PrawfsBlawg

Types of injunctions

A point to elaborate on following the argument and a lot of commentary (including from Nick Bagley in The Atlantic) on the birthright-citizenship case: I still do not believe everyone agrees or understands what we are talking about.

Bagley's summary of the states' argument tees this up. The states (via the NJ SG, former Kagan clerk Jeremy Feigenbaum, who did an excellent job) argued they needed an injunction prohibiting all enforcement as to all people everywhere because people move and New Jersey would have trouble administering programs not knowing whether or when a person is a citizen. This echoes Texas' argument as to DACA--"people move into the state and we would be forced to expend money to give them licenses and other state benefits if the could get status outside of Texas." Bagley points out that, as framed, this is not a universal injunction; it is a broad party-protective injunction.The plaintiff needs that breadth (it argues) to obtain complete relief. By contrast, Bagley argues, a  true universal injunction is one that is "not necessary to provide complete relief to the plaintiffs, but [is] needed to protect non-plaintiffs."

I think we can identify four types of orders four types of orders

1) A party-protective injunction that is no broader than necessary to accord complete relief to the plaintiff--it stops the government from doing X to the plaintiffs.

2) A party-protective injunction injunction that incidentally protects non-parties because it is impossible to protect parties without protecting non-parties. This is the polluting factory, raw-sewage in prison, and legislative districts--ordering the state to create a valid legislative district places every person who lives there the benefits of a valid legislative district. It is not (contrary to what SG Sauer argued at pp. 14-15) school desegregation; schools could remedy the harm to one plaintiff by ordering the school to admit him (but only him) to an otherwise-white school. David Marcus has shown that the 1966 amendments to FRCP 23(b)(2) responded, in part, to courts narrowing the remedies; class actions demanded a broader remedy in which all members be admitted, thus requiring integration.

3) An injunction that protects non-parties because that extra protection is necessary to accord complete relief. This is where New Jersey believes it sits, as Bagley describes.

So # 2 arises when it is logically or practically possible to give the plaintiff relief that does not accord relief to everyone else. That injunction is still non-universal, however, because the incidentally benefited non-parties cannot enforce the injunction (by presenting non-compliance to the court or by seeking contempt). # 3 arises when it would be possible to split the parties from non-parties; the plaintiff then must show that the more-limited remedy does not accord complete relief and that it only gets complete relief with the broader injunction (placing it in the functional position as # 1).

4) An injunction expressly protecting (without actual or purported class consideration) parties and everyone similarly situated, where the defendant's action is not indivisible (# 2) and relief to non-parties is not necessary to remedy the parties. (# 3). That is, the arguments for non-party protection are grounded in considerations of fairness, equality, and uniformity--it is unfair, unequal, and disuniform to to give the benefits to parties and not to similarly situated non-parties.*

[*] Although, as Sam Bray pointed out, they are not similarly situated--one person got an injunction and the other did not.

This covers marriage equality; it covers efforts to strip sanctuary cities or universities of funds. And it should cover individual (as opposed to state) challenges to the birthright-citizenship EO--an injunction guaranteeing U.S.-born X's citizenship gives X complete relief, even if Y's citizenship remains in doubt. Only equality and uniformity concerns (U.S.-born X is a citizen but U.S.-born Y is not) push against that conclusion.

We will see if the Court can keep these straight when it decides the case.

Goldsmith on judicial supremacy and universal injunctions

In my comments on the universal injunction arguments, I mentioned the prominent assumption or acceptance of judicial supremacy (really SCOTUS supremacy) by the Court (unsurprising) and the SG. Jack Goldsmith dives into this, concluding that the "government realizes that the price of getting rid of universal injunctions is to pledge respect to Supreme Court precedent so that the Supreme Court, at least, can ensure that government illegality can be stopped in full." That is, judicial supremacy is the cost of non-universality.

I am not sure that is the normatively correct answer. But it correctly describes the state of play in the odd posture and context in which the Court is considering these issues.

A different scope-of-injunction puzzle

Florida made it a state crime for an undocumented person to enter the state. Plaintiffs obtained a TRO against Attorney General James Uthmeier, the appointed statewide prosecutor, and the state' attorneys for each of Florida's 67 counties, as well as their agents and officers and anyone in "active concert or participation" with them (standard language from FRCP 65(d)(2)). Uthmeier sent a letter to law enforcement agencies, stating that he interpreted the court order not to prohibit law enforcement from arresting and detaining people for violating the law (and presumably turning them over to ICE). The judge then extended the TRO to specify that it reached "any officer or other personnel within any municipal or county police department within Florida, the Florida Department of Law Enforcement, or the Florida Highway Patrol, and any other law enforcement officer with power to enforce" the challenged law. The court then entered a preliminary injunction matching the scope of the extended TRO. And she ordered Uthmeier to show cause why he should not be held in contempt for his cramped reading of the original TRO. For his part, Uthmeier insists that the court's injunction is impermissibly overbroad.

So the question is whether law enforcement necessarily act in active concert or participation with prosecutors. Two issues in this case turn on that: 1) Whether the extended injunction is valid at all and 2) Whether Uthmeier's initial interpretation was so unreasonable as to be contemptuous.

On one hand, stopping "enforcement" of the law means stopping prosecutions; police are not part of the prosecution process. In theory police will not arrest anyone under the law, knowing that the prosecutors cannot pursue charges and thus the arrest is pointless. On the other hand, that is not true in this case. The point of the law is to authorize state enforcement of federal immigration law; police thus are happy to arrest people under the law not for state prosecution but to turn them over to ICE. And even outside this case, police have an incentive to arrest and detain people even if the case will not go anywhere; there is a harassing and chilling effect I am sure they welcome.

Thoughts on the universal injunction argument (Updated)

Transcript here. Lee Kovarsky live-Blueskied the argument and gave a quick end-of-argument summary. I agree with Lee that Justice Gorsuch seemed more open to some universal relief in some cases than expected and that he and Barrett might join Sotomayor, Kagan, and Jackson to allow universal relief in some situations. But it really was impossible to predict. Lee is also adamant that Rule 23 cannot bear the weight non-universalists would put on it.

Other thoughts after the jump:

• A lot of discussion of how to get cases to SCOTUS as quickly as possible and how to allow SCOTUS to decide the issues as soon as possible. That took on a special focus when the SG suggested that the federal government would abide by SCOTUS precedent but not necessarily circuit precedent. It was part of a broader assumption and acceptance of judicial supremacy--and really SCOTUS supremacy. Lower courts make temporary predictive decisions that do not deserve as much deference from the executive, while the SG disclaimed power to ignore SCOTUS precedent.* Some questions (notably from Alito) suggested district courts are out of control and arrogating power to themselves.

[*] The SG could not pursue full-throated departmentalism in this case. The Court will not have it generally. It certainly will not have it in a case such as this, where the full range of executive power is laid bare.

I wonder if this case is the wrong vehicle to resolve universality because the substantive constitutional question is so obvious. Every lower court reaches the same conclusion and no one seriously believes any lower court will come out differently (or any district court that did would be quickly reversed). That gives the federal government an incentive to never seek cert. Instead, the government takes repeated party-specific losses in the lower courts but ignores circuit precedent (as the SG suggested the executive could and historically has done*) and continues to pursue non-party enforcement until a new order tells it to stop as to that party. Members of the Civ Pro Listserv suggested work-arounds,--prevailing plaintiffs seeking SCOTUS review and courts of appeals certifying questions to SCOTUS--while recognizing that these are rare and disfavored.

[*] To Barrett's surprise.

* The argument revealed competing (and irreconcilable) assumptions about  the system of constitutional litigation. The SG emphasized percolation, a necessarily slow process grounded in the dispute-resolution model of courts declaring law while resolving discrete disputes between parties. Jackson derogated this position as turning the justice system into a "catch me if you can" regime in which everyone must have a lawyer and file a lawsuit. Respondents and the justices questioning the SG emphasized the need for SCOTUS to decide constitutional questions  and make constitutional law (preferably sooner rather than later), the unquestionably binding-on-everyone nature of those SCOTUS decisions, and the harm that occurs pending slow, atomized litigation. Constitutional litigation must move fast and reach final resolution quickly; anything else leaves too many people exposed.

• Barrett and Jackson asked questions that illustrated confusion (on everyone's part) about what courts do in issuing injunctions and how that affects remedies. Does a court order the government not to do something unlawful ("Don't do X") or does a court order the government not to do something unlawful to the challenging party(ies) to the action ("Don't do X to this person"). Jackson and Barrett suggest that the court does the former. But they then suggest that only parties can enforce the injunction through an enforcement stopping conduct inconsistent with the injunction or by seeking contempt.

