Some commentators and political figures want Justice Sonia Sotomayor to retire before the election so that President Biden can name her replacement before the election with a slim Democratic majority in the Senate. As I noted here, commentators are making such calls openly, while political figures have been more private about their concerns.
This week, NBC News reported on comments by several Democratic Senators, including Senator Richard Blumenthal (D-CT), who suggested Justice Sotomayor should "weigh" the potential risks of remaining on the Court past an election. From the report:
"I'm very respectful of Justice Sotomayor. I have great admiration for her. But I think she really has to weigh the competing factors," said Sen. Richard Blumenthal, D-Conn. "We should learn a lesson. And it's not like there's any mystery here about what the lesson should be. The old saying — graveyards are full of indispensable people, ourselves in this body included."
Blumenthal emphasized that Sotomayor is "a highly accomplished and, obviously, fully functioning justice right now." He added that "justices have to make their personal decisions about their health, and their level of energy, but also to keep in mind the larger national and public interest in making sure that the court looks and thinks like America."
Senator Sheldon Whitehouse (D-RI) likewise refused to say Justice Sotomayor should step down while emphasizing the potential implications of her being replaced by a Republican President.
"Run it to 7-2 and you go from a captured court to a full MAGA court," Whitehouse said in an interview. "Certainly I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health."
While some academics and political commentators have been more explicit in calling for Justice Sotomayor to retire this year, lest a President Trump name her replacement as occurred with Justice Ruth Bader Ginsburg, others who called for Justice Ginsburg to retire are refusing to make such calls now. From a HuffPost report:
"I do not think Justice Sotomayor should retire now," said Erwin Chemerinsky, dean of the University of California at Berkeley School of Law.
"A crucial difference is that Justice Sotomayor is just 69 years old," he said. "I think that is quite different from when I urged Justice Ginsburg and Justice Breyer to retire. Both were in their 80s."
What worries Chemerinsky is not how old Sotomayor will be when the stars next align for the Democrats but how willing they are today, in an election year, to replace her with someone equally progressive.
"With the slim Democratic majority, there is no assurance that a replacement would get confirmed," he said.
Potentially concerning to Chemerinsky is that at least one Senate Democrat, Joe Manchin (D-WV), has said he will not vote to confirm judicial nominees that lack some Republican support.
When should circuit courts grant en banc review to panel decisions? Is it enough that a majority of judges on the court think that a given three-judge panel was wrong? Or are there some panel decisions that are "wrong, but not en-banc-worthy"? And to what extent should en banc review be used to resolve circuit splits?
Notre Dame law professor Randy Kozel has a new paper examining enbanc review. The paper, "Going En Banc" is forthcoming in the Florida Law Review (and is now available on SSRN). As described in the abstract, the article "examines the law of en banc review in the federal courts of appeals" and "explores key doctrinal questions and advances a theory that maintains the primacy of three-judge panels by focusing the en banc process on a specialized set of institutional tasks."
Like some judges, the Professor Kozel concludes that en banc review should reflect something more than a concern that a panel erred. Here is his conclusion:
En banc courts are vast in power but limited in purview. The argument for en banc review is strongest in the face of a conflict between courts. Absent a conflict, judges should be reluctant to go en banc based on disapproval of a panel's conclusion. Disagreement alone isn't enough to rev up the engine of en banc review, for the en banc tribunal is something other than a "hybrid intermediate court." Off-panel judges should invoke the en banc process sparingly, and only after careful consideration of the economic, relational, and structural consequences. It is the rare case that warrants en banc review, and the rarest of the rare that does so in the absence of a conflict among courts.
For those interested in the work of federal appellate courts, this article is definitely worth a read.
Did the judge's remarks "suggest[] she had predetermined that the father had no right to oppose gender transition or otherwise direct the child's upbringing based upon his moral and religious beliefs"?
From Wednesday's opinion in H.S. v. Dep't of Children & Families, decided by the Florida Court of Appeal (Judge Edward Artau, joined by Chief Judge Mark Klingensmith):
The right of parents to direct the upbringing and the moral or religious training of their children is older than our constitutional form of government and deeply rooted in our common law traditions. H.S., the father—who is a Christian minister and youth pastor—lawfully opposes, on moral and religious grounds, gender transition before adulthood for his minor child—who is a biological male.
We are asked in this case to determine whether the father reasonably feared that he would not receive a fair hearing on the appropriate placement for his child based on remarks the trial judge made suggesting she had predetermined that the father had no right to oppose gender transition or otherwise direct the child's upbringing based upon his moral and religious beliefs.
The father argues that he has a reasonable fear that he will not receive a fair hearing because the trial judge "has demonstrated a bias against [him] and a disregard for the requirements of the law."
We agree with the father and grant his petition for a writ of prohibition….
