PrawfsBlawg

Trans rights and social movements

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

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

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

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

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

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

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

Major trans rights, minor trans rights, and political expediency

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trump victories and institutional statements

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

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

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

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

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

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

Sports Election Predictors

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

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

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

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

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

Morality and why politics is not sport

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

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

Vagaries of public enforcement

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

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

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

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

Fifth Circuit makes a Heck-of-a-mess

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

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

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

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

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

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

Not just federal judges

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

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

Why randomize assignments?

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

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

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

It should be constitutional

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

Collegiality for collegiality's sake

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

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

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

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

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

Not reporting v. accurately reporting

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

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

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

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

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

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

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

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

Why is this jurisdictional?

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

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

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

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

More on Rankin's revenge

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

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

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

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

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

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

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

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

When motive matters

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

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

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

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

Ballots, bullets, and media narratives (Updated)

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

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

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

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

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

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

Jurisdictionality and presidential immunity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two points about the decision.

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

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

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

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

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

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

Any player who:

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

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

shall be suspended.

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

Again, maybe judges need to stop talking about sports.

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

 

A quick note on the debate

Before I dive into today's opinions:

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

Tea leaves on gender-affirming care? (Updated)

SCOTUS granted cert in United States v. Skrmetti on whether Tennessee's ban on gender-affirming care for minors violates equal protection. This is a fool's errand, but I am trying to read the tea leaves on what it might do.

• The grant was narrow. It granted the petition of the U.S. on the equal protection issue as to Tennessee (where the Sixth Circuit held the bans were not gender-discriminatory and not subject to intermediate scrutiny). It did not grant (although it also did not deny) petitions from the private plaintiffs, their due process and parental-rights arguments, or as to Kentucky's similar law. (Compare this with Obergefell, where the Court granted as to all four states whose laws were addressed in the lower court).

• Update: I forgot an important piece, related to the fact that the U.S. is the sole plaintiff/petitioner before the Court. What happens if Trump wins the election, which likely will occur before argument (expect the case to be on the November or December calendar) and certainly will occur before a decision? The Court is suspicious of SGs changing legal positions with every new administration. But a Trump Administration could not act quickly enough to stop this litigation. How quickly can Trump get his AG confirmed?

• There is no direct circuit split (yet). A divided Court in April stayed a district court injunction barring enforcement of Idaho's ban pending appeal in the Ninth Circuit, although without getting deep into the merits and with a lot of scope-of-injunction noise; not sure how much to read into the merits there. The en banc Fourth Circuit held that states violate equal protection by denying Medicaid coverage for gender-affirming care. And the Eleventh Circuit held that an insurance provider violated Title VII in not covering an employee gender-affirming care. But no other circuit has ruled on care bans to minors. The Court typically does not take cases to affirm, absent an actual split between courts of appeals (not district courts). And it typically does not take cases anticipating a circuit split--i.e., reviewing (and affirming) the Sixth Circuit to head off the Ninth Circuit. Maybe this changes in the Court's Imperial Phase, more inclined to believe it knows the correct answer now and less inclined to allow multiple circuits to weigh on the other side before SCOTUS' ultimate resolution.

• This may be a test of Bostock and whether what remains of that majority (Chief, Sotomayor, Kagan, Gorsuch, and (presumably) Jackson in place of Breyer) holds and expands to the 14th Amendment.

I will go out on a limb: The Court holds that these bans constitute gender discrimination requiring intermediate/heightened scrutiny, then remand for the lower court to apply that. See you in about 10 months.

Trump & Capone

What is the prevailing view (among the public, lawyers, legal academics, whoever) of the "justice" of convicting and incarcerating Al Capone for tax evasion (which he did but which is far from his most serious crime) when circumstances made it impossible to convict him of those more serious crimes? It seems to me that is appropriate analogy to the New York case against Trump--he committed the underlying actions, New York renders those actions unlawful, it is not the most serious crime he committed, circumstances make it impossible to convict him (or even get a trial) on the more serious crimes.

That New York brought this case as a separate sovereign from the United States enhances this point. New York pursued the lone breach of its laws (since Trump has not, yet, shot someone on Fifth Avenue) that it could pursue. Thatt violation is less severe than the violations of federal law that the U.S. might pursue, but it is all New York has. This is different (and perhaps more legitimate) than Capone, where it was one sovereign--the U.S.--downshifting to a small offense because it could not get the larger offense.

To be clear, I am separating any possible legal defects in the Trump conviction--whether the judge erred on New York law or whether New York law violates due process. I also am separating the normative question of whether New York should have the laws it does. Assuming the legal and factual correctness of the New York verdict, is it unjust for a sovereign to get Trump on something so small?

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

Content-neutral to content-discriminatory and the changing nature of campus protests

Great conversation among Jane Bambauer, Eugene Volokh, and Erwin Chemerinksy on the Free Speech Unmuted podcast.

I will flag the conversation at the end of the hour-long discussion--when and why schools might choose not to enforce their content-neutral campus regulations against expressive activities and how failing to enforce now might disable future attempts to enforce against different groups or positions. That is,allowing a pro-Palestine group to occupy the quad or block the entry gate in violation of campus rules may render future efforts to enforce facially neutral regs against a different group content- or even viewpoint-discriminatory, at least in the near term.

The discussion offers another example of how the changing nature of campus speech--which I discuss here and here--creates new problems for university administrators. When campus protests focused on a limited number of issues about which there was general agreement, universities could afford non- or under-enforcement of neutral TPM regs because no other group or speakers wanted to use those same spaces. No pro-nukes or pro-draft groups wanted to occupy the quad or block the gate, even if they disagreed with the anti-draft occupiers. And there were not other groups seeking to use the space to speak on other issues. Offering leeway to anti-nuke campers thus did not risk opening the space up to all groups for the near future. Not so, going forward, as Erwin argues. If a pro-Israel group wants to block the campus gate at Berkeley or an anti-choice group wants to occupy the lawn, the university cannot enforce those TPM regs more strictly than it has been doing now.

Nothing good happens after 2 a.m. or when you testify before a House Committee (Updated)

David Pozen on Columbia President Minouche Shafik shattered multiple norms over how the administration deals with faculty and students.

