PrawfsBlawg

Judicial departmentalism and the Shadow Docket

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

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

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

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

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

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

Universality, again

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

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

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

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

Speech or Debate Confusion (Updated)

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

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

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

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

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

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

Types of injunctions

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

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

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

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

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

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

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

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

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

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

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

Goldsmith on judicial supremacy and universal injunctions

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

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

A different scope-of-injunction puzzle

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

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

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

Thoughts on the universal injunction argument (Updated)

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

Other thoughts after the jump:

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

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

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

[*] To Barrett's surprise.

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

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

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

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

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

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

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

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

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

Same-sex marriage and universal injunctions

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

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

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

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

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

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

Judicial departmentalism and universal injunctions

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

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

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

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

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

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

Nonsense lawsuits don't help

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

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

Second, the court dismisses without prejudice and offers this:

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

Indeed.

Chaos and merits

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

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

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

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

Zick on the First Amendment Watch

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

Worth checking in as the EOs and lawsuits multiple.

Scope of Pullman

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

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

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

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

Somin on university lawsuits

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

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

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

Combatting antisemitism (Updated)

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

But what does it mean and what does it allow?

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

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

On institutional neutrality

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

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

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

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

Challenging EOs

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

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

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

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

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

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

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

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

But for those in the cheap seats:

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

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

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

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

Remedies and the Constitutional Crash

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

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

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

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

Procedural puzzles and Trumpian abuses

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

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

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

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

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

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

Kilborn v. UIC

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

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

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

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

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

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

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

Not in my name (Update)

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

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

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

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

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

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

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

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

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

Preliminary injunction does not create prevailing party

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

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

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

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

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

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

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

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

Courtroom policies and constitutional substance

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

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

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

Substance, procedure, and the current constitutional crisis

Sen. Curtis (Utah) went on Face the Nation and said this:

Well, what we're seeing play out is this wrestle between the three branches of government. We'll find out. And this is the beauty of the system--* Well, listen, I believe in the Constitution, right? I believe this is how we test the Constitution. And people have said, oh, this is a constitutional crisis. And I say, exactly the opposite. It's proving to work. We have the courts playing it. We have Congress who will play in. We have the ability, I think we hold a lot of responsibility for what's happening right now. We could solve the budget as Congress. We could solve the border, and we haven't. And both parties, when Congress doesn't do their job in the White House, have a tendency to try to solve it. Let's let this play out by the Constitution and- and then Congress, let's step up, right? We need to- I'll be the first to say we. This is a problem the Congress is, in many cases, has given the American people.

He has been taking some crap in some quarters, especially for the part about "test[ing] the Constitution. "No," they respond, "we follow the Constitution, we do not test it." But while "test" is a bad word choice, I am not sure he is wrong.

The retort of "we follow the Constitution" begs the question because no one knows what the Constitution means and no one has the final word on the meaning of the Constitution. Trump and his minions (presumably) believe what they are doing is lawful and pursue this course on that belief; other constitutional actors (namely the courts) express their views, but that plays out within a somewhat lengthy process. Alternatively, Trump and his minions know what they are doing is unlawful (or at least do not care); other constitutional actors (again, the courts) may bring them to heel, but that plays out within a somewhat lengthy process.

Ultimately, Curtis gave a procedural response to a substantive question. Host Margaret Brennan (who is so far out of her depth) asked whether Curtis had a point of view of the wisdom of everything Trump is doing and whether he is pursuing a good course of governance, a question about the substance of his actions; Curtis responded with a procedural answer--the Executive acts, other branches respond, and we get an answer to the immediate question. But that tells us nothing about whether he--a member of the Senate and a constitutional actor--believes the President should do th4ese things. He punted to "the courts will tell us whether it is valid" as "the beauty of our system." (Seemingly without recognizing Congress as a constitutional actor and his role in that process).

This distinction among constitutional procedure, constitutional substance, and policy substance confounds most discussions. Take birthright citizenship. The President did not "act like a king" in issuing the EO if he believes that Kim Wong Ark is wrong or distinguishable; he acted on his independent constitutional judgment, which can be challenged in the other branches. The real issue is the substantive--whether his view (and the views of conservative scholars rallying to his defense) is defensible. Or take firing military leaders or pardoning J6 insurrectionists or appointing nut jobs to high offices. This is not a matter of constitutional procedure or constitutional substance--no one doubts the Commander in Chief can fire who he wants to and no one doubts the pardon power; it is pure policy (or norms, if you like) and how we believe leaders should act in office.* And this is actually where Congress--a rival policymaking body--can but fails to act.

[*] Sandy Levinson might say it reflects constitutional substance by exposing the many defects in the Constitution. Fair enough. But we are stuck with the Constitution we have.

Interviewers and commentators should maintain these distinctions. If Donald Trump is acting like a king, it is not necessarily because he has exceeded his constitutional powers-the President has quite broad, and ill-defined, powers. It is that he is governing in an objectionable way that maximizes his power towards bad ends. So the question for congressional Republicans should be "Do you think it is a good idea to have Dan Bongino as Deputy FBI Director or a statutorily unqualified person as Chair of JCOS or to eliminate top military lawyers or to eliminate birthright citizenship." The question should not be "can the President do this," because the answer is always either "yes" or "we'll let the courts decide."

Major and Minor Trans Issues, Again (Updated)

I previously criticized efforts by some Democrats and non-conservatives to defuse Democratic vulnerability to anti-trans demagoguery by sacrificing minor issues such as sports participation in favor of major issues, such as allowing trans people to live their lives, including their names and pronouns. I argued this cannot work because those opposed to trans rights (which has become the entire Republican establishment) do not and will not draw these distinctions--recognizing trans people is objectionable in all forms and contexts.

Case in point: Attorneys in the lawsuit (in the District of Colorado) challenging the Mountain West Conference's trans-participation policy have moved to recuse Judge Kato Crews from the action. The reason? Crews (along with several other judges on the court) adopted a joint set of practice rules, including a provision inviting counsel to identify the pronouns of relevant actors in each case and to use appropriate names and pronouns in court. They argue that the policies restrict the speech of plaintiffs and lawyers (which, yes, procedural rules do that all the time) and demonstrate bias--"An impartial forum cannot exist where the Court has so forcefully signaled the Courts’ personal views on sex and gender identity that the Court is willing to use its contempt power to enforce those views."

In other words, they object to anything recognizing the humanity and equality of trans people and have no interest in some compromise in which trans people can live as they want, as long as they stay out of certain limited areas (such as women's sports). Conversely,they allow no space for the sort of compromise some propose--asking a lawyer to be respectful and not be an asshole to a trans person during litigation reflects bias and prejudgment about the bigger issue of sports participation.

I expect Judge Crews to deny the motion. But it gives us a sense of where we are.

Updated: Marty Lederman discusses the case on Bluesky, including a link to the motion with asks Judge Crews to rescind his court rules. Marty frames this within a pending Sixth Circuit case in parents claim their children have a First Amendment right to misgender their school classmates. Whatever the outcome there, I agree with Marty that it is absurd to think the First Amendment precludes courts from regulating how attorneys and parties refer to one another in the litigation process.

What happens on Pullman Abstention

The Fourth Circuit abstained under Pullman from the dispute over the North Carolina Supreme Court election; the district court had abstained under Burford, which the court of appeals said was the right conclusion for the wrong doctrinal reason.