While the Judicial Conference's policy on venue and judge shopping is dead, debates about this issue are not. Today, the New York Times reported on the kerfuffle, which quoted at least one District Court judge from Dallas who was not happy with his Chief Judge's letter to Senator Schumer. I suspect there is some backstory here.
This evening, the Fifth Circuit decided a case on its "emergency" docket. The posture is somewhat complex. A judge in the Northern District of Texas-Fort Worth Division transferred a case brought by the Chamber of Commerce against the CFPB to the District for the District of Columbia. (See, the conservative Judges in the Fifth Circuit are not automatons.) Almost immediately, the Chamber sought an emergency stay, and the Fifth Circuit granted a temporary administrative stay. Now, the Fifth Circuit panel, by a 2-1 vote, mandamused the transfer. Judge Willett wrote the majority, joined by Judge Oldham; Judge Higginson dissented.
Here is a summary of the opinion:
Because the plaintiffs appealed the district court's effective denial of their preliminary-injunction motion before the district court granted the motion to transfer the case, we agree that the district court acted without jurisdiction.
The basis of the panel's ruling is somewhat narrow. The Chamber filed a notice of appeal before the district court judge transferred the case, thereby divesting the district court of jurisdiction to transfer the case. There is a well-established doctrine that only one court can have jurisdiction at a time.
What interests me far more is how this case affects broader discussions of venue, judge-shopping, and transfers. At present the case exists in something of a limbo--not quite in D.C., not quite in Texas. I am very familiar with this limbo, as the Defense Distributed case is stuck somewhere between the Garden State and the Lone Star State. See Defense Distributed v. Bruck (2022). (Our appellant brief was recently filed in the Third Circuit.) There was also a recent case in which SpaceX filed suit against the NLRB in Texas, and the District Court transferred the California. Over Judge Elrod's dissent, the panel (without opinion) denied mandamus. The panel has also asked the NLRB to explain its actions in contacting the California District Court. There may be some chicanery going on. I'm sensing a pattern: one way that District Court judges in Texas can avoid the Fifth Circuit's appellate review is to send cases to more friendly jurisdictions. Judge Willet recognized the Fifth Circuit was "Facing an uptick in intercircuit transfer orders." I don't think this is what happened in the Chamber case, but it may be happening elsewhere. Judge Oldham suggested that a "higher burden should be met in advocating a § 1404(a) transfer from a district court in one circuit to a district court in another circuit more than 1,000 miles away." This could be an issue the en banc Fifth Circuit considers, perhaps in the SpaceX case.
Judge Oldham's concurrence respectfully calls out the District Court judge for improperly transferring the case.
Second, the district court appeared to analyze the motion to transfer with an eye towards discouraging forum and / or judge-shopping. See District Court Op. at 5–7. However well-intentioned this approach may have been, I cannot find support for it in Supreme Court or Fifth Circuit precedent. True, Congress added the qualification "substantial" to § 1391(e)(1)(B). Cf. District Court Op. at 5; see also id. at 6 (recommending that plaintiffs bring cases "in jurisdictions where the impact is uniquely and particularly felt," notwithstanding the fact that those words do not appear in the relevant federal venue statute). But that only highlights that Congress did not require "substantiality" in § 1391(e)(1)(A) and (C). It is not for federal district courts to add additional qualifications on top of statutory law, especially where the Supreme Court has previously declined to impose judicial barriers to forumshopping. [FN2] See, e.g., Ferens v. John Deere Co., 494 U.S. 516, 527–29 (1990).
[FN2] 2 The district court noted that "[v]enue is not a continental breakfast; you cannot pick and choose on a Plaintiffs' whim where and how a lawsuit is filed." District Court Op. at 5. But so long as the plaintiffs complied with federal law, any complaint about the scope of venue statutes is better addressed to Congress.
Judge Oldham is exactly right. And footnote 2 reinforces why the Judicial Conference should have stayed in its lane, and let Congress deal with venue reform. The New York Times buries at the bottom of its article this correct statement of law:
If the Northern District of Texas does not adopt random assignment for consequential cases, the Judicial Conference could try to put forth a binding rule under the Rules Enabling Act. Such a rule would have to survive review by the Supreme Court and Congress, and some judges have questioned whether it would supersede the statutory authority of the district courts.
Judge Oldham also proposes what I think would be a salutary reform: any transfer of venue should be stayed by the district court to seek appellate review:
This case again highlights why a district court should stay a transfer order for a short period so that opposing parties may appeal it. We commended that procedure in Clarke, 94 F.4th at 507 n.1. And that procedure would have avoided the very unfortunate circumstance presented by this motion: we've been forced to consider a mandamus application on a highly truncated timeline and to grant relief that could've otherwise been avoided. I have zero doubt about the conscientiousness of the learned district court judge. The district court's forum-shopping concerns might be wellfounded. And I certainly don't think the district court "defied" anyone or anything. Post, at 3 (Higginson, J., dissenting). But I do think the preexisting transfer rules precluded sending this case to Washington, D.C. That result is dictated by Clarke and the ample authorities underlying that decision—not some "new proposition of law created by [today's] majority." Post, at 5 (Higginson, J., dissenting).
