It sounded at least somewhat promising when Tinder announced last year that it would start requiring photo verification for new users across the United States. Deploying a technology called "Face Check", Tinder would have every such user take a video selfie whose coordinates would be compared against pictures uploaded with the profile. While this is a partial improvement over the previous state of things where facial verification was generally optional, significant flaws are emerging.
Earlier this month, journalist Christophe Haubursin uploaded a video to YouTube that showed a strange phenomenon whereby a lot of Tinder profiles exhibited a similar pattern without obvious initial explanation. The first eight profile pictures would show one individual, but then the ninth picture would be an artistic version of a different individual (say, a face embedded in a painting or mural). A reverse image search would uncover that the first eight pictures were of a--conventionally good-looking--person with a different identity than that portrayed by the profile.
Haubursin began suspecting that Face Check was deeming "verified" profiles where as few as one of the pictures corresponded to the required video selfie. He tested this hypothesis himself and confirmed it: all a profile needed to render it verified was one (even stylized) picture that matched the video selfie, even if it was preceded by eight pictures of someone who looked completely different and who most people would assume was the actual holder of the profile. Haubursin also contacted some of the people with these types of profiles, and unsurprisingly at this point they were actually crypto scammers. Read More
Do the internal Supreme Court memos concerning the stay of the Clean Power Plan reveal judicial hypocrisy or a failure of the justices to apply the proper standard of review? Many commentators seem to think so. Many also seem to think the memos (and those by the Chief Justice in particular) contain errors or omissions that were not commented upon by the other justices.
At Divided Argument, William Baude and Richard Re respond to the claims that the Court failed to adequately or consistently account for irreparable injury to the government and did not apply the appropriate standard of review. On the former point thy write:
The problem with criticisms like these is that they conflate two different legal doctrines. The Court has stated a rule that the government faces irreparable injury when its policies are blocked. But that is a rule that applies to the moving party. That is, when the government seeks to have a lower court order lifted, it is almost axiomatic that the lower court order injures the government, so the Court focuses on other factors, such as the merits of the case.
This rule had no application in the Clean Power Plan case because the Obama Administration was not the moving party. Instead, the challengers to Clean Power Plan were the moving party: they were the ones seeking a stay.
On the question of the standard of review, Baude and Re write:
Another criticism is that the Chief Justice's memo clearly applied the wrong standard of review. Here, too, the critics are at best overstating their case. The factors applied by the Chief Justice were sensible ones drawn from prior cases and the briefing before the Court.
And, notably, for all of the internal pushback from the dissenting justices, they did not push back on the standard of review. Perhaps this is because the details of the standard of review do not matter so much. In a somewhat novel case, any relevant substantive points can be channeled into the plausible alternative standards of review as well.
As they note, there was some ambiguity about the proper standard to apply, and whether the authority for the stay should be understood to come from the All Writs Act, APA Section 705, or somewhere else. In any event, the Court considered what we would expect to it consider.
I would add that it's a mistake to read these internal memoranda as if they were public judicial opinions, as opposed to memoranda distributed to a specialized audience. My experience as a judicial clerk may not be representative, but I recall memoranda by judges to their colleagues that focused on the issues and questions of immediate concern that did not walk through or spell out all of the relevant considerations, let alone seek to provide guidance to lower courts.
Baude and Re continue:
the Court applied its normal equitable inquiry, citing both the general standard for a stay pending appeal and the standard for stays of administrative action set out in Nken v. Holder. These two standards are really applications of the same underlying principles. Both standardsfocus on a likelihood of success (which in this context includes an assessment of certworthiness) and irreparable injury to the moving party. The Chief Justice squarely addressed those critical points. When the government is a party, these standards also allow consideration of the balance of the equities in close cases. And the Chief Justice not only noted that point, but also had a clear view as to how it applied, particularly given the threat that he perceived to the Court's authority. . .
Perhaps the Court was wrong to rely so much on the likelihood of success, especially at such an early stage of the proceedings, and to be so concerned about the executive branch's efforts to circumvent the judiciary. At the same time, those considerations are hardly unique to the Clean Power Plan case and they have reemerged when the justices faced other cases of fast-moving executive branch overreach. Take AARP v. Trump or the Illinois National Guard case.
Or perhaps critics simply disagree with the ultimate judgments the majority reached. That is fine, but a very different point from whether the memos reveal basic doctrinal errors or hypocrisies, which we doubt.
My prior posts on the "shadow papers" and the "shadow docket" more broadly can be found here.
The rise of "abundance liberalism" is one of the few good political developments of the last few years. Abundance liberals and related thinkers like Ezra Klein and Derek Thompson (authors of the best-known book promoting the movement), Matt Yglesias, Catherine Rampell, Kelsey Piper, Noah Smith, Jerusalem Demsas, and others are left-liberals who advocate market-based approaches to a variety of important issues. Smith and famous law professor Cass Sunstein have even written recent articles expression new-found appreciation for libertarianism.
