The Volokh Conspiracy

What a difference two decades make. In 2003, Elena Kagan was the Dean of Harvard Law School. At the time, many law schools had banned JAG officers from recruiting on campus, citing the "Don't Ask, Don't Tell" policy. Dean Kagan did not ban JAG recruiters, but voiced support for the ban. She articulated this position in an email to the community:

"I abhor the military's discriminatory recruitment policy. The importance of the military to our society -- and the extraordinary service that members of the military provide to all the rest of us -- makes this discrimination more, not less, repugnant. The military's policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong -- a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country."

Still, Kagan permitted the recruiters to use the Office of Career Services.

But there was also the Solomon Amendment. Under this federal law, colleges would be denied funding if they denied military recruiters access to campus. An association of law schools, known as the Forum for Academic and Institutional Rights challenged the constitutionality of the Solomon Amendment.

In 2004, Kagan joined an amicus brief before the Third Circuit, arguing that the Solomon Amendment violated Harvard's freedom of expression--in this case, excluding military recruiters as a way to protest "Don't Ask, Don't Tell." After the Third Circuit ruled for FAIR, Dean Kagan imposed the ban on military recruiters. But the Pentagon then threatened to withhold funding, and Kagan relented. (SCOTUSBlog links to many of the primary sources.)

The case was then appealed to the Supreme Court, with Kagan joining another amicus brief. The Court, per Chief Justice Roberts, ruled against FAIR by an 8-0 vote. (The case was argued in December 2005, before Justice Alito joined the bench.) The Court held that the Solomon Amendment regulated conduct, and not speech, and was constitutional. As I recall, the Dean of the George Mason University School of Law was the only Dean to file a brief in support of the Solomon Amendment. (Mason was a very special place in 2006--several months before I matriculated.)

I suspect Dean Kagan would rather forget about Rumsfeld v. FAIR. And, perhaps fittingly, in NetChoice, Justice Kagan downplayed the case. She only mentioned it briefly at the top of page 17 of the slip opinion, and in a curious footnote on page 18:

⁴ Of course, an entity engaged in expressive activity when performing one function may not be when carrying out another. That is one lesson of FAIR. The Court ruled as it did because the law schools' recruiting services were not engaged in expression. See 547 U. S. 47, 64 (2006). The case could not have been resolved on that ground if the regulation had affected what happened in law school classes instead.

I pulled the Harvard amicus brief in FAIR, and it included a very similar point:

Or, by the government's reasoning, Congress might use the hook of federal funding to require private universities to begin each class during hiring season by informing students of when and where military recruiters will be available for interviews. Because these conditions would not target "dangerous ideas," in the government's view they would present no constitutional problem. Plainly, however, such conditions would undermine both the principle of academic freedom and the First Amendment values that principle serves.

Dean Kagan never forgets an argument. Glad she smuggled that dicta into a majority opinion. It will be cited in contexts near and far. And, as nothing changes, Seth Waxman represented Harvard here, as he did in SFFA.

Justice Alito's NetChoice dissent points out how Justice Kagan glossed over FAIR, as well as Pruneyard.

Two precedents that the majority tries to downplay, if not forget, are illustrative. The first is PruneYard, which I have already discussed. . . .The decision in FAIR rested on similar reasoning.

Yes, Justice Kagan would rather forget about FAIR.

Of course, Justice Alito may have had some thoughts on this issue. Alito did not participate in the Third Circuit's panel opinion in FAIR. But he did serve in ROTC at Princeton. And he was affiliated with Concerned Alumni of Princeton, which was founded to bring ROTC back to Princeton, though he later disavowed that group.

[This is the third post in my series on my mission to Israel. You can read Parts I and II.]

As a general matter, I am skeptical of comparative constitutional law. I think it is exceptionally difficult to master one legal system. I don't even pretend I've figured out own own laws. I barely have enough time to read all of the Supreme Court's decision. (I still need to finish Jarkesy, Corner Post, and NetChoice.) I doubt a professor could purport to be an expert of both Louisiana Civil Law and Texas Common Law, even though the states border each other! How can one person possibly become an expert in multiple legal systems from different corners of the globe, and purport to compare and contrast them? I have no clue. Maybe comparativists are simply smarter than us simple-minded schlubs who are mired in a single, provincial system of laws.

With that caveat in mind, I will describe my admittedly crude crash course into the Israeli separation of powers.

Israel has no written Constitution. Yet, it has a robust separation of powers: elite lawyers separate the power from the people. Ambition does not check ambition. Erudition checks opposition.

Let me provide a brief sketch.

