The Volokh Conspiracy

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

Today the Supreme Court held that anti-abortion doctors lack standing to challenge the Food and Drug Administration's regulations governing mifepristone. This was as expected. Justice Kavanaugh wrote the opinion for a unanimous Court in Alliance for Hippocratic Medicine v. Food & Drug Administration. Justice Thomas also wrote a separate concurrence on third-party and associational standing.

As I documented in a series of posts (linked here and below) the arguments offered in support of standing by AHM and the lower courts were never particularly strong, particularly once courts concluded that challenges to the FDA's initial approval of mifepristone in 2000 were time barred. There was never much question that the Supreme Court would conclude that the plaintiffs lacked Article III standing in this case. The only question was whether it would be unanimous (as opposed to 8-1 or 7-2). Access to mifepristone was never at risk from this litigation.

Here is how Justice Kavanaugh summarizes his unanimous opinion for the Court:

In 2016 and 2021, the Food and Drug Administration relaxed its regulatory requirements for mifepristone, an abortion drug. Those changes made it easier for doctors to prescribe and pregnant women to obtain mifepristone. Several pro-life doctors and associations sued FDA, arguing that FDA's actions violated the Administrative Procedure Act. But the plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain. Under Article III of the Constitution, a plaintiff 's desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs' other standing theories suffice. Therefore, the plaintiffs lack standing to challenge FDA's actions

As Justice Kavanaugh explains, AHM offered a variety of theories for Article III standing to challenge the FDA's decision to loosen the regulation of mifepristone, but none were adequate.

The plaintiffs do not allege the kinds of injuries described above that unregulated parties sometimes can assert to demonstrate causation. Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no direct monetary injuries from FDA's actions relaxing regulation of mifepristone. Nor do they suffer injuries to their property, or to the value of their property, from FDA's actions. Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA's actions relaxing regulation of mifepristone.

Rather, the plaintiffs say that they are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others. The plaintiffs appear to recognize that those general legal, moral, ideological, and policy concerns do not suffice on their own to confer Article III standing to sue in federal court. So to try to establish standing, the plaintiffs advance several complicated causation theories to connect FDA's actions to the plaintiffs' alleged injuries in fact.

The standing theory Justice Kavanaugh addresses first, and that received the most attention at oral argument, was that the FDA's decision to loosen restrictions on mifepristone would result in more emergency room visits by women suffering complications, and that this would result in conscience injuries to anti-abortion doctors forced to provide care in such situations. Without being dismissive of the genuine conscience-based objections some doctors may have to facilitating abortions, Justice Kavanaugh explained why these claims were insufficient to demonstrate standing.

From the Florida Court of Appeal's decision yesterday in CNN, Inc. v. Young, written by Judge Clayton Roberts and joined by Judges Thomas Winokur and Robert Long:

Young is a U.S. Navy Veteran and former U.S. government operative who operates a private security consulting practice through his company, Nemex Enterprises, Inc. (collectively, "Young"). Part of Young's work involved evacuating Afghan citizens during the United States withdrawal from Afghanistan.

On November 11, 2021, CNN's "The Lead with Jake Tapper" aired a video segment by reporter Alex Marquardt about Afghans attempting to flee the Taliban via private evacuation operators like Young. Over the next few days, Marquardt's reporting was republished on another CNN program, disseminated on Facebook and Twitter, and repackaged into a digital article on CNN's website….

Young sued for libel and related torts, and sought punitive damages; the appellate court held that he had offered sufficient evidence to support that request:

Section 768.72, Florida Statutes, and Florida Rule of Civil Procedure 1.190 require court approval before a claimant may plead entitlement to punitive damages. Before granting leave to amend, the trial court must determine the claimant has made "a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." The trial court acts as a "gatekeeper," both to ensure the claimant has shown a reasonable evidentiary basis to recover punitive damages and to protect the other party from unfounded punitive damage claims…. Young had to proffer evidence providing a reasonable basis that CNN published with actual malice, that is with knowledge of the falsity of its reporting or with reckless disregard for its probable falsity.

The totality of Young's proffered evidence met this burden. CNN chose to use language like "black market," "exploit," "exorbitant," and "desperate Afghans" on television and online. When introducing Alex Marquardt's segment, Jake Tapper stated:

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6/13/1977: Justice Tom C. Clark dies.

Last week I flagged some of the ironies in that President Biden would soon be sued for enacting a travel ban. The ACLU was the first out of the gate with a suit. The ACLU does not even cite Trump v. Hawaii. Let's see if DOJ acknowledges the anti-precedent. The Plaintiffs in the ACLU case are two Immigration Advocacy groups in Texas. But they did not dare file the case in Texas, or anywhere near the border. Rather, the ACLU filed suit in the far more friendly-D.D.C.

