Sunday, July 21, 2024
Aaron Sorkin out-Aaron Sorkins Aaron Sorkin (Several Update)
Update: This aged well. See if the Romney-for-VP thing catches on. (Further Update: To be clear, I do not expect it to catch on. I find interesting the prospect of a Harris/Shapiro ticket, under which the First Gentleman, VP, and Second Lady would be Jewish--sparking complaints about the power behind the throne).
I have written about the insufferability of Aaron Sorkin. But we find ourselves in a Sorkinian moment, as a successful Democratic president wrestles with whether, in light of recently exposed health concerns, he should leave the election and not seek a second term. One can imagine Joe Biden--also a devout Catholic--wandering the National Cathedral shouting at God in Latin and telling him "You get Harris!" In fact, some have urged a Sorkinian solution by proposing that Harris select a Republican as VP--names include Mitt Romney (who, by the way, is 77) or Adam Kitzinger, a former GOP congressman who twice voted to impeach Trump.
Realizing that everyone is stealing his insipid thunder, Sorkin outdoes himself in today's Times by descending to outright stupidity: The Democrats should nominate Romney as President. Never mind that Romney is 77, so you are offering a super-annuated person to replace a candidate who is struggling because of his age. Never mind that Romney disagrees with just about every meaningful position in the Democratic Party platform and every ideal that the mean liberal Democratic voter (to say nothing of the progressives) believes in. Policy does not matter; only politics and getting to 270. Of course, I am not sure why Sorkin (or anyone else) believes Romney can get to 270. There are not so many Never-Trump Republicans (to whom Romney appeals as a policy matter), especially to overcome the many Democrats who would stay home.* And why is Romney better than any non-Biden Democrat--except in his appeal to Republicans. In other words, Sorkin's proposal reduces to "Democrats must sacrifice everything to bail out the Republicans who went off the rails."
[*] And perhaps not wrongly. It is one thing to tell young progressives to show up for Biden (or any non-hard-left Democrat) because he will get you some of what you want on some timeline, even if not everything or as fast. It also is one thing to tell Republicans to show up for a Democrat when their party has abandoned them. It is something entirely different to tell Democrats to surrender any policy preferences by choosing a less-offensive Republican over another Republican.
Although, I guess if a well-known playwright was going to go off the rails, it could be worse.
Posted by Howard Wasserman on July 21, 2024 at 01:24 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Saturday, July 20, 2024
Religiously Affiliated Law Schools conference: "Forming Lawyer-Stewards"
This year's (well, it's biennial) Religiously Affiliated Law Schools conference will be held on September 12-13, 2024, at Fordham. The theme is "Forming Lawyer-Stewards: The Special Role of Religiously Affiliated Law Schools." Fordham's new president, Tania Tetlow, will be the keynote.
More information, including registration (there's CLE available!) is here:
Join us at the 2024 Religiously Affiliated Law School (RALS) biennial Conference, delving into the vital concept of stewardship — a principle deeply rooted in many of the world’s major religions. Our aim is to explore the critical role of lawyers as stewards of both our communities and the world. Employing a dialogue-based approach, the conference shall bring attendees together in small but diverse working groups where they will discuss how stewardship intersects with key areas such as the environment, criminal justice, and immigration. We look forward to welcoming students, legal scholars, law school administrators, and legal practitioners' voices as we explore the concept of lawyer-stewards.
Posted by Rick Garnett on July 20, 2024 at 07:38 AM in Life of Law Schools, Religion | Permalink | Comments (0)
Saturday Music Post - Shall We Dance to the Music, Cheek to Cheek, All Night (in the Streets)
Today's clips -- featuring Julie Andrews, Wilson Pickett, Fred Astaire, Martha Reeves, Sly and the Family Stone, and more -- are at The Faculty Lounge.
Posted by Steve Lubet on July 20, 2024 at 05:44 AM | Permalink | Comments (0)
Friday, July 19, 2024
Not the Best Response
“I’ll feel, as long as I gave it my all and I did [as] good a job as I know I can do, that’s what this is about."
Joe Biden, July 5, 2024
“Whatever the result my be, I shall carry to my grave the consciousness that I at least meant well for my country."
James Buchanan, January 8, 1861
Posted by Steve Lubet on July 19, 2024 at 05:20 PM | Permalink | Comments (0)
The Fifteenth Amendment and Women's Suffrage
I'm writing a paper on the constitutional arguments for women's suffrage during Reconstruction. One interesting move that the advocates made was to say that the Fifteenth Amendment conferred or recognized a general right to vote. The argument went something like this:
- The Fifteenth Amendment begins by acknowledging: "The right of citizens of the United States to vote."
- Women are citizens of the United States.
- States may regulate but may not extinguish a national right.
- Therefore, women have some constitutional right to vote.
Victoria Woodhull also argued that women fell under the Fifteenth Amendment's language barring states from denying the right to vote on the basis of "previous condition of servitude" because women were previously held in servitude. I'm not saying that these arguments were right, but I don't think they resurfaced after 1871.
Posted by Gerard Magliocca on July 19, 2024 at 11:09 AM | Permalink | Comments (0)
Thursday, July 18, 2024
Why is this jurisdictional?
Hunter Biden moved to dismiss his indictment for lack of jurisdiction arguing that special prosecutor David Weiss' appointment is constitutionally invalid under the Appointments and Appropriations clauses, in light of Thomas' Trump concurrence and Judge Cannon's decision to dismiss the documents case.
I leave to others the constitutional merits. My question: Why is this a jurisdictional defect? The motion describes this as an indictment "brought by an unauthorized prosecutor" and concludes that this means the court lacks jurisdiction, citing Trump and a 1991 9th Circuit case treating a challenge to a special AUSA's authority as going to the court's jurisdiction. But the cited portion of Trump does not use the word jurisdiction and the 9th Circuit case came a decade before the Court righted the ship on the jurisdictional label.
I focus on civil cases and perhaps criminal cases are different. But I think this comes back to conflating types of jurisdiction. The jurisdiction (i.e., "authority" or "authorization") problem is one of executive or prosecutorial authority--the official pursuing the prosecution lacks the constitutional authority to pursue the case. But the absence of executive jurisdiction to act should not strip the court of adjudicative jurisdiction, just as the absence of legislative jurisdiction to enact the law being enforced does not strip the court of adjudicative jurisdiction. Both require the court to exercise its power and grant judgment for the defendant on the merits.
Is there something different about criminal law and the prosecutorial power that changes this analysis?
Posted by Howard Wasserman on July 18, 2024 at 06:46 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)
More on Rankin's revenge
I was a bit glib and non-specific in this post. But it now appears more than a few teachers out there have made comments on social media to the effect that they wish Thomas Matthew Crooks had better aim; Libs of TikTok and Moms for Liberty have found and identified many of those teachers and their posts and are demanding scalps; and attention-starved and/or craven public officials are making noise about firing and/or decertifying those teachers. So let me try the fuller analysis here.
The leading, and factually similar case, is Rankin v. McPherson. A clerical worker in the sheriff's office had a conversation with her co-worker/boyfriend after hearing news of the attempted assassination of President Reagan, in which she said something to the effect of "if they attempt to shoot him again, I hope they get him." SCOTUS held that her firing violated the First Amendment. Her statement was on a matter of public concern and was not a threat or otherwise unprotected. And the Pickering balance--employee interests in commenting on matters of public concern against interests of the government employer in promoting workplace efficiency--favored the employee. The statement was made in a private conversation (albeit one in the workplace) and did not affect her co-workers, workplace relationships, performance of anyone's job, or overall functioning of the agency. As a clerical employee, she did not have contact with the public as part of her job and did not affect the office's law enforcement functions.
Ironically, Twitter exchanges I have seen fail to mention or discuss Rankin, which is a somewhat forgotten case (as so many Marshall opinions are) even among the First Amendment crowd.
In thinking about Pickering, it is worth remembering that the case involved a teacher, fired over a teacher over his letter to the editor criticizing the school board's funding priorities. Criticism of the school board did not per se affect the functioning of a school in terms of his classroom duties, his harmony with fellow teachers, or the ability of his superiors to control and discipline him. And the Court would not presume that the teacher brought his negative views into the classroom.
So what happens if schools fire or discipline teachers because of these social-media posts? As with the statements in Rankin, expressing hope outside the workplace that a political leader would be assassinated (whether as a wish for a future shooter or regret for a past shooter's failure) is non-job speech, touches on a matter of public concern, and is not a threat or incitement or otherwise unprotected. Everything thus turns on Pickering. These teachers spoke entirely outside the workplace to the public at large rather than at work to a colleague. The statements lack even a remote connection to their jobs or to their employers, because they were not talking about the school district or education (contra Pickering). Teachers are public-facing employees. But schools cannot assume that teachers will bring their personal political views into the classroom as to allow them to fire teachers who express views that school administrators find offensive or contrary to the values of the school. Absent some evidence that the teachers will attempt to convince their students that Crooks should have bought a better scope or otherwise that assassinating Donald Trump would be a good thing,* the school cannot argue that the teacher's publicly expressed political views that never find their way into the school or curriculum undermine discipline or the efficient educational operations.
[*] Which would constitute a fireable offense because elementary and secondary teachers exercise less control over their classroom speech.
The problem may be actual or anticipated parent reaction--a school might be able to argue that functions have been disrupted or undermined if parents complain or object to their children being in one of these teachers' classes. While that sounds like a heckler's veto, lower courts have rejected the idea that Pickering's disruption prong constitutes such a veto--as the Second Circuit put it, parents are not outsiders to the speech and speaker but participants in public education whose cooperation is required for the system to work.
Cases in which teachers have lost on Pickering tend to involve statements that go towards children and the teachers' possible interactions with children--a guidance counselor publishing a sexist relationship-advice book; a school counselor indicating an unwillingness to handle trans kids as the school deems fit; a teacher with a membership in NAMBLA; or a teacher who blogs critically about her students. Nothing that these teachers said bears on their students or on what they teach. Indeed, if these teachers can be fired for these obnoxious statements about world events, it seems to follow that schools could fire teachers for holding or expressing an array of obnoxious beliefs on an array of matters of public concern. Something I thought Libs of Tik Tok and Moms for Liberty decried as cancel culture . . .
