The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Volokh Conspiracy

Iowa Supreme Court Follows Roe v. Wade (by a 5-2 Vote) in Interpreting Iowa Constitution


The case is yesterday's Planned Parenthood v. Reynolds, which strikes down a 72-hour waiting period requirement; the court relies on the Iowa Constitution's Due Process Clause and also its Equal Protection Clause. Since this is a state court interpretation of the state constitution, with no federal claim being accepted or rejected, the U.S. Supreme Court won't review the case; but for the same reason, the decision could be overturned by a state constitutional amendment.

Volokh Conspiracy

Qualified Immunity in State Constitutional Lawsuits

Iowa Supreme Court majority and dissenting opinions canvass the state of the law.


Many of our readers were interested in Joanna Schwartz's recent posts on rethinking qualified immunity, so I thought I'd note that yesterday the Iowa Supreme Court considered the closely related question of qualified immunity in state constitutional lawsuits (Baldwin v. City of Estherville); there are quite detailed majority and dissenting opinions—check them out if you're interested in the subject.

Volokh Conspiracy

Prevailing Wage Legislation and the Continuing Significance of Race


My new article, just published in the Notre Dame Journal of Legislation, tackles the controversy over whether laws that require government construction contractors to pay the prevailing wage have a racist history, and whether they continue to have discriminatory effects on minority workers.

Here's the abstract:

Since the early twentieth century, labor unions have lobbied federal and state governments to enact and enforce laws requiring government contractors to pay "prevailing wages" to employees on public works projects. These laws, currently active at the federal level and in approximately thirty states, typically in practice require that contractors pay according to the local union wage scale. The laws also require employers to adhere to union work rules. The combination of these rules makes it extremely difficult for nonunion contractors to compete for public works contracts.

Meanwhile, construction unions have been among the most persistently exclusionary institutions in American society. Not surprisingly, in many cases, the history of prevailing wage legislation has been intertwined with the history of racial discrimination. Economists and others argue that prevailing wage legislation continues to have discriminatory effects on minorities today. Union advocates, not surprisingly, deny that prevailing wage laws have discriminatory effects. More surprisingly, they deny that the granddaddy of modern prevailing wage legislation, the federal Davis-Bacon Act of 1931, had discriminatory intent.

Part I of this Article discusses the discriminatory history of the most significant of all prevailing wage laws, the Davis-Bacon Act. As discussed below, Davis-Bacon was passed with the explicit intent of excluding African American workers from federal construction projects, and its discriminatory effects continued for decades.

Part II of this Article discusses the controversy over whether prevailing wage legislation continues to have discriminatory effects. The section begins with a discussion of the empirical literature on the effects of prevailing wage discrimination on minority employment. The section next presents evidence that construction unions continue to discriminate against members of minority groups, albeit much more subtly than in the past. The section concludes by recounting allegations that prevailing wage legislation serves to exclude minority contractors from obtaining government contracts.

Volokh Conspiracy

Short Circuit: A roundup of recent federal court decisions

A surfeit of text messages, a glut of voicemails, and a mass strip search of choir girls.


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

New on the podcast: Special guest Arthur Spitzer of the ACLU of D.C. joins the panel to talk about an American detained in Iraq, jury trials for petty crimes, and banning display of the First and Second Amendments. Click here for iTunes.

  • In 1958, New York banned "gravity knives," which were used by German paratroopers in WWII and are now quite rare. But NYC officials interpret the ban to apply to any knife that can be opened with a flick of the wrist, so tens of thousands of people (many, or perhaps most, of them minorities) have been arrested in recent years for carrying common folding knives, often for work. Second Circuit: The law isn't unconstitutionally vague. The possibility that the law is being selectively enforced is concerning, though; the other branches "may wish to give further attention" to the ban. (Gov. Cuomo vetoed reform in 2016 and 2017.) (We discussed an earlier ruling in the case on the podcast.)
  • Woman gets 163 messages over the course of a year from her cell phone provider, Time Warner, notifying her she has an overdue balance. Yikes! She's not in arrears; the calls are meant for some other customer. She explains the issue, but the calls continue. Did Time Warner violate the Telephone Consumer Protection Act? The Second Circuit says no; Time Warner isn't an autodialer as the statute defines it. The TCPA doesn't apply.
  • Man buys cell phone with reassigned number, receives a text message every time the prior owner of the number gets an email—27,800 of them over 17 months. He is unable to resolve the issue with Yahoo (which provided the text service the prior owner signed up for), so he sues. Did Yahoo violate the Telephone Consumer Protection Act? That sounds super annoying, says the Third Circuit, but Yahoo isn't an autodialer as the statute defines it; the law doesn't apply.
  • Illegal immigrant dinged for pot possession in 2002 in Wake County, N.C. gets no jail time or fines but must pay $100 court fees. Fast forward to 2015, and the feds move to deport him. Does the 2002 incident count as a "conviction" under the relevant statute, thus preventing him from applying to not be deported? No sir, says the Fourth Circuit; to count as a conviction, the statute says there must have been "some form of punishment, penalty, or restraint on the alien's liberty," and court fees don't count. He can ask not to be deported.
  • Allegation: Assistant principal at Houston middle school orders strip search of 22 girls after $50 goes missing from choir class. (The search turns up nothing). School district: Which was unconstitutional, but you can't sue the school district. District court: That's so. The district's failure to provide Fourth Amendment training to staff doesn't amount to deliberate indifference, and even if it did, you can't show such training would have prevented the searches in question. Fifth Circuit: Plaintiffs may be able to show both those things. The case should not have been dismissed.
  • In 2012, New Orleans officials detect code violations at city-owned property. Yikes! They commence enforcement action against a former owner (from whom they'd seized the house in 1998 over unpaid taxes). In 2015, officials sell the house to couple without mentioning the still-ongoing code enforcement proceedings. By happenstance, the couple catches wind, persuade officials to cancel the lien against the house. Yikes! Without warning, the city demolishes the house. The couple complains; officials send them an $11k bill for the demo. Fifth Circuit: Could be the couple have some colorable Fourth, Fifth, and Fourteenth Amendment claims.
  • Informant buys drugs at Grand Rapids, Mich. house from man with history of drug convictions. Police stop another man seen near the house; he has drugs. Several unnamed sources tell police they bought drugs at the house. A search of the home turns up contraband. An open-and-shut case? Not so, says two-thirds of a Sixth Circuit panel. Officers waited eight months after the controlled buy to apply for a search warrant; the application says the other man was seen in the area, not in the house, and the application doesn't give any indication as to the reliability of the unnamed sources. Suppress the evidence.
  • Drug addict is accused of pushing sexagenarian out of parked car, stealing the car in 2006. She dies of head injury. He asks for a lawyer; Shelby Charter Township, Mich. police interrogate him without one. At trial, prosecutors repeatedly characterize his failure to deny the crime during the interrogation as inculpatory. (He's convicted, sentenced to life without parole.) Michigan courts: Everything is on the up-and-up. Sixth Circuit: The Fifth Amendment protects against uncounseled interrogations after right to counsel is invoked, the Fourteenth Amendment means silence isn't inculpatory, and the Sixth Amendment guarantees him a lawyer who would have brought that up at trial. These errors likely influenced the jury. New trial or release him.
  • Judge McKeague of the Sixth Circuit cites Mark Twain's quip that "there are three kinds of falsehood: lies, damnable lies, and statistics," in reinstating guilty verdicts of an Ashland, Ky. cardiologist for health care fraud and making false statements to health care benefit programs. The doc led the nation in billing Medicare for angiograms and apparently performed quite a few unnecessary procedures.
  • Seventh Circuit: The district court should probably appoint counsel to a mentally ill prisoner who alleges Green Bay, Wisc. corrections officers deliberately disregarded his serious risk of suicide. Concurrence: We're getting a little too close to declaring "a presumptive right to counsel in some categories of civil cases."
  • In 2014, Montana man kills grizzly bear without a permit. (The authorities are none the wiser until months later when his ex-wife's boyfriend rats him out.) The authorities: Which is a federal crime. Ninth Circuit: But it's a petty crime (punishable by up to six months and a $25k fine), so the Sixth Amendment right to a jury trial doesn't apply. Still, his conviction is vacated because the trial judge ignored his subjective belief that he was acting in self-defense.
  • Woman is arrested on state charges in 2014 relating to murder. Shortly after, the feds indict her on a separate charge—but don't tell her. She pleads guilty to state charge, gets sentenced in 2016. Nine months pass, and the feds finally unveil the 2014 indictment. (She's duly tried and convicted.) A speedy trial violation? The Tenth Circuit says no. While the feds don't have a good excuse for the nine-month delay, she failed to show how it hurt her at trial, and, since she was serving her state sentence, it's not as though she were in prolonged pretrial custody.
  • Haitian man is convicted in U.S. court for taking American citizen hostage in Haiti. Man: I didn't know she was an American, I didn't have fair notice I could be dragooned to the U.S., and Congress doesn't have the authority to outlaw (this) crime beyond U.S. borders. Eleventh Circuit: Nope. The U.S. and Haiti are parties to an international treaty on hostage taking that puts everyone on notice and gives Congress all the authority it needs. And you needn't know the victim is American for the law to kick in.
  • Did a pair of Florida counties violate federal overtime pay requirements by requiring sheriffs' deputies to arrive at work in their uniforms and failing to pay them for time spent donning and doffing said uniforms and policing accoutrements? The Eleventh Circuit says no.
  • Low-IQ high school dropout posts ISIS videos on Facebook. Surprise! An FBI informant contacts him, befriends him, videorecords him dressing up as an ISIS recruiter, and persuades him to buy a (fake) bomb to detonate on Key West, Fla. beach. Eleventh Circuit: No reason to reconsider his sentence of life without parole. (Please enjoy some longform journalism on the case.)
  • Mesquite, Tex. officers arrest 110-lb. teen tripping on LSD. Officers tell him to calm down, but the teen repeatedly screams, thrashes, and bashes his head against the police cruiser. Officers tase him multiple times. One says, "motherfucker, I'm going to kill you." (Audio here.) The teen dies of head injuries. District court: Can't sue the officers for depriving him of medical help. But a jury might find one officer, who tased the teen in the genitals, used excessive force. (Click here for some longform journalism on the teen's parents' years long effort to get the video that made this case possible.)
  • Man charged with misdemeanor (touching a minor over her jeans) is denied a jury trial; the offense is considered petty, and the Sixth Amendment right to a jury trial applies only to "serious" crimes punishable by more than six months. He's convicted. Man: I'm an immigrant. I will almost certainly be deported. D.C. Court of Appeals: Which is a serious consequence. He gets a jury trial. Dissent: So now noncitizens can have jury trials for petty offenses, but citizens can't. Concurrence: D.C. officials could remedy that by restoring citizens' right to such trials (which was stripped by legislation in 1994).
  • Wisconsin judges shall defer to state agencies' interpretations of state law no longer, says the Wisconsin Supreme Court. The Chevron doctrine, which the state borrowed from federal law and which mandated such deference, violates the state Constitution.
  • California requires some semiautomatic handguns (generally models introduced after 2010) to be stamped with microscopic identifying information. Also, the guns must be equipped to microstamp bullet cartridges when the gun is fired. Plaintiffs: That technology doesn't exist; complying is impossible. California Supreme Court: California law "never requires impossibilities," but the microstamping requirement isn't invalid.