I think the growth of this movement is extremely promising, even though it has some flaws and internal contradictions. And it's a source of potentially valuable allies for libertarians and other free market advocates, at a time when we badly need them.
Despite my general enthusiasm for the abundance movement, I actually agree with many of the criticisms and reservations expressed by libertarians like and free market conservatives, like Bryan Caplan, Samuel Gregg, and Richard Reinsch. In particular, the critics are right to highlight how many abundance liberals embrace market approaches on some issues (most notably trade and housing), but reject them on others (e.g. - health care and education), without recognizing that most of the reasons for curbing government intervention in the former areas also apply to the latter. In addition, Bryan is right to urge the abundance advocates to push their case further in those areas where they do embrace markets, particularly when it comes to immigration.
That said, we should never let the best become of the enemy of the extremely good. And abundance liberalism is indeed extremely good! The issues where they support major movement towards freer markets - most notably housing, trade, immigration, and nuclear power - are extremely important ones. They have enormous effects on the life, liberty, and happiness of tens of millions of people. A coalition focused on these big issues could have great value, even in spite of differences on other matters.
1. Magnitude of effects on human freedom and happiness. Big effects deserve priority over small ones.
2. Easy to implement solutions. Problems with simple, quick fixes deserve priority over ones where the solution is difficult and/or requires a massive increase in competence and capacity.
3. The possibility of incremental progress. Issues where incremental progress is possible deserve priority over "all or nothing" issues, except in unusual revolutionary situations.
The issues on which abundance liberals are good all check every one of these boxes. Indeed, I highlighted two of them (housing and immigration restrictions) in my original 2024 post. All these issue have huge effects on human freedom and welfare, and solutions are relatively easy to implement (in most cases just ending or cutting back on harmful government intervention; though nuclear power is somewhat more difficult). And incremental progress on all of them is feasible. Even if we cannot abolish all exclusionary zoning, we can make progress by getting rid of some. Even if we cannot abolish all immigration restrictions, we can greatly improve the world by abolishing some. And so on.
In addition to these important areas of agreement on specific issues, abundance liberals and libertarians also have significant (though, far from total) agreement on some important general principles. Both groups tend to support liberal individualism over various types of collectivism, whether those of the left or the nationalist right. Many of the abundance liberals dislike conventional left-wing identity politics, even if not as much as most libertarians do.
Kelsey Piper even wrote a recent article critiquing affirmative action. Part of her objection is that racial preferences are extremely unpopular (which is true) and thus a drag on the electoral fortunes of the Democratic Party. But she also objects to these kinds of policies on principle:
Our foundational commitment is that every person is an individual, created equal, and deserving of equal treatment under the law and equal opportunity. That means you shouldn't get judged by the average qualities of your group. You shouldn't be judged as less impressive because other East Asians have, on average, higher test scores, and you shouldn't be judged as more impressive because other Hispanics have, on average, lower test scores.
Preach it, sister!
Abundance liberals and libertarians also have in common an appreciation for basic Econ 101. For example, both groups recognize that when government restricts supply (as with exclusionary zoning in the case of housing), that increases prices and creates shortages. Similarly, tariffs are harmful because they prevent mutually beneficial trade, thereby making us poorer and the economy less efficient. Abundance liberals recognize more exceptions to these general principles than libertarians do, and tend to believe that market failures are more common than is actually the case. But the initial acceptance of basic Econ 101 is still extremely important.
And abundance liberals are not afraid to criticize left-wing policies when the latter deviate from Econ 101 without a compelling reason. For example, almost all abundance liberals reject rent control, and many were highly critical of Biden's student loan forgiveness program., because it created a variety of perverse incentives and helped the relatively affluent at the expense of the needy, instead of vice versa.
In addition to agreement on some key issues and principles, abundance liberals and libertarians also have important common enemies in the form of the national right and the "democratic socialist" left. Sometimes, common enemies bind people together more than anything else.
Abundance liberals are also potentially valuable allies because they seem to have some real influence in Democratic Party politics, and on the political left generally. A variety of Democratic governors - including Gavin Newsom (California), Jared Polis (Colorado), and Kathy Hochul (New York) have embraced various abundance liberal "YIMBY" housing deregulations. Massachusetts Governor Maura Healy has even coupled that with forcefully opposing rent control, which I never thought I would see a prominent liberal Democratic politician do. It is even possible - though far from certain - that an abundance-oriented candidate might win the 2028 Democratic presidential nomination.
The old "fusionist" alliance with the conservative right is dead, and we need new allies, as libertarians are pretty obviously not strong enough to achieve a lot on our own. Abundance liberals are by far the best available alternative coalition partners.