Posted by Howard Wasserman on July 18, 2024 at 02:30 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Wednesday, July 17, 2024
When motive matters
Orin Kerr has a Twitter thread* on whether Thomas Matthew Crooks' motive matters.
[*] On Gerard's post on leaving Twitter: In one sense, I was never "on" Twitter because I never posted; I only got an account when Twitter stopped allowing people to read without joining. But I regularly read those law profs, lawyers, and journalists--including Orin--who continue to blog there and highlight new cases and issues that I may write about here, use for my own work, or use in class. Even if fewer people do this, I think it is enough to keep checking and keep reading. Still have not posted and never will.
Orin posits three possible reasons: 1) Crooks was insane; 2) Crooks was a lefty who believed the "Trump is a threat to democracy" of Mother Jones and Rachel Maddow; 3) Crooks was hard right and believed Trump too moderate. Orin asks how much the actual reason matters to understanding what happened or to how to respond.
I would argue it matters whether it was # 2 because of Republican efforts, aped and aided by the media, to use this to silence sharp (if accurate) criticism of Trump. If we know he is not a lefty, then the narrative of "violent rhetoric from the left" cannot (or at least should not) take hold or be given credence. But that is, to this point, the most consequential effect of the event (along with, I suppose, the BS "Trump has changed narrative").
Posted by Howard Wasserman on July 17, 2024 at 03:49 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Tuesday, July 16, 2024
On-point precedent (Updated)
The latest target of Libs of Tik Tok has on-point precedent on her side. Maybe there is a difference between a special-ed teacher and a clerical police employee, although I doubt it. The school would have to show some risk that she has brought or will bring her heinous political views into the classroom. Unless cop-porn has changed the legal landscape.
Update: Seems to be spreading and escalating. A teacher in Oklahoma City posted "[w]ish they had a better scope" and the state superintendent announced that he was coming for her license, insisting that "[n]o one in Oklahoma education system will support the assassination of @realDonaldTrump. It will not be tolerated. Ever!" Interesting response--query whether it extends to those supporting the assassination of anyone else (suppose Crooks decided to shoot at Biden--new reports suggest he picked his target at random). Or to those who, for example, insist that Derek Chauvin was justified in killing George Floyd. Otherwise, this guy gave himself a viewpoint-discrimination problem, atop everything else.
Posted by Howard Wasserman on July 16, 2024 at 04:55 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)
Bye-Bye Twitter/X
I deactivated my Twitter/X account the other day. I'd been thinking about this for the past few months. Given that I blog on two platforms, I could never figure out why I was on Twitter. I suppose one answer was that some traditional blogging migrated to Twitter--I'm looking at you, Orin Kerr--and I wanted to read that. But there is less of that there now. During the Section 3 litigation, I also felt some obligation to be on there for people who were looking for information. But that's dormant now, so that rationale doesn't exist either.
In the end, I think Twitter/X is a waste of time. I reached this conclusion years ago about cable news and never looked back.
Posted by Gerard Magliocca on July 16, 2024 at 10:52 AM | Permalink | Comments (0)
Monday, July 15, 2024
Ballots, bullets, and media narratives (Updated)
Donald Trump won reelection when that bullet whizzed past him on Saturday. This means neither that I wish Trump had been killed nor that the shooting was the Reichstag Fire. Rather, the shooting will affect media coverage of the race in a way that I believe will affect a significant number of voters and that I do not believe Biden can overcome.
First, Trump's reaction--to adorn t-shirts and history books for years to come--reinforces the narratives of Trump as a "fighter" and of Trump as younger and more vigorous and tougher than Biden. It is no longer just that Trump and stand and scream for hours (even if what he says is nonsensical and/or frightening). It is that Trump leaped to his feet after getting shot in the ear. MAGA types had long trafficked in strange images of Trump as muscle-bound strongman. Now a real example feeds that image.
Second, the media narrative will make impossible the accurate Democratic argument that Trump is an authoritarian who undermines and threatens the constitutional order. Any criticism of Trump or discussion of Trump's dangerousness will be criticized by MAGA and reported by the media as the left inciting and calling for more violence against Trump (with constant reminders of the shooting). Biden and Democrats cannot make the core argument against Trump's election without being criticized for raising the temperature and setting the stage for more violence. At the same time, the media will play up (as it has begun to do) the narrative of Trump as a "changed man," seeking to unite rather than divide and finally become President of the whole United States. Anything Trump says at this week's RNC and beyond will be framed around and reported as reinforcing that supposed change and desire to unify, regardless of its substance and as the things he pursues remain inherently divisive. The media has long been unwilling or unable to accurately report what Trump says and does, trapped by what some have called the bias towards normalcy. The shooting and its aftermath offer a different bias through which to launder the danger.
Third, these narratives have developed before we know the shooter's motives, whether this was politically motivated, and whether the narrative of "Trump is dangerous and must be stopped" (even if in context every sane person knew that meant the ballot box) had anything to do with the shooting. The narrative is that it did and thus Democrats must change their message and stop criticizing Trump.
Finally, this from David Frum: "Nobody seems to have language to say: We abhor, reject, repudiate, and punish all political violence, even as we maintain that Trump remains himself a promoter of such violence, a subverter of American institutions, and the very opposite of everything decent and patriotic in American life." I would add that even if some people had that language, the media could not and would not present it to the world.
Update: Tom Nichols, also in The Atlantic. He blames bad-faith GOP partisans more than the media for engaging in what Ed Luce calls “an Orwellian attempt to silence what remains of the effort to stop [Trump] from regaining power.” But if the move comes from partisans, it "seems to be working" with the media--MSNBC canceling Morning Joe on Monday and The Times apologized for an op-ed, published before the assassination, calling Trump unfit for office. But I think this confirms my original point that it is on the media. Political leaders are going to political leader, especially bad-faith actors such as Rick Scott and Mike Collins. Things fall apart when the media cannot or will not stand up to that bad faith. As journalism professor Jay Rosen puts it, the trust-in-media problem is that the media do not trust themselves.
Posted by Howard Wasserman on July 15, 2024 at 03:12 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
A Home Distillery and Prohibition
In more mundane news, there was an interesting District Court opinion out of Texas holding that the federal ban on at-home distilling is unconstitutional. The Court concluded that the ban, first enacted in 1868, exceeded Congress's power under the Commerce Clause and was not a tax. This decision could give the Supreme Court an opportunity to revisit cases like Wickard and Raich.
That said, I think that there is also a Twenty-First Amendment issue here. The Amendment implies that the states should take the lead in issue related to alcohol regulation. This was, of course, ratified well after 1868. I wonder whether Congress's powers here should be read more narrowly. Coming soon to Fifth Circuit courtroom near you.
Posted by Gerard Magliocca on July 15, 2024 at 10:55 AM | Permalink | Comments (0)
Tessie Prevost Williams, unsung hero of school desegregation, dies at 69
From the Washington Post:
But the same morning that Bridges faced fulminating White mobs to enter the first grade at William Frantz Elementary, three other 6-year-old African American girls braved the same gauntlet as they integrated McDonogh 19, another elementary school in the Ninth Ward, just two miles away.
On the Monday in November that was set for their first day at their new schools, the girls were picked up at their homes by U.S. marshals assigned to protect them.
Over the course of the day, the school emptied out of White students. “All of a sudden you see children disappearing,” Mrs. Prevost Williams told Devlin. “Someone would come and just snatch a child out of the classroom.” White families found other schools for their children to attend and in many cases moved away. For all of first grade and half of second, the girls were alone, a classroom of three.
At that point, the marshals were no longer present, journalists had turned their attention away from New Orleans and the girls, in many respects, were on their own. Their experience became “progressively worse as they went throughout their academic career,” said Mark Cave, a senior historian at the Historic New Orleans Collection.
Students kicked and hit the girls, spat upon them, pushed them down the steps, struck them with baseball bats and ripped their clothing. The teachers did nothing to stop the abuse and at times encouraged it. Mrs. Prevost Williams remembered one of them as “the devil’s bride.”
It is a story of incredible dignity and resolve, confronted by appalling hatred and depravity. You should read the entire obituary here.
Posted by Steve Lubet on July 15, 2024 at 04:00 AM | Permalink | Comments (0)
Saturday, July 13, 2024
A Serious Issue, Unseriously Reported
As Paul Caron notes, Inside Higher Education has an article suggesting that Columbia law professor Katherine Franke faces potential dismissal by her university. If she were dismissed or seriously disciplined for the statements that apparently are the focus here, statements that I find rather silly, that would be a cause for serious alarm and objection. Whatever one thinks of what she said, it is not proper cause for academic dismissal. Those who are concerned to protect academic freedom should watch vigilantly.
That said, may I note that the article is so poor that it cannot possibly count as a serious and reliable account. (It is also dismally written. I don't know whether the fault is the reporter's or the editors'. Wherever the fault lies, something went very wrong for the lede to be relegated to the thirteenth paragraph.) Despite a mild genuflection toward the idea of seeking comment elsewhere, it is essentially a single-source story, that source being Prof. Franke, and it mostly simply retails her own arguments and complaints. The idea that she may be fired--something that should not happen, based on what is presented here, and that I would of course oppose--is based wholly on this statement: "The university did send a copy of its Office of Equal Opportunity and Affirmative Action policies, which include termination as one of multiple possible sanctions for alleged discrimination and harassment. Franke says her lawyer has told her she has a 50-50 chance of being fired." I am not sure I would take a list of sanctions that includes dismissal as strong evidence of what will actually happen, and I am disinclined to give much weight to a second-hand report of a lawyer's probability estimate.
At the risk of tiresome repetition, I would oppose such an outcome. But neither this story, nor a story published--on the very the same day--by The Intercept, which is better written and better done but otherwise mostly identical in its substance and sourcing, should yet be taken as serious indicators of what is to come. I was not a journalist for very long, although I was glad to learn a few journalism skills at the university at which Prof. Franke teaches. But from that perspective, and especially given their overlap, both stories seem closer to transcription or to a PR campaign than to serious independent journalism.
