain what the Court said, why it reflects a better/more proper judicial role, and the many avenues open for broad relief. As Nick puts it "the case represents a stark rejection of a conception of the judiciary as a free-roving expositor of federal law. That may, in time, orient judges to a healthier understanding of their (limited) role in our constitutional system."

• Without saying as much, Justice Kavanaugh's opinion adopts the view of the Court's role that Mark Lemley and Steve Vladeck have criticized--in which only the Supreme Court matters and the lower courts are perfunctory steps litigants must take to get to the Supreme Court and whose judgments should not last long. SCOTUS can exercise original jurisdiction in a vanishingly small number of cases, but Kavanaugh argues that they should seize the power to achieve the equivalent result through the shadow docket. Would it make more sense (and be cleaner procedurally) to allow states to pursue original § 1251(b)(2) through suits against the United States?

• People online are arguing that Justice Barrett called Justice Jackson stupid. MAGA asshats have seized on that to argue that she is dumb and a DEI hire and worse; liberals are mad at Barrett for the suggestion. Barrett uses unusually sharp language in rebutting the dissent.  But I do not think Barrett suggests stupidity as much as a fundamentally different and incorrect view of the judicial role. I happen to share Barrett's vision and reject Jackson's. But I do not see anyone as suggesting stupidity or incompetence. Perhaps she should have been more restrained. But I doubt she was suggesting what has been attributed.

• On that note: This dispute reduces to competing visions of the judicial role, who decides what the Constitution means, and what it means for the executive to "ignore the Constitution." Critics who see the decision as licensing lawlessness necessarily adopt any or all of the following: the Constitution means what any court says it means (including lower courts in the interim, until a higher court speaks); the executive has no contrary say or room to disagree; enforcement of a law is not specific to any target; and the court's word about the law stops the executive in his tracks in all respects as to all people. This is Jackson's dissent and Cooper v. Aaron. And I think it may be Kavanaugh's view, which is why he wants to funnel everything to SCOTUS as soon as possible. But there is no reason in Article III, equity, democracy, Marbury, or the concept of judicial review that requires these to be true.

• If district judges cannot universally enjoin Trump's birthright citizenship EO then district judges cannot universally enjoin Biden's EO forgiving student loans. The objection seems to go to the optics. It somehow would look better if a conservative Court rejected universality while stopping conservative lower-court judges from enjoining enforcement of liberal policies. (Biden SG Elizabeth Prelogar unsuccessfully sought emergency relief on scope in a few cases, although those involved possibly distinct-and-valid APA universal vacatur--see, again, Kavanaugh's concurrence). And using this case for the narrow procedural point (while leaving untouched constitutional merits that everyone agrees are obvious) allows Trump and his minions to misrepresent the Court's decision.

I see the optics point. But it does not matter for the practical purposes of the birthright-citizenship litigation. Imagine the Court rejected universality in 2023. We would be in the same place in June 2025 with respect to the citizenship EO--no universal injunctions. The court must certify a class, grant an injunction protecting the association (and thus its members), or find that New Jersey's injury requires an injunction protecting every U.S.-born person. But liberal critics of the decision seem to reject that state of affairs, regardless of how the Court got there.

In other words, the problem is not how the Court reached non-universality, it is the fact of non-universality. Or, at least, non-universality as applied to the bad things Donald Trump is doing. And here we get the inevitable partisan breakdown--"universality for me but not for thee." Had the Court rejected universality in the mifepristone case or student-loan case, liberals would have cheered. But many would now complain about the other hoops that CASA must clear to challenge this horrible law. I suppose CASA and other plaintiffs would have been on notice and would have sought class certification at the outset, saving some time and effort. But that does not seem to be the complaint.

• Going forward, courts should distinguish a universal injunction from a plaintiff-protective injunction that incidentally benefits others because the complete remedy for the plaintiff necessarily sweeps others. Barrett offered a nuisance action against a neighbor's loud noise--the plaintiff-protective remedy (lower or stop the music) necessarily benefits other neighbors. Legislative districting offers a better example--an injunction allowing plaintiff to vote in a valid district necessarily allows other people to vote in a valid district (not surprising that this majority would not want to use voting rights as an example).

This injunction should not be understood as universal. The injunction orders what the court believes gives the plaintiff complete relief; the benefits to others are incidental and not part of the injunction. Thus, if New Jersey is correct that everyone in the country must have birthright citizenship to protect it from administrative burdens, the injunction protects New Jersey by its terms; it protects people outside New Jersey only as an incident of that.

• On the podcast, Will offers a counter-factual post-Brown world in which the NAACP targeted specific school districts for party-specific relief (this is the position Justice Black urged in Brown II); he argues they would have achieved deeper integration more quickly in those districts, which might have had precedential effect elsewhere. Note that school cases presented the same scope-of-relief issues courts face now. Courts could give a small group of plaintiffs complete relief by allowing them to attend their chosen school without ordering integration or offering any relief to non-parties. The Court amended Rule 23(b)(2) in 1966 to allow plaintiffs to seek classwide relief for all similarly situated students.

• Many people are understandably worried about non-party babies falling through the cracks if they are unable to sue. I wonder if this brings us back to Will's point about how the NAACP might have proceeded post-Brown in a broad litigation strategy. And does this offer a model for CASA and other immigrant groups (absent class certification)--outreach and education of pregnant women and families and a series of lawsuits where people live, whether as individual or class actions. More importantly, at least for the EO, the image of a single, poor non-citizen with a U.S.-born newborn tryng to navigate the courts does not depict the legal landscape. As with desegregation, a web of expert organizations are able to drive this litigation. I concede this will be difficult, costly, resource-intensive, and time-consuming. But plaintiffs--and cause lawyers--are not entitled to the cheapest and easiest approach to constitutional litigation (just as the benefits of offensive litigation do not render defensive litigation inadequate).

• I mentioned this article arguing for class treatment of challenges to the law firm EOs. One of the authors--David Marcus--wrote this 2020 article showing that Wal Mart had not  destroyed or undermined Rule 23(b)(2) public-interest class actions in lower court. Marcus creates a typology of class actions.Type II includes cases in which one law violates rights in an undifferentiated way but courts could remedy violations individually. birthright citizenship EO, is a Type II case--the EO purports to strip everyone in the class of citizenship but a court could grant individual remedies by protecting only the plaintiff from losing her citizenship. Marcus shows that however much Wal Mart narrows class actions, it does not affect Type II actions. (I may have more to say about this).

They are called universal injunctions and they are not allowed (Updated and Moved to Top)

Trump v. CASA is out. Universal injunctions are impermissible. And, in a footnote, the Court says they should be called universal (rather than nationwide) because that captures the problem. The Court does not touch the merits of birthright citizenship. And it does not reject the injunction in this case; it stays it only to the extent it is broader than necessary to give the plaintiff states complete relief. But the states argue that it is not overbroad because the nature of citizenship and the ability of people to move across state lines requires an injunction that protects beyond the plaintiff states; the Court remands for that analysis.

It is 119 pages, with concurring opinions from Thomas, Alito and Kavanague and dissents from Sotomayor and Jackson; Sotomayor read her dissent (which sounds like a barn-burner) from the bench. Will have more once I read this (and the other opinions coming today).

Update: OK, I have given it a preliminary read, along with early comments from Mike Dorf and Sam Bray. TL;DR of the opinions:

Barrett: Everything Sam Bray says in his 2017 Harvard piece (the article that started this scholarly conversation) is right. (A friend asked if this was a Notre Dame Law School thing--but I think Barrett was on the bench before Sam got there). There are policy arguments on both sides, but we do not care because it is all about the history.

Thomas (with Gorsuch): "Complete relief" is the ceiling, not the floor--a court cannot grant more-than-complete relief but can grant less-than-complete relief. Also a remedy can protect non-parties through indivisibility only when party-specific relief is "all but impossible;” that is a high bar and courts better not use incidental benefits to revive universality.

Alito (with Thomas): While we're at it, get ride of third-party standing and do not forget that FRCP 23 is narrow and it should be difficult to certify classes.

