The Volokh Conspiracy

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

I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ. This Part explains how badly split lower court decisions are. (Recall that one of the main reasons the Court steps in to resolve lower court cases is to resolve inconsistencies that would lead to different results in similar cases throughout the country.)

[A.] This Court has not given lower courts guidance

This Court has never decided when pseudonymity should be allowed. When parties have requested this Court's permission to file a writ of certiorari pseudonymously, this Court has granted or denied that request without explanation. See, e.g., Doe v. Mich. Att'y Grievance Comm'n, 519 U.S. 946 (1996) (denying); Foe v. Cuomo, 498 U.S. 892 (1990) (granting). This Court has sometimes reviewed pseudonymous cases (Roe v. Wade is a famous example), but in doing so it has never discussed in any detail when pseudonymity should be allowed.

This Court has recognized the common-law public right of access to judicial records, Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-99 (1978), and the First Amendment right to attend criminal trials, Richmond Newspapers, 448 U.S. at 580. But while those rights are connected to the public's right to know the names of parties in civil cases, see supra Part I.A, this Court's precedents do not set forth any meaningful guidance on when the interests favoring pseudonymity can overcome that right.

Nor do the Federal Rules of Civil Procedure give much guidance (except by mandating pseudonymity for minors, Rule 5.2(a)(3)). Many courts have inferred a presumption against pseudonymity from Rule 10(a) ("The title of the complaint must name all the parties") and Rule 17(a) ("An action must be prosecuted in the name of the real party in interest"). See, e.g., Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992). But the Rules say nothing about when pseudonymity is nonetheless permissible. The lower court cases allowing pseudonymity in some situations have thus proceeded without either this Court's or the Rules' guidance.

[B.] The circuits are split into three groups on pseudonymity

The petition accurately summarizes the circuit split:

The Seventh Circuit allows pseudonymity in narrow circumstances, seemingly limited to situations where the litigant "is a minor, is at risk of physical harm, or faces improper retaliation (that is, private responses unjustified by the facts as determined in court)." Pet. 10a.
Ten circuits apply different non-exhaustive, multifactor tests. See, e.g., United States v. Pilcher, 950 F.3d 39, 42 (2d Cir. 2020) (ten factors); Femedeer, 227 F.3d at 1246 (10th Cir.) (four factors).
The First Circuit rejects both a multifactor test and "sharp, categorial exceptions to the strong presumption against pseudonymity," and instead identifies "four general categories of exceptional cases in which party anonymity ordinarily will be warranted." Doe v. Mass. Inst. of Tech., 46 F.4th 61, 70-72 (1st Cir. 2022).

But beyond this formally visible circuit split, lower courts that adopt various multifactor tests disagree on how to interpret each factor, generally without acknowledging the disagreement.

[1.] Consider, for instance, a recurring question: Does risk of reputational, economic, or professional harm suffice to let a litigant proceed pseudonymously? Most courts generally say no: "That a plaintiff may suffer embarrassment or economic harm is not enough." Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011); Volokh, supra, at 1420-23, 1457-60 (citing many cases that take this view).

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From yesterday's Fifth Circuit decision in Favre v. Sharpe, by Judge Leslie Southwick, joined by Judge Kyle Duncan and Judge Jeremy Kernodle (E.D. Tex.):

Brett Favre … was named three times as the NFL's Most Valuable Player, had a Super Bowl victory, and was selected for the NFL Hall of Fame. Much more recently, his public image has been somewhat tarnished by his connection to individuals who were convicted for the misuse of government welfare funds and his alleged receipt of some of those funds….

In October 2021, the Mississippi State Auditor's Office determined more than $77 million in federal Temporary Assistance for Needy Families ("TANF") funds intended to help impoverished Mississippians were used for illegal purposes across the state. To date, six individuals have pled guilty to state and federal felony charges related to their involvement in this scandal. Favre has not been criminally charged. Mississippi's Department of Human Services ("MDHS") filed a civil suit in May 2022 against Favre and numerous persons, seeking to recover TANF funds that were unlawfully diverted between 2016 and 2019.