Posted by Paul Horwitz on July 13, 2024 at 02:36 PM in Paul Horwitz | Permalink | Comments (0)
More on the continued usefulness of Younger
A third post on the 11th Circuit and rethinking Younger:
The Volokh Conspiracy's weekly Short Circuit roundup includes the case, along with a link to an Institute for Justice amicus brief. IJ offers a slightly different argument than Judge Rosenbaum for rethinking Younger. Pre-enforcement offensive litigation has expanded since the 1970s when the Court decided Younger and its early progeny, because the Court has developed a greater willingness, especially in First Amendment cases, to find the threat of prosecution sufficiently imminent. In this case, that means a "phonebook's worth" of similarly situated PACs and organizations could sue Georgia in a pre-enforcement challenge to these laws. Abstention in this case therefore does not serve Younger's stated purposes: Someone else can bring the federal court into the mix via pre-enforcement action, leaving state courts and agencies no room to operate, just not the plaintiffs with the most concrete injuries (the ones facing actual rather than threatened enforcement).
An interesting argument, although it might prove too much. Constitutional litigation is atomized, with different cases challenging a particular law as to different rights-holders. So there is nothing inconsistent if some cases involving some rights-holders must remain in state court while other cases involving other rights-holders can be in federal district court. Maybe a case such as this one, involving general campaign-finance regulations, is different.
Posted by Howard Wasserman on July 13, 2024 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday Music Post - Iko Iko
Originally titled "Jock-a-Mo," the song now known as "Iko Iko" was written and released by Chess Records' Checker subsidiary in 1953 by James "Sugar Boy" Crawford. It tells the story of competition between two bands of Mardi Gras parade "Indians." The lyrics are just random chants -- as Crawford explained in an interview -- although some have tried to impute meaning to them. Crawford's record didn't chart, but the Dixie Cups had a hit with an a cappella version in 1965. One of them had evidently only heard her grandmother singing it and, unaware of Crawford's release, and believing it to be a traditional song, claimed the copyright. (Evidence, btw, that such copyright claims were common at the time, and not only by Pete Seeger.) Litigation followed, with Crawford mostly prevailing.
"Iko Iko" has been closely identified with New Orleans, though many of the numerous covers have been by non-NOLA artists, whose clips you can enjoy at The Faculty Lounge.
Posted by Steve Lubet on July 13, 2024 at 05:38 AM | Permalink | Comments (0)
Friday, July 12, 2024
JOTWELL: Bookman on Dickinson on state courts and democracy
The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Gerald S. Dickinson, Judicial Laboratories, ___ U. Pa. J. Const. L. ___ (forthcoming 2025), exploring state courts' unique powers and unique roles in preserving and promoting democracy.
Posted by Howard Wasserman on July 12, 2024 at 02:43 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
The Greek Way
I am now reading this book by Edith Hamilton. Back in the 1950s and 1960s, The Greek Way was one of those books that powerful people in Washington often had on their shelf. (Much like people now have The Power Broker). Justice Hugo Black was a big fan. So was Robert Kennedy. Indeed, quotes that RFK used in two of his famous speeches were lifted directly from Hamilton's book.
While there are some parts that are dated or obscure, the book makes many powerful observations and is written in an arresting style. I'll see if Justice Black drew on any material from The Greek Way in his opinions.
Posted by Gerard Magliocca on July 12, 2024 at 08:47 AM | Permalink | Comments (0)
Thursday, July 11, 2024
More on Younger--Exhaustion and the limits of defensive litigation
I am thinking through some points in my post about 11th Circuit Judge Robin Rosenbaum's call for rethinking the scope of Younger, at least in electoral speech cases.
Rosenbaum argues that "Younger has evolved to allow states to impose a state-exhaustion requirement on those trying to exercise core First Amendment rights." This is a bit nit-picky, because I agree with her basic criticism. But it is inaccurate to say Younger imposes an exhaustion requirement. An exhaustion delays federal litigation by requiring the plaintiff to pursue other procedures before going to federal court. But the plaintiff should get to federal district court eventually. On the other hand, when the federal court abstains under Younger, that plaintiff will never return to federal district court in a § 1983/EpY action. The rights-holder remains in state administrative and judicial proceedings, with the possibility of a federal forum through SCOTUS review of the state's highest court. Rather than creating exhaustion, Younger limits offensive pre-enforcement § 1983/EpY litigation and compels defensive litigation on important free speech issues. Still potentially problematic, depending on one's views of the lines between offensive and defensive litigation. But not as inconsistent with the text and purpose of § 1983.
The key to Rosenbaum's argument is an objection to Younger's application to state administrative proceedings (at least in First Amendment case), which delay access to state courts. She identifies two arguable problems. First, while Younger perhaps fairly presumes parity between state and federal courts in willingness to vindicate federal rights, that presumption should not apply to state administrative agencies, even with eventual state judicial review. Second, delaying access to state court may delay the first meaningful opportunity to raise federal issues--a rights-holder has an adequate opportunity so long as he can raise issues in some state proceeding, even if it does not come until several steps down the line. That is, if the PAC cannot raise First Amendment issues before the hearing board, it is enough that it can appeal the board's decision to a state appellate court and raise the First Amendment there--regardless of how long it takes to get to that second level of review.
On the other hand, the upshot of Younger is to push rights-holders out of federal district court and into state proceedings that must run their (state-determined) multi-level course. It is not clear why the first level must be judicial rather than administrative. Nor is it clear why the opportunity to raise federal issues must come at the first stage of the multi-level process, if that process must run its course before those rights can be vindicated. That is, why does it matter whether the rights-holder can raise and prevail on his federal rights at the first stage if the state will appeal that decision in any event and force completion of those proceedings.
The answer to that goes to preliminary relief, available in offensive federal litigation but not in defensive state litigation. A rights holder (such as the PACs in the Georgia case) can obtain a preliminary injunction in federal court, allowing it to engage in political speech pending resolution of the constitutional questions. From a defensive posture, especially within an administrative process, the rights-holder must remain silent and ride out the proceeding. That, ultimately, becomes the real issue with Younger's push into defensive litigation.
Posted by Howard Wasserman on July 11, 2024 at 11:08 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, July 10, 2024
The Triangle of Lawyer Movies
Interesting theory from (non-lawyer) Albert Burneko at Defector (with many comments from lawyers).
Posted by Howard Wasserman on July 10, 2024 at 12:46 PM in Culture, Howard Wasserman | Permalink | Comments (0)
Cheering speech in context
Protection for cheering speech--fan speech during sporting events--depends on context. Different sports employ different norms and practices, which affect what is acceptable fan speech. Obviously, the constant thunder of a basketball game at Duke's Cameron Indoor Stadium does not carry over to Wimbledon, where fans cheer between points but are expected to remain silent during play.
That works well enough in trying to define the rules for fans in those stadiums in which First Amendment rules apply and in which the stands can be seen as some kind of public forum. But tennis also apparently has norms limiting what fans cheer for or against and how. Two cases in point from Monday.
Novak Djokovic was upset with the Wimbledon crowd during his victory over Holgar Rune for disrespecting him by shouting "booo" at him; he rejected the idea that it was Rune fans supporting their player by chanting his name ("Ruuuuune"). Alexander Zverev had a long conversation with American Taylor Fritz when they met at the net following Fritz's five-set victory, apparently angry at how loudly some in Fritz's box cheered, especially when it was obvious that Zverev was injured. It probably did not help that Fritz's girlfriend made several (since-deleted) Instagram posts about women supporting Fritz, perceived as referencing several accusations of domestic abuse against Zverev. Indeed, Zverev clarified that Fritz's coaches and trainer were respectful, so it it was someone else being disrespectful--do the math.
So it is ok to cheer for Player A but not against Player B. And do not cheer too loudly. And do not cheer (at least not overly hard and loud) for Player A if Player B is injured. Strange.
The source of the complaints should not surprise. Djokovic cannot get the fans to love him despite being the unquestioned G.O.A.T., so he somewhat leans into the villain role. And Zverev is poster-child for the ATP's perceived unwillingness or inability to hold players accountable for off-court misconduct.
Posted by Howard Wasserman on July 10, 2024 at 12:36 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)
John Roberts Rewrites History
The majority opinion in Trump v. U.S. claims that Federalist No. 70 supports the theory of absolute presidential immunity, when in fact it says pretty much the opposite. Yes, it extols "energy in the executive," but it also lists four "ingredients" for an energetic executive, none of which is immunity. And Federalist No. 69, also written by Alexander Hamilton, actually notes the circumstances in which a former president could be “liable to prosecution and punishment in the ordinary course of law.”
But no matter. All it takes is a poetic rewrite to harmonize the Federalist Papers with Roberts's invention of presidential immunity (with apologies to A.A. Milne):
James, James, Madison, Madison, founding father was he.
James, James, Madison, Madison, stood just five foot three.
James said to his good pal Hamilton,
Alex he said, said he:
Forget all our capers with Fed'ralist papers,
And just say immunity.
Posted by Steve Lubet on July 10, 2024 at 04:45 AM | Permalink | Comments (0)
Tuesday, July 09, 2024
Rethinking Younger
Interesting Younger case from the 11th Circuit. The Georgia AG pursued a state administrative action against a PAC associated with Stacey Abrams for failing to register and file various reports. The state commission found reasonable grounds and referred the case to the AG, which referred the matter to the state administrative hearing body. Between those events, the PACs filed a § 1983 action to enjoin the state proceedings. The court held that the district court should have abstained from the federal action.
Judge Newsom wrote another Fed Courts treatise for the panel. Although the PACs filed the federal action before the hearing body received the referral to commence its proceeding, the court applied the piece of Younger under which the court must abstain if the state proceeding commences after the federal proceeding but before any "proceedings of substance on the merits have taken place in federal court." The plaintiffs had filed a complaint and a motion for a preliminary injunction and the court had handled some case-management motions. But the court had not ruled on the PI motion or otherwise engaged with the merits in the few weeks before the state proceeding commenced.* And the fact that the state conducted a thorough multi-year investigation of the PACs undermined the suggestion that the case falls within the bad-faith exception.
