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Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
If people ask you to say things you don't want to say, you can colloquially respond, "I take the Fifth" (referring to the Fifth Amendment's privilege against self-incrimination). So if people tell you not to take that next drink, you should say, "I take the Twenty-First."
(To be sure, sometimes you really shouldn't take that next drink. But then again, sometimes you shouldn't be taking the Fifth, either.)
In 2018, Chief Justice Robert declared, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges." In election case after case, Trump appointees have proved the Chief was right about something.
Today, a unanimous Eleventh Circuit panel turned away L. Lin Wood's emergency appeal to enjoin certification of the Georgia election results. Chief Judge Bill Pryor wrote the majority opinion, joined by Judges Jill Pryor and Barbara Lagoa. Yes, the same Judge Lagoa who was on the super shortlist for the RBG seat. And you may recall that Pryor was on the super shortlist for Justice Scalia's seat.
Yesterday, another unanimous Eleventh Circuit panel denied relief in Sidney Powell's "Kraken" suit. Judge Andrew Brasher wrote the majority opinion. Trump had appointed Brasher to the District Court and to the Eleventh Circuit. He was joined by Judges Wilson and Rosenbaum.
Yesterday, Judge Brett Ludwig, a Trump appointee to the Eastern District of Wisconsin expressed serious concern about another Trump case. The Milwaukee Journal-Sentinel reported that Judge Ludwig "told an attorney for the president he was asking for 'pretty remarkable declaratory relief' by asking to have the fate of Wisconsin's 10 electoral votes decided by the Republican-led Legislature instead of voters.
Last week, a unanimous Third Circuit panel rejected President Trump's emergency appeal in a Pennsylvania case. Judge Bibas, one of Trump's first circuit appointees, soundly ruled against the President who appointed him. He was joined by two other W. Bush nominees, Chief Judge Smith and Judge Chagares. (Jon Adler wrote about the opinion here.)
I'm sure there are other cases I missed. But you get the idea.
Last term at the Court, Justice Gorsuch and Kavanaugh ruled against the President in Trump v. Vance, the New York tax return case. Well, nominally ruled against him at least: they still declared their independence.
For a generation, self-interested critics will deem Trump-appointed judges as illegitimate by association. Trump will have attainted them! At least during the final year of the Trump presidency, the new appointees have faithfully followed their oaths.
Today in Supreme Court History
12/5/1933: The 21st Amendment is ratified.
From Pruitt v. Smith, decided last month by the Arkansas Supreme Court (in an opinion by Justice Shawn A. Womack):
[A]rticle 5, section 9 of the Arkansas Constitution, "Persons Convicted Ineligible," provides:
(a) No person convicted of embezzlement of public money, bribery, forgery, or other infamous crime is eligible to the General Assembly or capable of holding any office of trust or profit in this state.
(b) As used in this section, "infamous crime" means: … (4) A misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement, including without limitation a misdemeanor offense related to the election process….
[David] Pruitt pled guilty to subsection (a)(19)(A), which states, "No person shall [v]ote, knowing himself or herself not entitled to vote." … [T]he statute … requires a culpable mental state—"knowing." Further, voting when not entitled is inherently dishonest, and when Pruitt pled guilty to the offense, he was required to admit having committed a deceitful act….
Pruitt had his misdemeanor conviction sealed pursuant to the Comprehensive Criminal Record Sealing Act. In Ark. Code Ann. § 16-90-1417, the Act details the effect of sealing a person's criminal history, providing in pertinent part:
(a)(1) A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law
In Haile v. Johnston (Ark. 2016), … a registered voter … filed a petition for declaratory judgment and writ of mandamus alleging Josh Johnston was constitutionally ineligible to run for or hold the public office of Cleburne County Sheriff. Johnston had previously pled guilty to a violation of the Arkansas Hot Check Law; however, his misdemeanor conviction was subsequently sealed …. This court [concluded that] the plain language of Ark. Code Ann. § 16-90-1417 dictated as a matter of law that Johnston's misdemeanor conviction never occurred once the record was sealed, and all of his privileges and rights were restored…..
Here, Pruitt pled guilty to section 7-1-103(a)(19)(A). Subsection (b)(2)(A) specifically provides that "[a]ny person convicted under the provisions of this section shall thereafter be ineligible to hold any office or employment in any department of this state." In contrast, Johnston was convicted under the Arkansas Hot Check Law, which includes no such provision limiting the restoration of rights after a record has been sealed. Under the plain and unambiguous language of section 16-90-1417(a)(1), the General Assembly reserved the authority to limit the effect of sealing in certain circumstances. With the inclusion of subsection (b)(2)(A), the General Assembly deliberately chose to exclude from public office all persons found guilty of election-related misdemeanors, regardless of whether the record is later sealed. Accordingly, we must conclude Pruitt is ineligible to hold the public office of alderman….
I think this result is right, but I wonder whether this should be seen as a state constitutional mandate, and not just a matter for the legislature to decide by statute. Haile held it wasn't a state constitutional mandate, citing Powers v. Bryant (1992), which in turn held:
Appellant argues that the mere "fact" of a prior conviction, regardless of whether the conviction has been expunged or voided, renders a citizen constitutionally ineligible to hold public office under art. 5, § 9. Appellant cites no authority to support his rigid constitutional interpretation, and we reject this argument based on the reasoning recently set out in Tyler v. Shackleford (1990). In the Tyler case, we discussed the legal effect of expunction under the Federal Youth Corrections Act, and relied on decisions of the Fifth and Sixth Circuits holding that expungement under the federal act actually removed the fact of a conviction. We adopted the reasoning of the Fifth Circuit in holding that following a discharge under the federal act, "the disabilities of a criminal conviction are completely and automatically removed; indeed, the conviction is set aside as if it had never been."
