I blogged Wednesday about the indictment of the Southern Poverty Law Center for, among other things, supposedly defrauding donors. The theory is that the SPLC raised money by telling donors that it was aiming to "dismantle" violent extremist groups—but spent over $3M paying hate group leaders for information and, in at least one instance, to actually put out hate messages at the SPLC's direction. The indictment also alleges that, to hide the source of the funds, the SPLC caused false statements to be made to banks: It had its employees open accounts that it claimed were owned by them personally, on behalf of certain shell entities, but were really owned by the SPLC. I thought it might be helpful to think about this using a hypothetical, and seeing what we think about both the SPLC case and the hypothetical together.
Let's say that the SPLC prosecution didn't happen in 2026, and we're now in 2030. Gavin Newsom is President, and the Justice Department announces an indictment. The target is a prominent conservative activist group. The indictment alleges the group raised money by telling conservative donors that it would fight antifa and other sometimes violent left-wing extremist groups. It turns out that it developed an extensive network of paid informants within the leadership of those groups, and indeed paid money to at least one to actually spread leftist extremist messages.
The Justice Department says all this was fraud on the donors, and also that in the process the group had employees open bank accounts using group funds but claiming the funds were personal, and thus lied to the banks and violated anti-money-laundering rules. What would we, as people sympathetic in some measure to the group's overall mission, think?
[1.] I expect some of us might think the group was being kind of slimy. It's been talking about all this left-wing extremism it's fighting, but how much of it was actually ginned up by the group instead?
[2.] At the same time, some of us might think the group is being pretty cunning. Here it's getting lots of information about its enemies. To the extent it's prodding some of its paid informants to actually say extremist things, maybe it's effectively discrediting its enemies. And if we think there really would be plenty of genuine violent left-wing extremism even without the group's funding, we might think that its spending was actually pretty useful to its stated cause. Slimy and effective, after all, aren't always inconsistent for political advocacy groups. Sure, the sliminess might on balance cancel out the effectiveness, but maybe not always.
[3.] We might also wonder whether the Newsom Administration is targeting the group because of its ideology, rather than out of a fair application of neutral prosecutorial judgment. That's always a plausible concern with prosecution of political groups by political actors, but especially in so in a highly politicized time.
From PETA, Inc. v. Reynolds, decided Thursday by the Eighth Circuit (Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender):
[Iowa's] general trespass statute defines "trespass" to include "[e]ntering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner …." "A person has been notified or requested to abstain from entering or remaining upon or in the property … if … [t]he person has been notified to abstain from entering or remaining upon or in property personally, either orally or in writing …." When an ordinary trespass does not result in bodily injury or property damage exceeding $300, the offense is a "simple misdemeanor" and is punished by a fine between $105 and $855 and up to 30 days of imprisonment.
In 2021, Iowa decided its general trespass statute was not deterring trespassers from unlawfully entering private property to record their trespasses. So it enacted § 727.8A to create a new "trespass-surveillance" offense, which it treated more harshly than ordinary trespass. For instance, under § 727.8A,
[a] person committing a trespass as defined in section 716.7 who knowingly places or uses a camera or electronic device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class "D" felony for a second or subsequent offense.
Iowa punishes aggravated misdemeanors with a fine between $855 and $8,540 and up to two years of imprisonment, and class D felonies with a fine between $1,025 and $10,245 and up to five years of imprisonment.
Two … animal-welfare groups, including ICCI [Iowa Citizens for Community Improvement], developed as-applied challenges on remand, contending the statute's prohibition against using cameras while trespassing chills their members' speech when applied to prevent them from recording on private property that is otherwise open to the public after being asked to leave but not to stop recording. Relevant here, ICCI alleges its members intentionally record themselves committing ordinary trespasses, "particularly … at political and corporate sites," to draw attention to their activities. ICCI alleges its members are willing to suffer the consequences for ordinary trespass but the heightened penalties for trespass-surveillance have chilled their speech….
