PrawfsBlawg

The presence of Justice Kagan

Gerard suggests Justice Breyer's absence explains the nastiness of the exchanges in Warhol (and deteriorating relationships among the Justices generally)--he "was a senior and avuncular person who liked to broker compromises. You can't easily replace the social function that sort of person fulfills." Josh Blackman says the same.

But wasn't the ability and desire to broker compromises one of Kagan's selling points, based on her time and efforts as HLS dean? Is she too young? Too junior to play that role on the Court (she is the median justice in seniority)? Too caustic a writer? Or does this involve a different type of compromise--not across ideological lines but across temperament, between two people who generally align.

Kagan on Velazquez and Bacon (and Lain on Cortada)

 Justice Kagan devotes the final ten pages of her Andy Warhol Foundation v. Goldsmith dissent (begin at p. 25) to illustrating the "dramatic" effects of the majority's (narrow?) approach to the first fair use factor. Using examples in literature, music, and art, she discusses historic examples of work building on prior work; her premise is that that the majority's approach would not see the later work as transformative and thus as fair use, because both create something to be sold.

On pp. 32-34, she compares Velazquez's portrait of Pope Innocent X with Bacon's "Study After Velazque's Portrait of Pope Innocent X" (commonly known as "Screaming Pope").

Miami artist Xavier Cortada's May It Please the Court depicts ten SCOTUS cases originating in Florida; the paintings hang on the walls of FIU College of Law. Here is the piece for Proffitt v. Florida, which riffed on Bacon's painting:

In Painting Constitutional Law (edited with my colleague Matthew Mirow), Corinna Lain (Richmond) wrote a wonderful essay on Proffitt and how Bacon's painting and Cortada's painting explore "pain, imprisonment, isolation and obfuscation," which constitute "larger themes of the death penalty as well."

If Kagan is right that Bacon's painting cannot happen, then neither can this.

 

 

More on FIRE

I hope I am premature in my anticipatory criticism of FIRE; time will tell. I follow FIRE's statements pretty closely and will update (and eat crow) if it says anything. But two further points:

1) FIRE recently changed its name from Foundation for Individual Rights in Education to "Foundation for Individual Rights and Expression." This does not strike me as mission creep; this represents an intentional branching and rebranding beyond the educational context. As I understand it, FIRE and its supporters believe the ACLU has wavered in its commitment to free expression in the face of contrary commitments to equality and The Trump Resistance; they see themselves filling the gap in protecting free speech throughout society. So this is, in fact, something on which they might weigh in.

2) FIRE's Twitter thread on the Chappelle story reveals not-happiness with the comedy club's choice--dropping everyone's favorite word and wondering whether the club would have "canceled Prince because Tipper Gore and the PMRC didn’t like ‘Darling Nikki’." That is, the thread takes the club to task for "canceling" a speaker in deference to lefty critics, where it would not have done the same to conservative critics of a lefty icon such as Prince. (The answer is probably not. But private actors get to make such choices and distinctions in the name of their expressive preferences).

But if it is wrong as a matter of a "culture of free speech" (their words) to reject Chappelle but include Prince--as FIRE clearly believes--it is wrong to criticize the club for rejecting Chappelle while ignoring the Dodgers rejecting Sisters of Perpetual Indulgence. FIRE might argue that a comedy club, as an "artistic and culture venue[]," carries a unique mission. That seems a thin reed, putting aside that sports teams and stadiums should qualify as "culture venues" that draw a lot more people than comedy clubs.

Backlash and the preferred first speaker

Fred Wellman's On Democracy podcast hosted Kevin Kruse (Princeton) to talk about his new book of essays, Myth America: Historians Take on the Biggest Legends and Lies About Our Past (2023). Later in the conversation, Kruse argues that we should not speak about "backlash" to social movements (race in the '60s or '70s or LGBTQ+ today). Backlash suggests a natural and inevitable force that blames the movement for the reaction--by pushing for its rights, Group A caused pushback. Rather, we must see the counter-movement as a similar, conscious, organized social movement that pursues a different, conflicting agenda. That is, the current wave of anti-LGBTQ+ legislation is not a "backlash" to those who pursued an agenda favorable to LGBTQ+ rights, something that just happened as a Newtonian reaction; it is a conscious choice by certain people to pursue an agenda unfavorable to LGBTQ+ rights. Perhaps the anti-LGBTQ+ movement only appeared because the pro movement appeared and enjoyed success; before that, they never thought or cared about LGTBTQ+ people. But that should not remove the intentionality and choice inherent in the anti-actions--they do not want LGBTQ+ people to have certain rights and they chose to pursue that agenda. Nor should it be framed as a "lesson" to the LGBTQ+ movement, showing why they should not have pushed for their rights in the first instance.

I am trying to figure out how this reframing fits within the preferred first speaker concept. I think they share a conceptualization--both "sides" in any situation share equal footing. One does not enjoy a superior right, each pursues a conscious and intentional agenda, and we should not understand one as causing the other.

Working through that.

Roberts to Durbin: Drop Dead

Chief Justice Roberts "respectfully decline[d]" Sen. Durbin's "invitation" to appear before a Senate committee to discuss the wave of ethics concerns surrounding the Court. The letter included a new statement of ethics principles, signed by the nine Justices. Citing "separation of powers concerns and the importance of judicial independence," Roberts (ever the wannabee-but-incomplete-historian, as per his Year-End Reports) recites a laundry list of the times in which the Chief Justice or President has testified before congressional committees, as all were on "mundane matters of judicial administration." Imagine a student whose answer begins and ends with "this has not happened before on a matter this serious, therefore it cannot happen now."

Of course, my students take class assignments more seriously than the Chief Justice of the United States takes a request from the Chair of the Senate Judiciary Committee about a public controversy that undermines the Court's shaky reputation. Roberts' statement rests on a series of unspoken principles that capture the political and constitutional moment.

• Because the Supreme Court is constitutionally required, it is not subject to any congressional control or oversight. Roberts could put off Durbin on the barest of reasons. Durbin declined to "invite" Justice Thomas because he knew Thomas would refuse to accept. Steve Vladeck has a thread on this, arguing for considering the separation-of-powers issue in its full historical context, not of the uniquely modern-and-unchecked Court.

• I do not know how the Court would react if Congress tried to bring back some control--for example, expanding the Court's mandatory docket or reinstating circuit riding (whatever that might mean without the old circuit courts). Would the Justices push back against this rejection of the Court as a complete government in itself, despite the historical pedigree?

• A subpoena is not coming, which is why Roberts does not fear escalation. Committee Republicans will not agree to a subpoena and Durbin lacks the political will to try. Anyway, Roberts would sue to challenge it, arguing that it lacks any legitimate legislative purpose (because of separation of powers and SCOTUS's special place and the historical fact that no CJ has been subpoenaed). At worst, he ties it up until the end of the Congress. At best, no district judge would deny that injunction. Recall Roberts' opinion in Mazars and the deep distrust of congressional (as opposed to judicial) subpoenas. (Side point: I remain unable to square Speech or Debate immunity with the right to pre-enforcement challenges of subpoenas).

• The triumph of the Levinson/Pildes separation-of-parties thesis, introduced in 2006 (another lifetime) but truer than ever. Madison and Hamilton's assumed that Congress would destroy a Chief Justice and Court that rejected Congress' constitutional role in this way--Congress acted as an institution to check other institutions. But the introduction of organized--and ideological--parties destroys that framework. Senate Republicans do not see the (Republican-appointed) Justicses' actions as the problem to be investigated and checked; they see their Senate colleagues' actions as the problem to be resisted, making life difficult for their ideological compatriots in the other branches.

Social media and state action

The court granted cert in a case from the Ninth Circuit (finding state action) and a case from the Sixth Circuit (finding no state action and taking a very different analytical approach).

Beyond the conclusion, I am concerned for how the Court approaches this. Some lower courts apply a "close nexus" test, which usually applies to purely private actors engaging in private conduct having some government connection or requirement. The analysis here should be different, where the defendant is a government employee/official and the question is whether that official status enabled his conduct. These cases should look more like rogue or off-duty cops, as opposed to labor unions collecting fees through a government-controlled process. It is a subtle difference, but it is more than semantic.

On the other hand, dammit--the publisher said no substantive changes on these edits.

FIRE adopts preferred first speaker

According to FIRE Executive VP Nico Perrino, in an op-ed endorsed by the Chief of the LAPD. Here is the central basis for the claim:

Protesters have every right to engage in peaceful, nondisruptive protest. But they do not have the right to take over someone else’s event and make it their own. This is a basic point, and we understand it in almost every other context. Nobody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors or to scream at a public library book reading.

Just because the public is invited to attend an event — and sometimes to speak during a Q&A period — does not make it the public’s event to disrupt or transform as it pleases. Your distaste for a speaker doesn’t grant you a right to prevent a willing audience from listening to that speaker.

There must be places in a free and pluralistic society where groups can freely associate and share ideas without first seeking approval from a crowd of hecklers. Colleges are such spaces. It’s the very reason they exist.

The first speaker has full First amendment rights and can say or not say what he wants. Counter-speech is proscribed--peaceful (must all speech be "peaceful') and not interfering with the first speaker (who presumably can speak over the counter-speaker). Maybe the counter-speaker has a right to speak during Q&A. But the first speaker controls who gets to speak in that window and presumably can ignore any counter-speaker or any audience member who wants to challenge what he says.

Perrino works off the paradigm of the Judge Duncan/Stanford debacle--invited speaker in a reserved speaking space on a college campus with an audience space that likely is a non-public forum.I see three big problems with Perrino's argument. But he draws from that paradigm a general principle: counter-speaking to and over a speaker in the moment is not protected speech.

I see several problems with that focus and that conclusion.

 

1) Perrino may be broadly right about that paradigm. He tries to bolster the point that "[n]obody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors," bolstered by a recent story about audience members singing "I Will Always Love You" during the finale of the show The Bodyguard.

Rather than "heckling is never protected speech," a better framing is "heckling is protected speech, but it yields to content-neutral rules in a forum." This may seem semantic, but semantics matter. A rock concert is protected speech, although it may have to follow neutral noise regulations; driving around town playing music and speaking through a speaker is protected speech, although it may yield to neutral noise regulations. If heckling is never free speech,  it remains unprotected when the forum-and its rules and expectations--changes. While the audience should not sing along at a musical, the audience does (and the performers expect the audience to) sing along at a rock concert in the same theatre. Cheering speech at a soccer match looks different than cheering speech at golf tournament.

2) The premise that "heckling is never protected speech" affects what counter-speakers must do and the form of counter-speech FIRE's solution is the alternative program--find a room elsewhere and express your ideas to a separate audience. But that is not counter-speech or protest, as it does not allow counter-speakers to be heard by, respond to, or protest their target.

Counter-speakers could instead take to a nearby public forum (e.g., a public campus space near the building containing the reserved space) and protest there. But Perrino's view forecloses that option. If heckling is never protected speech, then counter-protesters cannot heckle in a traditional public forum; the original rally or demonstration remains s "someone else's event" that counter-speakers "take over" (at least to the extent they are loud and can be heard). That traditional public forums allow for competing groups to be heard or that the rules account for "prolonged, raucous, boisterous demonstrations" does not appear to matter.

Worse, it carries to speakers and counter-speakers occupying the same public forum. Thus, counter-protesters on the of the U Va sidewalks cannot outnumber and outspeak the Proud Boys walking on the campus streets chanting "Jews will not replace us." Pro-equality protesters on the sidewalks around city hall cannot outnumber and outspeak the Klan or Nazis holding a rally on the steps. Students at FIU cannot outnumber and outspeak the bigoted "preacher" using the quad. This is an impoverished view of the role of counter-speech.

3) Perrino's analysis is incomplete within his reserved-classroom paradigm because he does not define "peaceful" or "nondisruptive." If peaceful means non-violent, the word does nothing--neither original nor counter speech can be violent. If peaceful means silent or nonverbal, that proves too much. Audience members can react out-loud to speech--booing, hissing--up to some undefined point of disruption. (Stanford Dean Jenny Martinez recognized this in her post-Duncan letter). No one has defined disruption--whether it means preventing the reserved event but does not include momentary reactions that cause the speaker to pause or delay but that do not undermine the event.

Positive non-silent reactions--applause, laughter, cheers, snaps--may cause the speaker to pause or delay; speakers build those delays into their speeches. If the forum rules prohibit non-silent reactions, they must prohibit positive and negative reactions. Otherwise, the rules cease to be viewpoint neutral, as required in a non-public forum.

4) Perrino doubled-down in a Twitter thread, arguing "[i]f you take over someone else's event, call it what it is: punishable civil disobedience, not free speech." On this point, I would recommend Jenny Carroll's (Alabama) forthcoming Yale L.J.  article arguing for a First Amendment civil-disobedience affirmative defense to crimes (e.g., trespassing) arising during protests; the idea is to allow juries to consider the expressive nature of the person's (prohibited) conduct and acquit accordingly. I wonder how the defense would apply in the context of a disruptive counter-protester.

5) That the police chief seized on the simplest version of Perrino's argument--based on the headline that Perrino may not have written--raises further red flags.

6) Perrino (and FIRE) overuse "heckler's veto." Perrino criticizes those who argue that hecking is "'more speech,' not an attempt to carry out a 'heckler’s veto' on the speaker." A heckler's veto occurs when government silences a speaker out of fear of the audience reaction to speech. It might extend to a complete prohibition on a speaker (e.g., the speaker must cancel the event) where government officials fail to enforce a forum's regulations against a hostile audience; Duncan could have become a heckler's veto had the students pushed further. Absent government action and the speaker being prevented from speaking, it is neither fair nor appropriate to call counter-speech a heckler's veto. This framing accepts and instantiates the preferred speaker. It assumes a  "first" speaker and gives him preferred status. It assumes that one speaker has priority, that anyone on the other side is a heckler rather than a speaker, and they censor, rather than counter-speaking or presenting competing ideas, censor. The Proud Boys at U Va have priority over their critics, their critics are not speakers, and their critics do something wrong by appearing in larger numbers and  uttering their message more forcefully.