Georgia legislators recently approved a law requiring lactation consultants, who provide breastfeeding advice and support to new mothers, to obtain a license requiring years of college coursework and supervised clinical training. A salutary measure to protect public health and safety? Not at all! The law will serve only to enrich one group of consultants (who lobbied for it and who mostly already meet its requirements) at the expense another group of consultants. There is no evidence the second group provides anything other than excellent care, and indeed a state agency concluded in 2013 that licensing will not benefit the public. The law will create an instant shortage of consultants, particularly in rural, low-income, and minority communities. This week, IJ joined forces with Mary Jackson—who has trained doctors and nurses about lactation but may soon be out of a job—to challenge the law. Faced with a an injunction motion, the state has agreed to a stay of enforcement until the trial court can decide the case. Read more here.

Volokh Conspiracy

Congratulations to Orin on the Oregon Supreme Court Computer Warrant Decision


Orin posts about the substance below, and notes that the court adopted an approach that he had advocated, but I wanted to add that the opinion cited four separate law review articles of his, nine times in total. Unsurprising, given his prominence in Fourth Amendment law generally and especially in the law of computer searches; but still always nice to see scholarship relied on and recognized.

Volokh Conspiracy

The Legality of the Mueller Appointment

Judge Ellis rejects Paul Manafort's attacks on the legitimacy of the Mueller Investigation. Steve Calabresi argues that, even if Mueller were an inferior officer, his appointment would still violate the Appointments Clause.


Politico reports on the judicial rejection of some of Paul Manafort's attacks on the Mueller investigation.

In dicta, U.S. District Court Judge T.S. Ellis III's June 26 opinion comments on whether Robert Mueller's appointment violates the Appointments Clause of the Constitution:

Professor Steven Calabresi has argued that the appointment of the Special Counsel may run afoul of the Appointments Clause of the Constitution because the Special Counsel is a principal, not an inferior officer, and therefore must be appointed by the President with the advice and consent of the Senate. Defendant does not argue that the appointment of the Special Counsel violates the Appointments Clause of the Constitution, so that particular objection need not be addressed in detail here, but it is worth noting that such an objection would likely fail. The Special Counsel appears quite plainly to be an inferior officer. He is required to report to and is directed by the Deputy Attorney General. Congress may vest appointment of inferior officers in the "heads of departments" and so the congressionally authorized appointment of the Special Counsel by the Deputy Attorney General, acting as the Attorney General, is valid pursuant to the Appointments Clause. [citations omitted]

Judge Ellis noted that Manafort's attorney did not raise Calabresi's challenge:

"the parties do not dispute that the Special Counsel's appointment was consistent with the Appointments Clause of the Constitution, which empowers Congress to vest appointment of 'inferior officers,' in the 'president alone' or in 'heads of departments.'"

Yet Judge Ellis also held that the DOJ regulations governing the Special Counsel were authorized by statute:

The statutory authority under which current Special Counsel are appointed by the Attorney General pre-dates the 1978 Act. The statutory provisions applicable to the Special Counsel were codified in 1966 at Sections 501 through 530D of Title 28 of the United States Code. See An Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 612 (codified at 28 U.S.C. §§ 501-530D). As relevant here, these provisions vest all functions of the DOJ, including conducting criminal litigation on behalf of the United States, in the Attorney General, see 28 U.S.C. § 509, and authorize the Attorney General to delegate these functions to "any other officer, employee, or agency of the Department of Justice," see id. § 510. Although the Attorney General can delegate these functions to an existing officer of the DOJ, the Attorney General may also retain outside attorneys and commission these attorneys as special assistants to the Attorney General or special attorneys. See id. § 515. Once a special attorney is retained, that assistant "may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct." Id. § 515(a).

