From the Philadelphia Inquirer (Jeremy Roebuck):

The Pennsylvania Supreme Court ruled Tuesday that Republican monitors observing vote counting in Philadelphia were given sufficient access under state law to view the proceedings…. [T]he court overturned a lower court decision that ordered monitors with President Donald Trump's campaign be allowed within six feet of tables where ballots were being tallied.

In its opinion, the Supreme Court found that the Philadelphia Board of Elections complied with requirements for observer access from the moment the first votes were counted.

"We conclude the board did not act contrary to the law in fashioning its regulations governing the positioning of candidate representatives," Justice Debra Todd wrote for the majority. "Critically, we find the board's regulations … were reasonable."

The majority opinion seems to be a pretty technical discussion of Pennsylvania state election law; one short dissenting opinion would have rejected the appeal on the grounds that it was moot, and another short dissent also argued that the trial courts order requiring closer access was valid. In any case, I thought I'd pass these along in case readers are interested. Thanks to Howard Bashman (How Appealing) for the pointer.

On May 29, 2020, the Supreme Court denied an injunction in South Bay United Pentecostal Church v. Newsom. The Court's order was a single sentence. Chief Justice Roberts wrote a solo concurrence that stretched about two pages. According to Westlaw, 114 cases have cited the Chief's concurrence. (I cited many of these cases in my Harvard JLPPP article). And only one of those case has negatively referenced the opinion. In six months, South Bay may have become Chief Justice Roberts's most influential precedent during his entire tenure on the Court.

To be sure, Roberts has written many important decisions. But those cases affected discrete controversies. NFIB v. Sebelius resolved the constitutionality of the ACA. Shelby County v. Holder resolved the status of the Voting Rights Act. The Census and DACA cases resolved controversies specific to the Trump era. And so on.

But his South Bay concurrence settled cases of first impressions that have spanned across the entire spectrum of constitutional adjudication. Courts have cited South Bay in cases involving every facet of the Bill of Rights: the Freedom of Speech, the Free Exercise of Religion, Freedom of Association, the Second Amendment, various criminal procedure rights (such as the right to a speedy trial), and the Eighth Amendment (conditions for prisoners). South Bay has been cited in substantive due process cases, involving rights to contract and rights to abortion. South Bay has been decisive in cases involving voting rights during the pandemic. Courts have relied on South Bay to determine the police powers of governors to impose mask mandates and other quarantine measures. In disputes between state and localities, South Bay has served as a tiebreaker.

It is difficult to account for how broadly governments at all levels have relied on the Chief's opinion. Conservatives and liberals have latched onto the Chief's cursory analysis as the end-all be-all of COVID-deference. Before South Bay, several courts actually ruled for the religious claimants. But since South Bay, houses of worship have consistently lost. Truly, the impact of the South Bay concurrence has been staggering.

Regrettably, courts have failed to account for the narrow context in which South Bay arose. The Plaintiffs sought an injunction pending appeal. The crux of Roberts's concurrence is that the Supreme Court should not grant an injunction pending appeal unless the "'the legal rights at issue are indisputably clear' and, even then, 'sparingly and only in the most critical and exigent circumstances.'" This standard is well known, and does not in any way depend on the COVID-19 pandemic. The Chief cited Jacobson, briefly, but only noted that the government should get deference during the "dynamic" pandemic.

In the abstract, it isn't clear that South Bay should serve as a precedent, at all, for district court and courts of appeals. Plaintiffs do not need to show their claim for relief is "indisputably clear" to obtain preliminary injunctive relief. Yet, courts have reflexively cited the Chief's opinion, as if it were a super precedent that governs all things COVID. It is not. It is a solo concurrence from the shadow docket. Judge O'Scannlain accurately described the status of South Bay in his Harvest Rock dissent.

I first clarify a point that is somewhat obscured by the majority's decision: we are neither bound nor meaningfully guided by the Supreme Court's decision to deny a writ of injunction against California's restrictions on religious worship services earlier this year. See South Bay United Pentecostal Church, 140 S. Ct. at 1613. That decision, which considered a challenge to an earlier and much different iteration of California's restrictions, was unaccompanied by any opinion of the Court and thus is precedential only as to "the precise issues presented and necessarily decided." Mandel v. Bradley, 432 U.S. 173, 176 (U.S. 1977) (per curiam). In that case, the Supreme Court considered whether to issue a writ of injunction under the All Writs Act, 28 U.S.C. § 1651(a), a more demanding standard than that which applies to the motion for an injunction pending appeal here. . . . . Without any opinion of the Court, we have no guidance whatsoever—not even in the form of "dicta" as the majority suggests, Maj .at 7—as to why the Court declined to provide such an extraordinary remedy, and we certainly have no basis to infer that a majority of theCourt agreed upon some unstated rationale that somehow applies equally here.

