Chief Justice Roberts Dissents From Presidential Commission on the Supreme Court

Roberts to Congress: Don't call us, we'll call you.

Every year on December 31, the Chief Justice issues the year-end report on the federal judiciary. The 2021 report had an overarching theme: the judiciary can handle its own affairs, and the Congress should stay out. The Chief called back to "Big Bill," better known as Chief Justice Taft, who identified two types of judicial independence: decisional independence and institutional independence.

During [Taft']s nine-year tenure, he proved visionary on a matter of vital concern to the en-tire Judiciary: safeguarding and fortifying the independence of the Branch. Taft knew that no one seriously questioned that judges "should be independent in their judgments." Decisional independence is essential to due process, promoting impartial decision-making, free from political or other extraneous influence. But Taft recognized that courts also require ample institutional independence. The Judiciary's power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government. 

Roberts made no mention of the Presidential Commission on the Supreme Court. He didn't have to. This message was directed to the current Congress that is agitating for "Court reform." Indeed, Roberts said he was using his report to "highlight three topics that have been flagged by Congress and the press over the past year." For each of the three issues, Roberts stressed that the Court has things under control. If the Court needs help, it will ask for it. Don't call us, we'll call you.

First, Roberts addressed the WSJ's reporting on judges who have decided cases in which they, or their spouses, had a financial interest. Does Congress have any role to play in this matter? The Chief said updating conflict of interest systems "may require additional funding from Congress, but it will be money well spent." But Congress should not take the lead.

Second, Roberts revisited "continuing concern over inappropriate behavior in the judicial workplace." The Chief "appreciate[d] that Members of Congress have expressed ongoing concerns on this important matter." But once again, the judiciary can handle this matter internally.

Third, Roberts wrote about an issue that has not gotten much attention. On November 2, two members of the Senate Judiciary Committee, Tom Tillis (R-NC) and Patrick Leahy (D-VT) wrote a letter to Chief Justice Roberts. Roberts explained that the letter came "from both sides of the aisle." I am not a fan when judges even hint at party affiliation, let alone expressly use them.

The Senators expressed their concern about forum shopping in patent cases. Generally, litigants can request that a case be heard in a particular division. And when there is only one judge in that division, litigants can select their judge. The Senators observed that nearly 25% of all patent cases are assigned to Judge Alan Albright of the Western District of Texas, who is the only judge in the Waco Division. According to some reports, Judge Albright "has openly solicited cases at lawyers' meetings and other venues and urged patent plaintiffs to file their infringement actions in his court." The Senators added that Judge Albright "has also repeatedly ignored binding case law and his discretion in denying transfer motions." Professors Jonas Anderson and Paul Gugliuzza wrote about this practice in the Duke Law Journal.  Tillis and Leahy "request[ed] that [Roberts] direct the Judicial Conference to conduct a study of actual and potential abuses that the present situation has enabled." They also asked that this report be completed by May 1, 2022, and should  "provide legislative recommendations."

On December 15, the Director of the Administrative Office wrote back that it would study the issue by the deadline. But that response was not sufficient. Chief Justice Roberts addressed the issue directly in his annual report. Roberts explained that the fault does not lay entirely with the judiciary. Congress establishes the districts and divisions.

Two important and sometimes competing values are at issue. First, the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues. But the Conference is also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their communities. 

Still, Roberts stressed that the judiciary will take the lead in studying this issue.

This issue of judicial administration provides another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve—and to work in partnership with Congress in the event change in the law is necessary. 

The Court will decide if change is necessary. Then, and only then, would the Court work with Congress.

Roberts closed his report with another call back to Taft's two conception of judicial independence:

Chief Justice Taft was prescient in recognizing the need for the Judiciary to manage its internal affairs, both to promote informed ad-ministration and to ensure independence of the Branch. He understood that criticism of the courts is inevitable, and he lived through an era when federal courts faced strident calls for reform, some warranted and some not.

Roberts does not explain what those "strident calls for reform" were. Instead, he quotes from President Taft's 1914 address to the American Bar Association:

The agitation with reference to the courts, the general attacks on them, . . . all impose upon us, members of the Bar and upon judges of the courts and legislatures, the duty to remove, as far as possible, grounds for just criticism of our judicial system. 

Pro-tip: whenever you see ellipses, track down the original. Often, what the author omits is more important than what the author includes. Google Books digitized Taft's address, which you can find here. I've emphasized the text Roberts omitted

The agitation with reference to the courts, the general attacks on them, the grotesque remedies proposed of recall of judges and recall of judicial decisions, and the resort of demagogues to the unpopularity of courts as a means of promoting their own political fortunes, all impose upon us, members of the Bar and upon judges of the courts and legislatures, the duty to remove, as far as possible, grounds for just criticism of our judicial system.

