Wednesday, January 20, 2021

Senior Judges and Biden appointments

Donald Trump's in disputable success as President was in filling judicial vacancies (leaving to one side the political disputes over how he had those vacancies, how he filled them, and with whom). He appointed more than 300 judges, including more than 1/4 of the judges on the courts of appeals. And there are not many vacancies for President Biden.

But under the Rule of 80, active judges can take senior status when they are 65 or older and their age + years of service is 80. As the Judicial Nominations Blog reports, more than 80 Carter, Clinton, and Obama appointees are eligible to take senior status, creating a vacancy for Biden to fill.  Judge Victoria Roberts of the E.D. Mich. submitted a letter today announcing her intention to take senior status in February. She may the first of many, especially in the two years that Biden will have a Senate majority.

On that note, check out Marin Levy, The Promise of Senior Judges (Nw. U. L. Rev.), which considers the role of senior judges, including mechanisms for incentivizing judges to take senior status.

Posted by Howard Wasserman on January 20, 2021 at 04:36 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Tuesday, January 12, 2021

Mootness and nominal damages

The Court on Tuesday heard argument in Uzuegbunam v. Preczewski, on whether a case becomes moot if the government repeals the challenged policy but a claim for nominal damages remain. A few thoughts.

• Chief Justice Roberts hammers everyone on justiciability and merits melding into one another. But he wants to find ways to draw magical lines, rather than recognizing that they collapse into one another because they are the same thing.

• Justice Kavanaugh recognizes that the real issue here is attorney's fees. A plaintiff cannot recover attorney's fees if the government moots the case by repealing the challenged policy; the real point of the nominal damages claim is to keep the case alive through a claim for retroactive relief on which the plaintiff can prevail.

• There was no discussion of qualified immunity, which also enters this picture. If the nominal damages claim keeps the case alive, it also is subject to an immunity defense. This helps the government avoid paying $ 1, which avoids attorney's fees.

• The case is a weird vehicle for this issue, because the challenged policy was never enforced against one of the plaintiffs prior to its repeal. The "injury" the plaintiff claims is for the past chilling effect of wanting to speak but not feeling able to for fear of enforcement. Chilling effect can be a basis for standing for prospective relief; it is strange to see it as a past injury.

• There was some confusion among a number of concepts--prospective v. retroactive relief, compensatory v. non-compensatory remedies, claims v. remedies. It seems to me the answer to this case is that a plaintiff can bring a claim for a past injury caused by the policy while the policy was in effect--a retroactive injury seeking a retroactive remedy. Having proved past injury, the question is one of remedy--actual damages (however small) or nominal damages in their stead. Counsel for the government seemed to acknowledge the last pairing, insisting that nominal damages is not a claim but a remedy once that claim has been proven. But that should cut against the government's position.

• The case highlights the problems with Buckhannon, in which the Court rejected the "catalyst theory" of attorney's fees, under which a plaintiff prevails if the lawsuit is the catalyst for the government repealing the challenged policy. A plaintiff does not prevail when the policy change is not reduced to a judgment. At the same time, Buckhannon left this case open--whether a claim for retroactive relief can keep the case, and thus fees, alive.

But counsel for Georgia made this point in his closing:

[T]he way that this case was resolved is a good thing. Litigation prompted college officials to review their policies, and just ten weeks later to revise them in a way that maximizes and respected First Amendment rights on campus, not just for Petitioners but for all students. And it even led to an enduring state-wide policy change for every public college in Georgia. That kind of early out-of-court resolution should be encouraged.

Except such a resolution requires that plaintiffs are able to obtain counsel to bring litigation. This is why Congress provides for fees in civil rights cases--to incentivize counsel to bring these cases. But there will be no such change if individuals are unable to bring litigation because they are unable to get counsel because counsel knows that the "good" solution for the government will be to repeal its policy, preempting fees, and thus will not agree to bring the case.

My best guess is that the Court reverses, at least where the plaintiff has suffered past harm from enforcement. But I am always wrong.

Posted by Howard Wasserman on January 12, 2021 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, January 11, 2021

Universal universality (Updated)

The Fourth Circuit affirmed a universal injunction (mistakenly styled nationwide) prohibiting enforcement of the federal policy requiring state and local affirmative consent to accept refugees. The injunction protected six non-party resettlement agencies, in addition to the three plaintiffs.

In affirming as to scope, the court relied on Trump v. IRAP (the pre-Hawaii order that stayed various parts of the travel-ban injunctions) for the proposition that "a nationwide injunction may be appropriate when the government relies on a 'categorical policy,' and when the facts would not require different relief for others similarly situated to the plaintiff." This policy "by its nature" affects all immigrants assigned to all agencies operating throughout the country and a particularized injunction would produce "inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect."

One problem with the "universality only in certain cases where appropriate" is that any standards for determining when universality is appropriate collapse to allowing it in every case. This captures that. All policies are categorical and all policies by their nature affect all persons subject to those policies. All policies apply the same to similarly situated non-parties--that is what makes them similarly situated and also what would allow them to form a 23(b)(2) class, which the plaintiffs chose not to do here. Moreover, "inequitable treatment" follows in all cases in which a party obtains a non-class injunction--those who obtained the injunction enjoy a legal protection that those who did not obtain the injunction do not enjoy. That is the point and effect of obtaining an injunction.

If that is the standard, every injunction must be universal.

Update: Sam Bray reaches the same conclusion.

Posted by Howard Wasserman on January 11, 2021 at 11:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Saturday, January 09, 2021

Trump, Twitter, mootness, and attorney's fees

Josh Blackman raises a question about the government's cert petition in Trump v. Knight Foundation, holding that the President violated the First Amendment by blocking people on Twitter: Does the ban moot the case and will the Court issue a Munsingwear order vacating and remanding with instructions to vacate the judgment. But Josh's question is, so to speak, moot. The case always was going to become moot at noon on January 20 when Trump left office and any federal action disappeared. It is conceivable the Court waited on the case for that reason--had Trump won reelection, the case would have remained alive for another four years; when he lost, it was a matter of waiting out the extra few months.

A secondary question is whether the plaintiffs will be able to get attorney's fees under the EAJA if and when the judgment is vacated. Courts and cases are all over the map on whether a plaintiff is a prevailing party if it obtains interim relief that is dissolved on mootness grounds on appeal. Courts look to a number of factors, including whether the interim relief changed the defendant's conduct and gave the plaintiff what it asked for while it lasted and the length of time the interim relief was in place. Under that, Knight should be a prevailing party. The district court issued its judgment in May 2018 and the Second Circuit affirmed in 2019, meaning the plaintiffs have gotten what they wanted--being unblocked and able to read the President's tweets--for more than two years. More importantly, the plaintiff's desire and constitutional entitlement to continue doing so was always time-limited, ending whenever Trump's term ended (January 20 2025, at the latest). That sounds like a meaningful change in the relationship between the parties for the precise period the plaintiffs wanted.