Abundance liberals might ask: what good are libertarians to us? It's not as if libertarianism is vastly popular. In answer, I would note that libertarian intellectuals and policy experts have long batted above their weight and wielded important influence, including on issues central to the abundance agenda, such as housing, immigration, and trade. In addition, depending on how you define them, libertarian-leaning voters are some 7-20% of the population (I think the lower-bound figures are more plausible than the higher ones). And many of them tend not to have strong party loyalties, and therefore can be swing voters. That's nowhere near enough to win elections by themselves. But it could be a valuable voting bloc in close elections.
In this post, I do not try to outline in any detail how such an alliance might work. That remains to be seen, and is probably best worked out by people with better connections and greater political skill than I have. But I do want to suggest the general idea, thereby hopefully giving a nudge to those who do have the requisite skills. I would add that an effective coalition should have both an elite/intellectual element and a more popular one focused on moving public opinion and influencing electoral results.
There is the important caveat that political developments are often hard to predict. Perhaps in five to ten years, the Democratic Party will be dominated by socialists, while the MAGA nationalist movement will have collapsed, allowing more market-oriented conservatives to regain control over the GOP. Other types of unexpected developments might also happen, that make an abundance liberal/libertarian alliance ineffective or unnecessary.
But, for the moment, this is a potential coalition that makes good sense. And it is likely to continue to do so as long as the issues that unite the two groups remain extremely important. I suspect most of them won't go away anytime soon.
An excerpt from yesterday's decision in U.S. v. California, by Judge Mark Bennett, joined by Judges Jacqueline Nguyen and Daniel Collins:
[T]he United States seeks an injunction pending appeal that enjoins … enforc[ement of] § 10 of the [California] No Vigilantes Act … against federal agencies and officers. Section 10 requires any non-uniformed "federal law enforcement officer" operating in California, with narrow exceptions, to "visibly display identification" while performing federal law enforcement duties. Officers who violate the law may be criminally prosecuted by the State….
We conclude that § 10 of the No Vigilantes Act attempts to directly regulate the United States in its performance of governmental functions. The Supremacy Clause forbids the State from enforcing such legislation….
When "[t]he Framers split the atom of sovereignty," they put the federal government under the "control[ ] [of] the people without collateral interference by the States," which "have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere." To that end, the Supremacy Clause [of the Constitution] renders "the activities of the Federal Government … free from regulation by any state." "It is of the very essence of supremacy," the Supreme Court has emphasized, "to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." Therefore, "where 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' 'the federal function must be left free' of regulation" by the States.
"Schools are free to determine the content of those sessions, even (if they so choose) teaching on the harms of diversity requirements or on the importance of religious liberty."
Last week, the Wall Street Journal editorialized on the ABA's DEI mandates on law schools.
The ABA suspended Standard 206 of its Rules of Procedure for Approval of Law Schools, which required schools to demonstrate a "commitment to diversity and inclusion." But that was only half the problem. The ABA left untouched Standard 303(c), which requires law schools to "provide education to law students on bias, cross cultural competency and racism" twice before a student graduates.
Daniel Thies, chair of the Council of the ABA's Section of Legal Education and Admissions to the Bar, wrote a letter to the Editor. He suggested that there is another way for law schools to comply with Standard 303(c).
The law school accreditation standards are silent on DEI, and have been since February 2025. As you note, the council suspended Standard 206 on diversity and inclusion at that time. Looking forward, the council—which has the final say on the content of the accreditation standards—has proposed a permanent repeal effective as soon as this August.
Your editorial cites Standard 303(c) as a still-active DEI requirement. But that standard requires only two modest extracurricular sessions on cross-cultural competency and related topics. Schools are free to determine the content of those sessions, even (if they so choose) teaching on the harms of diversity requirements or on the importance of religious liberty.
I have long suspected that one way to comply with DEI standards is to criticize DEI. For example, some states require "Anti-Bias" CLE requirements. I have given CLE talks where I charge that the state Anti-Bias regimes, including ABA Model Rule 8.4(g), are unconstitutional. I dared state bar associations to deny CLE credit. The credits were approved.
Now, the ABA seems to be taking a new position: a religious law school, for example, can satisfy Standard 303(c) by highlighting how DEI harms religious liberty.
Will any law schools take up this mantle? I don't know. Even if Standard 206 is repealed, law schools will still voluntarily comply with it in spirit. But this position at least gives the ABA some wiggle room in future fights with the Department of Education.
It is much easier to complain about how the Supreme Court handles interim orders on the "Shadow Docket" than to propose meaningful and acceptable reforms. That is, if one is concerned about the process and practice of the Court (and not just its jurisprudential tilt), one must confront the trade-offs inherent in any reform of how interim orders are sought, considered, and addressed.
This is one of the lessons of Garrett West's important new paper "Taming the Shadow Docket," just published in the Virginia Law Review.
Here is the abstract:
The Supreme Court's shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This Article identifies comprehensive structural reforms, all within the Court's control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, states, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the Administrative Procedure Act ("APA"); and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.
