Friday, October 23, 2020

Still getting jurisdictionality wrong

An unpublished Ninth Circuit opinion holds the district court lacked subject-matter jurisdiction over a copyright dispute because, as alleged, all infringing acts occurred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

Posted by Howard Wasserman on October 23, 2020 at 08:26 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, October 18, 2020

Breyer as assigning justice

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

Posted by Howard Wasserman on October 18, 2020 at 08:02 PM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Friday, October 09, 2020

Ford arguments

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

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

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

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

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

Posted by Howard Wasserman on October 9, 2020 at 01:11 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, October 07, 2020

Impementing SCOTUS term limits

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

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

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

Posted by Howard Wasserman on October 7, 2020 at 07:05 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Tuesday, October 06, 2020

Balkin solves the 18-year conundrum

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

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

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

Posted by Howard Wasserman on October 6, 2020 at 12:31 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

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

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

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

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

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

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

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

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

Posted by Howard Wasserman on October 6, 2020 at 09:55 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Tuesday, September 29, 2020

Bad legal reporting yields bad legal takes

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

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

Posted by Howard Wasserman on September 29, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Sunday, September 27, 2020

Proving anti-Jewish discrimination

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

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

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

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

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 22, 2020

The Segall Court and a stopping point to Court-packing

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

Posted by Howard Wasserman on September 22, 2020 at 11:28 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Implementing the Carrington Plan (Updated)

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

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

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

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

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

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

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

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

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

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

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

Posted by Howard Wasserman on September 22, 2020 at 11:22 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, September 21, 2020

Remembering Justices

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

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

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

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

Posted by Howard Wasserman on September 21, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Sunday, September 20, 2020

New Courts (Updated)

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

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

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

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

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

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

Posted by Howard Wasserman on September 20, 2020 at 01:12 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, September 04, 2020

Getting qualified immunity wrong

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

The letter says:

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

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

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

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

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

Posted by Howard Wasserman on September 4, 2020 at 01:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

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

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

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

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

Posted by Howard Wasserman on September 3, 2020 at 03:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 01, 2020

Separation of powers, separation of parties, and subpoena enforcement

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

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

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

Posted by Howard Wasserman on September 1, 2020 at 09:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, August 31, 2020

D.C. Circuit has a busy day

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

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

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

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

Posted by Howard Wasserman on August 31, 2020 at 03:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, August 29, 2020

Palin lawsuit against New York Times continues

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

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

[*] Usually.

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

Posted by Howard Wasserman on August 29, 2020 at 02:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, August 28, 2020

3d Circuit reveals division on union clawbacks

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

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

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

Posted by Howard Wasserman on August 28, 2020 at 05:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, August 25, 2020

Nomenclature and judicial review (Updated)

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

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

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

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

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

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

Posted by Howard Wasserman on August 25, 2020 at 03:55 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, August 07, 2020

Standing for nothing

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

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

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

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

Posted by Howard Wasserman on August 7, 2020 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 06, 2020

Anti-SLAPP fee-shifting in federal court

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

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

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

Posted by Howard Wasserman on August 6, 2020 at 03:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 05, 2020

Judge Reeves on qualified immunity

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

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

Posted by Howard Wasserman on August 5, 2020 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (21)

Monday, August 03, 2020

Competing views on the Biskupic articles

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

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

Posted by Howard Wasserman on August 3, 2020 at 12:40 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, August 01, 2020

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Thursday, July 30, 2020

Biskupic, Part IV

All about the Chief cobbling together the largest possible majority in the subpoena cases. They were a contested 5-4 after conference, with Roberts assigning himself the opinion but no guarantee which of G/B/S/K would join his opinion and Gorsuch and Kavanaugh on the other side.

Posted by Howard Wasserman on July 30, 2020 at 05:21 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 29, 2020

Biskupic, Part III

Focuses on Justice Kavanaugh in June Medical, in which he tried to get people to go along with a remand for more fact-finding, and the subpoena cases, in which he raises the political-question issue. It also describes his efforts to adopt a softer tone towards the parties he rules against, such as DREAMERS or "gritty" LGTBQ individuals.

I think the spin on his moves in June is a bit disingenuous. Remanding for factfinding in these cases is often a delay tactic, a way to decide without deciding, when the trial court's fact-finding is clear and a remand serves no real purpose other than allowing the Justices to keep their hands clear (and make life less difficult for Susan Collins). The remand proposal recalls his dissent on the D.C. Circuit in the pregnant-unaccompanied-minors case, in which he called for giving the government more time to find a sponsor, as the 20-week state-law clock ran down.

Posted by Howard Wasserman on July 29, 2020 at 04:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 28, 2020

Biskupic, Part II

Here. The focus is on Bostock and its internal deliberations. The reveals include that the 6-3 breakdown was clear from the beginning (so Roberts, not Ginsburg, assigned the opinion to Gorsuch; that Kagan joined Gorsuch's draft immediately and Ginsburg, Breyer, and Sotomayor followed soon after; and that Alito was angry. There also was a leak in November about how conference had gone, which prompted some op-eds directed to moving Gorsuch away from Kagan.

Posted by Howard Wasserman on July 28, 2020 at 02:14 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 27, 2020

Biskupic on the internal workings of the Roberts Court

At CNN, Joan Biskupic has the first of a series of pieces on the internal workings of the Court and the Chief's place in control, both as the Court's median vote--allowing him to piss off or appease both sides--and as the one who runs proceedings. Tidbits in the piece include: Roberts not providing an obvious fifth vote with the conservative wing on the Second Amendment; Roberts agreeing that DACA rescission was procedurally unlawful from the outside, while refusing to find any equal protection problems (thus losing Sotomayor from a complete majority); some negotiations with the liberal wing over the COVID-voting petitions; and pushing through the remote-argument process (including resisting the push from some to do it by Zoom). She also reports that Roberts began in the dissent in the Georgia copyright case, with Thomas assigning the original opinion and someone (she does not say who) switching during the drafting process.

I hope the coverage describing Roberts as the "swing" vote does not conflate that with him being a "moderate" or ideologically varied--he is not White, Powell, or O'Connor.

And a question: When was the last time the Chief was also the median Justice whose position defined the winner in most 5-4 decisions? Maybe Hughes, but Owen Roberts often moved with him.

Posted by Howard Wasserman on July 27, 2020 at 03:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, July 24, 2020

Lawyers and judicial departmentalism

One thing keeping judicial departmentalism from diverging too far from judicial supremacy is DOJ and the role of government attorneys in the judicial process. Obligations to respect judicial authority, of candor to the court, and of being the government face in court compel attorneys to comply with judicial processes and not yield to the lesser impulses of the executive (which does not have a similar legal or ethical obligation of candor).

