I have finished editing CFPB v. CFSAA for the 2024 Barnett-Blackman supplement. I compressed about 60 pages down to 17 pages. You can download it here.

I will have more to say about this case in another post.

Politico (Blake Jones) reported yesterday:

California State University placed Sonoma State campus President Mike Lee on leave Wednesday after he agreed to protesters' demands to involve them in university decision-making and pursue divestment from Israel.

Lee sent a campus-wide memo Tuesday indicating that he had made several concessions to occupants of a pro-Palestinian encampment on campus. The memo was sent "without the appropriate approvals," CSU Chancellor Mildred García said in a statement, adding that she and the 23-campus CSU system's board are "actively reviewing the matter."

"For now, because of this insubordination and the consequences it has brought upon the system, President Lee has been placed on administrative leave," García said….

Lee told the campus that he would initiate an academic boycott of Israel, in which links to study abroad programs in the country would be removed from university pamphlets, among other measures….

During Justice Kavanaugh's confirmation hearing, one of his former clerks was seated behind him. And, on camera, she made an "okay" symbol with her hands. Then came the outrage. Critics of Justice Kavanaugh charged that the "okay" gesture was actually a symbol for white power. This suggestion was preposterous. The former clerk was Mexican on her mother's side, and Jewish on her father's side. She had never even heard of this apparent hate symbol–nor had I. But that didn't stop conspiracy theorists on the left from attacking then-Judge Kavanaugh.

That background brings me to the latest conspiracy theory involving a Supreme Court Justice. Jodi Kantor of the New York Times reports that outside the Alito household, the American flag was flown upside down in late-January 2021. (Not that it matters, by that time, the outcome of the election was already settled.) The headline blares, "At Justice Alito's House, a 'Stop the Steal' Symbol on Display."

What happened?

Around the 2020 election, a family on the block displayed an anti-Trump sign with an expletive. It apparently offended Mrs. Alito and led to an escalating clash between her and the family, according to interviews.

Justice Alito, contrary to his usual practice, actually commented on the story:

"I had no involvement whatsoever in the flying of the flag," Justice Alito said in an emailed statement to The Times. "It was briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs."

The story goes on to explain how flying the American flag upside down was some sort of message for "Stop the Steal." What is the proof? Random social media posts!

A flood of social media posts exhorted Trump supporters to flip over their flags or purchase new ones to display upside down.

"If Jan. 6 rolls around and Biden is confirmed by the Electoral College our nation is in distress!!" a poster wrote on Patriots.win, a forum for Trump supporters, garnering over a thousand "up" votes. "If you cannot go to the DC rally then you must do your duty and show your support for our president by flying the flag upside down!!!!"

Well if it is on Patriots.win, that must make it legit!

Anyone who has clerked in federal district court is familiar with the fringes on the flag. The so-called sovereign citizens insist that a flag with fringes proves that a court is in fact a military court. (In one of the cases I worked on, a person brought a federal suit to block enforcement of a parking ticket on the grounds that he was a sovereign citizen and had ambassadorial immunity.) It is a fringe theory, figuratively and literally.

Is there any evidence, whatsoever, that Justice Alito or Martha-Ann Alito, intended to fly the flag upside-down as some sort of secret signal to overturn the election? Of course not. My guess? Mrs. Alito used the upside-down flag as a symbol of distress to clap back at her neighbors. Justice Alito indicated that the attacks were "personal," and his wife felt helpless to respond. In any other context, this sort of feud would, at worst, start a flame war on Facebook. But when you're married to a Supreme Court justice, the flap makes the New York Times three years later.

Justice Alito's wife, and the other family members of the Court's conservatives, can never find peace:

The half-dozen neighbors who saw the flag, or knew of it, requested anonymity because they said they did not want to add to the contentiousness on the block and feared reprisal. Last Saturday, May 11, protesters returned to the street, waving flags of their own ("Don't Tread on My Uterus") and using a megaphone to broadcast expletives at Justice Alito, who was in Ohio giving a commencement address. Mrs. Alito appeared in a window, complaining to the Supreme Court security detail outside.

She is even being monitored in her window. Why on earth would anyone want this job? Or to be more precise, why would any conservative want this job?

I could waste my time by digging up quotes from Justice Ginsburg about President Trump, but you know the double standard.