Whether the First Amendment protects ICCI's members' speech in this context is an open question. We know "freedom of speech includes expression through the making and sharing of videos" in some instances. But the Supreme Court "has never held that a trespasser … may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes …." Lloyd Corp. v. Tanner (1972); see also Hudgens v. NLRB (1976) (holding picketers "did not have a First Amendment right to enter [a privately owned] shopping center for the purpose of advertising their strike"). We need not resolve this question because even assuming recording while trespassing implicates the First Amendment, ICCI's as-applied challenge fails.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition! In 1960, the Supreme Court as good as erased the oath-or-affirmation requirement from the Fourth Amendment, thereafter permitting warrants to issue based on hearsay—instead of firsthand testimony from an actual witness. Now we're asking the Court to stop flouting text, original meaning, and a deep well of pre-1960 precedent and to take up the case of Michael Mendenhall, who was arrested and had his Denver office searched based on thirdhand hearsay from an obviously unreliable source. Click here to learn more.
New on the Short Circuit podcast: Live from Penn Law we continue our #12Months12Circuits series with Circuit Numero Tres. Reverse discrimination, prophylactics, and semi-sanctionable hallucinations.
Based on a Presidential Proclamation, the current administration started summary deportation proceedings without adhering to procedures—such as allowing people to apply for asylum—that Congress adopted. A set of nonprofits sue and receive an injunction and class certification. D.C. Circuit: Which was correct. Congressional statutes > stuff the President says. Dissent: I agree the Proclamation is too broad in some respects. But I'll note that the inhabitants of North Sentinel Island don't have standing in this case.
More than 99% of transgender female prisoners held in federal custody are housed in male prisons. The remaining <1% are housed in female prisons based on individualized factual findings by the Bureau of Prisons that these inmates are at particular risk of harm if housed in male prisons. In 2025, President Trump issues an executive order requiring these inmates to be transferred to male prisons. Eighteen trans inmates sue and secure a preliminary injunction against the transfer. D.C. Circuit (over a dissent): Which they may be entitled to, but the district court needs to do an individualized assessment for each inmate. Injunction vacated. Read More
From the long opinion in Moore v. Cecil, decided today by Judge Elizabeth Branch, joined by Judges Jill Pryor and Frank Hull:
In 2017, Roy Moore ran as the Republican nominee in a special election to fill an open seat for one of Alabama's United States senators. In the final weeks before the election, multiple news outlets reported that several women had accused Moore of inappropriate sexual conduct with them when they were young. Senate Majority PAC ("SMP") grabbed onto the news reports and ran a campaign ad that stated, among other things, in separate individual frames that (1) "'Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls,'" and (2) "[o]ne he approached 'was 14 and working as Santa's helper.'" [An underlying news report had "asserted that Moore approached Miller and told her she was pretty when she was 14 years old and working as Santa's helper and that Moore asked Miller out on dates two years late," so the argument appears to be that he had never approached a 14-year-old for sex. -EV] SMP ran the ad hundreds of times, and Moore eventually lost the election.
Moore sued SMP for defamation and false-light invasion of privacy under Alabama law, arguing in relevant part that the two statements above when read together created the false defamatory implication that he had solicited the 14-year-old girl working as Santa's helper for sex…. The jury found SMP liable for defamation and false-light invasion of privacy, and it awarded Moore $8.2 million in compensatory damages….
SMP appealed, and the Court of Appeals held in its favor:
Moore's case … involves an allegation of defamation-by-implication (or as Moore puts it, the statement that resulted from the juxtaposition of frames 2 and 3 of SMP's ad), not express defamation. {Moore's theory was that the statement in frame 2 that he "was actually banned from the Gadsden Mall … for soliciting sex from young girls," when combined with the statement from frame 3 that "[o]ne he approached 'was 14 and working as Santa's helper,'" falsely created "a new statement" that he solicited sex from Wendy Miller when she was 14 years old and working as Santa's helper.}
Defamation-by-implication is fraught with subtle complexities and is more nuanced than express defamation. "'Defamation by implication' occurs when a defendant juxtaposes a series of facts to imply a defamatory connection between them." Thus, "a defamation by implication stems not from what is literally stated but from what is implied."
