[This is the seventh post in my series on my mission to Israel. You can read Parts I, II, III, IV, V, and VI.]

On the final day of our mission to Israel, we visited the headquarters of the IDF Spokesperson in Tel Aviv. This is the public affairs department of the Israeli military. We would attend a screening of surveillance footage of the October 7 attacks. This was a moment I had been thinking about since I agreed to go on the trip. Would I watch it? This descriptions in this post will be quite graphic, though I encourage you–for reasons that will be made clear at the end–to read on through.

The Holocaust and October 7 Happened

To this day, people deny the Holocaust happened. Some claim the entire Shoach is a fiction. Others claims that there was some murders, but the number of deaths was been greatly exaggerated. Others assert that the German government was not behind the mass exterminations. And so on. What is remarkable is that people hold these views in the face of mountains of evidence. The Nazis were quite proud of their efforts, and documented their systematic efforts to wipe the Jewish people off the map. If you haven't visited the Holocaust museums in Washington, D.C. or New York, you should. And if you went a long time ago, you should go again.

Still, when you visit these institutions, all of the photographs are black-and-white, and the videos are grainy. Though we know these accounts are real, watching them feels like watching a history movie. Nearly nine decades removed, they seem like a thing of the past. And Holocaust deniers insist that these sources are doctored or manufactured.

October 7, 2023, however, is still raw and fresh. And much like the Nazis before them, Hamas was proud of their barbarism. They recorded their acts of terror with body-cameras. They livestreamed murders–often on their victims' phones. They shared on social media photos and videos of horrific acts. All in high definition! There are already specters of October 7th denialism–perhaps the most egregious is that the Hamas terrorists did not commit rapes because their religion forbids it. I saw this claim repeated in the press, without any skepticism. But Hamas documented their own atrocities.

Should I Watch The Video?

In the wake of October 7, Israeli forces collected these photos and videos to document the horrors. Moreover, there were recordings by Israelis on dashboard cameras, doorbell cameras, and other surveillance systems. The Israeli government compiled these scenes into a single movie that stretches about fifty minutes. While many, if not most, of the individual clips can be found online, the compiled footage is kept under strict control. It is only exhibited at secure facilities to certain guests who are cleared.

Members of the Israeli military are not allowed to watch it. It is considered far too traumatic, and traumatizing for people who have lived through October 7. None of my family members in Israel had watched. They had no doubts about what happened on October 7, so why go through the pain of enduring the day again?  My Rabbi told me not to watch it. There is a teaching to not cause any shame for dead people. He asked if the people who had been murdered in those videos would want me to watch them in such a terrible state. These were all fair points.

I thought long and hard about whether I would watch it. Initially, on a personal level, I was inclined not to. I do not like horror movies. Generally, if there is any movie with blood or gore, I turn it off. I can't even watch medical programs that depict surgery and other procedures. I close my eyes when I get a shot or have dental work. Yes, I am quite squeamish. There is an expression that is far too overused–"You can't unsee this!" But it is very apt for the surveillance video. I knew that these fifty minutes of pure, uncensored barbarism would haunt me for the rest of my life.

What turned me was a presentation I saw by Judge Roy Altman, who led a mission to Israel for federal judges. Altman described, in graphic detail, what he saw. He has given this lecture in many places, and it is moving. After the lecture, I asked Altman point blank if he regretted watching the videos. On one level, he did, as these images would never leave him. But on a deeper level, watching these videos made his message that much more powerful. Having witnessed the savagery, he could now spread the message around the globe. And this is not a second-hand account. He watched the video with his own eyes. And he didn't simply scan through a few clips on social media. He endured the entire curated film, with no break, in an Israeli military facility.

Altman's explanation persuaded me to watch it. I routinely lecture at law schools and other venues throughout the country. This year, I plan to talk about Israel–if any law school is brave enough to host me. (So far only a few takers.) I intend to relay the medieval acts of terror I witnessed. Having personally seen these clips will allow me to speak to the issue in a way I simply could not have by reading about it. I regret that I personally had to endure the screening. (Although whatever minor inconvenience I had pales in comparison to the suffering that happened on October 7, and to this day.) And to this day, I cannot forget what I saw. I recently watched the Deadpool-Wolverine movie. In one scene, a character decapitates another character, and holds the head up like a trophy. The audience roared in gruesome laughter. I didn't. I saw an actual video of a Hamas terrorist hacking off an innocent person's head, stretching out the skin, and dangling the head by the scalp as the lifeless body lay on the ground. But this was the choice I made, and I think it was the right one.

Not everyone on our mission watched the video. Several members of our mission excused themselves from the room before the screening began. I fully understand their decision. Everyone can bear witness to atrocities in the way that works for them. Indeed, even going to Israel was a risk, as our safety could not be fully assured at all junctures.

The Screening

We would watch the movie in a military briefing room. This was not a cushy movie theater. We were seated in what looked like any law school classroom, with some large displays at the front of the room. There was a clock, which allowed us to keep track of time. I had to leave my phone in a locker outside, as recording was prohibited.

A female officer in the Spokesperson Unit gave a brief introduction. I understand that she is one of the few people in the military who has clearance to watch the video. I can't even fathom what trauma she endures by watching this video each and every day, as different delegations come through. She explained this was the twenty-third version of the video. Apparently, the earlier iterations were even more violent. They showed torture, including the cutting of breasts, a newborn who was shot in the head, and other acts of barbarism. Moreover, there was footage of genital mutilation. Some of the families objected. The faces on those clips were either blurred out, or the clips were removed altogether out of respect for the family. Just think that some video editor within the Israeli government had the harrowing task of winnowing down these clips.

The officer only gave a few preparatory remarks. One, that stuck with me, was how she described the terrorists. She used the word "glee." These were not soldiers who were performing a mission. They were not in any way struggling with their actions. They were joyful for having the chance to kill so many innocent Israelis. It was like they were playing a first-person shooter, but in real life. And they kept repeating one refrain over and over and over again. Allahu Akhbar. Allahu Akhbar. Allahu Akhbar. In almost every scene, the men repeated that phrase at the top of their lungs.

With those brief remarks, the officer started to play the video.

Scenes from the Video

It is difficult to describe in words what I saw. During the fifty-minute video, I sat in stunned silence, with each scene worse than the one before. At a few junctures, I had to close my eyes. When I opened them, I hoped the particular scene would be over, but it wasn't. Occasionally, I would look around the room at the fellow law professors. They all had the same looked of being stunned and mortified. Some closed their eyes. Others put their heads in their hands.

Immediately after the video finished, I started to write down in a notebook everything I could recall. I knew that the particulars would evanesce from my mind, even if the general gore would remain. What follows is a scattered list of my recollections. It does not have any sort of pattern or coherent flow, as the actual surveillance video had none. And it is entirely possible that some of these recollections are composites–a few different scenes were seared together in my memory. But I remember each of these tragic events occurred.

• There were pools of blood on the ground. In movies, blood looks bright red and shiny. but in reality, it is much darker, and quickly absorbs into the dirt. It looks brownish. If I didn't know what it was, I might think it was spilled motor oil.
• Bodies were burned alive in cars. The Hamas terrorists brought accelerant with them, and placed it on the tires and the hoods of the car, so they burned hotter, faster, and longer. One charred corpse was reaching out of the car, trying to escape, but never would. The scorched bodies reminded me of footage from the Holocaust. But unlike grainy footage at a Holocaust museum, these scenes were in full HD.
• One woman was murdered. The terrorists took her phone, and livestreamed it on her social media account. The woman's family learned of her death when she "went live"–something she apparently never did–and saw it in real time.
• A father finds his daughter's burned body. He screams in agony that it is not his daughter. Another woman said that those were the daughter's tattoos. The father refused to believe it. This young woman's legs were spread apart. She was not wearing any undergarments. There was blood between her legs.
• One Hamas terrorist was wearing a Palestinian flag on his body armor. All I could think of was those college students who wave the Palestinian flag around without having any clue what that flag represents.
• There was a radio call intercepted between a Hamas terrorist who entered Israel, and his commander back in Gaza. The commander ordered him to bring a body back to Gaza, and the people could play with the body parts in the square–like a Soccer game.
• There was footage of a bar, plastered with Coca-Cola signs. Many innocent people were hiding behind the bar, but they were shot and killed. Bodies were stacked one on top of another.
• People hid in dumpsters and port-a-potties. They were covered in garbage and feces when they were shot dead.
• One Hamas terrorist dragged a bleeding body from a bedroom all the way outside. The blood streaked across the floor, the entire way.
• A terrorist was piling dead bodies in a pickup truck. The Jewish tradition is to bury all human remains. Hamas knew this, and brought the corpses back to Gaza, so not even the dead could be buried.
• There was another intercepted radio call. A commander said that a captured Israel soldier should be hanged in a square.
• Bodies of captured hostages were paraded in Gaza. The Hamas terrorists actually had to protect the hostages to prevent them from being lynched. For many of these Israelis, their last time being outside was among these mobs.
• At the Nova music festival, young women had their genitals mutilated. They were bound and their clothes were pulled off. Understandably, rape kits were not performed under the circumstances. As a result, much of the evidence of rape was buried with these poor souls.
• Surveillance footage showed a dog approaching a terrorist. The dog looked friendly, and posed no threat. The terrorist shot the dog once. The dog huddled over but kept walking. Two shots, and the dog fell over, but was still moving. Three shots, and the dog died.
• A terrorist tried to decapitate a person. But he was using a dull garden hoe, so he couldn't cut through all the way. He kept hacking and hacking and hacking at the neck, but it didn't sever all the way. The head sort of flopped over, but was still connected. This sort of medieval barbarism belongs in a different millennium.
• It is early in the morning. A father and his two sons run from their bedrooms into the living room. The boys (about 7 and 9 years old) are still wearing their underwear. They run into a bomb shelter in their backyard. These shelters are meant to protect people from explosions, but are not locked. Several terrorists throw a grenade into the shelter. It explodes. The surmise is that the father jumped on the grenade. He died.The terrorists bring both of the boys into the backyard and are yelling at them. The boys are then left alone in the living room. One boy says, "I think we are going to die." The other says, "Dad is dead." One of the boy's eye is bleeding. The brother asks if he can see out of that eye. He cannot. They are sitting there, crying, unsure of what to do. Somehow, they manage to escape and run to a cousin's house and survived. The boy would lose his eye. Later, the mother would come home and see the shelter, and her husband's corpse. The agony on her face was heart wrenching.
• Hamas terrorists enter a kindergarten. There are posters of Queen Elsa from Frozen, which is one of my daughters' favorite movies. Another corpse of a young child is shown wearing Mickey Mouse pajamas, which were stained with blood.
• Hamas terrorists were setting a house on fire after killing the occupants. They used accelerants to make the fire burn hotter. One shouted "burn it down." The symbolism was clearly intended to invoke the Holocaust. There was shattered glass everywhere, which invoked Kristallnacht.
• I've seen countless movies where a person is shot. Usually, the person who is shot stumbles, falls, and moves around a bit afterwards. The dying is very dramatic. In reality, a person shot at close range in cold blood immediately drops and dies almost instantaneously.
• One terrorist repeated over and over again "This is for history" and "We are heroes." They truly believed they were making history, and they would be remembered as heroes. But not in the way they intended.
• In another video, the decapitation was successful. After many cuts, the head was fully severed off. The skin sort of draped over the neck. It reminded me of the stretch-faced characters from Beetlejuice.  And like in the Deadpool movie, the terrorist held up the head by the hair, as if it was a trophy. The lifeless body was bent on his knees. Hamas social media uploaded a photo of that headless body. During the decapitation. I kept closing my eyes, hoping the scene would be over, but it wasn't. It continued on and on.
• There was a burned head that was severed in half. The teeth were burned. It looked like a mummy from ancient Egypt.
• The IDF intercepted a voice call between a Hamas terrorist and his parents in Gaza. The son told his father, beaming with pride, that he killed 10 Jews with his bare hands. He kept telling his father to check his Whatsapp. (Someone should tell him who the founder of Meta is.) Then he says, "I want to talk to mom." As if he got a sterling report card. His mother was so proud. She said "Praise to god" and "Kill, Kill, Kill."

The Aftermath

The video concluded abruptly, without any notice. It was over. We were then given a short break. I was stunned. I walked out into the courtyard for some fresh air. A fellow law professor was crying on the ground. I gave him a hug, even though I felt about the same.

We were brought back into the classroom to discuss what we had witnessed. I didn't have many words. All I could think of was asking how the officer was able to watch this video day-in and day-out.

After the presentation, we had a briefing from some IDF military lawyers (MAG). I wrote about some of what I learned from the military lawyers here. In truth, I was pretty distracted, but I tried to pay attention as closely as I could. It amazed me that knowing how horrific these atrocities were, the military lawyers could still be so committed to these international institutions that treat Israel so unfairly.

Afterwards, we went to lunch with several of the soldiers from the Public Spokesperson division. One of them, Oriyah Solomon, was an Orthodox female who recently was married. Until recently, there was no obligation for observant Jews to serve, and certainly no expectation that "frum" women would serve. But she volunteered, in part to demonstrate that other religious women can serve their countries. I found her message inspiring.

Who Should Watch This Video?

Israel has not released this video to the general public. The fear is that if it is released, it would make a splash for a short period, and then quickly be forgotten. And, in turn, it would cheapen the atrocities. Some may actually valorize the killers, and it could be used as propaganda. Frankly, I do not think most people would have the stomach, or motivation to sit through the full hour of footage. They may watch a brief clip, and then shut it down. There was something meaningful in watching the clips at a secure facility, in a room full of interested people, with a military chaperone. I would never forget it.

The post Mission to Israel Part VII: The Surveillance Video appeared first on Reason.com.

8/20/1866: President Andrew Johnson proclaims an "end to insurrection in the United States."

The post Today in Supreme Court History: August 20, 1866 appeared first on Reason.com.

The front page of CNN.com blares the headline, "Prominent conservative endorses Harris, calls Trump a threat to democracy." Below the photograph of Mike Luttig is the caption, "It'll be the first time the retired federal judge, a veteran of two GOP administrations, has voted for a Democrat."

Is Mike Luttig "prominent"? And is he still a conservative? At one point, he was unquestionably both. The former Wunderkind held senior posts in DOJ and was appointed to the Fourth Circuit before most lawyers make partner. He was at the tip-top of the Supreme Court short list, but President George W. Bush passed over him to select John Roberts and Samuel Alito. In 2006, Luttig retired from the Fourth Circuit and became general counsel of Boeing. After that point, he fell off the map. I had completely forgotten about him. I had never seen him at any Federalist Society event. He did not offer any public advocacy. He said nothing about the leading issues facing the conservative legal movement. He was a non-entity.

But then January 6 happened. And the Luttig hagiography emerged. Greg Jacob, Mike Pence's counsel, relates that Luttig had no conversations with Pence prior to January 6. Jacob simply cited some of Luttig's tweets in his already-completed letter. That's it! Yet, somehow, Luttig is commonly viewed as Pence's close advisor, and a person who helped save the Republic. Never happened.

Since January 6, I cannot think of a single "conservative" position that Luttig has taken on anything. He has filed amicus briefs in several Supreme Court cases, always on the liberal side of the issue. As best as I can recall, he said nothing favorable about Dobbs, perhaps the crowning achievement of the conservative legal movement. Most recently, he has said nothing at all about Senator Schumer's nuclear jurisdiction stripping bill. He has organized a new organization that is meant to be a counter to the Federalist Society. All of his pro-democracy advocacy may as well be an in-kind donation to the Kamala Harris campaign. Formally endorsing Harris was a foregone conclusion. By what measure can Luttig still claim to be a conservative?

