PrawfsBlawg

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.

What is the Court planning for § 1983 "and laws"

My SCOTUSBlog case for this term is Health & Hosp. Corp. v. Talevski, asking the Court to reconsider precedent allowing enforcement of Spending Clause enactments through § 1983 "and laws" actions. The Court held arguments on November 8 and still has not issued an opinion. My reading on the argument was that there was no appetite for doing that. But the long delay suggests either 1) they are going to do it or 2) someone is writing separately to argue why they should do it. The case is not, all things considered, that controversial; I would not expect the Court to take seven months (and counting) or to hide it in the end-of-Term document dump.

The delay has created bigger problems for the in-progress third edition of Understanding Civil Rights Litigati0n. The discussion of "and laws" actions covers the state of the law from 1980 (Maine v. Thiboutot) through summer 2023. It includes a paragraph that there is "doubt" about § 1983 and Spending Clause enactments, mentioning that the Court granted cert to decide the issue in Talevski this Term. I wrote that as a placeholder in January, expecting to change it during the editing process. But the final round of of galley edits passed; the only remaining piece of the process is indexing, if we hope to have the book available in August. If the Court does something crazy, it renders several pages obsolete (how obsolete depends on how crazy), with no opportunity to correct it.

We could say the same about Mallory and establishing general personal jurisdiction through business registration, argued the same day as Talevski--this is a long time to spend on this case, suggesting division and someone doing something wild.

CUNY Law graduation: Everyone screws up a free speech problem (Updated)

I missed this story from two weeks ago, although the latest fallout continued yesterday. The student-chosen student speaker at CUNY Law's May 12 graduation, Fatima Mousa Mohammed, took aim at Israel and many other targets. People have responded in expected ways. Also as expected, no one covers themselves in free-speech glory.

• The three minutes drawing the most attention can be found here--Mohammed refers to "Israeli settler colonialism;" accuses Israel of, essentially, war crimes; accuses CUNY of supporting various evil causes; and praises CUNY Law (students and faculty) for supporting BDS. She later urges fights "against capitalism, racism, imperialism and Zionism around the world." Nothing in this speech falls outside of First Amendment protection and I presume school administrators either read and approved the speech or imposed no limits on its content.

• Which parts of the speech cross into antisemitism? For me, the obvious point is when she singles Zionism out as a unique evil to fight, distinct from racism and imperialism; if Zionism means the existence of a Jewish state (irrespective of Israel's current government and policies), that statement singles out Jews as a unique group not entitled to a homeland. Many people consider BDS antisemitic for similar reasons--it singles out Israel, and thus Jewish citizens and businesses, from all other wrongdoer governments. As for the rest, "Israeli settler colonialism" reflects her characterization of Israeli actions and policies; I disagree with the characterization and doubt the truth of much of what she describes. But does that (and can that) reflect protest of the Israeli government without crossing into Jew hatred? I leave comments open, because I confess that I remain unable to tell the difference in the gray areas.

• It appears students, including Jewish, support her and her words. CUNY's Jewish Law Students Association issued a statement (co-signed by Students for Justice in Palestine and other student groups) condemning Zionism as inherently racist and imperialist and condemning outside critics lobbing "absurd and false claims of antisemitism" against the "wishes of the majority of CUNY Law’s Jewish students." To be sure, CUNY Law's student body does not reflect a typical audience, including of American Jews. And query whether either group speaks, as the letter claims, for the majority of Jewish law students.

• What should objecting audience members--particularly graduates--have done in response to the speech? Should it be permissible to boo, jeer, heckle, etc. and up to what point? (Mohammed pauses at points because of audience cheers, so audience reaction obviously is fair game). Should they have walked out, thus missing a singular event in their lives? Recall that the anti-cancel-culture folks insist that either  is inconsistent with a commitment to free speech, which requires that people hear speakers, even without the opportunity to respond, so conversations can happen another day.

• Critics' reactions demonstrate, again, why few people truly believe in free speech as a principle, regardless of their rhetoric. CUNY's Chancellor and Board issued a statement yesterday that begins with this gem:

Free speech is precious, but often messy, and is vital to the foundation of higher education. Hate speech, however, should not be confused with free speech and has no place on our campuses or in our city, our state or our nation.