And here is from the paper's conclusion:
The problem of the shadow docket is not that the Court fails to explain itself or applies the wrong standards of review. The problem is structural. The lower federal courts, applying current doctrines governing judicial review of federal and state policies, have broad authority to block legislation and administrative action. The Supreme Court, meanwhile, is institutionally committed to its position of supremacy over those lower courts, necessitating the exercise of control over the lower courts in significant matters. Those factors mean that proposed reforms for the Court's use of the shadow docket misdiagnose the structural problem.
This Article, by contrast, offers structural reforms that would allow the Court to change the conditions in the lower courts to prevent significant matters from landing on the shadow docket in the first place. The set of reforms is systematic rather than myopic because focusing on (for example) nationwide injunctions but not also standing and Ex parte Young would solve a problem that would reemerge in a new doctrinal form. And the reforms are pitched at just the right level of ambition—not too fatalistic and not too quixotic: not too fatalistic, because I suggest actual changes that the Court (and lower courts) could implement to reduce the structural causes of the problem that it faces; not too quixotic, because I assume that Congress will do nothing and because the proposed "reforms" are either technically already the law or reasonably plausible refinements or developments of current doctrine. What this Article provides, then, is a menu of options for reducing the pressure on the Court to intervene in the appellate process. Not all such options will seem necessary; some might seem to go too far. But they should all be on the table if the shadow docket is really a problem that needs to be managed.
Or perhaps the shadow docket is a necessary feature of a constitutional system in which the federal courts constrain political actors. On that view, the reforms proposed would fix the shadow docket but undermine the critical judicial function. If so, the solution is not to weaken the courts but to embrace an interim docket, and potentially to make the Supreme Court more effective at its supervisory function. Reforms that allow the Court to intervene earlier or more often might change the composition of the Court's day-to-day work, but such an evolution might be inevitable if the federal courts are to effectively police political actors. Whether the better course is to disempower the lower courts or to embrace the Court's new role is up for debate. But it is implausible to argue that the lower courts should regularly resolve matters of national significance while the Supreme Court declines to intervene.
From McVeigh v. Kelly, decided last week by Chief Judge Allen Winsor (M.D. Fla.):
The facts come from the complaint, and at this stage I accept all well-pleaded factual allegations as true.
McVeigh worked for the Department as a financial administrator. Shortly after Charlie Kirk's assassination, McVeigh posted a photograph of Kirk on his private Instagram account with the caption, "At least this racist just didn't get a nicked ear. Where were all the good guys with guns though? THOUGHTS AND PRAYERS. LET'S NOT MAKE THIS POLITICAL etc." Only McVeigh's friends could access the private Instagram account, which did not identify McVeigh or his employer.
McVeigh also changed his Facebook photo to a graphic that read, "Not the American government asking us not to wish death on people." This photo was not private and was visible to any Internet user. But like the initial Instagram post, this Facebook account did not identify the Department as McVeigh's employer.
At some point, an acquaintance texted McVeigh about the posts, accusing McVeigh of "wishing death" on "individuals who shared Kirk's beliefs." After reflection, McVeigh edited his post "to remove one sentence for tone."
On September 15—five days after the assassination—McVeigh received a termination letter from HR. The HR officer told him it had "[s]omething to do with Charlie Kirk … a post you made or something like that." A few days later, McVeigh discovered an Instagram account showing his Facebook photo, Instagram post, and LinkedIn profile. The post also included a copy of a communication sent to the Department about McVeigh's posts. (McVeigh believes the acquaintance reported his posts to the Department.) …
… Defendant commented on twenty-two different YouTube videos with death threats to various ethnic groups, including Muslims, "American blacks," immigrants, and "people from India." … [T]he Government charged Defendant by criminal complaint with violating 18 U.S.C. § 875(c), which prohibits the transmission, in interstate or foreign commerce, of any communication containing any threat to injure the person of another. … The indictment … includes a chart listing the count, a summary of the communication, the communication date, and the YouTube comment ID number. The communications are listed for each count as follows:
Threat to kill and eradicate Muslims off the face of the earth
Threat to slaughter, eradicate, and kill every Muslim man, woman, and child
Threat to kill and genocide all Muslim men, women, and children
Threat to kill and genocide Muslims in their homes
Threat to kill and genocide all Muslims
Threat to slaughter and kill all Muslims
Threat to kill all Muslim men, women, and children
Threat to kill immigrants, Muslims, "American blacks," and "people from India"
Threat to genocide and slaughter every Muslim
Threat to slaughter and genocide Muslims and politicians
Threat to genocide, kill, and exterminate Muslim men, women, and children
Threat to kidnap and kill entire towns of Muslim men, women, and children by loading them on buses to a location where they will be shot in the head and sent through a woodchipper
Threat to genocide and kill every Muslim in America
Threat to slaughter and kill illegal immigrants
Threat to kill and genocide Muslims on US soil
Threat to kill and eradicate Muslims
Threat to kill any Muslim found on US soil
Threat to kidnap and kill Muslims by loading them onto buses, transporting them to another location, and shooting them in the head, and sending them through woodchippers
Threat to kidnap and kill Muslims
You can see the text of the posts in the Criminal Complaint; just one example:
Muslims listen up- you are not welcome here any more you either go back to your country or die here. We are sick of the gov half assing everything and creating the problems so we as a united people are about to fix these wrongs. Muslims are always planning on killing Americans- guess what we are now meeting making plans on how to run the most efficient effective genocide in history. We are going to kill everyone of you who doesn't leave- men women children zero fucks given your not human your parasites you inbreed biological waste and we can't wait to exterminate you from our land last warning. The gov won't be able to save you they are in fighting they can't pass a budget there's no way they are going to stop the worlds largest armed civilian population that's out for blood.
