The Volokh Conspiracy

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Courts should not decide issues that are not there

My take on On Fire Christian Center, Inc v. Greg Fischer, et al.


After law school, I clerked for two years in a federal district court. A district court clerkship is very different from a circuit court clerkship. In the circuit court, the clerks and judges often have months to think about and decide cases. Invariably, appeals concern distinct legal questions, as the factual record below is set. And, at least two other judges on the panel will review any decision before it is published. The district court is very different. Only one judge is involved, perhaps with the assistance of one or two law clerks. And it is impractical to spend months pondering over deep legal questions. Some matters must be resolved as soon as possible. And that urgency, invariably, leads to errors. For that reason, appellate courts perform an important function.

I distinctly remember one of the biggest mistakes I made in two years of clerking. (And there were several blunders). During my first year in chambers, I was working on a routine dispute between two businesses. Party A's summary judgment motion alleged that Part B copied some design elements (color scheme, style, layout, etc.) from Party A's web site. At the time, I was really excited by that argument. Most of the cases I worked on were fairly mundane. But this issue presented a fascinating question about emerging technologies and intellectual property.

I prepared a lengthy, detailed draft opinion about how to define the "look and feel" of a web site, and the different factors that should be considered. I had a lot of fun writing it. The Court granted summary judgment to Party A on that claim. A few days later, Party B filed a motion for reconsideration. The motion was terse: Party A did not raise the "look and feel" claim in its complaint; it was raised for the first time in the summary judgment motion; therefore, the claim was waived. At first I was in denial: how could I have possibly missed such a simple argument? But I soon realized I messed up. In my haste to tackle a fascinating legal question, I failed to check whether it was mentioned in the complaint. I apologized to the judge, and the decision was promptly withdrawn.

I learned an important lesson the hard way: Courts should not decide issues that are not there. For the remainder of my district court clerkship, I would always assiduously review every complaint and amended complaint. And during my circuit clerkship, I carefully reviewed all pleadings in the district court to make sure claims were not waived. To this day, I am always careful to post all relevant pleadings when I discuss a case.

My experience in the district court came rushing back to me when I read On Fire Christian Center, Inc v. Greg Fischer, et al. (Eugene blogged about it here).

The district court entered an ex parte temporary restraining order against the City of Louisville "from enforcing; attempting to enforce; threatening to enforce; or otherwise requiring compliance with any prohibition on drive-in church services at On Fire." If Louisville actually sought to prevent church-goers from attending a "drive-in church" service, the city would have violated Kentucky's Religious Freedom Restoration Act. Whether the city would also violate the Free Exercise Clause, as interpreted in Employment Division v. Smith, is a closer question.

My analysis is hedged, however, because it isn't at all clear that the City sought to take any enforcement action against drive-through church-goers. Here, the TRO was issued ex parte. The district court did not give the City an opportunity to respond.

After the TRO was issued, Mayor Fischer stated that there were no planned enforcement actions. He also said that they were unable to reach the court:

"I regret that the judge did not allow us to present evidence that would have demonstrated there has been no legal enforcement mechanism communicated," Fischer said. "We attempted twice to contact the court."

Had the District Court held a 15 minute telephonic status conference, any doubts about the proposed enforcement could have been resolved. And the District Court could have simply denied the TRO as moot on the Mayor's official representation that there would be no enforcement action. I don't think voluntary cessation concerns would kick in here. If the Mayor's response was equivocal, then a TRO may have been proper. But the District Court skipped that route. Instead, it spent nearly 24-hours writing a twenty-page published decision, with 86 footnotes.

The opinion read like something of a law review article. It provided a thorough exegesis of religious freedom from biblical times, to Plymouth Colony, to slavery, to Latter Day Saints, to Blaine Amendments, to Harvard's quotas for Jewish students, to the KKK. None of this discourse was necessary to decide the narrow question. And much of the rhetoric was over-the-top. Why was it necessary, for example, to note that Hugo Black and Robert Byrd were members of the KKK? Indeed, the Court did not even need to discuss the Free Exercise Clause of the First Amendment. Kentucky's RFRA provided all the relief the Plaintiff's sought. Constitutional questions should generally be avoided. But here, they were addressed head-on.

Finally, I remain perplexed by the final, 86th footnote.

But for the men and women of On Fire, Christ's sacrifice isn't about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, "it isn't a matter of reason; finally, it's a matter of love."85 86

85 Robert Bolt, A Man for All Seasons 141.

86 JRW, SDR, & PBB.

JRW are the initials of Judge Justin R. Walker. What about SDR and PBB? My best guess: those are the initials of Judge Walker's law clerks who worked around the clock to prepare this thorough discourse of religious freedom. I hope I am wrong about this last bit. I don't recall ever seeing a judge formally acknowledge the contributions of his or her law clerks. (Though I know law clerks sometime slip in Easter Eggs.) All too often law clerks say "that was my opinion," or something to that effect. They really shouldn't. It's the court's decision.

Ultimately, I think the District Court reached the right result, but made numerous, unforced errors along the way.

NEXT: "Public Officials Have an Ongoing Duty to Adhere to the Law"

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  1. Perhaps the District Court felt it appropriate to make an example of an opportunistic liberal that was using the pandemic as an excuse to ban Christianity.

    I know most liberals think religious people are all fools, dolts and idiots (please chime in Kirkland and help prove my point) but seems to me that the learned judge here wanted to take the time to lay the historical, philosophical, and legal roots in which he based his decision. Don't see anything wrong with that especially given the outright animosity the left has toward anything and everything Christian.

    1. 1. No one is trying to ban Christianity. As Mike DeWine recently said: having services now and endangering people is not a Christian thing to do.

      2. That’s absolutely not his job as a judge.

      3. Christianity in America suffered a lot of self-inflicted wounds over the last several decades that invited liberal animosity.

      A. The sex abuse scandal in the Catholic Church and its continuing coverup did untold damage to people’s conceptions of that institution and religion generally.

      B. The over-the-too antipathy prominent Christian leaders expressed towards gay people turned a lot of people off.

      C. And most importantly, the continual promotion of self-professed Christians to religious and political leadership positions who are all massive hypocrites.

      1. What does point 3 have to do with the law?

        And why single out Christians in point 3C? How about the "continual promotion of self-professed Marxists to educational and political leadership positions who are all massive hypocrites" -- does that justfiy singling them out in the law?

        Or the fact that just about all politicians are massive hypocrites? There's a good candidate for singling out in the law.

        1. “continual promotion of self-professed Marxists to educational and political leadership positions who are all massive hypocrites”

          Care to provide a list?

          1. "Care to provide a list?"

            Can't you do your own research about which politicians to contribute to?

            1. OK. That's a little bit funny.

              Glad you are not going full-on Jimmy the Dane.

          2. Just look at the faculty page for any university in the United States.

            1. I see.

              You have no fucking idea what you're talking about, so you throw out some idiotic RW BS.

              1. Are you really saying that your average State U. is not packed full of socialists? And if so do you really believe what you are saying?

                1. Yes.


                  Of course, if your definition of "socialist" is "anyone who doesn't worship Trump," then the average university is indeed packed full of socialists.

                  But if that's your definition you're a moron.

                  1. You have heard the one about living in glass houses right....says the guy who is trying to seriously argue that modern universities are not packed full of socialists....

            2. "Just look at the faculty page for any university in the United States."

              I look at the faculties of the schools I respect -- from our strongest private schools (Harvard, Columbia, Penn) to our leading public schools (Michigan, Berkeley) -- and consider the faculties of the schools you respect -- Hillsdale, Ouachita Baptist, Wheaton, Regent, Liberty, Ave Maria -- and I am heartened by the evidence that right-wingers will continue to fail in America's marketplace of ideas.

          3. Care to provide a list of educational administrators who aren't?

            1. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf is the one making claims.

              It's his job, or yours, to support them.

              1. A brief review of the Journals of the ACPA or NASPA will more than prove my point....

                1. Post evidence, don't just insist.

                  1. An extensive study of 8,688 tenure-track professors at 51 of the 66 top-ranked liberal arts colleges in the U.S. published by the National Association of Scholars found that the ratio of faculty members registered as Democrats compared to those registered Republican is now a stunning 10.4 to 1. If two military colleges that are technically described as “liberal arts colleges” are removed from the calculations, the ratio is 12.7 to 1.


