The Volokh Conspiracy

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When SCOTUS Amends The Question Presented

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On Friday, December 14, the Supreme Court granted cert in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission. That petition raised two questions:

1. Does a state violate the First Amendment's Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state's criteria for religious behavior?

2. In addressing federal constitutional challenges, may state courts require proof of unconstitutionality "beyond a reasonable doubt?"

Today, the Court issued a subsequent order that amended the grant:

The order granting the petition for a writ of certiorari is amended as follows: The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.

This sort of amendment is not common, but it does happen. My quick research found several such orders in recent years. And in each case, the Court limited the questions presented, or rewrote the QP altogether:

  • Upon consideration of the motion to modify or amend the question presented, the question presented in these cases is amended as follows: Whether the State of Alabama's 2021 redistricting plan for its seven seats in the United States House of Representatives violated section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Merrill v. Caster, 142 S. Ct. 1357 (2022).
  • The order granting the petition for writ of certiorari is amended as follows: Petition for writ of certiorari is granted limited to Question 1 presented by the petition. Thacker v. Tennessee Valley Auth., 585 U.S. 1058 (2018).
  • The order noting probable jurisdiction is amended as follows: In this case probable jurisdiction is noted limited to Questions 1 and 2 presented by the statement as to jurisdiction. Harris v. Arizona Indep. Redistricting Comm'n, 576 U.S. 1083 (2015).
  • The order entered September 25, 2001, is amended as follows: "Motion for leave to proceed in forma pauperis granted. Petition for writ of certiorari granted limited to the following question: Whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment?" Atkins v. Virginia, 534 U.S. 809 (2001).
  • The order of December 14, 1998, granting the petition for a writ of certiorari is amended as follows: "The petition for a writ of certiorari is granted limited to Question 1 presented by the petition." Olmstead v. L.C., 525 U.S. 1062(1998).
  • The order of December 14, 1998, granting the petition for a writ of certiorari is amended as follows: "The petition for a writ of certiorari is granted limited to Question 1 presented by the petition." Olmstead v. L.C., 525 U.S. 1062, 119 S. Ct. 633, 142 L. Ed. 2d 571 (1998).
  • The order granting the petition for writ of certiorari is amended as follows: The petition for writ of certiorari is granted limited to the following question:
    Is interest earned on client trust funds held by lawyers in IOLTA accounts a property interest of the client or lawyer, cognizable under the Fifth Amendment of the United States Constitution, despite the fundamental precept of IOLTA that such funds, absent the IOLTA program, could earn interest for the client of lawyer Phillips v. Washington Legal Found., 521 U.S. 1117 (1997).

I found one order in which Justices Blackmun and Stevens dissented from amending the QP:

  • The order of December 16, 1991, granting the petition for a writ of certiorari, is amended as follows: The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are requested to brief and argue the following question: In determining whether to grant a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, should a federal court give deference to the state court's application of law to the specific facts of the petitioner's case or should it review the state court's determination de novo ? Justice BLACKMUN and Justice STEVENS dissent. Wright v. West, 502 U.S. 1021 (1991).

Politics

$25K Damages for Statements Alleging Woman's Fiancé Said Her "Vagina Stinks"

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From Ihim v. Magambo, decided Friday by the Appellate Court of Maryland (opinion by Judge Dan Friedman, joined by Judges Stephen Kehoe and J. Frederick Sharer:

In May 2021, an anonymous user on Instagram sent a direct message to Achilihu suggesting that her fiancé, Magambo, had commented on her body odor. Several days later, … Chukwurah, a friend of both Achilihu and Ihim, told Achilihu that Ihim had made two remarks about Achilihu's body odor—that (1) "… Achilihu's vagina stinks" and that (2) "… Magambo told me that … Achilihu's vagina stinks." … Achilihu shared these statements with Magambo.

Chukwurah sent another message to Achilihu in June. This time, Chukwurah said she was told by Ihim that Ihim had screenshots confirming that Magambo made the second statement about Achilihu's body odor. Achilihu and Magambo discovered one final anonymous online post about a year later. The user, this time posting on the gossip website Lipstick Alley, also alleged that Magambo had criticized Achilihu's body odor.

Magambo and Achilihu sued Ihim for, in relevant part, defamation and intrusion upon seclusion; a judge awarded Achilihu $10K actual damages + $5K punitives, and Magambo received $5K actual damages + $5 punitives. The appellate court concluded that the statements tended to expose someone to sufficient opprobrium, a necessary element of a defamation claim:

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Judicial Misconduct Complaint Against Judge Vaden For Columbia Boycott Referred to Seventh Circuit's Judicial Council

The Fifth and Eleventh Circuits already dismissed similar complaints, but the Chief Judge of the Court of International Trade asked the Chief Justice to refer it to another circuit, and Roberts did so.

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It is all too common for critics to demand an "enforceable" ethics code against the Supreme Court justices. These charges, however, fail to recognize how the complaint system could be weaponized. For evidence of this risk, I would point to ongoing proceedings concerning Judge Stephen Vaden of the Court of International Trade.

Judge Vaden was one of thirteen judges who joined the boycott of Columbia Law School. (I interviewed Judge Matt Solomson of the Court of Federal Claims about the boycott.) Shortly after the boycott was announced, a judicial misconduct complaint was filed against Judge Vaden.