Also relevant is that the district court granted declaratory, but not injunctive, relief against Trump (the aide who run his Twitter account was enjoined). Courts are again mixed as to whether a declaratory judgment alone is sufficient to make a plaintiff a prevailing party, especially where other relief is denied. Here, it should be relevant that a DJ is the only remedy the plaintiff could get from Trump, since courts will not, and perhaps cannot, enjoin the President (as opposed to All the President's Men).

Posted by Howard Wasserman on January 9, 2021 at 06:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sanctions, disbarment, and sedition

There was discussion prior to Wednesday about sanctions or bar consequences for the attorneys who brought the nonsense election challenges. Even if Trump and his lackeys did not commit incitement on Wednesday, there was a steady stream of statements about election fraud, stolen elections, and official malfeasance, including in court documents and in press conferences and quasi-hearings related to those lawsuits. Given potential  evidence they were part of a coordinated effort that caused, even if unintended, Wednesday's events, might that affect how courts judge sanction requests, how willing courts are to raise sanctions sua sponte, and how state bars judge disciplinary actions?

Posted by Howard Wasserman on January 9, 2021 at 11:11 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Wednesday, January 06, 2021

More movie stars and diversity jurisdiction

Elizabeth Taylor has company in the Civ Pro canon. The S.D.N.Y. denied a motion to remand in Rapp v. Fowler, an action for sexual assault against Kevin Spacey. (H/T: Volokh Conspiracy). The victims filed the action in New York state court. Spacey removed, alleging he is a Maryland citizen. The plaintiffs moved to remand, arguing that Spacey is domiciled in the U.K., making him stateless and not subject to suit on diversity. The court denied the motion, for now, because the only evidence of Spacey's intent was a declaration from Spacey that he intends to return to Maryland; the contrary evidence was a declaration from the plaintiffs' attorney, who lacks personal knowledge. The court allowed the parties to take jurisdictional discovery and for the plaintiffs to perhaps renew the motion.

Posted by Howard Wasserman on January 6, 2021 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (7)

Monday, January 04, 2021

Court smacks down dumbest election lawsuit and its lawyers

The dumbest election lawsuit was the one in the District of D.C. against Pence, the Electoral College, Congress, and a bunch of state officials, alleging that Article II requires that a state legislature certify the results post-election so any electors appointed without that certification (i.e., all 538) were invalid and could not cast lawful votes. District Judge Boasberg initially gave the plaintiffs busywork of providing proof of service on all defendants, including the Electoral College (which, of course, is not a thing that can be sued). When no such service occurred after twelve days, the court declined to wait any longer and denied the motion for preliminary injunction.

And Boasberg was not messing around. The suit would have been "risible were its target not so grave: the undermining of a democratic electionfor President of the United States." Plaintiffs’ "theory that all of these laws are unconstitutional and that the Court should instead require state legislatures themselves to certify every Presidential election lies somewhere between a willful misreading of the Constitution and fantasy." And this is the closer:

Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendanteven after reminder by the Court in its Minute Orderrenders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engagei n such gamesmanship or symbolic political gestures.As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

Many have noted the absence of sanctions in these cases, despite all being patently sanctionable. One reason may be the details of FRCP 11 and the incentives of parties and courts. Rule 11(c) imposes a safe harbor--before seeking sanctions, a party must notify the opposing party of its intent to seek sanctions (by serving, without filing, a copy of the proposed motion for sanctions) and give the party 21 days to cure the sanctionable conduct, as by withdrawing or amending the challenged paper. But the defendants in these cases want these cases to go away, not to drag the cases out by giving the plaintiffs time to cure. And most courts have held that the safe harbor means that sanctions cannot be sought after dismissal, so post-dismissal sanctions are not possible. Meanwhile, judges have the same interest as defendants in making these cases go away and no desire to keep them around with additional rounds of satellite litigation.

This was was unique in several respects, so it makes sense that it might trigger sanctions activity. Because plaintiffs never bothered serving anyone, the case never reached an adversarial posture; the judge was on his own own. And the theory and construction of the case was uniquely loony. That combination raised the suspicion, more than the other Kraken cases, that this was a political show and nothing more.

One more thing, because it is something I expect to see in the coming months. The plaintiffs alleged that they had been "disenfranchised," which Boasberg said was not true since they had voted and their votes counted. But "disenfranchisement" means something different in the minds of these groups of voters and advocates. The "franchise" means not that I was able to vote or that my vote was counted, but that I was able to elect the candidate of my choosing; I am disenfranchised if my candidate loses. This framing is not new. Many of the early Tea Party rallies in 2009 and 2010 were covered as complaints of disenfranchisement--the protesters were disenfranchised because the person they did not vote for had one and he was pursuing policies they did not favor. That is certainly grounds for protest; it is not disenfranchisement and should not be accepted as such.

Posted by Howard Wasserman on January 4, 2021 at 03:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Saturday, January 02, 2021

Where are they now: Tolan v. Cotton

The Washington Post on Friday ran a story on Robbie Tolan, a baseball player who was the victim of a 2008 police shooting in Texas that ended his potential career. His lawsuit was the subject of Tolan v. Cotton (2014), the rare case in which the Court reversed the grant of summary judgment on qualified immunity, when the lower court defined the context of the right despite factual disputes. I wrote about the case. Following remand, Tolan settled for $ 110,000; the newspaper story describes how he has gotten on with his life twelve years later. (H/T: Jonah Gelbach).

Posted by Howard Wasserman on January 2, 2021 at 07:10 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 24, 2020

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Posted by Howard Wasserman on December 24, 2020 at 01:04 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, December 18, 2020

Godwin's Law of Standing

An intentionally provocative framing of Friday's standing decision: A mayor (to keep the numbers small) issues a memorandum ordering department heads to identify, "to the extent practicable or feasible," all Jewish municipal employees so they may be excluded from receiving annual raises. Jewish employees must be identified by December 31, the date on which annual raises are triggered.

Could it really be that a Jewish employee does not have standing to challenge that memorandum prior to being identified and denied a raise? That each employee must wait until he is denied the raise, then sue?

