The Volokh Conspiracy

I'm pleased to be able to post the cover of my forthcoming book, The Digital Fourth Amendment, which will be published this fall (or thereabouts) by Oxford University Press.  Although you shouldn't judge a book by its cover, I'll happily grant an exception if you like this:

(UPDATE: When I first posted this, I had it as "it's cover" instead of "its cover," but the spirit of my 6th grade English teacher Mrs. Bailey fortunately rushed in to correct it soon afterward. Eeks!)

Justice Alito wrote a letter to Senators Durbin and Whitehouse in response to their calls for recusal. He was under no obligation to respond, and I have no doubt that his response will not placate critics. But his letter makes several important points, and also provides insights into his thinking about the flag flap.

First, the Supreme Court's Code of Conduct provides that a Justice should recuse "where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties." What does "unbiased and reasonable mean"? Justice Alito provides his own gloss on that phrase.  Here, Justice Alito was "confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal." In Alito's view, "unbiased and reasonable" does not include a person who is "motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases." The people who are calling for Justice Alito to recuse fall squarely in this category. The primary driver behind the "Stop the Steal" narrative is to force Justice Alito to recuse in all Trump-related cases. These voices were silent about Justice Ginsburg's comments about President Trump, and her dissent collar after election day. (Apologies do not undo an appearance of partiality). These voices, Alito implies, are not "unbiased and reasonable."

Second, Justice Alito and Mrs. Alito had no idea that either flag was associated with the "Stop the Steal" movement.

My wife's reasons for flying the flag are not relevant for present purposes, but I note that she was greatly distressed at the time due, in large part, to a very nasty neighborhood dispute in which I had no involvement.

…

I was not familiar with the "Appeal to Heaven" flag when my wife flew it. She may have mentioned that it dates back to the American Revolution, and I assumed she was flying it to express a religious and patriotic message. I was not aware of any connection between this historic flag and the "Stop the Steal Movement," and neither was my wife. She did not fly it to associate herself with that or any other group, and the use of an old historic flag by a new group does not necessarily drain that flag of all other meanings.

I don't care how many tweets Jodi Kantor finds, this narrative--the core of the entire story--will never stick.

Third, Justice Alito explains that his wife retains the full panoply of free speech rights:

My wife is a private citizen, and she possesses the same First Amendment rights as every other American. She makes her own decisions, and I have always respected her right to do so. . . .

As I said in reference to the other flag event, my wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so.

The mere fact that Mrs. Alito says something does not impute any improper motivations to her husband. Thankfully, coverture has been abolished, and spouses are allowed to have their own legal identities.

Fourth, we learn that Justice Alito had nothing to do with either flag. Indeed, Justice Alito asked Mrs. Alito to take down the upside-down flag, and she refused:

As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upsidedown flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.

I'm sure some readers would respond, "You could divorce your wife." Indeed, Nancy Gartner, a former federal judge, said as much to the Washington Post.

If her husband had tried to put up a sign or flag at their house in response to something a neighbor displayed on their block that was inconsistent with or critical of his civil liberties work, Gertner added: "One of two things would have happened: A) a divorce and B) surely recusal."

I think this statement says far more of how Gertner views the institution of marriage than how she views the code of ethics. Mrs. Alito's neighborly spat with her neighbors was her own business. Justice Alito asked her to taken down the flags. She refused. Even if Mrs. Alito was trying to convey some sort of political message about the election, Justice Alito distanced himself from it. Knowing these facts now, a reasonable person should see no justification for recusal--of course, they may insist that Justice Alito is lying, and that he personally was aware of the symbol's meaning and endorsed it. But these views are not reasonable, and not unbiased.

Fifth, Justice Alito spoke to the sacrifices that his wife has had to make.

She has made many sacrifices to accommodate my service on the Supreme Court, including the insult of having to endure numerous, loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.

The protests will continue. These Justices and their families cannot know peace and quiet. Indeed, their refuge on the Jersey Shore has also been ruined.

Our vacation home was purchased with money she inherited from her parents and is titled in her name. It is a place, away from Washington, where she should be able to relax.

Regrettably, the spouses of all conservative Justices have to make these sacrifices. I can't fathom why anyone would want to accept this job--why put your family through this hell. And to be clear, spouses of liberal Justices will be toasted on the town. Patrick Jackson has nothing to worry about. There were never any call for RBG's recusal based on Marty Ginsburg's practice at Fried Frank, which appeared before the Supreme Court.

Justice Alito will not recuse, so everyone should move on. But they won't.