7) I have made this point before. Under Perrino's argument, the pro-Ally/anti-Nazi patrons of Rick's engaged in a heckler's veto or acted as censors here. Or the rules of Rick's as a forum are different than the rules of a classroom at Stanford Law School. But the "heckling is not free speech" cannot stand as a blanket principle.

 

I plan to return to the preferred first speaker this summer, although I have been struggling to figure out how to approach the problem. This offers some organizational ideas.

Prosecutorial Discretion and the Indictment of Donald Trump

After many days of leaks from the grand jury and anxious speculation, the news broke last night that a Manhattan grand jury indicted Donald Trump.  The indictment remains sealed, and so we do not yet know the precise charges, but the many leaks from the grand jury indicate that the case revolves around payments to Stormy Daniels.

News of the indictment has sparked an outpouring of intense and diametrically different reactions.  On the left, people are delighted that Trump will face criminal charges; they think Trump has been engaged in years of criminal misconduct, and they see this as a moment of reckoning.  On the right, people are outraged by the charges, insisting that they are politically motivated and legally suspect.  Both of these reactions have something in common—they both touch, to some extent on the topic of prosecutorial discretion.  The delight from the left rests on the premise that law enforcement had for years looked the other way, and failed to hold Trump (like other powerful people) accountable.  The outrage on the right is based on the assumption that the Democratic Manhattan DA targeted Trump because he is a popular Republican politician.

I don’t want to wade into the merits and demerits of these opposing views.  Instead, I want to point out that, to the extent that they talk about prosecutorial discretion, both are likely correct.  People on the left are correct that powerful people often do not face consequences for acting illegally.  Prosecutors are loathe to bring charges against wealthy and powerful people because those people have the resources to fight back and because the prosecutor will look bad if the case falls apart.  Examples of such cases publicly falling apart abound—from Cy Vance’s failed prosecution of DSK, to Mike Nifong’s pursuit of the Duke Lacrosse team, and Marilyn Mosby’s repeated failed prosecutions of Baltimore police officers in the death of Freddie Gray.  Examples of prosecutors deciding that the hassle isn’t worth it are more difficult to come by because the public usually doesn’t find out about cases that aren’t brought.  But Alex Acosta’s decision not to bring any federal charges against Jeffrey Epstein gave us a rare public glimpse into that dynamic.

People on the right are correct that prosecutors often make decisions for political reasons.  The failed cases above were likely brought with the expectation that a successful prosecution would be helpful in the DA’s next election.  But even when local prosecutors aren’t thinking about their own political future, they will pursue cases to “send a message” to the public.  Thus, if you are a celebrity whose criminal conduct was very public, you may find yourself treated worse than the average defendant so that the prosecutor can appear tough on crime.  Just ask Martha Stewart and Plaxico Burress. 

As the above paragraphs explain, prosecutorial discretion—like all forms of discretion—inexorably leads to similarly situated people being treated differently.  Although equal treatment is the ideal, our legal system often relies on discretion because it is too difficult to specify ex ante what all of the relevant considerations ought to be.  This is one reason that the Supreme Court has given in stating that judicial review of prosecutors’ charging discretion is inappropriate. 

Because we cannot ensure equal treatment through ex ante rules, one might think that we could attempt to do so ex post.  This is what Jim Comey sought to do when he explained why criminal charges against Hillary Clinton were inappropriate.  He explained that DOJ had combed through the previous cases involving mishandling of classified information, identified the enforcement criteria that were used in those cases, confirmed that those criteria were not present in Clinton’s case, and thus determined charges were not warranted.  (If I recall correctly, the enforcement criteria were large quantities of material and/or dishonesty or obstruction on the part of the defendant.  Fun fact:  While neither of those criteria were present for Clinton, both are present in the Mar-a-Lago documents investigation against Trump.)

It might be possible to conduct the same sort of ex post inquiry in the Manhattan case against Trump.  The folks at Just Security have pulled together a document with a helpful spreadsheet of business records cases, which could allow readers to compare the Trump case to previous cases that have been pursued.  Unfortunately, documents like this are limited—they identify only cases that were pursued; they do not and cannot identify similar cases that the Manhattan DA’s office decided not to pursue.

Ultimately, that illustrates why modern prosecutorial discretion sits uneasily with our commitment to the principle of equal treatment under the law.  As a country, we have enacted broadly written criminal statutes, which delegate enormous enforcement authority to prosecutors.  And we have not created any mechanisms to provide transparency into how that authority is exercised.  We know that prosecutors routinely decline to bring charges when they have probable cause that a crime has been committed, and yet we do not know much of anything about how they use that power.

The indictment of a former president (and current candidate for the office) was always going to be a political firestorm.  But our failure to grapple with the black box of prosecutorial discretion only adds fuel to the fire.

Stanford, preferred first speakers, and the nonsense of "civil discourse"

Grading has denied me time to write about the Stanford debacle. I somewhat was waiting for Ken White to cover it, expecting that I would share his take--and I do.

I will add the following: This demonstrates why the "civil discourse" trope--students should not protest, they should sit quietly and politely listen to the speaker, then engage with the speaker in a "Platonic dialogue"--is and always has been bullshit. The speaker bears no obligation to engage with the questions. And Judge Duncan did not engage--including with actual, thoughtful (if pointed and hostile) questions. When someone asks the speaker about something he wrote (such as the opinion refusing to allow a prisoner to use his proper pronoun), "read what I wrote" is not engaging in civil discourse. And acting as if he was not on the panel is certainly not. That the questions and questioners were hostile does not excuse non-answers; it shows how those who censor speech use "politeness" and "civility" to silence counter-speech.

I like Ken's framing of the point: "The protesting students’ rights and interests are neither inferior to nor superior to the interests of the FedSoc and Judge Duncan. Policing the civility of the response to speech and not speech itself is incoherent nonsense. Put another way, if you say “fuck you” to your classmates, they may say “fuck you” back. If you set out to provoke a response, put on your big boy pants when you get one."

I also reject the framing of this as a "shouting down" issue. Yes, the protesting students prevented him from speaking, in violation of Stanford's forum policy. But if the students had done what the policy allows and urges--oral protests outside the building, silent protests through t-shirts and signs inside the room--Duncan would have responded the same way. He went to Stanford itching for a fight--not sure whether I buy the theory that he sought to raise his profile for a SCOTUS appointment--and would have been as dismissive and rude to silent protesters. No student should have the temerity to protest him--free speech means sit there and listen to what he has to say.

Chris Walker (now at Michigan) visited FIU this week. He shared that when he taught at The Ohio State University, Fed Soc invited a speaker from the ADF. OutLaw held a bake sale outside. The speaker bought something. That is not discourse. But it is effective protest.

DeSantis exposes how much First Amendment doctrine he hates

Ron DeSantis on Tuesday hosted a roundtable on "legacy defamation practices" which illustrates the breadth of his campaign against free speech (that he does not like) and how most observers and press reports misunderstand that.

• Someone attacked "actual malice" as an "invention of the Supreme Court inconsistent with the way the Founders thought about libel and freedom of speech." The program included Nick Sandmann as an example of a victim of defamation. But Sandmann did not lose because of NYT or actual malice; he was a private figure who had to prove negligence. He lost because of other aspects of the defamation regime--the statements were not provably false assertions of fact as opposed to opinion. That does not change because NYT goes away. Another panelist lost a case because the judge found the (supposedly deceptively edited) report neither false nor misleading, another piece of defamation law with a long history and having nothing to do with actual malice.

• An important response to the attack on NYT should emphasize the case's facts and historical context: A coordinated campaign of defamation suits by government officials to silence and suppress the civil rights movement by using defamation law to prohibit criticism of government, analogous to seditious libel. Similar campaigns become possible if the Court eliminates NYT--government officials or powerful privte individuals to sue critics into silence. Make DeSantis own this point; he likely will do so, happily. But it should be part of the conversation.

• DeSantis purported to be fighting for the "little guy" because he has a platform to defend himself. But he then took off on the "Russia collusion hoax" for its reliance on anonymous sources. If anyone had a platform to defend himself against the media, it is the target of the Russia collusion hoax (whose name, of course, went unmentioned). He also complained about the coverage of Brett Kavanaugh--again, a fairly powerful individual with a national platform through which to respond to critics.

• Moreover, the First Amendment protects the right to speak anonymously, which should include the right of others to report or repeat that anonymous speech. DeSantis seems obsessed with anonymous speech as a unique evil. It is of a piece with a drafted-but-never-introduced bill that would have presumed statements from anonymous sources to be false, among other likely constitutionally invalid changes to defamation law.

Between this, pulling books from the library, targeting drag shows as obscenity, dictating what speech private companies must carry, and limiting the topics that can be taught or discussed in the classroom (in the name of protecting ideas), DeSantis genuinely seems to be running for a president on a campaign of othering and censoring speech and speakers.

More on Warren-DeSantis and the court's ill-advised analysis

I wrote last week about the district court decision in the lawsuit between the Hillsborough (FL) County DA and Florida Governor Ron DeSantis, arising from the latter suspending the former. I argued that the court made two legal mistakes: 1) Framing the case as DeSantis violating Warren's First Amendment rights in considering protected speech where he would have reached the same conclusion based on something other than protected speech and 2) Pronouncing that the suspension was inconsistent with state law while refusing on Eleventh Amendment grounds to issue an injunction ordering reinstatement. I also suggested Hinkle--whether intentionally or otherwise--provided Warren a weapon in the political controversy.

That last thing happened more quickly than I anticipated. Warren last Wednesday sent (and publicized) a letter to DeSantis urging the governor to voluntarily reinstate him. Warren frames the situation as follows: The court found as a matter of fact and law that the suspension violated the U.S. and Florida constitutions. Although not ordering Warren's reinstatement "in deference to federalism," the court called on DeSantis to "easily set [that violation] right" by recognizing that "the facts matter" and that he should not have removed Warren. DeSantis thus should follow his oath and obey the law by rescinding the suspension. This is a political stunt (as was the entire lawsuit), leading with the court's words as if they provide the final answer on these issues.

I explained where the court went wrong. But Warren's tendentious framing raises that error to another level.

The Eleventh Amendment (as courts apply it) does not create discretionary deference to federalism allowing a court to offer binding legal conclusions while declining to issue any legal remedy. It imposes a jurisdictional bar to adjudicating state-law issues. The court had no power or basis to consider the state-law validity of the suspension. It dismissed Warren's state-law claim as improper under § 1983/Ex parte Young. Nor were the state-law issues built into the federal issues. Adjudicating the First Amendment claim did not turn on the accuracy of the state law grounds--for purposes of whether DeSantis' decision rested on something other than Warren's protected speech, the question is whether DeSantis believed Warren adopted blanket non-prosecution policies, not whether DeSantis' beliefs were true or accurate.

Warren's letter treats the court's state-law analysis as akin to a declaratory judgment--the court issuing a jurisdictionally appropriate order that DeSantis violated state law, but finding that declaration sufficient and declining to issue further relief in deference to competing values. That is, the court provided a valid statement of law designed to persuade the defendant to change his behavior going forward, while reserving the "strong medicine" of an injunction for discretionary reasons and with faith that DeSantis will comply with the decision. DeSantis must "follow the law" as the court declared it.

This is wrong.  The Eleventh Amendment strips courts of jurisdiction to issue all remedies, not only injunctions. The court had no more power to issue a DJ based on violations of a state-law rights than to issue an injunction based on a violation of state-law rights. That bar precludes any consideration of state law or whether DeSantis' conduct comported with the state constitution--the court acted beyond its power in making these pronouncements and they should have no legal force. Again, this goes beyond dicta--it is a court speaking words without the power to act as a court.

But those words provide Warren's first line of attack in the press and in politics.

Jack Phillips loses on defense, no one cares

Jack Phillips and Masterpiece Cakeshop provide the response to complaints about SB 8 (and other "vigilante federalism" laws) that resist pre-enforcement offensive federal-court challenge and consign rights-holders to defensive litigation in state court--expecting the state court to properly vindicate federal rights or hoping for SCOTUS review at the end of the multi-stage process.

Phillips finds himself in that position, facing a private civil action under Colorado law from a transgender customer denied a custom cake. Phillips lost in the trial court and the court of appeals affirmed, concluding that the cake (pink on the inside, blue on the outside) carried no intrinsic message apart from how the customer planned to use it (a celebration of the anniversary of her m-to-f transition).*

[*] And Masterpiece did not know about that use when the customer ordered the cake and the store initially agreed to make it.

Phillips believes his constitutional rights are as obvious and as violated as those seeking reproductive care in the face of SB8 or trans athletes seeking to compete. Yet no one complains about Autumn Scardina using civil litigation against his (perhaps) protected conduct or acting as vigilante against Phillips. The difference remains that the people opposing SB8 and other vigilante laws disagree with his legal position and do not mind people suing him into oblivion. Procedure cannot turn on such substantive differences.

On the merits, this case bolsters my thoughts after the 303 arguments: These cases superimpose a complicity element on compelled speech. The messages made by the challengers--"Jack and Jack are getting married," "pink-and-blue cake"--carry no political message. It is what the customers do and say with that message after it is made--something untouched by the challengers--that matters. So the First Amendment argument must be that an anodyne, identical message is put to an end with which I disagree. That differs from the core compelled-speech case.

Bizarre (and arguably advisory and ultra vires) opinion in Warren v. DeSantis (Slight edit)

The case arises from Florida Governor Ron DeSantis suspending Hillsborough County (Tampa) State's Attorney Andrew Warren. The court held that DeSantis considered six things in suspending Warren--three impermissible under the First Amendment and three permissible under the First Amendment. DeSantis would have suspended Warren based on the latter permissible grounds had he not considered the former impermissible grounds; therefore Warren's retaliation claim fails under Mt. Healthy. DeSantis violated Florida law in suspending Warren, because those federally permissible grounds were impermissible under state law, because the facts did not show incompetence or neglect-of-duty. But the Eleventh Amendment* prohibits federal courts from granting relief against state officials for state-law violations. Thus, although the court makes a big production of announcing that DeSantis violated state and federal law, it grants no remedy and dismisses Warren's claims.

[*] Really the limits of § 1983, but that ship sailed.

This is a bizarre decision.