The Supreme Court should not set binding precedent from concurrences in an unargued case. Chief Justice Roberts wrote for a very specific context, yet more than a hundred of judges have cited it in unrelated circumstances. Truly, the South Bay concurrence has taken on a life of its own, far beyond the Chief's intentions.

Fortunately, a pending case affords the Court an opportunity to clarify the appropriate standard for First Amendment cases, in the proper posture. Agudath Israel of America v. Cuomo presents a challenge to New York's restrictions on Houses of Worship (I serve as co-counsel with the Becket Fund for Religious Liberty on a related case on behalf of a Jewish school in New York). Agudath Israel sought an injunction from the Supreme Court, and in the alternative, requested a petition for certiorari before judgment. (There is a related pending case, The Roman Catholic Diocese of Brooklyn v. Cuomo, that did not request cert before judgment.)

A cert grant now would clarify the relevant standard, and settle a pre- and post-South Bay circuit split. The brief explains:

Certiorari is further warranted given the conflicts between the Second Circuit's decision and decisions of other Circuits and of this Court. The Second Circuit declined to apply heightened scrutiny even though the Cluster Initiative treated houses of worship worse than so-called "essential" businesses, App. 6 (Park, J., dissenting), simply because (in some zones) the Cluster Initiative also imposed stringent restrictions on other entities, like schools and restaurants, App. 4 (majority). Yet the Sixth Circuit subjected a Kentucky COVID-19 order to heightened scrutiny because it closed houses of worship but not other "life-sustaining" organizations, without regard to which other entities were closed, too. Roberts v. Neace, 958 F.3d 409, 411–15 (6th Cir. 2020) (per curiam). And the Third Circuit has held that even a single secular exemption to an otherwise-applicable prohibition can render a law not neutral and generally applicable as applied to religion, regardless whether other secular conduct is likewise banned. Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365–66 (3d Cir. 1999); see Calvary Chapel, 140 S. Ct. at 2613 (Kavanaugh, J., dissenting) ("The point is not whether one or a few secular analogs are regulated. The question is whether a single secular analog is not regulated." (citation omitted) (emphasis in original)).

Enough emanations and penumbras from the shadow docket. The Court should grant certiorari, and settle these landmark issues in the proper postures. Arguments could be set for December 9, the last day of the current November sitting, and decided in January. (The Court could follow a similar expedited calendar for the census case). Let's settle this issue the right way.

Here, the dynamics may be difficult for the Chief. Justice Kavanaugh, and the three other Calvary Chapel dissenters can push to grant cert before judgment. Justice Barrett may even grant a courtesy fifth. At that point, the Court would hear the case. The South Bay test, which was limited to injunctive relief, would no longer be binding. At that point, I suspect there would be five votes to limit New York's expansive restrictions on the Free Exercise of Religion. The Chief could then choose to be in dissent. Or, more likely, he would find a way to stay in the majority. Perhaps by issuing a more narrow decision that permits the Houses of Worship to open with certain social distancing measures–measures they were already complying with.

This dance will become familiar to Roberts. I cannot think of any Chief Justice in history who was consistently in dissent. And Roberts would not want to be the first. So he will have to find ways to moderate to the right, without losing the conservative flank. Justices Gorsuch, Kavanaugh, and Barrett now become kingmakers. They can seek the Chief's joinder, or forge their own path. Now it is Roberts's choice.

A few people have asked why I named this blog The Volokh Conspiracy. The blog began back in 2002 as The Volokh Brothers, but when I realized I wanted us to grow, I had to change the last word.

I thought "The Volokh Gang," but then I thought some people might see it as derivative of the then-running political talk show "Capital Gang." I thought "The Volokh Group," but then I thought some people might see it as derivative of "The McLaughlin Group." I also realized that the names were indeed derivative of those shows, so I consciously looked for something different.