                    1. What was the ratio of faculty not registered to either party, compared to faculty who were registered to the Democrats or Republicans? I want the data to include 8,688 tenure-track professors, as promised.

                      And your view is that registration as a Democrat makes you a socialist? A Trotskyist? A Stalinist? A Joe Biden socialist? What?

                    2. Dr. Ed, the thesis is "self-professed Marxists to educational and political leadership"

                      You're now talking about Democrats.

                      Maybe check your goal posts.

                    3. "An extensive study of 8,688 tenure-track professors at 51 of the 66 top-ranked liberal arts colleges in the U.S. "

                      It is not surprising that most professors at top-ranked schools have little taste for the current conservative platform.

                      Or that Republican professors -- especially the movement conservatives -- tend to work at conservative-controlled campuses, which skew strongly toward fourth-tier or unranked institutions with lackluster faculties (for reasons conservatives do not wish to acknowledge).

                      If you want to find conservative professors, you should not look at the faculties of strong schools.

                    4. So what we've learned is that Dr. Ed equates Democrats with "socialists."

                      That tells us more about him than it does about anything else.

            1. Gonna need more than just statements by AEI panelists.

              An AEI panel discussion last Wednesday, titled “The Close-Minded Campus? The Stifling of Ideas in American Universities,” focused on the scarcity of conservative professors and students in the social sciences, with the panelists noting that conservatives are outnumbered in the field even by self-proclaimed Marxists.

              About 18 percent of social scientists in the United States self-identify as Marxists, compared to only about 5 percent who identify as conservatives, Dunn and Shields reported.

              1. "Gonna need more than just statements by AEI panelists."

                The link mentions the book title. The book has a wiki page. If you look at the 'Public Reception' and 'Analyses' sections and their footnotes you can find more info.

                1. Nice sleuthing. It seems a mixed bag and a bit more advocacy than I'd like, but nothing facially wrong.

                  I don't see Marxists being mentioned at all, though.

                  1. Quote from the link Seamus posted: "About 18 percent of social scientists in the United States self-identify as Marxists, compared to only about 5 percent who identify as conservatives, Dunn and Shields reported."

                    Dunn and Shields being ... the authors of the book.

                    1. An article on a blog, about a panel discussion by the AEI, where the stat in question was reported. The panelists wrote a book that seems legit, but the reviews don't really mention the stat in question. Nor even the metric in question.

                      I have a busy day at work, so procrastination is the order of the hour. I googled around, I see the social science is doing a lot of work. The number appears to be from a Harvard Working Paper by different people than the authors.

                      That 18% in social science is doing a LOT of work - it turns out it's more like 3% generally. So as suspected “continual promotion of self-professed Marxists to educational and political leadership positions who are all massive hypocrites” is right-wing anti-intellectual BS.

                    2. "That 18% in social science is doing a LOT of work – it turns out it’s more like 3% generally."

                      I agree! And that's a substantive response!

                      (TBH, it kinda surprises there are any actual marxists still around ... it has kinda batted 0 for NN over the last century. Hopefully just a case of old dogs being unable to learn new tricks, although you never know. I had a zoology prof who was a creationist of all things.)

                    3. Thanks Absaroka, appreciate the back-and-forth.

                      My one thought is that maaaaybe some are taking Marxism as not the same as Communism. I'm not really up on the difference myself.

        2. Because Jimmy thinks Christians are specifically under attack.

      2. If only you had stuck to 1 and 2, you might have had a reasonable claim that you were really just looking after public safety, and Christianity happened to get in the way!

        Point 3 is a great example of the sort of awkward unforced error caused by the irresistible desire to get some kicks in.

    2. I have no animosity towards Christians.

      I do have animosity towards those who think their religion gives them special privileges and absolves them of the duty to be concerned about others.

      1. So, in other words, you have an animosity towards Muslims?

        1. Doesn’t pretty much every religion have that aspect to it?

          1. Indeed....

        2. Towards those who think that Islam does that, yes.

          I pretty much think that religious "fundamentalists," for lack of a better word, of any stripe are destructive. That includes some Christians, Jews, Muslims, Hindus, and probably members of other religions I don't know much about.

          Worship your gods in your homes and gathering places, with my blessing, but don't come around asking for all sorts of privileges and political influence.

          1. "Worship your gods in your homes and gathering places, with my blessing"

            Except they're not even allowed to do that anymore right now according to you. They can't even worship in their gathering places, because you've determined it's not safe.

          2. Ouch, I was with you for the most part until that one. What "special privileges" do religious groups "ask" for?

            And political influence in a democracy is open to all and sundry, including religious groups, atheists, etc. Nobody need "ask" for it, it's available for the taking.

            1. Well, there's the one that we've been discussing for about a dozen threads now: Exemption from laws of general applicability. That's a pretty big one. I'm an atheist, so my conscience gets no consideration whatsoever no matter how offensive I may find a law to be; I have to abide by it anyway.

              Then there's exemption from taxation. If the local church catches fire, or gets broken into by a burglar, my tax dollars pay for the local authorities to respond; those churches do not pay taxes to pay for police or fire protection. Those big religious conglomerates, like television evangelists, that rake in millions of dollars -- that's all tax exempt.

              There are others. Those are good for a start.

              1. Then there’s exemption from taxation. If the local church catches fire, or gets broken into by a burglar, my tax dollars pay for the local authorities to respond; those churches do not pay taxes to pay for police or fire protection. Those big religious conglomerates, like television evangelists, that rake in millions of dollars — that’s all tax exempt.

                How is that a special privilege, as opposed to something applicable to all corporations organized as not-for-profit entities?

                1. David, there are two fairly important distinctions between churches and non-profits.

                  The first is that if I organize a non-profit, in order to get tax exempt status I have to show that the corporation is actually engaged in activity that benefits the public. This is different from religion, in which merely being religious carries with it the assumption that it benefits the public.

                  The second is related to the first, but is a slightly different argument: There is no distinction made between money-generating activities that benefit charitable works and those which merely enrich the organization and/or its principals. If a televangelist is on his third yacht, I'm fine with taxing it. Even if it's in the name of the organization rather than officially his personal property.

                  1. “if I organize a non-profit, in order to get tax exempt status I have to show that the corporation is actually engaged in activity that benefits the public”

                    I take it you are not at all familiar with the activities of most NPOs and the extent to which the IRS actually exercises oversight over their disbursements, employee salaries, etc.

                  2. I mean, that's not how tax exempt status actually works. You just have to show — and by "show," I mean "assert" — that you're in one of the categories (educational, charitable, religious, etc.) governed by the statute. You don't need to prove the corporation's mission actually benefits the public. It can be organized to "raise awareness" about, but not fight, a disease — hell, the common cold — or to operate the Museum of Historical Dog Collars.

                    There is no distinction made between money-generating activities that benefit charitable works and those which merely enrich the organization and/or its principals.

                    Sure there are. Can churches abuse it? Sure. So can any other non-profit. Nothing in NFP status prevents the American Hangnail Society from using its funds to build an elaborate, ornate building to house its operations. And — absent justification — if it's buying yachts for the use of its executives, it and a church are violating the law.

      2. I do have animosity towards those who think their religion gives them special privileges.....

        Are they mistaken ?

        "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

        and absolves them of the duty to be concerned about others

        Perhaps those who are not discharging that duty in the manner that you would prefer have different notions as to how best to perform it.

        The fact that I think that the improvement of the general economic welfare is best pursued with much lower taxes, much lower government spending and much less regulation, but you - I suspect - do not; does not lead me to assume that you oppose the goal of an improvement of the general economic welfare.

        1. They can exercise all they want.

          When that exercise is dangerous to others they cross the line.

          And once that happens it is indisputable that they lack concern for others. If your religion requires you to gather in groups, risking infection which you may spread to those who do not share your beliefs, then your beliefs are harmful to others.

          And may I, as a non-Christian, dare to ask what Jesus would have suggested was the proper course of action? Didn't he say something about praying in public and so on?

          (I might also ask what Jesus has to say about the proper treatment of immigrants - or strangers - but I know that, and it's for another thread.)

          1. "When that exercise is dangerous to others they cross the line."