[*] The court rejected the district court's reliance on its "experience managing cases" in defining the point at which the state action is too late.
Judge Rosenbaum concurs to call on the courts to "reconsider just how far Younger should extend." Rosenbaum fears Younger in a case involving core political and electoral speech; that speech has achieved greater protection than it had at the time of Younger. Whatever the merits of abstention in 1970s actions involving communists, nude dancing, and "Deep Throat" (speech which the Burger Court was backing away from protecting), Citizens United and other recent campaign-finance cases vault such speech into a unique First Amendment core demanding the "strongest protection." (A cute rhetorical move in a case in which a Republican AG was going after a Democratic PAC). She complains that two of the Middlesex factors--state interest and adequate opportunity to raise federal issues--invariably favor abstention and the exceptions are too narrow to offer help. This imposes an exhaustion requirement for those wishing to engage in core political speech during and around an election. And she identifies the "Goldilocks" problem in Younger--plaintiffs must hit the sweet spot between state enforcement being sufficiently imminent to warrant standing but before that state enforcement has begun.
Recent criticisms of Younger--especially in the work of Fred Smith (Emory)--focus on efforts to challenge proceedings within the criminal justice system, such as bail or the corrupt mess in municipal courts in Ferguson and elsewhere. The argument is that federal courts should not defer to broken state systems that the federal action challenges. Rosenbaum focuses on one area of substantive law that abstention disparately effects, in a way that undermines the substantive purposes of that law.
Posted by Howard Wasserman on July 9, 2024 at 03:45 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, July 08, 2024
Court Expansion Is the Only Remedy for the Partisan Super-Majority
My new column for The Hill exposes the partisan nature of the Supreme Court’s presidential immunity decision, and explains that expansion is the only path forward, even if it takes many years. Here is the gist:
A long-game strategy to fix our partisan Supreme Court
Justice Amy Coney Barrett posited that the hackery charge could be refuted if we would only “read the opinions.”
That’s fair enough. But reading just a few passages of Trump v. United States reveals that it was indeed results-driven, lacking the basic attributes of a solid constitutional decision.
Roberts shrugs off the absence of a comparable presidential immunity provision by noting that “there is no ‘separation of powers clause’ either.”
Roberts’s analogy is nonsense. There are actually three clauses in the Constitution that unambiguously provide for the separation of powers — they couldn’t be any more separated — while there is no similar textual support for absolute presidential immunity.
Roberts again waves off the plain text of the constitution, insisting that the impeachment clause “does not indicate whether a former president may, consistent with the separation of powers, be prosecuted for his official conduct in particular (italics original).”
But what else would a presidential bribe be for, other than the conduct of an official act?
The majority opinion consistently fails Barrett’s test for partisan hackery, relying more on judicial sleight of hand than on text or precedent.
Supreme Court expansion does not have a natural constituency among lawyers and the public.
But what other remedy is there for a court that has essentially legalized presidential bribery?
You can read the entire essay at The Hill.
Posted by Steve Lubet on July 8, 2024 at 01:38 PM | Permalink | Comments (0)
Petitions for Rehearing in the Supreme Court
A petition for rehearing is rarely granted by the Supreme Court. I can recall only one example in the last 2o years (Kennedy v. Louisiana). But I wonder why more litigants don't file one for PR reasons.
Consider a high-profile case in which there will be no further substantive proceedings. You lose in the Supreme Court. Why not file a rehearing petition pointing out why the Court's opinion is wrong or poorly reasoned? Unlike a brief, you can actually respond to the opinion rather than anticipating what the Justices may think.
Maybe attorneys who are repeat players don't do this because they think they'll look like sore losers. Or maybe filing a rehearing petition just costs money that clients don't want to pay. But I'm surprised that you don't see more rehearing petitions at the Court.
Posted by Gerard Magliocca on July 8, 2024 at 08:00 AM | Permalink | Comments (0)
Saturday, July 06, 2024
Saturday Music Post - Loving Too Long
"I've Been Loving You Too Long (to Stop Now)" was written in 1965 by Otis Redding and Chicago's Jerry "Iceman" Butler (who, I have to note, served on the Cook County Board of Commissioners 1986-94). It was Redding's second biggest hit, after the posthumously released "Dock of the Bay." The background guitar arpeggios were by Steve Cropper, who also produced the single.
The clips are at The Faculty Lounge.
Posted by Steve Lubet on July 6, 2024 at 05:54 AM | Permalink | Comments (0)
Friday, July 05, 2024
Maya Moritz on Entry-Level Hiring
Maya Moritz has an extremely informative analysis of hires in the law professor market, with a focus on JD/PhDs.
Posted by Sarah Lawsky on July 5, 2024 at 05:34 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
More on collateral order review of presidential immunity
The latest episode of Divided Argument with Will Baude and Dan Epps explores Trump. Baude praises Barrett's conception of presidential immunity as an as-applied constitutional challenge to the law. So conceived, however, Baude questions Barrett's conclusion that denial of the defense is immediately reviewable. Immunities receive immediate review, as they protect the person from having to stand trial or stay in litigation for too long. Constitutional defenses--e.g., a separation-of-powers defense to the CFPB (Barrett cites Seila Law as an example) or a First Amendment defense to a flag-burning law--do not, as they protect the person from liability. I want to unpack what I wrote about this.
COD appealability should not turn on labeling something as "immunity" or as a "right not to stand trial." Barrett's point is that immunity is never a distinct concept; it is shorthand for the argument that a law does not apply to the defendant's conduct.* And it is not obvious what makes something a right not to stand trial as opposed to a defense to liability, beyond the label--every defense can be characterized as one or the other. There is no obvious reason that double jeopardy and qualified immunity are immunities according a right not to stand trial while preclusion and the FTCA judgment bar are defenses to liability.
[*] Justice Alito has said the same about MLB's antitrust immunity--he describes it as a judicially interpreted exclusion of MLB from the scope of antitrust laws and the application of those laws to MLB's conduct
Justice Souter tried to wrangle this issue in two unanimous COD opinions--Will (FTCA judgment bar) and Digital Equipment (private covenant not to sue). Reviewability should turn on the systemic import of the interests sought to be vindicated by immediate review and that would be lost by "rigorous application of a final judgment requirement." Thus, "it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is 'effectively' unreviewable if review is to be left until later." This analysis considers the source of the asserted right (Constitution, statute, common law, contract) and who and what the right protects (individual or systemic interests). Unfortunately, Souter's approach has been lost in favor of simple labels.
Back to Barrett and presidential immunity. Her conception of a constitutional defense to a prosecution places presidential immunity on the same footing as the separation of powers and First Amendment defenses above. So why is the first immediately reviewable and the other two not? She never explains. Souter's considerations about underlying interests provide a way out. Although all derive from the Constitution, the latter two (and certainly the third) protect individual liberty interests; the first protects broad systemic interests of the presidency and the ability of the President to act within the constitutional system. That distinction may be wrong. Separation of powers in Seila Law serves structural interests of preserving the President's removal power; one could argue individual liberties serve structural interests of limiting government power. Maybe Barrett's position, taken seriously, explodes the COD or forcse the Court to make absurd distinctions to ensure COD remains a "small class of claims."
But Barrett's position about presidential immunity is not necessarily wrong or inconsistent with COD--if we accept Souter's position that COD turns on the underlying interests and policies at issue and begin the analysis there.
Posted by Howard Wasserman on July 5, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, July 04, 2024
"Yes, Prime Minister" on Criminal Procedure
On Independence Day and British General Election Day, let's take a look at this gem:
PM Hacker: I want to trace the culprit.
Sir Humphrey: Yes, Prime Minister.
Hacker: And I want a prosecution.
Sir Humphrey: Yes, Prime Minister.
Hacker: And I want a conviction.
Sir Humphrey: (pause) We can try and trace the culprit, we can prosecute, but under the present political system, there are problems about the government actually guaranteeing a conviction.
Hacker: A little drinkie with the judge?
Sir Humphrey: It's unthinkable. There is no way any pressure can be placed on a British judge.
Hacker: Well how does one secure a conviction?
Sir Humphrey: Well simple, you find a judge who won't need any pressure put on him.
Hacker: Oh.
Sir Humphrey: A quiet word with the Lord Chancellor, find a judge who's hoping to be made a Lord of Appeal, and then leave justice to take her own impartial and majestic course.
Hacker: And that does the trick?
Sir Humphrey: Well not always. Sometimes they're so obviously trying for a conviction, that the jury acquits out of sheer bloody-mindedness.
Hacker: So you need a judge with a bit of common sense as well.
Sir Humphrey: Ah yes.
Hacker: Won't be as easy as you make out.
Posted by Gerard Magliocca on July 4, 2024 at 09:04 AM | Permalink | Comments (0)
Happy Fourth
Continue reading "Happy Fourth"
Posted by Steve Lubet on July 4, 2024 at 06:58 AM | Permalink | Comments (0)
Wednesday, July 03, 2024
Presidential immunity, Speech-or-Debate, and evidentiary privilege
An email exchange with Lee Kovarsky (Texas)--who has great analysis of the immunity decision on Twitter and in a Seattle University Law webinar --offers a possible justification for treating presidential immunity different from Speech-or-Debate immunity in terms of anevidentiary privilege. Lee concedes this may not justify the criticism or differential treatment--maybe both should include the evidentiary privilege. But it is the first possible distinction anyone has presented to explain unique complaints about the evidentiary privilege and to explain why the majority had to do more to defend it.