But the court's explanation of the difference in coverage and effects seems off. Pullman is appropriate because unclear state laws may moot a federal constitutional claim. True enough. But Pullman differs from Burford in that Pullman requires the federal court to retain jurisdiction should state litigation not moot the federal issues. Under Burford, the district court dismisses because the dispute will be resolved in the state's complex remedial system (the reason for abstaining in the first place) and the case will not return to the district court. The court ordered the district court to retain jurisdiction over the federal issues, citing England.

The court relied on long-standing precedent for this, but it seems wrong. Pullman should require dismissal of the action to allow the parties to fully litigate state issues through the state judiciary. The case may return to federal court, but it does so as a new lawsuit. England does not address the court retaining jurisdiction. It allows the plaintiff to "reserve" the federal issues in state court, thereby avoiding claim preclusion upon possible return to federal court with the new purely federal action.

Retaining jurisdiction following Pullman abstention also destroys the distinctions with certification. Certification was a more expedient alternative (a "more precise tool," as Justice Sotomayor put it) because: 1) it went straight to the state's highest court and 2) the federal court otherwise retained the action pending resolution of the state questions. The Fourth Circuit's approach destroys one of those two distinctions.

Not the biggest deal given everything else being litigated in federal courts (more on that later). But a notable example of how lower courts go in strange directions.

303 Creative, Exclusive Private Enforcement, and Blue State Revenge

My latest with Rocky Rhodes, in the Journal of Legislation. We argue that a Blue State wanting to create a real counterpart to S.B. 8 and its copycats should enact an exclusively privately enforced public accommodations law, targeting the First Amendment opt-out recognized in 303 Creative.

Abstract after the jump.

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This Article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

Craven, cowardly, and clueless

Republicans in the Idaho legislature are pursuing a resolution urging SCOTUS to overrule Obergefell. The exercise is performative bullshit. SCOTUS resolves lawsuits, not requests from random people to do things. The article quotes Tobais Wolff (Penn) as saying "the Supreme Court will no more respond to a letter from the Idaho Legislature than they would a letter from me." It also quotes one legislator emphasizing the need to make a statement about protecting rights.

The clueless part is that the legislators could make a statement that would have actual legal effect: Pass a law limiting marriage to one man and one woman (presumably a new version would specify cis-man and cis-woman) and set up a lawsuit by a couple denied a license; then they can marshall their legal brilliance to argue to the Court why it should overrule its precedent. They cannot claim a belief in judicial supremacy; the proposed resolution begins "[s]ince court rulings are not laws and only legislatures elected by the people may pass laws." Such a view of the balance between the judicial and legislative powers suggests the legislature can (and should) pass a law reflecting the views of the people of Idaho and let the legal controversy play out.

The answer is the cowardly part. They do not want the political blowback to enacting a law contradicting SCOTUS precedent. They likely fear being lumped with Massive Resistance and the authors of the Southern Manifesto--who, to their (limited) credit, offered a procedurally and substantively coherent vision of constitutional judicial review. They also likely fear the hundreds of thousands of dollars in attorney's fees they will pay for litigating two guaranteed losses in the lower courts and a likely loss in SCOTUS (which I do not believe is so anxious to overrule Obergefell, as opposed to limiting its application). But these people will not put their money or their power where their mouths are.

And so we get the craven part--a legally, procedurally, and practically meaningless performative gesture.

Nazi jokes and Nazi salutes

I have no real use for the ADL and less for Jonathan Greenblatt. I have long believed they see antisemitism lurking around every corner, often in a way the conflicts with my views on First Amendment protection for hate speech. So I am not the group's target audience. And October 7 produced a genuine uptick in antisemitic speech and incidents, so I began to see a bit of the group's point.

But Greenblatt and the group's response to Elon Musk's adventures destroys any credibility. First, it was a Nazi salute; it did not just "appear to be," as so many outlets (including The Forward) described it. And it was made on stage at an inaugural even by a person with an office in the West Wing and the ear of the new President. Minimizing it as "an awkward gesture in a moment of enthusiasm" is absurd. Greenblatt exacerbated the problem by condescendingly telling everyone who disagrees with him (those who are "on edge") to chill out by "giv[ing] one another a bit of grace, perhaps even the benefit of the doubt, and take a breath" and "hop[ing] for healing and work[ing] toward unity in the months and years ahead." As if Musk and the president he supports are not expressly targeting those they do no like. Demanding that one side give the benefit of the doubt and work toward unity--while the other runs roughshod--is offensive nonsense.

Greenblatt made himself look worse by chastising Musk over bad puns about Nazi leaders, taking umbrage about the Holocaust as a unique event that should never be joked about. (Maybe have a word with Mel Brooks?). One might see this as attempted compensation--chastising the joke to overcome the criticism for his response to the salute. But I think Greenblatt sincerely sees the latter as worse than the former. And that reflects bizarre priorities--an online joke deserves strident condemnation but a political speech celebrating a president set to pursue some problematic policies is no big deal. Of course, it is consistent with the view that the pro-Palestinian shouts of an Oberlin student represent an existential threat to Jews but government policy that harms Jewish interests is no big deal.

To be clear, both of Musk's actions warrant condemnation. And both are constitutionally protected, so nothing (besides cementing my negative opinion about him) should befall Musk. Greenblatt's disparate treatment reflects more about the ADL than it does on Musk's character. That is sad.

Update: From Jodi Rudoren at the Forward. She makes a point I considered after posting--the subsequent jokes should lend some "context" to the salute, strengthening the view that it carried an antisemitic message. Also, Greenblatt's quotations are moronic--"we don't know anything, but I can say it was not a Nazi salute."

Settlement and New York Times v. Sullivan

It is not news that at least three members of SCOTUS (Thomas, Alito, Gorsuch) have shown some desire to at least revisit New York Times v. Sullivan. I have been sanguine, and perhaps Pollyanna-ish, in believing there are not two more votes to undo the Court's first-and-strongest act of protecting free speech. But news reports that Paramount wants to settle Trump's suit against CBS over supposedly deceptive editing of 60 Minutes' Kamala Harris interview*--hot on the heals of Disney settling the suit against George Stephanopoulous over saying Trump had been found liable for rape--suggests the regime collapsing in a different respect.

[*] Purportedly because Paramount worries--and may have been told by told as much by incoming FCC Chair Brendan Carr--that the FCC will resist a proposed merger with Skydance Media and that Paramount must make concessions to Trump and his administration.

Prior to the 1960s, the Times' refused to settle defamation acti0ns. Adolph Ochs regarded settlement as "tribute" and would spend money only for litigation. By the early 1960s, $300 million in potential defamation liability to Southern officials (including $ 3 million against the Times for "Heed Our Rising Voices") rendered that strategy unworkable. That partly explains the Times taking Sullivan's case to SCOTUS as a First Amendment issue--it needed the decision to stop the organized strategy of extortionate litigation as a legal weapon to silence the media.**

[**] The rise and demand for anti-SLAPP statutes reflects the view that speakers need protection against not only liability but the cost of litigation itself, where plaintiffs seek to use the judicial process as the punishment.