And if not, how is this different than the census case? Is it numbers--there are more undocumented immigrants in the United States than Jews working in my hypothetical municipality, so it is more likely that all Jews can be identified? Is it the certainty of harm--no raise as opposed to maybe a loss of money or seats?

I should add I know there is no logic or consistency in standing analysis. But it is worth thinking about.

Posted by Howard Wasserman on December 18, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Thursday, December 17, 2020

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, December 16, 2020

Universality and the facial/as-applied distinction

An aspect of universality about which I have not written is its intertwinement with the distinction between facial and as-applied challenges to the laws.

Normatively, it should not matter. Dick Fallon has it right in arguing that facial/as-applied relates to the scope of the precedent rather than the scope of the judgment. A facial challenge produces precedent pre-determining the validity of the law as to non-parties and future cases, which future courts will apply as firmer precedent in resolving the second lawsuit. But any injunction in that first lawsuit remains limited to prohibiting enforcement only against the plaintiff. Descriptively, however, suggestions that a challenge to a law is facial bleeds into questions of who will be protected by the resulting judgment.

Case in point is Tuesday's First Circuit decision on a First Amendment challenge to Massachusett's ban on surreptitious recording, even of government officials performing public functions in public. In consolidated cases, the panel* the panel found one challenge ripe (Martin) and affirmed a declaratory judgment prohibiting enforcement as to recording of police in public spaces, while finding a second challenge (Project Veritas) not ripe as applied to recordings of all public employees and other individuals lacking expectations of privacy.

[*] The panel was David Barron, an Obama and potential Biden short-lister, who wrote the opinion; Justice Souter riding circuit; and Bruce Selya of the large vocabulary. Interesting note on seniority on the panel, which goes: Active Circuit, Retired SCOTUS, Senior Circuit

There was preliminary wrangling over whether Martin was facial or as-applied. Here is how Judge Barron resolved the back-and-forth:

This battle over labels is not fruitful. The Martin Plaintiffs' challenge takes aim at only a portion of Section 99, but it seeks to block it in circumstances beyond the Martin Plaintiffs' own recording. The challenge thus has both "as-applied" and "facial" characteristics. There is no obvious sense in which one predominates.

Fortunately, the Supreme Court has confronted similar half-fish, half-fowl First Amendment challenges and instructed that where the challengers "do[] not seek to strike [a statute] in all its applications" but the relief sought "reach[es] beyond the particular circumstances of [the] plaintiffs," they must "satisfy [the] standards for a facial challenge to the extent of that reach." John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (emphasis added); see also Showtime Ent., LLC v. Town of Mendon, 769 F.3d 61, 70 (1st Cir. 2014). We thus proceed on the understanding that the Martin Plaintiffs seek the invalidation -- facially -- of Section 99 but only insofar as it applies to bar the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces.

We emphasize, though, that the Martin Plaintiffs contend that Section 99 is unconstitutional as applied to their own recording. In that respect, they are not bringing a First Amendment overbreadth challenge. Nor are they seeking, however, to invalidate the measure only insofar as it applies to their own conduct. They are bringing a challenge to a portion of Section 99 that they contend cannot be applied to bar such recording, whether undertaken by them or by anyone else, because it is not tailored in the way that they contend the First Amendment requires.

With the Martin Plaintiffs' challenge now better in view, we are well positioned to explain why we conclude that it is ripe.

The court addressed this it affected ripeness. But note how scope-of-remedy bleeds into the analysis. Twice the court describes the plaintiffs as attempting to stop recording "beyond [their] own recording" and "whether undertaken by them or by anyone else." But  a party cannot, as a matter of the judgment and absent class certification, stop enforcement of the law as to anyone else or anyone else's conduct. Speaking in these terms creates that remedial confusion, even where, as here, only a declaratory judgment and not an injunction is sought.

Other than this remedial quibble, this is another great addition to the burgeoning body of law establishing a First Amendment right to record.

Posted by Howard Wasserman on December 16, 2020 at 10:07 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, December 13, 2020

Not a technicality, still a distraction (Updated)

Standing is the word of the weekend, as the lame-duck President took to Fox to decry the reliance on "little technicalities, like a thing called standing," before expressing shock and awe that "the President of the United States does not have standing."

I prohibit my students from using the word "technicality" in class or in their work. Another word for technicality, I tell them, is "the law." It is not a technicality when evidence is excluded because police executed an unlawful search, because there are laws prohibiting police from doing that and those laws are no less important than the law prohibiting some action as a crime. And it is not a technicality when a court dismisses (or refuses to hear) case because it lacks the authority to hear it (as standing is understood), because the laws limiting the court's adjudicative authority is as important as the Electors Clause.

Update: Trump later tried his hand at textualism, insisting that SCOTUS' original jurisdiction is enumerated in the Constitution. But so is standing (descriptively derived as it is from the "case or controversy" language), in the prior clause of the same section of the same article.

Trump's complaint also ignores that one court found standing before rejecting all the merits arguments. The court's standing analysis is debatable. I agree that Trump was injured and that an injunction prohibiting certification would remedy that injury (subject to whatever happens next under state law). But any standing here would have been Third Party standing--Trump asserting the rights of the Wisconsin legislature to set election rules. The court either needed to find the other elements of third-party standing (close connection between Trump and the real right-holder and some barrier to the right-holder asserting its rights) or conclude that, as in Bond v. U.S., a party with standing can assert any alleged constitutional defect in a law.

All that said, I continue to believe that standing is jurisdictionalized merits. What courts have made a jurisdictional threshold is a merits determination: "Your constitutional/statutory rights have not been violated in this case because the law does not recognize those rights, so you lose on the merits." That is what standing measures--"perhaps the Constitution or law was violated in some way, but it did not affect you so you cannot be the one to pursue the claim and obtain a judicial remedy." Would we be better off if courts spoke about it in those terms, rather than as a threshold that can be waved away by non-lawyers as a technicality?

Posted by Howard Wasserman on December 13, 2020 at 01:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Friday, December 11, 2020

Requiem for principles

Multiple items, unconnected except by the thread of the ongoing coup attempt:

• Carter Philips, Republican former Assistant to the SG and SCOTUS advocate and leader of an early amicus opposing the Texas lawsuit, tells the National Law Journal (subscription required) that it would be "counterproductive" to seek attorney sanctions: "The problem is you just want this to end and to move on. It doesn’t help it to end if you start filing [frivolous litigation] motions and trying to sanction the other side. . . . It turns up the volume and gives more reason for rancor." Phillips is correct that sanction activity--or post-litigation efforts before state bars--keep this going. But then how do you stop this from happening again and again? The purpose of Rule 11 is to deter repetition of this conduct or comparable conduct by others similarly situated. Without the threat of sanctions, because those sanctions are counter-productive, nothing deters Wood, Powell, Paxton, et al. from doing this again. Put another way, sanctions exist because most lawyers are internally motivated to do the right thing and sanctions can deal with the outlier. What happens when those not internally motivated are not the outliers?