If Justice Barrett and others are troubled by circuit courts granted administrative stays, then Judge Oldham's reform would be quite helpful.
Judge Higginson, who was on the panel in Defense Distributed v. Bruck, dissented here. He expressly cited the Judicial Conference's judge shopping policy:
Gutting in this manner a district judge's discretion to expeditiously transfer a case it has good reason to believe is improperly before it— especially when Petitioners have insisted that time is of the essence—is particularly worrisome not just as our usurpation of district courts' docket control, but also in its implications for the judiciary's ability to prevent forum shopping. Cf. Judicial Conference Committee on Court Administration and Case Management, Guidance for Civil Case Assignment in District Courts (Mar. 2024).
And Judge Higginson's conclusion seems to suggest that D.D.C. may choose to keep the case.
For the foregoing reasons, I believe that the new proposition of law created by the majority is incompatible with district court discretion over docket management and prudent policing of forum shopping. Finally, I am confident the District Court for the District of Columbia will give the suggestion that it should disregard a case docketed by it its closest attention.
The Fifth Circuit's opinion is but a mere "suggestion." This permissiveness would create comedy, rather than comity. Much the same happened in Defense Distributed, where the District Court in New Jersey declined to return the case to Texas, as the Fifth Circuit had asked. Another salutary reform would be to create some mechanism whereby district courts can be mandamused to return cases in the interest of interstate comity.
There is much at play here, and we are seeing some of the fractures form on the Fifth Circuit. The Fifth Judicial Conference should be fun. Hopefully it will not be transferred to San Francisco.
The Establishment Clause is something of an outlier in constitutional jurisprudence.
First, the Establishment Clause, as ratified in 1791, was a federalism provision. It prevented Congress from interfering with state establishments of religion. That provision suggests that states can have established religions, and that Congress cannot disestablish any of those religions. As all know, there were several established churches at the time of the founding. And if tradition means anything, then practices from 1791 are directly relevant to this question.
Second, as Justice Thomas has observed, such a federalism provision resists incorporation. I've not seen any compelling evidence from debates during the 39th Congress suggesting that the Fourteenth Amendment would place the states under the strictures of the Establishment Clause. (And if the Section 3 debates has taught us anything, the only relevant speeches that matter to understand the Fourteenth Amendments are remarks from congressional republicans in a narrow two-year window.) To be sure, there were comments about the freedom of conscience, perhaps as a privilege or immunity of citizenship, but not about the Establishment Clause in particular--and certainly not about how the Warren Court understood the Establishment Clause. And by the 1860s, all of the Established Churches had been disestablished. But as a practical matter, it was never clear to me how the Establishment Clause could even be incorporated as a privilege or immunity of citizenship, or even as a liberty protected by the Due Process Clause.
Third, the Establishment Clause doctrine developed in the Twentieth Century was based on a misreading of Jefferson's letter to the Danbury Baptist, and ignored the overwhelming amount of evidence that others in the founding generation did not share Jefferson's views. (See Justice Scalia's dissents in Lee v. Weisman and McCrearyCounty.) And there was no attempt to graft it in how religion was understood in the 1860s.
Fourth, the Establishment Clause has had anomalous effects in other areas of the law, such as "taxpayer" standing and "offended observer" standing. (I've referred to these adjustments as "epicycles.") These doctrines were invented to ensure there was standing to consider cases based on invented doctrines. Legal fictions all the way down. Really, all we are left with is a stare decisis defense of Establishment Clause cases. We know how much that is worth.
The Court has begun to correct course. The Court (effectively) overruled the Lemon test in Kennedy, favoring a "text, history, and tradition" approach. No more concerns about "purpose" or "entanglement." American Legion cabined McCreary County with regard to public displays of religion. I don't think any such new cases are even in the pipeline. Town of Greece cabined Lee v. Weisman for public prayer cases. I've seen some arguments that prayer in school may be in play, if done in a voluntary, separate setting. And Carson v.Makin has largely addressed funding of religious institutions. Providing the funding indirectly, instead of directly, gets around most issues. Blaine Amendments are on precarious ground, even if not formally declared unconstitutional.
What remains of the Establishment Clause going forward? I think cases of actual coercion are still viable. In my view, those sorts of claims always seemed more grounded in Free Exercise doctrine than in Establishment Clause doctrine. That is, coercing a person to engage in any particular faith is itself a violation of that person's own rights of conscience. Justice Gorsuch's opinion in Kennedy recognized this principle. That sort of argument works even for an atheist, whose system of conscience is to have no religion at all.