While appellant attempts to distinguish Tyler by pointing out that the Tyler case dealt with the effect of expunction under a federal law, we find the distinction irrelevant for purposes of this case. Judge Lineberger's order granting the writ of error coram nobis clearly stated that Doshier's 1932 convictions were "null and void." As Judge Lineberger's order manifested an intent to set aside Doshier's conviction as if it had never occurred, we find no constitutional violation in Doshier's holding of public office.
Are you folks persuaded? Or would you say that, even if federal expungement law preempts state constitutional provisions disqualifying convicted criminals from state office, mere state statutes can't do that—and a state court decision merely sealing a conviction can't make things "as if [the conviction] had never occurred"?
I have long argued that during the pandemic, "essential" services is a synonym for "important" services. Some governors think houses of worship are important/essential. Other governors think abortion services are important/essential. The right/left divide here is patent. (I spoke about this issue on the Lawfare podcast). But governors of all stripes agree that retail is essential. The argument goes, people need to buy stuff to survive, and people need to work in retail establishments to remain employed. Governors are never crass enough to come out and say that businesses are deemed "essential" because of their favorable economic impact. But what if they did? What if the government simply said, "We cannot shut down business X because too many people would lose their jobs; we'll flatten the curve somewhere else."
Well, the United Kingdom has stated this issue bluntly. Generally, the nation requires inbound travelers to quarantine after arrival. But not all travelers. Only unimportant people. The government has announced a series of exemptions for important people:
From 4am on Saturday 5 December, individuals undertaking specific business activity which would deliver a significant benefit to the UK economy – including activity that creates or preserves 50+ UK jobs – will no longer need to self-isolate when travelling or returning from non-exempt countries.
Individuals will only be exempt when undertaking the specific business activity and will only be able to meet with others as required by that specific activity. Further information will be available on gov.uk when these exemptions come into force.
Exemptions will also come into force at the same time for domestic and international performing arts professionals, TV production staff, journalists, and recently signed elite sportspersons, ensuring that industries which require specific, high talent individuals who rely on international connections can continue to complete their work.
PHE do not anticipate these changes will raise the risk of domestic transmission, due to the protocols being put in place around these exemptions, however all exemptions will remain under review.
I appreciate the candor. The country is willing to accept the risk of transmission from very, very important people. Elite athlete? Welcome aboard. Recreational tennis player? Stay in quarantine.
Would this measure be constitutional in the United States? I think so. Classifications based on economic status are (thankfully) non-suspect. And the government certainly has a rational basis to treat people differently based on their economic impact. Kelo reached this holding explicitly. Still, this sort of policy would be very unpopular in the U.S. It would make clear that "essential" workers is merely a synonym for "profitable" workers.
In time, the entire "essential" edifice needs to be dismantled once this pandemic subsidies. Governor should not be vested with such absolute authority to decide who and what is important based on arbitrary whim.
Generally, the Circuit Justice plays a minimalist role. He can deny frivolous emergency applications without referral to the full Court–often without even calling for a response. For meritorious emergency applications, the Circuit Justice can call for a timely response, and then refer the matter to the full Court. But there is a third path for the Circuit Justice that is less obvious: de facto denial by delay.
The Court will not grant emergency relief without hearing from the other side. Sometimes, the Circuit Justice will enter an "administrative" stay that preserve the status quo will briefing concludes. But that stay will usually only last a few days.
Some emergency applications need relief by a certain date. For example, the state schedules an execution date and time. The Court must decide the pending application before the execution date and time. If the Court waits too long, the prisoner will be executed, and the application becomes moot. Recently, this frantic briefing schedule has created public schisms on the Court. Another example might concern an election. The Court may have to issue a ruling before an election is held so administrators know what rules to apply. Indeed, the so-called Purcell principle was used consistently this year to avoid last-minute changes to election rules.
This year, post-election litigation is facing a pressing deadline. December 8 is the so-called "safe harbor" date. Under the Electoral Count Act, elections settled by this date will be treated as presumptively valid by Congress. On December 3, a congressional candidate from Pennsylvania filed an emergency application with the Court. For this appeal to have any chance of succeeding, the Court would have had to resolve the application before December 8. The Court could have easily ordered a 24-hour briefing schedule. Sucks for the parties, but the Court seldom considers the burden of tight deadlines. But Circuit Justice Alito ordered a response by December 9. Generally, six days is the standard reply time for an emergency application. And, apparently, Justice Alito did not think the case warranted faster consideration.
By slow-walking the response, Justice Alito effectively denied the application. Election Law professor Rick Hasen explained, "By setting the deadline for a response as December 9, this means that the Supreme Court won't act until well after the safe harbor deadline has closed, making it even less likely that the Supreme Court would overturn the results in Pennsylvania."
Another aspect of shadow docket litigation: de facto denial through by granting the full six days for a call-for-response.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
In 2015, CBP agents seized Gerardo Serrano's truck as he tried to cross the border into Mexico. Gerardo asked for a hearing before a judge, and then he waited. And waited. And waited. Two years later, he filed a class action on behalf of all U.S. citizens whose vehicles are seized at the border, claiming that CBP's failure to provide for a prompt post-seizure hearing violates due process. The Second Circuit has previously required prompt post-seizure hearings, in an opinion by then-Judge Sotomayor, but the Fifth Circuit disagreed and ruled against Gerardo. Now, in a petition filed this week, IJ is asking the Supreme Court to resolve the split. Click here to learn more.
