PrawfsBlawg

Bruce, Carlin, Smothers Brothers, . . . Colbert

Consensus is forming around CBS canceling Late Show and thus firing Stephen Colbert (Go 'Cats): They had financial reasons related to the general demise of late-night, but the optics look like an effort to appease Trump by silencing a critic and that almost certainly played a substantial role in a Mt. Healthy mixed-motive sense. News reports from last week suggested that Skydance might come for Colbert (and Jon Stewart of The Daily Show on Paramount-owned Comedy Central); there might be an interesting story that Paramount did it preemptively--relieving Skydance of the need to make the move while demonstrating fealty to Trump's FCC. And as happens whenever someone appeases Trump and attempts a figleaf justification to preserve its credibility, Trump immediately detonated plausible deniability, celebrating the firing (likely as a first step towards taking credit for it as a display of his power).

As this sorts itself out, I want to try to situate Colbert within the story of the U.S. targeting comedians for their comedy. In one sense, losing a tv job cannot compare to arresting George Carlin and especially Lenny Bruce (as depicted, the legal troubles must have affected the  emotions and thus actions that killed him). On the other hand, Colbert faces not local police and prosecutors wielding state law but the President of the United States wielding the levers of federal power to coerce a private actor to do his bidding.

The better analogue to Colbert is CBS (I see a pattern) canceling The Smothers Brothers four months after Nixon was inaugurated over concerns for the show's discussions of civil rights, Vietnam, Nixon, and other political topics. The White House complained about the show, but so did other politicians, including the Democratic senator who chaired the committee with FCC oversight. Befitting the Trump presidency, Colbert feels more personalist--Trump personally wanted Colbert fired and Paramount wanted to give something to Trump personally (besides $ 16 million) in order to speed the sale. I am not sure we can draw as straight a line from Nixon to the Smothers.

This event may stand as another example of the evolution of the state power to control critical speech. The US does not have to throw people in jail to silence them. It achieves that result extra-judicially, combining power over the economy and and the subservience of profit-motivated corporations to the same end, in a situation outside of and immune to judicial review. It also kills the long-held ideal (whether real or myth or somewhere in between) of court jester as the one person able to speak truth to power.

Speed dial

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

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

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

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

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

Law firms, class actions, and universality

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

What should trans-rights activists have done?

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

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

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

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

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

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

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

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

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

Read your damn book

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

Here is the ending of the letter:

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

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

Read your damn book.

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

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

Pussy communists

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

 

Greenblatt gives up the non-partisan ghost

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

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

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

Feldman on Trump's short list

Adam Feldman runs the numbers to predict Trump's SCOTUS appointments. He works from a group of Six: Ho (Fifth Circuit), Oldman (Fifth), Naomi Rao (D.C.), Bumatay (Ninth), Thapar (Sixth), and Cannon (S.D. Fla.).

TL;DR: Ho to replace Thomas, Oldham to replace Alito. 

Government ceremony in a personalist presidency

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

I think I agree, but some questions and thoughts:

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

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

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

More campus-speech narratives and problems

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

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

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

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

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

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

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

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

• I wonder if these are running out of steam.

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

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

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

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

Kentucky Derby predicts America's future

Sovereignty beat Journalism. Render Judgment finished 17th.

We are in trouble.

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

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

I will flag two points:

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

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

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

Update: She is back-pedaling, somewhat.

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

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

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

Somin on university lawsuits

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

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

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

Free speech stuff

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

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

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

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

Law Deans' Letter

Here. Good on FIU Dean Antony Page for signing.

On institutional neutrality

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

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

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

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

College presidents speaking out (?)

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

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

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

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

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

Courtroom policies and constitutional substance

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

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

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

Substance, procedure, and the current constitutional crisis

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

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

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

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

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

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

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

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

Major and Minor Trans Issues, Again (Updated)

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

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

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

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

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

Redefining chutzpah or the continued death of corporate media

This op-ed, enumerating Trump's many constitutional abuses and insisting that "this unconstitutional overhaul of the American government — far more sweeping, haphazard and cruel than anything he campaigned on" is not what voters signed up for. Here is the call to action:

America faces a new reality, and it demands wisdom, endurance and courage. The United States is now led by a president who appears willing to stampede over any person, law, congressional statute or country that stands in his way. He is driven by impulse and is disinterested in rules, history or reality.

How Americans and the world handle such a president will determine much about the next four years, and it will ask much from all of us. We must meet the moment. Mr. Trump won the election fair and square, but his position is that of president, not king or god-emperor. Every time Congress allows him to exceed his constitutional role, it encourages more anti-democratic behavior and weakens the legislature’s ability to check further erosion of the norms and values that have helped make this nation the freest, richest and strongest in the world.

Nonsense. Trump campaigned on all of this, certainly in kind and mostly in degree. To the extent Trump did not discuss some of these things, Project 2025 laid it all out. But The Times spent the campaign sanewashing his comments about this stuff, accepting his (disprovable) denials about Project 2025, and downplaying (the old "seriously, not literally" or whatever nonsense) the threats. And the news section continues to give less attention to--or downplay the import of--for example, Musk's IT abuses compared with how it covered Hillary's emails. The campaign presented the opportunity to highlight and draw attention to the abuses Trump promised, to paint the real picture for the public.* To have covered the campaign as it did--and to continue to cover Trump as it does--and then shame readers for not fighting back harder redefines chutzpah.

[*] Perhaps it would not have mattered. We'll never know.

To its credit, it published this essay from Katherine Stewart, which begins: "They told us they would smash the institutions that safeguard our democracy. And that is exactly what they are doing. Many Americans chose not to believe what they were saying. Will we now believe what we are seeing?"

Personalism mediated by parties

I like Paul's modification of my post; I offer one different framing. Madison, et al. knew and feared personalism. As others have noted, visions of Trump (and Musk and other hangers-on) fill The Federalist. Madison believed some combination of changing-and-evolving factions and inter-branch competition would limit the success of personalism. So the (unexpected?) development of political parties enhances the danger of personalism--the reach of the personal can take root and spread across the branches through the mediating force of the parties. The party connects members of Congress to the demagogue and places them in greater thrall to the personal than they otherwise might have were he acting alone.