There are also cases where the government prefers one particular religion, or disfavors a particular religion. We saw these claims raised during the travel ban litigation--that is, the policy expressed a disfavor (animus) towards Islam. At the time, I thought these claims sounded in the Free Exercise Clause, like in Lukumi. That is, the government was burdening the rights of Muslims because of their religion. But of course, that argument would not work with the travel ban, because non-citizens seeking entry to the United States could not assert a free-standing Free Exercise claim. Instead, they had to assert some sort of structural Establishment Clause against the federal government. That argument never made much sense to me.
In candor, there is not much Establishment Clause caselaw left over after Kennedy, Carson, Town of Greece, and American Legion. A union of church and state that would have been unconstitutional a generation ago is now constitutionally mandated--Justice Sotomayor's Carson dissent makes this point directly. And what little doctrine exists is probably better conceptualized as Free Exercise jurisprudence.
So I pose the question: can the Establishment Clause be unincorporated? The federal government would remain subject to the clause--perhaps even subject to modern doctrine. National policy would still have to be religiously neutral. But states would only be subject to the strictures of the Free Exercise Clause. The originalist case for incorporating the Establishment Clause never made sense. That caselaw has engendered massive and unending controversies. And it has distorted other areas of caselaw. Whatever concrete reliance interests could be addressed through a properly-understood Free Exercise Clause. The only claims that would fall out would be those that have no basis on text, history, or tradition.
Readers of this post may be rolling there eyes, but this is how change start. Seeds are planted and things grow. There is some scholarship defending the incorporation of the Establishment Clause by Kurt Lash and Fred Gedicks. Those might be good places to start thinking about the issue.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Bound By Oath podcast: For decades, federal courts have consistently told property owners seeking to challenge zoning regulations as arbitrary or irrational that those types of claims belong in state court. So on this episode, we head to New Jersey, whose state judiciary first sought to rein in exclusionary zoning way back in 1975. And then we take a look at some current efforts in other states to protect property rights under state constitutions.
New on the Short Circuit podcast: A case from Chicago on coding and the First Amendment. And a case from Chicago on union pensions and penalties.
Looks like an excellent symposium, featuring "submissions from lawyers, scholars, policymakers, and other experts on the myriad issues surrounding AI and the law grounded in conservative legal principles." You can submit proposals here. The topics they suggest (though it's not an exclusive list) are:
Constitutional Implications of AI: Exploring how the deployment and regulation of AI intersect with fundamental rights enshrined in the Constitution.
AI and Property Rights: Assessing the challenges and innovations AI brings to property rights, including intellectual property and data ownership.
AI in the Courts: The potential implications for due process, evidentiary standards, and the broader judicial system.
AI Ethics: Navigating the balance between individual freedoms, innovation, and the moral and societal implications of AI.
AI and National Security: Addressing the implications of AI for defense, surveillance, privacy, and our nation's cybersecurity infrastructure.
AI and Foreign Policy: Understanding the role of international law and the potential for collaboration or conflict with other nations in AI governance and contemplating the questions posed by international regulations, treaty-making bodies, trade and science policy, export controls, and intellectual property protections.
The Regulation of AI: Evaluating whether AI represents a new subject for regulation or not, and taking into account the state and federal regulatory approach(es) inclusive of innovation and accountability for harms. Potential questions of how current state and federal regulatory regimes will promote or inhibit innovation or accountability for harms, and examining alternative regulatory approaches. Discussion of the principle of federalism may be explored.
AI and Competition Policy: When "big data" became a popular notion, competition advocates began to describe "data as the new oil." We learned quickly that merely having a lot of data is insufficient for building competitive moats.
AI and Intellectual Property: Examining the existing uses of publicly accessible data for training large AI models, and the intellectual property rights of those who want to control the works that they own. Evaluation of the tradeoffs to multiple parties, and examination of alternative regulatory regimes—that may or may not include new types of property rights.
AI and the Legal Profession: Thinking through different ways that AI may change the practice of law—whether with legal research, brief writing, evidence, and how the judiciary may react to such changes. Also, an exploration of legal ethics, the current regime or potential future regime for model rules of professional conduct. Other potential topics may involve increased access to legal services, and the existing impact on legal licensure or the legal profession.
The Takings Clause of the Fifth Amendment says the government may only "take" private property for a "public use." In cases like Berman v. Parker and Kelo v. City of New London, the Supreme Court has ruled (wrongly, in my view) that almost any potential benefit to the public qualifies as a "public use." Thus, in Kelo the Court upheld the condemnation of homes for purposes of promoting privately owned "economic development," even though the development plan in question was so badly flawed that the condemned property ended up (for many years) being used only by a colony of feral cats.
But the Kelo majority also indicated that a taking can still be invalidated if the government tries to "take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit." Under Kelo, pretextual takings are an exception to the general rule that the government can condemn property for virtually any reason.
How do courts determine whether a taking is pretextual? Since Kelo, lower-court decisions on that issue have been all over the map. In Chapter 7 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I identified at least five different approaches to this issue adopted by state and lower federal courts since Kelo (see also this article).