Yesterday's letter from the US attorney for SDNY to Judge Furman offers an example.

The attorneys acknowledged and apologized for inaccurate and misleading statements in the litigation (over New York's exclusion from the Trusted Traveler Program), which supported the (erroneous) litigation position that the AUSA was required to take on behalf of DHS. Irina Manta simplifies it. DHS made false statements in furtherance of its policy positions (restricting immigration), which it can do. But its power runs out when things enter court. DOJ attorneys serve as the go-between, the persons and institutions who must counsel the executive to change conduct when confronted with the judicial process. And they do that because they bear the brunt of the judicial wrath when the executive pulls stunts such as this.

Posted by Howard Wasserman on July 24, 2020 at 09:30 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, July 15, 2020

Anti-SLAPP law does not apply in Second Circuit

The Second Circuit has joined the chorus holding that state anti-SLAPP laws (in that case, California's) do not apply in federal court. The case arises out of a lawsuit against Joy Reid over two tweets with a photo of a woman in a MAGA hat interacting with a Latinx teen at a city council meeting; one tweet described the plaintiff as shouting epithets at the teen (who said their interaction was civil), while the other juxtaposed the infamous 1957 photograph of the screaming white teen in Little Rock.

The Second Circuit joins the Fifth, Eleventh, and D.C. Circuits in not applying them, compared with the Ninth and First that. The court followed the prevailing approach--FRCP 12 and 56 provide the standards for pre-trial resolution, leaving no room for state law. The court rejected the amici argument that the SLAPP law serves a "distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech," supplementing rather than conflicting with the FRCP. But this is a policy argument, one that contradicts the policies underlying the FRCP themselves. The court also rejected the defendant's argument that she can recover attorney's fees under the statute for a 12(b)(6) dismissal; the statute allows fees when the defendant prevails on the statutory motion to strike, not on some other basis.

Tellingly, the four most recent cases have gone this way, while the First Circuit decision is from 2010 and the seminal Ninth Circuit cases is from 1999, with several Ninth Circuit judges calling for its reconsideration in 2013. The courts of appeals are congealing around the correct Erie answer and may not require SCOTUS resolution, one point of percolation.

But that might not be the correct answer as a matter of the First Amendment and the need to protect speakers, especially media, against frivolous lawsuits by powerful individuals designed to chill public criticism. (Query whether this is such a case, but bracket that for a moment). Many First Amendment advocates want a full federal anti-SLAPP statute. For the moment, I think a fee-shifting statute, combined with vigorous use of Twiqbal would be sufficient to get rid of cases early in the process and to protect defendants from the intentional imposition of litigation costs. But I need to look in greater detail at how federal courts have looked at defamation claims under that pleading standard.

SLAPP and Erie aside, this case may be more troubling for Reid going forward. The court held that the plaintiff (who spoke and was photographed at city council meetings advocating against sanctuary-city laws) was not a limited-purpose public figure; she lacked media access, did not thrust herself into a public controversy, and stepped forward for interviews only after the first alleged defamation. Thus, the plaintiff had to allege negligence, not actual malice. The court also rejected Reid's argument that the second tweet (juxtaposing the photos) was not an actionable assertion of fact, because a reasonable reader could understand it as equating the plaintiff's conduct with "archetypal racist conduct."

It is interesting that this case came to litigation. When the plaintiff's lawyer asked Reid to delete the posts, Reid did so and apologized, which would seem to suggest the absence of negligence. But the plaintiff sued anyway. And we continue forward.

Posted by Howard Wasserman on July 15, 2020 at 07:01 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, July 13, 2020

Universal v. Nationwide, Again

The Ninth Circuit affirmed an injunction prohibiting enforcement of DOJ's sanctuary-city regulations as to California and the City and County of San Francisco. This comes after the Second Circuit denied rehearing en banc of a panel decision declaring the regulations valid. We now have a clear circuit split, although I imagine nothing will happen at SCOTUS if Biden wins and the regulations go away.

The Ninth Circuit did narrow the injunction to prohibit enforcement within California but nowhere else. It did so in terms that seem to contemplate the distinction between the injunction's who and where:

Plaintiffs here, a state and a municipality, “‘operate in a fashion that permits neat geographic boundaries.’” . . . Because Plaintiffs do not operate or suffer harm outside of their own borders, the geographical scope of an injunction can be neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries. This is distinguishable from a case involving plaintiffs that operate and suffer harm in a number of jurisdictions, where the process of tailoring an injunction may be more complex.

The court distinguished a case involving asylum organizations that operate in California and other states, where an injunction limited to California would not address the harm from losing a client in Texas.

On the other hand, the court "acknowledge[d] the 'increasingly controversial' nature of nationwide injunction," a framing that confuses the point. There should be nothing controversial about nationwide injunctions, which the court faced here--injunctions that protect the plaintiffs wherever they operate. The controversy is over universal injunctions--injunctions that attempt to protect beyond the plaintiffs. Still, we are slowly getting there.

Posted by Howard Wasserman on July 13, 2020 at 03:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, July 10, 2020

The process of Mazars and Vance (Updated)

Some process questions following Mazars and Vance, less about what happens on remand in these cases* than about what happens in future cases.

[*] I agree with what I have seen as a prevailing consensus--Trump runs out the clock on these subpoenas for this term, but may be in for a world of hurt and embarrassment as a private citizen if he loses in November. If he wins in November, all bets may be off.

Mazars

1) Which way do the incentives cut following Mazars and how likely is litigation over future subpoena disputes? The Chief's premise is that these cases historically were handled through the hurly-burly of politics until inter-branch negotiation broke down here (with no mention of why inter-branch negotiation broke down during this administration and not before). But Congress' subpoena power cannot be too broad, otherwise "[i]nstead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court."

But then why had Congress never previously walked away from the bargaining table? The majority cites four examples--from Washington, Jefferson, Reagan, and Clinton--in which Congress has negotiated for and accepted some-but-less-than-all of what it requested. He cites no examples in which Congress walked away, despite precedent hinting at a broader subpoena power than what the Court recognized.

More importantly, what about presidential incentives? He holds the information and has no desire to give it up unless and until compelled to do so. Mazars offers a more beneficial standard (how beneficial is a subject of debate and must await future cases) that must be satisfied before he can be compelled to do so. So it seems to me that "instead of negotiating over information requests, [the President] could simply walk away from the bargaining table and compel [Congress to start the lengthy process to] compel compliance in court," where the President can try to avail himself of the new standard. Moreover, time is on the executive's side--if the litigation process takes a year or more (not unlikely if SCOTUS gets involved), the President can try to hold out to the next election or to the end of the Congress and the expiration of the subpoena.