As for the Democrats being out of ideas: Would it make a difference? I would love to see them bring the Senate to a grind. But I don't know what good "new ideas" they could offer that would make a difference or slow down everything that has been going on.

Levinson & Pildes, to the extreme

Daryl Levinson & Richard Pildes' Separation of Parties, Not Powers argued that the basic component and theory of separation of powers--competition and cooperation between the branches--ebbs and flows depending on whether one party controls both branches. They published the piece in 2006, covering periods through W.'s first term, when the push-and-pull was over policy and perhaps some political use of legislative oversight.

The current crisis (and yes, it is a crisis) takes their thesis to the extreme. It is not just that a Republican Congress does not push back on a Republican President's policy goals and actions; that follows from shared policy preferences. This is a Republican Congress not pushing back on a Republican President's efforts to neuter Congress and to place all power in the executive. It shows that, even in the extreme, political partisanship defeats separation of powers--party loyalties and prerogatives prevail over branch loyalties and prerogatives.

[Guest Post]: Markey call to extend Tik Tok deadline, annotated

This document is from my FIU colleague Hannibal Travis; he annotated Ed Markey's speech. The annotations are for law students, legal journalists, scholars, and members of the public.

Can Donald Trump block people on Twitter?

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

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

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

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

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

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

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

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

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

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

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

Jimmy Carter and the courts

On the death of former President Jimmy Carter, some thoughts on his judicial legacy.

• Carter famously did not appoint a SCOTUS Justice. He is the only 20th-century President and the only President since Andrew Johnson not to get an appointment (the others with none are William Henry Harrison and Zachary Taylor). I use Carter in Fed Courts to illustrate the randomness of appointments in our system--other Presidents who served one term (or less) appointed at least one Justice and in some cases many more.

Carter was a victim of bad timing with respect to the Court. Nixon/Ford made five appointments in eight years from 1969-77, replacing the old-and-long-serving liberals (Warren, Black, Douglas, as well as Harlan) with younger members who obviously were not ready to resign. In 1980 (the final year Carter could have made an appointment), Thurgood Marshall (72) had been on the Court for 13 years; Byron White (63) for 18 years; and William Brennan (74) for 24 years.* (Potter Stewart was 65 and had served for 22 years, but he was a Republican and not inclined to give a Democrat the seat--he retired in 1981, allowing Reagan to appoint Sandra Day O'Connor). Perhaps if Abe Fortas had not been forced to resign he would have been ready to resign at age 70 after 15 years. Or, for a deeper counter-factual, perhaps if Arthur Goldberg had not resigned in favor of Fortas, he would have been ready to resign at age 72 after 18 years (and perhaps a decade as Chief). The point is that from 1977-81, no Justice happened to die or get sick and no one was of the age, tenure, or inclination to retire, strategically or otherwise. Carter was stuck.

[*] When Josh Barro argued that Justice Sotomayor should resign to give Biden the appointment--an argument I criticized--he compared Marshall's failure to resign in 1980, which lead to to Justice Thomas. Yet Brennan was two years older, had served almost twice as long, and also did not last the 13 years until the next Democratic President.

• Carter appointed an extraordinary number of lower-court judges, thanks in part to a 1978 law that created 152 new judgeships, which he filled during the final half of his term. Carter was the first president to meaningfully diversify the federal bench in terms of gender and race, filling judgeships with leaders of the Civil Rights and women's rights movements. I clerked for one of those judges--James T. Giles, who served for almost 20 years (1979-2008) on the Eastern District of Pennsylvania, including six years as Chief. Although not part of the movement, Giles worked at the EEOC and the NLRB right out of law school prior to private practice and taking the bench at the age of 36.

• My 2021 study of Academic Feeder Judges found that Carter appointees led the way in producing academics. Of the top 102 lower-court judges, 26 were Carter appointees; of the top 51 district judges, 18 were Carter appointees.

Trans rights and social movements

I had interesting email exchanges with readers regarding my posts on trans issues. I wanted to lay out a few of the additional issues (unresolved) about social movements:

• MLK, Thurgood Marshall, and others went all-in during the '50s/'60s/'70s, which proved the right move. But would it have been wise, or successful, in the '30s/'40s. Where is the trans-rights movement now? I would have thought it was closer to the '50s after Obergefell; now it feels like March 1877.

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

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

• There is an interesting order-of-operations problem--does government enact restrictions when groups begin advocating or do groups advocate against existing laws. The former seems more targeted and more cruel. It seems the former is at work for trans people--new laws enacted explicitly and expressly to prevent them from doing what they sought to do or hoped to achieve under existing laws and systems. By contrast, MLK moved against existing Jim Crow laws; Southern states doubled down on defending those laws but did not enact new laws. And no one attempted to enact new express prohibitions on disabled people. On the other hand, states enacted Jim Crow in response to Reconstruction. It probably depends on the moment in history in which one looks.

• Movement strategy is historically determined. It is harder to tell Group M to bide its time (especially within our modern understanding of the harms its members suffer) when Groups A through L have already established their rights. So MLK had to bide his time in the 1940s because he had nothing to build on; trans activists have 80 years.

• Size matters. Trans people represent less than 1 % of the population, compared with women representing 1/2 the population and Black people 10-15 %. It is easier for the state to target such a small group (obviously), more difficult to create a critical mass to support it, and easier for voters and others to say "why do you care so much" about issues that do not affect them. It thus is rhetorically and politically important to turn the numbers issue, to place the shame on those who would bully such a tiny group.

Major trans rights, minor trans rights, and political expediency

Jonathan Chait argues that Democrats must distinguish "major" from "minor" trans-rights questions and take a stand on the major questions while leaving minor (and, coincidentally, unpopular) issues alone. According to Chait (for whom this is bound up with sensitivity to accusations of being anti-trans):

The major questions about trans rights are: Do some people have the chance to live a happier and more fulfilling life in a different gender identity than the one to which they were born? Do some of these people need access to medical services to facilitate their transition? Do they deserve to be treated with respect and addressed by their chosen names and pronouns? Do they deserve equal protections from discrimination in employment, housing, and military service? Must society afford them access to public accommodations so as not to assault their dignity?

