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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Injunction Against Texas Anti-BDS Law Vacated on Procedural Grounds
I'm on the run, but I thought I'd note it; it's A & R Engineering & Testing, Inc. v. Paxton.
School Board Members Use "Anti-Doxing" Law to Sue Critics for Publicizing the Members' Employers
An Oregon trial court allowed the case to go forward, but the Oregon Court of Appeals threw it out.
[UPDATE: For a loosely similar decision from the Minnesota Court of Appeals in 2012, see this post.]
From DeHart v. Tofte, decided Thursday by the Oregon Court of Appeals (Judges Douglas Tookey, Jacqueline Kamins, and Erika Hadlock):
In this case involving claims brought under Oregon's recently enacted "anti-doxing" statute, ORS 30.835, three defendants appeal a limited judgment denying their special motions to strike under Oregon's anti-SLAPP statute, ORS 31.150.
Each of the three plaintiffs in this case [Brown, DeHart, and Shannon] is an elected public official—namely, an elected director on the Newberg School Board (the School Board). Each plaintiff voted on a motion directing the superintendent of Newberg schools to, among other things, "remove all Black Lives Matter (aka BLM) signs, flags, and placards, apparel, buttons, and all other modes of display, and all instances of the symbol known as the Pride Flag from District facilities immediately" (the Ban).
Following the Ban, defendants [Schwanz, Tofte, and Brookfield]—each of whom has a child or children attending Newberg public schools, and each of whom disagreed with the Ban—posted information about plaintiffs' employers in a private Facebook group called "Newberg Equity in Education" (NEEd).
Plaintiffs sued under the anti-doxing statute, which allows people to sue "for improper disclosure of private information" based on a showing that:
[a] The defendant, with the intent to stalk, harass or injure the plaintiff, knowingly caused personal information to be disclosed;
[b] The defendant knew or reasonably should have known that the plaintiff did not consent to the disclosure;
[c] The plaintiff is stalked [as defined in Oregon criminal and civil stalking statutes], harassed or [bodily] injured by the disclosure; and
[d] A reasonable person would be stalked, harassed or injured by the disclosure….
Today in Supreme Court History: July 10, 1832
7/10/1832: President Jackson vetoes the bill to recharter the Second Bank of the United States. He wrote that the bill was unconstitutional.
US Can do Well by Doing Good in Opening Our Doors to Chinese Immigration
As Washington Post columnist Catherine Rampell explains, doing so will simultaneously strengthen the US and weaken a major geopolitical rival. It can also rescue many Chinese from terrible oppression.
If there's one thing Republicans and Democrats tend to agree on, it's that China has become America's most dangerous geopolitical adversary. But, as Washington Post columnist Catherine Rampell explains in a recent article, we are shooting ourselves in the foot in this competition by severely restricting Chinese immigration to the US. Opening our doors is an easy way to strengthen the US at Xi Jinping's expense:
Whatever the specificmotivations, the number of people leaving China and seeking to make (or invest) their fortunes abroad is rising again, according to data from the U.N. Population Division….
China's loss presents a huge opportunity for the United States…..
Immigrants have long been the lifeblood of the U.S. economy and innovation. For more than a century, we have benefited from waves of peopleleaving difficult conditions in their home countries. In fact, the U.S. government has often worked hard to poach the top talent of our geopolitical adversaries. During the mid-20th century, for instance, we took in scientists from Germany (both those who worked for the Nazis and those persecuted by them); and part of our Cold War policy included siphoning off Soviet superstars.
These and other immigrants turned out to be productive workers, who in turn made our own homegrown workers more productive. This served our interests economically, militarily and geopolitically. It's great marketing for Western democratic values, after all, to be a desirable destination for your rivals' top talent….
Plus, bringing this coveted talent here means that same talent is not available there.