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9/17/1787: The Constitution is signed.

Happy Constitution Day!

Last week I wrote about the Fifth Circuit's decision in United States v. Rahimi, on remand from the Supreme Court. The panel explained that the Supreme Court "modified" Bruen. Though the Supreme Court reversed the Fifth Circuit, in candor, the Fifth Circuit should not be faulted for faithfully applying the precedent that existed at the time.

Yesterday, the Fifth Circuit decided another case on remand from the Supreme Court: Alliance for Hippocratic Medicine v. FDA. The panel remanded the case back to the district court. I know this is another case that is scored as a reversal for the Fifth Circuit. But here the Solicitor General altered the government's position, so the Supreme Court resolved a different dispute than the one faced by the Fifth Circuit. Specifically, SG Prelogar made very specific representations in AHM, as well as in Moyle, that federal conscience law would protect doctors. And with those concessions, the Court unanimously reversed. I wrote about Prelogar's switch in time that saved nine here.

Judge Ho wrote a concurrence which explained, in some detail, how the case changed on appeal.

First, Ho explained that the Fifth Circuit faithfully applied Supreme Court precedent to the case, as it existed at the time:

That's exactly what happened here. Both the district court and this court applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit. We all agreed that they do. No member of this court disagreed—not on the motions panel, the merits panel, or the en banc court.

Second, Ho demonstrates that the Court's decision was premised on the Solicitor General's flipped position:

The Court reversed, but only because, "as the Government explains, federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences." Id. (emphasis added). There's a simple reason why our court—unlike the Supreme Court— was uncomfortable trusting federal conscience laws to protect doctors: The Government has taken precisely the opposite position on federal conscience laws in other cases and in other courts—including ours.

In the Fifth Circuit, and other courts, the government vigorously argued that conscience laws would not exempt doctors from offering abortion care:

In our court, the Government insisted that federal law "requires doctors to offer abortion care to individuals when that care is necessary stabilizing treatment for an emergency medical condition." Brief for Appellants, Texas v. Becerra, 2023 WL 3345254, *25 (5th Cir. 2023) (emphasis added). "When pregnant women come to a Medicare-funded hospital with an emergency medical condition, EMTALA obligates the treating physician to provide stabilizing treatment, including abortion care." Id. at *27 (emphasis added). "[P]ermitting physicians to refuse to provide care that they deemed 'medically or ethically inappropriate' directly conflicted with EMTALA's stabilization requirement." Id. at *26 (citing In re Baby K, 16 F.3d 590, 597 (4th Cir. 1994)).

But before the Supreme Court, SG Prelogar did a 180.

But the Government switched positions before the Supreme Court. It "disclaimed that reading of EMTALA." Alliance, 602 U.S. at 389 (emphasis added). It now believes that "EMTALA does not 'override an individual's doctor's conscience objections.'" Id. (emphasis added). It now agrees that "'[h]ospitals must accommodate doctors'" who have "conscience objections." Id. Moreover, a representation by the Solicitor General to the Supreme Court carries greater weight than a statement by Government counsel before the inferior courts.

You cannot fault a lower court for relying on the argument the government presented. The Fifth Circuit cannot anticipate how the Biden Administration would try to salvage the case before the Supreme Court. All of these lists of reversal rates truly fail to consider how the Fifth Circuit is treated on appeal.

Third, Judge Ho explains that the government also reversed its position in Moyle (which I discussed here):

So the Court reversed because the Government reversed.[FN1]

[FN1] The Government also reversed itself in Moyle v. United States, 603 U.S. _ (2024). In the district court, the Government insisted that EMTALA "requires a physician to offer an abortion." Reply Memorandum in Support of Motion for a Preliminary Injunction at 6, United States v. Idaho, 623 F. Supp. 3d 1096 (D. Idaho 2022) (No: 1:22-cv-00329). But the Government again switched positions before the Supreme Court. See Brief for the Respondent, Moyle v. United States, 2024 WL 1298046, *17 (2024) ("EMTALA's stabilization obligation is imposed on 'hospitals,' not on 'individual providers'") (quotations omitted).