Judge Vaden was not alone. Similar complaints were filed against Judges in the Fifth Circuit, the Eleventh Circuit, and in the Court of Federal Claims. As best as I can tell, each of those complaints was dismissed within the circuit. On June 18, 2024, Chief Judge William Pryor of the Eleventh Circuit dismissed the complaint, and the Judicial Council of the Eleventh Judicial Circuit affirmed. On June 24, Chief Judge Priscilla Richman of the Fifth Circuit dismissed the complaint, and the Appellate Review Panel of the Judicial Council for the Fifth Circuit affirmed. And on October 1, 2024, Chief Judge Elaine D. Kaplan of the Court of Federal Claims dismissed the complaint.

Each of these complaints was dismissed, with detailed opinions explaining why. Yet the complaint against Judge Vaden continues. Why?

Let me take a step back and tell you what is public information, and what is not public record. The judicial misconduct process is byzantine. Generally, the proceedings are entirely confidential. Moreover, even if the subject of the complaint waives confidentiality, the proceedings will still remain confidential.

These requirements are spelled out in 28 U.S.C. § 360(a):

(a)Confidentiality of Proceedings.—Except as provided in section 355, all papers, documents, and records of proceedings related to investigations conducted under this chapter shall be confidential and shall not be disclosed by any person in any proceeding except to the extent that—
(1)the judicial council of the circuit in its discretion releases a copy of a report of a special committee under section 353(c) to the complainant whose complaint initiated the investigation by that special committee and to the judge whose conduct is the subject of the complaint;
(2)the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of Representatives by resolution, releases any such material which is believed necessary to an impeachment investigation or trial of a judge under article I of the Constitution; or
(3)such disclosure is authorized in writing by the judge who is the subject of the complaint and by the chief judge of the circuit, the Chief Justice, or the chairman of the standing committee established under section 331.

This rule is spelled out with more specificity in Rule 23(b)(7) of the Rules for Judicial Conduct and Judicial Disability Proceedings:

Subject Judge's Consent. If both the subject judge and the chief judge consent in writing, any materials from the files may be disclosed to any person. In any such disclosure, the chief judge may require that the identity of the complainant, or of witnesses in an investigation conducted under these Rules, not be revealed.

In short, information about the complaint can only be made public if both the subject of the complaint, and the reviewing court approves it. How many people clamoring for an "enforceable" ethics code against the Supreme Court were even aware of these statutes?

With that background, I can point you to a statement posted on the First Liberty web site (for purposes of full disclosure, I've worked with First Liberty on many cases and projects over the years):

Judge Stephen Vaden is a judge on the US Court of International Trade. He was appointed to the bench in 2020 by President Donald Trump.

On May 6, 2024, thirteen federal judges, including Judge Vaden, sent a letter to Columbia University condemning the repeated instances of antisemitism on the campus after Hamas' October 7 attack on Israel.

An inmate convicted of terrorism and vandalism offenses filed a judicial misconduct complaint against Judge Vaden for signing the letter. The misconduct complaint is currently pending before the Seventh Circuit's Judicial Council.

The Chief Judges of the Court of Federal Claims, and United States Courts of Appeals for the Fifth and Eleventh Circuits, dismissed similar complaints about the letter. Those dismissals have all been affirmed by the relevant Judicial Councils.

The inmate has no connection to Columbia University, any law school, Judge Vaden, or any case that could come before Judge Vaden.

First Liberty, along with Lisa Blatt from Williams & Connolly LLP, represent Judge Vaden.

Again, rules of confidentiality constrain what I can write here. So let's play connect the dots. How can a complaint get from the Court of International Trade to the Seventh Circuit Judicial Council? Rule 26 lays out the process:

In exceptional circumstances, a chief judge or a judicial council may ask the Chief Justice to transfer a proceeding based on a complaint identified under Rule 5 or filed under Rule 6 to the judicial council of another circuit. The request for a transfer may be made at any stage of the proceeding before a reference to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse the request or select the transferee judicial council, which may then exercise the powers of a judicial council under these Rules.

So two things had to happen here. First, the Chief Judge of the Court of International Trade, Mark Barnett, determined there were "exceptional circumstances" to ask Chief Justice John Roberts to transfer the complaint to another circuit. And second, Chief Justice Roberts had to agree that such a transfer was warranted.

Now remember, similar complaints were already dismissed by three other chief judges, who saw no need to refer the case to other circuits. Why did Judge Barnett decide to transfer the case? I can't tell you. That information is confidential. And I think it is safe to say that Judge Vaden has not withheld confidentiality. The fact that he authorized his counsel to make the case public should support that conclusion. So it is the Chief Judge of the Seventh Circuit and/or Chief Justice Roberts, who is keeping this case on the down-low.

Some more information may be helpful. The Court of International Trade is an Article III court. Judges are nominated by the President, are confirmed by the Senate, and serve during "good behavior." But 28 U.S.C. § 251 mandates the political affiliation of federal judges:

The President shall appoint, by and with the advice and consent of the Senate, nine judges who shall constitute a court of record to be known as the United States Court of International Trade. Not more than five of such judges shall be from the same political party. The court is a court established under article III of the Constitution of the United States.