Justice Kavanaugh: Universal vacatur survives (spoken like a D.C. Circuit alumnus). SCOTUS provides practical universality through precedent via more-aggressive use of the shadow docket.

Justice Jackson: 1) Dispute resolution is incidental to federal courts' primary role of declaring the law, not the other way around. 2) Rule-of-law in a non-monarchy establishes and requires judicial supremacy and anything else is lawless (as Barrett puts it, Jackson "offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush").

Editorial comments:

• I am pleased to win the nomenclature battle.

• The Thomas and Alito concurrences reflect fissures within the six-Justice majority. Three reject the states' argument that the broad injunction they seek is necessary to afford complete relief. Two suggest that class certification should be narrow and rare. As Steve Vladeck argues, one cannot reject universal injunctions and narrow Rule 23; plaintiffs and courts need some mechanism to reach and stop wide-ranging misconduct that causes wide-ranging, identical harm to similarly situated people. The question is whether this represents genuine fissures among the six (such that at least two among Roberts, Gorsuch, Kavanaugh, and Barrett will join Sotomayor, Kagan, and Jackson to uphold class challenges to birthright citizenship and other constitutionally defective Trump policies) or whether this is those four exercising "restraint" in not tipping their hands on unnecessary issues, whereas Thomas and Alito want to put their views out there.

• I would have expected Alito to also target associational standing as means of expanding the scope of litigation and thus the scope of the remedies. After all, the individual plaintiff here is CASA, an organization suing on behalf of its more than 150,000 members

• That is a typical Kavanaugh "please like me, here are all the ways the decision will not be so bad" opinion. He is right that SCOTUS gets to a universal outcome through precedent rather than judgment and remedy. That said, expanding the shadow docket so the Court can--speedily, on limited briefing, and without explanation--superintend the scope of every injunction seems to exacerbate the shadow-docket problems. To tamp this down, Kavanaugh introduces a new concept demanding closer SCOTUS scrutiny in lieu of universality--"major new" (a term he uses 24 times in less than 12 pages) statutes and executive actions. Of course, he fails to define what qualifies as "major new" legal rules. His examples include pretty much every challenged federal enactment of the past decade, meaning SCOTUS should use the shadow docket for every federal enactment that draws a constitutional challenge.

• If one rejects judicial supremacy, Jackson's opinion is hard to read (speaking as someone who genuinely likes her writing). She accepts, without defending, that "the law" is whatever one district court says it is and the executive acts in a lawless manner by acting inconsistent with that judicial determination. So it begs multiple questions throughout in speaking of the law, and disobeying the law, and what things are blatantly unconstitutional, without explaining who decides any of this.

• Jackson offers two lines that are nonsensical. 1) The judicial power is especially great with respect to suits against the executive--except all constitutional litigation runs against the executive (or a non-executive officer performing an executive function). 2) Concern for "blatantly unconstitutional" laws. But constitutional invalidity is like pregnancy--you cannot have just a little bit of it. And she never explains when invalidity crosses that line into "blatancy."  Ironically,she offers an example--an executive who orders incarceration of his political foes--that fails on its own procedural  terms; that challenge would sound in habeas (if they seek release from custody) and not an EpY action for any sort of injunction, universal or otherwise.

• Beyond that, no one can offer any lines for when universality is proper that do not collapse into "every injunction" or "every injunction involving immigration" or "every injunction involving federal law."

• None of the Justices pursue any form of departmentalism. All accept that the courts (especially SCOTUS) get the last word. The only departure is how the Court expresses that last word--for everyone or for the parties (pending precedent and future litigation). Jackson and some of the online commentary equate departmentalism with a return to monarchical tyranny.

• Some nice online discussion about whether to teach this case, whether in Civ Pro or Fed Courts. I think Jackson's opinion illustrates the "law declaration" model of federal courts in a stark way.

• Plaintiffs in several birthright-citizenship cases have already filed amended complaints seeking class certification. Meanwhile, in the latest episode of "the media sucks," they are engaged in stenography of Trump's victory lap, as if the Court declared his EO valid or even suggested that he is right on birthright citizenship.

• One more thing: To everyone complaining that the end of universal injunctions represents "an alarming development for our constitutional republic" (sorry to pick on the excellent Chris Geidner, many people are doing this): What would your reaction be if the Court reached the same conclusion--narrowed injunction remains in place--in the Mifepristone case or the DACA case or any of the challenges to Obama and Biden policies? Would taking away Judge Kaczmarek's power to enjoin all enforcement of a Democratic president's policies be an "alarming developing for our constitutional republic?" If your answer is no, the explanation must be something other than "Kaczmarek was wrong;" as with challenges to S.B. 8, substantive objections cannot drive procedural arguments.

End All Opt-Outs

Mahmoud v. Taylor holds that parents were entitled to an injunction requiring school to notify them of the use of certain TGBTQ+ content in the classroom and offer their kids an opt-out. The content burdens parents rights to control their children's religious beliefs and does not survive strict scrutiny because the school offers other opt-outs (religious and otherwise).

On one hand, this is Alito driving the anti-LGTBQ+ "ad hoc nullification machine." On the other, what happens if a school eliminates all opt-outs? At least part of why the school policies fail strict scrutiny is that other opt-outs show their feasibility. So could a school say "this is the educational content we believe is appropriate and we are going with it for all students, no opt-outs for any reasons and if you don't like it find another place for your education" (a decision the conservative justices--especially Alito and Thomas--insist deserve deference)? Or does free exercise now give religious believers a right to participate in public functions and to dictate that the content conform to their personal religious beliefs?

En Banc 9th Circuit rethinking SLAPP laws in federal court

Two issues: 1) Whether the denial of the anti-SLAPP is immediately appealable under collateral order; 2) Whether attorney's fees are available (seemingly separate from the statute's procedural mechanisms). The parties seem to agree on #2, which is undoubtedly correct--the state fee provision does not collide with any federal rule and must apply in federal court under Hanna and the twin aims. So most of the argument focuses on the first issue. The appellee's concern was less with the legal question of whether SLAPP motions can be made in federal court and more with the timing of the SLAPP motion (several years into the litigation).

The briefing suggests that the Ninth Circuit has avoided the collision with the FRCP by incorporating the state law analysis into the FRCP--a SLAPP motion challenging the allegations is treated as a 12(b)(6), a SLAPP motion challenging the facts is treated as Summary Judgment. But that makes the COD issue more challenging--the plaintiff is basically seeking COD appeal of the denial of an ordinary 12(b)(6), rather than some special substance-bound-up procedure.

Appellee's counsel got into some trouble late when he asked the court to address the merits of the SLAPP motion (while arguing against COD jurisdiction) to avoid a third round of appeals. When a judge asked how they could do that, he asked the court to write an advisory opinion--that was received as you would expect.

Video after the jump.

 

Statement from UF Law Dean

UF Law Dean Merritt McAlister sent a statement to the UF Law Community on The Seminar Paper. Full text, plus my comments, after the jump.

Dear Alumni and Friends,

Many of you may have seen the recent New York Times article about a student at the law school.  The article stated that the student—who told the Times it “would not be manifestly wrong” to call him a Nazi—received a recognition through a “book award,” which is given to the highest overall grade in a law school class.  The paper he wrote, which counted for 65% of the final grade in the small seminar course, argued for constitutional “nationalism” based on an understanding of the Constitution that excluded non-white people from legal and civil participation in America.  Although the law school is limited by what it can say about these events under federal and state law that protects the privacy of student record information, that student has now disclosed some information publicly.

Let me state unequivocally: the student’s views are revolting and do not reflect the values of UF Law, its faculty, or its administration.  We welcome all, we discriminate against none, and we aim to create a community where students feel a sense of belonging and connection—without experiencing fear or threats or hatred.

The paper’s views also in no way reflect the views of the professor in this course.  The professor had no knowledge of this student’s history at the law school or his deeply held personal views.  The professor took the paper on its face—as a student paper attempting to use originalist methodology to reach a detestable and extreme position.  As abhorrent as the paper’s thesis may be, that work still falls within the bounds of academic freedom and the First Amendment, and, as such, was graded consistent with the grading standard for the course.

