The Volokh Conspiracy

I have now had some time to digest the Judicial Conference's policy. So much of what was reported about the policy was not accurate. The Washington Post headline sums things up: "U.S. courts clarify policy limiting 'judge shopping' - On Tuesday, officials said a new policy would mean assigning certain cases randomly. Now they say it is just guidance." I still don't understand how this rollout could have been executed so poorly. 

The policy is only guidance, and is not binding. The policy does not single out single-judge divisions, but randomly assigns cases throughout the district. The policy does nothing at all to address bankruptcy or patent forum-shopping. The policy does not apply to all injunctive relief--only certain types of state or nationwide relief. Critically, cases that have "implications beyond the parties before the court" would be reassigned. There will have to be litigation about what that standard entails. Moreover, this standard is triggered whenever a new complaint or motion is filed. I can imagine some gamesmanship, as plaintiffs who get a bad draw can seek the requested relief as a guaranteed way to get the case reassigned--even after the initial judge may have invested time and effort into the case.

In short, the policy does nothing to directly reduce the number of nationwide and statewide injunctions. Instead, as Judge Sutton explained, the policy is, at best, an "an elegant solution" to reduce nationwide injunctions. What is that "elegant solution"? The policy deprives certain litigants of the venue of their choice, and reassigns it to a venue not-of-their-choosing, where the desired expansive relief is less likely. Will this policy even work?

It is important to unpack four different scenarios: (1) conservative litigants seeking nationwide relief in red states; (2) liberal litigants seeking nationwide relief in blue states; (3) conservative litigants seeking statewide relief in blue states; (4) liberal litigants seeking statewide relief in red states. Here is the upshot of the policy: it will be harder to obtain the desired relief in scenarios #1, #3, and #4, but the odds of obtaining the desired relief in scenario #2 will be virtually unchanged.

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[The material below was originally posted at the Balkinization blog, for the Balkinization symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).]

In this symposium, my designated task was to review and discuss Part V of Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024) This Part delves into social and economic legislation during the Taft Court era. This section is notably well-crafted, showcasing Professor Post's erudition and extensive research, and is a significant contribution to the relevant literature. However, I do not entirely agree with Post's interpretation of the cases he discusses.

Post's narrative heavily leans on the overarching theme that the Supreme Court in the 1920s participated in a society-wide desire for a "return to normalcy." This shift followed the substantial and unprecedented government intervention in civic and economic life accompanying the United States' entry into World War I. The experience with an expansive government during the war heightened American skepticism towards statist progressive ideas that had become dominant before the conflict.

Additionally, many Americans were repelled by the wholehearted support that numerous progressives had shown for the new federal wartime Leviathan and their desire to make it a permanent fixture. Post cites a letter from William Allen White as an illustration of the "innocent confidence of progressives."

I think the big thing to do now is quietly organize a hundred or so fellows who are dependable and who may take such steps as are necessary after the war to serve all the economic and social campaigns that the war brings to us. I think price fixing should be permanent, but not done by Wall Street. I think the government should tighten its control either into ownership or operation of the railroads. I think that labor arbitration should be a permanent thing, and that we should federalize education through universal training, making it a part of the system of education.

To many Americans in the post-war era, this attitude would not have appeared "innocent." Instead, it likely appeared as if enthusiastic supporters of a federal government exerting control over the economy, including regulating wages and prices nationwide, had revealed progressives' true intentions. Contrary to their pre-war claims of seeking significant reform within the existing system, it seemed they actually sought radical, even revolutionary, changes to the American economy and government system.

In the portion of the book I was tasked with reviewing and commenting on, Post overlooks the additional influence of events in Europe on this dynamic. The fact that European nations had become entangled in a brutal war without a clear purpose seemed to affirm America's superiority to Europe. Both in the past and today, many progressives looked to Europe as a model for their more interventionist and nationalist government policies. The emergence of the USSR, Communist revolutions in Germany and Hungary, and the sympathy expressed for Communism and anarchism in the US, especially among immigrants, heightened the apprehension of foreign ideas, including progressive concepts associated with Continental thinkers.

The theme of a "return to normalcy" provides a crucial perspective on the Taft Court era, especially considering President Harding's successful 1920 campaign on that very platform. Harding's victory reflected widespread dissatisfaction with the war and its impact on what we now call civil and economic liberties. Notably, it was Harding who appointed the Justices who steered the court in a more libertarian direction during the 1920s.

The inclination toward a "return to normalcy," seeking a shift back to pre-War levels of government regulation, is a key factor in understanding the overall approach of the pre-Depression Taft Court. This desire is particularly evident in the Court's skepticism toward novel or contentious applications of government regulatory power.