There will be other similar suits. My predictions on venue: California will file suit in NDCA (San Francisco, not Sacramento), Maryland will file in DMD (Greenbelt, not Baltimore), and New York will file in SDNY (Manhattan, not Albany). The ACLU, and other plaintiffs, will likely seek national vacatur. So everyone, please switch sides on forum shopping and national injunctions.

One quick item to flag. None of the plaintiffs here are actual refugees seeking asylum protection. Rather, the refugee groups assert some kind of "diversion of resources" theory of standing that sounds in Havens Realty:

Under the Rule, Las Americas' clients must now "manifest" an intent to apply for asylum or a fear of return before receiving a credible fear interview. As a result, Las Americas must revamp its representation strategy and divert resources to preparing individuals who have a genuine fear to manifest such a fear before entering the United States, significantly limiting the number of clients it can serve.

These groups should be careful. The Court could have, but did not overrule Haven's Realty in Acheson v. Laufer. But this could be a nice opportunity for the Court to rule in favor of a Biden policy while scaling back on self-inflicted Article III injuries.

Wooden block homes with a ban sign — Andrii Yalanskyi/Dreamstime.com

Today, the Atlantic published my article on "The Constitutional Case Against Exclusionary Zoning" (coauthored with Prof. Josh Braver of the University of Wisconsin). It is based, in part, on our longer academic article on the same topic (forthcoming in the Texas Law Review).

Here's an excerpt from our Atlantic article:

America is suffering from a severe housing shortage, and one of the main culprits is exclusionary zoning: regulations that restrict the amount and type of housing that property owners are allowed to construct on their land. Exclusionary zoning slows economic growth, severely limits economic mobility, and imposes burdens that disproportionately fall on racial minorities.

No one simple solution to this problem exists. But a crucial tool may lie in the Constitution: the takings clause of the Fifth Amendment. The clause requires that, when the government takes "private property," it must pay "just compensation" (usually the fair market value of the property rights taken). As we argue in a forthcoming Texas Law Review article, because exclusionary zoning severely restricts property owners' right to use their land, we believe that it qualifies as such a taking, and is therefore unconstitutional unless the government pays compensation. Consistent enforcement of this interpretation would severely constrain exclusionary zoning….

Just as there is substantial cross-ideological agreement on the policy aspects of zoning reform, there can be similar broad agreement on the constitutional dimension of this issue. One of us, Ilya Somin, is a libertarian sympathetic to originalism. The other, Joshua Braver, is a progressive living constitutionalist. We differ on many things, but agree here….

When the Bill of Rights was enacted, in 1791, the right of private property was generally understood to include a right not just to exclude, but also to determine the use of that property. William Blackstone, the great British jurist whose Commentaries on the Laws of England enormously influenced the founding generation, famously wrote that "the third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions" (emphasis added). Use undoubtedly included building a house on one's own property. Blackstone's formulation was echoed by many of the American Founders, including—most notably—James Madison, the principal author of the takings clause. At the time of the founding, like today, housing was one of the most common uses of land….

For those who reject originalist arguments, the main alternative framework of living constitutionalism, championed by many progressives, may be more persuasive. Living constitutionalism is a broad tent of theories about how to interpret the Constitution, which permits change over time. We argue at length elsewhere that multiple versions of the theory support striking down exclusionary zoning. Here we focus on the representation-reinforcement theory….

Exclusionary zoning is a perfect example of [John Hart] Ely's fear of the "ins choking off the channels of political change to ensure that they will stay in and the outs will stay out." In this case, the "ins" are a community's current residents, and the "outs" are potential residents. To protect their home values and other perceived interests, residents vote for politicians who will work to prevent construction that would entice newcomers….

Here, judicial review can give voice to voiceless outsiders by providing them an opportunity to acquire the housing they need to move in, an idea Ely partly anticipated when he endorsed judicial protection for a "right to relocate." The takings clause is the best option for this, given that it is the constitutional provision that protects private property from uncompensated government interference. And it is thus best fitted to the problem of exclusionary zoning, which limits the use of property.

Ely also worried that certain groups, especially racial minorities, were subject to prejudice and hostility by the majority and would systematically be on the losing end of political decisions. The racist and classist history of zoning provides further justification for using judicial review to curb the practice, especially because the disproportionate impact on racial minorities persists to this day….

