8/10/1993: Justice Ruth Bader Ginsburg takes oath.
Today in Supreme Court History: August 10, 1993
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
ABA House of Delegates Adopts Resolution Opposing Single-Judge Divisions (Updated)
Long before Judges Kacsmaryk and Tipton, there was Judge William Wayne Justice.
This week, the American Bar Association held its annual meeting. The House of Delegates adopted a resolution that opposed single-judge divisions:
RESOLVED, That the American Bar Association urges federal courts to eliminate case assignment mechanisms that predictably assign cases to a single United States District Judge without random assignment when such cases seek to enjoin or mandate the enforcement of a state or federal law or regulation and where any party, including intervenor(s), in such a case objects to the initial, non-random assignment within a reasonable time; and
FURTHER RESOLVED, That the American Bar Association urges that, in such situations, case assignments are made randomly and on a district-wide rather than division-wide basis.
These resolutions have no force on their own. Indeed, I have written how the ABA's influence has waned significantly, so it is difficult to put much stock in these sorts of statements.
On the merits, the resolution does not explain why these sort of assignments should be avoided. It simply takes it as a given that single-judge divisions are bad. But this issue is not self-evident. Absent allegations of bias, whether actual or perceived, what exactly is the reason for objecting to the assignment? The Department of Justice has attempted to make this argument in several Texas district courts. But, in my view at least, DOJ never actually makes the case. The most they can say is that "judge-shopping" affects how the public perceives the judiciary, and that perception problem warrants reassignment. That argument only works, though, if the judges who are shopped are behaving improperly. If the judges are neutral--as DOJ concedes they are--then any perception problem is just that, a perception. Indeed, DOJ can't even say what that perception is.
The bigger underlying issue is a simple fact: judge-shopping is not new. Every lawyer who has ever noticed a "related case" was trying to shop for a judge. Sure, there are issues of economy when a judge, already familiar with an issue, hears a "related" case. But that doctrine is malleable, and allows litigants to request a judge who, based on past practice, will be favorable.
More importantly, progressives have long taken advantage of judge-shopping in single-judge divisions. In a recent decision, Judge Wesley Hendrix of the Northern District of Texas-Lubbock Division denied DOJ's motion to transfer a case. His opinion explains that "single-judge divisions are not new." To no one's surprise, lawyers have long brought "suit in their preferred forum." Judge Hendrix writes about Judge William Wayne Justice:
In fact, history is replete with examples of plaintiffs repeatedly litigating in the same court. For example, the federal government chose to bring numerous Texas public-school desegregation cases before the same judge in the Eastern District of Texas. [FN3]
[FN3] See United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285 (E.D. Tex. 1969); United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970); United States v. Texas, 342 F. Supp. 24 (E.D. Tex. 1971); United States v. Texas, 356 F. Supp. 469 (E.D. Tex. 1972); Doe v. Plyler, 458 F. Supp. 569 (E.D. Tex. 1978); United States v. Texas, 498 F. Supp. 1356 (E.D. Tex. 1980); United States v. Texas, 523 F. Supp. 703 (E.D. Tex. 1981); United States v. Texas, 506 F. Supp. 405 (E.D. Tex. 1981); United States v. Texas, 628 F. Supp. 304 (E.D. Tex. 1985); see also Frank R. Kemerer, William Wayne Justice: A Judicial Biography 118 (University of Texas Press, 1st ed. 1991).
Never heard of Judge Justice? You should have. Perhaps his most familiar decision was the Supreme Court case that came to be known as Plyler v. Doe. He also single-handedly controlled the Texas prison system for nearly two decades. His obituary in the New York Times observed that "he came to be called the most powerful man in Texas by those who agreed with his largely liberal decisions and the most hated by those who differed."
How did Judge Justice attract so many significant cases? He long held court in single-judge divisions. And civil rights litigants routinely filed cases in his court. David Richards, a civil rights litigator, observed in the Texas Observer how liberals judge-shopped to Judge Justice:
In the not so secret world of lawyers, venue is frequently the linchpin of success in litigation. Where a case is tried may be the most important factor in outcome. In short order the handful of Texas civil rights lawyers began to beat a path to Tyler, where the Judge heard every case filed in federal court. He issued landmark decisions on reform of the Texas juvenile justice system, the Texas prison system and the education of alien school children, to name just a few. Predictably, the Tyler docket became overcrowded and a new judge was assigned to hear a portion of the cases. We were forced to scramble a bit in our venue search, for a while one was assured of getting Judge Justice if you filed in Sherman, Texas then that forum became uncertain. In my last filing before him I had to pursue the Judge to Paris, Texas, where for a short time he had the entire docket.
It is not a secret that Judge Justice took steps to ensure that he maintained single-judge divisions. Mark Barringer wrote a book about case assignments on the Eastern District of Texas. It seems that between 1968 and 1970, Judge Justice had 100% of the filings in Tyler, Sherman, Paris, and Marshall. Between 1970 and 1979, Judge Justice maintained 100% of the cases filed in Paris. I could not determine the status of Judge Justice's docket between 1979 and 1982. In 1982, the Paris division was divided, so that Judge Justice would hear 2/3 of those cases. In 1984, Judge Robert Parker, a Carter appointee, was given 100% of the cases in Marshall and Paris. And in 1985, Judge Parker was given 100% of the assignments in Marshall, Texas. In 1992, Judge Justice was once again given 100% of all pending and new Paris division cases. A 1995 order preserved Judge Justice's 100% assignment of Paris cases. Judge Justice would take senior status in 1998, and he moved to Austin. That year, his case assignments were removed. The Paris division was removed by Congress in 2003.