• I doubt it is proper for the court to say DeSantis "violated the First Amendment." Constitutional violations occur with adverse enforcement action, not with thoughts or ideas not acted upon. The adverse action here was suspending Warren. If DeSantis would have taken that adverse action regardless of anything related to Warren's protected speech, he did not violate Warren's constitutional rights, at least as we define the scope of the First Amendment in this context. Compare a racist cop who arrests a Black person on a charge for which he has probable cause; the arrest is valid because of probable cause, regardless of any racist ideas or statements the officer makes. We may disagree with that doctrine. But it, for the moments, defines when a government official violates someone's constitutional rights.

• The court should not have declared the state-law validity of the firing. This goes beyond mere dicta or even an advisory opinion. Warren brought a state law claim, which the court dismissed under Pennhurst (again, better if § 1983, but whatever). The propriety of the state-law reasons were not before the court. Worse, if the Eleventh Amendment, as elaborted in Pennhurst, strips courts of jurisdiction over state-law issues, the court pronounced on issues beyond its jurisdiction.

• I said the court should have abstained under Pullman and Hinkle's approach to the opinion confirms this. The case always turned on the suspension's state-law validity; the First Amendment provided a sideshow. The court did what Pullman seeks to avoid--passed on unnecessary federal constitutional issues in the face of controlling state-law issues.

• It is hard not to read this as a political shot for Warren to use in the media. He can wave the opinion and say a federal court backs his view that DeSantis ran roughshod over his First Amendment rights. It also represents a political shot at the Florida Senate, which will hold a "trial" on the state-law propriety of the suspension, affirming DeSantis' decision or reinstating Warren. Hinkle has created a detailed legal and factual record, particularly finding that DeSantis' insistence that Warren had a blanket non-prosecution policy was nonsense and that he knew (or at least should have known, had he looked) it was nonsense. This helps Warren in the press and in the public should he lose before the Senate. Warren can compare this opinion to any Senate decision finding the suspension warranted and use it to argue that the Florida Senate made an incorrect, politically motivated decision--"see, we know the Senate made a politically motivated decision, because here is a federal judge showing why the suspension violates federal state law." Hinkle hints at this motive by referring to the "heavily partisan Florida Senate."

The Trustworthiness of American Lawyers (Part V)

The following post comes from Michael Ariens (St. Mary's), the final in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).

Part of the reason for the rejection of social trustee professionalism was ideological. Lawyers had long believed that zealously representing one’s (private) clients was essential to fulfilling the rule of law. The zealous advocate was, in the liberal imagination, opposed by another (and equally capable) zealous advocate. After assessing the evidence presented (and tested on cross-examination) by the lawyers for both parties, and hearing the closing arguments made by opposing counsel, a neutral decision maker (judge or jury) issued a verdict. The lawyer thus served an amoral and modest role within a larger justice system. The instrumental justification rejecting social trustee professionalism was economic; in 1980, median lawyer income, in real dollars, was less than it had been in 1970. This decline in income was related in part to a great expansion in the number of lawyers, as Baby Boomers headed to law schools in record numbers. It was also partly a result of high inflation during many of those years, and partly a consequence of changes in the private practice of law.

In difficult economic times, social trustee professionalism was viewed as dispensable by some; for others, the increasing interest in improving law firm income statements, in part by firing partners categorized as “dead weight,” was evidence of a professionalism crisis. “Professionalism” did not enter Black’s Law Dictionary until the publication in 2004 of its eighth edition, in which it was defined as “the practice of a learned art in a characteristically methodical, courteous, and ethical manner.” By then, the “crisis” had been in existence for two decades. One argument made those emphasizing the non-market-base responsibilities of American lawyers was to make “commercialism” and “professionalism” two variables in a zero-sum contest. In this view, commercialism was an effort by lawyers to maximize income, even at the expense of one’s clients. Only a return to professionalism would make lawyers more trustworthy power brokers in American society.

The professionalism movement consisted of several aspects. One effort of the ABA, beginning in the 1990s, was to foster the “core values” of American lawyers. A lawyer’s embrace of the profession’s core values demonstrated that lawyer’s trustworthiness. Core values were initially framed by ALI Director and legal ethics scholar Geoffrey Hazard as comprising “loyalty, confidentiality, and candor to the court.” A 1992 effort known as the MacCrate Report listed four fundamental values of the profession: competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development. A third publication (and second by an ABA committee) listed independence of professional judgment, confidentiality of client information, and client loyalty through avoiding conflicts of interest. The ABA House of Delegates in summer 2000 adopted a resolution listing six core values, from undivided loyalty to competence, client confidences, avoiding conflicts of interest, serving the public profession of the law and promoting access to justice. By the early 2000s, combined lists of professional core values as offered by different bar association entities and bar leaders had swollen the number of such values to eighteen.

As one perceptive critic noted, the lawyer’s loyalty had always been divided by the rules of lawyer ethics. The core value of loyalty, then, made sense only when defined more finely and contextually. One problem with the core values debate was the malleability of the concept. Core values were pitched at a high level of generality; this was necessary in part to avoid conflicts among different core values. The foundation of the idea of core values was unstable. This made it impossible to use core values to generate public (and client) trust of the work undertaken by lawyers.

American lawyers have always been more feared than loved. The public knows lawyers exercise power, and know that they usually do so on behalf of their paying clients. It seems that it is not solely that lawyers are paid by clients to exercise power that leads to public distrust. Instead, it is that lawyers do so while simultaneously arguing their actions are intended to serve the public as well as one’s clients.

The Trustworthiness of American Lawyers (Part IV)

The following post comes from Michael Ariens (St. Mary's), the fourth in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).

In a 1906 essay, lawyer Charles F. Chamberlayne noted increasing numbers of lawyers warned “that the client’s money too largely dominates professional morale; that rising tides of commercialism stifle the cry of its outraged conscience.” Did the ABA’s 1908 code of ethics alleviate this problem? In a 1909 essay, Chamberlayne thought not. The “panacea” for “low idealism” within the profession was a code of professional ethics. This would not do: “To the fervent cry for the bread of moral life a stone of formalism and negation … has apparently been given.” It was “ideals,” not “thou-shalt-nots,” that lawyers needed. Despite Chamberlayne’s critique, the ABA’s code of ethics, consisting of an oath and thirty-two Canons, was quickly adopted by many state and local bar associations. By 1924 an ABA committee concluded “almost all” state bar associations had adopted the ABA’s Code. In practice, this success meant little. From its adoption beyond the end of World War II in 1945, the ABA Code had little influence on the ineffectual and haphazard lawyer discipline process among the states.

When the ABA Code was supplemented in 1928, the oath was de-emphasized in favor of the Canons. (This required the ABA to add a canon regarding the duty to keep client confidences, which duty in 1908 was placed only in the oath.) Between then and the late 1960s, the ABA tinkered at the margins. This tinkering was closely related to an aversion to any communication by a lawyer that might be deemed advertising. Advertising meant that lawyers received money for their work, and elite lawyers found that idea both untasteful and unprofessional, demonstrative of a lawyer’s untrustworthiness. Thus, as the Great Depression wreaked havoc on lawyer income, non-elite lawyers were trustworthy only if the public believed they were independently wealthy.

The legal services economy in the post-World War II era (1946-1969) was extraordinarily favorable to lawyers. Real median income of lawyers, expressed in 1983 dollars, grew from $25,415 in 1947 to $35,300 in 1959 to $47,638 in 1969. During this time of plenty, the ABA decided to replace its 1908 Code with what became the 1969 Code of Professional Responsibility. The 1969 Code consisted of nine broad Canons, “axiomatic principles,” followed by Ethical Considerations, “aspirational in character and [which] represent the objectives toward which every member of the profession should strive.” Lastly, the Code included black-letter Disciplinary Rules, which were “mandatory in character.” The Ethical Considerations were presented as the heart of the Code, for they served as guides to the fulfillment of the lawyer’s professional responsibilities. The distinction between aspirational considerations and mandatory duties came from the writings of Professor Lon L. Fuller. Fuller had led a joint committee of the ABA and the Association of American Law Schools in the mid-1950s. Its Report, published in 1958, warned lawyers that following the rules of lawyer ethics was “not the equivalent to the practice of professional responsibility.”

The ABA adopted the proposed Code in 1969 without amendment. Within three years most states had adopted it as law. Yet the ABA called for a new code of lawyer ethics in 1977. What happened?

University of Texas professor John Sutton principally drafted the Code. He criticized parts as “at worst obstreperous and obstructionistic.” The traditional bias found in the Code included its rabid objection to communications from lawyers to the public, which one critic found created an “ironic contrast” to the goal of access to counsel trumpeted by Canon 2. Additionally, significant aspects of the Code were premised on protecting the economic position of lawyers, not the economic and other interests of clients. Finally, the Watergate crisis of 1972-1974 placed lawyers under a harsh and unforgiving light.

By the late 1970s, American lawyers were divided on the premises of rules of lawyer ethics. One group, which predominated in the Kutak Commission that drafted the new rules, believed ethics rules were premised on the idea of the lawyer as a social trustee. The other group desired a set of bottom-line rules in support of the “basic posture of ‘my client, first, last and always.’” A lawyer as social trustee took into account, when representing one’s clients, of “a determinable public interest.” The lawyer was thus autonomous from one’s client, with the discretion the choose “not to do what should not be done.” The basic posture focused on serving one’s clients, largely ignoring any duty to comprehend the existence of any determinable public interest. By the time the ABA adopted the Model Rules of Professional Conduct in 1983, lawyers promoting the “basic posture” had won the day.

The Trustworthiness of American Lawyers (Part III)

The following post comes from Michael Ariens (St. Mary's), the third in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).     

“Brains were the cheapest meat in the market.” So allegedly said Jay Gould, late nineteenth century Wall Street speculator, railroad owner, financier and, to some, robber baron. One of Gould’s many “brains” was David Dudley Field, one of the most prominent American lawyers of the nineteenth century. Field, his son Dudley, his partner Thomas Shearman, and dozens of other lawyers were handsomely paid by Gould and “Diamond” Jim Fisk for their work in the “Erie wars,” a series of legal battles from 1868-1872. These cases overlapped the indictment of William “Boss” Tweed, leader of Tammany Hall and functionally ruler of New York City government. Field also represented Tweed, after unsuccessfully seeking an appointment to prosecute him. For Field, his actions in representing Gould, Fisk, and Tweed were all within the bounds of conscience. His lawyer-critics claimed his behavior should subject him to disbarment, or failing that, to some type of censure by his fellow lawyers. These critics argued Field had represented his clients beyond the limits of permissible adversarial zeal.

Field made himself an inviting target to his critics because his post-war behavior appeared contrary to his antebellum statements about the ethical limits of zealous advocacy. The 1850 Code of Civil Procedure, popularly known as the Field Code because he largely drafted it, revolutionized pleading and practice. It also included a list of ethical duties lawyers to which lawyer were to adhere. Among those duties were to maintain only “legal and just” proceedings and to “use such means only as are consistent with the truth.” Critics suggested Field failed to live up to his own words.

Field initially represented the not-yet-named robber barons against Cornelius “Commodore” Vanderbilt, who appeared to “own” a New York Supreme Court (that is, trial court) judge, George Barnard. Vanderbilt sought to purchase the Erie; Barnard issued injunctions in Vanderbilt’s behalf. Field obtained counter-injunctions, including making Barnard a defendant and enjoining him from enjoining Vanderbilt. Round and round it went until the parties reached a monetary settlement that nearly sank the Erie. Soon thereafter, Barnard was ready to do the corrupt bidding of Gould.

In 1869, the Erie attempted to take over the Albany & Susquehanna (A&S) Railroad. Among other actions, Barnard issued an arrest warrant for several of its executives, including its lawyer. The arrest of the A&S’s lawyer at its annual meeting in Albany was a regrettable first in legal annals. Another New York Supreme Court judge later declared the Erie’s lawyers had “fraudulently procured an order for [the] arrest” of A&S’s officers.

In late 1870 Field’s behavior was criticized as unethical by several unconnected critics. The more acute limited their attacks to assessing whether Field had acted beyond the limits of adversarial zeal in representing the Erie. Specifically, had the law firm of Field & Shearman acted unethically by repeatedly seeking injunctions from Judge Barnard?

The American Law Review, a Boston-based periodical then co-edited by future Supreme Court Justice Oliver Wendell Holmes, Jr., joined Field’s critics. It called for an immediate examination of “the charges of unprofessional conduct, fraud, and perhaps crime, made in the most respectable quarters, against one of its members, Mr. David Dudley Field.” These calls continued for over two years, and for each criticism Field offered a rejoinder, including obtaining a series of letters from lawyer-defenders. Though intended as exculpatory, none of the twelve letters specifically joined issue with Field’s critics: had Field’s behavior in seeking injunctions from Barnard, when Field’s partner Shearman had credibly accused Barnard of corrupt behavior, itself been corrupt? Further, had the firm acted unethically in obtaining an arrest warrant against A&S’s lawyer? Efforts to disbar or censure Field eventually went nowhere. Barnard was impeached, convicted, and removed from office for corruption regarding his conduct in the Erie wars.

The aftermath of the Field debate suggested that allegations of dishonor retained their sting. However, allegations of bad conduct and defenses to such allegations were more often framed in light of unprofessional behavior. Field himself defended his acts by claiming the lawyer “should defend his client per fas, and not per nefas” (by right, and not by wrong), and he had acted in this light. Such a defense provided a lawyer a clear conscience, which was sufficient to justify the lawyer’s actions. Field and his opponents simply disagreed about which side of the line Field’s conduct fell, insufficient by itself to make the critics’ case.

Beginning in the early 1880s, Alabama lawyer Thomas Goode Jones began drafting a code of ethics applicable to members of the Alabama State Bar Association. It was finally readied and adopted in 1887. Two other voluntary state bar associations quickly adopted the Alabama code. After a respite, nine others joined in, beginning in the late 1890s. These latter bodies did so at a time of transformation. Between 1870 and 1890, the number of lawyers had tripled, an increase outstripping the doubling of the nation’s population. Additionally, the Panic of 1893 had a lengthy and adverse impact on lawyer income. Lawyers writing in general and legal publications asked, can a lawyer be honest and successful? Given the economic stresses on many lawyers, the answer to this question was uncertain. Lawyers complained about pettifoggers, shysters, ambulance chasers (coined at the end of the nineteenth century) and, on the corporate side, “corporation tricksters,” lawyers who represented railroads and other defendants in personal injury matters.  