If all or even a large proportion of exclusionary zoning gets invalidated under the takings clause, the effect could be very great. If courts hold that a regulation is a taking, the government must pay compensation. Local governments could not afford to pay compensation to the many thousands of property owners whose rights are restricted by exclusionary zoning. They would likely be forced to repeal or severely constrain most exclusionary-zoning rules…..

Historically, successful constitutional-reform movements have combined legal and political action, and have not relied on one to the exclusion of the other. That was true for the civil-rights movement, the women's-rights movement, advocates of same-sex marriage, gun-rights advocates, and others. The cross-ideological YIMBY movement should do the same.

There is much more in the article!

I also recently wrote about the potentially valuable role of constitutional litigation in breaking down exclusionary zoning in this piece on Bryan Caplan's Bet On It substack.

From today's decision of the Florida Court of Appeal in Doe v. DeSantis, in an opinion by Judge Clayton Roberts, joined by Judges Stephanie Ray and Susan Kelsey:

In an August 2022 interview, Governor DeSantis referenced a group of "six or seven pretty big legal conservative heavyweights" who were trusted advisors for his judicial appointments to the Florida Supreme Court.

In October 2022, Appellant emailed an anonymous public records request to the Governor's Office. The request asked for:

Any and all materials, on official devices or personal devices used for official business, in whatever form, including but not limited to call logs, emails, or texts, between or among Governor Ron DeSantis, Casey DeSantis, the governor's chief of staff, his executive or personal assistants or aides, his general counsel or anyone within the general counsel's office, the director of appointments or anyone within the director of appointment's office, and the "six or seven pretty big legal conservative heavyweights" described by the governor in an interview with Hugh Hewitt on August 25, 2002 [sic].

The Governor's Office acknowledged that the request was in the queue along with a high volume of other requests. Over the next twenty days, Appellant attempted to have the Governor's Office expedite a response. On October 26, Appellant conveyed intent to file suit and suggested the Governor's Office just provide the names of the "heavyweights" to resolve the request.

The next day, Appellant, "J. Doe, anonymously and individually, a/k/a 'FloridaSupremeCourtPRR@protonmail.com'" filed a petition for writ of mandamus, a complaint to enforce the Public Records Act, and an ex parte motion for alternative writ of mandamus in the circuit court.

The court agreed with the trial court that plaintiff wasn't entitled to seek mandamus anonymously in this situation:

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Last Friday, the US District Court for the District of Kansas ruled that 3 of 11 red states challenging President Biden's latest big student loan forgiveness program (which would forgive at least $156 billion in federally backed student debt) have standing to sue. Judge Daniel Crabtree, a Democratic Barack Obama appointee, ruled that the states of Alaska, South Carolina, and Texas have standing due to the fact that they have "public instrumentalities" that service student loans, and those agencies income is likely to go down if the administration's loan forgiveness plan is implemented. Thus, the states have an "injury in fact" of the kind needed for standing.

This standing theory is similar to the one that prevailed in Biden v. Nebraska, the Supreme Court decision striking down Biden's previous big loan forgiveness plan adopted under the 2003 HEROES Act. There, the Court ruled that the state of Missouri had standing because it has a state agency (MOHELA) that services federally backed student loans, and MOHELA's income would be reduced if some of those loans were forgiven.

In this case, Judge Crabtree concludes, Alaska, South Carolina, and Texas have similar justifications for standing, even though weaker and "more attenuated" than Missouri's was:

[P]laintiffs had to show two things to show an injury: (1) the SAVE Plan makes it likely that borrowers will consolidate their loans and (2) if borrowers consolidate their loans, the states' public instrumentalities will suffer harm. Plaintiffs have shouldered their burden on both fronts….

First, plaintiffs have shown by a preponderance of the evidence that the SAVE Plan will cause FFEL [Federal Family Education Loan] borrowers to consolidate their loans into direct loans….

Alaska's ASLC declaration, in contrast, explains the SAVE Plan's incentives for borrowers to consolidate and testifies that the SAVE Plan already is causing borrowers to consolidate. And defendants haven't rebutted this evidence with any evidence of their own….

Second, plaintiffs have shown that, when borrowers consolidate their loans, the states' public instrumentalities—and therefore the states—will suffer harm in the form of reduced interest income.

Sounds right to me!

Usually, if even one of several plaintiffs in a case like this has standing, the others are allowed to remain, as well. That's what the Supreme Court did in Biden v. Nebraska. Judge Crabtree, however, concludes that district courts have discretion to reject the idea that "standing for one is standing for all," and thus decided to dismiss the other eight states from the case, after rejecting their standing arguments (which are weaker than those of the three states that get to continue). I will leave that issue to commentators with greater relevant expertise on this aspect of standing doctrine.