My mistake was in thinking about the evidentiary privilege as downstream from immunity simpliciter rather than as downstream from the underlying textual and policy bases for immunity. The issue is not "both are incidents of absolute immunity." The issue is "whether this is properly an incident of the underlying basis for that immunity." They are not the same. Summarizing (not quoting) Lee's argument:
Under the Speech-or-Debate Clause, members "shall not be questioned in any other place." That is a uniquely broad framing; it has a "what happens in the House stays in the House" flavor to it. An evidentiary privilege fits the core of that language--to use legislative acts in court in any manner is to "question" such acts in another place. Presidential immunity rests on policy--ensure "bold and unhesitating action." An evidentiary privilege may be less core to that policy--it is less obvious that using presidential actions as evidence to prove other, non-immune misconduct causes the President to be less bold or more hesitating in his official actions.
Take bribery as the paradigm. Offering evidence in court of a corrupt floor speech or vote as evidence of a bribery scheme questions that act in another place, something the text precludes. Offering evidence of one corrupt pardon to prove a bribery scheme does not run afoul of any textual limitation and does not obviously cause the President to be less unhesitating in offering pardons.
I will add one more piece to this--None of the other policy-based immunities--for example, absolute prosecutorial and judicial immunities under § 1983--includes an evidentiary privilege. Thus, an evidentiary privilege is not inherent to immunity. Something makes Speech-0r-Debate unique among all other immunities--its grounding in far-reaching text.
The counter to this argument is that the Framers (according to James Wilson) included the Speech-or-Debate Clause to "enable and encourage the Representatives of the public to discharge their trust with firmness and success." So legislative and presidential immunities serve similar policies, albeit at different levels of remove.
At the very least, however, this requires analysis and explanation on everyone's part. The majority needed to explain why this evidentiary privilege was essential* to the underlying policies justifying the immunity it established; Justice Barrett needed to explain why it is not essential to an immunity she agreed with, in light of Speech-or-Debate's evidentiary immunity; and the dissent and everyone else criticizing the evidentiary piece needed to identify and work through the distinction Lee came up with.
[*] In that Seattle Law webinar, Steve Vladeck suggested it was not within the QP.
Posted by Howard Wasserman on July 3, 2024 at 12:48 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Questioning prosecutorial immunity
Justice Sotomayor respecting (although not dissenting from) denial of cert in Price v. Montgomery County questions prosecutorial immunity--its origins (including noting Alex Reinert's article that Congress abrogated all common law immunities when it enacted § 1983); the misalignment of its scope compared with its policy goals; and the inadequacy of alternative means of remedying prosecutorial misconduct. She does not argue the Court should have granted cert. She argues that the cert denial should not be read as tolerance of the prosecutor's conduct (the Court denies cert for many reason); that the Court may need to step in; and that lower courts must keep immunity with "'quite sparing'" bounds.
Posted by Howard Wasserman on July 3, 2024 at 11:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Jurisdictionality and presidential immunity
On top of everything else that was bad in Trump, the majority and Justice Sotomayor use language that could be read to suggest that this immunity is a limit on the court's adjudicative jurisdiction rather than a defeat on the merits.
Discussing the first bucket of presidential conduct (conclusive and preclusive), Roberts quotes Youngstown that this bucket "'disables the Congress from acting upon the subject'" and Marbury that "the courts have 'no power to control [the President's] discretion'" and that discretion "cannot be subject to further judicial examination." He repeatedly speaks in the same breath of what Congress and the courts cannot do--"Congress cannot act on, and courts cannot examine, the President’s actions;" Congress "may not criminalize the President's actions . . . Neither may courts adjudicate a criminal prosecution;" or the removal power "may not be regulated by Congress or reviewed by the courts." Justice Sotomayor does the same in arguing against immunity, as by insisting that "'common tribunals of justice should be at liberty to entertain jurisdiction of the offence'" or stating that "'judicial action is needed" such that "the exercise of jurisdiction is warranted.'"
To be fair, some of this comes from quoting old sources (Marbury and Story's Commentaries) or cases from before the Court grew more careful about using the word jurisdiction or speaking about courts exercising judicial power (Nixon v. Fitzgerald). But it would be unfortunate if the language causes courts (such as Judge Chutkin and the DC Circuit on remand) to backslide. Trump recognizes a disability on Congress and its legislative (or prescriptive) jurisdiction--Congress cannot enact criminal statutes that regulate certain presidential conduct. It is not a limit on the court's adjudicative authority, except in dictating how the courts must resolve any future attempt to prosecute a president and likely dismiss such a prosecution, if attempted.
Justice Barrett's distinct framing of immunity--as a challenge to the constitutional validity of the statute as applied to the President's conduct--also understands immunity as merits rather than jurisdictional limitation. Where the would-be statute of conviction is constitutionally invalid as-applied, the court is not stripped of adjudicative jurisdiction; it rejects the prosecution on the merits due to a defect in the congressionally enacted substantive law.
Posted by Howard Wasserman on July 3, 2024 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
The Missing Word in Trump v. United States
The Court's opinion says that history is silent on the question of prosecuting former Presidents. This is both true and not true. It's not true in that the issue was widely discussed during Watergate. It's true in the sense that no prosecution was brought.
When I think about a constitutional problem, I start with the most relevant historical precedent if there is one. Thus, my analysis of any immunity would start with "Watergate is an example where the President was not immune from criminal liability." This still leaves room for some presidential immunity. (For instance, I think that the Court was probably right to say that ex-Presidents should have immunity in Youngstown Category Three situations.)
The Court, though, does not mention the word "Watergate" in its opinion. That strikes me as a total failure of professional rigor. It's not as if Watergate is an obscure event. Some of the Justices were in college or law school during that time. Now maybe they think that Nixon should have been immune (at least in part), but then they should say something about that. The dissents did not call them out on this lapse though, which may explain the omission.
Posted by Gerard Magliocca on July 3, 2024 at 08:51 AM | Permalink | Comments (0)
Tuesday, July 02, 2024
The penumbra of Trump v. US
I don't have a lot to add to the discourse over presidential immunity from people who know more about this. So let me highlight some incidental points from reading it.
• The majority repeatedly suggests that "speaking to and on behalf of" the public and on matters of public concern is a non-core/official function. This might affect future applications of Lindke and when public officials can block the public from web and social-media sites. To act under color, an official must possess actual authority to speak on the government's behalf. I argued that Knight Foundation (holding that Trump and his aides acted under color in blocking readers from his Twitter feed) would come out differently, because the President lacks formal speaking authority about much of the stuff on social media. But this case suggests I may have been wrong about that--in part because the majority cites Lindke to support this broad presidential power to speak to the public. I wonder if that power to speak holds for the "chief executive" of other governments (e.g., the chairman of the county legislature). If so, Lindke may not be as narrow as I thought.
• It seems to me that Justices Barrett and Jackson take a similar approach to criminal law. Both reject the idea of of "immunity" in favor of a defense to prosecution under the statute. Jackson argues immunity lifts someone from the obligations of the law, as opposed to an individual defense to a prosecution under a particular statute. While agreeing there are limits on prosecuting a former president, she sees that immunity at the statutory level--does the particular statute reach official acts and would allowing prosecution pose a danger of intrusion on presidential authority and function. This sounds similar to a defense as Jackson defines one--it is a constitutional defense to the application of that statute to the president and his conduct.
• Barrett makes explicit what is implicit in the majority--a trial court decision allowing the prosecution to proceed is subject to immediate appeal. The Article II defense is separate from the merits of the criminal charge and making him wait to challenge the decision would undermine the executive authority and affect the President's decisions in office. This has two interesting consequences for the collateral order doctrine.
First, Midland Asphalt v. US says that collateral-order immunity in criminal cases applies to "explicit statutory or constitutional guarantees that trial trial will not occur;" that includes arguments over excessive bail, double jeopardy, and Speech-or-Debate immunity. Lower courts have applied Midland to deny immediate review of denial of a defense of judicial immunity in a criminal case--although that issue is immediately reviewable in a civil action--because no constitutional or statutory provision creates that immunity. The majority makes clear that presidential immunity is atextual, but Barrett does not attempt to connect her argument to Midland's seemingly off-hand dicta. Maybe that means Midland does not limit COD to explicit rights (as suggested in Sell v. US, allowing COD review of an order to involuntarily medicate a defendant to render him competent).
Second, if what we label presidential immunity is an as-applied constitutional defense, it seems to me that COD should apply to other as-applied constitutional defenses to prosecution, such as the First Amendment. It rests on the same idea--the argument that Congress cannot criminalize the alleged conduct (because of the First Amendment rather than Article II, but still) is separate from and collateral to the merits of the prosecution (whether the defendant violated the statute). I imagine it turns on unreviewability on appeal from final judgment, which considers the broad public policy and interests lost by delaying review. The individual importance of the defendant's First Amendment rights differs from the structural importance of presidential independence and authority.
• The majority pretty obviously believes that everything Trump is alleged to have done--speaking with cabinet officials, speaking with state officials, speaking to the public about the electoral process and how it violated federal law, speaking to the VP--is official conduct. That the President has no role to play in state selection of electors or in the electoral counting is of no matter, because everything that happens in the country on every level is a matter of presidential concern (because he may be asked about it) and thus within his official functions. Other than lying about having sex with an intern and maybe shooting someone himself on Fifth Avenue (as opposed to ordering Seal Team 6 to do it), I am not sure what the President does that is not official. Although it does not conclusively say so, the majority opinion places a thumb on the scale on remand or shows its hand when the case inevitably (if Trump loses the election) returns to SCOTUS.
• I continue to look for a good explanation for why this immunity, once recognized, should not include an evidentiary component. If Speech-or-Debate immunity prevents the prosecution in a bribery case from offering evidence of a legislative act (e.g., a floor speech or vote), it seems to me that this presidential immunity prevents the prosecution in a bribery case from offering evidence of an official presidential act (e.g., granting a pardon or firing his attorney general or urging a state official to do something). I am not arguing that either situation is normatively good or correct. But if both immunities exist (as Barrett believes), why should they have different scopes? Someone please help me with this.
Posted by Howard Wasserman on July 2, 2024 at 03:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Legal Realism and the Nixon Pardon
I don't like some parts of Trump v. United States, though Trump v. Anderson was far worse. But the result yesterday was predictable. How do I know that? Because President Ford predicted something like this in 1974.