Here is a summary that I think is complete. (Please e-mail me if I'm missing something; subtweets with screenshots are less helpful). Judge Justice appears to have had all of at least one division's case filings for the following periods:
- 1968-1970: 100% of Tyler, Sherman, Paris, and Marshall
- 1970-1979: 100% of Paris
- 1979-1982: Inconclusive
- 1982-1992: No 100% divisional assignment
- 1992-1997: 100% of Paris
- 1997-1998: No 100% divisional assignment
Today, Judge Justice is valorized on the left. The University of Texas named its public interest law center after Justice. Imagine that? The University of Texas honors a judge who sat in a single-judge division for decades, and routinely issued rulings in favor of like-minded litigants. Thankfully, there was no Twitter in the 1980s. Not everyone was so pleased. Professor Lino Graglia of the University of Texas said that Justice "wreaked more havoc and misery and injury to the people of Texas than any man in the last 25 years."
Long before Judges Kacsmaryk and Tipton, there was Judge William Wayne Justice. And Judge Justice is not alone. I have written about Judge Frank Johnson, who held a single-judge division in Montgomery, Alabama. Johnson, like Judge Justice, is lionized as a hero of the civil rights movement. I'm sure there are others.
As far as I am aware, the ABA did not adopt a resolution opposing Judge Justice's single-judge divisions. Judge-shopping is not new.
Update: The ABA also released a report in support of the resolution.
Fifth Circuit Holds That People Who Use Marijuana Don't Lose Second Amendment Rights (At Least When Sober)
Title 18 U.S.C. § 922(g)(3) bans gun possession by anyone "who is an unlawful user of or addicted to any controlled substance," including marijuana; the ban applies not just while a person is intoxicated, but also while the person is sober. Today's decision in U.S. v. Daniels, written by Judge Jerry Smith and joined by Judges Stephen Higginson and Don Willett, holds that this violates the Second Amendment:
Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence. Indeed, it is helpful to compare the tradition surrounding the insane and the tradition surrounding the intoxicated side-by-side. The Founders purportedly institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober. We must ask, in Bruen-style analogical reasoning, which is Daniels more like: a categorically "insane" person? Or a repeat alcohol user? Given his periodic marihuana usage, Daniels is firmly in the latter camp. If and when Daniels uses marihuana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness….
[T]here is a considerable difference between someone who is actively intoxicated and someone who is an "unlawful user" under § 922(g)(3). The statutory term "unlawful user" captures regular users of marihuana, but its temporal nexus is vague—it does not specify how recently an individual must "use" drugs to qualify for the prohibition. Daniels himself admitted to smoking marihuana fourteen days a month, but we do not know how much he used at those times, and the government presented no evidence that Daniels was intoxicated at the time he was found with a gun. Indeed, under the government's reasoning, Congress could ban gun possession by anyone who has multiple alcoholic drinks a week from possessing guns based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far….
The government suggests that, in the spirit of the drafts of the Second Amendment and the Militia Act, marihuana users threaten the public "peace." But at the time of the Founding, that notion referred specifically to violence or rebellion, not generalized public harm. And § 922(g)(3) is not limited to those with a history of violent behavior—not all members of the set of "drug users" are violent. As applied in this case, the government has not shown how Daniels's marihuana use predisposes him to armed conflict or that he has a history of drug-related violence.
Furthermore, even as the Founders were disarming Catholics and politically disaffected citizens, they left ordinary drunkards unregulated. The government has no meaningful response to the fact that neither Congress nor the states disarmed alcoholics, the group most closely analogous to marihuana users in the 18th and 19th centuries. As with the government's analogy to mental illness, we must ask: Which are marihuana users more like: British Loyalists during the Revolution? Or repeat alcohol users? The answer is surely the latter.
The Dangers of Giving Trump Impunity are Far Worse than those of Prosecuting Him
Giving presidents impunity for using force and fraud to try to nullify election results is far worse than any potential risk of prosecuting Trump.
Some criticisms of the indictment of Donald Trump for his efforts to overturn the outcome of the 2020 election turn on specific legal arguments to the effect that Trump may not actually be guilty of the crimes charged. I address some of those issues here and here. But there are also consequentialist concerns to the effect that prosecuting Trump might weaken confidence in the criminal justice system or trigger a slippery slope where other former presidents and high officials get prosecuted. In my view, such concerns are overblown. More importantly, they downplay or ignore the potentially awful consequences of not prosecuting Trump.
Harvard law Prof. Jack Goldsmith expresses slippery slope concerns about the prosecuting Trump in a recent New York Times op ed. He worries that the prosecution will deepen Republicans' already negative view of the Justice Department and "inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposing party, to the detriment of sound government." Josh Blackman agrees, and predicts future GOP administrations will try to prosecute Democratic politicians. He warns the consequences "will likely be terrible."
Maybe. But letting Trump off the hook is likely to be far worse. If Trump - or any president - is granted impunity for using force and fraud to try to stay in power after losing an election, future presidents could well repeat Trump's experiment. Lots of ambitious politicians would love to stay in power indefinitely. And if there are no penalties for trying, why not have at it? Some of those future leaders might even contrive to put together a more effective scheme of election nullification than the ramshackle scheme pursued by Trump.
If one of the reasons for not prosecuting Trump is that he has millions of followers who would be angry or lose confidence in the justice system as a result, that would incentivize future losing presidents to repeat Trump's Big Lie tactics. The more you rile up your supporters, the greater the chance of getting impunity for any crimes you might commit in office! That, in turn, would lead to more delegitimation of political and legal institutions, not less.