We have returned to extortionate litigation but against a more compliant, and compromised, media ownership. And as bad as the Disney/Stephanopoulos case was, the Paramount/60 Minutes case is worse. The district court in Stephanopoulos had denied a motion to dismiss and there was at least a plausible claim that Stephanopoulos was not substantially truthful (and knew as much) when he repeatedly said Trump had been found liable for rape (rather than sexual abuse). Paramount wants to settle before the case even gets that far. And their case is absurd--Trump cannot identify any way in which 60 Minutes editing the interview  injures Trump in a legally cognizable way such that, however deceptive, it loses constitutional protection. But Paramount has no interest in fighting for free speech where it conflicts with its business interests. A settlement in this case arguably extends beyond extortion to something like bribery--Paramount would give Trump tribute in exchange for the merge despite facing no real risk of legal jeopardy.

This post provides an opportunity to promote two pieces of scholarship: Samantha Barbas' Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, which uses the Times' internal files to explore the case as one about civil rights, and Thomas Healy's review of the book in Michigan Law Review.

Polarization, and what to do about it

This is the third post in the series from Chad Oldfather on his book, Judges, Judging, and Judgment.

                In my last post I outlined the diagnostic portions of Judges, Judging, and Judgment (use code JJJ2024 for a discount). The problem, as I see it, is not just polarization, but that many of the mechanisms that have traditionally served to channel judicial behavior toward adherence to law (again, however we might conceive of that) have weakened. The result is more space for the operation of the sorts of influences—usually imagined as raw politics--that we’d prefer to shield against.

                So what do we do about it?

                One answer is methodological. Proponents of textualism and originalism claim that both have the virtue of pointing judges toward a fixed target, and that by deeming certain sorts of evidence and arguments to be presumptively out of bounds they can prevent judges from, as the claim is often formulated, doing whatever they want. (There are other arguments as well, but I’ll pass over those here.)

                But of course, language can never fully specify how it applies in all situations. Original understanding, even when it can be discerned, will likewise be incomplete. Usually figuring out what the text means, or what the original understanding was, involves the application of professional judgment. There’s an additional step—which also entails the exercise of judgment—required to get from whatever it is that the text or the original understanding might yield to a conclusion about how that should be applied in each case. Sophisticated proponents of these methodologies acknowledge this.

                There are at least two problems. One is that the larger discourse about judicial methodology glosses over the need for judgment. Adherents present the process as algorithmic. “We” are constrained; “they” are just making it all up. This feeds into a dominant cultural taste for the tangible and quantifiable. Ours is a world that craves metrics and distrusts expertise. “I know it when I see it” is an epithet, and our culture sweeps aside notions such as Michael Polanyi’s “we know more than we can tell,” Wittgenstein’s “imponderable evidence,” and Karl Llewllyn’s “situation sense.” Yet I think we all, in our daily lives, have experience to the contrary. Over the course of my half-century plus on this planet I’ve met people whose instincts, judgment, and situational feel I rate very highly, and those for whom the opposite holds. My sense is that those assessments are not unique to me, and that my peers in the relevant context would generally agree on who it is they’d consult in difficult situations. The correlation of these assesments with raw intellectual power, the possession of abstract knowledge, or the holding of any sort of political views is well short of perfect.

                The second problem is that, as Richard Fallon among others (including me) has demonstrated, courts’ use of these methodologies is often opportunistic. This could be a product of pure ideological motivation, though I tend not to believe that that’s what judges or justices understand themselves to be doing. More likely it’s a manifestation of bounded rationality and the fact that motivated reasoning is a powerful drug. Perhaps the judges and justices would say that in their best judgment the ordinary tools of originalism, say, weren’t the best tools for this specific job. Judgment, as I emphasize throughout Judges, Judging, and Judgment, is inescapable, and judicial behavior, if not judicial rhetoric, demonstrates as much.

                What we need, then, is to prioritize and praise the exercise of good judgment. Saying that, of course, leads me straight into the sorts of objections one can expect in a world that privileges the tangible and quantifiable. If I can’t precisely define it, if it can’t be measured, it must not be real. “This person has good judgment” will become just another way of saying “this person is likely to reach conclusions I prefer.”

                That’s a risk, no doubt. But I don’t think it’s impossible for us to reach consensus on characteristics we want judges to exhibit. I’d suggest that dispassion is a component of good judgment, and that whatever the rule of law means it certainly means that my side doesn’t always win, even in the most difficult and most politically charged cases. There are others where we might disagree. In my view good judgment involves—and in this respect my book might as well be called Son of The Lost Lawyer—the exercise of practical wisdom, including at its core recognition of the idea that the law exists to serve multiple and often-conflicting social ends rather than to seek perfect compliance with some abstract, theoretical ideal. It also involves, for something that early experience suggests is a tough sell amongst the law professor community, the cultivation and exercise of intellectual humility. But here I stand with Cardinal Lawrence, Ralph Fiennes’s character in the movie Conclave: “the one sin I have come to fear more than any other is certainty. Certainty is the great enemy of unity. Certainty is the deadly enemy of tolerance.” Much better, in my view, to constantly ask ourselves the question “what if I’m wrong”?

                There’s much more to say, of course, including a dive into a growing body of interdisciplinary research into the nature and effects of epistemological humility, both in general and with respect to the judicial role. I’ll refer you to the book for that, and I hope you’ll check it out. I’ll be back here with a couple more posts less directly related to the book next week.

Polarization, but not just polarization

This is the second installment of Chad Oldfather's series of posts on his new book, Judges, Judging, and Judgment.

                As I mentioned in my first post, Judges, Judging, and Judgment (out today!) arose generally out work I’ve been doing for the entirety of my time in legal academia, and more directly out of materials I developed and continually refined for the Judging and the Judicial Process course I’ve consistently taught for over fifteen years. What resulted is thus very much a work of synthesis, a weaving together of strands of in law, philosophy, political science, and psychology in an effort to tease out what ails us.

                It’s plain that we live in a polarized world. It’s nearly as plain that polarization has affected the workings of the judiciary. We’re all Realists now, as the saying has it, and as such are sensitized to the ways in which things other than law, however we define it, can influence decision-making. The Realists led to the Crits and the attitudinalists and in turn to the suggestion that there are Obama judges and Trump judges, all of which is nowadays mostly greeted with a shrug. Chief Justice Roberts of course resisted the suggestion, but I’ve heard federal judges openly acknowledge its truth, including as recently as last week at the AALS annual meeting. Quantitative empirical research supports the claim, and research into cognitive biases and our blindness to them, including especially motivated reasoning, describes the likely mechanism.

                We’ve mostly been taught to believe these realizations are of relatively recent vintage, that until the Realists arrived everyone believed in some form of mechanical jurisprudence. Brian Tamanaha has shown that story to be inaccurate when it comes to the beliefs of those operating within the system. What’s more, the very design of the judicial system likewise suggests that our legal culture has long been mindful of the sway of non-legal influences. Features like the adversarial process, the expectation that decisions will be justified in written opinions, the doctrine of precedent, and the existence of multi-member courts all have historically served to minimize the influence of sloppy and biased thinking. There are external forces as well, things like ethics codes, selection processes, and media coverage. Perhaps most powerful of all are shared norms, tacit understandings of how things are done.

                What’s often overlooked, largely because the erosion has been so gradual, is that the influence of these mechanisms, their ability to channel judicial behavior, has weakened. An earlier generation of scholars and judges decried the delegation of opinion-writing to clerks, the heavy reliance on non-precedential opinions, the vanishing trial, and the bureaucratization of judging. Today they’re largely accepted as just the way things are. Media coverage of the courts once devoted space to description of the competing arguments but tends now almost exclusively to rely on reductionist characterizations of judges as liberal or conservative. Judicial selection has become an overtly partisan affair, and ethical norms appear to hold little sway over the justices on the highest court in the land.