Beginning in 1897, the idea of written ethical codes was revived. The state bar associations that adopted such codes had little in common demographically, geographically, or otherwise. What they may have had in common was a crisis of professional identity. In a rapidly changing society, what were the responsibilities of lawyers to their clients, their communities, the courts, and other lawyers? As bar associations considered what rules to adopt, the American Bar Association, in 1905, agreed to look into drafting a code. The next year it formally decided to do so, and it adopted a code of ethics in 1908.

The Trustworthiness of American Lawyers (Part II)

The following post comes from Michael Ariens (St. Mary's), the second in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).     

Perhaps the most eventful experience in David Hoffman’s life occurred when he was nearly lynched for actions related to his opposition to the War of 1812. Hoffman and other Federalists battled supporters of the war, resulting first in the deaths of several supporters, and, after the arrest and jailing of Hoffman’s compatriots, the murder of one of those jailed. Hoffman would have been hanged “but for the providential interference of a stranger, who satisfied the murderers that they had got hold of the wrong man.”

 Five years later, Hoffman’s A Course of Legal Study was published, praised by Justice Joseph Story and others. It was intended to serve those interested in learning law; soon after its publication Hoffman began lecturing interested law students in Maryland. The 1817 edition included a list of readings concerning how lawyers should act. In 1836, the second edition of A Course of Legal Study was published. Over twice the length of the original, the second edition included an introductory essay on the standards of behavior, followed by fifty Rules in Regard to Professional Deportment. Hoffman’s essay and rules were premised on the lawyer’s duty to act honorably. Too often lawyers exercised power in search of wealth and fame. Neither demonstrated a lawyer was honorable, which was the true measure of professional success. Only when lawyers sought honor did they elevate both themselves and the legal profession. His introductory essay used “honor,” “honorable,” and “honorably” thirteen times. Hoffman’s Rules were also premised on the idea of honor, using it or its variants eleven times.

Hoffman’s second edition was poorly received, selling poorly and reviewed rarely. In 1846, Hoffman’s Hints on the Professional Deportment of Lawyers was published. Hints reprinted in one book all of Hoffman’s writings on lawyer ethics. Hints wasn’t received at all; neither the remaining existing legal publications nor literary magazines reviewed it. And it appears it sold worse than the second edition (which was also reprinted in 1846). Hoffman moved to England in 1847. He returned to the United States in 1854, the year in which he died.

Hoffman embraced aristocracy; to be called an aristocrat was a term of honor. He excoriated Jacksonian democracy as “jacobinical” mob rule. But he was an aristocrat living in a democratic age. This made his Rules both incisive and out-of-date. For example, Hoffman condemned the lawyer who purchased the client’s interest in the case, for that purchase occurred only after the lawyer knew the strength of the case. This was a conflict of interest. Hoffman contrasted such cases with a lawyer’s taking a case on a contingent fee. That was permissible, for it permitted poor clients to obtain representation when otherwise impossible. Further, an honorable lawyer provided the same diligence to every client, no matter how large or small the matter. And an honorable lawyer returned a client’s money before any need to request it. An honorable lawyer simply did not take advantage of one’s clients.

But Hoffman’s emphasis on honor also led him to promote ethics rules lawyers had already discarded. Hoffman urged lawyers not to plead either the statute of limitations or the defense of infancy against an honest demand. Hoffman was well aware that both defenses were permitted by law in Maryland. But he reserved to the lawyer the position as “sole judge … of the occasions proper for their use.” To aid a “guilty” client to evade responsibility by use of such defenses was to diminish the honor of lawyers. Lawyers ignored Hoffman’s pleas to maintain their honor, as other writers urged a slightly different path.

One of those writers was Timothy Walker. In an 1839 speech to law graduates, Walker emphasized conscience rather than honor. Though Walker, like Hoffman, urged lawyers to avoid dishonorable means when practicing law, Walker interpreted honor to mean a lawyer should practice law with integrity and dignity. Walker’s intention was to permit lawyers to represent a client with a “bad cause,” which Hoffman rejected. If the lawyer could keep his conscience in representing the bad cause, the lawyer was acting consonant with moral principles: “[A] lawyer is not accountable for the moral character of the cause he prosecutes, but only for the manner in which he conducts it.” Walker gave three reasons why a lawyer should take “doubtful” cases: first, prejudging a case might lead the lawyer to error; second, the lawyer did not keep the client’s conscience; and third, “Every man … has a right to have his case fairly presented before the court.”

The concept of lawyerly honor faded slowly, as internal conscience began to replace external honor as the standard for assessing lawyer behavior. By the early twentieth century, newly-created bar associations, including the American Bar Association (1878), resolved to create written rules of professional conduct. Part III suggests several reasons why American lawyers, particularly elite lawyers, considered it necessary to establish such rules.

The Trustworthiness of American Lawyers (Part I)

The following post comes from Michael Ariens (St. Mary's), the first in a series about his new book, The Lawyer's Conscience A History of American Lawyer Ethics (University of Kansas Press).     

In my book The Lawyer’s Conscience: A History of American Lawyer Ethics (2023), I assess the ways in which lawyers have justified the power they possess and the manner in which they exert such power. The most important justification given by lawyers is the claim that lawyers are in the marketplace but not of the marketplace. Though lawyers were in the marketplace offering their legal expertise for fees from paying clients, they were not of the marketplace because they exercised power subject to some ethical constraints. The Lawyer’s Conscience traces the history of American lawyer ethics from 1760 to the early twenty-first century. My goal in this and following posts is to provide a brief sketch of this history.

How do we decide whether American lawyers are sufficiently trustworthy to continue the work they undertake? First, “we” needs to be disaggregated. “We” includes, among other possible inquisitors, the general public, current and prospective clients, and American lawyers themselves. The demand of trustworthiness made by each of these disparate groups may end in contradiction. To satisfy the demands of a client may conflict with the demands made by the public or other lawyers. And demands made by other lawyers may conflict with the general public’s requirements. Second, some trust in lawyers is necessary because lawyers possess extensive power and authority in American society.

In a series of essays written in spring 1786 for the Boston Independent Chronicle, Benjamin Austin Jr., writing as Honestus, argued Massachusetts lawyers were a “useless” and “dangerous” body that should be “annihilated.” Ten of his essays were published under the title, “Observations on the Pernicious Practice of the Law.” In subsequent editions of “Observations” he modified his call. By the 1819 edition, Honestus’s Prefatory Address concluded the work of lawyers was now “more congenial to the happiness of society,” in part due to his earlier excoriation of professors of the law. They no longer needed annihilation, but “regulation.”

Honestus’s 1786 attacks were joined by some, and rejected by others, most vociferously by lawyers. One of the lawyers responding to Honestus was the well-respected James Sullivan, writing as Zenas. Zenas made several arguments in defense of Massachusetts lawyers. First, they were necessary to a free government. Second, the written Massachusetts Constitution of 1780 and the Commonwealth’s laws also made lawyers necessary. Third, lawyers were subject to effective “checks on their conduct,” making improvident the call for annihilation. In expanding on this last point, Zenas admitted some lawyers were “men of bad morals and dishonest hearts.” But no profession could ever keep itself pure. Overall, most lawyers in the Commonwealth were honorable. They acted honorably for instrumental reasons: their “bread as well as the character of the practitioners of the law depends on their integrity and uprightness.” Zenas also pointed to the 1701 oath of admission subscribed to by all Massachusetts lawyers: it required the oath taker to act “so as to do honour to Court and bar.”

It was unclear whether Zenas believed the 1701 oath had some constraining effect on lawyers of bad morals and dishonest hearts. It was also unclear whether Zenas meant to tie tightly the lawyer’s interest in making money and in fostering an honorable character with honor.

Honestus offered a piercing response to both Zenas and another correspondent, “A Lawyer.” Both had offered “a few bad apples” argument, charging Honestus confused the immoral actions of a few with the good work of most lawyers. Like Zenas, A Lawyer had admitted some “abuses in the profession, productive of private distress and public uneasiness,” had occurred. Honestus, noting that Zenas had pointed to some of the language in the 1701 lawyer’s oath to defend lawyers, mentioned a provision in the oath ignored by his opponents: a lawyer was to inform the General Court (which supervised lawyers admitted to the bar) if another lawyer had spoken falsely. If A Lawyer knew of some abuses in the profession, why had he not informed the Court of these abuses and urged the Court to strike the names of those abusers from the roll, disbarring them? No answer was forthcoming.

Honestus was the most prominent but not only writer vociferously attacking the trustworthiness of lawyers and the work they did. Other events (Shays’s Rebellion, the 1787 Constitutional Convention) soon displaced published antilawyer sentiment. Such sentiment did, however, rise and fall during the next half-century. Lawyers continued to refer to honor as the touchstone of appropriate lawyer conduct. But relying on honor alone as providing sufficient evidence of trustworthiness among lawyers was fading. Its last defender, writing in 1836, seemed to understand he was fighting a losing battle.  

2022 Chief Justice Annual Report

From 6 p.m. Saturday (continuing the practice since 1978). The history lesson tells of District Judge Ronald N. Davies of the District of North Dakota, who received a special appointment to serve on the Eastern District of Arkansas, oversaw the Little Rock desegregation case, and faced death threats for his decisions. That leads to this year's "theme" of the importance of judicial security--"the law requires every judge to swear an oath to perform his or her work without fear or favor, but we must support judges by ensuring their safety. A judicial system cannot and should not live in fear."

Some thoughts.

• Some have criticized Roberts for not writing about the issues surrounding SCOTUS--the Dobbs (and other) leaks, the forgotten leak investigation, attempts to use Historical Society donations to peddle influence, the Thomas' political misdeeds, dissension within the Court, the race to overrule precedent, etc. I will defend the Chief on that, because any expectation or hope that he might do so was fanciful. First, these reports are generally anodyne; no Chief has ever taken on real issues in a real way. Second, this is the Report on the Federal Judiciary, not the Report on the Supreme Court; Roberts' reports center lower courts and de-center SCOTUS.

• This Report differs in a number of ways. It is short--about 3 1/4 pages in the two-column format he adopted in 2019. The history occupies the majority of the Report--almost three full pages on Judge Davies, with three or four brief paragraphs (depending on how you count) on the modern. And the modern says noting beyond thanking Congress for enacting a law to enhance judicial security and privacy (not mentioning, of course, that the privacy protections immunize the Thomas' political shenanigans) and the agencies that protect the courts. He does not mention the man arrested outside Justice Kavanaugh's house (but see above, about de-centering SCOTUS).

• Telling the story of Judge Davies and Little Rock reveals the reality of desegregation litigation and constitutional litigation more generally. Brown of its own force did not compel integration in Little Rock. It required affirmative steps from the School Board, followed by a new lawsuit and Judge Davies' new orders and injunctions to compel school officials to integrate, stop state officials from interfering with local efforts, and prohibit local officials from using "extreme public hostility" as an excuse to delay integration.

George Santos, Lies, and Jewishness

I am skeptical of the new state and federal criminal investigations of George Santos will lead anywhere. I am persuaded by Eugene Volokh's arguments that campaign lies cannot be prosecuted--that counter-speech from the press and the rival candidate provide a sufficient check. (See this explanation for how opposition research works and why the Democrats failed so badly). Of course, that position rests in part on the difficulty of separating fact and opinion in political speech and in determining falsity in statements about complex policy and voting records. Santos presents something without nuance or uncertainty-factual and provably untrue statements about graduating from a college or having a grandparent born in one country at one time. But many people in American life, including politics, invent their biographies. I imagine SCOTUS would situated this in its recent line of cases refusing to criminalize politics.

There is a tempting counter argument that a candidate lying to get elected is akin to a job applicant lying in an interview--false statements to obtain a paying job (and the power that comes with it). But I think the public and widespread scope of campaign speech--paradoxically, speech is easier to sanction when it is said to a smaller group than a larger one--distinguishes the cases.

There is a nice question of whether this  affected the election and how that affects our sense of whether government can sanction his lies. Santos did not face a primary challenge for the nomination. He won the general election by more than 20,000 votes. I doubt that,when party affiliation is everything for many voters, 21,000 Republican voters would have voted differently had they known the truth about his background, education, and work history. Seeing the House GOP caucus embracing Santos and laughing about the story bolsters that thought. Perhaps Jewish identity would have prevailed over party identity, revolting against efforts to falsely appropriate our history and culture, especially the Holocaust. But I doubt it would have been 21,000 Jewish Republicans worth.

One unrelated point: Should Jews take pride that a political candidate lied to make himself Jewish and to attach himself to the name "Zabrovsky," the kind of name early-20th-century Jews ran away from. Maybe our societal position is not as tenuous as people fear--at least not in New York's Third Congressional District.

AntiJewishness: Societal or Individual

Rob Eshman is on to something. We miss something when we amplify individual antisemitic acts or statements but ignore the broader context or reaction by government and the rest of society. What matters more in evaluating American Jewry's position and security--that Kanye runs around saying bad things or the near-universal condemnation; that someone vandalizes a synagogue or that government and the rest of the community respond appropriately.

Eshman's argument sounds in a piece of the debate over hate speech. Nazi Germany became Nazi Germany because law and government policy instantiated Jewish inequality and broader society shared--or do not push back against-- the views reflected in those laws. It did not become Nazi Germany by allowing individuals or groups to spout Jew-hating ideas. And we do not become Nazi Germany because Twitter is loaded with assholes.

Eshman captures his point in two sentences: "No Jew in the history of Judaism ever looked smart by saying things aren’t as bad as you think," but "that's an argument for nuance, for data that reveals a deeper understanding of where we stand before we decide to flee."

I serve on the board and exec comm of my temple and we will participate this year in an ADL-sponsored educational program on antisemitism. I want to try to keep Eshman's point in mind.