It is sometimes argued that Trump's misdeeds should be subject to political accountability, not criminal sanctions. This argument has a number of general flaws, including its neglect of the need for retribution for heinous crimes (merely losing office is not punishment enough), and the problems of polarization and widespread voter ignorance (which may prevent the electorate from assessing the situation correctly and acting on that knowledge). Partisan bias and polarization often lead voters to be excessively tolerant of the misdeeds of their own party's leaders, especially if punishing them means handing a victory to the opposing party.
Exclusive reliance on political accountability is particularly inappropriate in the case of Trump's election-related wrongdoing. The whole point of Trump's crime was in fact to undermine electoral accountability - the very process that is supposed to keep him in check. The threat of losing an election is not much of a deterrent for schemes to overturn elections.
Compared to this danger, the concerns raised by Goldsmith and Blackman are minor. We already have plenty of investigations of the executive by Congress, when the latter is controlled by the opposing party. Some are meritorious, others not. Increasing their number strikes me as not much of a problem. It might even have some good effects if it uncovers more executive wrongdoing.
Politically motivated prosecution is a more serious concern. But if the charges lack merit, powerful politicians have the resources and connections to secure topnotch lawyers who can help them beat the (unjustified) rap. If, on the other hand, they are justified, punishing more politicians may not be a bad thing. There is too much impunity in high places.
I do recognize the danger created by a situation where we have far too many laws on the books, and as a result almost anyone can potentially be charged with something. Democratic and Republican politicians could potentially endlessly prosecute each other for various petty offenses. I suspect, however, mutual deterrence will limit this problem, because members of the political class don't want to end up with mutually assured destruction. Moreover, truly petty prosecutions (e.g. - prosecuting a president for minor tax violations or for using marijuana in violation of federal law) are likely to backfire politically.
In addition, high-ranking politicians can reduce their exposure by being especially careful to avoid illegality. If political leaders start having to lead squeaky-clean lives, I will not shed many tears for them. Alternatively, fear of petty prosecution might even lead political leaders to repeal some of the many dubious criminal laws on the books. If so, that would be a great outcome - and a win for the rule of law.
Finally, the concern that prosecuting Trump will lead his supporters to take a more negative view of the Justice Department and the justice system generally is outweighed by the likely impact on public confidence of giving Trump impunity for his crimes. If the holder of the most powerful office in the land isn't punished for trying to nullify election results through fraud, that cannot but damage public confidence in the legal system among the large majority of Americans who recognize Trump did in fact lose the 2020 election. And if Trump gets off even as relatively low-level January 6 rioters get punished, that is likely to create (justified) perceptions that there is a double standard under which the powerful get more lenient treatment than ordinary citizens.
Perhaps, as Goldsmith and conservative commentator Ramesh Ponnuru argue, it would have been better if Trump had been convicted at his second impeachment trial. I myself advocated conviction, and agree with Ponnuru that the Senate committed a grave error in acquitting Trump.
But the failure of the impeachment process makes it all the more necessary to pursue criminal charges. Indeed, GOP Senate leader Mitch McConnell held out the possibility of criminal prosecution as one justification for his vote to acquit Trump in the impeachment process:
Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.
Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were "still liable to be tried and punished in the ordinary tribunals of justice."
We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.
Time for some "individual accountability" for Trump through the criminal justice system!
In sum, the risks of not prosecuting Trump are far more severe than those of holding him accountable for his election-related crimes.
These considerations may not matter much if you think Trump is legally innocent of the charges against him. But if not, it would be a terrible mistake to grant him impunity from prosecution out of dubious consequentialist concerns. The risks of letting him off the hook are far worse.
Alleged "Psychic Intuition" Isn't Enough to Make a Federal Claim "Plausible" Enough to Withstand Dismissal
An allegedly psychic "Internet sleuth" alleged a professor was involved in the University of Idaho student murders; the professor sued; then the "sleuth" countersued.
From yesterday's decision in Scofield v. Guillard, written by Chief Magistrate Judge Raymond E. Patricco (D. Idaho); see here for more on the plaintiff's libel lawsuit (this decision is about the defendant's counterclaims):
This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleges that she never met the students and was not involved with their murders in any way. Notwithstanding, Plaintiff alleges Defendant Ashley Guillard posted over 100 sensational TikTok videos falsely claiming that she had an inappropriate romantic affair with one of the victims and then ordered the murders to prevent the affair from coming to light. In turn, Plaintiff initiated this action on December 21, 2022 (Dkt. 1), asserting two defamation claims against Defendant. One is premised upon false statements regarding Plaintiff's involvement with the murders themselves. The other premised upon false statements regarding Plaintiff's romantic relationship with one of the murdered students….
Within her Answer and Counterclaims, [the self-represented] Defendant denies that she defamed Plaintiff because the accusations made against Plaintiff in Defendant's TikTok videos are "substantially true." Defendant maintains that she "used her spiritual brain, intuition, spiritual practice, and investigative skills to uncover the truth regarding the murder of the four University of Idaho students; and published her findings on her TikTok social media platform." Relevant here, Defendant also affirmatively asserts 11 counterclaims against both Plaintiff and her legal counsel.
Defendant's counterclaims rely on two premises: (i) Plaintiff "initiated, planned, and executed the murders" of the four University of Idaho students to cover up an affair she had with one of the victims; and (ii) Plaintiff sought to "evade suspicion" for these murders by conspiring with her counsel to file a "frivolous" Complaint with "falsified factual allegations" that (a) supported the defamation claims against Defendant, and (b) deprived Defendant of her constitutional rights. Defendant further asserts that the conspiracy between Plaintiff and her counsel extended beyond the mere filing of Plaintiff's Complaint. It also included Plaintiff's counsel's defamatory statements to the media about Plaintiff's underlying lawsuit against Defendant….
