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Heritage Foundation's Clerkship Boot Camp

It's fine for ideological groups to try to teach their ideas, including to interested future law clerks -- but not to try to limit how the students use those ideas.

I just heard Adam Liptak of the New York Times talking about this on NPR tonight, and then tracked down his New York Times article; here are what seem to be the facts:

The closed-door "training academy" was aimed at a select group: recent law school graduates who had secured prestigious clerkships with federal judges. It was organized by the Heritage Foundation, a conservative group that has played a leading role in moving the courts to the right, and it had some unusual requirements.

"Generous donors," the application materials said, were making "a significant financial investment in each and every attendee." In exchange, the future law clerks would be required to promise to keep the program's teaching materials secret and pledge not to use what they learned "for any purpose contrary to the mission or interest of the Heritage Foundation."

Some thoughts about the program as reported, which has apparently now been abandoned.

[1.] I think it's fine for ideological groups to try to teach future judicial clerks whatever ideas they like, whether about originalism, textualism, living constitutionalism, or what have you. Doubtless those groups want to influence the law that way, likely not by influencing judges (clerks have very limited influence over their judges' opinions, and the program is likely to have limited influence over the clerks' opinions), but by making the clerks better at making certain arguments that the judges want to make already. But in any event trying to influence the law through education is quite legitimate -- just as it's legitimate for Harvard or Yale law professors, who know that many of their students will become clerks, to teach seminars that spread ideas that they think are sound. (Professors at law schools have some extra obligation, which ideological groups don't have, to provide students with a broad range of ideas, but they can certainly make sure to include and stress the ideas that they believe to be particularly wise.)

[2.] I think it's fine for liberals to do this as well as conservatives, but conservatives have an extra reason to do it: The teaching at most of the top law schools that produce the great bulk of judicial clerks generally leans left (you can like that or not, but I think it's pretty clearly so), so conservatives might well want to make sure that interested students get a good perspective on conservative views as well as on liberal views. Groups on the far left, or libertarians, or people who have other views that are likely undertaught at law schools may of course also take the same view.

[3.] Indeed, the judges who hire law clerks will likely want them to know more about various approaches to the law, whether they learn that in ideological programs or nonideological ones (if such things exist). Of course, conservative judges will want to make sure that their clerks are familiar with approaches that conservative judges tend to favor, since then the clerks will do a better job. But liberal judges will find it useful, too, for their clerks to understand various approaches. Sometimes, for instance, even liberal judges may want their clerks to draft opinions using approaches commonly associated with conservatives, such as originalism. And sometimes liberal judges may want their clerks to draft opinions effectively responding to such approaches.

[4.] A few people have tried to label this as "indoctrination," but that strikes me as quite inapt. The students are well-educated, generally highly intelligent adults; they aren't impressionable schoolchildren or laypeople easily blinded by professionals. They already largely believe in the things that the group wants to teach them; they go to learn how to better reason and argue in support of those beliefs. (Some may also go to make professional connections, but that surely isn't conducive to indoctrination, either.)

[5.] The real problem -- and it's a doozy -- is with the pledge, at least as it has been reported. Law clerks have a professional duty to do the best work they can for their judges. Lawyers have a professional duty to do the best work they can for their clients. If future clerks and lawyers learn some analytical tools or some ideas, they can't ethically promise to somehow withhold those tools or ideas from their bosses or their clients. And teachers can't ethically ask for such a promise (even if the promise is legally unenforceable).

[6.] The demand for a promise to keep the materials secret may also be wrong, though something depends on just what is being kept secret. If, for instance, there are some unpublished materials that the students are being asked not to distribute further, that's fine; on the other hand, if they are being asked to keep secret the general curriculum, that strikes me as troubling. Certainly they have to be prepared to answer their judges' questions about this, if the judges want to ask; and beyond that, this sort of secrecy is likely to breed unnecessary distrust.

But in any event, the key problem, as I said, is #5. One can imagine some situations in which people might be ethically required (or at least allowed) not to use certain knowledge in certain contexts, even for the benefit of clients -- but this isn't one of them.

Short Circuit: A Roundup of Recent Federal Court Decisions

Root canals, contraband dogs, and a marijuana petition.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Last year, an Akron, Ohio entrepreneur welcomed a group of homeless people to set up tents in the back lot of his commercial property after the city forced them off public land. The encampment has since evolved into a tight-knit community of 44 people helping one another get back on their feet. But the city is using the zoning code to shut it down, forcing people back to the streets. Read about IJ's latest case in The New York Times.

  • A criminal statute asking whether a whole category of activity constitutes "a crime of violence" may be unconstitutionally vague, says the First Circuit, but that does not mean a statute is too vague if it asks whether your specific conduct in a specific case was "a crime of violence"—particularly when your conduct involved firearms, pipe bombs, and a nine-month standoff with federal authorities.
  • Does the Due Process Clause entitle a Russian national who's been in immigration detention for over a year to a new bond hearing? (He says he's not dangerous; rather, the criminal charges he faces in Russia are retaliation for his opposition to the gov't.) Maybe in some case, says the Third Circuit, but not in his.
  • When Texas officials remove a child from home due to abuse or neglect, the child first enters a temporary custody program where officials try to resolve the problems at home or place the child with a relative or adoptive family. If officials are unable to find a permanent placement, the child enters a different program where the state's attention to the child diminishes drastically; caseworkers have enormous caseloads, short tenures; case file management is haphazard. Fifth Circuit: Much, but not all, of the challenged system violates due process; the district court's injunction must be substantially narrowed. Judge Higginbotham (concurring in part and dissenting in part): Children are "shuttled throughout a system where rape, abuse, psychotropic medication and instability are the norm." The injunction should be entirely upheld.
  • Man pleads guilty to various meth-related crimes; does not object to his proposed sentence. Uh oh! The judge's written judgment contains conditions that weren't mentioned at sentencing, including requiring the defendant to surrender himself for deportation after serving his time. Fifth Circuit: You can't spring things like that on people. (Bonus: Footnote 5 features an Amazon review of the Federal Sentencing Guidelines Manual.)
  • Man serves 17 years in prison for sexual assault—between 1988 and 2004—before DNA evidence exonerates him. (See his page on the National Registry of Exonerations for more.) He sues in 2006 for false imprisonment, among other things. But when did Texas' two-year statute of limitations start running: in 1988 or in 2004? "Every day behind bars is irreplaceable," says the Fifth Circuit, "with the final day as wrongful as the first." His suit should not have been dismissed.
  • Endodontist—a dentist who specializes in root canals—challenges Ohio regulations that prohibit specialists from also offering general dentistry services. After the Sixth Circuit (in 2016) reverses a decision dismissing the case, the dental board rescinds the regulations. Is the case moot? Yup, says the Sixth Circuit (in 2018). We don't think the dental board will go back to its bad behavior. And since the board gave up before you could get a court order against it, no attorney's fees for you! (We discussed the 2016 decision on the podcast.)
  • Ohio man assaults dancer, gets kicked out of multiple strip clubs, drives drunk, kills another motorist. The deceased's family sues the final club the man patronized. The club's insurance policy covers negligence but has an exclusion for liquor liability, and the insurer refuses to defend the suit or attend a hearing. Ohio court: The bar was negligent for reasons independent of serving liquor. District court: So the insurer has a duty to defend. Sixth Circuit: That is what you get for not showing up to court. Affirmed.
  • Everyone agrees Clare County, Mich. officer violated the Fourth Amendment by lingering, for 90 minutes, in and around the curtilage of man's house to give him a random breathalyzer test. (Such tests are condition of his probation. He eventually blows zeros.) Sixth Circuit: Qualified immunity means "even actions that violate the Constitution do not lead to liability," and our own cases were unclear whether this was allowed at that time. Dissent: Our cases conflicted with Supreme Court precedent at the time, so not unclear at all.
  • "Rip-roaring drunk" commercial pilot shows up to work but is arrested by authorities in the midst of his pre-flight preparations. Can he be convicted of "operating" the airplane, even though it never moved? Two-thirds of this Sixth Circuit panel says yes.
  • Can Detroit police officers escape liability for shooting three pet dogs by arguing that the dogs were unlicensed and therefore "contraband"? No, says the Sixth Circuit, in a decision that somehow really actually exists.
  • Illinois power company worker, known for packing heat, gets into arguments with supervisor. Company searches his car (with consent), finds gun, fires him for violating no-gun policy. Arbitrator: Reinstate him. Illinois law lets people keep guns in cars on private property (unless there's clear signage otherwise), which trumps the company's policy. Seventh Circuit: Yeah, give him his job back. Do you even know how hard it is to overturn an arbitration award?
  • Wisconsin law requires bussing private school students, but only one private school per religious denomination per geographic area qualifies. Which violates our rights, says a second Catholic school. Seventh Circuit (over a dissent): It would, but the Wisconsin Supreme Court applied that statute to bussing to secular schools affiliated with one organization as well. So there's no Free Exercise problem; it's bussing for the first Catholic school, the first Montessori school, the first French International school. And the school district didn't entangle itself with religion in figuring out y'all are Catholic. They can believe you when you write "traditional Roman Catholic School" on your website.
  • The Ninth Circuit (over a dissent) holds that district courts should more permissively allow discovery when a defendant claims that the government engaged in unconstitutional selective enforcement by subjecting him to a reverse stash house sting (a longstanding scheme in which confidential informants lure suspects into "robbing" a drug stash house that does not exist). Come for the majority's discussion of burdens of proof, stay for the concurring opinion's blistering criticism of the entire "tawdry and disreputable tactic."
  • Federal law places a bunch of restrictions on the sale and manufacture of misleadingly named firearm "silencers." Kansas law says that none of those restrictions apply in Kansas. Tenth Circuit: Nice try, Kansas. Reliance on Kansas law might mitigate someone's sentence—as it did here—but it can't change the fact of their guilt. (Also, the National Firearms Act is constitutional).
  • PROTIP: When filing petitions in federal court, don't attach marijuana as an exhibit. The Federal Circuit will narc you out to the U.S. Marshals. Moreover, your theory of how this creates federal subject matter jurisdiction to hear your case is "the type of argument that you might figure out while high," says Patently-O.