Fourth, there is another ground to criticize the majority opinion. The Court failed to consider one theory of standing on which Judge Ho relied: aesthetic injury standing.

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

This argument truly made people lose their minds. But it was an argument in favor of jurisdiction, and it was grounded in fairly well-established environmental law.

Judge Ho explains that the AHM Court favorably cited several decisions about aesthetic injury in the context of environment law, but ignored the aesthetic injury argument.

Second, the Court also reaffirmed its longstanding directive to inferior courts to address novel questions of standing by analogizing the Court's precedents in other areas of the law—including environmental law.

Before the Court dismisses a case for lack of jurisdiction, it has the responsibility to at least consider all the grounds for standing expressed below. And this argument was simply ignored by Justice Kavanaugh's majority opinion, and Justice Thomas as well.

***

I know it is en vogue to criticize Judge Ho--I've lost count of the number of "profiles" about him by the media. But Judge Ho is one of the few members of the federal judiciary who is willing to point out where the Supreme Court errs. It is true he is an inferior court judge, but inferiority does not demand subordination. Lower court judges can, and should, identify Supreme Court precedents that have been eroded by more recent decisions. Lower court judges can, and should, identify where the Supreme Court has quietly eroded its own decisions. And lower court judges can, and should, point out when the Supreme Court failed to consider all of the claims that were properly presented, including jurisdictional arguments. These three responsibilities are especially apt when the Supreme Court purports to reverse a lower court, which in fact faithfully applied precedent as it existed at the time.

We're still not quite done with remands. Let's see what the Fifth Circuit panel does on remand in NetChoice v. Paxton. The Supreme Court's "facial" analysis in that decision left much to be desired.

The final published version of my article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson" (Cato Supreme Court Review) is now up on SSRN, and available for downloading. Here is the abstract:

In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the majority ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy. And even the unanimity is undermined by four justices' rejection of key parts of the majority's reasoning.

Section 3 states that "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.

In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for "insurrection." Part III considers the question of whether the January 6 attack qualifies as an "insurrection," and—more briefly—whether Trump "engaged" in it. The answers to both questions are "yes," though the second is a closer call than the first. Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court's effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.

The Swiss publication Schweizer Monat invited me to write an article making the case for "open borders" immigration policy, which I was happy to do. It came out today. There are both English language and German versions. Here is an excerpt from the English version:

I was born in the Soviet Union in 1973. The life of most residents of that totalitarian state was one of poverty and oppression. Several of my relatives had been victims of the government's repressive policies. In addition, as Jews they often felt the weight of the regime's institutionalized anti- Semitism. I was freed of all that because my parents and I were able to leave the USSR for the United States in 1979. I am, as a result, vastly better off than my peers who stayed in Russia. But virtually all of the difference between my life and theirs is the result of the difference between American institutions and Russian ones, not any merit of mine. Had I remained in Russia, I would likely still be poor, and might well have become a victim of Vladimir Putin's repressive policies, or been caught up in his brutal war of aggression against Ukraine. My life is just one of many transformed for the better by migration. More people should have the same opportunity.

The idea of "open borders" migration may seem impossibly radical. Most people take it for granted that governments have the right to restrict immigration. But more careful consideration shows that an "open borders" policy is a natural outgrowth of liberal democratic ideals of liberty and equality. Moreover, immigration has enormously beneficial effects for natives, as well as immigrants themselves. There can be negative side-effects of migration. But most can be dealt with through "keyhole solutions" that do not require migration restrictions.

The rest of the article summarizes the moral and economic advantages of free migration, and addresses several standard objections. I cover these and related issues in much greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. See also my recent post on "What Milton Friedman Got Wrong About Immigration and the Welfare State," which gives a more extensive critique of an objection of special interest to many libertarians and conservatives.