This disaggregates the "scope" of an injunction from who can enforce it. An injunction in A v. X prohibits enforcement against A; were X to attempt enforcement against A, A could ask the court for an order enforcing the injunction barring X from doing so and holding X in contempt. But a non-universal injunction does not affect X's attempt to enforce against B; B could not ask the court for an order enforcing the injunction and barring X from doing so and holding X in contempt. This also covers non-universal injunctions that incidentally affect non-parties--B cannot demand that X do a better job of cleaning the raw sewage out of the prison or of creating appropriate legislative districts; only A can ask the court to hold that X is out of compliance. An injunction becomes universal because of who it protects and because of who can enforce those protections.

Barrett and Jackson suggest another option: An injunction prohibits all enforcement ("Don't do X as to anyone"), but only the named party can enforce. That is, X cannot enforce the challenged law against B, although only A can ask the court to stop X from doing that or to hold X in contempt.

• No one seems to think about this problem in light of parallels between offensive pre-enforcement litigation (such as these cases) and defensive litigation. If the government attempts to enforce the EO against A (e.g., in a removal action) and A successfully raises the EO's invalidity as a defense to removal, the court will resolve the removal proceeding in A's favor; no one believes the order or judgment in that proceeding protects anyone other than A from deportation. The same should follow when A pursues offensive litigation to prevent that enforcement action, subject to devices available in equity (such as Rule 23). But if the judgment in United States v. A is not universal, there is no reason the judgment in A v. Trump should be universal.

• A lot of people in the argument attributed the rise in universal injunctions on the rise in unilateral executive action. I do not see why this matters for this case.  I suppose executive unilateral action produces more regulations, more APA challenges, and more universal vacatur, which raises similar-but-distinct issues. Perhaps unilateral executive action via EO produces more laws, more litigation, and more injunctions than where law only comes from the longer legislative process. But this is not a separation-of-powers issue; it is a government activity issue. As Sam Bray has pointed out, the New Deal produced a wave of new laws from Congress producing (pre-1937) a wave of injunctions stopping enforcement, none of them universal. A similar flurry of congressional action in 2022 or 2025 would produce the same universal injunctions as we now see against Trump's EOs. We would be having the same universality conversation had Congress eliminated birthright citizenship by statute. 

• Both respondents offered limiting principles. Counsel for the states  identified three "buckets" in which broader remedies are possible (I need to review the transcript). Counsel for individuals said when necessary for complete relief and in exceptional circumstances. The first is baked into the existing remedial standard, although I am not sure how guaranteeing A's citizenship is incomplete if B's citizenship is not protected. The second would swallow the rule. Even if "exceptional circumstances" incorporates the merits and applies to really unconstitutional actions, every plaintiff believes that to be their case. In any event, I do not know why that should matter. The logic of universality is that B should not be subject to enforcement if A is not subject to enforcement. That is true regardless of whether the challenged law is a little bit unconstitutional or a lot unconstitutional.

Update: Finally had a chance to see the transcript. Counsel for the states offered three: 1) Alternative ways to remedy harms to parties are practically or legally unworkable; 2) Congress authorized universality (e.g., APA vacatur); and 3) Alternative forms of non-party relief are practically or legally unworkable (e.g, the plaintiff will be deported before the court can consider class certification at the TRO stage).

• There were concern for organizational plaintiffs and how they may not fit within the Rule 23 solution. Of course, organizational plaintiffs raise their own problems. They create (permissibly or otherwise) another work-around to Rule 23. And they raise the prospect of universality through an injunction protecting the organization and thus everyone one of its members, with the burden on the court to identify those members in subsequent efforts to enforce the injunction.

State action on remand

The Ninth Circuit decided Garnier v. O'Connor-Ratliff, holding that the school board member acted under color in blocking people from her Facebook and Twitter feeds. This was the companion to Lindke v. Freed, where SCOTUS set the (in my view too narrow) approach to public officials' social-media pages. The Court GVRed this case in March 2024.

Lindke adopted a two-step approach: 1) Whether the official had formal authority to speak for the government and 2) Whether it did so on that page; the Ninth Circuit found both prongs satisfied as to O'Connor-Ratliff's pages. Board members (especially the Board President) possessed authority to make public pronouncements about the Board's activities. O'Connor-Ratliff's pages looked official, as she identified herself as a Board member and did not include any indicia or disclaimers of the pages being private (as in Lindke). And she regularly made official announcements on there, including the announcements on which plaintiffs sought to comment and for which O'Connor-Ratliff blocked them.

The opinion suggests more play in Lindke's joints than I thought. See if it holds up.

MLB removes deceased players from permanent ineligible list

General announcement here and letter from MLB Commissioner Rob Manfred to Pete Rose's attorney here. The decision covers Pete Rose, Shoeless Joe and the other Black Sox, and eight other players.

MLB's position has been that permanent ineligibility ends upon death. In the letter to Rose's attorney, Manfred explained that a dead person no longer threatens the integrity of the game and thus his continuance on the list does not serve the purposes of Rule 21. His new move was affirmatively removing Rose and other dead persons from the list, a move to align MLB's rules with the Hall of Fame rule regarding Hall eligibility of people on MLB's list. Because Rose, Jackson, et al. no longer on MLB's list, they are eligible for Hall consideration. The Hall announced that the players would be considered by Classic Baseball Era Committee (pre-1980) for 2027 voting and 2028 induction.

I remained in the no-Hall camp for Rose until his death last fall. But I can live with posthumous induction: "Rose becomes part of the baseball story for all time but does not receive the honors and prestige of--and opportunity to monetize--being a living Hall Member."

Same-sex marriage and universal injunctions

A further thought on universal injunctions: Sam's first post unpacks the question of when universal injunctions started, both for the historical pedigree (whether non-party relief has some basis in historic equity or common law) and for when the issue burst on the modern scene.

I cannot prove causation. But I want to make a pitch for the same-sex marriage litigation from 2012-15 as a turning point. Although those cases involved challenges to state law, this was a nationwide litigation campaign of challenges in multiple states. And it exposed the atomized nature of constitutional litigation.

An injunction enjoining enforcement of one state's SSM ban guaranteed marriage licenses to the three or four couples who brought the suit but did nothing for non-party couples. Many states agreed to grant licenses to non-parties, voluntarily complying with judicial precedent giving the injunction universal effect if not force. Alternatively, new couples sought to join cases as plaintiffs and to expand the existing injunction to protect them and guarantee them licenses. Either required steps beyond the original injunction.*

[*] Either move suggested chaos had SCOTUS resolved marriage equality the other way--states undoing valid-at-the-time marriages or states having a small class of married same-sex couples while able to deny licenses to such couples going forward.

The marriage-equality campaign also introduced zombie laws into the mix. The Eighth Circuit affirming the invalidity of Oklahoma's SSM ban did nothing to stop Kansas officials from enforcing that state's ban as to anyone--the decision zombified Kansas' law but did not produce (yet) a judgment prohibiting Kansas officials from enforcing its ban. Binding precedent dictated the result of that litigation--a district court in Kansas would declare that law invalid. But its injunction guaranteed licenses only to the named couples and not beyond. The cycle repeats--other couples must undertake new-or-expanded litigation or states must voluntarily comply with new precedent.

All of this raised the  complaints of inequality and unfairness that universalists fear and that drive current calls for universality in some contexts--officials must grant licenses to the plaintiff couples but could deny them to other couples without violating the court order; Kansas officials could continue to deny licenses despite binding court of appeals precedent (based on Oklahoma's law).

Judicial departmentalism and universal injunctions

Sam Bray has a series of posts on universal injunctions in advance of Thursday's arguments on the emergency motions in the birthright-citizenship cases, which are likely to focus mostly on scope-of-remedy. I agree with Sam on pretty much all of this. But I want to riff on one thing. He writes:

In the dispute-resolution model, as long as there is vertical precedent, the Supreme Court still decides questions for the entire federal judiciary. Universal injunctions are inconsistent with the traditional judicial role at every level of the federal judiciary, including the Supreme Court. But there is a sense in which the point is academic for the Supreme Court. It does not need universal injunctions; its holdings already have universal effect as precedent for other federal and state courts. If the Supreme Court eliminates the universal injunction, it will be resetting the remedial practices of the lower federal courts, but it will not be restraining its own decisional authority in any substantial sense.

SCOTUS's resolution is not "universal" in the sense of protecting all people. It resolves one case, affirming or reversing lower courts and compelling them to enter some judgment--a remedy that, per Bray's arguments, is limited to the parties. SCOTUS's declaration of the law establishes universal precedent for lower federal and state courts. In a judicial-supremacist world, it also establishes universal precedent for other actors, having "resolved" the constitutional issue.