Plaintiff holds himself out as an established entrepreneur in the e-commerce space. He is the Founder and CEO of Kangaroo Manufacturing & Ranked 1Pro Events. Through these businesses, Plaintiff generated "record-breaking sales on Amazon," fostered a reputation in the online retail sales community, and has shared his expertise on manufacturing, importing, and ranking products on Amazon at various conferences.
At some point, Plaintiff's business relationship with two associates, Joshua Dean Tischer and John Andrew Burns, soured due to issues with repaying debts. Out of fear for losing his business, Plaintiff made numerous threats of death and bodily injury to Burns and offered to pay someone to harm Tischer and Burns because Plaintiff believed they wronged him. Investigators gathered recorded calls, text messages, and witness statements in furtherance of "a possible murder for hire case."
Ultimately, in April 2021, the Mesa Police Department arrested and charged Plaintiff with Aggravated Assault, Stalking – Fear of Death, and Stalking – Fear of Physical Injury. Plaintiff was never charged with murder or conspiracy to commit murder or murder for hire. On March 24, 2022, Plaintiff pleaded guilty to Attempt to Commit Stalking.
On March 28, 2022, Defendant published a news report on Plaintiff's case titled Murder For Hire Conspiracy Case Results In Conviction Of Former Online Retail Star (the "Article"). [Note that the article title actually appears to be "Murder For Hire Conspiracy Case Results In Conviction Of Former Amazon Retail Star." -EV] The Article summarized the Mesa Police Report on Plaintiff's investigation, highlighting the threatening quotes relied on in the prosecution. It also noted that Plaintiff was scheduled to be sentenced "in Maricopa County Superior Court for Attempted Stalking with Fear of Physical Injury, a Class 6 felony" and the "[t]hree other felonies, including conspiracy to commit aggravated assault, [were] dismissed by Judge Scott Minder as part of a plea deal."
The UCLA Federalist Society invited James Percival, the General Counsel of the Department of Homeland Security to speak on Tuesday, April 21. Unfortunately, there was a massive protest that disrupted the speech. Students consistently disrupted by the event by booing and heckling the speakers. There was a nonstop cacophony of ring tones and other sounds, again, which were intended to disrupt the event. This event has been covered by Fox News and the UCLA Daily Bruin.
I give credit to Professor Jon Michaels, who introduced the speaker. Michaels is a staunch critic of the Trump Administration, but still believes in the robust protection of free speech and discourse. Professor Greg McNeal of Pepperdine also deserves credit for posing tough questions to Percival. I cannot give credit to the UCLA Administration, which took no action to remove students causing the disruption, even after they were warned. I had flashbacks to when I was protested at the CUNY Law School in 2018.
My friend Yitzy Frankel shared some of the highlights here:
Truly abhorrent and unimaginable behavior today at the @FedSocUCLA event that hosted a @DHSgov lawyer. Leftist students repeatedly disrupted the event, yelled profanities, shouted, made their phones ping incessantly, and eventually stormed out to a rally that violated all time,… pic.twitter.com/DxqubGVleB
Even if UCLA takes no action, I seriously question how some of these students will fare as attorneys. For example, one student drew a sign that said "Hows Trump's C**ck Taste?" (asterisks in the original). To be sure, there are valid grounds to criticize members of the Trump Administration. But what exactly does this vulgarity convey, other than showing the student is unable to engage in any reasoned discourse?
Another sign was directed at Matthew Weinberg, the chapter President of the UCLA FedSoc chapter. Weinberg, who is Jewish, is currently involved in litigation against the UCLA chapter of Students for Justice in Palestine. This is a student who has faced anti-semitism on campus during the "encampment" movement. Yet another student, who was presumably Jewish, charged that it was Weinberg who was bringing a Nazi to campus:
"Weinberg - why'd you invite Nazis? Jew to Jew, Shame on You"
When exactly did the shadow docket begin? People are now arguing about what was the first relevant shadow docket case, but those disagreements turn on stated and unstated assumptions. The answer depends on how you define the shadow docket. I need to give some more thought to exactly what the "shadow docket" is.