Jodi Kantor of the New York Times has a new report that dives deeper into the Alito flag flap. This work probably should have been done before her initial story ran. Now, we have a lot more context. From my vantage point, I'm not sure much changes. There was a spat between Mrs. Alito and her neighbors, in which she flew the flag upside down as a symbol of distress. I still see nothing to connect Mrs. Alito's decision with some sort of stop-the-steal imagery. But I'm sure "objective observers" will continue to see the "appearance of impropriety" they want to see.

What did interest me is how facets of this neighborly spat intersected with two landmark free speech cases. Sometimes reality is stranger than fiction.

After January 6, the neighbors put up a sign across the street from the Alitos saying "You Are Complicit."

Then came Jan. 6. Rocked by the violence and threat to democracy, the couple soon put up new signs in their yard, saying "Trump Is a Fascist" and "You Are Complicit." Emily Baden said in interviews that the second sign was not directed at the Alitos, but at Republicans generally, especially those who weren't condemning the Capitol attack. . . . .

It's not clear whether Mrs. Alito saw those signs, but the day after the Capitol riot, as the couple parked in front of their home, she pulled up in her car, they said. She lingered there, glaring, for a long moment, recalled the couple, who texted their friends about the encounter.

Who is You? Justice Alito? Or Republicans in general?

This exact argument was at issue in Snyder v. Phelps. Recall that the Westboro Baptists held up a signs saying "God hates you" and "You're going to Hell." Who was the sign referring to? Matthew Snyder? Or society at large? Chief Justice Roberts, per the majority, did not think the sign referred exclusively to the slain Marine, but could have referred to society more broadly. Justice Alito, in his solo dissent, thought the sign clearly referred to Matthew Snyder. Here is the summary of the dispute from 100 Cases:

Justice Alito wrote a solo dissent. He countered that some of the signs were directed at Matthew Snyder. For example, "You're going to Hell" referred to Matthew. In addition to carrying signs at the funeral, Westboro also published a blog post — known as an "epic" — that addressed the Snyder family directly. During oral argument, Justice Alito stated, "The epic specifically referenced Matthew Snyder by name, [and] specifically referenced Matthew's parents by name." He then asked, "Do you think that the epic is relevant as an explanation of some of these arguably ambiguous signs that were displayed at the funeral? For example, 'You are going to hell,' 'God hates you.' Who is 'you'? If you read the epic, perhaps that sheds light on who 'you' is." . . . .

Chief Justice Roberts only considered the signs at the demonstration. He observed that "even if a few of the signs — such as 'You're Going to Hell' and 'God Hates You' — were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues." By limiting the facts in this way, Chief Justice Roberts made the case easier to decide than perhaps it was.

I suspect the Alitos thought the "complicit" sign was directed them--in particular at Justice Alito. Trump is a fascist and Justice Alito is complicit. It is rare that we have a Justice's opinion on how to interpret pronouns on protest signs, but we have Snyder v. Phelps.

There is more. It turns out that the neighbor-at-issue never actually saw the upside-down flag!

On Jan. 17, the upside-down flag hung at the Alito household, according to a photograph obtained by The Times. Neighbors say it was up for a few days. If the flag was intended as a message for the Badens, whose home does not have a direct view of the Alito residence, they missed it, they said.

One of the greatest ironies of Snyder v. Phelps is that the family of Matthew Snyder never actually saw the protest signs, which were outside the cemetery. The claim for intentional infliction of emotional distress was premised solely on media reporters of the protest. Here too, Mrs. Alito flew the flag as a symbol of distress, but it never reached its intended recipient.

As is often the case with free expression and symbolism, messages are often missed and misinterpreted--another reason why we should all be cautious and not view the flags in the worst possible light.

There is one more SCOTUS intersection, this time to Chaplinsky v. New Hampshire. In this case, Chaplinsky called a police officer a "damned fascist." The Supreme Court held that these words were "fighting words," and were not protected by the First Amendment. As all know, the fighting words doctrine is basically a dead letter. It plays almost no role in modern First Amendment law. I sometimes joke with my students that in today's coarsened society, no words would justify punching someone in the face. Then again, Justice Alito favorably cited Chaplinksy in Snyder:

This Court has recognized that words may "by their very utterance inflict injury" and that the First Amendment does not shield utterances that form "no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) ("[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution"). When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

Back to the cul-de-sac. According to the neighbors, Mrs. Alito used similar words as Mr. Chaplinsky:

The conflict then seemed to quiet down. But on Feb. 15, the couple were pulling in trash bins when the Alitos, who seemed to be on a stroll, appeared. Mrs. Alito addressed the pair by name, used an expletive and called them "fascists," the couple told The Times and said in texts at the time. Justice Alito remained silent, they added. The Alitos began to walk away.

In response, the neighbor called Mrs. Alito a word that begins with c- and rhymes with punt.

That was when Emily Baden snapped, she said. She does not remember her precise words, but recalls something like this: How dare you behave this way. You've been harassing us, over signs. You represent the highest court in the land. Shame on you.