You hear that Senator Sheldon "Demagogue" Whitehouse? On the previous page, Taft's criticizes another type "grotesque reform[]"–politicized bodies adding more judges. Taft offered a proposal to expand the judiciary.

If it is found that there are not judges enough, then we should hear from the Supreme Court as a competent authority, not influenced by politics or personal considerations, how many judges are needed and where, and the judicial force could be increased to meet the real exigency.

You hear that SCOTUS commission? The "competent" Court gets to decide whether more judges are needed, not incompetent and politicized bodies. Roberts, C.J., dissenting.

Comments

[Jaypd]

This is the most interesting thing Josh has written off i just ignore his snark

[DaivdBehar]

The combined stupidity and arrogance of Roberts is stunning. It explains the failure of this out of control, toxic group of lawyers.

“another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve—and to work in partnership with Congress in the event change in the law is necessary.”

Defendants have the best insider knowledge of crime. Criminals should work in partnership with Congress to regulate crime.

Even kids learning to eat with a spoon, in Life Skills Class, know that no human can regulate himself.

[hobie]

David, that last sentence is the most cogent thing I think you have ever said

[David Nieporent]

Well, that class was fresh in his mind.

[DaivdBehar]

David. The problem is that all lawyers, most of all those on the Supreme Court, are all dumber than my classmates. Yet, they get to make national policy on difficult, complicated, technical subjects. The situation is crazy.

[darkknight9]

Discussions of whether there are currently enough judges present along with staffing issues aside, how are our patent courts split up? Is there one per circuit? Per district? Up until now I was under the (incorrect) impression that all patent matters were handled in DC…

[Noscitur a sociis]

District courts have (exclusive) jurisdiction over patent cases, which can be brought in any district where the infringement occurred and where the defendant has a place of business. (I believe Apple closed all its stores in the Western District of Texas to try to protect itself from this judge, who really ought to be impeached.) Appeals from patent cases, however, are heard by the Federal Circuit (which is located in DC), and not by the circuit where the originating district court is based.

[darkknight9]

(I believe Apple closed all its stores in the Western District of Texas to try to protect itself from this judge

Damn!

Thank you! 🙂

[Tilted]

The Apple store closures that I think you’re referring to were in the Eastern District of Texas, not the Western District.

At any rate, Apple still has multiple stores in the Western District.

[rsteinmetz]

The Federal Circuit has long been captured by patent lawyers who have advocated many bad patent rulings.

[Toranth]

I disagree, strongly, that we can trust the judiciary to handle its own.

It clear that they lack the inclination to take offenses seriously. Take a quick look at the quiet acceptance of judicial misbehavior, even blatant crimes, by other judges. Reuters did a series of articles under the name “The Teflon Robe” about the topic: They discovered thousands of criminal judges still sitting on the bench.
There was a different series of articles, also by Reuters years ago, about judges in the Midwest spending decades as petty tyrants, without consequence. When their misbehavior hit the news, the “overseeing” supreme courts or judicial committees would quietly and off-the-record tell the bad judges to quiet down for a while.

Or look at the St Louis family court judges. After years of denying wrongdoing, one judge got recorded discussing disposing of cases for the fun and profit of the “neutral” court-appointed third parties. Then suddenly every single other judge had to recuse themselves… because they’d been doing the same thing.

The absolute worst thing you can do is give a group of people power, and then make them accountable only to themselves. Roberts could not be more wrong – he and his fellow judges are the very people we should never allow to take the lead in investigating and reforming when problems are found.

[Martinned]

Ironically, a lot of people you’re talking about are probably not judges at all, but elected politicians who have inexplicably been given the job title of “judge”. Anyone who is accountable to someone who is not a judge is themselves not a judge.

[Noscitur a sociis]

So your response to allegations of judicial misconduct is that judges should be made less accountable?

[FourteenFour]

in your example, wouldn’t it require action at the state level to affect those judges in question? Can Congressional action affect state and city level judges?

[Kazinski]

“Anyone who is accountable to someone who is not a judge is themselves not a judge.”

That’s not the way it works here, Congress is the only body that can remove a federal judge, though impeachment, although it’s a much more streamlined process than presidential impeachments. The federal judiciary can impose sanctions but not removal.

I think some states have a judicial board, others use the legislature as at the federal level.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Followed to your logical conclusion, there are zero judges.

