Readers of the blog likely recall this lawsuit, brought by climate scientist Michael Mann against columnist Mark Steyn, blogger Rand Simberg, the National Review, and the Competitive Enterprise Institute (see our various posts on the subject). The National Review and CEI had been granted summary judgment in 2021, but in January 2024, the jury found Steyn and Simberg liable for defamation, to the tune of $1 compensatory damages + $1M punitives against Steyn, and $1 compensatory + $1K punitives against Simberg.
But the trial judge then reduced those punitive damages to $5K. The trial judge also ordered Mann to pay defendants $1M in attorney fees ($530K to the National Review and $477K to Simberg) under D.C.'s anti-SLAPP statute, based on defendants' having gotten some of Mann's claims dismissed. Afterwards, Mann and the National Review settled their dispute; Mann agreed to drop his claims, dismissing his appeal of the judgment, in exchange for National Review agreeing to waive the $530K in attorney fees.
Now here's the latest, from Thursday's decision by D.C. Superior Court Judge Alfred Irving in Mann v. National Review, Inc., reaffirming a March 12, 2025 sanctions order:
Dr. Mann throughout this litigation complained that he suffered lost grant funding directly stemming from the defamatory statements of Messrs. Simberg and Steyn, while providing very little in the way of specifics about the dollar amounts of his losses directly attributable to the statements (such as corroborating testimony from percipient witnesses), all while promising to illuminate the Court at trial.
At trial, Dr. Mann elected through his attorneys to present to the jury a blown-up demonstrative, without redaction or explanation, a demonstrative intentionally prepared for its use at trial, which included a budget (loss) amount of $9,713,924.00, when the correct amount, previously corrected during a third round of discovery, was $112,000. Dr. Mann and his attorneys explain that there was no harm in publishing the demonstrative to the jury because Defendants and the Court knew well that the $9.7 million was later corrected during discovery, while ignoring the fact that the trial's factfinders, the jury, were never made privy to the discovery corrections through Dr. Mann's in-court testimony.
Could a Judicial Council take away all of a judge's cases based on the merits of a decision? Could Congress delegate this power of stealth impeachment?
The saga of Judge Pauline Newman is well known. For three years, the Federal Circuit has not assigned any new cases to Judge Newman because she refuses to obtain certain medical tests. Back in April 2023, I described this process as a stealth impeachment. A judge without any cases is no longer a judge.
I suspect the most obvious reply is that there is a difference between impeaching a judge and simply taking away their cases. After all, Judge Newman retains her fixed compensation and title. I am not so convinced. A judge's job is to decide cases. Imagine that Congress passed a statute providing that any judge who rules against President Trump will no longer be assigned any new cases, but they can keep their salary and title. Or what if Congress were to pass a statute divesting jurisdiction over every suit filed against the executive branch in Boston, and reassign those cases to the Amarillo Division of the Northern District of Texas. How would Judge Young and his colleagues respond?
Judge Newman's litigation brought by the NCLA has so far not been successful. (I am on the board of NCLA.) Now, the D.C. Circuit has denied en banc review, and the only remaining appeal is the United States Supreme Court. As I've said before, Chief Judge Kimberly Moore and her colleagues are waiting for the 98-year old Judge to die. I recently spoke to some staffers on Capitol Hill with Judge Newman, and can attest that she is 100% mentally acute. Her memory is better than people a third her age. The allegations against her are grossly unfair, yet the courts do nothing.
This background brings me to a different question I have been pondering. Judge Newman has been denied all new cases based on a perceived disability. But could a circuit impose a similar punishment for a judge based on her rulings.
Let me offer a fanciful hypothetical (perhaps not as fanciful as a hypo about the Alien Enemies Act and the British invasion). Imagine that a federal judge decided that he would no longer offer any rationales for his decisions. He would simply invite the parties to court, listen to their arguments, and announce a judgment for the plaintiff or the defendant from the bench, and then adjourn court. Following that oral order, the clerk would enter a judgment for the prevailing party. The judge explains that he only needs to issue an order, and no statute requires him to explain his reasoning. The Circuit Court consistently reverses this judge's rulings, and grants writs of mandamus, but the judge continues his practice.
