Thanks so much to the Federalist Society for the opportunity to speak with you all today. I'm here to briefly respond to recent events concerning the issue of ethics in the judiciary. But I'll begin by admitting my personal bias in these matters.
I had the profound honor of clerking for Justice Thomas from 2005 to 2006. But well before that, I had long concluded that Justice Thomas is one of the most principled and fearless individuals to have ever served in the judiciary. He is a role model—and one of the most inspiring and fascinating Americans alive.
Harlan Crow is a respected business leader, a devoted patriot, and a generous philanthropist. He regularly opens his properties to civic organizations, scholars, and public officials. In fact, he opened his home to me and my family, so that Justice Thomas could swear me in on my first day on the bench. For that, I am eternally grateful. I'm deeply honored to know them both.
We talk about the British artist's earlier days in the comedy world, encounters with the incel community, recent book "Kyle Theory," and love-hate relationship with dating apps. Why did Instagram try to shut down her cartoon response to the "not all men" trope? How can we speak with boys who fall prey to manosphere influencers such as Andrew Tate? And what are the dangers of meeting trolls with "himpathy"?
Lily talks gender differences in worst-date stories, the murder of Sarah Everard, and the mass distribution of VulgaDrawings cartoons as educational materials. Come check out why Lily keeps going viral in what is quickly shaping up to be our most popular episode yet!
[UPDATE: It turns out that the Maryland intermediate appellate court reached the opposite result for the same plaintiff; post bumped up so readers can see the update, which is available in the second half of this post.].]
An interesting item from Judge Theodore Chuang's opinion in Doe v. DeWees (D.M.D. 2020), which I just came across:
Plaintiff Jane Doe, a Maryland resident, has filed a civil rights action against various Maryland state and local government actors in connection with her arrest and detention on June 27, 2015 by Deputy Sheriffs of the Carroll County, Maryland Sheriff's Office after a traffic stop during which she refused to give them her name….
Defendants argue that Doe's claims should be dismissed because she has not demonstrated that she is the real party in interest to this action as required by Federal Rule of Civil Procedure 17, where she has failed to confirm her true identity by providing any government-issued identification or proof of a legal name change, or to satisfy the test outlined in James v. Jacobsen (4th Cir. 1993), for proceeding in a case pseudonymously. Fed. R. Civ. P. 17(a)(1) ("An action must be prosecuted in the name of the real party in interest.").
Where Doe argues that "Jane Doe" is not a pseudonym but instead is the name she uses in everyday life, Defendants' arguments that Doe may not use a pseudonym are not relevant. Although Doe has not shown that Jane Doe was her name at birth or that she legally changed her name to Jane Doe, "Maryland recognizes common law name changes," and "[n]either the statutory or common law method is … the exclusive manner in which a name may be changed." "[A]bsent a statute to the contrary," there is a common law right of any person "to adopt any name by which [a person] may become known, and by which [that person] may transact business and execute contracts and sue or be sued." "[T]his [is] without regard to [one's] true name." Such adoption and use of another name has been approved where it is "consistent" and "nonfraudulent." …
"By maintaining access to these records, the Court promotes the public's interest 'in ascertaining what evidence and records the District Court ... relied upon in reaching [its] decision,' and the Court provides 'the public with a more complete understanding of the judicial system, including a better perception of its fairness.'"
On June 4, 2014, Plaintiffs … filed this action alleging, among other things, defamation and libel after Pei made comments on two websites about his former attorney. After litigating this action for a little over a year, Plaintiffs voluntarily dismissed their Amended Complaint.
On April 11, 2023, Pei, proceeding pro se, filed the pending Motion to Expunge this Case, which asks the Court to "expunge the record of Case 2014-CV-525 from the Court's docket and the public record, pursuant to the applicable rules and procedures." The Court construes this request as a motion to seal the entire case file….
The Sixth Circuit recognizes that "[t]he public has a strong interest in obtaining the information contained in the court record." This interest rests on several grounds, including the public's interest "in ascertaining what evidence and records the District Court and this Court have relied upon in reaching our decisions." By protecting the public's access to judicial records, courts "serve[s] to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its fairness." Accordingly, courts apply a "'strong presumption in favor of openness' as to court records." The burden of overcoming the "strong presumption in favor of openness" of court records is a heavy one: "'Only the most compelling reasons can justify non-disclosure of judicial records.'" …
A panel upheld a preliminary objection barring the Air force from requiring religious objectors to get Covid-19 vaccines, and a majority of the court's judges refused to vacate that decision as moot.