Yesterday, the Fifth Circuit heard oral argument in the so-called Buoys Case. Texas placed these floating structures in a portion of the Rio Grande river. The closest federal court to the buoys was the Del Rio Division of the Western District of Texas. But the United States filed suit more than two-hundred miles away in Austin. Why? I'm sure defenders would argue that the suit was brought in the state capital, the seat of government. But this decision has consequences. At the time, the Del Rio Division had one judge, an appointee of President George W. Bush. (A recent Biden nominee was confirmed to that division, after some controversy.) But in the Austin Division, DOJ had a much more favorable bench.

This issue came up during the en banc oral arguments, as noted by Bloomberg Law. I've transcribed the audio here, but the recording quality is dreadful. (I hope the Fifth Circuit can fix their tech.) Around the 8 minute mark, Judge Ho observed that the "events of this case took place in Del Rio, not Austin." Lanora Pettit, the Texas Deputy SG, acknowledged that the events took place in Eagle's Pass, which is "down river" from Del Rio. Ho continued that this was the United State's choice, and the federal government was the "master of the complaint."

Ho said, and Pettit agreed, that the choice of venue was "not relevant" to resolving the case. She is exactly right. Texas is often in the driver's seat of forum shopping, but here Texas was on the receiving end. This is how things work in the real world. Ignore whatever you read on Twitter.

Judge Ho also pointed out that the cases in Austin are not randomly assigned. This point is not well known nationally, but is well-known to members of the bar. Consider the current assignment order for the Western District of Texas, Austin Division. Judge Robert Pitman receives 50% of the civil docket, and has "Oversight and management of the remaining fifty percent (50%) of the civil" docket. In other words, Judge Pitman personally can decide half of the civil cases, and can decide who receives the other half of the civil cases. And how are those other cases assigned? Not randomly. Rather, three senior judges who sit in Austin are assigned cases by "mutual consent."

Senior U.S. District Judge James R. Nowlin: Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.

Senior U.S. District Judge Sam Sparks: Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.

Senior U.S. District Judge David A. Ezra:  Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.

None of these assignments are random. These senior judges can pick and choose which cases they receive. Judge shopping is often used to deride plaintiffs who chose their judge. But that term also applies to judges who choose their plaintiffs.

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. He was not sent to Austin to sit as a Council of Revision for the Texas legislature.

Do you think that Judge Ezra would support the Judicial Conference's ill-fated randomization policy? Absolutely not. With randomization he would be stuck with the mine-run of boring civil cases, instead of these high profile matters. It would be a fun thought experiment to randomize assignments within a division. Let's see if that could get buy-in from the Western District of Texas.

Special Counsel Robert Hur described President Biden as a "well-meaning, elderly man with a poor memory." The White House did not invoke executive privilege to block the release of the transcript of Hur's interview with Biden. The House Oversight and Judiciary Committees requested the audio recording of Hur's interview. Now the White House has invoked executive privilege to block the release of the audio.

White House Counsel Ed Siskel gave the House's request two-thumbs down:

The President has a duty to safeguard the integrity and independence of Executive Branch law enforcement functions and protect them from undue partisan interference that could weaken those functions in the future. As you know, the Attorney General has warned that the disclosure of materials like these audio recordings risks harming future law enforcement investigations by making it less likely that witnesses in high-profile investigations will voluntarily cooperate. In fact, even a past President and Attorney General from your own party recognized the need to protect this type of law enforcement material from disclosure.

The absence of a legitimate need for the audio recordings lays bare your likely goal—to chop them up, distort them, and use them for partisan political purposes. Demanding such sensitive and constitutionally-protected law enforcement materials from the Executive Branch because you want to manipulate them for potential political gain is inappropriate.

Siskel's letter, as well as another letter by Attorney General Garland, dances around a key issue: given that the transcript has already been released, what is the risk of releasing the audio?

Consider the difference between reading the transcript of a Supreme Court proceeding and listening to the oral argument audio. For years, the Supreme Court resisted live-streaming oral argument, or even a same-day release. Why? Several justices acknowledged they were worried that audio from the proceeding could be spliced up and used for political purposes. Fast-forward to the present day, and all of the cases are live-streamed. As far as I can tell, the fears about chopping up audio have not materialized.

Back to President Biden. The White House is clearly worried that the audio may make him sound like a "well-meaning, elderly man with a poor memory." And that audio will be mercilessly used by the Trump campaign. It is possible that future witnesses may hesitate to voluntarily participate in high-profile investigations if both the transcripts and audio are released. But in the present moment, the protection of President Biden is paramount.

I see politics on both sides. The Republicans don't actually need the audio to learn more about the investigation. They want to embarrass Biden. And the White House has no real justification to withhold the audio, other than to protect Biden from embarrassment. Once again, politics and presidential power overlap. There is nothing new under the sun.