But consider a broader lessen: University presidents have nothing to gain and everything to lose from engaging with Virginia Foxx, Elise Stefanik, and the other bad-faith Republicans on the Committee on the Education and the Workforce. Attempt (however badly worded) to defend academic freedom and the First Amendment, lose your job immediately (Liz Magill) or after they come after you on something else (Claudine Gay). Cravenly kowtow to them by throwing faculty and students under the bus, as Shafik did, destroy any credibility or support from many of your constituents--and likely fail to appease those you are trying to appease.

Update: Stefanik has called on Shafik to resign or for the Board to remove her.

FWIW, my kid and I visited Wesleyan this week for admitted-students days, occurring the same time as "Israel Apartheid Week." There were posters on campus, an attempt to interrupt the President's welcome speech, a banner hung in the room during the speech, and a rally (with probably about 50-60 students) on what I presume is the "free-speech spot" on campus. It include chants and speech, mostly about divestment and nothing that crossed into blatant antisemitism. I have a thicker skin and a different commitment to free speech than the average 18-year-old. But unless I believe I never should encounter any offensive speech, nothing came close to harassment or intimidation.

More zombie laws

Dara Purvis (Penn State) in the Conversation. She makes two points of note: One is a 2015 (12 years post-Lawrence) attempt in Louisiana to enforce a prohibition on same-sex sex--permissible under departmentalism, but a political problem to be sure. She also discusses the failed Arizona attempt to repeal the 1864 law, in which some Republicans joined with Democrats in the effort. Dara describes the many zombie laws and what legislatures can do. But it is worth highlighting Virginia's comprehensive effort to scour the statute books and find all the Jim Crow laws that should be repealed.

Why Roe is different

When SCOTUS decided Dobbs, I wondered what made it "unprecedented," as pro-choice critics argued. It was not overruling precedent simpliciter, because the Court had overruled other precedent. It was not overruling precedent to limit a right, since the Court had overruled other rights-creating precedent (Lochner, death penalty, and some crim-pro protections).

While doing an interview about the Arizona case, I think I hit on what might be different: The massive number of zombie laws, many more than 100 years old, that Dobbs reanimated. Abortion raises two related features: 1) the large number of old laws dating back to a prior understanding of medical science and a prior perspective on women's bodily autonomy and 2) the large number of abortion laws, many inconsistent or contradictory, that states enacted between 1973 and 2022 to test Roe or to prepare for its demise. Courts must now sort laws out. Women, providers, and advocates to understand a confusing landscape. The same thing did not happen after West Coast Hotel. And probably would not happen if the Court overruled Brown, New York Times, or Obergefell.*

[*] Many zombie anti-SSM provisions remain, including in state constitutions. But the issue is more straight-forward compared with the myriad laws and ways to regulate abortion.

Blaming the courts for everything (Updated)

A week late, but a thought I have been carrying about the Arizona Supreme Court decision allowing the state to enforce a restrictive 1864 abortion law in the face of a 2022 15-week ban; thus pre-15-week abortions lawful under the 2022 law are not lawful if they violate the 1864 law. The majority relied on a construction clause in the 2022 law stating that it did not repeal the 1864 law and read the provisions as distinct ways of criminalizing the same conduct. The dissent read the construction clause as part of the legislative history rather than the text and thus not a proper consideration on an unambiguous law, demanding a clearer statement from the legislature (or the public) about intent to keep the 1864 law in use. Both interpretations are reasonable, although (knowing nothing about Arizona law) I find the majority more persuasive.

No one is happy with the decision, but for interesting reasons.

The left views this as another Republican-dominated court attacking abortion on "vibes" and with total disregard for law. No one acknowledges that this is not stand-alone constitutionality but trying to act on legislative enactment. And they direct no ire at the Arizona legislature for keeping the 1864 law around, recodifying it in 1977, and expressing the intent in 2022 that it remain on the statute books. On that last point, Arizona enacted the 2022 law several months before Dobbs, while a longstanding Roe-based injunction prohibited enforcement of the 1864 law. Legislators likely put the non-repeal provision to make a show of having a near-ban on the books for the hoped-for time when Roe was overturned. They did not count on it happening so soon.

The right--including the Republican governor who signed and Republican legislators who supported the 2022 law--is mad that the court did not bail them out of their bad--intentional or otherwise--lawmaking. The decision thrust abortion onto the national radar. It forces them to defend their anti-abortion actions from two years ago or to feign shock and indignity that the court would have taken seriously their express recognition of the 1864 law.

But the criticisms from both sides share a common theme--it is all on the courts. The left expects legislatures to attack abortion and demands the courts join rights-holders in resisting those legislative encroachments on constitutional rights; the right expects legislatures to engage in performative legislation attacking abortion and demands courts ensure that nothing they do has unpopular real-world consequences. Pre-Dobbs, it worked for both sides on the extremes--courts stopped enforcement of the worst laws, allowing some room for the abortion right while allowing legislators to posture and perform. Dobbs changes the consequences. But, as the Arizona case shows, not the target of criticism.

Update: Paul reminds me of Adam Unikowsky as an exception--a lefty arguing majority probably got it right and that Arizona Republicans should shut up. This is a great analysis.

Update: I confess to coming at this from a unique-for-a-liberal space: Zombie laws are easily reanimated and immediately enforceable when the state of constitutional law changes and the court lifts any injunction, unless the legislature expressly or impliedly repealed. Yes, 19th-century abortion restrictions--including those enacted before women had a national right to vote--are valid and enforceable, absent legislative action of some kind. Of course, intellectual honesty trumps partisanship here at Prawfs.

Specific Performance and the First Amendment

The Bryn Mawr Film Institute canceled a screening of The Child Within Me, a documentary about Israeli musician Yehuda Poliker, citing fears about appearing to endorse Israel and its position in the war. A state trial court issued an injunction ordering the Institute to show the film, pursuant to terms of the contract.

This surprised me. I assumed that the First Amendment would limit specific performance, where the order would compel the party to engage in speech it no longer wished to engage in. Much as the Thirteenth Amendment (if I remember right) limits specific performance of employment contracts. The only thing I found (courtesy of a 2019 law review article) is a 1982 Indiana Court of Appeals case involving a contract for a newspaper to run an ad for a political candidate. The court enjoined to newspaper to perform the contract and run the ad. As to the First Amendment, the court ended the opinion as follows:

The appellant finally contends that the trial court's decision violated its first amendment guarantee of freedom of the press. Again, we agree with the appellant that a newspaper has a right to publish or reject advertising as its judgment dictates. However, once a newspaper forms a contract to publish an advertisement, it has given up the right not to publish the ad unless that right is specifically reserved or an equitable defense to publication exists. The Herald-Telephone's first amendment right is not being infringed. It may still choose to publish or not publish any material it wishes, as long as the decision is made before a binding contract is formed. The trial court's decision is not constitutionally infirm.