When Joe and Annalyse Victor bought a home in rural Eagle, Wisconsin, they purposefully selected a 10-acre property where Joe, a commercial driver, would be able to park his trucks outside (just as the previous owner had done). But town officials decided to start enforcing code violations more strictly, and, though Joe moved his trucks inside, the Victors found themselves facing $88k in fines, which had been racking up daily without any notice from the town. Indeed, town officials routinely impose outrageous fines for insignificant offenses, often targeting residents who criticize the town board. To make matters worse, the entire system is tainted by a profit motive for the private law firm contracted to handle code enforcement. This week, the Victors' joined with IJ to put a stop to the town's abusive fines and fees enforcement. Click here to read more.
This is my last guest post of the week, and I'd again like to thank Eugene Volokh for inviting me to share some selections from The Fabric of Civilization. These posts on "social technologies" are all taken from chapter five, "Traders."
Thomas Salmon had a problem. As a tax collector in Somerset, Salmon had amassed thousands of pounds of gold and silver that needed to get to London. But the England of 1657 had no checking accounts, wire transfers, or armored cars. Physically traveling with that much specie was difficult and dangerous. What was Salmon to do?
He took the coins to local cloth makers, known as clothiers. In return, they gave him slips of paper called bills of exchange. These bills worked like checks, but instead of drawing on a bank they told a London businessman named Richard Burt to give Salmon cash. Burt bought woolen cloth from scattered producers and sold it to London merchants, taking a commission from the sale.
When he sold their goods, Burt kept the clothiers' credits on his books, and they drew down their accounts with bills of exchange. A Somerset clothier could buy household provisions from a local merchant and pay with a bill of exchange. The merchant would cash the bill on a trip to London or, more likely, use it to pay his own suppliers who had dealings there. Accepting coins from the tax man was yet another way for clothiers to cash in their credits. Salmon would carry the bills of exchange to London, swap them for specie at Burt's, and deposit the money at the treasury. An institution created to serve the textile industry had become crucial to the finances of the British Crown.
Originating with Italian textile merchants in the 13th century, bills of exchange have been called "the most important financial innovation of the High Middle Ages." They started as a way for merchants to transfer proceeds from the fairs at Champagne back to the home office. Written in a kind of shorthand, these slips of paper were essentially form letters telling an agent, usually a bank, in another city to pay someone a certain amount; when a merchant issued a bill of exchange, his local bank sent a notice to its foreign branch, telling it to honor the bill when presented. Bills of exchange were not official, state-sanctioned documents, designed in advance but, rather, social technologies that evolved through trial and error. Their usefulness depended on connections and trust.
As merchants built up networks of offices in multiple places, bills of exchange became increasingly flexible. By the early 14th century, you could cash one in most major cities in western Europe. Whether to buy wool or pay armies, coins no longer needed to be hauled over land and sea. "Bills of exchange," historian Francesca Trivellato writes, "were the invisible currency of early modern Europe's 'international republic of money.'"
Although bills began as a way to easily transport funds and convert foreign money, they quickly evolved other uses. For starters, they addressed the shortage of currency by enabling many more transactions with the same amount of specie.
To see why, consider two hypothetical English businessmen. The first ("John") exports raw wool, selling it to a Florentine merchant ("Giovanni") for a bill of exchange payable in London. The second ("Peter") imports silk fabric, buying it (from "Piero") with a bill of exchange payable in Florence. On the banks' books, the two bills can be offset against one another, with only the difference actually changing hands as currency. A small supply of coins can enable many more exchanges. "Such a system could be incredibly efficient," writes economist Meir Kohn. "For example, between 1456 and 1459, one bank in Genoa received 160,000 lire in payments from abroad in bills of exchange, and only 7.5% of this amount was settled in cash: the remaining 92.5% was settled in bank."
Bills of exchange also provided credit. In its simplest form, they gave users a float. A bill was made payable not immediately but after a certain period, or usance, from its date of issue. The usance was somewhat longer than the usual travel time between the two cities, ensuring that notice to honor the bill could reach the payer. The cushion added an extra grace period to the short-term loan.
Over time, merchants figured out ways to turn bills of exchange into overt loans. In a common but oft-condemned practice known as dry exchange, the first bill of exchange was paid not in cash (or an account offset) but with a new bill of exchange that simply reversed the original one. This paper swap created an interest-free loan twice as long as the usance. Lenders could extend the terms by adding multiple round-trip exchanges.
With a slight variation, dry exchange could dodge bans on charging interest. The trick was to alter the exchange rate on the return bill. If, for instance, a merchant in Bordeaux exchanged 100 livres for an original bill payable for 140 guilders in Amsterdam, the return bill might repay the 140 guilders with 105 livres in Bordeaux.
Over time, bills of exchange became negotiable. You could transfer a bill originally made out to you simply by signing the back. The signature conveyed the legal obligation for you to make good on the underlying debt if the bill couldn't be cashed. Once bills of exchange were negotiable, they became more liquid. If you needed cash, you could sell your bills at a discount off their face value, just as bonds change hands today. Or you could issue a new bill of exchange and sell it at a discount to a money broker to redeem later. At least in theory, there was no limit to the number of times a bill could be endorsed, passing from one owner to the next.
"The product of this evolutionary process—the discounting of negotiable bills of exchange—was a financial invention of enormous economic importance," writes Kohn. "Indeed, in the seventeenth and eighteenth centuries it was to become the foundation of modern commercial banking."
Negotiability made bills increasingly useful in everyday commerce, outside of specialized money markets. Although no one had to accept them as payment—bills of exchange were not legal tender—if people trusted the signatories, they were nearly as good as cash.