Plaintiff (Scofield) moved to dismiss the counterclaims, and the court agreed:
The Trump Indictment Hangover
The high may feel good, but the hangover will be terrible.
In politics, as in nature, every action has an equal and opposite reaction. When congressional Democrats impeached President Trump, twice, it was inevitable that Republicans would seek to use impeachment against democrat politicians. And now that the Democratic presidential administration has indicted President Trump, it will inevitably come to pass that Republicans will seek to indict Democratic politicians. Two recent pieces in the New York Times reflect these Newtonian reactions.
First, Carl Hulse writes that impeachments and censures, once rare, have become the new normal in Congress. There are currently investigations to impeach the Secretary of Homeland Security, the Attorney General, and even President Biden himself.
Proposals to censure lawmakers and impeach members of the Biden administration are piling up quickly in the House in an illustration of how once-solemn acts are becoming almost routine as the two parties seize on these procedures as part of their political combat. And the trend is only likely to intensify given the enmity between Republicans and Democrats over a new federal indictment brought against Mr. Trump for his efforts to overturn the 2020 election, and the G.O.P.'s desire to even the score.
The proliferation of censures and cries for impeachment is troubling to some who see it as a threat to the standing of the institution as well as diminishing the weight such punishments are supposed to carry. Censure is the congressional penalty just below expulsion.
These reactions were entirely foreseeable:
But it is a truism of the contemporary Congress that once one party does something the other sees as a breach, the aggrieved party will return fire once it gets the chance — and perhaps even take things up a notch. Tit for tat is the coin of the congressional realm. . . .
"I said two years ago, when we had not one but two impeachments, that once we go down this path it incentivizes the other side to do the same thing," said Senator Mitch McConnell, Republican of Kentucky and the minority leader.
"Impeachment ought to be rare," he said, adding, "This is not good for the country."
In December 2019, I warned in the Atlantic that Trump's first impeachment could set a dangerous precedent:
Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States Code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president's duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.
Just because Trump could have been impeached does not mean he should have been impeached. The same goes for indictment.
There is a second piece in the Times that speaks to our downward spiral. Jack Goldsmith writes that the D.C. indictment of Trump "may have terrible consequences."
There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party's probable nominee.
This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration's responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.
Goldsmith adds that Republicans already hold a dismal view of DOJ in light of the Russia-Russia-Russia saga, in tandem with Hunter Biden's apparent sweetheart deal. Goldsmith explains that Republicans, when in power, will seek to exact payback:
The prosecution may well have terrible consequences beyond the department for our politics and the rule of law. It will probably inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposing party, to the detriment of sound government.
And such charges won't be difficult. Smith's prosecution, at bottom, accuses Trump of lying to aggrandize his power. Virtually every person who achieved high office engaged in related conduct.
It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. These practices will probably be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.
Back in August 2022, I explored the dilemma facing Merrick Garland. Ultimately, he chose to indict--that decision was his, and not that of Jack Smith. In some regards, this decision was Newtonian as well. In an alternate reality, Justice Garland would be on the Supreme Court, Roe v. Wade would still be on the books, President Hillary Clinton would be halfway through her second term in office, and Donald Trump, well, he would probably still be under indictment in New York. But that timeline did not happen. We do not know where Trump's indictment will lead. But I agree with Goldsmith that it will likely be terrible.
Today in Supreme Court History: August 9, 1974
8/9/1974: President Richard Nixon resigns from office, President Gerald Ford takes oath of office.
Justice Barrett's Shadow Docket Policy: Do The Opposite Of Whatever The Fifth Circuit Did (Updated)
Forget Doe v. Mills. Justice Barrett will grant relief on the shadow docket when the Fifth Circuit steps out of line.
Garland v. Vanderstok presented a challenge to the "Frame or Receiver" rule. (The press has dubbed it the "Ghost Gun" regulation.) The district court vacated the rule, and the Fifth Circuit denied a stay. The Solicitor General then petitioned for a stay of the lower-court ruling on the Supreme Court's emergency docket. Circuit Justice Alito entered a temporary administrative stay. When that time expired, Circuit Justice Alito extended the administrative stay for another four days, until Tuesday, August 8. What did this shadow docket delay mean? On Sunday, I observed that the extension was designed to allow dissenters to prepare a written dissent, or to allow more time for a majority to coalesce.
On Tuesday, the Supreme Court stayed the lower court's ruling. The vote was 5-4, with Chief Justice Roberts and Justice Barrett in the majority. Justices Thomas, Alito, Gorsuch, and Kavanaugh noted their dissent, but they did not prepare a dissent. The four-day extension was apparently not granted to allow the dissenters time to prepare a dissent. (It is possible a draft dissent was circulated but was never published.) Rather, it seems the purpose of the extension was to try to cobble together a fifth vote to deny a stay. But a fifth vote was not to be had. Why? Because Justice Barrett declined to cast that vote.
Now Justice Barrett has told us that we should "read the opinion" to understand the Court's shadow docket rulings. But there was no analysis here. Just an unsigned order with no analysis.
What should we make of Justice Barrett's decision here? Well, by my count, since Doe v. Mills in October 2021, Justice Barrett has (likely) voted to grant or deny a stay on the shadow docket six times, where certiorari before judgment was not granted. (I have a few caveats noted below). Those six cases are Austin v. U.S. Navy Seals 1-26 (likely granting stay), NetChoice v. Paxton (vacating stay), United States v. Texas (granting stay), FDA v. Alliance for Hippocratic Medicine (likely granting stay), Danco Laboratories v. Alliance for Hippocratic Medicine (likely granting stay), and now Garland v. Vanderstok (granting stay).