Ah, yes, "we believe in free speech, except when we don't like that speech." Since hate speech does not fall outside free speech protection, this is an inane statement. Worse, it is too generic. The problem with the speech, if any, is its antisemitism. So to call it hate speech--without identifying the particular racial/religious group attacked and without criticizing Mohammed for that specific form of hatred--shows the Board's unwillingness to specify and call out antisemitism (if that is what they believe this was) by name when it sees it.

Similarly, Republican legislators give lie to their supposed free-speech commitments by calling for CUNY to lose federal funding because students engage in constitutionally protected speech and the public university does not prevent them from doing so. I await Rep. Lawler's support as anti-LGBTQ+ forces emerge on campuses.

• What is the point of a graduation speech? Free speech aside, did Mohammed overstep by making the event about herself and her causes rather than those of her classmates? Students seemed to support her and must have suspected what she might do when they selected her. Mohammed framed a students v. administration narrative (all the things students achieved in the area of social justice, in the face of administration opposition); she thus likely viewed herself as speaking for, and reflecting the causes of, her classmates. But should this type of speech avoid controversy in its nature, in deference to the least-supportive member of the graduating class for whom this represents an important day and milestone?

Update: FIRE sent a letter to the chancellor pointing out the stupidity of "hate speech is not free speech." The letter then explains why CUNY, as a state institution, cannot punish Mohammed for her speech. This seems an odd tack, however, because I did not read the Board statement as threatening any sanctions against Mohammed.* I read the statement as a poorly written attempt to criticize Mohammed and to get on the right side of public officials (Rep. Lawler, NYC Mayor Eric Adams) criticizing Mohammed. In other words, CUNY engaged in government counterspeech., which I hope we agree is consistent with the First Amendment.

[*] Query what sanctions it could impose if it wanted to. I doubt CUNY could withhold her degree at this point, although I guess there is a nice question of when the property interest in the degree vests--when diploma is in hand, when the President completes the ceremony and allows the graduates to move their tassels? It could try to interfere with her Bar admission, although that is not CUNY's decision.

Sackett v. EPA – AKA See Rapanos (plurality opinion)

The following is by my FIU colleague Alex Erwin.

By the time you get to “We start as always with the text” on page 15, it should be abundantly clear what Justice Alito believes the “text” says.  Those 15 pages ostensibly cover the structure and history of the Clean Water Act (CWA), but that background information is neatly interwoven with a narrative of the “crushing consequences even for inadvertent violations” that property owners are subjected to under the Act.  According to Justice Alito, the ultimate effect is that many landowners  “simply choose to build nothing” rather than attempt to comply with the Act.

The Sacketts were not landowners that simply chose to build nothing.  They instead chose to fill in the wetlands on their property with gravel, in spite of repeated warnings, kicking off a 16-year war with EPA.  After two trips to the Supreme Court, the Sacketts have finally won a determination that their property is not a jurisdictional water under the Clean Water Act, and as such they did not need a dredge and fill permit under Section 404.

The key issue in this case was whether or not the wetlands on the Sacketts’ land fell under the category of “waters of the United States” or WOTUS.  The CWA involves a nested set of definitions.  The Act prohibits the “discharge of any pollutant by any person” without a permit, and it defines the term “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 

Congress then unhelpfully defined “navigable waters” to mean “the waters of the United States.”  Everyone agrees that WOTUS refers to water and that it has something to do with navigability.  Frankly, what exactly Congress originally intended the phrase “waters of the United States” to mean is as clear as mud.  The EPA and the Army Corp of Engineers have jointly promulgated new regulations attempting to define WOTUS under each of the last three presidents, and each time federal courts have blocked them.  This is now the fourth time the Supreme Court has chosen to weigh in on the WOTUS issue, and I’m skeptical that this will be the end.  One thing that has remained consistent, however, is that, since 1975, wetlands adjacent to navigable waters have been regulated as a WOTUS.