            And luckily, the government can decide exactly what is dangerous. Gathering in groups? Dangerous. Actions and speech by religious leaders that the government considers seditious. Dangerous as well. I mean, you could get rebellion, riots, and think of the people...

            In fact, why stop with religion being considered dangerous.

            Some speech is dangerous. And some press can be dangerous too. If the press downplays the danger of the coronavirus, that's super-dangerous to others and needs to be curtailed. A little government "power" will fix that. It's all the first amendment...

    3. I'm a Unitarian. I believe in God. My faith informs my favoring policies that work to deal with oppression and injustice in America and elsewhere.

      I just don't have a lot of patience for the type of Chiristian who can't stop calling themselves the oppressed. Generally as part of a larger resentment about how hard it is to be white and male and conservative. And how they earned all their comfortable success, independent of anything and anyone. But they'll fight and rage against the liberal plotting that's behind every loss to their preferred, and only legitimate, political agenda.

      Not the Christianity I live, but I'd never dream of using the government to stamp out spiteful partisan misery; that'd be more of a losing battle than the War on Terror.

      1. " just don’t have a lot of patience for the type of Chiristian who can’t stop calling themselves the oppressed."

        When it looks and sounds like they're being oppressed, it sounds like you don't have a lot of patience for people who are being oppressed, if you disagree with them.

        1. No, it doesn't look like they are oppressed. It looks like they want to be oppressed very badly, and some have convinced them that they are.

          But when someone cries about how crushing it is to be a white male in this social justice world, that's just a clue that they are so self-involved they can't look around.

          Is there some BS white folks and males have to put up with? Sure. But oppression? Read the Bible to get a sense of what that's really like.

          1. Tell the baker who lost his business because he didn't want to make a piece of artistic expression for a gay couple who wanted to force them to do so effectively using a man with a gun to make it happen. Or the preacher who is charged with a "hate crime" for daring to say homosexuality is a sin. For the photographer who is forced to decide from keep their business open or violating their religious beliefs. Sure....yeah....Christians aren't being oppressed at all by the left...if you believe that I have some COVID flavored candy to sell you that totally won't make you sick....

            1. Weird how all these examples are about not liking homosexuality and not any other aspect of Christian belief.

              1. What did Jesus say about homosexuality?

                1. Jesus was an observant Jew (the Last Supper was a Passover Seder) and hence his position was that of Jewish Law.

                  1. Good lord, Ed, that's some bad theology.
                    Do Christians keep kosher?

                    1. It's a fact that he was an observant Jew, it's a fact that the Last Supper was a Passover Seder and the only reason why Passover and Easter don't *always* line up is that the Early Christians switched from the Jewish Calendar to the Roman one.

                      The part about Jesus and the moneychangers in the temple -- that was because Jesus was upset about them not observing Jewish law about not cheating people. He was a JEW and considered himself one.

                      3/4 of the Christian Bible is the Torah -- same citations, too.

                      Now as to keeping Kosher, how many Jews do today? But that is irrelevant to who Jesus was....

                    2. He didn't say anything about Christians keeping kosher, and they don't.
                      He didn't say anything about Christians abhorring homosexuality, and yet some Christians have found some penumbras and emanations.

                    3. In other words, Dr. Ed has no answer.

                      You want to claim that you follow the law of the Hebrew Bible? Then follow it. Including keeping kosher, not wearing clothes made of two different kinds of cloth, and so on.

                      Instead, you and your ilk cherry-pick Leviticus and Deuteronomy to find passages that support your bigotry and ignore the rest.

                    4. 3/4 of the Christian Bible is the Torah

                      Um, no. Saying "The" Christian Bible is itself wrong, as different sects have different versions, but most Christians (not including, e.g., LDS) recognize roughly 70 books in their bibles, split between the so-called Old and New Testaments.

                      There are, of course, only 5 in the Torah.

                2. The same thing he said about slavery.

                  1. That same argument holds for persecuting homosexuals.

              2. LawTalkingGuy : Weird how all these examples are about not liking homosexuality and not any other aspect of Christian belief.

                Well, it would be surprising to offer examples about aspects of Christian belief that do not involve the believers being threatened with hefty fines, or damages. Aspects of Christian belief that provoke passers-by into reactions like "Yeah, that's fine with me" are unlikely sources of lawsuits by Christians claiming to be oppressed.

                Though it is not strictly true that Christians are only willing to go to court to resist legal threats, when something related to homosexuality is the bone of contention.

                I have noticed that Christians seem willing to go to law, on occasion, when they are required by law to assist their employees in getting access to various reproductive (or stricty anti-reproductive) services that they have religious objections to. And in recent days we have seem some Christians objecting to the government trying, in various forms, to ban services of Christian worship.

                The common theme, it seems to me, is not objections to homosexuality per se, but objections to being legally coshed over the head for exercising their religion.

                Cet animal est très méchant, quand on l’attaque, il se défend.

          2. "No, it doesn’t look like they are oppressed. It looks like they want to be oppressed very badly, and some have convinced them that they are."

            Oddly enough, those doing the oppressing never actually think they are oppressing people. It's always justified for some reason.

            1. 1) That's not actually true.
              2) You haven't really disproven that all you do is whine about oppression from a position of privilege, armchair and all.
              3) That's more a Pilate move, less a Jesus one.

            2. That argument would work way more if the people claiming they are oppressed weren’t the dominant religious group and overrepresented at every level of government compared to self-identifying non-believers.

              1. You would think as the dominant religious group being so overrepresented, that they wouldn't have an issue with their services being shut down by the government....

                1. Other religious groups are having the same issue. In fact the only reason this issue is occurring is that there are so many Christians, the likelihood of one group trying to flaunt social distancing is increased.

                  1. Hmm... Almost like certain people are oppressing ALL religions.

                    Beginning to look a lot like the Soviet Union in 1918.

                    1. No. It’s looking like a pubic health crisis that is affecting all aspects of life. Atheists aren’t meeting up either.


                    2. It's always a crisis that results in people's rights being taken away...

                    3. That’s true. But no one actually wants life like this to continue indefinitely.

        2. Oh stop it. You know better.

          The President is, or pretends to be, a Christian. The overwhelming majority of the Congress, and of every state legislature, is Christian. Somewhere between most and all state governors are Christians. The majority of the Supreme Court is Christian.

          So fuck off with the oppression business. It's utter bullshit.

          Poor oppressed Christians. Makes me want to vomit.

          1. You know, the overwhelming majority of the leadership of the Soviet Union in 1919 were Christians as well....

            How did that work out for the Russian Orthodox Church?

            But Soviet law never officially outlawed the holding of religious views, and the various Soviet Constitutions always guaranteed the right to believe, so it was all OK....

            1. Oh stop.

              This is overwrought nonsense. Utterly ridiculous.

      2. I'm not going to argue theology, but it's an open question if Unitarian Universalists are Christians, and that question extends within the U/U community itself. That above and beyond the fact that Unitarianism rejects The Trinity, and hence are de-facto heretical.

        Christians consider Jesus to be God, Unitarians don't.

        1. I believe in God, and I celebrate Easter. I don't think Christians are dolts and fools.

          I also think Jimmy is not providing a great specimen of what Christianity should and can be.

        2. Ed, do you suppose New England Puritans were not Christians?

        3. You're not going to argue theology, but then you immediately start talking about theology.

    4. As I understand it, "under color of law" liability doesn't apply unless the police have clear notice and hence this decision gives clear notice that interfering with that drive-in service, in any way, will be a violation of civil rights.

      Remember that the police department was a named party in the suit, explicitly named as such by the Judge. And hence it wasn't just the Mayor, the Judge put EVERYONE on notice that if ANY of them screwed with the service (under color of law), they'd be SOL because his ruling was written so broadly that no one could have any doubts.

      I think it is a case of saying "don't play games, guys -- I'm not putting up with it." I think Barr's tweet said the same thing.

    5. Nope. I don’t think you have a clue about Christianity or religious rights litigation. I’ve got a lot of both, all the way to SCOTUS, and all on the side of churches and ministries. This case is an example of why neutral observers warn about inexperienced and ideologically based judicial appointees. And the option is wrong on Christian doctrine and practice as well. But no doubt this guarantees Walker’s DC Circuit confirmation.