David French also recently endorsed Kamala Harris (which I flagged here). He offered this self-reflection:

I'm often asked by Trump voters if I'm "still conservative," and I respond that I can't vote for Trump precisely because I am conservative. I loathe sex abuse, pornography and adultery. Trump has brought those vices into the mainstream of the Republican Party. I want to cultivate a culture that values human life from conception through natural death. Yet America became more brutal and violent during Trump's term. I want to defend liberal democracy from authoritarian aggression, yet Trump would abandon our allies and risk our most precious alliances.

The only real hope for restoring a conservatism that values integrity, demonstrates real compassion and defends our foundational constitutional principles isn't to try to make the best of Trump, a man who values only himself. If he wins again, it will validate his cruelty and his ideological transformation of the Republican Party. If Harris wins, the West will still stand against Vladimir Putin, and conservative Americans will have a chance to build something decent from the ruins of a party that was once a force for genuine good in American life.

French, Luttig, and others have joined the august company of people like John Paul Stevens and David Souter, who insist that they never moved to the left, but the conservative party moved too far to the right. Tell me about it. To paraphrase Rahimi, legal conservatism is not trapped in amber. To paraphrase Forest Gump, conservative is as conservative does. As I wrote last year, "there should be a statute of limitations for calling a person a legal conservative."

The post Is Mike Luttig A "Prominent Conservative"? appeared first on Reason.com.

[After a brief hiatus, this is the sixth post in my series on my mission to Israel. You can read Parts I, II, III, IV, and V.]

It is difficult to describe the extent to which October 7 impacted the psyche of Israelis. In particular, there is a constant awareness of the hostages. Walls and billboards throughout the country are plastered with the familiar sign: the person's name and age in red letters against a white background; a photograph of the person in happier times; and bold letters: "Bring Him/Her Home Now!"

From the moment you get off the airplane, you see over one hundred posters lining the ramp to customs.

Various locations curate different ways of remembering the hostages. At the National Library of Israel, a poster of each hostage was placed on a chair, with a book that person enjoyed. For the Bibas brothers, who were nine months and four years old when kidnapped, they had kid chairs and kid books.

The signs appear everywhere. The only experience that I can slightly relate to was the prevalence of American flags after 9/11. At least in New York, I think almost every kid brought an American flag to school for at least some period after the terrorist attacks. But eventually that patriotism faded; or, as I learned a new word, the patriotism became jingoism.

Artists also created illustrated versions of the sketches.

Again, the drawing of the Bibas brothers was especially heart-breaking. The younger son has now spent more of his life as a hostage than outside.

During our mission, we visited the headquarters of the Hostage & Missing Family Forum. This organization sprung up in the wake of October 7 to advocate for the interest of families of those who were taken hostage, as well as those whose bodies were missing in Gaza. In a fairly short period of time, a sophisticated operation developed.

This board depicts all of the various media outlets the group has appeared on.

But there are divisions. Not everyone agrees what "Bring them home now!" means. Is this message an ultimatum to Hamas? Or an ultimatum to the Netanyahu government?

Even among Israelis, there is a stark disagreement about how to handle the hostage situation. In years past, Israel went to great lengths to bring back hostages, including by releasing many dangerous prisoners--including Yahya Sinwar, who has become the head of Hamas. What is the cost of bringing back the hostages? What is the cost of not bringing back the hostages? These questions are exceptionally difficult. I think media coverage only shows the side of the poor families who want their loved ones brought home at any cost. But, as with any public policy decision, costs are never so easily balanced.

We met with one woman whose nephew, a soldier, was kidnapped on October 7. She described the agony of not knowing whether he was dead or alive. They held a funeral for him, with an empty casket. She later found out that he had been killed, but at the time, did not know where his body was.

Shortly after our trip, the body of Staff Sgt. Tomer Yaakov Ahimas, 20 was recovered from Gaza and brought to Israel. They were able to hold a proper funeral with Tomer's remains.

I will continue this series tomorrow with a post about the restricted surveillance tapes.

The post Mission to Israel Part VI: The Hostages appeared first on Reason.com.

8/19/1937: Justice Hugo Black takes the oath.

 

The post Today in Supreme Court History: August 19, 1937 appeared first on Reason.com.

The New York Times, perhaps in something of a rush, is catching up with the usual profiles of a presidential candidate that would usually come during the nomination season. Of course, as Maureen Dowd points out, there was no such process for the current Democratic nominee. Nomination by acclimation, as it were. So the name of the game is backfill. Today's Times shared two tidbits about Kamala Harris that may be of interest to readers.

First, it turns out that John Eastman, of all people, helped Harris prevail in her razor-thin margin of victory for AG. For those who were not around fifteen years ago, Eastman was a leading figure in legal education. As dean at Chapman, Eastman was building a nucleus of leading conservative law professors. One of his more important hires was to poach Ron Rotunda, my professor, from George Mason. But in 2010, Eastman resigned as Dean to run for California Attorney General. Eastman would lose the Republican primary to Los Angeles County District Attorney Steve Cooley. During that primary, as the Times points out, Eastman landed a strong punch on Cooley. Apparently, Cooley would have been eligible to receive both the salary of Attorney General, and his pension from serving as District Attorney. Eastman attacked Cooley for "double dipping."

Later, during a debate between Cooley, and Kamala Harris, the Democratic nominee for AG, Eastman's "double dipping" point was brought up:

Dan Morain, who worked for The Sacramento Bee's editorial page, asked who would bring up double-dipping — that is, taking both a public salary and a public pension. It had been an issue in the Republican primary, first raised by John Eastman, Mr. Cooley's primary opponent. Mr. Eastman is better known now for his efforts to keep Mr. Trump in office after the 2020 election, which resulted in an indictment and disbarment.

"I'm going to ask that," replied Jack Leonard, a Los Angeles Times reporter who covered Mr. Cooley.

Collis gave the wrong answer, and said he "earned" the right to accept the salary and the pension:

Inside the practice courtroom, Mr. Leonard outlined that the $150,000 salary of the California attorney general was half of the $292,300 salary that Mr. Cooley was earning as the local district attorney. If he double-dipped by taking a taxpayer-paid pension as a former district attorney and a taxpayer-paid salary as the state attorney general, Mr. Cooley would be in line to make more than $400,000.

"Do you plan to double-dip by taking both a pension and your salary as attorney general?" Mr. Leonard asked.

"Yes, I do," Mr. Cooley said without hesitation.

He glanced at Ms. Harris. She said nothing.

"I earned it."

But Mr. Cooley was not yet done. "I definitely earned whatever pension rights I have, and I will certainly rely upon that to supplement the very low, incredibly low salary that's paid to the attorney general," he added.

"It was tone deaf," Mr. Riggs said. "It was startling," Mr. Leonard said. "It was awful," Mr. Morain said. "It was jaw-dropping," Mr. Smith said.

Harris would prevail by less than 1% in the race. I think it is safe to say that John Eastman, at least in part, helped Harris win her race for Attorney General. Had the primary gone differently, imagine if Eastman had bested Harris in the general election. What a different world we would be in.

The next tidbit concerns Harris's role in filling Justice Breyer's seat. As readers will recall, President Biden promised to select a black woman for the Supreme Court seat. (He previously also promised to select a black woman for the vice presidency.) The top three nominees were Judge Ketanji Brown Jackson, Justice Leondra Kruger of the California Supreme Court, and District Court Judge Michelle Childs from South Carolina. Both Jackson and Kruger had clerked on the Supreme Court. Childs was favored by Representative James E. Clyburn of South Carolina, who helped turn the 2020 Democratic primary in Biden's favor.

VP Harris played a role in the process, which the Times describes:

She was also deeply involved in Mr. Biden's only Supreme Court appointment, interviewing all three finalists and studying their legal records. While she considered Leondra R. Kruger, a California Supreme Court justice, a "very sharp lawyer," she concluded that the justice might be too cautious for the moment, according to a former White House official.

J. Michelle Childs, then a district judge, had the support of both Mr. Clyburn and Senator Joe Manchin III, then a Democrat from West Virginia, making her the choice of least resistance. But Ms. Harris concluded that Ketanji Brown Jackson, a federal appeals judge, would be the boldest option, the former official and Mr. Klain said. "Joe, you may only get one chance to do this as president, and you want to be proud of your legacy here," she told Mr. Biden, according to Mr. Klain.

There is a lot packed into this paragraph. First, Harris echoed what was the general consensus: Kruger, a former Deputy Solicitor General, was viewed as a "very sharp lawyer." As a former Deputy SG, she had developed a sterling reputation for intellect. But there were suggestions she would not be as willing to make waves. Apparently she was something of a moderate on the California Supreme Court! Kruger also very publicly declined President Biden's invitation to serve as Solicitor General. (I wrote about Kruger here, here, here, and here.) Second, Childs, who had been nominated to the D.C. Circuit, was viewed as candidate who would face the "least resistance." (I wrote about Childs here and here.) But did Harris recommend Kruger or Childs? No, she backed Jackson. Why? Third, Harris drew a contrast between Kruger and Jackson. The former was "cautious" and the latter was "bold."

I know I am widely ridiculed on the right when I discuss judicial courage. But progressives get it. They understand intrinsically that the primary limitation of a Supreme Court justice is not her intellect or precedent, but fortitude. Democrats are not interested in appointing an intellectual who exhibits caution to the Supreme Court. VP Harris recognized this dynamic fully. Caution may be fine for the lower courts, but it is not the order of the day for SCOTUS. Courage is. Really, courage is important on all levels, but especially on the Supreme Court where the stakes are higher, and pressure is stronger. And a judicial nominee's record must clearly demonstrate by word and deed their courage. In that regard, Justice Jackson was the ideal pick for the Supreme Court, and has justified her selection with everything she has done on the bench. Maybe we should ask Harris to help pick Republican nominees for the Supreme Court?

The post How John Eastman helped AG Harris Get Elected, and why VP Harris Thought Leondra Kruger was too "Cautious" for SCOTUS, While KBJ Would Be "Bold" appeared first on Reason.com.

8/18/1920: The Nineteenth Amendment is ratified.

The post Today in Supreme Court History: August 18, 1920 appeared first on Reason.com.

8/17/1988: Republican party nominates George H.W. Bush for President. He would appoint David Souter and Clarence Thomas to the Supreme Court.

 

 

The post Today in Supreme Court History: August 17, 1988 appeared first on Reason.com.

Recently, federal district courts in the Fifth and Sixth Circuits enjoined the new Title IX regulations in their entirety. These courts declined to sever three provisions that injure the plaintiff from the remainder of the scheme. Both courts of appeals declined to stay those rulings. The Solicitor General asked the Supreme Court to narrow those injunctions to three provisions that the plaintiffs allege injure them. By a 5-4 vote, the Court denied the SG's stay application in Department of Education v. Louisiana. The Court issued a per curiam opinion, which was joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Sotomayor dissented, joined by Justices Kagan, Gorsuch, and Jackson.

It would be wrong to assume that Justice Gorsuch is Bostocking again on transgender rights. The four dissenters upheld the injunction against that three critical provisions that redefine sex discrimination to include gender identity, regulate sex-separated facilities like bathrooms, and redefine hostile environment harassment. Sotomayor's dissent explains that the plaintiffs' "alleged injuries flow from those three provisions." And this measured dissent, which lacks any of the vitriol we've seen of late, was probably tailored to keep Justice Gorsuch's join. Sotomayor explains:

For now, on the briefing and record currently before us, I would stay the preliminary injunctions except as to the three provisions above, in keeping with the traditional principle of equitable remedies that"relief afforded [to] the plaintiffs" must not "be more burdensome than necessary to redress the complaining parties." . . .

At this juncture, however, enjoining the application of any other part of the Rule needlessly impairs the Government from enforcing Title IX and deprives potential claimants of protectionsagainst forms of sex discrimination not at issue in respondents' suit.

What, then, was the disagreement? The Justices fractured on severability. Indeed, severability, along with vacatur and nationwide injunctions, are among the most unresolved areas of the Court. In recent years, Justices Thomas, and later, Justice Gorsuch, have called for a re-examination of severability doctrine. That Justice Gorsuch dissented here likely reflects his nuanced views on severability. He rejects the notion that courts can "vacate" rules, in large part because of standing doctrine. To Justice Gorsuch, if a provision does not injure a person, it cannot be enjoined.

But where is Justice Thomas on this issue?  And Justice Barrett has been very skeptical about granting preliminary relief. She seems to be trending to the position advanced by Sam Bray that there should not be a fixation solely on the likelihood of the merits–or a preview of the merits question. But that is precisely what the per curiam opinion did here.

The majority per curiam opinion only had this to say about severability:

In this emergency posture in this Court, the burden is on the Government as applicant to show, among other things, a likelihood of success on its severability argument and that the equities favor a stay. On this limited record and in its emergency applications, the Government has not provided this Court a sufficient basis to disturb the lower courts' interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule. Nor has the Government adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect.

Here, Justice Kavanaugh's Labrador concurrence provided the rule: the Court focuses almost exclusively on likelihood of success on the merits. There is no discussion at all about irreparable harm. By contrast, Justice Sotomayor's dissent expressly discusses the balance of harms:

By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents' alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here. The injunctions this Court leaves in place will burden the Government more than necessary. The injunctions will also affect the public. Individuals in the respondent states will be deprived of guidance related to their rights under Title IX, of updates to the processes schools must follow in investigating their complaints of sex discrimination, of protections from retaliation should they file a complaint, and of much more.

These interests are absent in the majority's opinion.

The majority's only discussion of the "equities" concerns how quickly the lower courts will hear oral argument. That is not really a weighing of the equities. This analysis throws any sort of four-factor test out the window. Again, I think Justice Kavanaugh was correct in Labrador. But it provides further rejection of Justice Barrett's Does v. Mills analysis.

And what about Justice Thomas? Unless you believe that the Court has a writ of erasure, and can "vacate" rules, the notion of enjoining provisions of Title IX that inflict no injury needs to be explained. Now in Corner Post, Justice Kavanaugh zealously defended the vacatur, especially with regard to entities that are not regulated. But other members of the majority, including Justices Thomas, Gorsuch, and Barrett, were mum.

There is a lot here going on in the vacatur/severability debate. I think the Court did not want to get into that thicket with a shadow docket case. They likely thought it sufficient now to deny relief, without weighing in on whether other provisions should be put on ice. If I had to guess, Justice Kavanaugh and/or Chief Justice Roberts wrote this per curiam opinion.

This issue will likely come back to the Court probably later this term, with a cert grant before January. If Trump prevails, and the SG witches positions, the Court will probably DIG the case, and issue a Munsingwear vacatur. Skrmetti would likely suffer a similar fate. The Court can decide even fewer cases!

The post Severability on the Shadow Docket: SCOTUS Splits 5-4 On Whether Entirety of Title IX Regulations Must Be Enjoined appeared first on Reason.com.

8/5/1974: Shortly after the Supreme Court decided United States v. Nixon, President Nixon released the "smoking gun" tape recorded in the Oval office.

The post Today in Supreme Court History: August 5, 1974 appeared first on Reason.com.

It seems that Justice Gorsuch is going through the media circuit in advance of his book launch. Yesterday I wrote about this interview with the Wall Street Journal. Today, David French of the New York Times published a transcript of his NMG sit down. To go back to one of my hobby horses, when a publisher gives a book deal to a Justice, with a large advance, the publisher knowns that the media will gladly sit down for interviews in Supreme Court chambers. This is free press that cannot be purchased–well it can be purchased with a substantial advance. All the more reason to place a cap on royalties for Justices. I digress.