I have been posting on Chatrie v. United States, the Supreme Court's geofencing case to be argued on Monday. In this post, I wanted to talk a bit on why the search question is particularly hard.
The Supreme Court has long struggled to explain what makes government action a "search" of an individuals' "persons, houses, papers, and effects." The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood, which were about what kinds of warrants were permitted to conduct a physical search. But a central challenge of modern Fourth Amendment "search" law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion.
There is broad agreement that the Fourth Amendment needs to extend beyond actual physical intrusion: If it didn't, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records. The hard question is, what's the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?
The Court has not done the best job at articulating this, I think. It did a few things that make it extra hard. Two under-appreciated things stand out.
First, the Court has ignored a lot of the Fourth Amendment's text, which made the issue a lot harder to understand. The Fourth Amendment prohibits unreasonable "searches" of "persons, houses, papers, and effects." But the Court's precedents have often just described the issue as being what is a "search," ignoring the required thing to be searched in that language: "persons, houses, papers, and effects." The word "search" has long had a range of different meanings, going back to 18th Century, and reducing the question to that one word adds a lot of confusion: It strips the constitutional question of its context and its history of the cases like Wilkes, Entick, and the Writs of Assistance case.
Of course, the full text is not always ignored. As the Court's curtilage caselaw has frequently noted, the Fourth Amendment "indicates with some precision the places and things encompassed by its protections: persons, houses, papers, and effects." Florida v. Jardines, 569 U.S. 1 (2013). But I think it has been under-appreciated that the proper question is not what is a "search" in some isolated or abstract sense, but rather what is a "search" of "persons, houses, papers, and effects" that reflects the understanding of those terms in the major disputes that inspired the enactment of the Fourth Amendment.
Second, many modern Justices have assumed the correctness of a simple narrative about the Fourth Amendment that Justice Brennan introduced in Warden v. Hayden, 387 U.S. 294 (1967). Looking for a framework to justify lots of innovations in Fourth Amendment law, Justice Brennan made a pitch that the Fourth Amendment had previously been based on property principles but was henceforth to based on privacy principles: Read More
On Monday, I wrote about an unusual situation at the Supreme Court: even though Kannon Shanmugam of Paul Weiss was counsel of record in a case, it was argued by Elizabeth Prelogar of Cooley. I couldn't quite make sense of the switcheroo. I surmised,"There must be more to the story."
And so there was more to the story. Today Kannon Shanmugam, as well as Masha Hansford, moved from Paul Weiss to Davis Polk. I had heard a rumor of this after I wrote my post, which has now been confirmed.
This move doesn't fully explain exactly why Shanmugam, or someone at Paul Weiss, didn't argue the case. I suspect there is still more to the story.
In related news, Jeff Wall and several other partners have moved from Sullivan and Cromwell to Gibson Dunn.
It sounded at least somewhat promising when Tinder announced last year that it would start requiring photo verification for new users across the United States. Deploying a technology called "Face Check", Tinder would have every such user take a video selfie whose coordinates would be compared against pictures uploaded with the profile. While this is a partial improvement over the previous state of things where facial verification was generally optional, significant flaws are emerging.
Earlier this month, journalist Christophe Haubursin uploaded a video to YouTube that showed a strange phenomenon whereby a lot of Tinder profiles exhibited a similar pattern without obvious initial explanation. The first eight profile pictures would show one individual, but then the ninth picture would be an artistic version of a different individual (say, a face embedded in a painting or mural). A reverse image search would uncover that the first eight pictures were of a--conventionally good-looking--person with a different identity than that portrayed by the profile.