My colleague Stephanie Barclay suggests that the shadow docket actually began on New Year's Eve 2013 when Circuit Justice Sotomayor granted emergency relief to the Little Sisters of the Poor.
Here, I will offer a few reasons why the Little Sisters order can be distinguished from the Clean Power Plan order about two years later. This ruling may still qualify as the first shadow docket entry under certain assumptions, but I have some doubts.
First, the Little Sisters of the Poor were only seeking an exemption for themselves. Other litigation had been filed throughout the country by other religious non-profits. Almost all of those courts had granted emergency relief to the plaintiffs. Only two plaintiffs were denied relief: the Little Sisters of the Poor and Notre Dame University. Notre Dame did not file an emergency appeal to the Supreme Court. Instead, they caved and made coverage of emergency contraception available under their plan. The Little Sisters, represented by the Becket Fund, would file an emergency application with Circuit Justice Sotomayor. With modern emergency docket litigation, plaintiffs often seek universal relief, whether through nationwide injunctions, vacatur, certified classes, or broad associational standing. Outside death penalty cases, it is rare for the Supreme Court to grant emergency one-off relief. Mirabelli is one such case.
Second, the Clean Power Plan litigation was somewhat unique in that the case began at the D.C. Circuit. There were no district court proceedings. Moreover, the Supreme Court issued its stay of the executive action before the D.C. Circuit had an opportunity to rule. By contrast, for the contraception mandate, the District Court and the Tenth Circuit both denied relief after full briefing and consideration. Justice Sotomayor's order in no way short-circuited the appellate process. Moreover, Sotomayor did what virtually every court had done at that point.
Third, on December 31, 2013, Justice Sotomayor granted what we would now call an administrative stay:
IT IS ORDERED that [the government is] temporarily enjoined from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2014, by 10 AM.
To be precise, if the shadow docket was born with the Little Sisters, the birth occurred twenty-one days later on January 24, 2014, when the full Court issued a one-paragraph order:
The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.
A few things stand out here. The Court to did not enjoin the contraceptive mandate altogether. It granted relief to one party, and only one party. There was no suggestion at the time this ruling set a precedent, which other parties could rely on. Notre Dame, which did not appeal, did not benefit from this ruling. Instead, the Court effectively granted an accommodation to a single plaintiff. This sort of tailored remedy stands in stark contrast with the sweeping relief granted in the Clean Power Plan case. That ruling completely enjoined the policy nationwide.
Fourth, in the Clean Power Plan case, it is pretty clear the Obama Administration was trying to rush the policy to "bake it in" before the Supreme Court could review it. Will Baude suggested that the Chief Justice was "concern[ed] that the executive branch [was] openly circumventing the federal courts." The Obama Administration was not trying to circumvent all federal court review. They were content to run out the clock in the favorable D.C. Circuit. DOJ was trying to avoid Supreme Court review. There was some gamesmanship.
But I don't think there was a similar gaming for the contraceptive mandate. The ACA statute provided that the employer mandate would go into effect on January 1, 2014 (though the statute itself said nothing at all about contraception coverage). You may recall that initially, the Obama Administration argued that the "penalty" enforcing the individual mandate was a tax, and since the tax would not be collected until 2014, the challenge to Obamacare in 2010 was not yet ripe in light of the Tax Anti-Injunction Act. This was a clever way of "baking in" Obamacare before the Supreme Court could review it. But DOJ abandoned this strategy once they realized they needed the taxing power argument to save the law. There is lots of gamesmanship and playing keep-away from SCOTUS
Fifth, there is another reason to distinguish the Clean Power Plan and the Little Sisters of the Poor. This reason is somewhat political, but not really. There were no recorded dissents for the nuns. The Justices all likely agreed that the District Court in Colorado committed a clear error, and the ex ante status quo had to be preserved. In other words, the claim for legal relief was clearly established. That would seem to be a very strong factor in favor of granting emergency relief. The Clean Power Plan case split hard by a 5-4 vote. Such a sharp disagreement is almost certain proof that the basis for legal relief is not clearly established. This is what Justice Kagan wrote in her memorandum, and in many subsequent published dissents.
For these reasons, and others, I think it is tough to view the Clean Power Plan and the Little Sisters of the Poor on the same wavelength. I spoke with several DOJ lawyers at the time. They were a "little bit surprised" by the Court's ruling. But this reaction pales in comparison to the shock the Obama Administration had after the Clean Power Plan ruling, where the Justices bypassed the lower court altogether.
Here is an excerpt from Chapter 15, titled "New Year's Resolution." As I've noted in other contexts, I wrote this book behind the veil of ignorance. The shadow docket wasn't even a glimmer in my eye at the time. Indeed, if memory serves, I wrote this chapter before the Clean Power Plan ruling. (The book was sent to the press circa June 2016.)