All six cases share something in common: Justice Barrett did the opposite of whatever a conservative Fifth Circuit panel did. When the Fifth Circuit granted a stay, Justice Barrett vacated the stay. When the Fifth Circuit granted an injunction, Justice Barrett stayed the injunction. And all of those Fifth Circuit panels included well-known conservative jurists. Indeed, the first three cases were presided by Edith Jones, whom I've described as the conservative lodestar of the Fifth Circuit.
By my count, with a few caveats, since Doe v. Mills, Justice Barrett has not granted shadow docket relief on any application from any other circuit. I am omitting Glossip v. Oklahoma and Mountain Valley Pipeline v. Wilderness Society, as no dissents were noted, and it is not feasible to count unrecorded dissents. And cert before judgment was granted in Arizona v. Mayorkas and Department of Education v. Brown.(Please e-mail me if I am missing a case).
Meanwhile, Justice Kavanaugh, who joined the Doe v. Mills concurrence, voted with Justices Thomas, Alito, and Gorsuch in United States v. Texas and in Garland v. Vanderstock. I don't think there is much point parsing Doe v. Mills further. (I wrote about Barrett's concurrence in Mills here and here). If Justice Barrett thought there was some reason to grant a stay in Vanderstock, she could have told us. But she said nothing--even with an extra four days to think about it. Doe v. Mills was simply a restatement of the defining feature of Justice Barrett's jurisprudence: caution. And especially cautious where the Fifth Circuit steps out of line.
Progressives should be grateful that the Supreme Court is not the Fifth Circuit.
Update: Steve Vladeck identified eight cases that I did not discuss. I was not looking for death penalty cases, which accounts for Hamm and Crow.
I did not include Ohio v. Department of Labor and NFIB v. OSHA as those cases were decided following oral argument, with a reasoned opinion--not your typical shadow docket fare.
In Milligan, certiorari was granted before judgment. In Ardoin v. Robinson, certiorari was granted before judgment, and the case was held in abeyance while Milligan was pending. This is the case from the Fifth Circuit panel Steve mentioned. In Merrill v. Caster, certiorari was also granted before judgment.
Louisiana v. American Rivers was a stay of an application arising from the Ninth Circuit Clean, without a grant of cert before judgment. I missed that one.
The 14:
1. Crow
2. NFIB
3. Ohio v. DOL
4. Milligan
5. Caster
6. Navy SEALs
7. American Rivers
8. NetChoice
9. Ardoin
10. Hamm v. Smith
11. AZ v. Mayorkas*
12. Danco
13. FDA
14. Vanderstok* — Josh accounts for this by asserting that it doesn't count if the Court granted cert.
— Steve Vladeck (@steve_vladeck) August 9, 2023
Second Amendment Roundup: The Supreme Court stays vacatur of ATF regulations.
The 5th Circuit finds plaintiffs likely to succeed in challenging another set of ATF rules that implicate the Second Amendment.
On August 8, the Supreme Court issued an order staying an order by a district court in Texas, which the Fifth Circuit had affirmed, vacating new ATF regulations that expand the definition of "firearm" beyond what Congress enacted in the Gun Control Act (GCA). Justices Thomas, Alito, Gorsuch, and Kavanaugh would have denied the application for a stay.
The Fifth Circuit has also reversed an order denying a preliminary injunction against a different set of ATF regulations on the grounds that the plaintiffs are likely to succeed on the merits. The Fifth Circuit temporarily enjoined the regulations to allow the district court to consider the other preliminary injunction factors.
ATF adopted two final rules in 2022. In the first, ATF expanded the definition of "firearm" far beyond that enacted by Congress. In the second, ATF expanded the definition of "rifle" beyond that in the National Firearms Act (NFA) to include configurations that it previously deemed not to be rifles. Both of these new regulations increase ATF's grip on both the firearm industry and consumers, exposing them to a wider net of criminal prohibitions under the GCA and NFA.
The Fifth Circuit put the brakes on both sets of regulations. While the primary issue in both cases is whether ATF has power to expand the definitions set by Congress, the Second Amendment keeps gurgling below the surface. Here's the backstory.
Video Privacy Protection Act Claim Can Go Forward Against Google Based on Google's Alleged …
disclosure of an elementary school student's YouTube video watching history to the school, which was investigating him for supposed sexual harassment of teacher.
From Magistrate Judge Virginia DeMarchi's opinion last week in M.K. v. Google LLC (N.D. Cal.):
The following facts are based on the allegations of the FAC [First Amended Complaint]. In 2020, M.K. was a student at a public elementary school in the District. In March 2020, due to the COVID-19 pandemic, the District closed its school buildings, and M.K. began attending school remotely using a Google platform. According to the FAC, "M.K's parents were not given an option to opt out or an alternative to receive education if they did not wish to submit M.K. to the risks of attending school on the Google platform."
The District assigned M.K. a Google account. Using this account, M.K. "[was] allowed to access online videos provided by Google's YouTube, a video sharing platform[,] as well as Google [Slide Show], a platform that allows individuals to watch videos as well as insert videos and messages into slideshows to watch." The District logged M.K. out of his Google account at the end of each school day.