Issues arise when the agencies regulate “waters” other than those that are traditionally navigable – such as wetlands.  In Rapanos v. U.S., a divided court agreed that the property in question was not subject to the CWA, but the court produced no majority opinion.  Justice Scalia wrote the plurality opinion for himself and three others; in his view wetlands needed to have a “continuous surface connection” with another “water of the United States.”  Justice Kennedy concurred in the judgment, but wrote separately.  Justice Kennedy believed that wetlands could be jurisdictional if they had a “significant nexus” with a traditionally navigable water.  He believed wetlands possessed “the requisite nexus … if the wetlands … significantly affect the chemical, physical, and biological integrity of other covered waters.”  Though the significant nexus test has been criticized as being overly broad and technical, in the years that followed, this test became the de facto law of the land; every court of appeals faced with applying Rapanos held that waters that at least satisfied Justice Kennedy’s significant nexus test were jurisdictional.

In Sackett, Justice Alito wrangled up a majority (C.J. Roberts, J. Thomas, J. Gorsuch, and J. Barrett) to finish what Justice Scalia started in Rapanos.  Frankly, Justice Alito could have saved himself quite a bit of time by just writing “See Rapanos (plurality opinion)” in place of his own opinion.  The majority places its focus squarely on the definition of “waters” which it defines (as Justice Scalia did) to include “only those relatively permanent, standing, or continuously flowing bodies of water forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers, and lakes.”  Though this narrow definition of “waters” makes no mention of wetlands, Justice Alito begrudgingly acknowledges that some wetlands are covered.  After some rather tortured algebra-cum-statutory interpretation (“A minus B, which includes C”), the majority revives the Rapanos plurality holding that the CWA “extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable from those waters.’”  While ultimately landing at the same conclusion as Justice Scalia back in 2006, the majority here, according to Justices Kavanaugh and Kagan, relies on “unorthodox” “non-textualism” animated by concerns about federalism, private property interests, and vagueness.

Unsurprisingly, I think the Kavanaugh and Kagan concurrences make the better argument.  Justice Kavanaugh, joined by the three liberals, narrows in on the actual question at issue, “whether the wetlands on the Sackett’s residential property are adjacent to covered waters and therefore covered under the Act.”  His version of textualism correctly posits that adjacent (aka nearby or neighboring) and adjoining (aka physically touching) are separate words with separate meanings.  Congress clearly endorsed the protection of adjacent wetlands when it modified the CWA in 1977 to include specific reference to “wetlands adjacent” to navigable waters.  He also seemed convinced that an interpretation that has remained consistent for “45 years and across all eight Presidential administrations” is likely a correct one.  He seems confused as to why the majority therefore insists that they are performing pure textualism when they require wetlands to be adjoining (aka a continuous surface connection) rather than adjacent.

Justice Kagan is less confused about the majority’s intentions.  She accuses the majority of “rescu[ing] property owners from Congress’s too-ambitious program of pollution control.”  She scathingly ends her “concurrence” repeating what she wrote last term in West Virginia v. EPA – “The Court substitutes its own ideas about policymaking for Congress’s.  The Court will not allow the Clean [Water] Act to work as Congress instructed.  The Court, rather than Congress, will decide how much regulation is too much.”

So, has the majority cleared up this legal quagmire?  Likely not.  Justice Kavanaugh asks a number of difficult questions highlighting the gaps the majority has now created.  Focusing on the “indistinguishable” language, he asks: “how difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered?”  According to the amicus brief submitted by 12 scientific societies, wetlands science has already evolved to point that the boundaries of wetlands can “almost always be delineated.”  If the only wetlands that can be protected are those that are “indistinguishably part of a body of water that itself constitutes “waters” under the CWA,” then Sackett has effectively ended federal regulation of wetlands.  Prof. Royal Gardner (one of the authors of the brief) made the point on Twitter that much of the Everglades are no longer considered a WOTUS based on this language.

Even if the “indistinguishable” language gets read out or softened by subsequent courts, the “continuous surface connection” test alone causes problems.  If berms, levees, roads, and other structures break this continuous surface connection, then there is no jurisdiction for the portions of the wetlands that are no longer attached to the navigable body of water.  This means that previous permits that were given out to build these structures have now caused the loss of far more wetland acreage than originally believed.  It does not matter that these wetlands on both sides of the structure are still ecologically and hydrologically connected.

