The Volokh Conspiracy

Today the Supreme Court heard oral argument in 303 Creative v. Elenis. I was pleased that Justice Alito found useful the amicus brief filed by the Jewish Coalition for Religious Liberty. Around the 1:07:02 mark, he referenced our brief, and posed a few hypothetical questions that we raised.

Here is the audio:

JUSTICE ALITO: Let me ask you a -a --and then I'll finish this line. Some hypotheticals in a brief submitted by Josh Blackman, okay? A --a Jewish man and a Jewish woman who are engaged to be married ask a Jewish website designer to build a website to celebrate their upcoming --their nuptials. No problem. Okay? Another Jewish man and a Christian woman who are engaged to be married ask a Jewish website designer to build a website to celebrate their --their nuptials. Big problem. "Many Jews consider intermarriage an existential threat to the future of Judaism." Does that website have to accept the second couple?

MR. OLSON: Again, as we talked about before, if the Jewish website designer has, you know, very explicitly Jewish themes on the -the wedding, they don't need to --on the website, they don't need to take that down for the --the --the interreligious couple that comes. But they --if they offer a general service to the public, they need to offer that regardless of the customer's religion.

JUSTICE ALITO: So the fact that they offer this to --that this is a Jewish --that is offered mostly to Jews, that's enough to make it --or exclusively to Jews, that's enough to make it sufficiently selective to get them out from your -

MR. OLSON: No. I'm --I'm drawing a distinction between what the website designer chooses to put on the website and who the website designer sells the website to. The website designer can choose to put on their websites whatever they want, but they just can't refuse to sell --if they're a public accommodation, they can't refuse to sell that website to someone solely because of their -the customer's or the couple's religion.

JUSTICE ALITO: Okay. An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile. It's a dating service, I gather, for Jewish people.

JUSTICE KAGAN: It is. (Laughter.)

JUSTICE ALITO: All right. Maybe Justice Kagan will also be familiar with the next website I'm going to mention. So, next, a Jewish person asks a Jewish photographer to take a photograph for his ashleymadison.com dating profile. (Laughter.)

JUSTICE ALITO: I'm not suggesting that. I mean, she knows a lot of things.

I'm not suggesting --okay. Does he have to do it?

MR. OLSON: Well, again, it would -it would --what Colorado look --it depends. What Colorado looks to is what services the photographer makes available to the public. And if --if the photographer makes that service available to --to others, taking pictures, you know, for use on websites, then probably yes, but it depends on -

JUSTICE ALITO: Okay, Justice --then I really will stop.

And here are the hypos from our brief:

Consider another hypothetical closer to the facts in 303 Creative. A Jewish man and a Jewish woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. No problem. Mazal tov! Another Jewish man and a Christian woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. Big problem. Don't stomp the glass. Many Jews consider intermarriage an existential threat to the future of Judaism.[1] Under the 10th Circuit's ruling, the Jewish artisan would be compelled to voice support for an existential threat to the future of his faith.

Let's turn from marriage to adultery. An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile. Swipe right for the shidduch.[2] Next, a married Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile.[3] Swipe left for this shanda.[4] After all, adultery is a violation of the Seventh Commandment.[5]

In each of these examples, a Jewish artist would be compelled to betray his conscience. Yet, the Tenth Circuit would force the Jewish artisans to lend their voices to these breaches of faith.

[1] Rabbi Menachem Schneerson, What's Wrong With Intermarriage, Chabad.org, https://bit.ly/3wPo8fz (last visited May 30, 2022) (describing intermarriage as a "calamit[y]" that "concerns the whole Jewish people"), Rabbi Steven Weil, After Pew: What Will It Take to Save American Jewry, JewishAction.com, https://perma.cc/7ZN8-8UXW (last visited May 30, 2022) (noting that an "astoundingly high intermarriage rate" is one reason why "American Jewry is on a train speeding headlong into self-destruction").

[2] In Jewish circles, the word shidduch describes the dating process that (hopefully) leads to a Jewish marriage.

[3] Scott Cameron, The Infidelity App, NPR.org,  https://perma.cc/UNE9-6959 (Last visited May 30, 2022).