Jeb Bush says: "This is crazy. it will be killed on arrival. Why are smart people advancing this notion? Let it go. The election is over." Does he really not know the answer to that question? Smart people are advancing this notion because they can get not-smart (or not-informed or not-engaged) people to believe their narrative of a stolen election. That narrative might be dead on arrival before SCOTUS. But that narrative will allow them to maintain public support when they undertake a scorched-earth campaign against voting rights (which has already begun in Georgia in advance of the Senate run-offs) and against the Biden Administration. Ted Cruz said the Senate will not confirm Biden nominees "[a]s long as there's litigation ongoing, and the election result is disputed." So unethical lawyers bring bullshit cases, without fear of sanction or consequence, and unethical legislators use those cases as pretext to prevent Biden from governing, without fear of sanction or consequence.

• Speaking of: The President's new argument is that the Biden Administration will be a "scandal-plagued mess for years to come." Short term, he uses this as a basis for SCOTUS action (Principle: If SCOTUS knows the incoming administration will be bad, it can overturn the election to "Save America"?). Long-term, this is a repeat of Trump's successful 2016 move. It was obvious four years ago that Trump was a corrupt liar, but he managed to convince the press and a sufficient number of people that Hillary was more of a corrupt liar.

Now a President who was impeached, presided over the most corrupt and unethical modern administration, surrounded himself with criminals, engaged in blatant nepotism, and profited from public office is suggesting that the new administration is scandal-plagued before it begins. Which will work to make the press report on Biden's scandals--no matter how unrelated to the President or the administration--as if it was on a similar scale and degree to what we just witnessed (and continue to witness).

• And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

Posted by Howard Wasserman on December 11, 2020 at 10:25 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, December 10, 2020

New Fed Courts cases from SCOTUS (Updated)

As the Court wrestles with absurd original-jurisdiction cases, some procedure decisions from SCOTUS today, with some interesting twists and background points.

Carney v. Adams involved a challenge to Delaware law controlling party affiliation for judges; a unanimous Court, per Justice Breyer, held the plaintiff lacked standing because he failed to show he was "able and ready" to do something to be injured by the challenged law. Bare testimony that he "would apply" for a judgeship but for the party limitations was insufficient to establish a particularized harm, especially when balanced against the sequence of events (he never applied for any judgeship, retired as an attorney, read a law review article about the invalidity of these party limits, unretired, changed his party affiliation from Democrat to Independent, then filed the lawsuit about a week later). Basically, he got Lujaned--he did not have the judicial-application equivalent of a plane ticket. Justice Sotomayor concurred to comment on some issues that might arise on the merits of a future challenge to laws such as these.

Tanzin v. Tanvir, unanimously per Justice Thomas, held that federal officers could be sued for damages under RFRA; the action was brought against FBI agents who allegedly placed three Muslim men on the "No Fly List" when they refused to act as informants. A lot of discussion. RFRA provides an express cause of action against governments, which includes officials and other persons acting under color of law, terms which include personal-capacity claims against government employees. The Court uses § 1983 to establish background understanding for concepts such as under color and damages as a remedy for constitutional violations.

Qualified immunity lurked in the background in Tanvin in two interesting respects. First, the Court drops in a footnote that everyone agrees that the officers can assert qualified immunity, which pre-ordains what will happen in this action on remand (it will not be clearly established that placing someone on the List in retaliation for not spying on their neighbors violates religious freedom). I guess it makes sense as a policy matter that qualified immunity applies. But why does it work as a statutory matter. The logic of qualified immunity and § 1983 is that a qualified-immunity-type defense existed at common law in 1871 and was incorporated as background in § 1983 in the absence of a plain statement rejecting the defense. (The dissimilarity between modern QI and what existed at common law is the basis for Will Baude's criticisms). The logic of qualified immunity and Bivens is that Bivens is the federal counterpart to § 1983. But what is the source of qualified immunity to assume it was incorporated (again by silence) into RFRA? I guess the argument would be that RFRA displaced § 1983 and Bivens and was modeled after both, so any defense built into these was built and incorporated into the new statute. (Update: Doug Laycock confirms this, along with the belief that QI was a necessary concession to get a damages remedy in the statute. Thomas describes the scope of § 1983 at the time of RFRA as permitting "monetary recovery against officials who violated 'clearly established' federal law.").

Second, Thomas is the one Justice who expressed an interest in at least reconsidering QI. It thus is interesting that he incorporates into RFRA the broad understanding of under color to include suits against any official acting as an official in his personal capacity. One argument for broad QI (as Will discusses in his article) is as a counterweight to a broad conception of under color--Screws/Monroe were wrong, so QI corrects that imbalance without overruling those cases. But I wonder what Thomas' broad adoption of under color means for his views on QI.

United States v. Briggs unanimously held that certain rape prosecutions under the UCMJ were timely, an unfortunate loss for Steve. Justice Gorsuch concurred to express his continuing view that SCOTUS lacks jurisdiction to review decisions from the Court of Appeals for the Armed Forces (an Article I Court).

Posted by Howard Wasserman on December 10, 2020 at 11:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, December 09, 2020

Hungary and Germany arguments

Here is my SCOTUSBlog recap of Monday's arguments in Hungary, which focused on comity abstention; the Germany argument focused on FSIA jurisdiction.

My (usually wrong) quick take is that the judges were sympathetic to the plaintiffs' arguments that abstention is categorically unavailable where FSIA accords jurisdiction. But several justices wondered whether that issue is mooted if it holds that the expropriation exception does not apply in Germany. I need to re-listen to the Germany argument; initial reports suggest at least some justices were skeptical of allowing FSIA's expropriation exception to reach these sorts of foreign genocide claims.

The lawyer for the plaintiffs in Germany mentioned abstention in his opening and closing, including with an awful baseball metaphor.

Posted by Howard Wasserman on December 9, 2020 at 10:13 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, December 08, 2020

Pardons and Mootness

Judge Sullivan has dismissed the prosecution of Michael Flynn in light of the President's pardon.