2) The President's incentive to walk away is furthered by the Speech or Debate Clause, which prevents suit against Congress. The house or the committee must make the first move by bringing an action to enforce the subpoena or holding the President in contempt of Congress and seeking to enforce the contempt order (which requires the U.S. Attorney for D.C.). Either way, Congress is the first actor. The President's incentive is not to bargain, to run out the clock, and, perhaps, try to shift political blame onto Congress for escalating the political stalemate.

3) We see a stark contrast in what gets left to the hurly-burly of politics and what is appropriate for judicial refereeing. Whether members of the legislature can rig the design of legislative districts to (try to) ensure continuation in office of themselves and their party colleagues) is politics; how one branch engages in oversight of another branch requires judicial intervention. For present purposes, it does not matter which is correct; the point is an odd disparity.

Vance

4) The procedural issue in Vance involves Younger abstention. The state grand jury issued the subpoenas, Trump sued the DA in federal court, the district court abstained in deference to pending state proceedings, and the Second Circuit held that abstention was improper. Vance did not appeal the Younger ruling, so SCOTUS never had reason to decide it. But the Court said that a President could challenge in federal court a subpoena that attempted to influence or manipulate his official actions. Later, the Court says the President can raise "subpoena-specific constitutional challenges, in either a state or federal forum," such as claims of undue influence or undue interference.

But how does a case such as this fit into Younger? The typical framework for Younger goes as follows: 1) Whether the case falls within one of three classes of cases (including ongoing criminal proceedings; 2) consideration of the Middlesex factors of whether there is an ongoing proceeding, whether the proceeding implicates state interests, and whether the federal plaintiff can raise federal issues in state court; and 3) whether the case falls within an exception, such as bad faith, harassment, or "other exceptional circumstances."

The Second Circuit's analysis did not follow this framework. It instead held that Younger's underlying concerns for comity were not implicated in a case built around a federal-state conflict and raising "novel and serious" federal issues. It could have squeezed those concerns into the exceptions (this is what Trump argued in the complaint), but instead made them macro-level policy considerations that a court must consider before jumping into that framework.

5) What about Younger going forward, in this case or a future case? With respect to subpoenas for private documents, the President seems to be an ordinary citizen able to challenge a subpoena on state and federal grounds, including unique federal presidential grounds such as non-interference with Article II functions. Are those challenges automatically a basis for federal jurisdiction and non-abstention? Can ordinary state-law arguments against a subpoena, such as overbreadth, be a basis for federal jurisdiction? Do state-law arguments become Article II arguments when raised by the President? Must there be a federal forum for all Article II arguments, in a way there need not be a federal forum for First Amendment arguments?

6) The Court's resolution arguably alters the Younger analysis in this case. The Second Circuit rejected abstention because of the President's "novel and serious claims," specifically that the President is absolutely immune from state criminal investigation or that a unique standard applies. So the same questions apply: If the President is asserting micro challenges, many under state law, to specific pieces of the injunction, is a federal forum warranted? Can the lower court, having rejected Younger, find abstention appropriate given the changed nature of the case?

Posted by Howard Wasserman on July 10, 2020 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Wednesday, July 08, 2020

Universal v. Nationwide

A good illustration of why the nationwide/universal and where/who distinction matters for the scope-of-injunction question. Here is footnote 28 in Ginsburg dissent in Little Sisters:

Although the Court does not reach the issue, the District Court did not abuse its discretion in issuing a nationwide injunction. The Administrative Procedure Act contemplates nationwide relief from invalid agency action. See 5 U. S. C. §706(2) (empowering courts to “hold unlawful and set aside agency action”). Moreover, the nationwide reach of the injunction “was ‘necessary to provide complete relief to the plaintiffs.’ Trump v. Hawaii, 585 U. S. ___, ___, n. 15 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 25, n. 13) (quoting Madsen v. Women's Health Center, Inc., 512 U. S. 753, 765 (1994)). Harm to Pennsylvania and New Jersey, the Court of Appeals explained, occurs because women who lose benefits under the exemption “will turn to state-funded services for their contraceptive needs and for the unintended pregnancies that may result from the loss of coverage.” 930 F. 3d, at 562. This harm is not bounded by state lines. The Court of Appeals noted, for example, that some800,000 residents of Pennsylvania and New Jersey work—and thus receive their health insurance—out of State. Id., at 576. Similarly, many students who attend colleges and universities in Pennsylvania and New Jersey receive their health insurance from their parents’ out-of-state health plans. Ibid.

Ginsburg is correct that protecting New Jersey and Pennsylvania is not bounded by state lines, given the number of employees, students, etc. likely to turn to the state for financial assistance. That is, the injunction should have been nationwide in where it protects the parties.  It should protect NJ and Pennsylvania and those people with some connection to NJ or Pennsylvania (on whose behalf NJ and Pennsylvania sued), regardless of where those people are.

But complete relief does not require that the regs be enjoined as to other states who may incur the same harm as NJ and PA or to individuals who might be denied coverage but have no connection to NJ and PA. That is, the injunction need not be universal (or non-particularized) in who it protects. Complete relief to NJ and PA does not require that the enforcement be enjoined as to California or those people who might turn to California for funding if denied coverage.

For what it is worth, the same should apply to the lawsuit Harvard and MIT filed to stop ICE from enforcing the rules with respect to student-visa holders and remote courses. Complete relief to Harvard and MIT does not require enjoining enforcement of the regulations as to other schools or students from schools other than Harvard and MIT. It only requires an injunction protecting Harvard and MIT and their students, regardless of where located. I recognize this is inefficient. But this is the scheme we have.

Posted by Howard Wasserman on July 8, 2020 at 01:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Monday, July 06, 2020

On invalidating laws and universal declaratory judgments

After the jump is FN 8 of Kavanaugh's plurality in Barr v. AAPC. As I said, I wanted to include this in its own post.

The term “invalidate” is a common judicial shorthand when the Court holds that a particular provision is unlawful and therefore may not be enforced against a plaintiff. To be clear, however, when it “invalidates” a law as unconstitutional, the Court of course does not formally repeal the law from the U. S. Code or the Statutes at Large. Instead, in Chief Justice Marshall’s words, the Court recognizes that the Constitution is a “superior, paramount law,” and that “a legislative act contrary to the constitution is not law” at all. Marbury v. Madison, 1 Cranch 137, 177 (1803). The Court’s authority on this front “amounts to little more than the negative power to disregard an unconstitutional enactment.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).

