12/18/1944: Korematsu v. U.S. decided.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Amendment Roundup: Second Circuit Opines on New York's Gun Restrictions
Some provisions remain enjoined, but the decision on “sensitive places” is problematic.
The U.S. Court of Appeals for the 2nd Circuit released its long-awaited decision in Antonyuk v. Chiumento – all 261 pages of it – on December 8. The court affirmed in part and reversed in part the decision of the Northern District of New York preliminarily enjoining major parts of New York's Concealed Carry Improvement Act, which was enacted to counter the Supreme Court's decision in N.Y. State Rifle & Pistol Ass'n v. Bruen.
The circuit court stripped down the district court's finding that plaintiffs are likely to prevail on the merits regarding the law's provisions on licenses to carry firearms and on sensitive places where firearms may not be possessed. It upheld the lower court's finding that plaintiffs are likely to prevail regarding restricted places where firearms may be possessed on private property open to the public only if the owner positively consents.
First, the court agreed that requiring license applicants to disclose even pseudonymous names under which they post online infringes on the Second Amendment and raises serious First Amendment concerns. Remember those three guys in 1787-88 who signed their names as "Publius"? The court let stand the requirement of "good moral character," which "is a spongy concept susceptible to abuse," but abuses "can still be vindicated in court as they arise."
Second, the court let stand the injunction against enforcement of a gun ban applicable to church members as a violation of the First Amendment's Free Exercise Clause. The ban is not neutral, as owners of retail businesses open to the public may decide whether to allow firearms on their premises, and the ban is not narrowly tailored to meet the state's interest.
Third, the court agreed that plaintiffs are likely to prevail on their claim that the ban on firearms on private property open to the public, unless the property owner posts a conspicuous sign that firearms are permitted, violates the Second Amendment. While historically, enclosed private lands were closed to the public, no historical analogue supports the law's default presumption against carriage on private property open to the public.
Don't Put too Much Stock in Survey Finding that 67% of 18-24-Year-Olds Say Jews are "Oppressors"
The much-cited Harvard-Harris poll question has flawed wording,and is at odds with other, better surveys.
A recent Harvard/Harris survey question indicating that 67% of Americans between the ages of 18 and 24 believe Jews "as a class" are "oppressors" has attracted widespread attention as an indicator of widespread anti-Semitism. There is indeed reason to be concerned about anti-Semitism, including that on the political left and on college campuses. But we should not give much weight to this survey question. It's badly worded and at odds with other data.
Here's the question in full and results, broken down by age group:
Do you think that Jews as a class are oppressors and should be treated as oppressors or is that a false ideology?
While most of the focus has been on the 18-24 result, it's worth noting that large percentages of every other age group under the age of 55 also gave the "oppressors" answer: 44% of the 25-34 category; 36% of those aged 35-44, and 24% of those aged 45-54. Overall, 27% of respondents chose the "oppressor" answer. This looks like an implausibly high level of anti-Semitism even aside from the 18-24 group.
A likely explanation is that the question is badly designed. Before going into this, I should note that I have considerable background in public opinion research, and am the author of a number of academic publications on voter knowledge and ignorance, including my book Democracy and Political Ignorance (Stanford University Press). That doesn't make me a source of infallible wisdom in this field. Far from it! But it does mean I have relevant expertise on such matters, more so than at least some of the other commentators opining about this question.
There are multiple flaws in the way the question is designed, each of which may lead to skewed results. First, the question asks about two things at once: whether Jews, "as a class" are "oppressors" and whether they "should be treated as oppressors." This is a survey no-no because it leads to inaccurate results among respondents who agree with one of the statements, but not the other, and because a compound question can easily confuse respondents who don't read it carefully (which many don't).
A second problem is that the question uses terminology ("oppressors," "ideology") that may not be familiar to respondents who don't follow politics closely (which many studies show a large percentage of the public does not). If you're reading this post, you probably do follow politics closely, and may find it hard to believe that anyone is unfamiliar with terms like "ideology." Perhaps that's also true of all or most of your friends and relatives. Maybe none of them would be confused about such things, either.