Today's decision by Fourth Circuit Judge Julius Richardson, joined by Chief Judge Albert Diaz, in Doe v. Mast involved a gag order on defendants: The order barred the defendants from "disclosing any information that directly or indirectly identifies Plaintiffs or their family members to any person … unless that person first executes a non-disclosure agreement."
The court ultimately upheld the order, because of national security concerns that are only very rarely present in such pseudonymous claims (see this post for more, including more on the factual background). But in the process, the court held three things that will be significant in many more cases.
1. Such gag orders are content-based prior restraints on speech:
From Fourth Circuit Judge Julius Richardson, joined by Chief Judge Albert Diaz, in today's Doe v. Mast:
To protect Plaintiffs and their family members living in Afghanistan, the district court issued a protective order that prohibited Defendants and their lawyers from "disclosing any information that directly or indirectly identifies Plaintiffs or their family members to any person … unless that person first executes a non-disclosure agreement." …
Although the order constitutes a content-based prior restraint, it fits into one of the narrow exceptions in which prior restraints can be permissible, subject to strict scrutiny. And the order satisfies strict scrutiny: It is narrowly tailored to safeguard the government's compelling interest in ensuring our Nation's security, which often depends on ensuring the safety of foreign nationals who ally themselves with United States military and diplomatic efforts abroad.
Indeed, if such foreign nationals cannot rely on the United States' assurances of their protection, our Nation's ability to cultivate essential human assets abroad would be seriously undermined. In this case, the narrow protective order is the least restrictive means to safeguard this interest. Therefore, we affirm the district court's protective order….
"The Government has a compelling interest in protecting" not only "the secrecy of information important to our national security" but also "the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp v. U.S. (1980). That includes protecting the identity of potential foreign collaborators…. [T]he government's ability to provide credible assurances to potential collaborators that they and their family members will not be endangered by aiding the United States is directly tied to its compelling interest in ensuring the Nation's security.
From today's decision by Judge James S. Moody, Jr. (M.D. Fla.) in Loomer v. Maher:
Plaintiff Laura Loomer is a well-known conservative investigative journalist. Loomer is also a "conservative, Republican, Jewish female activist." She has twice mounted unsuccessful bids for a congressional seat…. Specifically, Loomer avers that on a September 13, 2024, episode of Maher's "Real Time" show …, Maher made and published the following false, malicious, and defamatory statement of and concerning Loomer:
I think maybe Laura Loomer's in an arranged relationship to affect the election because she's very close to Trump. She's 31, looks like his type. We did an editorial here a few years ago … it was basically, who's Trump fucking? Because I said, you know, it's not nobody. He's been a dog for too long, and it's not Melania. I think we may have our answer this week. I think it might be Laura Loomer.
According to the allegations: "In this statement, Defendant Maher makes the false statement that Ms. Loomer is in a sexual relationship with Donald Trump, who is a married man." Thus, Defendant Maher "falsely and maliciously accused Ms. Loomer of having committed adultery with Donald Trump." …
Was the Clean Power Plan the first executive branch action halted by Supreme Court order on the "shadow docket"? Was it even the first Obama Administration action stopped in this way? Over at SCOTUSBlog, Stephanie Barclay explains why the answer is "no."
Her piece begins:
Last Saturday, the New York Times published a trove of internal Supreme Court memoranda from February 2016 and declared that the five-day deliberation over President Barack Obama's Clean Power Plan marked the birth of the court's modern "shadow docket." Stephen Vladeck, writing before the leak and again after it, made the same claim: the Feb. 9, 2016 rulings were, he wrote, "the birth of what we might call the modern emergency docket." Jack Goldsmith, pushing back against the broader Times framing, narrowed the point but did not abandon it – the 2016 order, on his account, "fairly marks the beginning of the Court's modern active engagement with presidential initiatives via interim orders."
Each of these accounts locates the emergency docket's initial engagement with presidential initiatives on a single winter evening in 2016. Each is wrong. An earlier interim order blocking an executive branch regulatory program as applied to a large group of challengers was not entered by Chief Justice John Roberts. It was entered by Justice Sonia Sotomayor, acting alone, more than two years before the Clean Power Plan application landed at the court. And her approach was adopted not long after by a unanimous Supreme Court.
The first example Barclay points to was Justice Sotomayor's entry of a preliminary injunction of the so-called "contraception mandate" as applied to the Little Sisters of the Poor:
The district court denied their preliminary injunction motion on December 27. The U.S. Court of Appeals for the 10th Circuit denied a request for an emergency injunction pending appeal on December 31. Enforcement was set to begin at midnight.
Sotomayor, as circuit justice for the 10th Circuit, received the Little Sisters' emergency application that evening. She granted it within hours, before she herself led the ball drop in Times Square that New Year's Eve. Her order was only one paragraph long and issued without merits briefing, oral argument, or explanation.