Ms. Baden said that she — not her partner, as Justice Alito recalled — used the lewd expression. "I will fully cop to that," she said. A neighbor standing in the street, who asked not to be identified because of the friction on the block, said he heard her say the word too.

Is calling someone an expletive-fascist a fighting word? Does it justify a c-bomb in response? Is calling someone a c-word a fighting word? I can't fathom what was going through Justice Alito's mind when he witnessed all of this unfolding. Pick at random any other graduate from Steinert High School in Trenton, Class of 1968, and call their wife the c-word. See what would happen. Judicial restraint would not be the order of the day. (By chance, the District Court judge I clerked for graduated from Steinert a few years before Justice Alito.)

Anyway, I think this story will have a life so long as it allows people to call for Justice Alito's recusal. I think what we have here is what we had from the outset: an ugly neighborly spat that did not signal the Justice's sympathy with "stop the steal."

There has been much discussion of certworthiness of late. Should certworthiness play a role in granting emergency relief on the shadow docket? What about the sharp decline of cert grants? For one reason or another, the Court simply is getting more stingy with certiorari.

Justice Gorsuch's solo dissent from denial of cert in Cunningham v. Florida speaks to this frustration. For some time, Justice Gorsuch has objected to Williams v. Florida (1970), which reversed precedent, and upheld the constitutionality of a six-person jury. Justice Gorsuch dissented from denial of cert on this issue in Khorrami v. Arizona (2022). Justice Kavanaugh did not join Justice Gorsuch's dissent, but would have granted the petition.

But now in Cunningham, Justice Gorsuch is all alone, left to hope for three more votes. He wrote:

If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be. In the meantime, nothing prevents the people of Florida and other affected States fromrevising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers. If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so. For, no less than this Court, the American people serve as guardians of our enduring Constitution.

I think it is fairly rare for a Justice to openly hope for three more votes in such explicit language. If I had to guess, Justices Alito and Barrett are not sold on the case. Indeed, like with the jury unanimity requirement, overruling Williams would raise the retroactivity question, as many convictions would be jeopardy. At present, at most, there are three votes for cert, and not enough for a grant. This issue will lay dormant for the foreseeable future.

The New York Times Magazine published a deep dive into the origin story of Dobbs. It covers a lot of ground, and based on my own recollection, it is fairly accurate. Here, I'd like to highlight a few items.

A lead protagonist in the story is former Wisconsin SG Misha Tseytlin. Misha may not be a household name, but he has been extremely influential over the years. For example, he was the brainchild behind the Obamacare challenge that became known as California v. Texas. (See profiles from the Houston Chronicle and Vox.) Earlier, at the West Virginia's Attorney General's Office, Misha helped develop some other influential cases that did not get as much press. More recently, Misha played an important role in the road to Dobbs. Shortly after the 2016 election, Misha began to develop an idea to target Roe: states should pass a fifteen-week abortion ban. This approach would allow the Court to eliminate the "viability" line, but would not require the Court to overrule Roe and Casey.

Now Tseytlin posed a theoretical question, according to people familiar with the discussion: What would happen if a state tried to pass an abortion limit at, say, 15 weeks? A slightly earlier restriction could force the court to examine the viability rule — and shake the very foundations of Roe. Could they push the number of weeks back just to the point at which their opponents would challenge it?

Tseytlin had a hard time believing that Chief Justice John G. Roberts Jr. or Kennedy, who had come to inhabit a role as the court's swing vote, would strike down a ban that was just a few weeks earlier than 20. Many restrictions in Europe were drawn at 12 or 15 weeks.

Remember, at this point Justice Kennedy was still the fifth vote, so this incremental strategy had some value. But after Justice Barrett's confirmation in October 2020, the strategy shifted.

The article relays an internal debate about how to proceed: should Mississippi simply ask the Court to jettison the "viability" line, or should the state go all in to ask the Court to overrule Roe and Casey. I remember this debate well. Indeed, my widely-read post on the 2021 Federalist Society National Lawyer's Convention reflected this disagreement. The old guard, broadly defined, did not want to push the "overrule" Roe argument. The younger generation, broadly defined, thought this was the moment for change. Scott Stewart, the Mississippi SG, was talkin' bout my generation.

Stewart had to decide on a strategy. Fitch's petition for certiorari focused on upholding the Mississippi law and mentioned the possibility of overturning Roe only in a footnote: "If the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate, the Court should not retain erroneous precedent."

Stewart knew that a lot of lawyers would encourage him to continue down that easier path, to simply argue that Mississippi's law should be upheld. To not push for the complete overturn of Roe but to chip away — as the movement had for so many decades — and get the court to undo the viability standard. But for Stewart, these circumstances were different from those in the past. Trump had pushed their cause from the biggest bully pulpit in the land. Conservatives now had a majority on the court that seemed to be on their side.

It was not a moment for compromise, Stewart reasoned, according to people familiar with his thinking. It was a lesson he had learned from Thomas, his former boss and mentor, who was known to hold the line without deviation. He would be steadfast: Roe and Casey were wrong and must be reversed.

Even after Dobbs were argued, FedSoc lawyers over the age of fifty continuously fretted about the decision to push the Court to overrule Roe. I think it was some sort of collective PTSD from Bork, Casey, Harriet Miers, NFIB v. Sebelius, and more. They worried, correctly, about the aftermath of overruling Roe. In hindsight, Dobbs has been a political disaster for Republicans nationwide. But again, their concerns were pragmatic, and not legal. The yutes, as Joe Pesci would say, were content to let the heavens fall so justice could be done. Fiat justitia ruat caelum. And fall they did.

Finally, the articles identifies a list of cases that are primed for overruling: Employment Division v. Smith, CLS v. Martinez, and Troxel v. Granville. Seems like a good list!

Eugene's post today about the dismissal of a case involving the use of an OK sign supposedly being used as a symbol of white supremacy is a good reminder that most dubious cases based on offensive expression get dismissed. Indeed, one significant critique of my book, You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws is that while I documented many very dubious civil rights claims based on offensive speech, many were dismissed before trial, and many others settled. In the latter situations, critics suggested, the problem may have been less the underlying law and more risk-averse defendants and their insurance companies, who settled meritless cases rather than taking them to trial.

Of course, as I (and Eugene) like to point out, even meritless cases can have significant chilling effects if it costs significant resources to defend and/or settle them.

But in any event, there is one incident that stands out in my memory as an especially egregious case that actually not only made it past a motion to dismiss and summary judgment, not only made it to the jury, but resulted in a six-figure jury award to the plaintiff:

[The case] involved Allen Fruge, a white Department of Energy employee based in Texas. Fruge unwittingly spawned a harassment suit when he followed up a southeast Texas training session with a bit of self‐​deprecating humor. He sent several of his colleagues who had attended the session with him gag certificates anointing each of them as an honorary "Coon Ass" — usually spelled "coonass" — a mildly derogatory slang term for a Cajun. The certificate stated that "[y]ou are to sing, dance, and tell jokes and eat boudin, cracklins, gumbo, crawfish etouffe and just about anything else." The joke stemmed from the fact that southeast Texas, the training session location, has a large Cajun population, including Fruge himself.

An African American recipient of the certificate, Sherry Reid, chief of the Nuclear and Fossil Branch of the DOE in Washington, D.C., apparently missed the joke and complained to her supervisors that Fruge had called her a "coon." Fruge sent Reid a formal (and humble) letter of apology for the inadvertent offense, and explained what "Coon Ass" actually meant.

Reid nevertheless remained convinced that "Coon Ass" was a racial pejorative, and demanded that Fruge be fired. DOE supervisors declined to fire Fruge, but they did send him to "diversity training." They also reminded Reid that the certificate had been meant as a joke, that Fruge had meant no offense, that "Coon Ass" was slang for Cajun, and that Fruge sent the certificates to people of various races and ethnicities, so he clearly was not targeting African Americans. Reid nevertheless sued the DOE, claiming that she had been subjected to a racial epithet that had created a hostile environment, a situation made worse by the DOE's failure to fire Fruge.

Reid's case was seemingly frivolous. The linguistics expert her attorney hired was unable to present evidence that "Coon Ass" meant anything but "Cajun," or that the phrase had racist origins, and Reid presented no evidence that Fruge had any discriminatory intent when he sent the certificate to her. Nevertheless, a federal district court allowed the case to go to trial, and the jury awarded Reid $120,000, plus another $100,000 in attorneys' fees. The DOE settled the case before its appeal could be heard for a sum very close to the jury award.

It's been over twenty years since my book came out, and I haven't followed this area of law as closely as I did when I was writing the book. That said, in the meantime I don't think I have come across another civil rights case as weak as this one based on allegedly offensive speech that resulted in a plaintiff's jury verdict.

For those interested, you can read the district court's denial of the defendant's motions for summary judgment and to dismiss on Westlaw at 1996 WL 411494. And by the way, for the record, I contacted the plaintiff's linguistics expert and got ahold of and read his report. The report's inability to document any evidence that "coonass" was a racially derogatory term should have led to the motion for summary judgment being granted.

FWIW, there are also some hostile environment cases, involving race or sex, that involve truly vile behavior that would seem to at least meet the threshold for the "severe and pervasive" standard for hostile environment to get past summary judgment, but that courts nevertheless dismiss.