French and Gorsuch had an extended discussion of what was learned from the COVID cases. In truth, we need to reflect a lot more on that period than we have. So many of us (present company included) made some terrible decisions. Our faith in the power of government and self-professed "experts" was largely misplaced. And nothing that has happened since the pandemic has restored my faith. Chief Justice Roberts's "super-precedent" in South Bay has not aged well. I have to imagine that distrust was lurking in the background of Loper Bright.

I found the most enlightening exchange to turn on collegiality. I think that is a term that many people use to mean different things. It was well known that Justices Scalia and Ginsburg were dear friends, and often socialized together. They were collegial. But did RBG ever persuade Scalia to change his mind, at least on a big case? Probably not. Does that mean they were not collegial?

Of late, Justice Kagan has been pushing the latter conception of collegiality–that it entails having an open mind, and a willingness to be persuaded. I have to imagine this push is part of her effort to corral Justice Barrett's votes at every opportunity. If there is any common thread with Joan Biskupic's reporting, is that Justice Kagan flipped Justice Barrett in several cases. I've yet to see any indication that a conservative Justice has flipped a liberal member of the court to reach a conservative outcome. Flipping is not ambidextrous–it only works on the left.

I for one, reject the notion that collegiality entails a willingness to reconsider your views. It is always a judge's role to find the truth, and determine the best answer to a particular legal dispute by his or her best lights. And that process primarily entails weighing the arguments advanced by counsel, and deciding which side should prevail. To be sure, judges on a multi-member court will lobby one another for this position or that position. And to maintain relations, it is important to be willing to listen. But I do not think collegiality requires anything more than listening. Indeed, there are problems with this sort of ex-post lobbying that happens after the briefs are submitted and arguments conclude. Perhaps the parties have obvious rejoinders to some post-hoc position raised, but there is no chance to discuss it. The vote at conference reflects an assessment of the actual case, as it is presented. But when votes change after conference, invariably, it will be because of some newly-determined facet of the case that the parties did not have the chance to address. The Court could always order re-briefing and re-argument, but alas, the pattern has been to simply decide cases on grounds that would be entirely foreign to the lower courts. NetChoice and Moyle comes to mind.

David French poses this question to Justice Gorsuch, which he sort-of-answers, indirectly.

French: Justice Kagan gave some remarks to the Ninth Circuit recently where she talked about this issue of collegiality within the court. There's been some friendships, for example, most famously of Justice Ruth Bader Ginsburg and Justice Antonin Scalia. Also recently, Justice Sonia Sotomayor gave a speech in which she said some really kind things about Justice Clarence Thomas and the way that he interacts with court personnel.

But Justice Elena Kagan said something interesting. She said the collegiality that America should be looking for — and I'm paraphrasing — is not "Do we go to the opera together?" but "Are we open to each other?" Are we collegial enough to where we are open to each other? What is your temperature check on the collegiality of the court?

Gorsuch: Well, you're not going to drag me to an opera, David.

French: I wasn't expecting to.

Gorsuch: There's a lot in that question.

French: Yeah.

Gorsuch: I don't know whether you want me to talk first about the court.

French: Let's go first with the court and then with the culture.

Gorsuch: Sure. So with the court, I think it is important that we're friends and that we enjoy each other's company. We have a nice dining room upstairs. Lovely dining room, but it is the government, and we bring our own lunch. And oftentimes you'll see the chief justice with a brown bag and a peanut butter and jelly sandwich. OK. Those moments are important. They're human. But I also take the point that collegiality in a work environment means being able to work together well. And can I share just some numbers with you that I think tell the story on that?

Gorsuch goes on to explain that the Court decides many cases unanimously, and that he often votes for the "liberal" side of the case. And he says those unexpected coalitions are evidence of "collegiality."

Gorsuch: We decide the 60, 70 hardest cases in the country every year where lower courts have disagreed. That's the only point to get a case to the Supreme Court. We just want federal law — largely our job is to make sure it's uniform throughout the country, and if the circuit courts are in agreement, there's very little reason for us to take a case, unless it's of extraordinary importance.

So most of the work we do is when lower court judges disagree about the law. Magically, I think in this country there are only about 60 or 70 cases. You could argue a little bit more, a little bit less, but there aren't thousands of them. They're very few in number.

There are nine of us who've been appointed by five different presidents over the course of 30 years. We have very different views about how to approach questions of statutory interpretation, constitutional interpretation about political disagreements or interpretive methodological disagreements. Yet we're able to reach a unanimous verdict on the cases that come before us about 40 percent of the time, I think it might have been even higher this last term. I don't think that happens automatically.

I think that's the product of a lot of hard work. I think that's proof of collegiality. OK? That is what we do and we do well. Now people often say, "Well, what about the 6-3s?" Fair enough. Fair enough. But that's about a third of our docket. And it turns out they aren't always what you think they are. About half the 6-3s this last term are not the 6-3s you're thinking about.

Okay, Gorsuch does not actually answer the second part of Kagan's question. The fact that the Justices vote in unusual ways reflects the fact that all of the Justices are, to various extents, heterodox. They are not–contrary to what you might read–ideologues. Trust me, if we had an actual MAGA Court, things would look very different. But Gorsuch does not even hint that collegiality requires a willingness to be persuaded. It is the facts of a case, and the arguments advanced by counsel, that determine the unusual lineups.

I would like this same question posed to Justice Barrett. I think she might see things differently.

French also asked about Justice Kagan's ethics proposal. Gorsuch explains that the facts changed since Kagan's speech. Namely, President Biden wrote a pointless op-ed and Senator Schumer introduced a nuclear bill.

French: We're running out of time, so I do want to get to a couple of other questions. One, Justice Kagan also raised this interesting idea regarding ethics. And she talked about that the Supreme Court has a code of ethics that she appreciates, but she also talked about the possibility of enforcement through — and I'll read the quote here, one moment — "If the chief justice appointed some sort of committee of highly respected judges with a great deal of experience, with a reputation for fairness, you know, that seems like a good solution to me."

And a reason for that, the creation of sort of an outside judicial panel would, part of it would be to protect the court, to provide an outside voice that could not only adjudicate potentially valid claims but also debunk invalid accusations. And she made it clear she was speaking only for herself. What's your reaction to that concept?

Gorsuch: Well, David, since that talk, there's been some developments in the world, and this is now a subject that's being intensely discussed by the political branches, and I just don't think it would be very useful for me to comment on that at the moment.

In hindsight, would Kagan still have given her remarks, knowing what would come the following week? Or perhaps Kagan knew what was coming, and gave her remarks to shift the Overton Window? We are working with a crafty, plugged-in operator here, so be skeptical. How does that work for collegiality?

The post Justice Gorsuch Explains What Collegiality Means appeared first on Reason.com.

8/4/1961: President Barack Obama's birthday. He would appoint two Justices to the Supreme Court: Sonia Sotomayor and Elena Kagan.

The post Today in Supreme Court History: August 4, 1961 appeared first on Reason.com.

Justice Gorsuch gave a wide-ranging interview with Kyle Peterson in the Wall Street Journal. The focus is his new book, which will be released on Tuesday. There are also some insights into how the Court functions post-COVID, and how his chambers operate.

First, Gorsuch strongly intimates that the Dobbs leak did not come from his chambers. I doubt any NMG clerks lawyered up, or refused to turn over their devices:

Did the Covid pandemic and the 2022 leak of the Dobbs abortion ruling change how the high court operates? Not much, apparently. "Unsurprisingly, the court has taken more security precautions with respect to its internal drafts," Justice Gorsuch says. He declines to detail what he told his clerks about the leak. "I can tell you," he says, in a low steely voice, "that it was very important to me that anybody who works for me was totally cooperative with the investigation. And they were."

Second, Gorsuch seems to appreciate the interminable round-robin format:

Oral arguments, influenced by pandemic teleconferences, have become "a little more leisurely." Lawyers now get two minutes to speak and settle in before the interrogating begins, which Justice Gorsuch says he loves: "They're all overcaffeinated and underslept, and they have a point they want to make." At the end, each justice is given a turn for final queries. "You don't have to elbow your way in," he says. "You never leave oral argument thinking, gosh, there's a question I wanted to ask."

I am not a fan. Then again, I'm not the one trying to ask questions.

Third, Gorsuch does not like his own writing:

Then comes the work of drafting rulings, where Justice Gorsuch says his colleagues shine. "I think we have an unusually large number of very gifted writers on the court right now," he says. "I'm not patting myself on the back. I put myself kind of in the middle of the pack, frankly." Asked if he has a favorite of his opinions, he answers without pausing to think: "Nope. I hate 'em all. Do you like reading your old writing?" Sometimes the job requires it. "Inevitably I think, ah, I wish I'd said this differently, ah, I didn't explore that enough."

I agree, and would put Gorsuch around the middle of the Court with writing prowess. My current top three are Roberts, Kagan, and Barrett. But Gorsuch writes in his own distinct tone, which works for him. On that point…

Fourth, Gorsuch states that he writes his own opinions. This is not surprising, since his tone is so distinctive, term-after-term:

What is his drafting process? "I like to have a law clerk do something," Justice Gorsuch says, even if he ultimately follows the practice of his old boss, Justice Byron White: "He'd say, write me something. And he'd read it. And then he'd throw it away. And then he'd write his own thing." This isn't to say the clerks are wasting time: "It's informative to see how another mind might approach the problem."

But then Justice Gorsuch sits down to write a complete draft himself. "It's a pretty intense, lock-yourself-in-a-room-with-the-materials process," he says. "At the end of the end of the end of the day," he says, repeating himself for emphasis, "I'm the one who took the oath, right? And I have to satisfy myself, that I've gone down every rabbit hole, and I understand the case thoroughly, and I'm doing my very best job to get it right."

I appreciate that Justice Gorsuch is now writing books at a regular clip. It is unfortunate that Gorsuch's royalties pale in comparison to his colleagues'. But that shouldn't matter. Gorsuch is writing about important legal topics, in much the same way that Justices Scalia and Breyer did. Gorsuch is trying to affect the long-term legal conversation. The other Justices are trying to… well, write about themselves.

For what it's worth, Gorsuch seems to identify as a libertarian-but-not-a-nut:

Whatever the cause, he worries that the U.S., with its accumulated statutory commands and regulatory crimes, is on the far side of what one might call the legal Laffer curve. "Too little law poses problems," he says. "I love my libertarian friends, but I am not with them on anarchy, OK? Law is essential." And yet: "Too much law actually winds up making people fear law rather than respect law, fear their institutions rather than love their institutions."

I can relate.

The post Some Highlights From Justice Gorsuch's WSJ Interview appeared first on Reason.com.

8/3/1994: Justice Stephen Breyer takes oath.

 

The post Today in Supreme Court History: August 3, 1994 appeared first on Reason.com.

8/2/1923: President Calvin Coolidge's Inauguration. He would appoint Justice Harlan Fiske Stone to the Supreme Court.

 

The post Today in Supreme Court History: August 2, 1923 appeared first on Reason.com.

Very little actually surprises me anymore. Even something unexpected is generally within some range of possibility that I anticipated. The "No Kings Act," which was introduced today by Senate Majority Leader, surprised me. No, just not surprised. It stunned me. I was actually speechless.

At a high level, the statute purports to reverse Trump v. United States, eliminate criminal presidential immunity (but not civil), and divests the Supreme Court of appellate jurisdiction over any prosecution of a former President, or even a challenge to the statute itself.

Let's walk through the bill. Section 2 explains that the "purpose" of the law is to "clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress." Clarify? That statement expressly conflicts with the holding of Trump. And Section 3 provides, "A President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress." This statement flatly contradicts how a majority of the Supreme Court interpreted Article II.

Curiously, the statute says nothing at all about civil immunity under Nixon v. Fitzgerald. Apparently that made-up immunity, which was the basis of Chief Justice Roberts's decision, is A-Okay. Also, nothing in Trump even hinted that the Vice President has immunity. This provision could have some unintended consequences for the Vice President acting as President of the Senate, who (under modern law) receives some protections under the Speech or Debate Clause.

It gets worse, The law provides that federal courts "may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress." If taken literally, this statute directs lower courts to not follow binding Supreme Court precedent–they cannot consider the exact thing that the Supreme Court said must be considered. If only Republicans responded this way to Planned Parenthood v. Casey: federal courts "may not consider' whether a law imposes a substantial burden on access to abortion. That would have been so simple!

Congress is certainly free to make such statements. It is a coordinate department of government that is entitled to interpret the Constitution. But unless we are willing to cross the rubicon of judicial supremacy, lower courts would be required to ignore Congress and follow SCOTUS. Now don't get me wrong. I despise Cooper v. Aaron. If it takes Trump Derangement Syndrome to blow up judicial supremacy, then that may have been worth it. I think of Heath Ledger as the Joker walking away from the exploding hospital. But Schumer doesn't quite have the chutzpah to go that far. Instead, he proposes a ham-handed way of playing keep-away from John Roberts.

Section 4 of the law modifies judicial review of "any criminal proceeding commenced by the United States" against a President or former President. Actions can be brought in the applicable district court. But here comes the kicker: the judgment of the court of appeals with regard to immunity is final!

"The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President."

A conviction of the President of the United States would stop with the inferior courts, and most likely, the D.C. Circuit, which by the way, will have a Democratic-appointed majority for at least the next two decades or so. If only President Reagan had thought of this idea when he had appointed the majority of judges on that court!

What else can SCOTUS not do? The bill lists eight items that the Supreme Court cannot do it itself, or direct other courts to do:

(A) dismiss an indictment or any other charging instrument;

(B) grant acquittal or dismiss or otherwise terminate a criminal proceeding;

(C) halt, suspend, disband, or otherwise impede the functions of any grand jury;

(D) grant a motion to suppress or bar evidence or testimony, or otherwise exclude information from a criminal proceeding;

(E) grant a writ of habeas corpus, a writ of coram nobis, a motion to set aside a verdict or judgment, or any other form of post-conviction or collateral relief;

(F) overturn a conviction;

(G) declare a criminal proceeding unconstitutional; or

(H) enjoin or restrain the enforcement or application of a law.

This is breathtaking. If Attorney General Garland were to lock up Donald Trump at Guantanamo Bay, and the D.C. Circuit looks the other way, the Supreme Court would have no habeas power to release him. I'm old enough to remember debates about the Suspension Clause and jurisdiction stripping from the Bush era. Democrats apparently favor full the full panoply of habeas rights for the mastermind of 9/11, but not for Trump. Priorities. If only Lincoln had such powers! John Merryman and William McCardle could not be reached for comment.

So what should the judiciary do with such a statute? Well, the bill imposes strict limits on whether these restrictions can even be challenged. Facial challenges must be brought within "180 days after the date of enactment of this Act." As I think about the Court's "facial" analysis in Rahimi and NetChoice, I cringe. Certainly this statute must have some constitutional application? So a facial challenge would fail, right? What if the President breaks the law on Etsy?

And if President Harris wins, and lets this statute go into effect, a facial challenge could never be brought. To test the constitutionality of this statute, future Presidents would have to wait to be indicted, after they leave office. A facial challenge would no longer be possible. Everyone who criticized Whole Woman's Health v. Jackson and S.B. 8 can switch sides. I can think of standing arguments why a sitting President would be able to challenge this law in office, notwithstanding its limitations–talk about a chilling effect–but I'll save those points for another time.