[bernard11]

Agree.

Simple question for Roberts if he can calm his outrage for a minute:

What has the judiciary actually done about the cases discussed by the WSJ?

First, Roberts addressed the WSJ’s reporting on judges who have decided cases in which they, or their spouses, had a financial interest. Does Congress have any role to play in this matter? The Chief said updating conflict of interest systems “may require additional funding from Congress, but it will be money well spent.” But Congress should not take the lead.

Sounds like they haven’t done anything, but still Roberts tells Congress, “Leave it to us, but we will need a check.” BS.

Second, Roberts revisited “continuing concern over inappropriate behavior in the judicial workplace.” The Chief “appreciate[d] that Members of Congress have expressed ongoing concerns on this important matter.” But once again, the judiciary can handle this matter internally.

How? What has it done about these concerns? Nice of Josh to tell us it can be handled internally. But is it?

And of course the forum shopping business is all Congress’ fault., per Roberts.

[Noscitur a sociis]

You know you can click on the link and read the actual report, right? Frankly, on a Blackman post it would be irresponsible not to.

[bernard11]

Fair enough.

So I read it.

Lots of minimization of the problem. The conflict of interest problem arose in only .03% of all civil cases filed, so there is a 99.97% compliance rate. Well, there are only a few thousand bank robberies in the US every year. So we have a much higher compliance rate than that with laws against bank robbery.

But for those judges who had multiple violations, or professed ignorance of the ethics rule, there is a more serious problem of inadequate ethics training.

And his solution to that, and in part to “inappropriate behavior,” is more training, as though federal judges can’t really be expected to know the rules.

On the patent litigation issue, well, he referred it to a committee. We’ll see.

I think what annoys me is that nowhere in the report does he concede that individual judges are really at fault. It’s all lack of training and procedures that need improvement.

[Kazinski]

The judiciary can admonish a judge, even suspend him, but if it’s that bad congress has to impeach the judge, why doesn’t Whitehouse, et al, get the house judiciary committee to institute impeachment hearings?

That would get their attention, and without passing the buck.

[bernard11]

I somewhat agree.

Still, it would be nice if Roberts admitted that sometimes the problem is the judge, not the training or procedures.

(Anyway, I favor Revolutionary People’s Tribunals, run by workers’ committees, to courts run by lawyers.:-))

[Absaroka]

“Still, it would be nice if Roberts admitted that sometimes the problem is the judge, not the training or procedures.”

I tend to agree. I get that you might need detailed training for the guys on the loading dock, but you’d think for federal judges merely publishing the ethics rules would be sufficient.

[Kazinski]

(Anyway, I favor Revolutionary People’s Tribunals, run by workers’ committees, to courts run by lawyers.:-))

Not when you are fighting a ticket you don’t, and God help you if you want to get a divorce.

[MatthewSlyfield]

You seem to be talking almost entirely about state judges, which would be entirely irrelevant to Robert’s report and the federal courts.

[I Callahan]

The examples he gives may be more state level. That just shows there’s a problem. Is there any evidence that federal judges are, on the whole, less apt towards criminal behavior than state judges?

[MatthewSlyfield]

I don’t think it’s relevant either way. You want to talk about corruption in federal judges use federal judges as examples.

[Noscitur a sociis]

Were any of them federal judges? If not then, I don’t think Roberts’s point it off base.

[Toranth]

Yes, most of the incidents mentioned in any of the article series are about state judges, rather than federal.
But I’ve worked with far to many government employees (and read too many articles here) to think that federal judges are somehow magically better. In fact, just looking at the lists of federal judges that are impeached or otherwise punished for misbehavior, it seems like it is incredibly rare.

Incidentally, as to “Roberts’s point” – do you think Roberts would be defending the judicial independence of federal judges, but at the same time advocating for state judges to be more subject to non-judicial review? That seems a bit skewed.

[MatthewSlyfield]

“do you think Roberts would be defending the judicial independence of federal judges, but at the same time advocating for state judges to be more subject to non-judicial review?”

Why do you think Roberts was advocating and/or should have advocated either way about state judges?

[Toranth]

Roberts’s point, as far as I can tell, is that you can trust the judiciary to police itself. He does not specify federal or state, but instead seems to be discussing general concepts.

It seems very odd to me to suggest that he thinks the federal judiciary should police itself, but that would be wrong at the state level.

If he said something to differentiate the two, despite talking about the general idea of judicial independence, then I missed it. Perhaps Taft’s quote was missing context?

[Noscitur a sociis]

Did you read the title of the report?