No state standing in SB8 suit

Press release on the judge's ruling from the bench that standing requires a plaintiff directly affected by the provision of abortion services. This is remaining lawsuit of the three filed by "colorful" actors; the plaintiff is Felipe Gomez, a suspended Illinois lawyer who purports to support abortion rights.

This is largely moot, since Texas post-Dobbs banned abortion through criminal penalties and government enforcement. But it provides a nice coda to the SB8 story that has ended with a whimper. Rocky and I called the result, although we argued that Texas has a history of statutorily authorized private enforcement that complicates the analysis more than in federal court. It also reveals an irony in the debate over "bounty-hunter" laws--legislative efforts to deter disliked-but-constitutionally-protected conduct through the chill of random private litigation fail in the face of state judiciaries that interpret their constitutions to ape Article III. Further irony: California--which tried to create a "blue-state SB8" on firearms--allows broader "any person" standing than Texas (at least according to one trial judge) and other states that are trying this.

Holmes and Alito

Paul has offered detailed comments on the NYT story about the Hobby Lobby leak and the broader anti-choice campaign to, as Paul puts it, "meet, cultivate, and influence the justices through friendship and other contacts." Some regard the latter as the greater scandal.

Some of the hand-wringing about the "influence peddling" sent me to Justice Holmes, the House of Truth, and Holmes' many about free speech with Learned Hand, Harold Laski, Walter Lippmann, Zachariah Chafee, Felix Frankfurter, and others in 1919, during the eight months between Holmes' majority opinion in Schenck and his dissent in Abrams. Put differently, progressive activists and other non-parties and non-colleagues engaged with Holmes in-person and by mail in social, non-judicial settings, attempting to influence and change (ultimately successfully) his First Amendment views; those changes reflected in subsequent opinions, which the Justice's supporters praised and celebrated. This effort spread beyond free speech to bigger progressive causes such as labor organizing and workers' rights (with which Holmes was on board).

What, if anything, provides a meaninful difference between Holmes' engagement with Hand, et al. and Alito's engagement with Schenck, et al.? (Note I am focused not on the Hobby Lobby leak but on the broader campaign to kibitz with the Justices).

The money presents the obvious variance. Some people donated substantial sums (including to the Supreme Court Historical Society) for the access Alito (as well as Thomas and Scalia), which was not the case with Holmes and his clique. But I do not know how important money is to this story. Donors did not give money to the Justices. The money placed them in the room with Alito, just as participating in 1910s progressive politico-legal circles put people in the room with Holmes.

Many of Holmes' conversations (especially his exchanges with Hand) were general and philosophical, less overtly ideological, partisan, or political; Holmes was talking to academics (Laski, Chafee, Frankfurter), judges (Hand), and journalists (Lippmann). The people engaging with Alito are activists, part of a large, coordinated political and social movement revolving around these issues. Again, however, many of those in the House of Truth were activists committed to political causes who joped to sway Holmes to their positions (some of which Holmes shared, others of which he had to be convinced).

The difference may be "times change." Paul discussed the different ethical norms of the early-and-mid-2oth-century Court and the Justices' deeper immersion in politics. But a colleague with knowledge of this period on the Court offers another difference--political, social, and impact-litigation movements of the '10s and '20s wielded less influence on the Court as an institution and thus were smaller and less well-organized. Brown demonstrated how these movements can succeed on the Court on a massive scale. Subsequent movements--including Schenck and the anti-choice movement--are larger, better organized, better funded, and more committed to wielding power to political ends. Laski and company played minor-league ball, a difference in kind from modern social-movement machines.

Effective v. Enforceable

Further thoughts on the Georgia trial court and the idea that a law enacted contrary to binding judicial precedent never became a law:

The problem may be one of nomenclature and the conflation of two terms--when a law is effective and when a law is enforceable. My view is that a law is effective on the date the legislature indicates in the enrolled and signed bill. Constitutional litigation concerns whether a law is enforceable--and the judicial remedy from constitutional litigation is to stop enforcement of the challenged law, not to cause the law to cease being effective. Thus the Georgia court's fundamental error. Pre-Dobbs precedent did not cause the law to lack effect; it causes the law to be unenforceable. This, again, goes back to the source of the constitutional violation--the law itself or its enforcement.

The same nomenclature problems arose in the S.B.8 discussions in September 2021. People complained about SCOTUS' denying emergency relief allowing S.B.8 to take effect. But that is wrong. S.B.8 took effect on September 1, 2021, per the law's text. Denying emergency relief allowed S.B.8 to be, and remain, enforceable (through private lawsuits).

Georgia trial court rejects judicial departmentalism

A Georgia trial court declares Georgia's heartbeat ban constitutionally invalid underGeorgia's "void ab initio" doctrine--a law enacted contrary to binding judicial precedent never had any force or effect. While "on the books," the law never carried any force or effect. It "'is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office.'" It is "'in legal contemplation, as inoperative as though it had never been passed.'" The court adds that "an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void." There can be no zombie laws that "spring back to life" when precedent changes.

Obviously I disagree with this framing. The legislature did enact a law that is in effect in the state of Georgia. The law is not enforceable--or at least enforcement is certain to fail once the issue reaches the judiciary and the judiciary applies then-existing constitutional doctrine. Moreover, this approach presumes that a law violates the Constitution (in this case, the rights of pregnant people) by existing and thus the legislature violates the Constitution by enacting it. But the constitutional violation arises from the actual or threatened enforcement of the law, not from the law itself; the legislature does nothing wrong in enacting a  law. Put differently: The court says that the heartbeat ban "exist[ed] only on paper." But all laws exist only on paper. Their force and effect comes from actual or attempted enforcement--at which point the judiciary and controlling precedent come into play.

Here is the topper:

What does this ruling mean? Most fundamentally, it means that courts -- not legislatures -- define the law. This is nothing new, but it seems increasingly forgotten (or ignored): “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803); see also Beall v. Beall, 8 Ga. 210, 219–20 (1850). If the courts have spoken, clearly and directly, as to what the law is, as to what is and is not constitutional, legislatures and legislators are not at liberty to pass laws contrary to such pronouncements. This does not, as the State protests, leave the legislative branch powerless in the face of “judicial supremacy run amok.” (Defendant’s Response at 1). To the contrary, “[t]he inherent powers of our State General Assembly are awesome.... [It] is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution.” Sears v. State of Ga., 232 Ga. 547, 553–54 (1974) (citation omitted). The void ab initio doctrine and its application to something like the LIFE Act properly cabins that broad legislative authority to set policy for our State and for the people who comprise it: do what you will, only do so within the bounds of the constitution that the courts have established.

If I were looking to give my students a definition of judicial supremacy, I could not do any better--the courts define the law, the Constitution means what the courts say it means, and the legislature must yield to the judiciary's constitutional understanding. The legislature's power is unrestricted unless the judiciary restricts it.

One criticism of judicial departmentalism (as Kevin Walsh framed it and as I have applied it to disputes about SB8 and universal injunctions) is that it collapses into judicial supremacy--because every dispute reaches court, the judicial view prevails at the end of the day. This case demonstrates the difference--judicial departmentalism leaves the legislature a modicum of power to engage in the legislative process and to define the state's statute books--however the laws on those books may or may not be enforced.

Besides being a bad approach to constitutional law, this approach may prove to much and raises a number of open issues:

    • Must legislatures repeal zombie laws and ensure the statute books are consistent with the state of judicially declared constitutional law? Alternatively, must they reenact zombie laws when the Court changes its constitutional understanding? If a new law contrary to judicial precedent never gains legal effect, does an existing law contrary to new judicial precedent lose all legal effect? The court's logic is yes--the zombies never "spring back to life." So a new law is required for any effect.

    • How can the political branches seek to change judicial precedent? There must be a law and actual or threatened enforcement to present a case in which the judiciary could change precedent. So Mississippi succeeded in getting the Court to overrule Roe by enacting a new law and triggering the litigation through which the Court changed precedent. But if the new law is void ab initio, the court never reaches the substantive constitutional question (or must reach out to do so when unnecessary, which we say courts should not do) because the new law never was law. And that will be the case for any new law. And if I am right about the prior bullet point, the state cannot use existing laws for the challenge, because those lost all force and effect.

Chamber of Commerce on corporate speech

The chief legal officer of the U.S. Chamber of Commerce told a Fed Soc panel (paywalled) that corporate activism--particularly so-called "ESG (environmental, social, and governance) investment--is First Amendment protected corporate speech. The statement comes days after Sens. Chuck Grassley, Tom Cotton, Marsha Blackburn, Mike Lee and Marco Rubio-- anticipating a Senate majority--sent a letter to numerous law firms threatening them with investigations for assisting corporations in that activity.

So two issues for the other side of the political and ideological spectrum:

• Will the Chamber of Commerce pursue this First Amendment position in court and in legislative chambers if and when Republican officials come after some of these companies and their lawyers?

• I thought FedSoc and the conservative constitutional movement oppose canceling, threatening, or targeting lawyers for representing clients on causes of which they disapprove. It was bad when people criticized or sought to impose market consequences on firms helping Donald Trump and his minions bring frivolous cases to overthrow the election with frivolous cases. Apparently it is ok to threaten government action against law firms that helping companies take steps not to help the environment or the common good.

§ 1983 and the Spending Clause

SCOTUS hears argument Tuesday in Health & Hospital Corp. v. Talevski, considering whether Spending Clause enactments (there, the Federal Nursing Home Reform Act of 1987 ("FNHRA")) can be enforced in damages actions under § 1983. I am covering the case for SCOTUSBlog; here is my case preview.

This is the latest in the Court's move to limit private rights of action, but with an important twist. The supposed separation of powers arguments driving limits on Bivens and implied statutory rights of action--Congress, not the courts, should make the policy choices and balancing of interests in creating private rights of action and Congress has not done so--do not apply. Congress made that choice in enacting 1983 as a free-standing cause of action and including the phrase "and laws" to allow plaintiffs to enforce statutory rights beyond constitutional rights. Not that I do not expect the Court to find some new means to its preferred end of limiting private litigation. Just that the recitation of separation of powers will not do it in this case.

Adjectives and verbs

When Donald Trump ran for President in 2016, there was a lot of talk about whether he was racist, which allowed him to defend himself by insisting he is "the least racist person" anyone has ever met. I wrote a post at the time arguing that it was a mistake to speak of whether some one "is ____," as opposed to whether the person "does ___ things." Stated differently, it is the difference in the law of evidence between "who someone is" and "what someone does." The former is unhelpful because it is impossible to look into someone's soul, it can be repeated as an insult, and it is too easy for them simply to deny that is "who they are." The latter allows us to evaluate conduct--the policy you propose would treat Muslims differently than other religious groups. Even if you are not a racist, you advocate a policy that is (whether in purpose or effect) racist.

This is playing out in the kerfuffle over the Brooklyn Nets' Kyrie Irving's tweets promoting a movie containing antisemitic ideas and messages. The Nets suspended Irving on Thursday and he apologized late on Thursday. That apology comes after several days of refusing to do so, which he explained as "I initially reacted out of emotion to being unjustly labeled Anti-Semitic." That is, he resisted when the framing was who he is rather than what he did--posting something and promoting a movie containing false and antisemitic statements. Again, a more useful framing.

We are all judicial supremacists now

Jacob Sollum at Reason does not think much of New York and New Jersey exercising judicial departmentalism on gun regulation by enacting laws that likely (and in the view of one district judge, definitely) do not comply with Bruen. Note the language Sollum uses--"defying the SCOTUS decision," failing to "respect the constitutional right," "pretending to comply with the Second Amendment." As if the Second Amendment and what SCOTUS says about the Second Amendment are co-extensive.  I thought we liked  allowing the judicial branches to exercise their own constitutional ideas, even if they depart from the Court's ideas. And that they lose before a district judge--bound by SCOTUS precedent in a way the NY and NJ legislatures are not--it is not because they were trying to "fool[]" anyone.

This piece could have been written by an abortion-rights supporter about Idaho, Missouri, and Texas anytime in the 45+ years prior to June 2022. I guess not.

The politics of abortion (Update)

Lindsay Graham introduced the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. The bill bans abortions after 15 weeks, with rape, life, and health exceptions. It provides for prosecution of the provider but not the pregnant person and for civil actions by the pregnant person or minor parents but not the pregnant person.* It also provides that it does not preempt or limit any law imposing greater limits on abortion--in other words, it does not yield to a Red-State complete ban but does override Blue-State laws allowing Roe-level abortions until viability. The bill identifies the Commerce Clause and § 5 as the power sources, although the substantive sections do not contain an "affecting commerce" element and I am not sure a bill recognizing fetal rights (how this is framed) is congruent-and-proportional to current 14th Amendment doctrine.

[*] Federal standing law prevents a full-on HB7 private right of action, although I am surprised they did not try and force providers to defend.

I wonder about the partisan politics of this. Two months prior to an election in which polls show Democratic voters mobilized around opposition to Dobbs and the loss of reproductive freedom, extreme state laws, and the consequences of banning medical procedures, the bill places the issue in the public eye and forces a public vote on that issue. Why, the argument goes, would Senate Republicans want to increase that energy and engagement?

So what do Graham and Senate Republicans hope to get out of this?

    1) Energize the base by showing a willingness to fight to stop abortion when it makes a difference (unlike performative pre-Dobbs legislation). The bill gives a restrictive baseline--like Mississippi and more limited than under Roe--and leaves states free to legislate greater restrictions, all the way to a complete ban. It gives the anti-choice voters something to get excited about at the federal level. The questions, I guess, are whether the GOP was in danger of not having those voters and whether they will be outnumbered by enraged pro-choice voters.

    2) It provides a grand bargain on abortion, finding the middle ground that some (David French comes to mind) believe is inevitable. But the preemption clause undermines that conclusion--the bill expressly allows Idaho to ban all abortions but stops California from providing greater access. That is not a grand bargain under which the entire country falls--this is setting a federal ceiling while letting states go as low as they want.

    3) Polls shows that a good percentage of the public would set the line at 15 weeks. Graham et al believe they have a political winner in forcing Democrats to vote against a bill that resolves the abortion debate where many people would like it drawn. They also can emphasize that 15 weeks is a larger window than Europe** and count on the press to misreport it (always a good bet). Again, I think the preemption clause undermines this, for those who read the bill. But it may help create a narrative of "Democrats want extreme ranges for abortions, beyond even what those European Socialists allow."

