The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

I've just finished listening to the 2.5 hour oral argument in Skrmetti. A majority of the Court seems prepared to uphold the Tennessee law. There may even be seven votes for that outcome. But as always, Justice Kagan is in the middle, trying to broker a compromise that preserves future challenges for transgender litigants.

I do not have the transcript yet, so this post will based on my best recollection. I'll post from the transcript later.

Solicitor General Prelogar argued that the Tennessee law imposes a sex-based classification. But Justice Kagan pushed her former law clerk whether the law imposed a different type of a classification--on the "status" of being transgender. I immediately thought of Cleburne and Romer, which both imposed some sort of quasi-suspect classification that was subject to Rational Basis "Plus Bite" scrutiny. Here is how Randy and I describe these precedents in 100 Cases:

Nevertheless, in two Equal Protection Clause cases the Supreme Court took a different approach. In City of Cleburne v. Cleburne Living Center, Inc. (1985) and Romer v. Evans (1996), the Court applied what is sometimes called heightened rational basis scrutiny, even though the classifications at issue were not suspect or quasi- suspect. In these atypical cases, the Court returned — at least temporarily — to the type of rationality review articulated in Carolene Products. . . .

In Cleburne and Romer — two Equal Protection Clause cases — the Court employed heightened rational basis scrutiny despite the absence of a suspect or quasi- suspect class. The Court would use a similar approach in Lawrence v. Texas (2003). This case overruled Bowers, and held that Texas's criminal prohibition on sodomy violated the Due Process Clause. Critically, the Court did not hold that the sodomy ban violated a "fundamental" right. Instead, the majority still reviewed the Texas law with heightened rational basis scrutiny.

Both of those precedents have fallen by the wayside after Obergefell, but they were never overruled. And for a time, Justice Kennedy really believed this was the way to resolve gay rights cases. Prelogar did not take the bait and suggest that transgender status should be a quasi-suspect class. I don't know if she didn't see it, or the government refused to take that position.

But you know who did pick up on Kagan's question? Justice Barrett. She asked the Solicitor General about a quasi-suspect classification under Cleburne. She asked about whether there was a history of de jure discrimination against transgender people. She asked about Arlington Heights. Barrett was 100% locked in on this issue. Justice Alito also picked up on this line of questioning as well.

Matt Rice, the Tennessee Solicitor General, forcefully pushed back against this argument. He said that the Court has effectively abandoned those cases. (Randy and I have debated whether to remove Cleburne and Romer from our casebook.) Moreover, Rice argued that deciding whether a classification is quasi-suspect was unprincipled. For example, trying to decide whether a particular group lacks political power is not subject to any meaningful judicial guardrails. This was the sort of jurisprudence that was prominent in the 1970s and 1980s, but not in the modern era. Schuette v. BAMN (2014) buried that approach. Moreover, Rice noted that any argument based on Arlington Heights, which Barrett asked about, was waived in this case. In any event, there is no argument made that there is the sort of invidious discrimination, or what Justice Kennedy would have called "animus," that was found in Romer.

Kagan's play is transparent. She will vote to uphold the Tennessee law, but say that rather than applying rational basis scrutiny, the Court should recognize transgender people as a quasi-suspect class, or some other type of class, and laws discriminating against transgender people are reviewed with rational basis "plus bite." Prior to Obergefell, this was the roadmap for gay and lesbian discrimination. Kagan will say this Tennessee law survives that deferential standard, as would bans on transgender athletes, but lower federal courts will then have cover to halt all other laws that avoid those third rails. You can see how she would pitch this to Justices Barrett and Kavanaugh. We know from Jodi Kantor's reporting that Justice Kagan tried to broker deals in the Trump immunity case, but the conservatives were not interested. Kagan is trying, once again, to broke a deal. Her ideal would be a 4-3-2 split, or even a 3-3-3 split. Tennessee prevails, but no majority opinion establishes the standard of review, giving a green light to lower courts to police transgender laws. And the liberals defensively deny cert on all trans cases for the rest of time.

Justice Barrett did ask about the quasi-suspect class, but seemed very skeptical of the Arlington Heights issue. What about Justice Gorsuch? He did not say a word. Not a peep. He skipped each of the seriatim round. Shortly after the election, I wrote that the Trump administration would closely scrutinize Gorsuch's questions to determine whether or not to try to take Skrmetti off the docket.