[4] Shanda is a Yiddish word to describe something shameful.

[5] The Ten Commandments, Chabad.org, https://bit.ly/3LQZteT (Last visited May 30, 2022).

Update: There was coverage of the brief in CNN and SCOTUSBlog.

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Flash-back to March 2015. At the time, Mike Pence was the Governor of Indiana. And the Hoosier State enacted a version of the Religious Freedom Restoration Act. This move was highly controversial. Progressive groups feared this bill would provide a license to discriminate in the name of religion. I wrote an essay in National Review explaining that the state RFRA was modeled after the venerable federal standard.

Seven years later, that same RFRA which progressives excoriated, is now being used to stop post-Dobbs abortion laws. And a superior court in Marion County has enjoined the law based on the state RFRA.

Readers of this blog will likely be familiar with some of my writings on religion and abortion (see here, here, here, and here). Indeed, there are two law review articles that engage my views at some length. (I have some quibbles with how the former article characterized my article, and have been in touch with the authors; I think the latter article treats my work fairly.)

There is much to write about the trial court's ruling. Here, I will focus on five primary issues.

First, the court makes a categorical error, and asserts that there is only one view on Jewish law with regard to abortion. For example, the court said "In order to protect the woman, Jewish law recognizes that there are circumstances in which abortion should occur and is mandated even if there is not a physical health risk that is likely to cause death or the substantial and irreversible physical impairment to a woman's major bodily function." And the court said, "Judaism allows for and requires that an abortion be provided if the pregnancy threatens the woman's mental health, for instance if the pregnancy would aggravate psychological problems or cause such problems." To support these claims, the court cited declarations from a few rabbis. But these rabbis do not, and indeed cannot, speak to what Jewish law "mandates" or "requires." A court cannot state, as a matter of fact, what "Jewish law" obligates. (And query whether making these absolute statements amounts to an establishment of what the Jewish faith requires?). These sorts of statements are extremely problematic. I made this point in June:

There is no Jewish equivalent of a Pope. We often speak of "Orthodox," "Conservative," and "Reform" Jews, but even within these categories, there is no official or standardized set of teachings. Every Congregation, indeed, every Rabbi, may follow the teachings in different fashions. Moreover, every Jew can look to faith in his own fashion. And there is no obligation to be consistent. A Jew could hold one opinion in the morning, and then change his mind over lunch, and go back to the original position after dinner. The old saw, Two Jews, Three Opinions, is apt.

What's paradoxical is that the court recognized that another faith, Islam, has different perspectives on the abortion issue. No one spiritual leader can speak for all Muslims. The court wrote:

Although, as in any religion, there are different Islamic schools and views, some Muslim scholars take the position that the fetus does not possess a soul until 120 days after conception.

There are many different schools of thought within Judaism on abortion. The declarations from the rabbis do not speak for all Jews. My colleagues Howard Slugh and Tal Fortgang explain a different Jewish perspective on abortion.

Second, in any event, the specific contours of the Jewish faith are not dispositive for this case. Indeed, Anonymous Plaintiff 2 does "not belong to a specific religious denomination." Rather, her "personal religious and spiritual beliefs . . .  guide her moral and ethical practice and life." What are those beliefs? "She does not believe in a single, theistic god, but believes that there is within the universe a supernatural force or power that connects all humans and is larger than any individual person." Moreover, she has a "spiritual obligation to determine whether to remain pregnant." Anonymous Plaintiff 2 claims that her "religious beliefs are sincerely held."

RFRA defines the "exercise of religion" as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." If we assume the beliefs of this anonymous plaintiff are in fact sincerely held, I predict that a future ground of dispute is whether her system of beliefs is religious at all, or rather are based on something other than "religion." Calling something "religious" does not necessarily make it "religious." Justice Scalia's concern in Smith that "each conscience [can be] a law unto itself" would ring true. Given that we are defining a term in a statute, and not in the Constitution, it would be useful to know how the phrase "system of religious belief" was understood when the statute was enacted, and in prior caselaw.