Haubursin began suspecting that Face Check was deeming "verified" profiles where as few as one of the pictures corresponded to the required video selfie. He tested this hypothesis himself and confirmed it: all a profile needed to render it verified was one (even stylized) picture that matched the video selfie, even if it was preceded by eight pictures of someone who looked completely different and who most people would assume was the actual holder of the profile. Haubursin also contacted some of the people with these types of profiles, and unsurprisingly at this point they were actually crypto scammers. Read More
Do the internal Supreme Court memos concerning the stay of the Clean Power Plan reveal judicial hypocrisy or a failure of the justices to apply the proper standard of review? Many commentators seem to think so. Many also seem to think the memos (and those by the Chief Justice in particular) contain errors or omissions that were not commented upon by the other justices.
At Divided Argument, William Baude and Richard Re respond to the claims that the Court failed to adequately or consistently account for irreparable injury to the government and did not apply the appropriate standard of review. On the former point thy write:
The problem with criticisms like these is that they conflate two different legal doctrines. The Court has stated a rule that the government faces irreparable injury when its policies are blocked. But that is a rule that applies to the moving party. That is, when the government seeks to have a lower court order lifted, it is almost axiomatic that the lower court order injures the government, so the Court focuses on other factors, such as the merits of the case.
This rule had no application in the Clean Power Plan case because the Obama Administration was not the moving party. Instead, the challengers to Clean Power Plan were the moving party: they were the ones seeking a stay.
On the question of the standard of review, Baude and Re write:
Another criticism is that the Chief Justice's memo clearly applied the wrong standard of review. Here, too, the critics are at best overstating their case. The factors applied by the Chief Justice were sensible ones drawn from prior cases and the briefing before the Court.
And, notably, for all of the internal pushback from the dissenting justices, they did not push back on the standard of review. Perhaps this is because the details of the standard of review do not matter so much. In a somewhat novel case, any relevant substantive points can be channeled into the plausible alternative standards of review as well.
As they note, there was some ambiguity about the proper standard to apply, and whether the authority for the stay should be understood to come from the All Writs Act, APA Section 705, or somewhere else. In any event, the Court considered what we would expect to it consider.
I would add that it's a mistake to read these internal memoranda as if they were public judicial opinions, as opposed to memoranda distributed to a specialized audience. My experience as a judicial clerk may not be representative, but I recall memoranda by judges to their colleagues that focused on the issues and questions of immediate concern that did not walk through or spell out all of the relevant considerations, let alone seek to provide guidance to lower courts.
Baude and Re continue:
the Court applied its normal equitable inquiry, citing both the general standard for a stay pending appeal and the standard for stays of administrative action set out in Nken v. Holder. These two standards are really applications of the same underlying principles. Both standardsfocus on a likelihood of success (which in this context includes an assessment of certworthiness) and irreparable injury to the moving party. The Chief Justice squarely addressed those critical points. When the government is a party, these standards also allow consideration of the balance of the equities in close cases. And the Chief Justice not only noted that point, but also had a clear view as to how it applied, particularly given the threat that he perceived to the Court's authority. . .
Perhaps the Court was wrong to rely so much on the likelihood of success, especially at such an early stage of the proceedings, and to be so concerned about the executive branch's efforts to circumvent the judiciary. At the same time, those considerations are hardly unique to the Clean Power Plan case and they have reemerged when the justices faced other cases of fast-moving executive branch overreach. Take AARP v. Trump or the Illinois National Guard case.
Or perhaps critics simply disagree with the ultimate judgments the majority reached. That is fine, but a very different point from whether the memos reveal basic doctrinal errors or hypocrisies, which we doubt.
My prior posts on the "shadow papers" and the "shadow docket" more broadly can be found here.
The rise of "abundance liberalism" is one of the few good political developments of the last few years. Abundance liberals and related thinkers like Ezra Klein and Derek Thompson (authors of the best-known book promoting the movement), Matt Yglesias, Catherine Rampell, Kelsey Piper, Noah Smith, Jerusalem Demsas, and others are left-liberals who advocate market-based approaches to a variety of important issues. Smith and famous law professor Cass Sunstein have even written recent articles expression new-found appreciation for libertarianism.
