Friday, January 20, 2023

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."

Posted by Howard Wasserman on January 20, 2023 at 03:07 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, January 18, 2023

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.

Posted by Howard Wasserman on January 18, 2023 at 09:31 AM in Books, Law and Politics | Permalink | Comments (0)

Monday, January 16, 2023

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.

Posted by Howard Wasserman on January 16, 2023 at 09:31 AM in Books, Law and Politics | Permalink | Comments (0)

Friday, January 13, 2023

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.

Posted by Howard Wasserman on January 13, 2023 at 09:31 AM in Books, Law and Politics | Permalink | Comments (0)

Wednesday, January 11, 2023

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.

Posted by Howard Wasserman on January 11, 2023 at 09:31 AM in Books, Law and Politics | Permalink | Comments (5)

Monday, January 09, 2023

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.  

Posted by Howard Wasserman on January 9, 2023 at 09:31 AM in Books, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, January 01, 2023

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.

Posted by Howard Wasserman on January 1, 2023 at 11:42 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, December 29, 2022

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.

Posted by Howard Wasserman on December 29, 2022 at 11:52 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, December 18, 2022

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.

Posted by Howard Wasserman on December 18, 2022 at 10:53 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, December 09, 2022

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.

Posted by Howard Wasserman on December 9, 2022 at 08:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Tuesday, November 22, 2022

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.

Posted by Howard Wasserman on November 22, 2022 at 09:31 AM in Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, November 16, 2022

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).

Posted by Howard Wasserman on November 16, 2022 at 01:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on November 16, 2022 at 10:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Friday, November 11, 2022

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.

Posted by Howard Wasserman on November 11, 2022 at 05:36 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, November 07, 2022

§ 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.

Posted by Howard Wasserman on November 7, 2022 at 06:55 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, November 04, 2022

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.

Posted by Howard Wasserman on November 4, 2022 at 03:00 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Wednesday, October 19, 2022

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.

Posted by Howard Wasserman on October 19, 2022 at 05:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, September 13, 2022

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."

Posted by Howard Wasserman on September 13, 2022 at 04:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 09, 2022

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:

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Posted by Howard Wasserman on September 9, 2022 at 02:45 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, September 05, 2022

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.

Posted by Howard Wasserman on September 5, 2022 at 01:07 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 18, 2022

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.

Posted by Howard Wasserman on August 18, 2022 at 09:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, August 07, 2022

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.

Posted by Howard Wasserman on August 7, 2022 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, August 04, 2022

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.

Posted by Howard Wasserman on August 4, 2022 at 06:10 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Tuesday, July 26, 2022

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."

Posted by Howard Wasserman on July 26, 2022 at 03:19 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, July 19, 2022

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.

Posted by Howard Wasserman on July 19, 2022 at 05:54 PM in Howard Wasserman, Law and Politics, Television | Permalink | Comments (0)

Monday, July 11, 2022

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.

Posted by Howard Wasserman on July 11, 2022 at 02:06 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 29, 2022

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.

Posted by Howard Wasserman on June 29, 2022 at 04:50 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, June 25, 2022

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.

Posted by Howard Wasserman on June 25, 2022 at 10:45 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, June 24, 2022

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?

Posted by Howard Wasserman on June 24, 2022 at 04:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, June 08, 2022

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.

Posted by Howard Wasserman on June 8, 2022 at 10:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 31, 2022

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.

Posted by Howard Wasserman on May 31, 2022 at 07:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, May 29, 2022

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.

Posted by Howard Wasserman on May 29, 2022 at 09:58 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 24, 2022

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.

Posted by Howard Wasserman on May 24, 2022 at 10:41 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 11, 2022

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.

Posted by Howard Wasserman on May 11, 2022 at 04:49 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 10, 2022

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.

Posted by Howard Wasserman on May 10, 2022 at 08:44 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 03, 2022

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.

Posted by Howard Wasserman on May 3, 2022 at 11:37 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on May 3, 2022 at 10:29 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, April 30, 2022

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.

Posted by Howard Wasserman on April 30, 2022 at 01:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, April 19, 2022

Abstention is down on its luck these days

(Thanks to Gerard for the title):

Another district court has declined to abstain from an action to enjoin a state proceeding to remove a 1/6 insurrectionist from the ballot under § 3 of the Fourteenth Amendment. This time it is the Northern District of Georgia in a suit by Marjorie Taylor Greene. The court does a better job than the Eastern District of North Carolina in Cawthorn. In fact, I think the court got it right. The state  ballot-challenge proceeding is a private dispute--between a challenging voter and the candidate--in a state-run proceeding, rather than a state-initiated and state-enforced proceeding. That resembles the PUC proceeding at issue in Sprint and does not fit the second category of a quasi-criminal civil enforcement action. And it does not fit the third category of a uniquely important judicial order (akin to contempt or pre-trial sequestration or post-trial appellate bonds), lest all private proceedings and all orders within those proceedings fall within Younger. (The Georgia court reached the correct result on the merits and refused to enjoin the state proceeding).