[**] True but misleading. Some European countries stop abortions sooner than this. But it is much easier to get the procedure within 10-12 weeks than in most U.S. states--more places to go, less costly, public support for the poor, no waiting periods and other hurdles delaying and forcing multiple trips to the doctor.

    4) Check the bill title--"Late-Term Abortions Act." They are counting on the press reporting this as a ban on "late-term abortions"--which most people support but which most people think of as something like post-32 weeks (or certainly post-viability), not two months pre-viability. Mississippi did not defend its 15-week ban in Dobbs as "late-term." But the narrative "Democrats voted against stopping late-term abortions"--rather than 15 weeks--may work for the Republicans. Again, it depends on media malpractice, but that is a good bet.

    5) Distract from Donald Trump, Mar-a-Lago, etc. Graham carries Trump's water, but that is a bit too conspiratorial.

Update: Looks like # 3, with perhaps a bit of # 4). Graham wrote this thread in response to Nancy Pelosi's response to the bill. He hits the expected points: This bill is to the "left" of those in Europe; opposition means Democrats want abortion on demand; and  hoping "voters are paying attention to the radical nature of the Democrat party when it comes to abortion."

The queen is dead, long live the king (Updated)

Three thoughts, as someone who, when my wife and kid woke up early to watch William and Kate's wedding, joked "didn't we fight a war so we didn't have to do this?"

• TIL they change the words to the British national anthem. It makes sense, but I had never gotten confirmation (since hardly anyone is alive who remembers anyone other than a queen).

• The combination of the events in the U.K. and ongoing political events here highlights something Gerard has written about--the possible gains from separating the roles of head of state and head of government. The U.S. is unusual in being a stable liberal democracy that combines those roles. Perhaps a central executive of some stature, disengaged from partisan competition and policymaking, can help lower the political temperature and avoid things such as one side's refusal to accept electoral defeat. On the other hand, Elizabeth's statute came from serving for 70 years and becoming indistinguishable from the nation. A figurehead HoS also presumes unified legislative/executive control. So maybe our system is too far gone.

Update: David Frum frames it around two interesting points. One is separating the trappings of wealth and power and actual power--the person with the trappings has no power, the person with power has no trappings, lives in a small house, and regularly encounters rudeness (think of Question Time). The other is how accidental both systems are. The Constitution modeled presidential power after monarchical power as it existed in in 1787, only for the British to organically limit that power in the following years. The British couch an evolving system in long tradition, while the U.S. tries to pull an ancient system into the modern world.

• Chief Justice Rehnquist wrote in Hustler that "our political discourse would have been considerably poorer without" political cartoons--not only for the caustic (and sometimes tasteless) satire and criticism that brings down the powerless (as Rehnquist emphasized), but for their ability to wordlessly capture a moment and an emotion. Behold:

Does lawyering matter?

Perdue v. Kenny A. limited when judges could increase an award of attorney's fees beyond the lodestar for "superior performance and results." Chief Justice Roberts doubted the claim during argument; he posited that there was a knowable right answer in the case and that good attorney performance cannot change what that answer is. That "answer" likely is whatever the judge believes to be the right answer.

But that raises the question of whether lawyering matters at all. If the judge will do what she is inclined to do, does the quality of the lawyering matter? Case in point--Judge Cannon granted Donald Trump's motion (while acknowledging how "convoluted" this collateral-ish proceeding is) to appoint a special master and enjoined DOJ from continuing to review the seized documents for prosecution (although not for national-security) purposes. No one can objectively compare the papers by each side in this case and conclude that Trump's lawyers did a better job lawyering the case--making and supporting legal arguments with precedent, adhering to rules and procedures, not sounding like a Twitter fight, not throwing around random concepts ("fruit of the poisonous tree"), and focusing on the actual relief at hand. None of it mattered--the judge (for whatever reason) was inclined to rule a particular way and did so. Of course, she did so without any legal analysis--no explanation of how executive privilege applies against the executive branch; how equitable jurisdiction is not barred by laches; how 41(g) is the correct vehicle when executive-privilege documents still do not belong to Trump and thus are not returnable personal property; and why former presidents suffer greater "stigma" constituting irreparable injury than any other target of a search warrant. She also called her order a "temporary injunction," which is not a thing under FRCP 65--there are (non-appealable) temporary restraining orders and (appealable) preliminary injunctions; so getting the law right does not seem to be her strong suit. Of course, Cannon did a better job than Trump's lawyers--making something coherent (if wrong) of the nonsense they submitted.

The injunction is immediately appealable, without needing mandamus. Some knowledgeable folks are wondering whether DOJ will bother appealing or whether it will ride out the special-master process and deal with the few-week delay or appealing later problematic rulings from the special master.

Bad lawsuits from the left

Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law.  Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).

This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.

The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.

Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is  weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.

[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.

I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.

Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.

Abortion and state-created danger

Imagine a pregnant person in a state (Missouri and Ohio seem the current leading examples) in which doctors and hospitals have interpreted  state law to require an emergency to escalate before an abortion can be performed under a life or extreme-disability exception. The doctor believes that an abortion is necessary but the situation is not emergent and as she understands the law, abortion is permitted to handle imminent death or disability, not likely; the doctor waits until the woman suffers further complications, then performs the procedure. Could the woman make a claim against state officials for any harm in waiting for her condition to worsen?

State-created danger establishes substantive due process liability for third-party harms where government takes affirmative action that subjects an individual to new or greater danger at the hands of third persons or circumstances, in a way that shocks the conscience (either because done with intent to injury or deliberately indifferent to an injured person's rights). Here we have government action in the enactment and potential enforcement of state laws against doctors who perform abortions. That state action increases the danger to patients at the hands of circumstances (their medical condition) by affecting treatment--doctors do not act on their medical judgment out of fear of prosecution, causing  the patient's condition to worsen. Causing doctors to allow patients' condition to worsen before treatment shocks the conscience. Threatening enforcement shows deliberate indifference knowing that enforcement affects doctors' actions in a way that endangers patients. Going one step further, could a doctor (using third-party standing) sue for injunctive relief, showing that these laws affect their medical judgment, causing harm to many women, and therefore the state law is constitutionally invalid?

My (imperfect) analogy is lawsuits challenging municipal ordinances that impose consequences on landlords (fines, loss of license) whose tenants have too many disturbing-the-peace 911 calls (including calls from domestic-violence victims). Plaintiffs have argued that the laws make them more vulnerable to abuse by domestic partners because less willing to call 911 out of fear that their landlord will evict them to avoid the consequences for multiple calls. The suits that have been brought have settled, so no court has passed on the theory.

I admit this would be a tough sell, especially in a pre-enforcement action. It might be tough to limit to abortion/health care. Would it open the door to a claim against the state for raising the speed limit to 70, on the theory of "you knew people would drive faster and less safely, making me more vulnerable to a reckless driver." State officials could argue that they are not deliberately indifferent to the pregnant women but trying to protect fetal life.

Still, as abortion-rights activists look for legal theories to avoid the worst effects of Dobbs, it might be a theory worth pursuing.

Britney Griner and WNBA pay

I am sure someone has written this, but I will throw it out again. Britney Griner was in Russia playing basketball because the WNBA does not pay its star athletes enough money to build the type of financial nest that will carry her when her career ends at age 35-40. WNBA stars have been doing this for years because the overseas money--especially in Russia, where oligarchs own several teams and use sports to amass and show wealth and influence--dwarfs WNBA money. Russian teams and leagues also treat players better in terms of travel, accommodations, schedule, etc.

Nor is this the first time WNBA players have gotten caught up in Russian political intrigue. Sue Bird and Diana Taurasi played for Spartak Moscow Region; the mobbed-up team owner, Shabtai Kalmanovich, was murdered.

You need 5 to do anything

An interesting discussion on the Con Law Prof listserv this week about Justice Brennan's famous "rule" for his clerks that you need five to do anything. There are several ways to interpret that statement, suggesting different things about the Court and its actions.

The first is "if we have 5, we can do whatever we want." This suggests judicial lawlessness, power politics to impose policy preferences without regard to text, precedent, or law. It also reflects the accusation some have leveled against the current majority--they are doing what they want as policy because they can. And defenders of the Court respond that they are following Brennan's rule. And as Eric Segall would say, there is no law to be found anywhere.

The second, urged by several former Brennan clerks on the listserv, is "it takes 5 to do anything." Stated differently, you only can do anything with 5. This suggests humility in working within a multi-member Court--you need to get 5 on board, which might mean compromising and settling for less than you would like. But Brennan remained committed to lawyerly tools and did not advocate pure policy goals.

The third, from another clerk, was a statement of resignation in a case he lost--"well, they have 5, they can do what they want." Again, thsi does not suggest judicial lawlessness or accusing the other side of ignoring law in favor of personal goals. It reflects reality--"they have a different view than I do, but they have 5 and I do not."

Better Call Saul--when Jimmy becomes Saul

Better Call Saul hit a significant story milestone last night. I want to consider a question (with spoilers) after jump: How bad a guy is Saul Goodman and is he qualitatively worse than Jimmy McGill?

Better Call Saul tells the story of how Jimmy "becomes" Saul, the "criminal lawyer" of Breaking Bad. Two strands make the story. The first is that Kim Wexler, the love of Jimmy's life, grounds him and keeps him from losing himself in his alter-ego. In mathematical terms, Jimmy-Kim=Saul. The second is that Saul Goodman represents a difference in kind, not degree, from Jimmy McGill. Jimmy is a fundamentally decent person and lawyer, committed to his clients and to doing justice; while he crosses ethical and legal lines, it is in service of a higher ideal and he always comes back around. Saul Goodman, by contrast, is an immoral, unethical criminal, engaging in all manner of wrongful conduct and out only for himself.

The story reached its point of no-return last night. Kim leaves Jimmy, wracked with guilt over the human costs of their scheme. The last seven minutes time-jumps some period for a montage of a Day-in-the-Life of Saul Goodman--he wakes up in a garish mansion next to a sex worker; has a horrible comb-over; wears loud suits; offers his companion a cereal bar on her way out the door; drives his Cadillac with LWYRUP plate; decorates the office with columns and the Constitution and an inflatable Statue of Liberty on the roof; and is fast-talking on the phone at all times. The idea--in reviews and interviews with show-runners--is that Kim bailed because she lacked Jimmy's complete moral flexibility, while Jimmy could compartmentalize and embrace his immorality, as Saul.

This story requires that Saul Goodman is truly worse than Jimmy McGill--that Saul exceeds the typical low-rung, fast-talking, as-seen-on-TV lawyer into outright criminality. Saul did illegal stuff on BB--arranging meth sales, money laundering. But we have watched Jimmy do illegal stuff on BCS. The story tells us that Saul is worse than Jimmy; the seven-minute montage is supposed to show us he is. But to my ear, they have not done it. Style aside, Saul in these seven minutes does not lawyer any differently than Jimmy.

Here is the substance of the phone snippets we hear from Saul:

    • Hard-ball negotiation in some type of PI case, emphasizing that soft-tissue damage gets his client paid regardless of X-rays and that it is better for the defendant to pay now or "bleed to death" in court.

    • Extended conversation with his secretary who updates him on new stuff. Here is Saul's side:

        • Something about telling his "my Zanex guy" "yes and today." It could be that he is representing someone charged with selling Zanex or it could be about getting drugs illegally; hard to say.

        • A new client charged with public masturbation; the joke is that Saul has multiple clients charged with that.

        • Ambulance-chasing to represent victims in a bus accident, obtaining victim names by leaning on a hospital employee he had represented on a DUI and planning a dramatic photo-op and media statement to try the case in public.

        • Scheduling matters for court for his convenience.

        • Listening to, and complaining about the sound quality of, a "Better Call Saul" radio spot. The ad is purely PI--insurance companies that will not pay for accident repairs, defrauded by brother-in-law, surgery gone wrong. He wants to stop the check for the spot and threaten the station with a lawsuit, preparing to stand for freedom of speech.

The montage and episode ends with Saul walking through a packed waiting room and into his office, then calling his secretary to send in the next client with "let justice be done, though the heavens fall."

This did not show us the so-called criminal lawyer. It showed an (exaggerated) version of the fast-talking smarmy, mostly-PI lawyer we have watched for six seasons.

My point, I think, is that, reviews and interviews are insisting on a premature conclusion. We have not reached the story's endpoint--fundamentally decent Jimmy has not become irredeemable Saul. The show has four more episodes, at least one featuring Walter White and Jesse Pinkman and likely showing further interactions between Saul and Gus' meth operations. My guess is some of these final episodes will show genuine Saul wrongdoing, something Jimmy did not and would not do. We are not (yet) there.

The limits of swearing cheerleaders and an obviouly hollow victory

Free speech folks were watching this Tenth Circuit case, arising from the expulsion of a high school student for a private, out-of-school Snapchat post saying "Me and the boys bout to exterminate the Jews" with a photo of them wearing WW-II-era foreign military hats. In other words, it raised the open question from Mahanoy--out-of-school online speech not about school but raising concerns for in-school bullying, harassment, threats, and discrimination. The court reversed the grant of a 12(b)(6), holding that Mahanoy applies, the school did not have an interest in regulating this speech (despite its content), and there was no showing of substantial disruption. Good all around-and perhaps a hint that lower courts will follow Mahanoy to a sharper in-school/out-of-school line.

But the court remanded for consideration of qualified immunity, which will almost certainly be granted. The events underlying this case occurred in 2019, two years prior to Mahanoy and during a period in which courts allowed schools greater power to reach out-of-school speech that found its way into school and that could be perceived as threatening or discriminatory. Certainly there is no SCOTUS or Tenth Circuit precedent establishing that similar speech cannot be punished. So this is a small victory for the plaintiff that will not last long.

Cue the converse abortion ad hoc nullification machine

The Times considers the First Amendment implications of abortion being legal in some places and illegal in others. And individual news reports about how Dobbs is being received and applied with respect to other rights and issues suggest this will not be limited to abortion.