For all these reasons, I've previously argued for exploiting Russia's brain drain. The same arguments apply to China, too. Perhaps especially to China, given that U.S. political leaders openly fear being surpassed by Chinese innovation or getting locked out of global supply chains that intersect with China….
But however much money we throw at semiconductor or battery manufacturing, we will struggle to achieve our own ambitions if we lack the talent to build and operate those high-tech facilities, as we now clearly do. As Cato Institute scholar Scott Lincicome put it: You can be a China hawk or you can be an immigration hawk, but you can't really be both.
I have made similar arguments with respect to Chinese migration here and here. As Rampell notes, most of the same points apply to Russian migration, as well. In both cases, we can simultaneously bolster our economy, weaken an adversary, and score valuable points in the international war of ideas against dictators like Vladimir Putin and Xi Jinping. The latter can't credibly claim their authoritarian regimes are the wave of the future if millions of their people "vote with their feet" for our system over theirs.
The security risk argument against doing this is overblown (Chinese immigrants actually have a lower rate of espionage than the US population as a whole), and easily managed by steps like limiting access to classified information.
Sadly, as Rampell points out, the political winds are actually blowing in the wrong direction on this:
Right now, nervous Chinese professionals and entrepreneurs are streaming to Singapore and other countries. The United States should be encouraging them to bring their talents here instead. Unfortunately, we've mostly done the opposite.
Some U.S. senators, for instance, have pushed to deny visas to Chinese citizens who want to come to the United States to study science, citing supposedly unmanageable national security risks (even though no one is suggesting visiting foreign nationals, from any country, go unvetted). Scholars of Chinese descent already here are reportedly choosing to leave tenured jobs at U.S. institutions, citing a hostile political and cultural environment…
Even some state governments are getting in on the red-baiting. Florida recently passed a law banning Chinese nationals from buying property, with several other states following suit.
In addition to the economic and national security advantages of opening doors to Chinese immigration, there is also a great moral benefit: freeing large numbers of people from horrific authoritarian oppression. Chinese seeking freedom should not be forcibly confined in an increasingly repressive dictatorship merely because they were born in the wrong place or to the wrong parents.
As in the case of Russians, it is wrong to claim Chinese should be kept out because they have some kind of collective responsibility for the evil perpetrated by their government. The same goes for claims they have a moral duty to stay home and "fix their own country."
During the Cold War, US policymakers - including many conservative Republicans - understood the economic, security, and moral benefits of openness to migration from hostile communist nations. Sadly, that common-sense wisdom has faded, especially - though certainly not exclusively - on the political right. It's long past time we rediscover it.
Today in Supreme Court History: July 9, 1868
7/9/1868: The Fourteenth Amendment is ratified.
Tennessee Ban on Sexual-Identity-Related Medical Procedures for Minors Is Likely Constitutional,
a Sixth Circuit panel concludes (by a 2-1 vote) in staying an injunction against the law pending appeal.
[UPDATE: I hadn't realized that Jonathan Adler had posted about this before me; see his post and its comments here.]
From L.W. v. Skrmetti, decided today by the Sixth Circuit, in an opinion by Judge Jeffrey Sutton joined by Judge Amul Thapar:
Tennessee enacted a law that prohibits healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors. After determining that the law likely violated the Equal Protection and Due Process Clauses, the district court facially enjoined the law's enforcement as to hormones and puberty blockers and applied the injunction to all people in the State. Tennessee appealed and moved for an emergency stay of the district court's order. Because Tennessee is likely to succeed on its appeal of the preliminary injunction, we grant the stay….
In March 2023, Tennessee enacted the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity…. Seeking to "protect[] minors from physical and emotional harm," the legislature identified several concerns about recent treatments being offered by the medical profession for children with gender dysphoria. It was concerned that some treatments for gender dysphoria "can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering adverse and sometimes fatal psychological consequences." It was concerned that the long-term costs of these treatments remain unknown and outweigh any near-term benefits because they are "experimental in nature and not supported by high-quality, long-term medical studies." And it noted that other helpful, less risky, and non-irreversible treatments remain available.