Third, the trial court found that the state lacks a compelling interest to prohibit abortion in this context. Specifically, the court ruled that "the question of when life begins is a theological one not a factual question for this Court." In other words, the Court cannot accept the state's contention that there is a compelling interest to protect fetal life from conception, because that is a religious and not legal question. Dobbs was able to avoid this question, but at that moment, I realized that RFRA would force the court to grapple with defining the compelling interest.

Right here is the trial court's most vulnerable point. I don't expect this part of the ruling to survive on appeal. States can be afforded some latitude to define compelling interests, especially concerning the police power. And the Supreme Court is no doubt toiling with these issues now: Students for Fair Admission and 303 Creative may have to tackle the compelling interest issue. (I address that issue in an amicus brief for 303 Creative.) Justice Scalia in Smith objected to Sherbert due to the difficulty of defining a compelling interest. (Somewhere, Justice Barrett is wiping sweat off her brow for not overruling Smith in Fulton.)

By contrast, the analysis of "least restrictive means" is trickier, since there are exceptions for rape and incest, but not for religious exercise. Do those exceptions, in light of Fulton and the most-favored nation approach, undermine the state's compelling interest?

Fourth, if we take these arguments to their logical conclusion, then RFRA would provide greater protections than Roe and Casey. A person's sincerely-held religious belief, however defined, may require an abortion through the ninth month. Indeed, any burden--even if not undue--would violate those rights. For example, requirements to obtain a sonogram, which were upheld under the Casey regime, would violate a woman's free exercise. Who needed substantive due process when RFRA was here all along?

Fifth, I am not certain about the scope of the court's remedy. Usually, RFRA exemptions are granted to named plaintiffs, who articulate specific objections to a government practice. And the injunction here seems limited to the named plaintiffs. One of the groups, Hoosier Jews for Choice, presumably would probably accept as a member any Jewish woman who seeks to obtain an abortion. (It's not clear if every member of that organization needs to share the same religious beliefs, or if non-Jews could join?) How would other Indianans avail themselves of this ruling? Could a person in urgent need of an abortion suddenly find their faith, and profess a sincerely held belief? A class was not yet certified. And, as I wrote in May, certifying such a religious class would be difficult, as individual beliefs are so personal. And proving sincerity based on class representatives cannot work.

***

I wrote about this issue before Dobbs was decided because I recognized it would have legs. Those who historically have favored a broad reading of RFRA, and seek to overrule Smith, need to contend with these arguments. Doing so will not be pleasant, as the barrage of responses to my posts illustrate.  Abortion and religion are the third and fourth rails in our polity. (I lost count of how many times I was called an anti-semite.) Going forward, it is not enough for states to rely on the "compelling interest" prong. I think there needs to be a more careful discussion of "least restrictive means," and whether there is in fact a "substantial burden" of a religious exercise.

I wrote two posts on the latest incarnation of United States v. Texas. Based on my read of the oral argument, I think the ultimate vote may be very fragmented. The Court's six conservatives are not on the same page. And the Court's three progressives will--as they always do when it counts--hang together. The bottom line is the lower-court ruling would be vacated, without a single five-member majority opinion. Here is my crude prediction, that should not be taken very seriously.

First, I think Justice Barrett has already signaled that Article III does not permit the remedy Texas sought--a vacatur. And if the court cannot issue an order that remedies the plaintiff's purported injury, then the court lacks jurisdiction. Thus, Barrett could toss the case on redressability grounds, without deciding whether Texas suffers an injury in fact. The Court followed this path in California v. Texas, which Barrett presaged in oral arguments. Justice Gorsuch also seemed to lean in this direction. These two judges, who were never part of the D.C. Circuit cartel, will have no problem casting doubt on decades of "drive-by" rulings.

Second, I think Justice Kagan will find that Texas's theory of injury is far too broad because it would allow a state to challenge almost any federal policy based on a $1 cost. Justices Sotomayor and Jackson also suggested that Texas's injury, if any, was self-inflicted. Kagan will likely distinguish Massachusetts v. EPA, but find Texas's theory, which has been used countless times since 2014, does not work. If the votes line up this way, there would be five votes to dismiss the case on jurisdictional grounds, and the lower-court ruling would be vacated. But there would be no change in governing law. The D.C. Circuit cartel can continue issue five vacaturs before breakfast. And the Fifth Circuit can continue to rely on the Texas theory of standing. In other words, a fragmented decision will keep the status quo on both questions.