The case will be argued in December. I'm sure all eyes will be on Justice Gorsuch to see what he does. We remember the fallout from Gorsuch's questions in Bostock.

Gorsuch gave us nothing to go on. He said nothing. Will he go along with Justice Kagan's gambit? Let's see what the Wall Street Journal Editorial page says.

Even if Justice Gorsuch joins Kagan, I still think there are five votes to review the law with the rational basis test. Justice Barrett may concur and say that the parental rights issue was not raised here, so it is not before the Court. Of course, after many relists, the Court (and Barrett) took no action on the ACLU's petition, which squarely raised the substantive due process issue. [Update: I wrote that this petition was denied, but it was not; it remains pending.] But the Court has full control over its docket. Chief Justice Roberts was talking about deference in a fast-moving area with uncertainty. He was invoking his South Bay standard. He will be happy to stand by his precedent there. Then again, we know that Justice Gorsuch vigorously dissented in South Bay. Justice Sotomayor brought this up. She even pointed to Gorsuch and said "my colleague to the right." He said nothing. Gorsuch also did not joint the dissents from denial of cert in Tingley, Edmo, Grimm, or Kincaid. He has been silent on transgender cases since Bostock.

I just learned that Ken Kersch, a political science professor at Boston College, has passed away. I knew and liked Ken, a lot, and I also benefitted a great deal from his work, especially his book Constructing Civil Liberties. The book deserves more attention than it's received, especially among law professors, so I thought I would reprint my review of the book from The American Historical Review:

This is a relentlessly interesting book, one that can't help but change the way the reader understands twentieth century American constitutional development. As Kersch persuasively argues, for much of the late twentieth century, American constitutional history was dominated by a whiggish narrative in which progressive forces consistently supportive of civil rights and civil liberties triumphed over the dark forces of reaction. This whiggish narrative, however, is full of holes.

For example, progressives of the early twentieth century fought mightily against privacy rights protected by the fourth and fifth amendments, in the name of the right of publicity. More specifically, the statebuilding project supported by progressives required that American businesses be subjected to intrusive and unprecedented inspection by regulatory and other legal authorities. Even future Supreme Court Justice Louis Brandeis's famous 1890 article supporting a constitutional "right to privacy"—later cited as the progenitor of modern "right to privacy" cases such as Griswold v. Connecticut—actually did not advocate a right to privacy that modern civil libertarians would even begin to recognize. Quite to the contrary, the article advocated recognition of a tort for invasion of privacy as a means of censoring even rather tepid tabloid journalism. Only after progressives had soundly defeated the "old" right to privacy in the economic sphere and established the modern bureaucratic state did they reimagine the right to privacy in terms congenial to modern liberalism, as an island of personal autonomy in a sea of statism. This victory also allowed them to revive the Fourth and Fifth Amendments in the service of protecting street criminals.

The whiggish narrative also asserts that a defining characteristic of American progressivism has been solicitude for the rights of oppressed minorities, especially African Americans. In fact, however, before the New Deal era most progressives were at best indifferent to African Americans' plight. Indeed, some were openly hostile to African American, and launched such progressive schemes as the wave of residential segregation laws that swept through the United States in the 1910s. These laws were invalidated by a unanimous decision of the "conservative" Supreme Court in Buchanan v. Warley in 1917, to a chorus of criticism by progressive legal scholars.

Organized labor, not civil rights, was the favored cause of progressives in the early twentieth century, and labor unions, especially AFL and railroad unions, were themselves hostile to African Americans. African Americans, in turn, for the most part fiercely opposed labor unionism. In alliance with the businesses that often provided them with work over white workers' objections, African Americans supported such "reactionary" policies as labor injunctions, strikebreaking, and the legality of yellow dog contracts. Kens argues that progressives only embraced the cause of civil rights when African Americans dropped their prior attachment to pre-New Deal individualistic conceptions of rights, and, modeling themselves on the successful model of organized labor, organized themselves as a constitutional class entitled to group rights in a statist legal and economic superstructure.