I think the growth of this movement is extremely promising, even though it has some flaws and internal contradictions. And it's a source of potentially valuable allies for libertarians and other free market advocates, at a time when we badly need them.
Despite my general enthusiasm for the abundance movement, I actually agree with many of the criticisms and reservations expressed by libertarians like and free market conservatives, like Bryan Caplan, Samuel Gregg, and Richard Reinsch. In particular, the critics are right to highlight how many abundance liberals embrace market approaches on some issues (most notably trade and housing), but reject them on others (e.g. - health care and education), without recognizing that most of the reasons for curbing government intervention in the former areas also apply to the latter. In addition, Bryan is right to urge the abundance advocates to push their case further in those areas where they do embrace markets, particularly when it comes to immigration.
That said, we should never let the best become of the enemy of the extremely good. And abundance liberalism is indeed extremely good! The issues where they support major movement towards freer markets - most notably housing, trade, immigration, and nuclear power - are extremely important ones. They have enormous effects on the life, liberty, and happiness of tens of millions of people. A coalition focused on these big issues could have great value, even in spite of differences on other matters.
1. Magnitude of effects on human freedom and happiness. Big effects deserve priority over small ones.
2. Easy to implement solutions. Problems with simple, quick fixes deserve priority over ones where the solution is difficult and/or requires a massive increase in competence and capacity.
3. The possibility of incremental progress. Issues where incremental progress is possible deserve priority over "all or nothing" issues, except in unusual revolutionary situations.
The issues on which abundance liberals are good all check every one of these boxes. Indeed, I highlighted two of them (housing and immigration restrictions) in my original 2024 post. All these issue have huge effects on human freedom and welfare, and solutions are relatively easy to implement (in most cases just ending or cutting back on harmful government intervention; though nuclear power is somewhat more difficult). And incremental progress on all of them is feasible. Even if we cannot abolish all exclusionary zoning, we can make progress by getting rid of some. Even if we cannot abolish all immigration restrictions, we can greatly improve the world by abolishing some. And so on.
In addition to these important areas of agreement on specific issues, abundance liberals and libertarians also have significant (though, far from total) agreement on some important general principles. Both groups tend to support liberal individualism over various types of collectivism, whether those of the left or the nationalist right. Many of the abundance liberals dislike conventional left-wing identity politics, even if not as much as most libertarians do.
Kelsey Piper even wrote a recent article critiquing affirmative action. Part of her objection is that racial preferences are extremely unpopular (which is true) and thus a drag on the electoral fortunes of the Democratic Party. But she also objects to these kinds of policies on principle:
Our foundational commitment is that every person is an individual, created equal, and deserving of equal treatment under the law and equal opportunity. That means you shouldn't get judged by the average qualities of your group. You shouldn't be judged as less impressive because other East Asians have, on average, higher test scores, and you shouldn't be judged as more impressive because other Hispanics have, on average, lower test scores.
Preach it, sister!
Abundance liberals and libertarians also have in common an appreciation for basic Econ 101. For example, both groups recognize that when government restricts supply (as with exclusionary zoning in the case of housing), that increases prices and creates shortages. Similarly, tariffs are harmful because they prevent mutually beneficial trade, thereby making us poorer and the economy less efficient. Abundance liberals recognize more exceptions to these general principles than libertarians do, and tend to believe that market failures are more common than is actually the case. But the initial acceptance of basic Econ 101 is still extremely important.
And abundance liberals are not afraid to criticize left-wing policies when the latter deviate from Econ 101 without a compelling reason. For example, almost all abundance liberals reject rent control, and many were highly critical of Biden's student loan forgiveness program., because it created a variety of perverse incentives and helped the relatively affluent at the expense of the needy, instead of vice versa.