Most pretextual takings cases deal with situations where the government condemns property for transfer to a private party. But in Brinkmann v. Town of Southold, the US Court of Appeals for the Second Circuit addressed a case where a condemnation for transfer to public ownership might still be pretextual, because the official rationale was a pretty obvious smokescreen for a different motive.
Prominent takings litigators Michael Berger and Robert Thomas have helpful summaries of the facts and what the court decided. Here's Thomas:
The facts of the case are pretty straightforward. The Brinkmanns wanted to build a big box hardware store on a 1.7 acre vacant parcel. The usual objections from area residents and the Town itself appeared (you know the drill): a store like this would result in too much additional traffic (traffic study said no), special permits and impact studies are needed (the owners began to comply), a moratorium on building permits in a one-mile radius, "despite the county government's finding that the moratorium lacked supportive evidence' (oops). Slip op. at 3. Even a failed attempt by the Town to buy the property itself before the Brinkmanns closed their purchase.
When all those didn't succeed in stopping the development, the Town began proceedings to forcibly acquire the land by eminent domain. What for, you ask? A public park. More precisely, a "passive use park." What's that, you ask? It isn't what you might think make a typical public park. Things like public facilities, art installations, walking trails, recreational and entertainment spots and stuff. No, this was to have none of those things, it was to be "a park with no significant facilities or improvements," also known as a big open, empty field.
Next step was a federal court section 1983 action by the Brinkmanns, "alleging a pretextual taking in violation of the Takings Clause of the Fifth Amendment." Slip op. at 4. The Town may have claimed that the taking was for a "classic" public use (a public park, even if it is a "passive use park"), but the Town's actual reason, the Brinkmanns alleged, was what we call a "spite taking" -- the Town didn't like the use we're making or going to make of our property, so decided to take it from us. This was the real motivation to take our property, and that's not a public use, according to the complaint. The district court wasn't having any of it, and dismissed for failure to state a claim.
A divided panel of the Second Circuit affirmed. This "pretext" thing you allege, property owner, is merely a "passing reference…." And we all know that when the legislature has declared that a certain use or interest is a public one, the courts have no role because "the public interest has been declared in terms well-nigh conclusive." Slip op. at 7 (quoting Berman v. Parker, 348 U.S. 26, 32 (1954)). Taking property by eminent domain is just legislation, property owners, so go make your fight in the political process. Don't bother the courts.
"There can be no dispute that a public park, even an unimproved one, is a public use." Slip op. at 8. The court distinguished between pretext for private benefit, and pretext for some use that isn't public….
The majority focused on the complaint's assertion that the Town's supervisor stated, "I will never allow anything to be built on this property." Id. In the majority's view, that statement revealed that the Town's motivation was just fine, because it didn't matter that the taking was for spite, as long as it wasn't for a private use or purpose. As the opinion put it, "Plaintiffs have not pointed to any Town purpose that violates the Takings Clause…"
In short (and this is our characterization, not the court's), the Fifth Amendment contains a Public Use Clause, not a "Good Motivation Clause…"
The key point in the majority opinion is that a taking can only be pretextual if the official rationale is a pretext for a scheme to benefit a private party. If, however, the government condemns property and does not transfer it to a private party or try to benefit such a party, then it doesn't matter whether the official stated purpose was the real motive for the taking or not.
The dissenting opinion by Judge Steven Menashi argues that a taking can be pretextual even if there is no plan to benefit a private party:
The court emphasizes that "[p]ublic parks have been recognized as a 'public use' for more than a century" and that a court should not "substitute its judgment for a legislature's judgment as to what constitutes a public use…" But no one disputes that a public park would be a public use. The plaintiffs instead argue that the Town of Southold does not want a public park. The court admits that the plaintiffs are right. The court acknowledges that the complaint in this case "alleges facts sufficient to support a finding that the decision to create the park was a pretext for defeating the Brinkmanns' commercial use" of their own property and that the Town decided to seize the Brinkmanns' property for a park only "after varied objections and regulatory hurdles that the Town interposed and that the Brinkmanns did or could surmount…." In other words, the Town did not like what the owners were doing with their property, but the Town was unable to muster the political support to pass a zoning law or to deny a permit. So the Town of Southold grabbed the land for itself….
The Constitution has nothing to say, according to the court, "when a property is taken for a public amenity as a pretext for defeating the owner's plans for another use…"
That is incorrect. In my view, the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause. A taking of property must be "for public use," U.S. Const. amend. V— or at least for "a public purpose," Kelo v. City of New London, 545 U.S. 469, 478 (2005)—and thwarting the rightful owner's lawful use of his property is not a public purpose. I dissent.
Menashi goes on to point out (correctly) that Supreme Court precedent allows scrutiny of government motives in a wide variety of other cases (e.g. - when seemingly neutral policies are pretexts for efforts to engage in unconstitutional discrimination on the basis of race or religion). He also cites various state court cases where takings for pretextual motives were invalidated, even in some situations where the condemned property was not transferred to a private party. The majority distinguishes those cases on the grounds that they dealt with state constitutional law, had somewhat different facts, or were different for other reasons.
