The New York Times surveyed nearly four-hundred federal judges, asking them about their views of the Supreme Court's emergency docket. I agree with co-blogger Jon Adler that the sample was skewed, and the small number of negative responses likely came from those judges who are "most unhappy with or critical of the Supreme Court." The biggest takeaway is that most judges ignored the survey, as they should have.

Still, I think the limited results reflects a brewing judicial crisis. After a years-long effort to delegitimize the Supreme Court, members of the Judiciary are now voicing these same concerns in off-the-record interviews, and from the bench.

Some of these judges may have simply lost their way, such as Judge Young in Boston. But other judges such as Judge Burroughs are speaking on these issues publicly.

The Times offered this smattering of quotes:

In interviews, federal judges called the Supreme Court's emergency orders "mystical," "overly blunt," "incredibly demoralizing and troubling" and "a slap in the face to the district courts." One judge compared their district's current relationship with the Supreme Court to "a war zone." Another said the courts were in the midst of a "judicial crisis."

I am almost certain the "war zone" is referring to the District of Massachusetts, which has gotten reversed many times.

Let's take a step back. The federal judiciary has a fairly well-defined hierarchy. Each federal district court has a Chief Judge, and each federal circuit court has a Chief Judge. If a member of the judiciary has a grievance with the Supreme Court, he can share that message with his Chief Judge. And, presumably, the Chief Judge can raise the message up the flagpole to the Judicial Conference. And who presides over the Judicial Conference? The Chief Justice of the United States.

We know from a leak that Chief Judge Boasberg raised concerns from other judges to Chief Justice Roberts. And what was Roberts's response? He downplayed the concerns, and said that Trump thanked him at the State of the Union for administering the oath.

If Chief Justice Roberts has adequately addressed the concerns of lower-court judges, I doubt those judges would feel compelled to talk to the press. I doubt the Chief is doing enough privately to assuage concerns. I have also heard from many judges over the years that the Chief runs the Judicial Conference with an iron fist. There is a discussion list, and any item not on the list cannot be discussed. There is no open-ended discussion. Indeed, the ill-fated judicial reassignment policy was not subject to any debate. We saw a glimpse of this parliamentary stranglehold in a piece about Roberts as chancellor of the Smithsonian. Perhaps in normal times, these Roberts Rules of Order make for an efficient process. But in times of crisis, the Judicial Conference must be a deliberative body that reflects the views of the entire judiciary, and not the agenda of the Chief Justice.

The above speaks to what the Chief has done in private. But I can say with a high degree of confidence that the Chief is not doing enough publicly to assuage concerns. Roberts maintains the same playbook of issuing short, summary orders that fail to adequately explain the Court's reasoning. Perhaps Roberts has the same view as Justice Barrett, and is afraid of "locking in" the Court on the merits.

Frankly, at this stage, we need to stop talking about "locking in." The emergency docket ruling is the whole ballgame. If the Court allows the administration to block funding, no one cares if the money is ultimately paid out in three years. NGOs and other non-profits will go out of business while waiting for the litigation to percolate. If the Court allows the administration to deport certain aliens, those individuals will be sent to countries that have no connection with. No one cares if the Court ultimately rules those people can be readmitted in a few years. If thousands of civil servants are laid off, they cannot sit idly for years waiting for claims to proceed. They will need to find other employment. And so on. This concern about "locking in" is so myopic at the present moment that Justice Barrett really should stop repeating the mantra. No one finds it persuasive.

Still, to Barrett's credit, she at least says something. Then again, she has a book to sell. Roberts says nothing at all. He just wants to pretend it is still 2006 and he has the opportunity to unite the Court with fewer 5-4 decisions. That ship sailed around the time he transmogrified a tax into a penalty.

The federal judiciary has needed new leadership for sometime, but the defection in the ranks is making this need more palpable.

Let me use a sports example. I went to Penn State, and have long been a Nittany Lions fan. At the start of this season, Penn State was ranked as high as #2 in the nation. Expectations were high for a national championship. But after three shaky victories, Penn State lost three games in a row, including two defeats to very weak teams. Penn State has lots of talent, but is badly underperforming. Fans are now chanting that James Franklin, the longtime coach, should be fired. How did Franklin respond? He took blame: "It's 100% on me." Of course, Franklin is not playing offense or defense, but the buck stops with him. Thankfully, Franklin does not have life tenure, and he can be removed. [Update: Shortly after I wrote this post, Penn State fired Coach Franklin.]

The buck stops with the Chief Justice. He can only cast one vote as a Justice, but as the swing vote, he will usually decide the fate of the Court. He is in the majority more than 95% of the time. And in an administrative capacity, Roberts has near-complete power over the structure of the judicial apparatus. If Roberts is unable to adequately address the concerns of the judiciary in private conference or through his public decisions, he should admit the problem is of his own making. These lower court judges are not blaming Trump or Stephen Miller or Pam Bondi. They are looking right at the Supreme Court. As a leader, Roberts should hold a summit with every judge who has been summarily reversed on the emergency docket to hear their concerns. There will be no discussion list. But I doubt he would brook that breach of decorum.