Interestingly, Sullivan dismisses the cases as moot and I do not understand why. The opinion discusses the understanding that acceptance of a pardon implies a confession of guilt, while exempting the individual from the punishment the law inflicts for a crime committed. Because the pardon does not render Flynn innocent of the crime charged, the appropriate course is to dismiss as moot.

I do not see why that follows. Dismissal on the ground of actual innocence is not appropriate. But saying the pardon "exempt[s]" the individual from the usual punishment for a crime suggests a dismissal of the prosecution because the pardon has placed Flynn beyond the reach of the law. That sounds in the merits--not actual innocence, but the scope and application of a law to an individual and an individual's conduct, which Morrison says is the merits. It sounds in an immunity, which is usually (and properly) seen as merits. It does not sound in an outside change of circumstances depriving the court of its power to accord meaningful relief or resolution to a dispute. (contra a defendant dying while the case is pending).

Consider it from the other direction. Imagine Trump grants himself a pardon for all conduct violating federal law prior to January 20, 2021. The U.S. prosecutes, Trump moves to dismiss the indictment based on the pardon, and the court decides that a self-pardon is valid. It seems to me the court would dismiss that indictment, finding the prosecution cannot proceed because Trump is, by virtue of the pardon, exempt from that law and its ordinary consequences. I do not think that court would dismiss as moot. So it should not be different because the pardon came before the prosecution was initiated as opposed to after.

Posted by Howard Wasserman on December 8, 2020 at 02:59 PM in Howard Wasserman, Judicial Process | Permalink | Comments (5)

Wednesday, December 02, 2020

Botching jurisdiction and merits, Ex. No. 613

Here is an awful jurisdiction/merits decision from the Fifth Circuit, involving the treatment of state action/under color in a § 1983 action. (H/T: Jack Preis).

A public-school educational aide sues a contract sheriff's deputy assigned to the school, claiming excessive force from the deputy punching him. The district court denies qualified immunity, while noting in passing some doubt about state action but that the defendant conceded the issue. The deputy appeals the Q/I denial under the collateral order doctrine. The Fifth Circuit remands, on the ground that by failing to determine action under color, the district court failed to establish its subject matter jurisdiction before ruling on the merits.

This is many shades of wrong. State action/action under color is an element of a § 1983 action and has nothing to do with the court's subject matter jurisdiction. This is true as a logical matter--merits ask who can sue whom and for what conduct, which is what state action determines in a constitutional case (whether this defendant can be sued for this conduct because it was under color). But it is especially true after Arbaugh and Morrison, which labels as merits issues those affecting the "reach" of a law, meaning what the law "prohibits"--what conduct (under color or not under color) can form the basis for liability in a § 1983 constitutional claim. It has nothing to do with subject-matter jurisdiction, which is established because federal law "creates" the rights plaintiff is asserting (Fourth Amendment) and his right of action (§ 1983).

The court may have found itself bound by a 1980 circuit precedent saying state action was required to "invoke the district court's jurisdiction." But that case (both the majority and dissent) uses the term jurisdiction in the thoughtless way the Court (particularly Justice Ginsburg) has tried to rein in the past twenty years. And it is inconsistent with how Morrison and Arbaugh framed the definition of merits issues. A Third Circuit panel was willing to overrule circuit precedent that could not stand in light of those recent cases. Perhaps this panel was unwilling to do the same. But then perhaps tee this for en banc review.

One other note: This decision is a stew of bad Fed Courts doctrine. The only reason the court was in position to consider the issue at this point is the immediate appealability of qualified-immunity denials, which some have argued contribute to the over-protection of police. Immediate review is designed to speed litigation. Instead, the court avoided immunity to create a new round of district-court (and probably appellate) litigation of an issue that should not have been before the court of appeals.

Posted by Howard Wasserman on December 2, 2020 at 04:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Federal Rules of Trumpist Procedure

I started to add this to my earlier post about Trumpist Procedure (great article title), but decided it needs to stand alone.

Powell's Wisconsin lawsuit, which includes a plaintiff who never agreed to the lawsuit, included a "Motion for Declaratory, Emergency, and Permanent Injunctive Relief." It had to be filed twice because the lawyers filed a draft. They filed both without saying whether they had provided notice to the defendants or otherwise complied with FRCP 65(b) and local rules or whether they wanted a hearing. The court issued an order refusing to do anything, which is the best kind of order. Brad Heath of Reuters put it well:

Just an amazing pattern of lawyers showing up with what they say are the most important cases ever filed and botching the basics. Even the President's lawyers screwed up the everyday rules for suing people. These are the mistakes you see when prisoners represent themselves.

Courts are going to have to figure this out. But I am not sure demanding that the Trumpist lawyers adhere to the rules, refusing to act if they do not is the solution, and issuing (rightfully) annoyed orders is the answer. First, doing so ignores that their point is to make official-sounding noise in any forum; a court with "rules" is no different than a Courtyard-by-Marriott without rules. Second, orders such as this one make the court, especially an Obama appointee, part of the expanding conspiracy.

Posted by Howard Wasserman on December 2, 2020 at 01:13 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Judges, procedure, and Trumpist litigators (Updated Again and Again and Moved to Top)

We have seen some strangeness the past two days over one of Sydney Powell's Kraken lawsuits in Georgia. That lawsuit seeks, among other things, an order seizing and impounding voting machines in the state and allowing plaintiffs to perform a forensic inspection. On Sunday afternoon, the court issued a scheduling order that included a TRO prohibiting the state from scrubbing data from the machines. Later, the court issued a second order, rescinding the TRO, apparently because the state does not control the machines; counties do and the counties were not sued. On Sunday evening, the court issued a third order following a Zoom conference, reinstating the TRO prohibiting defendants from scrubbing or allowing scrubbing of the machines, limited to three counties, apparently on the understanding that plaintiffs will amend the complaint to add them as defendants. This morning came a fourth order, certifying the third order for immediate review under § 1292(b).

Why the insanity? I agree with several online lawyer-commenters. The judge issued a routine, non-adversary scheduling order that sought to preserve the status quo. And Powell, Lin Wood, etc. reacted by taking to Twitter to crow about a giant initial step towards exposing the massive international voter-fraud conspiracy, a substantive victory. Then the defendants pointed out the problems with the litigation and thus with even that routine order--the plaintiffs sued the wrong people and the machines probably cannot be subject to a plaintiff-run forensic audit, at least without more allegations and proof of wrongdoing. And the court sought a middle ground by allowing someone (not clear who) to appeal an otherwise-unappealable order. And questions remain about what the controlling question of law could--whether it was proper to issue a TRO before the amended complaint was filed? whether a forensic audit is available? It might be that the 11th Circuit could reject any appeal (the court of appeals must agree with the district court's certification that appeal is appropriate).