Louisville, Ky. officials are risking the wrath of a federal judge. Earlier this year, the city rescinded an anticompetitive ban on food trucks operating within 150 feet of restaurants that sell similar food as part of a consent decree to settle a lawsuit brought by mobile food vendors. But this month, new protectionist measures are back on the city council's agenda; the proposed rules would, among other things, require vendors to relocate after 10 minutes in one spot. Which "does nothing to help consumers and the public," says IJ Attorney Arif Panju. "It's intended to destroy the viability of mobile vending in Louisville in order to serve the private, financial interests of politically connected restaurateurs." The Courier-Journal has the story.

Why Mandatory National Service is Both Unjust and Unconstitutional

A post based on my presentation at a panel on mandatory national service organized by the National Commission on Military, National, and Public Service.

Earlier this week, I spoke at a panel on mandatory national service organized by the National Commission on Military, National, and Public Service. The panel consisted of several legal scholars speaking with divergent viewpoints on the issue, which we understood as focusing on mandatory civilian service, not just the military kind. The following post is a revised version of my presentation to the Commission. I was told that the Commission does not currently plan to publicize an audio or transcript of the panel. If that changes, I will post a link here. In the meantime, I am happy to make my own presentation public here. It explains why the enactment of mandatory national service would be both unjust and unconstitutional:

I. Why Mandatory National Service Is Unjust.

Mandatory national service is not just another policy proposal. It is an idea that undermines one of the fundamental principles of a free society: that people own themselves and their labor. We are not the property of the government, of a majority of the population, or of some employer. Mandatory national service is a frontal attack on that principle, because it is a form of forced labor - literally so. Millions of people would be forced to do jobs required by the government on pain of criminal punishment if they disobey. Under most proposals, they would have to perform this forced labor for months or even years on end.

We rightly abhor the extensive use of forced labor by authoritarian regimes, such as those of the Nazis and the communists. The same principle applies to democratic governments. The fact that a violation of fundamental human rights may have the support of a majority of the population does not make it just. Wrong does not become right merely because a large number of people support it.

It does not matter if the work the forced laborers are required to do has great value to society. The same was true of much work performed by slaves and forced laborers throughout history. The cotton grown by slaves in the antebellum South, for example, was considered vital to the American economy. That fact did not make slavery just, nor relieve plantation owners of the obligation to use only voluntary labor.

We can imagine hypothetical circumstances where forced labor is the only way to forestall an even worse outcome, for example if a military draft is the only way to raise an army large enough to prevent conquest by a brutal totalitarian regime. But no such painful dilemma threatens the United States today. The federal government has plenty of ways to recruit needed labor by voluntary means. If it needs more workers for some sort of job, it can increase wages and benefits, provide tax incentives of various kinds, or hire more outside contractors. If these methods fail, there are millions of people outside the US who would be happy to do work needed by the government if they have the right to live in the US. There are many good reasons to liberalize immigration policy. If the federal government is suffering from labor shortages, this one could be added to the list.

What is true for civilian labor is also true of the military. With a population of over 300 million, the US could greatly expand its armed forces without resorting to a draft. Indeed, especially under modern conditions, a volunteer armed forces is likely to perform far better than one composed of conscripts, which may be one of the reasons why recent veterans oppose the reintroduction of the draft at even higher rates than the general public.

Some advocates of mandatory national service claim that it can help us achieve a greater sense of national unity by exposing draftees to people from other backgrounds. Perhaps so. But we could achieve even greater national unity by suppressing dissenting speech and religion. Yet we rightly recognize that unity is not a valid justification for violating these fundamental human rights. The same goes for the right to be free of forced labor. A unity achieved through coercion is not worth the price. Such unity could evenly be actively pernicious, since it could be used to promote further restrictions on liberty in the name of national solidarity. The better path to curbing civil conflict is not to increase the amount of coercion imposed by the federal government, but to reduce it, thereby diminishing our reasons to fear those with opposing political views.

Former Democratic Rep. Charles Rangel, and others, argue that we need a military draft to ensure that the burden of military service is distributed more equitably and to prevent the public from being too ready to go to war. I criticized such claims here. Among other things, the evidence simply does not support the notion that people who are likely to see combat are thereby more opposed to military action than those who are not. The exact opposite may well be closer to the truth.

The above analysis assumes that a mandatory national service program would be enacted and administered by a well-intentioned and competent government. Any actual national service program, however, would be controlled by real-world politicians and bureaucrats. If you are a liberal Democrat, do you really believe that Donald Trump and his ilk can be trusted with wide-ranging authority to impose forced labor on the public? If you are a conservative Republican, would you entrust such authority the likes of Hillary Clinton or Elizabeth Warren? The truth is that none of these people are worthy of such vast power, and the same goes for most, if not all, of the rest of the political class.

II. Why Mandatory National Service is Unconstitutional.

The constitutional issues raised by mandatory national service are not as important as the moral ones. Nonetheless, any such proposal is likely to be unconstitutional, as well: if it includes civilian service, it would be beyond the scope of federal power, and it also violates the Thirteenth Amendment.

One of the bedrock principles of American constitutional law is that the federal government only has those powers granted by the Constitution. Other authority is reserved to the states, or the people. A military draft is likely authorized by Congress' Article I power to "raise and support armies." But there is no such provision authorizing the imposition of mandatory civilian national service. It is possible that Congress' power to regulate interstate commerce can be stretched to justify mandatory national service. Under badly misguided modern precedents such as Gonzales v. Raich, the Supreme Court has ruled that power allows Congress to restrict any "economic" activity that has a substantial impact on interstate commerce. Failure to perform labor mandated by the government would likely affect interstate commerce, and so could in theory fall within the scope of the Commerce Clause.

But even the most expansive judicial decisions interpreting the commerce power still apply only to situations where Congress is regulating some sort of preexisting economic activity. In NFIB v. Sebelius (2012), the Obamacare case, the Court ruled that the commerce power does not allow the federal government to force people to engage in new economic transactions that they would prefer to avoid: in that case, by forcing them to purchase health insurance. As Chief Justice John Roberts put it, the commerce power is the authority to regulate "preexisting economic activity." He explained that "Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority." What is true of purchase mandates is even more true of the power to impose forced labor. Indeed, allowing the latter would be a far greater expansion of congressional authority than the former.