When last we checked in on Juliana v. United States -- the first "kids climate case" -- the U.S. Court of Appeals for the Ninth Circuit had granted the Department of Justice's petition for a writ of mandamus and ordered the case dismissed. As I noted at the time, this order was unsurprising and quite warranted. That should have been the end of the matter -- but it wasn't.

Last week, the Juliana plaintiffs filed a petition for a writ of mandamus with the U.S. Supreme Court seeking to vacate the Ninth Circuit's order and thereby revive the case for further proceedings in the district court..

The New York Times reported credulously on the filing, as if it had much legal merit or any realistic possibility of succeeding.

This kind of request to the Supreme Court is unusual, but the plaintiffs supported their position by arguing that the federal government had stymied the process with similar courtroom maneuvers over the years.

"Unusual" is quite the understatement, but it is true the plaintiffs "supported their position" with arguments -- albeit arguments that are quite unlikely to prevail.

A better take can be found at at Legal Planet, where Professor Daniel Farber coldly observes "there is no chance that plaintiffs will get their writ from the Supreme Court." Farber explains:

First, even if the Ninth Circuit was wrong, granting mandamus is discretionary. From the perspective of at least six Justices, any procedural mistake by the Ninth Circuit was harmless error. I am certain that every member of the conservative majority, rightly or wrongly, views the plaintiffs' constitutional claim as baseless. . . . From their point of view, the procedural question in Juliana is only whether the Ninth Circuit should have waited a little longer before doing the inevitable and killing the case.

Putting the issue of harmless error aside, there's a deeper reason why the plaintiffs will likely fail. The district judge contemplates a lengthy trial about broad government policies, after which she would opine on their legality. A recent Supreme Court case might illustrate why this is problematic. The Supreme Court recently ruled that states didn't have standing to challenge a presidential policy on immigration enforcement. Suppose that on remand, the trial judge proposed a lengthy public hearing broadly examining all aspects of the Biden Administration's immigration programs, which would be followed by a judicial thumbs up or thumbs down. You can see why the Supreme Court might view this kind of wide-ranging hearing as raising separation of powers concerns.

The plaintiffs rely heavily on a case called Cheney that dealt with mandamus. But there's another aspect of the Cheney case that the plaintiffs don't discuss: The Supreme Court chastised the lower court for slighting the serious separation of powers aspect of the case in denying mandamus. I suspect that the Court will also think that putting an immense swathe of government policy on trial also violates the separation of powers — especially in a case where they are deeply skeptical of the underlying constitutional claim.

This is not the first time this case has been brought to the justices' attention, and there is no reason to believe that there is a single justice on the Court who believes the Ninth Circuit previously erred on being too quick to dismiss the plaintiffs' claims. To the contrary, on more than one occasion the justices signaled their displeasure with the Ninth Circuit's failure to rein in the district court. Given this background, to call the latest filing audacious would be an understatement.

From the start, the Juliana litigation embraced aspirational arguments that cut against the grain of contemporary constitutional jurisprudence (a point I develop in this symposium essay). It may have been a useful vehicle for raising awareness about the problem of climate change--it has certainly generated more than its share of favorable press coverage--but there was never much chance its claims would be embraced in the courts, the Supreme Court in particular. Indeed, the Juliana plaintiffs should be glad if the case ends with an unpublished Ninth Circuit order as opposed to a substantive repudiation from the Supreme Court.

Today Bobby Debelak of the Eminent Domain Podcast posted his recent interview with me. We covered a range of topics related to eminent domain and constitutional property rights, including how I first became interested in property rights and eminent domain, The Grasping Hand (my book about Kelo v. City of New London and public use), how I represented the great urban development theorist Jane Jacobs (on whose behalf I wrote an amicus brief in Kelo), my more recent work on exclusionary zoning, and ways in which zoning, eminent domain and some other property rights issues cut across conventional ideological lines.