Ford was schooled in Legal Realism at Yale in the early 1940s. Here is the key passage of his Nixon pardon:
I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality.
The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.
During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.
In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would even more be inconclusive with respect to those charges arising out of the period of his Presidency, of which I am presently aware.
The upshot of this was the there was a high likelihood that the courts would not permit a criminal conviction of Richard Nixon. As a result, there was no point in a prosecution. (I quoted Ford's pardon many times to explain why bringing criminal charges against Trump was a mistake, but oh well.) Granted, Ford expressed this concern as a due process question rather than as an immunity question, but the bottom line was the same. And the New York courts may well end up concluding that Trump did not receive due process there.
Posted by Gerard Magliocca on July 2, 2024 at 08:46 AM | Permalink | Comments (0)
Monday, July 01, 2024
The Court's craven view of politics and other thoughts
• The Court holds a craven view of "ordinary politics"--everyone abuses power for their personal self-interests and gain and that exchange of self-interest defines the political game. The legal problem thus is not that self-interest or abusing power but the supposed efforts of legislatures and overzealous prosecutors to criminalize such self-interest and abuse-that is, to criminalize ordinary politics. That explains the Court's efforts to limit anti-corruption laws or SOX's obstruction provision--gratuities and gifts and outsiders' efforts to affect official proceedings are part of the political process and the criminal laws should not be interpreted to stop that. I think the same view explains presidential immunity. Of course the President needs immunity for everything he does in office because of course the President will abuse his office for personal gain--that is just how the political process works and Congress cannot criminalize it or allow an over-zealous prosecutor to prosecute it. Stated differently, Trump using the levers of office to stay in power or for other personal gain does not create a problem--that is the game. Prosecuting one's successor creates the problem.
• Richard Primus on Twitter: Fundamentally, the problem is the same as it has always been: the system is not built to withstand a Holmesian Bad Man as president. I agree. But it seems to me the Court believes the Holmesian Bad Man is our typical (if not ideal) public official.
• I re-up this exchange between Gerard and Paul about why we succeeded as to Nixon and Watergate and have failed as to Trump and January 6. Today's decision took judicial action and criminal law off the table. But the exchange is relevant because I read the decision to repudiate all of Watergate. Under this opinion, it seems to me Nixon could not have been prosecuted for the key actions that got him in trouble--the taped conversations with Haldeman and pushing the CIA to obstruct the FBI investigation--and that Ford's pardon was unnecessary.
• I am surprised by the many people surprised that the Court extended immunity to include a privilege against evidentiary use of immune acts. Legislative Speech-or-Debate immunity has long included such an evidentiary privilege--government cannot use immune legislative acts (e.g., a floor speech or vote) to prove a bribery case.* If the President enjoys a similar absolute immunity from prosecution for "presidential" functions, it seems logical that immunity would extend to evidentiary use. I am not agreeing with the Court's decision to create a speech-or-debate analogue from whole cloth, with the existence of either evidentiary privilege, or with the principle that presidential immunity, lacking a similar textual basis, must be co-extensive with legislative immunity. My point is that if an evidentiary privilege is inherent in one immunity, it is not surprising that it is inherent in the other. And so I am curious why Justice Barrett, who appeared skeptical of immunity during oral argument, drew that as her line and declined to join that portion of the Roberts opinion.
On that note, by the way: I would love to hear from people who study this issue why that textualist point never arose in this case. The framers included the Speech-or-Debate Clause because they did not believe the Article I vesting clause sufficient to establish legislative immunity. No one argued that the Article II vesting clause is not sufficient to establish presidential immunity. Why not?
[*] The court applied this in the prosecution of NJ Senator Bob Menendez, excluding from evidence certain texts referring to Menendez's actions in delaying or not delaying aid to Egypt.
Posted by Howard Wasserman on July 1, 2024 at 03:50 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Thoughts on NetChoice
I decided to begin the day with NetChoice, the case about which I would have something to write. Then I can read about how the framers, 11 years removed from a revolution against a king, created a monarch (more powerful than the one it replaced) who is selected and serves for a few years at a time but otherwise can do no wrong.
Anyway, NetChoice. The argument somewhat previewed the result, but the internal dynamics may have been messy.
• The Court is unanimous on the disposition of this appeals--vacate both lower courts and tell them to do the analysis over, because this is a facial challenge. Justice Kagan writes for six (the Chief, Sotomayor, Kavanaugh, Barrett, Jackson) to explain a proper approach to facial challenges and to trace the Court's editorial-judgment jurisprudence (Tornillo, PG&E, Turner, Hurley, Pruneyard, and FAIR). She writes for five (loses Jackson) to explain how that jurisprudence applies to render the core provisions of the laws constitutionally invalid and to highlight how badly the Fifth Circuit messed up. Justice Barrett concurs to complain about the complexities of facial challenges and to suggest plaintiffs would have an easier time with a narrower as-applied challenge. Justice Jackson does not join the parts of Kagan's opinon (III-B and C) that explain how that jurisprudence ought to apply to these laws, deeming it premature. Justice Thomas concurs in the judgment to explain why facial challenges should not be allowed. Justice Alito concurs in the judgment for three (Thomas and Gorsuch) to explain why the Court should not have opined on the First Amendment questions and then to offer a contrary First Amendment analysis.
• This will be lost in the procedural mud and the news of the day, but: Five-and-a-half Justices offered a strong vision of First Amendment protection for curators of all kinds and of the limits of government trying to balance the market in ways it deems proper or in ways that will help the speakers and speech it likes.
• Justice Jackson's choice is odd. She joins Kagan's summary of the jurisprudence (III-A) but not its application (III-B and C). But Kagan completes that summary with three general points--1) the First Amendment protects curation of third-party speech; 2) that does not change when the compiler allows most speech or only excludes a small amount of speech; and 3) the government does not have an interest in balancing the expressive marketplace. Those three principles imply the resolution as to the core provisions--the sites have a First Amendment right to do this and Florida and Texas cannot rely on the only interest either has offered for these provisions. So if Jackson believes the statement of legal principles (with their obvious implications) is proper, I am not sure why she departed from the actual application.
• Justice Thomas explains everything that is wrong with facial challenges, including that they enable universal injunctions. But this is wrong, as Dick Fallon has argued. A declaration of facial invalidity is a statement about the law that has preclusive effect on the parties and precedential effect on future parties. It does not disappear the law, it does not adjudicate the rights of non-parties, and it does not stop future enforcement against non-parties. Although facial resolution from SCOTUS dictates the outcome of that future enforcement as a matter of precedent, that is how precedent is supposed to work. Perhaps apprehensiveness about facial challenges is of a piece with the idea (observed more in the breach) that the Court should decide no more than necessary to decide the case. But that is a prudential rule, not grounded in Article III or separation of powers. Of course, the Court could get to the same place if it did not insist on judicial supremacy, on it having the final word on the constitutional question that binds all other actors.
• The Court limits (majority view) or rejects (Thomas view) facial challenges as a way to keep the Court from wielding too much power at the expense of the other branches, where those branches would be stymied by the Court's pronouncements on the Constitution to make or enforce the laws against non-parties in the future. But the Court would not need that limit if it did not assume that a declaration of facial validity binds the executive in the future.
• Murthy v. Missouri held that states and users lack standing to challenge the Biden Administration's jawboning of social-media sites, reflecting the Court's distaste for "massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims." Something similar might be at work here. These laws have core provisions raising constitutional problems (limits on curation and notice requirements) for specific actors (Facebook and YouTube) for specific conduct (their home pages or news feeds). Litigation by a trade association challenging all provisions of the law goes too far. Again, that limit might have cross-ideological effects.
• It will be interesting to see what happens going forward. Might it be worth it for NetChoice (or just Facebook and YouTube) to rework this as an as-applied challenge to the moderation and notice provisions (which a majority of the Court said violate the First Amendment) and leave the rest for another day? There is an argument (Ilya makes it) that the invalidity of these core provisions is sufficient to create the necessary overbreadth compared with any legitimate sweep of the law (such as Gmail or Uber reviews).
• Florida AG Ashley Moody took to Twitter to announce that the Court unanimously sided with it--"We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law." This is impressive in its understatedness and in its cynicism that my fellow Floridians will not read the opinion or get their news from an accurate source. "Aspects of the decision we disagree with"--the Court rejected the entire First Amendment edifice on which Florida relied. Kagan's opinion sees "the First Amendment issues much as" the Eleventh Circuit did in Judge Newsom's excellent opinion. Moreover, in emphasizing the Fifth Circuit's wrongness, the Court impliedly announced the Eleventh Circuit's correctness as to the constitutional invalidity of the core provisions.
Posted by Howard Wasserman on July 1, 2024 at 02:46 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
The EPA and the Terrible, Horrible, No Good, Very Bad Day(s)
Before we SCOTUSe wreaks new havoc at 10 a.m., we can review last week's old havoc. This post is by my FIU colleague Alex Erwin, who teaches and writes in environmental law.
Thursday was a terrible day for EPA (and frankly any American that had the misfortune of watching the presidential debate or the US v. Panama game at Copa America …). To start things off, using its shadow docket magic, the Supreme Court stayed EPA’s Good Neighbor Rule in Ohio v. EPA. Mr. Rogers would not be pleased.
Continue reading "The EPA and the Terrible, Horrible, No Good, Very Bad Day(s)"
Posted by Howard Wasserman on July 1, 2024 at 09:01 AM in Judicial Process, Law and Politics | Permalink | Comments (0)
Happy Canada Day
Posted by Steve Lubet on July 1, 2024 at 04:48 AM | Permalink | Comments (0)
Sunday, June 30, 2024
Law faculty life
Two items on law teaching:
1) Orin Kerr posts a Twitter poll (with all the usual caveats) asking about school culture: Spend time at school; teach-and-go-home; somewhere in the middle. Only about 30 % of respondents answered, with teach-and-go-home narrowly edging middle and both doubling up spend time at school. I am a bit surprised that the teach-and-go folks were honest and did not choose middle to try to sound better. There likely is a gap--real or perceived--between what an individual faculty member would say about herself and what she says about the school's culture (the question asked). I think it is easy for an individual to make herself sound better than the general culture. Orin speculates that the move from presence began with the internet and never returned after COVID and that it varies in urban and non-urban schools.
