The Volokh Conspiracy

Of the three Trump appointees, Justice Barrett was the biggest wildcard. With Justices Gorsuch and Kavanaugh, what you saw is what we got. Very little that they've done so far has surprised me. Justice Gorsuch's approaches to LGBT rights and Indian law were evident in his lower-court record. And Justice Kavanaugh's restraint and compassionate conservatism—truly the hallmarks of the George W. Bush presidency—were on display in the Obamacare litigation and other cases. Again no surprises. But Justice Barrett had limited experience on the bench, wrote little as an academic, and never took any position on controversial matters of concern. She wasn't quite a blank slate, but she was as close to it as fathomable for a Republican Supreme Court appointment.

I get the genuine sense that Justice Barrett is figuring things out as she goes along. Each of her opinions seems like a new day. Brilliant as Barrett is—and I think she is extremely intelligent—she is learning on the job. With that development, I think she has come to regret some of her decisions in short order. For example, I think she backed off her vote in Roman Catholic Diocese after incessant "shadow docket" criticism, as evident in Does v. Mills. I also think she felt compelled to reimagine the major questions doctrine as some sort of semantic/textualist cannon following criticism of the Gorsuchian substantive cannon. I wouldn't be surprised if she develops doubts about the presidential removal power, though parting company with Justice Scalia's Morrison dissent may be too much to bear.

More pressingly, I think Justice Barrett is already having second thoughts about the text, history, and tradition framework in Bruen. She couldn't even join Justice Thomas's landmark opinion without reservations. We know she wrote a concurrence in Bruen that questioned whether the relevant timeframe was 1791 or 1868. Fair enough. But I thought her concurrence went further. She seemed to be casting some doubt on Justice Thomas's majority opinion, and the entire enterprise of looking at historical analogues. It is no surprise that Justice Breyer's Bruen dissent favorably cited Barrett's concurrence. More recently, in the CFPB case, Justice Barrett put more distance between herself and Justice Thomas by joining Justice Kagan's concurrence, which fixated on liquidation and post-enactment practice.

Justice Barrett doubled-down on her disagreement with Justice Thomas in Vidal v. Elster. This case tells us far more about the Court's originalist jurisprudence than it does about trademark law. I can't remember ever seeing a unanimous decision with such a fractured lineup. To paraphrase the T-Shirt, Thomas's majority was too small.

Read More

I taught Federal Jurisdiction for at least fifteen years at Northwestern Law School, from 1990 to 2005, and I have written several law review articles on this subject. I have long admired the federal removal statutes, which allow allow federal officers and persons acting under a law of the United States to remove their cases from state to federal court. See generally In re Neagle, 135 U.S. 1 (1890). One such law was passed during Reconstruction, in 1875, in the wake of the Civil War, to prevent the eleven former Confederate states from harassing or oppressing federal officers or those with a duty to act under federal law.

State judges are often elected, and they can sometimes be biased for reasons of race, sex, politics, or religion. That bias is evident in both the New York State criminal and civil lawsuits brought against former President Donald Trump this year. Those cases were tried in the most liberal borough, of one of the most liberal cities, of one of the most liberal states in the nation.

Regional biases against former Presidents are sometimes quite pronounced. The NY civil and criminal cases brought against former President Donald Trump are evidence of this fact. This makes broader removal statutes necessary and proper so that talented people will not be dissuaded from running for the office of President of the United States.

The House of Representatives should pass a bill, which is now before the House rendering such cases removable to federal court. Former President Trump's conviction in a Manhattan trial court is unconstitutional under the First Amendment, as I have previously explained on this blog. Trump's conviction thus presents a major federal question, which ought to be decided before voters cast their ballots this November by the U.S. Supreme Court. The House of Representatives can expedite that process by passing the removal bill, which is now before the House.

Any final legislation passed should allow the removal of civil as well as of criminal cases. Former President Trump's loss of a civil suit with damages assessed at around $450 million also presents major federal questions under the Due Process Clause of the Fourteenth Amendment, as well as presenting an Eighth Amendment excessive fines claim. Congress should pass a broad removal statute that covers at least state criminal and civil claims brought against former Presidents of the United States. This is necessary and proper so that talented people will not be dissuaded from running for President in the future.

In my opinion, such a statute should apply not only to former Presidents of the United States. It should also apply to former Vice Presidents and to all former officers of the United States. One can easily imagine former Vice Presidents or officers of the United States being harassed by elected state prosecutors and judges. Even former members of Congress should probably be allowed to remove civil and criminal cases from state to federal court.