It would appear that a party can contract away any right against compelled expression. I have asked my wisest contracts colleagues for more; I will update if I hear anything. I am leaving comments open for anyone who knows anything about the contracts side of this.

How old is too old?

Josh Barro argues that Justice Sotomayor, aged 70, should retire following the end of the Term so Biden can appoint a younger successor. The merits of urging timed retirements aside, the question becomes how old is too old and how long Justices should serve.

Barros believed that the organized campaign to urge Breyer to retire in 2021 shows that Democrats learned the lesson of Ginsburg's 2014 non-retirement. He expresses disappointment that the resistance to Sotomayor retiring--some frame the resistance to Sotomayor being Latina, which pisses Barro off--shows they have have not learned that lesson.

But Ginsburg was 81 and a cancer survivor in 2014, whereas Sotomayor is 70. Barro downshifts to Scalia--he was 70 when he failed to retire in 2006 in the same circumstance as Ginsburg 8 years later (same-party President, party about to lose Senate) and Republicans avoided a similar fate because of Mitch McConnell and an inside-straight presidential victory. Barro also points to Thurgood Marshall not retiring in 1980, at 72, so Carter could appoint his successor and Obama could have appointed that successor, leaving the Court with a liberal majority through the '90s and '00s.

Sotomayor has been on the Court for 15 years, less than the 18 she would serve under most term-limits proposals (Ginsburg has been on the Court 21 years as of 2014). Marshall had been on the Court for 13 years in 1980. In the name of avoiding judges getting old and dying when the wrong party controls the political branches or being unable to "hold on" until an aligned President returns to office,* we force judges into ever-shorter terms--too short to figure out the job. Or we compel Presidents to appoint ever-younger judges--Barrett will have served 22 years by the time she reaches 70.

[*] For Marshall, the black swan event in terms of modern politics was Republicans getting 12 years in the White House from 1981-93, which Democrats could not pull off after Clinton and Obama. Here is a counter-factual--what if President Dukakis had been able to appoint successors for Brennan and Marshall in 1990?

If we are going to play this game, why stop with Sotomayor? Kagan turns 64 this month--why not urge her to retire so Biden can rewind the clock by an extra 10-15 years? Does 6 years make that big a difference? Sotomayor has some health problems (Kagan does not, as far as we know) but Barro limits them to a passing mention. He argues from age, not health. Maybe we should research justices' family and geneological histories.

Penn faculty sue Penn to stop cooperation with committee

My initial reaction to Fakhreddine v. University of Pennsylvania is that we have reached pinnacle of performatively stupid (or stupidly performative) litigation over campus speech post-October 7/Gaza War. Plaintiffs are pro-Palestine/anti-Israel faculty suing to stop Penn from cooperating with requests from the House Committee on Education and the Workforce, which they claim targets them (the lead plaintiff is mentioned in the House letter) and their expressive activities. Claims are for violations of the First and Fourteenth Amendments, Pennsylvania Constitution, and breach of contract.

On further reading, the suit is less clueless as I thought. I think plaintiffs lose and it is not close. And it still has the hallmarks of performative litigation cum bad lawyering: Hundreds of paragraphs listing political grievances--including complaining about a separate lawsuit by a student against Penn, the IHRA definition of antisemitism, and  the "McCarthyesque" (some version of the word appears 12 times) Committee. It uses "dox" (some version appears more than 30 times) to mean any publicity (e.g., Elizabeth Magill was doxxed because people emailed her with harsh criticism following the December 7 hearing). And it makes the pleading mistake of incorporating by reference prior counts into each new count; the 11th Circuit regards this as an indicator of an impermissible "shotgun pleading;" it at least shows sloppy drafting.

It confuses whether Penn acts under color of federal law or under color of state law. It never cites § 1983, as it should for claims against state actors, although many lawyers (erroneously, in my view) treat EpY as the cause of action when seeking something other than money, regardless of the government entity. It bases the under color arguments on Penn's cooperation with the Committee, a federal entity; that makes Penn act under color of federal law. But then it asserts a 14th Amendment claim, which cannot apply if Penn's joint action is with the federal government such that it acts under color of federal law.

If not complete performative nonsense, where do I think it still fails?

    • It argues for state (or federal) action from the private person's voluntary cooperation with the federal government. It emphasizes that the Committee did not subpoena the records; it sent a non-binding letter request. But close nexus requires government compulsion or overwhelming encouragement of the private conduct rather than the private entity willingly agreeing with and working with the government.

    • It seems to me the constitutional claims and the breach claims are inconsistent, assuming this qualifies as a breach. If the letter request is sufficiently coercive to place Penn under color, Penn cannot be liable for breach--the coercion would seem to make conformity with the contract impossible. If Penn is making a voluntary choice, it cannot act under color.

    • Legislative immunity lurks here, although a step removed. The real violation here is the Committee request. But Speech-or-Debate immunity shields such a claim--a court will not question whether a legislative request violates the Constitution. The question is how far down legislative immunity extends. Can a court the constitutional validity of a legislative request in the course of resolving a constitutional claim against the party subject to that request? (A recent 9th Circuit case raises a similar issue--I may write about that later next week).

Lots of campus speech

• Beware an equality of silence. Universities cannot restrict anti-Israel/antisemitic/pro-Hamas speech solely because of its viewpoint. The solution to "pervasive antisemitism" therefore is to enact--and properly enforce--neutral regulations. Thus Barnard has banned all messages and signs on dorm-room doors. Several schools have prohibited messaging fliers (those not advertising upcoming events). That eliminates antisemitic speech, but at the cost of a vibrant speech environment and students' best and most convenient means of communication.

• Several states are moving laws prohibiting state funds from going to student groups that "support" terrorism and terrorist groups, specifically Hamas. The laws are vague in two respects. One is whether "support" means financial or whether it also includes expressions of support. The other is whether financial support for Gaza and the people of Gaza constitutes support for Hamas. The latter two could raise First Amendment concerns.