JUSTICE THOMAS’s thoughtful approach to severability as outlined in Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___ (2018) (slip op., at 2–6), and Seila Law LLC v. Consumer Financial Protection Bureau, ante, at 14–24, (joined by JUSTICE GORSUCH in the latter) would simply enjoin enforcement of a law as applied to the particular plaintiffs in a case. Under either the Court’s approach or JUSTICE THOMAS’s approach, an offending provision formally remains on the statute books (at least unless Congress also formally repeals it). Under either approach, the formal remedy afforded to the plaintiff is an injunction, declaration, or damages. One difference between the two approaches is this: Under the Court’s approach, a provision is declared invalid and cannot be lawfully enforced against others. Under JUSTICE THOMAS’s approach, the Court’s ruling that a provision cannot be enforced against the plaintiff, plus executive respect in its enforcement policies for controlling decisional law, plus vertical and horizontal stare decisis in the courts, will mean that the provision will not and cannot be lawfully enforced against others. The Court and JUSTICE THOMAS take different analytical paths, but in many cases, the different paths lead to the same place.

This is important in several respects.

It clearly explains that "invalidating" a law is merely "common judicial shorthand," that what the Court is really doing is holding that a provision "may not be enforced against a plaintiff." The Court does not say the law cannot be enforced at all or against all people, only against a plaintiff. But no matter what, the law remains on the statute books until Congress repeals it, a task only Congress can perform.

Kavanaugh perfectly describes judicial departmentalism: The injunction prohibits enforcement of the law against the plaintiff; the executive voluntarily respects decisional law in future enforcement efforts (but is not required to do so); and stare decisis means any enforcement fails in the courts. Under Kavanaugh's approach, by contrast, the declaration of a provision as invalid means it cannot be lawfully enforced against others. But Kavanaugh does not explain why this is so and I do not see why it should be. The statement conflicts with the Court's statement in Doran v. Salem Inn that a declaratory judgment does not stop a state government from enforcing a law against other persons and leaves government free to do so. And if declaratory judgment is a milder form of relief than an injunction, it should not have a broader party scope than an injunction.

Posted by Howard Wasserman on July 6, 2020 at 02:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Monday, June 29, 2020

Assignments and female voices

Someone pointed out that June Medical produced six opinions on the right to reproductive freedom, all by male Justices and none by any female Justice. But who is responsible for that?

The first question is who assigned the majority to Breyer. Assignment is by the senior-most Justice in the majority for a judgment/outcome at conference; that means the Chief assigned the opinion to Breyer, then declined to join and wrote on his own, leaving Breyer to write a plurality. But how specific do they get during the conference? Could it be clear at conference that his reasoning was so far from Ginsburg/Breyer/Sotomayor/Kagan that he was not part of that group? For example, suppose G/B/S/K made clear the view that the Louisiana law was broadly invalid while Roberts made clear that he was going along with Whole Women's purely on stare decisis grounds. How does that affect the assignment? This would have made Ginsburg senior-most, meaning she assigned the opinion to Breyer rather than keeping it or giving it to one of her female colleagues.

All three also chose not to write a separate opinion, I presume to maintain a clear plurality (if not majority) voice. Even at the loss of a female voice.

Posted by Howard Wasserman on June 29, 2020 at 08:48 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More on constitutional-litigation reform (Updated)

A law professor letter is circulating in support of the one-two punch of eliminating qualified immunity and overriding Monell  to make municipalities liable on respondeat superior. The move towards respondeat superior liability is in the Reforming Qualified Immunity Act, introduced by Sen. Mike Braun (R-IN)The letter is here, for those interested in signing.*

[*] I signed the letter, as it involves an issue on which I know something as a legal scholar, as opposed to as a citizen with a law degree.

Braun's bill also would revise, but not eliminate qualified immunity. He replaces it with a narrower immunity that protects an officer if he acts in good faith and either acted pursuant to a statute or regulation that had not been declared invalid or the conduct had not been declared invalid. In essence, the change to immunity flips the default--an officer is not immune if the law is uncertain, but becomes immune if the law is certain that his conduct is valid.

Full reform still requires two more steps. Section 1983 must be extended to states, which Congress can do by making clear that states are persons for § 1983 purposes. Otherwise, state police and sheriff's officers will be beyond these reforms, since they are not local officers. And something has to be done to codify the Bivens cause of action, otherwise federal officers will be beyond these reforms.

Update: A reader emails to offer another way to limit the effects of qualified immunity--overruling or overriding Mitchell v. Forsyth and eliminating collateral-order review of Q/I denials, which places Q/I at the heart of the case and moves cases quickly into the court of appeals and SCOTUS. Eliminating immediate review (or requiring judicial leave under § 1292(b)) would combine well with Braun's approach. I have not seen this as part of any proposals.

Posted by Howard Wasserman on June 29, 2020 at 01:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 26, 2020

Mootness, departmentalism, and universality

Here is an interesting mootness decision from the Third Circuit (written by Judge Bibas). A lot of good discussion of mootness, as it relates to my current interests in universality and departmentalism. I am not sure I agree with the conclusion, but the opinion is a great read.

The action is a challenge by a group of public-school teachers to Pennsylvania's agency-fee statute. While the action was pending, SCOTUS held in Janus that agency-fee schemes violate the First Amendment. The state and the union told school districts and other public employees to stop deducting fees and to refund fees collected to cover expenses from Janus forward. Although the state agency-fee law remains on the books and agency-fee provisions remain in the contracts, the union insists it has no intention to enforce either in the future. The district court held the case moot and the court of appeals affirmed.

• Bibas tweaks the common description of mootness as "standing set in a time frame," because they are not co-extensive. A plaintiff must show standing at the outset, but it is on the defendant (or someone else) to show mootness once the action has begun. Thus, under new circumstances, while the plaintiff might be unable to establish standing , that does not mean the defendant can establish mootness. As he puts it, "sometimes a suit filed on Monday will be able to proceed even if, because of a development on Tuesday, the suit would have been dismissed for lack of standing if it had been filed on Wednesday. The Tuesday development does not necessarily moot the suit." I am going to use that framing in class.

• He recasts "voluntary cessation" as "volitional cessation." Often, especially in constitutional cases, the government defendant continues to insist on the validity of its actions, even while agreeing to abide by an injunction or precedent knowing that the courts will rule against it. In other words, the cessation is not voluntary, because the government believes he can do something and should be able to do something, if not for some pesky hindrance (such as a court order). The issue is whether government can reasonably be expected to engage in the challenged behavior in the future. So the issue is not whether the cessation is voluntary but whether it is volitional, a deliberate act, regardless of its cause.