Based on this "pattern or practice" of rulings, many litigants in the district file misconduct complaints. Could this complaint proceed, and if so, could the Judicial Council order that no new cases would be assigned to the judge until he begins to issue reasoned decisions for at least some of his rulings?
The starting point of this inquiry is the Judicial Conduct and Disability Act of 1980. 28 U.S.C. § 352 (b)(1)(A)(ii)) provides that that the Chief Judge of a Circuit can dismiss a complaint if it is "directly related to the merits of a decision or procedural ruling." But the judiciary has not construed this provision strictly.
In the 2006 report chaired by Justice Breyer, the Committee observed that there may be an exception to this rule.
A complaint of delay in a single case is properly dismissed as merits related. Such an allegation may be said to challenge the correctness of an official action of the judge, i.e., the official action of assigning a low priority to deciding the particular case in question. A judicial remedy exists in the form of a mandamus petition. But, by the same token, an allegation of an habitual pattern of delay in a number of cases, or an allegation of deliberate delay arising out of an illicit motive, is not merits related.
Court Rules, 239 F.R.D. 116, 240 (2006)
In other words, when there is some pattern or practice of delay on issuing decisions, that could give rise of a non-merits complaint. Of course, the decision to spend more time on a case is very much a merits issue. Judge Newman has explained that she takes more time on opinions than her colleagues, but that time is needed to get the case right. (And Newman's opinions have been upheld by the U.S. Supreme Court.) Again, the Breyer Report focuses on habitual delay, without regard to the rationale for the delay. A cynic could argue that Chief Judge Moore's real grievance with Judge Newman is the delay in issuing opinions, or as some allege, the merits of her opinion, but that is not the stated rationale. Remember, only President Trump is capable of acting pretextually. (In truth, Trump usually tells you exactly why he is doing what he is doing.)
There is another relevant precedent. Judge Manuel Real, a Johnson appointee, served on the District Court bench in California from 1966 until he died at the age of 95 in 2019. In the late 2000s, there was a series of misconduct proceedings against Judge Real. The Committee offered these allegations against him:
[UPDATE: I have changed the post below, as it was pointed out to me that the key opinion in Lucas was only a plurality opinion, not a majority opinion. I regret that I had not spotted that earlier. This is a revised post.]
This is a follow-up to my recent post, Can ICE Enter a Home To Make an Arrest With Only an Administrative Warrant?, on the Trump Administration's view that they can use I-205 warrants from the executive branch to enter homes to make immigration arrests. As you'll recall from that post, I was speculating about what the government's theory might be. In the last day, various administration and administration-friendly sources have suggested that they're relying on a 2007 plurality opinion from the en banc Eighth Circuit, United States v. Lucas, 499 F. 3d 769 (8th Cir. 2007), for that view.
I thought I would take a look at Lucas and see if it provides the support the Administration claims.
My overall take: The administration has an argument, although I don't think it's a good one. Put another way, they have a plausible argument by analogy to the plurality opinion of some judges in Lucas, but it has problems. What to make of that depends on the question you're asking. If the issue is whether the Administration has a non-frivolous argument, I think they do. If the issue is whether the Administration has an argument that should win, I don't think they do.
Lucas involved an escapee from prison, one Tylan Lucas. Under state law, the prison system director could issue an executive-branch executive warrant to arrest Lucas—what state law called a "Warrant of Arrest (for Escaped Prisoner)"—and he did. The police then received a tip that Lucas was present at a particular apartment in Omaha. Police went to the apartment, and the resident, Theresa Scaife, was there and answered the door. The police ultimately entered and also found Lucas, together with Lucas's drugs. Lucas was charged with drug crimes, and he moved to suppress the drugs found in the apartment. Lucas argued that entering the apartment without a valid judicial warrant violated his Fourth Amendment rights.
Of the thirteen judges on the Eighth Circuit, ten took a position on the use of administrative warrants. They split five to five. Five judges joined a plurality opinion saying that the Fourth Amendment was not violated in part because of the administrative warrant:
Because Lucas's reasonable expectation of privacy was limited by his status as an escapee and the officers possessed both a valid administrative warrant and reasonable cause to believe Lucas was in Scaife's apartment, we conclude that his Fourth Amendment rights were not violated by the entry of the officers into the apartment and his subsequent arrest.