• UC-Berkeley police have opened an investigation into the protest cum riot outside a speech by an Israeli lawyer. The report indicates a focus on property destruction and trespass in breaching the building and reported assaults on students attempting to enter the building, distinct from the loud-and-obnoxious protests and chants outside the building. Curious to see if they are able to keep those separate.

• A question that came up during several programs in the law-and-antisemitism conference: Can a school be liable under Title VI for a hostile education environment for failing to stop or punish protected antisemitic speech. My instinct is no, because federal law should not compel (at least a public) a university to face a § 1983 action by a censored student. And perhaps the federal government coerces a private university (placing it under color) by requiring it to censor protected speech on threat of Title VI liability. But several conversations suggest that DOE may push the view that the protected nature of antisemitic speech does not excuse the hostile environment it creates.

• Campus signs have "targeted" the Jewish student-body president, naming her as someone supporting genocide (and thus unable to hide) and calling for Zionists to be out of office, along with the usual crap, much of which cross the antisemitic line. One question is whether the student president and other campus leaders occupy some unique position--akin to a public official--for purposes of analyzing when speech is "targeted" and thus stripped of its protection. That is, does a student open herself to even antisemitic criticism by holding a campus leadership position?

Thoughts on the disqualification case

• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.

None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:

    • Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).

    • SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?

    • A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.

• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.

• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the  scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.

Erie and litigation finacing in Florida

The Florida legislature is considering legislation that would, among other things, require automatic disclosure of financing agreements. Wisconsin enacted a similar law in 2018 and I wrote about the Erie issues it creates in federal court. Same issues and analyses arise here. Florida adds another wrinkle: Disclosure must be made within 30 days of commencing the suit, as opposed to as part of the discovery process. I have used this as a puzzle in the Erie part of Civ Pro for the past few years; now I have a local hook for it.

One additional question: Is there an equal protection or First Amendment problem in that the Florida law only applies to financing agreements for which the financier will receive some cut of any settlement or judgment. It does not apply to those--such as Elon Musk financing Gina Carano's suit against Disney over her firing from The Mandalorian or Peter Thiel and Hulk Hogan's suit against Gawker--who do not expect a return on their financing and do so for some personal or political goal. I suppose the answer depends on the purpose of the rule and how much an uncompensated funder can influence a litigant's decisionmaking. (Hogan declined lucrative settlement offers from Gawker; some argue that Thiel's funding removed Hogan's ordinary litigation incentives and strategies).

Florida DA prevails (for the moment) in dispute with DeSantis

Andrew Warren, the Democratic state's attorney in Florida fighting his suspension by Ron DeSantis, prevailed (at least for the moment) in the Eleventh Circuit last week.

The court adopted a broad scope for elected officials' free-speech rights against elected officials with supervisor authority. It expressed "skeptic[ism]" as to whether Garcetti applies to elected officials. It declined to resolve that point, because even under Garcetti, an elected official occupies a unique employment space and can speak on matters of public import, under his office's auspices, without reducing them to policy and without them undermining his office. The court then held that DeSantis relied on four First Amendment-protected reasons in suspending Warren, rather than two, as the district court held. The court (and Judge Newsom in a concurrence) focused on the district court conclusion that Warren's support for a reform-prosecutor organization's statement was unprotected because the statement contained one sentence about committing to not enforcing new post-Dobbs abortion laws; the district court erred in pulling that sentence out of its broader context, where Warren never enacted any such blanket non-enforcement policy.

The Eleventh Circuit remanded for the district court to redo its analysis of whether DeSantis would have made the same decision based on the remaining two unprotected considerations--a policy of scrutinizing certain low-level arrests and Warren's general existence as a "reform prosecutor." This is why I say Warren prevailed for the moment. The district court may conclude DeSantis would have removed him for those reasons standing alone. In fact, the district court probably should conclude as such, since it is pretty obvious DeSantis targeted Warren (Judge Newsom's concurrence notes that Warren bragged about this during a GOP primary debate) and would remove him from office for any reason he can find--whether it's two or six. So I expect that DeSantis wins on remand and the Eleventh Circuit affirms, owing discretion to the trial court's balancing.

To be clear, suspending Warren for those two remaining reasons likely violates state law, which allows removal for "misfeasance, neglect, or incompetence." But the state-law validity of the removal is not relevant to the federal claims. Newsom drops a footnote admonishing the district court for "repeatedly" declaring that that the firing violated state law and insisting that "[o]n remand, the district court should avoid such unnecessary (and impermissible) asides regarding the consistency of Governor DeSantis’s conduct vis-à-vis Florida law." (I raised this point in a prior post and the Florida Supreme Court complained about it in denying a writ of quo warranto seeking reinstatement). Warren loses his First Amendment case if DeSantis would have fired him even in violation of state law. And I think it is clear DeSantis would have fired him no matter what--whether because he genuinely believes all reform prosecutors are misfeasant, neglectful, or incompetent and acted on that honest belief; because he believes a Republican-supermajority State Senate will sign off on his decision;* or because he wants the short-term political benefit (in running for president) and is willing to lose at the end of the day. (My money is on # 2 or # 3).

[*] Under state law, the governor suspends the local elected official, which sends the matter to a trial in the Senate. The Senate can affirm the governor's decision and remove the official or reject the governor's decision and reinstate the official.

And so we return to my point since this case began: The real issue is here is the suspension's state-law validity; the First Amendment is a sideshow that does not affect the outcome or allow Warren to return to office. My initial view holds--the district court should have abstained under Pullman or at least certified the state-law issues to the Florida Supreme Court.

AI will not replace us! Tools will not replace us!

The Chief's Justice's 2023 Year-End Report takes on the new role of AI in the courts. The report features the usual historical discursive on how technology evolved in courts and litigation beginning with the typewriter in the 1870s and continuing to new AI tools. He includes the history of Shepardizing, with this nugget--"Lawyers facing a deadline might skip this stage, proclaiming that “'the Lord is my Shepards.'” But Roberts insists that machines and AI cannot fully replace human actors in the judicial system, especially judges, who must make decisions involving "gray areas" (he uses the term twice) of fact-specific judgments and "open questions about how the law should develop in new areas."