Judicial departmentalism complicates this story. Its key premise is that SCOTUS precedent does not bind non-judicial actors; the executive can continue to act contrary to SCOTUS precedent. And because SCOTUS' judgment (or the judgment it orders the lower court to enter) is non-universal, the executive does not violate a court order in acting contrary to that prior case. In effect, we start over--new litigation from the new (actual or potential) enforcement targets, new non-universal judgments from the lower courts (bound to apply SCOTUS precedent), new non-universal SCOTUS affirmance (also applying its precedent). The executive keeps losing, of course (barring a change in precedent). But people must litigate to get there. And we do this as long as the executive has unprotected people to target.

This complicated process might offer a further justification for universality. The federal courts (or at least SCOTUS) must be able to grant universal remedies, otherwise no one is safe from an executive willing to pursue new enforcement against new people (not protected by the existing judgment) in the face of certain judicial defeat. At a minimum, the process is the punishment--the executive achieves something by forcing new and repeated litigation, even if he loses at the end of the day. Especially if some enforcement succeeds (in the moment) against those who are not party to any round of litigation.

On the other hand, non-universality helps prevent judicial departmentalism from collapsing into supremacy. The courts get the final word in any case--the judicial view of the Constitution prevails and the executive loses under existing precedent. But nothing stops the other departments from creating and pursuing new cases.

More campus-speech narratives and problems

Inside Higher Ed (may be paywalled) reports on the latest Republican Converse Auto-Da-Fe.

• The hearing involved the Presidents of DePaul, Cal Poly San Luis Obispo, and Haverford. Haverford President Wendy Raymond--the only female witness (sensing a pattern on this)--bore the brunt of GOP attacks about donuts (read the story--this keeps getting more stupid) and her refusal to disclose any disciplinary action the college took against protesters (prompting one committee member to threaten the school's federal funding, which also requires schools not to disclose student disciplinary records).

• The Democrats invited Georgetown Prof and former ACLU Legal director David Cole to finally explain, for the record, the underlying First Amendment issues:

“The line between protected speech that is antisemitic and discrimination that is antisemitic is a hard line to draw, but it’s a line that our Constitution compels us to draw,” Cole said.

He added, “It’s not a line that I’ve heard a single Republican care about on this committee.”

To draw that line, Congress needed to engage in a fact-finding mission and “determine what actually happened based on often-competing accounts, and then you make a determination based upon those facts,” he said. Instead, the committee has seized upon various complaints, which they have not investigated, and then brought in college presidents to “berate them based on the committee’s version of the facts, which may or may not be true,” Cole said.

This did not stop Elise Stefanik from asking each president whether calls for genocide are protected speech and the presidents from saying that it is (it is not, at least in some contexts).

Cole likened these hearings to HUAC, which pissed off one Republican member who probably cannot see the connection.

• I wonder if these are running out of steam.

• Separate from that, Temple University has been dealing with some stuff, according to a kind-of-vague statement from President John Fry on Wednesday. As far as I can tell, we have: 1) Two students got a bar to put "Fuck the Jews" on a message board at an off-campus bar; 2) a student did an interview with a racist/antisemitic media personality, prompting the university to condemn his statements; and 3) another student, identified with Temple's SJP, in an online video makes "alarming statements related to the United States." The two students at the bar have been suspended; the other two are under investigation and threatened with expulsion; the letter reminds that the university Code of Conduct applies to off-campus conduct.

It is impossible to know what was said in the latter two situations. "Fuck the Jews" is so clearly constitutionally protected (it is not incitement or a true threat and unless the bar had been rented out for a Jewish celebration of some kind, not targeted harassment) that those suspensions cannot stand. Fry's letter reminded of this incident at University of Oklahoma from 2015, in which two frat members were expelled for singing a racist song during a fraternity event--I think the students walked away quietly rather than challenging their expulsions. I wonder if these students might do the same.

A recurring complaint since October 7 and the campus protests has been the failure of universities to punish antisemitic speech as they did racist or sexist or anti-immigrant campus speech. I had hoped that universities learned that they had taken the wrong approach previously and they would respect the First Amendment limits on codes of conduct (however ugly that might be). The Temple case shows at least one school going in the opposite direction.

To be clear--these people are assholes and should be shunned and derided and spoken back to and perhaps even rejected in private social and professional circles--what Republicans and FIRE would call cancel culture. But they should not suffer formal sanction by the state. We have gotten this entirely backwards.

Pope Leo XIV and Diversity Jurisdiction (Updated)

Must the new Pope renounce his US citizenship, as he is now head of a foreign sovereign? Or can we replace Elizabeth Taylor and Kevin Spacey (whom current students do not recognize) for hypotheticals about diversity jurisdiction with US citizens domiciled overseas?

Update: Under 8 U.S.C. § 1481(a)(4), serving in a position in a foreign government can be an expatriating act if the position requires the person to adopt the nationality of the foreign state or to take an oath, affirmation, or declaration of allegiance. According to a State Department explainer, it requires an intent to expatriate and the Department will inquire into that intent when the position is head of state or head of government. The Foreign Affairs Manual states that "[h]olding a head-of-state, head-of-government, or foreign-minister position may be incompatible with maintaining U.S. citizenship, although the issue has not been expressly decided by the Department." Apparently Golda Meir did not relinquish her citizenship when she became Prime Minister of Israel, although a reader tells me that Israel required recent Americans to relinquish US citizenship before taking government positions).

Update on the Update: The Religious News Service reports that Leo has retained his Illinois residence and voting registration, although he lived in Peru beginning in 2014 and the Vatican since 2023. For diversity purposes, this would present a fun question whether he affected a change of domicile (demonstrated an intent to remain in his new residence). Voting is a big indicator of domicile, weighed against the fact that the Vatican is going to be Leo's new "community." Fun stuff.

Nonsense lawsuits don't help

Eugene Volokh flags a decision dismissing suit by a Jewish UNLV student asserting IIED claims over pro-Palestin/anti-Israel campus protests. The court says the plaintiff failed to allege outrageous conduct or severe emotional distress and that the speech described is protected by the First Amendment. I agree with the analysis (as does Eugene), which should presage the fate for many similar lawsuits. Claudine was right--context does matter and in context a lot of antisemitic campus speech enjoys constitutional protection, however bad or uncomfortable it makes people feel. I am glad this view prevails in court if not in Congress.

The proceduralist in me flags to other pieces of the case. First, the court also dismissed for lack of personal jurisdiction claims against American Muslims for Palestine, which the complaint alleges is a propaganda arm of Hamas that controls SJP and the UNLV chapter of SJP--AMP did nothing to target Nevada.

Second, the court dismisses without prejudice and offers this:

If Gerwaski chooses to amend his complaint, he is advised to plead his claims against AMP and SJP-UNLV in accordance with the First Amendment principles I have described. He is also advised to comply with Federal Rule of Procedure 8(a), which requires only “a short and plain statement of the claim” showing he is entitled to relief and “a demand for the relief sought.” Gerwaski’s FAC contains 51 pages of background material before getting to a five-page “Statement of Facts” that actually pertains to Gerwaski. ECF No. 6 at 52-56. Althoughsome background and jurisdictional information may be helpful, Gerwaski also spends pages describing a national organization’s response to a congressional subpoena, repetitive allegations about the inner workings of various terrorist organizations, and activities at campuses other than UNLV. None of that seems relevant to this case.

Indeed.

MAGA and the First Amendment

Trump during a press availability today: "I think people are allowed to protest. You have to do it in a reasonable manner. Not necessarily friendly, but reasonable. Otherwise Pam will come after you and you will have a big problem."

The reporters in attendance laughed. And the Professional Jewish Community cheered. And so did the people who broke into the Capitol as "tourists."

Chaos and merits

SCOTUS stayed the injunction barring enforcement of Trump's plan to bar trans people from the military. Sotomayor, Kagan, and Jackson dissent. No statement from anyone. This is, in essence, the death knell for trans people currently in the military--they will have been discharged before any final resolution.

The case demonstrates the dominant role that the merits play on the shadow docket. The balance of equities should weigh against a stay because every trans person will be discharged before this case can be resolved in two years, clearly a greater burden than the government having to abide the status quo (trans people serving) for a couple more years. And rejecting the stay is less likely to create chaos if the injunction were affirmed and the military had to re-enlist (or provide backpay) to all the people it discharged. But the majority must believe the order constitutionally valid, so that wins out--there is no good reason to make the government wait to enforce (what the Court plans to find to be) valid policy.