Last fall, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit upheld a district court preliminary injunction that barred the U.S. Air Force from requiring religious objectors to receive COVID-19 vaccinations. As I noted at the time, it appeared that the Air Force's attorneys had not fully considered how it should respond to Religious Freedom Restoration Act (RFRA) claims in this context.
The Air Force has since rescinded the vaccination requirement, and has now asked for panel rehearing or rehearing en banc for the purpose of vacating the panel decision and lower court injunction. No dice said the Sixth Circuit.
The court received a petition for panel rehearing and for rehearing en banc. The petition did not seek review of the issues that the panel's opinion decided. Rather, it sought vacatur of the opinion and of the district court's preliminary injunctions on the ground that events postdating the opinion have now mooted the appeal and the preliminary injunctions. The original panel has reviewed the petition for panel rehearing and has concluded that the district court should review this mootness question in the first instance. It has also concluded that, even if the preliminary injunctions were now moot, that fact would not provide a basis for the "extraordinary remedy of vacatur" of the panel's opinion. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 26 (1994). The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.
Therefore, the petition is denied.
Judge Kethledge issued a brief statement concurring in the denial of en banc review, joined by Judges Thapar, Bush, and Murphy. It reads:
That a party chooses to comply with our decision is hardly a reason to vacate it. Here, at Congress's direction, the Air Force has rescinded the vaccine mandate at issue in this suit. The Air Force — by way of a petition for rehearing en banc — now seeks vacatur of our opinions upholding the district court's preliminary injunctions. Vacatur of our opinions is not a "normal effect" of mootness but an "extraordinary" one. U.S. Bancorp M ortg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994). And the Air Force has not even tried to explain why it is entitled to vacatur when the putative mootness here arose from the government's own actions. See generally id. at 25.
All those action s, of course, occurred well after we issued our opinions here. Meanwhile, "[j]udicial precedents are presumptively correct and valuable to the legal community as a whole." Id. at 26. In this case, our opinions will stand as a caution against violating the Free Exercise rights of men and women in uniform — which, by all appearances, is what the Air Force did here.
Judge Moore issued a statement dissenting from the denial of en banc review, joined by Judges Clay and Stranch. It reads:
The issue in this case is whether the Air Force's administration of its COVID-19 vaccine mandate violated certain of its servicemembers' religious rights. After a panel of this court affirmed the district court's judgment preliminarily enjoining the Air Force from enforcing its vaccine mandate—but before the case was returned to the district court—Congress enacted the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 ("NDAA"), which ordered the Secretary of Defense to rescind the military's COVID-19 vaccine mandate. Pub. L. No. 117-263, § 525, 136 Stat. 2395, 2571–72 (2022). Twelve federal appellate judges on three courts of appeals have unanimously concluded that the NDAA and the military's implementation of that legislation mooted similar preliminary-injunction appeals. See Roth v. Austin, 62 F.4th 1114, 1119 (8th Cir. 2023); Dunn v. Austin, No. 22-15286, 2023 WL 2319316, at *1 (9th Cir. Feb. 27, 2023) (order); Short v. Berger, No. 22-15755, 2023 WL 2258384, at *1 (9th Cir. Feb. 24, 2023) (order); Navy Seal 1 v. Austin, No. 22-5114, 2023 WL 2482927, at *1 (D.C. Cir. Mar. 10, 2023) (per curiam). My review of these decisions and the record in this case leads me to the same conclusion. I would therefore grant the petition for rehearing en banc, which would have the normal effect of vacating the panel's opinion, and hold that Congress's action mooted the pending appeals of the district court's preliminary-injunction orders.
At one point during my testimony, the presiding judge reminded me that one of the extenuating circumstances was "remorse for what [the accused] has done." And although there is little that's amusing about my present situation, I could not help smiling: Criminals must repent of their deeds. But I'm in prison for my political views. For speaking out against the war in Ukraine. For many years of struggle against Vladimir Putin's dictatorship. For facilitating the adoption of personal international sanctions under the Magnitsky Act against human rights violators.