Steve Vladeck suggests that Roberts abandons his "misbegotten suggestion that the job of a judge is to simply call 'balls and strikes,'" a vision of judging that allowed for no ambiguity or discretion in the judicial role. That was nonsense in 2005, as legal scholars pointed out, and continues to be. In fact, the Report distinguishes judges' discretionary "gray-area" judgments (judgments about whether someone is a flight risk, about an allocuting defendant's sincerity, about whether a district court abused its discretion, and about developing open legal issues) from non-discretionary, in-or-out questions about tennis serves that tournaments entrust to optical technology.*

[*] Query whether Roberts intentionally--and tellingly--did not use as his analogue the automatic strike zone systems that MLB is testing. Ball-or-strike is as non-discretionary as a serve--it is in the zone or not in the zone. But Roberts didn't tell a Senate committee that an umpire's job is to call a serve in or out. Using the new automated strike zone would have acknowledged too obviously that what he said at the time was nonsense.

Shifting narratives on antisemitism

I watched the HBO documentary No Accident, chronicling the civil conspiracy trial against Jason Kessler, Richard Spencer, and other organizers of "Unite the Right"  in Charlottesville. The jury found the individuals and groups liable for civil conspiracy under Virginia law but hung on civil conspiracy under federal law; the court reduced an award of (mostly punitive) damages of more than $ 24 million to about $ 2.35 million, given Virginia-law limits on punitive damages. I am considering holding a "Civil Litigation Night at the Movies" next semester, given how the case touches on every class I teach--Civ Pro (lots of stuff about discovery), Evidence (a detailed look at trial and how lawyers prove facts), and Civil Rights (the case began with a focus on a provision of the KKK Act of 1871, although that is not where things landed).

The film highlights some Jewish themes--Roberta Kaplan's Passover Seder, an information session at a New York City temple, discussions (in 2019) of increases in antisemitism, explanations of  "white replacement theory" and Jews' roles in that. But I was struck by how outdated those discussions of antisemitism felt and how much the conversation around antisemitism has changed in the past two months. Now  Republican such as Elise Stefanik are calling out antisemitism in the mainstream media, while making common cause with the villains in this movie. I do not mean to oversimplify--left-wing antisemitism existed in 2017 (e.g., efforts to exclude Jewish organizations from the Women's March and Gay Pride programs) and right-wing antisemitism has not disappeared. But the narrative changed very quickly. Or it vindicates Tom Lehrer.

The Times, Dobbs, and SB8

The New York Times had a big piece Friday on the behind-the-scenes events leading to Dobbs. I want to comment on SB8's cameo in the story.

The piece describes the SB8 case as the beginning of the fall of Roe and the failure to stay enforcement before the law took effect as the point at which "Roe was partially undone." I saw one surprising bit in this section--that Justice Gorsuch was incommunicado except through Justice Alito on the evening of August 31 (the law took effect at midnight September 1). He expressed no view until the next day (which Alito relayed to the rest of the Justices), then voted to deny any injunction the following day. Beyond that weirdness, everything the Justices said in internal memos (as quoted in the Times) appeared in the opinions in the stay order--Roberts' view that the existence of the law might create an independent violation and Justice Sotomayor's view that it was a "pity that we cannot do the right thing."

The problem with giving SB8 a meaningful role in the drama leading to Dobbs is that the outcome of the case should have been obvious. The Court had never said the mere existence of the law violates the Constitution independent of enforcement. The Court cannot stop the law from taking effect, because the Court cannot enjoin a law, independent of its enforcement. And the Court could not, in a § 1983/EpY action, enjoin unknown private actors from doing anything. All of this should have been obvious when the private case reached the Court.

A standing problem?

The University of Florida chapter of Students for Justice in Palestine, represented by the ACLU, has sued Ron DeSantis, Florida State University System Chancellor Raymond Rodrigues , UF President Ben Sasse, and the UF, and moved for a preliminary injunction. The complaint alleges that Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint adds that DeSantis promoted this idea during a recent GOP debate. The complaint does not allege that UF has, at this point, done anything in response to that order.

As structured, this creates a bit of standing (or is it ripeness--who the hell knows) puzzle. Rodrigues' order is not self-enforcing; it does not, of its own force, deactivate UFSJP and thus does not, of its own force, injure UFSJP, meaning Rodrigues does not injure UFSJP. How would an injunction against Rodrigues help UFSJP--perhaps by ordering Rodrigues to withdraw the order? The connection between DeSantis and UFSJP is more remote.

UFSJP's injury arises from UF deactivating it or threatening imminently to deactivate it, something UF has not done or even moved to do. The court could (and probably will) find that the order that chapters "must be deactivated" creates the necessary imminence--the order says UF must do this and UF cannot ignore that command, meaning it will, likely soon, take steps to deactivate. (Much as courts allow plaintiffs to file pre-enforcement challenges before an enacted law's effective date). But, taking the "doctrine" seriously, it is not an easy question. It certainly demonstrates the challenges and necessary precision for plaintiffs in framing these cases.

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements  of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

2) A group of citizens, represented by C.R.E.W., filed suit in Colorado against Trump and Colorado Secretary of State Jena Griswold, seeking to exclude Trump from the ballot under § 3 of the 14th Amendment; Trump removed. Derek Muller and Will Baude agree on the predicted outcome--the federal court will remand because, while there is arguably jurisdiction under § 1331,  plaintiffs lack Article III standing. I will add the following:

    • I think the § 1331 argument is pretty strong. To arise under federal law under Grable & Sons, the federal issue must be necessarily raised, actually disputed, substantial (meaning important to the federal system at a whole), and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. The first three seem obvious here. The last prong looks, in part, to how often the type of case will arise and how many similar cases will land in federal court. So a quiet title action turning on the validity of a federal tax lien will not come up that often; negligence claims based on drug misbranding and attorney malpractice arising from patent work will come up frequently. A dispute over candidate qualifications, especially whether a candidate engaged in insurrection or rebellion, seems more analogous to the tax lien case.

    • The case will be remanded on standing. An individual voter does not have more than a generalized grievance as to who appears on the ballot. Discussions of how to enforce § 3 never mention the several unsuccessful 2008 lawsuits by random citizens seeking to declare Obama ineligible as not born in the U.S.; all were dismissed for lack of standing.