In general, there may not be Obama or Trump judges. But Judge Mark Barnett, by statute, was an Obama judge. And Judge Stephen Vaden, by statute, was a Trump judge. (I tend to think this statute is an unconstitutional constraint on the President's appointing power--the Senate can just withhold consent for a judge of the wrong party--but that is a matter for another day.) Chief Justice Roberts was certainly aware of this fact. And he was aware of prior dismissal orders by the Fifth and Eleventh Circuits. And, Chief Justice Roberts was under no obligation to transfer the complaint. You may recall that Roberts's rejected the transfer request from Chief Judge Srinivasan regarding Judge Griffith. Yet, Roberts let this case go forward here. Roberts could have transferred the case to the Fifth or Eleventh Circuits, which already resolved these issues. But he picked the Seventh Circuit.

What exactly are the proceedings before the Seventh Circuit? Confidential. I hope Judge Vaden is relieved of this complaint as soon as practicable. And Chief Judge Barnett of the Court of International Trade, and Chief Justice Roberts, should think very carefully of why this case is any different than the prior cases from Texas and Georgia.

You may not care very much about this dispute, or the Court of International Trade. But this Court will have jurisdiction over Trump trade-related cases, including tariffs and customs. (See 28 U.S.C. § 1581). No other court in the country can hear challenges to virtually any tariff decision that Trump will make. This court will be very significant.

Plus, the Court of International Trade does not use random assignments. Instead the Chief Judge assigns specific judges to specific panels. 28 U.S.C. § 253 provides:

The chief judge, under rules of the court, may designate any judge or judges of the court to try any case and, when the circumstances so warrant, reassign the case to another judge or judges.

And Rule 77(e) of the Court's rules provide, in part:

(e) Assignment and Reassignment of Cases.

(1) Assignment to Single Judge. All cases will be assigned by the chief judge to a single judge, except as prescribed in paragraph (2) of this subdivision (e).

(2) Assignment to Three-Judge Panel. A case may be assigned by the chief judge to a three-judge panel either on motion, or on the chief judge's own initiative, when the chief judge finds that the case raises an issue of the constitutionality of a federal statute, a proclamation of the President, or an Executive order; or has broad or significant implications in the administration or interpretation of the law.

(3) Time of Assignment. Cases are assigned by the chief judge at any time on the chief judge's own initiative or on motion for good cause shown.

This assignment makes Amarillo and Fort Worth seem like no problem at all.

It would be worth studying how members on the evenly-divided court are assigned to high-profile cases. We will be hearing a lot more about Judge Barnett over the next four years. For all the complaint about single judge divisions, more attention should be focused on the Court of International Trade.

"Brazenly Partisan" Judge Wynn Withdraws Senior Status Because Trump

Will Judge Stranch be the next "Obama Judge" to show her true blue colors?

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During the last four years, much attention has focused on the Fifth Circuit. But during the first Trump Administration, the Fourth Circuit was the locus of the legal resistance. This court issued landmark rulings against Trump on the Emoluments Clauses, the Travel Ban, and many other policies. During that time, one judge in particular caught my attention time and again: Judge James A. Wynn, an Obama nominee in North Carolina. Consistently, and reliably, he ruled against Trump and other conservative litigants. Yet, as an Article III judge, he had least had the patina of neutrality--that he wasn't on one team or the other, but merely called each case as he saw them. Balls and strikes, as they say.

My colleague Seth Barrett Tillman highlighted a passage from Judge Wynn's concurrence in the Emoluments Clauses en banc decision:

Without a doubt, a lawsuit brought by the State of Maryland and the District of Columbia against the President of the United States catches attention outside the walls of the courthouse. How then should the Court avoid the appearance of partiality when there are eyes upon it? By applying the law and abstaining from grandiose screeds about partisan motives. Or, put another way—by doing its job. And that is exactly what the excellent majority opinion does.

But to the contrary, our dissenting colleague insinuates that "something other than law [is] afoot" here. First dissent at 308–09 (Wilkinson, J.).

With Judge Wynn, was something "other than law afoot"?

In December 2017, I wrote a post about Wynn's questions during the travel ban en banc oral argument:

During the en banc proceeding in Richmond on Friday, which I attended, Judge James A. Wynn Jr. asked Department of Justice lawyer Hashim Mooppan about the relevance of the president's inflammatory tweets to the Establishment Clause analysis. (The exchange begins at 24:20.) "What do we do with that," he asked referring to the tweets. "Do we just ignore reality and look at the legality to determine how to handle this case?" Though the framing of his question was somewhat unclear, the premise was pellucid: What should a judge do if the law cuts one way, but reality cuts the other?

With Judge Wynn, what happens if the law cuts one way but reality cuts another? Which path does he follow?

I think that final sentence is a perfect segue to the news of the day. In January 2024, Judge Wynn announced that he would take senior status upon the confirmation of his successor. President Biden nominated Ryan Park, the North Carolina Solicitor General. I flagged that pick at the time, noting that Park was apparently rewarded for losing SFFA v. UNC with a circuit court nomination. I had written about Park way back in 2015. He consistently tells people he clerked for Justices Ginsburg and Souter. But the reality is he was hired by Justice Souter, and was detailed to RBG. It is such bad form to trivialize the hiring Justice.