The other question is what this means for other anti-trans orders. Was the majority so certain of validity because this involved the military and the deference that receives? Or does this reflect a more general position within the majority that anti-trans discrimination is rational and permissible?

Someone (sorry Paul, don't remember who) wrote that the Court's approach to stays pending appeal changes with the administration--Biden's Administration cannot enforce anything until SCOTUS finally declares them valid; Trump's Administration can enforce everything until SCOTUS finally declares them invalid. There might be some truth to that, at least in effect.

Zick on the First Amendment Watch

Tim Zick (Wm & Mary) has launched Trump 2.0: Executive Power and the First Amendment at the First Amendment Watch at NYU's Carter Journalism Institute. The site, which Tim will update weekly, provides documents, news, and commentary on the various Trump EOs and their First Amendment issues.

Worth checking in as the EOs and lawsuits multiple.

Kentucky Derby predicts America's future

Sovereignty beat Journalism. Render Judgment finished 17th.

We are in trouble.

ATL Law Revue Video Contest

The finalists are in, including my students Spice Girls parody. Vote early, vote often.

Motions to Strike in Action

Courts do not often strike (on motion or on its own) under FRCP 12(f), especially  an entire pleading. So this one is making the rounds and likely to appear in Civ Pro classes next year:

Plaintiff filed a § 1983 action, represented by Dragon Lawyers, P.C., whose firm logo is this:

The Complaint contained that logo as a watermark and a label on every page. The court was not amused--it struck the pleading, stating "[u]se of this dragon cartoon logo is not only distracting, it is juvenile and impertinent. The Court is not a cartoon."

The watermark is one of several mistakes that jump off the page. It misnames the court in the caption "District Court for the United States of America." And it asserts an 8th Amendment claim in a case arising from pretrial detention.

It is tempting to blame this on Trump and his minions and the Twitterfication of public policy--a pleading version of what Stephen Miller and his ilk do everyday. But lawyers have done stuff like this for years. Technology allows them to do it on another level.

Creative project blows up

I have written about the creative projects students do for Civ Pro. This year's batch included song parodies by two gifted singers, a picture of Twombly and Iqbal walking Conley to his retirement, a large movie poster featuring figures from the pleadings we work with, quite complicated board games, and many pictures of monkeys (I still use the complaint in the "Monkey Selfie" case).

But one song parody is getting a fair bit of love on TikTok (best of all, it is a song I actually know).

. . . And I did not speak out--because I was glad they came for them (Update)

Deborah Lipstadt gets Isaac Chotinered. It is not good. She becomes the latest Jewish thought leader to offer tepid criticism of Trump Administration excesses while blaming universities for bringing the attack on themselves and failing to distinguish antisemitic actions (she comes back several times to UCLA students unlawfully blocking parts of campus) from obnoxious-but-protected speech and generally unlawful actions (occupying buildings) for which any antisemitic motives are irrelevant to the unlawfulness. This is disappointing because Lipstadt is a lifelong academic and smarter than Jonathan Greenblatt.

I will flag two points:

    • She says "Freedom of speech is freedom of speech. Incitement is something else. I’m not a lawyer, and I’m not going to get into what that is." First, nothing that has happened on college campuses comes near incitement--harassment or threats maybe, but not incitement. Second, this is all about what unprotected speech is and is not. By punting on drawing the line, she allows (even requires) universities or government to eliminate some protected speech because it makes her group uncomfortable.

    • Chotiner asks about her comment to the Forward that “I don’t oppose many of the things that are being done. I just wish they would be done more deftly.” She responds: "'[D]eftly' was the wrong word. That sounds almost conspiratorial. They should be done according to law." What exactly should be done according to law? I doubt there is a "lawful" way to arrest and deport someone for their speech.

I titled the post as I did because what we are witnessing is not what Niemoller witnessed (or he described it wrong). People are not failing to speak out against the coming. People are actively cheering it because "they" are coming for those these people do not like and supposedly doing so in the name of protecting them.

Update: She is back-pedaling, somewhat.

JOTWELL: Vladeck on LaCroix on Interbellum circuit justices

The new Courts Law essay comes from Steve Vladeck (Georgetown) reviewing Allison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalism (2024) on the role of circuit justices in the constitutional order during the Interbellum Period.

Erie

A Civ Pro student on Friday referred to the "relatively unhinged Erie choice." Best mistake I have heard in the classroom.

It's not the antisemitism, stupid (again and again)

I hope the silence from anyone in the Trump Administration about the planned (and more-serious-and-destructive-than-reported) assassination attempt against a Jewish governor--on Passover, several hours after a community seder--(finally) disabuses everyone that this administration cares about antisemitism as opposed to using Jews to attack ideas and people they do not like.

That Shapiro was the target provides a layer of irony--MAGA loved Shapiro last summer when pushing faux anti-antisemitism in arguing that Kamala Harris did not choose Shapiro as her running mate because he is Jewish.

Size matters

Ilya Somin highlights an amicus brief signed by 86 colleges and associations in the AAUP student-visa lawsuit. Most of the signatories are liberal arts colleges and private non-research-centric universities, with a few exceptions (Georgetown, Fordham, Michigan State, the University of Maryland System). Many of the presidents pushing back in public lead liberal arts college, while Trump aims (for the moment) at R1 universities. Don Moynihan argues the divide makes collective action more difficult because different schools' needs and interests do not necessarily align or allow for similar remedies (e.g., University of Michigan depends on research funding in a way that Bard does not).

Something similar may play out among law firms. Large firms have surrendered--preemptively or otherwise--while smaller and boutique firms (most recently Sussman) have pushed back (along with large firms such as Jenner and Hale, obviously). The larger amount of money and the more varied practices of big firms makes it more difficult to make common cause with smaller shops. The firms most able to fight (financially) have more to lose in its business model.

More anti-antisemitism as fig leaf

Wesleyan President Michael Roth offers the latest "Trump is using Jews and it will end badly" take. He highlights the White House "Shalom ____" tweets ("Shalom Khalil," "Shalom Columbia," whatever) and the large dose of sarcasm in which Jews should not find comfort. And he calls out the ADL for losing sight of its mission in defending Musk's Nazi salute and in only belatedly (and under pressure) supporting due process for Khalil.

Roth makes one interesting move--highlighting why Jews are safe at Wesleyan (my kid feels perfectly at home) and why the "situation was different at Columbia. Protests became violent (both in the actions of the participants and those of the police who were called in to quell them). Tensions between supporters of Palestinians and Israelis were at times extreme." He highlights a March Atlantic article by Franklin Foer that "document[s] some serious antisemitic activity."

I read Foer's article (missed it in March). It discusses numerous incidents of antisemitic violence and harassment. But it mixes them with examples of obnoxious-but-protected speech, obnoxious-but-core faculty speech, and violations of neutral regulations (e.g., occupying buildings) that would be unprotected regardless of the occupiers' motivation (although the university's selective non-enforcement raises distinct discrimination concerns). For example, academic freedom and the First Amendment protect professors who engage in polemic, inside- and outside-of the classroom, at least to a point; Foer describes a prof's actions without identifying any line or where it might be. Foer argues (and Roth accepts) that this reflects an overall antisemitic environment. But the conversation must separate the protected from the unprotected--what makes students uncomfortable from what violates their rights.

Scope of Pullman

A puzzle from the Fifth Circuit declining to abstain under Pullman from a constitutional challenge to a state judicial-ethics canon that might prohibit him from declining to perform same-sex weddings.

The court finds Pullman prerequisites--constitutional challenge to ambiguous challenged state law--satisfied. It declines to abstain because of the status of a pending state-court litigation in which a different judge challenged the same canon on state-law grounds. The district court abstained believed this litigation would resolve the meaning and scope of the canon; the court of appeals disagreed on that point, believing other issues might prevent the state courts from reaching the scope issue. Because the other state litigation would not definitively address the state issue in this case, the court would not rely on it.

The point of Pullman is to for the federal plaintiff to litigate his state issues in state court; the point is not to free-ride on other possibly related litigation. The status or scope of another, unrelated state-court case should not affect the court's abstention decision. If this federal plaintiff could get a state-court ruling on an ambiguous state-law issue that might obviate his federal constitutional challenge, the court should abstain.

On a stranger note: The court gets to the same place by certifying the state-law issue in the current case to the Texas Supreme Court. In other words, the court really chose certification over abstention as the mechanism in which the current federal plaintiff will resolve the ambiguous state-law issue. Which perhaps was the right move--courts have not found a good metric for when to abstain and when to certify, as the standards are (or should be) basically the same. Just for the wrong reasons.

