The Volokh Conspiracy

From The Satanic Temple, Inc. v. Saucon Valley School Dist., decided yesterday by Judge John M. Gallagher (E.D. Pa.):

[According to the Complaint,] Plaintiff, The Satanic Temple, Inc. ("TST") "is a non-theistic, religious not-for-profit corporation" that "has been recognized by the IRS as a church… and as a religious corporation." Plaintiff, TST, "does not worship Satan," but rather regards "Satan … as a literary figure who represents a metaphorical construct of rejecting tyranny, championing the human mind and spirit, and seeking justice and egalitarianism for all." TST "has more than 700,000 individual members" who believe in the "seven Satanic virtues: benevolence, empathy, critical thinking, creative expression, personal sovereignty, compassion, and the pursuit of justice." TST sponsors the After School Satan Club ("ASSC" or the "Club") at "a number of public schools across the country to provide young people with an alternative to other religious clubs that meet on campus after school." …

The District's process for approving individual and community group use of its facilities is governed by the District's Board Policy 707 ("Policy 707"). Policy 707 states: "It is the policy of the Board of School Directors of the Saucon Valley School District to make available the facilities of the school district to organizations, associations and individuals of the community for civic, cultural, educational and recreational activities when the scheduling of these activities does not interfere with the educational program of the district." …

Because the District sponsors some after-school activities and groups, such as "Girls on the Run," "the Boy Scouts," "the Joetta [Sports] & Beyond Camp," the "Saucon Valley Youth Sports Association," and "Saucon Valley Youth Basketball," groups approved for use of District facilities that are not sponsored by the District must abide by the following Policy 707 limitation, hereinafter referred to as the "Advertising Restriction":

When advertising or promoting activities held at school facilities, individuals and community groups shall clearly communicate that the activities are not being sponsored by the school district….

The Satanic Temple initially got District permission to hold four After School Satan Club meetings on campus in the afternoon after school dismissal, but this was rescinded after someone left a school shooting threat on the District's voicemail (which led to the District's closing the school for a day) and then the District "received over 40 phone calls and 50 emails or handwritten letters, daily, from concerned staff, parents, and community members." TST sued, claiming the District's actions violated the First Amendment, and the court allowed the case to go forward:

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Orin announced the big news: on Tuesday, May 2, the Library of Congress will release the papers of Justice Stevens through 2005. The finding aid provides the acquisition information:

The papers of John Paul Stevens, lawyer, judge, and associate justice of the United States Supreme Court, were deposited in the Library of Congress in 2005 and conveyed as a gift to the Library upon his retirement from the Supreme Court in 2010. A subsequent addition covered by Stevens's gift agreement was received in 2022 via the Supreme Court and his estate.

The bulk of the papers were deposited in 2005, which was the final full term that Chief Justice Rehnquist and Justice O'Connor served. In 2010, after Stevens retired, the remainder of his papers as a sitting Justice were deposited. Finally, the last tranche of papers was deposited in 2022, three years after his death.

Different justices have taken different approaches to releasing their papers. Chief Justice Rehnquist's papers will only be released after all of the Justices who served at that time have died--not just retired. For example, after Justice Stevens died, the Rehnquist collection would release the papers from 1976 through 1981, when Justice O'Connor joined the Court. Justice O'Connor is still alive, so all of the Rehnquist papers from 1981 to 2005 remain sealed. This policy was designed after the retirement of Justices Marshall and Blackmun. Their papers were released immediately, which revealed documents about pending cases.

Justice Stevens used some more discretion, but he will still release papers from the tenures of five still-living Justices (O'Connor, Kennedy, Souter, Thomas, and Breyer), and one still-serving Justice (Thomas). And, indirectly at least, we will gain a peek at the cert pool memos of several Justices who clerked on the Court before 2005: Chief Justice Roberts, Justice Kagan, Justice Gorsuch, Justice Kavanaugh, Justice Barrett, and Justice Jackson. Justice Stevens was not in the cert pool. But he likely has the memos from a majority of the Court. Really, the only person who has nothing to worry about here is Justice Alito, who never clerked on the Supreme Court.

The finding aid provides some insights into Stevens, including the well-known fact that he wrote his own first drafts:

The opinion files include slip opinions, correspondence with the other justices, drafts of opinions, Stevens's oral argument notes, his conference notes (recorded on the reverse side of docket sheets), and his clerk's certiorari memoranda. Additional docket sheets and certiorari memoranda for all other non-argued cases are filed in the Dockets subseries and the Certiorari Memoranda subseries. The opinion files do not include any bench memoranda. The files document Stevens's propensity for writing both dissents and concurrences and reflect that he usually wrote many of the first drafts of his opinions himself.

