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)