The lesson is that courts must be as cautious as everyone else in these waters. Routine litigation is not routine litigation with these lawyers or with their public followers, because they are not here for judicial resolution. The most innocuous order or statement by the court will be seized upon and trumpeted either further evidence of the vast international conspiracy of which the judge is a part or as a heroic step by a heroic judge to stopping the greatest evil in human history. (Recall Jenna Ellis's insistence that Giuliani had won the argument in the MDPa case, as evidenced by the judge recommending places for the lawyers to get a drink). But unless courts begin to use the tools at their disposal to stop these abuses, they must think twice about even the smallest procedural step or statement.

Updated on Tuesday: Politico has the full story based on the transcript of the Sunday conference, with commentary. The first two orders were proposed drafts circulated among the court and parties that were publicly disclosed and promoted by plaintiff counsel, thus far without consequence. The judge seems less unreceptive to these allegations than others; while stating that the allegations are backed by "precious little proof," he appears to take them as sufficiently plausible to warrant ordering limited preservation. The § 1292(b) order was entered in response to the state's desire to appeal, although still no word on the controlling question of law. No appeal has been filed.

My basis point in this post stands: Trumpist litigators are going to abuse the system. And judges have to be ready for it.

Updated on Wednesday: Instead, the plaintiffs appealed the TRO granting them narrow relief (no clearing machines in three counties). And they did not rely on the § 1292(b) certification, which appears to have been at the state's request. Instead, plaintiffs argue that this is an appeal as of right of an injunction under § 1292(a), based on Eleventh Circuit precedent from the Terri Schiavo litigation treating a TRO as an appealable preliminary injunction where the grant or denial "might have a serious, perhaps irreparable, consequence, and can be effectually challenged only by immediate appeal." In Schiavo, the consequence was that Schiavo would die; I doubt the consequences here are so grave.

Meanwhile, the notice of appeal argued that the appeal divests the district court of jurisdiction. This caused the district court to stay its scheduling order, including the briefing schedule (state briefs were due today) and a Friday hearing, both of which are off. This was unnecessary and probably unwise, because the district court must begin anew when the case returns (probably quickly) from the court of appeals. The district court was was not pleased, stating in the order that any delay in briefing and holding a hearing upon remand would be attributable to the plaintiffs and not the court.

Mike Dunford has more on how bad the lawyering has been in this case. Again, my basic point: This is about using the system to put on a show for a segment of the public. 

Posted by Howard Wasserman on December 2, 2020 at 08:32 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (5)

Saturday, November 28, 2020

More state universality (Updated)

A judge in the Eastern District of Kentucky enjoined a Kentucky executive order closing schools, finding it violated the First Amendment rights of a K-12 religious school. (H/T: Eugene Volokh). It is unsurprising in its analysis--the order was not generally applicable because it applied to K-12 schools but not preschools or colleges and universities. Whatever--I have given up reading these decisions as anything other than a sub silentio reading of the First Amendment to opt-outs for religious institutions and behaviors, no matter the societal costs. Update: The Sixth Circuit reversed.

More interesting to me is that the court made the injunction universal/non-particularized, prohibiting enforcement of the EO as to all religious schools, not only the plaintiff. The court did not use the words universal or non-particularized and did not acknowledge the ongoing scope-of-injunction controversy, while providing further evidence that this issue is not limited to challenges to federal law. I presume the key here is that the lawsuit was brought not only by the school, but also by the Attorney General on behalf of the Commonwealth. "Complete relief" for the AG must protect all members of the public.

In the Before Times of 2018, I spoke on universal injunctions before the meeting of the National Association of Attorneys General. I suggested they might be of two minds on the issue. On one hand, universality works against them as the defendants to be enjoined from enforcing many state laws. On the other hand, they want universality when suing the federal government to stpp. This is a third hand--the AG suing the Governor to stop enforcement of a provision of state law.

Posted by Howard Wasserman on November 28, 2020 at 12:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Evidentiary problems (Updated Again)

Election-law attorney Marc Elias has kept a running tally of the Trump Campaign's litigation record, which stands at 1-38 and has a chance of getting to 50 losses. As his litigation efforts flail, however, his political efforts have succeeded--not in keeping him in the White House (which may not even be the point), but in destroying public confidence in electoral and political processes, undermining the Biden presidency before it begins, and in creating space for an army of state-level mini-Trumps to make noise (even if unsuccessful) about overriding the results of the election.

The difference is evidence.

Trump has lost in court because courts have strict rules about what constitutes valid allegations and evidence (under oath, reliable, credible, based on actual understanding of things such as how elections work, and subject to testing) and they are bound by the allegations and evidence in making decisions. As Judge Bibas wrote, "calling an election unfair does not make it so. Charges require specific allegations and then proof." On the other hand, Trump has won in hotel ballrooms and porn-shop-adjacent parking lots because evidence is whatever nonsense, however fantastical, can be spouted at the highest volume with the straightest face. And decisionmakers (the voters who believe the election was stolen) can base their beliefs on whatever they want.

Whither legislative bodies? They have rules about what constitutes valid evidence--witnesses are under oath and cannot lie. But no external rules limit what legislators can hear or use in reaching their decisions. Which leaves room for people like Pennsylvania Sen. Doug Mastriano, who is leading a legislative move to appoint the state's electors. And he can base his efforts on "findings" of "substantial irregularities and improprieties associated with mail-in balloting, pre-canvassing, and canvassing" based on "facts and evidence presented and our own Board of Elections data" that the presidential election (although, miraculously, no other elections within Commonwealth), was "irredeemably corrupted."

But where is the evidence of this irredeemable corruption? There is none, at least nothing that any court has taken seriously or could rely upon. So it must be that legislatures, or at least some legislators, believe they can and should base decisions not on what suffices in court, but on what suffices in ballrooms and parking lots. In a legislature, unlike in court, it is enough to call an election unfair and act on that call. And that is the problem.

This is not new. Legislators often make bad policy off bad evidence and bad findings. Policy can be undone. The votes of almost 7 million people cannot. And neither can a widespread belief that the system is corrupt whenever your preferred candidate loses. That Mastriano's effort will fail is beside the point. That he is making it and that it will be taken seriously suggests we have crossed some lines.