More Law v. Antisemitism

David Schraub writes about the ADL's announcement that it will not sponsor future editions of the Law vs. Antisemitism Conference unless the organizers grant it the right to exclude speakers, including those from Jewish Voice for Peace. David addresses the problem from his experience as site host for the 2023 Conference at Lewis & Clark. I agree with everything David says about the craven anti-intellectualism of the ADL and Academic Engagement Network.

I served as site chair for the 2024 Conference at FIU (link includes videos of every panel), held about five months after October 7. We discussed questions of balance in organizing panels, but encountered no demands about panel composition and no demands about who should or should not be allowed to appear or present at the conference. I cannot imagine the conference chairs will agree to this demand. This means the purported leading advocacy group on antisemitism will no longer sponsor the largest academic conference devoted to the issue because it cannot dictate the ideological content of the conference.

Real Genius

With Val Kilmer's death on Tuesday, I want to give some Gen-X love to Real Genius, Kilmer's second starring role (one year before Top Gun) and a mid-'80s classic. Some commentary on the film, including by the inspiration for the main female character. Kilmer plays an irreverent-and-rebellious student at a thinly veiled Cal Tech. It is loaded with great one-liners; my favorite: "I was thinking of the immortal words of Socrates, when he said, 'I drank what?'"

zichrono livracha.

TL;DR: It's too much money to stand on First Amendment principle

I signed a letter of Northwestern alums urging the Board and the administration to hold the line. The well-lawyered response did not inspire confidence that NU will hold out--"With the federal government providing hundreds of millions of dollars annually to Northwestern in student financial aid and research grants, each of our choices carries risk to our institution." Worse, it does not appear NU (or any other school, perhaps save Princeton) wants to make the government take the money (something that, at the end of the day, it might be unable to do). In Civil Rights, we discuss how narrowing private rights of action (implied or under § 1983) to enforce Spending Clause enactments leaves funding cuts as the sole enforcement mechanism and how that is hard to do, given the statutory procedural and substantive protections. Apparently the real reason is that the federal government will not strip funds from Alabama for a discriminatory driver's license policy; it will strip funds from Northwestern for not doing enough to silence objectionable speakers.

Meanwhile, as another law firm falls, I wonder: Each firm has committed $ 100 million to pro bono work on which it and the Administration agrees. But will firms do additional work (beyond $ 100 million) on pro bono matters with which the Administration does not agree? Or is it committing to limiting its pro bono activities to those issues the Administration will support.* And does no one see the First Amendment problem with that? Milbank actually had an additional thing I had not seen with other firms--it pledges viewpoint and political diversity in its pro bono committee.

[*] Reportedly, Paul Weiss has stripped from its website PR stories about its pro-LGBTQ+ work. So that hints at the answer.

I join

Josh Chafetz (Georgetown). I join you heartily and gratefully. This is fine--very.

Searching for agreeable Jewish organizations

My wife and I are struggling to find space in the Jewish community, given our (to some extent) heterodox views about Israel and Israel's centrality to the Jewish faith and what it means to be Jewish, as well as our willingness to tolerate (or at least accept the reality of) antisemitic speech on and off campus and the First Amendment obligation to deal with hateful views.

I am more troubled by this silly poster than I probably should be. But so much seems wrong: The easy jokes about "kvetching." The centrality of complaining to much Jewish humor. The First Amendment. The fact that people said the same thing to Jews (perhaps including my grandparents) 100 years ago. The fact that Jewish study calls us to question (which is just another form of complaining) everything. Beyond all that, this bothers me because it accepts the MAGA framing that all who disagree with us (however mild or peaceful) should shut up or leave, which runs counter to my understanding of Judaism and democracy (which run together here).

(Assuming this is real. I found it floating around social media and commented on by a lot of people I trust. I will delete if I learn it is false).

Somin on university lawsuits

Ilya Somin argues that universities should challenge speech-based deportation of students, rather than leaving it to individual challenges (or even class actions) by the students.

Universities (especially public universities) took the lead in challenging the Muslim travel ban and other policies during Trump I. They claimed injury from not having these students as part of the community, with the associated financial and mission loss; they succeeded with various forms of third-party and association standing. The standing argument for universities now might be stronger, because they may be able to frame a form of first-party standing--the threat to their students violates universities' First Amendment rights to create an academic community and forces the university to institute certain speech policies it may not like.

Charlie Sykes interviewed Anne Applebaum and asked an interesting question: Why are institutions so hesitant to challenge Trump now compared with eight years ago. Applebaum speculated it is about January 6--everyone knows Trump has no boundaries and will resort to violence. I had a different take (although perhaps it is related): Trump did not target universities or law firms or companies. It was easy to stand-up for others (e.g., banned immigrants) when there was nothing personal on the line. Facing direct sanction, universities and firms choose to lay low and appease, hoping to get along unscathed. The fallout affects the firms as well as the people they might represent.

A Final Four Minyan (Updated)

Three of the four head coaches in the Men's Final Four are Jewish--Jon Scheyer (Duke), Todd Golden (UF), and Bruce Pearl (Auburn). All are explicit and open in their Jewish identities. As an undergrad, Scheyer participated in a Duke improv video showing everything he could do in 75 seconds (as a high-schooler in suburban Chicago, he scored 21 points in 75 seconds of game time); among the things is biking to the campus Jewish center, emerging with a tallis and long beard, and spinning a dreidel. Pearl spoke about Israeli hostages following a post-game press conference. Golden played in the Maccabi Games and for two seasons in Israel. (He also has been accused of sexually harassing and stalking female students at UF, although the Title IX office found no statutory violations).

We may not be done. USC women's coach Lindsay Gottlieb is Jewish; the Women of Troy play in the Elite Eight tonight, although without superstar JuJu Watkins, who tore her ACL in the Second Round. (Update: UConn beat USC by 14. USC made them work for it even without Watkins--they cut a 19-point deficit to 5 late in the third).

Finally, on the overall theme: Nine Jewish players were on MLB Opening Day rosters, with three more players on the injured list.

Combatting antisemitism (Updated)

This is the Trump Administration's latest undefined-and-meaningless catch phrase. It appears in the surrender agreements from Columbia, Paul Weiss, and Skadden. Marco Rubio has cited it as a central feature of American foreign policy and thus a reason to deport non-citizens who engage in certain protest activities.

But what does it mean and what does it allow?

Antisemitism has existed for one day less than Jews have existed, in many evolving forms and severity. So I do not know how Donald Trump and his minions (no pun intended) are going to eliminate it now--people are going to believe what they believe and say what they will say. And if we cannot eliminate it, I worry that Donald Trump and his minions will do what they are doing--controlling what people say and believe by arresting and deporting those who engage in wrong-think, stripping money or otherwise threatening universities who do not align campus speech (faculty and student) with the Administration's views, and coercing law firms into pursuing litigation (whatever that may look like) against those who hold or express those wrong views. That is before we get to the impossibility of defining antisemitism and controversy over the HIAS IHRA definition and the likelihood that many will consider Rumeysa Ozturk's op-ed or an academic talk about the Gaza death-toll "antisemitic." And before we get to how heads would explode if a Democratic administration declared that "combatting racism" represented U.S. policy and compelled universities to do to (purportedly) racist speakers what the current Administration is doing or threatening as to (purportedly) antisemitic speakers.

Update: As if on queue, Harvard, with the same code for "do more to restrict speech the Administration does not like," although addessed as "addressing" (rather than combatting). Yes, antisemitism "is present on our campus," as it is everywhere in the world. Also present on campus is racism, misogyny, anti-trans bigotry, anti-Nazi hatred, and a whole range of ideas that different people may like or dislike. What do these schools believe they can do without undermining any commitment to free thought, free speech, and academic freedom? Because Donald Trump does not care about those--he just wants "those people" off campus. So nothing short of that will appease him. Or too many Jewish organizations.

Free speech stuff

Random stuff, connected by the Administration's assault on free speech and the refusal of many to recognize or acknowledge it for what it is.

1) Good statement from J Street criticizing the Trump Administration for using "fighting antisemitism" as pretext for attacks on immigrants and universities and on constitutional protections, especially free speech. It echoes the not in our name theme that many in the Jewish community have pushed.

2) I see a telling disconnect between how people (especially Jews) view the detention of Rumeysa Ozturk and the detention of Mahmud Khalil. Many people see Ozturk as a free speech problem--agents seized her for core First Amendment activity of writing an anodyne newspaper op-ed. But they view Khalil as purely a due process problem--seizing and deporting him is fine, so long as they give him process prior to deporting; no one acknowledges that the government seized him for core First Amendment activity of protesting. (This was the ADL position--give him process, but thank you for protecting delicate students from pro-Palestine speech). Even if you accept that Khalil violated some campus rules in those protests, the government does not revoke green cards for minor property violations; the special attention to him arises from the message underlying those violations. One cannot distinguish the underlying speech problem from these cases, at least under U.S. free speech law.