Third, Chief Justice Roberts and Justice Kavanaugh were very much opposed to this "radical" rewriting of administrative laws. But I also don't expect Roberts to actually defend the D.C. Circuit precedent. As Roberts acknowledged, the D.C. Circuit never considered the sorts of arguments raised by Sam Bray and John Harrison. Roberts and Kavanaugh were also very critical of Texas's merits argument. Given the limited appropriations, "shall" cannot mean "shall." And Kavanaugh was very concerned about the Article II issues lurking in the background. My prediction: Roberts and Kavanaugh bypass the jurisdictional argument altogether, and vacate the injunction on the merits. In theory at least, the Court can leapfrog a difficult jurisdictional question if the merits question is straightforward. (This argument was considered in California v. Texas.) Given five justices already found there was no jurisdiction, Roberts would have more of a free-hand to issue this merits-first ruling. And Kavanaugh will tag along, perhaps writing a concurrence that name-drops all of his former colleagues on the D.C. Circuit.

Fourth, I think Alito and Thomas will find that Texas has standing. And I think Alito and Thomas will rule for Texas on the merits. But the remedy may split them. During the Trump years, Thomas was critical of the nationwide injunction. I do not know if he harbors similar doubts about vacatur under the APA. Justice Alito did not seem troubled by the vacatur remedy. If I'm right (and I seldom am), only Justice Alito would affirm across the board. Thomas may find that the vacatur issue was not fairly presented, so it is not before the Court.  Or Thomas might even join Barrett and Gorsuch on the remedial question, even though he briefly served on the D.C. Circuit cartel. I'm not certain. It's possible that zero of the nine Justices will defend the D.C. Circuit's vacatur precedents, yet those precedents remain firmly in place.

The bottom line vote could be cast as 5-4, 7-2, 8-1, or maybe even 9-0. There are so many options.

Over the past century the First Amendment's protection of "the freedom of speech" has been interpreted to shield the reprehensible — White Supremacists and homophobes—as well as the admirable — the Black Civil Rights movement and the gay-rights cause. This jurisprudence reflects an American commitment to its own brand of classical liberalism in matters of conscience and expression.

On Monday, that commitment will be tested against another important one — equality under law — when the Supreme Court hears oral argument in 303 Creative LLC v. Elenis. Lorie Smith, a graphic designer who holds traditional religious views about marriage, wants to create custom websites only for weddings uniting one man and one woman.

But Colorado's public-accommodations law (like those in 28 other states) prohibits businesses from discriminating on the basis of sexual orientation in the sale of goods and services to the general public. While Smith says she is happy to serve gay customers in other ways, she does not want to send a message of approval of same-sex marriages.

The Nation's tradition of pluralism under the First Amendment is best understood to forbid Colorado to make Lorie Smith create speech celebrating same-sex marriages. Graphic designers of wedding websites have a limited First Amendment right to refuse to sell such expressive services. Importantly, and poignantly, the very same tradition of expressive pluralism allowed gay-marriage advocates to transform public attitudes about same-sex marriage itself. For the sake of all, that tradition should be preserved in 303 Creative.

Facing the credible threat of expensive and time-consuming investigations by the state civil rights commission, Smith preemptively sued Colorado in what is known as a "pre-enforcement" action, claiming a violation of her free-speech rights. She lost in the lower courts. (Disclosure: Along with Eugene and others, I filed an amicus brief supporting Smith.)

The case comes down to two main questions.  First, is the creation of custom wedding websites for sale in the public marketplace the designer's "speech"?  Second, if it is speech, does the designer have a First Amendment right to refuse such expressive services for same-sex weddings despite a state law compelling her to do so?

I.

The answer to the first question is surprisingly straightforward. The freedom of speech involves more than talking. It includes writing, picketing, dancing, and saluting flags. Government generally may not compel a person to speak against her will. And free speech must also include the freedom not to create speech.

In the commercial marketplace, as elsewhere, courts must draw lines between expression and non-expression. Speech protection should be extended only where the good or service involves an inherently expressive medium (e.g., the speaker's own original words or symbols) or a medium that has historically or traditionally been recognized in the law as expressive (e.g., parades).

