The Volokh Conspiracy

Seth Barrett Tillman and I published a new essay in the American Spectator concerning Special Counsel Jack Smith's pending appeal to the Eleventh Circuit. We write that Smith's only justification to expedite the appeal is to obtain a conviction before the election, or even before the inauguration. The courts are under no obligation to accommodate Smith's politically motivated efforts.

Here is the introduction:

Special Counsel Jack Smith is on a mission to convict Donald Trump before the election, and if needed, before the inauguration. At every level of the judiciary, Smith has urged federal judges to move at breakneck speed so he can get his man. Now that Judge Aileen Cannon has determined that Smith was unlawfully appointed, Smith is once again racing for another appeal. But there is no good reason for the courts to move more quickly than they usually would. Indeed, moving any faster or slower than normal would suggest that the judges are favoring one side or the other.

Despite all the faux outrage over Judge Cannon's decision, she disqualified only one person from pursuing this case: Jack Smith. Cannon did not grant Trump any immunity for his actions during or after he left office. The United States attorney for the southern district of Florida is fully capable of prosecuting Trump. To be sure, Attorney General Merrick Garland does not want his Justice Department to take the heat for prosecuting his boss's political rival, but that is a political problem for Garland and the administration and not a legal problem for the judiciary. The Court of Appeals for the Eleventh Circuit has no reason to accommodate politically motivated efforts to convict Trump before the election or inauguration. Trump should be treated like any other defendant.

And from the conclusion:

Smith seems to have determined that it is in the best interest of our democracy for voters to know whether Trump is convicted of a federal felony before voting. This is an extremely difficult political judgment that turns on disputed conceptions of what the public ought to know for the sake of democracy. Moreover, seeking to time a trial and conviction in this manner would mark a public and complete break with DOJ principles and policies of prosecutorial neutrality. It is imperative that the case against Trump be tried in the ordinary course of law, in the ordinary way, under an ordinary schedule. This case cannot be tried using newly invented legal rules, by a faux prosecutor, under an expedited schedule serving nakedly political (if not partisan) ends. Then-Attorney General Robert H. Jackson wisely observed that "the most dangerous power of the prosecutor" is "that he will pick people that he thinks he should get, rather than cases that need to be prosecuted." Only by adhering to this course of conduct does the judiciary uphold the rule of law.

I will report back when Smith files a motion to expedite the appeal to the Eleventh Circuit, or whether he seeks certiorari before judgment.

Jarksey continues a trend by the Chief Justice: the transfer of power from the executive and legislative branches to the judiciary. From Stern v. Marshall to Loper Bright, Chief Justice Roberts rejects effort to deprive the federal courts of its powers to decide cases. Justice Sotomayor makes this point in her dissent:

Beyond the majority's legal errors, its ruling reveals a far more fundamental problem: This Court's repeated failure to appreciate that its decisions can threaten the separation of powers. Here, that threat comes from the Court's mistaken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary.

Indeed, Sotomayor pokes Roberts's much-vaunted "umpire" analogy:

The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government. Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.

On many issues, Chief Justice Roberts's jurisprudence is situational, and depends on a a confluence of many factors. But with regard to judicial independence, Roberts is dogmatic. In Jarkesy, Roberts extended this philosophy to the context of the Seventh Amendment. 

A few years ago, the graduate students at the University of Chicago, where I teach, formed a legally recognized labor union. Last year, that union expanded to include the law school, at least to the extent that law students engage in paid work such as providing research assistance. Law students who want to work as research assistants must either join the union and pay dues, or else pay agency fees to the union even if they do not join. Either way, giving money to the union is a legally required condition of working as a research assistant.

Graduate Students United at the University of Chicago, the union, engages in political speech that some law students find quite objectionable. The union is part of the United Electrical, Radio and Mine Workers of America, which also engages in political speech. For some law students, having to give money to these causes is an unacceptable condition of employment.

Yesterday, a group of those students, Graduate Students for Academic Freedom, filed a federal lawsuit against the union arguing that the arrangement violates their First Amendment rights under cases like Janus v. AFSCME, which holds that compelled agency fees "violate[] the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern."

You can read the complaint here, and the motion for a preliminary injunction here.

From the start of the complaint:

INTRODUCTION

1.  Graduate students at the University of Chicago have been put to the choice of halting their academic pursuits, or funding antisemitism. That is unlawful.