As a matter of practice at UF Law and most other law schools across the nation, the highest-performing student in any class receives a “book award” during the grading process.  Indeed, the professor believed that recognition was mandatory for the top scoring student.

I understand that these events and this article have caused many in our community pain, disappointment, and fear.  I know that many of you are outraged at the law school for not taking the book award away from the student.  But the administration does not second-guess grading decisions at the law school, except in very narrow circumstances, and those circumstances did not apply here.  Upholding academic freedom and the student’s First Amendment right to express even odious ideas is the harder path, but it is the path our principles require.   

Rescinding the honor might feel righteous, but it would betray those principles and set a dangerous precedent in a law school that trains students to confront unpopular ideas and represent unpopular clients.  Defending free expression is easiest when we approve of the speech; it is hardest when, as in this instance, the speech tears at the fabric of our community.  But that is precisely when our commitment must hold.

We have protected academic freedom and the student’s First Amendment rights while also prioritizing the safety and security of our community.  As soon as the student’s conduct became threatening and substantially disruptive, in collaboration with UFPD and UF administration, the student was barred from campus.  We heightened security across the college.  It is important to note that the escalation in the student’s conduct that led to his trespass happened three months after the book award had been announced in January.

Sadly, this article has given an extremist provocateur exactly what he wanted: a platform for greater visibility.  And it has caused hurt and pain within our community in the process.  I also regret that this has led an honorable public servant—one who has served his country for decades as a federal public defender and a federal judge—to receive death threats because of an impartial grading decision he made.  No one deserves that treatment for selflessly teaching as a part-time instructor in a law school.

The decisions we’ve made in this instance reflect the best efforts of dedicated professionals to protect students’ First Amendment rights and embody the principles of academic freedom in grading, administering, and guiding a law school.  Not everyone will agree with our judgment, and I respect that.  But I hope we can begin to move forward together recognizing that, collectively, we share commitments to uphold the First Amendment, academic freedom, and our shared sense of humanity.

Best,
Merritt
Merritt McAlister
Interim Dean and Levin, Mabie, & Levin Professor of Law  

I believe McAlister has handled this about as well as any dean could have and I told her as much in an email.

I agree with three key points: 1) The grade is not an endorsement of the viewpoint in the paper, either by the school or the profs; 2) Book awards are not some unique prize but an automatic "recognition" to the top paper; 3) We do not, cannot, and will not change grades.

I do not agree with the first substantive paragraph rejecting the views expressed in the paper, but I understand why she included it. But to me that opens Pandora's Box. Students in my colleague's class have argued against Title VII as a matter of constitutional law and social policy; a law-school classmate argued in favor of coverture marriage; must the school publicly reject all those views?

I question the premise that "The professor had no knowledge of this student’s history at the law school or his deeply held personal views.  The professor took the paper on its face—as a student paper attempting to use originalist methodology to reach a detestable and extreme position." It was obvious the paper aligns with the student's beliefs; the last paragraph endorses  action, including civil war, to advance the "detestable and extreme position" presented in the paper. Most of us believe the correctness of the positions we take in our writing.  In any event, that is irrelevant--if academic freedom protects the student in writing (and the prof in awarding a high grade to) this paper, it does not matter whether the paper reflects the author's deeply held offensive beliefs, was an attempt to play devil's advocate, or was a troll.

The unspoken issue--which I would not expect McAlister to address in a public statement--is whether Judge Badalamenti and his co-instructor should teach this class again. Given the prevailing view that the paper did not (and could) make the case he purports to make, the question becomes whether the co-teachers possess the requisite expertise to teach a historically grounded class. The school can determine that, consistent with academic freedom.

Finally, I still question whether his suspension and trespass were proper, although that is out of the dean's hands and rests with the university and campus law enforcement. I have not heard of any statements that qualify as "true threats." And "substantial disruption"--especially from off-campus speech--should not be the standard at a university. I wait to see how that plays out.

Challenging court rules and the problem of offensive litigation

The United States has sued the District Court for the District of Maryland (and each of its judges) , challenging the validity of a district-wide standing order that automatically stays removal for any habeas petitioner in the district. The suit argues the order violates the requirements for injunctive relief, ignores jurisdictional bars on immigration cases, and violates § 2071 and FRCP 83 by effectively creating a local rule without notice-and-comment. It also has some gratuitous language about how lower courts are interfering with the executive; how SCOTUS has had to pause unlawful restraints on core Article II powers; and woe-is-me about how many nationwide injunctions that have been issued against the Trump Administration.

Aside from the oddity of the federal executive suing a federal court, the case offers another example of how the default to offensive pre-enforcement litigation has taken over. It seems to me the correct procedural posture for this action would be for the government to seek to appeal (under COD) or mandamus the automatic injunction in the next habeas action filed in the district. Although I enjoy the irony of the federal executive pursuing the big-picture litigation efforts it decries from private litigants.

These sorts of pre-enforcement challenges to local rules are becoming common. A Tennessee civil rights attorney attempted this move in challenging a Middle District of Tennessee rule precluding attorneys from making extra-judicial statements. The district court dismissed for lack of standing--enforcement of the rule against him was not certainly impending in any of a series of actions against the private-prison company CoreCivic. (The district repealed the rule last month). This suit did not make sense to me, either. It seemed like a perfect candidate for defensive litigation within a pending proceeding--argue the invalidity of the local rule in defending against its attempted enforcement, then attempt to appeal the gag order* or seek mandamus.** 

[*] The collateral order doctrine would seem to allow review, even after Mohawk. The gag is completely separate from the merits; the attorney's free speech is an important issue; and the loss of his First Amendment rights cannot be remedied on appeal from final judgment, as he is denied the opportunity to speak in the meantime.

[**] There also might have been a Younger issue (or the equitable equivalent of Younger between two federal proceedings) in that action--the injunction would interfere with the power of the judge in the ongoing action to control the proceedings before him. I guess the question is whether a gag order is akin to contempt.

The challengers would argue that the rule (applicable to all the suits the lawyer had against CoreCivic) or standing order (applicable to all habeas actions in the district) creates the constitutional problem, not the application in one action. But that is always the case--the violation is the enforcement of a rule, not the existence of the rule itself. Precedent from that first action (especially binding precedent from the court of appeals) defeats enforcement of the rule or order in other actions.

The usual argument (see critics of S.B. 8 and its copycats) against defensive litigation--it requires someone to violate a rule and risk suit and liability and it chills real-world conduct--does not apply. The challenged rules apply once judicial proceedings begin, at which point they have the opportunity to challenge the rule. The challenged rule does not cause any real-world chilling effect, independent of those proceedings.

Law firms, class actions, and universality

Nora Freeman Engstrom (Stanford), Jonah Gelbach (Berkeley), and David Marcus (UCLA) have an essay (forthcoming in Stanford L. Rev. Online) arguing for 23(b)(2) class treatment of law firm challenges to Trump EOs. They explain the scope of the class, why a class is better than a universal injunction (even if those are possible), and why class litigation offers a viable alternative (despite stated concerns in many corners) at least in a case such as this where a single policy announcement affects all firms. A short-and-quick, but important read.

More about UF courses

Another tangential piece to the story about the white nationalist seminar paper at UF:

Carliss Chatman visited at UF from SMU in the spring. She proposed to teach a course called "Race, Entrepreneurship and Inequality," but the school listed it only as “Entrepreneurship” in the course catalogue. The Times presents this as a politically tinged juxtaposition--student gets award for racist papers in the name of intellectual diversity while prof cannot teach class with race in the title in the name of institutional neutrality. 

Welcome to higher education in Florida under Ron DeSantis. But including it in the story confounds the narrative. Damsky's story is one of core academic freedom, which McAlister could and rightly did protect.

Chatman's story presents different issues, with different legal and practical results. The state has issued various decrees about courses, going to titles, syllabi, and content, with the implicit threat that a state DOGE will be combing through course catalogues, likely using AI for key words. Universities have responded by ordering units to scrub web sites and course catalogues of classes, programs, syllabi, etc. containing "bad" words, such as "race" or "inequality" or "diversity;" units are complying. No one knows what happens if they fail to do so--whether the state or the university will impose formal sanctions (loss of funds, firing administrators, whatever) or whether this seeks to preempt Chris Rufo from turning this into a political issue.