The sad truth is that state prosecutorial and judicial officials are, overall, somewhat more partisan and more lacking in legal wisdom than are life tenured federal judges. This is due to the fact that state judges and district attorneys are elected at the state level. There are many superb state Supreme Court and inferior court judges and district attorneys. But, at a minimum former Presidents of the United States ought to be guaranteed that they will have access to the federal life tenured judiciary if they are sued or prosecuted. This is not only just. It is also necessary to ensure that talented people will not be dissuaded from running for or holding federal offices in the future.

In FDA v. Alliance for Hippocratic Medicine, the Court rejected three theories of standing: (1) expected conscience objections, (2) expected monetary harms, and (3) diversion of resources. However, there was another theory of standing adsressed in the Fifth Circuit that the Court did not resolve.

Judge Ho's concurrence found standing based on an aesthetic injuries.

In addition to the injuries analyzed by the majority, Plaintiffs have demonstrated another basis for Article III standing: the aesthetic injury they experience in the course of their work. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (recognizing aesthetic harm as "injury to a cognizable interest"); Lujan v. Defs. of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing."); id. at 566, 112 S.Ct. 2130 ("[T]he person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm."). It's well established that, if a plaintiff has "concrete plans" to visit an animal's habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal. See Lujan, 504 U.S. at 564, 112 S.Ct. 2130. . . .

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.

Plaintiffs' declarations illustrate that they experience aesthetic injury from the destruction of unborn life.

In short, if naturalists can claim an aesthetic injury to see plants and animals, then pro-life doctors could claim a similar injury with regard to newborn babies.

The Supreme Court has recognized that "the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist." Lujan, 504 U.S. at 566, 112 S.Ct. 2130. Every circuit, including our own, has concluded that, when a federal agency authorizes third parties to harm flora or fauna that a plaintiff intends to view or study, that satisfies all of the requirements for Article III standing. . . .

I see no basis for allowing Article III standing based on aesthetic injury when it comes to animals and plants—but not unborn human life.

The aesthetics argument was actually advanced in Havens Realty, a precedent that received its last rites today.

The three individual plaintiffs, who, at the time the complaint was filed, were all residents of the city of Richmond or the adjacent Henrico County averred that they had been injured by the discriminatory acts of petitioners. Coles, the black renter, claimed that he had been "denied the right to rent real property in Henrico County." Further, he and the two tester plaintiffs alleged that Havens' practices deprived them of the "important social, professional, business and economic, political and aesthetic benefits of interracial associations that arise from living in integrated communities free from discriminatory housing practices."

In other words, the plaintiffs asserted an aesthetic injury in having a racially diverse neighborhood. The Havens Court did not pass on this issue, but it also was not rejected.

On appeal, the Supreme Court could have considered the "aesthetic" standing argument raised in Judge Ho's concurrence. But Justice Kavanaugh did not. Indeed, he favorably cited some form of naturalist standing:

Consistent with that understanding of how standing principles can develop and solidify, the Court has identified a variety of familiar circumstances where government regulation of a third-party individual or business may be likely to cause injury in fact to an unregulated plaintiff. For example, when the government regulates (or under-regulates) a business, the regulation (or lack thereof ) may cause downstream or upstream economic injuries to others in the chain, such as certain manufacturers, retailers, suppliers, competitors, or customers. . . . When the government regulates parks, national forests, or bodies of water, for example, the regulation may cause harm to individual users. E.g., Summers, 555 U. S., at 494.

Why did the Court not address the aesthetic standing argument? The fauna did not bark, and the flora did not bloom.

Perhaps the Court said nothing because addressing aesthetic injury would have broken up a unanimous decision. Or the Court could not meaningfully distinguish the arguments raised in Judge Ho's concurrence from the various environmental cases.

It is also possible that the Court thought the issue was forfeited or waived. As best as I can tell, ADF did not advance the "aesthetic" injury argument in its briefing before the District Court or the Fifth Circuit. But ADF did advance the argument before the Supreme Court:

If plaintiffs have an "undeniably … cognizable interest" in avoiding the distress of losing "an animal species," Lujan v. Defs. of Wildlife, 504 U.S. 555, 562– 63 (1992), or even the chance to "view[ ] the flora and fauna," Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009), then Respondent doctors have a concrete interest in avoiding heartbreaking emergency situations that require them to be complicit in a process that ends an unborn life. Pet. App. 80a–83a (Ho, J., concurring and dissenting in part) (Respondents' "aesthetic injury from the destruction of unborn life" is "cognizable"). The emotional harm Respondents suffer "suffice[s] for Article III standing." TransUnion, 594 U.S. at 440.

It is not clear to me that this issue was preserved below, so perhaps it was forfeited. California v. Texas held that even if a jurisdictional argument is not raised below, it is still forfeited. (I am still steamed about that holding years later--the issue was preserved.)