[Toranth]

Again:
Do you think that the concepts of ‘judicial independence’ and ‘self-policing’ Roberts believes in are something he believes should only apply to the federal judiciary, and not the states?

[MatthewSlyfield]

I think it is not up to Roberts if “judicial independence” does or should apply to state judicial systems. Nor do I think his opinion on that would be any more meaningful than yours or mine.

His report was strictly about the federal judicial system.

[Toranth]

The report Roberts signed off on used the same title the report had been using since at least 1985, so it is hardly as if he chose it with some sort of deeper meaning to shade the rest of his writings.
Also, in it the report, Roberts repeatedly quotes Taft – in a context where Taft was talking to the ABA about ALL courts, including specific references to problems in and complaints about state courts.

Why this bizarre refusal to discuss that Roberts’s philosophy as a potential problem, just because the majority of examples are from the far more numerous state courts rather than federal?
This anti-induction and fine hair-splitting to refuse to reach a conclusion about something implied is certainly not the normal behavior for you or Noscitur.

[MatthewSlyfield]

Robert’s philosophy is of zero relevance to state courts/state judges, and state courts/judges are irrelevant to evaluating Robert’s philosophy.

If you think that position is bizarre, that’s your malfunction.

[bernard11]

You hear that Senator Sheldon “Demagogue” Whitehouse?

Did you hear that, Republican Party?

What a partisan jackass Blackman is.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And of course you are neither.

[Kazinski]

Well I’d have to agree that’s not a good description of WHITEhouse, he’s a hypocritical racist demagogue:

“New York Times reporter Ken Vogel tweeted about it shortly after noon Sunday. Vogel tweeted, “Sheldon Whitehouse, his wife & their families have been members of an all-White private beach club for decades.”

Of course Whitehouse has his own side of the story:

“He announced that he was resigning all single-sex clubs and clubs that did not include minorities,” he said. “He resigned from the Reading Room, which was an all-male club … in 2006. He also transferred his shares in Bailey’s Beach Club to his wife’s ownership.”

He obviously couldn’t be guilty of belonging to an all white club, and being it’s largest shareholder, if he had transfered all his shares to his wife.

[Rev. Arthur L. Kirkland]

” that’s not a good description of WHITEhouse, he’s a hypocritical racist demagogue ”

By your standard, the Volokh Conspirators are racists and misogynists, and Prof. Volokh (the censor) is a hypocritical racist demagogue.

Good luck trying to stammer your way past that one, Kazinski.

[Rev. Arthur L. Kirkland]

This is quite poorly written. It consequently is difficult to determine when (or whether) the author is paraphrasing — or interpreting — the Chief Justice and when (or whether) the author is commenting on the Chief Justice’s report or a related issue.

This blog needs an editor. I do not mind its decision to choose substandard product instead.

[Davy C]

I had no problem telling the difference. I’d offer to interpret any paragraph you were unsure about, except this site has no comment notification feature and there’s a good chance I’d never come back to answer it.

[Moderation4ever]

Good for Justice Roberts. I am always amazed that a Congress that will not do its own job is so willing to make suggestions to other branches on how to do theirs.

[Rev. Arthur L. Kirkland]

In this context, it could be contended that the courts have not their own jobs — repeatedly, sometimes garishly — yet Justice Roberts is making suggestions concerning how the other branches should conduct themselves.

[Voize of Reazon]

On the patent forum shopping issue Roberts wants Congress to not do their jobs, and instead wait for the judicial branch to tell them what laws to pass.

[MatthewSlyfield]

Since the laws in question would pertain to the internal administration of the judicial branch, there might be some merit to that.

[Moderation4ever]

Agreed

[Voize of Reazon]

Moderation, did I misinterpret your earlier comment?
You seemed then to be criticizing Congress for not doing “its own job”, but now you are endorsing the same behavior.

[Moderation4ever]

The Constitution gives the Congress broad powers with regard to the judiciary. These include approving judicial candidates, removing judges through impeachment, funding and setting up court districts. Congress should stick to these and not look to micromanaging the courts. The Courts may in-turn ask the Congress for more funds or different districts and that is ok if the Courts initiate the request.

My beef with the Congress is that they leave too much to the Courts because they are unwilling to handle matters through legislation.

[Kazinski]

I’m not a huge fan of Roberts, but he has a higher approval rating than anyone else in the swamp:

“Supreme Court Chief Justice John Roberts received the highest approval rating among leaders from across the three branches of federal government, according to a new poll in which Roberts was the only official to gain majority support from both Democrats and Republicans.”