Despite risks of default, bills of exchange endured, fading from everyday commerce only when superseded by currencies from central banks. As late as 1826, a Manchester banker testified to their continuing popularity, telling a parliamentary inquiry that he'd seen £10 bills of exchange circulating with a hundred or more signatures. "I have seen slips of paper attached to a bill as long as a sheet of paper could go," he said, "and when that was filled another attached to that."
Today in Supreme Court History
12/4/1933: Nebbia v. New York argued.
RESULTS: Uunona Adolf Hitler of the SWAPO party is the duly elected councilor of the Ompundja Constituency.#NamVotes2020 #NamibiaVotes2020 #EagleFM pic.twitter.com/6ZQqaNctZx
— Eagle FM Namibia (@EagleFMNam) November 26, 2020
The BBC has the story. I'm not worried, but …. Thanks to Ed Driscoll (InstaPundit) for the pointer, and thanks, as always, to the Amazonia-Ambazonia connection.
UPDATE: Commenter Absaroka writes, "Who has 'Adolf Hitler elected' in the 2020 sweepstakes?"
This morning, the Court punted away Harvest Rock v. Newsom. A few hours later, Governor Newsom announced a new "stay at home" order that could apply to huge portions of the state.
California Gov. Gavin Newsom introduced Thursday the framework for a regional stay-at-home order, with the expectation that most of the state will fall under the more stringent requirement in days, with the Bay Area lagging a week or two behind. No regions have been placed into this regional stay-at-home order at this time.
Newsom said the state has created five regions by grouping counties based on hospital networks: Bay Area, Greater Sacramento, Northern California, San Joaquin Valley and Southern California.
Regions will be required to implement shutdown rules when intensive care unit capacity falls under 15%, and the governor said state projections show all regions except the Bay Area reaching this point in early December. It's estimated the Bay Area will follow in mid- to late December.
Regions that fall under the stay-at-home order will have 48 hours to close several business sectors including all dining (both indoor and outdoor), bars, wineries, personal services, hair salons and barbershops. The order expires three weeks after it is implemented but can be extended.
The Governor's explanatory site explains that "places of worship and political expression" can "allow outdoor services only." In short, all houses of worship will be shut down. Shopping malls stay open at 20% capacity. But churches must close. And the order lasts for three weeks. Just enough time to frustrate Supreme Court review. This awful game of whac-a-mole continues.
The petitioners in Harvest Rock should file a motion for reconsideration, and seek an injunction pending appeal.
I've pasted below the fold the specifics of the program:
In this post, I review Ilya Shapiro's important new book Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. Unfortunately, the "other" Ilya and I often get confused with each other. To prevent this review from fostering the growth of the pernicious phenomenon of #IlyaConfusion, I recommend reading my definitive guide to telling the two Ilyas apart. On to the actual review!
It's hard to think of a better-timed book than Ilya Shapiro's Supreme Disorder. The book was officially released in September, just a few days after the passing of Supreme Court Justice Ruth Bader Ginsburg. That event soon led to Donald Trump's nomination of Amy Coney Barrett to fill the seat in a rushed confirmation process that concluded just before the 2020 presidential election. Democrats understandably cried foul, and pointed out how the GOP's actions contradicted their own insistence, in 2016 (when President Barack Obama nominated Merrick Garland to fill the seat vacated by the death of Justice Antonin Scalia), that Supreme Court nominations should not be taken up in an election year.
The clashes over the Garland and Barrett nominations were just part of a long series of other bitter conflicts over Supreme Court seats, including the bitterly contested nominations of Robert Bork, Clarence Thomas, Brett Kavanaugh, and others. Long gone are the days when SCOTUS nominees were routinely confirmed with little or no controversy.
Ilya Shapiro's book is not only timely, but also invaluable as a guide to the history of political battles over Supreme Court nominations, as well as a thorough discussion of possible reform proposals to improve the confirmation process. He traces the history of those conflicts from the early days of the republic on through the bitter fight over the nomination of Brett Kavanaugh in 2018.
As Shapiro shows, conflict over nominations is not a new thing. In the early 1800s, the Federalists and Democratic-Republicans each maneuvered in various ways to gain control of the courts. Later, in the 1860s, the Republican Party twice adjusted the size of the Court—each time primarily for the purpose of securing a majority of justices amenable to the party's positions on various key constitutional issues. Franklin D. Roosevelt's 1937 court-packing plan was a less successful effort to achieve a similar result (though some historians still argue that the threat of court packing triggered a "switch in time that saved nine," even as the dominant view among scholars has shifted away from that position).
At the same time, Shapiro describes how, during many periods in American history, Supreme Court nominations attracted little or no controversy. For example, John F. Kennedy's 1962 nomination of Byron White resulted in only a brief, perfunctory Senate hearing, much of which was devoted to discussion of White's earlier career as an professional football player! Such a process is almost unimaginable today.
As Shapiro explains, the key difference between 1962 and the present day is not that politicians were nicer back then or that judicial nominees were better qualified, but that in 1962 there was much less polarization on legal issues between the two major parties. Today, there is a stark difference between Republican and Democratic SCOTUS nominees on both methodology (originalism vs. living constitutionalism) and likely votes on specific issues, such as abortion, gun rights, religious liberties, executive power, campaign finance regulation, and much else. By contrast, such partisan differences between nominees were much more modest in the 1960s—and during other periods when SCOTUS nominations attracted little controversy.
In the part of his book devoted to more recent events, Shapiro traces the gradual increase in conflict over Supreme Court nominations during the last several decades. One symptom of the growing conflict is that Democrats and Republicans each have their own conflicting narratives about when the conflict began and who is responsible. Each claims that it was the other party that violated norms, while they themselves only acted defensively.