Pedantry

Is it overruled Roe or overturned Roe? I say "overrule," which is the term the Court used. Shepard's (ah, the days) used that term--courts "overrule" precedent and "reverse" lower-court judgments." I do not believe courts "overturn" anything in the formal (as opposed to colloquial) sense.

Now that we have the opinion and not only the draft, do we have any better sense of whether Roberts or Thomas assigned the opinion? And why would either give it to Alito? Roberts must have known Alito would produce a toxic opinion. And it seems Thomas would want to keep the opinion (this and the gun case would have made the Fed Soc two-fer). Did Thomas know he wanted to call all SDP into question so he needed to write separately rather than lose a majority on a small piece?

How should we describe the vote count? I went with 5-1-3 (majority, concurrence for result but not reasoning, dissent). I have seen others offer two related framings as a pair--6-3 for judgment (MS law valid, MS wins), 5-4 for overruling Roe.

Thoughts on fearing for the darkness

Some random thoughts on a legal earthquake.

• The opinion appears substantively unchanged from the leaked draft, other than responding to the other opinions and obvious proofreading. Clearly Kavanaugh was the Chief's target. We can read his concurrence as trying to carve a gentle and less-provocative middle ground between the majority's muscular overruling and the Chief's decide-nothing-more.

• This day has been coming like a slow-moving train since Election Night 2016, if not Election Night 2014 (when the Republicans regained the Senate and Justice Ginsburg had not resigned). I recommend Orin Kerr's Twitter thread that captures how Democrats/abortion-rights supporters went from "Garland-as-fifth-vote-to-secure-Roe" to Dobbs in less than a decade. Anyone (*cough* Susan Collins) who did not recognize this day as inevitable since Election Night 2016--or at least since Kennedy's resignation--is naive or ignorant (or, as someone suggested, lying about believing those assurances).

• Did the leak work? If the goal was to hold a shaky majority, yes; if the goal was to pressure someone to leave the majority, no. If the goal was to soften the opinion's effects by creating a distracting process story or softening the sting of the opinion, no; people seem pretty worked up and ready to protest and act, even if they saw this coming. It depends on if we find out who the leaker is and why they leaked.

• There is no easy answer to what happens next, but some things to watch:

    1) How much did this decision embolden anti-choice states? Do they ban abortion without exception or do they allow exceptions (life, health, rape, incest, a month of leeway)? Do they resume enforcing restrictive pre-Roe zombies? Do they go after pregnant people or only providers? Do they go after those who provide information and funding? How aggressively will prosecutors investigate and prosecute miscarriages and other "bad" behavior by pregnant people?

        Consider Arkansas' (now-valid) trigger law banning abortion with only a life-of-the-mother exception. Governor Asa Hutchinson suggested the state might add a rape-and-incest exception if Roe is overruled. This is a version of the dog-catching-the-car. States have performatively enacted extreme laws that would hurt millions, knowing they were unenforceable but allowed for political points. Now that those extreme laws are enforceable, Hutchinson realizes the immorality or unpopularity of the extreme and might walk it walk it back. Do other states follow suit and show restraint when their choices have real effects on real people or do they continue the race to the bottom because they can?

    2) Relatedly, does Dobbs embolden those states to go after the other rights that conservatives hate as much as abortion--same-sex marriage, contraception, sex? The assurances from Alito and Kavanaugh (and many who criticized Steve Vladeck and Leah Litman) focus on the wrong actors at the wrong time, at least for the moment. The action occurs in two other forums first: 1) Will states push the envelope in other areas--will they enact and enforce new laws banning purchase and use of contraception or whether states will begin enforcing existing zombie laws prohibiting sodomy (the Texas law at issue in Lawrence remains on the books) or same-sex marriage (same in many states); 2) What will restless lower-court judges do with the signal from Dobbs and from Thomas' concurrence if states get frisky--it is not hard to imagine a panel of the Fifth Circuit declaring valid a Louisiana ban on certain contraception. These steps are necessary before we see what the Justices will do. And that process could take several years, during which the make-up of the Court changes or people stop paying attention to Dobbs' "abortion-is-different" promises.

    3) It is nonsense to believe the courts are out of this area. The dissent shows why, as does this paper by David Cohen, Greer Donley, and Rachel Rebouche. These controversies extend beyond substantive due process to free speech, the right to travel, and other non-disfavored rights implicated in an abortion context. Scalia warned about the "abortion ad hoc nullifcation machine," in which the connection to abortion limits other, supposedly stronger rights (he complained about restrictions on clinic protesters). Will we see that in reverse--will the connection of other rights to the no-longer-favored abortion context limit those other rights? For example, will the Court allow states to sanction political expression concerning illegal-in-a-state abortions, remaining "scrupulously neutral" about abortion and allowing states to limit certain speech in the name of limiting (unprotected) abortion? Alito and Thomas have supported restrictions on speech with which they disagree; will others follow suit?

    4) How much teeth does rational-basis review have here, if a state goes to the extreme? Is it unreasonable to make a pregnant woman endanger her life or health in favor of a fetus? Is there any other context in which the law requires an ordinary person to risk her life for another?

• Biden's statement attempted to create a campaign issue. He called on Congress to codify Roe (whatever that means). He add that if Congress lacks the votes to do that (which it does), people must elect representatives who will, making. The question is how politically salient this is for the (apparent majorities) who support reproductive freedom--can the issue galvanize supporters to turn out in large numbers in the way it galvanizes opponents? Supporters have had Roe as the guardrail for 50 years. Does its actual loss awaken everyone to the ballot in a way its threatened loss (which was obvious in 2016) did not?

Maybe there isn't a big difference between mostly dead and all dead

Like Westley in The Princess Bride, Bivens is mostly dead following today's decision in Egbert v. Boule. Unlike with Westley, I deny any big difference between being mostly dead and all dead. Here is my SCOTUSBlog recap. [Update: And a short interview on All Things Considered] I did not expect this from the argument. While not friendly to the plaintiff's claim, the quesioning did not reflect  a desire from six justices to winnow Bivens to nothing--especially after declining to grant cert on whether to overrule Bivens.

But it may as well have. If the new single question in the Bivens analysis is whether there is any reason to believe that Congress is able to decide whether to recognize a cause of action outside of identical facts to Bivens, no new Bivens action is possible, because the answer is always yes. Credit to Gorsuch for being honest about where the analysis and conclusion leads. Meanwhile, without saying so, the Court has essentially granted virtually all federal officers at all levels in virtually all agencies more-or-less absolute immunity from suits for damages for constitutional violations. Maybe something identical to Bivens survives going forward--Fourth Amendment violation, pure law enforcement, no connection to immigration and national security. But not for long. And perhaps not if the agency has (as all agencies do) some internal disciplinary system.

So it is up to Congress to enact something like § 1983 for action under color of federal law, that also keeps in place the many statutory schemes (e.g., CSRA) that operate adjacent to Bivens. Could the changing nature and increased ideological diversity of constitutional claims--e.g., an increasing number of religious-liberty claims--create sufficient bipartisan support for enacting something? Probably not. But that will be the new focus.

I am working on the third edition to my civil rights treatise. The second edition was written in 2017 and published in 2018. I am stunned (and a bit frozen) by how much has changed in that short a period and how much the Bivens and immunity chapters must be rewritten.

SCOTUS vacates stay of Texas social-media law (Updated)

SCOTUS vacated the Fifth Circuit unexplained stay of the district court injunction of HB20, Texas' social-media law; in other words, the law cannot be enforced pending appeal. This leaves the Texas law in the same place as Florida's, following  last week's 11th Circuit decision affirming the preliminary injunction prohibiting enforcement of that law. Justice Kagan would have denied the stay application, without explanation. Alito dissents for Thomas and Gorsuch.

Alito's dissent hits all the conservative Twitter talking points about social media that misapply or misunderstand First Amendment doctrine. Plus he adds a gratuitous footnote about § 230 requiring neutrality or creating a platform/publisher distinction. Special mention for accepting this verbal sleight-of-hand: "Texas contends that § 7 does not require social media platforms to host any particular message but only to to refrain from discrimination against a user's speech on the basis of viewpoint"--as if prohibiting a site from rejecting speech on the basis of viewpoint does not compel the site to carry that speech by eliminating one basis for the site to remove that speech.

Presuming the Fifth Circuit declares the law valid when it reaches the merits to create a circuit split and presuming Justice Kagan's position is based on posture and not First Amendment substance (she did not join Alito's opinion), the vote should be 6-3 that a state law violates the First Amendment in attempting to compel private entities to carry speech and speakers they would prefer not to carry.

Besides pushing troubling First Amendment arguments, Alito pushes a troubling procedural argument. He suggests that a pre-enforcement federal action is inappropriate because HB20 is enforceable for prospective relief (injunction, plus ancillary attorney's fees and costs) but not the sort of harsh retroactive relief (imprisonment or severe fines and penalties) as with the law in Ex Parte Young; a social-media site therefore can raise the First Amendment as a defense to a state suit for injunctive relief, also allowing the state court to interpret the law's vague provisions. But the Court has never held that EPY actions are limited to laws that impose retroactive sanctions for past conduct, especially where attorney's fees may impose greater financial consequences on rights-holders than retroactive damages or fines.

Although he did not cite it, I think Alito drew the wrong conclusion from WWH and SB8. The WWH Court was correct that re-enforcement offensive EPY actions are not constitutionally required and defensive litigation can be constitutionally sufficient. That does not mean an EPY action is improper whenever defensive litigation is available (which is always). The question is whether EPY's other requirements--an identifiable responsible executive officer whose enforcement can be enjoined--are met. SB8 could not be challenged offensively because the absence of public enforcement meant no responsible officer and no one to enjoin. HB20 is publicly enforced (while also allowing private enforcement), satisfying this element of EPY.

Update: On this last point about Alito's hostility to EPY actions, he includes this line: "While I can understand the Court's apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty and Texas should not be required to seek preclearance from the federal courts before its laws go into effect." Putting aside the misuse of laws "go[ing] into effect," Steve Vladeck shows that since November 2020, Alito has voted publicly ten times on emergency-relief requests in offensive pre-enforcement actions that would stop enforcement of state laws pending resolution of federal pre-enforcement litigation. Of those cases, one challenged a Maine law; the others challenged New York or California laws. He never suggested those state courts should have a crack at interpreting the law. I do not believe he is trying anymore.

Misplaced anger over precedent: The example of DeShaney

Campaign-finance regulation advocates and much of the public regard Citizens United as one of the Court's worst decisions, responsible for the electoral mess that has followed. I find this unique attention on CU strange, as the Court built on a 30+-year-old framework that treated expenditures as protected speech, recognized corporations as equal speakers with individuals, and generally rejected equalizing and preventing drown-out as compelling government interests. CU did not break much new ground, yet it has become the alpha-and-omega of bad campaign-finance doctrine.

We are seeing this play out again amid reports that Uvalde police stood around and did nothing for almost an hour while the shooting continued. Everyone points to Castle Rock v. Gonzalez as establishing the (awful) principle that police have no constitutional duty to protect from third-party harms. But as with CU, Castle Rock broke no new ground. It built on the real culprit, DeShaney v. Winnebago County, which everyone is ignoring in the Twitter debate.

Castle Rock arose from a father who kidnapped his three daughters in violation of a restraining order. Despite pleas from the mother, officers did nothing to enforce the restraining order by looking for the father or the kids. About 10 hours later, the father appeared at the police station with the girls' bodies in his truck and committed suicide-by-cop. The mother sued the department on a theory that the failure to take steps to enforce the TRO deprived her of procedural due process; a 7-2 Court rejected the claim. Scalia (for 7) said the mother lacked a protected property  interest in enforcement of the TRO because the police had inherent discretion in when and how to enforce the order and enforcement had no inherent monetary value; Souter concurred (with Breyer) to argue that enforcement of the TRO is a process and there is no due process right to an underlying process.

The real constitutional injury should have been that the girls ls were kidnapped and murdered because the police did nothing--a substantive claim for deprivation of their life and liberty, not about the failure to provide process. That is, the injury was in the result (the girls were murdered), not by the failure to provide process. But DeShaney foreclosed that claim when it held that government action, never government inaction, violates substantive due process; government failure to protect people from third-party harms cannot be the basis for an SDP claim. The plaintiff in Castle Rock tried to use PDP to get around that limitation. DeShaney did not involve cops. But it, not Castle Rock, is the source of the problem and the reason there can be no constitutional liability for the Uvalde officers' failure to act.

DeShaney established or hinted at two exceptions. It acknowledged that the government has a duty to protect those with whom it has a "special relationship," typically where government has assumed involuntary custody over a person and thus an obligation to provide for his well-being. But every circuit holds that school does not constitute such a special relationship--school officials have no affirmative duty to protect students, which necessarily means police officers have no such duty when they are called to the scene.

DeShaney also stated that the government had not created the danger to the plaintiff or done anything to make him more vulnerable to it. From this language, lower courts developed the "state-created danger" theory, imposing SDP liability where the government takes some action that creates or worsens a plaintiff's vulnerability to third-party harms. Unfortunately for the families, the 5th Circuit is the lone court of appeals to reject this theory; short of the court changing its mind or using the case to get to SCOTUS, this is a non-starter in Texas.

If it were available, I am trying to figure out whether a claim is possible. An affirmative act is required--not mere inaction of doing nothing but some affirmative steps. So standing in the hallway waiting for a key cannot state a claim, nor can the failure to transmit or act on 911 calls showing kids alive in the classroom. Reports suggest the Uvalde police affirmatively stopped parents from entering the school (including cuffing one person) and affirmatively stopped federal agents from entering the school; that could do it, although plaintiffs must show causation (that their children might have been saved had local police not stopped others from helping) and that preventing help was conscience-shocking. Some courts have found liability on an inaction-as-message theory--the failure to act sent a message to the wrongdoer that he could act with impunity; I doubt that works here, because the shooter was not aware of or reacting to the inaction.

The facts of this case keep changing, so expect to learn more. But the police-critical narrative taking hold is "police get impunity for their actions, but have no obligation to act to protect the public" makes no sense as a democratic bargain. But the second piece of that narrative derives not from Castle Rock, but from DeShaney.