    • The removal problem arises because of the plaintiff's procedural choice to include Trump as defendant. Why did they do that? The relief sought--a declaration of ineligibility and an injunction preventing his inclusion on the ball0t--runs against the secretary, not Trump. Trump has an interest in the case that the secretary may not adequately protect and he may be entitled or permitted to intervene to protect that interest. But there does not seem to be any reason to include him as a defendant in the first instance, which also gave him the power to remove.

Update: Trump filed an unopposed motion to remand after consulting with plaintiffs and recognizing that they lack standing and that removal was procedurally improper (Griswold did not join or consent to removal but had been served, contrary to Trump's initial representation).

3) Paulsen/Baude argue that § 3 is self-executing. The responses/critiques have confused effectiveness with enforcement. Their point is that § 3 creates an extant and enforceable legal obligation--one that does not require congressional action and has not been rendered a nullity by past congressional action or by desuetude. But, as with any legal provision, someone has to enforce that obligation, which usually leads to court; Paulsen/Baude do not claim otherwise. The question is how that occurs, which forms a big piece of Akhil Amar's two-part discussion with Baude and Paulsen). Paulsen in Part II gets to what I believe the right answer--some enforcement action by a state official, followed by some state-law proceeding in state court, followed by (often expedited) review to the state supreme court, followed by SCOTUS review. SCOTUS will get the last word, but the case arrives from state court (as Bush v. Gore did); none of this will begin--or be removed to--federal district court. And, again, that is perfectly fine and consistent with ordinary litigation. As with the controversy around S.B. 8, it is simply not true that the sole or necessary process for constitutional adjudication is an offensive EpY action in federal court.

Maybe it is the Handmaid's Tale

Mary Ziegler (UC-Davis, having deliberately escaped Florida) writes in Slate about the impossibility of enforcing the new Texas ordinances against using local roads to leave the state for an abortion. She hits similar themes to what I wrote:

Among the problems with enforcement is the question of how the ordinance and others like it could ever be enforced. How would anyone know if a driver on a road in or out of Texas is driving an abortion-seeker? By setting up a roadblock? Investigating everyone of reproductive age? None of that would be politically palatable—or financially feasible—for a state with a big budget, much less a small town like Llano or a rural county with limited resources.

The possibility, she suggests, is circuitous: "[E]ven if you’re not going to be stopped and arrested while driving a friend to an abortion clinic across state lines, a vindictive partner could find your texts setting up the drive, sue you, and attempt to use geo-tracking data to collect in a civil suit."

That line reminded me of The Handmaid's Tale (the TV show). A flashback (I think from season one) depicts June and Luke trying to escape into Canada. They hire a man near the border, who takes and destroys their phones so Gilead officials cannot follow them. That, Ziegler suggests, is what a woman (and the friend or person who drives her) must do when driving through Llano, Texas on the way to New Mexico.

The Handmaid's Tale outfits at protests and rallies make for fun theater, but I have thought they were overstated. Maybe not, at least in some small details.

Fifth Circuit takes injury where Fletcher and Newsom would not

The Fifth Circuit found the 2016 and 2021 FDA expansions of Mifepristone use unlawful under the APA; the majority upheld the original approval, over a dissent from Judge Ho. The case was brought by an organization of anti-choice emergency-room doctors; the court found associational standing based on probabilities that some member doctor might treat someone suffering from complications of Mifepristone, requiring the member to violate his conscience, deal with that patient rather than other patients, or suffer the mental and emotional stress of treating them. Ho goes a step further, finding doctors suffer aesthetic injuries from being deprived of the happiness of delivering babies--just as environmental activists are deprived of the happiness of seeing the Nile crocodile. In essence, the Fifth Circuit recognized--at least for anti-choice doctors--standing based on opposition to government policy where the policy's downstream effects cause them some anguish. Adam Unikowsky takes down the absurd--and unlimited--standing analysis.

I want to add a slightly different path on this point.

In arguing that "injury" cannot be detached from law (and that standing is about the merits of a claim, William Fletcher in his foundational article and Judge Newsom of the 11th Circuit in a 2021 concurring opinion offer versions of a case everyone recognizes as an insufficient legal injury. Fletcher offers A, who loses sleep over homelessness and donates money (which he would otherwise not do) to aid the homeless; Newsom offers B, who loses sleep over the federal deficit and purchases sleeping pills to help her sleep. Each then offers the identical comparator of C, a homeowner who loses sleep because of a barking dog and spends money on something (ear plugs, sleeping pills, thicker windows) to help.Everyone agrees that C has standing because she suffered a physical and monetary injury. And everyone agrees that neither A nor B has suffered an injury courts would recognize as establishing standing. But, Newsom and Fletcher argue, A, B, and C suffer identical injuries--loss of sleep and expenditure of money to alleviate the cause of the sleeplessness. We thus cannot attribute the different outcomes to the presence or absence of an injury; the difference arises from what what the substantive law recognizes as a violation of that law and of the rights created by that law-as Newsom puts it, "whether his legal rights have been infringed and whether the positive law authorizes him to sue for that infringement."

The Fifth Circuit decision recognizes the injury that Newsom and Fletcher agreed courts never would recognize--the government adopted a policy (allowing the sale and prescription of Mifepristone by willing doctors to willing patients) that worries other doctors and that causes these doctors to engage in some conduct (treating patients they would rather not treat for conditions they would rather not treat).

When I teach standing, I hit the theme of the ideological drift of standing--from a doctrine that conservative judges wielded strictly to stop liberal cause litigation to a doctrine hat interfered with conservative cause litigation to a doctrine many conservative judges want to discard in the name of conservative cause litigation. Between this case and Biden v. Nebraska, as well as Alito's insistence that there was standing in California v. Texas, we have many examples to choose from.

Final orders list

The Court released its clean-up order following the release of opinions, granting cert in several cases. Several things of note:

• No decision on the NetChoice cases (challenges to Texas and Florida content-moderation laws). This is somewhat surprising, since the circuit split and the First Amendment implications make a grant inevitable.