2) As recruitment-and-hiring season nears, I saw a discussion somewhere about how soon after callbacks schools do or should notify those people who will not be hired. People believe schools have at least a courtesy obligation to notify rejected candidates relatively soon after the callback. I see the point, especially for people trying to figure out whether to accept an offer from another school or what their next steps will be. But it is worth noting that different universities, especially public, operate under different rules. Some universities have rules that a candidate is not rejected until the search closes and the search does not close until the job is filled. So while it might be courteous for schools to notify failed candidates soon after it is obvious they will not be hired, it is not always possible.
Posted by Howard Wasserman on June 30, 2024 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (0)
Saturday, June 29, 2024
The Loughridge/Butler Report
I've written several posts over the years about the dissent to the House Judiciary Committee's 1871 Report rejecting the argument that the 14th Amendment gave women the right to vote. This dissent, written by Representative William Loughridge of Iowa, is one of the most remarkable constitutional arguments ever made. It's basically the Harlan Plessy dissent for gender equality.
Now I've finally figured out how to write a paper on this dissent, which I will start writing as soon as I finish cleaning up the Steel Seizure concurrence book manuscript. More on that soon.
Posted by Gerard Magliocca on June 29, 2024 at 01:09 PM | Permalink | Comments (0)
Separation of powers and judicial aggrandizement
Interesting piece in the Yale Journal of Regulation: Notice and Comment on Justice Sotomayor's Jarkesy dissent accusing the majority of judicial aggrandizement. The idea is that the Court has aggrandized its power to become the arbiter determining the scope and separation of everyone else's powers, ignoring that the judiciary is an interested actor in the inter-branch dance and dialogue.
I make a similar point in Fed Courts about standing--separation of powers cannot serve as the "single basic idea" supporting standing doctrine, at least in statutory cases. When Congress authorizes a statutory cause of action for judicial resolution and the Court declares that invalid, the Court aggrandizes to itself the power to control the terms of the separation of powers debate. True, standing limits reflect the Court aggrandizing in the name of surrendering and minimizing its future power--judicial aggrandizement in the name of judicial limitation--whereas Loper and Jarkesy aggrandize in the name of adding to the power courts exercise in the future at the expense of the executive. Framed differently, however, judicially imposed standing limits aggrandize the judicial power to stop Congress from telling the courts what to do and when to do it.
Posted by Howard Wasserman on June 29, 2024 at 11:34 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday Music Post - Good Golly Miss Molly
"Good Golly, Miss Molly" was written in 1956 by John Marascalco and Robert "Bumps" Blackwell -- the latter of whom is best known for producing Little Richard, Ray Charles, Sam Cooke, Lloyd Price, and Sly and the Family Stone, among others. I believe it was at least partially in conjunction with Little Richard, who claimed to have contributed the lyric "sure like to ball," substituting it for a milder line now lost to history.
"Miss Molly" has been a standard cover almost since it was released in 1958. You can see some of them in today's post at The Faculty Lounge.
Posted by Steve Lubet on June 29, 2024 at 06:06 AM | Permalink | Comments (0)
Friday, June 28, 2024
Another entry in the jurisprudence-of-sport canon (Updated)
Fischer v. U.S. wins the prize for "decision likely to gain media attention out of all proportion to its actual effect." The Court per the Chief (for Thomas, Alito, Gorsuch, Kavanaugh, and Jackson) holds that § 1512(c)(2) (enacted in Sarbanes-Oxley) is not a general obstruction statute but is limited to obstruction via doing something to things used in the proceeding, as in § 1512(c)(1). Because Fischer is a January 6 defendant, NBC News interrupted local programming to announce the decision, then say they have no idea how it will affect Trump or any other defendants. According to Ryan Goodman at Just Security, it affects at most 6 % of cases (many of whom may not push the issue) and it does not affect Trump.
Two points about the decision.
• The majority relies on two canons of construction--ejusdem generis (interpret a general catch-all term by reference to the specific terms preceding it) and noscitur a sociis (give a word more precise content by the neighboring words associated with it). I agree with Justice Barrett's dissent (for Sotomayor and Kagan)--neither applies to distinct provisions as opposed to a catch-all word at the end of a list within one provision. But what about in pari materia, requiring that distinct provisions on the same subject be read together? Wouldn't that provide a basis to understand the broad language of (c)(2) in light of the limitations in (c)(1)?
• The case adds a new entry into the jurisprudence-of-sport canon--and perhaps demonstrates the problems when judges talk about sports.
The Chief introduces the following rule in football: A player may not "grab, twist, or pull a facemask, helmet, or other equipment with the intent to injure a player, or otherwise attack, assault, or harm any player.” The Chief insists the "otherwise" clause cannot reach a linebacker trash-talking and hurting the feelings the quarterback, as the otherwise clause must be understood in reference to the dangerous conduct in the prior provision. Justice Jackson concurred to add that the rule cannot reach conduct at the other extreme--a player murdering or poisoning the quarterback would not violate the rule because such conduct is for the criminal law, not the rules of football.*
[*] I think this is wrong. If the linebacker shoots the quarterback, the game would stop and the linebacker would be arrested. But when the game resumes some time later, I would expect the refs to penalize the linebacker's team under this rule, as he did "otherwise attack, assault, or harm" another player. In a less absurd example, imagine the linebacker repeatedly punches the quarterback to the point of unconsciousness. The refs would apply the "otherwise attack, assault, or harm" rule to penalize him as part of the game in the moment, then the criminal law would step in following the game. (This is how it has worked in the rare cases in which states have brought criminal charges for on-field conduct).
Barrett has the better argument on this. The connection between the two provisions of the football rule is closer than between (c)(1) and (c)(2). The football rule reaches all physical conduct directed at and injurious of a player--the first part prohibiting conduct against the player's equipment and the second prohibiting other physical conduct against the player. Section (c)(1) targets objects in the proceeding while (c)(2) targets the proceeding itself.
Barrett then offers her own football rule (she did teach at Notre Dame, after all) and does a better job of it by coming up with a football rule that mirrors § 1512(c):
Any player who:
(1) punches, chokes, or kicks an opposing player with the intent to remove him from the game; or
(2) otherwise interrupts, hinders, or interferes with the game,
shall be suspended.
The first clause deal with attacks on the player (which would interfere with the game) while the second deals with acts other than attacking an opposing player that also interfere with the game, such as tackling a referee. Similarly, § (c)(1) deals with attacks on documents that interfere with the proceeding while (c)(2) deals with other acts interfering with the proceeding.
Again, maybe judges need to stop talking about sports.
Update: A reader points me to the opening scene of The Last Boy Scout with Bruce Willis, in which a running back shoots the defenders trying to tackle him as he carries the ball. I added the video after the jump.
Continue reading "Another entry in the jurisprudence-of-sport canon (Updated)"
Posted by Howard Wasserman on June 28, 2024 at 03:06 PM in Howard Wasserman, Judicial Process, Law and Politics, Sports | Permalink | Comments (0)
Admin Law and Fed Courts
A colleague asks how the new administrative-law decision--Loper Bright (overruling Chevron) and Jarkesy (securities fraud claims for civil penalties must be in Article III courts with a jury)--will affect my Civ Pro or Fed Courts courses. Given the siloing of the curriculum, the answer is not much.
For my purposes, Jarkesy is a bigger deal. I spend time on non-Article III tribunals (with a "take Ad Law" admonition), including the public-rights doctrine. Jarkesy represents the first time the Court has rejected public rights as to claims involving the U.S. as sovereign. So last year was relatively easy, as reflected in Sotomayor's dissent--public rights apply to disputes involving the U.S. as sovereign and to private claims intimately tied to a statutory scheme involving public benefits. (Alternatively, I like this framing from John Golden and Thomas Lee). Whatever the uncertainty about the latter category's boundaries, Congress could direct disputes involving the U.S. outside of Article III. Jarkesy destroys that certainty, if the claim (and remedy) can be described as "legal" in some sense. I also will have to introduce something of the Seventh Amendment into that mix.
I do not know enough ad law to comment on how Loper Bright and eliminating Chevron affects Article III courts. Perhaps they will see more cases challenging agency decisions, to the extent Chevron deference deterred some plaintiffs from pursuing more-difficult cases. And obviously the briefing and decisionmaking in those cases will change (as it will in the agencies themselves). It will not affect my course. I leave to others predictions about its effects of both cases on different pieces of the administrative state of non-Article III decisionmaking.
Posted by Howard Wasserman on June 28, 2024 at 01:53 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
A quick note on the debate
Before I dive into today's opinions:
I did not watch it because I knew how it would go: Trump would not answer the actual questions asked and would ramble and lie; Biden would sound and appear old and occasionally stumble over his words; and the media narrative would focus entirely on the latter while ignoring (or at worst downplaying) the former. From what I have read, the difference is one of degree rather than kind--Biden sounded much worse than anticipated, allowing for the additional narrative of "Biden should drop out" (five NYT op-eds make this point) as another reason to ignore Trump doing exactly what everyone expected him to do.
Posted by Howard Wasserman on June 28, 2024 at 11:13 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)
Thursday, June 27, 2024
The law of "Midnight Run"
Midnight Run is a great movie--a buddy/road trip/action-comedy with a surprising heart and amazing performances. It features Robert DeNiro in his first comedy role, Charles Grodin in his career-defining role, and great supporting performances from Yaphet Kotto, Joe Pantoliano, and Dennis Farina. It has a bunch of great quotations and one-liners, including the line that I use to close class ("See you in the next life, Jack.").