• The reasons for cessation are probative of the likelihood of re-engagement in the behavior. The court is more skeptical of a defendant who continues to insist on the validity of the conduct but yields in the face of a court order, while more forgiving of a defendant who yields to new precedent established in a different case. From a judicial-departmentalist standpoint, this gets it backwards. A defendant cannot ignore a court order in the instant case (without immediate consequence) even if it believes the basis for the order incorrect; that case should be moot because the defendant will not re-engage on pain of contempt. A defendant can ignore precedent from another case without immediate consequence, so a promise to abide by precedent should not moot the new case. I made this argument in using judicial departmentalism to justify voluntary cessation as a limit on mootness.

Moreover, if we accept particularity/non-universality as the norm for injunctions, there is no distinction between those situations. If the injunction binds the government only as to the plaintiff, then all future enforcement that is or is not likely to occur is in response to precedent rather than to a court order. There is no difference between Chicago promising not to enforce its law against Y following an injunction barring Chicago from enforcing against X and Chicago promising not to enforce its law against Y following a decision ordering Milwaukee not to enforce its identical law against M.

• Nonetheless, the court found this case moot. The unions conceded the invalidity of agency-fee requirements and forswore collecting fees and there was no indication they will not continue to abide by that position. That agency-fee provisions remain on the books and in the CBAs did not matter and did not create any  injury that a court could redress absent some indicia of intent to enforce.

The plaintiffs tried to avoid mootness by pointing to challenges to campaign-finance laws found not moot following Citizens United and challenges to marriage laws found not moot following Obergefell. The former was a complex decision targeting one campaign-finance provision, uncertain in its application to other laws and provisions. The latter did not address the incidents of marriage challenged in the other cases. Janus was simple--no agency fees allowed--and the case presented no additional issues not covered by Janus.

I think that is a cramped reading of the marriage case.The Eighth Circuit highlighted that Obergefell dealt with laws in states other than Nebraska (thus did not bind Nebraska in any way) and that the ban on same-sex marriage remained in the Nebraska constitution. The court understood, if implicitly, that there remained something for Nebraska to enforce and nothing, other than the state's voluntary (or volitional) acquiescence to stop that enforcement.

Perhaps the analysis is different when it is a private actor, such as the union, rather than a government with departmentalist powers. Others have argued that courts are too-quick to accept government representations of non-enforcement and moot cases. If so, this case gets the balance right--this case is moot based on the union's promise where it might not be moot if the government were making the same promises. Of course, perhaps that distinction collapses when the defendant arguably acts under color, as the unions likely do under these agreements.

• The plaintiffs argued that a live controversy remained based on their request for a declaratory judgment that Pennsylvania's statute is constitutionally invalid. But the union did not intend to enforce the law. And because the constitutional violation is the threat of enforcement rather than the existence of the law (or contract provision), the plaintiffs' rights were not violated and they had "nothing to fear."

The court captures this with a nice civics lesson:

It may seem odd that unconstitutional laws remain on the books. But until a party faces a real threat of enforcement, a statute is mere words on a page.

I like that framing (and added it to a current paper). We can go further: If this were not true, no constitutional action would become moot because no law declared constitutionally invalid disappears without further legislative action, so the threat of departmental enforcement remains.

Posted by Howard Wasserman on June 26, 2020 at 12:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 24, 2020

Mandamus issues in Flynn prosecution (Updated)

A divided D.C. Circuit panel granted Michael Flynn mandamus and ordered Judge Sullivan to remove the appointed amicus and to grant the government's uncontested motion to dismiss the charges. This is a brutal decision that leaves little meaning to the "leave of court" language in FRCrP 48(a), turns a presumption of regularity of prosecutorial decisions into a mandatory conclusion by precluding any inquiry into those decisions, and grants mandamus relief before the district court has had an opportunity to decide the motion or to do anything that might so imperil anyone's rights or interests. Mandamus is a weird duck, with judges reciting the high standard for granting, then finding that standard satisfied in the cases they want (but no others). The court also does not really address the unique element of this case--government dropping charges after the defendant twice pleaded guilty in open court--and how it might differ from a decision to drop charges at the outset. The decision also functionally prevents the district court from considering perjury charges against Flynn because there is no amicus to investigate.

My guess is that, like the decision on the tax subpoenas, the panel opinion will not survive long; the court will take it en banc and deny mandamus. Then on to SCOTUS?

Update: Orin Kerr compares this decision to Bush v. Gore for a variety of reasons, most prominently in telling a lower court to stop what it was doing, out of distrust that the lower court would conduct ordinary procedure in any appropriate way. I would add an additional similarity--both are "good for this trip only" decisions; I expect that in the next case, Judges Henderson and Rao will remind how extraordinary mandamus relief is and how high the standard is and how harm to non-parties is not a basis for relief.

Posted by Howard Wasserman on June 24, 2020 at 02:08 PM in Howard Wasserman, Judicial Process | Permalink | Comments (7)

Monday, June 22, 2020

No qualified immunity (updated)

The Court denied cert in Cooper v. Flaig, the 12th of the 13 petitions that were pending in mid-May. The remaining case is Davis v. Ermold, the sole case not arising from police misconduct. Not sure what they are waiting for on that one.

SCOTUSBlog's Petitions We're Watching includes three qualified immunity cases. One asks whether an appellate court can raise QI sua sponte and whether to overrule Pearson and another asks for clarification of the standard for how analogous precedent must be to clearly establish a right.

Posted by Howard Wasserman on June 22, 2020 at 09:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, June 15, 2020

Justice Kavanaugh foresees 2020 Blue Wave and other thoughts on Bostock

I have asked my colleague Kerri Stone to write something about today's decision holding that LGBTQ discrimination is sex discrimination; I hope to post that later today. I add a couple of points/questions.

The open question will be whether this means discrimination based on LGBTQ status is sex discrimination for purposes of the 14th Amendment (triggering intermediate scrutiny) and other statutes such as Title IX, Equal Pay Act, public accommodations, etc. The answer would seem to be yes; Gorsuch's major premise is that one cannot discriminate against a person on the basis of sexual orientation without discriminating against that person on the basis of sex. Even if the reason the employer targets the plaintiff because of who she is attracted to or her sex at birth, the mistreatment must pass through sex. And those other provisions protect individuals not groups, the other premise of Gorsuch's analysis.

That question could affect the outcome when an employer argues that the First Amendment or RFRA displaces Title VII, something the majority leaves for another day. If LGBTQ discrimination is sex discrimination deserving of greater scrutiny, does that mean the government's interest in preventing that discrimination (through Title VII) is compelling for RFRA purposes? Does it receive more deference than an interest in prohibiting a form of discrimination receiving rational-basis review? The assumption by even the SG in Masterpiece Cake Shop is that the religious-freedom argument could not fly as to race discrimination but it could as to LGTBQ discrimination because that received lower scrutiny. What happens in the middle?