                Meanwhile the profession, reflecting society more generally, has become polarized. To my mind one of the more important books of the last quarter-century is Neil Devins and Larry Baum’s The Company They Keep: How Partisan Divisions Came to the Supreme Court. Their central point is that the justices, like people generally, are significantly influenced by their salient personal audiences. We shape our behavior to meet the expectations of those whose approval we value. For judges, or at least many of them, the salient personal audience is no longer “the legal profession,” but rather an ideologically inflected subset of it. Shared norms serve as a form of dark matter, with a gravitational pull that invisibly influences behavior. When those norms are no longer shared, or when their violation is overlooked in service of expediency, that source of discipline also erodes. Criticism from those on “the other side” can be dismissed as just another partisan gripe.

                The first two-thirds or so of Judges, Judging, and Judgment, the diagnostic portion, explores all of this. It attempts to survey the landscape in a manner that is both comprehensive and concise (and suitable for use in the classroom!). The last third attempts, much more tentatively, to tackle what we might do about it. More on that tomorrow.

Can Donald Trump block people on Twitter?

I taught Lindke v. Freed in Civil Rights today and I genuinely do not know the answer. But I think it is yes, he can--Knight Foundation v. Trump comes out the other way under Lindke.

Step One of the analysis requires that the official exercise government-provided authority to speak for the government in that forum, derived from some statute or other source of law. The President has the power to speak to the public and what he says may reflect official policy. But no statute or constitutional provision obligates him to do so, certainly not on Twitter. And the fact that he uses Twitter to repeat things that the government announces more formally elsewhere (e.g., an executive order) does not make the social-media page the formal government mechanism.

It is unfortunate that the government used a case about a government employee (Lindke was city manage) to address this question rather than a case involving elected officials who are expected (as a matter of representative democracy) to speak to the public about the business of government but are not required by law to do so.

Curious to hear what others think. What's that definition of insanity everyone uses?

Pleading as press release, performative litigation, and good guys v. bad guys

I read Steve's article in conjunction with this post from David Schraub discussing the suit against the congressmen and complaint against Haverford College. The district court dismissed Haverford because the complaint spent 129 pages railing about anti-Semitism and political disagreements over Israel/Gaza but did not allege any facts showing any violations of any laws by Haverford injuring Haverford students. David criticizes the lawsuit as a "form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive." Meanwhile, Steve's article reveals why the suit against the legislators is doomed and that the lawyers have no clue what they are doing--there is no "it's really unconstitutional" exception to Speech or Debate.

I want to drill down on this because a range of ideas are floating here.

Beth Thornburg coined the term "pleading as press release" years ago. She used it (and I teach it in class) to refer to the portions of an otherwise arguable claim meant for public consumption, that promote someone or something apart from the lawsuit. In other words, extra material thrown into the complaint for the public to see. For example, a lawsuit several years ago against a Nike store over a shopping-while-Black incident includes pages and pages of statistics and stories about George Floyd, the 2020 protests, and the problem of shopping-while-Black. Or Jameis Winston's answer to the lawsuit by the FSU student he allegedly sexually assaulted includes sixteen pages not conforming to the required structure of pleadings or responding to the allegations in the complaint (the usual point of an answer) calling the plaintiff a lying slut. This practice likely existed for years, although increased (if not improved) coverage of courts increases the likelihood of such add-ons.

We should distinguish this from "performative litigation," in which the entire lawsuit is a performance without regard to success. The lawsuit seeks to draw public attention to a cause (e.g., Gaza), to the plaintiff (making Trump or Musk look like tough-guy heroes for their fanboys), or to both. It seeks to garner support for an issue, rally the troops, or something else. The over-the-top complaint is part-and-parcel of that--performance requires an audience and attention, both of which come with a long complaint filled with hyperbole and rhetoric. But you can have a press-release pleading in a meritorious lawsuit. Alternatively, the desire to perform can overwhelm that meritorious claim (David argues this happened in Haverford, where attorneys buried allegations suggesting a meritorious claim "inside such an amalgam of irrelevant ranting").

David and Steve raise shared-but-opposite questions about the relative responsibility for this problem between parties and attorneys. The plaintiffs in the Gaza case have made public statements celebrating the lawsuit as a way to shine a spotlight on the U.S. role in Gaza and to rally public support for their cause; Steve blames the attorneys for ignoring their essential role of advising and guiding their clients to as to the limits of what courts can do. The attorneys in the Haverford case failed in their duty by sacrificing the potential merits of their clients' claims to their desire to play "soapbox orator" (and, I would add, filing a 129-page complaint, regardless of the content). Update: Note that this potential divide between lawyers pursuing a cause and their clients is as old as constitutional litigation, as Derrick Bell described. But Bell described a divide over remedies--integration versus best educational opportunities. A departure over how much rhetorical hyperbole to include in the complaint seems like a different in kind.

These issues arise, although draw less discussion, in the lawsuits alleging violations of due process and the public-trust doctrine because of climate change. These lawsuits fail, usually on standing. But many attorneys, activists, and academics cheer these lawsuits even as they fail; they argue in similar terms--legal losses draw attention to the cause and perhaps prompt changes in conduct or action by other parts of the government. Climate activists also view themselves as the NAACP in the mid-1940s; I think the Gaza plaintiffs see themselves the same way.* Still, it would be interesting to see how climate activists and Musk fans or Gaza activists would distinguish their lawsuits from the others'.

[*] Interesting Rule 11 question Steve and I kicked around: The complaint does not acknowledge the uncharted territory it enters as to Speech or Debate and as to Flast standing. Should plaintiffs acknowledge in the complaint when they seek an extension or change in the law? Or is it enough to plead the case, ready to defend the good-faith extension in response to a Rule 11 motion. I lean towards the latter, although I see the benefit to getting ahead of it in the pleading. The fact these plaintiffs did not do that may suggest they do not realize how far on a limb they go.

Roberts to Court critics: Be nice, be truthful, and listen to what we say

Forgive the snark, but that is the best summary of the 2024 Year End Report on the Federal Judiciary. Roberts begins with the usual historical lecture, this one on judicial independence from 1761-Present. He goes from George III interfering with colonial judges through the Declaration complaining about that interference through the Convention and The Federalist establishing life tenure through Marbury and into modern times, framing judicial independence as a necessary concomitant of judicial review. He identifies four threats to judicial review: 1) Violence; 2) Intimidation; 3) Disinformation; and 4) Threats to defy judgments.

One problem is that his framing of "intimidation" is so capacious as to cover most constitutionally protected criticism of judges and judicial decisions. Intimidation includes: disappointed litigants urging online followers to send messages to the judge; disappointed litigants claiming the judge was biased against them for various reasons; doxing of judges leading to people protesting judges at home and in public; and suggesting political bias in rulings "without a credible basis for such allegations." He finishes with this: "Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others." He segues into disinformation disconnected from intimidation, such as "distortion" of the factual or legal basis for a decision, which "can undermine confidence in the court system."

