The Volokh Conspiracy

The first day of the 2024 Federalist Society National Lawyers Convention is in the can. And unfortunately, the Fifth Circuit could not stay this change of venue. After nearly four decades at the Mayflower, FedSoc moved about a mile down Connecticut Avenue to the Washington Hilton. Yes, the hotel where President Reagan was shot. Not exactly the best vibes. But I will still try to be objective. The verdict, from my perspective, is mostly negative, but there are some upsides.

I'll start with the downsides. The Mayflower is a classic hotel. Every ballroom was finely crafted with accents on the walls, and a welcoming ambiance. So much history was made in those rooms. The Washington Hilton feels like a hospital. It is cold, sterile, and soulless. The smaller conference rooms have low ceilings and obstructive columns in the middle. The cavernous ballroom has dreadful acoustics. It is nearly impossible to hear anything close to the stage (thankfully there were closed captions). I felt like I was attending someone else's conference. Moreover, the hotel rooms are dark and drab, and desperately in need of renovation. The wireless in the room is also painfully slow--I am on my hotspot at the moment. On a personal note, I have lifetime platinum status with Marriott Bonvoy, but am a mere plebeian with Hilton Honors.

But there are some plusses. FedSoc long ago outgrew the Mayflower. The hotel room blocks quickly sold out, which forced people to stay at nearby hotels. The conference rooms were not nearly big enough. It was difficult to find a seat for most panels, and the overflow rooms were packed. It could take nearly 20 minutes just to get lunch at the buffet. The Hilton has more than enough space to fit four concurrent panels. That simply cannot be done at the Mayflower.

Another plus is the lack of schlepping: the conference is at the same hotel as the annual dinner. That hasn't happened in about two decades. In the old days, everything would be held in the Mayflower. But since the 2000s, the conference would be at the Mayflower, and the dinner would be somewhere else--the Marriott Wardman (now defunct), the Omni Shoreham, and more recently Union Station. The former two hotels were a short cab ride from the Mayflower. The latter could take nearly an hour by cab. (FedSoc members tend not to take the Metro). And do not even remind me of the dreadful time we had to schlep to the Gaylord National Harbor. That took nearly two hours on the busses! But with the Hilton, we merely have to take an escalator to the annual dinner. It was a delight. I didn't need to go outside all day. (It was raining apparently). Plus, this ballroom can fit several hundred more people than Union Station.

It is true that more people can attend, but this leads to a massive drawback. The greatest feature of the National Convention is the networking. The panels are fun, to be sure. But the magic happened outside the sessions. I wrote an entire book chapter about how the constitutional challenge to Obamacare was hatched in the grand hallway of the Mayflower--the Mayflower Compact. That space worked so well because everyone had to congregate in a centralized location to get too and from the panels. There was no way ot avoid the hallway. That was a magical time. Alas, the Hilton has no such centralized place. The 2024 convention takes place on three levels. At any point, FedSoc members are scattered throughout the hotel. And we are no longer standing shoulder-to-shoulder. There is ample space between us--dare I say, social distancing! These positions are simply not conducive to spontaneous order. I can spend an entire day schmoozing and not see certain people that I want to see.

In some regards, the bigger conference space is perhaps emblematic of the bigger tent that FedSoc has become. As the group grows and grows, it becomes harder and harder to forge the sorts of personal relationships that were developed years ago. Sure, we can now fit a few hundred more people into the conference. But that increased head count makes the networking more diffused. It was much easier for me to pinhole Randy Barnett in a single hallway. But I didn't see my colleague at any point today. (We will have a book signing on Friday at 10:45--stop by!).

I understand that we will be stuck at the Hilton for the foreseeable future. I think we'll have to get used to it.

I'll close on a positive note. It was so refreshing to see Justices Breyer and Gorsuch speak at the Scalia dinner. They have such a good rapport, and they demonstrated through word and deed why protecting the Court is so important. I would hope that the American Constitution Society could host a similar gathering at their annual conference. The Court would be in a much better place than it was only a few years ago.