Finally, progressive conceptions of appropriate education policy were for the most part driven far more by a vision of imposing a centralized, statist school system on the American people than on any principled conception of civil liberties and separation of church and state. Progressive intellectuals strongly opposed the Meyer, Pierce, and Tokushige Supreme Court opinions of the 1920s, which protected local school board prerogatives and private schooling against progressive demands for homogenization and centralization of education. Progressives, in fact, were overtly hostile to the very existence of Catholic parochial schools; the constitutionality of banning such schools was at the heart of the Pierce case. By the 1960s, progressives and their allies on the scholarly community reinterpreted the quintessentially conservative Supreme Court cases—which their roots in the "reactionary" Lochner v. New York tradition—as civil libertarian cases protecting individual autonomy from conservative religious forces (see Griswold v. Connecticut and Roe v. Wade). However, progressive hostility to traditional Catholicism continued, as the history of both of these cases makes clear.

Similarly, after the New Deal, the overtly statist progressive attempt to in the 1920s to outlaw Catholic schools morphed into an attempt to ensure that government aid to Catholic schools was beyond the constitutional pale. The "civil libertarian" doctrine promulgated to accomplish this goal was the "separation of church and state." Courts initially used this doctrine primarily to suppress government assistance to Catholic schools and Catholic-dominated "release time" programs. However, as atheists and liberal Jews became increasingly influential in separationist organizations, the attack on Catholic education morphed into a broader war against expressions of Christian religious sentiment in the public schools, culminating in the Lemon v. Kurtzman decision in 1971. Not surprisingly, whiggish narratives neglect the anti-Catholic sentiment that initially spurred these constitutional developments.

Kersch puts all of these examples into the broad framework of American political and constitutional development. Most historians, law professors, and political scientists who write about constitutional history likely think of themselves as independent liberal, perhaps even radical, critics of their government. Kersch, however, will have none of it. He accuses the scholars who spun and sustained the fanciful but entirely mainstream whiggish narrative of the development of "civil rights and civil liberties" of "being heavily implicated in the political project of justifying, institutionalizing and … defending the New Deal constitutional regime." Rather than serving as the incisive and independent critics of their own imagination, the academic establishment has served as an implicit fourth (or fifth) branch of government, rewriting American history to retroactively justify the revolutionary changes to the American conception of rights, liberties, and the proper role of government that the New Deal precipitated and institutionalized.

Ultimately, this short review cannot do justice to the brilliance of Kersch's insights, or the breadth of his research. Suffice to say that Kersch is fully up to the challenge of explaining and defending a revisionist thesis of tremendous magnitude. Constructing Civil Liberties is simply the most provocative and enlightening book on constitutional history that I have ever read.

I was talking to my Hoover colleague and noted diplomatic historian Philip Zelikow, and he mentioned this recent book of his; I asked him for a quick summary of his conclusions, and he was kind enough to put one together for me:

For five months, from August 1916 until the end of January 1917, leaders secretly struggled to end the Great War. Most of their struggle was out of public sight. It is still little understood today.

The spotlights have long been trained on how the war started. Scholars have minutely studied every move and countermove in the "July crisis" of 1914. Few have noticed or discussed why the war did not end in late 1916 and early 1917.

In many ways, these choices not to end the war are more interesting than the ones to start it. In July 1914, it was hard to see all the consequences of the choices. Time and options were extremely compressed. Between August 1916 and January 1917, the leaders had months to work and the stakes were tragically visible.

Few know that the German government secretly sought peace and pleaded for Wilson to mediate a peace conference. This was a direct move made at the top, coordinated with allies and key political figures in Germany.

Few know that Wilson entirely recognized the significance of this move and sought to act on it as quickly and emphatically as he could. He placed it at the top of his agenda as soon as he was reelected. Wilson also knew he had practically absolute leverage—mainly financial—over the Allied ability to continue the war. Given the political climate in the warring countries, much rested on the Americans, to give the peacemakers in all the warring capitals the face-saving way out.

Few know that the divided British coalition government was intensely, secretly, debating its own growing pessimism about the war and its imminent bankruptcy in the dollars to sustain it. These debates were quickened by a still deeper layer of secret knowledge. British intelligence had learned of the secret German peace move.

Politics

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From yesterday's N.C. Court of Appeals decision in Fox v. Lenoir-Rhyne Univ., written by Judge Fred Gore and joined by Chief Judge Chris Dillon and Judge Donna Stroud:

Plaintiffs … were recruited to play women's basketball at Lenoir-Rhyne University …. During the height of COVID-19 in the 2020-2021 basketball season, there were racial tensions within the basketball team that caused the coaches and some administrative personnel to hold a meeting with the team. The team agreed to limit their team communication to only basketball-related and team goal-oriented discussions. Plaintiff Fox organized a "Symposium" for the basketball team and other university administrators to discuss racial prejudice, and later organized a second symposium, "The Talk," open to the entire university, to further discuss racial prejudice. Plaintiff Fox alleges the coaches sought to "retaliate" against her and other African American teammates after these events.