The same goes for efforts to justify mandatory national service through some combination of the Commerce Clause and the Necessary and Proper Clause, which gives Congress the authority to enact legislation "necessary and proper" to the execution of other powers given to the federal government. Even if forced labor might be "necessary" in the Supreme Court's expansive sense of the term, it is not "proper." The requirement of "propriety" is a distinct, separate limitation on federal power. As Chief Justice Roberts explained in NFIB (following a famous formulation presented by Chief Justice John Marshall in 1819), even a "necessary" power can only be proper if it is merely "incidental" to one of the other enumerated powers. It cannot be a "great substantive and independent power." A general power to impose forced labor any time doing so might affect interstate commerce is prty obviously a "great... and independent power," if anything is.

The Court in NFIB ultimately upheld the individual mandate by reinterpreting it as a tax (wrongly in my view). But it is unlikely that any mandatory national service program worthy of the name could meet the Court's fairly restrictive criteria for qualifying as a tax. Among other things, failure to serve could only be punished with a relatively small fine, and resisters could not be classified as lawbreakers or subjected to criminal sanctions.

In addition to exceeding the scope of federal power, a mandatory national service program would also violate the Thirteenth Amendment, which bans not only slavery, but also "involuntary servitude." The point of the latter restriction is to forbid forms forced labor that do not go as far as slavery. Here, I have to admit that Supreme Court precedent is against me. In Butler v. Perry (1916), the Supreme Court upheld a Florida law that required citizens to perform forced labor on the state's roads or pay a $3 tax. But, for reasons outlined here, I believe Butler was a badly flawed ruling, and a similar case might well not be decided the same way today:

The option of paying a small tax prevents this program from being a true forced labor provision. According to the CPI inflation calculator, $3 in 1916 is equivalent to $57.69 in 2006 dollars, not exactly a backbreaking imposition. After all, there would have been no Thirteenth Amendment issue had Florida simply required all male citizens to pay an annual $3 tax for road upkeep without giving them the option of performing labor instead...

However, Justice McReynolds' opinion for the Court doesn't rest on any such narrow ground. Instead, it strongly suggests that the law would have been constitutional even if the options of paying $3 or hiring a substitute were not available. According to McReynolds, "the term 'involuntary servitude' was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state."

There are several problems with this formulation. First and most important, if the term "involuntary servitude" really does not apply to traditional "duties" to the state, there would have been no need for the Amendment's exception for the use of forced labor as punishment for a crime. As I explained more fully in this post, using forced labor to punish criminals was a longstanding tradition, and was surely not considered "akin to African slavery." Second, McReynolds' argument elides the hard question of determining what evils really were "akin to African slavery" and likely to "produce like undesirable results." The "free labor" ideology underpinning the Thirteenth Amendment was based on a broad opposition to all forms of forced labor as inimical to a free society, not merely those based on racial categories or those that involved lifelong slavery.... Finally, McReynolds' argument seems to elevate the supposed subjective intentions of the framers over the plain text of the Amendment, which is clearly not limited merely to those forms of "involuntary servitude" that are "akin to African slavery" but instead bans all such servitude with the sole exception of forced labor used to punish convicted criminals...

[I]t is worth pointing out that McReynolds' opinion ignored (probably deliberately) the likely racial context of the Florida law. In 1913 Florida (the year when the law was enacted), it is highly likely that such a statute would be enforced primarily against poor blacks, and might even have been enacted for the specific purpose of conscripting black labor under the guise of a facially neutral law.

In sum, Butler is a badly flawed precedent that I hope the Court will overrule when and if an appropriate opportunity arises. More controversially, I also oppose the Court's 1918 ruling upholding constitutionality of the military draft against a Thirteenth Amendment challenge. That one is far less likely to ever be overruled. But we should at least avoid extending it to cover other forms of forced labor.

Defenders of mandatory national service sometimes cite mandatory jury service as a relevant precedent. I think that case is distinguishable on legal grounds for reasons summarized here, and on moral grounds because it usually lasts for only a short period of time and (at least in most states) is relatively easy to avoid. That said, I do in fact oppose mandatory jury service on both moral and pragmatic grounds. Among the latter is the fact that it is often cited as a precedent justifying imposition of more severe forms of forced labor.

In sum, mandatory national service would be unconstitutional, at least if it applies to civilian service, as well as military. Far more importantly, it is deeply unjust.

UPDATE: I have made a few minor additions to this post.

Secret Gag Order on Lawyers in Ohio Capital Murder Trial—Supported by Secret Arguments

Kind of like with the turtles, it's seals all the way down. [UPDATE: The local publicity appears to have led the court to unseal the gag order -- so now we know what people aren't allowed to talk about, though they're still not allowed to talk about it.]

The Sandusky Register (Brandon Addeo) reports:

Daniel Myers' capital murder trial in the 2015 death of Heather Bogle was delayed indefinitely Wednesday morning by Sandusky County Common Pleas Court Judge John Dewey.

The judge ... also issued a secret gag order on prosecutors and defense attorneys, and sealed records explaining why he took that action....

The Register requested copies of Dewey's rulings, which were not accessible in a search of the courthouse's record system. An employee in the clerk's office at the courthouse on Wednesday told a Register reporter both motions were sealed and not available to view.

Judge Dewey's rulings on Wednesday will keep the public in the dark as the trial goes forward, if it goes forward....

The story quotes media lawyer David Marburger as saying the following, which sounds correct to me:

We do not know what the gag order prohibits. That is extraordinary. The order sealing it prevents the public from even knowing what the gag order says. It prohibits the public from knowing the grounds for sealing the record.

Keeping the public in the dark about these things is extremely rare. For a court to seal a litigants' motion that asks the court for some relief virtually never happens. It is so rare. It is even more rare, even more extraordinary for the court to seal its own order where the order directs other people to do certain things, in this case ordering the lawyers not to speak. We don't know what the gag order says. We don't know how far reaching it is.

The most outrageous part of all of this is the court's own secrecy about its own order, about the request for the order and the claimed grounds for the order, all of that is secret. All of it is being withheld from the public, in a case, I presume, the public has an acute interest in.

The whole idea of the judicial system is to adjudicate in a public way. The reason for that is so the public can have great confidence that judges are resolving disputes without favoritism, without improper use of power, and thoughtfully. That's why we are willing to take our disputes to the courts because we believe, through its own transparency, that judges dispense justice transparently, without prejudices or favoritism.

If the judge is going to seal from the public what it has ordered and why it has ordered it that can only diminish public confidence in the courts.

David Marburger, by the way, is famous for the "What Is a Copier?" deposition (quite unrelated to this case, but not to be missed; recall that the video is a reenactment of the transcript, so the tone, volume, and the like are only inferred):

UPDATE: The local publicity appears to have led the court to unseal the gag order -- it was entered on the defense lawyers' request, and it gags not just the prosecutors, defense counsel, and court and law enforcement employees, but also all "potential witnesses" from release "any and all information ... relating to [the case] ... to any and all third parties."

The court's rationale is that "There has been extensive news reports, newspaper articles, internet articles and postings that have covered this criminal matter and any extrajudicial statements will have a substantial likelihood of materially influencing the ongoing criminal proceeding against the Defendant and therefore preventing a fair trial and impeding the administration of justice." This has indeed been seen by courts as justifying some restrictions on lawyers (see Gentile v. State Bar (1991)) and government employees. It has also been seen as justifying restrictions on speech by the litigants and witnesses, if there's a showing of of sufficient danger to the fairness of the trial. (The two categories of speakers may be different; for government employees and lawyers, the argument that one of the conditions of the job or of bar membership is not saying things that unduly interfere with the administration of justice -- but litigants, especially defendants, and witnesses have never taken on any such job.)