These findings convinced the legislature to ban certain medical treatments for minors with gender dysphoria. A healthcare provider may not "administer or offer to administer" "a medical procedure" to a minor "for the purpose of" either "[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex," or "[t]reating purported discomfort or distress from a discordance between the minor's sex and asserted identity." Prohibited medical procedures include "[s]urgically removing, modifying, altering, or entering into tissues, cavities, or organs" and "[p]rescribing, administering, or dispensing any puberty blocker or hormone."
The Act contains two relevant exceptions. It permits the use of these medical procedures to treat congenital defects, precocious puberty, disease, or physical injury. And it has a "continuing care" exception until March 31, 2024, which permits healthcare providers to continue administering a long-term treatment, say hormone therapy, that began before the Act's effective date.
The district court blocked enforcement of the law, but the Court of Appeals stayed the decision pending appeal, concluding that the challengers were unlikely to prevail on their parental rights (substantive due process) and equal protection claims:
Case or Controversy Requirement? What Case or Controversy Requirement?
The Supreme Court's misguided decision to grant Lorie Smith standing to pursue her entirely hypothetical claim against the State of Colorado in the web designer case.
"The judicial Power shall extend to … Cases … [and] to Controversies …"
US Constitution, Article III Sec. 2
We all know roughly what that means, right? No advisory opinions from the federal courts; no decisions about hypothetical cases. I admit that I'm no expert in the doctrine in this area, though I do watch it out of the corner of my eye, and I can't recall reading a more ridiculous standing decision in the last 10 years or so than the one the Court endorsed in the 303 Creative v. Elenis case (holding, on the merits, that the designer of a wedding website has a First Amendment right to deny her creative and expressive services to same-sex couples). If you know of one, I'd love to know what it is.
[NB: Unless otherwise noted, all quotations below are from the Supreme Court's majority opinion in the 303 Creative case, and all emphases are added]
Lorie Smith, through her business (303 Creative), offers "website design services." At some point in 2016, she "decided [to]expand her offerings to include services for couples seeking websites for their weddings." Smith has a "sincerely held religious conviction" that "marriage is a union between one man and one woman," and she "will not produce content that contradicts biblical truth."
The Colorado Anti-Discrimination Act prohibits all "public accommodations" - defined "broadly to include almost every public-facing business in the State" - from "denying the full and equal enjoyment of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait."
Although Smith "laid the groundwork for her new venture, she has yet to carry out her plans." [I.e., there is no wedding website] She "worries that, if she does so, Colorado will force her to express views with which she disagrees." To "clarify her rights," Ms. Smith "filed a lawsuit in federal district court . . . seeking an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy (sic) her beliefs."
Now I don't know about you, but I look at these (undisputed) facts and I have a very, very hard time discerning the "case or controversy" here. There's no website. Indeed, there may never be a 303 Creative wedding website.** Because there is no website, there are no customers, same-sex couples or anyone else, for the services the website might provide (if it existed). Because she is offering no services (yet) to anyone, she has not "denied her services" (yet) to anyone based on their race, creed, or sexual orientation. And because she has not denied her services to anyone based on their race, creed, sexual orientation, etc., she has not done anything that could be deemed a violation of the CADA. And because she has not done anything that could be deemed a violation of the CADA, CO has not taken any action against her.
** Note: Smith filed her initial complaint in 2016, asserting her plans to open up a wedding website. As far as I can tell from the 303 Creative website, she has not yet carried through with those plans, as of yesterday.
In short, the case is entirely hypothetical. "IF I do this, and IF they do that, my constitutional rights will have been violated." Exactly the sort of case, one would think, that federal courts must, as a constitutional matter, decline to hear, for the simple reason that it does not yet exist (and may never exist - see below). Read More
AALS Online Symposium on New Books in Constitutional Law
Presenters include Kermit Roosevelt (UPenn), Samantha Barbas (U. of Buffalo), Michael Mannheimer (Northern Kentucky Univ.), and myself.