It is also unclear what this case means for streams.  This case could have narrowly dealt with adjacent wetlands, but Justice Alito liberally cribbed language from the Rapanos plurality that addressed bodies of water like arroyos, washes, ephemeral streams, and intermittent streams.  If the continuous surface connection test is also required for these bodies of water, then nearly 100% of the previously jurisdictional waters in states like Arizona and New Mexico will be no longer be covered – a disastrous result in my opinion.

The full extent of the damage will only be known after we see how the lower courts and agencies grapple with the holding, but the real-world consequences of this ruling are potentially massive.  To put it in perspective, the approach adopted by the majority is significantly narrower than the definition proposed in 2020 by the Trump administration (and that rule would have conservatively removed coverage for 51% of covered wetlands). 

This will also be a massive loss for wildlife conservation.  Half of all federally listed species in the United States are wetland dependent.  Permitting under the CWA has traditionally been a major hook for other federal environmental regulations – for example if you need a CWA permit to fill your wetland, the permitting agency must comply with NEPA and consult with Fish and Wildlife Service under the Endangered Species Act.  Without this permitting authority, proactive conservation measures are less likely to be taken.  Enforcement of the ESA on private property, especially related to harm caused by habitat destruction, is notoriously difficult.

Stray Thoughts:

• It is a shame (and frankly a surprise) that the liberal justices and Justice Kavanaugh all chose to concur rather than dissent. The concurrences certainly read like dissents – they’re rather barbed with very little concurring going on.  It is still unclear to me why the justices even believe the Sacketts’ land was not jurisdictional under their understanding of “adjacent wetlands”.  Certain politicians and media outlets have already been touting this as a 9-0 decision – it creates confusing messaging.
• After both Sackett and West Virginia, I heard colleagues chastise the EPA for not doing more to kill these cases before it gave the courts a chance to create bad precedent. I fear that one of the lasting results of these cases will be an agency that is more gun-shy when bringing enforcement actions (especially on borderline cases) or trying to innovate with policy.  If the specter of the Supreme Court is going to hang over everything EPA tries do to, they might just decide that more environmental harm will result from enforcing/implementing the law to its full extent.
• The only silver lining I can find is that the majority’s opinion is the second worst-case outcome. If Justice Thomas had gotten his way reigning in the Commerce Clause, he would have drug environmental regulation back to the Lochner  The agency might have lost jurisdiction over all purely intrastate waters, and I would be worried that the court would next go after other environmental regulations that are precariously propped up by the Commerce Clause (especially the Endangered Species Act).
• This case is also a fantastic illustration of how far the Supreme Court has run from Chevron The first WOTUS case, US v. Riverside Bayview Homes, Inc., was decided a year after Chevron.  The Court recognized that the agency was entitled to deference because its interpretation of WOTUS was reasonable and not in conflict with the Congress’s intent.  Even in Rapanos, the 4 liberal dissenters would have deferred to the agency’s interpretation under Chevron.  In Sackett, none of the opinions mention Chevron or suggest deferring to the agency.  Justice Alito claims that EPA’s interpretation (the same interpretation they’ve had for 45 years) is “inconsistent with the text and structure of the CWA.”  Each Justice claimed to “stick to the text,” while obviously coming to completely different conclusions about what that text said.  It does not take an administrative law scholar to see how Loper Bright Enterprises v. Raimondo is likely to go next term.
• Justice Alito is incredibly dismissive of science (“the CWA does not define the EPA’s jurisdiction based on ecological importance”). He pushes a test that ignores ecological and hydrological reality.  The significant nexus test might have been difficult to implement, but at least it was based on science and designed to meet the purpose of the CWA.

Here’s the tl;dr: Sackett is likely disastrous for wetlands and severely limits the scope of the CWA in a way Congress certainly never intended.

What is the trouble with SCOTUS reporting (and with SCOTUS)?

