Supreme Court Mentions of Our Coblogger Will Baude, and My Colleague Richard Re

Sometimes law professors do say something the Justices find useful.


[1.] Congratulations to our coblogger Will Baude on having his Is Qualified Immunity Unlawful? article cited by Justice Sotomayor in her Kisela v. Hughes dissent this past Monday. (The citation was alongside a citation to the late, great Judge Stephen Reinhardt; here, by the way, is a lovely obituary for Judge Reinhardt by Heather Mac Donald.)

[2.] Congratulations also to my UCLA colleague Richard Re, whose amicus brief was discussed by four Justices (Alito, Ginsburg, Kennedy, and Sotomayor) at oral argument last week in Hughes v. United States. Hughes turns on how courts should deal with past Supreme Court decisions in which no position garnered majority support; Richard has a forthcoming Harvard Law Review article on the subject, and he wrote an amicus brief based on that article. As Ian Samuel and Dan Epps noted in their superb First Mondays podcast (all Supreme Court, all the time), this is a classic true friend-of-the-court brief—a lawyer-scholar genuinely trying to help a court reason effectively through an issue, rather than stepping in to support a particular party.

No Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria here—nicely done, Will and Richard!

NEXT: Judge Your Coffee in Coffee Circuit Court?

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  1. “late, great Judge Stephen Reinhardt”


    He was 1-24 at the Supreme Court.

    He is on record as saying he intentionally ignored the law on the theory the Supreme Court can’t review every case.

    Worst judge since Taney I believe you meant.

    1. I had almost the same reaction when I read about Reinhardt’s death. My first thought was “So Reinhardt died? How did anyone notice – if you read his opinions, he’s been brain-dead for well over a decade.” My second thought was, “Oh, no, now I’ll have hide my true feelings and pretend that the death of this life-long enemy of the Constitution and poster-child for biased judging was a tragedy.” Nope. I refuse to pretend. Not a tragedy. Maybe, just maybe, if Trump can replace Reinhardt and about a dozen of his like-minded colleagues on the Ninth Circuit, the Second Amendment can reappear as part of the Constitution in California.

  2. this Court
    has long rejected the notion that “an official action is
    protected by qualified immunity unless the very action in
    question has previously been held unlawful,”

    The above quote from Ginsberg’s dissent in Kisela v. Hughes confuses me.

    That “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful” is exactly how most of the circuit courts treat QI analysis.

    Further more, the circuit court opinions on QI that have been featured on Short Circuit frequently make the claim that exactly that treatment of QI was mandated by the Supreme Court.

    So, which is it?

    1. One additional thought, If Ginsberg is right on Supreme Court precedent in the above quote, why isn’t there a majority on the court willing to correct the circuit courts that treat the clearly established right prong too narrowly?

  3. Congratulations!

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