Criticism of the courts must be, as my title suggests, nice, polite, and truthful--otherwise it constitutes improper intimidation and a threat to judicial independence. Never mind that public debate may (and should) include "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Never mind that all speech directed at all people "may" cause bad people to do bad things--that cannot be the basis for silencing criticism of public officials. Never mind that Roberts does not--and cannot--explain who decides what criticisms are accurate or inaccurate and when there is sufficient basis for a charge of political bias or when a criticism crosses into "distortion." Absent any basis for measure, the answer must be "do not criticize the courts" lest that criticism become illegitimate--and dangerous-- intimidation. As with "I believe in free speech, but . . ." the but in "you can criticize the courts, but . . ." subsumes everything before it. And gives the rhetorical game away.

Roberts also uncorks this: "Our branch is peculiarly ill-suited to combat this problem, because judges typically speak only through their decisions. We do not call press conferences or generally issue rebuttals." This is a long-standing--and patently false--trope. In 2024 alone, Justice Alito, Judge Jones, Judge Duncan, and others showed that they enjoy many outlets and opportunities--including friendly press outlets--through which to issue rebuttals.

To his credit, Roberts frames the disobedience point in the right way. He does not target the Southern Manifesto as defiance of Brown itself. He focuses (properly) on lower courts' decisions post-Brown/based on Brown to integrate other schools, specific instances of governors defying those specific lower-court orders, and Eisenhower and Kennedy enforcing those lower-court orders.

Finally, Roberts pays single-paragraph lip service to the courts' responsibility for maintaining their own legitimacy--stay in their constitutionally assigned lanes, respect standing limits, and respect coordinate branches. He expresses "confiden[ce]" that judges will "faithfully discharge their duties." Put aside the conspicuous absence of any acknowledgement or awareness of the Court's ethical problems. And put aside the conservative realignment to loosen standing and expand the scope of the Court's lane, a realignmentn in which Roberts has played a role. It does not matter whether judges faithfully discharge their duties; for Roberts, any suggestion that any judge did not do so is improper intimidation and disinformation.

Hypocrisy and question-begging on standing

A few days late on this: Justice Alito (joined by Justice Thomas) dissented from denial of cert in Parents Protecting Our Children v. Eau Claire Area Sch. Dist., where lower courts found a group of anti-trans parents lacked standing to challenge trans-supportive policies. The lower courts relied on Clapper; Clapper's author, Alito, was not having it. He finished with this:

I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their “ virtually unflagging obligation . . . to exercise the jurisdiction given them. ” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

Alito seems to want to single-handedly prove the point that conservative justices are abandoning standing now that conservative litigants are challenging liberal policies. This is of a piece with his dissents in Murthy (the jaw-boning case) or California v. Texas (standing to challenge an unenforceable law). He was not worried about courts avoiding such contentious constitutional questions as the validity of a federal law authorizing warrantless searches. Richard Re argues that the Court is, so far, holding the line on standing. Not so Alito.

Note the question-begging dishonesty in that last sentence. The "virtually unflagging obligation" goes to abstention--when to decline exercise jurisdiction granted. Standing (for better or worse) goes to whether jurisdiction has been granted. And it should not affect how the Court understands the scope of jurisdiction--courts do not expand their interpretation of standing (and thus jurisdiction) because of the virtually unflagging obligation.

Norberg on the InfoWars/Onion Bankruptcy Controversy

I asked my colleague Scott Norberg, a bankruptcy expert and a member of the BK Rules Advisory Committee, for his thoughts on the InfoWars/Onion Bankruptcy controversy. (TL:DR -- The Onion bought InfoWars in the bankruptcy auction in a bid supported by the Newtown-parent creditors; InfoWars, the State of Texas, and a bunch of right-wing people are objecting in typically performative terms). Scott's comments after the jump.

The Onion’s bid is the best one for the estate, superior to First Union’s.  The trustee’s job is to maximize the proceeds from the sale of assets for the benefit of the unsecured creditors and he’s the expert in doing that.  (Indeed, his payment in the case is based on a percentage of the monies generated by the sale of assets.)  Further, the fact that the major creditors support the Onion bid validates the trustee’s assessment of the competing bids.  After all, he is liquidating the estate on their behalf.  I see the bankruptcy judge’s expressed concern about transparency, but the potential for some creativity in the bid packages was probably inherent in the secret written bid procedures and the fact that the sale of assets was not conducted by live auction.  Jones’s and First United’s allegations of collusion seem way overblown if not desperate.  Jones’s history of playing fast and loose with the legal system leaves him with little credibility.  That said, you know what they say about keeping of with the Joneses. . . . Ultimately, the bankruptcy judge’s decision regarding the better bid is subject to an abuse of discretion standard of review.  The appearance by the Texas Comptroller seems heavy-handed and political.  It will be interesting to see what they have to say at the hearing, or if they are even permitted to speak – not sure that they would be considered a party in interest.

Attorney courage and state interference

More on the controversy over the Florida Department of Health efforts to stop tv stations from airing ads supporting an reproductive-freedom constitutional amendment: John Wilson--the attorney who drafted letters threatening tv stations with civil and criminal nuisance actions, was named as defendant in the EpY action, and loudly quit his job--filed an affidavit with the district court (presumably in support of a motion to dismiss) saying: 1) people in Governor DeSantis' office drafted the letters and ordered Wilson to send them under his name and department; 2) people in DeSantis' office ordered Wilson to enter contracts with outside counsel; and 3) Wilson resigned a week later rather than send a second round of letters.

As to ## 1 and 2: It is not surprising that DeSantis is behind these efforts or that he tried to launder those efforts behind Public Health. Nor do I imagine there is more fallout, other than perhaps to get DeSantis and his aides added to the suit.

As to # 3: There is a nice PR question as to how much to praise Wilson. Usually the "I'm drawing a line" involves someone willing to do X but not Y--"I'll decline to report this wrongdoing, but I won't forge documents to hide it." Here, Wilson's "line" was I will do X once but not twice. What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?

More free speech in Free Florida

Things move fast when the Free State of Florida decides to show its true censorious colors. Following that absurd letter threatening TV stations with liability if they ran the "Caroline" ad supporting passage of an abortion-rights constitutional amendment, documents revealed that the state retained two law firms for possible litigation. On Wednesday, the Floridians Protecting Freedom, sponsor of the ballot initiative and the ad, brought a § 1983/EpY action against the surgeon general and the general counsel of the department of health (the author of the letter). On Thursday, the court granted a TRO enjoining the SG from taking further actions to stop people from running the ad. Also on Thursday, reports leaked that the attorney, John Wilson, quit, saying "A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency." Of course that burst of conscience 1) came after he wrote the letters and 2) did not stop him from getting sued.

Some thoughts on the suit and the decision:

• The First Amendment violation here is so obvious as to be funny. In his Murthy dissent, Justice Alito complained that the comparative outcomes in Murthy (finding no standing) and Vullo (finding a plausible violation) showed "[i]f a coercive campaign is carried out with
enough sophistication, it may get by. That is not a message this Court should send." Ron DeSantis and his cronies do nothing with subtlety or sophistication.

• The case has an interesting standing wrinkle. The state directed the challenged letter to the tv stations, but the ad sponsors filed suit and sought the injunction. The plaintiffs offered two theories of standing: 1) although sent to the tv stations, the letter threatened action against everyone involved with the ad and 2) one station stopped running the ad. The court adopted the first theory and did not reach the second.