Steve Calabresi essentially disagrees.

In an op-ed published earlier (June 19) in The Hill, Calabresi argues that, even if Mueller is held not to be a principal officer, his appointment as an inferior officer is not authorized by statute—Mueller being different from most special or independent counsels who were either appointed pursuant to independent counsel statutes no longer in force or were already confirmed US Attorneys:

The Appointments Clause of Article II provides that:

***"The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."***

Robert Mueller is not an inferior officer of the United States because Congress has not, by law vested in the attorney general, the power to appoint special counsels to investigate wrong-doing by the president of the United States or other high level government officials.

Attorney General Janet Reno adopted a Department of Justice regulation to this effect in 1999, after the Ethics in Government Act sunsetted out of existence, which purported to create special counsels to investigate high-level or presidential wrongdoing, but she had no statutory authority to appoint Special Counsels to be inferior officers.Reno's regulation, "Grounds for appointing a Special Counsel", was blatantly unconstitutional.

Some might defend Reno's regulation by pointing to 28 U.S.C. Section 515(a), which provides that:

***"The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings … whether or not he is a resident of the district in which the proceeding is brought."***

This provision does not, however, authorize the creation of new inferior officer special counsels like Robert Mueller. But, it does allow the attorney general to appoint, for example, Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, appointed under law, to take on the germane duty of being a special counsel. As a special counsel he investigated the Valerie Plame affair, and he prosecuted and convicted Scooter Libby — a criminal matter that was outside the jurisdiction of the Northern District of Illinois.

Another example of this occurred in 2012 when former Maryland U.S. Attorney Rod Rosenstein was appointed by then-Attorney General Eric Holder to investigate leaks in the District of Columbia. Most recently, Attorney General Jeff Session has asked Utah U.S. Attorney John Huber to investigate alleged politicization of the FBI. All of these U.S. attorneys were already principal officers of the United States "appointed under law" who were tasked with bringing legal proceedings outside their own districts.

28 U.S.C. 543, could also be argued to be relevant because it says that:

***"The Attorney General may appoint attorneys to assist United States Attorneys when the public interest so requires, including the appointment of qualified tribal prosecutors and other qualified attorneys to assist in prosecuting Federal offenses in Indian country."***

The short answer to this as a statutory basis for constitutionalizing Mueller's appointment as a special counsel is that Mueller was not actually appointed to assist U.S. attorneys or to prosecute Indians. There is, therefore, no statutory authority for the Mueller appointment.

According to 28 U.S.C. 519, the attorney general has the power to "supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543." But this reference creates no new inferior officers just as 28 U.S.C. 543 creates no new inferior officers. Both clauses refer to attorneys already appointed by law who are assisting U.S. attorneys, which is not what Robert Mueller is doing.

BTW, Judge Ellis concludes by expressing discomfort with the use of a Special Counsel (endorsing instead an investigative nonpartisan commission):

The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance. This case is a reminder that ultimately, our system of checks and balances and limitations on each branch's powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.

DISCLOSURE: In the fall of 2016, I made a small donation to the Hillary Clinton campaign.

Volokh Conspiracy

Oregon Supreme Court Adopts Use Restrictions on Nonresponsive Data for Computer Warrants

A ruling under the state constitution, but still really interesting.


As regular readers know, I have argued in my academic writing that the Fourth Amendment should be interpreted to impose use restrictions on nonresponsive data seized pursuant to a computer search warrant. In a new decision, State v. Mansor, the Oregon Supreme Court appears to have adopted my approach under Oregon's state equivalent of the Fourth Amendment.

Let me start with some context. Computer warrant searches require the government to find a needle in an enormous electronic haystack. When the police execute a warrant to search for and find the needle of evidence, they usually need to seize the haystack first to search it. I have argued that a warrant to seize the needle should allow the police to seize the haystack to search for the needle. But there's a catch: The government should ordinarily not be allowed to use whatever else they find in the haystack. If the warrant is only to seize a needle, the police can only take away and use the needle, unless there are exigent circumstances exposed by the discovery of other evidence. The nonresponsive data—other evidence that may exist in the haystack but is not described in the warrant—ordinarily can't be used. For the details of my view, see this article.

In today's decision, the Oregon Supreme Court adopted my approach under its state constitution. Here's the key part of the Court's opinion:

[The search for the evidence described in the warrant] was supported by probable cause, was sufficiently specific, and was not overbroad. The nature of a computer search, however, means that, in searching for that [evidence], that the forensic examiners were likely to come across or discover additional information. And, in this case, the forensic examination searched for and uncovered information, later used at trial, that went far beyond the scope of the warrant.

To ensure the protection of Article I, section 9, rights, we must consider what restrictions, if any, should be imposed on the use of information police obtain through reasonably executed warranted computer searches when those searches uncover evidence beyond that authorized in the warrant, and when no exception to the warrant requirement supports the collection or use of that evidence.

In our view, the privacy interests underlying Article I, section 9, are best protected by recognizing a necessary trade-off when the state searches a computer that has been lawfully seized. Even a reasonable search authorized by a valid warrant necessarily may require examination of at least some information that is beyond the scope of the warrant. Such state searches raise the possibility of computer search warrants becoming the digital equivalent of general warrants and of sanctioning the "undue rummaging that the particularity requirement was enacted to preclude." Mansor, 279 Or App at 803 (internal quotation marks omitted).

Although such searches are lawful and appropriate, individual privacy interests preclude the state from benefiting from that necessity by being permitted to use that evidence at trial. We thus conclude that the state should not be permitted to use information obtained in a computer search if the warrant did not authorize the search for that information, unless some other warrant exception applies. See Kerr, 48 Tex Tech L Rev at 24 (suggesting use restrictions for data "nonresponsive" to the warrant). Put differently, when the state conducts a reasonably targeted search of a person's computer for information pursuant to a warrant that properly identifies the information being sought, the state has not unreasonably invaded the person's privacy interest, and the state may use the information identified in the warrant in a prosecution or any other lawful manner. But when the state looks for other information or uncovers information that was not authorized by the warrant, Article I, section 9, prohibits the state from using that information at trial, unless it comes within an exception to the warrant requirement.

I'm pleased to see my approach adopted, although unfortunately the case involves horrific facts—and a terribly drafted warrant that caused the problem.

Here's a very simplified version of the facts (enough to explain the legal context, no more). The police suspected that Mansor had abused his infant son in a way that led to his tragic death. The police obtained a warrant to search Mansor's computer for evidence of abuse. But the warrant they drafted was incredibly narrow. As construed by the Oregon Supreme Court, the warrant only authorized a search for the Internet search terms that Mansor had entered in to his browser for a specific 15-minute window before Mansor had called 911 to report his son's injury. As the Court construed the warrant, at least, that was all the warrant authorized: All other evidence of child abuse on the computer was outside the warrant.

You can guess what happened. During the investigation, agents believed there was a lot more relevant evidence on the computer. And I'm guessing they didn't expect courts to read the warrant as narrowly as the Oregon Supreme Court did. In any event, the agents ended up looking through several years' worth of Internet browsing records for evidence related to child abuse. And their hunch was right: The broader search revealed evidence relevant to the charged crime that was then used at trial to convict the defendant.