* * *

Democrats mainly ran into trouble because they either supported or refused to condemn a few highly unpopular positions: allowing athletes who transitioned from male to female to participate in high-level female sports, where they often enjoy clear physical advantages; allowing adolescent and preadolescent children to medically transition without adequate diagnosis; and providing state-funded sex-change surgery for prisoners and detainees.

Some thoughts about why it is not as simple as he makes it sound:

• Republicans and MAGA do not draw these distinctions. They use the unpopularity and demagoguery of the "minor" issues to attack the major issues. And since most people do not draw Chait's distinctions, no one will notice when the policymakers sweep away the major issues in a broad attack on trans rights which they justify by the minor issues. Stated differently, the minor issues represent the camel's nose to get the major issues. Democratic surrender on the minor issues will empower, not assuage. Chait insists the evidence shows that efforts to target major issues would be unpopular. Recent state legislative efforts (likely to be copied in the Trump Administration) suggest he is wrong.

• The minor issues are straw people, grounded in false narratives, or at least debatable.

    • I discussed sports. But Chait sweeps away issues, such as defining "high-level." Professional and Olympic, obviously. What about college--is there a difference between Division I and Division III? Or between Power 5 women's basketball and Mountain West volleyball? What about high school, where a cis-girl's loss to a trans-girl in a track meet deprived the former of opportunity to run in college?

    • Doctors do not commonly prescribe or provide medical transitions without adequate diagnoses (as they do not commonly perform any procedure without adequate diagnosis); restricting this would be redundant and performative. And using the rare ambiguous story as a cudgel to suggest a broader problem demanding action (as Chait and others did) is intellectually dishonest.

    • Prisoners have an 8th Amendment right (and detainees a 5th Amendment right) to constitutionally adequate care; in a humane penal system (yes, I know), the state should surpass the constitutional floor. Beyond general opposition to trans rights, no one has offered a good reason for denying that form of medical care while providing (as constitutionally required) other medical care. Especially because the number of prisoners/detainees who would seek (and thus the public cost of) this care would be so small--contrary to MAGA demagoguery and compared with what states spend on common treatments for a larger number of prisoners.

In other words, Chait's minor issues are not so different than his major issues, other than some sense of popularity and his personal preferences.

• Chait ignores several issues (or is not explicit about them) that sit on the leading edge of the anti-trans movements. He never mentions bathrooms. And he never mentions government documents (which might fall under names and pronouns, but it is not clear).

Trans rights, the 2024 Election, and Trump II (Updated)

I have been tossing around ideas for this post since the election. My thoughts are not fully formed, but I wanted to get them down on paper.

• Trans and non-binary people form a vanishingly small percentage of the U.S. population. The question is what to do with that information. One narrative criticizes Republicans for obsessing and seeking to suppress a tiny group whose existence does not affect their lives--"why do you rally around hurting such a small group." A second criticizes Harris and Democrats for caring so much--"why do you care so much about (and feel the need to express support for) such a small group." Unfortunately, the latter has taken hold among Harris voters, particularly in light of evidence suggesting that Trump's anti-trans rants (the "She's for They/Them, Trump is for you" ad and Trump's stump bullshit about boys coming home from school as girls) moved meaningful numbers of votes. On the second narrative, it is not enough for Democrats to downplay support for this group--Harris should have responded by joining Trump and Republicans in piling on this group and agreeing to push them out of the polity. And the required move becomes not just declining to "promote" trans issues (whatever that means), but refraining from protecting trans people when the other side attacks. The idea seems to be that a small vulnerable group does not need protection.

• For example, see this word salad from Massachusetts Democrat Seth Moulton: 1) "There are just a number of issues where we’re out of touch;" 2) “I think that Republicans have a hateful position on trans issues;”3) Democrats still lose voters because of the party’s “attitude;” 4) “Rather than talk down to you and tell you what to believe, Democrats should “listen to hard-working Americans.”

    Let's put aside Moulton's apparent dichotomy between trans people and hard-working Americans. Moulton serves as a policymaker (or at least pretends to), so make policy of those four statements: The Republican position on trans issues is hateful. But hard-working Americans agree with (or at least are not repulsed by with that position, so Democrats are out of touch if they fail to listen to those hard-working Americans. And that leaves us where in terms of policy, Rep. Moulton?

• This is about pushing this group out of the polity, taking steps to keep them from living their lives as they see fit. Anti-trans activists and officials advertise sports and bathrooms as the key issues and the servile media transcribes it. I will come back to sports in a second. But note that the anti-trans policies on offing extend beyond those issues. Several days after the election, Trump had a social-media post enumerating anti-trans proposals he plans to pursue--stripping federal funds from hospitals that provide gender-affirming care, denying Medicaid funds for gender-affirming care, banning trans people from the military, suppressing classroom discussions of trans issues, etc. And Trump nominated as surgeon general the person who pushed and enforced many of Florida's anti-trans efforts. This is not about sports-and-bathrooms.

    Also nonsensical is the feint towards "reasonable" compromises (most recently by now-former Texas Democratic chairman Gilberto Hinojosa) by making this a pocketbook issue--let people do what they want but don't make taxpayers fund it. The amount of any taxpayer money that goes to any expenditure is infinitesimal--that is why we do not allow federal taxpayer standing. And we do not allow individual taxpayers to opt-out of particular expenditures--we do not prohibit Medicaid funds for Sickle Cell Anemia treatments to appease those who do not like Black people. Again, such efforts single out trans people for differential treatment for no reason other than some segment do not like them.

• I confess to being wrong about how central these issues will be to the new administration. I thought this was a cynical political move but that once in office Trump would focus on the things he cares about: immigrants, tax breaks for billionaires, personal enrichment, and revenge on his political enemies. The House GOP freakout over Sarah McBride and some of Trump's nominees suggests this is going to be a central feature in the coming years.