Having written a book and numerous articles on public use issues, I rarely run across a public use case where I'm unsure what the right outcome should be. But this is one of those rare times.
Pretextual takings doctrine is a mess generally. But I think it can legitimately be used to strike down a variety of takings for transfer to private parties; indeed, I believe most such takings are unconstitutional even aside from the pretextual motives, because I support the "narrow" view of "public use" under which the government may only take property for publicly owned facilities or private ones that have a legal duty to serve the entire public.
In most situations, the narrow view is satisfied when the government takes property for public ownership - even if the motive for the taking is unrelated to the potential benefits of the new use. So far, I side with the majority. But this case is different from most takings for public ownership because the government isn't actually using the condemned property for anything. As Judge Menashi puts it, the supposed "public park" is actually "fake."
This opens up the possibility there can be public ownership without public use. To be sure, there can sometimes be "use" even if the government doesn't build anything on the land it takes. For example, it could decide to use the property as a nature preserve. But there is no such use here, not even a "passive" one. The only goal is to block the Brinkmanns' plan to build a hardware store, not to use the land for any affirmative purpose.
Perhaps such blocking can still be a "use." But the issue is a difficult and murky one.
Both Robert Thomas and Michael Berger suggest the Supreme Court might take up this case. Pretextual takings jurisprudence has long been a mess, and at least four Supreme Court justices have expressed interest in clearing it up, and perhaps overruling or limiting Kelo in the process.
I very much hope the Supreme Court does clean up the mess and - better still - overrules Kelo. But this case is not a good vehicle for that.
Unlike Kelo, it does not address the issue of condemnations for transfer to private parties. It instead deals with the unusual situation where the government retains the condemned property but has no desire to do anything with it other than block a private use it objects to. The issue is an extremely difficult one. And even if the Court resolves this hard question correctly, doing so would not do much to improve public use doctrine more generally.
For those reasons, I would prefer the Supreme Court take up a public use case whose facts are more similar to those of Kelo. At the very least, it should involve the condemnation of property for transfer to a new private owner.
In a recent article in the Jesuit publication America, urban policy commentator Addison Del Mastro explains "Why Catholics Should Resist NIMBYism":
The cost and supply of housing has gone from a problem associated with a handful of high-growth cities to a national crisis. Anybody who has moved in the last three years understands this. Calls to loosen zoning restrictions and repeal parking space requirements for apartment buildings in the hope of spurring housing production have become mainstream….
Perhaps the most relevant element of the Catholic ethic here is the idea that people are good. Pope Francis affirms this in his encyclical "Laudato Si'," in which, contra Malthusian fears about overpopulation, he argues that even concern for the earth cannot be placed above the dignity of the human person….
Using the not-surprising example of abortion, Francis articulates the broader Catholic conviction that no public policy which contradicts the principle that people are good can itself be good. Likewise, no apparent good that relies on the negation of this principle is worth keeping….
This may seem easy enough. But people do not exist in a vacuum. Recognizing their dignity or accommodating their needs is not just an intellectual exercise. Their needs must be provided for concretely in the real world, and one of those needs is housing.
If people are good—if babies and families are good—the housing they need must also be good. Housing is an extension of people and of the family, and when babies grow up, they become neighbors. But in American politics, these concerns have been separated and siloed….
Does this mean Catholics should never oppose new housing? What about objections to ugly new buildings, or traffic, or rapidly increasing density leading to a sense of overcrowding? Are these illegitimate concerns? I would not argue that, and housing policy is certainly one of those matters on which Catholics may freely argue and disagree.
I would instead frame this issue this way: At least in our country's higher-growth, most housing-deficient regions, it may be necessary to choose between the needs of people and our preferences for the built environment around us. We might have an image of what a "family-friendly neighborhood" looks like: detached houses with yards, for example. But a family-friendly neighborhood could instead be a neighborhood that the average family can afford, and it may look different than our ideal. It may be the case that putting the human person and the family first requires letting go of certain aesthetic preferences…
Del Mastro omits an additional reason why Catholics should oppose NIMBYism: the Church is - rightly - supportive of migrants fleeing poverty and oppression. But, in many places, exclusionary zoning is a major obstacle to building new housing needed to take in migrants and refugees (as well as native-born Americans seeking economic and educational opportunities). This is one of the major causes of New York City's current problems with asylum-seekers, for example.
I am not a Catholic, myself, or even a religious believer at all. But many of the points raised by Del Mastro are ones that can be shared by many secular people, as well. For example, I too believe "people are good," and that NIMBY esthetic considerations should yield to that imperative (though it is also the case that current homeowners in communities with restrictive zoning often have much to gain from reform).