But, if so, you and your social circle are highly unrepresentative. Most of the general public is not like that. A majority of Americans can't name the three branches of government, don't know when the Civil War happened, and support mandatory labeling of food containing DNA (the latter probably because they don't understand what DNA is). Political scientists also find that most of the public has little understanding of such basic political concepts as "liberal" and "conservative." It would not be surprising if the same was true of many survey respondents' understanding of "oppressor" and "ideology," though admittedly I haven't seen research specifically focused on these terms.
Furthermore, the question doesn't include any intermediate or "don't know" option. The resulting "forced choice" between relatively extreme options increases the likelihood of distortion and of eliciting "opinions" that don't really exist.
Finally, as I explained in a recent post on public ignorance about the Holocaust, extensive survey evidence indicates that political ignorance is higher among younger people than older ones. This is not a recent phenomenon unique to the "Z" generation, but has been a consistent finding through decades of public opinion research.
These flaws might not be a big deal if the result were consistent with other data on public attitudes towards Jews. But in fact it is at odds with much other evidence. I will illustrate with a few examples.
A September 2022 Pew Research Center survey on public attitudes towards various religious groups finds that Jews have higher favorability ratings than any other group included in the survey:
Significantly, only 6% of respondents had a "very" or "somewhat" unfavorable view of Jews - a lower percentage than for any of the other groups included in the survey (these figures change only marginally if we exclude respondents who are Jewish themselves, because Jews are only about 2% of the total population).
Unlike the Harvard/Harris survey, this one uses simple wording, and does offer intermediate options (both "neither" and "don't know enough to say"). Indeed, a large majority - 58% - chose one of them. That reflects the reality that much of the public (which, to repeat, is overwhelmingly non-Jewish) probably hasn't given a lot of thought to Jews either way, and may not have strong opinions about them.
This result is incompatible with a world where 27% - or anything close to it - believe the Jews are "oppressors" (and know what that term means). You don't generally have a favorable or even neutral view towards people you think of as oppressors.
The Pew result is not an aberration. It's similar to previous "feeling thermometer" surveys that found more favorable public attitudes towards Jews than other religious groups, including Pew's own findings in 2014, 2017 and 2019.
Treating Jews as analogous to religious groups like Mormons and Muslims is an oversimplification. Unlike Christianity or Islam, Jewish identity is actually a mixture of ethnic and religious components. I myself am simultaneously an ethnic Jew, and also an atheist. A Jewish atheist isn't necessarily a contradiction in terms, in the way a Christian or Muslim atheist would be. But people who hate Jews for ethnic or racial (as opposed to religious) reasons still probably would rate them unfavorably on this kind of survey.
By contrast, the most recent Anti-Defamation League survey of anti-Semitic attitudes found them to have gone up between 2019 and 2022, the first such increase in many years. But it also found lower anti-Semitism among the young than the general public, albeit by a smaller margin than in the past. Moreover, most of the anti-Semitic tropes tested by ADL are far less invidious than being an "oppressor" (e.g. - "Jews have too much power in the business world" and "Jews do not share my values"). One possible way of reconciling the ADL and Pew findings is that many people believe in some anti-Semitic stereotypes, but not enough to arrive at a generally unfavorable view of Jews.
The "oppressor" finding is also in tension with some of the other results of the Harvard/Harris survey itself. For example, it also finds that 69% of 18-24-year-olds believe "Israel has a right to exist as the homeland of the Jewish people" and that 70% of the same group believe "protesters on university campuses calling for the genocide of Jews constitute hate speech." This seems like a high level of solicitude for a group where 67% think "Jews… as a class" are "oppressors" and should be treated as such. It suggests at least 36% believe the group they consider "oppressors" should have a homeland, and 37% think calling for its genocide is "hate speech." It is even the case that 70% of 18-24 year olds in the survey think Israel is trying to avoid civilian casualties in its war with Hamas.
Asked which side they sympathize with more in the conflict, the 18-24 group split evenly between Israel and Hamas, a much lower level of support for Israel than in the general public, but still high enough to imply many (at least 17%) sympathizing with the group they called "oppressors" in the question about that topic.
One difference between the Harvard/Harris survey and the Pew and ADL ones, is that the former was conducted during the current Israel-Hamas war, while the latter were before it. But this is unlikely to account for a vast increase in anti-Semitism of a kind necessary to validate the "oppressor" result, because polls (including the Harvard/Harris one) consistently show much greater public sympathy for Israel than Hamas. On net, the war has probably actually increased public sympathy for Jews and public concern about anti-Semitism (the latter is reflected in the Harvard/Harris poll itself).