Conspiracy struck me as unusual, memorable and a little (okay, only a little) amusing. First, I liked the incongruity of a conspiracy actually publicly announcing itself as a conspiracy. Second, it echoed "The Vast Right-Wing Conspiracy," to which we belong, and also "The Jewish Conspiracy," to which most of the charter members and since then many of the more recent members have also belonged. But at the same time, as a self-chosen label, it also slightly mocked the term (just as many conservatives' embrace of the label "The Vast Right-Wing Conspiracy" slightly mocks the term, which was apparently popularized by Hillary Clinton).

So that's how it came about, and I think it's worked well for us. Some people might be a bit put off by it, and think we're connected to some conspiracy theory (though people who distribute conspiracy theories, in my experience, don't call themselves a conspiracy); or they might just think it a bit undignified (which I suppose it is). On the other hand, it does seem memorable; on balance, I think it's done us more good than harm. And in any event it's how we're known, so there's no changing now.

I agree with the general thrust of Eugene's post yesterday, in which he describes the phenomenon in which "white" has come to mean "relatively successful as a group," with "Asians" often being described, implicitly or explicitly, as white because they are deemed a socioeconomic success.

But I would like to add a more radical critique, which is that lumping together people whose recent origins range geographically from India to the Philippines is itself not very useful, and that if we need to gather statistics about, or discuss, "Asians," at most we should be discussing the attributes of various national (and better yet subnational, though getting such statistics is difficult) groups, rather than "Asians."

As I point out in my forthcoming Southern California Law Review article, The Modern American Law of Race:

The Asian American category includes people descended from wildly disparate national groups, who do not have similar physical features, practice different religions, speak different languages, vary dramatically in culture, and belong to groups that sometimes have long histories of conflict with one another. Various subgroups of Asian Americans have differing levels of average socioeconomic success in the United States —Indian-Americans, for example, on average have significantly higher-than-average incomes and levels of education, while on average the incomes of Hmong and Burmese Americans are well-below the American mean. Korean-Americans have the highest rate of business formation for any ethnic group in the United States, while Laotians have the lowest. The Asian category meanwhile excludes people from the Western part of Asia, such as Muslim Americans of Yemeni origin, who may face discrimination based on skin color (often dark), religion, and Arab ethnicity. Only a minority of people in the Asian category identify with the "Asian" or "Asian American" labels.

When we talk about "Asian Americans" being "overrepresented" (ughh…) in American higher education, we are referring primarily to Indian-Americans (who are by far the most "overrepresented" "Asian" group) and Chinese Americans. By contrast, Filipinos (the largest Asian-American minority), Vietnamese, and other Asian groups are not especially prominent at elite schools.

Eugene writes that "white" has stopped meaning "Caucasian," and thus Asians are sometimes depicted as white, but note that Indian-Americans are primarily "Caucasian" even though they tend to have dark skin, and therefore were almost classified by the U.S. government back in the 70s as white.

And while we're on the general subject, lumping together the groups we call "Hispanic" or "Latino" also makes little sense:

The Hispanic category generally includes everyone from Spanish immigrants (including people whose first language is Basque or Catalan, but not Spanish) to Cuban Americans of mixed European extraction to Puerto Ricans of mixed African, European, and indigenous heritage to individuals fully descended from indigenous Mexicans. Members of the disparate groups that fall into the "Hispanic" or "Latino" category often self-identify as white, feel more connected to the general white population than to other Spanish-language national-origin groups, and sometimes diverge from members of other Hispanic demographic groups in political outlook as much or more than from the general white population. Moreover, "census data show substantial differences in levels of income and educational attainment among the national origin groups in which data about 'Hispanics' are usually classified." Not all Hispanics, meanwhile, consider themselves to be part of a minority group, and "some who claim minority status for themselves would reject that status for others" (for example, they might reject it for well-educated professionals who immigrate from South American countries and are considered white in their home countries). People of Portuguese or Brazilian ancestry, who are not of Spanish culture or origin, are nevertheless sometimes defined as Hispanic by legislative or administrative fiat.

I've delved a bit into the "intersectional" literature, to try to understand how scholars who believe that success in American life is primarily about the "privilege" of one's group explain the relative success and failure of groups like "Asian" writ large, but also the obvious difference in subgroups. It's a huge, risible mess. For example, one scholar posits that whites "let" Chinese and Japanese immigrants succeed because, unlike Vietnamese and Cambodian immigrants, they are relatively light-skinned. Putting aside whether the skin color thing is even true, one wonders how and when whites got together to decide this, how they enforce it, and how it explains why the most "successful" of all immigrant groups are Indian-Americans, who are relatively dark-skinned. But to an ideological hammer, everything looks like a nail.