Updated: Phillip Bump at the Washington Post calls for the Republicans to release the evidence or shut up, then defines what is and is not evidence. But there is no agreement on what constitutes valid evidence, at least outside of court. So Trumpists will reject the premise of Bump's argument.

Second Update: Will Cain on Fox says it aloud: "There may not be enough evidence for a court system, but there should be enough evidence for state legislators to change their electors." Because Republican legislators do not need any evidence beyond "because it's true."

Posted by Howard Wasserman on November 28, 2020 at 12:09 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, November 27, 2020

Reshuffling the Court? (Updated)

Josh Blackman offers an interesting proposal/prediction/speculation: Chief Justice Roberts should retire, allowing soon-to-be-President Biden to elevate Justice Kagan to chief and to fill a seat on the Court. Josh originated this proposal in September as the new way to save nine, when polls suggested a Biden presidency and Democratic Senate that would expand the Court. While Court-expansion is off the table, Josh renews the speculation in light of the Court's new shape and the Chief's role, as revealed in this week's decision enjoining New York gathering regulations, in which he dissented for himself. With the appointment of Justice Barrett, Roberts no longer is the median Justice and may be in the minority more often. At the same time, Justices Breyer, Sotomayor, and Kagan have less incentive to join his opinions, because they cannot produce a majority. The result is a Chief Justice consistently voting alone.

In December 2016, I wrote that Roberts won and Kagan lost the Merrick Garland debacle. Roberts avoided being a Chief Justice consistently in the minority thereby retaining the power to assign and cultivate majorities, while Kagan lost the opportunity to be the Brennan-esque intellectual heart of a liberal majority. Josh argues that this moment passed with Trump's appointment of three solid conserbatives. This proposal would somewhat reverse what I described--Roberts leaves before his power wanes, while Kagan gets a promotion. Of course, Kagan would find herself where Roberts would have been had Garland been confirmed--a Chief Justice regularly in the minority (unless she proves even better than advertised at bringing the Court together in the middle). And the real winner of the exchange would be Justice Thomas, who regularly becomes senior Associate Justice in the majority with the power to assign opinions.

In fairness, I believe it is safe to say that Josh is no fan of the Chief and would shed no tears if he left the Court while leaving a secure, and young, conservative majority.

Update: One point I forgot: If this were to happen, it would give Biden three appointments in one term, as I expect Breyer to retire by spring 2022.

Posted by Howard Wasserman on November 27, 2020 at 04:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Tuesday, November 24, 2020

Dumping Rule 11

I have been thinking about dropping Rule 11 from Civ Pro. I have had trouble getting to Erie the past few years, a problem made worse  being remote (everything takes just a bit longer, which adds up over 13 weeks) and the likely addition of a new personal-jurisdiction case in Ford. I enjoy teaching it and it is a good source for essay questions. But I think Erie is more important.

The clown show that is the Trump Campaign litigation in the Middle District of Pennsylvania (and now the Third Circuit) confirms the choice. No one will be sanctioned for pursuing litigation violating 11(b)(1), (2), and (3). Even the great find precedent the Campaign has touted (they brought the plaintiff to last week's hearing) does not stand for the proposition they say it does. And beyond this single extraordinary case, the reality is that sanctions are imposed on the most-egregious behavior after four or five freebies. Against all of that, class time is better spent on other things.

Posted by Howard Wasserman on November 24, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (11)

Monday, November 23, 2020

Paying for vaccination and the First Amendment

I am intrigued by this idea making the rounds: Pay people (amounts thrown around are $ 1000-$1400) for getting the COVID vaccine. The plan achieves three things: 1) Ensures broader vaccination towards herd immunity (estimates say a 70% rate is necessary); 2) economic stimulus; and 3) support those suffering financial loss in the economic downturn.

A question: Would someone with a religious objection to vaccination have a First Amendment or RFRA claim? Is not receiving a widely available benefit, unavailable to you because of your religious beliefs, a violation of religious exercise? And, because that is all the rage these days, what would be the remedy if this is a violation? How would the Court level up--requiring the government give the religiously unvaccinated $ 1000? Or would the Court level down and prohibit the government from doing this?

Posted by Howard Wasserman on November 23, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Sunday, November 22, 2020

Trump campaign loses big in Pennsylvania (Updated)

Update: Just wanted to highlight a few things discussed below, as the Pennsylvania litigation continues apace. First, Trump's lawyers are as bad at appellate procedure as they are at civil procedure--the motion for expedited review insists that they are only challenging the denial of leave to amend to file a Second Amended Complaint, not the dismissal of the First Amended Complaint. And they have not asked for an injunction pending appeal, which means Pennsylvania could certify the results today and moot the case. Second, Trump's lawyers are being hoisted on their Twiqbal petards. They continue to insist they are entitled to discovery and the chance to present evidence at trial, ignoring the obligation to plead a plausible claim, including standing. Third, liberal delight in flaunting Twiqbal is disturbing.

Opinion here. This was always a weak case, so the result is unsurprising. Giuliani's involvement brought a brighter spotlight to it than its merits deserved, making it more farce than lawsuit. But the decision is as much of a smackdown as people are saying, with the court dropping occasional phrases suggesting annoyance. Some quick thoughts.

1) This case further convinces me that standing as a merits-independent threshold inquiry makes no sense. For the two voter plaintiffs, the court focuses on the fact that they sued the wrong people, people who did not violate their rights and thus injure them. That should be part of the merits--your county violated your rights by treating you poorly, but other counties do not violate your rights by treating other people favorably (as permitted by law). Similarly, redressability was framed in terms of remedy--the plaintiffs lacked standing because they requested the wrong remedy--which should be a post-merits determination. The goal seems to be to make what are effectively merits determinations while denying the case is about constitutional merits.

2) The Campaign asserted associational standing,which the court rejected. But it did not assert third-party standing on behalf of voters. Was this another pleading error? Political campaigns have always struck me as a classic example of third-party standing--their interests align with the voters and individual voters lack the incentive to bring broad-based litigation.

3) Given the GOP campaign against universal injunctions the past four years (with which I agree, of course), it is ironic that they requested the ultimate universal injunction. The plaintiffs asked the court to stop Pennsylvania from certifying the election--functionally nullifying every vote in the state--to remedy the violation suffered by two voters who were denied equal protection by the actions of a non-party. But it also would have been insufficiently universal, in that they only wanted to stop certification of the presidential election but no other election, although the voters were denied equal protection to cure their votes in those elections, as well (unless they could allege that they only voted in the presidential election).