In addition to agreement on some key issues and principles, abundance liberals and libertarians also have important common enemies in the form of the national right and the "democratic socialist" left. Sometimes, common enemies bind people together more than anything else.
Abundance liberals are also potentially valuable allies because they seem to have some real influence in Democratic Party politics, and on the political left generally. A variety of Democratic governors - including Gavin Newsom (California), Jared Polis (Colorado), and Kathy Hochul (New York) have embraced various abundance liberal "YIMBY" housing deregulations. Massachusetts Governor Maura Healy has even coupled that with forcefully opposing rent control, which I never thought I would see a prominent liberal Democratic politician do. It is even possible - though far from certain - that an abundance-oriented candidate might win the 2028 Democratic presidential nomination.
The old "fusionist" alliance with the conservative right is dead, and we need new allies, as libertarians are pretty obviously not strong enough to achieve a lot on our own. Abundance liberals are by far the best available alternative coalition partners.
Abundance liberals might ask: what good are libertarians to us? It's not as if libertarianism is vastly popular. In answer, I would note that libertarian intellectuals and policy experts have long batted above their weight and wielded important influence, including on issues central to the abundance agenda, such as housing, immigration, and trade. In addition, depending on how you define them, libertarian-leaning voters are some 7-20% of the population (I think the lower-bound figures are more plausible than the higher ones). And many of them tend not to have strong party loyalties, and therefore can be swing voters. That's nowhere near enough to win elections by themselves. But it could be a valuable voting bloc in close elections.
In this post, I do not try to outline in any detail how such an alliance might work. That remains to be seen, and is probably best worked out by people with better connections and greater political skill than I have. But I do want to suggest the general idea, thereby hopefully giving a nudge to those who do have the requisite skills. I would add that an effective coalition should have both an elite/intellectual element and a more popular one focused on moving public opinion and influencing electoral results.
There is the important caveat that political developments are often hard to predict. Perhaps in five to ten years, the Democratic Party will be dominated by socialists, while the MAGA nationalist movement will have collapsed, allowing more market-oriented conservatives to regain control over the GOP. Other types of unexpected developments might also happen, that make an abundance liberal/libertarian alliance ineffective or unnecessary.
But, for the moment, this is a potential coalition that makes good sense. And it is likely to continue to do so as long as the issues that unite the two groups remain extremely important. I suspect most of them won't go away anytime soon.
An excerpt from yesterday's decision in U.S. v. California, by Judge Mark Bennett, joined by Judges Jacqueline Nguyen and Daniel Collins:
[T]he United States seeks an injunction pending appeal that enjoins … enforc[ement of] § 10 of the [California] No Vigilantes Act … against federal agencies and officers. Section 10 requires any non-uniformed "federal law enforcement officer" operating in California, with narrow exceptions, to "visibly display identification" while performing federal law enforcement duties. Officers who violate the law may be criminally prosecuted by the State….
We conclude that § 10 of the No Vigilantes Act attempts to directly regulate the United States in its performance of governmental functions. The Supremacy Clause forbids the State from enforcing such legislation….
When "[t]he Framers split the atom of sovereignty," they put the federal government under the "control[ ] [of] the people without collateral interference by the States," which "have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere." To that end, the Supremacy Clause [of the Constitution] renders "the activities of the Federal Government … free from regulation by any state." "It is of the very essence of supremacy," the Supreme Court has emphasized, "to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." Therefore, "where 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' 'the federal function must be left free' of regulation" by the States.
"Schools are free to determine the content of those sessions, even (if they so choose) teaching on the harms of diversity requirements or on the importance of religious liberty."
Last week, the Wall Street Journal editorialized on the ABA's DEI mandates on law schools.
The ABA suspended Standard 206 of its Rules of Procedure for Approval of Law Schools, which required schools to demonstrate a "commitment to diversity and inclusion." But that was only half the problem. The ABA left untouched Standard 303(c), which requires law schools to "provide education to law students on bias, cross cultural competency and racism" twice before a student graduates.