A distinct question is whether some other abstention doctrine should be in play, to keep state defendants from running to federal district court just because, as the EDNC court held, really important federal interests are in play. One possibility is Colorado River, which allows abstention to avoid parallel litigation. A better candidate Burford, which requires abstention in deference to state proceedings that are part of an integrated state regulatory scheme. Do elections qualify? Are they the equivalent of Texas regulating oil drilling?

Posted by Howard Wasserman on April 19, 2022 at 11:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, April 17, 2022

Judge Sutton on universal injunctions

Judge Sutton wrote a concurrence (begins at p.18) critiquing the power to issue universal injunctions, both from an Article III and remedial prospective. Along with Judge Manion's concurrence, this is the best judicial explanation for why universal injunctions are improper and why arguments for them collapse under their own logic. Sam Bray reprints the whole thing.

Posted by Howard Wasserman on April 17, 2022 at 12:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, April 01, 2022

"Don't say gay suit" filed

Complaint here (my wife is friends with two of the plaintiffs). I am trying to figure out whether this runs into some standing/11th Amendment/EPY problems from not having the correct defendants.

The law prohibits schools and teachers from discussing certain topics in and out of class and requires schools to report LGBT+ students to their families; it subjects teaches, administrators, and school boards to suit by random objecting parents. Plaintiffs are a collection of advocacy organizations, students, parents, and one teacher; defendants are DeSantis, State Board of Ed, BoE members, Commissioner of Education, and several school boards.

Despite the similarity of the private-enforcement scheme Florida adopted, most plaintiffs do not have the SB8 problem. Their rights are violated because teachers, administrators, schools, and school boards--fearing private suit and liability under the law--follow this invalid law in allowing or not allowing certain speech and in doing or not doing certain things. In essence, the state legislature compels local governments to violate students' rights by siccing parents on those local governments for failing to violate students' rights. Although limiting speech and discriminating out of fear of suit rather than (necessarily) a desire to stifle expression or to discriminate, teachers and school boards in following this law in the classroom act under color of state law and violate students' and parents' rights. So I think a violation is sufficiently imminent if a student can allege "I have two mothers and it is clear that teachers will not allow any discussion of my parents in class because this law exists and they are worried about being sued."

The one plaintiff who might have a problem is the teacher, who is subject to enforcement only by a private suit by an as-yet unidentified parent, but no government sanction; that teacher is similarly situated to an abortion provider under SB8, in that he protected speech is chilled by the threat of suit by an unknown rando. The teacher's claim might depend on how the BoE or a local school board implements the law and whether they impose governmental sanction on a teacher apart from any private lawsuit. For example, does the school threaten to fire or sanction teachers who violate the law and gets sued? Or does the school threaten not to indemnify-and-defend a teacher who gets sued for violating this law? That would constitute further government action disadvantaging that teacher because of her constitutionally protected conduct and in furtherance of an invalid law.

That said, jurisdictional/procedural questions remain. Although DeSantis is the villain in the complaint's narrative (and really any narrative in this verkakte state), I doubt he is a proper defendant, because he plays no role in enforcement. I also wonder if a court might find some claims, although against a proper defendant, premature. Perhaps the necessary imminent harm to the plaintiffs depends on further action by someone  to put the statutory limits into action--a school or board imposing regulations with some penalties or a teacher actually silencing that student with two mothers who wants to draw a picture of her family.

I have focused on the procedure and jurisdiction rather than the substantive constitutional violations at this point. Some seem iffy. There is a First Amendment claim based on a right to receive information. But a student or parent does not have a First Amendment right to dictate the curriculum, so cannot base a violation from the school refusing to teach certain matters in the classroom. The question is whether equal protection adds something when that curricular decision is motivated by discriminatory animus (there are 14th Amendment and Title IX claim in the mix for that purpose). Or whether vagueness adds something because no one can figure out what the curriculum is.

The complaint makes noise (although does not base a claim) on the use of "diffuse" private enforcement as nefarious and invalid. I obviously reject the argument here for the same reasons I reject it as to SB8.