If the issue was waived, then the Court's failure to pass on it is of no moment. I do not think you can read this opinion to say anything at all about aesthetic standing.

This argument seems available for some future case.

I was pleased to see that the Alabama Law Review published a symposium issue to celebrate Chief Judge Pryor's twenty years on the bench. There are essays from Justice Thomas, Attorney General Sessions, and several Pryor clerks and mentees who became judges. His accomplishments are remarkable. And Pryor, who graduated from Tulane Law School, proves how overrated Ivy League diplomas are. Pryor is one of the most influential of President Bush's circuit nominees--at least among those who were not elevated to the Supreme Court. (Another member of that list attended THE Ohio State University.)

I encourage you to read through the essays. They are short, humorous, and smart--exactly what we would expect from friends of Pryor.

Chief Judge William H. Pryor Jr.: A Tribute to Twenty Years on the Bench

Kenneth M. Rosen, A Scholarly Judge: The Honorable William Holcombe Pryor Jr.

Hon. Clarence Thomas, My Friend, Bill

Hon. Ed Carnes, Chief Judge William H. Pryor Jr. as Chief Judge

Hon. Jeff Sessions, A Man of Law, Principle, and Courage

Hon. Steven T. Marshall and Edmund G. LaCour Jr., Attorney General William H. Pryor Jr.

Hon. Andrew L. Brasher, From Clerk to Colleague

Hon. Kevin C. Newsom and Hon. Corey L. Maze, Chief Judge William H. Pryor Jr.: The Man, the Mentor, the Mensch

Hon. Anna M. Manasco, "You Can Do Better"

Hon. Sarah K. Campbell, William H. Pryor Jr.: Model of Judicial Virtue

Molly Glazner, Taylor Meehan, Kasdin Mitchell, and Hon. Kathryn Mizelle, Barbecue Mondays

Caroline Stephens Milner, From a Clerk's Perspective

In 2011, Florida enacted a law that restricted when doctors could ask their patients if they owned a gun. The sentiment behind the law was that doctors, as a whole, were hostile to gun rights, and could not be trusted with this power. The so-called Docs v. Glocks law, however, did not survive. In 2017, the en banc Eleventh Circuit ruled that the law violated the First Amendment and violated Due Process (there were two majority opinions).

I thought of that case today while re-reading Justice Kavanaugh's standing analysis in FDA v. Alliance for Hippocratic Medicine. The doctors in that case clearly had standing because the law regulated their speech. But these same anti-gun doctors could assert standing in other cases. Imagine that some doctors who are hostile to gun rights sought standing to challenge some sort of gun control policy. The basis of their injury would be that with fewer restrictions on firearms, their patients are more likely to show up in the emergency room. I'm sure elite medical journals could pump out studies showing how that is a predictable, non-attenuated chain of consequences. That argument might have worked yesterday. But not today. AHM slammed that door shut:

In any event, and perhaps more to the point, the law has never permitted doctors to challenge the government's loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors' offices with follow-on injuries. Stated otherwise, there is no Article III doctrine of "doctor standing" that allows doctors to challenge general government safety regulations. Nor will this Court now create such a novel standing doctrine out of whole cloth.

Consider some examples. . . . The government repeals certain restrictions on guns—does a surgeon have standing to sue because he might have to operate on more gunshot victims? The answer is no: The chain of causation is simply too attenuated. Allowing doctors or other healthcare providers to challenge general safety regulations as unlawfully lax would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.

I don't know if Justice Kavanaugh was thinking about Docs v. Glocks. But he is wont to reach out to decide issues that are not present. And I think this path for standing is foreclosed.

Update: On 6/14, I added these sentences: "The doctors in that case clearly had standing because the law regulated their speech. But these same anti-gun doctors could assert standing in other cases." I was making clear that in the Florida case, the doctors clearly hand standing. In this post, I was talking about a hypothetical case.

Today the Supreme Court unanimously reversed the Fifth Circuit in FDA v. Alliance for Hippocratic Medicine. This outcome was not a surprise, since the Court granted a complete stay of the District Court's ruling in April 2023, allowing mifeprisotne to remain on the market.

After AHM was argued, I wrote that the Court should use this case as an opportunity to scale back two primary standing doctrines: Havens Realty "diversion of resources" standing and "Offended Observer" standing. The Court did just that.

Justice Kavanaugh wrote a very tight majority opinion. Part II is a very useful summary of standing doctrine. All Federal Courts students should read it for a quick review. He managed to keep all nine Justices on board, even where there were opportunities for them to jump ship. (By contrast, see Justice Thomas's fractured unanimous reversal in Vidal v. Elster.) And, as I'll explain below, there is some language here that may come back to bite progressives.

Read More