According to the FAC, M.K. used multiple devices to access his Google account, including his personal iPad and, later, a Google Chromebook computer supplied by the District. M.K. watched videos on Google's YouTube and Slide Show platforms while logged into the Google platform for school. M.K.'s teachers informed his parents that M.K. was watching videos during class when he should have been focused on his lessons. M.K.'s teachers further advised M.K.'s parents that the teachers could see M.K.'s online activity during class time. Based on this information, M.K. alleges that Google gave the District and other unidentified third parties access to M.K.'s online activity.
On or about January 14, 2021, one of M.K's teachers reported receiving a sexually explicit communication from M.K. via a Google chat message. M.K. alleges that his Google account had been hacked and that he did not send the message. The District investigated the message incident. As part of that investigation, the District obtained and reviewed information about the dates and times M.K.'s Google account was accessed, the activities the account user engaged in while logged in to the account, and the IP addresses used to access the account.
According to the FAC, on or about January 27, 2021, M.K.'s teacher "scheduled a parent-teacher zoom call and made a teacher suspension on the basis of 'Sexual Harassment via Google Classroom.'" The [Complaint] describes the suspension variously as a "teacher removal from class," a two-day suspension from school, an exclusion from "his regular school day" that lasted "weeks," and a "permanent[ ]" removal from class. M.K. eventually stopped attending school in the District….
The court held that this sufficiently alleged a violation of the Video Privacy Protection Act:
Virginia Court Rejects Retroactive Attempt to Seal Name Change Records
The decision came despite the applicant's objection, ten months after the name change, that the change was needed to prevent "potential endangerment and/or discrimination through publicly disclosed record of the transgender applicant."
From In re: E.B.M., decided July 26 by Judge David A. Oblon (Va. Cir. Ct. Fairfax County):
The issue before the Court is whether it may seal from public inspection a name change order and related records 21-days after entry of the order. The Court holds it may not do so.
Even if the Court had authority to seal the name change order and related records, the movant in the present case failed to proffer a serious threat to her health or safety to justify sealing the public record.
For both reasons the Court will issue an Order denying the motion to seal….
Over ten months after the Court entered the name change order, on July 12, 2023, E.B.M. filed the present motion, citing no legal authority for the Court to seal the name change Order and related records so long after entry of the Order.
E.B.M. told the Court she wanted to seal the name change Order and related records due to a general fear of harm from transgender community opponents. She cited no current particularized or specific harm towards her arising from the public name change….
Today in Supreme Court History: August 8, 2009
8/8/2009: Justice Sonia Sotomayor takes oath.
Of Babysitters and Major Questions
Survey data casts doubt on the textualist rationale for the major questions doctrine that I and others have advanced. But perhaps not as much doubt as it might seem.
The once-obscure "major questions doctrine" (MQD) has become one of the most controversial rules of legal interpretation applied by federal courts. Over the last two years, the Supreme Court has used it in several major cases, including the eviction moratorium decision, the OSHA large-employer vaccine mandate case, West Virginia v. EPA, and - most recently - Biden v. Missouri, the ruling striking down President Biden's plan to forgive $430 billion in student loan debt. The doctrine requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" If such a broad delegation of power isn't clear, courts must rule against the executive's claims that it has the authority in question.
Critics of MQD have argued that it is incompatible with textualism, the theory - endorsed by many conservative jurists, among others - which holds that courts must generally interpret statutes in accordance with their "ordinary meaning." In turn, some defenders of MQD - myself included - have argued that the doctrine is actually compatible with textualism, because people ordinarily expect clearer, more unequivocal authorization for broad delegations of authority than relatively narrow ones. Most notably, Justice Amy Coney Barrett offered an argument along these lines in a concurring opinion in the student loan case.
In an important new article, legal scholars Kevin Tobia, Daniel Walters, and Brian Slocum (TWS) empirically test Barrett's now-famous "babysitter" hypothetical to see if ordinary Americans really do interpret these kinds of situations in the way Justice Barrett and other MDQ advocates expect. After all, if "ordinary meaning" is the relevant standard, than the views of ordinary people become crucial - perhaps more so than those of judges, academics, or other potentially unrepresentative elites.
The results are not favorable to MQD. We who defend the theory have to admit that. At the same time, the test is far from a conclusive one.
Here's Barrett's famous babysitter hypothetical:
Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: "Make sure the kids have fun." Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter's trip consistent with the parent's instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….
TWS turned this scenario into a series of survey question and asked a representative sample of 500 people whether they thought the babysitter's actions were "reasonable" and whether she had gone beyond the parents' instructions. Specifically, they describe the following situation:
Imagine that Patricia is a parent, who hires Blake as a babysitter to watch Patricia's young children for two days and one night over the weekend, from Saturday morning to Sunday night. Patricia walks out the door, hands Blake a credit card, and says: "Use this credit card to make sure the kids have fun this weekend.
They then ask whether Blake violated the rule laid down by Patricia in various scenarios, including one where "Blake uses the credit card to buy the children admission to an amusement park and a hotel; Blake takes the children to the park, where they spend two days on rollercoasters and one night in a hotel."
To my surprise, only 8% of the sample thought Blake violated the rule in this situation. Like Justice Barrett, I initially thought it pretty obvious that the sitter was in the wrong here. But the survey results suggest most ordinary people think otherwise. That, in turn, implies most do not believe special clarity is needed to indicate a major delegation of authority, as opposed to a minor one.
As already noted, I have to admit this result is evidence against my view. Moreover, I was also wrong to assume my intuitions were shared by the general public. I routinely have occasion to warn students and others that the views of educated elites (including their own) are often unrepresentative. One of the reasons why we need survey data is precisely because our intuitions about public opinion are often unreliable. I should have been more mindful of my own strictures on this point!