Though, we do learn that there was some decline in Stevens's output:

Beginning with the October 1996 term, Stevens's oral argument notes decrease and later terms contain almost none. The opinion files for Part II contain no bench memoranda.

The most relevant documents will be from a pair of cases decided during the October 2002 term: Grutter and Gratz. I'm sure enterprising reporters will mine through those documents to cast a light on the pending affirmative action cases. Hint: go to Boxes 887, 888, and 889. (This information will certainly be more fruitful than financial disclosure documents.) I'm sure we gain some insights into what Justice O'Connor really meant by the 25-year clock!

Meanwhile, Justice Souter's papers will not be released for fifty years after his death. With Souter's longevity, I may not live to see them. I doubt anyone will care in half a century.

Next up? RBG's papers, which will take us through 2020.

We open this episode of the Cyberlaw Podcast with some actual news about the debate over renewing section 702 of FISA. That's the law that allows the government to target foreigners for a national security purpose and to intercept their communications in and out of the U.S. A lot of attention has been focused on what happens to those communications after they've been intercepted and stored, with some arguing that the FBI should get a second court authorization -- maybe even a warrant based on probable cause -- to search for records about an American. Michael J. Ellis reports that the Office of the Director of National Intelligence has released new data on such FBI searches. Turns out, they've dropped from almost 3 million last year to nearly 120 thousand this year. In large part the drop reflects the tougher restrictions imposed by the FBI on such searches.  Those restrictions were made public this week. It has also emerged that the government is using the database millions of times a year to identify the victims of cyberattacks. That's the kind of problem 702 is made for: some foreign hackers are a national security threat, and their whole business model is to use U.S. infrastructure to communicate (in a very special way) with U.S. networks. So it turns out that all those civil libertarians who want to make it hard for the government to search the 702 database for the names of Americans are actually proposing ways to slow down and complicate the process of warning hacking victims. Thanks a bunch, folks!

Justin Sherman covers China's plans to attack and even take over enemy (i.e., U.S.) satellites. The story is apparently drawn from the Discord leaks, and it has the ring of truth. I opine that DOD has gotten a little too comfortable waging war against people who don't really have an army, and that the Ukraine conflict shows how much tougher things get when there's an organized military on the other side. (Again, credit for our artwork goes to Bing Image Creator.)

Adam Candeub flags the next Supreme Court case to nibble away at the problem of social media and the law.  The Court will hear argument next year on the constitutionality of public officials blocking people who post mean comments on the officials' Facebook pages.

Justin and I break down a story about whether Twitter is complying with more government demands now that Elon Musk is in charge. The short answer is yes. This leads me to ask why we expect social media companies to spend large sums fighting government takedown and surveillance requests when it's so much cheaper just to comply. So far, the answer has been that mainstream media and Good People Everywhere will criticize companies that don't fight. But with criticism of Elon Musk's Twitter already turned up to 11, that's not likely to persuade him.

Adam and I are impressed by Citizen Labs' report on search censorship in China. We'd both like to see Citizen Lab do the same thing for U.S. censorship, which somehow gets less attention.  If you suspect that's because there's more U.S. censorship than U.S. companies want to admit, here's a bit of supporting evidence: Citizen Lab reports that the one American company still providing search services in China, Microsoft Bing, is actually more aggressive about stifling Chinese political speech than China's main search engine, Baidu. This jibes with my experience, when Bing's Image Creator refused to construct an image using Taiwan's flag. (It was OK using U.S. and German flags, but it also balked at China's.) To be fair, though, Microsoft has fixed that particular bit of overreach: You can now create images with both Taiwanese and Chinese flags.

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Today the Library of Congress announced that, tomorrow, it will be making available the papers of the late Justice John Paul Stevens through 2005.  The release of a Justice's papers is often pretty significant for Supreme Court nerds and historians alike, as the papers include drafts of opinions and memos among the Justices that shed light on the public opinions later released.  You need to be in DC to see the papers at the Library of Congress—they won't be posted online— but I assume particularly important documents will get out pretty quickly.  You can read the 299-page finding aid to the Stevens papers that will be available here.

Last week, the Supreme Court released a Statement of Ethics Principles and Practices. One of the rationales for not adopting the Conduct of Conduct, in its entirety, concerns recusals.

