The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Deep in the Heart of Amarillo
Back in the day, most local newspapers hired reporters who covered the dealings in local courts. Alas, with budget cuts, those positions have gone by the wayside. It is very rare indeed for the national media to care at all what happens in small-town courts. Of course, the single-judge divisions have recently become topics of national concern. And the judge du jour is Matthew Kacsmaryk of the Northern District of Texas. The Washington Post flew an entire team of reporters to Amarillo, and also interviewed nearly two dozen people (present company included). On balance, I thought the profile was fair, and conveyed an accurate image of Judge Kacsmaryk.
However, not everyone holds Judge Kacsmaryk in such high esteem. In Texas legal circles, it is well known that the never-ending stream of commentary about Judge Kacsmaryk has triggered a never-ending stream of death threats—and not just against the judge, but also threats against the judge's staff. Every time Ian Millhiser or Mark Joseph Stern or Ron Wyden invokes Judge Kacsmaryk's name, the switchboard lights up with threats. Perry Bacon of the Washington Post wrote that any threats of violence go with the job. I think we should not forget that someone nearly assassinated Justice Kavanaugh to prevent his vote in Dobbs.
At present, a motion for a preliminary injunction is pending before Judge Kacsmaryk. There is no requirement for a court to hold oral argument. Judges routinely decide motions on the papers. Courts can also submit interrogatories to the parties to resolve any questions. But Judge Kacsmaryk decided to schedule oral argument on the motion. He could have simply set the matter for argument on Zoom. Many judges have now moved almost entirely to Zoom oral argument. I do not think any of these judges can credibly cite COVID as a justification for Zoom arguments. The primary rationale, I suspect, is convenience. Zoom can be easier for the judge, court staff, and the parties. But not all judges favor Zoom hearings. There is much lost when everyone is reduced to a small square. So it seems that Judge Kacsmaryk thought it beneficial to hold the PI hearing in his Amarillo courthouse.
What happened next is the story of national headlines. Today the Washington Post published an article titled, "In an unusual move, judge delays public notice of abortion-pill hearing." Here is a snippet:
The Texas judge who could undo government approval of a key abortion drug has scheduled the first hearing in the case for Wednesday but took unusual steps to keep it from being publicized, according to people familiar with the plans.
The hearing will be an opportunity for lawyers for the Justice Department, the company that makes the drug and the conservative group that is challenging it to argue their positions before U.S. District Court Judge Matthew Kacsmaryk. After they do, the judge could rule at any time, potentially upending access to medication abortions across the country.
Kacsmaryk held a conference call with attorneys Friday to schedule Wednesday's hearing in Amarillo, Texas, said multiple people familiar with the call, who spoke on the condition of anonymity because they were not authorized to discuss it. Normally, such a hearing would be quickly placed on the public court docket, where anyone tracking the case online could see it. But Kacsmaryk said he would delay putting the hearing on the docket until late Tuesday to try to minimize disruptions and possible protests, and asked the lawyers on the call not to share information about it before then, the people said.
Public access to federal court proceedings is a key principle of the American judicial system, and Kacsmaryk's apparent delay in placing the hearing on the docket is highly unusual. The judge and his staff did not respond to emails requesting comment on Saturday evening. . . .
Attorneys on the planning call with Kacsmaryk on Friday included representatives from the Alliance Defending Freedom, which filed the lawsuit; the Justice Department, which represents the FDA; and the drug company that makes mifepristone. Representatives for each declined to comment or did not immediately respond to requests for comment on Saturday evening.
Kacsmaryk told the attorneys that he also wanted to delay publicizing the hearing because courthouse members have received threats in the wake of the lawsuit, according to the people familiar with the call. Several people close to Kacsmaryk say the judge and his family have faced security threats since he ascended to the federal bench in 2019, and those threats have intensified ahead of the abortion pill ruling. . . .
By waiting to publicize the time of the hearing, Kacsmaryk and his staff could make it difficult for the public, the media and others to travel to the courthouse in Amarillo, Tex. The rural, deeply conservative city has few direct flights except from Dallas or San Antonio and is at least a four-hour drive from any of the state's major, heavily-Democratic cities. Still, over 150 abortion rights advocates gathered there on a Saturday in mid-February to voice their support for abortion pills.
I think there are three distinct issues to consider here. First, was it appropriate for Judge Kacsmaryk to delay public notice about the hearing? Second, was it appropriate for someone to reveal that information to the Washington Post? Third, if Judge Kacsmaryk's decision was appropriate, but the revealing of the information was not appropriate, what are the potential repercussions?
1
Our system of laws has long disfavored secret hearings. The experiences from the clandestine Star Chamber inspired the Sixth Amendment, which guarantees a right to a "speedy and public trial." The courts have long held that the public has a presumptive right to attend criminal hearings. And there is similar caselaw concerning civil proceedings. None of those precedents are directly implicated here. Judge Kacsmaryk fully intended to hold his hearing in public. And he planned to provide notice for the hearing the night before.
The question is whether the decision to delay posting public notice about the hearing itself was not appropriate. The Post only called the decision "unusual." No expert is quoted to explain why the step was "unusual". (No, I don't care what the "experts" on Twitter have said.)
I've done some research today, and I cannot find anything on point. There are cases concerning gag orders, in which a judge orders the parties not to talk about a proceeding. And there are other cases where proceedings are held "under seal" for specific reasons. Again, none of these precedents are directly relevant, as the ultimate proceeding would have been held in open court. The only issue concerns the delay of noticing the hearing. I'm not surprised this issue has not come up. Indeed, before electronic filing systems, it would have been impossible to even make such a claim as dockets were not publicly shared.
Given the lack of precedent, I'll try to reason from first principles. Judges generally have very broad control over their dockets. It is not unheard of for a motion to sit pending for months, and then the court issues an order for the parties to attend a status conference on very short notice. During the 3D-printed gun litigation, my client was sued on a Sunday afternoon by the Pennsylvania Attorney General. The district court scheduled a TRO hearing for about two hours later. I did the entire proceeding by phone from the United lounge at LaGuardia airport, with virtually no preparation time. The motion was denied about ten-minutes before boarding closed. And this was the old lounge outside security. I thankfully made my flights. When the interest of justice demands it, courts can move quickly.
Of course, the hearing in Amarillo was not scheduled hastily due to short notice. But the interest of justice may justify the decision in a different way: specifically, where the safety and security of the court are in jeopardy, a slight delay in publicizing the hearing can be warranted.
It is well known that there is limited security personnel at this small federal courthouse. I clerked in the single-judge division in Johnstown, Pennsylvania. There were three officers stationed near the front door. They were retired law enforcement who diligently performed their duties. But if they were swarmed by hundreds of protestors, they would not have been able to resist. If demonstators engaged in serial disruptions in the courtroom, similar to the Kavanaugh hearings, they would not have been able to remove everyone. The Supreme Court was able to erect barricades hours before the Dobbs leak was announced. The Amarillo court does not have similar resources. The ire against Judge Kacsmaryk rivals that of the hatred against Justice Kavanaugh. We cannot disregard that threat.
What exactly is the harm from the delay? I am not troubled by the fact that the press would have less time to plan a leisurely connection through DFW. (I've gotten stuck at DFW more times than I can count.) If the notification hit ECF on Tuesday evening, any bureau reporter in Dallas could have driven there by 9 a.m. Or Jeff Bezos could have chartered a private jet from Washington, D.C. to Amarillo. Traveling through the night is not pleasant, for sure, but when duty calls, it can be done.
The greater harm is that various groups would not have sufficient time to organize demonstrations outside the courthouse—and inside the courthouse (think of Code Pink members who disrupted the Kavanaugh hearings). Again, there is a right to public access to hearings. I am doubtful there is any similar right to allow community organizers similar time to arrange busses to Amarillo.