• On sports--this is a real issue but also a straw man that does not justify the broader policy proposals. The science is out on how much advantage male puberty provides once a trans woman undergoes hormone therapy; while the "fairness-and-safety" argument is important, it cannot end the conversation. Even if the science is there,  anti-trans policy (barring all participation in all sports at all levels) is (stop me if you heard this one before), over-inclusive: It applies to sports (e.g., swimming) without safety issues; it applies to sports (archery, bowling, shooting) without sex-based advantage and thus no fairness issues; it applies to trans men playing men's sports (where biological advantage runs the other way); it applies to all ages and levels of competition (drawing no distinction between grade-school, high school j.v. and the Olympics). Policies target people who never went through male puberty so never received the supposed advantages.* And some of the cases that have drawn legal responses have targeted individual players who are not very good at their sports or certainly not so superior in their sports as to create an unfair playing field.**

[*] Or worse, work in tandem with bans on gender-affirming care for minors. So trans girls cannot play girls sports because they have  an advantage from male puberty, but we are going to force them to go through male puberty.

[**] Bey0nd the inherent genetic unfairness that defines sports. Michael Phelps is a genetic anomaly--no one complained that he had unfair biological advantages.

The longer I have worked on this, the angrier I have become. I apologize if this is more of a jeremiad than I expected when I started.

[Update]: I may owe Rep. Moulton some sort of apology. According to this interview with Rolling Stone, the Times quoted him out of context and slapped a headline on the story that made him sound more opposed to trans rights than he intended to suggest. Post hoc CYA or genuine? You decide.

Trump victories and institutional statements

The Chronicle of Higher Ed (paywalled) notes the absence of statements from university leaders about the election of Donald Trump, compared with the dozens that followed the 2016 election. The story highlights new letters from the presidents of Wesleyan, American, Emerson, and Morgan State (an HBCU). It also notes that it has been two days--the big joint letter of more than 100 presidents came more than a week later.

The article speculates a bit about why. It points to the recent increase in schools adopting Chicago Principles and institutional neutrality.* I wonder if the size of Trump's victory and the nature of his expanded coalition matters. A message of "we stand with and support members of X group likely to be targets" does not fly when many members of X group voted for this. Nor can one frame a narrative of "the country does not want this and you are in office by fluke of a bizarre election mechanism"--national and EC majorities clearly do want this.

* It describes that shift as a "backlash to pointed statements from some presidents about protests over the war in Gaza." I question that framing. Many schools adopted neutrality in response to criticisms of their perceived failures to speak about October 7 and the events that followed--recognizing (for good or nefarious reasons) the bind that general political engagement had created for them and the need to escape the hurly-burly of politics.

A word on the statement from Wesleyan President Michael Roth (which we received via email yesterday). Roth opposes institutional neutrality and believes universities should take institutional positions. But a believer in institutional neutrality would be comfortable with and supportive of most of what Roth said here. Chicago principles do not require institutional silence; the Kalven Report said:

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

Roth focuses on specific pieces of the college's mission and values that will be vulnerable in the coming political regime--recommitting to campus DEI efforts and to academic freedom. These concerns affect the college as an institution of higher ed, exactly what a president should highlight, discuss, and protect on behalf of his college. It goes beyond general politics and the generic "people throughout the country are scared, please reject hate and govern justly" that marked the 2016 joint letter. Roth includes some flowery stuff about democracy and the rule of law, but he ties it to core pieces of the higher-education endeavor.

Sports Election Predictors

My quadrennial post. As when Trump won in 2016, they failed badly:

• World Series Missed: The National League Dodgers won the World Series (as they did in 2020, when Trump lost). This is now 18 for the past 30, 13 of 20 since the end of WW II, and 5 of 7 in the milenium (with Trump victories providing both misses).

Washington NFL Team Missed: The Washington Commanders beat the Bears in the final home game before the election (on October 27) on a last-play Hail Mary (that some were calling the Harris Hail Mary). As a predictor of a party retaining the White House, this is now 17/22, although wrong on the last four.

Ending Sports Droughts Hit: This favors Republicans. The Florida Panthers won their first Stanley Cup in franchise history and the New York Liberty won their first WNBA title. Each team has existed for less than 35 years (Panthers founded in 1993, Liberty in 1997) so these are short droughts compared with the Phillies winning the World Series for the first time after 97 years (Reagan in 1980) or the Cubs winning after 108 years ( Trump 2016) or the Red Sox after 86 years (W. 2004). Still "first title in franchise history" represents a milestone and breaks a meaningful drought regardless of how long a team has existed.

Finally, unrelated to sports but running through my mind this morning amid news of Trump's gains with Latino voters: The old saying was "Jews earn like Episcopalians but vote like Puerto Ricans." It turns out many Puerto Ricans do not vote like Puerto Ricans.

Morality and why politics is not sport

This by Josh Chafetz captures the problems with "it's just politics and not worth destroying family and friendships" (most recently by J.D. Vance during a campaign event). Josh's key insight is that politics is not a hobby; it is a means to the ends of how we live. And one reasonably can (and perhaps should) have a line at which another person's views and desires of how we should live outweigh friendship. The debate is about where people draw the line, not about whether people should draw the line.

This is bound up with the sportification of politics. Politics is sport--games we watch for fun without real-world consequences. So if I can marry an Orioles fan or talk college sports at Thanksgiving with my uncle who went to the rival college or be friends with a White Sox fan, I can do the same with a person whose political preferences, if enacted into law, would strip my child of basic rights.

Vagaries of public enforcement

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

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

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

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

Fifth Circuit makes a Heck-of-a-mess

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

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

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

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

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

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

Not just federal judges

There seems to be problem with judges acting out some skewed version of Scared Straight with people who do not meet their standards of decorum. Lacking life tenure, this guy may suffer consequences--he has been suspended, although only pending "sensitivity training."

Interestingly, the judicial immunity question may be more favorable to the girl, should she pursue a § 1983 action. I described why Judge Benitez was on the line. But as I read this story, Judge King was not presiding or conducting any proceeding when this happened. It was in court and the judge was in his robe, but he was conducting an educational program for a youth group, which should not be a judicial function (the group had watched a trial, but the trial had ended).

Why randomize assignments?