Three more judges agreed that there was no violation, but they did not reach the issue of whether the administrative warrant was valid.
Five judges said that the use of the administrative warrant was invalid.
I take it the administration is relying on the five-judge plurality opinion in Lucas, so let's take a look at that. It is tricky to decipher because the court seems to be relying on three different lines of cases, all of which factor into the overall reasonableness of the entry under a totality of the circumstances balancing of interests.
First, relying on Abel v. United States—the 1960 case I wrote about in my earlier post—Lucas argues that administrative warrants are generally valid to make arrests and in some cases even to enter homes:
The fact that Clarke was not a neutral judicial officer does not end the Fourth Amendment inquiry, however. This case is quite different from the cases on which Lucas relies in which a neutral magistrate was needed to determine probable cause. Here the administrative official responsible for the custody of prisoners issued a warrant to retake an inmate who had already been convicted of a crime beyond a reasonable doubt and had fled from his lawful custody. The standard for issuance of a valid administrative warrant under the Fourth Amendment is different from the probable cause showing necessary for a warrant to arrest someone suspected of a crime.
So Magistrate Judge Maria Aguilera (D. Ariz.) correctly concluded today in Sanchez v. Flores:
[A]s alleged, the statement was nonactionable hyperbole. The words "looked like" in particular "tend to negate the implication that [the statement] convey[ed] objective facts."
"The fact that only five exhibits are uncontested suggests that the parties have not engaged in a good-faith effort to narrow their objections, and the Court cannot resolve objections to anywhere near 2,325 exhibits during the course of the trial."
The parties have submitted a multitude of objections to deposition designations, which encompass hundreds of pages of transcripts. This is unmanageable for the Court. The parties shall confer and file a revised and minimized list of objections by noon on Friday, January 30, 2026. With respect to the remaining objections, the parties shall file copies of the relevant pages of the transcripts, including any necessary context, with the portions to which Plaintiffs object highlighted in green and the portions to which any defendant objects highlighted in yellow. The parties shall write or type the basis for the objection (i.e., hearsay, 403, relevance) in the margin of the transcript. The Court will attempt to rule on the objections within a reasonable time before the testimony is needed. Accordingly, the parties shall provide the Court with a rough estimate of the date when each deposition will be presented at trial.
The parties have also submitted trial exhibits lists designating only five exhibits as uncontested and 2,325 exhibits as contested. The fact that only five exhibits are uncontested suggests that the parties have not engaged in a good-faith effort to narrow their objections, and the Court cannot resolve objections to anywhere near 2,325 exhibits during the course of the trial. The parties shall confer about their proposed exhibits and objections and file a revised list of uncontested and contested exhibits by Friday, February 6, 2026. Objections to either deposition testimony or exhibits that are without a good-faith legal basis may result in the imposition of attorneys' fees.
In a crucial appellate court oral argument, the Trump Administration admits that their position says the answer is "yes." The exchange highlights the dangers of judicial deference on judicial invocation of extraordinary emergency powers.
Yesterday, the en banc US Court of Appeals for the Fifth Circuit heard oral argument in W.M.M. v. Trump, a case challenging Trump's invocation of the Alien Enemies Act of 1798. The full Fifth Circuit - all 17 judges - were reviewing the panel decision in that case ruled that Trump's invocation of the AEA as a tool for detention and deportation of migrants is illegal, because illegal migration and drug trafficking and other activities of the Venezuelan drug gang Tren de Aragua do not qualify as a war, "invasion," or "predatory incursion." The AEA can only be used when one of these extraordinary conditions, or a threat thereof, exists.
Throughout the extensive litigation over the AEA, in this case and others, the Trump Administration has claimed the president deserves absolute deference when he claims that an "invasion" exists. The absurd implications of this position were highlighted in yesterday's argument, when Fifth Circuit Chief Judge Jennifer Elrod (appointed by George W. Bush) asked whether the president could invoke the AEA in response to the "British Invasion" of rock stars, like the Beatles. "What if," she asked "the [President's] proclamation said 'we're having a British invasion.' They're sending all these musicians over to corrupt young minds…. They're coming over and they're taking over all kinds of establishments." Could courts then rule the president's invocation of the AEA was illegal? In response, Justice Department lawyer Drew Ensign admitted the government's position would require courts to still defer to the president, and allow him to wield the extraordinary emergency powers that can only be triggered by an actual "invasion."