"The Duke" (Grodin) is an accountant who embezzles $ 15 million in mob money and donates it to charity; he is arrested in California, then skips on his bond. Jack Walsh ("DeNiro") is a bounty hunter. Moscone (Pantaliono), the bail bondsman who put up a $ 450,000 bond on the Duke, hires Walsh to bring the Duke back from New York to California in three days or he forfeits the bond. Also looking for the Duke are FBI agent Alonzo Mosely (Kotto) who wants him to testify against Jimmy Serrano, the wiseguy from whom he stole, and Serrano (Farina), who wants to kill him for stealing from him and to keep him from testifying. Hijinks ensue.
The latest episode of the Blank Check podcast features an in-depth (almost 3-hour) discussion of the film. Around the 1:25 mark, they attempt to unpack the underlying legal issues and processes driving the plot. As often happens when non-lawyers discuss procedure, it does not go well--including insistence that the "Ninth District" includes California and Nevada and has its home in California where federal crimes are charged. So let me try to unpack the underlying legal process and ask the crim-law folks a few questions. Spoilers, but the movie is 36 years old this summer.
Legal process first, as the case has a quiet federalism theme: The Duke was arrested in California on state embezzlement charges; he lived and worked there and that is where he took the money (although the money belonged to Serrano in Vegas). Moscone needs the Duke to appear in California state court to avoid forfeiting the bond. Mosely wants to get Serrano on federal charges and he wants the Duke in federal custody (and eventually witness protection) to testify against him, without interference from (what he regards as) pissant state charges. Serrano wants to kill the Duke. It creates a narrative triangle--Moscone loses his money if the Duke does not appear because he is killed or taken into federal custody; Mosely loses his federal case against Serrano if the Duke is killed or gets back to California; and Serrano is in federal trouble if the Duke is taken by the feds and pissed if the Duke gets away with stealing from him. Meanwhile, the Duke fears that Serrano will kill him in any of those situations; only Walsh setting him free and leaving him to his own devices keeps him safe.
So the dueling prosecutions that drive the plot make sense. Nevertheless, the plot raises some legal questions that perhaps crim law readers can answer:
• Would Moscone forfeit the bond if the Duke does not appear because he is murdered or taken into federal custody as a witness? It seems hard to believe a bondsman loses his money if the bailee is murdered or taken into federal custody. Federal prosecutors should be able to work out the latter with the state court. Anyway, why did Moscone have no collateral to cover all or part of the bond? It makes sense that Moscone needs the Duke to appear and cannot have him on the lamb; it makes less sense if he is worried about Serrano or the feds stopping the Duke from appearing.
• Put aside whether a state would spend its resources prosecuting an accountant for embezzling from the mob and donating to charity. I do not see why the Duke defending himself in California undermines the Duke serving as a witness in any federal prosecution. The state case should not prevent the feds from pursuing a federal cases against Serrano, as Mosely suggests. There may be timing and administrative concerns, but courts and prosecutors handle those all the time. Maybe the Duke is somehow more vulnerable to Serrano's people in state custody than in federal custody. Again, however, state and federal officials should be able to work out the best way to do this, in terms of timing and security.
• The movie ends with Walsh tricking Serrano into going to the Airport-formerly-known-as-McCarran to trade the Duke (whom his goons had caught) for incriminating evidence on THE DISKS and with the plan of killing the Duke and Walsh. The idea being that coming to the airport to take the disks (even though they had nothing on them) was an overt act in furtherance of a conspiracy to obstruct justice. Plus bringing the Duke to the airport was interstate kidnapping; having armed goons at the airport was conspiracy to commit murder; and doing this in the airport was interstate transport in aid of racketeering. Is that all bullshit?
• Walsh lets the Duke go at the end, causing Moscone to lose the $ 450k. Would that get Walsh in trouble with the feds? Do the feds need Walsh and/or the Duke to testify as to these particular charges? (I would think he would need the Duke for the kidnapping charge).
Because we never see a courtroom, I do not regard this as yet another movie getting the law wrong. Plus, it's too much fun. But we do have some open questions.
Posted by Howard Wasserman on June 27, 2024 at 12:17 PM in Culture, Howard Wasserman | Permalink | Comments (0)
Oops (Updated and Moved to Top)
Final Update: The Court released the opinion Thursday.
SCOTUS [on Wednesday] inadvertently posted the opinion in the EMTALA case, dismissing the writ as improvidently granted and lifting the stay of the district court injunction prohibiting enforcement of the law. (Bloomberg has the story behind a paywall). Bloomberg says the vote was 6-3 (Thomas, Alito, Gorsuch dissenting) as to the DIG and stay, although it also says Jackson wrote to say she would not have dismissed (which sounds like a dissent, if the disposition is a DIG).
The upshot is that the district court's preliminary injunction prohibiting Idaho from enforcing its abortion ban remains in effect pending continuing litigation.
Let the conspiracy theories of how this happened bloom.
Update: Bloomberg posted an oddly formatted draft. If it is authentic, here is the deal:
• Six Justices vote to DIG and lift the stay of the district court injunction. Three vote not to DIG but to keep the stay in place. Jackson votes to keep the stay in place but not to DIG.
• Kagan concurs with Sotomayor to argue that the Court never should have taken the case and with Sotomayor and Jackson to respond to Alito's dissent, especially his stupid argument (which he previewed during arguments) that the reference to protecting an unborn child means EMTALA does not require abortions.
• Barrett concurs with the Chief and Kavanaugh to argue the DIG is appropriate because the case changed between the grant of cert and now--both from the U.S. positions as to federal law (especially as to conscience objections) and from Idaho as to the scope, meaning, and application of state law. Given these changes and the "difficult and consequential" argument that the Spending Clause cannot preempt state criminal law, the Ninth Circuit should consider the new issues in the first instance.
• Jackson argues the Court should decide the case--having taken it, heard argument, and distorted the litigation process, the Court should decide rather than delay the issue. In particular, she criticizes Barrett's view that Idaho's legal representations before SCOTUS have changed state law or how state law will affect doctors in ERs, such that the supposed injuries to Idaho that justified intervention have gone away.
• Alito, joined by Thomas and Gorsuch, explains why EMTALA does not require abortions as a matter of text and the special rules for finding preemption from a Spending Clause enactment. Gorsuch does not join the portion dissenting from the vacatur of the stay.
This clearly illustrates the theory of a 3-3-3 Court. So speculation on what happened at conference and what changed between conference and now? Was the Chief/Kavanaugh/Barrett planning to go with Thomas/Alito/Gorsuch, then Kagan/Sotomayor/Jackson got them to cool their heels for now? Were they willing to delay knowing: 1) President Trump makes this issue go away in 2025 and 2) the DIG leaves in place a Fifth Circuit decision that EMTALA does not preempt, pending the Ninth Circuit creating a true circuit split worthy of review? Did that group not want to hand conservatives another defeat by joining with Sotomayor/Kagan/Jackson, knowing they could wait (see the prior ¶?)? Something else?
To be clear, Justice Jackson is not happy here: "Today's decision is not a victory for pregnant patients in Idaho. It is a delay." It gives "a few months--maybe a few years--during which doctors may no longer need to airlift pregnant patients out of Idaho."
Posted by Howard Wasserman on June 27, 2024 at 10:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
A Jewish show with a less-Jewish epilogue
We finished We Were the Lucky Ones on Hulu, based on a book by Georgia Hunter. It tells the (based-on-a-true) story of the Kurc family (parents and five grown children, plus spouses and small children), Jews from Radom, Poland, who survived the Holocaust. None was in a death or work camp. Among them, they endured multiple Jewish experiences of the time--deported to a Siberian work camp during the period of Soviet control; served in the Polish underground; hid with a non-Jewish family or in a Catholic orphanage; passed as non-Jews and worked in Nazi-occupied Poland; spent time in a Nazi prison; fought for the Polish Army in Italy; lived in the ghettos while working in German-controlled factories or other jobs. And one escaped Europe aboard the SS Alsina, a story I never knew--one of the last ships to leave Marseilles bound for Brazil, the Alina was rerouted to Dakar and then Casablanca, where the passengers were placed in a concentration camp; a small number of passengers were released and placed on different ships for South America, by which point their Brazilian visas had expired. The show depicts the information vacuum; as everyone tried to survive in their own small piece of a broader nightmare, they knew nothing of what happened to any of their family members.
This is a very Jewish show, even by standards of a Holocaust story. All but 1 1/2 major characters are Jewish. Those Jewish characters attempt to control their destinies; no "Gentile Savior" narratives here (a common complaint about many Holocaust stories). A Jewish actor plays every major Jewish character. The Jewish characters speak and pray in Hebrew. Jewish holy days, especially Passover, form a recurring motif in the story, each revealing the state of the family at that moment. It shows that Jews were unique targets--not only of the Germans, but also of Poles, French, Soviets, Ukrainians, and Brazilians--of hatred and discrimination that ranged from the violent to the banal (and mostly not overly cartoonish). It shows a bit of the Judenrat's role in governing and policing the ghetto.
But I cannot stop thinking of the aftermath. Hunter's grandfather was one of the grown children--he was aboard the Alsina, then managed to escape to Brazil; he anglicized his name, married a non-Jewish American woman, and moved to Massachusetts after the war. As Hunter tells the story, she did not know her grandfather was Jewish (and thus that she was part-Jewish) until he died when she was 15. He used to travel to see family in Brazil specifically for Passover, but never told the family why he was going. She obviously knew nothing of his or his family's experiences during the War. Hunter attended a family reunion a few years after her grandfather's death, which prompted her to research the family and tell the story (in fictionalized form). I came away curious how much of that extended family (we are now probably six generations down, maybe seven) continue to identify as Jewish and continue to practice the faith. Some relatives live in Israel, so at least some piece. It would seem a sad (from the standpoint of the Jewish people--any individual does as he sees fit) coda to such a uniquely Jewish story. It is somewhat ironic that the storyteller comes from the part that moved away from its Jewishness--or maybe that part of the family should best tell the story.
I highly recommend the show. I may need to read the book.
Posted by Howard Wasserman on June 27, 2024 at 09:31 AM in Culture, Howard Wasserman | Permalink | Comments (0)