In a related recentReason article, Christian Britschgi explains how zoning reform can help various religious groups survive and grow.
I have written previously about how zoning reform is a cross-ideological cause that cuts across conventional ideological and partisan lines. In this case, it might also cut across some of the divisions between the religious and the secular.
At the UnPopulist site, Cathy Young has a valuable analysis of Vladimir Putin's admirers on the political right in the US:
[W]hile opposition to aid to Ukraine doesn't necessarily entail support for Vladimir Putin…. Putin-friendly themes have been increasingly prominent on the right. At this point, pro-Putinism is no longer an undercurrent in right-wing rhetoric: it's on the surface.
But not all Putin-friendly conservatives are the same. For some, their hatred of the American left overrides any feelings they have about Putin. Others are more ideological: they oppose the Western liberal project itself. Untangling these different strains is key to explaining why so many on today's right embrace views that, until recently, would have gotten them branded Kremlin stooges by other conservatives….
[Tucker] Carlson reflects the dominant mode on the Trumpist right: if not actively pro-Putin, then at best anti-anti-Putin. The anti-anti-Putinists may concede that Putin is kinda bad, but only to insist that other things are far worse: Mexican drug cartels, progressive philanthropist George Soros, "the left," or America's "ruling class." Like the left-wing Soviet apologists of old, they make up faux political prisoners in America to suggest moral equivalency with the dictatorship in the Kremlin….
It's hardly news by now that many American right-wingers see Putin's Russia as the antithesis of Western "wokeness." This is especially true with regard to sexual and gender norms: I noted the beginnings of this trend in 2013, when several right-wing groups and conservative pundits praised a Russian law censoring "propaganda" of homosexuality. Discussing the phenomenon recently in the context of the GOP's anti-Ukraine turn, David French pointed to such examples as far-right strategist Steve Bannon's praise for Putin's "anti-woke" persona and Russia's conservative gender politics, or psychologist Jordan Peterson's suggestion that Russia's war in Ukraine was partly self-defense against the decadence of "the pathological West."
The idea of Russia as a bulwark of traditionalism and "anti-woke" resistance is an image the Putin regime deliberately cultivates—not only to appeal to its own population's biases but to win friends among conservatives in the West. And many are seduced into an affinity that goes well beyond anti-anti-Putinism…..
Yet distaste for post-1960s social and sexual liberalism doesn't entirely explain the right's Putin love. Some right-wing pro-Putin rhetoric indicates a far more radical rejection of liberalism, even in its more classical varieties (the liberalism of John Locke and John Stuart Mill….)….
[Christopher] Caldwell, who unabashedly hails Putin as "a hero to populist conservatives," just as unabashedly acknowledges that the "hero" has suppressed "peaceful demonstrations" and jailed and probably murdered political opponents. Yet he asserts that "if we were to use traditional measures for understanding leaders, which involve the defense of borders and national flourishing, Putin would count as the pre-eminent statesman of our time." Leaving aside dubious claims about Russia's "flourishing" under Putin, perhaps the most revealing thing about this defense is that it openly invokes standards which predate and reject modern, Enlightenment-based beliefs about liberty, self-government, and human rights.
Young rightly analogizes Putin's American right-wing fans to earlier left-wing Western admirers of the Soviet Union and other communist regimes. Both groups feel a strong enough affinity to a foreign dictatorship that they overlook or deny horrific atrocities, which in Putin's case include both large-scale domestic repression and horrific atrocities in Ukraine, comparable to those committed by Hamas against Israel, but on a much larger scale.
Interestingly, as Young notes, one of Putin's American right-wing fans even embraces the analogy with support for communism:
Caldwell praises Putin's refusal to accept "a subservient role in an American-run world system drawn up by foreign politicians and business leaders"—and offers a startling analogy:
"Populist conservatives see [Putin] the way progressives once saw Fidel Castro, as the one person who says he won't submit to the world that surrounds him. You didn't have to be a Communist to appreciate the way Castro, whatever his excesses, was carving out a space of autonomy for his country."
If Putin-friendly "populist conservatives" are the equivalent of Castro-friendly, Cold War-era progressives, that's quite a self-own—and a self-reveal.
I made related points about Putin's Western fans (including Europeans as well as Americans) in this video, part of Marshall University's series of podcasts about the Russia-Ukraine war:
If I have a disagreement with Young, it's that I give more emphasis to the nationalist element in Western right-wingers' affinity for Putin. I think that, for many, this is more significant than social conservatism and cultural grievances. US social conservatives who are not also highly nationalistic tend to be far less sympathetic to Putin, and some strongly support aiding Ukraine against him. Examples include former Vice President Mike Pence and GOP Senate Leader Mitch McConnell.
But these two sources of pro-Putin attitudes are often interconnected, and their relative importance varies from case to case.
Young also devotes part of her article to Tucker Carlson, one of the American right's most prominent cheerleaders for Putin. I discussed some of his fallacies regarding Russia here.