Gorsuch's writing in this opinion reminds me of Kagan in its informality, with a lot of "imagine if you will" hypotheticals and illustrations.

A lot will be made of the Chief joining this opinion, especially in light of his dissent in Obergefell. He recognized the sexual-orientation-is-sex argument in that case, asking counsel about it during argument. But it did not persuade him with respect to marriage and he did not address it in his dissent. Did he change his mind? Does he see this statute as different than the Fourteenth Amendment (and perhaps other statutes)?

Two interesting theories floating around Twitter (which may fit together). Katherine Franke suggests that the original majority was the four liberals and Gorsuch and that the Chief joined so he could assign the case to Gorsuch and get a narrower opinion, rather than Ginsburg assigning the opinion to herself and producing something broader. Marty Lederman speculates (based on October case assignments) that the Chief kept this opinion for himself to rule against the plaintiffs, while Gorsuch was undecided; when Gorsuch would not join that opinion, he wrote his own going the other way and the Chief came on board. Both moves can be explained by the Chief's desire to hold the assignment. Of course, Ginsburg might have assigned the opinion to Gorsuch rather than keeping it for herself to reward him for the switch and to keep him on board (a very Brennan/Stevens move).

The Chief's switch from Obergefell to today may explain the final paragraph in Kavanaugh's dissent:

[i]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.

Compare this with the final paragraph of the Chief's Obergefell dissent:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Finally, the piece that prompts the title of this post: Here is the first paragraph in the conclusion to Kavanaugh's dissent:

It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.

This can be true only if "in the next few years" (meaning this year, really) the Democrats gain unified control of the political branches, including likely with a filibuster-proof Senate majority. No Republican-controlled body would pass and no Republican President would sign such a bill. I am certain Kavanaugh's does not want this to happen. But I hope he is right.

Posted by Howard Wasserman on June 15, 2020 at 02:24 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

SCOTUS not helping on qualified immunity

Eliminating qualified immunity does not alone solve the problem of police misconduct or within the criminal justice system, although it is a good start. It appears that start will not come from the Court. As of early May, 13 petitions challenged qualified immunity in application or in concept. The Court denied cert in three last month and denied cert in another eight on Monday. Baxter v. Bracey drew a solo dissent from Justice Thomas, repeating the arguments from his Ziglar concurrence on how neither the objective "clearly established law" or subject good faith matches 19th-century common law. Not even Justice Sotomayor, who has offered other objections to qualified immunity, joined Thomas or expressed disagreement with the denial.

Two cases remain from the original 13--police killing an unarmed man by tasing him nine times during an acute mental-health episode and Kim Davis refusing to follow Obergefell.

I wonder if the recent events and the introduction of legislation prompted the Justices to wait. Although they made this mess, Congress is moving to clean it up, letting the Court off the hook.

Posted by Howard Wasserman on June 15, 2020 at 10:24 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Thursday, June 11, 2020

Second Lafayette Square Lawsuit

A second lawsuit has been filed over the clearing of Lafayette Square on June 1. Plaintiffs are three individuals who were at the protests and plan to protest in the future. They have the benefit of one additional week of presidential statements and other developments to support allegations of retaliation, viewpoint discrimination, and the unreasonableness of the use of force.

This complaint has another wrinkle: A claim for violation of the Posse Comitatus Act for bringing forth military police and national guard troops in clearing the park. They claim "a non-statutory right of action to enjoin and declare unlawful presidential action that is ultra vires," then seek damages, a DJ, and an injunction. This seems weak for three reasons: 1) Any implied injunctive right of action cannot support a claim for damages; 2) I am not sure how they can show damages from the violation of Posse Comitatus, which requires showing some incrementally greater injury from the fact that military personnel might have been involved in the injurious First and Fourth Amendment violations; and 3) It seems unlikely that Trump will try to use military force again--thris morning's tweets about Seattle notwithstanding, the military has pushed back on this. Still, it is a cute theory for public consumption.

Posted by Howard Wasserman on June 11, 2020 at 05:39 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, June 07, 2020

What does Cohen v. California clearly establish? (Updated)

The stories are confused and seem incomplete. But apparently the sheriff of Lowndes County, Georgia confiscated from a protester in Valdosta a sign reading "Fuck Trump." Georgia law prohibits profanity in the presence of children under 14. (Update: A woman was arrested for violating the law with a different sign the following day. The article indicates the sheriff intends to continue enforcing the law).

The enforcement of the ordinance violates the First Amendment. Profanity is constitutionally protected and, at least outside of sexually explicit material on TV, adult speech cannot be reduced to what is appropriate for children. So although the Georgia Supreme Court declared that law valid in 1973, it cannot stand under modern doctrine.

The question is whether the First Amendment right to display a "Fuck ____" sign is clearly established--the constitutional question is beyond dispute so no reasonable officer could have believed seizing this sign was constitutionally valid. Is this like Johnson and flag burning? Or might a court actually say a jacket in a courthouse is different from a hand-made sign at a protest rally where children might be present?

Posted by Howard Wasserman on June 7, 2020 at 11:17 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, June 04, 2020

Lawsuit over clearing Lafayette Square

Complaint here. Plaintiffs are Black Lives Matter DC and five individuals who were at the protests on Monday and would like to return; defendants are Trump, Barr, Esper, the acting chief of the U.S. Park Police, director of Secret Service, commander of D.C. National Guard, U.S. Army Chief of Staff, 100 John Does (federal law enforcement), and 20 John Poes (non-federal law enforcement). Claims are for violations of First and Fourth Amendments and conspiracy under §§ 1985(3) and 1986.

My prior post showed the problems the lawsuit faces. The Bivens and immunity problems do not go away. But the complaint finds cute ways to try show standing for prospective relief. It highlights plaintiffs' intent to continue demonstrating; the new W.H. perimeter prevents access to Lafayette Square or any protest space within view of the White House; and 3) statements by Trump and others to deploy violence against protesters--all of which establishes an imminent threat of future violence if they return to protest. The complaint also compares Trump's statements supporting protesters he likes (such as those who stormed statehouses in search of haircuts) and calling to "dominate" protesters he does not like, as a way to show that the actions against the protesters were viewpoint- and content-based.