The audio of the interview is available here.

After a few months hiatus, this podcast has returned under new management, and I am grateful for the opportunity to be the first interviewee since Bobby took over as the new host of EDP, previously run by Clint Schumacher. This is Episode 130 of the podcast. Clint Schumacher interviewed me for it way back in Episode 4, around 2017.

From Henderson v. Springfield R-12 School Dist., decided Friday by Eighth Circuit Chief Judge Steven Colloton, 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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I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ. This Part explains why the question is important, which is part of the reason why we think the Court should take its time to review the matter; other Parts, which I'll blog shortly, explain how and why the decisions below are in conflict and therefore need the Court's attention.

Many of our readers may already be familiar with the arguments I lay out below, but this is my attempt to relatively crisply put them together.

[I.] Decisions about whether to permit pseudonymity are important to the public, to litigants, and to the justice system

[A.] Such decisions are important to the public

Public access to information about civil cases "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988). This access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and the Judiciary's "institutional integrity." Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir. 2014). "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).

"[A]nonymous litigation" thus "runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." Doe v. Village of Deerfield, 819 F.3d 372, 377 (7th Cir. 2016). "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997).

Party names often offer the best clue for discovering further information about the case. Consider journalists who write about civil litigation. Without party names, they are limited to what they can glean from the filings and what the pseudonymous parties' lawyers are willing to reveal.

But armed with the names, they can investigate further. They can contact the parties' coworkers, business associates, or acquaintances. They can search court records in other cases to determine whether the fact pattern in this case had led to other litigation. They can more generally see what other cases have been filed by the plaintiff or against the defendant and see whether the parties have been found to be credible or not credible in the past. They can determine whether the parties might have ulterior motives for litigating. See Volokh, The Law of Pseudonymous Litigation, at 1370-72.

Pseudonymity also tends to lead to additional restrictions on public access as a case unfolds. Because filed documents will often contain information that indirectly identify a pseudonymous party, courts may need to outright seal other case information or enjoin a party from publicly revealing the pseudonymous party's name (or other details of the lawsuit) in order to maintain effective pseudonymity. See id. at 1372-76.

And allowing pseudonymity in one case invites pseudonymization of all other cases that raise similar concerns, "open[ing] the door to parties proceeding pseudonymously in an incalculable number of lawsuits" of that kind. Doe v. Moreland, No. 18-cv-800, 2019 WL 2336435, *2 (D.D.C. Feb. 21, 2019); see also Doe v. Fedcap Rehab. Servs., Inc., No. 17-cv-08220, 2018 WL 2021588, *3 (S.D.N.Y. Apr. 27, 2018) ("At bottom, Plaintiff wants what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it."); Volokh, supra, at 1451-56.

Courts have therefore treated litigating under a pseudonym as implicating the right of public access to judicial proceedings. See, e.g., In re Sealed Case, 931 F.3d 92, 96 (D.C. Cir. 2019); Pub. Citizen, 749 F.3d at 274; Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001). And, because of this, all "circuit courts that have considered the matter have recognized a strong presumption against the use of pseudonyms in civil litigation." Does 1-3 v. Mills, 39 F.4th 20, 25 (1st Cir. 2022).

[B.] Decisions about whether to permit pseudonymity are important to enforcement of legal rules

At the same time, denying pseudonymity can also undermine the public policy that the civil causes of action are aimed to serve. Plaintiffs faced with the prospect of being publicly identified might choose not to litigate, and might thus forgo the remedies that civil causes of action exist to provide.

Free Speech Right of Access

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[Cross-posted with my Times of Israel blog]

As Times of Israel readers are well-aware, since October 7, anti-Israel groups have launched widespread assaults on the rights of Jewish Americans, especially but not exclusively on college campuses.

I regularly tweet (@ProfDBernstein) about these incidents and comment, "Where is the Justice Department? Where is the FBI?"

I often get responses like, "isn't the Department of Education investigating some of these colleges? What can the feds really do?"