    Is that right? The letter expressed views about the unlawfulness of running the ad. But can a threat referencing wrongdoing and intent to prosecute directed to specific people create an imminent threat of enforcement against everyone not named in that letter who may engage in related-but-different conduct? In other words, the letter expresses intent to come after one tv station but standing seems clear for another tv station that might run the ad. But the ad sponsor is differently situated.

    I also wonder if the court adopted that theory to avoid a Clapper/chain-of-inferences problem, in that the injury to the plaintiff depends on the action of the tv stations, not the action of the defendant government officials. The chain here is much shorter, so it should not be a problem. Or maybe the court was worried about Murthy and the possibility that the station would have declined the ad without

• Naturally, the court creates scope-of-injunction problems. The injunction enjoins the SG from "taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing Plaintiff’s speech, or undertaking enforcement action against Plaintiff for running political advertisements or engaging in other speech protected under the First Amendment."

    The problem goes to whether the remedy must match the theory of standing (or the theory of the constitutional violation). The court accepted the theory that the letter threatened FPF with prosecution, an injury remedied by an injunction prohibiting the state from pursuing enforcement actions against FPF over the ad. An injunction stopping the state from threatening or acting against the tv stations remedies a very different injury to FPF, not one the court considered or found.

• The ad features a woman with terminal brain cancer who sought a 20-week abortion that would have allowed her to receive life-extending (not live-saving) treatment that would give her more time with her husband and extant child; it claims she could not terminate that pregnancy under current law, while the state (in the letter Wilson wrote and sent before discovering his conscience) insists she could lawfully obtain an abortion in that circumstance. What is "true" or "false" in questions of legal interpretation and legal meaning and how can a legal argument be false--if I interpret the law differently from the SG, am I "lying?" Does the statement become true if, even if a doctor could not be convicted for performing that abortion, some crazy prosecutor might try or no doctor will take the risk of performing the procedure, forcing the woman to leave the state? To paraphrase Henry Monaghan, if such a technical legal question qualifies "as a 'fact,' it is nevertheless a very different kind of fact from the bigness of Cyrano's nose."

Limits of private enforcement in a mixed scheme

In our taxonomy of private enforcement, Rocky and I focused on when the scheme leaves open private-enforcement options. But we neglected to consider a distinct feature--when the public piece limits the private piece. That is, a statutory scheme limits the situations in which public enforcement gives way to private.

And thus ends the saga of Masterpiece Cakeshop and Autumn Scardina, the trans activist who ordered and was refused a cake to celebrate the anniversary of her transition. I wrote previously about the case, but in brief: The Civil Rights Commission found probable cause of a violation of state antidiscrimination law and instituted proceedings; Phillips filed a federal action to enjoin the Commission from proceeding; the federal court refused to abstain under Younger (citing the bad-faith and harassment exceptions); the Commission voluntarily dismissed. Scardina brought a civil action and won in the trial court and court of appeals, both courts rejecting Masterpiece's

A divided Colorado Supreme Court reversed on procedural grounds. The private right of action does not stand alone. A complainant must pursue and exhaust the administrative process. Subject to several limited off-ramps to the process involving the commission's failure to act, the complainant must follow that process to the end, including by appeal into the state judiciary. The commission's resolution of Scardina's complaint--unilateral dismissal following a finding of probable cause--does not satisfy any of those off-ramps. Scardina instead was required to appeal the commission dismissal to the Colorado Court of Appeals.

So consider this a fifth category of private-enforcement scheme--mixed, with a preference for (at least initial) public administrative adjudication. That somewhat limits the scope of private enforcement.

We avoid that problem in our new paper by eliminating public enforcement, including in administrative agencies.

Vagaries of public enforcement

As states (especially Red) increase the use of private enforcement of culture-war laws, states may get creative with vestigial public-enforcement authority and courts must wrestle with how much public authority allows for offensive pre-enforcement EpY litigation.

Case in point: Free Speech Coalition v. Anderson. Utah's porn age-verification law creates a private right of action against sites that fail to establish age-verification. FSC sued the AG as the default "enforcer" of state law and and the Commissioner of the Department of Public Safety as the overseer of a state program allowing for digital drivers' licenses, one of three statutory age-verification mechanisms (and, according to plaintiffs, the only one that satisfies the statute).

The court unanimously held that the AG's general enforcement authority is insufficient, that an EpY defendant must have a particular duty to enforce the challenged statute, at least where the statute describes a particular enforcement method. The panel divides over the Commissioner. The majority rejects the claim--DPS has not yet created the type of digital license that satisfies the statute and the Commissioner's obligation to create that license exists independent of the statute. The dissent argues that the challenged statute depends on DPS creating the necessary functionality (the only way to satisfy the statute) and the Commissioner's failure to perform that duty cannot allow him to avoid suit. The Commissioner "implements" the law because the law cannot function unless DPS creates the digital license; it does not matter that he draws the obligation to create the digital license from a different statute.

In our taxonomy of private enforcement, Rocky and I argue that offensive litigation remains when states combine public and private enforcement. This case adds a layer of complexity. By designating specific enforcement mechanisms and responsibilities, states can make it difficult for plaintiffs to find the "correct" state officer connected to the challenged statute, with no "default" official. By adopting private litigation as the primary enforcement mechanism, states leave officials in ancillary "implementing" roles. States thus may find a way to insulate mixed-enforcement schemes from EpY.

Fifth Circuit makes a Heck-of-a-mess

I wrote last December about Wilson v. Midland Cty., a § 1983 action by a woman convicted (and given a suspended sentence) two decades ago by a prosecutor who was moonlighting as a clerk for the judge who presided over her trial. The case wades into a circuit split over whether a person seeking damages arising from constitutional violations within a criminal prosecution must show favorable termination under Heck when she is no longer in custody (and thus able to get habeas relief in federal court).

At the time, I wondered whether the plaintiff would seek rehearing on en banc or go straight to SCOTUS; she chose the former. Not only did she lose, but the Fifth Circuit made a hash of Heck.

Judge Oldham wrote for a plurality (9/18) to say that Heck is not about the line between two statutes (§ 1983 and § 2254), as everyone has long understood. Instead, it is about the requirements of common law torts. Citing the Court's most recent decision--which defined favorable termination as an element of a malicious-prosecution claim and which the Court did not decide as a Heck case--the plurality holds that favorable termination is an element of all § 1983 actions challenging violations around a criminal conviction. The unavailability of federal habeas was of no moment, so long as state mechanisms remained open to her. Judge Haynes concurred in part for two, approving of the disposition of the case--dismiss without prejudice so plaintiff can pursue state favorable-termination mechanisms. Judge Willett--who wrote the panel majority while expressing outrage over the result--dissented in even higher dudgeon. Not only does he object to applying Heck to non-prisoners (the result, he argues, of following pure dicta), be he must take on Oldham's nonsense.

Haynes' concurrence actually illustrates the problem with the outcome (and the plurality's analysis). Insisting that he does not argue that Heck imposes a state exhaustion requirement, he argues that Heck includes as a favorable-termination mechanism "the ability to go to the state," includng a state appellate or post-conviction court. That is, he rejects the idea that federal habeas represents the only mechanism for obtaining favorable termination, since Heck itself identifies state mechanisms for obtaining favorable termination.