Not only do I not repent of any of this, I am proud of it…. I subscribe to every word that I have spoken and every word of which I have been accused by this court. I blame myself for only one thing: that over the years of my political activity, I have not managed to convince enough of my compatriots and enough politicians in the democratic countries of the danger that the current regime in the Kremlin poses for Russia and for the world. Today this is obvious to everyone, but at a terrible price — the price of war.
I have made a couple small adjustments to the above text, so it will better reflect the Russian original (which is available here).
Later in the statement, Kara-Murza expresses his confidence that Russian views of the war and the Putin regime will shift over time:
I… know that the day will come when the darkness over our country will dissipate. When black will be called black and white will be called white; when at the official level it will be recognized that two times two is still four; when a war will be called a war, and a usurper a usurper; and when those who kindled and unleashed this war, rather than those who tried to stop it, will be recognized as criminals.
This day will come as inevitably as spring follows even the coldest winter. And then our society will open its eyes and be horrified by what terrible crimes were committed on its behalf. From this realization, from this reflection, the long, difficult but vital path toward the recovery and restoration of Russia, its return to the community of civilized countries, will begin.
I wish I could be as confident of this as Kara-Murza. But it's worth noting that similar transformations have happened in a variety of nations around the world. Today, most Germans, Italians, and Japanese recognize the evil nature of the regimes that ruled those countries in the 1930s and 40s. In the United States, most Americans have come to recognize the historic evils of slavery, segregation, and the oppression of Native Americans. It is entirely possible that a similar transition will occur in Russia in the future. Those who believe that Russians are inherently brutal authoritarians incapable of change should recall the long history of similar statements about Germans and Japanese, among others.
As I explained in a post on the one-year anniversary of the current war, such transformations are often facilitated by defeat in war. As the examples of the Nazis, the Confederates, and others show, defeat often helps discredit the ideology of the defeated regime. Putin's imperialist nationalism is more likely to be discredited in the eyes of Russians if it suffers a decisive defeat in Ukraine. That provides an additional reason to push for such an outcome.
Kara-Murza's bravery, like that of Ilya Yashin, sentenced to an 8.5 year term in December, also raises the issue of the proper Western attitude towards Russians at the present time. In my February post about Yashin [who is no relation of mine, the name "Ilya" is a common one], I explained why both moral and practical considerations should lead us to reject theories of collective guilt and to open our doors to Russian migrants fleeing Putin's regime:
As Yashin suggests [in a statement he wrote from prison], ascriptions of collective guilt are wrong in themselves—conflating the innocent with the guilty. In addition, they play into the hands of the regime's propaganda by lending credibility to its claims that the West is hostile to Russians, as such….
First, I wonder how many of those who fault Russians for not protesting enough, would themselves be willing to do so if they were in Russia right now, and speaking out meant risking a lengthy prison sentence, like the one Yashin got? We should be wary of imposing standards on others that we would not live up to ourselves, if we were in their place.
Second, as I have argued time and again from the beginning of the war, both moral and pragmatic considerations counsel in favor of opening our doors to Russians fleeing the regime, just as we—to a large extent—have done for Ukrainian refugees (I cannot easily be accused of neglecting the cause of the latter)…. Thus, more would be freed from oppression, and the "brain drain" and loss of manpower imposed on Putin's regime would be larger. To the extent that theories of collective guilt are used to justify barring Russian migrants, they are having a deeply pernicious effect.
Finally, projecting a less negative attitude towards the Russian people is in the long-term interest of both Ukraine and the West. Military action may enable Ukraine to expel Russian troops from its territory and end the immediate threat of conquest. But the long-term threat posed by Russia will only dissipate if Putin's authoritarian nationalist regime is replaced by a much more liberal one that abjures oppression and conquest….
None of this means Putin alone bears the sole blame for the war and its evils. Obviously, he has many collaborators, including some who are responsible for horrific atrocities. Those people deserve condemnation and—where possible—punishment. But we should distinguish between them and the population, at large. Indeed, punishment for war crimes is another goal that—most likely—can only be achieved through a liberalization of Russia.
This day will come as inevitably as spring follows even the coldest winter. And then our society will open its eyes and be horrified by what terrible crimes were committed on its behalf. From this realization, from this reflection, the long, difficult but vital path toward the recovery and restoration of Russia, its return to the community of civilized countries, will begin.
Republican state legislatures across the country are debating significant reforms in state university systems. Some of the reform proposals are fairly modest, but others would substantially transform how higher education work in public universities. In several instances, those bills are now moving toward some resolution, and so a series of posts checking in on where things stand seems in order. I discussed North Dakota and Texas and Ohio in earlier posts.