4) The case illustrates the disconnect between litigation, which is often small-bore and centered on discrete violations of discrete people's discrete rights, and the vast international and technological conspiracy that Trump's lawyers sought to prove. Put aside that the evidence does not exist. There was no room for such evidence on the claims alleged. But does this create a catch-22? The Campaign will complain that it never had an opportunity to present its evidence in court (as people have been demanding), because the court never accepted its unsubstantiated allegations (which is all a complaint is supposed to be) and allowed it to find and present that evidence. At the same time, this is how much litigation works since Twiqbal--a state of affairs about which Civ Pro scholars have been complaining for almost 15 years.

5) I liked Judge Brann putting citations in footnotes, a practice I am surprised has not caught on more (some judges on the 5th and 6th Circuits do this). On that note, check out footnote 80, sure to go down in history as the new footnote 4.

Posted by Howard Wasserman on November 22, 2020 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Wednesday, November 18, 2020

Procedure matters

Civ Pro is a spring class at FIU, so I do not get them until January. But I hope they are paying some attention to the Trump litigation campaign, particularly the case in MDPa. That mess shows how much procedure matters, if only to getting the court to take you seriously as a competent advocate and thus your claims seriously as presented. But Giuliani (and other's) complete lack of understanding of how litigation operates at the level of a basic Civ Pro class--when leave to amend must be sought, what claims and allegations are or not in a case, the meaning of pleading standards--has been stunning. Grasp of procedure also marks the difference between legal and political activities, which supports news reports that Giulian's gambit is entirely the latter and none of the former.

Posted by Howard Wasserman on November 18, 2020 at 08:38 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Departmentalism and virtue signalling

A mini controversy erupted at Northern Iowa in October, when the student government refused to recognize a chapter of Students for Life, calling it a "hate group." The university President reversed the decision and recognized the group.

From a First Amendment standpoint, the President's decision was correct. Had the initial denial stood, SFL would have sued and won, obtaining an injunction, perhaps (limited) damages, and attorney's fees. But that prospect arose during student-government debates, when one student senator "opined that recognizing Students for Life out of concern that refusal could subject UNI to legal liability was an 'extremely facile and weak' defense that 'privilege[d] . . . money and . . . admins over student well-being.'”

The university did not share the student's position, for obvious reasons. But suppose it did? And how does that position--"we are going to do (what we believe to be) the right thing, judicial defeat be damned"--square with judicial departmentalism? My assumption has been that executive/legislative departmentalism ends when the certainty of judicial liability and attendant consequences (particularly attorney's fees) begins. But suppose government adopts that student senator's ideal that it should promote "student well-being" even at the threat of legal liability. That is, the government takes the position that it is better to promote its constitutional vision even knowing that vision will lose in court, in exchange for the goodwill of some constituency. This may be especially appealing to a public university. It can do the "right" thing in the moment (such as promoting the anti-racism cause or protecting students from offending messages)--and if the court forces the university to change, so be it. The university might benefit from that approach--"we can't do what you want because we will lose in court" becomes "we really tried to do what you wanted but those unelected federal judges got in the way." I am glib in the title in labeling this virtue signalling, but it would allow the university to keep some groups happy. Ironically given the new anti-racist context, this is why governments often welcomed judicial involvement in the early days of reform for schools and other institutions post-Brown--they could make the necessary changes, while blaming the courts.

Returning to the UNI case, the president might let the student government decision stand, then recognize SFL once the court orders it to do so; a win-win situation for the university, which keeps a segment of the student body happy while ultimately doing what the Constitution compels.

I heard about the UNI story while thinking about FIU, which has seen two public incidents of students posting social-media videos of them using using racial epithets while singing and dancing. And to hear undergrads tell it, such expression is quite common in the community. Students would like to see the university take action, while the university has recognized what happens if it does. In an interview, a student from FIU's Black Student Union brought up the 2015 case in which the University of Oklahoma expelled two students and revoked a fraternity charter over a viral video. That Oklahoma case is unique in that the students never challenged their expulsions; they (perhaps wisely) accepted the punishment and escaped the limelight rather than trying to become public free-speech martyrs. Oklahoma's actions might serve as precedent that a university could take a stand if it is willing to take its chances in court. On the other hand, I remain convinced that had the students sued, they would have won. A university that follows the OU model thus will encounter one student who sues and the game will be over. The separate question is how many schools would take that path?

To be sure, I am not urging this situation. I hope a university adopts the First Amendment position that ideas, even hateful and offensive ones, are protected and that government cannot engage in viewpoint discrimination. And I hope the university is willing to defend that view in the face of student anger. But there is more than a little wiggle room for those schools that do not. And then what happens?

Posted by Howard Wasserman on November 18, 2020 at 12:42 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, October 25, 2020

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

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

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

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

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

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

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

Posted by Howard Wasserman on October 25, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Saturday, October 24, 2020

Declaratory judgment of protected speech

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

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

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

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

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

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

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

Posted by Howard Wasserman on October 24, 2020 at 12:51 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Friday, October 23, 2020

Still getting jurisdictionality wrong

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

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

Sunday, October 18, 2020

Breyer as assigning justice

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

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

Friday, October 09, 2020

Ford arguments

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

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

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

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

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

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

Wednesday, October 07, 2020

Impementing SCOTUS term limits

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

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

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

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

Tuesday, October 06, 2020

Balkin solves the 18-year conundrum

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 29, 2020

Bad legal reporting yields bad legal takes

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

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

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

Sunday, September 27, 2020

Proving anti-Jewish discrimination

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

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

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

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

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

Tuesday, September 22, 2020

The Segall Court and a stopping point to Court-packing

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

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

Implementing the Carrington Plan (Updated)

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

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

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

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

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

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

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

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

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

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

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

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

Monday, September 21, 2020

Remembering Justices

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

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

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

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

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

Sunday, September 20, 2020

New Courts (Updated)

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

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

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

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

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

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

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

Friday, September 04, 2020

Getting qualified immunity wrong

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

The letter says:

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

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

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

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

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

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

Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

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

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

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

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

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

Tuesday, September 01, 2020

Separation of powers, separation of parties, and subpoena enforcement

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

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

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

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

Monday, August 31, 2020

D.C. Circuit has a busy day

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

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

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

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

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

Saturday, August 29, 2020

Palin lawsuit against New York Times continues

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

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

[*] Usually.

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

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

Friday, August 28, 2020

3d Circuit reveals division on union clawbacks

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

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

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

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

Tuesday, August 25, 2020

Nomenclature and judicial review (Updated)

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

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

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

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

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

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

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

Friday, August 07, 2020

Standing for nothing

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

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

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

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

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