Yesterday I wrote about my memorable experience at the 2008 FedSoc student leadership conference at Ted Olson's house. I regret that I did not take a photograph of Ted that day. Fortunately, my friend and contemporary Steve Klein did. This photo catches the ambiance of the day, perfectly.

And Steve managed to take a group shot of the students. I'm in there, scratching my heads for reasons I cannot recall. Remember this was 2008, between my second and third year of law school. There was no Twitter and no blog. I was just getting ready to apply for clerkships--an experience I wrote about here.

More on the 2024 convention shortly.

You can read the Complaint (filed yesterday) in Moody v. Criswell (S.D. Fla.); there are all sorts of interesting federal civil rights litigation and federal courts issues, such as parens patriae, the scope of § 1985(3) liability, the intracorporate conspiracy doctrine, and more. And of course the case raises the factual question of whether the discrimination was the work of a rogue employee (as FEMA seems to argue) or was endorsed by higher ups (as the employee has claimed, and as Florida is asserting). An excerpt from the Complaint:

"[A]void homes advertising Trump." This was the directive that Defendant Marn'i Washington gave to federal relief workers responding to Hurricanes Helene and Milton in Lake Placid, Florida.

While the Federal Emergency Management Agency (FEMA) has fired Defendant Washington and called her behavior "reprehensible," Defendant Washington insists that she is a "patsy" and that FEMA made her a "scapegoat." Defendant Washington says that similar conduct occurred in North Carolina and throughout areas affected by Hurricanes Helene and Milton. And she represents that senior FEMA officials claiming not to know that the agency was discriminating against Trump supporters are promoting a "lie."

While the facts will continue to come out over the weeks and months, it is already clear that Defendant Washington conspired with senior FEMA officials, as well as those carrying out her orders, to violate the civil rights of Florida citizens.  This conspiracy is actionable under 42 U.S.C. § 1985, which creates a cause of action for "[c]onspiracy to interfere with civil rights." See Smith v. Meese, 821 F.2d 1484, 1492 n.5 (11th Cir. 1987) (suggesting that "selectively enforc[ing] a law" by "prosecuting only Republicans" would violate § 1985 (quotations omitted)); accord Lyes v. City of Riviera Beach, 166 F.3d 1332, 1338 (11th Cir. 1999) (en banc) (discussing legislative history suggesting that "actionable conspiracies" under § 1985 "would include those against a person because he was a Democrat" (quotations omitted)); United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S. 825, 836 (1983) (suggesting that § 1985(3) "was intended to" protect "Republicans" because Republicans "championed the[] cause" of Black Americans after the Civil War).

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I've been reading and much enjoying Paul Mirengoff & Bill Otis's Ringside at the Reckoning. I don't always agree with them, and I think that politically they tend to be more conservative than I am. But I've generally found them to be blunt, level-headed, and thoughtful, and they generally strike me as astute observers of American politics. (Paul Mirengoff was a cofounder of the conservative Power Line blog, which has been following American politics for 20 years.)

I thought I'd pass along Mirengoff's most recent post, Trump's picks: The good, the questionable, and the crazy. As you can tell from the title, he praises some (Marco Rubio for Secretary of State, John Ratcliffe for CIA Director), expresses doubt about others (including criticizing Kristi Noem for Homeland Security as not being conservative enough), and sharply criticizes others, including Matt Gaetz for Attorney General. Since the AG position is of especial interest to me as a lawyer and someone who writes mostly about law, I thought I'd pass along Mirengoff's thoughts:

I agree with the Wall Street Journal's editorial board:

This is a bad choice that would undermine confidence in the law. Mr. Trump lauded Mr. Gaetz's law degree from William and Mary, but it might as well be a doctorate in outrage theater. He's a performer and provocateur, and his view is that the more explosions he can cause, the more attention he can get. "It's impossible to get canceled if you're on every channel," he once said. "If you aren't making news, you aren't governing."