This is was a horrific crime, and it's always hard to see a conviction overturned in a case like this. It's especially hard when the scope of the warrant was itself unclear, so the ruling seems like a bit of a technicality. But note that the result in this case would have been different if the police had merely drafted the warrant properly. As far as I can tell, the officers had probable cause that would have allowed them to obtain a much broader warrant allowing a search through the computer for any evidence of child abuse. All of the evidence would have been admissible at trial if the warrant had not been written in such a remarkably narrow way. It's also important to note that the Oregon Constitution's Article I, section 9—the state equivalent to the Fourth Amendment—does not have a good-faith exception that would have been an alternative ground for affirmance in the federal system. See State v. Johnson, 120 Or App 151, 156 (1993) (noting lack of a good faith exception in the state constitution).

Mansor is not a Fourth Amendment decision. As I mentioned at the top, it was decided under the Oregon Constitution's search and seizure provision that goes beyond the federal Fourth Amendment. Given that, the decision is interesting and relevant more by way of illustration than precedent. But I though the opinion was worth flagging nonetheless for those interested in computer search and seizure law.

Volokh Conspiracy

A question for our nonoriginalist readers…

Do you really want President Trump to pick a nonoriginalist Justice?


Here's a question for our nonoriginalist readers–and it's not intended to be a trick question. If President Trump won't choose the type of justice you wish he would–defined however you like–would you prefer he replaced Justice Kennedy with:

  • (a) A self-described living constitutionalist/multiple modalities/common-law-constitutionalist/moral-readings–pick your fave–justice who shares President Trump's political and moral views or
  • (b) A self-described originalist?

Or, to put the question another way: Which type of Justice would you most fear? And, if it is (a), then doesn't that tell you something about the possible merits of (b)?

Volokh Conspiracy

Skidmore Deference for Agency Amicus Briefs?

Supreme Court denies cert in DuPont v. Smiley


This is probably the least important news of the day, but the Supreme Court has denied cert in DuPont v. Smiley, which raised the question (among others) of whether an agency is entitled to Skidmore "deference" for interpretations advanced for the first time in litigation. Justice Gorsuch (joined by Chief Justice Roberts and Justice Thomas) issued a statement respecting the denial of cert:

The issue surely qualifies as an important one. After all, Skidmore deference only makes a difference when the court would not otherwise reach the same interpretation as the agency. And a number of scholars and amici have raised thoughtful questions about the propriety of affording that kind of deference to agency litigation positions. For example, how are people to know if their conduct is permissible when they act if the agency will only tell them later during litigation? Don't serious equal protection concerns arise when an agency advances an interpretation only in litigation with full view of who would benefit and who would be harmed? Might the practice undermine the Administrative Procedure Act's structure by incentivizing agencies to regulate by amicus brief, rather than by rule? Should we be concerned that some agencies (including the one before us) have apparently become particularly aggressive in "attempt[ing] to mold statutory interpretation and establish policy by filing 'friend of the court' briefs in private litigation"?

(The amici who filed briefs were Cato and the Pacific Legal Foundation.)

It's not obvious how much difference this makes, since Skidmore "deference" is widely considered to be a weak form of deference, and I've even put "deference" in quotes here because Skidmore just tells courts to pay some respect to agencies' interpretations (to the extent those interpretations are persuasive) as the courts come to their own conclusion. (In this way, Skidmore "deference" differs from Chevron deference, which is a true form of deference: it reflects a (presumed) implied congressional delegation of interpretive power to agencies and thus takes some interpretive power away from courts.) Still, this is an interesting administrative law development for those who keep track of such things.

P.S. I see that Jonathan has beat me to this.

P.P.S. That Justice Alito didn't join this statement may not tell us much about his views, because it says that he didn't consider the cert petition at all: perhaps he was conflicted out? (It's a Third Circuit case involving labor law, and his sister is a Third Circuit labor lawyer—maybe that has something to do with it, though I'm not motivated enough to research the firms involved.)

Supreme Court

Should Courts Defer to Agency Litigating Positions?

How much deference should amicus briefs and agency advocacy receive from the courts?


When an agency adopts a particular statutory interpretation in the course of litigation, should courts care? Agency interpretations adopted for the first time in litigation do not receive Chevron deference unless and until they are adopted or ratified in a more formal manner (such as through informal rulemaking). But does that mean such interpretations should receive no deference at all? Or should they simply receive the less demanding and less controlling form of deference known as Skidmore deference?

As it happens, lower courts are divided on whether agency litigations should receive Skidmore deference. As it also happens, this morning the Court aso denied certiorari in a case that could have resolved this question, E.I. Dupont de Nemours & Co v. Smiley.

Justice Gorsuch, joined by the Chief Justice and Justice Thomas, issued an opinion regarding the denial of certiorari, expressing an interest in resolving this question.

Can an agency advance an interpretation of a statute for the first time in litigation and then demand deference for its view? There is a well-defined circuit split on the question. The Court of Appeals in this case said yes, joining several other circuits who share that view. 839 F. 3d 325, 329, 333–334 (CA3 2016) (case below); SEC v. Rosenthal, 650 F. 3d 156, 160 (CA2 2011); TVA v. Whitman, 336 F. 3d 1236, 1250 (CA11 2003); Dania Beach v. FAA, 628 F. 3d 581, 586–587 (CADC 2010). But "[t]wo circuits, the Sixth and Ninth, expressly deny Skidmore deference to agency litigation interpretations, and the Seventh does so implicitly." Hubbard, Comment, Deference to Agency Statutory Interpretations First Advanced in Litigation? The Chevron Two-Step and the Skidmore Shuffle, 80 U. Chi. L. Rev. 447, 462 (2013) (footnotes omitted); Smith v. Aegon Companies Pension Plan, 769 F. 3d 922, 929 (CA6 2014); Alaska v. Federal Subsistence Bd., 544 F. 3d 1089, 1095 (CA9 2008); In re UAL Corp. (Pilots' Pension Plan Termination), 468 F. 3d 444, 449–450 (CA7 2006).

The issue surely qualifies as an important one. After all, Skidmore deference only makes a difference when the court would not otherwise reach the same interpretation as the agency. And a number of scholars and amici have raised thoughtful questions about the propriety of affording that kind of deference to agency litigation positions. For example, how are people to know if their conduct is permissible when they act if the agency will only tell them later during litigation? Don't serious equal protection concerns arise when an agency advances an interpretation only in litigation with full view of who would benefit and who would be harmed? Might the practice undermine the Administrative Procedure Act's structure by incentivizing agencies to regulate by amicus brief, rather than by rule? Should we be concerned that some agencies (including the one before us) have apparently become particularly aggressive in "attempt[ing] to mold statutory interpretation and establish policy by filing 'friend of the court' briefs in private litigation"? Eisenberg, Regulation by Amicus: The Department of Labor's Policy Making in the Courts, 65 Fla. L. Rev. 1223, 1223 (2013); see also, e.g., Hickman & Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1303 (2007); Pierce, Democratizing the Administrative State, 48 Wm. & Mary L. Rev. 559, 606–607 (2006); Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 1010–1011 (1992).

Respectfully, I believe this circuit split and these questions warrant this Court's attention. If not in this case then, hopefully, soon.

Interestingly enough, Justice Alito did not join this statement. That might also mean that Justice Alito was not a vote for certiorari. This may not mean much of anything. On the other hand, Justice Alito's absence from this statement is interesting in light of Justice Alito's fervent defense and application of Chevron deference in his solo Pereira dissent. [Note: As Sasha notes on his post—and I overlooked—Justice Alito did not participate in this case, so there's no reason to place any significance in his failure to join Justice Gorsuch's statement.]