Plaintiffs attested in their affidavits that they were forced off the basketball team at the end of the 2020-2021 basketball season. Plaintiff Fox had a meeting with the coaches in which the coaches told her she did not fit into the culture of the team and that she would not be welcomed back onto the team for the 2021-2022 basketball season. The coaches offered to still give plaintiff Fox her full scholarship for the 2021-2022 basketball season. [Further details of actions taken with respect to to other plaintiffs omitted. -EV] …

{Plaintiff Fox [later] published a letter on social media, entitled "An Open Letter to Lenoir-Rhyne University" along with multiple social media pictures entitled, "The Racist 'Culture' of Lenoir-Rhyne University," "Quotes From Racist Teammates," "The Coaching Staff," "The NCAA & LR," and "Ignorance." Within the letter and social media posts, plaintiff Fox made claims of racism against coaches, basketball teammates, Lenoir-Rhyne, and claimed multiple players were forced to leave the basketball team because of racism.}

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12/4/1933: Nebbia v. New York argued.

[UPDATE 12/4/2024 10:55 am: Esquire revised the post [UPDATE: see here for the revised version]; I hope to blog a bit more about that later today, but for now I just wanted to flag that.] [UPDATE 12/4/2024 5:32 pm: Esquire has now deleted the post altogether, so I don't anticipate blogging about the revised version.]

Esquire posted an item Dec. 3 titled "A President Shouldn't Pardon His Son? Hello, Anybody Remember Neil Bush?" and subtitled "Nobody defines Poppy Bush's presidency by the fact that he pardoned his progeny. The moral: Shut the fck up about Hunter Biden, please." It relates some of Neil Bush's exploits, and states:

[T]his lucky American businessman['s] … father exercised his unlimited constitutional power of clemency to pardon the Lucky American Businessman for all that S&L business way back when. The president's name was George H.W. Bush. The Lucky American Businessman was his son, Neil ….

However, as others have noted (and see also some of the comments to the article), the Justice Department pardon and clemency site doesn't appear to have any record of any pardon to Neil Bush: I've checked the name search function, the Bush Sr. pardon list, and the Bush Sr. commutations list. A 2003 Washington Post article that describes Neil Bush as "the latest manifestation of a long tradition in American life—the president's embarrassing relative" doesn't mention any pardon or clemency, or even any conviction. It says,

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Isaac Schorr (Mediaite) reports that "The View's Ana Navarro-Cárdenas" posted a tweet defending President Biden's pardon of his son by stating, among other things, "Woodrow Wilson pardoned his brother-in-law, Hunter deButts." But apparently Wilson's never had or pardoned a brother-in-law with that name, Schorr reports. And Navarro-Cárdenas' defense (after being called on her original post by Twitter users) seems to be to point to ChatGPT:

The Twitter comments are quite amusing. See also The Independent (Kelly Rissman ).

UPDATE: Apologies for my error: I had originally written "CNN The View Commentator …," but I should have written "CNN, The View Commentator" (and I've now corrected it). Ana Navarro-Cárdenas is a commentator both on CNN and The View. Thanks to commenter jdgalt1 for pointing this out!

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From Chehade v. Foley & Lardner, LLP, decided today by Judge Sharon Johnson Coleman (N.D. Ill.):

The following facts are accepted as true for the purpose of resolving Defendant's partial motion to dismiss.

Plaintiff is an Arab Muslim woman who graduated from Georgetown University Law Center in 2023. While in law school, Plaintiff worked at Defendant's Chicago law office as a summer associate during Summer 2022. On July 29, 2022, Defendant offered Plaintiff a position as a full-time associate attorney, starting in Fall 2023, after Plaintiff's law school graduation.

When applying for summer associate positions, Plaintiff alleges that a law firm's commitment to diversity and retaining diverse associates was important to her as an Arab Muslim woman. Because Plaintiff saw no references to either "Muslim" or "Arab" in Defendant's recruiting materials and learned that Defendant had no specific affinity group for Muslim or Arab attorneys, Plaintiff decided to discuss her concerns with Alexis Robertson, Defendant's Director of Diversity and Inclusion. In July 2022, Plaintiff spoke with Robertson to ensure that Defendant would support her "authentic self." Plaintiff alleges that Robertson promised her that Defendant "valued and supported [her] Arab Muslim heritage and perspective and embraced her history and values." Plaintiff alleges that Robertson's assurances were critical to her decision to accept the full-time employment offer and not pursue other job opportunities.