The ridiculous implications of this response highlight a point emphasized in an amicus brief in the case, which I coauthored in the case on behalf of the Brennan Center, the Cato Institute, and others: the government's position would convert an emergency power that can only be used in extreme circumstances into a blank check the president can invoke any time he wants. I actually used the "British Invasion" example in my earlier article "Immigration is Not Invasion," though I don't know if Judge Elrod got it from there, or (more likely) came up with the same idea on her own.
Letting the president claim an "invasion" exists whenever he wants would create a very dangerous situation. In the event of "invasion," the president could use the AEA to detain and deport even legal non-citizen immigrants, with relatively little due process. In addition, when there is an invasion, the Constitution gives the federal government the power to suspend the writ of habeas corpus, thereby enabling it to detain people - including US citizens - without due process. Such sweeping power would pose a grave threat to civil liberties. For their part, state governments would have the power to "engage in war" in response, even without federal authorization. The Constitution was ratified only a few years before the AEA was enacted in 1798, and there is every reason to believe the meaning of "invasion" in the two documents in the same.
If either the Constitution or the AEA gave the president to declare the existence of an "invasion" at will and thereby invoke sweeping emergency powers whenever he wants, that point would have been raised by opponents at the time. Indeed, opponents did raise a variety of constitutional and other objections to the Alien Friends Act of 1798, which - unlike the AEA - really did give the president the power to detain and deport any non-citizens "as he shall judge dangerous order certain to the peace and safety of the United States." James Madison, Thomas Jefferson, and many others, therefore condemned the Alien Friends Act as unconstitutional, and a threat to civil liberties. By contrast, they mostly accepted the AEA, because it could only be used against citizens of countries with which the US is at war, or which had perpetrated an invasion or predatory incursion. I go into this history in greater detail in Part III "Immigration is Not Invasion."
During the Fifth Circuit oral argument, Ensign suggested that the issue of unjustified invocations of the AEA should be left to the political process. Congress, for example, could act to constrain the president. This ignores the fact that Congress already acted by mandating that the AEA can only be invoked in times of war, invasion, or predatory incursion, or the threat thereof. Unlike with the Alien Friends Act, a mere presidential assertion that a relevant danger exists is not enough. Rather, an invasion or predatory incursion, must actually exist in reality, not merely in the president's unsupported assertions.
As a practical matter, the idea that Congress can curb improper invocations of the AEA after the fact, is extremely dubious. Doing so would require new legislation that the president could easily veto. And the veto could only be overridden by a 2/3 majority of both houses of Congress, which is almost impossible to achieve at a time when many of the president's fellow partisans in Congress are likely to back him no matter what. This is one of several reasons why Congress instead constrained the president in advance, by setting out conditions that must be met before he can invoke extreme emergency powers. The same is true for the Constitution. Before the writ of habeas corpus can be suspended, there must be an actual "invasion" or "rebellion," not merely an unsupported assertion that one is happening.
Even if Congress could act more easily, this still would not relieve the courts of their duty to interpret and apply the text of the AEA and the Constitution, and objectively assess the relevant facts in cases that come before them. They cannot simply defer to the unsupported assertions of one of the parties to the litigation.
In part V of my "Immigration is Not Invasion" article, I outline additional reasons why courts should not defer to executive branch assertions that an invasion exists, under either the AEA or the Constitution. Elsewhere in the article, I explain why textual and historical evidence overwhelmingly shows that illegal migration and drug smuggling do not qualify as an "invasion." Rather, as James Madison put it in addressing this very issue, "invasion is an operation of war." It requires a military attack. The same is true of "predatory incursion," albeit the latter can be a smaller attack than an invasion. Fordham University law Professor Andrew Kent reaches similar conclusions in his important recent article on the AEA.
I hope the Fifth Circuit - and, ultimately, the Supreme Court - recognizes that the AEA and the Constitution do not give the President a blank check to invoke sweeping emergency powers whenever he feels like it. A contrary decision would go against the text and original meaning, and would create a grave danger to the civil liberties of immigrants and native-born citizens alike.