    6. Jimmy, your issue is not with "opportunistic liberals", but rather with the culture that's left you completely behind. At the moment you've got political power, which is not nothing, but that's all you've got. The culture has abandoned you. Someday political power will catch up.

      The real threat to Christianity isn't the left. It's the millions of people who spend their Sunday mornings going to brunch, mowing their lawns, sleeping late, and watching TV. It's the great masses of people who are completely put off by the church's foray into partisan politics, and its raw hypocrisy in supporting a president whom St. Paul would have insisted be excommunicated from the church at Corinth. And oh yeah, your martyr complex (while at the same time demanding special rights) doesn't help either.

  2. Judge Justin Walker.

    Another of those wonderful Trump appointees coming soon to a circuit court near you.

    1. Yes, yes he is. For the next 40 years hopefully unless he gets a further promotion.

      1. Hooray! More self-indulgent concurrences written like freshman English papers!

        1. They may be bitter, strident dissents soon enough. Unless conservatives figure a way to change the cultural tide, or the mainstream refrains from using its opportunities to alter the political and judicial landscape, a guy like Walker will be in a dwindling minority taking direction from an enlarged Supreme Court and an enlarged House of Representatives.

          1. Human Hemorrhoid: I don't suppose it has escaped your notice that the Judiciary is ideologically changing to a more originalist mien.

            By election day, POTUS Trump will have replaced nearly 1/3rd of the circuit court. And well over 25% of the district court judges.

            What the term I am looking for. Oh wider. 🙂

            1. You're declaring victory for conservatives in the American culture war, XY?

              Which is to come first: Prayer and creationism in public schools? Criminalization of abortion and contraception? A resumption of government gay-bashing? Black men finally required to resume lowering their gaze in the company of white women?

      2. Providing unpersuasive opinions to own the libs.

        1. And what opinion is a drank the kool-aid liberal going to find persuasive? They are too stuck in the echo chamber to even realize their frog nature.

          1. One that sticks to the issue at hand? It’s easier to be legally persuaded when I’m not wasting my time reading a sermon/freshman history paper that would probably get a B.

            1. A "B?"

              Grade inflation has really taken hold.

              1. That would be an A -- at Liberty, Ouachita Baptist, Ave Maria, Hillsdale, Regent, Wheaton, Bob Jones, Biola . . .

          2. Judges are writing for the public, and for their higher court. This opinion does a great job of alienating a good proportion of both.

            A wise conservative who was into judicial policymaking would want a more decorous judge to push their agenda.

            But wisdom and efficacy take second seat these days to owning the libs. Not opposing them effectively, nor making them feel bad. But making the liberal in your head feel bad, which makes you feel good.

            Negative tribal affinity - it's all many of you run on these days. You and Bob more than most.

            1. Conservative have been decorous for too long. They keep getting rolled as a result.

              Its way past time to change tactics. Naturally you prefer the old losing but decorous conservative ways.

              1. Embracing being a self-righteous a-hole isn't a tactic, it's just being an a-hole.

                1. Liberals were perhaps the first to the "self righteous a-hole" merit badge. They still love doing it. Why else would you feel like you need to put a "I didn't vote for Trump" sticker on your car. Virtue signaling anyone?

                  1. We're talking about judicial opinions, Jimmy, not your own sense of resentment over bumper stickers.

                  2. Better to signal virtue than embrace vice.

  3. The judge just got nominated to the DC circuit. This was his audition tape.

    1. When you're right, you're right. Competence and ethics be damned. Getting judges who are simpatico is the important thing.

      Pragmatism at its worst. (I trust that you'd be outraged if President Hillary C. or Biden did the same, no?)

      1. "Getting judges who are simpatico is the important thing."

        Yes. Not my fault, liberal judges decided to be super legislators 50 years ago so now I treat them like legislators.

        "President Hillary C."

        I don't speculate on pure fiction.

        But its funny that you think Obama and Bill Clinton just appointed on pure "competence and ethics".

        1. Bob,
          Why on earth do you think I'd think it's okay if a Dem does it also? I merely pointed out that I suspect that you'd be a hypocrite, in the case of a Dem president. Since I am not a hypocrite, I *am* bothered when a president from either party does it . . . and I've publicly posted about this (albeit at a former VC website).

          1. I am not bothered by either side doing it.

            I don't subscribe to the priestly conception of judges, they are political actors so require political appointments.

            1. I agree with Bob from Ohio. Clingers should take their best swings now, because the memories will comfort them as the culture war continues to paint right-wingers into a corner the size of Alabama and Mississippi.

      2. "When you’re right, you’re right. Competence and ethics be damned. Getting judges who are simpatico is the important thing."

        We live in an era of Populism.

        I imagine Andrew Jackson's judges were similar.

    2. I know.

      Tragic, isn't it?

      This guy is a lunkhead and a fanatic getting appointed because he ran around like a lunatic in support of Kavanaugh.

      1. Don't fault clingers to taking their shot . . . er, last gasp. They expect their political position to continue to fade as America's electorate improves.

        The problem with last gasp strategies, though, occurs after that gasp.

      2. He's a Mitch protege. That is why he got appointed.

        1. Also a lunkhead and a fanatic.

          1. He might be among the poster boys for enlargement of some federal courts in a year or so.

            1. Arthur, I'll bet you -- I don't know what, but I'm open to suggestions -- that if the Democrats win control of the WH and Senate, they will not enlarge SCOTUS. Nor will they enlarge any of the circuits for partisan reasons. I take no position on whether one or more circuits may be embiggened for workload or other reasons unrelated to partisanship.

              1. They would need the House, too.

                Why, in your judgment, would (or should) Democrats refrain from neutering the hard-right judges Trump and McConnell have arranged?

                I expect events of the 1860s to be illuminative as we approach the prospect of Democratic control of the legislative and executive branches.

                1. Yes, I thought it went without saying that if the Dems won the WH and Senate, they'd keep the House.

                  I'd love to roll back McConnell's strong-arm politicization of the judiciary, but not by amping up his norm-breaching to new heights. Two wrongs don't make a right. I'm not certain the D leadership will share that view, but I think it more likely than not they will.

                  1. What is the alternative?

                    I mean, the judiciary is full of unqualified dolts like this Walker guy.

                    1. The solution is to win elections and, over time, dilute their influence by attrition. Most of Trump's judges are qualified, if anathema to our values. That sucks, but it's a legitimate result of "elections have consequences." The truly awful ones, e.g., Walker, will do awful things and revel in their awfulness. They'll do their best to devolve jurisprudence to an antebellum hellscape, but as surely as we'll survive Trump, we'll survive his judges.

                      Don't get me wrong. I expect them to make life worse for everyone the law ought to protect, but if we go all "we have to burn the village to save it," we'll have no more moral standing to impose our views than they do. I hold out no hope of anything good coming from Trump's most cynically unqualified, trollish cohort of appointees, but I'll pray against reason that the spectacle of their awfulness lights a fire under the lazy, entitled asses who pretend elections don't matter when their candidate doesn't win the Democratic nomination. It's long past time every left-wing voter cared as much about judges as right-wing voters do, and showed up at the polls in equal numbers to do something about it. Fuck Susan Sarandon.

  4. This is a good take. While the result was very likely correct, the opinion was indisputably a bad judicial opinion.

    1. It wasted the Court’s time. Instead of using that time to review or solicit a response from the City or having a phone conference like Josh suggested, or looking at other relevant cases they’re doing searches on google books for things to say about pilgrims.

    2. It wastes the reader’s time with pointless digressions.

    3. As Josh pointed out, some of it is completely irrelevant even to the discussion of the importance of Easter to Christianity or religious persecution.

    4. It undercuts it’s legal persuasiveness by burying it under a lot of Christian exegesis.

    5. It demonstrates a judicial bias in favor of Christianity. If this was a mosque challenging a similar order, would we get a history of Islamic persecution in America, quotes from the Quran, and comparisons to 1984? Of course not. Would we get the sense the judge was personally offended on behalf of Islam? I doubt it It shows the judge is willing to use his office to spend a lot of time defending and promoting Christianity, rather than focusing on the task at hand.

    6. It was also badly formatted. Headings at the bottom of the page? Seriously?

    A nice short, if terse, order would have served everyone’s interest better. Except those of Judge Walker apparently.