And an as-applied challenge "may only be brought not later than 90 days after the date of such enforcement or application." I don't even know when this clock would start ticking. If a former President is indicted, and a district court (following this statute) denies immunity, would the defendant then bring a collateral civil challenge to the statute in federal court? Wouldn't there be abstention doctrines at play? Wouldn't it make the most sense to consider the immunity issue on direct appeal–and that appeal would necessarily consider the constitutionality of the "No King Act"? Even under Justice Barrett's conception of immunity, the denial of immunity would trigger an interlocutory appeal. Maybe I'm missing something, but I have no idea how an as-applied challenge would even work here.

Let's say that a former President manages to bring some sort of as-applied challenge in a timely fashion in the right court. The statute even purports to define the appropriate standard of review: "A court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional." A presumption of constitutionality, coupled with a "clear and convincing evidence" standard! James Bradley Thayer and Oliver Wendell Holmes would be proud.

Is there any other similar statute that directs the courts to apply a particular standard of review? Some of the bills to "overrule" Loper Bright direct Courts to apply Chevron deference. That could work under the APA (assuming Justice Thomas is wrong on whether Chevron is unconstitutional). But can Congress direct the courts how to interpret a claim of constitutional immunity? I think the Supreme Court would find this statute unconstitutional, but they would have no power to hear the case!

Oh, and by the way, challenges to the statute itself can only be litigated in the District of Columbia District Court, and the D.C. Circuit. And the buck stops with Chief Judge Sri Srinivasan:

In a civil action under this subsection, a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.

The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.

More jurisdiction stripping!

To be sure, this bill is prospective. We can imagine what an Attorney General Jeff Clark would do with this bill, right? Certainly this bill can't be about Trump, right? Ex Post Facto Clause, right? Wrong.

If an action at the time of its commencement is not subject to subsection (a) or (b), but an amendment, counterclaim, cross-claim, affirmative defense, or any other pleading or motion is filed such that the action would be subject to subsection (a) or (b), the action shall thereafter be conducted pursuant to subsection (a) or (b), as applicable.

Huh? Am I reading this right? Any existing criminal that is in effect now could be brought under the auspices of this bill. In other words, if any pleadings are made about immunity in Judge Cannon's court, she would then be required to reject an immunity claim? Could this be the rule?

There is one provision that I can't quite make heads-or-tails of:

No court may issue relief sua sponte on the ground that a provision of this Act (including this section), or its enforcement or application, is unconstitutional.

What is going on here? I think this is hinting at an issue where some other federal court, hearing some related issue, may opine on the constitutionality of the statute.

Perhaps the most brazen part of the bill is Section 6(b)(vi):

All appeals from the United States District Court for the Northern District of Texas, Amarillo Division, shall be taken to the United States Court of Appeals for the District of Columbia Circuit, which shall have exclusive jurisdiction to hear an appeal in a civil action under this subsection. This provision shall be known as the "Stealth Impeachment of Judge Matthew Kacsmaryk Law."

No, Section 6(b)(vi) is not in the bill, but you believed it. And you better believe progressives will try to strip the Fifth Circuit of jurisdiction.

***

Let me be clear. This bill has no chance of passage in the current Congress. And if Trump wins, I think the judiciary is safe for another four years. But if Harris prevails, and the Democrats have majorities in both houses, they will find a way to pass this bill. Remember, this is not some sort of fringe proposal from the Squad, but was introduced as a priority bill by the Majority Leader. The whirlwind cometh. Once the Supreme Court's jurisdiction is stripped for presidential immunity, it is only a matter of time before similar bills are passed for abortion, the Second Amendment, RFRA, and so on. This bottomless hole keeps going deeper.

President Biden's pointless op-ed, which did not even bother to specify whether a statute could impose term limits, was apparently just a warm-up act. Senate Democrats are going all-in on destroying the judiciary as we know it. Remind me again how cataclysmic it was when Trump referred to "Obama judges"? I welcome comments from the Never-Trumpers who think Kamala Harris is the last chance to save our republic.

The post Senator Schumer Goes Nuclear With "No King Act" appeared first on Reason.com.

This morning I did something I have not done in some time. I loaded CNN.com. I wanted to see the latest in Biskupic's series of "Exclusive" reports on the Supreme Court. There was nothing. I checked again, and again, and again. No Part IV. It is just past noon eastern now, and still nothing. Is this series over? If so, we learned very little. The primary new insight was about Barrett's flip in Moyle from the emergency docket to the oral argument. Everything else was pretty apparent from the published decisions.

I have a love-hate-yawn relationship with Biskupic's reporting. I am always eager to see the scintillating details, even though I deeply regret that people are still leaking to the press after Dobbs. These sorts of stories do irreparable damage to the collegiality and openness of the Justices. And to what purpose? Does anyone, other than a few nerds, really care about how the sausage is made? In the end, I yawn because not much is learned. Really, the cost to the judiciary of these leaks far exceeds whatever trivial value we gain from these "Exclusive" stories. We went a few years without any Biskupic scoops, and everything was just fine.

The post No Part IV For Biskupic? appeared first on Reason.com.

I encourage everyone to watch Nick Gillespie's cool interview with Randy Barnett. They touch on Randy's role in developing originalism, the challenge to Obamacare, and the future of the libertarian movement. I would also commend Randy's recent essay, fittingly titled "Libertarianism Updated." And if you haven't bought Randy's new book yet, you should. I'm sure he would be happy to sign it next time you see him.

The post Gillespie Interviews Barnett on Originalism, Obamacare, and the Libertarian Movement appeared first on Reason.com.

8/1/1942: Military commissions conclude for eight nazi saboteurs. The Supreme Court upheld the constitutionality of these trials in Ex Parte Quirin.

The post Today in Supreme Court History: August 1, 1942 appeared first on Reason.com.

On July 1, the Court decided Moody v. NetChoice. Later that day, I speculated that Justice Alito was assigned, and lost, the majority opinion. I had no inside information. I do not have any leaks. Rather, I was able to track the Court's assignments in each sitting, observe that Alito was short an assignment, and realize that Alito's separate opinion read very much like a majority opinion. Indeed, Alito signaled as much with this fourth-wall-breaking jab:

For these reasons, I am therefore compelled to provide a more complete discussion of those matters than is customary in an opinion that concurs only in the judgment.

Two weeks earlier, I speculated that Justice Alito lost the majority opinion in Gonzales v. Trevino. The per curiam majority was unusual. I wrote:

Why is this a per curiam opinion? It is possible that Justice Alito was assigned the majority opinion, but lost it, and the Chief came in to salvage the majority with a narrow per curiam. At present, Alito does not have any assignments from the March sitting.

Again, I had no inside information. I only need to read and to count.

Now, Joan Biskupic's exclusive third installment confirms what we already knew: Justice Alito lost the majority opinions in NetChoice and Trevino.

Here is Biskupic's lede.

The hardline approach Supreme Court Justice Samuel Alito takes usually gets him what he wants.

This year it backfired.

Behind the scenes, the conservative justice sought to put a thumb on the scale for states trying to restrict how social media companies filter content. His tactics could have led to a major change in how platforms operate.

CNN has learned, however, that Alito went too far for two justices – Amy Coney Barrett and Ketanji Brown Jackson – who abandoned the precarious 5-4 majority and left Alito on the losing side.

As a result, the final 6-3 ruling led by Justice Elena Kagan backed the First Amendment rights of social media companies

It is rare that a justice tapped to write the majority opinion loses it in ensuing weeks, but sources tell CNN that it happened twice this year to Alito. He also lost the majority as he was writing the decision in the case of a Texas councilwoman who said she was arrested in retaliation for criticizing the city manager.

And to be clear that Alito was not a source, Biskupic includes this disclaimer:

Alito declined CNN requests for an interview.

At conference, it seems that Justices Barrett and Jackson were more amenable to Judge Oldham's analysis in the Fifth Circuit. Remember, Justice Jackson has signaled that she will be the most hostile member of the Court to free speech claims.

A few days later, as the justices met in private on the dispute, they all agreed that NetChoice's sweeping claims of unconstitutionality had fallen short and that the two cases should be sent back to the lower courts for further hearings.

The justices, however, split over which lower court largely had the better approach to the First Amendment and what guidance should be offered for lower courts' further proceedings.

Alito, while receptive to the 5th Circuit's opinion minimizing the companies' speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservatives Clarence Thomas and Neil Gorsuch and, to some extent, Barrett and Jackson.

This is the key insight that Biskupic provides here: that Barrett and Jackson formed the majority at conference. I speculated as much, but Biskupic states it with some degree of confidence.

But Justice Kagan, the old-school liberal, favored a more robust conception of free speech:

On the other side was Kagan, leaning toward the 11th Circuit's approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by their users. She was generally joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.

If Biskupic's accounting is right, then Justice Thomas would have assigned the majority to Justice Alito:

Alito began writing the court's opinion for the dominant five-member bloc, and Kagan for the remaining four.

But then what happened? Surprise, surprise, Justice Barrett changed her mind. Or, if I had to speculate, she was never much settled on the issue in the first place. She was all over the map at oral argument. She had already stayed the Fifth Circuit's ruling a year earlier, so had been thinking about the case for some time. Yet, there was still no clarity. Justice Barrett, as I've written many times before, is figuring things out as she goes along. Law professors perhaps champion that virtue as one of open-mindedness and reasonableness. But the risk is that she can be unduly influenced. And Biskupic suggests it was Kagan who, once again, won Barrett over. As I presumed.

But when Alito sent his draft opinion around to colleagues several weeks later, his majority began to crumble. He questioned whether any of the platforms' content-moderation could be considered "expressive" activity under the First Amendment.

Barrett, a crucial vote as the case played out, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying types of algorithms platforms use.

Please remember that every word that Elena Kagan writes and utters in public is designed to curry Justice Barrett's vote. And we can only presume similar conversations occur behind the scenes. Never forget that. Going forward, no majority opinion with Barrett as the fifth vote is safe. Chief Justice Roberts for all of his warts in the past, has been a stalwart of late. If I was looking to hire a lateral professor to teach Federal Courts and Legislation, Professor Barrett would be on the short list. But for the Supreme Court? No way. Please don't let anyone blur this distinction.

Biskupic hints that once Barrett flipped, Jackson joined part of Kagan's majority to make the vote 6-3 rather than 5-4. It would have taken a stand for Justice Jackson to stay with Justice Alito. It was a free vote. But she wrote separately.

Jackson then joined much of Kagan's analysis as well, including that a private company's collection of third-party content for its platform could itself be expressive and therefore subject to First Amendment considerations when a state attempts to regulate.

Biskupic suggests that the votes were in flux till the very end of the term:

The give and take among the justices in the social media cases took until the very last day of the term.

One wonders if the Court had its last day in June, rather than July, would the bottom line have been different? Onto the next case.

Trevino was decided on June 21. Biskupic writes that the majority in that case fell apart a few weeks before:

A few weeks before then [NetChoice being decided on July 1], the separate majority Alito had tentatively won in the dispute over an alleged retaliatory arrest in Texas fell apart because of how extensively he wanted the court to rule.

At conference, the Court agreed to reverse the Fifth Circuit:

When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.

But Alito tried to go too far:

But as he began writing, he went further than the other justices in his review of Gonzalez's case. Alito and his colleagues realized he couldn't "hold five," as the expression goes, for a majority.

A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit's reasoning, the Supreme Court said the 5th Circuit had applied an "overly cramped view" of the court's precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.

Biskupic does not tell us the question I raised: who wrote the per curiam? Was it Roberts? Or Kagan? She refers obliquely to "a new majority."

Biskupic also hinted that Alito's absence from the handdown was related to this friction:

On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito's chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.

Justices sometimes skip one of these final days of the annual session, but usually there's an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.

Alito returned for the final four announcement days of the term, yet sometimes appeared preoccupied. On the last day, when Kagan announced the decision in the NetChoice case, Alito was reading through material he had brought along to the bench.

I made a similar observation, querying why Chief Justice Roberts announced the per curiam opinion.

***

Like with her first and second installments, we don't learn much new, and we are left wanting to know what actually happened–something Biskupic does not know. Moreover, Justice Kavanaugh is entirely invisible in these stories. I think Team Kavanaugh has cut off Biskupic. She has nothing on him.

Yesterday I mused to myself that Part III would be about NetChoice. My prediction is Part IV will about Rahimi. Biskupic will tell us about how Justices Kavanaugh and Barrett split on the history-and-tradition test, and how Justice Gorsuch struggled with the as-applied issue. Plus there will be an aside on Vidal v. Elster. And Part V will be about Trump v. Anderson, and how Roberts cobbled together a majority. I hope there is some insight into the Barrett-Kagan dispute, which I still can't make heads-or-tails of. I don't have any inside information. Those were my observations from simply reading the opinion.

The post Biskupic Part III Confirms What We Already Knew: Justice Alito Lost Majority Opinions in <i>NetChoice</i> and <i>Trevino</i>. appeared first on Reason.com.

Way back in November 2023, three cert petitions were filed in cases challenging laws which regulated medical treatment for transgender minors. Two were filed in Skrmetti, the Tenessee case, by the Biden Justice Department and the ACLU. One was filed in the Kentucky case by Jenner Block.

These cases lingered in docket purgatory. John Elwood provides the breakdown:

(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

Seven reschedules and five relists! Usually a case with this record is destined for a cert denial, coupled with a dissent from denial of cert.

But here, after three months of docket purgatory, we get a grant. But not a grant in all three cases. There is only a grant in the DOJ case. The Court is (presumably) holding the other two petitions.

This case will likely be argued in November 2024 or so—before or shortly after the election. But a decision probably would not come until June 2025. Will the Trump Justice Department switch positions after the inauguration, and dismiss the petition? If so, the Court could dodge the issue altogether. Had the Court granted the petitions from the ACLU and Jenner Block, the controversies would have remained regardless of what happens with the election. But by granting only the DOJ petition, the Court has limited the case. Maybe that's what led the Court to only grant the SG's petition.

This outcome would be like another Grimm case where an important issue goes unresolved for years on end with a change in administrations.

The post SCOTUS Grants SG's Petition in Transgender-Minor Case appeared first on Reason.com.

An old pastime is trying to figure out which Justice was the principal author of a per curiam opinion. I recently speculated that Chief Justice Roberts wrote the per curiam opinion in Gonzales v. Trevino. And Roberts in fact announced Trevino from the bench.

Earlier this term, the Supreme Court decided two cases about what happens when government officials block constituents on social media: Lindke v. Freed and O'Connor Ratcliff v. Garnier. Justice Barrett wrote the majority opinion in the former and a per curiam opinion was issued in the latter. During the hand-down, Justice Barrett announced both cases.

Last term, the Supreme Court decided two Section 230 cases: Twitter v. Taamneh and Gonzalez v. Google. Justice Thomas wrote the majority opinion in the former, and a short per curiam opinion was issued in the latter. During the hand-down, Justice Thomas announced both cases.

Does the Chief Justice always announce the per curiam opinion when it is not a paired case? I would have to do more research to figure out a rule.

The post Does The Principal Author Of A Per Curiam Opinion Announce It? appeared first on Reason.com.

6/24/2013: Fisher v. University of Texas at Austin I is decided.

The post Today in Supreme Court History: June 24, 2013 appeared first on Reason.com.

Every term, I find at least one sleeper case. These decisions were not on the public's radar, but reached some fairly significant constitutional holdings. In OT 2019, there was Agency for Int'l Development v. Alliance for Open Society. In OT 2020, there was BP v. Baltimore. In OT 2022, there was Mallory v. Norfolk Southern. This term, the sleeper case is Department of State v. Munoz.