On July 20, from 12:30 to 2:30 PM EDT, the Association of American Law Schools (AALS) will be holding an online symposium on "New Books in Constitutional Law." Participants include Prof. Kermit Roosevelt (Univ. of Pennsylvania), Prof. Samatha Barbas (U. of Buffalo), Michael Mannheimer (Northern Kentucky Univ.), and myself. Prof. Scott Gerber (Ohio Northern Univ.) will moderate. The event is free and open to the public. Registration available here, along with the participants' bios. I think the event has a good mix of presenters, topics, and viewpoints.
I will be speaking about my book Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press, revised and expanded edition, 2022), with a focus on the implications of my arguments for constitutional theory and design.
Here is the AALS description:
This webinar will discuss new books in constitutional law by Kermit Roosevelt III, Ilya Somin, Samantha Barbas, and Michael Mannheimer. Scott Douglas Gerber will moderate the webinar….
- Prof. Roosevelt's "The Nation That Never Was" offers a powerful and inspirational rethinking of our country's history and uncovers a shared past that we can be proud to claim and use as a foundation to work toward a country that fully embodies equality for all.
- Prof. Somin's "Free to Move" discusses how broadening opportunities for foot voting can greatly enhance political liberty for millions of people around the world.
- Prof. Mannheimer's "The Fourth Amendment" chronicles how the courts' misinterpretation of the 4th and 14th Amendments has led them to hold federal and state law enforcement to the same constitutional standards.
- Prof. Barbas' "Actual Malice" tells the full story of New York Times v. Sullivan by drawing on previously unexplored sources, including the archives of the New York Times Company and civil rights leaders.
Many thanks to Prof. Gerber and AALS for organizing this event, and including me.
The Major Questions Doctrine "Reflects a Deeply Held Impulse in Common Law Adjudication."
The idea that greater assertions of executive authority require greater support than ordinary acts is not a new one.
Over at the Yale Journal on Regulation's Notice and Comment blog, T.T. Arvind and Christian R. Burset have an interesting post explaining that the basic impulse underlying the Major Questions Doctrine has common law roots. Without expressing any opinion on the merits of recent Supreme Court decisions that rely upon MQD, their post aims "to point out some similarities between the MQD and eighteenth-century approaches to identifying the limits of executive authority."
They write:
Our starting place is Entick v. Carrington (1765), an English case well known to the Founders. It concerned (among other things) the power of a Secretary of State to issue a warrant for seizing an author's papers in an investigation for seditious libel. Lord Camden, the chief justice of Common Pleas, held that such warrants were illegal. Here's how he explained his decision (according to the best report we have of his opinion):
As this Jurisdiction of the Secretary of State is so extensive; therefore the Power ought to be as clear as it is extensive.
In other words, as executive officials claim greater authority, their burden of proving the lawfulness of that authority rises. Or, as another reporter summarized Camden's decision, "one should naturally expect that the law to warrant [the exercise of executive power] should be clear in proportion as the power is exorbitant." In Entick itself, Camden found that seizing an author's papers involved "extensive" power, in part because of the (related or unrelated) secrets that might be disclosed as a result. Therefore, the government and its agents bore a heavy burden in proving that such power was lawful. They failed to meet that burden, and they lost the case.
As we explained in a recent article, Camden's framework was widely shared at the time. Even Lord Mansfield—Camden's great political and jurisprudential rival—agreed that exceptionally broad claims of executive power had to be supported by exceptionally clear legal authority. By the same token, a relatively minor exercise of power required a lesser showing of legal authority. The "extensiveness" of a power depended in part on how long its exercise lasted. The disclosure of secrets in Entick was irreversible and therefore "extensive." In contrast, Camden presented the temporary suspension of grain exports as relatively insignificant because of its limited duration.