But that gets everything backwards. The issue is not the availability of state mechanisms to undo a conviction. The issue is what happens when those state mechanisms fail; the text, history, and purpose of § 1983 and § 2254 show that the states cannot have the last word on the validity of the conviction and the rights-holder must have a federal forum at some point. The question is which vehicle. A person-in-custody uses § 2254, which requires state exhaustion anyway. But habeas is not an option for a person not in custody. Under the Fifth Circuit approach, that rights-holder is stuck with the state result, with no option for federal reconsideration. That functions as an exhaustion requirement. And it is inconsistent with what § 1983 is supposed to do.

I cannot believe the Court will not take this case. Lord knows how badly they will botch it.

Procedure Matters, Episode LIX

Kind of a weird one but it illustrates how the rules operate and interact in confusing ways.

Plaintiff brings False Claims Act qui tam action; defendant answers but does not raise the constitutional invalidity of qui tam actions as an affirmative defense; defendant moves for judgment on the pleadings based on constitutional invalidity (qui tam actions violate Article II). The court denied the motion because defendant did not raise the affirmative defense in the answer, so it is not part of the pleadings for FRCP 12(c) purposes. Defendant had to amend its Answer to add the constitutional defense, which might be tricky since the court had set a scheduling order (which heightens requirements for amending).

This is a plausible outcome. But I think the court errs (or at least fails to perform proper analysis) in two respects. Both go to the court's failure to actually decide whether qui tam actions violate the Constitution.

First, the constitutional defense should be a built-in defense--the constitutional validity of the law sued upon should be built into the complaint's allegations of a violation of that law. Defendant could have responded to the complaint with a 12(b)(6) motion raising the constitutional defense, which would have forced the court to decide whether the Constitution permits qui tam actions. If so, a defendant should be able to raise a built-in defense on a 12(c); even if not pleaded in the answer, the affirmative defense is built into a complaint that mentions and includes allegations about the FCA. For comparison, a defendant can raise the statute of limitations on a 12(b)(6) if the complaint includes dates showing the claim is untimely; if the defendant answers without an SL defense and moves under 12(c), the court can still look at the complaint, see that the complaint is untimely, and grant the motion, even if the defendant did not plead SL.

Second, before deciding the defense must be in the answer, the court waves away the constitutional analysis. The court says this (and this is all it says):

Under the present state of the law, Defendants’ separation-of-powers challenge to the qui tam provisions of the False Claims Act is insufficient on its own to demonstrate that Relators’ complaint is implausible. Further, even if “[t]he FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone,”and even if it is time to revisit the matter, it is equally true that “lower federal courts should not ‘pass on questions of constitutionality . . . unless such adjudication is unavoidable’ . . . .”

That is a cop-out. If qui tam actions are constitutionally invalid, they do render the complaint implausible--no reasonable inference from the facts taken as true shows plaintiff can recover, given the constitutional defects in the FCA. But the court must decide the open constitutional question to make that plausibility determination. It cannot stop with pointing out that other (non-binding) precedent has gone the other way and thus does not outright preclude the claim or make the claim frivolous.

Do reasons for non-enforcement matter?

The Eighth Circuit declared invalid a Missouri law that a bunch of federal laws related to firearms "shall be invalid to this state, shall not
be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." No state or local officials possess enforcement authority. And the law creates a private right of action (because Republican lawmakers believe that is the magic bullet to stop everything they do not like) against any public official who enforces the law.

Missouri argued (correctly) that it can refuse to allow its officers to enforce federal law; thus, the reasons for refusing to enforce do not matter. Here, in full, is the Court's response:

That Missouri may lawfully withhold its assistance from federal law enforcement, however, does not mean that the State may do so by purporting to invalidate federal law. In this context, as in others, the Constitution “is concerned with means as well as ends.” Horne v. Dep’t of Agric., 576 U.S. 350, 362 (2015). Missouri has the power to withhold state assistance, “but the means it uses to achieve its ends must be ‘consist[ent] with the letter and spirit of the constitution.’” Id. (quoting McCulloch, 7 U.S. (4 Wheat.) at 421) (alteration in original). Missouri’s assertion that federal laws regulating firearms are “invalid to this State” is inconsistent with both. If the State prefers as a matter of policy to discontinue assistance with the enforcement of valid federal firearms laws, then it may do so by other means that are lawful, and assume political accountability for that decision.

I am a formalist and even I recognize this as utterly mindless formalism. This is not 1833 South Carolina preparing to wield the militia against federal enforcers. There is no meaningful difference between "federal law is illegal in this state and we will not enforce it" and "federal law is stupid and we will not enforce it" and "we don't wanna enforce it just 'cause and you can't make us--nyah." Missouri can reenact the identical law tomorrow and rely on #2 or #3 and land in the same place--no state or local enforcement, private right of action against any officer who attempts to enforce.

Maybe the law could include a preamble or finding saying "We, the legislature, believe these laws are invalid to this state, should not be recognized by this state, should be specifically rejected by this state, and shall not be enforced by this state, but the activist federal judges will not let us say that."

Why randomize assignments?

I guess I should have considered this when I answered Gerard's first question, but here goes: What would be the point of randomized assignments? Of all the things Congress can try to bring the Court to heel, why would it want to do this? Is the idea that analysis and precedential effect (if not outcome in this case) might change if Justice Barrett wrote a particular opinion rather than Justice Thomas? Assuming agreement on basic principles and given the collective nature of the writing process, would the final opinion be so different?

And might there be unintended consequences? Unable to get everything he wants, Justice Alito leaves the opinion in a 5-4 and writes separately, eliminating the majority and, to the extent Marks matters, giving more power to his individual opinion without him having to do the work of maintaining a majority. Do we lose something if there is no Justice who becomes the go-to person on some issues (e.g., Ginsburg on procedure or Gorsuch on Indian law).

If it does not do much as a stand-alone change, it might be a cute addition to Sherry's plan--random assignment of that single, unsigned, unenumerated opinion. This creates further distance between individual Justices and case outcomes.

It should be constitutional

In answer to Gerard's question: Suzanna Sherry proposed a system in which the Court issues one per curiam majority opinion, without names or counts. She defends constitutionality by arguing, in essence, that Congress cannot dictate or influence resolution of a case but can control how the Court communicates its decision. I think her argument would support the choice of who communicates the decision for the Court as well as how the Court presents that decision.

Collegiality for collegiality's sake

Steve Vladeck's latest Substack (paywalled) discusses Justice Kagan's remarks at the Ninth Circuit Conference. With respect to collegiality, Steve quotes Kagan and writes the following:

Third, and in a similar vein, in responses to questions about how the justices are getting along internally, Justice Kagan pivoted to a response about why the answer shouldn’t matter that much to the public—not because collegiality is unimportant, but because the issue isn’t whether the justices are friendly; it’s whether their relationships influence their colleagues. As she put it:

“I can’t imagine why the public should care if we go to the opera together, or we can talk about baseball together. What the public should care about is … if the collegiality brings about a certain kind of decision-making process. In other words, if it leads to people listening to each other in talking about the law and in talking about cases and making decisions. If it leads to people being able to step into each other’s shoes and see the world through another person’s eyes or see certain legal issues through a different perspective.

Again, I think there’s some nuance here. The point is not, as some accounts reported it, that the justices’ collegiality is unimportant; it’s that it’s important as means to an end—with a subtle insinuation that there isn’t enough of that kind of camaraderie on the Court today.