Next up is Tennessee. The Tennessee state legislature has just passed the "Tennessee Higher Education Freedom of Expression and Transparency Act," and it is now awaiting the governor's signature. The new bill builds on a divisive concepts law that was enacted in 2022. Especially in the aftermath of the "Tennessee Three" expulsion fracas, commentators have pulled out the rhetorical stops in denouncing the new bill.
I know that this will come as a shock, but most of the things you will read on Twitter about this bill are wrong. Some parts of this bill and its 2022 predecessor are not particularly good, or even useful, but the consequences of adopting it have been greatly exaggerated. And some parts of both the new bill and the existing law are actually pretty good.
I am the author of the recent book, Classified: The Untold Story of Racial Classification in America (Bombardier Books 2022). This comment is in opposition to the proposal to create a new MENA racial classification.
The most obvious problem is that "Middle East and North African" has never been treated in the United States as a race. Beyond that, while I support the notion of the government collecting more granular data about ethnic groups, the MENA classification will not do so.
There are approximately 3.5 million Arab Americans in the United States. About half are descended from early 20th century immigrants, predominately Christians. The other half are primarily Muslim immigrants who have arrived since the 1970s. Lumping these groups together as "Arab Americans" will obscure more than it illuminates. The even bigger problem, though, is that instead of creating an Arab American ethnic classification, the government proposes to create a MENA racial classification. This classification would include, in addition to Arab Americans, approximately 500,000 Israeli immigrants and their descendants, about 300,000 other MENA Jews, 600,000 Iranians, and 500,000 Chaldean Americans.
Regardless of official definition, one can also expect many Armenian Americans, Afghan Americans, and others to check the MENA box on forms rather than or in addition to white. One can also expect some percentage of Ashkenazic Jews to check the MENA box, especially given the current vogue of many Jews insisting that they aren't white, and DNA evidence showing that "European Jews" have significant Middle Eastern genetic heritage.
In short, a new "racial" MENA classification will not serve its purported purpose of providing data about Arab Americans; at least as many non-Arab Americans will be part of the classification as will Arab Americans. The "white" classification is admittedly a government-created pseudo-race that arbitrarily combines vastly different populations under a single heading. Unfortunately, rather than addressing the problem, creating a new MENA classification will create a new arbitrary pseudo-race.
With that said, some background based on Classified.
Through the late twentieth century, most immigrants to the United States from Arab countries were Christians from Lebanon, along with a smaller number of Muslims and Jews. After some uncertainty early in the early twentieth century, American law and custom ultimately treated these immigrants and descendants as "whites." In the late 1970s, when the federal government created our modern racial classification scheme, Arab Americans were placed in the white classification. This decision attracted no controversy, as the overwhelming majority of Arab Americans self-identified as white.
Nevertheless, in the 1980s, Arab American organizations lobbying for the US census to recognize a new Arab or Middle Eastern racial category. They hoped enumerating the Arab American population would increase its visibility and political clout, and perhaps plant the seeds for eligibility for affirmative action. In the meantime, more Muslims from Arab countries began immigrating to the US. A new generation of Muslim Arab American progressive political activists self-identified as "people of color." The media generally accepted this designation. For example, Congresswoman Rashida Tlaib and activist Linda Sarsour, both Muslims of Palestinian Arab descent, have been widely described, and describe themselves, as "women of color." Sarsour explicitly attributes this designation to her being Muslim. However, while it's certainly true that Muslims face significant discrimination in the US, the US has never classified people by religion, and substituting MENA for Muslim neglects the fact that many, perhaps most, people who would qualify to check the MENA box are not Muslim.
In the early 2010s, the Census Bureau again began studying whether it should add a MENA category to the 2020 census. Census Bureau researchers reported that Israeli American and Jewish organizations told them that American Jews did not want to be included in the MENA category because they identify their ethnicity as Jewish, not Middle Eastern. The latter response, however, is beside the point, because there is no "Jewish" category on census and other forms; most Jews would have the choice between identifying themselves as white or as MENA.
The Trump administration ultimately killed the new MENA classification, in part because of the relative lack of enthusiasm from the grassroots for a new MENA racial category. Arab American groups and their Iranian American allies are trying again in the Biden administration. Our current classification scheme is already incoherent, arbitrary, and divisive. An additional "racial" classification, especially for a group that is internally very diverse and fits no sensible definition of a "race," will just make matters worse.