If anti-Semitic sentiment is actually much lower than the result on the "oppressor" question suggests, why the dramatic increase in anti-Semitic incidents since the war started? The answer is that a small minority of the public does have anti-Semitic views, and those become more salient at a time when Israel and Jews are highly prominent in the news cycle. Much research shows that, when a set of attitudes become more salient due to current events, people are more likely to act on them. Moreover, the far-left variant of anti-Semitism is disproportionately represented on college campuses (which have a higher proportion of far-leftists than the general population), thus accounting for the relatively high number of incidents there.
The actions of a small but virulent and galvanized minority of bigots can still cause pain and - in extreme cases - lead to horrific hate crimes. That's a genuine problem. But it should not lead us to give undue credence to dubious survey results that make anti-Semitism seem much more widespread than is actually likely to be the case.
Happy Saturnalia!
Another year of the the Volokh Conspiracy tradition of marking the occasion of this ancient Roman holiday.
Today is Saturnalia, an ancient Roman holiday with a long tradition here at the Volokh Conspiracy. Admittedly, it's tradition only in so far as I have put up a post about it every December 17 since 2006. But, by internet standards, that's a truly ancient tradition, indeed!
The Encyclopedia Romana has a helpful description of Saturnalia:
During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters' clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that "During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside."
As in most years, we have no shortage of strong candidates for the position of Lord of Misrule. Plenty of politicians in both major parties qualify, as do many others in positions of power. This year, I fear, we are enduring even more misrule than usual.
Happy Saturnalia to all the friends, Romans, and Volokh Conspiracy readers out there!
NOTE: Most of this post is adopted from previous Saturnalia posts.
Today in Supreme Court History: December 17, 1910
12/17/1910: Justice Joseph Rucker Lamar nominated to the Supreme Court.
Ten Reflections on Justices Kavanaugh and Barrett's Votes In Dobbs
On Friday, I wrote a post that totaled nearly 6,000 words about the New York Times bombshell report on Dobbs. My initial goal was to simply lay out all of the new disclosures--and there were many of them. Now, I've had some time to think about this new information. Here, I will offer ten reflections about how Justices Kavanaugh and Barrett voted in Dobbs. In this post, I will presume that the reporting is accurate, with all the usual caveats about assumptions, as explained by Felix Unger (for another classic TV reference that most readers will not get).
"Reviewing The Three Trump Appointees: Ex Ante and Ex Post"
My new essay will be published in the inaugural issue of the Texas A&M Journal of Law & Civil Governance.
In July, I published a series of posts evaluating Justices Gorsuch, Kavanaugh, and Barrett. I've expanded those posts into an essay, which will be published in the inaugural issue of the Texas A&M Journal of Law & Civil Governance. My article is titled, Reviewing The Three Trump Appointees: Ex Ante and Ex Post. I am honored to serve on the Board of Advisors for this exciting new journal.
Here is the abstract:
Justice Neil Gorsuch has now been on the Supreme Court for six years; Justice Brett Kavanaugh for five years; and Justice Amy Coney Barrett for three years. By virtually any measure, today's Supreme Court is the most conservative bench in modern history. But it could have been far, far worse for progressives if President Trump had actually nominated Justices in the mold of Justices Scalia, Thomas, and Alito.
This essay, written for the inaugural issue of the Texas A&M Journal of Law & Civil Governance, provides a prospective and retrospective analysis of the three Trump appointees. Part I begins with cases on the Supreme Court's merits docket. Part II turns to the Supreme Court's emergency docket. Part III considers what could have been: denials of petitions for writs of certiorari. Part IV will revisit the records of these three justices ex ante and ex post. Very little has surprised me about the Supreme Court over the past several years.
I had to make a few last-minute changes in light of the Dobbs bombshell. More on that story shortly.
If Colleges Ban "Advocacy of Genocide," What Would That Mean for Speech Supporting Israeli Actions in Gaza?
Most 18-to-24-year-old registered voters, a recent poll reports, view Israel's actions as "genocide."