Slate's Amicus Podcast hosted a live conversation with Dahlia Lithwick, Mark Joseph Stern, Jay Willis, and Elie Mystal. The conversation centered on the failures of the SCOTUS press corps. Press failures include: too much focus on the law of the opinions (they liken it to how science reporters cover NASA); failing to identify the "reality" beneath those opinions, whether by exposing the Court's misleading presentation of facts (Kennedy) or by positioning one case within a larger political, ideological, and jurisprudential trend; failing to write about the real-world consequences of the decisions; failing to report on and follow individual justices (compared with the extensive coverage of members of Congress and even small legislative actions); and failing to write about the behind-the-scenes influences on the Justices (Harlan Crow, Leonard Leo, ADF, et al.).

I enjoyed the program, although I did not agree with a lot of it. Some reactions after the jump.

• There is an electoral/public accountability component to how the press covers Congress (and members of Congress) absent in covering the Court. The press provides information to the public which, we hope, the public uses in deciding whether to keep that person in office. By contrast, there is (I think) continued acceptance that no one (not Congress, not the public) should remove or sanction judges for their decisions. Those (including me) who would like some form of term limits do not want those limits to turn on agreement or disagreement with substance of decisions. Broader (i.e., beyond the opinion) coverage of the Court allows for public awareness and criticism of the Court, with whatever effects public opinion might have on the Court. It perhaps pressures Congress to do something about an out-of-control Court. But that something is not removal of individual members, unless progressives have abandoned the conclusion that the Senate properly acquitted Samuel Chase and that "Impeach Earl Warren" campaigns wrong.

• One SCOTUS decision resolves one case involving one dispute between discrete parties (e.g., whether Mississippi's law can be constitutionally enforced against Jackson Women's Health patients or whether this school could sanction this football coach for these activities). The decision includes an opinion that affects other real-world actors. But the opinion's effects on other actors and its consequences as to them are diffuse, prospective, unknown, and contingent at the time. It thus is impossible for reporters to write about them in covering argument or decisions. At best, reporters in the moment can speculate (and report speculative cases) about what could/might happen (subject to accusations of engaging in unreasonable parades of horribles). Reporting on consequences beyond the parties before the Court requires subsequent follow-up reporting. That reporting should happen, although we might question whether Totenberg, Liptak, Biskupic, et al., should do it and when. In other words, no one knows the specific effects of a SCOTUS case in the moment--it depends on what governments and lower courts do in response. Of course, we could raise the same argument as to congressional reporting--no one knows the specific consequences of a piece of legislation and someone should report on the on-the-ground effects of the enacted law, although the question is who and how and when.

Take Dobbs. States' race to impose the strictest laws was predictable and that prediction should have been part of the coverage (and might have been--I avoid most popular coverage of the Court). But the press could not have written specific stories about specific instances by specific states affecting specific people, as the panelists seem to demand. No one knew which states would enact or enforce which laws as to which people and in which circumstances. When Dobbs leaked in May or issued in June, no one could have written about Mifepristone or about Indiana sanctioning a doctor for performing an abortion on a 10-year-old rape victim from Ohio or about Idaho outlawing travel to other states.

Relatedly, lower courts--thousands of judges on hundreds of courts spread across the U.S.--determine the broad on-the-ground effects. By focusing on how media coverage of SCOTUS fails as opposed to how media coverage of of the judiciary fails, they perhaps commit the error people accuse legal educators of committing. In any event, the handful of SCOTUS reporters cannot cover the entire judicial system, although that is the locus of the large practical effects the panelists want covered.

• They spend a lot of time on the media's failure to report on the supposed outside influences on the Court and the Justices. Put Crow to one side--if that reporting bears out, it may reflect the sort of not-good behaviour warranting impeachment or resignation. The speakers criticize failure to report on the ADF and other conservative advocacy groups spending money (from specific wealthy people with an ideological goal) and operating campaigns to find plaintiffs and bring cases with the goal of overruling affirmative action, creating religious exceptions to LGBTQ+ protections, weaken environmental protections, etc. Criticizing that failure to report implicitly criticizes these groups' litigation efforts--they engage in nefarious conduct and the press commits journalistic malpractice by not writing about and exposing them and their nefarious conduct.