Although Shapiro is, on the whole, more sympathetic to the conservative side than the liberal one, it is to his credit that he provides as balanced an account of this history as we are likely to get. For example, many conservatives point to the defeat of Robert Bork's nomination in 1987 as a precedent-shattering event that destroyed previous norms of Senatorial deference to "qualified" nominees. Bork's defeat was indeed a notable turning point in the conflict. But, as Shapiro explains, it was prefigured by such earlier events as Republicans' successful maneuvering (with the aid of conservative Democrats), to block the elevation of Justice Abe Fortas to the position of Chief Justice in 1968-69, thereby enabling Richard Nixon to appoint the more conservative Warren Burger to the post after he narrowly won the 1968 election. Still earlier, segregationist senators had (albeit unsuccessfully) forcefully opposed the nomination of appointees seen as sympathetic to civil rights (most notably Thurgood Marshall in 1967).
Shapiro also notes that, while Bork was the victim of some ridiculous and scurrilous charges (such as bogus claims that he sought to bring back the days of segregation and slavery), he also held views on some issues that really were out of the mainstream, and are today rejected by most conservative judges and legal scholars. Among other things, he believed that the Bill of Rights was not properly "incorporated" against state and local governments, and had an extremely narrow view of freedom of speech. Viewed in historical perspective, the Bork nomination was not a sudden break with the past, but rather an escalation of a conflict that had already begun, as the parties diverged more on key legal issues in the late 1960s and 1970s.
More recent judicial nomination battles also feature gradual escalation, as opposed to completely unprovoked aggression by one side or the other. For example, the GOP's blocking of the Garland nomination in 2016 was prefigured by Democrats' very similar tactics in blocking a series of GOP lower-court nominees in the early 2000s, including some that were seen as likely future Supreme Court nominees (such as DC Circuit nominees Peter Keisler and Miguel Estrada). In all of these cases, the Democrats sat on the nomination for years, without letting it come up for a vote (much as the GOP later sat on the Garland nomination). Prominent Democrats (including then-Senator Joe Biden) also threatened to block GOP SCOTUS nominees in election years in 1992 and 2008 (though the opportunity to act on this intention did not actually arise in those years).
Blocking a Supreme Court nominee without a vote was an escalation that went beyond previous shenanigans. But it did not arise in a vacuum. The same goes for the GOP's 2017 repeal of the filibuster for Supreme Court nominees (adopted to push through the nomination of Neil Gorsuch), which built on the Democrats' earlier 2013 abolition of the filibuster for lower-court nominees (in order to push through Obama nominees opposed by GOP senators). The Democrats' actions, of course, were a response to GOP efforts to block Obama's nominees, which in turn were in part a reaction to Democrats' blocking of various George W. Bush nominees. And so it goes.
Ultimately, as Shapiro effectively explains, the roots of such skullduggery reside less in the nefarious nature of specific politicians, than in the growth of partisan polarization. The more nominees of different parties systematically diverge on key issues, the greater the incentive to block opposing-party nominees, and ram through your own—regardless of norms.
While Shapiro makes a strong effort at balance, in a few instances his relatively greater sympathy for the conservative side in these battles does lead him astray. For example, he suggests that the debate triggered by the sexual assault accusation against Brett Kavanaugh during his 2018 confirmation hearing "wasn't really about Kavanaugh," but about liberal Democrats' opposition to GOP SCOTUS nominees more generally. In reality, a plausible accusation of assault would have triggered strong opposition even during less contentious periods. The real difference is that, during an era with less polarization, a nomination with such a cloud over it would likely have simply been withdrawn. The president could take such action confident in the knowledge that the Senate would go on to confirm another nominee with a similar judicial philosophy, but no hint of scandal. And the opposition party (at least most of it) would accept the new nominee.
In 2018, the Republicans dug in on the Kavanaugh nomination in large part because they feared that withdrawing it would enable the Democrats to "run out the clock" until the 2018 midterm election after which the party might have a stronger position in the Seante (though, as it turned out, it was the Republicans who gained seats on net). Both sides calculated there was little to be gained from compromise or restraint.
In the last part of the book, Shapiro goes over a number of possible proposals to improve the nomination and confirmation process, and deescalate the conflict over it. They range from modest changes to the confirmation process, all the way up to more radical ideas such as term limits for SCOTUS justices and various plans to "pack" or "balance" the Court. This part of the book functions as a handy guide to various proposals for reform of SCOTUS, and the arguments for and against them.
While Shapiro gives a lukewarm endorsement to term limits and also urges the abolition of confirmation hearings (I disagree for reasons outlined here), on the whole he argues that such procedural structural reforms are unlikely to defuse the conflict. At least not so long as we continue to have deep polarization over judicial philosophy and ideology. His argument on that point is highly persuasive. I would add that, in the process of considering reforms, we should be wary of those that are likely to make the conflict worse, and in the process undermine the valuable institution of judicial review—most notably court-packing.
One proposal Shapiro doesn't consider is restoring the filibuster for SCOTUS confirmations. If the filibuster is brought back and presidents must, in effect, secure 60 votes to get a nominee through, that would incentivize them to appoint more moderate justices who have at least some substantial bipartisan support. This idea deserves further exploration (perhaps in a second edition of Shapiro's book!). But it is unlikely to be implemented anytime soon, in part because the Senate majority is will be reluctant to tie its own hands, especially given the prospect that the opposing party will simply change the rules back whenever they get the majority. In addition, it's not clear that more moderate SCOTUS justices are necessarily better ones. Historically, there have been many situations where "mainstream" views were badly wrong about key constitutional issues, while more "extreme" outliers were right.
Shapiro's own proposed solution to the conflict is to limit federal government power generally, and that of the executive branch in particular. In that event, he claims, the stakes of judicial review would be smaller than now, and there would be less conflict over SCOTUS nominations, as a result.