Harvard/Harris Poll: Huge Majorities of 18-to-24-Year-Olds Believe Jews, Whites "Are Oppressors"
The survey was of 2,034 registered voters
From the poll, conducted Wednesday and Thursday of last week:
There is an ideology that white people are oppressors and nonwhite people and people of certain groups have been oppressed and as a result should be favored today at universities and for employment. Do you support or oppose this ideology?
A question asked two questions after that (the intervening question being, "Do you think this ideology is helpful or hurtful to our society?"):
Do you think that Jews as a class are oppressors and should be treated as oppressors or is that a false ideology?
Lots more in the survey, available here. From the description:
Court Allows Sealing of Video of Police Shooting of 11-Year-Old Aderrien Murry
The boy's name has been publicly reported (apparently with his parents' permission), but the court nonetheless concludes that releasing the video would violate his privacy. (The grand jury has just declined to indict the police officer.)
From Murry v. City of Indianola, decided Thursday by Judge Debra Marie Brown (for stories on the incident, which confirm that the boy's name has been broadly reported, see here):
The plaintiff, A.M., an eleven-year-old boy, was shot in the chest by an Indianola Police Department officer responding to a domestic violence call at the home of his mother, Nakala Murry. The father of one of Murry's children, John Nolden, came to her home in the very early hours of May 20, 2023. His conduct and a history of domestic abuse caused Murry to fear for her safety and that of her two children and two nephews who were in the home. According to the police officers, they were unaware of the presence of children at the home, but were aware of the history of violence by Nolden.
One of the officers, the defendant, Greg Capers, shot A.M., though the parties give slightly varying descriptions of how the shooting happened. Caper's body camera captured the events giving rise to this case, including the events leading to the shooting of A.M. and the immediate aftermath of the shooting. Since the filing of this action, the plaintiff, Nakala Murry, plaintiff's counsel, and A.M. have all appeared in numerous articles, including nationwide print, and in broadcast media.
The defendants filed a motion for judgment on the pleadings and have proffered this body camera footage as an exhibit to the motion, but have moved for leave to file it under seal, at least for the duration of the litigation … .
The plaintiff—A.M.'s mother, suing on A.M.'s behalf—opposed the sealing, but the court disagreed:
Virginia Should Refuse to Subsidize the Construction of a New Stadium for the Capitals and Wizards
The proposed deal could be the largest-ever government subsidy for a sports stadium. Studies consistently show such handouts don't benefit communities.
The Washington Post reports that Virginia state and local governments may be about to give Washington Capitals (NHL) and Washington Wizards (NBA) owner Ted Leonsis a giant $1.35 billion subsidy to build a new stadium complex in Alexandria - the largest-ever government stadium subsidy:
A Northern Virginia sports arena that would move the Washington Capitals and Wizards out of downtown D.C. would receive the largest-ever public subsidy for a project of its kind, an estimated $1.35 billion in state and local funds, if it goes forward….
The net cost to taxpayers would ultimately reach an estimated $1.35 billion, according to the study. That includes $1.15 billion directly for the project — more than any comparable facility on record, according to J.C. Bradbury, a Kennesaw State economics professor who studies sports facilities and reviewed the study for The Post.
Virginia Gov. Glenn Youngkin claims the money will mostly come from revenue that wouldn't be available in the absence of the project. I'll believe that when I see it! Among other things, that claim doesn't take account of the loss of revenue from alternative uses of the same land. The Post reports that experts who have examined the plan are skeptical of that claim as well.
There is broad cross-ideological consensus among economists and other experts that sports stadium subsidies create net losses for communities, not gains. The billionaire owners and millionaire players make out like bandits. The general public, not so much. A recent survey of 130 studies on the impact of sports stadiums, written by economists J.C. Bradbury, Dennis Coates, and Brad Humphrey, concludes that "[e]ven with added nonpecuniary social benefits from quality-of-life externalities and civic pride, welfare improvements from hosting teams tend to fall well short of covering public outlays." Bradbury is one of America's leading sports economists.