Free Speech contract law

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Another day, another leak story in the New York Times. This time, Jodi Kantor turns her attention to the Supreme Court's "ethics debate." This piece is far less earth-shattering than Kantor's prior reports. The biggest reveal is that Justice Gorsuch wrote a ten-page memo opposing any efforts to make the ethics code "enforceable." Everything else reported either reflects what the Justices have said in public, or can be reasonably inferred from what the Justices said in public. The bigger story, of course, is that leaks are still coming from the Court--and these leaks are designed to impugn and attack those on the "wrong" side of legal issues.

Let's go through it.

First, we learn that Judge Robert Dow, the Chief's Counselor, prepared the first draft:

In May 2023, the chief justice made a public concession, saying the court could take further steps to "adhere to the highest standards" of conduct. Three months later, he gave his colleagues the first draft of the code, prepared by Judge Robert M. Dow Jr., a staff member who advises the chief justice. It was modeled on the one for federal judges, according to several people familiar with the process.

Relatedly, there is an office at the Court that provides ethics advice, though some justices do not seek it "consistently." I'm not sure this fact has been reported before:

While a legal office at the court dispenses ethics advice to justices upon request, the counsel is not binding, and not all the justices have consistently sought it out, according to several people familiar with the office.

Second, the Court's progressives supported a code that can be enforced. Justices Kagan and Jackson (but not Sotomayor) have said as much in their public remarks. Sotomayor also has gotten in trouble for her book events.

All three liberals — Justices Sotomayor, Kagan and Jackson — supported enforcement.

In an apparent attempt to make a higher level of scrutiny palatable to their colleagues, Justice Kagan proposed an initial step, involving a small group of veteran federal judges, according to people familiar with the discussions. She sketched out what she called a "safe harbor" system that would give the justices incentive to consult the judges about ethics issues. Later, if the justices were criticized — say, for accepting a gift — they could respond that they had obtained clearance beforehand.

"There are plenty of judges around this country who could do a task like that in a very fair-minded and serious way," Justice Kagan said at a public appearance this year.

Third, the Court's conservatives were not interested in negotiating on this point. Here, Kantor repeats her claim about the Trump immunity decision--there was no attempt to play ball with the liberals.

That modest proposal went nowhere.

…

The three liberal justices insisted that the rules needed to be more than lofty promises. But their argument never had a chance.

Fourth, the liberals signed the code, even though it lacked any enforcement mechanism. This was the best they can do. Yet, Kagan has continued to criticize it publicly.

In the fall of 2023, Chief Justice Roberts, seemingly determined to emerge with something to show the nation, circulated a revised version of the new code and urged his colleagues to sign it, according to people from the court. It had no means of enforcement. The liberal justices decided this was the best they could get, at least for the moment. All nine members of the court signed.

Fifth, the villain of the story is Justice Gorsuch. Kantor reveals that Gorsuch wrote a ten-page memorandum opposing it.

Justice Gorsuch was especially vocal in opposing any enforcement mechanism beyond voluntary compliance, arguing that additional measures could undermine the court. The justices' strength was their independence, he said, and he vowed to have no part in diminishing it.

The justices began discussing the proposal inside their private conference room and through memos. One from Justice Gorsuch, raising questions and cautions, stretched to more than 10 pages.

This is a reveal not only of the memo, but that it was discussed in conference, and subsequent writings. For the second time in a few months, Kantor has now revealed a private correspondence from Gorsuch. In September, she wrote about Gorsuch's note to Roberts about the Trump immunity decision.

Sixth, Kantor also links Gorsuch's opposition to the code with his general opposition to administrative regulations:

Justice Gorsuch, Mr. Trump's first appointee to the court, is known for his no-one-tells-me-what-to-do streak, with warnings of government overreach and a record of libertarian, sometimes-unpredictable rulings. As a teenager, he watched his mother, then the head of the Environmental Protection Agency, face a bruising congressional investigation into the mismanagement of a toxic waste program and eventually resign.