Those claiming they are subject to unconstitutional agency proceedings need not suffer through agency proceedings before bringing their claims to federal court.
Yesterday a unanimous Supreme Court held that those subject to federal agency adjudicaiton can challenge the constitutionality of such adjudication in federal court before such adjudication concludes. What some had billed as an attack on the viability of the adminstrative state was not viewed that way by the justices, who all agreed the agencies' attempts to insulate themselves from federal judicial review lacked legal basis.
Justice Elena Kagan wrote the opinion for the Court in Axon v. Federal Trade Commission (which was combined with Securities and Exchange Commission v. Cochran). It is a clear and engaging opinion that makes the underlying issues readily accessible, even to those with no particular affinity for administrative law. Justice Thomas wrote a separate concurrence, and Justice Gorsuch wrote an opinion concurring in the judgment.
The introduction to Justice Kagan's opinion lays out the issues rather clearly:
In each of these two cases, the respondent in an administrative enforcement action challenges the constitutional authority of the agency to proceed. Both respondents claim that the agencies' administrative law judges (ALJs) are insufficiently accountable to the President, in violation of separation-of-powers principles. And one respondent attacks as well the combination of prosecutorial and adjudicatory functions in a single agency. The challenges are fundamental, even existential. They maintain in essence that the agencies, as currently structured, are unconstitutional in much of their work.
Our task today is not to resolve those challenges; rather, it is to decide where they may be heard. The enforcement actions at issue were initiated in the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC). Most objections to those Commissions' proceedings follow a well-trod path. As prescribed by statute, a party makes its claims first within the Commission itself, and then (if needed) in a federal court of appeals. The parties here, however, sidestepped that review scheme. Seeking to stop the administrative proceedings, they instead brought their claims in federal district court. The question presented is whether the district courts have jurisdiction to hear those suits—and so to resolve the parties' constitutional challenges to the Commissions' structure. The answer is yes. The ordinary statutory review scheme does not preclude a district court from entertaining these extraordinary claims.
Under existing precedent, whether the existence of the agency adjudicative scheme precludes district court jurisdiction over related suits against agencies is determined by the so-called Thunder Basin factors. While the proper application of this test may be unclear in some cases, Justice Kagan's opinion makes clear that there was no real question how these factors should apply here. There was no basis for forcing Axon and Cochran to subject themselves to allegedly unconstitutional agency proceedings before bringing their constitutional challenges.
From Justice Kagan's opinion:
The harm Axon and Cochran allege is "being subjected" to "unconstitutional agency authority"—a "proceeding by an unaccountable ALJ." . . . That harm may sound a bit abstract; but this Court has made clear that it is "a here-and-now injury." . . . And—here is the rub—it is impossible to remedy once the proceeding is over, which is when appellate review kicks in. Suppose a court of appeals agrees with Axon, on review of an adverse FTC decision, that ALJ-led proceedings violate the separation of powers. The court could of course vacate the FTC's order. But Axon's separation-of-powers claim is not about that order; indeed, Axon would have the same claim had it won before the agency. The claim, again, is about subjection to an illegitimate proceeding, led by an illegitimate decisionmaker. And as to that grievance, the court of appeals can do nothing: A proceeding that has already happened cannot be undone. Judicial review of Axon's (and Cochran's) structural constitutional claims would come too late to be meaningful.
Justice Thomas wrote a separate concurrence acknowledging that existing precedent required application of the Thunder Basin factors, while reiterating his "grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end." Writes Thomas:
whether any form of administrative adjudication is constitutionally permissible likely turns on the nature of the right in question. If private rights are at stake, the Constitution likely requires plenary Article III adjudication. Conversely, if privileges or public rights are at stake, Congress likely can foreclose judicial review at will.
Thus, as Thomas often does, he suggests this is an issue the Court should confront in a future case.
Justice Gorsuch only concurred in the judgment, arguing that the Court should disregard the Thunder Basin factors because Congress has provided for federal jurisdiction over claims such as those brought by Axon and Cochran under 28 U.S.C. Section 1331.
As Gorsuch writes:
As the Court sees it, Ms. Cochran, Axon, and others like them must satisfy not only §1331. They must also satisfy a judge-made, multi-factor balancing test. One assembled from remarks scattered here and there across the pages of Thunder Basin Coal Co. v. Reich, 510 U. S. 200 (1994). And one, we are told, designed to ferret out whether the legislators who adopted the Federal Trade Commission Act in 1914 and the Securities Exchange Act in 1934 harbored an "implici[t]" wish to "ous[t]" district courts of jurisdiction in favor of agency proceedings. Ante, at 7. So, yes, the law on the books may promise you the right to be heard in a court of law. But sometimes that doesn't count for much. Sometimes judges can shunt you to an agency instead—so long as a test we have fabricated suggests to us that is what Congress really wanted. . . .
No one disputes that §1331 represents a valid exercise of Congress's authority to regulate the jurisdiction of the district courts. No one questions that §1331 permits cases like those before us to proceed. No Member of the Court points to any statute Congress has adopted that speaks otherwise. Under the law, that should be the end of the matter. . . .
At bottom, Thunder Basin rests on a view that it is sometimes more important to allow agencies to work without the bother of having to answer suits against them than it is to allow individuals their day in court. But when Congress holds that view, it does not ask us to juggle a variety of factors and then guess at the implicit intentions of legislators past. It simply tells us.
Justice Gorsuch also explains why the approach adopted in these sorts of cases matters.
While the Court reaches the right result today, its choice of the wrong path matters. Not just because continuing to apply the Thunder Basin factors leaves the law badly distorted. It also matters because Thunder Basin's throw-itin-a-blender approach to jurisdiction imposes serious and needless costs on litigants and lower courts alike.
Jurisdictional rules, this Court has often said, should be "clear and easy to apply." . . . For parties, "[c]omplex jurisdictional tests complicate a case, eating up time and money as [they] litigate, not the merits of their claims, but which court is the right court to decide those claims." . . . For courts, jurisdictional rules "mark the bounds" of their "'adjudicatory authority.'". . . Judges therefore "benefit from straightforward rules under which they can readily assure themselves of their power to hear a case," . . . while "adventitious" rules leave them with "almost impossible" tasks to perform that squander their limited resources,
There are many words to describe the Thunder Basin factors, but "clear and easy to apply" are not among them. . . .
Justice Gorsuch concludes:
When Congress withholds jurisdiction, we must respect its choice. But when Congress grants jurisdiction to the Nation's courts, we must respect that choice too. We have no authority to froth plain statutory text with factors of our own design, all with an eye to denying some people the day in court the law promises them. Respectfully, this Court should be done with the Thunder Basin project. I hope it will be soon.
While the Axon decision is solely concerned with where claims challenging the constitutionality of agency structure and composition may be brought, a consequence of this decision is that such claims--particularly those challenging tenure protections for administrative law judges--will likely return to the Supreme Court sooner rather than later. When those cases arrive, a unanimous judgment seems much less likely.
Some conservatives are in the awkward position of resisting both policies that reduce the role of race in allocating kidneys for transplant, and those that increase it. The better way to alleviate kidney shortages is to legalize organ markets.
The United States has a severe shortage of kidneys available for transplant. As a result, many thousands of people die every year, and thousands more are condemned to years of painful and costly kidney dialysis until they are finally able to get off the waiting list for organs. Recently, organ transplant organizations have been attempting to alleviate perceived racial disparities in access to organ transplants through policies that in some ways increase the role of racial considerations in deciding who gets priority in the transplant queue, and in other ways reduce it.
Both have attracted the ire of Dr. Stanley Goldfarb, a prominent conservative advocate and commentator on health care policy. Some of his objections seem sound, whereas others contradict principles of color-blindness that "anti-woke" conservatives rightly advocate in other contexts. But both he and his left-wing opponents in these debates ignore by far the best way to alleviate kidney shortages for patients of all races: legalizing organ markets.
Goldfarb summarizes the proposed race-related policy changes and his reasons for opposing them in a recentCity Journal article:
The Organ Procurement and Transplantation Network (OPTN) and the United Network for Organ Sharing (UNOS) are implementing new policies to make skin color a crucial factor in who receives life-saving kidney transplants. The shift is perhaps the most dangerous victory for wokeness in health care to date.
In the name of "equity," UNOS and OPTN purport to be expanding black patients' access to kidney transplants. They essentially claim that the longstanding system for such transplants is racist, pointing to how black patients make up 30 percent of the dialysis population and transplant wait list but receive a smaller fraction of kidney transplants….
UNOS and OPTN… are forcing transplant centers to rework the waitlist for cadaveric kidneys in such a way that favors black patients. The rationale is that the longstanding formula used to estimate kidney function, which was race-conscious and required a second calculation for black patients, was racist.
Yet this second calculation was necessary to produce an accurate value for kidney function in black patients. Without it, the measure would be highly inaccurate, dramatically underestimating kidney function. (Research shows that people of African-American descent tend to have higher levels of muscle mass compared with other population groups, which can affect the levels of creatinine, a waste product produced by muscles, in their blood. Creatinine is used as a marker to estimate kidney function in GFR equations, including the MDRD equation; however, African Americans may have higher creatinine levels even if their kidney function is normal.)….
Many black patients previously regarded as ineligible for the transplantation waitlist will now be listed, and some will even be moved ahead of others already on the waiting list…
OPTN is also preparing, in the name of equity, to abandon its longstanding pledge to those who selflessly donated a kidney to a loved one or even to a stranger through a matching program. Currently, these courageous donors are listed at the top of the transplant waiting list should they ever require a transplant. Donating a kidney does not increase the risk of developing kidney failure, so the need is unlikely. Yet this was the only compensation for the charitable act allowed by law. And it helped reassure donors, many understandably worried about the possibility of needing a transplant of their own.
Five times as many whites as blacks donate kidneys, which means that many more whites enjoy this benefit. Activists therefore see it as racist, and they want OPTN to change its policies. The group is considering four proposals; all would eliminate prior donors' waitlist priority and give them a mere 10 percent–15 percent improvement on their waitlist position.
In the name of anti-wokeness, Goldfarb here objects to a proposal that would actually reduce the consideration of race in determining who is eligible for a kidney transplant. This is pretty obviously at odds with traditional conservative support for color-blind government policy and condemnation of the "woke" for promoting race-consciousness. The new OPTN formula for estimating kidney functioning is actually race-neutral, whereas the old one explicitly took race into account, in a way that penalized black transplant candidates. Advocates of race-neutrality should welcome this change, not complain about supposed "wokeness."
Admittedly, one could argue that this is one of the very rare cases where racial discrimination may be justified because there are genuine physical differences between racial and ethnic groups, as is the case with vulnerability to certain genetic diseases (such as Tay-Sachs Disease, which primarily affects Ashkenazic Jews and a few other groups). But defenders of race-conscious policy would at least have to show that the connection between race and lesser vulnerability is so great as to be strong enough to overcome the presumption against racially discriminatory policies, and that the difference cannot be captured by other measures, such as controlling for the patient's muscle mass (higher average muscle mass is, according to Dr. Goldfarb, the reason for the difference between black patients and others).
Dr. Goldfarb is on stronger ground in criticizing the proposal to reduce the priority given to organ donors in the queue for receiving kidneys. Such a policy would predictably reduce the incentive to donate kidneys in the first place, thereby further exacerbating the organ shortage. Moreover, it is not even the case that African-Americans are underrepresented in the class of people eligible for preferences because they have donated kidneys in the past. As of 2021, 15.1% of kidney donors were black, which is actually a 25% larger figure than the black percentage of the US populations (12%). Even if we assume that "equity" requires proportional representation of African-Americans in the class of people eligible for donor preferences, the status quo already meets that standard.
Organ markets would not, of course, require individual patients to personally purchase kidneys at some kind of store or auction. Rather, they would be bought by health care providers, just as other complex medical supplies currently are. They would have strong incentives to assure quality and safety (as is currently true with unpaid donations). Indeed, the option of payment can actually improve quality, by eliminating shortages that may currently lead to pressure for lower standards.
To the extent African-Americans are disproportionately likely to endure long waits under the current system, legalized organ markets would be a particularly great boon for them. But organ markets can save the lives of many thousands of people without regard to race. I hope woke and anti-woke alike will come to see the value of that.
UPDATE: In one of its relatively few good policies, the Trump Administration increased allowable compensation for expenses incurred by organ donors; they deserve great credit for that. But much more can be achieved by legalizing payments over and above expenses. After all, there would be shortages of almost any good or service if consumers were not allowed to pay more than it cost producers to provide.
UPDATE 2: Dr. Goldfarb has written a reply to this post, which is available here. I, in turn, wrote a brief rejoinder, posted here.