    1. The judge is a clinger. Superstitious. Backward. Inexperienced. Ideologically predictable. My hunch is that he is a product of America's left-behind backwaters. His work reads like something that would have been rewarded handsomely in a nonsense-teaching, science-disdaining, dogma-enforcing school.

      1. Hey, troll, the judge went to Duke Undergrad and Harvard Law School, he clerked for Kennedy, and then taught at a law school.

        1. Then it's a damn shame his zealotry is burying his judgement. I mean, good lord, when your opinion loses Blackman...

          1. Yeah. Some very good educational institutions did not do their job if he never learned why you aren't supposed to do this sort of thing.

            1. It's also something you pick up through actually practicing law, which Judge Walker doesn't seem to have spent much time doing.

            2. Oh lord. According to his bio, he actually teaches legal writing. SMH.

              1. I mean, he's writing because he wants a job with Trump, and that requires acting like you're an angry, dumb partisan.

                I'm amused by those that think it's effective judging, and not the distortion to our system brought on by Trump.

                1. That seems a bit implausible as an argument, given that Trump already gave him the job.

                  1. (For the avoidance of doubt: I know that Walker is seeking a new job — appellate court judge — but Trump already made that nomination. Walker doesn't need to impress Trump further for that.)

                    1. Aw, man. I was hoping he had something of an incentive to act out like this at least.

                      Thanks for the correction.

            3. I sense this guy did his learning at Federalist Society meetings, Heritage conferences, church gatherings, and Republican rooms as much as in classrooms.

        2. Was he raised in Durham, or in Boston . . . or in some Kentucky backwater? Either way, he's a Federalist product who was a fish out of water at Duke and Harvard. Who was his "feeder" judge -- Sutton? Kavanaugh? Pryor?

          You mentioned Duke and Harvard by name . . . but not the law school at which he taught.

          1. It is reported that he is a native of Kentucky. And that he was a law professor in Kentucky (Lousville).

            The backwater hunches seem vindicated.

    2. It demonstrates a judicial bias in favor of Christianity. If this was a mosque challenging a similar order, would we get a history of Islamic persecution in America, quotes from the Quran, and comparisons to 1984? Of course not. Would we get the sense the judge was personally offended on behalf of Islam? I doubt it It shows the judge is willing to use his office to spend a lot of time defending and promoting Christianity, rather than focusing on the task at hand.

      I think this is a really important point.

      1. Christians seem not to understand that the whip they use against others could easily turn against them with surprising swiftness as America continues to improve in ways that diminish Christian influence among our stronger institutions and the electorate.

    3. It demonstrates a judicial bias in favor of Christianity.

      I seem to remember him placing great emphasis on some non-Christian religion's right to conduct animal sacrifices.

      1. That’s because that was the factual background of Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), a precedent directly on point. The issue with the opinion is all the not-on-point discussion of the persecution of Christianity.

  5. I don't understand. This article states: "Mayor Fischer stated that there were no planned enforcement actions."

    If there were no plans to enforce his edict why did he issue it?

    1. Not sure. But my guess would be to try a velvet glove before an iron fist. Like a governor/mayor who first puts out a "Hey folks, it'd be better if we stay home for now." advisory, rather than an actual order, with legal consequences for violation. But I'm just making a logical idea of the mayor's actual motivations.

      1. This was performance art for the credulous and the backward.

      2. The "Velvet Glove" is a threat, one that implies action if the "velvet glove" isn't met.

        1. Not all soft power is a threat.

          1. How can one know, Sarcastr0? When you say, "Not all soft power is a threat." aren't you saying - it is a bluff?

            How do we know the difference between a bluff, and not a bluff?

            1. Soft power is not just about worrying about a future punishment. It's also about respect, friendship, favors...All sorts of ways to get humans to do a thing beyond threats.

              When the government says 'do a thing' people don't just comply because they worry about punishment. For many, their self image includes being 'law-abiding.' Others may tend to think the administration is good and want to support them.

              1. Yeah, but when you use the term velvet glove or even soft power, the clear implication is a threat to use force.

                My experience has been that altruism 'I will obey the law because it is right and good to do so' is quite rare. Fear of getting caught and punished drives more compliance, IMHO.

                1. I took 'try a velvet glove before an iron fist' to be about trying non-force based methods before force-based methods.

                  I further disagree with your sense of altruism. It's not altruism - being law-abiding is a big part of a lot of people's self-image, in my experience. There's a stigma to illegality beyond force.

                  Indeed, that's the argument that people are using about how ending the mandate kills the ACA. I don't think soft power used like that is legally cognizable, but both parties seem to acknowledge it's existence.

              2. You seem to be wishing this was a request or appeal rather than an edict or mandate, but that’s not how it was issued.

                1. You think all edicts and mandates are threats? I know that's the libertarian line, but I think that's pretty reductive and fails to understand how a lot of people work.

                  There's also a more recent post on the Conspiracy that highlights the facts somewhat better. Suffice to say there's pretty strong quotes supporting both sides.

    2. The quotes in the opinion suggest to me that while the mayor didn't want people to engage in the drive-in, but that he also recognized the bad optics attendant on actually trying to send in the cops to break it up, and instead hoped that persuasion and deterrence would lead to it being cancelled, but that he ultimately would have backed down had his bluff actually been called.

    1. "According to Beshear, the license plate information will be forwarded to local health departments, which will then present orders to self-quarantine for 14 days at the car owners' homes. Failure to comply could result in further enforcement, the notices say. "

      That's where this is going to get ugly. People are going to get hurt.

      1. If any clinger wants to go "the full LaVoy," be my guest.

        Replacement is replacement, in my judgment.

        1. All bullies are inherent cowards.

      2. You've been salivating over violence for weeks no, Ed.

        1. For that . . . and a great Awakening during which a fearsome God will rebuke those who favor modernity, reason, tolerance, progress, science, and backwardness while handsomely rewarding those who pine for illusory good old days while muttering bitterly about 'foreigners' and 'darkies' and 'feminazis' -- with extra heavenly glory for those who juggle rattlesnakes, heal the afflicted with touch, and bash gays in his divine honor.

  6. Professor Blackman,

    I general, I agree. If the issue is moot, then the court should not issue a decision.

    But there is a question, was the issue really moot? Or was the mayor using the threat of "potential" enforcement in order to persuade people to do what he wanted, while avoiding actual action that might provoke a legal response.

    It was pretty clear from the mayor's initial declaration, and the follow up declaration by the spokesman

    Here are the quotes: "We are not allowing churches to gather either in person or in any kind of drive- through capacity." "Ok so, if you are a church or you are a churchgoing member and you do that, you're in violation of the mandate from the governor, you're in violation of the request from my office and city government to not do that." "We're saying no church worshiping, no drive-throughs."

    Then the "Mayor's spokesperson said he would use the police to deter and disburse drive-in religious gatherings: "Louisville Metro Police have been proactive about reaching out to those we've heard about, and discouraging organizers from proceeding."

    In the wake of such arguments, a later quiet statement from the Mayor that "we won't actually arrest anyone"....really isn't enough. It will still provide the threat of arrest or breaking up the meeting. And in the wake of such a risk, and the resulting later legal uncertainty (IE, if there was no decision), many won't risk it. The potential for arrest is enough to dissuade attendance, but mere potential isn't enough for a court decision.

    Within this context, a forceful statement from the court was required to emphatically note that what the Mayor planned was illegal. An analogy can be drawn to voter suppression. A large announcement by the Mayor of a major city that "certain colors of people will be dissuaded from going to the polls and the police will enforce this action against these people" is almost certainly illegal.

    But, since it hadn't actually HAPPENED yet, the context is such that the court couldn't actually rule against it, or issue a decision? A quiet statement from the mayor's office that "no real enforcement will occur" is enough? I think not.

    1. Note that this was not a "drive-through" service, but a "drive-in" service. You didn't just drive up to the window, take communion, and drive off.

      The restaurants and liquor stores that were allowed to stay open are "drive-through." I don't know about bars.

      Whether this was the right decision or not, I sure hope none of the attendees have jobs that involve contact with the public.

      1. I don't understand your argument. First, according to the opinion, even walk-in liquor stores are allowed to be open, not just drive through.

        Second, drive-in is far safer than drive-through, so I'm not sure why you're using "just" in the way you do. Drive-through involves customer contact; drive-in does not.