But much of the constitutional law that progressives cheered was created through similar litigation campaigns--advocacy organizations sought out plaintiffs to bring lawsuits challenging various laws with the goal of obtaining SCOTUS review and decisions establishing their favored constitutional provision. And the right resisted those efforts by attacking the groups bringing the cases and trying to bring them to heel. Virginia applied its laws against soliciting legal business to the NAACP's efforts to recruit parents to bring anti-discrimination suits. States investigated and prosecuted advocacy groups under anti-Communist laws, amid questions about who funded these organizations and their advocacy efforts. Lithwick and company would not argue (I presume) that the press failed 60 years ago in not exposing whether "communists" funded the NAACP and its efforts to overrule Plessy and invalidate Jim Crow.

Once again, progressives criticizing conservative impact litigation must distinguish these efforts from prior movements. "I disagree with current efforts but like past efforts" is not a principled distinction.

• Stern offers an interesting take on press coverage of 303 Creative as the latest step in an advocacy organization's campaign to carve religious exceptions into public-accommodations laws. Past cases pitted competing "rights-holders" receiving media coverage--e.g., Jack Phillips on one side and the same-sex couple who ordered the wedding cake on the other. But the posture of 303--Lorie Smith has never created a wedding web site and never been asked by a same-sex couple to create a wedding web site (Stern said it's because she sucks as a web designer). So the designer is the only person the media can cover and they have done so, in the usual soft-focus way; no specific person sits on the other side. I doubt that affects the Justices or the outcome; it affects how the public perceives the case and its consequences.

Stern suggests the one-sidedness shifting media coverage in Smith's favor illustrates why the case is bullshit. Smith lacks standing* because she faces no meaningful, imminent, or non-speculative threat of having state law enforced against her. No one--least of all two gay men, according to Stern--has or is likely to ask her to design their wedding web site or to complain to the state civil rights commission about her failure to do so, both of which are necessary to trigger any enforcement of the law against her. This is a good line, although LGBTQ+ people keep ordering from Jack Phillips.

[*] Or suffers no constitutional violation, in my preferred framing.

The presence of Justice Kagan

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

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

Kagan on Velazquez and Bacon (and Lain on Cortada)

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

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

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

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

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

 

 

More on FIRE

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

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

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

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

Backlash and the preferred first speaker

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

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

Working through that.

Roberts to Durbin: Drop Dead

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

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

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

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

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

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

Social media and state action

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

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

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

FIRE adopts preferred first speaker

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

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

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

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

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

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

I see several problems with that focus and that conclusion.

 

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

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

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

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

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

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

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

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

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

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

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

 

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

Prosecutorial Discretion and the Indictment of Donald Trump

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DeSantis exposes how much First Amendment doctrine he hates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jack Phillips loses on defense, no one cares

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

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

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

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

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

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

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

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

This is a bizarre decision.

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

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

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

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

The Trustworthiness of American Lawyers (Part V)

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

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

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

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

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

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

The Trustworthiness of American Lawyers (Part IV)

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

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

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

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

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

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

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

The Trustworthiness of American Lawyers (Part III)

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

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

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

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

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

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

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

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

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

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

The Trustworthiness of American Lawyers (Part II)

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

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

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

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

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

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

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

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

The Trustworthiness of American Lawyers (Part I)

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

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

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

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

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

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

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

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

2022 Chief Justice Annual Report

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

Some thoughts.

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

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

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

George Santos, Lies, and Jewishness

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

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

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

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

AntiJewishness: Societal or Individual

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

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

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

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

No state standing in SB8 suit

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

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

Holmes and Alito

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

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

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

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

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

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

Effective v. Enforceable

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

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

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

Georgia trial court rejects judicial departmentalism

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

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

Here is the topper:

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

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

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

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

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

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

Chamber of Commerce on corporate speech

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

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

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

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

§ 1983 and the Spending Clause

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

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

Adjectives and verbs

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

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

We are all judicial supremacists now

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

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

The politics of abortion (Update)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Does lawyering matter?

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

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

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

Bad lawsuits from the left

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

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

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

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

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

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

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

Abortion and state-created danger

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

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

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

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

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

Britney Griner and WNBA pay

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

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

You need 5 to do anything

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

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

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

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