I made a similar point years ago when people complained that President Obama and Speaker John Boehner could not sit down and have a beer, comparing them unfavorably with the Scalia/Ginsburg safaris and opera trips. I pointed out that this friendship rarely convinced either person to switch a position or compromise--which is what everyone wanted from Obama and Boehner. We do not want collegiality on multi-member bodies for its own sake, but as a means to a better-functioning multi-member body. (With Kagan pushing the ideal of empathy that Obama proposed but never defended). Media coverage of politics and the Court (stuck in a Sorkin-esque vortex of wanting everyone to get along and agree with one another) cannot see past the former.

12(b)(6), summary judgment, and conflicting video

I think the Fourth Circuit reaches  the right place--further proceedings required. A trial court can consider a video on a 12(b)(6) if "(1) the video is 'integral' to the complaint and its authenticity is not challenged, but (2) only to the extent that the video 'clearly depicts a set of facts contrary to those alleged in the complaint,' or 'blatantly contradicts' the plaintiff’s allegations, rendering the plaintiff’s allegations implausible." The district court should have denied dismissal because the video did not blatantly contradict the allegations in the complaint.

But I think it gets there via two mistakes, sounding in the general problem of conflating 12(b)(6) and summary judgment, especially in civil rights actions: 1) Expanding what the court can look at on 12(b)(6) and 2) conflating 12(b)(6) and summary judgment when dealing with conflicting information.

1) A court on a 12(b)(6) is limited to the allegations within the four corners of the complaint plus documents attached as exhibits. FRCP 10(c), 12(d). Courts have extended that plus to include documents that the complaint mentions or relies on, which makes sense on a rule of completeness--if the complaint refers to something (e.g., a contract or a magazine article), a rule of completeness dictates that the court treat the entire thing as part of the complaint. Otherwise a plaintiff could selectively and inaccurately quote pieces of a broader thing to create a false impression. Courts have further extended this to videos.

The 4th Circuit does not explain what "integral" to the claim means--whether it includes complaints that identify the video as a source or otherwise expressly rely on the video or whether it includes any set of facts describing events for which publicly available video may be found. If video cases are not to subsume 12(b)(6), it should not extend as far as the latter. That is, if the complaint includes factual allegations X, Y, and Z and there happens to be video evidence of those facts that the complaint does not mention, discuss, or rely upon, the video should not be treated as part of the complaint.

The court does not explain which side the case falls. The complaint alleged a bunch of facts; defendant's 12(b)(6) introduced the video, emphasizing that it was "publicly available" and "integral to" and "apparently relied on" in the complaint. Publicly available should not matter (unless it is part of a public record and a subject of judicial notice). And I do not know how the complaint "apparently relie[s]" on the video--either it does or does not. Unfortunately, plaintiff did not object to the court considering the video and used the video to argue it meaning in opposing the motion, effectively waiving the 12(d) argument. The court therefore did not resolve the "not entirely clear" question of whether the video qualifies as integral to this complaint.

2) If the video is part of the complaint, I do not think the "blatantly contradicted" standard should apply. Blatant contradiction comes from Scott v. Harris, where the Court disregarded the plaintiff's deposition testimony of what happened during a high-speed chase (specifically whether he was a threat to persons and property) by watching video of the chase and concluding that the video was capable of one reasonable interpretation. The Court therefore need not accept plaintiff's version of events or draw reasonable inferences for the non-movant plaintiff ("I was driving fast but safely") when his evidence was "blatantly contradicted" by the video whose one true meaning ("he was a threat'") the Court can divine by watching.

Putting aside the correctness of Scott and the idea that the video shows one obvious thing rather than being subject to interpretation, the approach makes some sense on summary judgment. Opposing parties offering competing evidence, stories, and versions of events; the court decides whether the evidence each offers sufficiently conflicts as to show a factual dispute requiring jury resolution. "Blatant contradiction" gets us to the place of the defendant offering the video, the plaintiff offering no evidence (as is his burden of production), leaving no disputed facts requiring jury resolution. I do not agree with the standard, but it is consistent with the inquiry on summary judgment.

But 12(b)(6) is supposed to be different. The court hears one side--what the plaintiff offers; it hears no facts or evidence from the defendant. The court takes everything the plaintiff alleges as true and considers whether the plaintiff can win if everything he says is true. Where the complaint contains adverse allegations or facts, the court can consider those and rule against the plaintiff--we say plaintiff has pleaded herself out of court. Where the complaint includes contradictory allegations, the court need not resolve that conflict or decide which is true; it accepts everything true and decides if the plaintiff loses under either of those sets of facts. Consider Craig v. Rich Township High School. A fired school counsleor alleged that he published his book (the speech for which he was fired) outside of work , but the book (which he attached to the complaint) included content connecting to his counselor job. The court could consider that fact in the Pickering balance on a 12(b)(6) because the facts showing connectedness were in the complaint. The court did not disregard contrary facts; it took all facts as true, some of which showed why the plaintiff lost under controlling law. Or imagine a hypo I use in class--a Black non-attorney brings a race-discrimination claim against the law firm that denied him a job, with allegations that he was told he was not hired because he is not an attorney and because he is Black. The court would not unpack or reconcile the facts; it would take both allegations as true, with one fact (not hired because not an attorney) defeating the claim.

So how should this case have come out? Where (as it seems to have been in this case) there is ambiguity whether the complaint relies on the video, the court should treat it as not having relied and not treat the video as part of the complaint. The court therefore should have either refused to look at the video and denied the 12(b)(6) or converted  to summary judgment; the latter moves allows the court to consider whether the plaintiff's testimony is "blatantly contradicted" by the video as a competing piece of evidence. But if the video is clearly part of the complaint, then the court should review the video and decide if it plausibly shows a violation, without regard to other allegations in the complaint. If the video defeats the claim, we would say the plaintiff pleaded herself out of court by including adverse facts for the court to take as true. Blatant contradiction never comes up, because the plaintiff is on the hook for the effects of all the facts she includes in the complaint.

A civ pro puzzle

Something I was thinking about while listening to several papers on personal jurisdiction at SEALS last week. It shows how the analysis has shift under us:

Imagine the facts of World Wide Volkswagen in 2024: Defective car sold in New York by two New York companies (distributor World Wide and dealer Seaway) and two non-New York companies (Audi from Germany and VWA from New Jersey), accident occurs in OK.

Before 2011, we mostly agreed on the following:

    1) No jurisdiction over WW and Seaway in OK

    2) General "doing business" jurisdiction over Audi and VWA in OK (although this was the subject of the Twitchell/Brilmayer debate)

    3) General jurisdiction over all defendants in New York--Audi and VWA on "doing business" and WW and Seaway because they are incorporated there.

In 2024, I think we have the following:

    1) No jurisdiction over WW and Seaway in OK

    2) Specific jurisdiction over Audi and VWA in OK under Ford, because they serve the OK market for the same cars (although not the car in the accident). Not general jurisdiction because neither is at home and Daimler/Good Year reject doing business.

    3) General jurisdiction over WW and Seaway in NY because each is "at home" there.

    4) Specific jurisdiction over Audi and VWA, although the theory depends on where Audi and VWA designed, manufactured, and sold the car to World Wide for distribution:

        • If any of that happened in New York, then specific jurisdiction because the case "arose" in New York because something about the defective product occurred there.

        • If all of those things happened outside New York (i.e., Audi sold the car to WW in New Jersey), specific jurisdiction would require the "related to" analysis of Ford--they serve the NY market for the same cars as the one at issue in the case, even if their NY activities did not involve the car at issue.