        1. I wasn't making an argument. I suggested I had no strong opinion about the decision. I was trying to clarify something. I read:

          Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs –including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly–including, again, the parking lots of liquor stores.

          In googling around, it seems to be unclear. One issue is that lots of places that sell liquor are grocery stores. It wouldn't make much sense to have them close because they also sell liquor, so those are clearly open and exempt from the order.

          Is it safer? Only if people really stay in their cars.

          1. What's safer Bernard, staying in your car in a single location for an hour?

            Or shopping for an hour in a heavily trafficked area in person, outside of your car?

            1. I think I answered that.

          2. In googling around, it seems to be unclear. One issue is that lots of places that sell liquor are grocery stores.

            In some states. But from googling, not Kentucky, where grocery stores aren't allowed to.

      2. Off-point (but interesting to me):
        My sister lives in Montreal. In that part of Canada, liquor stores also are "essential" and are allowed to remain open. But, people who are age 70 and older are now forbidden from entering such establishments. So, they have to find someone to go in and buy their booze for them. The visual image of a septuagenarian sidling up to an 18-year-old on the street, outside the liquor store, and whispering, "Can you buy me some beer?" . . . well, things have come full-circle from when I was a teenager.

        1. true. = The visual image of a septuagenarian sidling up to an 18-year-old on the street, outside the liquor store, and whispering, “Can you buy me some beer?” . . . well, things have come full-circle from when I was a teenager.

          Thx for the laugh. 🙂

    2. I thought Josh was suggesting it could have become moot by actually trying to work the issue out with the parties through a phone conference.

    3. It's a TRO. If you were arguing whether a case should proceed, sure, I can make an argument that it isn't mooted in an Article III sense.

      But to get a TRO, you have to show imminent, immediate injury, so clear that it can't wait the several days for a preliminary injunction on an expedited basis. And if there's no enforcement of the order, you don't have that.

      1. How do you know there's no enforcement of the order, a priori? It's the threat that's the issue

        Like I said, use the same exact example, but instead of "religious services" being threatened replace it with "people of a certain color voting at the polls".

        You think that would stand? Or would it need a TRO?

        1. The moving party in a TRO has to prove the actual imminence of the deprivation of rights.

          1. Oh look, the governor of Kentucky is now taking down the license plates of cars around a church on Easter Sunday for a list...

            I wonder what he's going to do with that list?

            1. Is he forbidden from doing that by any law?

              I am willing to go along that that's bad policy for a number of reasons, but quit conflating is and ought.

              1. He is not. But that point is irrelevant.

                Personally I think it is very credulous, even disingenuous, to accept the mayor’s walk-back at face value.

                He issued numerous statements and directives that indicated enforcement would occur in multiple ways. He only claimed after the TRO that enforcement wouldn’t really happen. “Just kidding!”

                Why should anyone believe he didn’t mean what he said? Do we have an obligation to discount any threat to use law enforcement as potentially empty? Why?

                1. Feel free to see bad faith where you will. I can't say I see competence, but I think one has to strain to see an attempt at Christian oppression.

                2. Though I appreciate you were clear in that you were discussing what law/policy ought to be, not what the law actually is.

    4. "In the wake of such arguments, a later quiet statement from the Mayor that “we won’t actually arrest anyone”

      We won't arrest anyone FOR THIS -- we'll find something else to arrest them for. Disorderly conduct and disturbing the peace usually are good for just about anything an officer wants them to be.

  7. "After the TRO was issued, Mayor Fischer stated that there were no planned enforcement actions. He also said that they were unable to reach the court:"

    The very next paragraph: "Fischer says law enforcement was never told to interfere and stands by his decision saying there are photos proving people are not properly social distancing at the service. The ban on in-person services will be enforced Sunday. LMPD will be handing out flyers on the virus and taking down license plates to give to the Health Department so if someone turns up sick, they’ll be able to enforce quarantine."

    He planned no enforcement actions Saturday.

    1. Good catch.

    2. "LMPD will be handing out flyers on the virus and taking down license plates "

      Sending police to spy on you and take down your info is a form of enforcement. Its a threat that armed agents of the state will come to your house whenever they want.

      1. No, that's not enforcement. At least, not by the law.

        1. Intimidation then. Better?

          1. That's still not the law. Chilling effect isn't a thing for free exercise.

            You can argue what the law ought to be, but you are not properly describing what the law is.

            1. "Chilling effect isn’t a thing for free exercise."

              The hell it's not.

              1. Then show me a case, AL.

                1. LAMONT v. POSTMASTER GENERAL

                  Here's some selections from the opinion.

                  "But inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government. See, e. g., Freedman v. Maryland, 380 U.S. 51 ; Garrison v. Louisiana, 379 U.S. 64 ; Speiser v. Randall, 357 U.S. 513 .
                  "In any event, we cannot sustain an intrusion on First Amendment rights on the ground that the intrusion is only a minor one"
                  As the Court said in Boyd v. United States, 116 U.S. 616, 635 :
                  "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. [381 U.S. 301, 310] It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."

                  1. Not a free exercise case.

                    1. It's a first amendment case. And the logic in the opinion directly quotes the first amendment. Not just a right to free speech.

                  2. Yeah, that's a fail.

                    Sarc: Chilling effect isn’t a thing for free exercise.
                    AL: The hell it’s not.

                    1. You don't understand clinger law.

                      It's like when my educated, accomplished friends say, 'who could Trump possibly think he is impressing with this stuff?' and I respond 'if you had grown up where I did, you wouldn't need to ask that question.'

                    2. But inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government. See, e. g., Freedman v. Maryland, 380 U.S. 51 ; Garrison v. Louisiana, 379 U.S. 64 ; Speiser v. Randall, 357 U.S. 513 .

                    3. AL, you are quoting a CONCURRENCE in a seminal chilling effect for SPEECH case.

                      It has never been extended to Free Exercize.

                      Take the loss.
                      It happens.

                    4. Here's a Harvard Law Review note from Feb of this year arguing that the scope be extended to free exercise, but hasn't been.


                      While chilling may happen in any number of contexts, it has been incorporated into free speech doctrine as a mechanism for policing statutes that are not aimed at regulating speech protected by the First Amendment, but have the incidental effect of doing so.
                      This Note considers chilling in the context of another part of the First Amendment: the Religion Clauses.
                      It argues that government establishment of religion can chill the free exercise of religion, and that Establishment Clause jurisprudence should incorporate the concept of chilling.

                    5. Right...

                      Here's the deal. You are free to worship your religion however you want. We're just going to need to sow this big yellow six pointed star onto your clothing whenever you go outside.

                      That's just a "Chilling effect" right? No way a court would ever strike down a law like that, it's just religion...

                    6. Read the OP's title, AL. What the law is has zero to do with hypotheticals like that.

                      You're talking about what the law ought to be. That's a fine and good area of discussion.

                      But you're conflating that discussion with what the law is. You're borrowing the authority of a scholar to give you authority as an advocate.

                      It's a common thing; sometimes even done unconsciously. You've been caught at it. Bluster won't get you out of it.

  8. Much of the opinion was gratuitous, I agree. We did not need the essay on the history of religious persecution.

    But I think Prof. Blackman's argument about it being moot based on after the fact claims by the mayor that they didn't plan to enforce the law is not well taken. The court wasn't simply guessing based on a vaguely worded public statement by a mayor about whether the city was banning drive in services; the mayor expressly said that he was.

    1. I believe Josh was saying mootness could/would have come up if the Court had actually bothered to have a telephone conference with all parties and got the mayor to back off enforcement. But since it decided to spend its time on a gratuitous sermon it didn’t do that.

      1. Right. Plus it's a TRO.

        Ex parte proceedings are in general really bad. You don't do them unless you have to, and if there's an emergency and you don't have the time to get the other party on the phone. (I will leave aside situations where the other party is destroying evidence or fleeing the jurisdiction or liquidating the accounts are something.)

        So this guy took 24 hours writing his opinion. That's basically proof that he could have had a non-ex parte proceeding.

        1. Yes. From my state court experience, the only ex parte orders that are ever routinely granted are anti-stalking orders, which are usually brought pro so, have a completely different statutory framework, are challenging to serve, and the public policy underlying the statutes usually favor a grant of them temporary relief.