Mr. Gaetz has no interest in governing. When Republicans took control of the House in 2022, it was with a small margin. Rather than work to get things done, Mr. Gaetz sabotaged Speaker Kevin McCarthy before finally leading a rebellion to oust him. Eight Republican malcontents plunged the GOP into weeks of embarrassing paralysis, since Mr. Gaetz had no alternative that could command a majority….

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A very good Substack post by Yascha Mounk; two short excerpts:

The aspiration of many journalists to save democracy has not just proven counterproductive because it drove a big part of their readership away from mainstream outlets. It has also deprived Democrats of key facts they would have needed to make good strategic decisions—which, ironically, has helped to strengthen the very political forces that the journalists who were self-consciously striving to preserve democracy were trying to contain.

Over the last months, I have heard from multiple European diplomats that the extent of Joe Biden's struggles has long been well-known. In meetings with a number of senior statesmen, Biden repeated the same anecdotes, or seemed unsure about his own whereabouts, as early as 2021. Is it really plausible that American journalists were unable to learn something that has been known in capitals across Europe for so long—something that, as it happens, tens of millions of American voters have long cited as a serious concern in opinion polls?

No. The obvious truth of it is that, for the most part, journalists simply did not want to go there. Part of that reluctance may have been rooted in an understandable (if misplaced) sense of propriety. But another part of it was rooted in the unspoken suspicion that open consideration of this topic would somehow wind up helping Donald Trump.

As it happens, the reluctance to level with readers ultimately accomplished the opposite of what was intended. It allowed Biden to stay in the race long enough to make the entire Democratic establishment complicit in covering up the true state of his mental health. And it made it virtually impossible to stage an open primary to choose his successor….

But the truth of it is that the American mainstream itself now suffers from a serious epistemological crisis. If you were a faithful reader of The New York Times or a frequent listener of NPR, you were less likely than the average American citizen to believe that Biden was suffering from serious mental decline or that Harris was an unpopular politician with a steeply uphill path towards winning the presidential election. You were also less likely to recognize that school closures would exact a big toll on students' educational outcomes and mental health or to realize that a lot of Latinos were embracing the Republican Party. And you would, even now, be less likely than most voters to recognize how utterly simplistic it is to believe that America can meaningfully be divided into two opposing blocks of "whites" and "people of color."

Americans have lost trust in many of their institutions in good part because, despite their assurances to be the arbiters of truth and science, legacy news outlets and establishment institutions fundamentally misconstrue and misunderstand basic aspects of American life. The reasons for this sorry state of affairs go well beyond the decision by many journalists to flatter themselves into thinking that their task was to save democracy. But the first step towards fixing the problem is for journalists to re-embrace the humdrum conception of their own work that served them comparatively well in the past: to cultivate a healthy distrust of everyone, including those you may secretly believe to be on the right side of history, and report the news without fear or favor.

The whole post is much worth reading.

I am deeply saddened by the passing of Theodore Olson. Ted, as he was known, was a giant in the conservative legal movement. Generations of law students will study his defeat in Morrison v. Olson, as well as his victories in Bush v. Gore and Citizens United. But Federalist Society members, in particular, owe Ted a special debt. He was instrumental in the flourishing of our society. Here, I will relay one small anecdote, that I'm sure many will share.

For years, the Federalist Society has held the student leadership conference every July. In more recent years, the reception has been held at the United States Supreme Court. But in the 2000s, the reception was held at Ted Olson's home in Northern Virginia.

I was fortunate enough to attend the gathering in July 2008, after my second year of law school at George Mason. As I recall, we instructed to park our car at a nearby church, and ride a shuttle bus to Ted's home. (I sat next to a student from Harvard named Sarah Isgur.)