At the same time, such orders are supposed to be used sparingly, see, e.g., U.S. v. Ford (6th Cir. 1987) and State ex rel. Cincinnati Enquirer v. Oda (Ohio Ct. App. 2018). In the words of the Ohio Court of Appeals,

It is evidence, not speculation, that must be made part of the record to demonstrate that a gag order is necessary to ensure the defendant will receive a fair trial. "We cannot assume or speculate our way to these necessary findings; there must be some evidence in the record that speaks to the possible publicity and its effect on the jury pool." ... [N]o such evidence was presented in this case. Therefore, while we certainly understand Judge Oda's concerns, we agree with the Enquirer when it states Judge Oda's "sweeping conclusion" that a gag order is necessary in this case serves as nothing more than "an impermissible leap from his findings that the case has garnered media attention."

Our holding is further supported by the fact that there is little evidence indicating Judge Oda fully considered any less restrictive alternatives than the gag order at issue, nor any evidence in the record to support Judge Oda's finding there was "no lesser restrictive alternative" available in this case. Instead, the record indicates Judge Oda considered only the fact that the gag order at issue did not exclude any media outlets from public areas within courthouse and/or from "coming to court, watching the proceedings, and talking about what they observed."

Had the record contained sufficient evidence to prove other less restrictive alternatives had been fully considered, coupled with supporting evidence indicating no other less restrictive alternatives would suffice, the gag order at issue may very well have withstood judicial scrutiny. That simply did not occur here.

Therefore, although we believe Judge Oda acted with his best intentions at heart, because gag orders should only be considered as a last resort, we find the gag order at issue in this case cannot stand and a writ of prohibition barring its enforcement is proper. Nothing about this decision, however, should be considered an invitation for either the state or the defendant to try this case in the court of public opinion as opposed to the court of law, nor does this court's decision bar Judge Oda from revisiting this issue in the future if justice so requires.

It's not clear to me what evidence the court relied on in issuing the gag order, and I don't know if that information has been sealed alongside the order.

How Young is Too Young to Be a Federal Court of Appeals Judge?

Experience versus attitude.

Yesterday, the Senate Judiciary Committee held a hearing on the nomination of Allison Jones Rushing, a nominee to the U.S. Court of Appeals for the Fourth Circuit. Rushing is 36 years old. If confirmed, she would be the youngest confirmed circuit judge in over 15 years. I don't think I have met Rushing, and I don't have any particular views about her nomination specifically. But Rushing's nomination does raise a recurring question of broader interest: How young is too young to be a federal court of appeals judge?

I have a few thoughts on that.

First, I don't think there is an absolute age line that has to be drawn in every case. Everyone is different, and there may be exceptional people and particular windows of time when usual practices can be put aside.

Second, I think the common wisdom that a nominee should be at least around 40 years old is probably a good ballpark default. Part of that is that you want the nominee to have enough legal experience not to be green. You want them to have a rich understanding of the law that years of experience in the law can bring.

With that said, I'm actually somewhat skeptical that experience is the central issue. Years of experience doesn't always translate to a wealth of diverse experiences from which broadly applicable lessons have been learned. Any judge who is named to the bench without experience will quickly get experience on the job. Finally, I think a lot of the work of a federal court of appeals judge -- not all, but a lot -- is the kind of law nerd work that can be done well even without a lot of experience. Experience is important, but I'm skeptical that it's really the key issue.

In my view, the biggest concern with young judges is less experience than arrogance. Federal court of appeals judges have a lot of power. Being a judicial-restraint-oriented type myself, I worry about judges getting rather intoxicated with the judicial power. And I would guess that there is some correlation between the age a person became a judge and how tempted they are to drink enthusiastically from the tap of judicial power.

The thinking would run something like this. A lawyer who becomes a judge at 50 is likely to have a different self-conception than a lawyer who becomes a judge at 35. If you become a judge at 50, you probably had a 25-year career as a lawyer in which you viewed judges as a "them" and not an "us." You watched judges from the outside. And you saw judges make mistakes, and the effect of those mistakes on real people.

If you become a federal circuit judge at 35, however, you're still in the process of forming your professional identity when you don your robes. At 35, you have life tenure. At 35, you'll probably be a federal judge forever. At 35, you'll always have a fresh set of law clerks every year. At 35, you'll always be fawned over in the legal world.

When all this happens at a young age, I worry, there's a natural inclination to self-identify as innately "all judge." Being a judge becomes who you are. That appointment certificate on the wall becomes a core part of your identity. And I worry that you lose the external perspective on your work and the skepticism about judicial power that may come with a career spent elsewhere before getting Article III power.

This is a worry rather than a certainty, of course. As I said earlier, everyone is different. Some people are more susceptible to my concern than others. And I don't think this translates to a particular number being the "right" number. We can't say definitively that 37 is too young but 39 is totally fine. Adults are not like little kids, who are often at noticeably different stages from year to year. But I think this a signficant reason why we should be concerned generally about young court of appeals judges.

Finally, as I noted at the beginning, nothing here is meant as a commentary on Allison Jones Rushing specifically. People I know and respect have raved about her (including Kannon Shanmugam, her co-worker, who himself would be a fantastic pick for a federal circuit judgeship). And Rushing has an extremely impressive resume. So I don't know whether these concerns apply to her case specifcally. Instead, I am just using the debate over her age as an opportunity to work through some of the broader issues about who should be eligible for judgeships.

It's a Bird, It's a Plane, It's … Doug?

Episode 235 of the Cyberlaw Podcast

Today we interview Doug, the chief legal officer of GCHQ, the British equivalent of NSA. It's the first time we've interviewed someone whose full identify is classified. Out of millions of possible pseudonyms, he's sticking with "Doug." Listen in as he explains why. More seriously, Doug covers the now-considerable oversight regime that governs GCHQ's intercepts and other intelligence collection, Britain's view of how the law of war applies in cyberspace, the prospects for UN talks on that topic, the value of attribution, and whether a national security agency should be responsible for civilian cybersecurity (the UK says yes, the US says no).

In the news, Nick Weaver and Matthew Heiman comment on the undying dumpster fire that is Bloomberg's Chinese supply-chain-attack story. We may not know for sure whether the story is bogus, at least not for a while. But it's not too late, I argue, to fund a journalist version of the Ig-Nobel Prize. Call it the Bullitzer, for the story with the most potent mix of consequences and BS. Right now, Bloomberg is definitely in the running.

Matthew tells us that Treasury has announced its CFIUS pilot program, which will require the filing of notices for Chinese acquisitions in 27 critical industries. I argue that this is one more sign that a predisposed bureaucracy has made President Trump a transformational president in terms of relations with China.

Speaking of bureaucratic predispositions, DOJ is carrying out its predisposition to haul Chinese spies into court. What's remarkable is that it was able to do that from across the Atlantic. While not a cyberespionage case, the recent arrest and extradition of an accused Chinese economic spy is easy to read as DOJ's answer to those who say that indictments of government spies are ineffectual and a sign of weakness.

Everybody's going to have to choose sides as Trump and Xi continue on their collision course. Except Google. At least according to Google, which bailed out of a Pentagon program because it didn't meet Google's values --oh, and because Google had no chance of winning the contract. Talk about virtue signaling on the cheap!

The EU's virtue signaling isn't nearly as cheap, at least for Google, which is now appealing a massive EU competition fine. I can't help wondering who the hell uses Google Shopping to buy stuff; the EU fine feels like it must be $1 billion for every Google Shopping search ever conducted.

Nick reports on two troubling government reports. He believes one — worrying about the cybersecurity of DOD weapons systems . He's less impressed by White House concerns about the health of the defense industrial base, having recently done some "Buy America" electronics procurement himself.

Finally, in the latest dog-bites-man story, Vietnam will force local data storage despite Silicon Valley's protests. Nick, Matthew, and I explore the continuing delusion of US foreign policymakers that the Internet must be borderless and open and free.

Download the 235th Episode (mp3).

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Don't Take Too Much Comfort From Surveys Showing Widespread Opposition to "Political Correctness"

Many who oppose "political correctness" also support a variety of specific types of censorship.

Commentators such as Harvard political scientist Yascha Mounk and Reason's Robby Soave have hailed a recent study indicating that 80% of Americans oppose "political correctness." I'm a fan of the work of both Mounk and Soave. In this case, however, I fear they are overly optimistic. Unfortunately, other evidence suggests that for many, distaste for political correctness is entirely compatible with support for extensive censorship. Here is Mounk's summary of what he sees as a key positive finding of the survey's analysis of attitudes towards political correctness:

Among the general population, a full 80 percent believe that "political correctness is a problem in our country." Even young people are uncomfortable with it, including 74 percent ages 24 to 29, and 79 percent under age 24. On this particular issue, the woke are in a clear minority across all ages.