          Normal TROs are usually trade secret related which typically aren’t urgent. Other ones usually involve some institution that is very easy to get a hold of. There was really no excuse for not attempting a conference on this given the time he had. That’s just bad case management. He could have still had his clerks working on a draft order just in case the mayor was firm while still having the conference, instead of spending his time googling “pilgrim” and “Robert Byrd KKK.”

    2. Seems to get in the weeds about when a challenge is facial versus as-applied. If it's as applied, you'd need injury. If it's facial, you can just strike down the law.

      Except this isn't a law...I honestly don't know whether there's a parallel doctrine for executive action.

      As with so many seemingly partisan knots, this case actually turns on procedure.

  9. Justice Scalia wrote at least one opinion that formally acknowledged a clerk's contribution:

    I don't think this instance is objectionable (unlike the possible one the post discusses). But Josh should at least be aware that it's happened before.

    1. Seems pretty significantly different from the "acknowledgement" here.

      1. Perhaps these guys wanted to be sure their hard work was duly noted by sweet baby eight-pound six-ounce newborn infant Jesus . . .

        1. Wrong holiday. Easter is when an ADULT Jesus rose from the dead.

          1. I get that one confused with the one where Jill came back . . . with $2.50."

      2. Yes, sure. Hence "I don’t think this instance is objectionable".

  10. "I don't recall ever seeing a judge formally acknowledge the contributions of his or her law clerks. (Though I know law clerks sometime slip in Easter Eggs.) All too often law clerks say "that was my opinion," or something to that effect. They really shouldn't. It's the court's decision."

    I am aware that the judiciary is the opposite of academia when it comes to acknowledging the help of collaborators or assistants. In an academic paper, you're supposed to acknowledge people - even students - who helped you with the research and writing. With a judicial opinion, lifting the curtain to let the public see the work of the clerks would, I suppose, "undermine confidence in the court," though only in the sense that it would "reveal" what everybody knows.

  11. From the post's description, it sounds like someone rushing to publish a first draft without taking advice like "this part needs to be trimmed," "this stuff about Robert Byrd needs to be cut," "leave out the theological analysis," etc.

    I think a lot of people will suddenly discover a principled objection to politicizing the judiciary.

  12. Everyone knows judges are ideological. The idea that judging wasn't ideological went out of style some time ago.

    Writing like a partisan is a different thing.

    Those saying this is nothing the libs haven't done for ages don't know the difference. Which is telling.

    1. I don't mind this type of opinion so much, Sarcastro. It could diminish the resistance from Democrats who might be inclined to oppose enlarging the Court, enlarging the House (and Supreme Court), enlarging circuit courts, and the like.

      1. Defensive partisanship by the Democrats. It's so essential to the future of the country that it shouldn't even be called partisanship, it should be called statesmanship. Or shoving progress down the throats of the clingers. Potato, puhtato.

        1. Where do you draw the line between ideology, partisanship, and statesmanship?

          I have my ideas, but you go first.

        2. It's progress . . . the Conspirators' bane, their fans' worst nightmare, and modern America's destiny.

        3. No, Alphonse, you go first, I insist.

          1. Ideology - I have a vision for society, and am working towards it. Agnostic as to methods.

            Partisanship - I have a group, and am working to give that group maximum power. Agnostic as to method.

            Negative partisanship - I have a group I hate, and am working to ensure that group has minimum power. Methods are whatever I imagine that group to use.
            Thus, the nihilism of Bob and Jimmy, who imagine all evils of the other side, and thus allow all evils of themselves.

            Statesmanship - I have a vision, and am working towards it. Some methods are disallowed by that vision, and that takes primacy. If my vision is disallowed by the methods I hew to, I stick with the methods and hope for a better opportunity later. This sometimes means voting against one's own interest or ideology.

            Not a lot of statesmen these days, on either side.

            This judge did not write about an ideology, he wrote about a group. A group he is part of. And spent a lot of time being angry about another group. That's negative partisanship. And it's rare in the judiciary...for now.

            1. OK, well, for my part, if a question arises, I generally go by the dictionary definition, so here's a more or less reliable dictionary:


                1. Like I said, if I misused those words, I am open to correction - but not through a free-for-all, open-ended argument about definitions. Just show me in the dictionary where I erred.

                  1. (Bearing in mind, of course, that my response to Rev. Kirkland was somewhat sarcastic)

              1. I haven't actually looked up the words you're asking about, but if I used them wrong, then by all means use the dictionary to correct me.

                1. We're talking about actually using the words in a specific context. The dictionary's broad utility isn't going to get that done. I did some work. And explained why this judge was out of bounds. You come back with nothing.

                  Also, I would note that your strawman doesn't play either: It’s so essential to the future of the country that it shouldn’t even be called partisanship, it should be called statesmanship.

                  1. I mean, it looked like a response to me, but I won't argue with a bit of baiting RAK.

                    1. I was responding to the Rev, not to your good self.

                  2. "I did some work. And explained why this judge was out of bounds."

                    Are you saying I disagreed with you? I compared the opinion (above) to an unvetted first draft which should have had parts cut out of it.

                    Are you just looking for an argument, like in the Monty Python skit?

                    1. I think I'm just tired; woke up early for work. All is forgiven, Eddy. Or, rather, I suspect there is nothing for me to forgive 😛

                      I actually had a great time explicating my thinking and taxonomy.

                    2. Your definitions seemed workable.

                      As for that judge, I don't propose to fall on my sword defending every pearl of wisdom which drips from his mouth - unless I'm in Kentucky and he's sentencing me for bootlegging or something, in which case I'll discover that he's the wisest, bestest jurist ever, now that Aristides and Solomon are gone.

  13. Why shouldn't a court go ahead and just rule on anything it wants to? I know the academic argument why this should be avoided Article 3 case and controversy, etc. But that never has stopped liberals from legislating from the bench. That is how we got abortion, gay marriage, and a host of other left wing policies. Seems to me turnabout is fair play. Why shouldn't a conservative Supreme Court just find that "oh yeah NYC can't ban people from carrying guns in public AND also BTW everyone has a right to carry a concealed weapon..." If anything we need MORE of this out of the Trump judiciary along with throwing out some more Obama judges.

    1. Authoritarianism them before they authoritarianism you!

      1. The left has been "authoritarianism" us for at least a generation. Don't see why turning the tables on them and finally sticking it to them. Power is the only thing the left understands. Time to put them under the thumb.

          1. "Don’t see why turning the tables on them and finally sticking it to them. "

            If only there were enough half-educated bigots and disaffected, superstitious yokels clingers to enable conservatives to get that done . . . instead of an electorate whose improvement works against right-wing prospects and toward more liberal-libertarian progress every day.

            Open wider, clingers.

            1. There's gonna be a populist backlash to the Wuhan Fascism, and a lot more judges like this one.

              Historians will call it the Trump Democracy

              1. Wuhan Fascism. Do you realize how ridiculous you sound?

              2. You keep rooting for that Clinger Comeback, with a righteous side of Supernatural Sauce.

                And for a great populist rebuke of the American mainstream.

                If it eases your pain while you await replacement, I guess there's nothing wrong with a little all-talk delusion.

        1. When you say “under the thumb” how much violence are you contemplating?

          1. Probably be at least a thumb's worth....

            1. So in terms of body count? Or let’s say hospitalizations? Would there be limits on torture? Are families of undesireables legitimate targets? Is rape acceptable? Just tryna get a sense of scope here.

              1. The limit would be a switch can only be as thick as the thumb...

                1. So mass beatings? Canings? Do you speak in euphemisms because you’re actually uncomfortable with the level of violence required to achieve your desired society?

                  1. Do I need to remind you that it is the Bernie Bros who are planning on throwing people into gulags....

                    1. Nutpicking to excuse your violent impulses convinces no one but yourself.

                    2. So you want to do that too?

        2. So you think the other side is acting in bad faith.

          Therefore, you are free to act in bad faith.

          Congrats on waiving away all morality.

          So much for the argument that oppressors never think they're the oppressors.

          1. If the Left has taught us anything it that in order to wield power there can be no morality.

            1. No, that's the left of your imagination.

              Hope you enjoy being a nihilist.
              Not really a happy place to be, but there you are.