In a previous post about this case, I noted that the state of Louisiana also has a state-run loan servicing agency that could potentially get standing based on a theory similar to that which prevailed in Biden v. Nebraska. Judge Crabtree dismissed Louisiana from the case without considering this potential basis for standing. I do not understand why, but welcome correction by readers who know more about Louisiana's student loan servicing policies.

Regardless, if this ruling stands up on appeal, the lawsuit will now continue, even if with fewer plaintiffs. While victory on the merits is far from guaranteed to the plaintiffs, I think they have a strong case, similar in many ways to that which succeeded in Biden v. Nebraska, even though this plan is adopted under a different statute (the 1965 Higher Education Act).

If Judge Crabtree's dismissal of eight of the plaintiff states holds up, the lawsuit will no longer be led by Kansas Attorney General Kris Kobach. That may be for the best, as he has been repeatedly sanctioned by federal courts for various types of misconduct.

Meanwhile, the state of Missouri, joined by seven other GOP-controlled states, has filed its own lawsuit challenging the new loan forgiveness program. Missouri is highly likely to get standing, because it is literally advancing the exact same theory as it did in Biden v. Nebraska, involving the exact same state loan servicer: MOHELA (see pp. 27-31 of Missouri's complaint).

Obviously, this is just the first of many rulings in the litigation over the new plan. It is certain to be appealed. Nonetheless, I am fairly confident that at least some of the plaintiff states will succeed in getting standing (Missouri has an especially strong case), and I am also guardedly optimistic (though less so) that courts will ultimately conclude the plan is illegal on the merits.

As with the plan invalidated in Biden v. Nebraska, courts would do well to strike down this one because it is dangerous and unconstitutional to allow the executive to raid the treasury to use it for purposes not authorized by Congress. For similar reasons, I opposed Donald Trump's attempt to divert military funds to build his border wall.

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Oklahoma S. Ct. Vacates Restraining Order Against Self-Described Pastor Who Was Sharply Condemning Pro-Gay-Equality Activists

The court concludes the pastor's posts were about the activists' organization (Oklahomans for Equality) and not about them personally; it thus avoided having to decide whether the First Amendment would have protected the speech if it was indeed about the activists personally.

Eugene Volokh | 6.12.2024 8:01 AM

From Hayes v. Penkoski, decided yesterday by the Oklahoma Supreme Court, in an opinion by Justice Darby:

The question before this Court is whether Defendant, Richard Penkoski, harassed or stalked Petitioners, Sheena Hayes and Morgan Lawrence-Hayes, as required for issuance of a protective order. Because Penkoski did not direct his actions toward any individual person, which the statute requires before the district court may enter an order of protection, we answer in the negative….

Penkoski is a public figure who holds himself out as a pastor, activist, and street preacher. Petitioners are also public figures; Morgan Lawrence-Hayes is President of Oklahomans for Equality and Sheena Hayes is Vice President of Oklahomans for Equality. Hayes is also the outreach committee chair for Petitioners' church, Disciples Christian.

On September 9, 2022, Penkoski created a post on Facebook. The post said: "This is NOT a church!! This is a satanic recruitment center to groom and indoctrinate children while they pervert the Word of God[.]" The post also contained two photographs, the first was a collaboration of photos of individuals with the overlying text "DISCIPLES CHRISTIAN CHURCH" in bold and below that in italics the text "Happy Pride Month[.]" The photograph cuts off halfway through the second line of text. The second photograph depicts a group of adults and children holding what appears to be photos or pieces of art. No text indicated the identity of the individuals in either photo. Petitioners testified that they and their minor child were pictured in both of the photos. The photographs were available on the church's public page.

The next day, on September 10, 2022, Penkoski attended the Bartlesville Pride Event in Bartlesville, Oklahoma. Penkoski allegedly stood on the street corner and yelled into a bullhorn for several hours, shouting slurs across the street toward the children's bouncy house. Penkoski testified that he stayed where the police asked the protesters to assemble during the Pride Event. Penkoski had no direct interaction with Petitioners and Penkoski did not mention Petitioners' names or Petitioners' church by name.

On November 7, 2022, both Petitioners and Penkoski chose to attend and speak at the Bartlesville City Council meeting. At the meeting, Penkoski did not speak directly to the Petitioners, mention them by name, or have any direct interaction with them. No videos or photos of the city council meeting were submitted into evidence.

On November 11, 2022, Penkoski again posted on Facebook. This post consisted of the text "Liar, liar, pants on fire!!" and a video. The thumbnail of the video in the post showed a woman standing at a lectern with a microphone. The woman had dark colored, long hair which covered most of her face making her virtually unrecognizable in the photo. No text in the post identified the woman in the video. Petitioners testified that the video showed Lawrence-Hayes speaking at the City Council meeting but did not submit a copy of the posted video into evidence.