2.  In the Winter of 2023, graduate students at Chicago voted to unionize, and are now exclusively represented by GSU-UE—a local of United Electrical (UE).

3.  That is a real problem. Among much else, UE has a long history of antisemitism. It is an outspoken proponent of the movement to "Boycott, Divest, and Sanction" Israel (BDS)—something so clearly antisemitic that both Joe Biden and Donald Trump have condemned it as such. Indeed, for years, the union has had a consuming fixation with the world's only Jewish state—a fixation peppered with all-too-common rhetoric. UE has charged Israel with "occupying" Palestine; has branded Israel an "apartheid regime"; and has accused Israel of committing "ethnic cleansing."

4.  GSU-UE is cut from the same cloth. On campus, it has not only echoed its parent union's rhetoric, but has added to it. It took pains to publicly "reaffirm" its commitment to BDS just one week after the October 7 terrorist attacks. And it has joined the "UChicago United for Palestine Coalition," which gained notoriety for its protest encampment and hostile takeover of the Institute of Politics. Through it, GSU-UE has joined calls to "honor the martyrs"; fight against campus "Zionists"; resist "pigs" (i.e., police); "liberate" Palestine from the "River to the Sea," and by "any means necessary"; and "bring the intifada home." Jimmy Hoffa's union this is not.

5.  Nonetheless, under a recent collective bargaining agreement extracted by the GSU-UE, graduate students at the University must now either become dues-paying members of the union, or pay it an equivalent "agency fee," as a condition of continuing their work as teaching assistants, research assistants, or similar positions.

6.  Constitutionally speaking, that is not kosher. The union's ability to obtain agency fees from nonconsenting students is the direct product of federal law—i.e., it involves governmental action, subject to the First Amendment. But if GSU-UE wishes to wield such federally backed power, it must accept the responsibility that comes with it; it cannot use a government-backed cudgel, outside constitutional constraint. And if the First Amendment means anything, it means students cannot be compelled to fund a group they find abhorrent as the price of continuing their work.

7.  The stories of Plaintiff's members lay bare the stakes that are at issue here. One member is an Israeli; another a proud Jew with family fighting in Israel; and some are graduate students simply horrified by the union's antisemitism—as
well as its other (to put it mildly) controversial political positions, which reach well beyond collective bargaining to virtually every hot-button subject (e.g., abortion, affirmative action, policing, gender ideology, even the judiciary). Although members come from different backgrounds, none can stomach sending a penny to this union.

8.  But that is the position they find themselves in—put to the choice of funding the union, or stopping their academic work. Some have chosen to opt-out entirely, and have quit pursuing RA work so long as it comes at the cost of their values. Others do not have the luxury. One student is here on a visa from Israel—something, of course, GSU-UE denounces under BDS—and cannot stop his work as a TA if he wants to stay in the country. Another depends on his RA work to help cover cost-of-living expenses, and cannot forgo that income if he wishes to stay at Chicago. Others are deeply torn—tortured as to how to weigh their consciences against their careers.

9.  The First Amendment was adopted to prevent these sorts of choices. Forcing a person to associate with—let alone fund—a particular ideological organization is always a fraught First Amendment endeavor. But the constitutional infirmity here is exceptionally stark. Unlike a garden variety agency fee in the private sector, the agency fees here work as an academic toll on graduate students' ability to pursue expressive activities at the very heart of the First Amendment: Students cannot perform certain teaching or research activities without first paying a kick-back to the union. And to make an intolerable situation worse, that compulsion is especially problematic here, given GSU-UE's decision to adopt a divisive political identity, based on issues well outside the ambit of traditional collective bargaining.

10. What is happening at Chicago is thus as clear an example as it gets of an agency-fee scheme that violates the First Amendment, by the Supreme Court's own lights. An agency fee scheme cannot "force[] men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought." Harris v. Quinn, 573 U.S. 616, 631 (2014). But that is exactly this case. And for that reason, what is happening at Chicago is unlawful, and in violation of the First Amendment's most basic guarantees. It needs to be stopped.

There's much more detail in both documents -- especially concerning the "state action" doctrine, one of the legal issues on which the suit will turn. The plaintiffs are represented by Jon Linas, Brett Shumate, Harry Graver, and Riley Walters at Jones Day.