In regard to recusal, the Justices follow the same general principles and statutory standards as other federal judges, but the application of those principles can differ due to the unique institutional setting of the Court. In some instances the Justices' recusal standards are more restrictive than those in the lower court Code or the statute—for example, concluding that recusal is appropriate where family members served as lead counsel below. A recusal consideration uniquely present for Justices is the impairment of a full court in the event that one or more members withdraws from a case. Lower courts can freely substitute one district or circuit judge for another. The Supreme Court consists of nine Members who always sit together. Thus, Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy.

I think this reasoning is persuasive, and explains why a different set of recusal rules should apply to the Supreme Court. There are only nine Justices, and the Court should decide cases with all members, where possible.

That principle brings me to today's order list. The Supreme Court granted cert in Loper Bright Enterprises v. Raimando. Jon Adler explained that this case may overrule, or at least narrow the Chevron doctrine. However, the Court will be shorthanded. Justice Jackson recused herself. She participated in oral argument in this case during her ever-so-brief stint on the D.C. Circuit.

This recusal raise an obvious question: why grant this case which would be decided by an eight-member Court? The Court has been deluged by petitions seeking to overrule Chevron. Maybe there are specific rationales to favor this petition. Paul Clement, super lawyer, is counsel of record. And perhaps Clement highlighted the second question presented in an artful way, that gives the Court space to operate:

Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

Moreover, this case has "good facts." Modest fisherman were required to pay the salaries of inspectors on their small boats. I love this quote from the cert petition:

The framing generation was vexed enough by being forced to quarter British soldiers, see U.S. Const. amend. III, but not even the British forced the unlucky homeowner to personally pay the redcoat's salary.

Perhaps these confluence of facts caused the Justices to grant this particular petition, knowing that Jackson was recused. Or, perhaps, the Justices who voted to grant did not care that Jackson would be excused. If the latter analysis is true, then the concerns in the Statement of Ethics Principles and Practices rings hollow. The Justices could have granted any other case calling to overrule Chevron and cribbed Clement's question presented. But they chose this case, where it will be very hard to count to five to keep Chevron in its current form.

The reaction to my first ABA Journal column was, to my pleasant surprise, quite positive. I've heard from many current and former leaders in the organization who recognize the problem. I've also been invited to participate in a caucus looking to improve viewpoint diversity within the ABA. I'll report back on how that experience goes. And, also to my pleasant surprise, the ABA Journal allowed me to publish a second column.

The title of my column is Law schools face an inflection point with diversity, equity and inclusion. The piece was largely inspired by Judge Duncan's protest at Stanford, as well as the shenanigans at Yale Law School last year. I try to tie together why these debacles occurred with the rise of DEI on college campuses. I explain that DEI, as understood by officials at elite institutions, is inconsistent with the mission of higher education.

I offer five concrete suggestions of how deans and faculty can restore the proper balance of power between academic departments:

Universities and faculties in particular should take decisive action to prevent future Steinbachs and Eldiks from subverting the core principles of academic inquiry. At this inflection point, I propose a five-course action plan. First, every faculty should adopt, or reaffirm, a free speech policy that clearly spells out the university's commitment to a diversity of viewpoints. That policy also should delineate the consequences for heckling speakers. Students should be given a stern warning at orientation, so they are on clear notice about the rules.

Second, universities should restructure DEI departments. For starters, DEI deans should be tenured members of the faculty, rather than untenured staff. Faculty members generally have a long-term commitment to the institution and are attuned to how professors, students and other stakeholders approach sensitive issues. If the DEI dean is a faculty member, it is more likely that the faculty will have some visibility of the various DEI activities.

Moreover, the institution should define the jurisdiction of DEI departments and ensure that student-facing deans remain neutral and do not endorse any particular ideology. And yes, beliefs about "privilege," "anti-racism" and "unconscious bias" are not objective truths; they are contested ideologies. A law school administration could no more endorse critical race theory than it could endorse originalism. Educational institutions must remain neutral.

Third, faculty governance should assert oversight of DEI departments. For example, any DEI programming that students are required to attend should be approved by the faculty curriculum committee. Any diversity mandates imposed on hiring or admissions should be approved by the faculty committees on appointments and admissions. Academic institutions are faculty-governed. DEI should not issue edicts to the faculty; the faculty should provide approval to DEI.