At the time the justices were debating the ethics questions, Justice Gorsuch was working on a book asserting that Americans were afflicted with too many laws. He warned colleagues that enforcement could undermine the independence of the court by putting other figures in a position to judge the justices, according to several people familiar with the discussions. Justice Alito echoed some of those concerns.

This sort of reporting is not just inferential. She seems to be relaying how Gorsuch tied together his new book and the ethics code--or at least how those on the Court perceived Gorsuch's comments. I suspect some of Gorsuch's colleagues were none too pleased with his book talk during the conference.

Seventh, Kantor writes that Alito and Thomas said those who support the code were being political. Alito said as much to the Wall Street Journal, so nothing surprising here.

In the private exchanges, Justice Clarence Thomas, whose decision not to disclose decades of gifts and luxury vacations from wealthy benefactors had sparked the ethics controversy, and Justice Samuel A. Alito Jr. wrote off the court's critics as politically motivated and unappeasable.

Eighth, Kantor explains the deliberations about the ethics code were super-super secret:

The discussions were treated with extra secrecy because they were so sensitive, according to people from the court. Instead of the usual legal issues, the justices were contending with controversy about finances and gifts from friends, and some of the ground rules of their own institution.

But no so secret that she didn't get the goods.

Ninth, Kantor offers these comments on sourcing

To piece together the previously undisclosed debate, The Times interviewed people from inside and outside the court, including liberals and conservatives, who spoke on the condition of anonymity to discuss the proceedings and the justices' thinking. This article also draws upon public statements by the justices, who declined to comment.

It is significant that Kantor indicate she spoke to both "liberals and conservatives." Past reporting did not have this note. It is also true that the Justices "declined to comment" on the article, but that doesn't mean the Justices did not speak to Kantor.

So who leaked? Well, here is what I wrote about Kantor's article on the Dobbs leak:

Second, and I alluded to this point in my earlier post, Justice Kagan is absent from this reporting. There is absolutely nothing about what she thought or did during these deliberations. There are insights into all of the other eight Justices, but nothing on Kagan. This isn't new. Back in the day when Biskupic got the scoops, Kagan was also largely absent. I think it likely that Kagan, or at least Kagan surrogates, are behind these leaks. If Kagan is willing to publicly undermine her colleagues in a speech at the Ninth Circuit, why would she do any less off-the-record? Moreover, this entire story is consistent with Kagan's MO, and describing the Court as bending over backwards for Trump.

This passage accurately describes Kantor's most recent article, if you substitute the emphasized text with "and criticizing the code for not being enforceable."

Also noticeably absent are Justices Barrett and Kavanaugh. They appear nowhere in the story. Even as Gorsuch is thrown under the bus, and Alito and Thomas are criticized.

Anyway, Merrick Garland still has not resigned. Nor has Chief Justice Roberts.

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The court just agreed to this last Wednesday; here's the earlier panel decision (Henderson v. Springfield R-12 School Dist.)—which will now be reconsidered—written by Eighth Circuit Chief Judge Steven Colloton and joined by Judges James Loken and Jane Kelly:

During the 2020-21 school year, the school district required employees to attend a presentation entitled, "Fall District-Wide Equity Training." Attendees were paid for their time and received professional-development credit.

The school district provided in-person and virtual training. At the in-person training, school officials instructed the attendees on how to become "Anti-Racist educators, leaders and staff members." The district defined "anti-racism" as "the work of actively opposing racism by advocating for changes in political, economic, and social life." The presenters cautioned that actions like practicing color-blindness and remaining silent about racism perpetuated white supremacy.

The presenters stated, "We want to stress that we are not calling you as an individual a white supremacist. That being said, certain actions or statements … can support that structural system of white supremacy." The presenters also displayed an "Oppression Matrix" that categorized various social groups as a privileged, oppressed, or border group. For example, within the category of race, the matrix identified white people as a privileged social group, biracial people as a border group, and Asian, Latina/o, black, and native people as oppressed social groups. At the virtual training, the school district provided similar instruction.

Some employees were also required to complete online modules in which they watched videos, read articles, and answered multiple-choice questions relating to equity and diversity. For example, one question asked: "When you witness racism and xenophobia in the classroom, how should you respond?" Employees could select one of two options: (1) "Address the situation in private after it has passed"; or (2) "Address the situation the moment you realize it is happening." The module deemed the second option the correct answer. If the employee selected the first option, then a message appeared explaining why the choice was "incorrect." To complete the module, employees had to select the "correct" answer.