Sports stadium subsidies may be an even worse deal in northern Virginia than in most other areas. The region suffers from a serious housing shortage, and needs to build more. Arlington County (where I live), and Alexandria, where the new stadium complex would be built, recently liberalized zoning restrictions that previously severely restricted construction. But more needs to be done along these lines. If state and local authorities want to repurpose a large chunk of real estate, they should let developers build new housing there. That would simultaneously bolster our economy and enable more people - especially the lower middle class and working class - to "move to opportunity."
As a libertarian, I am skeptical of the case for providing welfare for the poor. But I can at least understand and respect the logic behind them. By contrast, there is no plausible justification for giving corporate welfare to billionaire sports team owners. If Mr. Leonsis wants to move his teams to Virginia, he should be welcome to do so. But he should pay for the stadium himself, not ask the state for a handout.
I have nothing against NBA and NHL teams. Indeed, I am a big fan of both leagues. But the state shouldn't subsidize my entertainment. Team owners are more than capable of building stadiums themselves, paying for them from their profits. That is in fact how stadiums were built during the early to mid-twentieth century, until public subsidies became common, starting in the 1950s. If unsubsidized private enterprise could build Fenway Park and the original Yankee Stadium a century ago, it can surely accomplish similar feats in today's much wealthier and more technologically advanced society.
Longtime readers may recall that, though I live in Virginia, I grew up in the Boston area and am a Celtics and Bruins fan. Cynics may suspect I would be more supportive of subsidizing the Caps and Wizards if I were a fan of those franchises.
But my opposition to stadium subsidies is not dependent on any such considerations. For example, I also think the city of Worcester, Massachusetts was wrong to subsidize the construction of a Red Sox minor league stadium, even though I am a big Red Sox fan. But this Massachusetts boondoggle (which cost Worcester some $160 million) is no justification for Virginia doing a much larger one. Our region should learn from the mistakes of others, not imitate them.
Fortunately, the stadium subsidy isn't yet a done deal. Among other things, it will have to be approved by the Virginia state legislature and the Alexandria City Council. They should just say no.
"Only a Lawyer Would Call a 50-Page Document a 'Brief'"
Origin unknown; I've seen it credited to Franz Kafka, but I'm skeptical about that.
Today in Supreme Court History: December 16, 1936
12/16/1936: West Coast Hotel v. Parrish argued.
Failed Candidate's Lawsuit Against Anti-Defamation League Thrown Out
Today's decision by Magistrate Judge Jill Morris in McClanahan v. Anti-Defamation League (W.D. Mo.), rejects plaintiff's libel claim; here's an excerpt:
Plaintiff, a recent political candidate in Missouri, initiated this lawsuit contesting an article entitled "ADL Researchers Identify Failed Extremist Candidates in Missouri and North Carolina," that was published on ADL's website on August 16, 2022…. Plaintiff alleges that the article falsely identified him as a "member of the Knight's party, Ku Klux Klan," falsely labeled him as a "White Supremacist, Sore Loser, Angry American", and falsely stated that his social media posts contain "anti-Semitic, anti-government, white supremacist, and bigoted content"). The Complaint further asserts other statements in the article are false and defamatory, including:
- The assertion that Plaintiff "did not openly express or share [his] extreme views during the primaries or in candidate forums."
- The statement that Plaintiff's candidacy serves as a "stark reminder that extremists, some of whom may purposefully hide their extremist beliefs, continue to seek public office with the hope of influencing mainstream society."
- That the article "attacks McClanahan's Honorary membership to the League of the South without investigating if McClanahan believed in Southern secession or a White dominated South." …
Each of the statements alleged to be defamatory by Plaintiff are nonactionable for various reasons. These reasons include being expressions of opinion, being substantially true according to Plaintiff's own assertions in the Complaint, failing to correspond accurately with the content of the article, and reflecting Plaintiff's own words….
D.C. Circuit Rejects First Amendment Lawsuit over AG's Memorandum About Threats to Schools
From Saline Parents v. Garland, decided today by the D.C. Circuit, in an opinion by Judge Harry Edwards, joined by Judges Neomi Rao and Florence Pan:
On October 4, 2021, the Attorney General … issued a one-page memorandum … to various units in the Department of Justice …, expressing concern over a spike in reported incidents involving harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff. The Memorandum indicated that "[w]hile spirited debate about policy matters is protected under our Constitution, that protection does not extend to threats of violence or efforts to intimidate individuals based on their views." The Memorandum instructed DOJ staff to investigate the problem and discuss strategies for addressing the issue. The Federal Bureau of Investigation … subsequently sent an email … advising its agents that it had created an internal mechanism to track investigations and threat assessments relating to the issues raised in the Memorandum.