3) NYU canceled a speech by Johanne Liu, former president of Doctors Without Borders, apparently fearing her talk would be perceived as anti-Trump and antisemitic. The last decade has been filled with people insisting that the greatest to free speech comes from a university canceling or disinviting speakers (it is a key metric in FIRE's free speech report card) or otherwise interfering with their ability to speak and be heard without interruption. Those who do not like what the speaker says should sit quietly and politely listen, perhaps asking a challenging (but polite) question in Q&A. Apparently that applies when the objecting person is a queer sophomore wanting to avoid feeling othered by the speaker--not when the objecting person is the President of the United States supported by masked ICE agents. I pick on FIRE a lot, but I want to hear what they have to say on this.

Law Deans' Letter

Here. Good on FIU Dean Antony Page for signing.

On institutional neutrality

Amid failures of universities to speak as one voice against the attacks on academic and of law schools to speak as one voice against attacks on law firms and the legal profession, critics complain about institutional neutrality and the Chicago Principles--the supposed view that institutions should not take corporate positions on matters of public concern.

As I wrote a few days after the election, the Chicago Principles do not require institutional silence. The Kalven Report said:

[f]rom time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.

The Administration threatens the university mission by cutting funding and seizing control over hiring and curriculum; Kalven would say a university can (must) defend its interests and values. That universities and law schools have failed to do so reflects not institutional neutrality but cowardice.

Challenging EOs

Genevieve Lakier's guest post at Balkinization criticizes the Fourth Circuit stay of an injunction barring enforcement of Trump's anti-DEI executive order. She argues that the Fourth Circuit treated the EO as government speech, a broad statement of government policy, ignoring its legal force and immediacy. Demanding that challenges wait until agencies enact regulations implementing the EO prolongs its chilling effect.

Trump's penchant for EOs creates some puzzles for constitutional litigation.

1) When is something sufficiently enforceable as to allow litigation? Had Trump urged--at the State of the Union or in a letter to congressional leadership or some other public message--Congress to enact identical anti-DEI legislation, no one can bring suit until Congress enacts (and Trump signs) the legislation. Had Trump given a speech--but no signed EO--ordering executive agencies to enact identical anti-DEI policies, no one can challenge anything until the agencies act. So what is it about the EO that makes it different and challengeable when neither of the other two do not? Is it the president's signature?

2) Jack Goldsmith argues that courts issue more universal injunctions against Trump actions than against actions by Democratic presidents. Sam Bray counters that Goldsmith relies on studies that do not count universal vacaturs of regulations under the APA. That exclusion skews the numbers--"The Biden administration issued a lot of rules that were stopped with vacatur; the second Trump administration is at present relying a lot on executive orders, and they are being stopped with injunctions. Any narrative that counts only injunctions and leaves out vacatur will miss the fundamental equivalence in the judicial action against both administrations."

3) It also makes convenient Ohio S.G. Elliot Glaser's argument that universal vacatur is permissible but universal injunctions are not. So courts can universally stop the common mechanism through which Democratic Presidents act but not universally stop the common mechanism through which Republican Presidents (especially Trump, who sees EOs as reflecting his power as a man of action) act.

4) I wonder if the in-between nature of EOs warrants courts issuing DJs but not injunctions. An injunction is less necessary or appropriate when there is no enforceable policy to enjoin. But--accepting Lakier's argument that the EO is sufficiently imminent and chilling--a declaration that the policies commanded in the EO might be a sufficient fallback. Lakier seems open to this. And it satisfies what Steffel suggests to be the purpose of DJs--so one need not act at one's peril to determine their rights.

Fairness in sports

This piece by Jonathan V. Last is the best argument against the simplistic "fairness" argument related to trans girls playing girls sports. Sports are inherently unfair--athletes at all levels possess different levels of ability that creates an imbalanced playing field. Male puberty (tempered by hormone therapy) could offer some further benefits and imbalances in some situations, but it is not uniform or even predominant. In any event, none of it matters until something real is on the line (money, college scholarships, etc.). Last comes at it as a former high-school and college athlete, youth-sports coach, and parent of a D-I-quality athlete, who has competed for much of his life at a level above his peers (he did not surrender a hit in three years of little league).

College presidents speaking out (?)

Slowly--Christopher Eisgruber (Princeton); Danielle Holley (Mount Holyoke); Michael Roth (Wesleyan); Lee Bollinger (formerly Michigan and Columbia). Should we draw anything from three of this group being law professors? University pushback may be wrapped in the (perceived) hierarchy of higher education. Wesleyan and Mount Holyoke are elite institutions. But they are not THE elite institutions, because of their size and their missions. Many university leaders must respond. But the responding group must include the elite-of-the-elite. Eisgruber is a start. Who from Harvard, Yale, Stanford, et al. will follow? Penn is down for the count--it reportedly working to cede to the Administration's demands around the $ 400 million in funding, including "doing more" about antisemitism (read: sanctioning students who express otherwise-protected views about Israel and Jews), empowering campus police,* centralizing university discipline, and placing academic departments in receivership.**

[*] My future colleague Vanessa Miller writes about the rise and regulation of campus police departments. She picked a good time to write about these things.

[**] And, like clockwork, Penn learns how appeasement works when the Administration comes after for allowing a trans-woman to compete on its women's swim team--three years ago.

In the midst of the protests and encampments in Spring 2024, my temple hosted a panel discussion on campus antisemitism; panelists included Julio Frenk, then-University of Miami president and now-UCLA chancellor. Frenk argued that the Nazis destroyed German universities by driving out Jewish faculty and students and that they never recovered--no German universities are among the top universities in the world. His point was that American universities will destroy themselves if they do not get campus antisemitism under control.

It is ironic that the Trump Administration is attempting (and may succeed) in destroying American universities by defunding research, destroying academic freedom, and detaining faculty and students who hold distasteful view--all in the name of stopping antisemitism. I doubt Frenk and others cheering the Administration's efforts around antisemitism (which may include the powers-that-be in my temple) recognize that irony.

"in such inferior Courts as the Congress may from time to time ordain and establish"

I expect flacks for an authoritarian administration to denigrate the power of trial courts or the administration's obligation to obey. I expect better from the head of the opposition party (who has a J.D.), but maybe I shouldn't, because the lesson of the past week is that Chuck Schumer sucks at his job--generally and in the current moment.

But for those in the cheap seats:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Inferior-court judges wield as much of the judicial power as SCOTUS and enjoy the same structural independence as SCOTUS, subject to hierarchical review within the judicial system. Impeaching lower-court judges for their decisions is as problematic as impeaching justices for their decisions. Ignoring unstayed-and-unappealed lower-court orders is as problematic as ignoring a final SCOTUS opinion (which really triggers a final district court order).

SCOTUS has original jurisidiction in an unextendable universe of four cases--"affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." That means cases must pass through lower courts--including single-judge district courts; if they do not, they never reach SCOTUS. So to reduce the threat to the judiciary to that last stage--and to say we are in crisis only if the Administration disobeys the last stage--willfully misunderstands the process.

In some ways, the current conversation follows from the common misunderstanding of Cooper. Everyone views the case as the Court demanding that everyone follow its precedent, Brown. In fact, Cooper arose from Arkansas efforts to avoid a district court judgment in the unique litigation over desegregating Little Rock schools. This might be clearer had SCOTUS written that opinion to less emphasize judicial supremacy and more to emphasis the judicial process. Instead, Cooper makes SCOTUS the center of it all--allowing Schumer stupidly and Leaviit intentionally to treat lower-court judges as unimportant and powerless.

Remedies and the Constitutional Crash

An interesting remedial angle to the attempts to litigate against the ongoing constitutional crash.

It demonstrates the limits on declaratory and injunctive relief in the face of large-scale government wrongdoing. Injunctions take time, with stays and immediate review. Some enforcement takes place in the meantime, even if it might prove invalid. That enforcement chills others, who do not engage in some conduct (e.g., coming to or remaining in the United States), not knowing how that litigation will turn out. Those who have to wait it out suffer harm--consider federal employees seeking to avoid termination or to get their jobs back. And the Administration gains political points from being seen to take aggressive action, even if that action is ultimately declared unlawful--he can tell the public that it tried but soft liberals such as John Roberts stopped him. In other words, the government has an incentive to continue arguably unlawful activity; the risk of litigation defeat and injunction may not stop it from engaging in in the moment and while it can get away with it, daring the court to stop it. And that is before we get to DOJ's litigation misconduct. Judge Boasberg's actions show that courts will take small, measured steps and build a careful record before dropping the contempt or sanctions hammer on government attorneys. That creates more delays and more opportunities for the government to stall, with the attendant harms to rights-holders.