Was Kacsmaryk's decision unusual? Sure. But the situation here is quite unusual. I can't think of any other district court proceeding that has garnered so much attention. The national focus on this proceeding has put the safety and security of court staff at risk. A brief delay in announcing the hearing would not have prejudiced any of the parties. At most, a few national reporters would have had to rely on local bureau coverage. Democracy would not die in the darkness.
2
I'll assume going forward that Judge Kacsmaryk acted appropriately in delaying the posting the notice of the hearing. Now, I want to turn to the fact that this information was revealed to the press.
The Post reports that Judge Kacsmaryk "asked the lawyers on the call not to share information about it before then." We do not have a transcript of that call, so we do not know the exact words Judge Kacsmaryk used. Perhaps there was a formal oral "order." If so, the attorneys potentially violated an order. I will discuss in the next section the consequences of such a breach.
Or maybe Judge Kacsmaryk "asked" the lawyers not to reveal the information. I put the word "asked" in quotes, because usually when a judge "asks" you to do something, he is not asking you in the colloquial sense of the word. It is a polite command. I welcome any of the practicing lawyers who read this blog to weigh in: if a judge asked you not to disclose some information for a few days to protect court security, would you treat that request as optional?
Now, it is possible that some of the lawyers on the call thought that Judge Kacsmaryk was wrong to make such a request. The lawyer could have sought clarification, and asked if this was an order or a request. During the 3D-printed gun litigation I mentioned above, the court's oral statement from the bench was not clear, so I asked point blank if the injunction applied to my client. The answer was no, and I was glad I clarified that point. If Judge Kacsmaryk said it was an order, then that lawyer could have sought mandamus from the Fifth Circuit. Of course, nothing of the sort happened here. In my estimation, lawyers for Alliance Defending Freedom, the Department of Justice, and Hogan Lovells (which represents the drug company), understood exactly what Judge Kacsmaryk meant. If they thought the request was "unusual," they kept their mouths shut.
3
How did the information get from the lawyers on the call to the Washington Post? I imagine the information could have moved in one of several ways. First, an attorney who was on the call could have personally revealed the information to the Post. And by "information," I am including the specific detail that Judge Kacsmaryk wanted to delay publishing the notice to protect court security—not just the fact that a hearing would occur on Wednesday. Second, an attorney who was on the call could have told one of her colleagues at the firm/DOJ the information, and the colleague revealed that information to the press. Third, someone from the firm/DOJ could have told the information to a friend or family member, who in turn revealed the information to the press. There are probably other ways. In all instances, the judge's admonition/order to keep the information private was not adhered to.
Here I will assume that Judge Kacsmaryk's order was appropriate, and that revealing the information was a violation of that order. What, then, is the next step? Of course, the court can ignore the issue. I worry about this approach. There may be parallels between this reveal to the Washington Post and the Dobbs leak. People may no longer treat court confidentiality as worth protecting when the cause is sufficiently justified. This reveal to the Post may have been innocuous, and several layers removed from actual counsel. Or, it could have been a deliberate attempt to undermine the court's decision. Or someone may have engaged in civil disobedience, in response to what they thought was Judge Kacsmaryk's improper order.
The court could let the matter go for now, at least. There is a huge hearing coming up, and the court's attention is better served elsewhere. But, sooner or later, action can be taken. Specifically, the court could ask the parties on the call to certify whether they, or anyone at their firm/DOJ, revealed this information to the press, in violation of the court's order. (Again, I am assuming there was in fact an order—the transcript should shed light on this question.) This is the sort of action that the Supreme Court took to track down the leak (unsuccessfully). The lawyers may come back and say there was a communication error, and they regret this error. But this sort or order would put all counsel on notice about this practice. Leaking confidential court information cannot become the new normal after Dobbs.
Update: The New York Times describes the judge's request for secrecy as a "courtesy."
In asking the lawyers to keep quiet about the hearing, the judge did not issue a gag order, which would bar the participants on the call from sharing the information. Rather, he asked them to keep the information secret "as a courtesy."
I will wait to see the transcript.