Like Shapiro, I favor tightening limits on federal power, and believe that greater decentralization can help defuse partisan conflict generally. But I am skeptical that this approach will do much to defuse conflicts over Supreme Court nominations, in particular. Many of the most contentious questions that come before the Court are actually primarily about judicial review of state and local laws. Examples include gun control, abortion, religious liberties, takings and other property rights issues, and much else. Conflicts over SCOTUS' role on these matters would continue even if federal power was cut back. Even Shapiro himself concedes that his solution is a partial one, and that it might only have a major impact in the long run.
In sum, I highly recommend Shapiro's book to anyone interested in the history of conflict over Supreme Court nominations, and in various reform proposals intended to ameliorate that conflict. If Shapiro is better at diagnosing the disease than in proposing a cure, it may be because there is no easy cure available, so long as we continue to be a highly polarized society.
On September 2, 2020, the Central District of California denied a preliminary injunction in Harvest Rock Church v. Newsom. The five-page order upheld the Governor's restrictions on houses of worship, based on the reasoning of the (dearly departed) South Bay concurrence:
"Because the Orders restrict indoor religious services similarly to or less than comparable secular activities, it is subject to rational basis review, which it easily passes: by limiting certain activities, the Orders reduce person-to-person contact, which in turn furthers the interest of reducing COVID-19 spread."
One month later, on October 1, the Ninth Circuit denied a motion for an injunction pending appeal. Judge O'Scannlain dissented from that order. He argued, correctly, that South Bay was not a binding Supreme Court precedent:
I first clarify a point that is somewhat obscured by the majority's decision: we are neither bound nor meaningfully guided by the Supreme Court's decision to deny a writ of injunction against California's restrictions on religious worship services earlier this year. See South Bay United Pentecostal Church, 140 S. Ct. at 1613. That decision, which considered a challenge to an earlier and much different iteration of California's restrictions, was unaccompanied by any opinion of the Court and thus is precedential only as to "the precise issues presented and necessarily decided." Mandel v. Bradley, 432 U.S. 173, 176 (U.S. 1977) (per curiam).
Harvest Rock did not seek an emergency application from the Supreme Court for nearly two months. (I am not entirely certain why, but the church seems to have been concerned about pending enforcement actions.) On November 23, 2020, the church filed an application for injunctive relief with the Court. Harvest Rock sought a ruling by November 29. Circuit Justice Kagan said nope, and set the response due by November 30. And on November 25, the Court decided Diocese.
Today, the Court issued an unusual order in Harvest Rock.
The application for injunctive relief, presented to Justice Kagan and by her referred to the Court, is treated as a petition for a writ of certiorari before judgment, and the petition is granted. The September 2 order of the United States District Court for the Central District of California is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020).
What do we make of this order? I see it as a creative punt. I can't recall an instance where the Court granted certiorari before judgment only to then vacate and remand that case in light of a non-merits decision. In other words, the Court GVR'd a shadow docket case in light of another shadow docket case. The more expected route would be for the Court to simply deny cert, and a few Justices would issue a statement respecting the denial of cert, saying "Hey lower court, you should really take another look at this case in light of our recent injunction." But here, the Court–without recorded dissent–GVR'd the entire case.
What happened here? It is possible there were four votes to grant certiorari before judgment, and hear the case ASAP. But, there were likely vehicle problems, as the Governor would almost certainly revise the regulations to moot out the appeal. Thus, the compromise position was to take the unusual step of cert before judgment, with a vacatur of the district court decision.
But, and here is the big but, there is no injunction in place. Vacating the district court decision leaves the Governor's order in full effect. Another two or three full months could elapse before this case gets back to the Supreme Court. Harvest Rock remains subject to the very regime they sought emergency relief on. This punt leaves the church in a very difficult place. I'm surprised Thomas and Gorsuch did not dissent from the vacatur and remand.
It took more than three months from the date of the District Court's decision to the Supreme Court's ruling. Some of that delay was attributable to the plaintiffs. But litigation still takes time. In Diocese, Justice Breyer suggested there was no need for the Court to act with haste because the Justices could "decide the matter in a day or two, perhaps even in a few hours." No. Litigation takes time. The Court was correct to end Governor Cuomo's whac-a-mole game. Alas, Governor Newsom can keep moving the goal posts at the French Laundry.
In any event, give the likely trajectory of the COVID-19 vaccine, it is unlikely the Court will ever have to decide a pandemic case on the merits. Shadow docket rulings can keep things moving along for the next few months. And, I suspect, Fulton will change the landscape of Free Exercise cases. There will be plenty more GVRs come June. And eventually, all of the COVID orders will be lifted. I am grateful that Diocese, and not South Bay will be the final word on this issue.
Here is the data from the Europe Center for Disease Prevention and Control; the blue bars are the totals for Europe (note that the dates are in the European format, DD/MM/YYYY):
And here is the data from Worldometers site for the U.S.:
As you can see, the U.S. daily numbers (the grey bars) are comparable to the April peak, though the 7-day rolling average (the brown line) isn't yet up there. The per capita numbers in Europe (which has a population of about 2.25 times the U.S.'s) are a bit higher than in the U.S., though over the Summer they were much lower. Let's hope those vaccines we're hearing about are coming soon ….
From Bauer v. Brinkman, decided Monday by the Iowa Court of Appeals (in an opinion by Judge Paul Ahlers, joined by Chief Judge Thomas Bower and Judge David May):
The Kendall R. Bauer Trust owns an apartment building in Sloan, Iowa, known as the Bauer Apartments. The trustee of the trust, Richard Bauer, … manages the apartment building. K.L. … owns and operates a dog grooming and boarding business. As part of that business, she began construction on a dog care facility in a lot adjacent to the Bauer Apartments.