Youth isn't a good proxy for support of political correctness—and it turns out race isn't, either.

Whites are ever so slightly less likely than average to believe that political correctness is a problem in the country: 79 percent of them share this sentiment. Instead, it is Asians (82 percent), Hispanics (87 percent), and American Indians (88 percent) who are most likely to oppose political correctness.

It's a good thing that large majorities of Americans of different racial and ethnic groups believe that political correctnes is "a problem." But it does not mean that all of these people are principled, consistent opponents of censorship. Far from it, in fact.

Other surveys also show that large numbers of peple on both right and left are happy to suppress many specific types of speech they find offensive. Here are some examples from the Cato Institute's Emily Ekins' valuable work on on these issues. She too finds that a large majority (71%) decry "political correctness." But that does not prevent results like these:

53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.

51% of Democrats support a law that requires Americans use transgender people's preferred gender pronouns.

58% of Democrats say employers should punish employees for offensive Facebook posts.

47% of Republicans favor bans on building new mosques.

And that's just a sampling of a much broader problem. For example, despite evidence that large majorities of young people decry "political correctness," she also finds that large numbers support banning a wide range of speech on college campuses. More generally, the 2017 Cato Free Speech and Tolerance Survey, conducted by Ekins, finds that many on both right and left advocate censorship of views that offend their respective political sensibilities. For many people (particularly conservatives denouncing the left), "political correctness" is just a pejorative term they use to denounce the types of censorship they dislike.They use more positive terms to describe their own preferred forms of repression.

And, sadly, censorious left-wing political correctness is matched by what Alex Nowrasteh calls the "patriotic correctness" of the right. Would-be censors on the right and left differ in the objects of their repressive impulses. But they are united in believing that some types of offensive or dangerous expression need to be banned, even if they disagree on which ones.

Such inconsistency between abstract opposition to "political correctness" and support for specific forms of censorship should not be surprising. Many people don't reason carefully about their political beliefs, or make much effort to root out contradictions in their thinking. This is just one of many ways in which perverse incentives lead much of the public - and even government officials - to be ignorant and biased in their approach to political issues.

Not everyone who supports censorship is strongly committed to such views, or eager to aggressively implement them. Nonetheless, it is clear that many who are happy to denounce "political correctness" also want to suppress what they see as offensive or harmful speech.

UPDATE: I have made a few minor modifications to the wording of this post.

Can a Constitutional Amendment Forestall the Threat of Court-Packing?

Jim Lindgren proposes a constitutional amendment banning court-packing. I'm all for it. But it can only pass if liberal Democrats get some reciprocal concession to support it.

The Supreme Court.The Supreme Court.

In previous posts, I explained why there is a real danger that we might see a serious attempt to "pack" the Supreme Court at some point within the next few years, and why such a development might well cause great harm, if it happened. To avert this threat, prominent legal scholar (and Volokh Conspiracy co-blogger) Jim Lindgren proposes a constitutional amendment fixing the number of Supreme Court justices at nine. I am more than happy to support this idea! If it gets enacted, it would indeed put an end to the danger, permanently plugging this loophole in our constitutional system.

But the amendment strategy has a significant potential weakness. Constitutional amendments are extremely difficult to pass. The standard pathway requires support from two-thirds of both houses of Congress and three-fourths of state legislatures. The alternative of a convention of the states also requires a large supermajority. If there are powerful political forces that want to pack the Court in the near future (or at least keep open the possibility of doing so), they can easily block the enactment of Jim's excellent proposal. And, in this case, liberal Democrats are increasingly open to the court-packing idea, even if it does not yet enjoy anything approaching consensus support on the left. They are unlikely to give it up at a time when many liberals see it as the best available countermove to what they regard as an illegitimate conservative takeover of the Court. Liberal Democrats almost certainly have the votes block the enactment of an anti-court-packing amendment in Congress, the states or (most likely) both.

Thus, such an amendment can only pass as part of a political deal in which the left gets some reciprocal concession from Republicans. For example, the membership of the Court could be temporarily expanded to ten, and the president at the time (if he is a Republican) can commit to choosing a nominee endorsed by Democratic leaders in Congress. The temporary temporary could serve for a term of, say, 18 years after which the membership of the Court would revert to nine. This could potentially split the difference between the two sides. It would give the left an extra justice, but would fall short of the two (or more) new liberal seats that progressive supporters of court-packing hope to add. Perhaps liberals would prefer one guaranteed seat in the hand to two more uncertain ones "in the bush."

One can imagine other types of concessions that could incentivize the left to support the Lindgren Amendment. The trick is to find one that would simultaneously win sufficient liberal support without alienating the right. This may not be an insuperable task. But, in this era of deep polarization, it certainly will not be easy. If it were up to me, I would be willing to go to considerable lengths to permanently eliminate the spectre of court-packing. Partisan Republicans might not be as forthcoming.

Short Circuit: A Roundup of Recent Federal Court Decisions

Public defender shortfalls, warrantless rental inspections, and juveniles in solitary confinement.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: Sciencing the heck out of Auer deference, cruel and unusual punishment of the homeless, and Pride Festival picketing. Click here for iTunes.

  • Pennsylvania man serves 10-year sentence for using internet to entice minor (actually an undercover officer). Some conditions of his supervised release: the installation of filtering and monitoring software on his computer and also, confusingly, a lifetime ban on computer and internet use. Third Circuit: He "cannot follow these conditions because he cannot tell what they forbid." Which violates due process. Further, a lifetime ban is more restrictive than necessary. Vacated and remanded.
  • Man nailed for drug crimes on New Year's Eve gets charges dismissed; a Pennsylvania court says the search violated the Fourth Amendment. After the court's decision, and three years after his arrest, he sues the arresting officer (for violating the Fourth Amendment). Third Circuit: Too late! The two-year statute of limitations runs from the time of the search, not the time of the decision invalidating it.
  • Faced with funding shortfall, Louisiana public defenders put noncapital defendants on months-long waitlists; defendants appear in court without counsel. Defendants sue the defenders: This is unconstitutional in a bunch of ways. Public defenders: Totally. Somebody should fund us. Louisiana Legislature (after several years of litigation): Oh all right, here's $5 mil; eliminate the waitlists. Defendants: Great, but this problem isn't going away. Fifth Circuit: "[N]o waitlists = no live case or controversy = no jurisdiction."
  • Texas officials order doctor to turn over patient records. (He declines, but an office manager surrenders them after being threatened with arrest.) Fifth Circuit: Though the records were potentially inculpatory, the doc can't challenge the search because he has no privacy interests at stake. Only the patients have privacy interests in the medical records, and because the doc doesn't own the clinic where he works, he doesn't have a privacy interest in the area searched (which differentiates the case from the Fifth Circuit's August decision in a similar case).
  • Evendale, Ohio officials pass law requiring warrantless inspections of rental properties. Landlords: Which violates the Fourth Amendment. Sixth Circuit: You don't have standing because officials haven't actually pounded on your door.
  • Man plans, serves as a lookout for five armed robberies of Detroit electronics stores, gets 124.5-year sentence. U.S. Supreme Court: Take another look at the sentence in light of new precedent narrowing what counts as a "crime of violence." Sixth Circuit: Sure thing. He gets 124.5 years. Robbery involves force and so is a crime of violence, as is aiding and abetting said force. (And his other arguments die many procedural deaths.)
  • Man who is 12 years into 24-year sentence has his conviction partially overturned (after the U.S. Supreme Court narrows what counts as a "crime of violence"). Yikes! The max sentence after the correction is just 10 years. Just resentence him to time served? No, says the Sixth Circuit (in July). If the max is 10, you can't sentence him to 12. Pick a new remedy. The dissent: As Lady Macbeth says in Act III, "What's done cannot be undone." [Editor's note: Actually, that's Act V. But Act III does say that "Things without all remedy / Should be without regard: what's done is done."] Sixth Circuit (this week, in a separate case): We decided this in July. Time-served sentences are a no-go. (The Sixth Circuit Blog has the scoop.)
  • Two 16-year-olds from Iowa are sent to Irma, Wisc. juvenile detention facility. Allegation: Where for months they spend 22 hours a day alone in 7-by-10-foot cells containing only a metal cot and thin mattress. They receive little to no education, are subjected to excessive force, and both attempt suicide. Seventh Circuit: No qualified immunity (yet) for Iowa official who contracted with Wisconsin officials to send the teens there.
  • Coles County, Ill. officials hike taxes for commercial and industrial properties in one township (by 25 and 21 percent, respectively)—but not for anywhere else in the rest of the county. An equal protection violation? No need to consider that, says the Seventh Circuit; the comity doctrine prevents us from disrupting state tax systems (so long as those systems offer adequate means of challenging tax assessments).
  • Under the Prison Litigation Reform Act of 1995, prisoners cannot file a lawsuit challenging prison conditions until they have exhausted "such administrative remedies as are available." But how "available" are those remedies if they are described to a prisoner only in a language prison officials know he does not understand? Not "available" enough to bar this lawsuit, says the Seventh Circuit.
  • If you were ripped off by a couple of companies that enrolled consumers in membership-rewards programs without their consent, congratulations, you're entitled to a $20 credit to buy more stuff from them. Ninth Circuit: Your class counsel, however, is probably not entitled to $8.7 million in attorney's fees for winning you a coupon.
  • After President Trump pardoned controversial former sheriff Joe Arpaio, a judge dismissed his prosecution but did not vacate his conviction for criminal contempt of court. Federal prosecutors now say they will not defend the judge's ruling on appeal. Does the court have the power to appoint a special prosecutor to do the job for them? Ninth Circuit: We see no reason why not. Dissent: Prosecuting is the executive's job; you're violating the separation of powers.
  • Woman arrested for driving with suspended license makes bond, but Bulloch County, Ga. jail officials suspect she's in the U.S. illegally, decline to release her. Her sister calls every 15 minutes for updates, brings documents proving her citizenship to the jail, eventually contacts ICE, which tells the jail to release her. (She'd spent 26 hours in jail.) Eleventh Circuit: The Fourth Amendment requires probable cause to detain someone. Remand to the district court to assess each official's actions and determine which are responsible.
  • Night-shift worker: Olympia, Wash. officer tailed me as I returned to office in company vehicle and uniform (after completing repair job off site). Then he inexplicably reported a potential burglary in progress, and officers barged into the office unannounced, pointed guns, knocked me down, detained me for 45 minutes, laughed and high-fived. Officer: I didn't tail him; I just saw the office had an open door and decided to investigate. District court: Could be excessive force, but the worker's claim for intentional infliction of emotional distress can't go; the conduct alleged isn't "'utterly intolerable in a civilized society.'" (H/t: Police4aqi.)
  • Report: Between 1981 and 2014, black defendants in Washington state courts were 4.5 times more likely to be sentenced to death than similarly situated white defendants. Washington Supreme Court: The state's death penalty violates the state constitution because it is administered arbitrarily and in a racially biased way.

This week, the U.S. Supreme Court vacated an abominable ruling out of the Eighth Circuit that upheld Missouri's licensing law for African-style hair braiders. The law, which has since been amended by state legislators to exempt braiders, forced braiders to spend 1,500 hours and thousands of dollars at cosmetology schools (that provide little or no instruction relevant to braiding) on pain of criminal penalties. The Eighth Circuit ruled that an occupational licensing regime that imposes a "needless, wasteful requirement" passes constitutional muster if even a small percentage of it is rationally related to any legitimate public interest. That bad precedent is no longer on the books. Read more here.

Proposed Constitutional Amendment Against Packing the Supreme Court

Ilya Somin raises the issue of packing the Supreme Court.

To foreclose that possibility, I am proposing a constitutional amendment to prevent Congress from passing a statute to pack the US Supreme Court with more than nine members. If one party gains control of the White House and both houses of Congress, such a move is at least a possibility in the current degraded political atmosphere. If a party successfully packs the Court (as FDR tried to do during the New Deal), such an act would likely lead to yet more packing the next time that the other party controlled the White House and Congress.

To prevent such a tit-for-tat escalation, I propose that Congress should immediately pass and submit to the states for ratification a constitutional amendment to prevent increasing the size of the Supreme Court (and to undo any packing that happens before ratification).

I cannot predict how the politics of this would play out, but I would imagine that any member of Congress who refused to support such an amendment could be plausibly accused of refusing to support it because they hoped to pack the Supreme Court sometime in the future. Of course, that would not be the only reason that can be imagined to oppose the amendment—Glenn Reynolds claims to favor a large Supreme Court of several dozen members—but an inclination to pack would be the likeliest reason for opposition.

Though some Democrats would oppose the amendment because ideally they would like to pack the Court, I wonder how many Democrats trust the Republicans in the future to be less partisan than they would be. I don't sense much trust emanating from either side.

In the long run, to prevent one party controlling the Supreme Court decade after decade, to prevent politically strategic retirement, and to even out presidential opportunities to appoint justices to the Court, I have long favored an additional amendment providing for 18-year or 24-year terms for Supreme Court Justices.

Proposed Amendment Against Packing the Supreme Court

Section 1 [Size].

The size of the Supreme Court of the United States shall be nine members, consisting of one Chief Justice and eight Associate Justices, though from time to time one or more of these nine offices may be vacant.

Section 2 [Senior Status].

A Justice who has accepted senior status or another form of partial retirement from the Supreme Court shall not be counted as holding one of the nine judicial offices on that Court. Such a Justice is barred from participating as a Supreme Court Justice both in cases before the Supreme Court and in the adoption of judicial rules, but may be involved in cases before lower federal courts when properly assigned.

Section 3 [Repealing Any Increase].

If before this amendment is ratified by the States, the size of the Supreme Court has been increased by statute or constitutional amendment to more than nine members, once this amendment is ratified, those additional judicial offices beyond the nine in place in 2018 are void. The then current holders of those newer offices would be immediately removed from the Supreme Court, no matter whether they were appointed to the Supreme Court before or after any Justices sitting in the pre-existing nine offices. A Justice removed from the Supreme Court under this section may continue to serve as a federal judge during good behavior. On leaving the Supreme Court, such a removed Justice may choose to accept and fill any vacant Article III judgeship, without further nomination to that particular judgeship by the President and without the advice and consent of the Senate.

Section 4 [Enforcement].

The Congress shall have the power to enforce this article by appropriate legislation and the Supreme Court shall have the power to enforce this article by appropriate judicial rulemaking consistent with that legislation.

Amicus Brief on Burdens of Proof for Compelled Decryption

The burden of proof matters, and it's an issue of first impression in appellate courts.

I recently posted a draft article on the Fifth Amendment and compelled entering of passwords: Compelled Decryption and the Privilege Against Self-Incrimination. My article flagged but did not answer a closely-related question: What is the burden of proof to show a foregone conclusion when the government compels entering a password?

Coincidentally, the Massachusetts Supreme Judicial Court happened to invite amicus briefs on this issue in a pending case shortly after I posted my draft. It's a question of first impression among state supreme courts and federal circuit courts, and it relates closely to the underlying Fifth Amendment standard. In for a penny, in for a pound, I say. So today I submitted an amicus brief on the proper burden of proof in compelled decryption cases.

You can read my brief here: Amicus Brief of Professor Orin Kerr on Standards for Compelled Decryption Under the Fifth Amendment. It argues that the government's burden should be to prove by clear and convincing evidence, based on a totality of the circumstances, that the subject of the order knows the password.

Special thanks to Andy Levchuk and Lauren Ostberg, who answered the Twitter call to help me prep and file the brief pro bono.

U.K. Supreme Court: Baker Doesn't Have to Place Pro-Gay Marriage Message on Cake

But the ruling isn't based on free speech or religious liberty

In Lee v. Ashers Baking Company, decided yesterday, the United Kingdom Supreme Court concluded that a baker could not be required to write the words "Support Gay Marriage" in icing on a cake ordered by an LGBT rights advocate for a political event. Famed U.K. gay-rights activist Peter Tatchell, among many others, hailed it as "a victory for freedom of expression." The result is certainly consistent with the argument that bakers have a free-speech right not to include written messages on a wedding cake (a view Eugene and I implicitly endorsed in an amicus brief supporting the same-sex couple in Masterpiece Cakeshop v. Colorado Civil Rights Commission). But the reasoning in Lee is something else.

In fact the U.K. Supreme Court avoided the question whether a baker's written-message refusal was affirmatively protected under the free-speech and religious-liberty provisions of the European Convention on Human Rights. Instead, the court unanimously held that the baker's refusal to propound a written pro-same-sex marriage message did not violate the U.K.'s Equality Act 2006, which prohibits discrimination in the provision of goods, facilities or services on grounds of sexual orientation. I'll explain that rationale in this post.

At the same time, libertarian considerations regarding expression and religion informed the Lee decision. And it contains a potentially influential discussion of the U.S. Supreme Court's Masterpiece Cakeshop opinion from this past summer. I plan to say more about that in a future post.

The basic facts in Lee were these: The owners, the McArthurs, are a Christian couple who have operated their bakeries since 1992. They have six shops and employ 65 people. They run their business in accordance with their religious principles, including their traditionalist views of human sexuality and marriage. The plaintiff, Mr. Lee, is a gay man who volunteers for QueerSpace, an LGBT community organization in Belfast. Lee had previously bought cakes from the bakery in Belfast, but he was not personally known to the staff or to the McArthurs. He did not know anything about the McArthurs' beliefs about marriage. Neither they nor their staff knew of his sexual orientation. The bakery, Ashers, offered a "Build-a-Cake" service to customers. Customers could request particular images or inscriptions to be iced onto a cake. A leaflet advertising this service gave various examples of what could be done, but no religious or political restrictions were mentioned.

In 2014, Lee decided to take a cake to a Queerspace party marking the end of anti-homophobia week and celebrating the momentum toward the recognition of same-sex marriage in Northern Ireland. The court's description of the facts continues as follows:

On 8 or 9 May 2014, Mr Lee went into the shop and placed an order for a cake to be iced with his design, a coloured picture of cartoon-like characters "Bert and Ernie", the QueerSpace logo, and the headline "Support Gay Marriage". Mrs McArthur took the order but raised no objection at the time because she wished to consider how to explain her objection and to spare Mr Lee any embarrassment. Mr Lee paid for the cake. Over the following weekend, the McArthurs decided that they could not in conscience produce a cake with that slogan and so should not fulfil the order. On Monday 12 May 2014, Mrs McArthur telephoned Mr Lee and explained that his order could not be fulfilled because they were a Christian business and could not print the slogan requested. She apologised to Mr Lee and he was later given a full refund and the image was returned to him.

The district judge found that, when they refused to carry out the order, the defendants did perceive that Mr Lee was gay and/or associated with others who were gay; but one of the questions raised in the case stated was whether she was correct as a matter of law to make that finding. The Court of Appeal found it unnecessary to answer that question as the District Judge had made no finding that the order was cancelled because Mr Lee was perceived as being gay.

Mr Lee made arrangements with another cake provider for a similar cake which he was able to take with him to the party on 17 May.

Lee sued on the ground that the bakery had discriminated against him based on his actual or perceived sexual orientation. The trial judge awarded him 500 pounds (currently about $800) in damages and the appeals court affirmed. But the U.K. Supreme Court reversed, reasoning:

The District Judge did not find that the bakery refused to fulfil the order because of Mr Lee's actual or perceived sexual orientation. She found that they "cancelled this order because they oppose same sex marriage for the reason that they regard it as sinful and contrary to their genuinely held religious beliefs" (para 43). As the Court of Appeal pointed out, she did not take issue with the submission that the bakery would have supplied Mr Lee with a cake without the message "support gay marriage" and that they would also have refused to supply a cake with the message requested to a hetero-sexual customer (para 11). The objection was to the message, not the messenger. . . . The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way.

A common response to this sort of analysis is to complain that it sacrifices substantive equality to formalism. Thus, as the U.S. Supreme Court has observed, a tax on yarmulkes would be tantamount to a tax on Jews. Even though not all Jews wear yarmulkes, and not all yarmulke-wearers are Jewish, there is a very close relationship between yarmulke-wearing and Jewishness. Similarly, a ban on same-sex sexual relations discriminates against gay people even though not all homosexuals engage in homosexual sexual activity and not all who engage in such activity are gay. Few federal courts, including the Supreme Court, had any trouble determiming that statutes banning same-sex marriage discriminated against gay people even though not all homosexuals marry, or marry same-sex partners, and even though it's at least theoretically possible that not all same-sex spouses are homosexual. The very close relationship between the activity (homosexual sex or same-sex marriage) and the status (gay or lesbian) demonstrates that discrimination targetting the former is a proxy for discrimination targetting the latter.

The U.K. Supreme Court has an answer to this complaint in its discussion of "indissociability," the doctrine that one basis for discrimination cannot be distinguished from another:

The District Judge also considered at length the question of whether the criterion used by the bakery was "indissociable" from the protected characteristic and held that support for same sex marriage was indissociable from sexual orientation (para 42). This is, however, to misunderstand the role that "indissociability" plays in direct discrimination. It comes into play when the express or overt criterion used as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it. Thus, in the classic case of James v Eastleigh Borough Council [1990] 2 AC 751, the criterion used for allowing free entry to the council's swimming pool was not sex but statutory retirement age. There was, however, an exact correspondence between the criterion of statutory retirement age and sex, because the retirement age for women was 60 and the retirement age for men was 65. Hence any woman aged 60 to 64 could enter free but no man aged 60 to 64 could do so. Again, in Preddy v Bull [2013] UKSC 73; [2013] 1 WLR 3741, letting double-bedded rooms to married couples but not to civil partners was directly discriminatory because marriage was (at that time) indissociable from hetero-sexual orientation. There is no need to consider that question in this case, as the criterion was quite clear. But even if there was, there is no such identity between the criterion and sexual orientation of the customer. People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.

. . . It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person's race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope

Jack Phillips made a very similar argument in Masterpiece Cakeshop: he did not refuse to make a wedding cake for the gay couple because of their sexual orientation. Instead, he refused to do so because of his opposition to gay marriage. He would have refused to make a cake for a same-sex wedding regardlesss of whether the customer ordering it was heterosexual or homosexual. Simlarly, he would not refuse to serve gay customers for other occasions. Like the McArthurs, he claimed that objected only to the message (support for same-sex marriage), not the messengers (gay customers).

But unlike the McArthurs' argument in Lee, Jack Phillips' argument that he did not discriminate based on sexual orientation was rejected by the Colorado Appeals Court in its opinion (reversed on other grounds by the Supreme Court in Masterpiece Cakeshop):

In these decisions [e.g., Lawrence v. Texas, Obergefell v. Hodges], the Supreme Court recognized that, in some cases, conduct cannot be divorced from status. This is so when the conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status. We conclude that the act of same-sex marriage constitutes such conduct because it is "engaged in exclusively or predominantly" by gays, lesbians, and bisexuals. Masterpiece's distinction, therefore, is one without a difference. But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.

See generally the discussion at pp. 14-23. In this, the Colorado appeals court was consistent with many other state and federal court deisions.

What accounts for these seemingly divergent results?

One possibility is that American and British courts simply have different views about what constitutes discrimination-by-proxy or, as the U.K. Supreme Court called it, indissociability. The American approach is more likely to see proxy discrimination than the U.K. approach.

Another possibility is that important factual differences account for the different outcomes. First, the expressive (rather than sexual orientation) basis for the baker's refusal is more obvious and vivid when he declines to write an explicit written endorsement ("Support Gay Marriage") than when he refuses to bake an otherwise indistinguishable wedding cake that he would bake for anyone else but for its intended use in a gay wedding.