It’s obvious he trims and tacks at times with his image in view, but I have to admit at times having a higher approval rating than the people sniping at you and your institution can be useful.

He’s probably going to need all that reservoir of good will with some of the decisions coming down this term, but I don’t think either of the big ones will alter the overall political calculus one way or another.

[Rev. Arthur L. Kirkland]

” I don’t think either of the big ones will alter the overall political calculus one way or another ”

The culture war is not over but has been settled. The trajectory of American progress — the liberal-libertarian mainstream continuing to shape that progress against the preferences of conservatives — seems predictable for the foreseeable future.

[Grifhunter]

2022 come November just said “hold my beer”.

[Rev. Arthur L. Kirkland]

Another clinger who figures Republicans are ready, after a half-century of getting crushed in the culture war, to start turning the tide?

[Frank Drackman]

does “getting Crushed in the Culture war” for the last half-century include the 50 million+(way more + to be exact) aborted Afro-Amuricans (Just think, Reverend, how many muggings you avoided in the last half-century, thanks to 7 unelected Judges (5 appointed by Repubiclowns)
I’ve actually come around to your side, Reverend, Abortion should be Safe, Legal, and concentrated in the Blue-Voting Population….

[Jimmy the Dane]

The Left is going to regret their attacks on the courts, which they fought hard for the independence of that branch since the 1950’s. Of course, that is because they thought it was a useful public policy making tool to push their extreme agenda, but now not so much. Up until the 2000’s they were willing to deal with the occasional clawback of the immense gains made through the judiciary in the 1970’s. But now as the courts seem to be willing to overrule, overturn, and modify those decisions that have no basis in actual constitutional law, and the demographics of the electorate are favoring democrats on a national level, the script has flipped.

The danger to the left is going to be that they have pushed the envelope of their agenda passed what would have been considered extreme even a few years ago. The rights reaction is going to be a huge pushback and a final realization that they must reclaim territory that was lost and then more if they are ever going to win this generational conflict. To do that is going to require activist courts on the right and that is exactly what the left is angling to get. Except for some of the never Trumper neo-cons, most on the right simply won’t care when this happens. Whereas, probably even 10 years ago the Federalist society and their allies would have been happy to stay the line at going back to some form of constitutional originalism while maintaining some of the precedent from the Warren court. Not so much anymore.

Have fun lying in the bed you have made lefties…

[Rev. Arthur L. Kirkland]

” Have fun lying in the bed you have made lefties…”

If you mean

(1) modern America, in which liberal-libertarian preferences (reason, science, education, tolerance, modernity, inclusiveness) prevail against conservative preferences (superstition, backwardness, bigotry, dogma, insularity, pining for illusory ‘good old days’)

(2) increasing electoral advantage in a nation that becomes less White, less bigoted, less backward, less rural, and less religious every day of every week

(3) blue America, which includes the successful, modern, educated communities (rather than the half-educated, intolerant, parasitic, can’t-keep-up Republican backwaters)

(4) operation of our nation’s strongest research and teaching institutions, faculties, cultural institutions, media, and entertainments

sure, it is a lot of fun to be a winner in the culture war and a leader of American society and progress.

Carry on, clingers . . . with your paltry ankle-biting efforts, in particular.

[Jimmy the Dane]

You so sure about that there champ?

[Rev. Arthur L. Kirkland]

Great response, Jimmy.

The reality-based world of modern America mocks you and continues to reject your stale, pale, right-wing thinking.

Now try to be nicer, lest your betters stop being so gracious in triumph.

[Jason Cavanaugh]

“You hear that SCOTUS commission? The “competent” Court gets to decide whether more judges are needed, not incompetent and politicized bodies.”

According to the Constitution, you’re wrong.

Maybe you should spend less time stroking your own ego, and more time trying to understand the subject you profess, “Professor.”

You hear that, worst Volokh contributor?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The scare quotes give it away as sarcasm.

You hear that, terrible Volokh commenter?

[Jason Cavanaugh]

I’ll take opinions from the Peanut Gallery sometime in the future.

For now, you can be quiet, as your input is questionably no better than Blackman’s.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Oh man, such a clear rebuttal! O wow I have been found out!

[Kazinski]

You know who really gets to decide?

The court of public opinion, and they are firmly on Roberts side. Well them and Kyrsten Sinema and Joe Manchin.

[Rev. Arthur L. Kirkland]

“You know who really gets to decide?

The court of public opinion, ”

How does this blog attract such a concentration of low-quality comments?

[Frank Drackman]

we like your low-quality comments, Jerry.

[Cal Cetín]

“First, Roberts addressed the WSJ’s reporting on judges who have decided cases in which they, or their spouses, had a financial interest. Does Congress have any role to play in this matter? The Chief said updating conflict of interest systems “may require additional funding from Congress, but it will be money well spent.” But Congress should not take the lead.”

Don’t lecture me, Dad, just send me more money.

“Second, Roberts revisited “continuing concern over inappropriate behavior in the judicial workplace.” The Chief “appreciate[d] that Members of Congress have expressed ongoing concerns on this important matter.” But once again, the judiciary can handle this matter internally.”

With Judge Samuel “gropey” Kent, the FBI had to bring the matter before the courts. Then Congress used impeachment to purge the bench of him.

[Cal Cetín]

Taft got us the 1922 law to let the Court reject large numbers of cases. Basically, the Court needed a plumber because too many cases were clogging its pipes.

The recent reform commission (at least according to Blackman) suggests the previous reform may have gone overboard, letting the Supremes turn down cases they ought to hear. Maybe some tweaking is in order for *force* the court to hear certain important cases.

Other courts have to take the cases they’re given. Let’s have more of that at the Supremes.

[Holden C]

This Eugene Volokh supports the rights of cyberstalkers, cyberharassers, cyber criminals who use “Free Speech” as an excuse to dox, harass, stalk victims who have no way of fighting back. This Eugene Volokh has been fighting every single state law that would help protect victims of cyberstalking and doxing. He has no consideration for the disruption to the lives of the victims from disclosure of harmful, private, or other malicious content online. He has no consideration for the malice and intentionality of the criminals who hide behind VPNs and perpetuate their harassment campaigns anonymously. Everything to him is “Free Speech”, unless, of course, the victim becomes him or his family. Then I bet he will start singing to a different tune. This person, and the organization he supports (the Electronic Frontier Foundation, EFF) is indirectly responsible for the harms and pains of thousands of online harassment and stalking victims. He probably gets bribes from Google and Big Tech to prevent passing of any modern laws that would help regulate harmful content on the internet and do something to stop cyberbullying and help victims. This man has little morals.

[Holden C]

Show me one time that Eugene Volokh has ever discussed the impact to victims of cyberstalking and cyberharassment. He has never done so. Eugene Volokh thinks the right of a mentally ill sociopath to maliciously dox and harm others online is so “precious” that it’s worth sacrificing the life and future of the victims for.

Volokh’s sadistic approach to the First Amendment would encourage all types of online harassment to escalate, because cyberbullies would be emboldened and encouraged by an dangerous view that their malicious and intentional targeted harassment towards private individuals are “precious protected speech”. Not once has Volokh ever talked about the unique nature of internet communications, the ability for the internet to do massive harm to victims for an extended period of time to an extended audience, and lack of viable legal redress for victims and whether or not it is fair for them.

Guess what Volokh, the so called “free speech” rights of pervs, trolls, assholes, mentally ill psychos and stalkers do not trump the right of the victims to get legal redress and to be free from unwanted, targeted, malicious harassment. It’s quite pathetic you don’t seem to want to admit this, so busy taking money from Google behind the scenes and peddling a dangerous, infinitely expansive view of the First Amendment as to legalize basically all internet criminal conduct.

Just because a course of conduct (stalking, harassment) involves “speech” does not mean that it automatically becomes immune to all liability under a magic First Amendment shield.

[Holden C]

The USA is going down a very dangerous path right now where crimes that are being committed on emerging technologies like social media, internet, etc… are being immunized from liability simply because they involve “speech” (in the literal sense) in some ways. People are finding new and innovative ways to hurt others online in ways that would not have been thought possible, but the law refuses to adopt to new developments. The problem here is because 1. there is an age gap between lawmakers who are typically in their 50+, grew up analogue, versus younger people who live on the internet, and 2. there is a camp, lead by dishonest people like Eugene Volokh and Big Tech, that are driven by profits rather than safety, as they get paid if laws against data privacy, online harassment, cyberstalking, etc… are weak. That’s why cases of malicious online harassment continue to multiply, because society has gotten to a point where the First Amendment may need a new interpretation to account for the reality of online communications, where someone in Africa can smear you in America from the comfort of their own home, your life can be destroyed, you can be pushed to suicide, but Eugene Volokh would still think that it is the perpetrator’s “right” to destroy your life maliciously. That’s just insanely immoral, corruption, uncivil, and just pain wrong.

[Craig Johnston]

I’m guessing the bars just closed in your time zone.