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6/12/1967: Loving v. Virginia decided.

From the Associate Vice Chancellor for Campus Safety today:

Dear Bruin Community:

I write to share an update on demonstration activity on campus yesterday, which resulted in violence, destruction of property and the blocking of student access to parts of campus.

This was completely unacceptable. The demonstration activity disregarded our values as a community, violated our campus policies and broke the law. These actions injured people, threatened the safety of our community and vandalized our campus. These actions also prevented students from completing their final exams.

At around 3:15 p.m., activity started at the top of the steps leading to Royce Quad, where a group of people dyed the water in Shapiro Fountain red, used water-filled barriers and chicken wire to block the area, used amplified sound, and set up tents and canopies. When this group of individuals was told to disperse, they moved to Kerckhoff patio carrying wooden shields. At Kerckhoff patio, the group proceeded to vandalize property with permanent red paint and erected barriers that blocked students and the public from accessing that part of campus. At the same time, another group at Moore Hall disrupted final exams.

When the group on Kerckhoff patio was told to disperse, they moved to an area near Dodd Hall. This resulted in some students having to miss finals because they were blocked from entering classrooms. Additionally, some students had to be evacuated in the middle of taking their final exams.

Throughout the evening, there were also violent attacks on safety personnel and law enforcement, resulting in at least six injuries to UCPD [= UCLA Police Department] personnel and other safety officers. One security guard was left with his head bleeding after he was struck with an object. Simply put, these acts of non-peaceful protest are abhorrent and cannot continue.

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There are many reasons why administrative regulation may be preferable to nuisance law for dealing with environmental pollution. Among other things, regulations may provide clearer standards of what sorts of conduct is or is not permitted and may provide clearer incentives for firms to reduce polluting behavior. One potential downside, however, is that administrative regulation may be more subject to political influence.

If regulatory agencies are responsible to elected officials, we might expect this to affect their enforcement efforts. In particular, if we assume that polluting firms are a politically important constituency, we might expect enforcement efforts to be less stringent in closely contested (i.e. "battleground") jurisdictions. A new paper, "The Selective Enforcement of Government Regulations: Battleground States, State Regulators, and the Environmental Protection Agency" by Huseyin Gulen and Brett W. Myers, recently published in the Journal of Law & Economics, suggests just such an effect.

Here is the abstract:

The Electoral College creates incentives for politicians and regulators to direct policy favors toward battleground or swing states. We examine whether this affects regulatory enforcement and find that facilities in battleground states are less likely to be found in violation of the Clean Water Act, partially because the permit limits for facilities in these states are less restrictive. Identification is obtained by analyzing violation rates of similar facilities located along the border between battleground and nonbattleground states.

And here is from the paper's conclusion:

The literature on the impact of government regulation has largely focused on whether it benefits or harms social welfare. We examine an equally important and related question: is regulation uniformly enforced? In our study, we find that government actors selectively enforce economically important government regulations, and this selective enforcement is widespread, is economically meaningful, and benefits politically important states. Our findings suggest that electoral politics provides incentives to both politicians and regulators to selectively enforce government regulations. To be specific, and consistent with differing levels of enforcement standards, we find that facilities located in battleground states experience lower violation rates of the CWA than facilities in nonbattleground states. This is at least partially explained by facilities in battleground states being issued more lenient NPDES permits. We achieve identification and control for unobserved heterogeneity by focusing the analysis on similar facilities located along the border of battleground and nonbattleground states. We argue that the battleground status of a facility's state is likely to represent an exogenous source of political importance to facility operators. Our evidence is consistent with the idea that government regulators—in our case, the EPA and state-level regulators—do not uniformly enforce economically important regulations.

Two new studies posted by the National Bureau of Economic Research find evidence that bans on flavored vaping products may increase youth smoking. This is consistent with prior research showing that policies that make vaping products less available or more expensive can lead to higher youth smoking rates.

The first study is "The Effect of E-Cigarette Flavor Bans on Tobacco Use," by Chad D. Cotti, Charles J. Courtemanche, Yang Liang, Johanna Catherine Maclean, Erik T. Nesson & Joseph J. Sabia. Here is the abstract:

Advocates for sales restrictions on flavored e-cigarettes argue that flavors appeal to young people and lead them down a path to nicotine addiction. This study is among the first to examine the effect of state and local restrictions on the sale of flavored electronic nicotine delivery system products on youth and young adult tobacco use. Using data from the State and National Youth Risk Behavior Surveys, we find that the adoption of an ENDS flavor restriction reduces frequent and everyday youth ENDS use by 1.2 to 2.5 percentage points. Auxiliary analyses of the Behavioral Risk Factor Surveillance System show similar effects on ENDS use for young adults ages 18-20. However, we also detect evidence of an unintended effect of ENDS flavor restrictions that is especially clear among 18-20-year-olds: inducing substitution to combustible cigarette smoking. Finally, there is no evidence that ENDS flavor restrictions affect ENDS use among adults aged 21 and older or non-tobacco-related health behaviors such as binge drinking and illicit drug use.

The second study is "Comprehensive E-cigarette Flavor Bans and Tobacco Use among Youth and Adults," by Henry Saffer, Selen Ozdogan, Michael Grossman, Daniel L. Dench & Dhaval M. Dave. Here is the abstract:

The vast majority of youth e-cigarette users consume flavored e-cigarettes, raising concerns from public health advocates that flavors may drive youth initiation into and continued use of e-cigarettes. Flavors drew further notice from the public health community following the sudden outbreak of lung injury among vapers in 2019, prompting several states to enact sweeping bans on flavored e-cigarettes. In this study, we examine the effects of these comprehensive bans on e-cigarette use and potential spillovers into other tobacco use by youth, young adults, and adults. We utilize both standard difference-in-differences (DID) and synthetic DID methods, in conjunction with four national data sets. We find evidence that young adults decrease their use of the banned flavored e-cigarettes as well as their overall e-cigarette use, by about two percentage points, while increasing cigarette use. For youth, there is some suggestive evidence of increasing cigarette use, though these results are contaminated by pre-trend differences between treatment and control units. The bans have no effect on e-cigarette and smoking participation among older adults (ages 25+). Our findings suggest that statewide comprehensive flavor bans may have generated an unintended consequence by encouraging substitution towards traditional smoking in some populations.

While the empirical evidence that restrictions on vaping products, including flavor bans, threaten to increase youth smoking continues to accumulate, federal agencies are looking the other way. This is no way to enhance the protection of public health.

The Food & Drug Administration, for its part, has largely excluded the consideration of such effects when evaluating vaping product applications. In reviewing such applications, the FDA focuses on product-specific information to the exclusion of any consideration of how the availability of whole product categories (such as flavored e-cigs) may affect consumer behavior. This is but one small part of the FDA's overall vaping problem.

Rep. Khanna, Jane Bambauer, and I talk about TikTok, social media's effects on children, and more.

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6/11/1993: Church of the Lukumi Babalu Aye v. City of Hialeah decided.

Judge David Tatel's new book, fittingly titled Vision, has received a lot of press for its criticism of the Roberts Court. But much of the book focuses on insights into judging. I've only started reading the book, but I appreciated his tick-tock account of a July 2020 capital case. Daniel Lee Lewis's case rocketed from the District Court to the D.C. Circuit to the Supreme Court in the span of roughly 24 hours. Apparently, the Supreme Court can bark at lower court judges when they take too long!

Here is a snippet of the chronology:

But everything changed at 10:30 a.m. when I received an email from court staff reporting that a district court judge had just blocked the first of several executions scheduled by the Trump administration. The government had planned to execute a convicted murderer, Daniel Lewis Lee, by lethal injection that very afternoon at the federal death chamber in Terre Haute, Indiana. But the district court had temporarily halted the execution, and our staff anticipated that the Justice Department would quickly ask us to reverse the district court and let the execution proceed. . . .

At 11:52 a.m. the Justice Department informed my court that, as anticipated, the government wanted us to immediately reverse the order blocking Lee's execution so it could move ahead as planned. Now it was up to our three-judge panel—two other D.C. Circuit judges and me—to review the district court's ruling and decide whether Lee would live or die that very day. Ordinarily, the appellate process takes many months, if not longer. . . . Nevertheless, respecting the government's request for speed, we ordered Lee's lawyers to respond by 5:15 p.m. and the government to reply by 7 p.m. . . .

When the briefs arrived, my law clerk read them aloud to me over Zoom, going as fast as possible and stopping only for sips of tea to save her voice. . . . Two hours and hundreds of pages later, I concluded that there was nothing unlawful about the district court's order delaying Lee's execution. . . .

My two colleagues, Judges Thomas Griffith and Patricia Millett, agreed. If you've become accustomed to viewing judges as politicians in robes, you might think it relevant that Judge Griffith was appointed by a Republican president (George W. Bush) and Judge Millett by a Democrat (Barack Obama). But they're judges, not politicians, and both saw what I (appointed by Democrat Bill Clinton) saw: a serious constitutional claim, a thoughtful district court order, and no legal basis to overturn it. . . .

My law clerk and I began drafting an opinion, she on her desktop, me on my black Braille computer. The size of a keyboard, it has six rectangular Braille buttons and connects to an earphone that allows me to hear the words as I type them. As soon as we had a draft, I sent it to Judges Griffith and Millett for their input. We were exchanging edits and refining the draft when, at 9:51 that evening, we received word from the Supreme Court that the justices were growing impatient. The Court, we were told, "would really like us to act tonight"—and, if possible, "within an hour." That kind of pressure was highly unusual, but, recognizing the Supreme Court's higher authority, we did our best to comply. At 11:24 p.m., we released our opinion rejecting the government's request to proceed with the execution. The case, we explained, involved "novel and difficult constitutional questions" that required "further factual and legal development." We then scheduled all remaining briefing to occur within the next ten days, far faster than usual. Fewer than three hours later, around 2 a.m., the Supreme Court voted 5–4 to reverse us. The Court's order was unsigned, but the names of those who approved Lee's immediate execution were obvious because all four justices who objected signed their names to a dissent. The five in the majority were the Court's purported conservatives: Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. . . .

Fewer than six hours later, at 8:07 a.m., the government executed Daniel Lewis Lee.

What a fascinating and riveting account. Tatel writes very well.

I've long suspected that the Supreme Court prods the lower courts when an urgent case is not moving quickly enough on the shadow docket. But this is the first time I've seen a judge confirm it.

For those curious, Tatel does not discuss his service with then-Judge Kavanaugh.

***

I've been very critical of Supreme Court Justices who sign lucrative contracts to write memoirs immediately upon their confirmation. They would be much better off living a full life, and then reflecting on it. There is much to study and praise in Judge Tatel's decades on the bench. And I am reasonably confident that he did not receive a seven-figure advance.

In reading an old treatise's discussion of preliminary injunctions, I came across this quotation:

An interlocutory injunction is merely provisional in its nature, and does not conclude a right, while the perpetual injunction is a final decree upon full hearing, and concludes all parties in interest.

Thomas Carl Spelling, Treatise on Extraordinary Relief in Equity and at Law § 31, at 42 (1893). It's reminder of the principle that equitable decrees were conclusive for the parties, not for the world at large. That's why the old equity cases and treatises spend so much time on figuring out who the proper parties are and whether they've all been joined. Because the scope of the parties, including those represented by the parties, will be the scope of the court's decree.

For contemporary implications, of course, see Multiple Chancellors.

I had a different reaction than Josh Blackman did to the comment of the Supreme Court's Public Information Officer Patricia McCabe about Beyoncé—it struck me as likely just McCabe's own well-meaning-but-odd comment, rather than evidence of a nefarious quid pro quo between Beyoncé and Justice Ketanji Brown Jackson—but I wanted to focus instead on a comment Josh makes that strikes me as particularly unlikely to be true:

For all the outrage about Justice Thomas, no one doubts that he and Harlan Crow are genuine friends. They met nearly three decades ago, and have forged a close bond. Whatever generosity that Crow shares with Thomas is based on a kinship and connection that has been developed for years.

I have no particular reason to doubt that Justice Thomas and Harlan Crow are very close friends. With that said, it seems wrong to say that no one doubts that. A lot of people do. And to my mind it raises an interesting question: Do Supreme Court Justices have real friends? Or maybe, more specifically, if you're a Justice, how do you know who is a real friend, and how do you know who has decided to "befriend" you for their own personal or political reasons?

Sure, if you have an old friend from childhood, or a law school roommate you've kept in consistent touch with over the years, that's very likely a real friend. If you were friends with someone before you became someone important, you can probably trust that friendship.

It seems to me, though, that new Justices should be and presumably usually are rather wary of those seeking their friendship. A lot of people interested in politics would love to be friends with Justices. For some, it may just be fascination with power. Justices have a lot of that, and they have life tenure, too.

And some of that interest may have an agenda in mind. My sense is that, when a Justice arrives in D.C.—or if they're in D.C. already, when they reach the Court— there's often a line of people quite eager to make friends with them who, lo and behold, might just have a particular set of views that they want to eventually impress upon their new friend. I would imagine that, if you're on the Court, some skepticism of your new "friends" might be in order.

On a largely but not entirely unrelated front, I wonder what it's like to be a Justice visiting a law school. From what I can tell, it's fairly common, when a school is so lucky as to have a Justice visit, for the Justice to be feted like royalty. And what to think when (as I've seen at several places) the Dean arranges for the Justice to meet during the visit with a few current 3Ls who just happen to be at the top of the class and are preparing their clerkship applications to the Court? I assume the Justices understand what is happening, as it's not all that subtle. And maybe, when that's the way people in your field interact with you for so long, it becomes kinda normal. Still, it must be odd.

I have been a member of the Supreme Court Historical Society for more than a decade. I very much enjoy reading the Journal of Supreme Court History. Also, when I am in town, I try to attend various events, especially the re-enactment of famous cases. One of my favorites was seeing Justice Ginsburg preside over a re-enactment of Muller v. Oregon. I nearly burst out laughing when she cited favorably the precedent of Lochner v. New York.

Every year, the Society holds an annual meeting at the Supreme Court. (During the pandemic, the meeting was held online). I attended the recent meeting on June 3, 2024. The session began with a tour of the Court, followed by a screening of Holmes - The Film. (The Society recorded the one-man show about Justice Oliver Wendell Holmes preparing for his 90th Birthday address). The society then held a business meeting, where we voted on a new slate of officers and a few other matters. The meeting was open to the press. (Josh Gerstein from Politico was taking notes!) After the meeting, there was a cocktail reception on the ground floor. The reception and the dinner were not open to the press, but anyone who purchased a ticket could attend. This is not a secret cabal.

As is the custom, there is usually a Justice present at the Society's meetings. Justice Alito was there at the cocktail hour. You can imagine how these sorts of events proceed. There are a throng of people who wish to meet the Justice. So people sort of mill around, and wait for an opening. They exchange a few words with the Justice. And when the time is right, they move on. Justice Alito was very gracious, and spoke with many people that evening.

After the cocktail hour concluded, we went upstairs to the great hall for a banquet dinner. Chief Justice Roberts was at one table, Justice Alito at a second table, and Justice Jackson at a third. Again, people would often go up to the Justices, introduce themselves, say a few things, and move on. This sort of exchange is quite common at banquet dinners. Roberts, Jackson, and Alito, all interacted with the guests in attendance.

There was a tasty dinner (I had the fish). Chief Justice Roberts gave the traditional toast ("To the President of the United States"). And there was a delicious dessert. Yes, I took a picture.

That's it! It was a fun evening, and I was quite glad to attend the Society's 50th Anniversary dinner.

But not everyone was there to have fun. Lauren Windsor, who identifies herself as a "Journalist," secretly recorded her conversations with Chief Justice Roberts and Justice Alito. You can listen to them here.

EXCLUSIVE UNDERCOVER AUDIO:
Sam Alito x John Roberts x The Undercurrent ????

1/ Justice Alito admits lack of impartiality with the Left, says: "One side or the other is going to win." pic.twitter.com/b5nmxToZ9z

— Lauren Windsor (@lawindsor) June 10, 2024

Ms. Windsor gave the exclusive to Rolling Stone, which describes the gathering as a "function that is known to right-wing activists as an opportunity to buttonhole Supreme Court justices." As I looked around the room, I did not see "right-wing activists." Indeed, I counted only a handful of Federalist Society members that I recognized in a gathering of about 200 guests. Carter Phillips, who does not wear a MAGA hat, was just elected as President of the society. These were people who were interested in the Supreme Court and its history, not ideologues.

I listened to the recording. Justice Alito did not say anything inappropriate. Indeed, I suspect he was mostly being polite and trying to make conversation with someone who was (pretending to be) genuinely interested in talking about our nation. Chief Justice Roberts said about what you would expect him to say--that elected officials and not judges should be in charge of making policy. There is no news here, other than the fact that the Justices are being privately recorded at the Supreme Court.

Ms. Windsor did not record any conversation with Justice Jackson, who was also in attendance. Maybe she could have asked about the Beyonce concert? Again, no one has ever protested outside of Justice Jackson's home. She is safe.

While officers will screen for recording devices when the Court is in session, there were no such checks for the cocktail hour. And who would even think that was necessary? I fear that Justice Alito will no longer participate in Society events. Why would he risk having his private conversations being blasted on the internet? More and more, Justice Alito can only whisper his thoughts in the recesses of his home.

Update: I agree entirely with Jim Duff:

James Duff, the executive director of the Supreme Court Historical Society, lamented the recordings in a statement.

"We condemn the surreptitious recording of Justices at the event, which is inconsistent with the entire spirit of the evening," Duff said.

In his statement, Duff, the society's executive director, said: "Attendees are advised that discussion of current cases, cases decided by current sitting Justices, or a Justice's jurisprudence is strictly prohibited and may result in forfeiture of membership in the Society."

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