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

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

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

It should be constitutional

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

Collegiality for collegiality's sake

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

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

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

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

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

Not reporting v. accurately reporting

In citing Jay Rosen and Tom Nichols in this post, I expressed concern for the media's hyper-focus on certain narratives (Hillary's emails in 2016, Biden's age and mental acuity until a few weeks ago) to the exclusion of others. I have never advocated for not reporting what Trump says (and Nichols has been a big "show Trump in all his insanity" advocate) or for withholding negative stories about Biden, Harris, and other Democrats.

I have different criticisms of the media; Paul may disagree with these, as well, but they are different than what Rosen and Sullivan seem to have been pushing. I criticize inaccuracy and imbalance in the name of objectivity (and fear of accusations of bias). I criticize the media being worked. I criticize media  ignoring or cleaning up Trump's incoherent ramblings. I criticize the media allowing a narrative to take hold--usually the one Republicans have pushed--and allowing that narrative to color what they publish and how they present it.

Aaron Sorkin out-Aaron Sorkins Aaron Sorkin (Several Update)

Update: This aged well. See if the Romney-for-VP thing catches on. (Further Update: To be clear, I do not expect it to catch on. I find interesting the prospect of a Harris/Shapiro ticket, under which the First Gentleman, VP, and Second Lady would be Jewish--sparking complaints about the power behind the throne).

I have written about the insufferability of Aaron Sorkin. But we find ourselves in a Sorkinian moment, as a successful Democratic president wrestles with whether, in light of recently exposed health concerns, he should leave the election and not seek a second term. One can imagine Joe Biden--also a devout Catholic--wandering the National Cathedral shouting at God in Latin and telling him "You get Harris!" In fact, some have urged a Sorkinian solution by proposing that Harris select a Republican as VP--names include Mitt Romney (who, by the way, is 77) or Adam Kitzinger, a former GOP congressman who twice voted to impeach Trump.

Realizing that everyone is stealing his insipid thunder, Sorkin outdoes himself in today's Times by descending to outright stupidity: The Democrats should nominate Romney as President. Never mind that Romney is 77, so you are offering a super-annuated person to replace a candidate who is struggling because of his age. Never mind that Romney disagrees with just about every meaningful position in the Democratic Party platform and every ideal that the mean liberal Democratic voter (to say nothing of the progressives) believes in. Policy does not matter; only politics and getting to 270. Of course, I am not sure why Sorkin (or anyone else) believes Romney can get to 270. There are not so many Never-Trump Republicans (to whom Romney appeals as a policy matter), especially to overcome the many Democrats who would stay home.* And why is Romney better than any non-Biden Democrat--except in his appeal to Republicans. In other words, Sorkin's proposal reduces to "Democrats must sacrifice everything to bail out the Republicans who went off the rails."

[*] And perhaps not wrongly. It is one thing to tell young progressives to show up for Biden (or any non-hard-left Democrat) because he will get you some of what you want on some timeline, even if not everything or as fast. It also is one thing to tell Republicans to show up for a Democrat when their party has abandoned them. It is something entirely different to tell Democrats to surrender any policy preferences by choosing a less-offensive Republican over another Republican.

Although, I guess if a well-known playwright was going to go off the rails, it could be worse.

Why is this jurisdictional?

Hunter Biden moved to dismiss his indictment for lack of jurisdiction arguing that special prosecutor David Weiss' appointment is constitutionally invalid under the Appointments and Appropriations clauses, in light of Thomas' Trump concurrence and Judge Cannon's decision to dismiss the documents case.

I leave to others the constitutional merits. My question: Why is this a jurisdictional defect? The motion describes this as an indictment "brought by an unauthorized prosecutor" and concludes that this means the court lacks jurisdiction, citing Trump and a 1991 9th Circuit case treating a challenge to a special AUSA's authority as going to the court's jurisdiction. But the cited portion of Trump does not use the word jurisdiction and the 9th Circuit case came a decade before the Court righted the ship on the jurisdictional label.

I focus on civil cases and perhaps criminal cases are different. But I think this comes back to conflating types of jurisdiction. The jurisdiction (i.e., "authority" or "authorization") problem is one of executive or prosecutorial authority--the official pursuing the prosecution lacks the constitutional authority to pursue the case. But the absence of executive jurisdiction to act should not strip the court of adjudicative jurisdiction, just as the absence of legislative jurisdiction to enact the law being enforced does not strip the court of adjudicative jurisdiction. Both require the court to exercise its power and grant judgment for the defendant on the merits.

Is there something different about criminal law and the prosecutorial power that changes this analysis?

More on Rankin's revenge

I was a bit glib and non-specific in this post. But it now appears more than a few teachers out there have made comments on social media to the effect that they wish Thomas Matthew Crooks had better aim; Libs of TikTok and Moms for Liberty have found and identified many of those teachers and their posts and are demanding scalps; and attention-starved and/or craven public officials are making noise about firing and/or decertifying those teachers. So let me try the fuller analysis here.

The leading, and factually similar case, is Rankin v. McPherson. A clerical worker in the sheriff's office had a conversation with her co-worker/boyfriend after hearing news of the attempted assassination of President Reagan, in which she said something to the effect of "if they attempt to shoot him again, I hope they get him." SCOTUS held that her firing violated the First Amendment. Her statement was on a matter of public concern and was not a threat or otherwise unprotected. And the Pickering balance--employee interests in commenting on matters of public concern against interests of the government employer in promoting workplace efficiency--favored the employee. The statement was made in a private conversation (albeit one in the workplace) and did not affect her co-workers, workplace relationships, performance of anyone's job, or overall functioning of the agency. As a clerical employee, she did not have contact with the public as part of her job and did not affect the office's law enforcement functions.

Ironically, Twitter exchanges I have seen fail to mention or discuss Rankin, which is a somewhat forgotten case (as so many Marshall opinions are) even among the First Amendment crowd.

In thinking about Pickering, it is worth remembering that the case involved a teacher, fired over a teacher over his letter to the editor criticizing the school board's funding priorities. Criticism of the school board did not per se affect the functioning of a school in terms of his classroom duties, his harmony with fellow teachers, or the ability of his superiors to control and discipline him. And the Court would not presume that the teacher brought his negative views into the classroom.

So what happens if schools fire or discipline teachers because of these social-media posts? As with the statements in Rankin, expressing hope outside the workplace that a political leader would be assassinated (whether as a wish for a future shooter or regret for a past shooter's failure) is non-job speech, touches on a matter of public concern, and is not a threat or incitement or otherwise unprotected. Everything thus turns on Pickering. These teachers spoke entirely outside the workplace to the public at large rather than at work to a colleague. The statements lack even a remote connection to their jobs or to their employers, because they were not talking about the school district or education (contra Pickering). Teachers are public-facing employees. But schools cannot assume that teachers will bring their personal political views into the classroom as to allow them to fire teachers who express views that school administrators find offensive or contrary to the values of the school. Absent some evidence that the teachers will attempt to convince their students that Crooks should have bought a better scope or otherwise that assassinating Donald Trump would be a good thing,* the school cannot argue that the teacher's publicly expressed political views that never find their way into the school or curriculum undermine discipline or the efficient educational operations.

[*] Which would constitute a fireable offense because elementary and secondary teachers exercise less control over their classroom speech.

The problem may be actual or anticipated parent reaction--a school might be able to argue that functions have been disrupted or undermined if parents complain or object to their children being in one of these teachers' classes. While that sounds like a heckler's veto, lower courts have rejected the idea that Pickering's disruption prong constitutes such a veto--as the Second Circuit put it, parents are not outsiders to the speech and speaker but participants in public education whose cooperation is required for the system to work.

Cases in which teachers have lost on Pickering tend to involve statements that go towards children and the teachers' possible interactions with children--a guidance counselor publishing a sexist relationship-advice book; a school counselor indicating an unwillingness to handle trans kids as the school deems fit; a teacher with a membership in NAMBLA; or a teacher who blogs critically about her students. Nothing that these teachers said bears on their students or on what they teach. Indeed, if these teachers can be fired for these obnoxious statements about world events, it seems to follow that schools could fire teachers for holding or expressing an array of obnoxious beliefs on an array of matters of public concern. Something I thought Libs of Tik Tok and Moms for Liberty decried as cancel culture . . .

When motive matters

Orin Kerr has a Twitter thread* on whether Thomas Matthew Crooks' motive matters.

[*] On Gerard's post on leaving Twitter: In one sense, I was never "on" Twitter because I never posted; I only got an account when Twitter stopped allowing people to read without joining. But I regularly read those law profs, lawyers, and journalists--including Orin--who continue to blog there and highlight new cases and issues that I may write about here, use for my own work, or use in class. Even if fewer people do this, I think it is enough to keep checking and keep reading. Still have not posted and never will.

Orin posits three possible reasons: 1) Crooks was insane; 2) Crooks was a lefty who believed the "Trump is a threat to democracy" of Mother Jones and Rachel Maddow; 3) Crooks was hard right and believed Trump too moderate. Orin asks how much the actual reason matters to understanding what happened or to how to respond.

I would argue it matters whether it was # 2 because of Republican efforts, aped and aided by the media, to use this to silence sharp (if accurate) criticism of Trump. If we know he is not a lefty, then the narrative of "violent rhetoric from the left" cannot (or at least should not) take hold or be given credence. But that is, to this point, the most consequential effect of the event (along with, I suppose, the BS "Trump has changed narrative").

Ballots, bullets, and media narratives (Updated)

Donald Trump won reelection when that bullet whizzed past him on Saturday. This means neither that I wish Trump had been killed nor that the shooting was the Reichstag Fire. Rather, the shooting will affect media coverage of the race in a way that I believe will affect a significant number of voters and that I do not believe Biden can overcome.

First, Trump's reaction--to adorn t-shirts and history books for years to come--reinforces the narratives of Trump as a "fighter" and of Trump as younger and more vigorous and tougher than Biden. It is no longer just that Trump and stand and scream for hours (even if what he says is nonsensical and/or frightening). It is that Trump leaped to his feet after getting shot in the ear. MAGA types had long trafficked in strange images of Trump as muscle-bound strongman. Now a real example feeds that image.

Second, the media narrative will make impossible the accurate Democratic argument that Trump is an authoritarian who undermines and threatens the constitutional order. Any criticism of Trump or discussion of Trump's dangerousness will be criticized by MAGA and reported by the media as the left inciting and calling for more violence against Trump (with constant reminders of the shooting). Biden and Democrats cannot make the core argument against Trump's election without being criticized for raising the temperature and setting the stage for more violence. At the same time, the media will play up (as it has begun to do) the narrative of Trump as a "changed man," seeking to unite rather than divide and finally become President of the whole United States. Anything Trump says at this week's RNC and beyond will be framed around and reported as reinforcing that supposed change and desire to unify, regardless of its substance and as the things he pursues remain inherently divisive. The media has long been unwilling or unable to accurately report what Trump says and does, trapped by what some have called the bias towards normalcy. The shooting and its aftermath offer a different bias through which to launder the danger.

Third, these narratives have developed before we know the shooter's motives, whether this was politically motivated, and whether the narrative of "Trump is dangerous and must be stopped" (even if in context every sane person knew that meant the ballot box) had anything to do with the shooting. The narrative is that it did and thus Democrats must change their message and stop criticizing Trump.

Finally, this from David Frum: "Nobody seems to have language to say: We abhor, reject, repudiate, and punish all political violence, even as we maintain that Trump remains himself a promoter of such violence, a subverter of American institutions, and the very opposite of everything decent and patriotic in American life." I would add that even if some people had that language, the media could not and would not present it to the world.

Update: Tom Nichols, also in The Atlantic. He blames bad-faith GOP partisans more than the media for engaging in what Ed Luce calls “an Orwellian attempt to silence what remains of the effort to stop [Trump] from regaining power.” But if the move comes from partisans, it "seems to be working" with the media--MSNBC canceling Morning Joe on Monday and The Times apologized for an op-ed, published before the assassination, calling Trump unfit for office. But I think this confirms my original point that it is on the media. Political leaders are going to political leader, especially bad-faith actors such as Rick Scott and Mike Collins. Things fall apart when the media cannot or will not stand up to that bad faith. As journalism professor Jay Rosen puts it, the trust-in-media problem is that the media do not trust themselves.

Jurisdictionality and presidential immunity

On top of everything else that was bad in Trump, the majority and Justice Sotomayor use language that could be read to suggest that this immunity is a limit on the court's adjudicative jurisdiction rather than a defeat on the merits.

Discussing the first bucket of presidential conduct (conclusive and preclusive), Roberts quotes Youngstown that this bucket "'disables the Congress from acting upon the subject'" and Marbury that "the courts have 'no power to control [the President's] discretion'" and that discretion "cannot be subject to further judicial examination." He repeatedly speaks in the same breath of what Congress and the courts cannot do--"Congress cannot act on, and courts cannot examine, the President’s actions;" Congress "may not criminalize the President's actions . . . Neither may courts adjudicate a criminal prosecution;" or the removal power "may not be regulated by Congress or reviewed by the courts." Justice Sotomayor does the same in arguing against immunity, as by insisting that "'common tribunals of justice should be at liberty to entertain jurisdiction of the offence'"  or stating that "'judicial action is needed" such that "the exercise of jurisdiction is warranted.'"

To be fair, some of this comes from quoting old sources (Marbury and Story's Commentaries) or cases from before the Court grew more careful about using the word jurisdiction or speaking about courts exercising judicial power (Nixon v. Fitzgerald). But it would be unfortunate if the language causes courts (such as Judge Chutkin and the DC Circuit on remand) to backslide. Trump recognizes a disability on Congress and its legislative (or prescriptive) jurisdiction--Congress cannot enact criminal statutes that regulate certain presidential conduct. It is not a limit on the court's adjudicative authority, except in dictating how the courts must resolve any future attempt to prosecute a president and likely dismiss such a prosecution, if attempted.

Justice Barrett's distinct framing of immunity--as a challenge to the constitutional validity of the statute as applied to the President's conduct--also understands immunity as merits rather than jurisdictional limitation. Where the would-be statute of conviction is constitutionally invalid as-applied, the court is not stripped of adjudicative jurisdiction; it rejects the prosecution on the merits due to a defect in the congressionally enacted substantive law.

The EPA and the Terrible, Horrible, No Good, Very Bad Day(s)

Before we SCOTUSe wreaks new havoc at 10 a.m., we can review last week's old havoc. This post is by my FIU colleague Alex Erwin, who teaches and writes in environmental law.

Thursday was a terrible day for EPA (and frankly any American that had the misfortune of watching the presidential debate or the US v. Panama game at Copa America …).  To start things off, using its shadow docket magic, the Supreme Court stayed EPA’s Good Neighbor Rule in Ohio v. EPA.  Mr. Rogers would not be pleased.

Under the Clean Air Act, Congress tasked EPA with setting standards for common air pollutants.  Once a standard has been set, the states are charged with implementing those standards by developing a State Implementation Plan (SIP).  While the states have great latitude in how they meet the federal standard, the CAA requires states to be good neighbors.  Air pollution obviously travels, and this provision prevents states from developing a SIP that would dump air pollution onto its downwind neighbors in order to meet the standard in-state.  If EPA, however, believes a SIP is insufficient, it can promulgate its own plan, known as a Federal Implementation Plan (FIP).  In this case, Ohio and at least 18 other states messed around and got FIPped.  EPA proposed a single FIP that would cover 23 states.  The rule had already been temporarily stayed in over half of these states by the district courts, and Justice Gorsuch (joined by the other men on the Court) obliged Ohio granting emergency relief.

It’s been a long time since EPA won a case in front of the Supreme Court – the current conservative majority has routinely found that EPA has overstepped its authority.  This time around there is no need for the “major questions doctrine” of West Virginia or the “clear statement rule” of Sackett – instead, it is just a particularly nitpicky application of arbitrariness review.  What Ohio does have in common with those previous cases is, in my view at least, an over emphasis on the role of states in environmental protection.  The majority opinion is happy to harp on the fact that SIPs are the “primary responsibility” of the states, while significantly downplaying EPA’s mandatory role in ensuring compliance with air quality standards.

The majority holds EPA to task for failing to adequately explain its final rule, especially in response to submitted comments.  It is all a bit technical, but basically Ohio argued that the models the rule is based upon relied on the rule applying to all 23 states and, thus, if that base assumption is incorrect, then the estimates generated could be wrong when applied only to states that remain covered under the rule.  Gorsuch says the rule was “not reasonably explained” because it did not address this issue directly.  I agree with what Dan Deacon wrote on the Yale JREG Notice and Comment blog – the majority basically buys everything Ohio was selling hook, line, and sinker, while holding the agency to a much higher standard.  As Justice Barrett discusses in her dissent, EPA claims that it did address this issue (when it included a severability clause in the rule), that the issue was never directly raised during notice and comment, and that the models are not dependent on the number of states included.  The majority is happy to give the states leniency here, but not EPA.  Ohio’s arguments were good if they were close enough, but EPA’s needed to be perfect.  I don’t know how precedential this case will be, but it certainly seems wrong to me. 

Not done with ruining Administrator Regan’s day, the Court also handed down SEC v. Jarkesy.  Here Chief Justice Roberts, joined by the other 5 conservatives, stripped the SEC of its ability to seek civil penalties in an administrative proceeding, holding that the 7^th Amendment entitles the defendant to a jury trial.  While EPA was not directly involved, Jarkesy could cause EPA serious problems.  Right now, the agency hands out hundreds of civil penalties a year via in-house administrative proceedings.  As currently structured, DOJ ENRD handles enforcement cases in federal court.  If Jarksey is applied to block EPA from seeking civil penalties in-house, the increased caseload will certainly stretch DOJ’s capacity to the brink.  This all just means fewer polluters pay.

And Friday was even worse!  The Supreme Court killed Chevron once and for all in Loper Bright Enterprises v. Raimondo.  As far as I can tell, it replaced it with even more judicial aggrandizement!  Looking narrowly at the two cases themselves, it seems fitting to me that the decision in Loper Bright directly benefits an extractive industry just like the original decision in Chevron did.  Business interests once again trump the environment at the Supreme Court.  While the case was ostensibly about who has to pay for monitors on fishing vessels, Loper Bright ended up just a vessel for the court to do away with Chevron deference.