Appellants … filed suit in the District Court against the Attorney General, claiming that the foregoing actions by the Government are unlawful because they are intended to silence Appellants and others who oppose "progressive" curricula and policies in public schools. Appellants say that they strongly and publicly voice opposition to "the divisive, harmful, immoral, destructive, and racist agenda of the 'progressive' Left." And they contend that, because their protest activities include only constitutionally protected conduct and never threats of criminal violence, they have been impermissibly targeted by what they term the "AG Policy." Appellants allege the AG Policy directs the Government "to use federal law enforcement resources to silence parents and other private citizens" who object to the "progressive" agenda. Appellants seek a declaration that the purported AG Policy is unlawful, along with an injunction barring both the alleged policy and any actions taken to enforce it.
The Government has acknowledged, both before the District Court and this court, that the professed activities cited by Appellants in their Complaint fall outside the scope of the Memorandum and are fully protected by the Constitution. The Government has also consistently maintained that Appellants are not targets of any purported AG Policy….
The court held that Appellants lacked standing to sue, because they couldn't show an "injury-in-fact" that would give them a "personal stake in the outcome of the controversy":
Dobbs Was Never In Doubt
And the leak likely did not "lock in" anything.
If I read the New York Times scoop about Dobbs correctly, there was never any internal uncertainty about what the Justices would do in the case. There were always enough votes to hear the case, and Alito's draft majority opinion picked up five votes at a record pace. A majority had signed on to Alito's draft several months before the leak.
Of course, readers will disagree on whether this is a good thing or a bad thing. To some, it will show how unwavering the majority was in their commitment to the right path. To others, it will show how zealous they were in their blind commitment to such a mistaken ruling. But however you come out on that, I think the timing should probably alter some of the assumptions sometimes made in discussions about Dobbs and the Dobbs leak.
Here's my thinking. The article presents the story from the perspective of those who tried to prevent the Dobbs majority. Since-retired Justice Breyer seems like a likely source, given the discussion of what was in his head at various times. And that creates a dramatic narrative of (Breyer's) uncertainty that matches what I think most people had expected was happening internally. On that expected narrative, the leak happened while the Justices were negotiating over the opinion, before five had signed on.
But apparently that wasn't the case. There was a majority around mid-February, without anyone requesting a single word of changes. The leak happened months later, on May 8.
Here's the most remarkable passage:
On Feb. 10 last year, Justice Samuel A. Alito Jr.['s] . . . clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women's Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.
But this time, despite the document's length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration.
Given that timing, the theory that the leak was designed to "lock in" the majority, or that it had that effect, seems implausible to me. The five in the majority had all joined almost immediately, months earlier, with not a single suggestion of changing a single word in the 98-page draft.
True, it's possible that a Justice might join an opinion one day and then "unjoin" it later before it is published. But that's rare. And this was understood as likely the most important case of the Justices' careers, with an opinion they had rushed to sign on to. And months had already passed. By the time of the leak, Alito's opinion would have been seen as basically done.
My experience as a clerk is from 20 years ago, with mostly different Justices. But in that bygone era, at least, a Justice hoping to prevent a five-vote majority would go to the likely 5th vote Justice and ask them to hold off until concurrences and dissents are circulated. The idea was that, as long as the circulating draft didn't have a majority yet, there was a chance that it wouldn't get one. A different opinion, circulated later, might persuade them. That potential 5th vote would signal openness to coming out differently by waiting for other opinions first.
What's striking about the inside story here, it seems to me, is that this didn't happen. No one waited. The Alito draft got to five at a pace faster than a 9-0 ERISA opinion.
I assume this partially explains why, after the leak, the majority did not change the draft very much. I've seen a lot of speculation that they did that because of public pressure. They couldn't change it because they would look bad, the argument runs. They would be seen as weak, so they had to join even thought they probably didn't want to. But in light of what we know now, the more likely explanation is that the leaked Dobbs draft already had five votes "as is," and it had those votes for months.