Second, the message of the cake in Lee could be affirmed by anyone, regardless of sexual orientation. It's worth noting that Lee himself was not getting married or seeking a wedding cake for anyone else's same-sex marrage; he wanted the cake for a party. As support for same-sex marriage surpasses 2/3 of the public, it's evident that the vast majority of the people who support gay marriage are not themselves gay. At the same time, same-sex marriage among heterosexuals is almost unheard of, and requests for gay wedding cakes by heterosexuals (even for others' weddings) would be correspondingly rare.

Mere "Support [for] Gay Marriage" can be disentangled from homosexual orientation to a much greater degree than the conduct of marrying a same-sex partner or of seeking a wedding cake for such an event. On this view, Jack Phillips' refusal to bake any cake at all for a gay wedding in Masterpiece Cakeshop is sexual orientation discrimination because it is closely linked to the sexual orientation of his customers. But the McArthurs' refusal to ice the words "Support Gay Marriage" in Lee is not sexual orientation discrimination because it is not much of a proxy for the sexual orientation of their customers.

There's no word yet on whether Lee might appeal to the European Court of Human Rights.

Quebec High Court Upholds Litigants' Rights to Wear Religious Headgear in Court

Judges may not "rely on the neutrality of the courts alone as a justification for preventing litigants from accessing a courtroom simply because they are expressing sincerely held religious beliefs."

Rania El-Alloul's car was impounded by Quebec authorities, because her son was driving it while his license was suspended. She went to court to challenge the impoundment, and she wore a headscarf, since she was an observant Muslim woman. The judge concluded that this violated the requirement that people appearing before the court "be suitably dressed," a requirement that the judge interpreted as generally forbidding headgear. Last week, the Quebec high court ruled that the judge had erred, and that the decision violated the "freedom of conscience and religion" secured by the Canadian and Quebec bills of rights:

Freedom of conscience and religion — which entails both the right to hold religious beliefs and the right to act upon these beliefs — does not disappear or change when the concerned individual is dealing with courts. No party challenges that the courtrooms of the Court of Québec — and for that matter all courtrooms in Québec as throughout Canada — are spaces of religious neutrality. This does not mean, however, that judges may rely on the neutrality of the courts alone as a justification for preventing litigants from accessing a courtroom simply because they are expressing sincerely held religious beliefs. In Loyola, Justice Abella wrote that the secular nature of the State (or State neutrality in religious matters) does not imply the negation or extinction of religious beliefs, but rather respect for religious differences, insofar as such beliefs do not conflict with or harm overriding public interests ....

It follows that litigants are permitted to express their sincerely held religious beliefs, including with respect to religious clothing, and courts must accommodate the exercise of that right in a courtroom insofar as it does not conflict with or harm an overriding public interest. Freedom of religious expression does not stop at the door of a courtroom.

Freedom of conscience and religion may rightly be restricted in a courtroom if the exercise of that right conflicts with or harms an overriding public interest, provided any such limit is demonstrably justified in a free and democratic society. But the basic constitutional right remains intact, including in the confines of a courtroom....

Restrictions on the practice of sincerely held religious beliefs may, however, be curtailed in a courtroom when the practice conflicts with some overriding public interest, such as another person's constitutional rights.

An example of this is the case of R. v. N.S. There, the accused in a sexual assault criminal trial claimed that the religiously motivated desire of a witness to wear a full-body dress covering the entire body, including the face (niqab), while testifying would violate their constitutional right to a fair trial. In such a situation, where two different constitutional rights conflicted, the trial court was justified to enter into an inquiry to determine if it was necessary to restrict the rights of the individual witness for the sake of safeguarding the rights of the accused. As noted by Chief Justice McLachlin in that case: "[t]he long-standing practice in Canadian courts is to respect and accommodate the religious convictions of witnesses, unless they pose a significant or serious risk to a fair trial." ...

[In future cases], it is not necessary for a trial judge to test the sincerity of religious beliefs and practices each time someone appears in a courtroom wearing religious garments, particularly where such garments are well-known, such as a hijab for a Muslim woman, a Roman collar for a Catholic priest, a kippa for an orthodox Jew, etc. This is also the case for those litigants wearing a pendant or other suitable religious jewelry. Where the religious practice is well known and understood, there is rarely a need to proceed to an inquiry. As rightly noted by Justice Iacobucci in Syndicat Northcrest v. Anselem: "an intrusive government inquiry into the nature of a claimant's beliefs would in itself threaten the values of religious liberty."

In light of the multi-confessional fabric of Québec society, it is usually quite easy for a judge to recognize the difference between suitable religious attire and those cases where the individual litigant or witness is showing lack of respect for the court by his or her choice of clothing. The types of religious clothing worn in Québec are not numerous and are not generally difficult to identify. For quite a long time now, the courts have had little difficulty accommodating these types of attire.

Of course, from time to time, there may occur situations which warrant further inquiry; it is incumbent on trial judges to identify these situations by using common sense. An example is the full facial covering, such as the niqab, which raises issues related to the proper identification of litigants, the proper assessment of the credibility of witnesses and the fairness of the judicial proceedings. Such a case was dealt with in R. v. N.S.

In the appellant's case, however, we are dealing with a head scarf which does not cover the face. It is hard to conceive in which circumstances the wearing of such a religious head dress by a litigant in a courtroom would conflict with an overriding public interest, save those rare circumstances where a physical characteristic of the head (e.g. hair colour or form of the ears) would be a true issue in a trial. In such cases, it is the analytical framework set out in R. v. N.S. which then must be applied....

Sounds right to me, just as I think it's right that American courts generally reach the same result, though at times with a slightly different analysis. (In many American states that lack "Religious Freedom Restoration Acts" or similarly interpreted state constitutional provisions, there's no presumptive right to exemptions from generally applicable rules; but even so, appellate courts tend to conclude that religious garments usually don't violate courtroom dress codes.) And of course, this is relevant not just to Muslim women, but to Orthodox Jewish women, who often wear headscarves, to Jewish men who wear yarmulkes, to Sikhs who wear turbans, to nuns who wear wimples, and so on.

Trump Adviser's 3rd-Grade Teacher Dishes: Look How Weird He Was at Age 8

Oddly enough, not in The Onion!

Rather, it's in The Hollywood Reporter, a serious entertainment industry publication (to be sure, in a very left-leaning industry). Here's the key passage:

Do you remember that character in Peanuts, the one called Pig Pen, with the dust cloud and crumbs flying all around him? That was Stephen Miller at 8. I was always trying to get him to clean up his desk — he always had stuff mashed up in there. He was a strange dude. I remember he would take a bottle of glue — we didn't have glue sticks in those days — and he would pour the glue on his arm, let it dry, peel it off and then eat it.

I remember being concerned about him — not academically. He was OK with that, though I could never read his handwriting. But he had such strange personal habits. He was a loner and isolated and off by himself all the time.

At the end of the year, I wrote all my concerns — and I had a lot of them — in his school record. When the school principal had a conference with Stephen's parents, the parents were horrified. So the principal took some white-out and blanked out all my comments....

Is it just me, or is that a rather unprofessional way for a teacher to talk about one of her then very young students? (I set aside occasional reminiscences that are clearly meant fondly, either of the "how cute he was in his oddness" or "look how far he's come" variety.) If my boys some day make it big, should I expect their teachers to write up stories about how supposedly weird and awful they were when they were, literally, eight years old?

Thanks to InstaPundit for the pointer.

"Principal Reportedly Asks Student to Remove Shirt with President’s Name"

Tom Woerner (Dunn, N.C. Daily Record) reports:

Mike Collins said his son, Matthew, was participating in "USA America Night" Friday night [at a Harnett Central High School football game] which prompted him to wear a shirt with an American flag and the Statue of Liberty on the front. The shirt had the name Trump on the back with the number 45 on it. The shirt is similar to jerseys worn by athletes....

Mr. Collins said ... Harnett Central Principal Cindy Gordon ... told Matthew other parents in the crowd were upset by the Trump shirt.

Mrs. Gordon told Matthew he would have to change shirts if he wanted to remain at the game....

Of course, keep in mind the "reportedly" in the title of the post (quoted from the Daily Record subtitle). The story quotes Harnett County School Board Chairman Bill Morris as saying that "The superintendent is conducting an investigation and he is handling it internally," and that "At this point we have no further comment." The Principal and Superintendent apparently did not get back to the newspaper by press time.

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