UPDATE: My recent Dispatch article, "Not Everything is an Emergency," outlines more general reasons why courts should not defer to executive invocations of emergency powers, but rather should require the government to prove that the supposed emergency justifying the use of extraordinary powers actually exists.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case: Last year, Portland, Me. police sent SWAT to apprehend a teen suspected of stealing cologne and shoes from a house party, even though the teen had no history of violence or anti-police animus. But then, bad to worse, SWAT officers jumped out on the wrong kid, handcuffing him at gunpoint and marching him around in front of schoolmates—even though they knew immediately they had the wrong guy (no tattoos, wrong hairstyle, etc. etc.). Click here to learn more.
New on the Short Circuit podcast: a punch up at a bachelorette party and the start of #12Months12Circuits. This time: Circuit the First.
The Herzogs, a prominent Jewish family, fled Hungary when Germany invaded in 1944. Their art collection was one of Europe's great private collections, including masterpieces by El Greco, Renoir, and Monet, but it was confiscated by the Nazis. The family scattered across the globe and began their eight-decade struggle to recover their art, much of which remains on exhibit in Hungarian museums (and some identified by tag as "From the Herzog Collection"). They're now on their fourth trip to the D.C. Circuit (after visits in 2013, 2017, and 2022), which delivers the bad news that U.S. courts lack jurisdiction over the family's claims.
Federal law penalizes "conscious, voluntary, and culpable" participation in a third party's terrorist activities, says the D.C. Circuit, which is bad news for these defendant companies alleged to have paid bribes to a Shiite militia in Iraq and to have supplied the militia with off-the-books medical supplies that were then sold on the black market, earning revenues that were used to harm Americans. Case undismissed. Read More
Less than a week after naming a new dean, the University of Arkansas Law School has rescinded the offer after state politicians raised concerns about her views on transgender athletes….
The appointee, Emily Suski, a legal scholar at the University of South Carolina, had been selected after a lengthy search, and the University of Arkansas's provost, Indrajeet Chaubey, had praised her work on medical partnerships to help low-income children when the choice was announced on Jan. 9. But on Wednesday, the school withdrew the appointment, saying that the decision was based on "feedback from key external stakeholders."
Members of the state legislature said the concerns were related to her signature on an amicus brief filed with the Supreme Court last year in support of transgender student athletes….
This led to considerable condemnation; the Association of American Law Schools, for instance, called it "a blatant violation of academic freedom, an alarming intrusion into university governance, and a threat to the legal profession in so far as political actors sought to penalize a lawyer for taking a legal position." My view, though, is somewhat different, for reasons that I think help illuminate some broader matters as well.
[1.] Let's begin with one modest hypothetical: Imagine that it came out that someone being considered as a possible dean at a California public law school had signed an amicus brief in opposition to allowing transgender student athletes to compete in women's sports (or in support of bans on surgical or pharmaceutical gender transitions for youths or something similar). Would we think that the candidate would be offered the position?
I would very much doubt it. And indeed if the candidate were rejected on these grounds, I think this would be a legitimate position for the decisionmakers (whether the university President, the UC Regents, or the legislators or governor pressuring the Regents) to take. Perhaps if this position were made public, many conservatives would be upset, much as many liberals are with regard to the Arkansas situation. But then too I would say: There's really not much justification for such upset.
The politically selected officials who directly or indirectly run the public university system are entitled to make sure that the leaders within that system share the officials' general worldview. Such leaders, including deans and not just university presidents, make all sorts of discretionary decisions, about programs and centers, curriculum, grading policy, admissions policy, and more.
The legislators who, on behalf of the citizens of the state, allocate taxpayer money to the university are entitled to help choose university leaders whom they trust. And even if support or opposition for transgender students in athletics isn't directly relevant to the particular dean's role, it's fair for political leaders to view that position as a proxy (however imperfect) for the dean's overall ideological approach more broadly.
A politically conservative professor may be a great scholar, and a great leader in the abstract. But he may not be the leader that a liberal legislature or Board of Regents/Trustees would want to choose. Likewise, I think, as to a politically liberal professor in a conservative state.