Damages should fill this gap, imposing liability and providing a remedy for past injuries caused by misconduct. Government cannot act unlawfully until told to stop, because a person can recover damages for that interstitial unlawful behavior. This reflects the consequence of the more-or-less-death of Bivens and how difficult (if not impossible) it is to obtain damages against federal officials. It is not damages-or-nothing for a Venezuelan non-gang-member, a person born in the US to parents on student Visas, or to federal employees, because they can get injunctive relief. But the lag creates its own harms. Of course, Bivens is not the only problem. Even if Congress enacted a federal equivalent to § 1983, qualified immunity would defeat most damages claim. I doubt any court would say it was clearly established on March 15 that the government could not remove people from the country under the Alien Enemies Act or that it could not detain a Green Card-holder for his expressive activities--because no Administration had previously tried.

Constitutional litigation has long flipped the remedial hierarchy, preferring equitable remedies (injunctions) to legal remedies (damages). Current events reveal some unique problems with that flip.

Procedural puzzles and Trumpian abuses

Some links and brief comments as litigation swirls around the Trump Administration's various abuses of power.

1) Sam Bray on DOJ's too-clever-by-half insistence that it did not violate the injunction barring removal of gang members under the Enemy Aliens Act because the plane had left US airspace. Bray explains that equity applies to the person, not the place.

I argued against the term "nationwide injunction" (and in favor of universal or non-particularized) because it allows this geographic point to leak in. An injunction applies to the defendant everywhere the protected person goes. So an injunction issued in the District of Columbia prohibiting enforcement of a law against the plaintiff protects the plaintiff and prohibits enforcement against him wherever he goes. A term such as "nationwide" allows DOJ to argue--however disingenuously--that the injunction does not go beyond the nation.

2) Competing takes--one from Sam, one from Steve Vladeck--on DOJ's emergency petition in the birthright citizenship case, which seeks a stay to pare back the injunction's universality.

3) A procedural question off Trump's new nonsense that the pardons of January 6 Committee members are invalid because done with an autopen: Does Liz Cheney or another person have standing to bring an EpY challenge to any prosecution or is such challenge ripe? Ordinarily the answer would be no because the prosecution and the constitutional issues are too speculative. But: 1) Trump has made it clear that he is coming for them (and under the unitary executive we need not wait for DOJ) and 2) the constitutional issue--the validity of the pardon--is obvious and present, regardless of what charges they bring.

By the way, Sam's posts appear on the new Divided Argument blog, a group blog by a group of top Fed Courts types, including Richard Re, who will be blogging there rather than here in the future. Subscribe and bookmark.

Kilborn v. UIC

Seventh Circuit holds that UIC Law Prof Jason Kilborn adequately pleaded a First Amendment retaliation claim where the school sanctioned him in response to student objections to tests and discussions of some race-related issues in class and to how he spoke about the subsequent controversy. (I wrote about the early days of the case--in 2021). Some noteworthy things in the opinion:

• Garcetti does not apply to a professor's testing and classroom speech or to out-of-class conversations arising from the controversy over his classroom speech. Academic speech is presumptively (if not per se) of public concern--engaging students on policy issues, giving them a taste of real-world controversies, and addressing controversies within a public institution, such as when it is ok to refer to racial slurs in classroom materials. The court declined to do the Pickering balancing at the 12(b)(6) stage. So we go back for discovery and summary judgment, unless the school decides to cut its losses.

• No qualified immunity on Garcetti. This is interesting. Pre-Garcetti, Connick/Pickering offered "qualified protection" for academic freedom . Garcetti left open (in a footnote and a Souter concurrence) whether it applied to academics and no Seventh Circuit precedent applied Garcetti to university classroom speech. Thus, "[b]ecause our pre-Garcetti cases clearly establish a right to academic freedom in this con- text, and neither Garcetti nor our more recent case law undermines that right," the right to classroom speech Kilborn alleges was beyond debate--pre-Garcetti precedent told UIC administrators they could not punish Kilborn for this speech and Garcetti did not suggest any differently.

This is a good result in the eye of someone (me) who hates qualified immunity. But it seems to flip the presumption--absent new law telling the university speech is unprotected, it should have understood that it was protected and thus not sanctionable. Implicitly, university officials were not free to apply Garcetti on their own or to anticipate Garcetti's application to classroom speech in the absence of contrary precedent. But QI usually goes the other way--the officer can act absent clear precedent that he cannot act. I think this case will make an interesting puzzle in the next edition of the § 1983 treatise.

• Defendants have QI on Kilborn's compelled-speech claim (based on having to go through diversity training). Barnette clearly establishes a right to be protected against compelled speech by the government as sovereign; it does not speak to government as employer. And whatever Janus said about compelled subsidies for unions does not resolve employers compelling employees to speak. In an essay a few years ago (part of a symposium FIU hosted on Barnette's 75th anniversary), I suggested that Garcetti could undermine or limit Barnette in the employment context, particularly in light of Janus. This opinion at least suggests that is an unresolved question in a damages action.

Again, note the inconsistency, which turns on different defaults. UIC was protected in reading Barnette and Janus narrowly and acting on the view that it could compel employee speech absent precedent saying otherwise; it was not protected in reading Garcetti broadly and acting on the view that it could stop classroom speech absent precedent saying otherwise.

• If it carries the day elsewhere, the court's free speech analysis protects university professors against state and federal efforts to stop DEI and other "woke" classroom speech. If the First Amendment protects a prof whose classroom speech (in the school's warped view) makes certain students feel bad or uncomfortable, it protects her when she (in the state's warped view) makes those students feel good or comfortable.

Legislative Immunity?

How is this suit by a Maine legislator alleging she was stripped of her voting rights in retaliation for her anti-trans statements not barred by legislative immunity? She wants an injunction prohibiting the legislature from denying her vote or from ignoring her vote. This just seems obvious; what am I missing?

Moynihan on real chilling effects

Don Moynihan (Michigan, Public Policy) on government chilling speech in real and meaningful ways but no one noticing because people have been screaming about woke college students for so long. It captures most pieces of the current free speech crisis in one space, missing only Columbia and the ADL surrendering any pretense to caring about free speech and civil liberties.

Not in my name (Update)

It is a strange time to be Jewish in America. Government censors purport to be protecting us by trying to silence speech that they regard as antisemitic (which usually means critical of Israel and Israeli policy). Universities are targeting and punishing speakers and speech in the name of protecting Jewish students, at the cost of intellectual and academic freedom. Leading Jewish organizations (especially ones that rhyme with Panty Exclamation Teague") welcome anyone who supports the Netanyahu government, including when they make Nazi salutes or spread false claims that Leo Frank framing a Black man.

And it is a feeding frenzy across the ideological spectrum. As Democrats begin to fear a loss of Jewish support, they see the need to "do something" to show that they will protect Jews, even from imaginary or overstated threats. And so Democrats in the Democratically dominated Connecticut has introduced a bill targeting antisemitism (and anti-Islam bias, but let's not kid ourselves) on all campuses in the state.

Update: I guess I should add stripping funding from a university because it did not do more to restrict speech that certain people do not like.

This will not end well for Jews, because it never does. And we are foolish to pretend otherwise just because we like where the winds blow in the moment.

My son is a 1st-year at a school in Connecticut. People on campus sent out the bat signal for students to make themselves heard at a hearing today. He nabbed a speaking slot. His comments are after the jump.

My name is Reuben Wasserman, I am from Miami, Florida, and I am a first year student at Wesleyan University. I OPPOSE SB 980 An Act Improving Safety on the Campuses of Institutions of Higher Education.

When I was applying to colleges just last fall, I was constantly asked by my peers which Florida universities I was applying to, just in case I decided to stay close to home. My answer was simple: none. I refused to apply to any universities in Florida largely because of the student repression and attacks on academic freedom occurring on those campuses. I knew about those policies all too well; my parents are both professors at a public Florida university. I saw firsthand the impacts that increased state scrutiny had on their classes, conferences, and on students and faculty alike. I watched these anti-free speech measures create an atmosphere of fear not only on college campuses but extending off campus as well. When I was admitted to Wesleyan, I saw not only the chance to attend a college I enjoyed but a chance to escape student and faculty repression. This measure destroys my chance at that. And the worst part? It destroys this chance in the name of my protection.