The apprehension of government overreach, intensified by the government's actions during the war, contributed to the Court's effort to systematize its jurisprudence on the liberty of contract. Previously perceived as somewhat arbitrary and inconsistent, the Court aimed to provide clarity. In the case of Adkins v. Children's Hospital (1923), Justice George Sutherland outlined acceptable infringements on liberty of contract beyond traditional police power concerns. These included regulations related to rates and charges for businesses with a public interest, contracts for public work, payment of wages, and hours of labor for health and safety reasons. Sutherland emphasized that, aside from these exceptions, "freedom of contract is the general rule, and restraint the exception," justifiable only in exceptional circumstances.

Looking more broadly, instances of perceived government overreach during World War I shed light on why the Supreme Court was willing to resurrect and broaden doctrines limiting government power that appeared to have been overshadowed by the progressive movement. Traditionalist conservative Justices advocating natural rights notions had no representation on the Taft Court after 1911. Law review commentary in the 1920s that advocated limits on government authority was philosophically incoherence.

As extensively detailed by Barry Cushman, the Taft Court Justices typically labeled as "conservative" a held a spectrum of generally moderate but progressive political views before joining the Court. Barry Cushman, The Secret Lives of the Four Horsemen, 83 Va. L. Rev. 559, 559-60 (1997); see also Logan E. Sawyer III, Creating Hammer v. Dagenhart, 21 Wm. & Mary Bill Rts. J. 67, 88 (2012). Despite this, and likely in part in response to the significant expansion of government authority during the war, these Justices aimed to uphold traditional limitations on government power while largely accommodating the growth of progressive regulation. Conversely, their counterparts, including Justice Louis Brandeis, were more radical Progressives reluctant to concede that the Constitution imposed significant and judicially enforceable constraints on the scope of government authority.

This analysis is at least consistent with Post's return to normalcy theme. His framework, however, is less useful in explaining the outcome of specific cases. As Post acknowledges, the Court continued to uphold some rather novel and intrusive exercises of the police power, while invalidating other exercises of government regulatory authority, some of which seemed rather anodyne.

Post's analysis improves significantly upon the once-robust literature that sought to explain the Court's rulings by reference to the Justices' alleged, but never documented, devotion to Social Darwinism.

Nevertheless, Post still clings to some mythology inherited from Progressive-era critics of Lochner. Quoting an article by Felix Frankfurter from 1916, and also citing Ernst Freund, Post states that Progressives had repudiated Lochner v. New York (1905) because "[t]he majority opinion was based upon 'a common understanding' as to the effect of work in bakeshops upon … those engaged in it. 'Common understanding' has ceased to be the reliance in matters calling for essentially scientific determination." Post believes that the Court's return to normalcy included a return to this "common understanding" vision of what constitutes appropriate regulatory action, and what is an undue and thus unconstitutional interference with normal ordinary economic activity.

The problem is that this is an incorrect, or at least incomplete, understanding of Lochner. Justice Peckham's opinion in Lochner indeed suggested that the Court should uphold the hours legislation at issue in that case if to the "common understanding" baking was an unhealthful occupation in need of special regulation. But the Court also would have upheld the law if scientific evidence before the Court had suggested that regulating bakers' hours served a legitimate health purpose.

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I recently rewatched Beverly Hills Cop (1984), the Eddie Murphy movie, which came out when I was in junior high school.   It dawned on me that the movie is not just a vehicle for Eddie Murphy's comic talents.  It is that, to be clear; Murphy is fantastic in the movie. But there's a more important legal angle: Beverly Hills Cop is a Fourth Amendment movie.

There are lots of Fourth Amendment issues in the movie.  But the key scene, at the warehouse, could be an exam question.

Recall the facts.

Axel Foley (Eddie Murphy's character) is a Detroit cop on vacation who is trying to investigate his friend's murder. He is trying to get the police in Beverly Hills to investigate, but they refuse.  The Beverly Hills police chief instead orders Foley out of town, instructing Beverly Hills officer Billy Rosewood (played by Judge Reinhold) to drive Foley to the outskirts of town.

On the drive, however, Foley persuades Rosewood to ignore his orders and to bring Foley and his old friend Jenny Summers to a warehouse where Foley expects to find drugs being trafficked by Victor Maitland, the art dealer turned drug trafficker.  Summers has the key to the warehouse because she happens to work for Maitland at his art gallery, although of course she had no idea of his illegal drug activities.

Rosewood parks the car outside the warehouse. Rosewood wants to go inside the warehouse, too, but Foley tells Rosewood to stay in the car.  If Rosewood enters, Foley says, it will be an illegal search because they don't have probable cause.  I'll come get you if I find evidence, Foley tells him.  Foley wants Summers to give him the key so he can search by himself, but Summers refuses and insists on going with him.

Foley and Summers enter the warehouse with Summers' key, and they find a several wood crates that have the gallery's name on them.  According to Foley, they are crates from overseas that bypassed customs.  Foley uses a crowbar to open the crates, and they find cocaine inside.  "Go get Rosewood," Foley tells Summers.