Update: And just like that: A parent in St. John's County complained about a teacher wearing a "Protect Trans Kids" t-shirt at school, and the school administration asked the teacher to change shirts (which she did). This is not directly about the new law; district policy prohibits teachers from wearing clothing or apparel with written messages. But I wonder if the regulation was honored more in the breach and that this (and other) teachers wore message-bearing clothing without incident. And if the new law empowered the parent to complain, where most parents let it go. The story illustrates a couple of things. First, it shows how we get state action from civil enforcement, unlike in SB8--legally empowered parent complains, school takes action, school's actions violate rights. Second, it shows what the legal arguments might look like. If teachers regularly wear message-bearing clothing but only the teacher with the pro-LGBTQ+ message is asked to change out of fear of suit under the new law, it helps plaintiffs establish standing by showing that having to change shirts was not caused by the neutral policy (which is ignored anyway) but by the school's actions in response to the new law.

Posted by Howard Wasserman on April 1, 2022 at 03:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, March 26, 2022

Double it

The Utah legislature overrode Governor Spencer Cox's veto and enacted a law banning trangender girls from participating in girls sports. Cox garnered national attention last week in vetoing the bill while pointing out statistics on mental health and suicidality in transgender youth compared with the one transgender girl seeking to play sports in the state. The legislature also passed a bill allocating $ 500,000 for schools to cover the costs of defending the ban.

But that amount misses by a half. If the bans are declared constitutionally invalid, the boards are going to be on the hook for the plaintiffs' reasonable attorney's fees in successfully challenging the law, beyond whatever they spent to defend it.

Posted by Howard Wasserman on March 26, 2022 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, March 23, 2022

More offensive SB8 actions

Abortion-funding organizations have filed lawsuits against the Thomas More Society (ND Ill) and the America First Legal Foundation (DDC), seeking to enjoin them from bringing actions to declare SB8 constitutionally invalid and to enjoin them from enforcing the aiding-and-abetting provisions of SB8. Both defendants have initiated pre-suit discovery proceedings in Texas court, seeking to gather information about the organizations' funding efforts; they use that as the basis for standing, arguing that it shows an intent to enforce.

There should not be a Younger problem. The target of a pre-suit discovery proceeding cannot challenge the constitutional validity of the underlying law that might be the basis for the suit; the organizations therefore lack the adequate opportunity to raise their federal constitutional rights in that proceeding.

The complaints have several potential problems as pleaded. First, they lack allegations that the defendants act under color, which is necessary to state a constitutional claim. Second, I wonder if they may be subject to a § 1404 motion to transfer venue. Plaintiffs went to the defendants' "homes" to get out of Texas. But if the purpose of a suit is to challenge the validity of Texas law and to stop the initiation of suits in Texas courts under Texas law, it seems as if a district court within Texas would be a more proper forum. I had not considered this issue until now and I have to give it more thought. Third, the fourth claim alleges SB violates due process by expanding who can bring state-court suits beyond Article III; that is nonsense.

As an abortion-rights supporter, I am glad to see the community moving past the simple approach of WWH (which was bound to fail) and identifying real, if more complicated, ways to challenge the validity of the law.

Posted by Howard Wasserman on March 23, 2022 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, March 21, 2022

Legal Misunderstanding March Madness

Via Mike Masnick at TechDirt. Here is the Spreadsheet for downloading.

Have fun. And watch for Fire in a Theater, underseeded at a 6.

Posted by Howard Wasserman on March 21, 2022 at 09:44 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Exclusivity and personal rights in bounty litigation

Those insisting that SB8 is unprecedented and those warning of every new law "modeled" on SB8 ignore that we have been leaving in a similar world for some time. Two Ninth Circuit cases show the prevalence of such laws and the broader implications of the surrounding procedural arguments.

California law requires businesses to post signs when their produces contain certain carcinogens. "Any person in the public interest" may bring suit against a business that fails to post signs; the penalty is $ 2500 per violation per day, with "any person" keeping 25 % plus attorney's fees. Like California's former false-advertising laws, private enforcement is not exclusive and the AG and other public officials can initiate enforcement actions.

In B&G Foods, the target of a state enforcement action brought a § 1983 action against the "any person" state plaintiff (a serial enforcer). The court assumed the "any person" was a state actor, then held the lawsuit barred by Noerr-Pennington, under which a person cannot be liable under federal law (including a § 1983 constitutional action) for the petition activity of seeking relief in state court. In California Chamber of Commerce, the court declared the state law constitutionally invalid as violating business' First Amendment rights against compelled expression; it enjoined the AG and an intervenor environmental organization from future enforcement.