Sandra Munoz, a U.S. citizen, married Luis Asencio-Cordero, an alien. (No, I will not use the neologism "non-citizen.") Under immigration law, the husband had to return to his home country, El Salvador, to apply for a spouse visa. However, the consular officer denied his visa. Eventually, the government cited the statute indicating that an alien is inadmissible due to some "unlawful activity." Long story short, the government suspected that Asencio-Cordero had some connections with the MS-13 gang. Since the husband was no longer in the United States, he had no mechanism to challenge the denial of his visa in court. However, his wife, who was a U.S. citizen, brought suit in the Ninth Circuit.

The Court split 6-3, along right-left lines. Justice Barrett wrote the majority opinion and Justice Sotomayor wrote the dissent. But to be clear, none of the Justices held that the husband was entitled to a visa. Indeed, I think all nine Justices agreed that the rationale given to Munoz–that her husband was suspected of having gang affiliations–afforded her all the process she was due. All nine Justices would have reversed the Ninth Circuit. I agree with Ed Whelan that Sotomayor's opinion should have been labelled "concurring in part and dissenting in part," or "concurring in the judgment," or something to that effect. But Sotomayor's "dissenting" appellation muddles the bottom line.

Justice Barrett's majority opinion performs an important service by cleaning up several loose ends in the relationship between immigration law and the Constitution.

First, the Court explained that under the doctrine of consular nonreviewability, "The Immigration and Nationality Act (INA) does not authorize judicial review of a consular officer's denial of a visa; thus, as a rule, the federal courts cannot review those decisions." Trump v. Hawaii is not to the contrary. Barrett wrote that in Trump, the Court "assume[d] without deciding that [the] plaintiffs' statutory claims [were] reviewable." I was always very dubious of that holding. When Justice Kennedy was the 5th vote, that assumption was necessary. But I doubt it is going forward. Should Trump prevail, his Justice Department would rely on non-reviewability to defeat a host of immigration-related challenges.

Second, the Court resolved another issue that Justice Kennedy left open in Kerry v. Din (2015):

In Din, this Court considered but did not resolve the question. A plurality concluded that a citizen does not have a fundamental right to bring her noncitizen spouse to the United States. 576 U. S., at 96. Two Justices chose not to reach the issue, explaining that even if the right existed, the statutory citation provided by the Executive qualified as a facially legitimate and bona fide reason. Id., at 105 (opinion of Kennedy, J.). Since Din, the existence of the right has continued to divide the Circuits. Today, we resolve the open question. Like the Din plurality, we hold that a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.

During the travel ban litigation, there was extensive debate about what the holding of Din was. Lower courts relied almost exclusively on Justice Kennedy's concurrence. But going forward, this issue has been neatly resolved.

Third, the Court applied Glucksberg for (I think) the first time since Dobbs. The Court more-or-less skipped over the first element, and did not actually decide if Munoz describes a liberty interest with sufficient specificity.

We start with a "careful description of the asserted fundamental liberty interest." Id., at 721 (internal quotation marks omitted). Muñoz invokes the "fundamental right of marriage," but the State Department does not deny that Muñoz (who is already married) has a fundamental right to marriage. Muñoz claims something distinct: the right to reside with her noncitizen spouse in the United States. That involves more than marriage and more than spousal cohabitation—it includes the right to have her noncitizen husband enter (and remain in) the United States. It is difficult to pin down the nature of the right Muñoz claims.

But (shocker) the Court focuses extensively on whether there is a "tradition" of such a liberty interest. Everything is about "tradition" nowadays. (I still haven't read Rahimi; I have been putting it off for as long as I can.) And the answer is overwhelmingly no.

This right would be in a category of one: a substantive due process right that gets only procedural due process protection. Ibid. We need not decide whether such a category exists, because Muñoz cannot clear the second step of Glucksberg's test: demonstrating that the right to bring a noncitizen spouse to the United States is "'deeply rooted in this Nation's history and tradition.'" 521 U. S., at 721. On the contrary, the through line of history is recognition of the Government's sovereign authority to set the terms governing the admission and exclusion of noncitizens. And Muñoz points to no subsidiary tradition that curbs this authority in the case of noncitizen spouses.

Indeed, the Court relies on the Alien Friends Act, which is part of the Alien and Sedition Act. While the Sedition Act was overruled in the "court of history"–or at least Justice Brennan told us in New York Times v. Sullivan–the Alien Act remains a valid basis for the federal immigration power.

From the beginning, the admission of noncitizens into the country was characterized as "of favor [and] not of right." J. Madison, Report of 1800 (Jan. 7, 1800), in 17 Papers of James Madison 319 (D. Mattern, J. Stagg, J. Cross, & S. Perdue eds. 1991) (emphasis added); see also 2 Records of the Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (recounting Gouverneur Morris's observation that "every Society from a great nation down to a club ha[s] the right of declaring the conditions on which new members should be admitted"); Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, p. 31 (1850) ("[B]y the law of nations, it is left in the power of all states to take such measures about the admission of strangers as they think convenient"). Consistent with this view, the 1798 Act Concerning Aliens gave the President complete discretion to remove "all such aliens as he shall judge dangerous to the peace and safety of the United States." 1 Stat. 571 (emphasis deleted). The Act made no exception for spouses—or, for that matter, other family members.

The Court rejects any purported substantive due process right at issue here.

Fifth, during the travel ban litigation, there was some doubt whether United States ex rel. Knauff v. Shaughnessy (1950) remained good law. This law gave virtually boundless authority to the Attorney General to exclude aliens. Courts held that Knauff was inconsistent with Justice Kennedy's concurrence in Din, and favored the latter. But the Roberts Court has forcefully reaffirmed Knauff:

Knauff thus reaffirmed the longstanding principle "that the United States can, as a matter of public policy . . . forbid aliens or classes of aliens from coming within their borders," and "[n]o limits can be put by the courts upon" that power. . . . Moreover, Knauff remains good law that we have repeatedly reaffirmed. Dept. of Homeland Security v. Thuraissigiam, 591 U. S. 103, 138–139 (2020).

Sixth, the Court reads Kleindienst v. Mandel (1972) very narrowly. This Burger Court decision fashioned some sort of procedural due process right for American citizens to challenge the denial of an alien's entry where the citizen's First Amendment right was violated. During the travel ban litigation, I was certain this precedent had been abrogated by later decisions scaling back procedural due process. In Munoz, the Court does that scaling back:

Lest there be any doubt, Mandel does not hold that citizens have procedural due process rights in the visa proceedings of others. The Ninth Circuit seems to have read Mandel that way, but that is a misreading. . . . The Court expressly declined to address whether a constitutional challenge would "be available for attacking [an] exercise of discretion for which no justification whatsoever is advanced." Ibid. Thus, the "facially legitimate and bona fide reason" in Mandel was the justification for avoiding a difficult question of statutory interpretation; it had nothing to do with procedural due process. Indeed, a procedural due process claim was not even before the Court. . . .

Whatever else it may stand for, Mandel does not hold that a citizen's independent constitutional right (say, a free speech claim) gives that citizen a procedural due process right to a "facially legitimate and bona fide reason" for why someone else's visa was denied.

What does Mandel even stand for at this point? Not much. I'm sure the immigration professoriate will lament the stealth overruling of Mandel. So be it. That precedent lived long past its prime.

Justice Sotomayor's dissent makes this case all about Loving, Obergefell, and Dobbs. Justice Barrett is not amused, and rejects these arguments as "rhetoric":

The dissent never addresses the actual issue in this case, which is whether the Judiciary has any authority to review visa determinations made by the State Department. Instead, the dissent chooses the rhetorically easier path of charging the Court with endangering the fundamental right to marriage. See post, at 11–14. To be clear: Today's decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right.

Still, the rhetorical force is strong:

This Court has never held that a married couple's ability to move their home elsewhere removes the burden on their constitutional rights. It did not tell Richard and Mildred Loving to stay in the District of Columbia or James Obergefell and John Arthur to stay in Maryland. It upheld their ability to exercise their right tomarriage wherever they sought to make their home.

Justice Sotomayor also calls back to the pre-Trump Court, announcing that both Obergefell and Din were decided about a "decade ago." The good old days where the Court was the only legitimate branch of government. Remember when Justice Kennedy was the swing vote?

I member.

The timing of this dissent, however, is somewhat inauspicious. Earlier last week, President Biden announced a new policy that would make it easier for alien spouses of U.S. citizens to obtain a green card. In short, these aliens would no longer have to return to their home county and apply for a visa abroad. Justice Sotomayor's dissent explains, in painstaking details, all of the hoops that spouses have to jump through.

Marriage is not an automatic ticket to a green card. A married citizen-noncitizen couple must jump through a series of administrative hoops to apply for the lawful permanent residency that marriage can confer. Noncitizen spouses coming from abroad must apply for a visa to enter the United States. In certain cases, however, the law requires even couples who meet and marry in the UnitedStates to send the noncitizen spouse back to his country of origin to do the same thing. In doing so, the couple must take an enormous risk to pursue the stability of lawful immigration status: the risk that when the noncitizen spouse tries to reenter the United States, he will face unexpected exile.

The Biden policy would effectively make marriage "an automatic ticket to a green card." Indeed, a couple could get married immediately to take advantage of that automatic ticket. The Biden executive action, which still has not been published in the federal register, would eliminate many of these hoops. I suspect the policy is being rewritten as we speak to account for the new decision.

This quoted paragraph will be quoted ad infinitum in the inevitable litigation. I wonder if Justice Sotomayor considered dropping it after the Biden policy was announced? I suppose that would have been a bit awkward. Bad timing all around.

The post <i>Department of State v. Munoz</i>: The Sleeper ConLaw Case of the Term appeared first on Reason.com.

Last month, I wrote a post titled "Austin Judges Shop For Cases With "Mutual Consent." I discussed at some length Judge David Ezra of the U.S. District Court for the District of Hawaii, who hears cases in the U.S. District Court for the Western District of Texas by "mutual consent."

I wrote:

It is well known in Texas that Judge Ezra fancies the high-profile cases, and consistently receives them. By my count, in the past year, he has presided over the buoys case, the S.B. 4 case, and the porn age verification case. All three of these cases have already been on, or will soon be, on the Supreme Court's docket. Most federal district court judges can go their entire careers without having a single case make it to the Supreme Court. But Ezra has three in a year. Is this a coincidence? No. Ezra could only have received these cases by his "mutual consent." Judge Pitman offered these cases to him, and he accepted them.

Mind you that Judge Ezra is actually a visiting judge from the District of Hawaii, or what Attorney General Sessions called a "judge sitting on an island in the Pacific." To the extent that Ezra was approved to sit in the Western District of Texas, it was to help with some dockets that are backlogged, such as immigration cases or criminal sentencing.

I received an email out of the blue from Judge Ezra. He wrote:

First, while technically correct that there are three Senior Judges in Austin, in practice Judge Sparks is currently on inactive Senior Status and Judge Nowlin has a very reduced case load. So in reality the bulk of the Austin docket is currently being handled by Judge Pitman and myself. You were correct that Judge Pitman controls the Austin docket, however, when he is unavailable or recused those cases are assigned to me in most instances. That was how the Buoy case and SB 4 case came to my docket. I did not seek out those cases. Judge Pitman will tell you that I have never asked for any particular case be assigned to my docket and the same is true for my San Antonio docket.

As for my sitting in the Western District I was not brought on board in 2013 to take any particular case or class of cases, including immigration cases. The border federal courts were and remain inundated and it was determined that I could be of most help working on civil cases, many of which are long and complex. This is particularly true in the Austin Division. This frees up Judge Pitman to work not only on civil cases but the time sensitive criminal docket. The situation in Austin became acute when the other active Judge in Austin Lee Yeakel retired into private practice last year.

Finally, I can assure you that anyone who actually knows Judge Pitman or any of the other judges in the Western District who are in a position to assign me cases will tell you I don't look for "big" cases. Judge Pitman assigns me cases in blocks and I don't even know the names of the cases until they are transferred to my docket. I also don't run away from a case because it may be difficult. By the way, since you mentioned that Chief Judge Moses was appointed by President Bush you must also know that I was appointed by President Reagan, not that either of those facts are in any way important to how we rule.

I asked Judge Ezra if I could quote his reply on the blog, and he replied:

…. [G]enerally when a federal judge corresponds privately with a law professor it is understood to be private. That is so they may have an open and full conversation without the judge feeling constrained by the concern his or her comments will be made public. That said, in this case I really have no concern about you quoting from my email.  Everything I said there is absolutely true and does not intrude in anyway I can see into politics.

I do have a response to Judge Ezra, based on some remarks he gave at a recent meeting of the Federal Bar Association in Austin, but that will have to wait for another time. The Supreme Court's docket still detains me. But in the interest of completeness I wanted to share the Judge's remarks.

The post A Reply From Judge David Ezra appeared first on Reason.com.

Erlinger v. United States presented yet another Armed Career Criminal Act (ACCA) case, but with a Fifth and Sixth Amendment angle. This dispute turned on whether the judge, rather than the jury, could determine whether three offenses were committed on separate occasions.

Justice Gorsuch wrote the majority opinion, finding that the jury had to make these findings. He was joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, and Barrett. Justice Gorsuch's poetic waxing about the jury suggests that he also has the majority opinion in Jarkesy, which will embrace a broad reading of the Seventh Amendment. This prediction is worth what you paid for it.

Justice Jackson wrote a solo dissent. She argued that Apprendi was wrongly decided.

I disagree for several reasons, including my overarching view that Apprendi was wrongly decided. Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority when it empowers judges to make factual determinations related to punishment and directs that a particular sentencing result follow from such findings.

I did not have that one on my bingo card. Jackson would decline to extend this precedent any further. I've proposed this strategy for originalist judges–even if some precedent stands under stare decisis factors, there is no obligation to extend it to new contexts. Jackson writes:

I recognize, of course, that Apprendi is a binding precedent of this Court, and one that "has now defined the relevant legal regime" for nearly a quarter century. Alleyne v. United States, 570 U. S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment). Given that reality, untangling the knots Apprendi has tied is probably infeasible at this point in our Court's jurisprudential journey. But considering the flaws inherent in Apprendi's approach, I cannot join today's effort to further extend Apprendi's holding, particularly when there is a well-established recidivism exception to the Apprendi rule that applies to the circumstances of the case before us now.

As a long-time district court judge, Justice Jackson seems to have lost some faith in the ability of the jury to decide complex issues. She would restore this power to the bench. She explained:

I write separately to provide an additional critical perspective on the Apprendi doctrine—one that is informed by how sentencing has actually worked on the ground, before and after Apprendi—and to note that applying the Apprendi rule to ACCA's occasions finding creates all sorts of practical problems that are easily avoided by simply allowing judges to do what they have always done.

Justice Gorsuch seems disturbed by Jackson's lack of faith in the jury.

But the Constitution does not take such a dim view about the capacity of jurors or the rigors of trial. Surely, too, juries are no less capable than judges to decide whether three past events happened on three separate occasions. . . . 27. JUSTICE JACKSON may view juries as "roadblocks" to higher punishments. But"[t]he bottom line is this": the people ratified the Fifth and Sixth Amendments, not any of our personal views.

I spent two years clerking in the federal district court, and then one year in the circuit court. I sat through dozens of sentencing proceedings and several criminal jury trials. When I started my circuit clerkship, I implored my co-clerks to actually attend a sentencing proceeding to see what it was like. How could you meaningfully review a transcript of a sentencing hearing without ever seeing one? There was a district court across the hall. It would have taken no effort. As I recall, they never did. And I suspect most appellate law clerks, and most appellate judges, have never even seen a sentencing proceeding or a jury trial. Justice Jackson's perspective here is important, regardless of whether she is mistaken about Apprendi.