The answer is that "the feds," and the Department of Justice in particular, could do a lot to protect American Jews, and they are doing little to none of it.

Here are some examples.

(1) The Ku Klux Klan Act prohibits conspiracies to deprive Americans of their civil rights. This Act could be invoked against student groups that are blocking Jewish students from traversing their campuses, as at UCLA, and against groups that blockade public roads, depriving people of their right to travel. The Act has been invoked in private lawsuits, but the Justice Department has not brought a single case.

(2) The FACE Act prohibits "the use of physical force, threat of physical force, or physical obstruction to intentionally injure, intimidate, interfere with or attempt to injure, intimidate or interfere with any person who is exercising or trying to exercise their First Amendment right of religious freedom at a place of religious worship." Hillel buildings serve as houses of worship, and various campuses have seen acts of intimidation of and interference with those students trying to enter or exit Hillel buildings. No one involved in these incidents has been charged under the act.

(3) Various complaints and lawsuits against universities have documented threats and assaults against Jewish students in violation of their civil rights. The Justice Department has not brought any criminal or civil charges against the perpetrators, with the exception of a Cornell student who threatened to kill Jewish students. Lower-level and less well-publicized threats, harassment, and assaults have not attracted Justice Department intervention.

(4) American intelligence officials have revealed that anti-Israel protesters are getting money from Iran, in violation of US sanctions laws. Despite this public revelation, no one has been indicted for receiving or serving as a conduit for this money. [Indeed, I wonder whether this information was released precisely because the intelligence folks are frustrated that Justice hasn't done anything about it.]

(5) For political reasons, police departments in cities including DC, Philadelphia, and Baltimore have refused requests by university officials to clear illegal, antisemitic campus encampments. This inaction violates the Fourteenth Amendment's guarantee of equal protection of the law. More narrowly, this abuse of police discretion violates the conditions on which cities receive billions of dollars in federal funds. The Justice Department seems entirely quiescent in the face of this malfeasance. Similarly, local prosecutors across Virginia and elsewhere have told police that they will not prosecute Hamasnik protesters who violate state laws by wearing masks to intimidate the public. Again, no intervention against discriminatory law enforcement from the Justice Department.

(6) There are strong indications that antisemitic groups like American Muslims for Palestine and National Students for Justice in Palestine have illegal ties to Hamas. Several state attorney generals, most prominently Virginia's Jason Miyares, are investigating these ties. There are also civil lawsuits pending against these organizations for material support for terrorism that has killed Americans. There is no indication that the Justice Department is seriously investigating.

(7) Jewish-owned businesses have been vandalized in New York and other cities. No federal civil rights charges have been filed against the vandals.

(8) Universities such as Yale have illegally failed to disclose massive donations from Qatar, Hamas's ally. The legal consequences of this failure have been minimal.

(9) Finally, while the Department of Education has been investigating allegations of universities discriminating against Jewish students via a hostile environment, double standards, or otherwise, every one of these complaints has been filed by a private party, giving the Department of Education a legal obligation to investigate. The department does not appear to have opened a single investigation of its own, nor has it referred even the most egregious cases to the Justice Department for potential civil litigation. Every lawsuit that has been filed has been the product of private rather than government efforts.

One can speculate as to why the Justice Department has been so quiescent in the face of the largest outbreak of antisemitism in the United States in decades, failing to use existing legal tools when the antisemitism turns illegal. But what we can say for sure is that despite Attorney General Merrick Garland's stated commitment to protecting the American Jewish community from hate crimes, his Justice Department has been an almost complete failure in combating such crimes inspired or committed by anti-Israel activists.

9/16/1787: The Constitutional Convention finalizes Constitution.