The federal plaintiff in B&G did what Rocky and I proposed--sued the "any person" state plaintiff as a state actor to enjoin that enforcement action and to establish precedent about the constitutional validity of state law. I think the court was correct in rejecting the claim, although for the wrong reason. I would say the state plaintiffs did not act under color because their enforcement authority is not exclusive and they do not keep the entire public-serving penalty. If these plaintiffs act under color, then every private A/G and qui tam plaintiff acts under color; it should not be that broad. At the same time, although seemingly consistent with Ninth Circuit precedent, this expands Noerr-Pennington by giving state and local governments petition rights. It thus protects private persons who act on behalf of the government, as opposed to petitioning on behalf of their personal/private interests, which was the original basis for NP. We may have to explore that more in-depth.

Chamber did not address whether the advocacy group acts under color, which should have been necessary to enjoining them from future enforcement. On the other hand, I credit the court with self-restraint in not enjoining non-party private persons from bringing new enforcement actions.

Posted by Howard Wasserman on March 21, 2022 at 04:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, March 16, 2022

The Younger analysis was not much better

Gerard explains why the district court in Cawthorn was wrong on the merits. Here is why the court was wrong in not abstaining under Younger.

    1) The court held that the federal proceedings had gone further and faster than the state proceedings, therefore the federal proceeding did not interfere with the state proceedings. This reverses the presumption that a state proceeding be allowed to continue and that the district court stay its hand. Courts consider the relative progress of the proceedings where the federal action is filed first; courts abstain if the federal action had not gone very far. (This is problematic, because it creates perverse incentives for prosecutors, but it is what we are stuck with). It does not work in reverse; if the state proceeding is filed first, the federal court cannot proceed, full stop.

    2) The court also said the relative progress and the multiple layers of state proceedings meant Cawthorn did not have an adequate opportunity to raise his constitutional arguments i. But adequate opportunity is about whether the party has an opportunity to raise and have resolved issues in the state proceeding, including on subsequent state judicial review of an administrative proceeding. Federal courts do not superintend (otherwise-constitutional) state processes and decline abstention if those state proceedings do not move to the liking of the district court.

    3) The court said this case iimplicates "federal interests in interpreting federal law and the U.S. Constitution." As stated, this swallows Younger. All Younger cases require interpretation of federal law and the U.S. Constitution; if the state proceeding involved only state law, the federal court would not have jurisdiction from which to abstain. So if interpretation of federal law is sufficient, no court would abstain. The whole point of Younger is that any "federal interest" in interpreting federal law is not exclusive or can be satisfied by SCOTUS review of the state proceedings.

The Fourth Circuit should not reach the merits, as Gerard suggests, because abstention, as defined, is warranted here.

Posted by Howard Wasserman on March 16, 2022 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, March 11, 2022

No offensive challenges to SB8 against licensing bodies

In Whole Woman's Health v. Jackson, an offensive challenge to SB8, eight Justices (all but Thomas) held that litigation could proceed against state licensing bodies (medical, nursing, pharmaceutical, etc.) to enjoin them from "indirectly" enforcing the heartbeat ban by using performance of a prohibited abortion as the predicate for an administrative sanction. The Court remanded to the Fifth Circuit, which certified to the Supreme Court of Texas whether state law allowed such indirect enforcement. The state court on Friday answered that certified question "no," holding that making private civil litigation the "exclusive" enforcement mechanism meant that no state body had any power to regulate or sanction any person for any SB8 violations in any way.

This is a setback, although a relatively minor one because the action against the medical board could have limited effect. An injunction would have stopped the boards from pursuing licensure actions against providers. It would not have protected those aiders-and-abetters (advocates, Uber drivers, etc.); the state does not license or regulate them or their behavior. And it would not have stopped private "any persons" from bringing civil suits. The suit and injunction would have provided federal precedent declaring SB8 constitutionally invalid and a speedier path to SCOTUS review of the merits. But it would not have stopped the main enforcement mechanisms or cleared the way for providers to return to medical practice as usual.

There may be a way to salvage this action and push federal litigation. One plaintiff, Alan Braid (the doctor who announced having performed a prohibited abortion in the Washington Post), is a defendant in two state-court actions over that abortion, one brought by the Texas Heartbeat Project and one by a disbarred Arkansas lawyer under house arrest. Braid could amend the complaint to name them as defendants acting under color and seeking to enjoin them from pursuing their civil actions. (Braid also has a § 1983 and interpleader action in federal court in Illinois against a third SB8 plaintiff who nonsuited).

Meanwhile, Braid can move to dismiss the pending state actions on the ground that SB8 is constitutionally invalid and proceed to litigate the constitutional issues defensively in state court.