I yearn for the day where litigants seek their courts unburdened by the mere possibility of physical reprisal. That hope may be quixotic today. The digital age is one of comprehensive access, whether via electronic case files, search engines, or Twitter updates. Gone are the days where motions and orders collected dust in the anachronistic file rooms below this courthouse. Litigants' privacy expectations have too changed. Federal lawsuits are, more and more, above-the-fold news. Add in salacious claims against one, who Plaintiffs concede, stands in the public forum and the media spotlight bums brighter. "But the threat of significant media attention—however exacerbated by the modem era—alone does not entitle a plaintiff to the exceptional remedy of anonymity under [Fed. R. Civ. P.] 10." Rapp v. Fowler (S.D.N.Y. 2021). {"In private civil suits, courts recognize there is a significant interest in open judicial proceedings since such suits do not only advance the parties' private interests, but also further the public's interest in enforcing legal and social norms." Doe v. Leonelli (S.D.N.Y. 2022).} Plaintiffs insert themselves into a contentious debate gripping our nation; their collective residence in a known location is cause for concern.
However, Plaintiffs' conclusory fears of unspecified retaliation, sans any particularized facts, are insufficient to meet the exceptional circumstance of pseudonymity. See also Doe v. Lee (M.D. Tenn. 2022) (holding that a plaintiff's: (1) concerns that a lawsuit "might receive press attention that might expose him to harm from members of the public" were speculative; and (2) failure to offer evidence "that such harm [was] likely" was insufficient to warrant pseudonymity); Doe v. Weber State Univ. (D. Utah Oct. 29, 2021) (rejecting a physical-harm exception where the adult plaintiff provided "no information, evidence, or particularized facts supporting" her claim) (also noting that the plaintiffs sexual misconduct allegations "all relate[d] to how [the public university] addressed, or failed to address, [her] complaints"). While Plaintiffs offer no authority prompting reconsideration, the Court cannot unearth a single instance where the Tenth Circuit has granted the physical-harm exception.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
The Fifth Amendment requires just compensation when the government takes property, and, for all of recorded human history that matters, this requirement has always been "self-executing." Meaning Congress doesn't need to pass a law saying the Fifth Amendment requires just compensation. But the Fifth Circuit recently held otherwise. Click here to read all about it in the Washington Examiner. Or click here for IJ's cert petition. Or perhaps click here for a podcast about the case.
A very interesting item by Adam Unikowsky, defending the Court's relatively narrow reading in TWA v. Hardison (1977) of the Title VII duty to grant religious exemptions from generally applicable work rules. The Court is now considering reversing that decision in Groff v. DeJoy; James Phillips guest-blogged here last month in favor of such a reversal (and supporting Justice Marshall's dissent in that case, which was joined by Justice Brennan), and I'm glad to also present Unikowsky's largely contrary view. An excerpt, though the whole thing is much worth reading:
Under Title VII of the Civil Rights Act, it is illegal for an employer to "discriminate" against an individual "because of such individual's … religion." The term "religion" is defined to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."
What does "undue hardship" mean? In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that requiring an employer to "bear more than a de minimis cost" would constitute an undue hardship. Hardison has acquired a poor reputation among proponents of religious liberty, who view it as conferring insufficient protection to religious employees. The Supreme Court has recently granted certiorari in a new case, Groff v. DeJoy, in which the plaintiff asks the Court to overrule Hardison and replace it with a new standard in which the employer must accommodate the employee's religious practice unless it would impose a significant cost on the employer.
In this post, I will argue that Hardison should not be overruled. Clarified perhaps, but not overruled. In my view:
Republican state legislatures across the country are debating significant reforms in state university systems. Some of the reform proposals are fairly modest, but others would substantially transform how higher education work in public universities. In several instances, those bills are now moving toward some resolution, and so a series of posts checking in on where things stand seems in order. I discussed North Dakota and Texas in earlier posts. Texas is still very much in play, but North Dakota appears to be done for now.
Next up is Ohio. The chairman of the Senate Workforce and Higher Education Committee in Ohio is pushing a single reform bill, Senate Bill 83. It enjoys the support of the National Association of Scholars and the American Council of Trustees and Alumni. SB 83 currently sits in Senate committee. The "Ohio Higher Education Enhancement Act" bundles a variety of proposals into a single legislative package. It is more sweeping than the proposals in some other states, but also generally less intrusive into the scholarly work on state university campuses.