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by David M. Primo, Ani and Mark Gabrellian Professor at the University of Rochester and the co-author of Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters (and an expert witness in numerous campaign finance cases):
In ruling campaign spending limits to be unconstitutional, the Buckley decision handed down by the U.S. Supreme Court in 1976 reshaped election law, affirming that First Amendment protections extended to the speech of political candidates. It also made clear that campaign contributions were protected by the First Amendment and that such restrictions could only be justified to prevent corruption or the "appearance of corruption." I am grateful to the Court for its defense of the First Amendment. Still, I have felt compelled throughout my career to ask: do contribution limits actually achieve these goals?
If you ask Americans, as I have, whether the campaign finance system is corrupt, around 80% say yes. Meanwhile, courts since Buckley have largely agreed that most contribution limits—except really tiny ones—are self-evidently helpful for reducing corruption and the appearance of corruption, thereby ensuring "that confidence in the system of representative Government is not to be eroded to a disastrous extent." Reformers have beaten the "restore trust in government" drum to justify campaign finance laws ever since.
As a social scientist, I think evidence matters. Just because the public or the courts say something is true doesn't make it so. Fortunately, 50 years on from Buckley, we have reams of data on attitudes toward government, and we can use that data to better understand the relationship between the appearance of corruption and contribution limits.
For our 2020 book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, Jeff Milyo (who has written a thought-provoking essay for this series) and I built a dataset of nearly 60,000 survey respondents over a 30-year period from 1987 to 2017. These individuals answered questions about trust and confidence in government, and we know a lot of other things about them: their ideology, party affiliation, age, education, and so on. Meanwhile, states vary in whether they have contribution limits and when they implemented them, making them what political scientists are fond of calling "laboratories of democracy."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by Jeff Milyo, professor of economics and the Director of the Economic and Policy Analysis Research Center (EPARC) at the University of Missouri, and a Senior Fellow at the Cato Institute:
Concerns about money in politics bring into conflict the democratic ideals of liberty, equality, and justice enshrined in the U.S. Constitution. A free society will always exhibit inequalities of wealth and hence access to power and influence, thus imperiling the ideal of equal protection of the law. But efforts to regulate political activities, even setting aside potential hidden and nefarious motives, also violate the fundamental principles of free speech, association, and petitioning for redress of grievances (i.e., lobbying). Any democratic society must resolve this unfortunate tradeoff; American democracy does so in favor of liberty.
The U.S. Supreme Court decision in Buckley v. Valeo (1976) may be viewed through this lens. The Buckley decision makes clear that the government's interest in regulating politics is confined to policies that are narrowly tailored to address the actuality and appearance of quid pro quo corruption. As such, Buckley establishes bright lines for the kinds of regulation of political financing that may or may not pass Constitutional muster. For example, limits on the source and size of campaign contributions to candidates are permissible since they raise the specter of potential quid pro quo arrangements, but an outright prohibition on an individual's ability to support candidates or parties of their choosing goes well beyond what might be thought necessary to limit bribery and influence peddling. In contrast, limits on total spending by candidates for office are not directly related to preventing quid pro quo corruption between a contributor and candidate, so are not permissible.
There is also no anti-corruption rationale for limiting the amount of self-financing by candidates, since candidates cannot corrupt themselves. Similarly, as the Court noted in a later case, there is no anti-corruption rationale for limiting sources or amounts of financial support for speech on ballot initiatives; no amount of spending can change the wording of a ballot proposition, so no quid pro quo is possible via campaign financing of ballot measure campaigns.
These constraints on government regulation of political campaigns are straightforward implications of the anti-corruption rationale expressed in Buckley, but critics of the decision have muddied the waters by seeking to expand the concept of corruption to envelope "undue influence." This is definitely a more vague concept and not really amenable to bright line distinctions. Indeed, in thirty-plus years, I have never once heard anyone articulate a definition of "due influence." Instead, advocates of more regulation offer a modern miasma theory of corruption, whereby too much money and too much influence (most often by those who hold contrary views) constitute corruption.
In this final installment of our series on religious employment under Title VII, we address common objections to the textualist interpretation we describe in our BYU Law Review article. Each objection fails because it ignores Section 702's text or conflates statutory exemptions with constitutional doctrines. We conclude by expressing appreciation for Congress's handiwork—a statute that pursues equality and liberty together.
Racial Discrimination
Critics object that a textualist interpretation of Section 702 would open the door to racial discrimination. Not so.
Section 702 exempts a religious employer from Title VII only when it selects an employee "of a particular religion," a phrase that encompasses religious observances, practices, and beliefs. Adverse employment decisions for other reasons fall outside of Section 702. It follows that Section 702 permits discrimination only if differential treatment is founded in sincere religious observances, practices, or beliefs. And even critics of a textualist interpretation concede that racism is virtually unknown in modern American religious practice.
Bob Jones University v. United States is the best-known case of religiously motivated racism. There, the Supreme Court affirmed an IRS ruling withdrawing the University's tax-exempt status because of its ban on interracial dating and related policies. "Whatever may be the rationale for such private schools' policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy." But Bob Jones University involved tax-exempt status, not employment discrimination. If anything, it illustrates judicial intolerance for religiously motivated racial classifications.
It is highly unlikely that the Supreme Court would endorse Section 702 as a defense if a religious organization engaged in racial discrimination. Burwell v. Hobby Lobby Stores, Inc. noted that "[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." If Title VII's bar on racial discrimination satisfies strict scrutiny, Section 702 surely does not exempt a religious organization that crosses the line.
LGBT Equality Claims
Detractors claim that a textualist interpretation of Section 702 allows discrimination against LGBT employees. That criticism misconceives Title VII as an unqualified guarantee of employment nondiscrimination for protected classes. It is not. As our article explains, "Protected classes are guaranteed equal employment opportunity insofar as the statute prescribes it." An LGBT claimant can no more demand that a religious employer disregard its religious employment standards than a small business employee can bring a viable Title VII claim despite the statute's 15-employer threshold.
On Wednesday, the Supreme Court heard oral argument in Trump v. Cook. The leading accusation in this case is that President Trump wanted some excuse to fire a Federal Reserve Board Governor, so he had his administration trump up charges based on mortgage fraud. (I've written about how Collins v. Yellen enabled Bill Pulte, the director of the FHFA, to investigate Cook.) On Thursday, Jack Smith testified before Congress about his service as special counsel. In a somewhat similar fashion, the leading allegation was that the Biden Administration wanted Trump to be indicted, so Merrick Garland retained Jack Smith to trump up some charges. I am sure people on the right would never view Cook in this fashion, and people on the left would never view Smith in this fashion, but the perceptions are there.
This topic was referenced, perhaps indirectly, during oral argument in Cook.
Justice Kavanaugh brought up Justice Scalia's Morrison v. Olson dissent. Kavanaugh, alluding to some amicus briefs, suggested that the mortgage fraud charges were simply a pretext to fire Cook.
JUSTICE KAVANAUGH: But that leads -I mean, that brief, that amicus brief, cites Justice Scalia's dissent in Morrison, which is always a good place to look for wisdom, and the --the concern that you're putting all these resources --because you can't say it's for policy, putting all these resources, let's find something, anything, about this person and --and --and --and then we're good. And, by the way, there's no judicial review, so we're really good. And there's no administrative process.
Justice Scalia's wise words are worth quoting:
As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"?
In short, give me the man, and I'll find the crime.
Later in the argument, Paul Clement referred back to Justice Kavanaugh's invocation of the Morrison dissent:
MR. CLEMENT: And, I mean, Justice Kavanaugh alluded to the Morrison dissent and, you know, Justice Scalia creating this beautiful picture of some independent counsel with nothing to do but to find a crime on somebody. But, if all the independent counsel has to do is find gross negligence, then I don't think the independent counsel would need more than a couple of hours with most of us. I mean, that's such an elastic standard. And I just can't imagine that's consistent with all the trouble Congress went to to make this unique entity insulated from kind of the political pressures of the day.