This week sees yet another Trump administration initiative to hasten America's decoupling from China. As with MIRV warheads, the theory seems to be that if you launch enough of them, the next administration can't shoot them all down.  Brian Egan lays out this week's initiative, which lifts from obscurity a DoD list of Chinese military companies and excludes the companies from U.S. capital markets. 

Our interview is with Frank Cilluffo and Mark Montgomery. Mark is Senior Fellow at the Foundation for Defense of Democracies and Senior Advisor to the congressionally mandated Cyberspace Solarium Commission. Previously, he served as Policy Director for the Senate Armed Services Committee under Senator John S. McCain—and before that served for 32 years in the U.S. Navy as a nuclear trained surface warfare officer, retiring as a Rear Admiral in 2017. Frank is director of Auburn University's Director of Auburn University's McCrary Institute for Cyber and Critical Infrastructure Security. He served on the Cyberspace Solarium Commission and chaired the Homeland Security Advisory Council's subcommittee on economic security.

We talk about the unexpected rise of the industrial supply chain as a national security issue. Both Frank and Mark were moving forces in two separate reports highlighting the issue, as was I. (See also my op-ed on the same topic.) So, if we seem suspiciously in agreement on supply chain issues, it's because we are suspiciously in agreement on supply chain issues. Still, as an introduction to one of the surprise hot issues of the year, it's not to be missed.

After our interview in episode 336 of a Justice Department official on how to read Schrems II narrowly, you knew it was only a matter of time before we heard from Europe. Charles Helleputte reviews the European Data Protection Board's effort to give more authoritative and less comfortable advice to U.S. companies that want to keep relying on the standard contractual clauses. The Justice Department take on the topic manages to squeak through without a direct hit from the privacy bureaucrats.  Still, the EDPB (and the EDPS even more so) makes clear that anyone following the DOJ's lead is in for an uphill fight. (For those who want more of Charles's thinking on the topic, see this short piece.)

Zoom has been allowed to settle an FTC proceeding for deceptive conduct (claiming that its crypto was end to end when it wasn't, and more). Mark MacCarthy gives us details.  I throw shade on the FTC's failure to ask any serious national security questions about a company that deserves some. 

Brian brings us up to speed on TikTok.  Only one of the Trump administration penalties remains unenjoined. My $50 bet with Nick Weaver—that CFIUS will overcome the judicial skepticism that IEEPA could not—is hanging by a thread. Casey Stengel makes a brief appearance to explain why TikTok might win. 

Brian also reminds us that export control policymaking is even slower and less functional on the other side of the Atlantic, as Europe tries, mostly ineffectively, to adopt stricter limits on exports of surveillance tech. 

Mark and I admire the new Aussie critical-infrastructure cybersecurity initiative, for its clarity if not for its likely political appeal. 

Charles explains and I decry the enthusiasm of European courts for telling Americans what they can say and read on line, as an Austrian court tells Facebook to take down worldwide the description of an Austrian politician as belonging to a "fascist party." Apparently, we aren't allowed to say that political censorship is what members of a fascist party tend to advocate; but don't worry about our liability; we can't pronounce the plaintiff's name.  

So, in retrospect, how did the United States do in policing all the new cyberish threats to the 2020 election? 

• Brian gives the government credit for preventing foreign interference. I question the whole narrative of foreign interference, which didn't have much effect in 2016 or 2020 (other than the hack and dump operation against the DNC) but did align conveniently with Democratic messaging in both years (Hillary only lost because of the Russians! Ignore Trump's corruption allegations because they're just more Russian interference!).
• Mark and I wonder what Silicon Valley thinks it's accomplishing with its extended bans on political advertising after the election.  After all, it's almost always election season somewhere (see, e.g., Georgia).
• DHS's CISA did produce a detailed rumor control site that helped correct misunderstandings—but may have corrected one too many of the President's tweets.  In consequence, Under Secretary Chris Krebs, familiar to Cyberlaw Podcast listeners, may be on the chopping block. That would be a shame for DHS and CISA; for Chris it's probably a badge of honor. Frank Cilluffo and Mark Montgomery weigh in with praise for Chris as well.

And more.

Download the 338th Episode (mp3)

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