UPDATE: See also Sasha's post on this case.

Volokh Conspiracy

The Double Jeopardy Clause, and Federal Prosecutions After State Prosecutions

The Supreme Court has agreed to reconsider the "separate sovereigns" exception to the Double Jeopardy Clause -- and Justices Ginsburg and Thomas seem to both be on the defendant's side.


The Double Jeopardy Clause generally bars the government from prosecuting a person twice for the same offense, regardless of whether the first prosecution led to an acquittal or a conviction. (If the first prosecution led to a hung jury, reprosecution is allowed.) But the Court has long held that this only bars reprosecution by the same sovereign: The federal government may reprosecute a person after a state prosecution (and vice versa, and in principle the same for multiple states, in the rare cases where multiple states both have jurisdiction over the crime).

In Commonwealth v. Sanchez (2016), Justices Ginsburg, joined by Justice Thomas, argued that this doctrine should be reexamined:

I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct. Current "separate sovereigns" doctrine hardly serves that objective. States and Nation are "kindred systems," yet "parts of ONE WHOLE." The Federalist No. 82. Within that whole is it not "an affront to human dignity," Abbate v. United States (1959) (Black, J., dissenting), "inconsistent with the spirit of [our] Bill of Rights," to try or punish a person twice for the same offense? Several jurists and commentators have suggested that the question should be answered with a resounding yes: Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the Nation. The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.

Today, the Court agreed to consider the issue, in Gamble v. U.S. For an earlier petition that makes what strikes me as a powerful originalist argument against the "separate sovereigns" doctrine, see this 2013 certiorari petition written by my UCLA colleague (and legal historian) Stuart Banner.

Volokh Conspiracy

Which justice was the closest to Justice Kennedy?

This term, it was Roberts; #2 was Gorsuch


Jonathan has a nice post on the end of the "Kennedy Court." Just as Justice Kennedy replaced Justice O'Connor as the "swing" justice, it seems reasonable to anticipate that Chief Justice Roberts will be replacing Justice Kennedy as the new swing vote–a role he's likely to be pretty happy with. If it's true that whoever is the swing justice tends to have the most power and influence, then this change could truly mark the beginning of a genuine "Roberts Court."

However, before everyone spins themselves into a tizzy about the departure of Justice Kennedy, the chart below from SCOTUSBlog on the voting relationships of the Justices this term is worth examining. It shows a number of interesting relationships among the Justices.

  • Of all the Justices, the ones who voted most frequently together are Justices Ginsburg and Sotomayor (at 96%); after them it is Justices Breyer & Kagan (at 95%).
  • On the conservative side, the Justices who voted most frequently together were Justices Thomas and Alito (at 94%)
  • The Justice who voted most often with Justice Kennedy was Chief Justice Roberts (at 90%).
  • The Justice who was next closest to Justice Kennedy was his former law clerk Justice Gorsuch (at 85%).
  • Indeed, Justice Gorsuch voted more closely to Justice Kennedy than to any other Justice: Roberts, Thomas, and Alito all tied for second at 82%.

Of course, these are stats from one term only. Justice Kennedy may well have been more "conservative" in his voting this year than in prior years given on the docket. But if they are measuring something that is real–and they may not–this voting pattern hints that

  • The Court may not be pulled as sharply to the right–however you determine this–by the appointment of another Justice Gorsuch as some critics will allege. (Which of the judges on Trump's list is closest to Gorsuch is another matter. None are likely to be clone.)
  • A Justice who is committed to originalism may reach many of the same outcomes as a Justice as seemingly eclectic in his methodology as Justice Kennedy.
  • While Justice Kennedy did not call himself an originalist and did not generally employ originalists/formalist/textualist methodology, his own instincts may have comported pretty closely–and with significant exceptions–with conclusions yielded by originalism. (This may reflect my own views of the gravitational force of originalism.)
  • Finally, the simple conservative-progressive continuum may be too simplistic to accurately capture a more complex reality.

In the end, the original meaning of the Constitution will not always comport with what a "conservative" would prefer to be the outcome of a given case. If that's correct, then the more faithful a Justice is to that meaning, the less his voting will conform to a purely conservative or purely progressive agenda.

FWIW: here is the chart:

Voting relationships (OT17)

Justice Agreement in full, in part, or in judgment






















































Volokh Conspiracy

Supreme Court Trying Again on the First Amendment Retaliatory Arrest Question

The question that the Court didn't resolve in Lozman v. Riviera-Beach is back, in another case on which the Supreme Court just granted review.


This past Term's Lozman v. Riviera-Beach was expected to resolve a hugely important question: Can someone sue for retaliatory arrest if he there was probable cause to arrest him for some fairly petty crime, but there's lots of reason to think that he wouldn't have been arrested if it weren't for his past constitutionally protected speech? The Court resolved the case on very narrow grounds, limited to the rare cases where plaintiff can show a municipal policy of going after him because of his speech. But the Court just agreed to hear a new case, Nieves v. Bartlett, that involves the broader issue; the Court will presumably decide the question this coming year. Here are the facts of the case as described in the state's petition for certiorari:

Every spring, thousands of extreme skiers, snowmobilers, and spectators gather in the remote Hoodoo Mountains of interior Alaska for Arctic Man, a multi-day festival centered around a high-speed ski and snowmobile race. Campers congregate at night to drink and party, and rampant alcohol use compounds safety concerns at the event..

On the last day of Arctic Man in 2014, Troopers Luis Nieves and Bryce Weight were on duty, patrolling a large outdoor party where minors appeared to be drinking alcohol. Nieves encountered respondent Russell Bartlett at the party and attempted to speak with him, but Bartlett declined to talk to Nieves. Meanwhile, Trooper Weight spotted a minor who appeared to be drinking alcohol and began speaking to him at the edge of the crowd. Bartlett marched up to Weight, loudly demanding that Weight stop talking to the minor.

The district court, reviewing video footage of the incident, found that "Trooper Weight, Mr. Bartlett, and the minor [were] standing very close together exchanging words" and that "Bartlett's right hand was at roughly shoulder height within inches of Trooper Weight's face." The 5?9?, 240-pound Bartlett, who at the time of the incident was too intoxicated to drive, later maintained that his close proximity to Trooper Weight and loud voice were appropriate given the volume of music at the party, but Trooper Weight viewed Bartlett's "escalating voice, his look of anger, [and] his body language" as "hostile" "pre-assault indicators." To create a safe space for himself, Trooper Weight placed his open palms on Bartlett's chest and pushed him back..

Trooper Nieves, believing that Bartlett posed a danger to Weight, ran to help. Following a struggle, the troopers were able to subdue and arrest Bartlett.

He was released without injury after a few hours in the "drunk tank." Bartlett was charged with disorderly conduct and resisting arrest. The prosecution later dismissed the case for budgetary reasons, but the assigned prosecutor stated to the district court that he believed probable cause existed to charge Bartlett for disorderly conduct, resisting arrest, and assault.

Bartlett sued Troopers Weight and Nieves, asserting [among other things] false arrest and imprisonment … [and] retaliatory arrest …. On the false arrest and imprisonment claims, the [district] court ruled there was probable cause to arrest Bartlett for harassment, so the officers were entitled to summary judgment. The court ruled that the existence of probable cause also barred respondent's First Amendment retaliatory-arrest claim, noting that this Court "has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause." …

The Ninth Circuit affirmed on all claims except for retaliatory arrest. The appellate court ruled that the troopers had probable cause to arrest Bartlett for assault, disorderly conduct, harassment, and resisting arrest. Nevertheless, the court reiterated its earlier holding in Ford v. City of Yakima, 706 F.3d 1188, 1196 (9th Cir. 2013), that the existence of probable cause for an arrest does not bar a plaintiff's claim that the arrest was retaliatory in violation of the First Amendment. Pointing to respondent's allegation (uncorroborated by other witness testimony, audio or video recording) that Trooper Nieves said after the arrest, "Bet you wish you would have talked to me now," the court ruled that a jury might be persuaded that Bartlett was arrested for his earlier refusal to assist with the investigation, rather than for his harassing and belligerent conduct. The court thus reversed the grant of summary judgment on the retaliatory-arrest claim and remanded for trial….


Say Goodbye to the Kennedy Court

Justice Kennedy's retirement will have a significant impact on the Roberts Court beyond its ideological makeup.


Justice Kennedy's departure from the Supreme Court will mark the end of the Early Roberts Court, or what many of us would often refer to as the "Kennedy Court." Justice Kennedy was in the Court's majority more often than any other justice. His distinct jurisprudence, combined with his position as the Court's median justice, meant that his particular (and often idiosyncratic) views had a disproportionate impact on the Court's jurisprudence. What comes next will be interesting, and likely somewhat surprising.

Justice Kennedy is often described as a "moderate" justice, but this characterization does not quite capture what was distinct about Justice Kennedy's approach to the law. On most issues, most of the time, Justice Kennedy was a moderate conservative. He voted on the "conservative" side of most cases. When the Court split 5-4 along ideological lines, for instance, Justice Kennedy would side with the conservatives approximately two-thirds of the time. (64% since OT 2005.) Justice Kennedy had a narrow view of the protections afforded criminal defendants under the Bill of Rights, embraced federalism, generally (though not always) favored textualist approaches to statutory interpretation, supported a Chicago-School approach to antitrust, believed in gun rights, and was skeptical of class actions and entrepreneurial plaintiffs' litigation.

Although conservative, Justice Kennedy also usually preferred minimalist decisions of the sort favored by the Chief Justice over broad rulings setting forth categorical rules. When the Court split along Formalist-Pragmatist lines—typically in criminal justice cases—Justice Kennedy would also tend to side with the Pragmatists, eschewing bright-line rules in favor of more flexible assessments based on the specific exigencies of a given situation. In sum, the mode of Justice Kennedy's decision-making was a moderate conservative pragmatism.

While Justice Kennedy was usually a moderate conservative, there were areas of the law in which Justice Kennedy was not particularly moderate and others in which he was not particularly conservative. Particularly in areas touching on the freedom of speech and personal liberty, Justice Kennedy would swing for the fences. Justice Kennedy was easily the most speech-protective Justice on what was a quite speech-protective Court. Whether the speech at issue concerned political campaigns or product pricing, "offensive" messages or dishonest claims about military service, Justice Kennedy believed in uncompromising First Amendment protection. By some accounts it was Justice Kennedy who pushed the Court (and a reluctant Chief Justice) to invalidate the McCain-Feingold campaign finance law, and this would be entirely consistent with what we saw in his First Amendment opinions.

Speech was not the only freedom that mattered to Justice Kennedy. He had a deep concern for Due Process, as shown in his embrace of habeas rights for alleged enemy combatants, his concerns about the application of capital punishment to some classes of criminal defendants, and his embrace of constitutional limits on punitive damages. He also, perhaps most famously, believed that due regard for individual liberty barred the government from adopting laws prohibiting or disregarding same-sex relationships, as in Lawrence, Romer, Windsor, and Obergefell. In these areas, there was nothing modest, moderate, or minimalist about Justice Kennedy's views or the doctrinal rules he would embrace.

Given the makeup of the Roberts Court, as went Justice Kennedy, so went the Court. Where Kennedy was a moderate conservative favoring a minimalist approach, the Roberts court would tend to adopt a moderate conservative opinion. Where Justice Kennedy favored a more muscular approach, on the other hand, there were almost always at least four votes to go along. (NFIB v. Sebelius being a notable exception.) If Justice Kennedy wanted to recognize same-sex marriage or preclude the use of the death penalty for those convicted of non-lethal crimes, the liberals would agree. If Justice Kennedy wanted to protect campaign-related or commercial speech, the conservatives were there. so the Roberts Court was generally as conservative and as moderate as Justice Kennedy wanted to be.

Without Justice Kennedy on the Court, the particular (and sometimes peculiar) contours of the Roberts Court's jurisprudence are likely to change. In some areas, this is likely to move the Court in more conservative direction, but there are many areas in which the differences between Justice Kennedy and his replacement may be hard to predict, including (but not limited too) the First Amendment, the Dormant Commerce Clause, punitive damages, preemption, and criminal procedure. How the next justice feels about some of these questions could be quite significant (consider, for example, dormant commerce challenges to state climate rules or First Amendment challenges to mandatory disclosure requirements). These sorts of questions do not always divide jurists along right-left lines, so it's hard to predict how they will fall out.

One change we can predict is that Chief Justice Roberts will more often than not, be the new median justice, largely because of his minimalist approach to judging. Chief Justice Roberts, more than any other justice on the Court, believes in narrow rulings that attract broad majorities, answering no more than necessary to resolve a given case. The Chief Justice has been somewhat successful in pushing this approach over the past decade, but usually only when Justice Kennedy would go along (and the two of them agreed). Without Justice Kennedy, the Chief Justice may have a greater ability to steer the Court in a minimalist direction, even where his conservative colleagues disagree. In this regard, the Chief's decision for the Court in Bond v. United States, in which he joined with the liberals to adopt a narrower (yet still "conservative") outcome may be a sign of things to come.

One other change we can expect will be in the mix of cases the Court accepts for certiorari. In recent years, it has appeared that many justices based cert decisions (at least in part) on what they expected from Justice Kennedy. That will no longer be part of the calculus. Also, as scholars such as Thomas Merrill have noted, as the Court's personnel changes, it becomes more difficult (at least at first) for justices to predict case outcomes and thus it becomes more difficult to engage in strategic voting in the cert process. So don't be surprised if we start seeing a different mix of issues start to come before the Court.

To conclude this already overlong post, we can say with some certainty that the Kennedy Court is gone. It is more difficult to predict what the new Roberts Court will look like. To paraphrase the Swam, that's why they hear the cases.


"Dreamer" Dreams of the Right to Own a Gun

Dream on, says a federal district court.


Kevin Ugurit Fierro-Morales is being prosecuted for possessing a short-barreled shotgun, and for possessing a firearm while "being an alien" "illegally or unlawfully in the United States" (in violation of 18 U.S.C. § 922(g)(5)(A)). But when he was arrested, he was covered by the Defered Action for Childhood Arrivals program—should that lead him to be treated as lawfully present, and as entitled to Second Amendment rights? (Set aside the separate charge short-barreled shotgun charge for now.)

No and no, a federal district court in San Diego held Tuesday. First, DACA made clear that President Obama's action didn't itself confer legal status: "[T]he provisions of DACA promising to defer removal and to authorize work did not confer lawful immigration status or create ambiguity as to the prohibitions of § 922(g)(5)(A)."

Second, the Second Amendment applies only to the responsible and law-abiding, whether just "responsible, law-abiding citizens" or also responsible, law-abiding permanent residents or even responsible, law-abiding temporary visitors. (The court doesn't decide on the rights of legal aliens.) Congress may ban "possession of firearms by an alien in the United States with no legal status," and DACA recipients don't have legal status. (I'm oversimplifying the court's Second Amendment discussion a bit, but that's the gist.)


Assessing Justice Kennedy's Legacy

A Politico symposium offers assessments by a wide range of legal scholars and commentators. And I offer some additional thoughts of my own.


Justice Anthony Kennedy

Supreme Court Justice Anthony Kennedy retired earlier today, a move that has major implications for the future of the Court. But Kennedy also had a massive impact on the Court's jurisprudence over his thirty year tenure, particularly during the last twelve years, when he was the key swing voter on many issues. Politico recently published a symposium on Kennedy's legacy, with commentary by numerous legal scholars and commentators. Here's an excerpt from my contribution:

Justice Anthony Kennedy leaves behind a mixed legacy. It includes elements that appeal to both sides of the political spectrum. Kennedy's most famous and influential opinions are probably his rulings in four landmark gay rights cases: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and—most of all—Obergefell v. Hodges, which struck down laws banning same-sex marriage. He was a key figure in the rapid progress gays and lesbians have made towards legal equality over the last 25 years. But Kennedy also wrote opinions or provided key votes for numerous "conservative" outcomes, particularly in free speech, affirmative action and federalism cases….

Kennedy's methodology was just as eclectic as the political valence of his opinions. In some cases, he relied on vague and fuzzy standards that made it difficult to figure out exactly what rule his decision establishes or why. Obergefell (despite my agreement with the result) was a notable example. But there are many other Kennedy opinions that are much more rigorous and formal, as in his free speech jurisprudence.

Kennedy's greatest strengths were his staunch political independence, and his genuine commitment to liberty and equality for people of widely differing backgrounds and views….

It was interesting to see the wide range of perspectives in the symposium, particularly among the liberal participants. Some of them take a very positive perspective on Kennedy's legacy, while others are much more negative.

At this point, we may not have enough historical distance from Kennedy to properly assess his impact. We may have a very different view twenty or thirty years from now than we do today. Nonetheless, my tentative assessment is that Kennedy's judicial philosophy was not especially impressive, but he nonetheless did a great deal of good when it comes to specific legal doctrines. From a libertarian perspective, it may even be that no other modern Supreme Court justice has done as much good as he did.

When it comes to methodology, Kennedy was—as I suggested in the symposium, highly inconsistent. The problem is not just that he used different methods in different cases, but that he never gave much indication why he relied on formalist and textualist arguments in some situations, but a very different approach in others. Some of his fuzzier opinions have drawn criticism even from many who agreed with the results. For example, I was happy to see the result in Obergefell, but was not impressed with its somewhat muddled reasoning.

But when it comes to specific cases and doctrines, Kennedy often moved the Court in beneficial directions. Many participants in the symposium correctly note his crucial role in the gay and lesbian rights decisions. Without his work, this long-oppressed minority might have remained second-class citizens for considerably longer. That certainly would have been the case had President Reagan appointed a more conventional conservative in 1988, and especially if the Senate had confirmed Robert Bork (whose 1987 defeat led to Kennedy's nomination). I believe he should have reached the results he did in those cases by clearer and more logically coherent routes. But reach the right results he did.

As Ilya Shapiro of the Cato Institute points out in the Politico symposium, Kennedy was probably the most speech-protective justice in the history of the Supreme Court. He consistently voted to strike down both those speech restrictions favored by the left (such as campaign finance regulations) and those promoted by the right (such as restrictions on flag-burning and sexually explicit speech). Kennedy was a major figure in strengthening protection for freedom speech across the board, and his opinions in this field are, on the whole, far more coherent and well-thought out than the ones on gay and lesbian rights. Here too, Kennedy was far better than Bork (who had a very narrow conception of freedom of speech) probably would have been.

With one notable exception discussed below, Kennedy also consistently voted to strengthen judicial enforcement of structural constraints on federal power. That was an important and valuable doctrinal trend that accelerated during the Roberts Court, in large part thanks to Kennedy's support. His opinions in this field, like speech, were usually well-thought out and carefully reasoned. That includes some lesser-known cases, such as Bond v. United States I, which I analyzed here. In that case, Kennedy managed to secure unanimous support for the crucial proposition that federalism constraints on national power are meant to protect individual citizens, not just state governments. Liberals decried many of his federalism decisions at the time. But they may have reason to thank him now, when some of these rulings are crucial to their efforts to protect sanctuary cities and otherwise combat the Trump administration, a circumstance that has led some on the left to rethink their attitudes to these issues.

Against these major positives, Kennedy also gave us three massive clunkers, where he cast key votes in favor of terrible results: Kelo v. City of New London, Gonzales v. Raich, and—most recently—the travel ban case. The works linked in the previous sentence summarize my objections to these rulings, all of which I regard as grave errors. I also agree with many of the negative assessments of Kennedy's travel ban concurrence offered by some of the symposium participants, and by Cass Sunstein here. Kennedy's last opinion undermines his otherwise strong record of combating unconstitutional religious discrimination by government.

In the Raich case, he voted for the holding that Congress' power to regulate interstate commerce was broad enough to justify a ban on the possession of medical marijuana that had never crossed state lines, or been sold in any market even within a single state. This conclusion is both badly flawed in itself, and at odds with his record in other federalism cases. I am also no fan of Kennedy's recent majority opinion in Murr v. Wisconsin, an important takings case, where he undercut protection for constitutional property rights and created a muddle for lower courts to sort out.

But these serious errors are not enough, in my view, to outweigh the significant good Kennedy achieved in a lot of of other cases across multiple important issue areas. Kennedy was perhaps the only Supreme Court justice who struck important blows for the constitutional rights of both same-sex couples and social conservatives with religious objections to same-sex marriage. When it came to protecting liberty for a wide range of people with differing backgrounds and views, Kennedy had fewer blind spots than almost any of his colleagues.

Because he did not produce much in the way of an overarching judicial philosophy, assessments of Kennedy's record necessarily depend greatly on one's views of particular cases and doctrines where he influenced the outcome. For that reason, I can readily understand how conservative pro-lifers and liberals who believe that campaign finance regulation is essential to democracy, might take a far dimmer view of Kennedy's record than I do. As cases like Kelo and Raich demonstrate, Kennedy was by no means a consistent libertarian, just as he was not a consistent liberal or conservative, originalist or living constitutionalist. But we libertarians nonetheless have much reason to be grateful to him.

NOTE: In my contribution to the Politico symposium, I mistakenly describe Kennedy as the author of a concurring opinion in Citizens United. In reality, he wrote the majority opinion. In my rush to get this piece in on a short deadline, I overlooked this mistake. I apologize for the error, which I have asked Politico to correct.

Mark Janus

The Janus Dissent's Odd Underreading of Government Employee Speech Rights

"If an employee's speech is about, in, and directed to the workplace, she has no 'possibility of a First Amendment claim,'" say the dissenters -- but that's not what the First Amendment caselaw says.


The government as employer generally has considerably broader rights to control its employees' speech (through the threat of firing and other discipline) than it has over the public as a whole (through the threat of jail or fines or the like). One of the Janus dissent's arguments is that this broader authority should apply to government employer policies that require government employees to pay agency fees to unions. The dissent agrees that such policies implicate the employees' First Amendment rights, but concludes that the employer's interests justify that compulsion, just as government employer interests often justify speech restrictions.

But in the process, the dissent ends up reading government employee free speech rights oddly narrowly:

If an employee's speech is about, in, and directed to the workplace, she has no "possibility of a First Amendment claim."

And, earlier, the dissent says,

[T]he majority misunderstands the threshold inquiry set out in [the government employee speech rights cases]. The question is not, as the majority seems to think, whether the public is, or should be, interested in a government employee's speech. Instead, the question is whether that speech is about and directed to the workplace—as contrasted with the broader public square.

I don't think that's right. In Givhan v. Western Line Consolidated School District (1979), the Court concluded that the First Amendment protects speech by a schoolteacher to a principal (i.e., directed to someone in the workplace), apparently at school (in the workplace), about alleged race discrimination in the school (about the workplace).

Likewise, in Connick v. Myers (1983), the Court concluded that the First Amendment might protect speech by government employees to coworkers (i.e., directed to the workplace) at the office (in the workplace) about alleged pressure by supervisors to work on political campaigns (about the workplace). The employees in Connick ultimately lost on this point only because the Court concluded that their speech was, on the facts of the case, disruptive of workplace relationships; the Court expressly declined to take the view that such speech was just categorically unprotected against the government as employer.

More broadly, while the Court has indeed taken the view that speech about the typical individual workplace grievance is generally unprotected, on the theory that it is simply on a matter of private concern (see Connick), it has never suggested that "speech about the terms and conditions of employment—the essential stuff of collective bargaining" is categorically unprotected against the government as employer, even when said to colleagues at work. The dissent offers two hypotheticals:

Consider an analogy, not involving union fees: Suppose a government entity disciplines a group of (non-unionized) employees for agitating for a better health plan at various inopportune times and places. The better health plan will of course drive up public spending; so according to the majority's analysis, the employees' speech satisfies Pickering's "public concern" test.

Or similarly, suppose a public employer penalizes a group of (non-unionized) teachers who protest merit pay in the school cafeteria. Once again, the majority's logic runs, the speech is of "public concern," so the employees have a plausible First Amendment claim.

But it seems to me that the majority's response to these is quite right: While the government may indeed, consistently with the First Amendment, restrict employee speech in certain "times and places," such as "protest[s] … in the school cafeteria," that turns entirely on the mode or disruptiveness of the speech. If a public employer penalizes a group of teachers for simply discussing over lunch (even on employer property) whether the Legislature or the State Board of Education should implement a merit pay proposal, of course that would be speech on a matter of public concern, just as discussion about any legislative proposals are speech on a matter of public concern.

So there's much else to be said about the Janus case, whether for the majority, for the dissent, or against both. But the dissent's very narrow view of First Amendment protection for government employee speech strikes me as unsound.

Mark Janus

The Limited Effects of the Supreme Court's Janus Decision

States that want to allow public sector unions, and avoid "free-rider" problems, should still be able to do that -- just by paying unions directly, rather than via compelled agency fees.


I hope to blog a good deal about today's Janus v. AFSCME decision in coming days. As readers might gather, I disagree with the majority, for reasons discussed in Will Baude's & my amicus brief, but I also disagree with some aspects of the dissent; and in any event, I'd rather deal with separate conceptual aspects in separate posts.

For now, let me suggest that, going forward, Janus might not change that much (though after what will doubtless be a thorny transition period). In particular, state legislatures that like the pre-Janus agency fee model—under which non-union-member state and local employees had to pay "agency fees" to unions in order to support collective bargaining—can maintain the practical economic effects of that model, without violating the First Amendment.

Let's take a stylized example: Say that Illinois is paying some employees $50,000/year, and deducts $500/year from each paycheck in union dues to their union. Now, after Janus, such payments can no longer be compelled. But Illinois thinks it's important that the union get adequate funding for its collective bargaining activities, and thinks that, given that unions have to fairly represent all employees (both union members and others) in such bargaining, all employees should share in that cost.

Illinois can then change its practices: It would cut the employees' salary by $500/year, and then pay $500/year/employee, straight from state coffers, to the union as a "contract administration fee"—just as it may pay other entities that provide important services to the government (cleaning, accounting, insurance processing, etc.). The employees would still have a take-home paycheck of $49,500, as before. Illinois is still paying $50,000/employee, as before. And the union is still getting $500/employee as before (plus whatever extra dues people who join the union choose to pay, dues that could then be used for other purposes, such as political advocacy). Or if cutting the salary is too politically infeasible, or carries improper symbolism, just reduce the expected cost-of-living increases for the following year by the $500/year.

Here, I think there would be no First Amendment problem, even under the Janus majority opinion. After all, no employee would be required to pay any money to a union; the money would come directly from a state or local government treasury, much as money for a wide range of purposes (education, government publicity compaigns, government contracting) comes directly from such treasuries. That the money is paid on a per-employee basis shouldn't matter; nor should it matter that the employee salaries or future cost-of-living increases were reduced to cover this payment.

The government can cut my salary as a UC employee by $500 and then spend the $500 on funding some new classes, or funding anti-smoking ads, or paying money to a private organization that would then put out anti-smoking ads. It should be free to cut my salary by $500 and then pay the $500 to a union that would then engage in collective bargaining. To the extent I'll still be subsidizing the government payment, it will be only in the sense that all taxpayers subsidize all government expenditures—and the Court has never suggested that such use of tax money even implicates the Free Speech Clause. Indeed, such a system might better reflect the argument in favor of public sector unions, which is that they are said to provide fair treatment for employees, an orderly bargaining process, and labor peace. If a state government thinks unions provide such valuable beneifts for the state, why not pay them for it, the way the state government pays other organizations that perform various services for the state?

Now I think this helps show that the Janus majority erred in claiming that the agency-fee system is unconstitutional; as the dissent points out, "when a government mandates a speech subsidy from a public employee," that is really just "levying a tax to support collective bargaining," and doesn't violate the First Amendment. But, rightly or wrongly, the majority held thatrequiring the money to be paid "by the employee" (in the sense of being withheld from the employee's paycheck) violates the First Amendment, because at that point the employee is being compelled to directly fund the union. Fine then: If the state government thinks that the union is providing a valuable service to the state, the government can just fund it directly out of general tax revenues.

As a recent article by Prof. Benjamin Sachs points out, this may require some changes to state law. Many state labor laws now bar direct payments by employers to state employee unions (a holdover from a time when people were especially concerned about undue employer control of unions). And state campaign finance laws sometimes restrict political action by government contractors, which unions might end up becoming under this new proposal. But if a state legislature wants to change the law this way, and presumably legislatures in many of the states that allow compulsory agency fees would, it can do so.

I realize that some people might say that this is an attempt to work around the Court's decision, and is thus impermissible. But some such workarounds are fine; compare, e.g., Johanns v. Livestock Marketing Ass'n (2005), which upheld an agricultural advertising funding system that was economically very similar to a different funding system that the Court had struck down on First Amendment grounds in United States v. United Foods, Inc. (2001).

The question is whether the workaround solves the underlying constitutional problem. If the problem is that requiring government employees to pay money to a union violates the First Amendment, then the workaround would solve it, because then the money would be paid by the government from general treasury funds, and not by the employees.

And if the problem is that requiring even taxpayers to subsidize unions, via the government, violates the First Amendment, then the law has a much bigger problem on its hands: After all, taxpayer money flows to a vast range of speakers, both governmental and private, through a vast range of government programs and government contracts. I don't believe the Court in Janus was suggesting that all these payments—to public education, to government contractors for services rendered, to government-selected private organizations whose speech the government wants to funds, and more—are constitutionally suspect.