Judge Newsom in the news

Three weeks of grading and a round of edits have limited my writing here. Let me jump back in with a short ode to the recent work of Eleventh Circuit Judge Kevin Newsom.

Everyone is talking about Newsom's opinion for a unanimous panel declaring every significant provision of Florida' social-media law constitutionally invalid. Although a few disclosure provisions survive, the opinion is an overwhelming win for the web sites--content moderation is First Amendment-protected editorial decisionmaking; social-media sites are not common carriers (and slapping that label on them is meaningless, anyway); and the state has no legitimate, much less substantial or compelling, interest in telling the sites what speakers or speech it must keep on the site. The decision creates an interesting procedural bind. A district court declared Texas' similar law constitutionally invalid and enjoined enforcement, but the Fifth Circuit stayed the injunction without explanation following oral argument. The plaintiffs in that case have asked SCOTUS to lift the stay and reinstate the injunction; that is pending. We are left with this weird sort-of splitt--all reasoned opinions (one Eleventh Circuit and two district courts) declaring the laws invalid against tea leaves (the unexplained stay and the tenor of argument) hinting at the Fifth Circuit coming out the other way. Is that enough for the Court to take the case?

Equally interesting is two Newsom concurrences. U.S. v. Jimenez-Shimon, written by Newsom for a unanimous panel, declared valid a federal law criminalizing firearms possession by undocumented immigrants and affirmed a conviction. He then concurred in his opinion to question the use of tiers of scrutiny for the Second Amendment (which should be based on text and history) and generally, with a nice thumbnail sketch of the many pieces of First Amendment doctrine that he calls "exhausting," "judge-empowering," and "freedom-diluting." Resnick v. KrunchKash reversed a jurisdictional dismissal, finding that a § 1983 action against a creditor for using state garnishment proceeding was not wholly insubstantial and frivolous. Newsom concurred for the panel to reject Bell v. Hood and the idea that a case is so frivolous as to deprive the court of jurisdiction; calling it an issue that had bothered him since law school, Newsom argued that a claim that pleads a federal issue on its face gives the court jurisdiction, even if the claim is an obvious loser. These are of a piece with his concurrence from last year adopting the Fletcher view that standing is merits, wrongly mischaracterized, and arguing that any limits on Congress' power to create new private rights comes from Article II rather than Article III.

I unsurprisingly agree with Newsom on standing and Bell and have written as much. It is interesting to wonder about Newsom's broader agenda. He is young (49) and conservative. Is this a way to position himself as potential SCOTUS pick? He does it not through outward insanity in destroying the administrative state and Commerce Clause, as with the Fifth Circuit folks. Instead, he is thoughtful and scholarly, pondering important-but-not-hot-button issues that have "bothered" him since he sat in Fed Courts as a law student and that he is trying to work out 25 years later.

Random reactions to some items in the news

My response to some random news items.

• Leah Litman and Steve Vladeck argue discuss the constitutional rights that could be on the chopping block if the Dobbs draft becomes the Court's opinion, with the provocative headline "The Biggest Lie Conservative Defenders of Alito's Leaked Opinion Are Telling." Conservative commentators and others have taken umbrage, especially to the headline and to the implication, pointing to Alito's efforts to distinguish abortion from other unenumerated rights and the supposed "popularity" of these other rights. As Leah and Steve argue, there are distinct pieces to this: 1) What GOP legislatures and executives might try to do and 2) How SCOTUS will respond to litigation over such efforts.

The lens of judicial departmentalism sharpens what is happening here. Legislative and executive officials have never been bound by SCOTUS precedent; they have been free to enact and enforce/threaten to enforce laws that run afoul of Roe/Casey, Griswold, Obergefell, etc. Those efforts fail in the lower courts, which are bound by SCOTUS precedent, and likely fail in SCOTUS in the absence of willingness to overrule precedent. If the Alito draft becomes the Opinion of the Court, it does not authorize previously unauthorized conduct in the political branches. It emboldens them to pursue these laws, believing that these efforts will be less pointless (because having a better chance of success) and less costly (because defeat in court means attorney's fees). One commentator (not sure who) argued that Roe is unique because it never gained broad acceptance, unlike Brown. Describing Brown as widely accepted is so ahistorical that whoever said it should no longer be taken seriously. But Brown illustrates how judicial departmentalism operates. The Southern Manifesto and pieces of "Massive Resistance" exemplified how political branches can continue to follow their own course.

The issue always comes returns to SCOTUS and how ready it is to overrule precedent. Massive Resistance failed when courts smacked them down (as happened in Cooper and elsewhere), except courts did not do that often enough. Similarly, if a majority of SCOTUS does not follow Alito where his opinion leads, fears from the left are unfounded. But it is disingenuous, as Litman/Vladeck critics do, to say that GOP politicians cannot and will not attempt to push the envelope--they always have been able to do so and always have done so. Just as it is disingenuous to argue that the Dobbs draft does not lay the rhetorical and precedential groundwork to overrule other cases because the Justices may choose not to do so.

• Vice tells the story of Romana Didulo, a Candian Q-Anon person who convinced followers (who believe she is Queen and running Canada behind the scene) to stop paying their utility bills because water and electricity are free. The consequences to her followers, many of whom are financially vulnerable, should be obvious. This is a consequence (ironic? unfortunate? inevitable) of our approach to free speech. Because it is almost always impossible to stop or punish the bad speaker, consequences fall on those who listen to the bad speaker and engage in criminal (1/6 insurrectionists) or unwise (the people who stop paying their utility bills) activities. We hope the negative consequences prompt listeners to turn away from the speaker, who, deprived of an audience, stops speaking. But that is a long process and one that often harms those who cannot afford it, while the powerful remain insulated.

More confusion on legislative immunity

I wrote a few weeks ago about a Ninth Circuit case allowing a state legislator to pursue a First Amendment retaliation claim against legislative leaders who restricted his access to the capitol, wondering how this was not governed by legislative immunity. Further confusing matters, the Sixth Circuit holds that legislative immunity bars a First Amendment retaliation claim against the heads of a party caucus for expelling a member from the caucus (and denying her party resources). Unless there is a meaningful distinction in the legislative nature of "you no longer get to hang out with us in the legislative process" and "you must notify us before enter the chamber," both decisions cannot be correct.

Who assigned this and why? (Update)

Who assigned Dobbs to Alito--the Chief or Thomas?

Assume the following at conference: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett want to overrule Roe, declare the MS law valid, and enter judgment for the state; the Chief wants to declare the MS law valid as not imposing an undue burden  and enter judgment for the state. Who is the senior-most Justice in the majority? What is the "majority" when in Conference and before any opinions have been written--is it a majority for the judgment ("the law is constitutionally valid, plaintiffs lose, state wins") or is it majority for a rationale or an answer to a QP (Roe/Casey are overruled)? If the former, the Chief keeps the assignment; if the latter, Thomas gets the assignment.

I raised this question (without a satisfactory answer) over the now-meaningless June Medical, where four Justices (Breyer for Ginsburg, Sotomayor, and Kagan) declared the law invalid by balancing burdens and benefits under Casey and the Chief agreed the law was invalid but on the logic of WWH and considering only the burdens; did the Chief assign or did Ginsburg? Does the assignment work differently when there is a majority for a result but not for a rationale, as in June, as opposed to where there is a majority for a rationale plus extra votes for the result?

My best guess is Thomas assigned it. If so, I am impressed (and a bit curious) that he chose not to keep it for himself. Casey was decided during Thomas's first Term, meaning he has been waiting his entire time on the Court for this opportunity.

If Roberts assigned it, the choice of Alito creates all sorts of Kremlinology. If Roberts  (presumably) wanted to make the least noise, he would not have assigned it to Alito, knowing the likely tenor of the opinion. Or he assigned it to Alito intentionally, knowing he might draft an opinion (what my colleague called a "nuclear bomb overruling") that might scare off Kavanaugh or Barrett. In which case the "conservative leaker" theory makes sense as a counterpunch to that. Anyway, I doubt anyone thinks this way, which is why I believe the relevant majority was to overrule Roe and Thomas gave the opinion to Alito.

Update: This question was raised on the Con Law Prof listserv. No one knew for sure, although one former clerk says his understanding is that the majority is for the bottom-line disposition. This make some sense, the person argued, because some justices only have identified a conclusion but not a reason at conference. Alternatively, many cases may have a bottom-line majority but competing reasons, none garnering the initial support of any 5; the only way to identify a seniormost-in-the-majority is to go by majority for the judgment, meaning the Chief assigned Dobbs. It also would follow that the Chief, rather than Ginsburg, gave Breyer June Medical.

Of leaks and legitimacy

I am not as outraged by the leak as Paul is, although I agree it suggests something about the elevation of individual personalities over the institution. I want to weigh in on a couple points. (Update: Mark Graber argues that leaks, especially from the Court to the executive but also to the press, were common during the 19th century).

• Regardless of the source--Justice, clerk, court personnel--there are plausible arguments for the source coming from either side of the divide over reproductive freedom. A critic of the decision might leak hoping that public outrage might sway someone off the Alito opinion or, seeing that as a lost cause, to get an early start on generating political activism to prompt Senate action (a law codifying the right to reproductive freedom passed the House but is stuck behind the Senate filibuster*) or to get Democrats to the polls. A supporter of the decision might hope publicity surrounding the prospective opinion would shore-up Alito's majority; soften the public outrage when the opinion issues (closer to the election), so that the anger has dissipated by November; and distract from the story of the Court eliminating reproductive freedom (and perhaps other rights, more on that below) by offering the story of the leak, failed processes, and the Court-as-institution as a competing narrative. As a couple people have put it, the leak is a story, but not the story; the source might have hoped to make it the story, especially in the right-wing noise machine (which will suggest the source is from the other side). One person on the ConLawProf Listserv suggested Alito might be the source--knowing he will be forced to soften the language in the published opinion, he gets his raw thoughts into the world and becomes a Fed Soc rock star.

[*] Putting aside whether such a law is valid under the Commerce Clause or § 5, a question that the same five-Justice majority would likely answer in the negative two years from now.

• I do not understand the insistence that the decision is "illegitimate." I think it is wrong, uses (typically) bad history, and written with the usual Alito arrogance and causticity that grates on me (even when I agree with him). But it does not say anything that Roe/Casey critics have not been saying for years; it reads as the opinion overruling Roe that we have feared for years, at least as written by Alito or Scalia. But that should not make it "illegitimate" any more than Roe/Casey are illegtimate, as Alito suggests throughout the opinion.

What makes it illegitimate as a judicial decision--as opposed to wrong as a matter of substantive constitutional law--for people who do not subscribe to Eric Segall's view that the entire SCOTUS enterprise is illegitimate?

    1) It overrules precedent. No, because the Court has overruled or changed precedent in the past. It has standards for doing so. And disagreeing with how Alito applies those principles is a critique on the merits.

    2) It eliminates an existing constitutional right. That has never been part of the stare decisis or constitutional analysis. While perhaps a worthwhile constitutional principle (a judicial presumption of liberty, if you will), that again goes to correctness on the merits rather than structural legitimacy.

    3) Everything that went into how the five-Justice majority was formed--GWB and Trump losing the popular vote (such that 4/5 of the majority was appointed by a President who, at least initially, was a minority President); McConnell holding Gorsuch's seat open for more than a year; Kavanaugh perhaps perjuring himself; McConnell ramming the Barrett nomination through, Susan Collins Susan Collinsing, etc. But it seems to me that proves to much, rendering "illegitimate" any decision from this Court for the foreseeable future. And many might agree with that conclusion. But we cannot ignore the role of politics, a less "clean" process than the judicial is supposed to be, in the appointment process. Other Presidents and Congresses have gained or sought to gain political advantage through the Court. What makes this uniquely illegitimate.

I am not trying to downplay how bad this opinion is. I am concerned that "illegitimacy" is the new "judicial activism"--an illegitimate decision is any decision I disagree with written by a justice I do not like. That is not helpful to the discourse or to the functioning of any institution. Or it is the new obscenity--I know an illegitimate or judicial activist opinion when I see it (usually because I disagree with it).

• I cannot tell how much mischief the opinion can do in the future--whether it also takes out marriage equality, freedom of intimate association, contraception. Alito tries in several places to distinguish those rights as not involving potential life, although query whether that holds true for contraception, given some religious views about what constitutes abortion and the misunderstanding of how some contraception works. The rigid historical approach to substantive due process does not bode well for rights and interests that have developed in a modern, more open, more technologically advanced, and more accepting society.

Everything wrong with qualified immunity

in this Sixth Circuit decision granting qualified immunity to two police officers who arrested and commenced prosecution of a man for creating a Facebook account parodying the local police department. To wit:

• The court skips the merits, ignoring the obvious First Amendment concerns and doing nothing to establish or further the meaning of the First Amendment.But the panel does not want to be seen endorsing obvious overreach implicating the First Amendment, so they suggest "doubts"that what the government did was worth the time and effort And they urge police, quoting Bari Weiss (!) to "say 'No.'" This seems like the worst of all worlds. The court recognizes and calls out the wrongfulness of government conduct, but not in a way that has any effect on the next cop to pull this stun (and there will be a next one). Instead, the court does something that I would have expected Fed Soc judges to abjure--issuing lectures to other branches of government having no force or effect.

• This was not a fast-moving, emergency requiring snap judgments in a life-threatening situation that courts should not second-guess. These officers had time and space to think and consider what they did with respect to an obvious parody and knew why they did it. Whatever the need for qualified immunity in the former case, it should not apply in the latter. And, again, because the court skipped the merits, there remains no Sixth Circuit precedent on these facts to move the right towards being clearly established.

• The court also rejected municipal liability, again on a narrow conception of who is a policymaker and what qualifies as failed training. Municipal liability is unfortunately and unnecessarily narrow, so I am not sure the decision is wrong based on prevailing doctrine.

This case again illustrates the problem of defining what it means to vindicate one's rights. Is it enough to avoid liability for enforcement of a law in a constitutionally invalid way (as the plaintiff did here)? Or should there be some retroactive, substitutionary remedy such as damages for making an individual deal with that process? Section 1983 exists, in part, to ensure the latter. Limits such qualified immunity and narrow municipal liability render that a less-effective weapon for that purpose.