Well, Park would never receive a floor vote. And he was not part of the "Deal" in which the Republicans allowed votes on several District Court nominees if pending Circuit Court nominees from Tennessee and North Carolina would remain unfilled. Of course, the rub of that deal is that the judges in those two states--Judge James Wynn and Judge Jane Stranch--may withdraw their senior status. These two judges were extra bargaining chips that Senator Schumer kept in his back pocket.

On December 13, like clockwork, Judge Wynn wrote to President Biden:

I write to advise that, after careful consideration, I have decided to continue in regular active service as a United States Circuit Judge for the Fourth Circuit. As a result of that decision, I respectfully withdraw my letter to you of January 5, 2024. I apologize for any inconvenience I may have caused.

Did Judge Wynn avoid the appearance of partiality? No, he did the exact opposite. Was something other than law afoot? Absolutely. Here, it is fairly clear that the law cuts one way (a judge can rescind senior status) but reality cuts the other (only a partisan would do so after his preferred candidate loses the election).

Senator Tom Tillis of North Carolina states the issue plainly:

"Judge Wynn's brazenly partisan decision to rescind his retirement is an unprecedented move that demonstrates some judges are nothing more than politicians in robes," Tillis said in a news release Saturday. "Judge Wynn clearly takes issue with the fact that Donald Trump was just elected President, and this decision is a slap in the face to the U.S. Senate, which came to a bipartisan agreement to hold off on confirming his replacement until the next Congress is sworn-in in January.

For all the faux outrage about judicial ethics with Justices Alito and Thomas, there will only be crickets on the left about Judge Wynn. Which proves that the outrage is merely performative--except judges still get death threats.

Chief Justice Roberts was copied on this letter. Does the Chief think that Judge Wynn is an "Obama judge"? How else to explain it? Seth observed:

I don't doubt Judge Wynn's fine sentiments from his concurrence. I do not doubt that back in 2020, he sincerely believed what he had written. It is now 2024. And, in the future, I do not see how Wynn's colleagues or the wider public will see his stating such views in quite the same light. If his taking senior status was "doing [his] job," then why did he rescind? Should not his colleagues and the public see "partisan motives" on this occasion? Or, perhaps, Wynn recently suffered from a bout of unexpected good health and longevity?

The other shoe waiting to drop, of course, is Judge Jane Stranch. Back in May, I observed that the replacement for Stranch was her first law clerk, and a partner at her family's law firm. It is a total family affair. If Judge Stranch withdraws her senior status request, she will look as nakedly partisan as does Judge Wynn, and reaffirm the worst type of nepootism. Now Judge Stranch probably does not read this blog, or care for much of what I write. But Judge Stranch will still have to hold her head up high in front of her colleagues on the Sixth Circuit. And what will they think of her?

In the past, I've proposed what I call "Bilateral Judicial Reform." These proposals will help and hurt both sides, equally. Maybe another proposal is in order: a Judge has one, and only one chance to request senior status. If that request is withdrawn, the judge will never again be able to request senior status.

Sheldon Gilbert: The New President of the Federalist Society

A brilliant fusionist who has done remarkable work for the Chamber of Commerce, the Institute for Justice, the National Constitution Center, and as a senior counsel at Walmart.

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Many readers of this Blog may be interested in knowing more about Sheldon Gilbert, the new President of the Federalist Society who will take over from Eugene Meyer on January 2, 2025. Sheldon is a brilliant libertarian conservative who is 44 years old, has four children, and has held leading positions at the Chamber of Commerce litigation team, the Institute for Justice litigation team, the National Constitution Center headed up by Jeff Rosen, and as a senior counsel at Walmart, which recently decided to end its DEI policy. Sheldon is a member of the Church of Jesus Christ of Latter Day Saints.

Sheldon is highly respected by the rising generation of Federalist Society lawyers in their thirties and forties. He is known for being friendly and kind to everyone, and he has a huge number of friends. Sheldon is an originalist who is committed to the rule of law, to the idea of the separation of powers, and to the principle that it is emphatically the province and duty of the judiciary to say what the law is and not what it should be. He has shown courage and wisdom in his sixteen years of practicing law in the private sector. While in law school, Sheldon created a national religious liberties moot court.

In getting to know Sheldon, I was very impressed by the depth of his commitment to the rule of law, by his brilliance, by his entrepreneurial spirit, by his ability to work well with a wide array of other people of differing viewpoints, and by his willingness to work very hard. Sheldon will work to convert people to join the Federalist Society, which he will also work to build. One of his many strong supporters on the Board of Directors, after his interview with the Board, was 93-year-old former Attorney General Ed Meese who served on the Search Committee that found Sheldon Gilbert.

I am confident that the legal giants who launched the Federalist Society 42 years ago, Judge Robert H. Bork and Justice Antonin Scalia, would have been thrilled with this appointment, as will be Professor Richard Epstein who also helped to launch the Federalist Society in 1982. The co-founders and members of the Board of Directors of the Federalist Society look forward to working together with Sheldon Gilbert in the years ahead.