As I said up top, different people will see this as good or bad. But it seems like the most important lesson from the Times story.
Hallucinating Josh Blackman
Did I write "The Most Dangerous Man On the Supreme Court"?
I realize that I live rent-free in the heads of many law professors. Apparently, I also reside in the dreams of generative AI.
A professor emailed me to ask if I ever wrote this article:
Blackman, Josh. "The Most Dangerous Man On the Supreme Court." Charleston Law Review, vol. 11, no. 17, 2017, pp. 321-365.
No, I've never written this article. In fact, I'm not sure who would have been the most dangerous person on the Supreme Court in 2017. And I've never published in the Charleston Law Review.
Yet, a student in this professor's class submitted a paper that cited this article! And apparently the student used Chat GPT or some other generative AI. The professor wanted to verify I didn't write the article, to support an academic misconduct complaint against the student. I verified the claim, though in candor, I double checked to make sure I didn't write something with that title in some other journal. (I didn't.).
The professor also told me the student cited a book published by Justice Barrett about the Supreme Court and cinema in the Southern Illinois University Press. I think it is safe to say she did not publish that book--or any other book for that matter. (Sorry, I couldn't resist.)
I was tempted to title this post, I Dream of Joshie, but I doubt enough readers would have gotten the reference.
The Next Kids Climate Case: Genesis B. v. EPA
Another climate change lawsuit filed on behalf of children, this time against the Environmental Protection Agency.
This week, Our Children's Trust, filed another in its series of "kids climate cases"--cases raising climate change claims brought on behalf of children. OCT is the group behind the Juliana litigation, in addition to several cases brought against states in state courts.
The new case, Genesis B. v. Environmental Protection Agency, argues that the EPA has violated the constitutional rights of the plaintiffs by failing to act more aggressively to reduce greenhouse gas emissions. Specifically, the Genesis plaintiffs argue that the EPA, and the federal government more broadly, have violated the plaintiffs' rights to Equal Protection and Due Process under the Fifth Amendment. Both sets of claims ask the courts to go well beyond existing law. For the former, the plaintiffs ask the courts recognize children as a protected class for the purposes of Equal Protection. For the latter, they claim that the EPA's failure to regulate more aggressively violates the plaintiffs right to life and their "fundamental right to a life sustaining climate system." To say these are audacious claims is an understatement.
The federal government's motion to dismiss should write itself. For starters, the plaintiffs face serious standing hurdles, particularly with regard to redressability. Standing is what ultimately grounded the Juliana litigation (though the judge has sought to revive it), and as this case was also filed within the U.S. Court of Appeals for the Ninth Circuit (specifically, the Central District of California), standing concerns will cast a long shadow over this case too.
But even should the plaintiffs get past standing, substantial hurdles will remain, not the least of which is that it is based upon highly contestable constitutional premises that would remake substantial parts of existing law, such as the claim that children should be treated as a suspect class or that the federal government has a constitutional obligation to take regulatory action to protect the lives or well-being of citizens against privately caused harms. The latter claim, in particular, calls for the de facto overruling of DeShaney v. Winnebago County in the environmental context and the recognition of a new fundamental right for which there is little basis in current law (let alone the sort of history and longstanding tradition called for under Glucksberg).
Barring some dramatic change in the federal courts, I would not expect this case to go very far. As with Juliana, the question is not whether the plaintiffs will lose, but when and on what basis. There is also a question as to whether filing of this case, at this time, affects the Supreme Court's appetite to revisit climate litigation.
As I noted earlier this week, the justices appear to be giving serious consideration to granting certiorari in American Petroleum Institute v. Minnesota. On the merits, I do not believe that case is cert worthy, as I believe the arguments made by the energy companies clearly fail under current law (as court after court has concluded). The strongest argument for granting certiorari in that case is not that it si legally warranted, but that the accretion of climate change litigation should command the High Court's attention before it gets out of control. For that reason, this was quite the week to file an ambitious new climate claim in federal court. (Apparently the plaintiffs wanted to file "on the 75th anniversary of the Universal Declaration of Human Rights.")
The plaintiffs in Genesis B. v. EPA are asking for federal courts to pay more attention to climate claims. I would suggest they should be careful what they wish for.