Free Speech

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From yesterday's decision in Matsumoto v. Labrador, written by Ninth Circuit Judge Margaret McKeown and joined by Judge John Owens:

This case concerns a unique legislative undertaking: an "abortion trafficking" statute. Idaho Code § 18-623. Idaho defines the crime of "abortion trafficking" as "procur[ing] an abortion" or "obtain[ing] an abortion-inducing drug" for an unemancipated minor by "recruiting, harboring, or transporting [a] pregnant minor" with the intent to conceal the abortion from the minor's parents or guardian. This provision appears to be the first post-Dobbs statute to criminalize the act of helping another person obtain an abortion, even if that abortion is legal in the state where it occurs….

[We conclude that] the statute's provision on "recruiting" violates the First Amendment by prohibiting "a substantial amount of protected speech relative to its plainly legitimate sweep." … [But we conclude that] the prohibition of "harboring and transporting" … do not violate Challengers' First Amendment rights. We also conclude that the statute is neither void for vagueness nor facially in violation of the First Amendment rights of association….

Before launching into an analysis of the statutory text, we note that this statute is unusual among trafficking statutes, despite its "abortion trafficking" title. There are two fundamental dissimilarities between Section 18-623 and traditional trafficking statutes. To begin, traditional human trafficking statutes typically apply to coercive conduct and/or the facilitation of universally illegal purposes. In contrast, Section 18-623 criminalizes non-coercive as well as coercive conduct for the procurement of legal abortions—for instance, performed in Oregon or Washington—as well as illegal ones. The term "trafficking," whether of humans or otherwise, is also usually defined with respect to an illegal trade with economic motive. In contrast, Section 18-623 does not contemplate any type of trade or economic motive….

[A.] Void-for-Vagueness Challenge

Free Speech Abortion

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From Carver v. Grace, decided today by Judge Carl Barber (E.D. La.):

This defamation case derives from the alleged rape and tragic death of an LSU student, Madison Brooks, in Baton Rouge, Louisiana. After a heavy night of drinking, Madison Brooks left a Baton Rouge bar with Plaintiffs Casen Carver and Everett Lee and their two male companions, Kaivon Washington and Desmond Carter.

Less than an hour later, Madison Brooks was dropped off at Pelican Lakes Neighborhood, the entrance of which is off Burbank Drive. Madison Brooks was later hit and killed by a motor vehicle on Burbank Drive. Kaivon Washington and Desmond Carter were indicted for raping Madison Brooks in the backseat of the car. Plaintiff Casen Carver, the driver, was indicted for first-degree rape, third-degree rape, and video voyeurism Plaintiff Everett Lee rode in the passenger seat and remains under investigation….

Plaintiffs allege Nancy Grace and iHeartMedia made defamatory statements by … on (1) [Nancy Grace's] YouTube program titled "Nancy Grace Analyzes Defense Reaction to Damning Video of Attack on LSU Coed" ("Crime Online Show") and (2) on an episode of Nancy Grace's podcast, distributed by iHeartMedia, Crime Stories with Nancy Grace, titled "Haunting Video of LSU Beauty Madi Brooks Who Dies After 3 Men Allegedly Sex Assault" (Crime Stories Podcast")….

Considering the statements as whole in the context in which they were made, the Court finds Nancy Grace and iHeartMedia's statements are not actionable. The statements are not defamatory because they are either not "of and concerning" the Plaintiffs; substantially true; Nancy Grace's opinion; and/or based on statements of law enforcement officials….

Free Speech Libel

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From Judge Fernando Aenlle-Rocha (C.D. Cal.) in KBS Holdco, LLC v. City of West Hollywood, decided July 8 but just recently posted on Westlaw:

The amendments to the Sunset Specific Plan (the "Amended Billboard Plan") include "new standards and guidelines to regulate the distribution, size, location, and operation of new and modified billboards and tall walls," and design principles intended to "ensure high-quality signage projects that are creative, contextual for Sunset Boulevard, and sensitive to adjacent land uses." Under the Amended Billboard Plan, applications for new off-site signs must be "screened for design excellence in accordance with a process and procedures established by the City Manager, or designee" and granted concept awards, before applicants may apply for development agreements with the City. According to Plaintiff, the City Manager or his or her designees created the Sunset Arts and Advertising Program to conduct the screening process and delegated all discretion and decision-making authority to the Design Excellence Screening Committee (the "Screening Committee")….