As they note, this approach may align more closely with that suggested by Justice Barrett, than the more full-throated, nondelegation-inspired version of MQD. Put another way, the underlying impulse here "reflects a deeply held impulse in common law adjudication, which is far more nuanced than mere animus toward the modern administrative state."
This is in line with the approach that I have advocated, and (in my view) contrasts quite a bit with the Chief Justice's approach in West Virginia v. EPA. As I explained in my Cato Supreme Court Review article on the decision, the Chief Justice treated the QD as an on-off switch: If a question is "major," suddenly a higher threshold applies. This approach is problematic on many levels, not just that it lacks a grounding in basic agency law or common law principles. As I wrote:
In place of a threshold inquiry into whether the economic or political stakes of a case are sufficiently "major" or "extraordinary," courts would be better off focusing on the root question of whether Congress delegated the asserted authority to the agency and whether the evidence of such a delegation is commensurate with the nature of the authority asserted. In this way, the major-ness of the question at issue would be less of a threshold to be crossed than a continuum to be incorporated into the statutory analysis. The weight of evidence necessary to support an asserted delegation should be proportional to the breadth, scope, and novelty of the delegated power claimed.
In this regard, Biden v. Nebraska is a step in the right direction insofar as it departed from WVa v. EPA. In rejecting the Biden Administration's claimed authority to forgive student loans under the HEROES Act, the Court focused first on the relevant statutory language, only turning to the MQD to confirm its conclusions. Turning even further toward the approach suggested by Justice Barrett in her concurrence would be another step in this direction and, as the Arvind and Burset post suggests, do more to ground the Court's recent MQD jurisprudence in longstanding legal principles.
If An Applicant Didn't Check a Race Box, Harvard Would Assign a Race Anyway
Imagine you were a black or Hispanic applicant who did not want to be given a racial/ethnic preference when applying to Harvard. Or you were an Asian American applicant who feared that your Asian background would be a hindrance. The obvious thing to do, beyond lying on your application, would be to leave the race and ethnicity questions on the Common Application blank. I have even seen an admission consultant suggest that if someone leaves those questions blank, admissions officers would treat your application as if you were somewhere in between white and Asian.
It turns out, though, that according to the plaintiffs' statement of undisputed material facts filed in August 2018, with citations to the record, Harvard did not accept "undisclosed" for race as an answer, at least for applicants who piqued its interest:
184. If a student does not identify his or her race, the Admissions Office has alternative ways to determine the student's race through other information the Common Application requires, including the student's last name, citizenship status, birthplace, language proficiency, country of birth of the student's parents, and the parents' last names and former last names. Ex. 204, McGrath Ex. 3.
185. The Admissions Office can also do outside research through social media to determine an applicant's race, which it has done in at least one instance. Ex. 20, Ray 31:16-32:10.
Fascinating, and troubling. I have interacted with several academics who support affirmative action on condition that racial identity is voluntarily self-disclosed and defined, rather than imposed. It turns out that this did not apply to Harvard, and likely other schools.
Sixth Circuit Stays Preliminary Injunction Against Tennessee Law Limiting Gender-Affirming Treatments for Minors
A divided panel concludes the plaintiffs are unlikely to prevail on the merits and pledges to expedite the appeal.
Early this morning, a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a stay of a district court's preliminary injunction against portions of Tennessee's newly enacted law largely prohibiting pharmaceutical and surgical gender-affirming treatments for minors. Writing for the panel in L.W. v. Skrmetti, Chief Judge Sutton (joined by Judge Thapar) concluded that the district court was wrong to issue a preliminary injunction, largely because the legal challenge--which sought to declare the statute unconstitutional under the 14th Amendment--was unconstitutional. Judge White concurred in part and dissented in part.