In this instance, I was relying in part on my experience as both a parent and a babysitter (I did a lot of babysitting work as a teenager). But other parents and sitters (both groups are large enough that they likely had significant representation in the sample) may have different intuitions than I do.
However, a closer look at this question suggests it may not prove as much as it might seem. One crucial shortcoming is that a babysitter who is allowed to stay with the children by herself for an entire weekend and direct their activities throughout that time, already has sweeping authority. The addition of a road trip to an amusement park may be only a modest extension of that power.
That's true in terms of the amount of authority she has over the children. But it may also be true in purely monetary terms. A sitter trustworthy enough to entrust the children to for an entire weekend can, in this day and age, cost some $20-25 per hour, or even more. Some relatively simple math shows that the addition of what may be $200-300 for a one night hotel stay and amusement park tickets may not add that much compared to the baseline expenses of employing the sitter for two days.
On top of that, a sitter allowed to stay with the kids for an entire weekend, by herself, is likely to have a relationship of trust with the parents (or at least come highly recommended). If so, it might be understood that she has broad discretion to do as she wishes.
I don't know to what extent the survey respondents took account of these types of considerations. But the possibility that many of them did so makes this a less compelling test of MQD theory than it might seem at first sight. I don't blame the authors for overlooking these aspects of the scenario. I made the same mistake when I first read Barrett's concurrence. Only reading the TWS paper - and its (to me) unexpected results - prompted me to think about the situation more carefully.
But Justice Barrett herself actually anticipated the possibility there might be complications that make the babysitter's actions seem more defensible:
Perhaps there is obvious contextual evidence that the babysitter's jaunt was permissible—for example, maybe the parent left tickets to the amusement park on the counter. Other clues, though less obvious, can also demonstrate that the babysitter took a reasonable view of the parent's instruction. Perhaps the parent showed the babysitter where the suitcases are, in the event that she took the children somewhere overnight. Or maybe the parent mentioned that she had budgeted $2,000 for weekend entertainment. Indeed, some relevant points of context may not have been communicated by the parent at all. For instance, we might view the parent's statement differently if this babysitter had taken the children on such trips before or if the babysitter were a grandparent.
While Barrett may have viewed such complications as unusual exceptions to a general rule, many survey respondents may have assumed that such a relationship of trust or other "contextual evidence" is commonplace when parents entrust a sitter with their kids for an entire weekend.
In my own career as a babysitter, I usually had more discretionary power the more time I spent with the kids. More if I spent all day, as opposed to just a couple hours. And more if I had taken care of these particular kids several times before, than if this was my first time.
As a teenager doing occasional part-time work a few hours per week, I never stayed with any of my charges for an entire weekend. But such things are far more common for a professional sitter or nanny, particularly if that person is an adult who does childcare work full-time, or at least for many hours per week. When my wife and I leave the kids in the charge of a sitter overnight, it is almost always with such a trusted professional. And that person will enjoy considerable discretion, in part because we have confidence in her and her experience. That's very different from Congress delegating power to executive branch agencies that may well end up under the control of an opposing political party - if not now, then after the next presidential election. Of course, as already noted, it may be that other parents (and other sitters) have different experiences, and make different assumptions.
Despite these caveats, the TWS survey evidence does still undercut the case for MQD to some extent. But we need more and better survey data to get anything approaching a definitive understanding of popular attitudes on this subject. Ideally, I would want to ask a variety of different questions about various types of vague delegations of power to see whether respondents believe more precision is needed for a broad claim of authority, as opposed to a narrow one. The battery of questions should include both everyday examples (like the babysitter scenario), and hypotheticals involving interpretation of laws, as well. I think it should also include cases where, unlike in the babysitter scenario, there is not likely to be a preexisting relationship of trust, or a strong baseline understanding that the agent gets very broad discretion.
As TWS recognize, textualism is not the only possible rationale for MQD. It can also be defended on substantive grounds. MQD may also look stronger on some variants of textualism than others. For example, things may be different if we assume the relevant "ordinary meaning" is that understood by observers knowledgeable about the particular area of policy in question, as opposed to members of the general public, most of whom may know little or nothing about it.
There is much more to to the TWS article than the babysitter question. For example, they also use other survey data to develop an extensive critique of Ilan Wurman's textualist rationale for MQD, which is very different from Barrett's and mine. I have reservations about both Wurman's initial argument, and the TWS critique thereof (may post my rconcerns about the latter at some future time).
If you're interested in the debate over MQD, read the entire TWS article, as there's a lot there. Far more than I can hope to cover in this post.
See also Josh Blackman's post on TWS's analysis of the babysitter question. Josh suggests parents may have different views than non-parents. That may well be true. But, despite declining rates of childbirth, it's still the case that a majority of adult Americans have had at least one child. That makes it unlikely that the TWS result can be explained primarily by childless people being more willing to side with the sitter than parents.
Monday Open Thread
What's on your mind?
Two Procedural Orders from the Trump Media & Technology Group Libel Lawsuit Against the Washington Post
The factual backstory (just a snippet), as summarized in the Post's notice of removal to federal court:
In its Complaint, Plaintiff asserts a claim for defamation and a claim for conspiracy to defame against the Post. Compl. at ¶¶ 21-32. Plaintiff operates a social media platform called "Truth Social." Id. at ¶1. Plaintiff alleges that on May 13, 2023, the Post published an article allegedly reporting that plaintiff arranged an $8 million loan from a Caribbean bank associated with servicing the adult entertainment industry. Id. at ¶¶11-12. Plaintiff asserts causes of action for defamation and conspiracy. Plaintiff alleges compensatory damages of at least $2,780,000.00 and punitive damages of at least $1,000,000.00.
