The Volokh Conspiracy

In this episode, Dave Aitel introduces us to a deliciously shocking story about lawyers as victims -- and maybe co-conspirators -- in the hacking of law firms to win legal disputes.  The trick, it turns out, is figuring out how to benefit from hacked documents without actually dirtying one's hands with the hacking. And here too, a Shakespearean Henry (II this time) has the answer: hire a private investigator and ask "Will no one rid me of this meddlesome litigant?" Before you know it, there's a doxing site full of useful evidence on the internet.

But first Dave digs into an intriguing but flawed story of how and why the White House ended up bigfooting a possible acquisition of NSO by L3Harris. Dave spots what looks like a simple fact error, and we are both convinced that the New York Times got only half the story. I suspect the White House was surprised by the leak, popped off about how bad an idea the deal was, and then was surprised to discover that its intelligence community had signaled support.

That leads us to the reason why NSO has continuing value – its ability to break Apple's phone security. Apple is now trying a new way to reinforce security: its new, more secure and less convenient lockdown mode. Dave gives it high marks, and he challenges Google to match Apple's move.

Next, we dive into the US effort to keep Dutch firm ASML from selling chip-making machines to China. Dmitri Alperovich makes a special appearance to urge more effective use of export controls; he cautions, however, that the US must impose the same burdens on its own firms as on its allies'.

Jane Bambauer introduces the latest government proposal to take a bite out of crime by taking a bite out of end-to-end (e2e) encryption. The U.K. has introduced an amendment to its pending online safety bill that would require regulated user-to-user services to identify and swiftly take down terrorism and child sex abuse material. Identifying such material isn't easy in an e2e environment, Jane notes, so this bill could force adoption of the now-abandoned Apple proposal to do local scanning on your phone. I'm usually a cheap date for crypto-skeptical laws, but I can't help noticing that this proposal will stir up 90% as much opposition as requiring companies to intercept communications when they get a court order while  addressing only 10% of the crimes that occur on e2e networks.

Jane and I take turns pouring cold water on journalists, NGOs, and even Congress for their feverish effort to turn the Supreme Court's abortion ruling into a privacy issue. Dumbest of all, in my view, is the claim that location services will be used to gather evidence and prosecute women who visit out of state abortion clinics. As I point out, such prosecutions couldn't even muster five votes on this Court.

Dave spots another doubtful story about Russian government misuse of a red team hacking tool. He thinks it's actually a case of a red team hacking tool being used by … a red team.

Jane notes that Department of Homeland Security's (DHS) Cybersecurity and Infrastructure Security Agency (CISA) has announced a surprisingly anodyne (and arguably unnecessary) post-quantum cryptography initiative.  I'm a little less hard on DHS, but only a little.

Finally, in updates and quick hits:

• I point out that the U.S. - EU transatlantic data deal is looking a lot like vaporware. That's a worry now that Ireland is on the verge of ordering Facebook to stop moving data across the Atlantic.
• Jane and I take a whack at predicting Elon Musk's Twitter bid. I argue that Musk may escape with less than $1 billion in penalties but for years he will be to mergers what Google is to new digital products.
• And, finally, some modest good news on Silicon Valley's campaign to suppress politically incorrect speech.  Last year, Twitter suspended former NYT reporter Alex Berenson for saying several true but inconvenient things about the covid vaccine (it doesn't stop infection or transmission, and it has side effects, all of which raise real doubts about the wisdom of mandating vaccinations for everyone). Berenson sued, and Twitter has now settled, unsuspending his account. The lawsuit had narrowed down the point where Twitter probably felt it could settle without creating a precedent, but any chink in Big Social's self-righteous armor is worth celebrating.

Download the 416th Episode (mp3)

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In two dissents this past term, Justices invoked Alice in Wonderland.

Chief Justice Roberts had this gem in FEC v. Cruz. A paragraph on page 7 begins:

These arguments have an Alice in Wonderland air about them, with the Government arguing that appellees would not violate the statute by repaying Cruz, and the appellees arguing that they would. But this case has unfolded in an unusual way. 

Three paragraphs later, on the bottom of page 8, Roberts pays off the Alice reference:

But we need not go further down this rabbit hole.

And Justice Thomas's dissent in U.S. v. Taylor included this reference:

Yet, the Court holds that Taylor did not actually commit a "crime of violence" because a hypothetical defendant—the Court calls him "Adam"—could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force. Ante, at 5; see §924(c)(3)(A). This holding exemplifies just how this Court's "categorical approach" has led the Federal Judiciary on a "journey Through the Looking Glass," during which we have found many "strange things." L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982).

And Thomas closed the connection in the final paragraph:

Even Alice, having slaked her curiosity, eventually re- turned from the land beyond the looking glass.

I appreciate Thomas's reference, but Roberts's was so much more effective.

Don't forget Justice Scalia's barb from his dissent in Los Angeles v. Patel:

The Court suggests that police could obtain an administrative subpoena to search a guest register and, if a motel moves to quash, the police could "guar[d] the registry pending a hearing" on the motion. Ante, at 2456. This proposal is equal parts 1984 and Alice in Wonderland.

Why make one literary reference in a sentence when you can make two?

As I catch up with opinions from the end of the term, I finally came to U.S. v. Taylor. This case considers whether attempted Hobbs Act robbery qualifies as a "crime of violence." Justice Gorsuch's majority opinion offered this colorful hypothetical:

A hypothetical helps illustrate the point. Suppose Adam tells a friend that he is planning to rob a particular store on a particular date. He then sets about researching the business's security measures, layout, and the time of day when its cash registers are at their fullest. He buys a ski mask, plots his escape route, and recruits his brother to drive the getaway car. Finally, he drafts a note—"Your money or your life"—that he plans to pass to the cashier. The note is a bluff, but Adam hopes its implication that he is armed and dangerous will elicit a compliant response. When the day finally comes and Adam crosses the threshold into the store, the police immediately arrest him. It turns out Adam's friend tipped them off.

Gorsuch returns to the hypothetical later in the opinion:

Of course, threats can be communicated verbally or nonverbally—pointing a gun at a cashier conveys a threat no less effectively than passing a note reading "your money or your life." But one way or another, some form of communication is usually required.

"Your money or your life!" This line should sound familiar. It featured prominently in NFIB v. Sebelius. I described the oral argument in Unprecedented:

To illustrate that the Medicaid grant was coercive, Justice Scalia harkened back to "the old Jack Benny thing, 'your money or your life.'" The "your money or your life" bit came from a classic episode of The Jack Benny Show, first aired on March 28, 1948—exactly sixty-four years to the day of the Medicaid oral arguments. (I'll assume that Scalia the Originalist knew this.) During the sketch, Jack Benny is approached by a mugger who demands, "Don't make a move, this is a stickup. Now, come on. Your money or your life?" With a gun pointed at him, Benny pauses for several seconds. The studio audience erupts in laughter. The mugger, growing impatient, demands, "Look, bud! I said, your money or your life!" Benny, with his legendary timing, responds, "I'm thinking it over!"

Scalia mused that even though the mugger provided Benny with a choice, there really was no choice. Of course he would hand over the money. Similarly, Scalia reasoned, although the ACA ostensibly gave states the choice of whether to accept the new money, the failure to accept that funding would result in the death of their preexisting Medicaid programs. To Scalia, the states bringing suit after being mugged by the federal leviathan was no different than Jack Benny being robbed by a common criminal. The states could either take the money or give up their lives—that is, their sovereignty as states. The federal government was not a cooperative partner, but a despotic outlaw.

Continuing his own stand-up routine, Justice Scalia added, "You can't refuse your money or your life. But your life or your wife's, I could refuse that one."

Chief Justice Roberts, who did not look amused, said, "Let's leave the wife out of this." Justice Sotomayor attempted to join in on the fun. Referring to Clement's wife, she warned that "Mr. Clement, he's not going home tonight." Sotomayor's joke fell flat. (After the silent Justice Thomas, Sotomayor usually garners the fewest laugh lines at the Supreme Court.) Clement began saying something about "Ms. Clement," but was interrupted again by Justice Scalia. The chief justice, who at this point was visibly displeased, cut things short. A dour-looking Roberts exclaimed, "That's enough frivolity for a while."

The reference continued during Solicitor General Verrilli's argument:

Roberts, even more engaged, continued. Evoking the image of Clint Eastwood as Dirty Harry, Roberts declared, "Of course no state is going to say, 'Okay, go ahead, make my day, take it away.'" An uncomfortable laughter trickled out. Roberts pursued the point further. The states, he said, are "going to give in." Then Justice Breyer joined the pile-on, sharply asking, "Has the secretary gone around threatening people that we will cut off totally unrelated funds. What is the situation?" Again, the solicitor general refused to answer that question. "I don't think it would be responsible of me to commit that the secretary would exercise the discretion uniformly in one way or another."

Before he could even finish his sentence, Chief Justice Roberts interrupted him. Sticking with the Wild West imagery, Roberts said that Verrilli's response to the "your money or your life" analogy was, "There's no evidence that anyone has ever been shot." The chief justice continued: "Well, it's because you have to give up your wallet. You don't have a choice."

Ultimately, Chief Justice Roberts used the line in Part IV.A of his opinion, which was joined by Justices Breyer and Kagan. Footnote 12 provides:

Justice GINSBURG observes that state Medicaid spending will increase by only 0.8 percent after the expansion. Post, at 2632. That not only ignores increased state administrative expenses, but also assumes that the Federal Government will continue to fund the expansion at the current statutorily specified levels. It is not unheard of, however, for the Federal Government to increase requirements in such a manner as to impose unfunded mandates on the States. More importantly, the size of the new financial burden imposed on a State is irrelevant in analyzing whether the State has been coerced into accepting that burden. "Your money or your life" is a coercive proposition, whether you have a single dollar in your pocket or $500.

All things considered, Gorsuch's hypothetical has some similarities to the attempted assassination of Justice Kavanaugh. Did the defendant commit the necessary "substantial step"? Gorsuch explained:

There is little question the government could win a lawful conviction against Adam for attempted Hobbs Act robbery. After all, he intended to take property against the cashier's will by threat of force, and his actions constituted a substantial step toward that goal. At the same time, this example helps show why attempted Hobbs Act robbery does not qualify as a crime of violence under the elements clause.Adam did not "use" physical force. He did not "attempt" to use such force—his note was a bluff and never delivered. And he never even got to the point of threatening the use of force against anyone or anything. He may have intended and attempted to do just that, but he failed. Simply put, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.

Later, Gorsuch writes:

Individuals like our foiled robber who are arrested before they can threaten anyone may be convicted too.

Eugene wrote about the criminal law issues with the abandonment doctrine here.

This past term, the Court only issued 58 signed opinions. As low as that number is, it was made even lower by DIGs. The Supreme Court dismissed as improvidently granted two cases:

• United States v. Texas was DIG'd. Justice Sotomayor dissented from the DIG.
• Arizona v. San Francisco was DIG'd. Chief Justice Roberts wrote a concurrence to the DIG, joined by Justices Thomas and Alito.

In four other cases, dissenters would have DIG'd the petition:

• Hemphill v. New York: Justice Thomas would have DIG'd.
• Unicolors v. H&M Henens & Mauritz: Justice Thomas would have DIG'd.
• Kemp v. United States: Justice Gorsuch would have DIG'd.
• Shoop v. Twyford: Justice Gorsuch would have DIG'd the petition.

By contrast, during the OT 2020 Term, there was only one DIG, Henry Schein v. Archer. And Justice Alito would have DIG'd Minerva Surgical v. Hologic.

The Solicitor General has filed an application for a stay with the U.S. Supreme Court. The requested stay would be of a judgment entered by the U.S. District Court for the Southern District of Texas, but the real showdown here is between the Fifth Circuit and the Sixth Circuit. Last week they issued directly contrary decisions in cases about the Department of Homeland Security's September 2021 guidance about the enforcement of immigration laws. The issues include state standing, the agency's process for generating the enforcement guidance, the Section 1252(f)(1) jurisdiction-stripping provision, and universal relief (whether via a national injunction or the so-called remedy of "vacatur"). You can read the Fifth Circuit decision here, the Sixth Circuit decision here, and my recent Volokh Conspiracy post on the Sixth Circuit decision here.

This could be the big one--it could set up a Supreme Court decision about universal relief (i.e., relief that goes beyond the parties to the case, not just incidentally, but because the court is purporting to control the actions of the defendant vis-a-vis the world). Now there are various off-ramps that could mean the Court doesn't actually address whether district courts can give national injunctions or a remedy of "setting aside" agency action. For example, the agency could win on the merits, making the remedy question pointless. Or the Court could decide that the Southern District of Texas lacked jurisdiction under Section 1252(f)(1). (This kind of thing has happened several times before when the Court has granted certiorari on questions about "nationwide" relief, including Summers v. Earth Island Institute, where the cert petition was by S.G. Clement.) But if the case runs the procedural gauntlet and gets to the remedy, it would tee up the universal relief question for the Court.

General Prelogar's application for a stay is excellent. I want to add three comments:

1. Massachusetts v. Mellon (with its companion case Frothingham v. Mellon) is cited twice in the application, and it shows just how deep the constitutional principles involved are. These are principles about separation of powers and federalism—that is, principles about the federal judicial role, including the interaction of constitutional and equitable limits and how a court interacts with a promulgated legal norm and with its enforcer; and principles about how under our Constitution the national government relates to individual citizens (i.e., directly, and not just through the states). A failure to heed these lessons has landed us in the position we're in where national injunctions have become pervasive (though only in the last eight years).
2. The application successfully distinguishes Massachusetts v. EPA. But we shouldn't let that case off the hook. I don't think it's an accident that the meteoric rise of the national injunction happened only after the loose talk about standing in the majority opinion in Massachusetts v. EPA. It would be good for the Court to correct that mistake, or at least to make clear that the case is an outlier, just an eddy and not the river.
3. John Harrison has an amazing new paper called Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, forthcoming in BYU L. Rev. If you're following this case, you'll want to read it.

From a survey taken June 28-29 by the Center for American Political Studies at Harvard University and The Harris Poll:

[1.] Abortion rights are listed as the greatest concern by 14% of the respondents and as the second greatest by 11%, far behind inflation (total 62%) but at roughly the same level as energy prices, as crime, and as immigration.

[2.] Dobbs appears to have no visible net effect on the midterms, with 36% saying it makes them more likely to vote Democrat and 36% more likely to vote Republican.

[3.] Dobbs is opposed by a slim majority, 55%-45%; the question wording is, "Do you support or oppose the Supreme Court's decision to overturn Roe vs Wade, which allows each state to decide its own standards for abortion instead of a set right?" At the same time, when asked, "Do you think it is better for abortion standards to be set by judges of the supreme court, by a vote of congress or by the legislatures of each individual state?," only 25% go say "the supreme court," 31% say "Congress," and 44% say "state legislatures."

[4.] The results as to "Do you think your state should allow abortion…?" were

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During the October 2021 Term, each Justices authored between five and eight majority opinions. The Chief assigned himself the most majority opinions (8) and Justice Kavanaugh had the fewest (5).

Justice Kavanaugh wrote the most concurring opinions with 8. Indeed, Kavanaugh beat Thomas and Alito, who each had 7. Five of the Kavanaugh concurrences were solo (Wooden, Ramirez, Shurtleff, Dobbs, and Biden v. Texas). The other three were joined by Barrett (Zubaydah), Gorsuch (Cummings), and Roberts (Bruen). We are well familiar by now with the Kavanaugh concurrence, which stakes out some middle ground to moderate a majority opinion.

Gorsuch wrote five concurrences. Unlike the Kavanaugh concurrences, many of the Gorsuch concurrences would push even further than did the majority. Some concurrences push the Court to the right (NFIB v. OSHA, Shurtleff, Egbert, West Virginia v. EPA). Other concurrences push the Court to the left (Wooden, Vaello Madero).

Justice Barrett wrote four concurrences. In Bruen, Barrett's solo concurrence asked whether the originalist point of inquiry should be 1791 or 1868. Her other three separate writings came in Viking River Cruise (joined by Kavanaugh and Chief in part), Wooden (joined by Thomas), and Tsarnaev (joined by Gorsuch). Unlike Kavanaugh and Gorsuch, the Barrett concurrences do not seek to move the Court to the right, left, or middle. They usually raise some questions to think about, like in Bruen, and last Term, in Fulton.

Now, let's turn to dissents. Justice Sotomayor wrote 13 (!) dissenting opinions. Her work load this term was prodigious.

Then we have Justice Thomas. He wrote 8 dissents. Several of those dissents were solo, and would have gone further than the majority, like in Whole Woman's Health.  And those 8 dissents were on top of 7 majority opinions, and 7 concurrences. On the so-called Thomas Court, Thomas was frequently branching out on his own! He keeps busy. Justice Breyer, in his final term had 8 dissents, with only 1 concurrence. Justice Kagan had 7 dissents, with four concurrences. (To be fair, the Court's three progressives were each credited with authoring Dobbs.)

Justice Gorsuch also wrote 8 dissents. Three were solo YOLO dissents (Babcock, Kemp, and Shoop). The other 5 were lefty-dissents: Zubaydah (joined by Sotomayor), Patel (joined by Breyer, Sotomayor, and Kagan), Denezpi (joined by Sotomayor and Kagan), George (joined by Breyer and Sotomayor), and Castro-Huerta (joined by Breyer, Sotomayor, and Kagan).

Gorsuch does not fit on a normal ideological scale. For example, the Times plotted him somewhere near Roberts, Kavanaugh and Barrett, but he is not in the center. The same person would dismantle the administrative state but cede half of Oklahoma to Indian tribes. On some cases, he is hard left. On other cases, he is hard right. He is tough to characterize. But, with the law of averages, he falls in the middle.

Justice Kavanaugh wrote two dissents. The first dissent, Concepcion, was a 5-4 case.  I think it is possible that Kavanaugh lost the majority opinion in Concepion after Gorsuch flipped, as Sotomayor had two assignments from January. Kavanaugh's second dissent was in Empire Health. The latter case is the sort of nerdy issue that D.C. Circuit judges seem to enjoy.

Justice Barrett wrote two dissents. The first Nance v. Ward, was joined by Justices Thomas, Alito, and Gorsuch. (I believe this was the only time that Thomas assigned Barrett a dissent this term.) The second was Biden v. Texas. Recall that Barrett agreed with the Chief on the merits, but found the Court lacked jurisdiction.

In total, Justice Sotomayor had the most opinions with 24. Justice Thomas trailed behind her with 22, and Justice Gorsuch had 20. The Justices with the fewest opinions were Barrett with 12, and Roberts with 11. Historically, the Chief Justice does not write separately often. And last year, in which Barrett had a partial term, she wrote only one concurrence (Fulton) and three dissents. After the Chief, Barrett seems less likely to write separately.