It is not clear how academic freedom protects things such as course titles--how could the prof or college defend if the state or university  sanctioned the school over what the course is called. Compare that with course content, which is more obviously protected. That is, if Chatman could teach the course she otherwise wanted to, academic freedom is mostly served. Just as it was served because the judge gave the grade he deemed appropriate.

In any event, I do not want to set Chatman's issue as some ideological counterpart to the student paper. And I do not want to blame the law school administration for the course title; they are working under real pressure in an uncertain area.

Is the Achilles the new ACL?

In the '80s, a torn ACL was the nightmare injury for basketball players. The recovery took a year+ and the player was unlikely to return at the same level, especially in terms of running, jumping, and athletic explosiveness.* And it felt like a product of the evolution of the game--players ran and jumped liked never before and maybe the human body was not meant to do this.  But medical science has made it easier for players to return more quickly and in the same form.

[*] Bernard King was one of the few to pull it off after his 1985 injury--he missed about a year, returned after a year without that explosiveness, then took another year to get that back--he averaged more than 20 ppg for three straight years, beginning in the third year after the injury.

The torn Achilles Tendon has become the new nightmare, both in its increasing commonness and in it effects. Three star players--the Bucks' Damian Lillard, the Celtics' Jayson Tatum, and (in last night's Finals Game 7) the Pacers' Tyrese Halliburton--tore their Achilles. Kevin Durant tore his in Game 6 of the 2019 Finals. Lillard and Halliburton (and Durant in 2019) were dealing with calf injuries, continued to play through them, and suffered the injury. The injuries happen on similar plays--an attempted quick first step from a standing or slow position, in which the calf extends. High-def video and slow motion allows you to see a "wiggle" in the leg. And the players recognize the injury in an instant. It also is interesting that four major examples occurred during the playoffs--when the intensity and physicality ratchets up.

The injury takes more than a year to recover from. So given how late in the season, Lillard, Tatum, and Halliburton are expected to miss all of 2025-26. The question now is whether they can "be the same players"--which in Tatum's case was First-Team All-NBA and in Halliburton's was an emerging best player on a championship team. Durant has done it, after missing about 1 1/4 seasons.

About that UF student paper (Update)

From the New York Times.This begins with a fall 2024 seminar on originalism co-taught by U.S. District Judge Badalamenti (M.D. Fla.) at UF. A student named Preston Damsky--a white nationalist and antisemite who (according to the Times) said it "'would not be manifestly wrong'" to refer to him as a Nazi--wrote a paper arguing that "we the people" refers only to white people and that constitutional and other changes contrary to that represent a "demographic assault on their sovereignty" and a "terrible crime" that white people must resist. Damsky booked the class. That sparked controversy and a series of emails and town hall in spring. That controversy took another turn in February when Damsky began posting racist and antisemitic messages on Twitter, including a March post stating that Jews must be "abolished by any means necessary." He was suspended and and barred from campus.

Update: Link to the paper, which means it will attract more readers than most published scholarship.

• Anthony Michael Kreis (Georgia State) has read the paper and says:

It’s bad. It’s just Dred Scott repackaged. No new historical research. No innovative argument. It isn’t poorly written but that’s about the only thing I can say about it— certainly could not have been the best paper in the class.

Evan Bernick (Northern Illinois) goes a step further, insisting that "no paper that argued for the KKK’s interpretation of the Constitution should have received a passing grade, let alone an award."* I do not agree that the paper's conclusion or viewpoint (however odious) renders it ineligible for the award or a good grade. Anthony's reaction to the paper does not surprise me. I  doubt a student (or anyone else, probably) could make the doctrinal, textual, and historical arguments necessary to provide originalist support for this position. And the paper fails if it does not recognize (as Bernick describes in his posts) the historical forerunners of his arguments. If he cannot make those showings and properly situate his arguments, this becomes a bigoted policy argument in legal drag--which does not warrant a good grade and and certainly does not warrant the book award. But that should be the framing.

[*] This is consistent with Bernick's views--expressed most forcefully in his article on birthright citizenship (with Kreis and Paul Gowder)--that legal scholars carry an obligation not to make weak, politically motivated arguments for the sake of "just asking questions" when those arguments can be used to destabilize fundamental rights.

• To people unfamiliar with law school, the phrase "book award" sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition. One of my colleagues declines to give a book award in seminars or other non-anonymous classes. Although at FIU we have begun a program of having profs pick a "best" paper from each seminar, for the student to present at a school program the following semester. So we end up in the same place, whatever we call it.

• Good on UF Dean Merritt McAlister for not overruling Judge Badalamenti on the book award or the grade. (Eric Segall disagrees on this). Absent some showing of bias, mistake, or other impropriety, the administration cannot overrule a prof on a grade, including identifying the "best" grade for the class. Grading is core academic freedom, on which the professor's expertise controls. And she is correct that a prof cannot "grade down a paper that is otherwise successful simply because he or she disagrees with the ideas the paper advances.” (Whether the paper was "otherwise successful"--and the extent to which those two things may overlap--goes back to Kreis's point. But that, too, remains outside the dean's realm),

Unfortunately, either McAlister or the Times bound her defenses within "institutional neutrality," which has become an unfortunate buzzword and bastardization of the Chicago Principles that has nothing to do with this controversy. This case does not involve the university taking a position about George Floyd or Donald Trump's decision to bomb Iran. It involves academic functions (course work and grading) at the heart of the academic mission that the administration must address. The administration rightfully stayed out of it but that has nothing to do with institutional neutrality and everything to do with academic freedom.

• The story includes an additional tidbit: An anonymous new graduate told the Times that a  law firm withdrew a job offer when it learned that he had criticized the judge for giving the book award to Damsky. It would be nice to name and shame the law firm. Unfortunately, that graduate's career depends (for now) on his identity--and thus the firm's identity--remaining unknown.

• Saving the worst for last: Nothing described in the Times story or in an April story in the Alligator (UF's independent student paper) cited in the Times justifies suspending or trespassing Damsky. The key exchange seemed to go like this:

• Damsky posted his call for abolishing Jews by any means necessary in March.

• A UF prof asked Damsky if he would murder her and her family.

• Damsky responded that “'surely a genocide of all whites should be an even greater outrage than a genocide of all Jews, given the far greater number of whites.'”

Nothing described qualifies as a true threat (his statements were not targeted or immediate), incitement (nothing more than abstract calls for violence as a good idea in the future), or targeted harassment (not targeted or severe-and-pervasive within a small context). Perhaps Damsky targeted his second  statement--genocide of Jews is a lesser outrage--because he spoke to the prof in responding to her question; by definition, "genocide of all Jews" includes killing the Jewish person to whom he is speaking. But the content of the speech cuts against that--he still spoke in the abstract about a genocide of all Jews, not about a direct personal action that would cause a listener to reasonably fear imminent harm from the speaker.

The Times says Damsky is challenging his suspension. It seems to me he has a good argument.

• I will throw out one final question: Assuming UF readmits Damsky and he graduates, can he pass C&F? How much does the First Amendment limit the Bar's inquiry into protected speech as a basis to deny admission?

    Update: One example is Matthew Hale, a neo-Nazi who was denied admission to the Illinois Bar in the 1990s. The Illinois Supreme Court (over a dissent) denied review of the Character and Fitness Committee decision. Hale was convicted in 2005 of threatening a federal judge.

What should trans-rights activists have done?

Having used its pages to "just ask questions" and thus launder anti-trans bigotry into empathetic medico-scientific caution,  the Times bounces the rubble with a long story about how the Skrmetti litigants "gambled and lost and "set the movement back a generation." Josh Blackman reads the story as revealing something meaningful about movement politics and the shape of the left. Actually, the story represents an opportunity for the Times to support its priors by quoting a bunch of the trans movements allies saying "told you so."

This all comes down to one question: What should trans activists and their lawyers have done in the face of that Tennessee law?

They had four options: 1) Do nothing and live under a discriminatory law in Tennessee (and other states enacting similar laws); 2) Litigate in state court (or at least try state court first) as a way to buy time; 3) Litigate in federal court but do not try SCOTUS--stated differently, lose substantial rights in Tennessee, Kentucky, and Ohio (and Michigan, next time it has a Republican governor and legislator) but allow other people in other places to enjoy those rights and perhaps fight another day;* or 4) Try what they did and live with the consequences. # 1 should not be acceptable; # 2 seems like a waste of time and money, certainly in Tennessee--there is a reason we do not require state-law exhaustion before pursuing § 1983/EpY claims. Blaming the losing litigants also ignores that SCOTUS reached out to take the case. Its docket is discretionary, so it had no obligation to hear it; there was no direct circuit split to resolve, so the Court had none of its ordinary reasons to hear the case. Which I guess reifies # 3 as the least-bad option.

[*] First they came for the trans people in Tennessee, but I did not speak out because I am a trans person who does not live in Tennessee . . .

The Times' "over-reach" framing sounds in "too soon"--the movement tried to move too fast it blew up, and now we're screwed for generations. It pushes option # 1. But as I wrote here:

The Black Civil Rights Movement was the first modern mass civil-rights movement; it operated on a blank federal constitutional and statutory slate and challenged an existing legal scheme (Jim Crow laws in place for about 50 years). Other groups--women, disabled individuals, LGB--followed on that model, challenging long-standing laws that either were part of the historical firmament (women's inequality) or had never been considered (the way the world works against people with disabilities) And there was some degree of "if this historically disadvantaged groups enjoys protection, so should we."

The trans-rights movement misaligns because it operates in mature constitutional system--it is copying prior movements rather than inventing them. Trans people seek to fit themselves into an existing statutory landscape and to be treated as their identified (rather than assigned-at-birth) gender; states have enacted new laws targeting the group after it pushed for recognition or room to operate within the existing regime. For example, hormone therapy exists, but states now prohibit one group from obtaining that therapy for one purpose.

The analogy might be Plessy and Jim Crow--a deliberate test case to challenge relatively new  laws (Jim Crow began in earnest in the late 1880s and 1890s). Like 1890s state legislatures targeting Black people with new laws, 2020s state legislatures target trans people with new laws. So if option # 1 is it, does that mean trans people must live in a discriminatory environment for another 30-60 years?

If not, I return to my question: What else should trans people living in a state denying them necessary medical coverage have done?

More on "To the President of the United States"

A reader emails about my post on the unknown origins of the Chief's "To the President of the United States" toast at the Supreme Court Historical Society dinner. He writes

Its origins pretty plainly lie in the elite adaption of the Loyal Toast in the United Kingdom -- simply "The Queen," as it was for most of my life, or "The King" -- and has been a feature of U.S. military and civic dinners since at least the late 1800s. It absolutely reeks of undiscerning Anglophilia -- an affliction this country can't seem to shake off -- and I'm not surprised that the Court's historical society perpetuates such a un-republican tradition.

This supports my head-of-state theory and the problem with making the same person head of the state and the government.The connection to the U.K. takes it another state by making the head of state the sovereign, the embodiment of the nation, something we supposedly discarded in 1776. Of course, given how Trump seeks to govern and the power Republicans seem intent on giving him, perhaps it fits.

Skrmetti

Yeah, I missed badly on this one, sorry to say. 6-3, by the Chief, following the usual political lines and arguments. Justice Kagan's short dissent argues the position I thought the Court would take--heightened scrutiny applies (she joins Sotomayor's primary dissent on this), kick it back to the lower court.

Also, I hope this ends the "Barrett is less conservative and more moderate than everyone thinks" bullshit in non-legal media. On every "culture-war" issue (such as equal protection and discrimination), she is in lockstep with the Republican-appointed supermajority. In fact, she went further than the majority here, with a concurrence (joined by Thomas and echoed by Alito in a separate concurrence) arguing that transgender people are not a discrete-and-insular minority with a history a de jure discrimination as to warrant quasi-suspect classification and heightened scrutiny. (The majority said the law did not discriminate on trans status and thus no need to decide the suspect-class issue).

Now, that is fine if that is her jurisprudential position. She is a member of the Court and gets to make those decisions according to her judicial philosophy. But the mainstream media continues to fail (and fail and fail) at its basic job if it writes softball stories suggesting Barrett is something other than what she is, at least on the stuff of larger societal import.*

[*] See also all the simplistic stories about the Court's new-found unanimity.

Cross-ideological benefits

SCOTUS granted cert in First Choice Women's Resource Ctrs. v. Platkin to resolve "'[w]hether, when the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, a federal court in a first-filed action is deprived of jurisdiction because those rights must be adjudicated in state court." That is, can the target of an investigator subpoena challenge the subpoena in federal court or must it wait until the state seeks to enforce the subpoena, at which point Younger and preclusion kick-in.

The petitioner is a crisis pregnancy center seeking to challenge a subpoena from the New Jersey AG seeking donor information as part of a fraud investigation. Support for the petition cam entirely from conservative organizations. Mark Joseph Stern describes this as "a spite grant: The conservative justices are mad that New Jersey has dared to investigate a "crisis pregnancy center," so it will once again contort the law to shield CPCs from legal scrutiny. The biggest losers will be "patients" scammed out of obtaining actual health care services."

But it seems to me a decision making it easier for subpoena targets to win the race to to the federal courthouse (which Stern believes will be the likely outcome) will benefit liberal groups targeted by MAGA state governments. Consider Ken Paxton's crusades against Media Matters (also seeking donor and similar First Amendment-protected information) or Pre-Musk Twitter, similarly alleging fraud or consumer deception). Stern and other liberals reject the underlying premise of the lawsuit--that crisis pregnancy centers  have First Amendment rights to engage in what these people regard as medical fraud. Fair enough on the merits. But the immediate precedent procedural/jurisdictional issue the Court will decide is not unique to conservative, religious, or anti-choice organizations.

Unless I am missing something. I am surprised at the one-sidedness of the response thus far. I look forward to seeing what the merits briefing looks like and how the U.S. positions itself in this case.

Read your damn book

The Forward reports on attorney Steven Ludwig's loud resignation from the board of Philadelphia's ADL chapter to protest the direction that Jonathan Greenblatt has taken the organization. The letter quotes from Greenblatt's 2022 book It Could Happen Here, then argues that the things Greenblatt warned against--infringements on voting rights, infringements on the rule of law, censorship, and attacks on immigrants) are happening under Trump 2.0.  But the ADL has not stood up or spoken out because none deals directly with antisemitism and, in fact, the administration is doing many of these things in the name of stopping antisemitism (and anti-Zionism as antisemitism).

Here is the ending of the letter:

At this rate, the ADL will invariably give an award to Trump for being the GREATEST fighter against antisemitism and for doing more for American Jews than anyone ever? (After all, Trump did more for Blacks with the possible exception of President Lincoln.)

Before it is too late, please fulfill ADL’s historic mission to fight for civil rights and to stand up for what’s right while there is still time.

Read your damn book.

The ADL downplayed the resignation, stating that it loses 1-2% of its 800 members across 23 regional boards each year. Still, this is a well-done argument, showing Greenblatt's mistakes, without having to reach for low-hanging fruit, such as Elon Musk's Nazi salutes.

The Forward story also said that Greenblatt walked back his support for Trump administration attacks on universities in a note to leadership, promising to "make a point to continue to call out to the administration the need and constitutional right for due process.” This highlights one of my criticisms of Greenblatt--he does not seem to object to deporting people or punishing colleges and students over protected speech that he deems antisemitic (e.g., Rumeysa Ozturk's op-ed), so long as they receive due process. That cannot be the limits of civil rights.

Teaching and intellectual evolution

This Atlantic piece has stuck with me since first published in 2019 (I blogged about it). The Atlantic website recirculated it in today's daily email. I will highlight the piece that captures teaching and the academic connection.