Daniel Thies, chair of the Council of the ABA's Section of Legal Education and Admissions to the Bar, wrote a letter to the Editor. He suggested that there is another way for law schools to comply with Standard 303(c).
The law school accreditation standards are silent on DEI, and have been since February 2025. As you note, the council suspended Standard 206 on diversity and inclusion at that time. Looking forward, the council—which has the final say on the content of the accreditation standards—has proposed a permanent repeal effective as soon as this August.
Your editorial cites Standard 303(c) as a still-active DEI requirement. But that standard requires only two modest extracurricular sessions on cross-cultural competency and related topics. Schools are free to determine the content of those sessions, even (if they so choose) teaching on the harms of diversity requirements or on the importance of religious liberty.
I have long suspected that one way to comply with DEI standards is to criticize DEI. For example, some states require "Anti-Bias" CLE requirements. I have given CLE talks where I charge that the state Anti-Bias regimes, including ABA Model Rule 8.4(g), are unconstitutional. I dared state bar associations to deny CLE credit. The credits were approved.
Now, the ABA seems to be taking a new position: a religious law school, for example, can satisfy Standard 303(c) by highlighting how DEI harms religious liberty.
Will any law schools take up this mantle? I don't know. Even if Standard 206 is repealed, law schools will still voluntarily comply with it in spirit. But this position at least gives the ABA some wiggle room in future fights with the Department of Education.
It is much easier to complain about how the Supreme Court handles interim orders on the "Shadow Docket" than to propose meaningful and acceptable reforms. That is, if one is concerned about the process and practice of the Court (and not just its jurisprudential tilt), one must confront the trade-offs inherent in any reform of how interim orders are sought, considered, and addressed.
This is one of the lessons of Garrett West's important new paper "Taming the Shadow Docket," just published in the Virginia Law Review.
Here is the abstract:
The Supreme Court's shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This Article identifies comprehensive structural reforms, all within the Court's control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, states, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the Administrative Procedure Act ("APA"); and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.
And here is from the paper's conclusion:
The problem of the shadow docket is not that the Court fails to explain itself or applies the wrong standards of review. The problem is structural. The lower federal courts, applying current doctrines governing judicial review of federal and state policies, have broad authority to block legislation and administrative action. The Supreme Court, meanwhile, is institutionally committed to its position of supremacy over those lower courts, necessitating the exercise of control over the lower courts in significant matters. Those factors mean that proposed reforms for the Court's use of the shadow docket misdiagnose the structural problem.
This Article, by contrast, offers structural reforms that would allow the Court to change the conditions in the lower courts to prevent significant matters from landing on the shadow docket in the first place. The set of reforms is systematic rather than myopic because focusing on (for example) nationwide injunctions but not also standing and Ex parte Young would solve a problem that would reemerge in a new doctrinal form. And the reforms are pitched at just the right level of ambition—not too fatalistic and not too quixotic: not too fatalistic, because I suggest actual changes that the Court (and lower courts) could implement to reduce the structural causes of the problem that it faces; not too quixotic, because I assume that Congress will do nothing and because the proposed "reforms" are either technically already the law or reasonably plausible refinements or developments of current doctrine. What this Article provides, then, is a menu of options for reducing the pressure on the Court to intervene in the appellate process. Not all such options will seem necessary; some might seem to go too far. But they should all be on the table if the shadow docket is really a problem that needs to be managed.
Or perhaps the shadow docket is a necessary feature of a constitutional system in which the federal courts constrain political actors. On that view, the reforms proposed would fix the shadow docket but undermine the critical judicial function. If so, the solution is not to weaken the courts but to embrace an interim docket, and potentially to make the Supreme Court more effective at its supervisory function. Reforms that allow the Court to intervene earlier or more often might change the composition of the Court's day-to-day work, but such an evolution might be inevitable if the federal courts are to effectively police political actors. Whether the better course is to disempower the lower courts or to embrace the Court's new role is up for debate. But it is implausible to argue that the lower courts should regularly resolve matters of national significance while the Supreme Court declines to intervene.