Chief Judge Sutton's opinion summarizes the decision:
Tennessee enacted a law that prohibits healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors. After determining that the law likely violated the Equal Protection and Due Process Clauses, the district court facially enjoined the law's enforcement as to hormones and puberty blockers and applied the injunction to all people in the State. Tennessee appealed and moved for an emergency stay of the district court's order. Because Tennessee is likely to succeed on its appeal of the preliminary injunction, we grant the stay.
The law in question, the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, prohibits surgical procedures and the administration of hormones or puberty blockers for the purposes of gender transition, subject to a few narrow exceptions. Last month, a federal district court in Tennessee issued a preliminary injunction against the law, as applied to hormones and puberty blockers, on the grounds that the law was facially unconstitutional. (The court did not reach the law's application to surgical procedures or its private enforcement provisions because the plaintiffs lacked standing to challenge those provisions.)
In his opinion for the court, Chief Judge Sutton identified the core issues:
A request for a stay pending appeal prompts four questions: "Is the applicant likely to succeed on the merits? Will the applicant be irreparably injured absent a stay? Will a stay injure the other parties? Does the public interest favor a stay?" Roberts v. Neace, 958 F.3d 409, 413 (6th Cir. 2020). As is often the case in a constitutional challenge, the likelihood-of-success inquiry is the first among equals. Id. at 416. In this instance, it is largely dispositive. While we assess "the district court's ultimate decision whether to grant a preliminary injunction for abuse of discretion," we assess "its legal determination, including the likelihood of success on the merits, with fresh eyes." Arizona v. Biden, 40 F.4th 375, 381 (2022) (quotation omitted).
There are two merits-related problems with the district court's order. One relates to its scope. The other relates to its assessment of plaintiffs' chances in challenging the Act on due process and equal protection grounds.
On scope, Chief Judge Sutton explained, the district court made two errors. First, it invalidated the law facially, as opposed to as-applied to the plaintiffs. Second, "it assumed authority to issue a statewide injunction."
District courts "should not issue relief that extends further than necessary to remedy the plaintiff's injury." Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). The court's injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million? Does the nature of the federal judicial power or for that matter Article III permit such sweeping relief? A "rising chorus" suggests not.
On the merits, Chief Judge Sutton explained why the district court's decision represented an unwarranted expansion of the 14th Amendment's limitations on state lawmaking.
Today in Supreme Court History: July 8, 1941
7/8/1941: Justice James Byrnes takes oath.
NYC Lawyer Dmitriy Shakhnevich Interviews Me on Wide Range of Law and Policy Issues
Topics covered include affirmative action, legacy preferences, the student loan forgiveness decision, refugee policy, indictments against Trump, Vladimir Putin, political ignorance, and more.
New York lawyer Dmitriy Shakhnevich, who has a series of videos interviewing a wide range of commentators on legal and political issues, has posted the video of this interview with me, covering a variety of topics I have written about.
For convenience, here is Shakhnevich's list of the issues we covered and llnks to where they occur in the video:
0:00-2:29: Analyzing the Supreme Court's recent affirmative action ruling
2:30-5:50: The racial inequities and historical discrimination that affirmative action is designed to rectify
5:51-7:50: Will legal efforts contesting Harvard's "legacy admissions" policy prevail? 7:51-12:31: The Supreme Court's recent decision regarding student loan forgiveness 12:32-15:31: The impact of biased media and Tucker Carlson's departure from Fox News
15:32-17:45: Are the recent indictments of Donald Trump bad for the US?
17:46-20:18: Is the US doing enough for Ukrainian refugees in the midst of the Russian invasion?
20:19-21:52: Will Vladimir Putin ever be held accountable for the invasion of Ukraine?
21:53-25:06: The difference between "classic liberals" and the "new right" in the US
There is much material there to annoy right and left alike, depending on the issue!