On Wednesday, the Supreme Court issued a one-paragraph, unsigned order in a pair of redistricting cases from Louisiana, Robinson v. Callais and Landry v. Callais. The Court granted the application for a stay. Justices Sotomayor and Kagan would have denied the application, and Justice Jackson wrote a two-page dissent. Most readers probably assumed that the conservative Supreme Court helped the republican voters, and the progressives Justices would have done the opposite. Not quite. Indeed, this is one of the more confusing emergency docket cases I've seen. The upshot of the case is that there will be two black districts in the 2024 election, both of which will almost certainly go to Democratic candidates. Many press accounts struggled to make sense of this case, and the split. Why would the Court's progressives dissent?

Rick Pildes offered a pithy description of the cases:

Two different federal courts had issued two decisions which left LA with no valid congressional map in place. The first federal court said LA's original map violated the Voting Rights Act; the second federal court said the new map LA enacted to remedy the VRA violation itself violated the Constitution.

Today, the Court stayed that second decision. The effect of that stay is the state's remedial map — which creates 2 VRA districts rather than just the 1 the state had created initially — will be the map LA uses this fall.

Let's summarize. White voters argued that the maps from the first court violated the Equal Protection Clause, and wanted the maps from the second court to go into effect. But Louisiana and the black voters asked the Court to stay the second decision to avoid confusion, so that the maps from the first court will go into effect for the upcoming 2024 election. The Supreme Court stayed the second court, citing the Purcell principle. Louisiana and the black voters prevailed, and the white voters lost.

Shouldn't this have been a unanimous decision? Why then did Justices Sotomayor and Kagan deny the application for a stay? Why did Justice Jackson dissent? They really, really do not like Purcell. So much so that they would have allowed the lower-court proceedings to continue in (checks notes) the 5th Circuit, to avoid setting a new emergency docket precedent (if such a thing can exist). To be sure, the troika would have likely found the first court's maps constitutional, and would have stepped in later. But they were not willing to accept a unanimous decision if doing so would create a precedent for invoking Purcell about six months before the election.

Here's the most intriguing question: What would have happened if Justices Thomas, Alito, and Gorsuch had declined to grant a stay, on the grounds that the first court's maps were unconstitutional? Roberts, Kavanaugh, and Barrett would not have had enough votes to stay the second court. At that point, I suspect that Justices Sotomayor and Kagan would have quietly slid up to the majority, allowing Justice Jackson to stand up for the principle in dissent. But that didn't happen. Justices Thomas, Alito, and Gorsuch are committed to Purcell, even where it means employing likely-unconstitutional maps in a congressional election. Whoever insists this is an all-Republican Court should carefully scrutinize this order.

It is clear enough that the United States can bring suit under Section 2 of the Voting Rights Act. But can private litigants bring such a suit? Nothing in the text of the statute expressly grants that right. Does Section 2 include an implied private right of action? Recently, the Eighth Circuit held that it does not. However, in Robinson v. Ardoin (2023), a panel of the Fifth Circuit disagreed. Last month, the Louisiana Solicior General filed a petition for initial hearing en banc to resolve the split between the Eighth and Fifth Circuits. This petition would have skipped the three-judge panel, which was bound by the circuit precedent. The petition explained that initial en banc would "conserve" the Court's resources:

Panel-stage briefing on this threshold issue also would be pointless under the rule of orderliness. Appellants thus seek to advance judicial economy—as this Court has done—through "initial en banc hearing … without requiring the matter to percolate uselessly through a panel." Williams v. Catoe, 946 F.3d 278, 279 (5th Cir. 2020) (en banc). And if the en banc Court rules in Appellants' favor, that dismissal on clean legal grounds would obviate the need for a panel to spend extraordinary time and resources reviewing the district court's 91-page opinion for alleged Section 2 violations across nearly 150 House and Senate districts.

The clerk informed the SG that he would not circulate the petition to the full en banc court until the merits of the appeal are fully briefed. The United States and the private plaintiffs filed an opposition. Under FRAP 35, oppositions to en banc petitions are only filed after a request from the court. But here, the clerk styled the petition as a "motion for hearing en banc," and the appellees could file an opposition brief.

On May 15, the Louisiana SG filed a "motion for immediate circulation of the petition for initial hearing en banc and to hold briefing schedule in abeyance." Based on a quick search of the Westlaw briefs database, this sort of motion has never been filed before. But the circumstances are somewhat unique. Louisiana argues that it would be a waste of resources to fully brief a complicated case that could be disposed on the private right of action issue–especially where there is a clear circuit split.