Israel has a parliamentary government. A coalition that obtains a majority of the seats in the parliament can select a prime minister. The prime minister, in turn, can appoint various cabinet ministers. (I think technically the cabinet makes the appointment, but that doesn't make a difference for present purposes.) One of those ministers is the Attorney General. The Attorney General serves a fixed, six-year term. The Attorney General is entirely independent--there is no removal power. Indeed, the Attorney General can take positions that are adverse to the prime minister. And those positions are binding on the government. The prime minister has to go to court to reject the Attorney General's argument. And Israel has no standing rules, so the Attorney General, as well as outside groups, can challenge virtually any policy in court. Everything goes to the courts.

Due to the fluctuations in Israeli politics, an Attorney General appointed by a left-wing government can serve during a right-wing government. Can you imagine if Attorney General Holder served under President Trump? AG Sessions under President Biden? And, in candor, even an Attorney General appointed by a conservative government will still be the byproduct of the elite legal education system in Israeli. Conservative lawyers in Israel are a discrete and insular minority.

Here is another example. The Military Advocate General (MAG) is the equivalent of the American Judge Advocate General (JAG). The MAG is appointed by the incumbent government for a fixed term. (The duration, I was told is about five years, but the lawyers seemed a bit unsure.) The MAG is entirely independent. The Prime Minister has no at-will removal power over the chief legal advisor. Moreover, the MAG is completely outside the command structure of the military. As a result, military legal advisors officers are in no way accountable to the generals on the battle field. They answer directly to another independent official who cannot be removed, or even directed by the Prime Minister. If the government wants to take a military action, and the MAG says no,that is basically the final answer. I was told that the Prime Minister could, in theory, appeal a decision of the MAG to (wait for it), the independent Attorney General, and to the independent Supreme Court. My mouth was wide open. Again, the popularly-elected government will always be subordinate to the views of elite lawyers.

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Shortly after NetChoice was decided, I speculated that Justice Alito lost a majority opinion. Now, having had some time to stew on the case, I think my speculation is right, but the precise contours of the deliberations are complex.

Let's start with the easy part. All nine members of the Court agreed that both the Fifth and Eleventh Circuits failed to apply the proper standard for a facial challenge.

With the benefit of hindsight, this holding may seem obvious, but a lot of really smart people seemed to have missed the issue below. NetChoice was represented by Clement Murphy and Lehotsky Keller Cohn. This firm has some of the most gifted attorneys around. The panel opinions included Judges Andy Oldham and Kevin Newsom, two of the most brilliant lower court judges, who are total FedCourts nerds. Yet, despite all of this intellectual firepower, everyone apparently missed the boat.

If there was so much agreement on the Court, why did Justices Thomas, Alito, and Gorsuch not join the portions of Justice Kagan's majority opinion that concerned the facial challenge? The troika only concurred in the judgment.

Part II of Justice Kagan's majority opinion is very short. It stretches only three pages, and there are no subparts. The first three paragraphs lay out the usual standard for a facial challenge (Salerno), the somewhat-easier challenge for a facial challenge in the Free Speech context (AFP and Hansen), and explains that the lower courts did not heed these standards. Justice Kagan concluded:

On their way to opposing conclusions, [the Fifth and Eleventh Circuits] concentrated on the same issue: whether a state law can regulate the content-moderation practices used in Facebook's News Feed (or near equivalents). They did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications. In short, they treated these cases more like as-applied claims than like facial ones.

So far, so good. I think Justice Alito could have joined this analysis in its entirety. Justice Alito's concurrence described the holding of the case in such limited terms:

The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional.

The case could have ended here, and I think there would have been a unanimous reversal.

However, the next three paragraphs of Part II take an unexpected turn.

In the fourth paragraph, Justice Kagan previews the "first step in the proper facial analysis." She walks through a range of potential applications, such as Gmail, Etsy, and Venmo. None of this analysis was necessary to the holding, but at least it signaled how the facial analysis should proceed.

The fifth paragraph begins, "The next order of business is to decide which of the laws' applications violate the First Amendment, and to measure them against the rest." Here, Justice Kagan explains that "even on a preliminary record," the analysis would differ for the Facebook News Feed and direct messages. Again, I'm not sure this analysis was necessary, but it at least was in the ballpark.

The sixth paragraph cites Cutter v. Wilkinson, the Court's favorite precedent to cite when it doesn't want to address an issue in the first instance:

The problem for this Court is that it cannot undertake the needed inquiries. "[W]e are a court of review, not of first view." Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Neither the Eleventh Circuit nor the Fifth Circuit performed the facial analysis in the way just described. And even were we to ignore the value of other courts going first, we could not proceed very far. The parties have not briefed the critical issues here, and the record is underdeveloped.

The opinion also could have ended here. And I think it would probably been unanimous. But Justice Kagan proceeds with Part III of her opinion. It stretches seventeen pages. And it explains virtually all facets of the First Amendment analysis. Why did it undertake that analysis? To prevent the Fifth Circuit from running afoul of the majority's understanding of the merits:

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[This is the second post in my series on my mission to Israel. Part 1 is here.]