            2. What’s the most immoral way the left has wielded power in the last 20 years?

              1. The homosexual agenda and forcing it on unwilling states. A close second is the complete lack of respect for immigration. Abusing impeachment for cheap political thrills. Unconstitutional takeover attempt of the entire healthcare system. Need me to keep going?

                1. Thinly veiled advocacy for violence in order to stop the homosexuals, immigrants, proper use of Constitutional oversight mechanisms, and bring out health care system up to the standard of the rest of the world.

                  Tale as old as time.
                  "Reckless audacity came to be considered the courage of a loyal ally; prudent hesitation, specious cowardice; moderation was held to be a cloak for unmanliness; ability to see all sides of a question, inaptness to act on any. Frantic violence became the attribute of manliness"

                2. Well if that's the best you have, then the left is doing really well in the morality department. With the exception of impeachment, each example is about treating humans with dignity and respect.

                  "Homosexual agenda" = treating other humans with dignity and respect regardless of their immutable trait. That's a moral position that most people have adopted. The right will never win this argument on moral grounds because it depends on dehumanization.

                  Lack of respect for immigration (laws) = respect for the innate dignity and humanity of immigrants. That's a moral position.

                  Unconstitutional takeover of healthcare = a belief that each human in America is entitled to live a healthy life regardless of their ability to pay. Whether the chosen method works is different from the moral principle at play.

                  Abusing impeachment = keeping the powerful accountable for their acts. The result of a successful impeachment and removal would only be that one human no longer has power, and would be succeeded by a human with broadly similar goals. Even if it was immoral to harm the President in this fashion, it is certainly less immoral than any other course of action to remove him prior to an election.

                  Morals concern our duties to others. Remember to think about how you are treating the poor and the sick, the gay person just trying to live their life, or the traveler in a new land. Although I am no longer a Christian, I think on occasion there were some moral truths contained in the Bible. Particularly: "Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me." Matthew 25:40-45

                  1. Put my comment to shame, why don't you. Well written.

                  2. This is the lamest excuse for liberal power grabs I have ever heard. "But it was all for the greater good....we swear.....!!!!"

                    1. Jimmy, you crave dignity and respect to such an extent that even perceiving the other side as denying you those things causes you to dehumanize all who stand before you.

                    2. Greater good would be utilitarian argument. I’m not making one. I’m making an deontological argument about how each individual has a duty to treat others with humanity, respect, and dignity.

                      Funnily enough most arguments about why homosexuals should be treated one way are utilitarian, or to use your term, “for the greater good.” They basically come down to the idea that shunning or abusing gay people is good for society as a whole. Otherwise there is no moral justification for it.

                      You should watch The Good Place sometime. Might give you a sense about what I’m talking about.

                    3. You're a bigot, Jimmy. The type of throwback loser who constitutes the heart of the Volokh Conspiracy's carefully cultivated conservative commentariat.

    2. If you look at those liberal decisions, you'll find that in each of them "abortion, gay marriage and a host of other left wing policies" actually were the issue before the court. I'm not aware of any liberal decision in which a judge said, "I think I'm going to rule on a completely unrelated issue just because I feel like it." Roe v. Wade really did involve a woman who wanted an abortion, Obergefell really did involve a gay couple that wanted to get married.

      And the answer to your question about why can't a court just rule on whatever it wants to, is that it's a really bad idea to allow judges to just rule on whatever they want to, whether or not that issue is properly before the court. Do you really want a judge to be able to say, "This is a case involving a contract, but I'm in the mood to write about immigration today, so I think I'll draft an opinion throwing out Trump's immigration policies"? Do you really think that would be a good idea?

      1. Whatever gets the job done. If you have power might as well use it to achieve your ends.

        1. If that's your view, then don't complain when liberals abuse power. If they have power, they, too, might as well use it to achieve their ends, at least according to you.

  14. As far as the last footnote goes, I think it is far more likely that the footnote was left in as a mistake than as a sneaky way of giving credit to the law clerks. In many chambers, it is common for judges to have ways of keeping track of who (which clerk/clerks) is working on an opinion. A judge might for instance have their clerks color coded, with some clerks printing drafts on yellow paper, others blues, etc. to assist the judge with remembering which clerk to talk to about a draft. The judge here may have his clerks end drafts with a footnote with the initials of which clerk/clerks is/are working on the draft. In this case, with a big emergency appeal, it seems likely that both clerks might be brought on board to work on the draft, as well as the judge, hence the three initials.

    1. There is also a lot of software that lets you put in notes that others (authorized coworkers) can see but are otherwise hidden. I'm thinking Adobe here along with the pro version of Word -- and courts well may have their own local software on top of this.

      It's inherently possible to screw that up -- much like I once saw a police department posting social security numbers of persons arrested on their website -- much to the embarassment of the chief when I emailed a copy to her. It's really easy to think that something won't be in the final copy and be wrong because you have a setting set wrong.

      1. 100 percent. I think something like that happened here.

  15. Someone forgot to include the initials JC

  16. Given the peculiar vehemence of the opinion, it's a fair guess that the Mayor was genuinely shocked, shocked to discover that someone thought an enforcement action was pending once he or she found out which judge had been assigned the motion. #jiggerypokery

    Just a wild guess from the wilds of academe.

    Mr. D.

  17. "Why was it necessary, for example, to note that Hugo Black and Robert Byrd were members of the KKK?"

    Well, unfortunately this is a rhetorical question.

    It's not that no one knows why. I mean, "But Byrd" has been the stock-in-trade of the morons that comment on facebook posts and the VC (but I repeat myself) for over a decade.

    The wonder is that norms are so debased that a judge would see fit to do so. Oh, wait, this is .... THAT Trump appointee?

    Of course it is.

    1. It was necessary in the sense that trolling liberals is becoming a central tenet of Trumpist political philosophy. Can’t wait til we get Rao/Walker/Ho SCOTUS opinions that references Benghazi and cites to Dinesh D’Souza. Maybe one day we’ll get a concurrence that simply says “Cry more Libtard!”

    2. loki, what's the other blog you go sometimes with the...more robust comentariat?

    3. I find it amusing that when conservatives want to accuse the Democratic Party of harboring racists, they have to go back fifty years to find examples. Nobody seriously thinks a Klansman would be welcome in the Democratic Party today. If those Dixiecrats came back from the dead, today they would all be voting Republican.

    4. You overlook the point that Judge Walker and his Federalist Society clerks are on a Mission From God.

      Not the best one . . . not even close . . . but one nonetheless.

  18. Looks to me like a Rule 65 violation here by the plaintiffs, which the judge failed to catch

    The certificate at the end of the TRO memo recites as follows:


    On April 9, 2020 at approximately 11:40 am E.T., attorneys for On Fire Christian Center, Inc. sent a letter to Defendant Mayor Greg Fischer requesting that he retracthis recent directives concerning drive-in church servicesand laying out potential claims under the First Amendment to the U.S. Constitution, the Kentucky Constitution, and the Kentucky Religious Freedom Act.The letter asked for a response by 4:00 pm E.T. that day so that OFCC could consider its next steps given the impending Easter holiday. Neither the Mayor nor another City of Louisville employee ever responded. OFCC’s attorneys thus attempted to give notice of its claims to Defendants. Given that this is the last business day before the Easter holiday, further notice should not be required.

    This statement was not under oath, and although the affidavit of the church pastor recited the irreparable injury, it did not, as required by Rule 65(d), shpow unde oath how that injury would occur "before the adverse party can be heard in opposition."

    And if they were able to get the city a demand letter at 11:40 AM on a Thursday, demanding a response by 4 PM the same date, there is no reason why they could not notify the city of their actual lawsuit or of the scheduling of a TRO hearing.

    I confess that I read the judge's TRO and accompanying opinion quickly, but I did not notice any reference to the Rule 65 notice requirement or any statement, as required by Rule 65(b)(2), "why the order was issued without notice."

    It was the judge's obligation under Rule 65 to enforce this requirement. The judge's laxity on this point strikes me as a severe lapse of judgment.

  19. There's obviously good reason the 1st amendment only applied to the federal government as it was drafted. The change to apply it to the states, giving federal courts jurisdiction over the states, turned the entire federal structure on its head.

    1. Some of us view that as a feature, not a bug.

      1. ML thinks the Civil War ended the wrong way, so no surprise there.

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