The Fifth Circuit has granted initial en banc in a few cases over the years, including Williams v. Catoe (5th Cir. 2020).

Stay tuned.

More than two-thirds of Americans think the Supreme Court was right to hold Harvard's race-based admissions policy unlawful. But the minority who disagree have no doubt about their own moral authority, and there's every reason to believe that they intend to undo the Court's decision at the earliest opportunity.

Which could be as soon as this year. In fact, undoing the Harvard admissions decision is the least of it. Republicans and Democrats in Congress have embraced a precooked "privacy" bill that will impose race and gender quotas not just on academic admissions but on practically every private and public decision that matters to ordinary Americans. The provision could be adopted without scrutiny in a matter of weeks; that's because it is packaged as part of a bipartisan bill setting federal privacy standards—something that has been out of reach in Washington for decades. And it looks as though the bill breaks the deadlock by giving Republicans some of the federal preemption their business allies want while it gives Democrats and left-wing advocacy groups a provision that will quietly overrule the Supreme Court's Harvard decision and impose identity-based quotas on a wide swath of American life.

This tradeoff first showed up in a 2023 bill that Democratic and Republican members of the House commerce committee approved by an overwhelming 53-2 vote. That bill, however, never won the support of Sen. Cantwell (D-WA), who chairs the Senate commerce committee. This time around, a lightly revised version of the bill has been endorsed by both Sen. Cantwell and her House counterpart, Cathy McMorris Rodgers (R-WA). The bill has a new name, the American Privacy Rights Act of 2024 (APRA), but it retains the earlier bill's core provision, which uses a "disparate impact" test to impose race, gender, and other quotas on practically every institutional decision of importance to Americans.

"Disparate impact" has a long and controversial history in employment law; it's controversial because it condemns as discriminatory practices that disproportionately affect racial, ethnic, gender, and other protected groups. Savvy employers soon learn that the easiest way to avoid disparate impact liability is to eliminate the disparity – that is, to hire a work force that is balanced by race and ethnicity. As the Supreme Court pointed out long ago, this is a recipe for discrimination; disparate impact liability can "leave the employer little choice . . . but to engage in a subjective quota system of employment selection."  Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 652-53 (1989), quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 448 (1975) (Blackmun, J., concurring).

In the context of hiring and promotion, the easy slide from disparate impact to quotas has proven controversial. The Supreme Court decision that adopted disparate impact as a legal doctrine, Griggs v. Duke Power Co., 401 U.S. 432 (1971), has been persuasively criticized for ignoring Congressional intent. G. Heriot, Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal, 14 N.Y.U. J. L. & Liberty 1 (2020). In theory, Griggs allowed employers to justify a hiring rule with a disparate impact if they could show that the rule was motivated not by animus but by business necessity. A few rules have been saved by business necessity; lifeguards have to be able to swim. But in the years since Griggs, the Supreme Court and Congress have struggled to define the business necessity defense; in practice there are few if any hiring qualifications that clearly pass muster if they have a disparate impact.

And there are few if any employment qualifications that don't have some disparate impact. As Prof. Heriot has pointed out, "everything has a disparate impact on some group:"

On average, men are stronger than women, while women are generally more capable of fine handiwork. Chinese Americans and Korean Americans score higher on standardized math tests and other measures of mathematical ability than most other national origin groups….

African American college students earn a disproportionate share of college degrees in public administration and social services. Asian Americans are less likely to have majored in Psychology. Unitarians are more likely to have college degrees than Baptists.…

I have in the past promised to pay $10,000 to the favorite charity of anyone who can bring to my attention a job qualification that has made a difference in a real case and has no disparate impact on any race, color, religion, sex, or national origin group. So far I have not had to pay.

Id. at 35-37. In short, disparate impacts are everywhere in the real world, and so is the temptation to solve the problem with quotas. The difficulty is that, as the polls about the Harvard decision reveal, most Americans don't like the solution. They think it's unfair. As Justice Scalia noted in 2009, the incentives for racial quotas set the stage for a "war between disparate impact and equal protection." Ricci v. DeStefano, 557 U.S. 557, 594 (2009).

Not surprisingly, quota advocates don't want to fight such a war in the light of day. That's presumably why APRA obscures the mechanism by which it imposes quotas.

Read More

Tom Smith, a law professor in San Diego (and my brother-in-law), has an interesting blog on politics, law, and culture—"The Right Coast." Because of some technical issues, he has had to move the blog to a new location, found here. Tom has asked me to pass along this note, which I am happy to do. It's a fun little blog that may be of interest.