As Bach demonstrated, teaching is an ability that decays very late in life, a principal exception to the general pattern of professional decline over time. A study in The Journal of Higher Education showed that the oldest college professors in disciplines requiring a large store of fixed knowledge, specifically the humanities, tended to get evaluated most positively by students. This probably explains the professional longevity of college professors, three-quarters of whom plan to retire after age 65—more than half of them after 70, and some 15 percent of them after 80. (The average American retires at 61.) One day, during my first year as a professor, I asked a colleague in his late 60s whether he’d ever considered retiring. He laughed, and told me he was more likely to leave his office horizontally than vertically.

Our dean might have chuckled ruefully at this—college administrators complain that research productivity among tenured faculty drops off significantly in the last decades of their career. Older professors take up budget slots that could otherwise be used to hire young scholars hungry to do cutting-edge research. But perhaps therein lies an opportunity: If older faculty members can shift the balance of their work from research to teaching without loss of professional prestige, younger faculty members can take on more research.

Ironically, the move to vigorous post-tenure review since 2019 (most prominently at Florida schools) flies in the face of this six-year-old article's insight--a 60-year-old who has taught for 25 years cannot be as productive a scholar as a 40-year-old in her first decade of teaching, and schools should adjust job assignments, expectations, and evaluation accordingly. Post-tenure review potentially flattens that evolution.

Procedural law v. procedural culture

One interesting feature of teaching Civ Pro involves balancing formal rules and statutes against subtler, less formal practices (some from standing orders of each judge, some from the ether of the court system, some from general legal culture). Edith Beersden (Temple) has written about this as to discovery and other areas.

That distinction runs through Thursday' opinion in Parrish v. United States. A federal prisoner did not receive the district court order dismissing his civil rights action because he was released from federal prison and transferred to state prison the day after the order. When he received the order three months later, he sent a letter to the court that he called a notice of appeal. The Fourth Circuit recognized Parrish's letter/notice as a motion to reopen the time appeal; the district court granted that motion. But the Fourth Circuit, over the disagreement of both parties, held that Parrish had to file a new notice of appeal within the newly reopened time period; his original, premature notice (the letter to the district court) was insufficient.

The Court decided 8-1 that the original notice sufficed (Justice Gorsuch would have DIGed the case). But they split 6-2 as to why.

Writing for the majority, Justice Sotomayor focused on the controlling statutes (§ 2107 and FRAP 4). Those provisions codify the pre-existing common law concept of "relate-forward" (a prematurely filed document becomes effective later in time). Parrish had filed a premature notice of appeal, which related forward and became effective once the district court reopened the time to appeal and made the noticed appeal possible. Concurring in the judgment, Justice Jackson (with Justice Thomas) focused on the how litigants operate "everyday in federal court." When a party seeks leave to file a paper, it attaches that proposed paper to the motion; if the court grants the motion, it orders the underlying substantive paper docketed. Parrish filed a notice of appeal that the court treated as a motion to reopen the time to appeal (treating it as, in effect, a motion to reopen accompanied by a notice of appeal); having granted that motion (applying the requirements of § 2017), the district court follows regular practice of docketing the notice of appeal whose filing it approved.

Sotomayor and Jackson are the only members who have served as district judges (Sotomayor for about six years, Jackson for almost eight). And the other Justices often do not seem to understand or appreciate how things work in district courts. So it is interesting to see Sotomayor and Jackson on opposite sides of a divide between the legalistic approach and the cultural "this is how the trains operate" in the courts approach.

Pussy communists

Admit it: Prior to this week, most people had heard of posse comitatus from this scene in the very-'80s  film Tank, starring James Garner, Shirley Jones (pay attention, Civ Pro fans), C. Thomas Howell, and perrenial bad guy G.D. Spradlin. Forgive the poor sound quality.

 

11th Circuit denies stay in challenge Florida immigration statute

I wrote about the scope-of-injunction issues in the challenge to Florida's law criminalizing undocumented persons entering or being present in the state--whether, in an action against the AG and every local prosecutor, the court could enjoin law enforcement from arresting people under the law.

An 11th Circuit motions panel refused to stay the injunction, on the merits and as to its application to non-party law enforcement. On the latter, the court takes a weird approach that I do not addresses the real issue. The court lays out a binary choice: Either the AG and law enforcement officials are "(in effect) a single monolithic entity" or they "are totally separate entities over which he has no meaningful control." If the former, the injunction has the proper scope to provide complete relief; if the latter, the AG may lack Article III standing to appeal the injunction as it applies to these non-parties. (I think this piece comes from Judge Newsom, a panel member and Fed Courts nerd--and it is fun to see Uthmeier hoisted on his own petard). Either way, the AG failed to make the necessary "strong showing" to justify a stay as to scope.

But the issue should not be whether the AG controls law enforcement as a single entity, which would bring law enforcement within the injunction under FRCP 65(d)(2)(A) (party) or (B) ("agents" or "servants"). The issue hould be whether law enforcement is in "active concert or participation" under (C). That need not involve control and certainly not "single monolithic entity." Instead, it is concerned with "officials who might be a part of the enforcement effort" who, if not enjoined, would thwart the efficacy of the district court's order. Plaintiffs might satisfy (C) even without showing AG control over law enforcement. That is the real unresolved question.

The AG also tried to squeeze this into the controversy and criticism of "universal injunctions." He ignored: 1) universality concerns plaintiffs protected not defendants bound and 2) the district court certified a provisional class, which the AG did not contest, so the injunction was specific to the plaintiff class. Both show the AG is a hack, trying to use buzzwords to appeal to whoever might be watching. Good for the court for not buying it.

Greenblatt gives up the non-partisan ghost

I apologize for repeatedly railing about the ADL generally and Jonathan Greenblatt in particular. But Greenblatt's latest speech--before the Republican Attorneys General Association--undermined any pretense (if any remained) ADL is "an apolitical, non-partisan organization."

Because while making that disclaimer, Greenblatt spoke to an expressly partisan organization. And he parrotted GOP talking points--pro-Palestinian protesters are the equivalent of al-Qaeda and ICE and have overseas ties; that all liberal activism (including Black Lives Matter) is nihilistic; he does not want to destroy Harvard and other universities but "God bless Secretary McMahon" for efforts designed and intended to destroy those schools; and these protesters are "opposed to America." I do not know how a speech from the head of a "political, partisan organization" would sound any different than this.

Oh, and the protected antisemitic speech that produced some genuine (but not overwhelming in number) unlawful and harassing actions is "the worst expression of hate against any group in the country for the last 100 years." Anyone who says that--when the South had de jure discrimination and de facto lawful lynching within the past 100 years--no longer deserves to be taken seriously.

What does Ames portend for Skrmetti?

Ames v. Ohio Dept. of Youth Services unanimously held (per Justice Jackson) that a member of a non-historically disadvantaged group need not make a heightened showing to prove an employment discrimination claim. Ilya Somin argues that the decision unanimously reaffirms that discrimination against LGBTQ+ people constitutes discrimination because of sex. Ames alleged she was discriminated against because she is a straight woman, passed over for jobs in favor of a gay man and a lesbian woman; she argued discrimination because of her sexual orientation, not because she is a woman. Nevertheless, all nine justices accepted that this was a claim for gender discrimination.

What does that mean for Skrmetti, challenging a state ban on gender-affirming care for minors. The lower court treated this as something other than gender discrimination and applied rational-basis review. At the time of the cert grant, I predicted the Court would find that intermediate scrutiny applies and would remand for the lower court to apply that. If Ilya is right that Ames reflects unanimous acceptance that sexual orientation discrimination is sex discrimination, it must apply both ways--to discrimination against LGBTQ+ people and to discrimination against non-LGBTQ+ people. And that must include trans people and the medical services they can obtain.

Seeking leave to amend

SCOTUS unanimously held that Rule 60(b)(6) controls motions to reopen judgments, even when the purpose of reopening it to amend the complaint. Rule 15(a)(2)'s liberal ethos for amendment does not come into play until after the court agrees that 60(b)(6) is satisfied and reopens the judgment.