• The Court denied cert. in Cooper Tire & Rubber v. McCall, a Georgia case raising the Mallory issue of consent-by-registration personal jurisdiction. Our guest bloggers on Mallory--Rocky Rhodes and Andra Robertson--discussed the Court's perhaps-strategic choice to use Mallory rather than Cooper as the vehicle to resolve the issue. But what to make of the Court denying cert in Cooper rather than GVRing. As Rocky and Andra explained, Georgia had a stronger interest in Cooper than Pennsylvania had in Mallory--the defendants in Cooper were from Georgia, whereas no one in Mallory had any case-related connection to Pennsylvania. So if consent jurisdiction is valid in Mallory, it must be valid in Cooper. At the same time, the Court did not see fit to allow the Georgia Supreme Court to address the dormant commerce clause issue that Justice Alito emphasized in his (controlling??) concurrence-in-the-judgment.

• Justice Sotomayor called for reexamining qualified immunity in two dissentals (Justice Jackson would have granted cert in one, although she did not join the statement) from the Eighth Circuit. She raises the usual litany of criticisms of the doctrine and how lower courts have applied it.

I hope to write about 303 Creative and the standing in the student-loan cases this weekend.

Florida Supreme Court displeased with federal judicial overreach

Andrew Warren wants his job as state's attorney back, following his specious and politically motivated suspension by Presidential Candidate (and not-for-several-weeks Governor) Ron DeSantis. But he also wants to avoid the constitutionally mandated process for doing so--a Senate trial--fearing (not without reasonable cause) that the Senate will rubber-stamp DeSantis's decision. He failed in federal district court, in a case I believed never should have gotten as far as it did. And he failed in the Florida Supreme Court, which denied his writ of quo warranto.

The latter was a longshot, as the court explains. Under the Florida Constitution, the Senate is the appropriate "court" for challenging suspension. The Florida Supreme Court exercises limited review to determine that the suspension is facially valid. But court never reached that much, instead denying the writ as untimely, because Warren went through five months of federal proceedings before filing in state court.

In rejecting the writ, SCoFL expressed its displeasure with the federal court and Warren for, in essence, derogating SCoFL and state institutions generally.

As to the district court, the state court said:

Inexplicably, despite having previously dismissed Petitioner’s state-law claim—a claim that challenged the facial sufficiency of the suspension order—the federal district court proceeded to reach various “conclusions” regarding the propriety of the suspension under Florida law. Indeed, the federal district court twice stated that the suspension “violated the Florida Constitution,” id. at D115, D125, and the federal district court purported to decide certain “factual issue[s],” including whether “Mr. Warren neglected his duty or was incompetent,” id. at D117. The federal district court did so even though its “jurisdiction over [Petitioner’s state-law] claim [was] barred by the Eleventh Amendment,” Pennhurst, 465 U.S. at 121, and even though “[i]t is the function of the [Florida] Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer,” Sullivan, 52 So. 2d at 425. At one point, the federal district court challenged the Governor to “simply rescind the suspension.” Warren, 29 Fla. L. Weekly Fed. at D124. And at another point, the federal district court seemingly questioned the ability of the Florida Senate to dutifully carry out its constitutional role in suspension matters, referring to that legislative body as “heavily partisan.” Id.

I made similar points following the district court's decision--there was no reason to decide the suspension's state-law validity to decide that DeSantis had a non-pretextual state-law reason for the suspension that defeated the First Amendment claim.

Warren worsened the situation by arguing that the district court's state-law musings should have issue-preclusive effect. Rejecting the argument, the court stated that issue preclusion cannot turn a loser into a prior winner on discrete issues, while noting that the federal case is on appeal to the Eleventh Circuit and thus not final. I would add that the federal court's conclusions about the suspension were not necessary to the federal judgment, another element of claim preclusion.

Finally, the court points to, and does not dismiss, DeSantis's suggestion that Warren invoked SCoFL as a "backup plan," an unfavorable forum to which he ran late and as a last resort. It does not buy Warren's explanation--state law sets no time limit on a quo warranto application and he filed about one month after the district court dismissed that action--because it does not like the idea that he ran to federal court in the first place.

The inanity of "Debate Me"

Phillip Bump critiques the new demand for "debate," calling it a lazy cop-out and "a cudgel meant not to inform but to entertain, to validate our skepticism and to feed our dislike of our opponents."

As if on cue, we have L.M. v. Town of Middleborough, denying a preliminary injunction against enforcement of the school dress code as to a shirt reading "There are only two genders." The opinion includes this gem at the beginning of the analysis portion of the opinion:

One can certainly argue (particularly with hindsight) that the actions taken by the Defendants were not in the best interest of the students Defendants were seeking to protect. Had Defendants permitted L.M. to wear the Shirt, perhaps he would have listened to and heard other students’ explanation as to why they viewed his message as hostile. Perhaps he would have learned from those students that they do not use the word “gender” to refer to chromosome pairs or anatomy but to identity. As a seventh-grader — a time when students are beginning to consider views of the world that differ from those of their parents — he may have been more open to that understanding if the discussion occurred in school and was not drowned out by the megaphone of the media and the adult protesters outside the school. And in that event, perhaps LM. would have chosen voluntarily to cease wearing the Shirt and the students Defendants were seeking to protect would not have had to enter the school past protesters amplifying L.M.’s words.

This is nonsense.

First, this kid is not open to changing his views, nor is he parroting his parents' views. We know this because the opinion quotes his long social-media post defending the t-shirt as expressing his views and not "targeting" anyone, comparing it to how he feels seeing Pride flags and diversity posters. (Put aside the specious comparison between a message with which you disagree and a message that targets someone's existence and identity). L.M. is locked in and is not going to change his mind if other students "debate" him or civilly challenge his views. In fact, I expect he would scream that he had been targeted (if not canceled) if many students challenged him. Relatedly, I think L.M. has pretty good reason to be pissed at the judge for that statement, which basically suggests that he is parroting his parents views and does not really believe or share them and could be swayed with a bit of the right discussion.

Second, the school does not want to become a debate society--math class is for teaching math and gym class is for sports, not for debating the finer points of gender identity. So the judge's proffered solution--students engaging with L.M. about the error in his views on gender--disrupts the educational process. And even Tinker allows the school to limit student speech to avoid disruption. So the school should allow L.M. to wear the shirt, then allow the educational process to be disrupted--therefore justifying prohibiting him from wearing the shirt.