I have written that Justice Kavanaugh may be the right person for the moment. To his credit, he is trying to explain why the Court is doing what it is doing on the emergency docket. And he favors granting cert before judgment, followed by expedited oral argument. I am sure there are and will be things that I disagree with Justice Kavanaugh on. But unless the federal judiciary can resume regular order, the path forward is bleak.

From Judge Jane Triche Milazzo's decision yesterday in Mann v. Quraan (E.D. La.); recall that the factual assertions are just those alleged in the Complaint—there hasn't yet been factfinding as to whose side of the factual story is correct:

Plaintiff Dylan Mann, an undergraduate student at Tulane University, alleges that on October 26, 2023, he participated in a demonstration in support of Israel in uptown New Orleans in response to a pre-planned anti-Israel protest. He alleges that the anti-Israel protest was organized by non-Tulane students and specifically targeted Tulane due to the significant number of Jewish students enrolled there.

Plaintiff alleges that during the protest Defendant Abraham Quraan drove back and forth in his vehicle between the two protests in order to cause a disturbance or provoke the Tulane students. At some point, Defendant Quraan exited his vehicle, violently assaulted Plaintiff, and ripped an Israeli flag off of Plaintiff's body. Defendant Alaa Salam allegedly joined in the attack and struck Plaintiff with a bullhorn. Plaintiff alleges that the Defendants verbally expressed hate for Jewish people during the incident. After assaulting Plaintiff, Defendants allegedly continued to aggressively approach other Tulane students and Quraan removed his belt with the intent to use it as a weapon.

Plaintiff also alleges that, after the incident, Defendants utilized social media to "espouse implied threats of violence" toward Jewish people and Plaintiff personally….

Plaintiff brings an act of terror claim pursuant to Louisiana Civil Code article 2315.9, which provides that:

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Lower courts are divided on the Fourth Amendment implications of a drug detection dog that jumps into a car on its own and then alerts to illegal drugs.  I thought I would offer some thoughts on the problem. In my view, unprompted entry should be deemed a Fourth Amendment search. This post explains why.

First, some context.  It's settled law that use of the drug sniffing dog to sniff in the area outside a car is not a search.  See Illinois v. Caballes, 543 U.S. 405 (2005). It's equally clear that a search of a car occurs if the officer directs a drug detection dog to physically enter the car, the dog enters, and then the dog alerts. What courts struggle with is how to treat the dog that jumps into the car unprompted.  If the officer wants the dog to stay out of the car, and it's the dog's own idea to enter the car, do you say that the dog's entry is a Fourth Amendment search attributable to the government?  Or is the dog sort of its own independent actor whose instinctive conduct is not attributable to the government, and therefore its subsequent alert is not a search? See, e.g., United States v. Sharp, 689 F.3d 616(6th Cir. 2012) (holding the latter).

It seems to me that this is a question that should have a straightforward answer: An unprompted and instinctive entry by the dog, followed by an alert, is a government search.  The drug detection dog is a technological tool that the government trains and brings to the scene to detect narcotics.  Like most tools, it is imperfect. It doesn't always go where the government wants it to go. But it makes no sense to say that the dog loses its government character or is somehow not engaged in government action when, being led around a car, it jumps into it.  If the dog enters unprompted and alerts inside the car, the government certainly uses that alert for investigatory purposes just like it would if the officer had directed the dog to enter the car.  Whether the officer prompted the dog to enter shouldn't matter.

The key precedent that comes to mind is United States v. Karo, 468 U.S. 705 (1984). In Karo, the government secretly put a radio beeper in a can of chemicals sold to a narcotics ring, and they watched to find out where the bad guys carried out their crime by watching where the can went using the beeper. As long as the can stayed on public roads, there was no search under a prior case, United States v. Knotts, 460 U. S. 276 (1983). But what made Karo different is that someone—presumably one of the bad guys—brought the can into a house. The beeper thus registered its location from inside the house instead of on a public road.  Karo deemed that alert from inside the house a search for the simple reason that the beeper was transmitting information from inside the home.

But wait, the government protested in Karo: They weren't in control of where the beeper went. The bad guys had brought the beeper into the house, not the government, so it couldn't predict when a search would occur and a warrant would be needed; "they have no way of knowing in advance," the government noted, "whether the beeper will be transmitting its signals from inside private premises." The Supreme Court was unmoved by this argument, basically telling the government that the unpredictability of the beeper's location was its own problem to deal with: "The argument that a warrant requirement would oblige the Government to obtain warrants in a large number of cases is hardly a compelling argument against the requirement."

It seems to me that drug-sniffing dogs in these "instinctive act" cases are a lot like the radio beeper in Karo. In both situations, the government has introduced surveillance tools to obtain information not otherwise known using normal human senses. As long as the surveillance tools stay outside the protected area, their use is not a search under Caballes and Knotts.  In both situations, that Fourth Amendment rule gives agents a reason to want the tools to go near places but not go inside them.  But in both situations, agents don't have perfect control, and they run the risk that the devices will go in the protected areas of the homes (in Karo) or car (in the dog cases).

Under Karo, if a suspect brings the the beeper into a home, the Fourth Amendment protection changes.  Because the beeper is now in the house, a search occurs. I don't know why there would be a different result using the technological tool of a dog as compared to a technological tool of a beeper, especially given that the government has so much more control over where the dog goes as compared to where the beeper went in Karo.