Posted by Howard Wasserman on June 4, 2020 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

What about Bivens? What about prosecutorial immunity? (Updated)

Rep. Justin Amash, the House member who left the GOP because of Trump, announced plans to introduce a bill (co-sponsored with Ayanna Pressley (D-MA) to eliminate qualified immunity. The bill would "explicitly not[e] in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability." (Update: Draft text).

But what about Bivens, which has no statutory basis? Federal law enforcement officers assert qualified immunity in Bivens actions (over, for example, using definitely-not-tear-gas-irritant-agents to disperse peaceful protesters); many of the Court's early qualified immunity cases were Bivens rather than § 1983 actions. In Abbasi, the majority incorporated some immunity considerations (e.g., over-deterrence of officials) to the special factors counseling hesitation. But that will not apply in basic Fourth Amendment claims against domestic law enforcement; those officers still fall back on qualified immunity. I suppose that if Amash's bill were to pass, the Court might eliminate immunity to keep Bivens and § 1983 parallel.

And what of other extra-textual absolute immunities that the Court has super-imposed on § 1983 (and Bivens, by extension). Prosecutorial misconduct contributes as much as police misconduct to the racial problems in the criminal justice system (distinct from excessive-force); absolute immunity leaves prosecutors free to engage in blatant misconduct, often shifting the litigation focus back to the police, who then assert qualified immunity. In theory, appellate review, attorney ethics, and electoral checks remedy or deter such misconduct. It has done nothing in practice, given the high standards for showing constitutional violations on appeal, reluctance to sanction prosecutors, and the fact that elected prosecutors run on obtaining lots of convictions as a result of prosecutorial over-reach.

The point is that qualified immunity is bad and should go. But it is not the only cause within the constitutional-litigation framework. (And this does not consider causes outside of constitutional litigation, such as unions and employment practices). Targeting qualified immunity alone--and only in the specific context of § 1983--misses the bigger picture and the many moving pieces necessary for reform.

Posted by Howard Wasserman on June 4, 2020 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, June 02, 2020

Suing over Monday's crowd dispersal

Here is what we know happened around 6:35 p.m. Monday next to Lafayette Square: Federal law-enforcement officials threw something (dispute whether it was tear gas or a smoke bomb) and pushed throw to move the crowd out of the area. Prior to that point, the crowd was lawfully gathered in a space that has been held to be a traditional public forum, was engaging in peaceful expressive activity, and not engaging in unlawful conduct. Attorney General Barr ordered federal officials to move the crowd, so the space was clear for the President to have his photo opportunity in front of the church. This was captured live on TV, as well as recorded on numerous phones. Federal officials also moved church personnel off of church property through tear gas or other device, presumably at the AG's command.

It looks like a significant violation of the First Amendment. But:

• We do not know the individual officers who threw the smoke/tear gas and there were too many officers in the phalanx. I suppose video forensics and FOIA might be able to identify. But any lawsuit would involve many Doe defendants and discovery to determine their identities.

• The plaintiffs could sue the AG on the theory that he directly ordered the unconstitutional behavior. This runs into Abassi and Iqbal, which seemed to limit if not foreclose Bivens claims against high-ranking officials on a supervisory theory. This case is different than Iqbal in that the supervisory conduct was a direct order to engage in First-Amendment-violative conduct in a specific situation, rather than enactment of general policies, making the causal connection more direct. I doubt that distinction would fly.

• It is not clear there is a Bivens action for free-speech violations. SCOTUS has assumed it several times, while most circuits have held there is. The Court may say that this is a different context (First Amendment, presidential security, massive protests) and thus find special factors counseling hesitation (presidential security, high-ranking official, etc.).

• Barr and any individual officers can claim that the security concerns provide a compelling interest justifying clearing the public forum of peaceful protesters, although any compelling interest in clearing space for a photo opportunity is a weaker argument. The talisman of national security may be sufficient to defeat any substantive First Amendment right.

• Even if this conduct violated the First Amendment, any defendant is likely to get qualified immunity. There is no precedent that places "beyond doubt" that the First Amendment is violated by the use gas/smoke to clear out peaceful protesters in a period of massive demonstrations so the president can do a photo opportunity. There certainly is no precedent making it beyond doubt that it is a violation for the AG to do it. The Court pays lip service to the legal rule that precise precedent is not required and that a right can be clearly established as a matter of general principle, but recent cases have, in practice, found immunity in the absence of substantially similar precedent. The two cases (Hope and Lanier) that have found rights clearly established on general principles involved egregious facts and were two decades ago. Is "gassing peaceful protesters in a public forum to allow a presidential photo op" the equivalent of selling foster children into slavery (Posner's famous example)? Probably not.

• Because the facts are unique and the absence of precedent obvious, a court likely would not touch the merits and would grant qualified immunity.

• No plaintiff would have standing to obtain declaratory or injunctive relief. They could not show imminent injury because they could not show both a substantial (or at least reasonable) likelihood that they would protest again and that the AG or federal officials would repeat their actions.

As someone said on a list serv, I hate writing this. But it is the law that we have at the moment. Maybe this case illustrates the urgency of the Court doing something about qualified immunity, outside the Fourth Amendment context.

Posted by Howard Wasserman on June 2, 2020 at 06:56 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, June 01, 2020

"We have a different Court"

In an apparently unhinged Monday phone call with governors, the President urged states to enact new laws prohibiting flag burning. According to sources, the President said "We have a different court" and that "if you wanted to try a very powerful anti-flag burning law, we’ll back you.” (Not sure if that means the administration would not back a state that tried a moderately powerful law).

I know these are unserious ravings of an unserious person, but it does reveal how little he understands.

First, under judicial departmentalism, Trump's suggestion is lawful and consistent with his constitutional oath, as is action by any governor and legislature. If they believe these laws consistent with the First Amendment, they can act on that understanding.

Second, for what it is worth, new laws would be unnecessary in many states where anti-flag-burning laws remain on the books. They remain unenforced because state officials know what would happen if they tried.

Third, even if a logical solution to the problem of violent protests, it could not resolve the current situation (assuming these protests peter out after a few more days). Imagine a state enacted or announced plans to enforce a flag-burning law tomorrow. The law would be enjoined immediately by a district court and affirmed by a court of appeals, both bound by Johnson and Eichman. It would be awhile before it reached that "different Court." Alternatively, the right to burn a flag is one of the few clearly established rights, so no officer would attempt to enforce that law on pain of losing qualified immunity in a subsequent civil action.