It enjoined the federal government from enforcing a premier presidential regulatory initiative before the 10th Circuit had ruled on whether the district court had correctly denied preliminary injunctive relief. The New York Times editorial board immediately criticized the ruling as "perplexing," arguing that Sotomayor had granted an "audacious" request. The criticisms focused in part on the fact that "[a] federal trial court denied a preliminary injunction . . . and a federal court of appeals declined to issue an injunction pending appeal" because they found interim relief unnecessary. Yet Sotomayor's ruling went the other way.
Three weeks later, without recorded dissent, the Court issued an order broadening the injunction to protect several hundred other religious organizations pending the outcome of Little Sisters' appeal.
By any metric the Times applies to the February 2016 orders, this was a modern emergency docket decision. An unsigned order. No merits briefing. No oral argument. An intervention ahead of the 10th Circuit's full appellate resolution. A major decision limiting enforcement of a signature presidential initiative. And – a feature the 2016 orders notably lack – unanimity across the court's ideological divisions.
Were that not enough, in 2014 the Court granted Wheaton College's request for an injunction pending appeal and in 2015 stayed the mandate in Zubik.
As Barclay notes, one can only understand the evolution of the "shadow docket," and the Court's actions, if one also consider the dynamics to which the Court has been responding (a point I have made repeatedly and at length). Barclay writes:
What has been unprecedented about the last decade is less about the court's engagement on the emergency docket. That engagement has been a response. What has been unprecedented is, among other things, the executive action to which the court has responded – regulatory programs and enforcement actions designed, through their fine structures or compliance timelines, to impose the costs of capitulation before any court could reach the merits, rendering any merits review after the fact a nullity. Roberts voiced this exact concern in his Clean Power Plan memo, noting that the court had learned from recent experience showing that the EPA had found ways to "effectively implement an important program we held to be contrary to law." The continuity in the court's doctrinal response tracks that pattern, not partisan alignment.
The HHS mandate raised that problem in an acute form. The government had structured the regulation and its penalty regime so that compliance costs would accrue daily from the moment of enforcement. For a small religious nonprofit, the effect was to force capitulation or bankruptcy before any appellate court could adjudicate its religious claims. Justice Samuel Alito's private 2016 memo, concerned that voluntary compliance with the Clean Power Plan would render merits review "a mere postscript," voiced a concern that had been addressed – without dissent – in 2014.
The same structural concern has driven the court's engagement with the current Trump administration. When the executive branch attempted to remove alleged Tren de Aragua members under the Alien Enemies Act on a timeline calculated to foreclose any judicial testing of the removals' lawfulness, the court enjoined the removals on an emergency basis. When the administration sought to federalize and deploy the Illinois National Guard on contested statutory grounds, the court denied its stay application. When the administration sought emergency relief to remove a Federal Reserve governor, the court declined to resolve the application on the emergency docket and deferred it for full oral argument. . . .
The story the "shadow papers" tell, read alongside the cases the Times chose not to include, is not one of a court that stumbled into something novel on Feb. 9, 2016. It is one of a court that has been responding, for more than a decade, to a new and recurring problem: executive action, and at times lower-court action, whose design or pace would render ordinary merits review a formality.
Today the Supreme Court decided Hencely v. Fluor Corp. The vote was 6-3, though not the split you might be expecting. Justice Thomas wrote the majority opinion, joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Justice Alito dissented, joined by the Chief Justice and Justice Kavanaugh. This unusual divide is due to the subject matter: preemption.
You might think that the conservative view favors broad federal preemption, but this is not so. Justice Thomas has long been skeptical of federal preemption, as it intrudes on principles of federalism. Wyeth v. Levine (2009) is a prominent case where Justice Thomas voted with the liberals to reject preemption in a pharmaceutical case. I think Justice Gorsuch is in a similar spot as Justice Thomas. I am not entirely sure where Justice Barrett lines up, but in Hencely, she joined Thomas and Gorsuch.
Justices Roberts, Alito, and Kavanaugh, by contrast, are more traditional, and favor broader preemption standards. Thus it was not surprising they dissented here.
It is noteworthy that Justice Thomas assigned himself this majority opinion. Given how rarely the Chief Justice dissents, there are few cases where Thomas is in the majority while Roberts is in the minority. For the senior associate Justice, Thomas assigns very few cases.
This case may not attract headlines, but it could have an impact on a big case to be argued next week: Monsanto Company v. Durnell. This is a preemption case concerning the Roundup pesticide. You might think the conservatives clearly win this case. After all, a ruling for the plaintiff would be devastating for the agricultural market. But things are not so simple. And both sides have lawyered up well. Paul Clement represents Monsanto. Durnell is represented by Ashley Keller, one of the best conservative plaintiff-side attorneys. Keller argued Mallory, and nearly got International Shoe reversed. Keller is joined on the briefs by Jonathan Mitchell, also known as "The Genius." The argument should be entertaining.
If Hencely is any indication, Monsanto may have a hard time getting to five votes. I thought Durnell's briefing was very clever to tie Paul Clement (of all people) to Loper Bright.