[Holden C]

Eugene Volokh has been hard at work trying to knock down every single cyberharassment or cyberstalking law in every state that would give victims of these heinous online crimes some degree of recourse against their attackers. This is sickening and disgusting. Every other country, including the EU, UK, Hong Kong, New Zealand, Canada, Australia, Japan, South Korea, heck even Argentina is passing laws that balance victim privacy against Freedom of Speech, yet the USA stupidly refuses to do anything because it’s hands are tied up with “Free Speech” (basically, many idiots in the USA believe Free Speech should mean cyberharassment, cyberstalking, doxing, etc… should all be perfectly legal, even encouraged). This lack of social awareness for the dangers of online communications is absolutely sickening.

[Stephen Lathrop]

If the SCOTUS continues granting cert to < 3% of cases, two remarks may be in order:

First, the power of the Court to decide which tiny fraction of cases gets heard looms large, as an unaccustomed future influence on national jurisprudential outcomes. This does not get enough attention, possibly because that kind of influence wanes while Court political partisanship is somewhat evenly divided. But with a dominant, long-lasting partisan faction on the Court—as now looks likely for the foreseeable future—grants or denials of certiorari will become a partisan ratchet far more powerful than the nation has been accustomed to see.

Using the simple expedient of excluding certain classes of cases, a partisan Court will have power to virtually exclude selected political controversies from meaningful consideration by the political branches. One case which roadblocks a D or R political factional initiative, followed by systematic certiorari denials, could become a tool to take major controversies right out of politics, perhaps for decades.

Second, there is no sign that Chief Justice Roberts has considered implications of that sort as he deals with what up to now have been feeble initiatives from Congress. If it becomes evident that partisan division on the Court has begun to enfeeble the ability of Congress to do its own political job, the kind of insouciant response Roberts just offered will not long insulate the Court from root and branch restructuring.

[Kazinski]

“—grants or denials of certiorari will become a partisan ratchet far more powerful than the nation has been accustomed to see.”

Perhaps, but it’s pretty hard to ignore circuit splits on obvious constitutional questions forever. A case in point is the 7th circuit dragging Chicago and Illinois kicking and screaming into the shall issue camp joining 42 other states, while the 9th, 2nd, and 3rd circuits barely acknowledge a right to keep a gun locked up in your home.

In fact I’d argue the opposite conclusion in this scenario: “Using the simple expedient of excluding certain classes of cases, a partisan Court will have power to virtually exclude selected political controversies from meaningful consideration by the political branches.”

It really leaves a lot more up to congress, say if they pass a national assualt weapons ban and magazine size limits. I think Congress would be pretty happy to let the 4th and 5th circuits strike it down, but in return have it upheld and enforced in the 2nd, 3rd, and 9th. Not only would that allow enforcement in California and the NE Seaboard, it would allow an import ban nationwide and seriously disrupt interstate commerce in the weapons, and maybe open the door to banking restrictions on manufacturers and gun stores.

[Stephen Lathrop]

Kazinski, I hope you are right. But help me understand please. Imagine a durable right wing Court majority. A right-wing Congress and President pass a law. Maybe it says, abortion is illegal, nationwide. That law gets challenged and upheld by the Court. A subsequent liberal Congress gets a law passed to reverse that, at least in part. The 2nd says the new law is okay. The right-wing SCOTUS then finds that the new law is unconstitutional. No other challenges ever get cert at SCOTUS.

Just thinking institutionally, is that a realistic problem, or is there some way you can see to restore political power to the elected branches to address the abortion issue?

[Rev. Arthur L. Kirkland]

It is not a realistic problem. Better Americans would expand the Supreme Court before enabling clingers to thwart our national progress and turn back the clock to flatter ugly, obsolete conservative thinking.

The current Court is auditioning for its future as we speak.

[Frank Drackman]

didn’t realize Jerry Sandusky had computer access.

[Rev. Arthur L. Kirkland]

Most Penn State fans are rural Republicans. Could there be anything worse than being a Republican, Catholic, Penn State fan?

Loser — Loser — Loser

Time to quit, maybe even contemplate suicide.

[Kazinski]

You are going way out there on hypotheticals. Too far out to really give a meaningful answer.

But let me point out that Justice Thomas wrote a concurrence when he joined the decision upholding the federal Partial Birth Abortion Ban Act in 2007, he said that they wouldn’t strike the law based on a right to abortion but went on to say the law might not be “a permissible exercise of Congress’ power under the Commerce Clause.”