I proudly identify as Jewish. My father started wearing a yarmulke after the horrific Tree of Life shooting in a show of resistance to antisemitic violence and rhetoric. I watched my peers in middle school do Heil Hitler as a joke and a sneer at me and my three other Jewish classmates. I am very familiar with what antisemitism looks like. It’s impacted me, it’s impacted my family, and most of all it’s impacted my community for centuries. So I will not let this bill speak for me as not only a Jewish person but a Jewish student in Connecticut. This bill does not protect me. Banning speech will never protect me. Controlling what we discuss in the classroom and on campus will never protect me. The surveillance that this bill enacts ensures that the freedom of speech and academic freedom of my peers and professors is at best discouraged and at worst outright punished.

I want to remind you again: I’ve seen this all before in Florida. The laws with similar intentions passed by the Florida state legislature did not reduce antisemitism. Virulent antisemites like the Proud Boys still exist at home. I still received jeers as an openly Jewish student in high school. Instead of protecting me, the Florida laws created a culture of fear in which those very discriminatory actions thrived. That culture did not protect me as a Jewish person, nor will protect me in Connecticut this time around. As a Floridian, as a Jewish person, and as a Connecticut college student, I urge you to vote NO on SB 980. It will not protect me. It already hasn’t.

JOTWELL: Effron on Young on legal information

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Kathryne M. Young, Getting Help, 2024 Wisc. L. Rev. 1149, on the gap between providing legal assistance and providing legal advice.

Preliminary injunction does not create prevailing party

So Lackey v. Stinnie holds 7-2 (Roberts for the Court; Jackson, joined by Sotomayor, dissents).

The majority adopts a categorical rule: A plaintiff never prevails based on preliminary injunctive relief; a judicial order must establish the enduring change to the relationship with the defendant to establish prevailing-party status. A case that ends on anything other than a final judicial decree on the merits (or its equivalent, such as a consent decree) render the preliminary relief "fleeting" rather than enduring. In this case (reflecting a common sequence), the government mooted the case by repealing the challenged law after the preliminary injunction. Thus, although the PI gave the plaintiffs what they wanted from the litigation--their licenses back and the opportunity to drive--and they retain those licenses after the end of the litigation, plaintiffs do not prevail because they did not get this relief (the ability to drive) from a final court order. Problematically, the court adopted the categorical bar that had been the law in the Fourth Circuit until the en banc court below in this case overruled its precedent. The court rejected more-nuanced approaches in some lower courts, which consider the basis of the PI (was the focus on the merits or on irreparable harm) and how much the PI relief endured by the end of the case.

According to the dissent, the majority conflates the need for success when the case ends (which dictionaries define as creating prevailing-party status) with the need for a judicial ruling on the merits to end the case. If a plaintiff gets what he wants early in the case and retains it at the end of the case, it does not matter why or how the case ends. This is particularly true where the case ends as moot--whether because the government moots by ceasing the challenged conduct (as here) or because plaintiffs sought specific short-term relief  that ends when the short period lapses (e.g., protesting at the DNC on three specific dates). Plaintiffs got everything they want from litigation (the right to keep their licenses or to protest) but no longer can recover fees in either case.

The case echoes Buckhannon Bd., the Court's last major attorney's-fee case, in a number of respect. Buckhannon rejected the "catalyst theory" (allowing plaintiffs to prevail if the lawsuit prompted the government to change its challenged conduct prior to any judicial ruling); Lackey extends Buckhannon to require that the judicial ruling finally resolve the case.

    • Lackey rejects the view of every court of appeals (11) to address the issue; Buckhannon adopted the view of the one circuit (ironically, the Fourth) to reject catalyst in the face of eleven adopting it. Not sure how the results of "percolation" should affect SCOTUS--if lower courts agree on a legal question, does that suggest something about the "correct" answer to which the Justices should defer?

    • Both cases turn on the importance of a judicial order as opposed to practical relief. Buckhannon and Lackey together require a final judicial order for prevailing-party status. Both dissents argue that the point of litigation is to get something in the real world (money or the right to engage in or be free from some conduct); the judicial order is the means, not the ends.

    • Both cases involve quarrels over efficiencies. Both majorities insist that their bright-line rules limit wasteful satellite litigation over fees; both dissents insist that the majority creates perverse incentives for plaintiffs to litigate longer, seek nominal damages for no good reason, and to resist mootness or settlement to maintain the possibility of prevailing-party status by getting to a final judicial order. Both dissents insist that the majority disincentivizes attorneys from undertaking cases (§ 1988(b) seeks to encourage representation) for fear that their efforts will not reach final judgment despite their basic merits; the majority dismisses these concerns as "entirely speculative."

The outcome surprises me a bit given the ideological drift of constitutional litigation. Lackey has a liberal bent--a challenge to a state law burdening criminal defendants (mostly poor and of color). But the increasing use of § 1983 litigation (and thus of § 1988(b)) attorney's fees for conservative causes means this decision will affect the other side. An anti-abortion group hoping to display photos of aborted fetuses at a particular intersection on a given date will not be a prevailing party. See how this plays out.

Courtroom policies and constitutional substance

Following up on the efforts to recuse a judge from hearing a challenge to a trans-athlete policy because of the judge's standing courtroom practices: Judge Crews (D. Colo.) refused to recuse and refused to rescind the courtroom pronoun policy. Crews (and his courtroom policies) have not stopped plaintiffs' attorneys from misgendering the trans athlete at the heart of the case (who is not yet involved in the litigation and thus not protected by the policy). And Crews twice told counsel that he would refer to the athlete by female pronouns as a matter of courtesy and respect (as he is duty-bound to do) but this should not be confused for prejudgment and did not require plaintiffs to do the same. It seems to me we are in Rick's baseline hell here because any judicial practice will reflect the goals of one side in a case such as this--a judge who insisted on using male pronouns to describe a trans-woman athlete could be said to prejudge the matter by accepting plaintiffs' arguments about biological sex.

But then Judge Dale Ho (S.D.N.Y.) recused (paywalled) from a challenge to a minority-supporting investment fund because of his courtroom policy encouraging participation of less-experienced attorneys, including those from historically underrepresented backgrounds; lawyers from Consovoy McCarthy alleged the policies violate Equal Protection and reflect prejudgment in the case. Consovoy attorneys made the same move against another S.D.N.Y. judge, prompting her to rescind a similar policy.

As a matter of prejudgment and judicial ethics (which I do not study), are these cases distinguishable? I do not believe either reflects prejudgment; judges must be free to enact lawful policies until they cease to be lawful. A judge's lawful practices cannot be the basis for recusal once a case comes around that might challenge or be inconsistent with those practices. Otherwise, parties pushing  litigation positions would be able to pick their judge--only a judge who has never sought to advance racial minorities or to show respect for trans people in an (at-the-time) lawful manner. And we are back in baseline hell. Unless it depends on the courtroom policy--is there a difference between a "be respectful in my courtroom" policy and an "enhance the diversity of the bar" policy, in terms of what judges should be doing?

Harper's Letter and real threats to free speech

Amid genuine government efforts to restrict or retaliate against speech--the White House limiting AP access because of objections to its style guide, deputized private thugs removing people from town hall meetings, government stripping funding from universities where researchers focus on certain topics and viewpoints--some have returned to the infamous Harper's letter of 2020. They wonder-facetiously, since we all know the answer--whether the Harpers authors worry that government threats to suppress speech (as opposed to annoyed readers complaining about the authors themselves) threatens "the free exchange of information and ideas, the lifeblood of a liberal society" or creates a "stifling atmosphere [that] will ultimately harm the most vital causes of our time." Does a promise from the Acting U.S. Attorney for the District of the District of Columbia (and nominee for the permanent slot) to "be vigilant in standing up against entities like the AP that refuse to put America first" suggest that "journalists [will be] barred from writing on certain topics" and face "swift and severe retribution" for what they say? Or is that only when it comes from an Oberlin sophomore complaining about these authors rather than the machinery of the United States government.

I do not expect intellectual honesty from Bari Weiss and her fellow travelers (and some of the Harper signatories should have known better, even in 2020). Most do not fear reprisal from this administration and do not care that their critics or ideological opponents will face such retribution:

    "Hey, please be thoughtful in how you write about powerless trans people"--dire threat to free speech.

    "You lose your government funds if you use the word trans person and your ability to access common spaces if you do not describe bodies of the water with out preferred terminology"--no problem.

I think we are witnessing the Converse Cry-Wolf. It is not that these people screamed about threats to free speech for so long that no one believedsthem when they now warn about real threats to free speech. It is that these people do not even recognize, acknowledge, or care about these real threats to free speech.