Fourth, DEI staffers should be required to attend training on free speech and academic freedom. These classes can be provided by the constitutional law faculty or by outside groups like the Foundation for Individual Rights and Expression. The Duncan debacle should be a case study of what not to do. Employees like Steinbach who see free speech as subordinate to DEI values, should seek other employment. They have no place in an institution of higher education.

Fifth—and this one is key—universities should commit themselves to hiring ideologically-diverse professors. It is regrettable that Stanford has one right-of-center public law scholar—Judge McConnell. Yale has zero. Conservative students at Stanford and Yale are jurisprudential orphans. If more conservative scholars are hired, progressive students will invariably learn how to deal with those they disagree with—cross-cultural competency in modern lingo—and may realize that the divide between right and left isn't as large as they thought. Harvard, which has a handful of conservative faculty members, has unsurprisingly stayed out of the headlines. Other schools should follow the hiring practice started more than a decade ago by Dean Elena Kagan.

I look forward to engaging further on this topic. My next column, hopefully, will be about Supreme Court ethics.

Antonin Scalia heard hundreds of cases as an Associate Justice before the Supreme Court. But he argued one, and only one case, as a Supreme Court advocate: Alfred Dunhill Of London, Inc. v. Cuba in January 1976. You can listen to it here.

Today, the Supreme Court granted cert in Murray v. UBS Securities. Counsel of record for respondents is Eugene Scalia. For the longest time, Justice Scalia's son had recused himself from Gibson Dunn's Supreme Court practice. I believe the firm even had to exclude the partner from earning any proceeds from any SCOTUS litigation. But since Justice Scalia's death, Eugene Scalia has participated in Supreme Court advocacy. Will Eugene argue the case, his first before the high Court? If so, it would be the first Scalia at the podium since 1976.

In related news, Professor Jane Ginsburg of Columbia, RBG's daughter, is also filing amicus briefs now. Indeed, Lisa Blatt mentioned her brief by name during oral argument in Warhol v. Goldsmith. Such a move would have been forbidden while RBG was still on the bench.

About two weeks ago, the Washington Post published yet another story about Judge Matthew Kacsmaryk. There were two primary claims. First, the Post charged that Kacsmaryk wrote an article for the Texas Review of Law & Politics (TROLP), but when he was under consideration for the federal bench, he asked the journal to take his name off the article. Second, the Post claimed that Kacsmaryk failed to disclose this article to the Senate, and this was a breach of ethical standards. As soon as I read this article, I knew both claims were either false, or at best, misleading.

TROLP accepts submissions, like most law reviews, but a substantial chunk of its book includes invited articles. That is, the journal asks an author to write on something. In other words, an offer is made before the article is actually written. I have published four articles in TROLP. Two of them were solicited. One was something I pitched largely on the basis of my blog posts and an amicus brief, which was accepted. For three articles, I was given a green-light to publish non-existent scholarship. This approach is fairly common for symposium issues of law reviews. TROLP publishes invited pieces in most issues. And based on my records, I never actually signed some sort of publication agreement or copyright assignment. At most, I received an email of approval from the journal. That's how TROLP works. Professors at the University of Texas, Austin, could have easily confirmed this regular process to the press.

Without knowing anything about Kacsmaryk's particular situation, I concluded with a high degree of confidence that either (a) TROLP invited lawyers from First Liberty to write on a specific topic or (b) lawyers from First Liberty pitched TROLP on writing a piece on a particular topic. In either case, there was nothing written when the article was accepted.

I also concluded that the second facet of the Post's reporting was a non-story. DOJ routinely tells potential-judicial nominees to stop writing anything during the process. It would not surprise me that DOJ told Kacsmaryk to not publish anything new. And that request would have been easy enough to follow, if he didn't actually write the article.

This background brings us to the latest reporting in the Washington Free Beacon from Aaron Sibarium. He confirms everything I suspected about the Post's story.

The Post made much of the fact that Kacsmaryk submitted an early draft of the article, titled "The Jurisprudence of the Body," in early 2017 under his own name. The byline switch came that April, when he informed the Texas Review of Law and Politics that, "for reasons I may discuss at a later date," First Liberty attorneys Stephanie Taub and Justin Butterfield would coauthor the piece instead. Their names weren't anywhere on the first draft, the Post stressed, and it was Kacsmaryk who'd been corresponding with the journal. He also provided some edits on later drafts, according to emails reviewed by the Post.

But Taub and Butterfield told the Washington Free Beacon that they wrote the first draft themselves. Kacsmaryk, they said, had been brainstorming ideas with Taub, who was his research assistant at the time. "When his schedule became too busy to write an article, or even to review my outline," Taub said, "I took the initiative of drafting an article. I listed [Kacsmaryk's] name as the author of this and subsequent drafts because I assumed I was ghostwriting it for him." . . .

Taub's drafts of the article were mainly edited by Butterfield, he said. Kacsmaryk's primary contribution was serving as a liaison to the Texas Review of Law and Politics, with which he had institutional ties.

Kacsmaryk did not actually write the article, but gave credit to his junior colleagues. (Good for him!) Kacsmaryk continued to serve as a liaison with the editors due to his institutional connection to the journal. That's it!

The Free Beacon does not get into the nuances of the submission process. But the chronology in the piece establishes that the article was written after there was an acceptance. Kacsmaryk did not submit an article that he did not write, because he did not actually submit an article. Kacsmaryk did not take his name off an article he wrote, because he did not write the article. Kacsmaryk did not fail to disclose an article he wrote, because he did not write the article.

The Free Beacon also quotes Bethany Pickett, who worked with judicial nominees during the Trump administration. DOJ's Office of Legal Policy (OLP) routinely tells nominees to not publish anything during the confirmation process.

The Senate Judiciary Committee requires nominees to disclose all "published material" they have written or edited, any excerpt of which can be used against them. That is why, when someone is about to be nominated, the Justice Department tells that person to shut up.

"Our advice to nominees was to wind down their practices and not publish or give speeches while they were being considered for a federal appointment, even if they had made plans to do so up to that point," said Bethany Pickett, who worked on hundreds of judicial nominations in the Justice Department's Office of Legal Policy under former president DonaldTrump. "It would be common for any nominee not to author or further engage with a publication once being considered for the federal bench."

The Biden Administration has tapped legal scholars to fill certain positions. I suspect these nominees were given the same advice, and they put a pause on any unpublished pieces. There is nothing to see here.

Once again, a media story about judicial ethics falls apart. At this point, you should pause at least twenty-four hours before reacting to any story about a conservative judge. The media is so fixated on finding ethical scandals. Yet, they have to invent stories that are all smoke, and no fire.

The media is embarrassing itself. To continue with the theme of the day, editors should withdraw any yet-unpublished stories. Or call me for a reality check. Stop talking to the regular stable of legal ethics experts who give predictable answers.

Recently, I was speaking to a group of high school students about Supreme Court advocacy. I referenced a recent cert grant, involving a veteran who was injured in war, and suffered a debilitating injury. I said, without thinking about it, "those are good facts." I immediately stopped myself, and realized that I just told a group of teenagers that it was "good" this poor veteran was in such pain. I then realized how perverse it is that Supreme Court advocates often have to fish around (to use a word for the day) for sympathetic plaintiffs who have been subject to unfair or harmful treatment. Bad facts make bad law. But sad facts can make a cert grant.

This bad:

The documents show how Scalia Law has offered the justices a safe space in a polarized Washington — an academic cocoon filled with friends and former clerks, where their legal views are celebrated, they are given top pay and treated to teaching trips abroad, and their personal needs are anticipated, from lunch orders to, in Justice Gorsuch's case, house hunting.

Hmm, that sounds strange. I read this and was pretty confident that my law school does not, in fact, provide house hunting services to judges.

Not surprisingly, then, it turns out we don't. Forty paragraphs later:

As Judge Gorsuch moved to the top of the list for the court seat, he convened a war room of confidants to lobby for his nomination and help frame a confirmation strategy. Among them was Jamil N. Jaffer, a Scalia Law professor and founder of its new National Security Institute. Mr. Jaffer had clerked for the judge on the appeals court and counted him as a friend and mentor.

After the Supreme Court confirmation, Mr. Jaffer acted as the Gorsuches' unofficial relocation consultant, meeting with a real estate agent and touring at least one equestrian estate in Virginia. "Thanks, Jaffer ????," the justice's wife, Louise Gorsuch, wrote after he sent an aerial video of the property. The justice followed up by asking Mr. Jaffer to arrange a tour for his wife.

I laughed when I got to that. Either the Times reporters are too dumb to distinguish between "Scalia Law, catering to the justices' personal needs, helped Gorsuch with househunting" and "a friend of Gorsuch on the faculty of Scalia Law helped Gorsuch with househunting," or they are outright dishonest. I'm guessing it's a bit of both, but mostly the latter, given that they waited forty paragraphs to elaborate on the original claim.

For more on the story, see Josh Blackman's post from yesterday.