I'll put my cards on the table. I've long had a cynical perspective of international law. I was completely unmoved by the notion that foreign tribunals, with systems of government completely alien to our own, could establish "norms" and "customary" international law. I always saw international law as a ruse for progressive lawyers to give their policy preferences the patina of some sort of quasi-binding law. My mission to Israel has reinforced that perspective in ways I could not have even fathomed.

The World Jewish Congress, to its credit, did an admirable job in lining up a series of legal experts from across the spectrum. We met with, among others, a former Attorney General, a Dean of an Israeli law faculty, two Israeli military lawyers (known as Military Advocate General, or MAG), a lawyer at an NGO working on returning the hostages, a lawyer who participates in proceedings before the International Court of Justice and the International Criminal Court, and more. All of these jurists provided a thorough overview of how international law operates with regard to Israel. They also entertained all of my questions, even some that were a bit hostile. I was thankful for this opportunity. My conclusion: the primary effect, if not purpose, of international law, is to use lawfare to punish Israel, and by extension, the United States. If you're bothered by that statement, please stop reading.

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Though I have a lot of family in Israel, I had only visited once. After I took the bar exam in 2009, I took a trip known as Birthright--a program that provides young Jews a free trip to Israel. For much of the past fifteen years, I kept telling myself I should visit Israel again, but the logistics never worked out. Indeed, during the summer of 2023, several of my cousins visited New York. I wanted to take my family to see them, but we had already committed to other travels and couldn't make it work. I told my kids that we would go to Israel the following year. 

Little did I know what would happen on October 7. In the immediate aftermath of that horrific date, I could not have fathomed when it would be safe to return to Israel. I was in close contact with many of my cousins, and feared for their safety. Still, a trip to Israel seemed out of reach.

In March 2023, the World Jewish Congress sponsored a delegation of American judges to visit Israel. The mission made some headlines. Since then, WJC has sponsored other similar delegations. In April, I received an invitation to attend a mission with other law professors. The timing was inauspicious. Only a few days later, Iran sent a massive barrage of drones and missiles to Israel. Thankfully, American and other allies helped Israel shoot down virtually all of the projectiles, and the damage was minimal. Still, a potential war with Iran loomed in the horizon. Moreover, United and other airlines cancelled all flights to Israel through June.

I thought about the issue for some time, and ultimately decided to accept the invitation. In future posts, I will explore my thinking of why I chose to go. Here, I want to make a more basic point for others: with proper precautions, the country is safe for tourism. Indeed, as I traveled throughout Israel, I heard a constant refrain: the best way for Americans to show solidarity with Israel is to buy a plane ticket and see what happened with your own eyes. Reading stories and listening to podcasts does not cut it.

Moreover, this is a once-in-a-lifetime opportunity to visit Israel without crowds. Tourism has declined in recent months--and reasonably so. Landmarks like the Church of the Holy Sepulcher usually have lines that stretch for hours. But now it can be entered in a few minutes, without people jostling for space. I was able to have a private moment at the Western Wall (the Kotel) without anyone crowding near me. (And, in the Jewish small world department, I met two Rabbis who were friends with my Rabbis back home in Houston.) 

A brief note on security. Israel is a small country, roughly the size from New Jersey. From top to bottom, it is about a five-hour drive. At the widest point, from east to the west (or from the river to the sea, if you will), it is about a three hour drive. The most unpredictable threat are missiles from Lebanon in the north and from the Gaza Strip in the South. (The other sides do not provide pamphlets or text messages indicating where and when a missile will be sent.) Throughout the country, Israel has developed a series of sophisticated missile defense systems, as well as warning sirens. There is also an app to alert your phone. Every structure is required to have a "safe room" that provides at least some protection from blast. Each floor of a hotel has a special space. Depending on your distance from the border, the warning time varies. In Tel Aviv, you have about 90 seconds from a siren to get into a shelter. In Jerusalem, you have about 1 minute. In Ashkelon, you have about 30 seconds. If you are near the Gaza Strip, you have about 10 seconds--just enough to lay down on the floor. During my trip, I thankfully did not hear any sirens, but was well prepared to comply with the safety protocols. The WJC had a designated security official who kept us very safe. As he told with a classic Israeli accent, "If you do whatever I say, you will be safe, no worries." It is a miracle how people are able to go about their daily lives in the middle of war zone.

One final note. I realize that my posts on most topics tend to trigger and infuriate people. If so, I encourage you to stop reading. My perspectives here will not be popular, and will likely cause some controversy. But those most likely to take offense truly can't help it, and they will read, only to express faux outrage. It's a vicious cycle. Remember, these reactions are largely performative. Everyone plays their role.