Politics

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US Supreme Court — The Supreme Court Justices. (Pool/ABACA/Newscom)

Today's much-discussed New York Times article by Jodi Kantor and Adam Liptak includes many details about the inner workings of the Supreme Court's deliberations on several key cases decided this year. For the most part, I think the revelations aren't enormously surprising. Chief Justice John Roberts maneuvered for consensus on some key cases. But, in two important ones involving Trump - Trump v. Anderson (the Section 3 disqualification case) and Trump v. United States (the presidential immunity case) - he ultimately sided with a bloc of four conservative justices when full consensus proved elusive. That is fairly evident from the opinions in the cases themselves.

But the reporting does shed a little light on one issue regarding Trump v. Anderson. In my forthcoming article criticizing that ruling, I argue that the majority ruled that people can only be disqualified from holding office under Section 3 of Fourteenth Amendment pursuant to special congressional legislation under Section 5 of the same Amendment (which gives Congress the power to enact "appropriate" enforcement legislation). In legal parlance, they held that Section 3 is not "self-executing." That is also what the concurring opinions by Justice Amy Coney Barrett and the three liberal justices assume (both opinions differ with the majority on that issue). But some other commentators - most notably Will Baude and Michael Paulsen - disagree, arguing that majority only concluded that states cannot disqualify a candidate like Trump.

The New York Times article suggested the justices themselves interpret the ruling much as I do:

While all nine justices agreed that Mr. Trump should remain on state ballots, four of the conservatives were pushing to go beyond that and rule that the Constitution's prohibition would require congressional action to take effect. Such a decision would provide greater protection for Mr. Trump: To prevent him from taking office if he won re-election, Congress would have to vote to enforce the insurrectionist ban.

That left the chief justice in control of the outcome. He lingered over the choice, those familiar with the process said. Ultimately, he sided with the four conservatives in an opinion that he wrote but that was issued unsigned [emphasis added]. Justice Amy Coney Barrett and the three liberals wrote concurrences saying the majority had gone too far.

Although the judgment was 9 to 0, the justices had not reached true agreement.

If Kantor and Liptak's sources are accurate, four conservative justices (Alito, Gorsuch, Kavanaugh, and Thomas) wanted a ruling holding that congressional legislation is required and Roberts ultimately "sided" with them. If so, that means all nine justices interpret the ruling as requiring such legislation (we know Barrett and the liberals did, based on what they say in their concurring opinions).

Various caveats apply. Most obviously, it is the text of the ruling that is binding, not the subjective intentions of the justices who joined it. Perhaps the majority justices intended to rule that Section 3 isn't self-executing, but failed to actually incorporate that idea in the opinion. In my view, the text of the opinion points in the same direction (see pp. 327 of my draft article); but it's not completely definitive. In addition, it's possible that Kantor and Liptak's sources are somehow dissembling or misinformed.

Still, if the story is correct, the revelation has some significance, because it may prefigure what the Court would do if Section 3 disqualification issues come before it again.

Ultimately, the big flaws in the Court's decision are that the majority reached a poorly reasoned decision on self-execution, and all nine justices greatly overstated the threat posed by a "patchwork" of state rulings on disqualification, while ignoring the danger of allowing insurrectionists to return to power - especially to the most powerful office in the land. I go into these and other issues in greater detail in my article. Because that article will officially be in print tomorrow, it's too late for me to incorporate the New York Times revelation. But I don't think it would alter any of my conclusions.

The excellent Baude-Paulsen critique of the Court's ruling also was posted too late for me to consider it in my own article. I agree with most of their criticisms of the decision, but - as noted above - differ somewhat with their assessment of its scope.

A short while ago, I published a lengthy post detailing the New York Times's latest reporting on the three Trump cases: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Here, I will offer several big-picture observations.

First, this leak is far worse than the Dobbs leak. In Dobbs, one or more people exfiltrated a draft opinion from inside the Court, and somehow that opinion made its way to Politico. (Maybe Jodi Kantor can tell us how that happened!) It was devastating for the draft decision to become public, and it nearly led to the assassination of Justice Kavanaugh. But the aftermath of the leak was swift and overwhelming: the Court was placed on lockdown, and a sweeping investigation was launched to find the culprit(s). But the Trump leaks are systematic and thorough. We have insights of confidential memoranda, detailed conversations at conferences, KBJ's changed vote, Justice Alito losing the Fischer majority, and information about many Roberts clerks were working on the case. This tapestry would require insights from so many different people. Moreover, all of this comes after the Dobbs leak when Chief Justice Roberts (apparently) put strict limitations on access to Court information. What did all of those measures accomplish? Apparently not much.

