The Volokh Conspiracy

As a general matter, law professors do not have to teach during the summer. Indeed, we barely teach during the academic year, as compared to virtually all other academic disciplines. The standard load is two lectures classes, plus a small seminar. The only way universities can attract elite faculty to teach in the summer is to situate the classes in exotic locations. Professors, and their families, have most-expenses-paid vacations to foreign cities. Sure, there are a few hours of teaching in the morning. But the rest of the time is free. And those same classes could easily be taught at the home institution. But again, professors would never sacrifice their summer breaks to teach domestically. What about students? Most law schools offer summer classes on this side of the pond. (I took CrimPro and a privacy law seminar during my 1L summer.) But who wants to toil in the heat? It's far more fun to study some esoteric topic in Europe.

Everyone knows these facts. It is not a secret. Indeed, over my career, I've challenged law professors who teach abroad. They insist that these programs are rigorous. So are classes in the United States. They insist that students can build camaraderie. They can do that here as well. They insist that students can be exposed to faculty who do not teach at our institution. Well, now Zoom can do that quite well. Plus, it pains me that students take on more debt to pay for cushy vacations, rather than trying to earn an actual salary over the summer. If I am reviewing a resume, and I see a summer-abroad program, I immediately think the person made a poor decision of how to spend the 2L summer.

I'm sure I'm an outlier. Plenty of professors who benefit from these programs love them. Same for administrators who tag along on the trips! Plus all students love vacations with academic credit. Rant over.

This background brings me to the latest breathless reporting in the New York Times. Now, the newspaper of record has focused on my alma mater, the Scalia Law School. The article is long. Really long. But the upshot is that George Mason has placed a priority on recruiting Justices Thomas, Gorsuch, and Kavanaugh to teach at summer study programs. Shocker! A DC law school works hard to connect its students with the leaders of the profession. My own law school has organized similar programs in the past with Chief Justice Roberts and Justice Ginsburg. (My students described it as a once-in-a-lifetime experience.) So have countless other law schools. The only reason this story exists is because GMU is subject to FOIA. I'd love to look through the efforts at Harvard, Yale, and other elite private schools to recruit the Justices. There is also an issue lurking under the surface. Elite institutions can no longer invite conservative Justices. So Mason, as well as Notre Dame have filled that gap.

Moreover, I am scratching my head at the apparent conspiracy between GMU study-abroad program and GMU clinics that file amicus briefs. Does anyone really think that Justice Gorsuch is more likely to read an amicus brief from a GMU clinic because he taught several GMU students in a clinic? The reason why conservative justices read amicus briefs by conservative scholars is because they find those ideas persuasive. And Mason punches far above its weight class with regard to prominent conservative scholars. Does anyone think elite Supreme Court clinics at Harvard or Stanford are tainted because of the close connections those institutions have with the Justices? Indeed, those clinics actually argue cases, and do not just file amicus briefs destined for the circular file.

D.C. is--for lack of better words--an incestuous swamp. Everyone "knows" everyone else. And there is a nonstop effort by people with less power to try to gain access to people with more power. When you meet someone in D.C., the first question you are asked is "What do you do?" They are not curious about what you do. They want to know if you can provide them with more influence. The Times fails to place any of these allegations in context. Everything is about the one law school that proudly extolls its conservative connections. This sort of journalistic paint-by-numbers fails to ever substantiate their claims. It's only enough to raise some concerns, and hope uninformed readers fill in the gaps on their own.

Nothing to see here. Wait till the next empty shoe drops.

On Thursday, Senator Charles Schumer, the Majority Leader, sent a letter to the presiding officer of a federal court. No, it was not Chief Justice Roberts. Senator Durbin has that task locked down. Rather, Schumer sent the letter to Chief Judge Godbey of the U.S. District Court for the Northern District of Texas.

The theme, if you couldn't guess, concerns case assignment in single-judge divisions in Amarillo, Wichita Falls, and Lubbock. (I've written about this topic at some length here and here.)

Schumer charged:

Even though the Northern District has twelve active judges and another four senior judges who still hear cases, your orders provide that civil cases filed in many divisions are always assigned to a single judge, or to one of just a few. Cases filed in the Amarillo Division are always assigned to Judge Kacsmaryk; cases filed in the Wichita Falls Division are always assigned to Judge O'Connor; and cases filed in the Abeline, Lubbock, and San Angelo Divisions are split between just two judges. As a result of your recent assignment orders, plaintiffs in your district can now effectively choose the judge who will hear their cases.

Schumer issued an ultimatum: the court should "randomly" assign cases filed in "rural divisions," or else.

The Northern District of Texas could, and should, adopt a similar rule for all civil cases. Currently, a federal statute allows each district court to decide for itself how to assign cases. This gives courts the flexibility to address individual circumstances in their districts and among their judges. But if that flexibility continues to allow litigants to hand-pick their preferred judges and effectively guarantee their preferred outcomes, Congress will consider more prescriptive requirements.

It has come to this. The Senate Majority leader, who has no chance of actually passing court reform legislation, is issuing empty ultimatums to a federal judge. Anyone who can count to sixty knows such "prescriptive requirements" are dead on arrival. And certainly Schumer knows that as well. But Schumer's intent, like that of Durbin, is not to actually engage in good-faith discussions with the judiciary. Rather the goal, as always, is to undermine the authority of judges he disagrees with.

To quote Justice Alito:

It "undermines confidence in the government," Justice Alito says. "It's one thing to say the court is wrong; it's another thing to say it's an illegitimate institution. You could say the same thing about Congress and the president. . . . When you say that they're illegitimate, any of the three branches of government, you're really striking at something that's essential to self-government."

There have been no actual allegations that judges assigned to the Amarillo or Wichita Falls divisions have engaged in any judicial misconduct. (And no, authorship of a law review article that a judge did not actually write does not actually matter.) These judges have not been mandamused or reassigned by the court of appeals. None of the progressive judges on the Fifth Circuit have, in dissent, charged these judges with malfeasance. And no bar complaints have been filed against the Texas Attorney General or other plaintiffs who have filed in these forums. DOJ has filed motions to transfer cases in these divisions. And, those motions have been denied. In doing so, these courts have rejected the premise of Schumer's letter: that single-judge divisions undermine public confidence in the judiciary. Senator Schumer is, in effect, seeking reconsideration of what Judges Tipton, Kacsmaryk, and others have already ruled. The chief judge of a federal district cannot sit in judgment of another district judge in his district. That job belongs to the court of appeals alone.

I am well aware that in 2016, Judge Godbey's predecessor reassigned 15% of cases from the Wichita Falls division to herself. That was a controversial decision at the time, and one that was never fully justified. And Judge Godbey reversed that decision in 2022. I think it quite problematic for a single judge to take it upon herself to address what are, in effect, substantive grievances with a district court's rulings. From a pragmatic perspective, I am truly skeptical that all of the judges in Dallas would be willing to pick up a random share of cases in Amarillo or Lubbock. And no, as Senator Schumer suggests, remote hearings would not be an adequate substitute for actual parties in those communities.

The bigger problem, of course, is that Schumer has now boxed in Judge Godbey. If the Judge takes the sort of action that Schumer demanded, then he will be seen as caving to legislative pressure. If he ignores Schumer, he will be seen as enabling "judge shopping." And law professors on Twitter will beat their drums.

My recommendation? Do nothing now. DOJ filed motions to transfer, which were denied. Those motions will be appealed to the Fifth Circuit. If the Fifth Circuit affirms those motions, then Judge Godbey will have definitive ground to maintain the status quo. Acting now would be premature, and frankly, would weaken the separation of powers and judicial independence.

I've grown completely numb to the daily reporting on alleged ethical problems at the Supreme Court. All of these pieces follow a similar pattern. (1) Reporter spends an inordinate amount of time poring over mountains of publicly-available documents. (2) Reporter finds something that was not disclosed, or not fully-disclosed. (3) Reporter raises allegation that the failure to fully disclose that item is a problem, without actually identifying what that problem is. (4) Reporter interviews left-wing ethics groups who insist that full disclosure is necessary. (5) Reporter interviews the same cadre of law professors, who maintain that even though no actual rule was violated, the Justice should abide by some unwritten, higher standard. (6) Reporter publishes piece, which is widely shared on social media, but not actually read. (7) Sober analysis later reveals that the Justice either complied with the rules or made a good-faith mistake that will promptly be corrected. I'll have much more to say about this journalistic paint-by-numbers in a future ABA Journal column. Sunlight is a good disinfectant; too much heat will burn everything down.

But you know what the press has largely forgotten about? An actual judicial crisis: how the draft Dobbs opinion leaked to the press. The media should devote as much attention to the leak, as it fixates on who Amy Coney Barrett hosted a baby shower for 20 years ago.

And amidst these attacks, the Supreme Court remains rudderless. We know that the Chef Justice is unable, or unwilling to defend his Court beyond self-serving bromides about the Court as an "institution." If he thought his shoddy letter to the Senate would quell controversy, he was very wrong. The statement the Chief organized raised more questions than it answered. Fortunately, at least one member of the Court is willing to defend the Court against the never-ending barrage of attacks: Justice Samuel Alito. If Justice Thomas is the intellectual leader of the Court, Justice Alito is its heart.

We see this heart in an interview with the Wall Street Journal, given in mid-April. He defends the Supreme Court in ways the Chief Justice cannot, or will not.

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The recently-passed Illinois ban on "assault weapons" and magazines has been subjected to several federal and state court challenges. I previously posted about an adverse decision from the Northern District of Illinois, in which the court appeared to have been seriously misled by the state's "experts" about the nature of the banned firearms.  Today I'd like to focus on the oral argument on motions for a preliminary injunction that recently took place before a judge whose electrifying questions and comments exhibited superior knowledge about firearms.

Oral argument on four challenges was held in Harrel v. Raoul on April 12, 2023, before Judge Stephen McGlynn of the U.S. District Court for the Southern District of Illinois.  Erin Murphy, counsel in Barnett v. Raoul, conducted the argument for the plaintiffs.  A preliminary injunction was sought not only by the plaintiffs, but also by the defendant local state's attorney and the sheriff.  Christopher Wells argued for the attorney general, the governor, and director of the Illinois State Police, in opposing injunctive relief.

Following the Supreme Court's decision last summer in the Bruen case, Ms. Murphy explained that "arms" include anything that constitutes bearable arms and all instruments that facilitate armed self-defense.  Thus, "a rifle, a pistol, a shotgun doesn't become any less of a bearable arm because it has a pistol grip or a thumbhole stock."  And under Heller and Bruen, the only "arms" that can be banned are those that are dangerous and unusual and therefore not in common use by law-abiding citizens.

Judge McGlynn agreed that "there's no question that AR platform rifles are commonly held, typically held" for self-defense.  But are there limits on how large magazine capacity may be such that it could be regulated?  There's no specific cutoff, Murphy responded, but magazines that are commonly possessed may not be banned.  Hundred-round drums are legal in many states, but are not commonly owned for self-defense.

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