Hot takes are raining in on all sides as to whether the death of Chevron is the most consequential thing to happen or if it will be a big nothingburger.  They didn’t offer divination where I went to law school, so I will refrain from much prognostication.  All I’ll say is that I was struck (maybe bludgeoned is a better word …) by the idea that there is one singular “best” meaning of a statute, and that meaning can only be divined by reviewing courts.  What inevitably happens when lower court judges, unmoored by Chevron, come to different conclusions about what is best?  The Supreme Court takes so few cases a year, it will never be able to clear up every circuit split that inevitably pops up because the 5^th Circuit and 9^th Circuit are living in two separate realities.  In that case, which is “best”?

While I can buy that the judiciary is the better body to do purely legal statutory interpretation work, so much of what Chevron dealt with were questions where facts and specialized expertise do in fact matter.  Justice Kagan gives us a laundry list of these kinds of cases in her excellent dissent.  EPA and the other environmental agencies constantly deal with these kinds of interpretations and will be the agencies that suffer the most at the hands of activist judges without Chevron deference. 

To bring it back to Ohio, Justice Gorsuch gives us a great reason to doubt that judges always know best when it comes to science.  Despite explicitly reminding the reader that the court “reviewed over 400 pages of briefing and a voluminous record, held over an hour of oral argument on the applications, and engaged in months of postargument deliberations”, Justice Gorsuch repeatedly mixes up laughing gas (nitrous oxide or N₂O) with nitrogen oxides (such as NO or NO₂).  The opinion had to be corrected after the press caught wind of it!

As a final note – shout to Justice Kagan for adding more relevancy to my current research project!  She uses Fish and Wildlife Service’s interpretation of “distinct population segment” as it relates to populations of western gray squirrels as her lead example for the problems created by overruling Chevron.  I'm currently working on an article about intraspecific genetic variation and the Endangered Species Act – contrasting the Service’s decision to define the term “distinct population segment” via regulation with its decision to leave the also unclear “subspecies” undefined and thus determined on a case-by-case basis.  Stay tuned!

Another entry in the jurisprudence-of-sport canon (Updated)

Fischer v. U.S. wins the prize for "decision likely to gain media attention out of all proportion to its actual effect." The Court per the Chief (for Thomas, Alito, Gorsuch, Kavanaugh, and Jackson) holds that § 1512(c)(2) (enacted in Sarbanes-Oxley) is not a general obstruction statute but is limited to obstruction via doing something to things used in the proceeding, as in § 1512(c)(1). Because Fischer is a January 6 defendant, NBC News interrupted local programming to announce the decision, then say they have no idea how it will affect Trump or any other defendants. According to Ryan Goodman at Just Security, it affects at most 6 % of cases (many of whom may not push the issue) and it does not affect Trump.

Two points about the decision.

• The majority relies on two canons of construction--ejusdem generis (interpret a general catch-all term by reference to the specific terms preceding it) and noscitur a sociis (give a word more precise content by the neighboring words associated with it). I agree with Justice Barrett's dissent (for Sotomayor and Kagan)--neither applies to distinct provisions as opposed to a catch-all word at the end of a list within one provision. But what about in pari materia, requiring that distinct provisions on the same subject be read together? Wouldn't that provide a basis to understand the broad language of (c)(2) in light of the limitations in (c)(1)?

• The case adds a new entry into the jurisprudence-of-sport canon--and perhaps demonstrates the problems when judges talk about sports.

The Chief introduces the following rule in football: A player may not "grab, twist, or pull a facemask, helmet, or other equipment with the intent to injure a player, or otherwise attack, assault, or harm any player.” The Chief insists the "otherwise" clause cannot reach a linebacker trash-talking and hurting the feelings the quarterback, as the otherwise clause must be understood in reference to the dangerous conduct in the prior provision. Justice Jackson concurred to add that the rule cannot reach conduct at the other extreme--a player murdering or poisoning the quarterback would not violate the rule because such conduct is for the criminal law, not the rules of football.*

[*] I think this is wrong. If the linebacker shoots the quarterback, the game would stop and the linebacker would be arrested. But when the game resumes some time later, I would expect the refs to penalize the linebacker's team under this rule, as he did "otherwise attack, assault, or harm" another player. In a less absurd example, imagine the linebacker repeatedly punches the quarterback to the point of unconsciousness. The refs would apply the "otherwise attack, assault, or harm" rule to penalize him as part of the game in the moment, then the criminal law would step in following the game. (This is how it has worked in the rare cases in which states have brought criminal charges for on-field conduct).

Barrett has the better argument on this. The connection between the two provisions of the football rule is closer than between (c)(1) and (c)(2). The football rule reaches all physical conduct directed at and injurious of a player--the first part prohibiting conduct against the player's equipment and the second prohibiting other physical conduct against the player. Section (c)(1) targets objects in the proceeding while (c)(2) targets the proceeding itself.

Barrett then offers her own football rule (she did teach at Notre Dame, after all) and does a better job of it by coming up with a football rule that mirrors § 1512(c):

Any player who:

    (1) punches, chokes, or kicks an opposing player with the intent to remove him from the game; or

    (2) otherwise interrupts, hinders, or interferes with the game,

shall be suspended.

The first clause deal with attacks on the player (which would interfere with the game) while the second deals with acts other than attacking an opposing player that also interfere with the game, such as tackling a referee. Similarly, § (c)(1) deals with attacks on documents that interfere with the proceeding while (c)(2) deals with other acts interfering with the proceeding.

Again, maybe judges need to stop talking about sports.

Update: A reader points me to the opening scene of The Last Boy Scout with Bruce Willis, in which a running back shoots the defenders trying to tackle him as he carries the ball. I added the video after the jump.

 

A quick note on the debate

Before I dive into today's opinions:

I did not watch it because I knew how it would go: Trump would not answer the actual questions asked and would ramble and lie; Biden would sound and appear old and occasionally stumble over his words; and the media narrative would focus entirely on the latter while ignoring (or at worst downplaying) the former. From what I have read, the difference is one of degree rather than kind--Biden sounded much worse than anticipated, allowing for the additional narrative of "Biden should drop out" (five NYT op-eds make this point) as another reason to ignore Trump doing exactly what everyone expected him to do.