Justice Jackson did not join Part III of the majority opinion. The court had dismissed the complaint; it asked plaintiffs whether they wanted leave to amend and to replead; they declined to replead and instead appealed. The court of appeals affirmed dismissal, although it "clarified" some points of law and rejected part of the trial court's analysis. On plaintiffs' motion to reopen, the district court made three points: 1) the "clarification" of law was not an extraordinary circumstance; 2) amendment was futile even under the clarified standard; and 3) plaintiffs were partly at fault because they appealed the dismissal rather than taking an opportunity to replead. The majority found no abuse of discretion in denying the 60(b) motion as to all three.

Jackson disagreed with that last point. Plaintiffs should be able to appeal to challenge or clarify a dismissal, rather than amending (or seeking to amend) one or more times as a precondition to appealing and seeking to reopen if the appeal fails. The strategic choice to appeal the dismissal rather than plead and replead should not be held against them if they can otherwise satisfy 60(b)(6) (which plaintiffs could not do in this case but might in other cases).

I think she is right.

Government ceremony in a personalist presidency

At the Supreme Court Historical Society annual dinner Monday evening, Chef Justice Roberts gave the traditional toast--"To the President of the United States." People unfamiliar with the dinner and that tradition (including young attorneys and summer associates) were shocked. Supreme Court advocate and former Burger clerk Carter Phillips said it is routine, a show of respect for the office, and that it would have been stranger and more political for Roberts not to follow tradition. My colleague Tom Baker, who shared the story with me, tentatively reaches the same conclusion as Phillips.

I think I agree, but some questions and thoughts:

1) Trump's personalist presidency undermines government ceremony. Trump does not separate himself from the office (or really from the federal government or the U.S. as a whole), thus a toast to the office is a toast to him personally. I am surprised we have not gotten a Truth post in which Trump brags that the Chief Justice loves him so much he is toasting him at official functions. Which, of course, causes people to fear the Chief and the rest of the Court will cave to whatever Trump wants.

2) Perhaps this offers another example of the defects of having the same person as head of state and head of government. Toasting one person as the former, even in a ceremonial manner, looks awkward when the same person as the latter attacks the courts and threatens to ignore and violate (or is actively ignoring and violating) court orders.

3) Why--in a society and event to honor and educate the public about the Court's history--a toast to the President? The Society's executive director did not know the origins. One new trustee says it "underscores the profound respect to the nation's highest office." But is the presidency the nation's highest office? What does "highest" mean in a three-part separation of powers system? It may mean the "head of state," but then see # 2.

What's in a name

A bit of humor off this ridiculous story about the Trump Administration targeting Harvard Law Review for sanctioning a member for leaking internal documents.

One of my law-school friends is named Stephen Miller, which has created some obvious annoyance for him the past decade. Well the HLR member at the center of the story, now working for Miller in the White House, is named (Daniel) Wasserman and referred to as "Mr. Wasserman" throughout the NYT article. Tough times all around.

Conflating Israel and Jewishness

Three stories reveal the problem--on both sides--of failing to separate Israel and Jewishness in discussing antisemitism.

On Saturday (the day before the Colorado attack), Illinois Governor J.B. Pritzker posted an online message, timed to the end of Jewish Heritage Month, about the importance of fighting the rise of antisemitism, making no mention of Israel, Zionism, or Gaza. He was bombarded with comments about apologizing for genocide, etc.

On Monday, Juliet Kayyam wrote about the Colorado and D.C. attacks in The Atlantic. Despite the attackers' attempts to make it about Israel and Gaza, they chose Jewish targets because they are Jewish at Jewish events, with no connection to Israel. Two key quotations:

Pervasive anti-Semitism is what enables attackers to believe that they are striking back at Israel by trying to kill any Jew, anywhere. This hateful mindset assigns responsibility for specific Israeli policies to Jewish people all over the world. Jews thus stand condemned purely for being Jewish.

* * *

Public discourse must maintain a strong distinction between what Israel does and who Jews are. To do otherwise is to side with this terror.

Jonathan Greenblatt reveals the conflation from the other direction. Discussing recent instances of graduation speakers criticizing Israel for the war in Gaza that did not mention Jews or Jewish people, Greenblatt called the comments "blood libel" that "must be stopped once and for all," presumably by expelling, denying diplomas to, and perhaps deporting or disappearing those who engage in such speech. The party line for years has been that criticism of Israel, Netanyahu, the Israeli government, etc. is not antisemitism, even under the IHRA definition; it is permissible to criticize that nation and government as one would any other. Greenblatt's comments remove the mask--it is antisemitic for students to engage in, and for universities to tolerate and permit the expression of viewpoints which differ from their own about Israel, its government policies, and its prosecution of the war.

Greenblatt has shown himself to support censorship when it silences voices he does not like, so this is not surprising (nor that he would say it on Fox News). But it creates several problems for Jewish people. It continues to give cover to Trump Administration censorship of opposing views, which will back-up on Jews (although perhaps not the Jews Greenblatt cares about). It lends cover to non-Jews to define who is "really Jewish" by their positions on Israel. (Non-Jewish Colorado Republicans have already leveled that charged against Governor Jared Polis, who is Jewish). And it undermines Kayyam's arguments. If, as Greenblatt says, criticism of Israel is inciting blood libel, then one cannot fault critics of Israel and the war for targeting Jews generally, since they have become one and the same.

From performative litigation to strikes and sanctions

Add another case to the growing canon of failed Title VI antisemitism suits in which courts take plaintiffs to task for press-release pleadings. The latest comes in the suit against Penn. The court dismissed without prejudice, giving plaintiffs one more chance (their third) to plead the claim, but closed with this:

However, and as has been repeatedly observed throughout this Opinion, many of the more than 300 paragraphs in the Amended Complaint contain language which is unnecessarily inflammatory and “impertinent,” and immaterial allegations that have virtually nothing to do with the claims which Plaintiffs are endeavoring to raise. Filing of yet another complaint would be Plaintiffs’ third bite at the apple. Plaintiffs are cautioned that if they choose to file a third complaint, the additional allegations must be alleged in good faith and in compliance with Rules 8(a) and 11.

The judge mentions "impertinent" language, bringing FRCP 12(f) into the mix and threatening to strike improper allegations. And he mentions Rule 11, suggesting he might be thinking about sanctions if the plaintiffs continue to use the complaint as a platform to appeal to Fox News and the ADL rather than for seeking cognizable judicial relief.

Crim Law Humor

Politico on the defenestration of Magill

Long-form story on Liz Magill and that absurd 2023 hearing. My only criticism is that it does not do enough to emphasize what bullshit Elise Stefanik peddles, how correct Magill was, and how much of this is a way to get (or jawbone universities to get) unpopular speech and speakers off campus. This story is important because Magill was the first casualty in the initial skirmish of the war on higher ed that Trump has unleashed.

One photo in the piece shows a Penn protest with a sign "I'm a proud Jew in any context." No one--certainly not Magill--ever said otherwise.

Eidelson & Hellman on antisemitism, anti-Zionism, and Title VI

SSRN Link here, forthcoming next month in Harvard Law Review Forum. Ben summarized the piece on Bluesky.

Their conclusions are tentative. But the piece shows why the simple narrative ("schools are violating Title VI by not stopping antisemitism") is wrong, given: 1) the complications of "Jewishness" as it relates to Title VI; 2) the high hurdle for Title VI liability; and 3) the inability to establish Title VI liability based on public speech involving (even offensive) messages of contested meaning on matters of public concern.

How much did Dobbs drive SB8?

Michael Dorf compares last week's decision effectively overruling Humphrey's Executor to the Court's decision refusing to stay enforcement of S.B. 8 in September 2021. In both, SCOTUS used a shadow-docket ruling to signal the likely coming demise of a precedent.

Dorf raises a nice question of how much Dobbs (already on the docket, to be argued in December, to be decided in May) drove the Court--did it know that Roe/Casey were not long for this world and so was willing to allow enforcement of a law whose invalidity under Roe/Casey was not even arguable. Much as the Court allowing the NLRB and MSPB firings to go forward demonstrates that Humphrey's is not long for this world.