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. On that point, I would be willing to place a bet that the three Trump appointees rule against Trump in any election case that comes to the high court. Like in the tax return cases, Justices Gorsuch, Kavanaugh, and Barrett will gladly knock Trump off the scene and declare their independence. Would you take the opposite bet?

Third, I am still flummoxed how Fischer was simply taken away from Justice Alito. Was this reassignment voluntary? Or was this like a scene in the Godfather, where Roberts made an offer that Alito could not refuse? It is difficult to imagine how difficult this term was for Alito. Barely two years ago, he was on top of the world, holding together a five-member bloc in Dobbs. Now he had only four majority opinions, and lost three! Roberts had seven signed opinions, and authored Anderson!

Fourth, I am still struck by the granular reporting that all four of Roberts's clerks were working on the opinion till the last minute. Was this some effort to heap praise on them, for shuttling back-and-forth between chambers? Or was it some attempt to place blame on them. For those who keep track of such things, here are the four:

1. Jason Bell (Harvard 2021 / Kovner (E.D.N.Y.) / Higginson)
2. Alexander Cave (Harvard 2020 / Srinivasan)
3. Benjamin Daus (Yale 2021 / Kovner (E.D.N.Y.) / Thapar)
4. Sakina Haji (Chicago 2021 / Newsom)

Fifth, we do not get much insights into Justice Barrett, other than that she frustrates her conservative colleagues. She is non-commital at conference, and then decides to break out on her own, with Justice Kagan as the wind beneath her wings. Justice Barrett continues to learn on the job, and figure things out as she goes along.

Sixth, Justice Jackson comes across as a savvy operator. She was in the majority for Fisher, as a way to get the Court to remand the case to Judge Chutkun. And I think she was poised to join the majority in Anderson on the "officer" stuff. Something happened there, but Kantor does not tell us. She is playing the game quite well.

I will close by renewing my call for Chief Justice Roberts to resign. He will never be John Marshall, or Fred Vinson for that matter. Historians will judge him harshly as a failed chief justice who kept digging his hole deeper and deeper, completely oblivious to how he is actually perceived. The only path forward is for him to stop caring about "institutionalism" and decide each case as a judge would decide the case. This game will never work.

The front page of today's New York Times blares the headline "How Roberts Shaped Trump's Supreme Court Winning Streak." The piece by Jodi Kantor and Adam Liptak delivers on providing the inside scoop of the three Trump cases: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Like with Joan Biskupic's reporting (1, 2, 3, 4), much of what Kantor and Liptak report can be deduced from the opinion assignments and the final work product. But the Times offers some new insights that could not be inferred. Indeed, it seems clear that they have several high-ranking sources. Though, I will place one note at the outset: they offer inside information about eight of the nine Justices. But there is nothing about the thinking of Justice Kagan. Her fingerprints are wiped clean--like with a cloth.

Earlier this month, the Case Western Reserve University School of Law hosted a conversation with U.S. Solicitor General Elizabeth Prelogar for the 2024 Sumner Canary Lecture.

The hour-long discussion covered a range of issues, from the responsibilities of the Solicitor General's office, preparing for oral argument, the "emergency docket," and (of particular importance to some of us) whether the Administrative Procedure Act should be understood to authorize nationwide vacatur.

The National Law Journal and CWRU Observer both covered the event. Video is below.

A list of prior Canary lectures, including video of remarks by (then judges) Neil Gorsuch, Brett Kavanaugh, and Amy Barrett can be found here.

9/15/1857: Chief Justice William Howard Taft's birthday.

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