Entering the Olson estate was like walking into Disneyland. There was a huge backyard with an enormous swimming pool. There was something that looked like a robot cleaning the bottom of the pool. Such a gadget may be common nowadays, but it was beyond futuristic sixteen years ago. I remember just walking around in awe at the luminaries I saw. I walked onto the back porch and Judge Robert Bork was sitting there, drinking Iced Tea. The year before, Bork was injured in a fall at the Yale Club in New York. Bork was complaining about his leg, which was still bothering him. I was tempted to ask Bork about the Ninth Amendment and the "inkblot" comment, but I figured I would come across as a smartass, so I didn't. In hindsight, I am grateful I just sat and listened to him chat about whatever was on his mind.

I walked around the ground and saw Justice Samuel Alito. He was wearing a polo shirt. I was star struck. We chatted for a few moments, and I sheepishly asked for a picture. I also asked the then-Junior Justice to sign my pocket Constitution, which he did. I continued to walk around and I found the host of the party Ted Olson. I don't remember exactly what I said, but I recall thanking him for hosting us at his palatial home. He was very gracious. I asked Olson if he too would sign my pocket Constitution. Olson gladly did. And, for good measure, I saw Judge Dave Sentelle. He too signed that Constitution. That Constitution now hangs on the wall in my office, alongside another Constitution that is signed by Justices Thomas and Scalia. These are among my most prized possessions.

Last year, I chatted with Ted after the 2023 Olson Lecture. I relayed to him this story about my experience at his home, and I shared how meaningful it was to me and countless other FedSoc members. He beamed with pride. It was an exchange I will not forget.

Ted will be deeply and profoundly missed. The 2024 Federalist Society Convention will not be the same without his presence.

Here is the photo of me with Justice Alito in July 2008. This is what Ted's backyard looked like!

And here is a photograph of my signed pocket Constitutions.

I'm sorry I don't have a better photographs to share. I am on the road, staying in the soulless Washington Hilton this evening. I'll share my longing for the Mayflower in another post.

Ed Whelan writes that President Trump may adjourn Congress as a means to instantly confirm his entire cabinet without any confirmation hearings. In an earlier post, Ed writes that this approach may risk the Court overruling Justice Breyer's Noel Canning majority opinion, and adopting Justice Scalia's concurrence.

I maintain that Justice Scalia's opinion is correct on originalist grounds, as I noted in my earlier post. And I would be happy to see Justice Breyer's majority opinion repudiated. But even so, is this potential plan inconsistent with Justice Scalia's concurrence?

Under Scalia's opinion, the President could only fill a vacancy that arises during the recess of the Senate. Trump's plan would only be feasible if these cabinet positions become vacant during the recess of the Senate. Presumably, the holdover Biden cabinet officials will be long gone on January 20. And, on January 20, I suspect the President will use the Vacancies Reform Act to detail friendly people already in the federal government to serve as acting cabinet officials. What if one of them were to resign during the presidentially-induced recess? That is, on January 21, Trump adjourns Congress, and all acting cabinet officials resign. Would those vacancies have arisen during the recess of the Senate? Or, would the relevant starting point be when the last-confirmed official resigned? I don't know how the Recess Appointments Clause, as understood by Scalia, interacts with the Vacancies Reform Act. I doubt anyone has given this issue much thought.

There is a second issue. Under Justice Scalia's concurrence, the President can only make a recess appointment during an inter-session recess, and not during an intra-session recess. That is, the President can make a recess appointment during the recess between sessions, and not during the recess in the middle of a session. Would a presidential-induced recess be an inter-session recess or an intra-session recess? This power has never been exercised before, so there is no precedent.

I had always thought this clause would cause an inter-session recess. At the Framing, intra-session recesses were very rare. Generally, Congress would meet for continuous periods, taking only short breaks, and then take very long inter-session breaks. To the extent this power was more likely to be used, it would be used to decide when to conclude one session, and begin another. But I don't know. I do think it is the case that this clause was not designed to trigger the President's recess appointment power. But that is a separate question from what kind of recess this power would trigger.

Those who joined the Noel Canning majority may very soon regret their choice.