Free Speech

The Trump v. ABC Defamation Decision That Led to the $15M Settlement

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From the July 24 opinion by Chief Judge Cecilia Altonaga (S.D. Fla.) that led to ABC's $15M (plus $1M in attorney fees plus an editor's note) settlement filed today:

On March 10, 2024, Stephanopoulos interviewed United States Representative Nancy Mace; ABC and ABC News broadcast the interview as part of the show This Week with George Stephanopoulos. In the interview, Stephanopoulos asked Mace about her endorsement of Plaintiff despite the fact he was "found liable for rape" [in E. Jean Carroll's civil case against him]. He repeated the phrase ten times during the interview, at one point stating "[j]udges and two separate juries have found him liable for rape," and "[t]he Judge affirmed that it was, in fact, rape." A screenshot of a newspaper headline stating that "Judge clarifies: Yes, Trump was found to have raped E. Jean Carroll[,]" was shown near the end of the broadcast….

Trump sued, arguing that the jury had concluded he had not committed rape but had only committed sexual abuse; ABC argued that, in context, the jury in Carroll v. Trump must have concluded he committed digital penetration, which is a form of rape or in any event tantamount to rape. But Chief Judge Altonaga disagreed:

"Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the 'gist' or the 'sting' of the statement is true." …

[In resolving this question], the Court is mindful of the specific setting in which the statements were made. Here, Stephanopoulos was not describing Plaintiff's actions or Carroll's testimony against him; he was describing the jury's verdict.

This distinguishes several of the cases Defendants cite. In those cases, courts concluded it is substantially true for publications to describe forced sexual contact as rape when reporting on the events themselves. See, e.g., Moore v. Lowe (N.D. Ala. 2022) (concluding that it was substantially true to report that the plaintiff was accused of attempted rape, even if the statement would lead readers to believe he was accused of "forced vaginal sex rather than forced oral sex"); Nanji v. Nat'l Geographic Soc. (D. Md. 2005) (concluding it was not inaccurate to "use [] the term 'rape' as shorthand for sexual misconduct" when recounting "the abundance of sexual misconduct evidence in the public records").

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Sheldon Gilbert to Lead Federalist Society

The conservative legal organization has announced Eugene Meyer's successor as President of the Federalist Society.

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Today the Federalist Society for Law and Public Policy Studies announced that attorney Sheldon Gilbert will succeed Eugene Meyer as President of the Federalist Society. This is an excellent choice (though not one that had been foreshadowed in prior news reports). Text of the announcement is below.

The Federalist Society's Board of Directors is delighted to announce that Sheldon Gilbert will become its second president on January 2, 2025. Gilbert, currently Walmart's Senior Lead Counsel for Strategic Initiatives, will succeed Eugene B. Meyer, who has served as Executive Director, CEO, and/or President of the organization for  more than 40 years.

"Sheldon is a superb choice to take over as President of the Federalist Society," said co-chairman of the Board of Directors Steven Calabresi. "His boundless energy and enthusiasm and deep engagement with all segments of the legal community, including different strands of the conservative and libertarian legal movement, make him the right person to lead the Federalist Society at this time."

"Sheldon is both a thinker and a doer," said co-chairman of the Board Leonard Leo. "His unmatched strategic sense, entrepreneurial mindset, leadership qualities, and vision make him uniquely qualified for leading the generational change the Society is poised to begin while preserving the Society's core assets and commitments."

"We are delighted to welcome Sheldon, who is joining the organization at a pivotal moment," said outgoing President Eugene Meyer. "He shares a deep commitment to our mission and purpose, to provide a forum for fair, serious, and open debate about the role of the courts in saying what the law is rather than what they wish it to be, and to the centrality of the rule of law in protecting individual freedom and traditional values. It's been an honor to have served over many decades. I am grateful to my colleagues, our members and those who have supported this mission over the years."

"The Federalist Society's strength comes from our members, and I'm proud to work alongside them to promote the Society's founding principles and provide a thoughtful forum for discussion and debate," said Gilbert. "It's an honor to serve our members—including law school students and faculty, public servants in every branch of government, and private sector and non-profit lawyers— who tirelessly and fearlessly work to defend the Constitution, preserve freedom, and promote the rule of law."

Before joining Walmart, Gilbert served as Vice President for Content and Development and Senior Fellow for Constitutional Studies at the National Constitution Center, as Director for the Institute for Justice's Center for Judicial Engagement, and as Associate Chief Counsel for Litigation at the U.S. Chamber of Commerce's Litigation Center. He is a graduate of the George Washington University Law School and the University of Utah.

Gilbert is married with four children, and is himself a child of the Mountain West, where he was born in a coal mining town in Utah and raised in Idaho near the Grand Tetons. Before going to law school, Sheldon's diverse interests led him to work in a wide range of roles, from software development project management for a nonprofit, to working in his University's radiobiology research lab, to volunteer service in Rio de Janeiro, Brazil for his church. Gilbert was selected following a nationwide search by the Board's Presidential Search Committee, with key support from Andrea McDaniel Smith, a partner at CarterBaldwin Executive Search.

Founded by law students from around the country in 1982, the Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians dedicated to reforming the current legal order. Under Eugene Meyer's leadership, the organization has grown from a small group of law students to a community of 90,000 lawyers, law students, academics, judges, and others interested in the rule of law.