Shaknevich has also done video interviews with a variety of other figures in law and public policy, including former ACLU President Nadine Strossen, longtime Manhattan DA Cyrus Vance, Jr., free speech expert Floyd Abrams, Greg Lukianoff (FIRE), and many others.
Short Circuit: A Roundup of Recent Federal Court Decisions
Volatile behavior, boorish flirtation, insufficient collegiality.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: No judicial immunity for personally locking up some kids and no community caretaking exception for a cop on the beat.
- House of Representatives (Jan. 2021): Due to the COVID-19 pandemic all members gotta wear masks. If you don't it's $500. Three members: That violates these five constitutional provisions. D.C. Circuit: Ah, but since the House was acting in its legislative capacity those don't matter because of the One Clause to Rule Them All, the Speech or Debate Clause. Legislative immunity and case dismissed.
- In 2021, the feds and the state of Florida allowed the Seminole Tribe to offer online sports betting—indeed, the tribe obtained the exclusive right to offer online sports betting, even by people not physically on tribal land, while sports betting remained illegal in the rest of the state. Brick-and-mortar casinos objected, arguing that this impermissibly allowed gaming outside of Indian lands. D.C. Circuit: Some of this might violate state law, but we're not touching that. The feds' involvement in the agreement satisfies the APA.
- NC State University professor rankles his colleagues by, among other things, criticizing a proposal to add a question about diversity to student course evaluations and writing a blog post declaring that the "[Association for the Study of Higher Education] Has Become a Woke Joke." His department responds by removing him from his program area and basically making it impossible for him to advise graduate students. He sues for First Amendment retaliation. Fourth Circuit: Sounds like he should have been more collegial. Dissent: "My friends in the majority . . . have developed a new 'bad man' theory of the law: identify the bad man; he loses."
- How do you spell a challenge to a Navy COVID-19 vaccine mandate that, pursuant to orders from Congress, has been rescinded and where the Navy has, in addition, removed all prior adverse actions associated with denials of religious exemptions? Fifth Circuit: M-O-O-T. Concurrence: But I would also spell M-U-N-S-I-N-G-W-E-A-R. Dissent: Perhaps it's true of Caesar's wife, but the Navy is not above suspicion.
- Allegation: After Montgomery County, Ky. officials are ordered to obtain exculpatory evidence from a witness and turn it over to the defense, a prosecutor instead tells the witness to destroy the evidence. (She does.) Sixth Circuit: That is "seemingly unbecoming" but nevertheless within the prosecutor's traditional role as an advocate. Absolute immunity. Concurrence: No, no, prosecutors don't have discretion to disregard a court order. We should have granted qualified immunity.
- Seventeen-year-old student is required to participate in police ride-along for a class, and the Hammond, Ind. officer she shadows spends the day groping her, making lewd remarks, and even taking her to a remote location where he offers her to another officer for sex. Officer: This mere "boorish flirtation" was just "making for an exciting ride along." District court: Qualified immunity. Seventh Circuit: Reversed. "Sexual assault is an intentional act that never serves a legitimate governmental purpose."
- Oregon law makes it a crime to surreptitiously record conversations with another person without their knowledge . . . unless you're a cop performing official duties, in which case, record away! Project Veritas—which has something of a history of secretly recording conversations—challenges the recording ban as a violation of the First Amendment. Ninth Circuit: And they're right. The ban is unconstitutional. Dissent: We should just sever the exceptions for law enforcement and then the ban is fine.
- It is obviously unreasonable for an off-duty, out-of-uniform police officer to lose his temper on the road, follow another motorist home, box him in his driveway, scream profanities, and point a gun at him when the other motorist is nonthreatening. So says the Tenth Circuit, reversing a grant of qualified immunity to a (now-former) Chaves County, N.M. sheriff's deputy. Claims against the county, which hired him in spite of his history of volatile behavior, are on the table, too. (This is an IJ case.)
- If you want to proceed anonymously in a lawsuit, it's best not to have a history of trying to drum up publicity for other lawsuits you've been involved in. So holds the Tenth Circuit in a decision denying leave to proceed as a Jane Doe, but allowing for some information to be filed under seal.
- As settlers began occupying Wyandotte land in the 18th century, its people agreed to a series of treaties that removed them to present-day Kansas and then to Oklahoma. The feds later dubbed the treaties unconscionable, awarding the Tribe about $3 mil in damages with $100k earmarked to purchase lands for the feds to put into trust. The Tribe first invested the funds, later commingling them with other funds, and eventually bought a 10-acre lot in a Wichita, Kan. suburb it sought for trust status. The feds took the land into trust in 2020 and ruled the Tribe could operate gaming there. State: The murky accounting means that the funds used to buy the land weren't the earmarked funds, so no trust should follow and no gaming should happen. Tenth Circuit: The feds properly relied on expert accounting material in granting trust status and correctly concluded that the Tribe could conduct gaming on the parcel. Partial dissent: The feds needed to do more when deciding to allow gaming.
- And in en banc news, the Ninth Circuit (over several dissentals) will not reconsider its decision that the Cruel and Unusual Punishment Clause prevents Grants Pass, Ore. officials from ticketing homeless people for, among other things, sleeping in public parks or in their cars. (IJ joined with some friends in an amicus brief to argue the Excessive Fines Clause prevents such ticketing.)
- And in state court news, after two arguments and three briefings in which IJ (as amicus) made the case that it violates due process for state trial courts to depend on fees generated from convictions to keep their lights on, the Michigan Supreme Court decided not to decide—dismissing the case as improvidently granted. Phooey! But we wouldn't be surprised to hear these arguments again soon.
Friends, a very solid civil forfeiture reform bill is working its way through Congress at the moment, recently passing out of the House Judiciary Committee by a unanimous vote. Click here to read The Washington Post Editorial Board's endorsement of the legislation. Or click here for a breakdown of some of the bill's key provisions.
My New Washington Examiner Article on the Supreme Court's Ruling on Racial Preferences in College Admissions
The article assesses strengths and weaknesses of the Court's decision, and what it will take to implement Chief Justice Roberts' admonition that "[e]liminating racial discrimination means eliminating all of it."
The Washington Examiner just published my article on the Supreme Court's recent ruling against racial preferences in admissions at Harvard and the University of North Carolina. Here is an excerpt:
The Supreme Court's ruling against racial preferences in college admissions not only upends the controversial policy but redirects the wider debate about what constitutes a "colorblind society" and how to achieve it. But much remains to be done to heed Chief Justice John Roberts's admonition that "eliminating racial discrimination means eliminating all of it."
The decision, centered on affirmative action policies at Harvard University and the University of North Carolina, severely restricts, even if it doesn't completely ban, the use of racial preferences for purposes of realizing possible educational benefits of "diversity…."
Roberts's majority opinion effectively outlined many of the flaws in diversity preferences, including nebulous goals, reliance on crude racial classifications and stereotypes, and the unconstitutional use of race as a "negative" to disadvantage Asian American applicants, among others. Justice Neil Gorsuch's concurrence correctly pointed out that the cases could have been resolved more easily by relying on the plain text of Title VI of the Civil Rights Act of 1964. Despite some flaws in the majority's reasoning, the decision is an important step forward. But much remains to be done to heed Roberts's admonition that "eliminating racial discrimination means eliminating all of it." Realizing the ideal of colorblind government will require steps that will be difficult for many on the Right as well as the Left.
I wrote about what it will take to fully implement color-blindness in government policy in greater detail here.
Jose Gomez
Speaking of pseudonyms, what well-known person was tried and convicted under the pseudonym Jose Gomez in 1971? (Having criminal defendants be tried pseudonymously is extremely rare.)
Today in Supreme Court History: July 7, 1893
7/7/1893: Justice Samuel Blatchford dies.