But wait! Maitland and his evil crew are on to them.  They capture Foley and Summers in the warehouse. They take Summers away, and Maitland orders his men to kill Foley.

Meanwhile, Rosewood is watching from outside.  He has seen Maitland and his crew arrive at the warehouse.  He then sees Maitland leave minutes later, and he has Summers, who seems to be forced into Maitland's car before they drive off.  Rosewood is sufficiently worried about Foley that he breaks into the warehouse himself.  After entering, Rosewood saves Foley.

Assume Maitland somehow survives the later shooting at his estate, and that the government seeks to put on the following evidence at trial against Maitland:

(a) Foley's testimony about what happened in the warehouse,

(b) Rosewood's testimony about what he saw in the warehouse;

(c) Summers' testimony about what she saw in the warehouse; and

(d) the cocaine discovered in the warehouse.

Among the issues you might want to consider:

First, was Foley a state actor for 4th Amendment purposes when he entered the warehouse?  He was an officer outside his jurisdiction who had been told by both the Detroit and Beverly Hills police departments not to investigate.  He did so anyway for personal reasons, to bust the man who killed his friend.  Was Foley a private actor or a state actor?  Fourth Amendment state action generally requires the knowledge or acquiescence of the government.  But who is the government here: The police chiefs? Rosewood? Foley himself?

Second, was Summers a state actor for Fourth Amendment purposes?  Note that she is not just going along; she insisted on participating together with Foley and is working together with Foley.

Third, did Summers have common authority to consent to enter the warehouse?  If so, does her common authority extend to opening the crates that Foley used a crowbar to open, in which the cocaine was found?  If there was not common authority, was there apparent authority?

Fourth, did Rosewood have exigent circumstances to enter the warehouse? Seeing Summers get taken away sure seems bad, but was that the result of a police-created exigency caused by their possibly unlawful entry?  Or is this more of a Brigham City v. Stuart situation to save Foley's life?

Fifth, assuming the entry into the warehouse was unlawful and the cocaine has to be suppressed, does the scope of the exclusionary rule also go so far as to forbid testimony about what Maitland and his men said and did to Foley and Summers upon stopping them inside the warehouse?  Or does the criminal conduct by Maitland and his men break the causal chain and permit the testimony?

Extra Credit: Are any of your answers different if you apply Fourth Amendment law as it existed in 1984, when Beverly Hills Cop was released?

I pass along this comment I received from a well-known attorney in Texas who clerked on both the federal District Court level and at the Fifth Circuit. I suspect this attorney's views are widely shared:

The memo to the judiciary has now become available, but that does not address the problems with the roll out nor does the language in the memo address a host of practical concerns about how such a policy should or would work if implemented.  The rollout was extremely problematic—no one actually knew what the policy was (including judges outside those on the Judicial Conference), how the Judicial Conference proposed it would be implemented, to what extent it went into immediate effect, whether the Judicial Conference claimed authority to force all judicial districts to adopt the policy, and if so, under what authority the Judicial Conference was acting.    Everyone—whatever their view on the ultimate merits of the policy—ought to be disturbed by how the very branch of government trusted with safeguarding the rule of law and the public's right of access to the courts went about this process, sowing confusion among the bar, litigants, judges, the media, other branches of government, and the broader public.  And as for the policy and guidance itself—as the saying goes, the devil is the details, and implementing this policy could create far greater problems than those it purports to solve (to extent single judge division even pose any problems).

As announced on the federal judiciary's website, the public was informed "[t]he policy addresses all civil actions that seek to bar or mandate state or federal actions 'whether by declaratory judgment and/or any form of injunctive relief.'  In such cases, judges would be assigned through a district-wide random selection process."  https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment (emphasis added).  This is an incredibly broad ambit that would sweep vast amounts of civil litigation into the random assignment category and swept far more broadly than the representation to the press by Judge Sutton that the policy just applied cases in involving nationwide injunctions. https://www.politico.com/news/2024/03/12/federal-courts-move-against-judge-shopping-00146594 ("Sutton called the new policy 'an elegant solution' to a problem he said was fueled by an increasing number of nationwide injunctions — orders in which a single federal judge blocks a policy across the country.").  The policy memo to the judiciary however now indicates that the policy applies to "civil actions seeking to bar or mandate statewide enforcement of state law" or "nationwide enforcement of federal law."  If this was always the policy to be announced, then why did the judiciary website not state this in the press release?  Given the still broad wording of this revised phrasing it remains unclear what actions would trigger this policy.  For example, if an individual litigant is seeking a declaration that certain agency practices are unconstitutional in proceedings they are involved in, which would have an effect of finding say that an agency's ALJs are unlawfully appointed or insulated from presidential control (such as in Jarkesy v. SEC), would this action trigger the policy?  Or would it not qualify if the litigant doesn't expressly seek a nationwide injunction even if a finding in the plaintiff's favor might carry that effect practically?  After all, the guidance memo says the policy applies "when the remedy sought has implications beyond the parties before the court and the local community," but this could be said of most litigation bringing constitutional claims even if the relief is narrowly targeted to the plaintiff.

Nor does the memo clear up the confusion on whether, when, and how this policy goes into effect and starts impacting cases. Media reported based on Judge Sutton's representations that "[t]he policy is effective immediately," setting off much confusion within the legal community about the Judicial Conference's authority and the policy's sweep due to the lack of the text of the actual policy being publicly released.  https://www.courthousenews.com/judicial-body-acts-to-curb-judge-shopping/; see also https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X2O6UQMC000000?bna_news_filter=us-law-week#jcite ("Judge Jeffrey Sutton . . . said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse."); ("Sutton didn't rule out the rule applying to past or ongoing matters").  It is hard to square Judge Sutton's statements to the media that this was in effect and overrode current local orders with the guidance memo which now merely states that "district courts should apply district wide assignments" to cases seeking this relief and stating that the guidance should not be viewed as "impairing a court's authority and guidance" to divide the business of the court under Section 137 at its discretion.  Either Judge Sutton got out over his skis or the Judicial Conference walked backed its purported authority to require this policy be implemented nationwide in light of blowback from multiple quarters—either way the rollout was far from a paragon of transparency and clarity.

But Judge Sutton's representation still result in important questions unaddressed by the memo—if a particular judicial district does adopt this policy, could it be potentially retroactive and result in the re-assignment of currently-pending cases?  Will district courts publicly announce whether or not they are adopting this policy or making other changes public in light of the Judicial Conferences memo?  As of now, the bar, litigants, and the public only know that there is a policy that could affect ongoing and current cases (in addition to any future cases), but if it is up to the judicial districts to independently decide whether to align with the policy recommendation, there is no insight as to whether, when, or how it could impact currently pending cases.  But assuming any district court feels that it should adopt the Judicial Conference's policy regardless of whether they must, the questions of how practically this all works are legion and the memo does little to address them.

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I obtained a copy of the report approved by the Judicial Conference.

First, why on earth could this memo not have been issued contemporaneously with the press release? This may be one of the most-botched governmental rollouts since HealthCare.gov. The Executive Committee should carefully re-assess their procedures here.

Second, the policy sweeps quite broadly, far beyond the national injunctions, but is prefaced by "should."

District courts should apply district-wide assignment to:

a. civil actions seeking to bar or mandate statewide enforcement of a state law, including a rule, regulation, policy, or order of the executive branch or a state agency, whether by declaratory judgment and/or any form of injunctive relief; and

b. civil actions seeking to bar or mandate nationwide enforcement of a federal law, including a rule, regulation, policy, or order of the executive branch or a federal agency, whether by declaratory judgment and/or any form of injunctive relief.

This policy does not apply solely to single-judge divisions, but applies to all courts.

Third, the policy is wildly underinclusive--it does nothing to address judge shopping in patent cases, which was the impetus of this policy. Third, the document says that the guidance "applies to" patent cases, but only where some sort of injunctive relief against the government if sought. Do most or many patent cases involve such relief? What about bankruptcy cases? "Case assignment in the bankruptcy context remains under study."

Fourth, the policy is pretty clear this is guidance. It uses the word "should."

These policies and the accompanying guidance inform the district courts' statutory authority and discretion to divide the business of the court pursuant to 28 U.S.C. § 137. They should not be viewed as impairing a court's authority or discretion. Instead, they set out various ways for courts to align their case assignment practices with the longstanding Judicial Conference policy of random case assignment. Simply put, these policies should serve the purpose of securing a "just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.

As I explained last night, 28 U.S.C. § 137(a) gives the District Courts this power. The Committee does not even cite the Judicial Conference's power under 28 U.S.C. § 331, which is positive.

Fifth, let me return to the botched rollout. Several press outlets said that this policy was mandatory and already in effect. Courthouse News reported that based on Judge Sutton's representations that "[t]he policy is effective immediately but it is unclear when courts would begin implementing these procedures or how that process would work." And Bloomberg Law reported, "Judge Jeffrey Sutton, chair of the Judicial Conference's executive committee, said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse." Bloomberg added, "Sutton didn't rule out the rule applying to past or ongoing matters." I have been a fan of Judge Sutton for many years, but this private press briefing was not his finest moment. Even if the policy was approved by many judges whom I respect, Sutton's remarks were woefully misunderstood by reporters. Some of that blame can be placed on the press, perhaps, but much belongs to the messenger.

Sixth, the policy puts forward a balancing test to determine how a case should be assigned:

The policy is applicable in instances when the remedy sought has implications beyond the parties before the court and the local community, and the importance of having a case heard by a judge with ties to the local community is not a compelling factor.

Did Justice Breyer write this? Are we really going to have untrained legal staff in the clerk's office deciding what are "implications beyond the parties before the court and the local community" and whether "ties to the local community" is a "compelling factor"? These are difficult merits questions on which people can reasonably disagree. Are law clerks or individual judges going to have to be burdened with making these determinations at the complaint stage? Will this issue be litigated: does the complaint now explain why a case should not be reassigned? Would the defendant be able to file a reply explaining why the case should be reassigned? Can Amici participate? Can a reassignment order be appealed? Mandamused? And, oh by the way, this policy is triggered if an amended complaint or motion is filed. This policy has now added untold layers on untold cases that seek any injunctive relief against state governments.

I regret that many of the judges who approved this policy have gone along with groupthink. They read about a problem, they don't like nationwide injunctions, they think certain judges in Texas whose initials are M and K make the judiciary look bad, so they cobbled together what looks like a facially neutral policy that will cause far more harm than good. You may think that my response is harsh. Wait till you see what real lawyers think--both on the right and the left. The burdens on the practice of law are substantial. No one will like this policy. I would not be surprised if most district courts read this guidance, and put it in the circular file.

[This post is under development, and has been updated.]

In my initial post on this topic, I pointed out that District Courts have express authority to determine how cases are assigned under 28 U.S.C. § 137(a). It provides:

The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders.

The letter from Senators McConnell, Cornyn, and Tillis cited the same statute. They wrote: "The assignment of cases within district courts is governed by federal statute."

The Washington Post brings similar news:

In a statement, Chief Judge Randy Crane of the Southern District of Texas said the policy violates the federal statute 28 USC 137, which "leaves the assignment of cases to the chief judges of each court."

"Suggestions of the Judicial Council can't override that law," Crane said.

Russell Wheeler, a judicial expert at the Brookings Institution, also questioned whether the conference has the authority to mandate that the courts amend their case assignment practices. Wheeler said circuit councils, which oversee the circuit courts, have the power to issue orders — not the Judicial Conference.

"I don't know where the conference gets that authority," Wheeler said.

Crane and Wheeler are right. There is no such authority.

One defender of the policy pointed me to 28 U.S.C. § 331, which establishes the statutory authority of the Judicial Conference of the United States. This is a long statute, that lacks any clear organizational structure. Indeed, there are no section divisions. I think the most likely source of authority appears in the fourth paragraph. This paragraph is a bit of a hodgepodge.

The first two sentences refer to studying judicial practice and making recommendations:

The Conference shall make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary. It shall also submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.

The remainder of the paragraph (except the last sentence) refers to the disciplinary process which appears in Title 28, Chapter 16.

The Conference is authorized to exercise the authority provided in chapter 16 of this title as the Conference, or through a standing committee. If the Conference elects to establish a standing committee, it shall be appointed by the Chief Justice and all petitions for review shall be reviewed by that committee. The Conference or the standing committee may hold hearings, take sworn testimony, issue subpoenas and subpoenas duces tecum, and make necessary and appropriate orders in the exercise of its authority. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the Supreme Court or by the clerk of any court of appeals, at the direction of the Chief Justice or his designee and under the seal of the court, and shall be served in the manner provided in rule 45(c) of the Federal Rules of Civil Procedure for subpoenas and subpoenas duces tecum issued on behalf of the United States or an officer or any agency thereof. The Conference may also prescribe and modify rules for the exercise of the authority provided in chapter 16 of this title.

The final sentence in the paragraph provides:

All judicial officers and employees of the United States shall promptly carry into effect all orders of the Judicial Conference or the standing committee established pursuant to this section.

Does this sentence settle the matter? No.

First of all, judicial officers only have to "carry into effect" lawful orders. An "order" that conflicts with a federal statute is not an order at all; it a nullity. To use the General/Specific canon, Section 331 may provide a general grant of power, whereas Section 137(a) is an uber-specific delegation of power to courts to determine how cases are assigned. If there is any conflict, Section 137(a) would control.

Second, the statute references "pursuant to this section." The Judicial Conference only has the power to issue orders pursuant to the sources of authority in Section 331. You can read the entire section if you'd like. You will not see a word about directing courts how to assign cases. Any power over case assignment must be implied.

Third, perhaps the members of this august body would assert something like Chevron deference, and claim that the delegation of authority is at best ambiguous, and their reading of the statute is reasonable. Dare I respond with elephants in mouseholes? Or the fact that delegations of federal power should not be construed too broadly in the absence of evidence that Congress so clearly intended to vest this power? Do we need hypotheticals about babysitters and theme parks?

Fourth, other provisions of the Section 331 reflect that the Judicial Conference can propose "changes" and "additions" to rules in federal courts, but those recommendations would be made to the Supreme Court for adoption. There is no reference to a unilateral mandate.

Fifth, Congress gave the Judicial Power the power to "modify or abrogate any such rule" that are "prescribed under" 28 U.S.C § 2071. But the assignment of cases does not rely on the general grant in Section 2071, but instead invokes an express delegation of power in Section 137. That Congress gave the Conference some powers to "abrogate" some rules under Section 2071, but withheld that power to "abrogate" other rules, is significant.

Sixth, I apologize, but I will make an officer argument. I really can't help it. We will never be done with "officer stuff." Section 331 is directed at "judicial officers of the United States." But Section 137 refers to "the rules and orders of the court." The rules adopted by a District Court may be voted on by individual members, but they are rules of a court--an institution. If Congress wants to give the power to override court rules, it should say so clearly. Even within the judiciary, there are both horizontal and vertical separation of powers. The higher-ups can only meddle with the lower-downs when there is authority to do so.

Seventh, Section 331 provides no mechanism by which an order can be enforced.By contrast, 28 U.S.C. 332(d)(2) expressly gives the Judicial Council of each circuit the power to initiate a contempt proceeding "in the case of failure to comply with an order." I'm not sure what happens if a District Court rejects the Judicial Conference's guidance. Mandamus?

I could go on, but that's enough for now.

Let's be clear. The Judicial Conference, its press release, and private press conference, gave the media the impression this was a self-executing policy that all court would have to follow. That is not accurate. I've lost count of the number of reporters I've talked to over the past few days who came away from that press conference feeling misled--and these are not conservative media outlets.

Any argument that the district courts are required to follow the Judicial Conference relies on a really, really weak reading of statutes--one that these judges would never accept in a judicial decision. And even if it was a close call whether there was a conflict between an administrative body's authority and a federal statute, the presumption should go towards narrowly construing the administrative body's rulemaking powers to avoid a conflict with the supreme law of the land. A recent decision by the Second Circuit Judicial Council, which was advised by the Executive Committee of the Judicial Conference, recognized this principle.

Today I was talking to a judge who supported the Judicial Conference's new "policy." I asked him how many single judge divisions there were. He had no clue. I asked him how many of those courts had issued national injunctions. He could name two, both of whom are in Texas: Judge Kacsmaryk (Amarillo, N.D.) and Judge Tipton (Victoria, S.D.)

So how many judges sit in single judge divisions? The answer is exceptionally difficult to figure out. Most district court web sites list the locations of courthouses, and may indicate which judges are assigned to which divisions. But judges often pick up cases in more than one division. None of that information is readily available on the web site. To figure out the distribution of cases, you would have to dig through division of work orders, which are subject to change at random intervals. Wikipedia lists the "duty stations" of various district court judges, but I have no idea how accurate that information is.

One of the most thorough analyses of this issue came in Steve Vladeck's amicus brief in United States v. Texas, which was filed in July 2022.  According to Appendix A in Vladeck's brief, the Texas Attorney General filed challenges to federal policy in two single-judge divisions: Judge Tipton (Victoria, S.D.) and Judge Brown (Galveston, S.D.). At the time, Amarillo was not a single-judge division.  In July 2019, Chief Judge Barbara Lynn had assigned herself 5% of Kacsmaryk's cases, but in September 2022, now-Chief-Judge-Godbey superseded that order. (Judge Lynn took similar action against Judge O'Connor's Wichita Falls Division; that reassignment has also been rescinded.)

There have been more changes. Judge Tipton was reassigned to the Houston division, and is no longer drawing cases from Victoria. That single-judge division no longer exists. And for those keeping score at home, Judge Tipton recently found that Texas lacked standing to challenge a federal immigration policy.

So if my math is right, the only other single judge division in Texas that Vladeck identified is Judge Jeff Brown in Galveston. I should note that Judge Brown issued an order that signaled he was widely interpreted as being unreceptive to strategic litigation cases. Conservative litigants have taken the hint.

In practice, there is a grand-total of one judge in Texas, who sits in a single-judge division, who is known for issuing national injunctions: Matthew Kacsmaryk. That's it.

There are ways for higher courts to deal with lower courts that make mistakes: appellate review. Indeed, Judge Kacsmaryk has had several cases up at the Supreme Court in recent years that have been reversed/stayed/vacated. I could add to that list Judge Sutton's reversal of Judge Newman's nationwide injunction from the Dayton single-judge division in Arizona v. Biden. But you don't deal with judges who issue rulings you disagree with by taking cases away from them.

If the Judicial Conference is serious about this policy, it can circulate to the judiciary a listing of all nationwide injunctions that have been issued by single-judge divisions. I suspect this list would be very, very small. And that list could be checked against appellate record, to see if those judgments were sustained or reversed. I suspect no such list actually exists, and the Conference put forward a policy based on grievances against a few judges who have been in the news. Indeed, if you scan through the letters from Schumer and Whitehouse, they almost exclusively talk about Texas. If the Conference doesn't put forward such a list, certainly local clerk's offices can generate this information. Moreover, if the Conference doesn't produce such a list, it suggests they made the decision without knowing or caring about the data, because it's not about the data, but about signaling the right virtues to critics.

The Third Circuit heard oral argument on March 11 in a challenge to Delaware's ban on so-called "assault weapons" and ammunition magazines that hold over 17 rounds. Three overlapping cases were consolidated for argument on appeal from the denial of a preliminary injunction. Before the Court got into the meat of the Second Amendment dispute, Judge Stephanos Bibas raised a question about the preliminary injunction standard as it applies in Second Amendment cases: do the plaintiffs need to show that every preliminary injunction factor weighs in their favor, or is it enough to show they are likely to succeed on the merits?

The Supreme Court refers to the preliminary injunction as "an extraordinary remedy" that requires plaintiffs to make a "clear showing" on four factors before being granted: (1) likelihood of success on the merits, (2) that they face irreparable harm in the absence of an injunction, (3) that the balance of the equities favor them, and (4) that the public interest would be served by the injunction. The plaintiffs in Delaware focused on the first point—that they were likely to show the laws they challenged violate their Second Amendment rights. Judge Bibas questioned whether that was enough.

It should be. In fact, while there are putatively four factors to be considered in granting a preliminary injunction, in litigation against the government over the constitutionality of a law, in practice they tend to collapse. In such cases, "likelihood of success" is "the first among equals" and is typically dispositive,   L.W. by & through Williams v. Skrmetti (6th Cir. 2023), and the third and the fourth factors, the public interest and the balance of the equities are considered as one. Nken v. Holder (U.S. 2009). Furthermore, if plaintiffs show that the law they challenge violates the Constitution, then those final factors necessarily weigh in their favor, because "the enforcement of an unconstitutional law vindicates no public interest." K.A. ex rel. Ayers v. Pocono Mountain School District (3d Cir. 2013).

The same should be true for irreparable harm as well, as the Ninth Circuit recognized in its Second Amendment decision in Baird v. Bonta (2023), where it explained that "in cases involving a constitutional claim, a likelihood of success on the merits usually establishes irreparable harm, and strongly tips the balances of equities and public interest in favor of granting a preliminary injunction."

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Philip Hamburger asked me to post these FAQs about Murthy v. Missouri. Philip is CEO of the New Civil Liberties Alliance, which represents most of the individual plaintiffs in Murthy. I am on the NCLA's board.

PHILIP HAMBURGER:

Next Monday, the Supreme Court will hear arguments in Murthy v. Missouri considering whether it should sustain the injunction awarded to the plaintiffs in the Fifth Circuit. The plaintiffs are Missouri, Louisiana, and five individuals (mostly scientists) whose speech was suppressed by social media platforms at the behest of the government. These FAQs address some crucial questions in the case.

Is Coercion Really the Standard?

Blum v. Yaretsky, 457 U.S. 991 (1982), emphasized the centrality of coercion, so that may seem to be the measure of state action in Murthy. But Blum focused on coercion to bar an overstated due process claim, and it therefore cannot be taken as a reliable precedent for First Amendment violations. See Philip Hamburger, Courting Censorship, 4 J. of Free Speech L. 195, 227 (2024).

Different rights establish different measures of prohibited government action. Of particular importance in Murthy, the First Amendment distinguishes "abridging" the freedom of speech from "prohibiting" the free exercise of religion. It thereby makes clear that government action merely abridging, or reducing, the freedom of speech violates the First Amendment. To be sure, coercing or other prohibiting is sufficient to show a speech violation, but it is not necessary. Hamburger, Courting Censorship, § III.B.

Even if Coercion Were the Measure of Speech Violations, Has that Standard Been Met?

This isn't the place to run through the reams of evidence that convinced the district court and the Fifth Circuit. Instead, consider what the government says.

Whereas Blum emphasized "coercive power," the government's briefs recast this as a "compulsion" test. The government does this by relying on a casual mention of the word "compels" in Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). The government's attempt to move the goal post from coercion to compulsion is telling because coercion is merely a wrongful threat or pressure. In contrast, compulsion involves a situation in which one could not have done otherwise. The government, in other words, is asking the Court to recast its precedents on coercion in terms of the nineteenth-century standard for duress! That's nearly a concession that the government can't prevail on the coercion standard.

What about Borderline Hypotheticals?

It is easy to ask hypotheticals about innocent or borderline government "jawboning." For example, doesn't the government need to be able to talk to a newspaper about sharing information that might aid terrorists? And what if government wanted to talk to all newspapers about this danger? But such questions are distractions, because Murthy is miles away from any borderline:

• The censorship in Murthy suppressed speech that was not criminal or otherwise unlawful, and the injunction specifically excludes government action against unlawful speech.
• The government set itself up as the nation's arbiter of truth—as if it were competent to judge what is misinformation and what is true information. In retrospect, it turns out to have suppressed much that was true and promoted much that was false.
• The government went after lawful speech not in an isolated instance, but repeatedly and systematically as a matter of policy, resulting in the suppression of entire narratives and lines of thought.
• This isn't jawboning. Rather than talk to newspapers about their own speech, the government asked the platforms to suppress third party speech. If the government were merely jawboning, it would have talked to the censored speakers, asking them to reconsider their posts. Instead, it requested the platforms to suppress the speech of others.
• The government kept much of the censorship and its role secret, so Americans often did not even know they were censored or who did it. The covert nature of the government's efforts bespeaks a recognition that the government was acting unlawfully.
• The government often suppressed speech coercively.

The government censorship is thus far beyond anything that could be constitutional. There consequently is no need to worry about innocent or borderline cases. That's not what's at stake here.

How Much Suppressive Effect Is Necessary to Violate the First Amendment?

Actually, none. That's right, none at all. The First Amendment says that "Congress shall make no law . . . abridging the freedom of speech. . ." That means that a law or policy abridging the freedom of speech is void ab initio, and thus without any need to show suppressive effects.

As it happens, the government's censorship policies had massive suppressive effects, both through suppression and the chilling effect. For example, distinguished doctors and scientists, including Drs. Jayanta Bhattacharya, Aaron Kheriaty, and Martin Kulldorff, were censored for speech within their expertise. Dr. Kulldorf, for example, a Harvard epidemiologist and one of the most cited scientists on vaccine safety, was censored on Twitter for saying that children and the naturally immune do not need a Covid-19 vaccine. He also was censored for saying that exaggerations about the efficacy of masks, including exaggerations by government officials, gave vulnerable people a false sense of security and therefore might lead to harm. Indeed, the suppression of information about adverse vaccine events misled ordinary Americans into thinking there was essentially no risk. So, many individuals who otherwise might have paused got vaccinated and died or were disabled (see Dressen v. Flaherty). But even without proof of the suppression and chilling effect, the government's policies abridging the freedom of speech were unconstitutional and void the moment they were adopted.

How Can One Resolve the Tension between the Standing and Injunction Requirements?

The standing inquiry in Murthy is intertwined with the question about the injunction's breadth. If the case rested simply on readers' rights, then almost everyone in America would have standing, which is too broad. If the case turned simply on speakers' rights, then there would be no foundation for an injunction barring censorship of anyone other than the plaintiffs. So, one might think that the plaintiffs can't establish both standing and an effectively broad injunction.

But this conundrum is an illusion; it arises from the supposition that readers' rights are distinct from speakers' rights. In fact, they are intimately connected, because the capacity to receive uncensored speech is essential for speakers to formulate and express their views. There is no risk of overly broad standing claims because the standing in this case rests at the very least on the plaintiffs in their capacity as speakers who were suppressed. The injunction also rests on their claims as speakers, who need the freedom to read the speech of others in order to develop and express their own views. Thus, in their capacity as speakers, they have a right to an injunction against censorship of all persons whose posts they might read. Hence, the compatibility of a narrow vision of standing and a suitably broad injunction.

Do the States Have Freedom of Speech under the First Amendment?

The answer is clear enough from the text of the First Amendment's speech clause. It expressly limits the federal government, not the states, and it does not confine those who can claim its rights to citizens or even the people. The states thus have the First Amendment's freedom of speech, even though the federal government does not.

This has been clear, moreover, since the founding era. When protesting against the 1798 Sedition Act, Jefferson and Madison, in the Kentucky and Virginia resolutions, asserted the First Amendment's freedom of speech. It therefore is evident that the states enjoy the amendment's freedom of speech and, moreover, that they can assert it on behalf of their peoples. Once again, states are serving as an essential counterweight to federal censorship, and the justices should appreciate the fact that the states are working through the courts this time, not interposition.

Will There Be No Remedy for Most Massive Censorship in American History?

The Supreme Court's doctrine on qualified immunity largely deprives Americans of a remedy for past censorship. And if the Court confines the injunction here—for example, by allowing an injunction protecting the plaintiffs, but not others—then there will no effective injunction against future censorship. So there's a real risk that the Court will deprive Americans of any effective remedy, whether against past or future censorship.

Indeed, this result may have already happened. Americans need legal remedies that will stop censorship in its tracks. But injunctions can't be timely against a largely covert censorship regime. Because of the secrecy, it took half a decade to get the current injunction. Moreover, an injunction is unlikely to bar all the censorship, especially under precedents, such as Blum, that emphasize coercion. The Fifth Circuit's injunction (which is narrower than the original district court one) enjoins only some of the censorship, leaving much room for other government-orchestrated suppression. So Americans are already without an effective remedy—even against the most massive censorship regime in the nation's history. The Supreme Court therefore needs to worry whether its doctrines (for example, on qualified immunity and on coercion) have already left Americans without adequate remedies against the suppression of speech. See Hamburger, Courting Censorship, passim.