During the course of the construction of the dog care facility, Bauer contacted K.L. to express concerns that the outdoor "dog run" may become a nuisance issue and could be in violation of Sloan's zoning ordinance. Bauer also contacted the Sloan city council about his concerns. When his concerns were not addressed to his satisfaction, Bauer filed suit against the city, alleging the city failed to enforce its zoning ordinances.
During the pendency of Bauer's lawsuit against the city, K.L. took to airing her disgruntlement with the situation on Facebook, posting comments about Bauer, Bauer Apartments, and the dispute regarding construction of the dog care facility. K.L.'s adult daughter joined the Facebook fray, as did the defendant, Bradley Brinkman. It was Brinkman's commentary that resulted in this lawsuit, as Brinkman posted the following comment:
It is because of shit like this that I need to run for mayor! Mr. Bauer, you sir are a PIECE OF SHIT!!! Let's not sugar coat things here people, [K.L.] runs a respectable business in this town! You sir are nothing more than a Slum Lord! Period. I would love for you to walk across the street to the east of your ooh so precious property and discuss this with me!
Bauer filed suit against Brinkman alleging Brinkman's statement that Bauer is a "slum lord" constituted libel….
Drawing the line between opinion and fact … is important because opinions are "absolutely protected under the first amendment." Because drawing this line involves important first amendment issues, its determination is one for the court rather than the fact finder…. To make this determination, courts look to four factors: (1) whether the "statement 'has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous'"; (2) the degree to which the statement is "objectively capable of proof or disproof"; (3) "the context in which the" statement occurs; and (4) "the broader social context into which" the statement fits.
We begin our analysis of the first two factors by noting that the term "slum lord" is not defined in Brinkman's Facebook post. Nevertheless, a legal dictionary defines the term to mean, "A real-property owner who rents substandard housing units in a crowded, economically depressed area and allows the units to fall into further disrepair, esp. while charging unfairly high rents," or simply "the owner of any run-down rental property." …
While slum lord is capable of a definite meaning, its appearance in Brinkman's comment is vague enough that a reader of the post would be left to use his or her own definition, which would result in the term meaning different things to different people. This indefiniteness as to the meaning of the term cuts against a conclusion that it was a statement of fact. Further, the above definitions are not particularly capable of objective proof or disproof ….
Additionally, Brinkman's comment that Bauer is a "slum lord" followed on the heels of calling Bauer a "piece of shit." While understandably offensive and insulting, this type of name calling is generally not actionable….
In 1479, a few months shy of his eleventh birthday, Niccolò Machiavelli left the school where he'd learned to read and write and went to study with a teacher named Piero Maria. The future author of The Prince spent the next twenty-two months mastering Hindu-Arabic numerals, arithmetical techniques, and a dizzying assortment of currency and measurement conversions. Mostly he did word problems like these:
If 8 braccia of cloth are worth 11 florins, what are 97 braccia worth?
20 braccia of cloth are worth 3 lire and 42 pounds of pepper are worth 5 lire. How much pepper is equal to 50 braccia of cloth?
One type of problem reflected the era's shortage of currency. Goods that would sell for one price in coins cost a premium if the buyer paid with other goods. (These problems assume familiarity with trading conventions and therefore present ambiguities to the modern reader.)
Two men want to barter wool for cloth, that is, one has wool and the other has cloth. A canna of cloth is worth 5 lire and in barter it is offered at 6 lire. A hundredweight of wool is worth 32 lire. For what should it be offered in barter?
Two men want to barter wool and cloth. A canna of cloth is worth 6 lire and in barter it is valued at 8 lire. The hundredweight of wool is worth 25 lire and in barter it is offered at such a price that the man with the cloth finds he has earned 10 percent. At what price was the hundredweight of wool offered in barter?
Others were brain teasers dressed up in ostensibly realistic detail.
A merchant was across the sea with his companion and wanted to journey by sea. He came to the port in order to depart and found a ship on which he placed a load of 20 sacks of wool and the other brought a load of 24 sacks. The ship began its voyage and put to sea.
The master of the ship then said: "You must pay me the freight charge for this wool." And the merchants said: "We don't have any money, but take a sack of wool from each of us and sell it and pay yourself and give us back the surplus." The master sold the sacks and paid himself and returned to the merchant who had 20 sacks 8 lire and to the merchant who had 24 sacks 6 lire. Tell me how much each sack sold for and how much freightage was charged to each of the two merchants?
Along with their famed humanist arts and letters, the mercantile cities of early modern Italy fostered a new form of education: schools known as botteghe d'abaco. The phrase literally means "abacus workshops," but the instruction had nothing to do with counting beads or reckoning boards. To the contrary, a maestro d'abaco, also known as an abacist or abbachista, taught students to calculate with a pen and paper instead of moving counters on a board.
The schools took their misleading name from the Liber Abbaci, or Book of Calculation, published in 1202 by the great mathematician Leonardo of Pisa, better known as Fibonacci. Brought up in North Africa by his father, who represented Pisan merchants in the customs house at Bugia (now Béjaïa, Algeria), the young Leonardo learned how to calculate using the nine Hindu digits and the Arabic zero. He was hooked.
After honing his mathematical skill as he traveled throughout the Mediterranean, Fibonacci eventually returned to Pisa. There he published the book that enthusiastically introduced the number system we use today.
Fibonacci's novel methods of pen-and-paper reckoning were ideal for Italian textile merchants, who wrote lots of letters and needed permanent account records. Beginning in Florence in the early fourteenth century, specialized teachers began teaching the new system and producing handbooks in the vernacular. Consistent sellers, the books served simultaneously as children's textbooks, merchants' reference tools, and, with their brain-teasing puzzles, recreational materials.