I also did not have on my bingo card that Justice Jackson would favoraby cite Jonathan Mitchell, also known in these parts as "The Genius," on Apprendi.

Justice Kavanaugh wrote the principal dissent, which was joined by Justice Alito. To perhaps no one's surprise, his analysis turns on tradition!

Given the absence of any "uniform" "tradition," the Court concluded that the choice between those methods was left to the Legislature, not governed by "a federal constitutional guarantee." Id., at 246–247. To hold "that the Constitution requires that recidivism be deemed an 'element' of petitioner's offense would mark an abrupt departure from a longstanding tradition" where a judge or a jury could determine that a defendant is a recidivist. Id., at 244. Importantly, that tradition of allowing judges to apply recidivism sentencing enhancements developed so as toavoid significant prejudice to criminal defendants.

The concept of tradition repeats throughout the opinion:

The variation in early American practice forecloses the argument that the right to have a jury apply recidivism enhancements was traditionally understood as an inherent part of the Sixth Amendment right to trial by jury.

America has a long tradition of legislative discretion over whether a judgeor jury will apply recidivism sentencing enhancements.

The distinctive tradition that governs recidivism enhancements for past offenses has traditionally co-existed with the general right to a jury trial for present offenses.

Justice Gorsuch responds that there is no such actual tradition:

All told, amicus's evidence may suggest that in a small number of jurisdictions judges could find the existence, number, and dates of a defendant's prior convictions.But none of this provides a persuasive basis for revisiting our many precedents prohibiting judges from doing more. Let alone prove "'a longstanding tradition'" in this Nation allowing a judge to find any fact regarding a defendant's "recidivis[m]." Post, at 5 (opinion of KAVANAUGH, J.).

Justice Kavanaugh also responded to Justice Thomas's concurrence to explain why Almendarez-Torres v. United States (1998) should not be overruled. I see no other reason for this lengthy analysis, other than to show that his votes in Ramos and Dobbs about stare decisis are generally applicable to new circumstances. I suspect Alito had to hold his nose on those sections about the "traditional stare decisis factors."

Ultimately, Chief Justice Roberts agrees with Justice Kavanaugh that the error in this case is likely harmless, so Mr. Erlinger may see no actual relief. Rather, he will be stuck with what Justice Kavanaugh describes as a "pointless remand."

The post Tradition In <i>Erlinger</i> appeared first on Reason.com.

6/23/1987: South Dakota v. Dole is decided.

The post Today in Supreme Court History: June 23, 1987 appeared first on Reason.com.

Moore v. United States is a complicated case. It turns on the meaning of the taxing provisions of the original Constitution, and how those powers were affected by the Sixteenth Amendment. On my initial read, I am more persuaded by Justice Thomas's dissent, which provides a thorough-yet-readable account of that history. But I am absolutely convinced by Justice Thomas's criticism of the majority. He faults Justice Kavanaugh's opinion for reaching out to sort-of decide issues that are not yet presented:

Even as the majority admits to reasoning from fiscal consequences, it apparently believes that a generous application of dicta will guard against unconstitutional taxes in the future. The majority's analysis begins with a list of nonexistent taxes that the Court does not today bless, including a wealth tax. Ante, at 8, n. 2. And, it concludes by offering a narrow interpretation of its own holding, hinting at limiting doctrines, prejudging future taxes, cataloguing the Government's concessions, and reserving other questions "for another day." Ante, at 22–24. Sensing that upholding the MRT cedes additional ground to Congress, the majority arms itself with dicta to tell Congress "no" in the future. But, if the Court is not willing to uphold limitations on the taxing power in expensive cases, cheap dicta will make no difference.

Towards the beginning of the opinion, Footnote 2 stresses what is not at issue:

As discussed below, infra, at 22–24, our analysis today does not address the distinct issues that would be raised by (i) an attempt by Congress to tax both the entity and the shareholders or partners on the entity's undistributed income; (ii) taxes on holdings, wealth, or networth; or (iii) taxes on appreciation.

You see that! This case is not about a wealth tax. Take that Elizabeth Warren! The Court repeats this line towards the end:

That said, we emphasize that our holding today is narrow. It is limited to: (i) taxation of the shareholders of an entity, (ii) on the undistributed income realized by the entity, (iii) which has been attributed to the shareholders, income. In other words, our holding applies when Congress treats the entity as a pass-through. . . . In addition, as the Government explains, other kinds of taxes could of course raise different issues. See Tr. of Oral Arg. 58–59, 62, 127–128. In its brief and at oral argument, for example, the Government indicated that a hypothetical unapportioned tax on an individual's holdings or property (for example, on one's wealth or net worth) might be considered a tax on property, not income. See Brief for United States 19 (distinguishing an income tax from a tax on wealth or net worth because "an income tax targets economic gain 'between two points of time'"); Tr. of OralArg. 69, 127–128.

Justice Kavanaugh is fond of citing oral argument transcripts, especially where the Solicitor General is put in a tough bind by questions. He did just that in Alliance for Hippocratic Medicine. When the Court cites a transcript, you know those concessions do not appear in the brief.

The subtext of Justice Thomas's dissent is clear: the Court did not want to declare unconstitutional this trivial tax, but the Court was content to lay out guardrails to make sure a wealth tax would not go forward. Reaching out to decide issues not present is a hallmark of a Kavanaugh opinion. Usually this occurs in one of his concurrences. For example, he Dobbs he decided the question of the right to travel, and in Bruen he decided the question of mental health background checks. Indeed, in AHM he swept broadly to resolve potential conscience objections. But in Moore, Kavanaugh was assigned one of his most significant majority opinions. And he brought his faux-minimalism to the whole Court. The bottom line vote is 7-2, but Justice Barrett's concurrence, joined by Justice Alito, is much closer to Justice Thomas than to the majority. In reality, this is yet another 5-4 case where Chief Justice Roberts and Justice Kavanaugh join the Court's progressives. (Texas v. New Mexico is another such case; yes, I read the original jurisdiction water rights cases.)

The post With the Constitution, Deciding Less Is <i>Moore</i> appeared first on Reason.com.

6/22/1992: R.A.V. v. City of St. Paul is decided.

The post Today in Supreme Court History: June 22, 1992 appeared first on Reason.com.

All law students study Mapp v. Ohio (1961). In this landmark case, the Supreme Court held that the exclusionary rule should be applied to state criminal prosecutions. In other words, evidence seized in violation of the Fourth Amendment could not be admitted in Court. Previously, in Wolf v. Colorado (1949), the Supreme Court declined to "incorporate" the exclusionary rule. (Incorporation is not exactly the right term here, but it is close enough.) Rather, Wolf held, the exclusionary rule would only be enforced with regard to federal criminal prosecutions as part of the Supreme Court's "supervisory power" of the lower courts.

In the lower courts, Mapp was litigated as a First Amendment case. Dollree Map was arrested for possessing certain obscene materials. Indeed, the oral arguments focused extensively on the First Amendment issues. It was not litigated as a Fourth Amendment case.

Mapp's counsel did not ask the Supreme Court to overrule Wolf. Justice Frankfurter pointed out that the counsel for Mapp did not even mention Wolf in their brief.

Felix Frankfurter: Are asking us to overrule the Wolf case in this Court? I notice it isn't even cited in your brief.

The Ohio Supreme Court didn't even mention the issues!

Felix Frankfurter:  Well, as I understand it, when dealing with an Ohio case, what the court decides is authoritatively expressed only in the syllabi, but I can go to the opinion to find out, perhaps to get some light on what the syllabi means. . . . So far as I can make out in reading Ohio State, 170 Ohio State, that matter wasn't adverted to in the opinion, and certainly not in the syllabi. That's right, isn't it?

And Justice Harlan explained that the only issue before the Court was the First Amendment question:

John M. Harlan II: Well, that's the only question we've got here, as to whether the statute's constitutional or not constitutional, isn't it?

Harlan asked Mapp's lawyer point blank if they were asking the Court to overrule Wolf. The lawyer said no.

John M. Harlan II: Well, that means you're asking us to overrule Wolf against Colorado?

A. L. Kearns: No, I don't believe we are.

So who asked for Wolf to be overruled? The ACLU arguing as amicus.

Bernard A. Berkman: Mr. Chief Justice, may it please the Court. Before I get into the area which was allotted to me, I would like to say that the American Civil Liberties Union and its Ohio Affiliate, the Ohio Civil Liberties Union, is very clear, in response to the question which was directed to counsel for the appellant, that we are asking this Court to reconsider Wolf versus Colorado and to find that evidence which is unlawfully and illegally obtained should not be permitted into a state proceeding, and that its production is a violation of the Federal Constitution, the Fourth Amendment and the Fourteenth Amendment. We have no hesitancy about asking the Court to reconsider it because we think that it is a necessary part of due process.

Justice Stewart inquired if the ACLU was asking the Court to overrule Wolf. The lawyer for the ACLU contended that its interest did not line up with that of Dollree Map, but it didn't matter.

Potter Stewart: Are you asking us to re-examine Wolf, or are you relying on Rochin against California?

Bernard A. Berkman: We are asking the Court to re-examine Wolf. Our interest is not necessarily the same as that of the defendant who was convicted in this case, and our claim is more broad than that, Mr. Justice Stewart.

And the Supreme Court did exactly what the ACLU as amicus asked for. The Court overruled Wolf. Footnote 3 of the majority opinion states:

Other issues have been raised on this appeal but, in the view we have taken of the case, they need not be decided. Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition, and did not insist that Wolf be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf.

Justice Harlan's dissent was incensed that the Court took this approach. He wrote:

[Obscenity] was the principal issue which was decided by the Ohio Supreme Court, which was tendered by appellant's Jurisdictional Statement, and which was briefed [Footnote 5] and argued [Footnote 6] in this Court. In this posture of things, I think it fair to say that five members of this Court have simply "reached out" to overrule Wolf.

[Footnote 5] The appellant's brief did not urge the overruling of Wolf. Indeed, it did not even cite the case. The brief of the appellee merely relied on Wolf in support of the State's contention that appellant's conviction was not vitiated by the admission in evidence of the fruits of the alleged unlawful search and seizure by the police. The brief of the American and Ohio Civil Liberties Unions, as amici, did, in one short concluding paragraph of its argument, "request" the Court to reexamine and overrule Wolf, but without argumentation. I quote in full this part of their brief:
"This case presents the issue of whether evidence obtained in an illegal search and seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has taken on this issue in Wolf v. Colorado, 338 U. S. 25. It is our purpose by this paragraph to respectfully request that this Court reexamine this issue and conclude that the ordered liberty concept guaranteed to persons by the due process clause of the Fourteenth Amendment necessarily requires that evidence illegally obtained in violation thereof, not be admissible in state criminal proceedings."

[Footnote 6] Counsel for appellant on oral argument, as in his brief, did not urge that Wolf be overruled. Indeed, when pressed by questioning from the bench whether he was not, in fact, urging us to overrule Wolf, counsel expressly disavowed any such purpose.

Whenever I hear outrage about overruling Roe in Dobbs, I think back to Mapp. There was no discussion of stare decisis at all, and the Court "reached out" to overrule a precedent that only an amicus asked to be overruled, and did so in a single paragraph without any meaningful analysis. But the Warren Court took the "right" approach to stare decisis. I suppose if you remember the 1960s, you weren't there.

More relevant to the present day, the holding of Mapp suggests that an Amicus who is invited to participate can ask the Supreme Court to overrule a precedent, and the issue is not waived. Indeed, the Amicus was allowed to make this request for the first time before the Supreme Court, even where it was not raised in the lower court litigation. The Supreme Court apparently did not see any problem with waiver or the party presentation rule here. If what the ACLU did was proper, it stands to reason that a similar request could be made by an amicus who is invited to participate in the lower courts, if only to put everyone on notice that a precedent is in doubt, and to preserve the issue for review by the Supreme Court.

The post Can an <i>Amicus</i> Ask the Supreme Court to Overrule a Case Where the Parties Don't? appeared first on Reason.com.

A recurring theme in Justice Barrett's opinions is making attorneys work for their case. She will not connect their dots. Unless they forcefully make each step in an argument, they have not met their burden. Brackeen v. Haaland demonstrates this fastidiousness.

And, we saw it once again in Moore v. United.

Congress's power to attribute the income of closely held corporations to their shareholders is a difficult question—and unfortunately, the parties barely addressed it. Without focused briefing on the attribution question, I would not resolve it. Subpart F and the MRT may or may not be constitutional, nonarbitrary attributions of closely held foreign corporations' income to their shareholders. In this litigation, however, the Moores have conceded that subpart F is constitutional. Tr. of Oral Arg. 9. And I agree with theCourt that subpart F is not meaningfully different from the MRT in how it attributes corporate income to shareholders. Ante, at 20–21. Taxpayers generally bear the burden to show they are entitled to a refund. United States v. Janis, 428 U. S. 433, 440 (1976); see also Haaland v. Brackeen, 599 S. 255, 277–278 (2023) (burden to show unconstitutionality). Given the Moores' concession, they have not met that burden here. For that reason, I concur in the Court's judgment affirming the judgment below.

In candor, I have not carefully reviewed the record, so I do not know what "barely addressed" means here. But whatever it was, it was not enough for Professor Barrett.

BTW, the title has nothing to do with this post, but I liked the pun. I'm sure some law student will find it a useful title for a student note. In the spirit of Brian Frye, you're welcome to use it as you wish!

The post <i>Moore</i> Money, More Problems appeared first on Reason.com.

Nearly twelve years later, I still haven't gotten over NFIB v. Sebelius (2012). No, it is not because of Chief Justice Roberts's "saving construction," which fused together the individual mandate and the penalty provision to save the law.  Nor is it the rewriting of ACA to allow states to opt out of the Medicaid expansion. I've come to terms with both of those elements of the Court's decision.

No, the part I cannot get over is the Chief Justice's discussion of whether the ACA's penalty-tax is a "direct" or "indirect" tax. Roberts mustered four muddled paragraphs that explains how difficult and unclear this area is, and he ultimately shrugs his shoulders. Roberts closes:

The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

But if it is not a direct tax, what is it? Roberts does not tell us. He simply moves onto the saving construction. The joint dissent called out the Chief's failure to decide a critical issue:

Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government's opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners' Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.

Roberts is a brilliant lawyer. But here, the emperor had no clothes.

Reading Moore v. United States gave me NFIB PTSD. Each of the three opinions cited Roberts's incomplete analysis of the taxing power. And I shuddered each time.

The post <i>NFIB</i> PTSD appeared first on Reason.com.

In Moore v. United States, each of the separate opinions contended that the 16th Amendment (ratified in 1913) "overruled" Pollock v. Farmers' Loan & Trust Co. (1895). For example, Justice Kavanaugh's majority opinions phrased it this way:

This Court's 1895 decision in Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601, later proscribed unapportioned federal taxation of income from property, and therefore overruled that holding of Hubbard. See supra, at 7. But in 1913, the Sixteenth Amendment then overruled that aspect of Pollock.

From Justice Barrett's concurrence:

The Sixteenth Amendment overruled Pollock's second holding, stating that "Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment." But it did not overrule Pollock's first holding that taxes on personal property are direct taxes.

From Justice Thomas's dissent:

The Sixteenth Amendment was ratified to overrule that holding from Pollock, and it can therefore be understood only in the context of Pollock and the preceding history.