Obviously, I believe the S.B. 8 decisions--both the denial of the stay and the final resolution--were correct. And the limited action the Court allowed--providers against licensing boards--would not have stopped private individuals from suing anyone. But the merits have always loomed over the case, even absent a causal connection. Liberal commentators, activists, and lawmakers have not pursued blue-state revenge, at least in part out out of certainty that a conservative SCOTUS would not allow a law to place hurdles on judicial for a favored right (e.g., guns or expressive business's right to discriminate) or a right it was not planning to reject.

Article Length

Kim Krawiec links to an Orin Kerr tweet recalling the 2005 law review joint statement about article length, which produced a "policy" of articles in the 20-25k range, above 25k with good reason, and never over 35k except in extraordinary cases. Kim says the "plan, shall we say, did not work." The interesting question is why not: Did profs not get or not want to take the hint? Were journals not serious about wanting shorter pieces?

Two anecdotes: 1) Mark Lemley's The Imperial Supreme Court  found a home in HLR. But Lemley reported that it took him awhile because a few journals rejected it as not long enough. 2) A colleague submitted a paper of around 10k. A journal gave him a conditional acceptance--only if he added another 3-5k.

Judicial departmentalism and the Shadow Docket

A judicial-departmentalist take on Trump v. Wilcox and the Court allowing Trump to fire members of the NLRB and MSPB pending resolution of the litigation. The majority hints that resolution will be in favor of Trump's power to fire any federal official (except perhaps the Fed Chair, for no good reason).

Kagan's dissent includes the following: "The current President believes that Humphrey’s should be either overruled or confined. . . . And he has chosen to act on that belief—really, to take the law into his own hands."

That last piece misses the import of some departmentalism. If a President who believes a precedent should be overruled or confined cannot act on that belief , how else can he present his argument that the Court should overrule or confine that precedent? The Court can only reconsider precedent in the course of resolving a new concrete case-or-controversy between the President and some adverse party. The President creates that case-or-controversy only by acting on his belief--in this case by firing Wilcox (NLRB) and Harris (MSPB); those officials pursue litigation to challenge their firings, allowing (eventually) SCOTUS to decide the continued vitality of Humphrey's in the course of resolving that dispute. If Trump never fires Wilcox or Harris, they never sue and SCOTUS never gets the opportunity to decide. Derogating these necessary steps as lawlessness--"taking the law into his own hands"--is unfair; it ignores the absence of any alternative mechanism for the executive (even one committed to following SCOTUS precedent) to change or create new judicial precedent. And this is without pushing the strongest form of judicial departmentalism, under which the executive may act on his independent constitutional judgment, regardless of its consistency with SCOTUS precedent.

The problem here is not Trump but the majority's behavior in resolving emergency issues on the shadow docket.

As I described judicial departmentalism, this case should proceed as follows--1) President fires the officers; 2) officers sue; 3) officers win in the trial court, which enjoins the firings under Humphrey's and allows officers to retain their jobs; 4) officers win in the court of appeals under Humphrey's allowing officers to retain their jobs; 5) case reaches SCOTUS, which either 6) affirms Humphrey's and allows officers to keep their jobs or 7) overrules Humphrey's and declares the firings proper, after which the officers lose their jobs. That is, Trump can act as he wishes in the real world; the courts stop those actions unless and until SCOTUS overrules the controlling precedent at the final step.

The majority instead has given Trump his victory at around step 3.5, by hinting at (and thus effectively producing) Humphrey's demise, without the full scope of litigation or briefing. Nevertheless, the problem is not what Trump did in firing these officers; that remains the necessary predicate for any request for SCOTUS to change precedent. The problem is the majority doing so too soon and outside of the ordinary three-tier litigation process.

Universality, again

Judge Howell issued an order clarifying that a piece of the Perkins Coie injunction--prohibiting the EEOC from investigating law firms for DEI policies--applies only to Perkins Coie and does not stop the EEOC from investigating other firms.

This case demonstrates the key puzzle in the universality debate--finding the stopping point for when universality is appropriate without sliding into universality for most injunctions. Complete relief does not justify universality--Perkins Coie gets everything it needs regardless of whether the EEOC can investigate Jenner & Block. They cannot squeeze this into the New Jersey argument as to birthright citizenship. On the other hand, uniformity/Equality/Fairness would justify universality--it is not fair to subject Jenner to an investigation if Perkins is protected from investigation for the same activity. But then every injunction must be universal, at least where it involves broad federal policy.

So assuming universality is necessary in the birthright-citizenship case and not here: What are the limiting principles, so we avoid the conclusion that every injunction (or at least every injunction against a federal law) must be universal.  What, if any, are the relevant differences? Some might include: Number of people affected; whether affected non-parties have the practical ability to vindicate their own rights, especially through access to counsel; the imminence of the injury to unprotected persons if they cannot go to to court to vindicate; other opportunities to assert their rights aside from the injunction. (Note that all of these sound in the balance of equities prong of the injunction, which someone (maybe Justice Barrett) suggested might be the appropriate place for these considerations).

I am not sure any of this should matter as to the scope-of-remedy. But this is the ground on which the arguments must occur.

Speech or Debate Confusion (Updated)

The Supreme Court granted an injunction pending appeal in a Maine legislator's challenge to the sanctions imposed on her by the body in response to her anti-trans comments. Justice Jackson dissented (Sotomayor noted her dissent but did not join the opinion), identifying the many unresolved issues, most surrounding legislative immunity and the application of the First Amendment to the internal rules of state legislatures.

An injunction pending appeal is appropriate only when the right to relief is indisputably clear. Jackson emphasizes all the open questions in the case. I do not understand why it is not the opposite--it is indisputably clear that the claim here fails under well-established law and that she succeeds only if the Court undertakes a major change in the law. Legislative immunity applies to § 1983 actions. And a legislature's establishment of internal rules and procedures and  imposition of internal sanction for violation of those rules constitutes core legislative functions--“anything generally done in a session of a House by one of its members in relation to the business before it." Unless there is some First Amendment exception to legislative immunity--again, a new idea--this case should be easy. It certainly should not be a basis for emergency relief.

The timing of the decision is ironic--less than a week after Libby's campaign against trans athletes hit the news because the girl who finished second in a race published a letter to the editor calling Libby out for bullying children.

Update: Will Baude points me to Bond v. Floyd (1966), where the Court never even mentioned legislative immunity in holding that the Georgia legislature violated the First Amendment in refusing (twice) to seat Julian Bond. I have no good answer. And it is of a piece with random recent cases--for example this Ninth Circuit case ignoring immunity and allowing a First Amendment claim to proceed against the legislature that required a member to provide advance notice before entering the chamber as a sanction for the member's speech.

We might explain Bond (along with Powell v. McCormick three years later as not applying immunity* to challenges to a body's refusal to seat a member, as distinct from rules and punishments once the person has been seated and sworn as a member of the body. And the Court decided Bond and Powell before it dug into the legislative immunity beginning in the early '70s.  I otherwise cannot reconcile the idea that § 1983 incorporates legislative immunity with suits allowing members to challenge the body's rules.

[*] Powell held that Speech-or-Debate protected House members but not the Sergeant-in-Arms who enforced the exclusion decision. But recent cases have rejected that make rules/execute rules distinction for internal legislative rules; the creation and internal execution of the body's rules constitute legislative acts.

Questions on Burton

Many questions and comments from Gerard's post on Burton:

1) Did Hand include the photo in the opinion? And how does that change how we litigate, decide, teach, and think about cases when it unquestionably would be in modern technology?

2) Would the case come out the same way post-Sullivan?

3) Did Crowell try to argue that the optical illusion did not damage but, in fact, enhanced (sorry) Burton's reputation? Would that argument fly more in 2025 than 1936?

4) This is what the tort of false light was designed to reach--false but not negative or disparaging speech.

5) I agree that defamation is more relevant than it was a decade ago, for unfortunate reasons.

6) Do you have any fear for bad student reaction to a case that has sexual overtones and is titillating in a Beavis-and-Butthead sort of way. I tend to ignore such things. But I know other profs take a different approach.