From the abacists' classrooms, future merchants and artisans typically graduated to apprenticeships and work. But a grounding in commercial math was also common for those like Machiavelli, who were destined for higher education and a career of statesmanship and letters. In a society based on trade, cultural literacy included calculation.
As they drilled generations of children on how to convert hundredweights of wool into braccia of cloth or to allocate the profits from a business venture to its unequal investors, the abacists invented the multiplication and division techniques we still use today. They made small but important advances in algebra, a subject universities scorned as too mercantile, and devised solutions to common practical problems. On the side, they did consulting, mostly for construction projects. They were the first Europeans to make a living entirely from math.
In his seminal 1976 study of nearly 200 abacus manuscripts and books, historian of mathematics Warren Van Egmond emphasizes their practicality—a significant departure from the classical view of mathematics, inherited from the Greeks, as the study of abstract logic and ideal forms. The abacus books treat math as useful.
"When they study arithmetic," he writes, "it is to learn how to figure prices, compute interest, and calculate profits; when they study geometry it is to learn how to measure buildings and calculate areas and distances; when they study astronomy it is to learn how to make a calendar or determine holidays." Most of the price problems, he observes, concern textiles.
Compared to scholastic geometry, the abacus manuscripts, with their problems about trading cloth for pepper, are indeed down to earth. But they don't scorn abstraction. Rather, they wed abstract expression to the physical world. The transition from physical counters to pen-and-ink numerals is in fact a movement toward abstraction. Symbols on a page represent bags of silver or bolts of cloth and the relationships between them.
Students learn to ask the question, How do I express this practical problem in numbers and unknowns? How do I better identify the world's patterns—the flow of money in and out of a business, the relative values of cloth, fiber, and dyes, the advantages and disadvantages of barter over cash—by turning them into math? Mathematics, the abacists taught their pupils, can model the real world. It does not exist in a separate realm. It is useful knowledge.
Today in Supreme Court History
12/3/1996: Printz v. U.S. argued.
[UPDATE: I didn't know this at first, but apparently Jason Miller is the Jason Miller who was an adviser to the 2016 and 2020 Trump campaigns; Arlene Delgado was a political commentator; Miller was to be President Trump's White House Communication Director but withdrew when his affair with Delgado came to light. This wasn't mentioned in the opinion—I saw the opinion just because it came up on my daily Westlaw search for new First Amendment cases—and doesn't affect the legal questions; but I thought I'd note it, because it helps show how such restraining orders affect speech about political players as well as about purely private citizens.]
From today's Florida Court of Appeal decision in Delgado v. Miller, written by Chief Judge Kevin Emas and joined by Judges Ivan Fernandez and Eric Hendon:
Petitioner Arlene Delgado (the Mother) and Respondent Jason Miller (the Father) are the parents of W.L.D., born in July of 2017. What began as a paternity action and progressed to remaining issues of timesharing and child support, has devolved into escalating rounds of pugilistic litigation. Given the antagonism displayed over the course of the proceedings below, we can only be sympathetic to the sincere efforts of the trial court and general magistrate to reduce the level of discord. There are, however, limits to the exercise of the trial court's broad discretion….
The order at issue arose in the context of the Mother's motion to compel production of certain documentation from the Father in advance of a scheduled final hearing. Although the recommended order (and the trial court's order adopting same) essentially granted the Mother the relief she requested, the general magistrate included three paragraphs at the end of the recommended order which are the subject of this petition:
- Neither party shall disclose or reveal to any 3rd party, directly or indirectly, through any social media or otherwise, the details of any financial information, including but not limited to income or employment information, of any nature, of the other party.
- Neither party shall contact, directly or indirectly, the other party's existing clients and/or employers and/or contractors or potential clients and/or employers and/or contractors, other than through the legitimate discovery process provided by the Rules of Civil and Family Procedure.
- Neither party shall engage in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior….
Paragraph fifteen, in particular, commonly referred to as a gag order, represents a classic example of a prior restraint on speech: one that prohibits free speech before it is spoken…. Where a trial court imposes such restrictions on a party's free speech rights, it must make findings that support the need for these limitations, and the order must be "narrowly tailored to preclude only extra-judicial statements which are substantially likely to materially prejudice the trial."
Neither the trial court nor the general magistrate made findings of necessity, nor did they engage in any tailoring to narrow or limit the scope to those extrajudicial statements substantially likely to materially prejudice the trial. Indeed, paragraph fifteen of the order, which purports to prohibit either party from "engag[ing] in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior," is so overbroad as to render its boundaries indiscernible.
Paragraphs thirteen and fourteen, though less sweeping in degree than paragraph fifteen, and arguably less onerous in their resulting burden on free-speech rights, nevertheless suffer infirmities similar in kind to paragraph fifteen. These paragraphs also contain terms that are vague and undefined, creating confusion in their meaning and the potential for inconsistent or arbitrary enforcement.
Further, the restrictions contained in all three paragraphs were imposed sua sponte by the general magistrate in its recommended order, and adopted thereafter by the trial court without a hearing. Neither party moved for the imposition of such restrictions, and while the general magistrate informally raised the topic and inquired whether the parties might consent to such restrictions, no such consent was given, nor were the parties placed on notice before the hearing that the imposition of such restrictions would be considered in addressing the merits of the Mother's motion to compel production of documents….
Very much the right result; Florida appellate courts have had several decisions in the last several years that have rightly struck down such overbroad injunctions (e.g., Logue v. Book and David v. Textor).