Most business services and goods cannot plausibly be regarded as expressive. Hotel owners, limousine drivers, and tailors are not "speaking" when offering their professional services, even if they imbue these activities with great personal meaning. 

Not even all website design services are expressive. If Lorie Smith were just hosting customer-generated content on her online platform, or simply allowing customers to select off-the-rack design templates involving certain colors and fonts, her offerings in the wedding-website marketplace would be mainly her customers' expression — not her own. Similarly, if Smith were only offering an online platform to regurgitate prosaic details, like the time and place of the ceremony, such "speech" would not earn First Amendment protection. The Supreme Court has held that merely sending scheduling emails or announcing meeting locations is not constitutionally shielded expression.

The details matter. Borderline cases involving the multi-billion dollar wedding-industrial complex are certainly imaginable. For example, elaborate custom wedding cakes adorned with specific symbols and pastry-gun writing are perhaps a close call. The Supreme Court confronted a similar wedding cake case in 2018 in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n, but sidestepped the free-speech issue by holding that the baker had been unconstitutionally targeted for unfavorable treatment because of his religious views. (Since Masterpiece Cakeshop, Justices Kavanugh and Barrett have been added to the Court. Their views on the application of free-speech principles to public accommodations laws in the marketplace are unknown.)

But Smith's case is not on the borderline of speech. She proposes actively to create each individual website. Even the Colorado Civil Rights Commission conceded that Smith's graphic and website designs are expressive in nature, as they contain images, words, symbols, and other modes of expression that are used to communicate a particular message of celebration. The appeals court, though it ultimately rejected Smith's constitutional claim, agreed that her bespoke wedding website designs are "pure speech."

Compelling Smith to promote the message that, in essence, same-sex marriages are authentic marriages and are as worthy of celebration and support as opposite-sex marriages is as much a speech compulsion as requiring her by law to proclaim "White Lives Matter" or "Jesus Saves."

II.

If Smith's designs are expressive, the question remains whether the state may nevertheless justify compelling her speech for customers wishing to promote same-sex weddings. In limited circumstances the Supreme Court has held that even fully protected speech may be regulated if the government can prove it has an overwhelming justification for the regulation and if such regulation intrudes on speech in a most limited way.

The state's objective is undoubtedly compelling: promoting equality in daily life for gay Americans. In Masterpiece Cakeshop, the Supreme Court cautioned that First Amendment objections by businesses must be limited lest they become broad licenses to discriminate. Conflicts should be resolved where possible "without subjecting gay persons to indignities when they seek goods and service in an open market."

Nevertheless, the Court upheld the right of Boston's annual Irish parade organizers to exclude a contingent that wanted to march behind a banner identifying themselves as gay. And it upheld the right of the Boy Scouts to expel an openly gay scoutmaster. Both cases involved state public accommodations laws. As in Smith's case, both involved compelled inclusion of gay-affirming messages the objectors did not wish to convey. And both doubtless insulted the persons excluded.

The constitutional answer remains somewhat unsettled in the commercial marketplace. Lower courts have ruled in favor of wedding calligraphers and videographers, but against a wedding photographer and a florist, who objected to providing goods for same-sex weddings.

Some of these may be difficult cases on the line between expression and non-expression, but in principle there's no reason why public-accommodations laws applied to the marketplace should enjoy a categorical immunity from First Amendment review. After all, it makes no difference whether speech is produced for profit to be sold to others or for principle simply to persuade them. Books, films, and newspapers are commercially sold but are no less protected. If creating custom wedding websites is speech (and almost everyone agrees it is) it does not matter whether the designer intends to sell the creations.

Colorado has also not demonstrated it is promoting equality in the least speech-intrusive way, as it might be able to do when a vendor has a monopoly on a product or service. The appeals court concluded that the speech compulsion was justified because Smith had a practical monopoly on her unique expressive services: the website designs could not be offered in exactly the same quality by one of the other numerous talented graphic and wedding website designers available easily online to same-sex couples. If the Supreme Court says nothing else about the case, it should squarely repudiate the bizarre conclusion that an artist's expressive skills must be provided because the artist has a monopoly on her own expression.  Neither Colorado nor any of its supporting amici have defended that misbegotten theory.

III.

But the Supreme Court should do more.  It should clarify that the First Amendment applies to expressive goods and services sold in the public square, offer guidance as to what does and does not count as "expressive," and send the case back to the lower courts with instructions that Colorado cannot enforce its public-accommodations law against Smith's proposed expression unless the state meets the burden of satisfying genuinely strict judicial scrutiny — not the watered-down version of the appeals court.

Many will ask, what about racial discrimination? After all, even the most venomous racist speech is protected.  But the distinctive features of racist denials of service (including region-wide prevalence) and the special horrors of racism (including slavery and Jim Crow) justified wholesale eradication of these practices from the marketplace.  They have no analogue in American history. American anti-discrimination law has long treated such discriminatory practices as sui generis, tolerating relatively few exceptions.

Free speech allowed gay America to flourish. Long before the right to marry was recognized, in a time when even their private sexual acts were criminalized, gay men and lesbians used the space provided by the First Amendment to organize politically and to persuade Americans to support their liberty and equality. If tolerance means anything, it means that marriage traditionalists like Smith may espouse their views (and refuse to espouse contrary views) in the public marketplace.

I'll admit it. I long ago simply assumed that courts could issue nationwide injunctions. Likewise, I took for granted that the APA gave courts the power to "vacate" agency actions. Sure, I questioned whether those injunctions and vacaturs could be "national" in scope--that is, extend to non-parties. And I often pondered whether it was possible to remand-without-vacatur. (If the D.C. Circuit does it, it must be right, right?!) But I never considered whether the vacatur itself was permissible. That was, of course, until Sam Bray and John Harrison came along.

Sam's scholarship on the nationwide injunction was perfectly timed. The Trump Administration was under a constant barrage of nationwide injunctions. Sam demonstrated that this sort of non-party relief would have been unknown in the courts of equity. The Trump DOJ would routinely cite Bray for this proposition. Somehow--it still boggles the mind--the Supreme Court went Trump's entire term without answering the nationwide injunction question. (And we still don't have an answer!)

Come 2021, the Biden Administration was under a constant barrage of nationwide injunctions. And some conservative judges, perhaps sympathetic to Bray's arguments about the nationwide injunction, turned to a more familiar remedy: vacatur under the APA. These judges were not relying on some unenumerated equitable power, but instead were invoking an express delegation from Congress to "set aside" rules. Indeed, D.C. Circuit judges would vacate five rules before breakfast. But John Harrison argued forcefully that the APA could not be understood to support such a remedy.

Now, this precise issue is before the Supreme Court. The United States embraced Bray and Harrison's work, and asked the Court to wipe away decades of lower-court precedents. Well, sort of. Texas Solicitor General Judd Stone said the meaning of "set aside" is not "clearly presented" and is "fairly eclipsed within the questions presented." He said the "Court can essentially choose to charitably ignore it on that ground." But if Justice Barrett is right, and the remedial question is jurisdictional, then the Court would have to decide whether the lower court had jurisdiction to issue the remedy the parties sought.

Needless to say, the scholarship of Bray and Harrison did not go over so well with the D.C. Circuit "cartel," as Justice Kagan joked. (Of course, Justice Kagan was nominated to that cartel, but like with most cartels, the barriers to entry were too high.)

Chief Justice Roberts said that Solicitor General Elizabeth Prelogar's position was "fairly radical." Roberts was troubled by how "sudden" this argument was. Indeed, this issue has only been percolating for a few years, in light of Bray and Harrison's scholarship. Roberts, no fan of legal scholarship, referred to Harrison's article by name in a colloquy with Texas Solicitor General Jud Stone.

How did Prelogar handle these questions? She bit the bullet, and said the D.C. Circuit has been "getting this one wrong" for decades. "They have reflexively assumed that vacatur is authorized under Section 706 of the APA." I am fascinated by the word "reflexively." Think of a gag-reflex--it is something you do unconsciously and without thinking. I use this word from time-to-time to make the point very sharply that judges simply are not doing their job. (For example, in several spots I wrote that the lower courts reflexively followed Chief Justice Roberts's South Bay concurrence.)

Roberts responded to Prelogar, "Wow." The D.C. Circuit judges were issuing these remedies "all the time as a staple of their decision output." Prelogar shot back that, again, the courts did not think this issue through sufficiently. And she repeated the word "reflexively." No doubt this was a word prepared in moots.

GENERAL PRELOGAR: But they haven't been doing it with any attention to the text, context, and history of the provision. So it's not as though there are decisions out there that have really engaged with these arguments and come out the other way. Instead, it seems like this happened and came about because courts just reflexively transposed remedies that were available under special statutory review provisions, which do sometimes authorize vacatur, to the APA context writ large.

Prelogar likely knew that she would be assailed for this argument, but she firmly stood her ground.

Now the Chief Justice spent about two years on the D.C. Circuit. Judge Kavanaugh served on that court for twelve years. If we do some back-of-the envelope calculations--five vacaturs before breakfast, assume three meals a day, five days a week--Kavanaugh must have set aside nearly 10,000 actions! Kavanaugh was incensed at the notion that he, and several other judges he name-dropped--he likes to name-drop--could have gotten it all wrong.

Set aside, you said the judges on the D.C. Circuit haven't paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that.

Justice Barrett clerked for the late Judge Silberman, and Prelogar clerked for Judge Garland, and now works for Attorney General Garland. Like Roberts, Kavanaugh also remarked how novel this argument was.

And the government never has made this argument in all the years of the APA, at least not that I remember sitting there for 12 years. I haven't seen it made. It's a pretty radical rewrite, as the Chief Justice says, of what's been standard administrative law practice. And you devote three pages in your brief to this complete change that all these judges have been doing for all these years, and the government comes up and acknowledges that in case after case after case with labor, energy, environmental. And I think it's a big step.

Indeed, Kavanaugh faults a "recent law review article."

No one's really had this --no case has ever said what you're saying anywhere. No one --you know, it's a recent law review proposal, good for that, but, you know, that's not been the law.

"Good for that!" If you listen closely at 46:30, you can hear a female voice chuckling. I think it was Barrett--who was Bray's colleague at Notre Dame--but I am not certain. It may have been Kagan. Later, Justice Alito referred to Harrison's piece as an "innovative law review article that appeared in 2020." A bit more gracious.

This colloquy seemed personal for Kavanaugh. See how he pivots from "they" to "we."

And you say they're not paying attention to the text. Yeah, we did.

Kavanaugh's jab at Bray and Harrison felt like an episode of Scooby Doo: the D.C. Circuit Cartel would have gotten away with it too, if it wasn't for those meddling law professors. We really should stick to "the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria."

Listen to the recording. Kavanaugh seemed ticked off. After talking for two-full pages in the transcript, Kavanaugh admits "that's not really a question, but that is a comment." (Never have I ever heard a more academic line.) Kavanaugh's colloquy stretched 2.5 pages (starting on p. 54 through page p. 56), and lasts for nearly 2.5 minutes (44:55-47:28). To my memory, this is our first Kavanaugh Page.

Later in the argument, Justice Barrett returned to this issue. She said she was surprised by the briefing on Section 706. But all those D.C. Circuit cases may not be entitled to much weight. With regard to jurisdiction, she said, the Court "gives little weight to drive-by jurisdictional rulings." In other words, if those 10,000 orders that Judge Kavanaugh issued failed to address whether the court had Article III jurisdiction, then those decisions do not settle the question. Then, Barrett asked what has become her signature question. Assume "X," do you lose?

If I think you're wrong about the original meaning of the APA or what people expected "set aside" meant at that time and these are all drive-by remedial rulings, do you lose? 

I've noticed this framing in several other cases. Pro tip: when Barrett says "if I think you're wrong," then she thinks you're wrong.

***

Here, I commend Sam Bray and John Harrison. They successfully moved a legal argument from "off-the-wall" to "on-the-wall." They fought against decades of precedent, and received wisdom, with a commitment to clear scholarship and careful advocacy. They garnered the attention of Republican and Democratic administrations. And several Justices are now expressly considering whether they are correct. Whatever the Court does in United States v. Texas, Bray and Harrison deserve a world of credit.