Justice Jackson frames the issues slightly differently:

In 1913, the People's representatives responded, using their power to overturn Pollock via constitutional amendment. The Sixteenth Amendment restored to Congress the power to tax "incomes, from whatever source derived, without apportionment."

Here, Jackson suggests that the original Constitution includes this power, and that Pollock erroneously deprived Congress of this authority. The Amendment was like hitting CTRL-Z on the Supreme Court. (Would she see the 11th Amendment and Chisholm v. Georgia in the same fashion?) To make the point, Jackson cites one of Justice Harlan's lesser-known, but equally important dissents:

I have no doubt that future Congresses will pass, and future Presidents will sign, taxes that outrage one group or another—taxes that strike some as demanding too much, others as asking too little. There may even be impositions that, as a matter of policy, all can agree are wrongheaded. However, Pollock teaches us that this Court's role in such disputes should be limited. "[T]he remedy for such abusesis to be found at the ballot-box, and in a wholesome public opinion which the representatives of the people will not long, if at all, disregard, and not in the disregard by the judiciary of powers that have been committed to another branch of the government." Pollock, 158 U. S., at 680 (Harlan, J., dissenting).

Everyone knows Lochner, Plessy, and the Civil Rights Cases. But most students do not know Pollock.

I think it is a mistake to view a constitutional amendment as overruling a case in the same fashion that the Supreme Court can overrule a case. A constitutional amendment changes the underlying organic law. The Sixteenth Amendment did not state that Pollock was wrong–although many supporters likely held that view. Instead the Sixteenth Amendment granted Congress new powers, which it could then exercise. Analogizing a constitutional amendment to a judicial decision, regrettably, breeds the cult of judicial supremacy. It presumes that the Supreme Court and the Article V process employ similar means: both institutions can change the Constitution by overruling some precedent.

I would make the same argument when Congress passes a new statute in response to a Supreme Court decision. And I have some authority here. In the spring of 2009, Justice Alito visited George Mason Law school. About two years earlier, the Court had decided Ledbetter v. Goodyear Tire and Rubber Company (2007). Justice Alito's majority opinion held that Ledbetter's claim was barred by the statute of limitations. Justice Ginsburg's dissent famously called on Congress to amend Title VII. And the first bill that President Obama signed into law was the Lilly Ledbetter Fair Pay Act of 2009. (I've heard that Justice Ginsburg had a signed copy of that bill on her chamber walls.)

Someone asked Justice Alito how he felt about Congress overruling his decision. Alito replied, as I wrote above, that Congress does not "overrule" a decision. Instead, Congress changes the law. And going forward, the courts have to apply that new law. I agree with Alito in 2009.

The post The Sixteenth Amendment did not "Overrule" <i>Pollock</i> appeared first on Reason.com.

I have been a member of the Supreme Court Historical Society for more than a decade. I very much enjoy reading the Journal of Supreme Court History. Also, when I am in town, I try to attend various events, especially the re-enactment of famous cases. One of my favorites was seeing Justice Ginsburg preside over a re-enactment of Muller v. Oregon. I nearly burst out laughing when she cited favorably the precedent of Lochner v. New York.

Every year, the Society holds an annual meeting at the Supreme Court. (During the pandemic, the meeting was held online). I attended the recent meeting on June 3, 2024. The session began with a tour of the Court, followed by a screening of Holmes—The Film. (The Society recorded the one-man show about Justice Oliver Wendell Holmes preparing for his 90th Birthday address). The society then held a business meeting, where we voted on a new slate of officers and a few other matters. The meeting was open to the press. (Josh Gerstein from Politico was taking notes!) After the meeting, there was a cocktail reception on the ground floor. The reception and the dinner were not open to the press, but anyone who purchased a ticket could attend. This is not a secret cabal.

As is the custom, there is usually a Justice present at the Society's meetings. Justice Alito was there at the cocktail hour. You can imagine how these sorts of events proceed. There are a throng of people who wish to meet the Justice. So people sort of mill around, and wait for an opening. They exchange a few words with the Justice. And when the time is right, they move on. Justice Alito was very gracious, and spoke with many people that evening.

After the cocktail hour concluded, we went upstairs to the great hall for a banquet dinner. Chief Justice Roberts was at one table, Justice Alito at a second table, and Justice Jackson at a third. Again, people would often go up to the Justices, introduce themselves, say a few things, and move on. This sort of exchange is quite common at banquet dinners. Roberts, Jackson, and Alito, all interacted with the guests in attendance.

There was a tasty dinner (I had the fish). Chief Justice Roberts gave the traditional toast ("To the President of the United States"). And there was a delicious dessert. Yes, I took a picture.

That's it! It was a fun evening, and I was quite glad to attend the Society's 50th Anniversary dinner.

But not everyone was there to have fun. Lauren Windsor, who identifies herself as a "Journalist," secretly recorded her conversations with Chief Justice Roberts and Justice Alito. You can listen to them here.

EXCLUSIVE UNDERCOVER AUDIO:
Sam Alito x John Roberts x The Undercurrent ????

1/ Justice Alito admits lack of impartiality with the Left, says: "One side or the other is going to win." pic.twitter.com/b5nmxToZ9z

— Lauren Windsor (@lawindsor) June 10, 2024

Ms. Windsor gave the exclusive to Rolling Stone, which describes the gathering as a "function that is known to right-wing activists as an opportunity to buttonhole Supreme Court justices." As I looked around the room, I did not see "right-wing activists." Indeed, I counted only a handful of Federalist Society members that I recognized in a gathering of about 200 guests. Carter Phillips, who does not wear a MAGA hat, was just elected as President of the society. These were people who were interested in the Supreme Court and its history, not ideologues.

I listened to the recording. Justice Alito did not say anything inappropriate. Indeed, I suspect he was mostly being polite and trying to make conversation with someone who was (pretending to be) genuinely interested in talking about our nation. Chief Justice Roberts said about what you would expect him to say–that elected officials and not judges should be in charge of making policy. There is no news here, other than the fact that the Justices are being privately recorded at the Supreme Court.

Ms. Windsor did not record any conversation with Justice Jackson, who was also in attendance. Maybe she could have asked about the Beyonce concert? Again, no one has ever protested outside of Justice Jackson's home. She is safe.

While officers will screen for recording devices when the Court is in session, there were no such checks for the cocktail hour. And who would even think that was necessary? I fear that Justice Alito will no longer participate in Society events. Why would he risk having his private conversations being blasted on the internet? More and more, Justice Alito can only whisper his thoughts in the recesses of his home.

Update: I agree entirely with Jim Duff:

James Duff, the executive director of the Supreme Court Historical Society, lamented the recordings in a statement.

"We condemn the surreptitious recording of Justices at the event, which is inconsistent with the entire spirit of the evening," Duff said.

In his statement, Duff, the society's executive director, said: "Attendees are advised that discussion of current cases, cases decided by current sitting Justices, or a Justice's jurisprudence is strictly prohibited and may result in forfeiture of membership in the Society."

 

The post Chief Justice Roberts and Justice Alito Secretly Recorded at the Supreme Court Historical Society appeared first on Reason.com.

6/10/1916: Justice Charles Evans Hughes resigns.

The post Today in Supreme Court History: June 10, 1916 appeared first on Reason.com.

Justice Jackson's 2023 financial disclosure report revealed that she received four concert tickets from Beyoncé Knowles-Carter, valuing about $3,700. Patricia McCabe, the Supreme Court's Public Information Officer, released a statement: "Justice Jackson is 'Crazy in Love' with Beyoncé's music. Who isn't?" (For those outside the hive, Beyoncé and her now-husband, Shawn Carter, a/k/a Jay-Z, recorded a hit song in 2003 titled Crazy in Love.) I am fairly confident that McCabe's comment came directly from Justice Jackson. I can't fathom a restrained public affairs official would volunteer this line on her own.

Since the press was too star-struck to provide any scrutiny for this gift–to the left, to the left, as usual–I will.

First, how is it appropriate for the Supreme Court's press office to promote a Beyoncé song? Look at it this way: The celebrity gives free tickets to a Justice, and the Justice responds by highlighting how awesome Beyoncé's music is through the press office. Does no one see the problem? Can you fathom what would happen if Clarence Thomas issued a statement: "Who isn't in love with Harlan Crow's yacht"? Or what if Lee Greenwood gave Justice Alito concert tickets, and PIO issued this statement: "God bless the U.S.A. Who isn't Proud to be an American?" (Put that on a flag!) Again, there was a serious lapse in judgment here. But crickets from all the usual critics.

Second, it is true that millions of Americans love Beyoncé. And I'm sure there were many people inside the Beltway who would have loved free tickets to her concert at FedEx field. But Beyoncé does not hand out free tickets to her fans. How is it that KBJ scored four tickets? Did Jackson have some sort of pre-existing friendship with Beyoncé?  Did Jackson have some sort of pre-existing friendship with Oprah Winfrey, who gave her a $1,200 congratulatory floral arrangement in 2022? Why does this matter? When a real friend provides a gift, the understanding is that the gift is given due to some sort of genuine affection or prior relationship. But when a stranger, or a new friend provides a gift, the understanding is that the gift is to curry influence. When you become a Supreme Court Justice, you get lots of new "friends." There is no such thing as a free lunch. Assuming Jackson had no prior relationship with Beyoncé or Oprah, it is a fair guess that the floral arrangement and concert tickets were designed to have some influence on the Justice. And it worked–she promoted a Beyoncé song on Supreme Court stationary! What an advertisement.

Third, these sort of gifts also perform a signaling function. Rule like Justice Jackson, and you will be feted by celebrities. Rule like Justice Kavanaugh and you can buy your tickets on StubHub. And what if Justice Jackson, like her namesake Robert H. Jackson, drifts to the right over her tenure? Would she still be invited to attend elite concerts? You know the answer is no. Poor Justice Kennedy gave the left Casey, Romer, Lawrence, Windsor, Whoel Woman's Health, Obergefell, and so much more, but his "legacy" was tarnished by Trump v. Hawaii. And if I had to guess, these seats were in a private suite. The average ticket price was about $290, with the highest average ticket price was $651. What other celebrities were hanging out in that suite? The face-value for a ticket in these suites is misleading–the actual value is priceless. This gift, and other gifts like it, have the effect of keeping a Justice in place. The rules fully permit these gifts, so long as they are disclosed. But the impact of the gift is unmistakeable.

Now I do not think Jackson's jurisprudence would actually be affected by this gift, or others. I've been pleasantly surprised by some of her opinions so far. She has an independent streak that is somewhat unpredictable. But I can say the same about Justice Thomas's gifts. For all the outrage about Justice Thomas, no one doubts that he and Harlan Crow are genuine friends. They met nearly three decades ago, and have forged a close bond. Whatever generosity that Crow shares with Thomas is based on a kinship and connection that has been developed for years. I know that critics do not believe this, but it is true: Crow's trips for Thomas would in no way affect his jurisprudence. I've heard stories about how not even Justice Thomas's clerks can persuade him to change his mind. The man is a rock.

At bottom, Justice Jackson is praised for accepting largesse from the right kind of billionaire, while Justice Thomas is excoriated for accepting largesse from the wrong kind of billionaire.

The post KBJ and Beyoncé appeared first on Reason.com.

6/9/1970: Justice Harry Blackmun (no relation) takes oath.

The post Today in Supreme Court History: June 9, 1970 appeared first on Reason.com.

6/8/1925: Gitlow v. People of the State of New York decided.

The post Today in Supreme Court History: June 8, 1925 appeared first on Reason.com.

One of my proposals for bilateral judicial reform would be to cap advances on book royalties for the Justices. I've written at length about the $1.2 million book advance for Justice Barrett in 2021 (here, here, and here). Now, the annual disclosures reveal the book deals for other Justices in 2023.

Yesterday, Axios reported that Justice Kavanaugh is writing a memoir. This was a well-timed scoop, given that today, Kavanaugh disclosed that his advance is $340,000. About a third of what ACB earned. Yikes. But still more than the other Trump nominee. Justice Gorsuch received an advance of $250,000 for his latest book with Janie Nitze, Over Ruled.

Justice Jackson, whose book deal was announced a few months ago, disclosed an advance of $893,750. I don't know if this is the full amount, or part of the advance. In any event, still a drop from Barrett peak in 2021. Maybe the market dried up for books about Justices?

For what it's worth, Justice Jackson received free tickets from Beyonce, but Justice Kavanaugh had to pay for his own Taylor Swift tickets.

Each year, Gorsuch receives a few hundred dollars in royalties from Princeton University Press for his 2006 book on assisted suicide and euthanasia. But as best as I can tell, Gorsuch has not received any royalties from his first book, A Republic, beyond the $250,000 advance. It's possible that all future royalties are assigned to his co-authors. Or, I think it is more likely that he hasn't earned back the $250,000 advance from 2021. In any event, Harper Collins has given Justice Gorsuch another $250,000 advance, which he may not earn back. People and groups are unlikely to buy his old book when the new book is on the market.

As I wrote in Bilateral Judicial Reform, I am skeptical any of these Justices will earn back these prodigious advances. These are interest free loans that are perfectly valid under the rules.

There are many headlines about Justice Thomas receiving valuable gifts. The insinuation is that he is profiting off his position. Much the same can be said about a Justice who writes a book. These are not normal business decisions. The Justices will only be able to make back these advances if they hold many events, where groups will feel at least some pressure to buy the books. And there are all sorts of conflicts there. I think the publishers are unlikely to ever get back the advance, but see some prestige by having a Justice on their label, which helps with other aspects of business.

The post Book Advances for the Justices in 2023 appeared first on Reason.com.

On February 8, the Supreme Court heard oral argument in Trump v. Anderson. Two days later, I debated Will Baude and Mike Paulsen on Section 3 at the 2024 Originalism Works in Progress Conference. I blogged about the event at the time, and shared my slides.

I am happy to share the video, which was posted in April, but I only recently learned of. My opening remarks are from about the 10 minute mark till the 20 minute mark. Even if you are not persuaded, you will be entertained. You might even get Tillmanized.

Given how the actual arguments went, and how the case came out, my exchange with Baude and Paulsen was probably the most meaningful discourse on this topic we have seen, and will be for some time.

The post Baude & Paulsen v. Blackman on Section 3 appeared first on Reason.com.

6/7/1965: Griswold v. Connecticut is decided.

 

The post Today in Supreme Court History: June 7, 1965 appeared first on Reason.com.

5/31/1860: Justice Peter Daniel's death.

 

The post Today in Supreme Court History: May 31, 1860 appeared first on Reason.com.

The Supreme Court's unanimous decision in NRA v. Vullo was not surprising. It is also not surprising that Chief Justice Roberts assigned the case to Justice Sotomayor. The Chief loves optics, and nothing screams bipartisanship more than an Obama nominee ruling in favor of the NRA against her former home state. Indeed, if I had to guess, this was not Justice Sotomayor's preferred assignment–she probably would have rather written an ERISA opinion. But there was one feature of the majority decision that likely gave Justice Sotomayor some delayed satisfaction.

Flash back to Trump v. Hawaii. One of the main issues in that case was to what extent should the courts consider tweets from candidate- and President-Trump that related to the travel ban. Justice Sotomayor's dissent, which I heard her read in Court, focused at great length on those social media postings. She could not understand how the majority could turn a blind eye to those tweets. Chief Justice Roberts, as he often does, simply made up a test that allowed him to acknowledge the tweets, but find they were not dispositive. But he overruled Korematsu, so just look the other way!