Round 2 applications were reviewed and scored by the Screening Committee on ten "evaluative criteria" stated in the Submission Guide. Applications were required to receive an average weighted score of 225 out of 250 points to secure a concept award. These criteria and their associated point values were:

1) "Is the design exceptional (see Section 2.1 'Design Quality' of the 2019 Billboard Policy)" – 50 points;

2) "Does the project create a unique opportunity for the display and experience of public art?" – 30 points;

3) "Does the project showcase a commitment and sensitivity to the importance of diversity in the architectural design and/or advertising industry?" – 30 points;

4) "Does the project create and sustain a positive land use outcome? (New development project, rehab of building, preserve an important building or use)" – 30 points;

5) "Does the project add value to the public realm, the experience of place, and the pedestrian experience along Sunset?" – 25 points;

6) "Does the project create valuable signage that reinforces Sunset as the premier destination for creative advertising?" – 25 points;

Free Speech

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12/3/1996: Printz v. U.S. argued.

Politics

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In my post last night, I noted that President Biden's issuance of the pardon to his son does not exactly end his pending criminal cases. During the first Trump administration, even after Trump pardoned Joe Arpaio, Michael Flynn, and Steve Bannon, those cases continued.

Yesterday, Hunter's attorney filed a motion to dismiss the indictment.

Defendant Robert Hunter Biden respectfully provides notice of a Full and Unconditional Pardon that requires dismissal of the Indictment against him (D.E. 1) with prejudice and adjournment of all future proceedings in this matter. . . . The President's pardon moots Mr. Biden's pending and yet to occur sentencing and entry of judgment in this case and requires an automatic dismissal of the Indictment with prejudice.

Today, Special Counsel David Weiss has filed an opposition to the motion to dismiss. Something tells me that these briefs were drafted some time ago, in anticipation of a potential Biden pardon. Here is the introduction of Weiss's motion:

On December 1, 2024, media outlets reported that the President had issued a pardon for the defendant. Shortly thereafter, defense counsel filed "Defendant's Notice of Pardon." The defendant did not attach the pardon to its filing and the government has not received a copy of it. In that filing, defense counsel asserted, without any legal support that, "a Full and Unconditional Pardon [] requires dismissal of the Indictment against him," and further that the pardon "requires an automatic dismissal of the Indictment with prejudice." Notice at 1. Defense counsel misrepresents the law. Nothing requires the dismissal of the indictment in this case.

The issues here are very murky, and have been debated for some time. Some scholars view a pardon as effectively wiping out the conviction, as if it never occurred. Other scholars view the pardon as simply denying any consequences that flow from the conviction, yet the conviction remains intact. The ruling in the Arpaio case leans towards the latter position. Hunter favors the former view.

A pardon is surely binding on the executive branch, but is it binding on the courts? Is a pardon the Supreme Court of the Land, in the same sense that a statute or ratified treaty is? Even if the conviction is vacated, could a state charge Hunter with a crime like "felon in possession," or use the federal conviction as the predicate offense for a state RICO charge? There are lots of questions I have been mulling over all day.

It is just about 5:00 pm, and Merrick Garland still has not stepped down. Does Biden now move to have David Weiss removed to protect his son? I hope Garland has that resignation letter ready.

A couple of people asked me this; the short answer:

[1.] Because the privilege applies only when a witness reasonably fears prosecution, and the pardon precludes prosecution for any "offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024," a pardon may indeed eliminate the privilege, and allow a court or congressional committee to order Hunter Biden to testify. "[I]f the witness has already received a pardon, he cannot longer set up his privilege." Brown v. Walker (1896). "[A] witness may be compelled to testify concerning his involvement in a crime when he is protected from later prosecution … by the applicable statute of limitations … or by a pardon." Pillsbury Co. v. Conboy (1983) (Marshall, J., concurring) (citing Brown).

[2.] But the privilege disappears only when there's no realistic prospect of prosecution by any American government, federal or state. So if a witness is asked about something, and the answer might lead to state prosecution for which the state statute of limitations hasn't run, the witness can refuse to testify because of that risk of state prosecution, even if a federal prosecution is taken off the table by the federal pardon. (Recall that a Presidential pardon only pardons for federal crimes.) This is relevant because some conduct can violate both state and federal law.

How this would play out as to any particular investigation of Hunter Biden's behavior, I leave to others.

Fifth Amendment Pardons

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