From Stanford Report (Chelcey Adami) on Jan. 25, 2024, reporting on a Stanford Faculty Senate meeting:
Multiple [faculty] senators asked for more details regarding when university leadership should speak on an issue, and Graduate School of Business Dean Jonathan Levin said issuing a statement with absolute moral clarity shortly after an incident does not reflect how the university wants its students to act.
"I think it models the wrong thing for our students, and it actually undermines our basic educational mission …," Levin said. "We want them to think slowly, to hear from different people, to weigh things carefully, and we should model that and have the focus after an event in the world to be around listening and learning."
Thanks to James Creigh and Steve McGuire for the pointer.
A Dallas man was sentenced today to 37 years in prison, with credit for time served in state custody, following his guilty plea to hate crime charges arising out of a fatal shooting at a car repair shop.
On Sept. 14, 2023, Anthony Paz Torres, 39, pleaded guilty to five federal hate crime counts for killing one individual and attempting to kill four others during a mass shooting at Omar's Wheels and Tires in Dallas on Dec. 24, 2015. Torres also pleaded guilty to one count of using a firearm to commit the murder….
According to court documents, Torres admitted that a few days prior to the shooting, he went to Omar's Wheels and Tires, made anti-Muslim comments, and pledged that he would come back. When he returned to the business on Dec. 24, 2015, Torres asked customers if they were Muslim. After being escorted back to his vehicle by Omar's Wheels and Tires employees, Torres discharged his firearm in the direction of multiple employees and customers. Torres admitted that he killed one person and attempted to kill four other people at Omar's Wheels and Tires because he believed that they were Muslim.
We live in an era of profound anxiety about the threat that lies, and false speech more generally, pose to American democracy. It's not hard to understand why. Lies saturate the political realm. George Santos lied his way into office. Donald J. Trump lied his way through his tenure as president and is gearing up to lie his way back into power. Meanwhile, blatant lies, hyperbolic rhetoric, and misleading claims about important issues of public controversy—critical race theory and its use in public elementary schools, the risk of COVID-19, the reliability of the 2020 election results—saturate many reaches of the mass and social media and motivate, or at least justify, all manner of both elite and popular political mobilization.
The obvious political potency of these kinds of lies raises many questions about what kind of society we live in, and about our political past and future. But it also raises deep questions for and about free speech law—perhaps the most fundamental being whether the First Amendment, as it is currently understood, enables or impedes the collective pursuit of something we might call "truth." I spent the 2021–2022 academic year at the Knight First Amendment Institute at Columbia University, exploring these questions through a series of roundtable discussions culminating in a major symposium in April 2022 on "Lies, Free Speech, and the Law."
A fundamental assumption of the modern First Amendment is that (as Justice Holmes put it in his famous dissenting opinion in Abrams v. United States) "the best test of truth is the power of the thought to get itself accepted in the competition of the market." But as contemporary experience makes quite clear, this assumption is not always true—or, at least, may not be true on a time horizon that prevents society from incurring significant costs—especially if we equate the market, as First Amendment law tends to do, with the hurly burly public marketplace of ideas. There are many reasons why an idea might win out over its competitors on the television screen, in the newspaper, or at the water cooler, other than because it accords better with empirical reality. It might reinforce its audience's assumptions about the world and therefore be easier to embrace than more disruptive alternatives. It might be promoted by an institution or person that is widely viewed as trustworthy. It might be repeated so frequently it becomes one of the taken-for-granted background assumptions of our lives. Or it might give its audience permission to do what they really want to do. The love of truth is not the only motivation that leads listeners to embrace or reject ideas. The result is that there is no reason to think that the fact that an idea wins in the public marketplace of ideas means it must be true, or is likelier to be true, than an idea that fails to win adherents.
And yet, First Amendment law makes it quite difficult (although, as I discuss below, not impossible) for the government to exclude from public discourse assertions about the world that are patently false—that do not, in other words, come anywhere close to satisfying the criteria that have traditionally been used to distinguish truth from falsity. This is not necessarily a doctrinal error, and it is not simply a consequence of courts' embrace of the arguably false Holmesian dictate from Abrams. It is also, and to a much greater extent, a consequence of judicial fears that, were the government granted the power to punish false speech, the dynamics of political competition and the vulnerability of government officials to the same cognitive biases that affect how you and I receive information would make that power susceptible to abuse, and thereby result in a public sphere even more saturated with untruths than the one we live in today. In the wake of the Trump presidency, these fears appear very well-justified. Certainly, the fact that one of President Trump's favorite means of deflecting attention away from his own lies and failures was by accusing his enemies of indulging in "fake news" suggests how powerful a political weapon false allegations of falsity can be. The result, nevertheless, is a body of law that, notwithstanding its frequent invocation of the importance of safeguarding the search for truth, often leaves "truth" vulnerable to the manipulation of media moguls, party bosses, and charismatic speakers.
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