And a lot of conservatives agree with Thomas, probably including Goresuch and Kavenaugh. I don’t think the court will have an appetite for striking down a judicial power grab like Roe, then allowing a congressional power grab that’s just as problematic replace it.

[Rev. Arthur L. Kirkland]

If the silly assertion that ‘the court of public opinion decides’ were accurate, no-exceptions background checks would be long-established; assault weapons would be banned; the minimum age for firearm purchase would be 21; and registration of every privately owned gun in the United States would be required.

Gun absolutists — and the backwater shoot-’em-up culture — are destined to be among the most severe culture war casualties in modern America.

[Holden C]

The blind American obsession with equating any and all online behavior with “valuable” Free Speech needs to be reevaluated. American free speech values, which normatively laudatory, is becoming so omnipresent that obviously uncivil, predatory, harassing, harmful, and malicious online behavior is being ignored at the expense of victims who have had their lives turned upside down, all in the name of broad, pedantic, unspecific “Free Speech” rights and “right of the public”, when the public in reality could care less about the details and personal information revealed.

It’s all a ploy by Big Tech like Google to prevent or minimize legislation like privacy laws, online harassment, doxing, online stalking, etc… laws that would ratchet up Google’s compliance costs and potentially hurt their business models. Google is perhaps one of the most evil organizations in the world, and this company pays Eugene Volokh behind the scenes to peddle this view that the entire slew of malicious human behavior should be out of reach of regulation as long as it takes place online, simply because it involves “speech” or “words.”

That’s why none of Eugene Volokh’s analysis takes into account the impact to the victims of cybersmears, cyberharassment, cyberstalking, doxing, online mob threats, etc…, because neither Eugene nor Google or Big Tech care about the victims. Yet Congress is letting them get away with this by being incompetent and dithering when it comes to passing legislation.

Eugene Volokh has been hard at work trying to knock down every single cyberharassment or cyberstalking law in every state that would give victims of these heinous online crimes some degree of recourse against their attackers. This is sickening and disgusting. Every other country, including the EU, UK, Hong Kong, New Zealand, Canada, Australia, Japan, South Korea, heck even Argentina is passing laws that balance victim privacy against Freedom of Speech, yet the USA stupidly refuses to do anything because it’s hands are tied up with “Free Speech” (basically, many idiots in the USA believe Free Speech should mean cyberharassment, cyberstalking, doxing, etc… should all be perfectly legal, even encouraged). This lack of social awareness for the dangers of online communications is absolutely sickening.

[captcrisis]

Roberts cares a lot about not letting the Court be a political pawn, but he will eventually sing a different tune if Republican abuse of the Constitutional process continues. What if we keep having Democratic Presidents and Republican Senates which won’t confirm nominees? Not only will we have another eight-judge Court, as in 2016 – 2017, but we’ll then see a seven-judge Court, six judges, five . . .

[m4019597]

The court can function just fine with 3 justices, if they stop being assholes.

Right now, they look at every case like lawyer assholes, trying to get every loophole and nuance and precedent and briefs and all that bullshit.

But that’s not what the framers envisioned. At the time, justices were supposed to be simply learned men who assessed arguments and facts. Yes, this is constitutional or no, this isn’t.

What’s not constitutional was supposed to go back to the Congress and what is constitutional was supposed to be followed by the Executive. Period.

Then the Supreme Court got corrupted by asshole lawyers. It decided it could strike down parts of laws and create interpretations that created rights and defined this and that. It strayed from what it was supposed to be.

If the SC went back to doing what it should be, a team of 3 justices could churn out far more decisions in a fraction of the time as the current crop of asshole lawyers.

They don’t need 9 lawyers. They need just a handful of decent men.

[benji]

Alan Albright has been admonished multiple times by the Federal Circuit for not transferring cases so it seems that the Senator’s letter specifically following up on that isn’t really out of order. Especially since they merely asked Roberts what they could be doing regarding it. His reply of “it’s your fault, also wait for the courts” isn’t quite the bold answer you think it is, Josh.

[benji]

Also 25% isn’t too bad considering the Eastern District of Texas got up to like 45% of the entire country’s cases before the courts did anything about it.

[Rev. Arthur L. Kirkland]

More Albright

[Stephen Lathrop]

You hear that SCOTUS commission? The “competent” Court gets to decide whether more judges are needed, not incompetent and politicized bodies.

Whatever originalism may be, that is not it. Unlike so many today, the founders, pretty much universally, expected that politics would be the tool by which the nation would manage its governmental affairs. Come to think of it, the founders also did not define Congress as incompetent.