From McVeigh v. Kelly, decided last week by Chief Judge Allen Winsor (M.D. Fla.):
The facts come from the complaint, and at this stage I accept all well-pleaded factual allegations as true.
McVeigh worked for the Department as a financial administrator. Shortly after Charlie Kirk's assassination, McVeigh posted a photograph of Kirk on his private Instagram account with the caption, "At least this racist just didn't get a nicked ear. Where were all the good guys with guns though? THOUGHTS AND PRAYERS. LET'S NOT MAKE THIS POLITICAL etc." Only McVeigh's friends could access the private Instagram account, which did not identify McVeigh or his employer.
McVeigh also changed his Facebook photo to a graphic that read, "Not the American government asking us not to wish death on people." This photo was not private and was visible to any Internet user. But like the initial Instagram post, this Facebook account did not identify the Department as McVeigh's employer.
At some point, an acquaintance texted McVeigh about the posts, accusing McVeigh of "wishing death" on "individuals who shared Kirk's beliefs." After reflection, McVeigh edited his post "to remove one sentence for tone."
On September 15—five days after the assassination—McVeigh received a termination letter from HR. The HR officer told him it had "[s]omething to do with Charlie Kirk … a post you made or something like that." A few days later, McVeigh discovered an Instagram account showing his Facebook photo, Instagram post, and LinkedIn profile. The post also included a copy of a communication sent to the Department about McVeigh's posts. (McVeigh believes the acquaintance reported his posts to the Department.) …
… Defendant commented on twenty-two different YouTube videos with death threats to various ethnic groups, including Muslims, "American blacks," immigrants, and "people from India." … [T]he Government charged Defendant by criminal complaint with violating 18 U.S.C. § 875(c), which prohibits the transmission, in interstate or foreign commerce, of any communication containing any threat to injure the person of another. … The indictment … includes a chart listing the count, a summary of the communication, the communication date, and the YouTube comment ID number. The communications are listed for each count as follows:
Threat to kill and eradicate Muslims off the face of the earth
Threat to slaughter, eradicate, and kill every Muslim man, woman, and child
Threat to kill and genocide all Muslim men, women, and children
Threat to kill and genocide Muslims in their homes
Threat to kill and genocide all Muslims
Threat to slaughter and kill all Muslims
Threat to kill all Muslim men, women, and children
Threat to kill immigrants, Muslims, "American blacks," and "people from India"
Threat to genocide and slaughter every Muslim
Threat to slaughter and genocide Muslims and politicians
Threat to genocide, kill, and exterminate Muslim men, women, and children
Threat to kidnap and kill entire towns of Muslim men, women, and children by loading them on buses to a location where they will be shot in the head and sent through a woodchipper
Threat to genocide and kill every Muslim in America
Threat to slaughter and kill illegal immigrants
Threat to kill and genocide Muslims on US soil
Threat to kill and eradicate Muslims
Threat to kill any Muslim found on US soil
Threat to kidnap and kill Muslims by loading them onto buses, transporting them to another location, and shooting them in the head, and sending them through woodchippers
Threat to kidnap and kill Muslims
You can see the text of the posts in the Criminal Complaint; just one example:
Muslims listen up- you are not welcome here any more you either go back to your country or die here. We are sick of the gov half assing everything and creating the problems so we as a united people are about to fix these wrongs. Muslims are always planning on killing Americans- guess what we are now meeting making plans on how to run the most efficient effective genocide in history. We are going to kill everyone of you who doesn't leave- men women children zero fucks given your not human your parasites you inbreed biological waste and we can't wait to exterminate you from our land last warning. The gov won't be able to save you they are in fighting they can't pass a budget there's no way they are going to stop the worlds largest armed civilian population that's out for blood.