Third, accepting some essential constitutional commitment to debate, what is the purpose of that debate and who does the debate convince--my interlocutor or my audience? In challenging L.M. on issues of gender, does little Sally seek to convince L.M.? Or does she seek to convince other students that L.M. is wrong? The judge assumed # 1. But that reflects a different understanding of debate and speech, distinct from the marketplace and more-speech visions of Holmes and Brandeis. The question for them was whether a speaker's bad message could be countered and what message the public would accept--neither care whether Abrams or Whitney changed their minds.

Fourth, rather than giving students a chance to debate-and-persuade the Unpersuadable L.M., allowing the t-shirt gives students the opportunity to decide (if they so choose) that L.M. is a provocative jerk and that they want nothing to do with him. Or to criticize him for these views. While I expect L.M. and his supporters would shout "cancel culture," this case illustrates why much of what people deride as cancellation is "more speech." L.M. has a right to express his views--including, I believe, on a t-shirt in school. He does not have a right to speak free of other people adopting negative views of him and acting on those views.

Fifth, the result surprises me. I thought there had been a sea change in t-shirt cases, in which "people feel offended" and "people are talking about and objecting to the kid's t-shirt" was not sufficient. That is, the Tinker framework does not authorize an actual heckler's veto--the school silencing speech because it offends or angers the audience. But the court relied on First Circuit precedent allowing restriction on a showing of disruption or that the speech invades the rights of others. Although the shirt did not target any identifiable person, the shirt invaded the rights of students who identify differently to attend school without being confronted by messages attacking their identities.*

[*] Going back to my first point and to this post, does the judge believe it better for students who identify differently to allow the shirt and compel them to debate their identities, hoping to convince L.M. to change his mind about their humanity?

Trump is not a legislator engaged in legislative speech or debate

Republican Rep. Thomas Massie decided that the best way to support Donald Trump was to tweet that "under the Constitution, no member of Congress can be prosecuted for reading aloud on the floor any of the documents Trump allegedly has copies of." Naturally, people jumped on this. So let's be clear:

First, he is correct. The leading Speech or Debate precedent arises from a Senator and his aide reading portions of the Pentagon Papers at a subcommittee meeting and entering 47 volumes into the public record. The Court said "[w]e have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting." That principle applies, even more so, to events on the House floor.

Second, what is Massie's point? The Speech or Debate Clause speaks of Senators and Gravel extends protection to senatorial aides; Trump is neither. And Gravel held that immunity did not protect possession publication of the papers outside of the legislative process--such as in bathrooms at Mar-a-Lago or conversations with reporters in New Jersey. So whatever Massie can do on the House floor is irrelevant to whether Donald Trump mishandled classified documents.

Maybe Massie knows that. He definitely knows that Trump supports do not know that. And that is the point.

What is a slippery slope argument?

The Freakonomics podcast did an episode on slippery slope arguments. It featured Eugene Volokh, Dahlia Lithwick, and a philosophy professor. Eugene wrote a great article on this; his post links to two versions of the article and blog posts serializing it.

I agree with Eugene that episode was interesting. But it went off the rails for me by spending a lot of time on distinct argument that I do not believe qualify as slippery slope. It features the president of the Campaign for Tobacco-Free Kids discussing opposition to early smoking bans, which featured arguments that prohibiting indoor smoking would destroy the restaurant industry or that prohibitions on smoking on planes would lead to plane crashes and violence by tobacco-addicted pilots and passengers.* Lithwick talks about CRT bans and book bans as descending into "feelingsball"--people support the bans because learning CRT will make white children feel bad about themselves or reading books about queer kids will lead to bad behaviors. She blames yellow journalism for the monetization of scaring people, even affecting how we discuss weather ("bomb cyclones" and "thunder snow").

[*] The initial ban applied to short (90-minutes-or-less) flights, on industry arguments that tobacco addicts could not last any longer without a smoke.

These are arguments about bad consequences--Policy/Law/Practice A will produce bad results or results I do not like. We can argue they are "catastrophizing"--warning of extreme (and unlikely) and scary consequences ("reading these books will turn your kids queer," "banning smoking will cause pilots to crash planes"). We can even argue they are examples of moral panics, which goes a step beyond catastrophizing bad consequences. Historic yellow journalism and modern-day "clickbait" journalism trade in these arguments--look at all the bad things that will happen from this practice or this law. And the weather example has nothing to do with anything--making weather sound dramatic does not really cause any conduct.

None is a slippery slope argument, at least as I understand the phrase and as Volokh uses it in his article. Slippery slopes argue that allowing Policy/Law/Practice A leads to Policy/Law/Practice B--if we allow gun registration, then government will confiscate guns; if we allow prohibitions on swastikas, then government will prohibit the Confederate flag or BLM flag. That is different from arguing that prohibiting swastikas will anger Nazis and cause them to riot or that gun registration will create a dangerous black market in illegal guns. Slippery slopes are about "slippage" from one set of rules or conduct to new rules or conduct, not from one rule or conduct to the consequence of that rule or conduct.

Policy and Identity

In an article on cancel culture in the Journal of Free Speech Law, Thomas Kelly illustrates cancel culture by arguing that a

"relevant test for today’s college students would be the extent to which they are willing to tolerate speakers who earnestly argue for propositions such as the following:

1. (1)  That people who are currently in the United States illegally should be deported to their country of origin.

2. (2)  That affirmative action should be abolished because it unjustly discriminates against whites and Asians.

3. (3)  That for any adult person, having been born biologically female is both a necessary and sufficient condition for being a woman.

4. (4)  That the fact that different racial groups are incarcerated at different rates does not primarily reflect racial injustice in the criminal justice system but rather that the groups commit serious crimes at different rates, something that is not itself due to racial injustice.

According to Kelly, these reflect four contestable questions. And college students' intolerance for their expression reflects cancel culture--disrespect for free speech and intolerance for competing ideas. Except one of these things is not like the other. Numbers 1, 2, and 4 involve questions of public policy--how government and government institutions should address particular problems (unlawful entry to the country, crime, opportunities to participate in institutions), the best policy choices, and what those choices tell us about those institutions. Number 3 involves a pure question of identity--it denies that trans people exist. A person's existence should not be debatable and should not be a question of policy.

I do not suggest that # 3 enjoys less constitutional protection or that a speaker should be barred from campus for expressing # 3. I do suggest that debating identity cannot be conflated with debating immigration policy or even debating the policy consequences of identity, such as athletic participation. The constant failure to distinguish these--especially as to LGBTQ+ people--is telling.