In a bizarre way, this might help judicial challenges to SB8. As Rocky and I argue, this offensive challenge was dubious, given how SB8 was drafted and how it operates. Unable to pursue any "ordinary" mechanism, providers and advocates can focus on unusual-but-available mechanisms on which they are more likely to succeed.

Posted by Howard Wasserman on March 11, 2022 at 01:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, February 28, 2022

Quick thoughts on the Jackson nomination (Update)

1) The new attack appears to be "high reversal rate." Steve Vladeck shows some (noisy) numbers which suggest her reversal rate is lower than average. But why does this matter? Reversal means two or three randomly assigned court of appeals judges disagreed with her. It does not mean she was "wrong" or "incorrect" or "bad" in some platonic sense, so as to make her unqualified. This argument should run aground on the statement by (appropriately) Justice (Robert) Jackson--"we are not final because we are infallible, we are infallible because we are final." The court of appeals reversal is "right" because we have a hierarchical judiciary. It should not suggest anything about the wisdom or qualifications of either the trial judge reversed or the appellate judges reversing. I suppose someone could try to make a point about reversals suggesting someone outside the mainstream, whatever that means. But R. Jackson's comment works for mainstream as much as for correctness--the court of appeals defines the mainstream because it is final.

2) Jackson's trial-court experience will be a plus because the widest range of experiences among members of a multi-member body is a good thing. I am not sure of its broad doctrinal effects. I have been trying to think of recent major procedural decisions that made life difficult or easy for district courts and how having a former trial judge might have changed the Court's decision. Twiqbal was decided by a Court without trial experience (Sotomayor joined the Court a few months later), but but the Court has not done much with it in recent years. The 2015 discovery amendments empowered trial judges to manage cases, but those came about through the REA rather than through case resolution. Sotomayor was the lone dissenter on the narrowing of general jurisdiction, but I cannot tell how her judicial experience affected her position.

Jackson's trial experience may be less about forward-looking doctrine than about resolution of individual cases, especially those on the shadow docket. The increased activity in emergency relief and cert grants before judgment reflect a certain distrust of trial-court judges. SCOTUS gets to decide, not one district judge somewhere. Cares therefore should not remain in the trial court for long, the rhetoric of appellate deference disguises close review, and the trial court's decision (granting or denying relief) should not have real effect; the trial judge is a quick step for parties to clear before the real work begins on appeal, not owed real deference. Perhaps Jackson will push back on this trend and push her colleagues to show actual deference to trial courts.

3) The meaningful point is her experience as a public defender and defending Guantanamo detainees, about which Andy Koppelman writes.

4) Jackson will be confirmed, probably with 2-3 Republican votes (I read the over-under is 56; take the under). Everything around it will be noise, although with some "soft on crime" demagoguery to spice things up.

Posted by Howard Wasserman on February 28, 2022 at 04:29 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 26, 2022

Breyer to retire

Story here. I presume Ketanji Jackson will be the nominee, which was part of the point of her elevation to the D.C. Circuit. Any chance Sinema or Manchin will throw a fit on this one?

Posted by Howard Wasserman on January 26, 2022 at 12:38 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 22, 2022

Henry Ford apologized?

I had no idea until a link in this article on the long history of antisemitic conspiracy theories took me to Ford's 1927 written public apology following negotiations with Louis Marshall, president of the American Jewish Committee. Ford said he did not know about the content in the Dearborn Independent or The International Jew because he turned management to others; was "shocked" and "mortified" by their content; retracted the statements; withdrew the publications from circulation (although they were, and remain, out there); and asked for forgiveness from the Jewish community for unintentional harm. Marshall responded with a promise to further the request for forgiveness "so far as my influence" can reach, because "there flows in my veins the blood of ancestors who were inured to suffering and nevertheless remained steadfast in their trust in God." Of course, the apology did not prevent Ford from receiving a medal from Nazi Germany.

The apology arose as an effort to resolve a defamation lawsuit against Ford and the Independent by a Jewish lawyer named Aaron Sapiro that exposed Ford's antisemitism. Although the alleged defamatory statements had nothing to do with Sapiro's being Jewish, defense counsel struck two Jewish jurors, plaintiff counsel struck an ex-Klansman, and the judge asked during voir dire whether "any of you, by blood or by marriage, connected with the Jewish race." The case ended in a mistrial when Ford accused Sapiro of bribing a juror and a juror gave a newspaper interview. Ford reached his deal with Marshall to avoid a new trial, wanting to avoid continued bad publicity.

Posted by Howard Wasserman on January 22, 2022 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)