But indulge the President's fantasies that "we have a different Court" (Kennedy was the last holdover from the Eichman Court) that would resolve the flag-burning question differently. Would it, writing on a clean slate? The Court has earned its reputation as extraordinarily speech-protective; no coherent theory of free speech can tolerate the viewpoint discrimination that would prohibit burning a flag in protest but allow wearing a flag as a shirt or altering a flag to create a different message. At worst, the Chief would join the liberals in another 5-4 decision. But Gorsuch appears as speech-protective as his former boss. Alito and Thomas have cited Johnson to support the principle of viewpoint neutrality (when other cases could have served the same purpose), which I would think they would not have done if they had the doctrine in their cross-hairs. Plus, this would provide an easy opportunity for Republican appointees to silence the "Court is political" voices by demonstrating that their jurisprudence does not inevitably and ineluctably lead to the Republican-preferred outcome. Justice Scalia got 30 years out of Johnson as pretty much the lone example of his originalism leading to a disfavored outcome. So perhaps the President is right--we do have a different Court and it would declare the law invalid by a 9-0 vote rather than a 5-4 vote.

Posted by Howard Wasserman on June 1, 2020 at 03:33 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Thursday, May 14, 2020

§ 1983 or the 11th Amendment

One of my pet peeves is confusion about why states cannot be sued in § 1983 actions: It often is short-handed as being about sovereign immunity depriving a court of jurisdiction, when doctrinally it is about states not being "persons" subject to suit under the statute and there being no cause of action against a state (or state agency).

This arose in Colorado Dept. of State v. Baca (over "faithless elector" laws)  through questions by Justices Breyer and Gorsuch suggesting that the parties colluded to maintain a meritless action in order to obtain a judicial ruling. It appears Baca sued the Secretary of State, then the parties negotiated to have the Department be named defendant and to not challenge its non-suability under § 1983. I would guess that proceeding against the state rather than the secretary was necessary for Baca to proceed with a claim for nominal damages, which was essential to establishing and maintaining standing. Counsel for both sides argued that the Court should not concern itself with this, that the availability of a cause of action is a non-jurisdictional issue that the parties can waive.* Gorsuch suggested that, even if waivable, it might be a basis to DIG the case.

[*] Scott Dodson blanched when he heard that.

I am glad both Justices used the appropriate terminology and framework and wish lower courts would follow suit. But it reveals how nonsensical it is to think of sovereign immunity (which has nothing to do with the text of the Eleventh Amendment) as a jurisdictional rather than merits limitation. Where Congress lacks power to abrogate (e.g., ADEA), the limitation is jurisdictional; where Congress has the power but declined to exercise it (e.g., § 1983), it is merits. Even if in both cases, a state is willing to be sued eo nomine.

Posted by Howard Wasserman on May 14, 2020 at 12:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (5)

Friday, May 08, 2020

Reuters on qualified immunity

Reuters on Friday published a multi-part series on qualified immunity. The center of the study is a empirical look at how Pearson v. Callahan and the Court's recent string of summary reversals changed how courts of appeals handle qualified immunity. Its findings:

  • In 2005-07, plaintiffs in excessive-force cases prevailed 56 % of the time; in 2017-19, defendants prevailed 57 % of the time.

EXfriNtWkAEsfGi

• This graph shows that the flip in plaintiff success is a recent development. From 2014-16, plaintiffs prevailed 52.2 % of the time; for 2017-19, it dropped to 43 %. Some of that might be traceable to the influx of Trump appointees (recognizing that some, such as Don Willetts of the Fifth Circuit, have criticized qualified immunity), as well as the hint from SCOTUS's summary reversals.

• The dark blue represents cases in which the court found no excessive force; the medium blue represents cases in which the court found excessive force but that it was not clearly established that the force was excessive; the light blue represents cases in which the court  skipped the merits question and found that it was not clearly established that the force was excessive. That third category has expanded the past two years.

• Courts (including SCOTUS) increasingly demand factual overlap with precedent before finding a right clearly established. Case in point: The Ninth Circuit granted qualified immunity because no precedent held that the Fourth Amendment was violated by police stealing private property while executing a search warrant.

• The latter two colors (which, on the eyeball test, appear to represent a bit less than half of the defendant victories) establish the new problem: Courts demand factual overlap for a right to be clearly established, then refuse to provide a precedential opinion that can serve to clearly establish that right going forward.*

[*] Courts seem more willing to reach the merits--so the right now is clearly established--in non-police, or at least non-excessive-force, cases.

• SCOTUS will review multiple petitions involving qualified immunity at its May 15 conference. These include the stolen coins, an officer who deployed a police dog on a non-resisting suspect, an officer who shot a child while attempting to shoot the non-threatening family dog, and Kim Davis trying to avoid damages for ignoring Obergefell (I used this in Civil Rights in the fall). Justice Thomas called for reconsidering qualified immunity in his concurring opinion in Ziglar v. Abbasi; this will be a chance to see if anyone else wants to follow him down that path.

Posted by Howard Wasserman on May 8, 2020 at 02:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Thursday, May 07, 2020

Courts should not reach out, unless they need to reach out

SCOTUS reached a strange resolution in United States v. Sineneng-Smith, arising from a conviction of an attorney for violating the federal law prohibiting encouraging or inducing non-U.S. persons to enter or remain in the U.S.

The Court vacated and remanded to the Ninth Circuit on grounds of the "principle of party presentation"--that courts must take and resolve cases as they come and are presented by parties represented by competent counsel--and that courts are "passive instruments of government."* And while there are exceptions (as shown in a two-page addendum** in which SCOTUS has appointed amicus or called for further briefing since 2015), the Ninth Circuit went beyond the pale in its management and resolution of the case, was unjustifed by any "extraordinary circumstances." The Court took issue with the court of appeals inviting specific amicus to brief and argue specific constitutional that were broader than what Sineneng's attorney had argued--that the law was overbroad and facially unconstitutional, as opposed to the defendant's arguments that she had a limited First Amendment immunity for her conduct. [I did not say it in the initial post, but I will say it now--the Court did not explain why what the Ninth Circuit did was more beyond the pail than what it does frequently].

[*] The partisan bend of that idea is fascinating, given the make-up of the federal courts and the evolving nature of constitutional and impact litigation.

[**] Any guesses as to why this was an addendum and not part of the opinion?

Justice Thomas concurred, but took the time (reached out, one might say) to explain why the overbreadth doctrine was invalid and should be rejected as unwarranted by text and history, inconsistent with the usual standards for facial challenges, and another improper application of the improper doctrine of third-party standing. He cites his dissent on third-party standing in Whole Women's Health and restates his distaste for this "handiwork of judges, based on the misguided 'notion that some constitutional rights demand preferential treatment.'" Query whether this hints at where the Court might be going on the standing questions in the Louisiana abortion cases.

Posted by Howard Wasserman on May 7, 2020 at 10:59 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (4)