I'm not sure the analogy between Trump's firing of Cook and Alexia Morrison's investigation of Ted Olson quite fits. For starters, the President has the power to remove principal officers, and Congress expressly empowered the President to do so if there is "cause." The independent counsel, on the other hand, was a constitutional aberration that has no grounding in history or tradition. But the differences go deeper. Scalia's objection was, to be sure, that motivated prosecutors can pin a crime on anyone. But the problem of the Independent Counsel, and I would add Jack Smith, is a complete lack of accountability. Though they exercised sweeping powers, they were not nominated by the President and confirmed by the Senate. Moreover, there were protections against their removal, which made it difficult for accountable officials to supervise them. By contrast, the President is duly elected, and is fully accountable. Trump has taken massive political hits for firing Cook, and threatening Powell. I don't think the analogy quite works.
Solicitor General Sauer pushed back against the insinuation that the President had some improper motivations in firing Cook. Sauer cited the presumption of regularity.
GENERAL SAUER: One of the strongest traditions in this Court's jurisprudence is the --the sort of presumption of regularity to the president's action. That has applied to this provision, I think, effectively for 112 years and it continues to do so.
Sauer returned to the presumption in a later exchange with Justice Kavanaugh:
GENERAL SAUER: And, again, I disagree with that. I think that the --that argument, that presumption [of regularity], when applied to the president, contradicts a very, very --two very strong strains in this Court's jurisprudence that go back to the founding.
Sauer made the point again, citing the cases from Martin v. Mott to Trump v. Hawaii:
GENERAL SAUER: This Court has since Martin against Mott, running all the way through Trump against United States, Trump against Hawaii, a whole host of decisions, accorded, consistently afforded the president the presumption of regularity in his action and consistently declined to probe a president's actions for, you know, their --for their subjective motivations. And so, in the hypothetical question that you pose, that hypothetical future president should also be afforded the very same sort of deference and --and -
A common theme of the Trump presidency is that Trump is not entitled to the presumption of regularity. It would be very dangerous if the Supreme Court gave any credence to this charge.
There was a related exchange between Justice Barrett and the Solicitor General. Barrett asked what's the big deal about a court-ordered hearing before firing Cook:
4:10 PM: University IT engineers continue to monitor updates from Microsoft. They reported initial progress but have acknowledged setback in the deployment of their remediation. Mail to M365 accounts continues to fail at this time.
1:27 PM: Users continue to experience delays sending and receiving email due to a widespread Microsoft 365 (M365) outage. University IT teams are actively monitoring the issue. Updates are provided on uit.stanford.edu as information becomes available. Thank you for your continued patience.
12:55 PM: Users may experience delays sending and receiving email due to a widespread Microsoft 365 (M365) outage impacting several M365 services. University IT teams are actively investigating the issue and will share updates as more information becomes available.
Plaintiff also objects to the Magistrate Judge's refusal to consider one of its sanctions requests (specifically, to resume Defendant's deposition under special conditions) because the request was presented in a footnote. Plaintiff characterizes this refusal as contrary to law, arguing that courts routinely consider unopposed arguments, even when raised in footnotes, and that Magistrate Judge Reinhart's reliance on Sony Music Ent. v. Vital Pharms., Inc. (S.D. Fla. 2022), was misplaced. This objection is overruled. While a court certainly can address a properly preserved argument made in a footnote, Plaintiff cites no Eleventh Circuit or Supreme Court precedent requiring consideration of such buried arguments. Magistrate Judge Reinhart did not clearly err in declining to consider that request, made in a footnote, in the context of Plaintiff's many other requests.
And here's a similar passage from Judge William Dimitrouleas's decision in Sony:
Plaintiffs also request summary judgment on over a dozen of Defendants' affirmative defenses in footnotes throughout their motion. As Defendants point out, addressing legal arguments in footnotes is an incorrect method to present substantive arguments on the merits or otherwise request relief from the Court. Connor v. Midland Credit Mgmt., Inc., No. 18-23023CIV, 2019 WL 717413, at *4, n. 1 (S.D. Fla. Feb. 20, 2019) (citing Mazzeo v. Nature's Bounty, Inc., No. 14-60580, 2014 WL 5846735, at *2 n.1 (S.D. Fla. Nov. 12, 2014) (not considering argument raised in a footnote); see also Mock v. Bell Helicopter Textron, Inc., 373 F. App'x 989, 992 (11th Cir. 2010) (deeming argument waived because it was raised only in a footnote)). Thus, the Court will not address Plaintiffs' request for summary judgment as to Defendants' affirmative defenses.