For my own views of the Federalist Society, see this post, which I wrote during the Gorsuch nomination fight in 2017.

Free Speech

D.C. Circuit Panel Denies TikTok's Request for Stay of the TikTok Divestment Law

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From today's order:

At the request of the parties, this court expedited its consideration of the case "to ensure that there is adequate time before the Act's prohibitions take effect to request emergency relief from the Supreme Court." Consistent with the schedule proposed by the parties, on December 6, 2024 this court unanimously upheld the constitutionality of the Act with respect to each claim presented by the petitioners and denied as moot the petitioners' alternative requests for a temporary injunction and to appoint a special master.

The petitioners now seek a "temporary pause" in order "to create time for further deliberation." They argue the injunction will "permit the Supreme Court to consider this case in a more orderly fashion" and "give the incoming Administration time to determine its position on this exceptionally important matter."

The petitioners are not, however, "merely seeking a stay of [this] court's order, but an injunction against the enforcement of a presumptively valid Act of Congress." Such a "temporary injunction against enforcement is in reality a suspension of an act, delaying the date selected by Congress to put its chosen policies into effect." That is particularly true here because the Act reflects a deliberate choice on the part of the Congress and the President to set a firm 270-day clock — subject to one (and only one) extension of up to 90 days granted by the President if certain conditions are satisfied — after which the prohibitions of the Act take effect with respect to TikTok.

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Free Speech

Pro-Israel Jewish Students Suing Haverford College for Hostile Environment Harassment Can Proceed Pseudonymously

"[T]he presence of masked protesters in the room, who defied the authority of Haverford administrators and had to be removed by campus security, with a chanting group of protestors outside, would reasonably be viewed as a form of intimidation going far beyond the 'normal' chaos of a confrontational campus protest."

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From today's decision by Judge Gerald Austin McHugh (E.D. Pa.) in Landau v. Haverford College:

On May 13, 2024, Plaintiff "Jews at Haverford," which purports to be an association of individuals associated with Haverford College, initiated this Title VI action against Defendant Haverford College. An amended complaint followed, adding Haverford Alumni Ally Landau and current students "HJSB" and "HJSC" as individual plaintiffs to the lawsuit. Plaintiffs generally contend that Haverford College both enables and perpetuates a hostile educational environment for its Jewish students and faculty who support the state of Israel, in violation of Title VI and assorted contractual promises between the school and its students.

Plaintiffs HJSB and HJSC now move to proceed under pseudonym in this case. Haverford, to its credit, does not oppose the Plaintiffs' request to proceed under pseudonym in all public-facing filings.

But Haverford's consent does not end the inquiry, because open courts are a cornerstone of the U.S. judiciary. Since pseudonyms interfere with the public's right to access judicial proceedings, such motions must only be granted in exceptional circumstances….

The court concluded that this case involves such an exceptional circumstance, but not just because of fear of "purely social and reputational harms":

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Supreme Court

Supreme Court Adds Two Potentially Significant Cases to OT2024 Docket

December certiorari grants on standing and religion are early holiday gifts for Court watchers.

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Today the Supreme Court granted certiorari in two potentially significant cases, one concerning-church-state relations and other Article III standing.

First up is Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, in which the petition for certiorari posed the questions presented as follows:

Wisconsin exempts from its state unemployment tax system certain religious organizations that are "operated, supervised, controlled, or principally supported by a church or convention or association of churches" and that are also "operated primarily for religious purposes."

Petitioners are Catholic Charities of the Diocese of Superior and several sub-entities. Although all agree Catholic Charities is controlled by a church—the Diocese of Superior—the Wisconsin Supreme Court held that Catholic Charities is not "operated primarily for religious purposes" and thus does not qualify for the tax exemption.  Specifically, the court held that Catholic Charities' activities are not "typical" religious activities because Catholic Charities serves and employs non-Catholics, Catholic Charities does not "attempt to imbue program participants with the Catholic faith," and its services to the poor and needy could also be provided by secular organizations.

The questions presented are:

1. Does a state violate the First Amendment's Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state's criteria for religious behavior?

2. In addressing federal constitutional challenges, may state courts require proof of unconstitutionality "beyond a reasonable doubt?"

The second grant came in Diamond Alternative Energy LLC v. Environmental Protection Agency, in which the petitioners are challenging the EPA's grant of a waiver of preemption to California's low-emission vehicle regulations. Here the Court limited the grant to the standing question raised in the petition. With that noted, here is how the petitioners framed the questions presented.

Section 209(a) of the Clean Air Act generally preempts States from adopting emission standards for new motor vehicles. 42 U.S.C. § 7543(a). But under Section 209(b) of that Act, EPA may grant California—and only California—a waiver from federal  preemption to set its own vehicle-emission standards. Before granting a preemption waiver, EPA must find that California "need[s]" its own emission standards "to meet compelling and extraordinary conditions." Id. § 7543(b)(1)(B).

In 2022, EPA granted California a waiver to set its own standards for greenhouse-gas emissions and to adopt a zero-emission-vehicle mandate, both expressly intended to address global climate change by reducing California vehicles' consumption of liquid fuel. Fuel producers challenged EPA's waiver as contrary to the text of Section 209(b). The D.C. Circuit rejected the challenge without reaching the merits, concluding that fuel producers' injuries were not redressable because they had not established that  vacating EPA's waiver would have any effect on automakers.

The questions presented are:

1. Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties.

2. Whether EPA's preemption waiver for California's greenhouse-gas emission standards and zero-emission-vehicle mandate is unlawful.

Note that since the Court only granted the first question presented, this means the Court is not reviewing the substance of the lower court decision rejecting challenges to EPA's grant of the waiver. Some early news reports have gotten this wrong. Should the petitioners prevail in this case, at most this would entitle them to press their merits claims against the waiver grant on remand. It would also make it easier to challenge future EPA waiver grants, perhaps including a potentially forthcoming waiver that would effectively allow California to ban the sale of gasoline-fueled vehicles by 2035.

Politics

Short Circuit: A Roundup of Recent Federal Appeals Court Decisions

Neighborly strolls, cannabis discrimination, and a thorough un-en-bancing.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition: Midland County, Tex. hired a prosecutor to secretly moonlight as a paid law clerk for nearly two decades, helping judges decide his and his colleagues' cases—an "utterly bonkers" due-process violation and a "DEFCON 1 legal scandal." But over the "emphatic[]" dissent of six judges, who asked the Supreme Court to step in and resolve a "deep and enduring circuit split," the Fifth Circuit ruled this year that victim and IJ client Erma Wilson can't vindicate her federal constitutional right to a conflict-free trial until she first exhausts possible state-law remedies. Click here to learn more.

New on the Short Circuit podcast: There's something rotten in the Ohio Attorney General's office but the Sixth Circuit won't do anything about it (for now).

Read More

New Essay: "What is the Future of the Federalist Society?"

The launch of the Civitas Institute's new online journal.

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The Civitas Institute as the University of Texas at Austin has launched a new online journal called Civitas Outlook. The initial slate includes essays by co-blogger Jon Adler, Richard Epstein, and others. My entry is titled What is the Future of the Federalist Society?

Here is an excerpt:

Over the past four decades, the Federalist Society (FedSoc) has climbed from an obscure organization to the apex of influence. What started as a group of students criticizing the liberal legal order has now become the embodiment of the prevailing conservative jurisprudence. The recent National Lawyers Convention provided an opportunity to toast the FedSoc's successes, and there is much to celebrate. But this moment also presents something of an inflection point. For nearly half a century, FedSoc has followed the same playbook under the same leadership: a debating society that does not take any position on legal issues. But Eugene Meyer, the society's stalwart and venerated President, plans to step down soon. As the leadership search continues, the conservative legal movement should take stock of what the future portends for FedSoc. . . .

Yet, there are headwinds. First, there is a long-simmering tension between social conservatives and the libertarian wings of the movement. For example, in the leadup to the landmark Dobbs decision, which overruled Roe v. Wade, FedSoc's national convention largely ignored the abortion issue. To this day, many social conservatives still feel slighted. Second, FedSoc has long favored a strong deregulatory focus, which was a priority of the Reagan Administration. However, the Trumpism of the Republican party seeks to use government power to promote conservative goals. Third, FedSoc has long favored the lowercase-c approach to conservatism: moderation and restraint. This jurisprudence was a natural choice when originalism and conservatism were minority viewpoints on the Supreme Court. But now, and for the foreseeable future, the roles have reversed. Judges with courage have more cache than those seeking passive restraint.

…

I have been a devoted member of FedSoc since my first year of law school in 2006. I deeply hope that FedSoc maintains its relevance and influence for another four decades. But I worry that the celebrated approach that worked to climb the sunrise side of the mountain may lead to its decline on the other side. What is that new approach? I do not know, and it should be, as is true to FedSoc's core, a matter of debate. However, maintaining the status quo is not sustainable.

I suspect this piece will stimulate some discussion and debate.

Politics

Is Judge Newman Entitled to Her Day in Court to Challenge Her "Stealth Impeachment"?

Other former judges and I have just filed an amicus brief in the D.C. Circuit, making the case that the federal courts should consider Judge Newman's challenge to being effectively removed from her position on the Federal Circuit in violation of her constitutional rights.

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My co-blogger, Josh Blackman, has previously written an excellent post about what might be viewed as the "stealth impeachment" of Judge Newman in the Federal Circuit. Judge Newman has been suspended due to her alleged failure to "cooperate" with a Special Committee appointed by the Chief Judge of the Federal Circuit, which was investigating Judge Newman's capacity to perform her work. Judge Newman has sought federal judicial review of whether this lengthy suspension violates her constitutional rights. But, thus far, she has been denied any judicial review.

Yesterday, I joined former judges Susan Braden, Janice Rogers Brown, Randall Rader, and Thomas Vanaskie in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman's claims be reviewed on their merits. Here's the opening of our brief explaining why Judge Newman is entitled to her day in court:

Judge Pauline Newman has served with distinction on the United States Court of Appeals for the Federal Circuit since its creation in 1984. Her many dissents may on occasion irritate some of her judicial colleagues, but those opinions have routinely been vindicated by the U.S. Supreme Court—including as recently as this year. Doctors who have examined her recently have all concluded that she remains cognitively sharp, an opinion shared by many who have witnessed her recent public appearances. There has been no finding that Judge Newman is disabled or otherwise incapable of performing her judicial duties.

Judge Newman has nonetheless been effectively removed from office by Appellees [e.g., the Chief Judge of the Federal Circuit et al.]. In response to her decision to decline a medical examination by doctors of their choice, Appellees suspended her from all judicial activities—including hearing cases, writing opinions, and voting on petitions to hear cases en banc. The original order imposed a one-year suspension, but Appellees later renewed the suspension for another year and made clear that the suspension would continue indefinitely until Judge Newman acquiesced to their examination demand. She responded by filing suit in district court, alleging that she has been removed from office in violation of her constitutional rights. But rather than addressing the merits of those constitutional issues, the district court largely dismissed Judge Newman's claims on the ground that judicial review was precluded.

That holding cuts against the strong presumption that litigants are entitled to have their federal constitutional claims heard in a federal court. The presumption can be overcome only by clear and convincing evidence that Congress meant to foreclose review, and there is no such evidence in this case. Judge Newman is entitled to her day in court.

Moreover, the facts alleged by Judge Newman state a valid claim. The Constitution assigns to the U.S. Senate alone the power to remove Article III judges from office. By suspending Judge Newman for an indefinite period and thereby effectively removing her from office, Appellees are usurping that power. That usurpation represents a serious challenge to the independence of federal judges that the Framers sought to preserve.

For Judge Newman to be removed from judicial service for an indefinite period of time violates clearly established separation-of-powers principles. As we explain in our brief:

Judge Newman alleges that Appellees are seeking to remove her from office. The uncontested facts demonstrate that: (1) on September 20, 2023, the Judicial Council suspended her for one year from hearing any cases at the panel or en banc level, based on her refusal to cooperate with the Special Committee's investigation (e.g., her refusal to submit to medical examination by doctors chosen by the Judicial Council); (2) on September 6, 2024, the Judicial Counsel renewed its suspension for a second year; (3) in recommending the September 2024 extension of Judge Newman's suspension, the Special Committee stated that the suspension is "subject to renewal if the refusal to cooperate here continues after" completion of the second year of suspension.

Those facts demonstrate Appellees' intent to deprive Judge Newman of her judicial authority for an indefinite period of time—at least until such time as she abandons her contention that it is they and not she who are engaging in misconduct. Appellees' long-term deprivation of Judge Newman's judicial authority is impossible to distinguish from an outright removal from office given her advanced age. At age 97, Judge Newman has a short life expectancy, and a multi-year suspension can plausibly be interpreted as an effort to run out the clock on her life.

Based on the above, Judge Newman has stated a valid claim that Appellees have violated her rights under separation-of-powers provisions of the U.S. Constitution. Article III, Section 1 states that federal judges "shall hold their offices during good behavior," and they can be removed from office only through a vote of impeachment by the U.S. House of Representatives and a trial and conviction by the Senate. See Art. I, § 3, cl. 6 (stating that "The Senate shall have the sole power to try all Impeachments") (emphasis added). In other words, a Judicial Council effort to remove a judge from office violates the Constitution by impinging on powers delegated solely to the Senate.

At the very least, Judge Newman is entitled to reversal of the district court's dismissal of Counts II and III. Those counts plausibly allege that Appellees' actions have effected her de facto removal from the bench, and that the Constitution expressly prohibit anyone other than the U.S. Senate from taking those actions. And unless Appellees can supply the Court with substantial evidence that Judge Newman is not actually subject to an indefinite suspension, it should grant her motion for injunctive relief and enter judgment in her favor on Counts II and III.

The Special Committee asserts that Judge Newman's refusal to acquiesce to its medical demands constitutes "a serious form of continuing misconduct." But that assertion cannot justify Appellees' decision to suspend Judge Newman indefinitely—a suspension which currently stands at two years and which Appellees threaten to lengthen unless Judge Newman acquiesces to their demands.

If Appellees consider the alleged misconduct sufficiently serious to warrant removal from office, their proper course is to refer the matter to Congress for possible impeachment and trial. What they may not do is take it upon themselves to effectively remove Judge Newman from office by suspending her indefinitely.

Perhaps the key point in our brief is the threat to judicial independent posed by the effective impeachment of Judge Newman by colleagues with whom she has sometimes  disagreed with in numerous dissenting opinions:

Amici are particularly concerned by the threat to judicial independence posed by Appellees' alleged actions. Throughout her career, Judge Newman has demonstrated a willingness to express her views without regard to how those views will be perceived by her judicial colleagues. Her hundreds of dissenting opinions have no doubt exasperated some of those colleagues at times, but the law has benefitted from her willingness to express those dissenting views unabashedly. If the Federal Circuit Judicial Council succeeds in shutting down Judge Newman without going through the constitutionally prescribed process for removing Article III judges from office, other judges may conclude that they should hesitate to act boldly in defense of justice for gear of the adverse consequences of doing so.

I hope that the D.C. Circuit agrees with our position that only adhering to the constitutionally prescribed impeachment process for allegations of judicial misconduct will ensure that Article III judges can feel confident that their rulings will not endanger their job security.

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