Fast forward to NRA v. Vullo, another First Amendment case with allegations of improper motivation. Maria Vullo, the only defendant left standing, was the former superintendent of the New York Department of Financial Services (DFS). Former-Governor Andrew Cuomo was also sued, and was later dismissed from the case. But you wouldn't it from Justice Sotomayor's opinion. She references Cuomo over and over again, including his social media postings.

On February 27, Vullo met with senior executives at Lloyd's. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo "presented [their] views on guncontrol and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA." ….

The same day that DFS issued the Guidance Letters, Vullo and Governor Cuomo issued a joint press release that echoed many of the letters' statements. The press release included a quote from Vullo "'urg[ing] all insurance companies and banks doing business in New York'" to join those"'that have already discontinued their arrangements with the NRA.'" ….

The press release cited Chubb's decision to stop underwriting Carry Guard as an example to emulate. The next day, Cuomo tweeted: "'The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.'" ….

A follow-on tweet from Cuomo reaffirmed the message: Businesses in New York should "'consider their reputations'" and "'revisit any ties they have to the NRA,'" which he called "'an extremist organization.'" ….

Vullo's boss, Governor Cuomo, also urged businesses to disassociate with the NRA to put the organization "into financial jeopardy" and "shut them down." App. 21 (Aug. 3, 2018, tweet). …

Why talk so much about Cuomo when he wasn't even a party? Weren't Vullo's actions sufficient to clear the Iqbal bar? I had this sinking feeling that Justice Sotomayor was laying the groundwork for some future Trump litigation, where the chief executive's social media posts can be used to taint the action taken by some cabinet member. Again, it is almost a given that people would allege that President Trump and his administration will engage in some sort of retaliatory or coercive actions against protected speech. Now, there is a clear precedent on point. The Vullo decision was unanimous, so I'm sure the Fourth, Ninth, and D.C. Circuits will cite it with glee. (Remember, if Trump wins, everyone switches sides for forum shopping.)

I, for one, was on the receiving end of such a phone call from Governor Cuomo. To Justice Jackson's dissent, I experienced first-hand the subtle "line from persuasion to coercion."

The post <i>NRA v. Vullo</i> and <i>Trump v. Hawaii</i> appeared first on Reason.com.

5/30/1865: Justice John Catron dies.

 

The post Today in Supreme Court History: May 30, 1865 appeared first on Reason.com.

Justice Alito wrote a letter to Senators Durbin and Whitehouse in response to their calls for recusal. He was under no obligation to respond, and I have no doubt that his response will not placate critics. But his letter makes several important points, and also provides insights into his thinking about the flag flap.

First, the Supreme Court's Code of Conduct provides that a Justice should recuse "where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties." What does "unbiased and reasonable mean"? Justice Alito provides his own gloss on that phrase.  Here, Justice Alito was "confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal." In Alito's view, "unbiased and reasonable" does not include a person who is "motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases." The people who are calling for Justice Alito to recuse fall squarely in this category. The primary driver behind the "Stop the Steal" narrative is to force Justice Alito to recuse in all Trump-related cases. These voices were silent about Justice Ginsburg's comments about President Trump, and her dissent collar after election day. (Apologies do not undo an appearance of partiality). These voices, Alito implies, are not "unbiased and reasonable."

Second, Justice Alito and Mrs. Alito had no idea that either flag was associated with the "Stop the Steal" movement.

My wife's reasons for flying the flag are not relevant for present purposes, but I note that she was greatly distressed at the time due, in large part, to a very nasty neighborhood dispute in which I had no involvement.

…

I was not familiar with the "Appeal to Heaven" flag when my wife flew it. She may have mentioned that it dates back to the American Revolution, and I assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the "Stop the Steal Movement," and neither was my wife. She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.

I don't care how many tweets Jodi Kantor finds, this narrative–the core of the entire story–will never stick.

Third, Justice Alito explains that his wife retains the full panoply of free speech rights:

My wife is a private citizen, and she possesses the same First Amendment rights as every other American. She makes her own decisions, and I have always respected her right to do so. . . .

As I said in reference to the other flag event, my wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so.

The mere fact that Mrs. Alito says something does not impute any improper motivations to her husband. Thankfully, coverture has been abolished, and spouses are allowed to have their own legal identities.

Fourth, we learn that Justice Alito had nothing to do with either flag. Indeed, Justice Alito asked Mrs. Alito to take down the upside-down flag, and she refused:

As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upsidedown flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.

I'm sure some readers would respond, "You could divorce your wife." Indeed, Nancy Gartner, a former federal judge, said as much to the Washington Post.

If her husband had tried to put up a sign or flag at their house in response to something a neighbor displayed on their block that was inconsistent with or critical of his civil liberties work, Gertner added: "One of two things would have happened: A) a divorce and B) surely recusal."

I think this statement says far more of how Gertner views the institution of marriage than how she views the code of ethics. Mrs. Alito's neighborly spat with her neighbors was her own business. Justice Alito asked her to taken down the flags. She refused. Even if Mrs. Alito was trying to convey some sort of political message about the election, Justice Alito distanced himself from it. Knowing these facts now, a reasonable person should see no justification for recusal–of course, they may insist that Justice Alito is lying, and that he personally was aware of the symbol's meaning and endorsed it. But these views are not reasonable, and not unbiased.

Fifth, Justice Alito spoke to the sacrifices that his wife has had to make.

She has made many sacrifices to accommodate my service on the Supreme Court, including the insult of having to endure numerous, loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.

The protests will continue. These Justices and their families cannot know peace and quiet. Indeed, their refuge on the Jersey Shore has also been ruined.

Our vacation home was purchased with money she inherited from her parents and is titled in her name. It is a place, away from Washington, where she should be able to relax.

Regrettably, the spouses of all conservative Justices have to make these sacrifices. I can't fathom why anyone would want to accept this job–why put your family through this hell. And to be clear, spouses of liberal Justices will be toasted on the town. Patrick Jackson has nothing to worry about. There were never any call for RBG's recusal based on Marty Ginsburg's practice at Fried Frank, which appeared before the Supreme Court.

Justice Alito will not recuse, so everyone should move on. But they won't.

The post Justice Alito's Letter About The Flag Flap appeared first on Reason.com.

5/19/1921: Chief Justice Edward Douglass White dies.

 

The post Today in Supreme Court History: May 19, 1921 appeared first on Reason.com.

5/18/1860: Abraham Lincoln wins the Republican Party presidential nomination.

5/18/1896: Plessy v. Ferguson decided.

The post Today in Supreme Court History: May 18, 1860 appeared first on Reason.com.

It is often said that there is a majority of originalists on the Court, but I think that generalization isn't too helpful. Rather, different members of the Court approach originalism in very different ways. CFPB v. CFSAA teaches us a lot about how the Justices approach constitutional law. (You can download an edited version of the case here.)

The top-line split was 7-2. Only Justices Alito and Gorsuch found that the funding structure of the CFPB was unconstitutional. And on paper, a least, all seven members of the majority joined a single opinion. Justice Thomas's majority opinion was textualist: what is the original public meaning of the word "appropriation" in the Constitution?  Justice Kagan wrote a concurrence joined by Justices Sotomayor, Kavanaugh, and Barrett, that found support for the CFPB's funding structure in post-enactment practice. Justice Jackson wrote a short, solo concurrence that preached judicial restraint, citing an unlikely troika: McCulloch v. Maryland, Nebbia v. New York, and King v. Burwell.

What happened here? First, a four-member concurrence is somewhat unusual. Indeed, I suspect that the Kagan position likely had the support of Chief Justice Roberts and Justice Jackson. But if either or both of those justices joined Justice Kagan's concurrence, it would have had five or six votes, and would effectively become another majority opinion. Indeed, I agree with Mike Dorf that Thomas would not join Kagan's concurrence. In this event, the Kagan opinion would have six votes, and the Thomas opinion would have seven votes. What is the majority then?

It is also possible that the majority could have fractured: the Thomas opinion would have only been joined by Roberts, Kavanaugh, and Barrett, and the Kagan opinion would be joined by Sotomayor and Jackson. 4-3-2! What a mess! I think Chief Justice Roberts and Justice Jackson took one for the team, and didn't join the Kagan opinion they agreed with. Moreover, the optics were quite good with Justice Thomas, the most conservative member of the Court, writing a majority opinion over an Alito/Gorsuch dissent. Thomas will get absolutely zero credit for being true to his principles, as he sees them, but that's how it goes. Has anyone checked the fringes on his flag????

A few points to highlight.

First, Justice Thomas, as well as Justice Kavanaugh and Barrett, re-upped the professorial theory demand from Brackeen: unless you have a theory to explain how you case meshes with all other precedents, go away:

The associations offer no defensible argument that the Appropriations Clause requires more than a law that authorizes the disbursement of specified funds for identified purposes. Without such a theory, the associations' Appropriations Clause challenge must fail. See Haaland v. Brackeen, 599 U. S. 255, 277–278 (2023).

During oral argument, SG Prelogar closed her opening statement with this point: "This Court should reject Respondents' attempt to gerrymander a rule to fit the CFPB alone without providing a coherent theory about how to interpret and apply the Appropriations Clause." And Justice Barrett seemed frustrated during her colloquy with counsel for Petitioner, Noel Francisco, about the absence of a theory. If I had to guess, Justice Barrett asked to include this "theory" line into the majority opinion.

Second, Justice Kagan leaned hard into Federalist 37 and liquidation.

I write separately to note that the same would have been true at any other time in our Nation's history. "'Long settled and established practice' may have 'great weight'" in interpreting constitutional provisions about the operation of government. Chiafalo v. Washington (2020) (quoting The Pocket Veto Case (1929)); see also The Federalist No. 37. And here just such a tradition supports everything the Court says about the Appropriations Clause's meaning.

Justice Kavanaugh mentioned this paper during oral argument in Trump v. Anderson (which the Tillman-Blackman brief flagged).

Liquidation is an important principle, but only where it is consistent with original meaning. Justices Kavanaugh and Barrett could have declined to join the Kagan opinion, given that the original meaning was (at least in Thomas's view) dispositive. But they branched forward from 1789 to the 20th century practice. Why? I view Justice Kavanaugh, and to a somewhat lesser extent Justice Barrett, as traditionalists first, and originalists second. If something has been done for a long time, that is a good enough reason to keep doing it.

To quote Topol in Fiddler on the Roof, "And how do we keep our balance? That I can tell you in one word… tradition!" If Justice Breyer had entrance music, this would be it.

Third, Justice Jackson correctly cited one of the most misinterpreted lines in Supreme Court history:

When the Constitution's text does not provide a limit to a coordinate branch's power, we should not lightly assume that Article III implicitly directs the Judiciary to find one. The Constitution was "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted).

This passage is routinely cited to support the notion of living constitutionalism: for the Constitution to "endure for ages to come" the courts must "adapt" the Constitution "to the various crises of human affairs." Wrong! But this reading turns Marshall on his head. The great Chief Justice explained why courts must defer to Congress's powers; he was not aggrandizing the powers of the Court to rewrite the Constitution.  That shift came during the New Deal. Marshall was articulating a maxim of judicial restraint (uphold the Bank of the United States), and did not preach judicial activism (expand the Commerce Clause). Indeed, McCulloch and Gibbons v. Ogden did not attempt to expand the meaning of "commerce." And did you notice Jackson's "emphasis deleted" parenthetical? The emphasis in the original is on crises. I've never seen anyone remove the emphasis there. Not exactly sure why, but there was some deliberate thought.

During oral argument in this case, Justice Jackson fixated on the absence of any "textual hook." Noel Francisco insisted that his position was "inferred from the text and structure of the Constitution construed in light of its overriding purposes." Jackson's concurrence rejects that claim.

Even where I do not agree with Justice Jackson, she continues to impress, and pleasantly surprise me with her thoughtfulness on these issues. She is not a reactionary. When she said she was an originalist, she meant it!

Third, Justice Alito's dissent repeats the claim that the CFPB's funding structure is "unprecedented":

To achieve that end, the CFPB was given an unprecedented way of obtaining funds that was expressly designed to make it totally "independent of theCongressional appropriations process." . . .

In its briefing and at argument, theGovernment admitted that an utterly unprecedented funding scheme would raise a serious constitutional problem. Reply Brief 18; Tr. of Oral Arg. 11, 26. The Government therefore attempts to show that there is ample precedent for the CFPB scheme, but that effort fails. . . .

For these reasons, it is undeniable that the combination of features in the CFPB funding scheme is unprecedented. . .

In sum, the CFPB's unprecedented combination of funding features affords it the very kind of financial independence that the Appropriations Clause was designed to prevent. . . .

As we said in Seila Law, "'[p]erhaps the most telling indication of [a] severe constitutional problem' with an executive entity 'is [a] lack of historical precedent' to support it." 591 U. S., at 220 (quoting Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010)). And the Government agrees with this principle. In its briefing and at argument, theGovernment admitted that an utterly unprecedented funding scheme would raise a serious constitutional problem. Reply Brief 18; Tr. of Oral Arg. 11, 26. The Government therefore attempts to show that there is ample precedent for the CFPB scheme, but that effort fails.

Of course, the "novelty" argument was at the heart of NFIB v. Sebelius. The law was, as the book title proclaimed, UNPRECEDENTED! I am doubtful that Justice Barrett would have joined United States v. Lopez, given the lack of a universal theory about the commerce clause. I wonder if she would have joined the majority in NFIB v. Sebelius, given the argument turned largely on novelty? Would she have rejected the argument that this statute was unconstitutional, and faulted Randy Barnett and others for not coming up with a coherent theory? In hindsight, we know that then-Judge Kavanaugh avoided the constitutional issue with a holding based on the taxing power. And then-Professor Barrett wrote that "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute." But what would she have done in the robe?

The Kagan concurrence scoffs at the novelty claim:

The CFPB's funding scheme, if transplanted back to the late-18th century, would have fit right in.

Alexander Hamilton and Richard Cordray would have been BFF, right? Speaking of judicial restraint and the ten-dollar-founding-father, if someone called Elizabeth Schuyler Hamilton the c-word, there would have been a duel in New Jersey, where everything was legal.

***

One last Fiddler on the Roof reference. If you ever want a visualization of the Lemon test, think of the dream sequence:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.

The post <I>CFPB v. CFSAA</i>: Originalists v. Traditionalists appeared first on Reason.com.

Following up on the fringe theory about Justice Alito's flag, Shannon Bream of Fox News has these tweets:

I spoke directly with Justice #Alito about the flag story in the NYT. In addition to what's in the story, he told me a neighbor on their street had a "F— Trump" sign that was within 50 feet of where children await the school bus in Jan 21. Mrs. Alito brought this up with the neighbor. 1/

According to Justice Alito, things escalated and the neighbor put up a sign personally addressing Mrs. Alito and blaming her for the Jan 6th attacks. 2/

Justice Alito says he and his wife were walking in the neighborhood and there were words between Mrs. Alito and a male at the home with the sign. Alito says the man engaged in vulgar language, "including the c-word". 3/

Following that exchange, Mrs. Alito was distraught and hung the flag upside down "for a short time". Justice Alito says some neighbors on his street are "very political" and acknowledges it was a very heated time in January 2021. 4/4

Unlike our star spangled banner, this story did not even give proof through one night.

Fun fact: Chief Justice Taney and Francis Scott Key were dear friends. Indeed, Taney married Key's sister. Though this is probably more fodder for people who want to cancel the Star Spangled Banner.

The post Rhymes with Punt appeared first on Reason.com.

5/17/1954: Brown v. Board of Education and Bolling v. Sharpe are decided.

 

The post Today in Supreme Court History: May 17, 1954 appeared first on Reason.com.