(You can also see the full Complaint.) The orders today from Judge Thomas Barber:
Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss" (Doc. 17) is hereby stricken. Plaintiff's memorandum violates the page limitation imposed by Local Rule 3.01(b). The memorandum also appears to violate the typography requirements imposed by Local Rule 1.08. Plaintiff may file a memorandum in opposition that conforms to the Local Rules on or before August 14, 2023….
"Defendant WP Company LLC's Motion for Leave to File a Short Reply Brief" (Doc. 18) is denied. If necessary to resolve the pending motion, the Court will direct the parties to file supplemental memoranda or set a hearing to further address the legal issues and arguments in this case. Defendant's motion for leave criticized Plaintiff's responsive memorandum as violating the page limitations imposed by the Local Rules. Defendant's point is correct but, ironically, Defendant's motion for leave also violates the Local Rules. It offers substantive argument in violation of the prohibition on filing a reply without leave of court. See Local Rule 3.01(d). It also arguably exceeds the page limit of three pages "inclusive of all parts." Id….
Finally, the closing sentences included in both orders:
The parties are encouraged to adhere to the terms of Rule 1 of the Federal Rules of Civil Procedure, which provides that "[t]hese rules… should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." Unnecessary motion practice, nit-picking, gamesmanship, and "gotcha" litigation tactics are a complete waste of everyone's time and do not further the just, speedy, and inexpensive determination of the issues in this, or any other, proceeding….
Hawaii Butterfly Knife Ban Violates Second Amendment
So the Ninth Circuit held today (Teter v. Lopez), in an opinion by Judge Carlos Bea, joined by Judges Daniel Collins and Kenneth Lee.
The butterfly knife, also known as the "balisong," has a disputed origin. Some sources say it originated in France; others, the Philippines. It is anywhere from a few hundred to over a thousand years old. Regardless of its origin, the butterfly knife resembles an ordinary pocketknife, a tool that has been used by Americans since the early 18th century (at the very latest). See State v. Delgado (Or. 1984). Like a pocketknife, the butterfly knife comprises a handle and a folding blade, the cutting edge of which becomes covered by the handle when closed. Unlike a pocketknife, however, the butterfly knife's handle is split into two components. Together, these two components fully encase the blade when closed and rotate in opposite directions to open. With a few short, quick movements, an experienced user can open a butterfly knife with one hand….
Risk of Physical Harm to Woman Involved in Ghislaine Maxwell Litigation May Justify Sealing Her Identity,
holds the Second Circuit, though it leaves it to the trial court to consider the facts further.
From Doe 107 v. Giuffre, decided Wednesday by the Second Circuit, in an opinion by Judges José A. Cabranes, Rosemary S. Pooler & Reena Raggi (Doe 107 alleges that "the documents ordered unsealed identified her, among other things (and falsely, we assert) as having had sexual relations with Ms. Maxwell as well as witnessing sex acts between other named persons"):
Objector-Appellant Doe 107 appeals from the November 18, 2022 order unsealing certain litigation materials that identify her. Doe 107 argues that the District Court abused its discretion by "ignor[ing]" her assertion that identifying her "could place her in mortal danger in her culturally conservative home country," in which "'honor' killings are a real risk," and "instead concluding [that] she … offered no more than generalized concerns of adverse publicity." We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal….
On the record before us, we cannot confidently hold that the District Court did not err in concluding that Doe 107's proffered facts constituted only "generalized concerns of adverse publicity [that] do not outweigh the presumption of public access." In her submission to the District Court, Doe 107 stated that she had received "'hate mail' from someone who saw [her] name listed as a witness who may have information regarding [Jeffrey] Epstein's and [Ghislaine] Maxwell's alleged illegal conduct." Doe 107 also stated that she resides in a country "where 'honor' killings are a real risk.".
We accordingly remand the cause so that the District Court may explore—with supplemental submissions from Doe 107 as necessary—whether Doe 107 has raised more than "generalized concerns of adverse publicity" that outweigh the presumption of public access to the litigation documents identifying her.
Doe is represented by Richard W. Levitt (Levitt & Kaizer).
Florida Appellate Court Rejects Third Circuit's Reasoning as to Felons and the Second Amendment
From Edenfield v. State, decided Wednesday, in an opinion by Judge Bilbrey and joined by Judge Winokur, with Judge Long concurring in the result (for more on the Range case, see here):
We deny Appellant's amended motion for rehearing, rehearing en banc, and to certify a question of great public importance. We write to explain why we will not apply the reasoning in a federal appeals court decision, decided after our opinion affirming Appellant's conviction for possession of a firearm by a convicted felon, to Appellant.
Appellant argues that we should rely on Range v. Attorney General (3d Cir. 2023) (en banc), to grant rehearing. Range was convicted of "one count of making a false statement to obtain food stamps in violation of Pennsylvania law." This offense was a misdemeanor, but because Range faced a potential term of imprisonment exceeding one year, he was prohibited from possessing a firearm under federal law.
Range brought a challenge to section 922(g)(1) in federal court claiming that the law "violates the Second Amendment as applied to him." The Third Circuit agreed with Range. It held that the "law-abiding, responsible citizens" language from District of Columbia v. Heller (2008), was dicta. It also held that the Government failed in its burden to "show that § 922(g)(1), as applied to him, 'is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.'"
The holding in Range notwithstanding, we will continue to apply the "law-abiding, responsible citizens" language from Heller in upholding the constitutionality of the crime of possession of a firearm by a convicted felon. As the court in United States v. Rozier (11th Cir. 2010), explained there are two reasons to apply the "law-abiding, responsible citizens" language:
