The Volokh Conspiracy

For more than a month, protestors have demonstrated outside of Justice Kavanaugh's house. The purpose of these gatherings is clear: to pressure the Justice to change his vote in Dobbs. On Tuesday, Nicholas John Roske traveled to Justice Kavanaugh's house with the same purpose. But instead of wearing a pussy hat, he brought a bag filled with weapons. Even after this apparent assassination attempt, the protestors came back to Kavanaugh's house to demonstrate. And they will likely continue protesting outside of his house until Dobbs is decided.

Still, Kavanaugh faces a paradox. In February, he joined Justice Alito's majority opinion. And Politico suggested that in early May, Kavanaugh was still with the majority. But we were told that Roberts had not yet circulated his concurrence. No doubt the protestors hope that pressuring will deprive Alito of a majority to save Roe. Mr. Roske chose different means, but had the same ends. If in fact, Kavanaugh did change his vote after May, in response to the Chef's blue plate special, then perhaps the protests and death threats will stop. We would be blind to reality if we thought this prospect did not play some role in Kavanaugh's decision-making. But I think this calculus is backwards. If Kavanaugh does change his vote, we will learn about it. Jan Crawford, Joan Biskupic, and others will find out. And the protestors packing pussy hats and Glocks will know the playbook: the way to change Justice Kavanaugh's vote is through pressure on his family. If it worked once, it will work again.

Thus, the paradox: if Kavanaugh changes his vote to uphold Roe, the protests may stop in the short-term, but will continue in the long-term. Ruth Sent Us can buy a house on Kavanaugh's block to set up a 24-hour vigil. If Kavanaugh stands by his vote to reverse Roe, the protests in the short-term will continue, but will fade in the long-term. Standing firm will send a clear and unequivocal message that neither fear nor favor will affect the judicial power.

I do not envy Justice Kavanaugh's position. Indeed, I can't fathom why anyone would want to serve on the Supreme Court. To be more precise, I can't fathom why any conservative would want to serve on the Supreme Court. Liberal jurists are feted with honors at every juncture. But conservative jurists are excoriated and personally attacked. I wonder, in hindsight, if Kavanaugh still would have pursued a position on the Supreme Court, knowing what we know now: the first  confirmation hearing, baseball tickets, Spartacus, Christine Blasey Ford, Michael Avenatti, Ronan Farrow, the second confirmation hearing, yearbook, beer, Klobuchar, Saturday Night Live, Matt Damon, the Dobbs leak, and now an assassination attempt outside of his home. During this time, Kavanaugh and his family have been dragged through such painful experiences, one after the other. Was it all worth it? And to what end? To swallow the Chief's blue plate special?

The Court has announced opinions will be issued on Monday and Wednesday of next week.

In 2019, I published an article on Timbs v. Indiana with my itinerant co-author, Ilya Shapiro. We contended that Justice Ginsburg modified the Glucksberg test, as it was stated by Justice Alito in McDonald v. Chicago.

Justice Ginsburg wrote the majority opinion in Timbs, joined in full by Chief Justice Roberts and Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh.144 This octet relied on the substantive due process framework employed in McDonald—sort of. Justice Ginsburg cited McDonald for the proposition that "[a] Bill of Rights protection is incorporated . . . if it is 'fundamental to our scheme of ordered liberty,' or 'deeply rooted in this Nation's history and tradition.'" That is, a right can be incorporated if it is either (a) "fundamental" or (b) "deeply rooted." Justice Ginsburg's summary is a plausible reading of McDonald, but not the best reading. Consider Justice Alito's test, in full:

With this framework in mind, we now turn directly to the question [of] whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, . . . we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, or as [the Court has] said in a related context, whether this right is "deeply rooted in this Nation's history and tradition."146

McDonald is better read to require both factors: that the right is (a) "fundamental" and (b) "deeply rooted." That is, asking if a right is "deeply rooted" is a way of determining whether that right is "fundamental." The inquiries overlap. Under the new Timbs test, however, a modern—or even postmodern—right could still be deemed fundamental. Indeed, this novel approach echoes the framework Justice Breyer advanced in his McDonald dissent: "I thus think it proper, above all where history provides no clear answer, to look to other factors in considering whether a right is sufficiently 'fundamental' to remove it from the political process in every State."147

Alas, because seven other Justices joined Justice Ginsburg in Timbs, the Court has now watered down the incorporation test.

In the Dobbs draft, Justice Alito seems to have reverted back to his understanding of the Glucksberg test in McDonald. Joseph Blass made the catch at Balkinization:

Compare Justice Ginsburg's statement of the test in Timbs with Justice Alito's citation to her statement (emphasis my own). Justice Ginsburg writes that a right is protected under the Constitution's Due Process Clause "if it is fundamental to our scheme of ordered liberty, or deeply rooted in this Nation's history and tradition" (internal quotations omitted). But Justice Alito now writes: "Justice Ginsburg's opinion for the Court in Timbs [concluded] that the Eighth Amendment's protection against excessive fines is 'fundamental to our scheme of ordered liberty' and 'deeply rooted in this Nation's history and tradition.'" See the difference? Justice Alito slices Justice Ginsburg's statement of the test in Timbs in half around the word "or," sandwiching her quoted statements of the branches around a new "and". The opinion states the test four separate times, each time using "and" to connect the two branches. But up until this draft opinion the test has been disjunctive: in McDonald, Justice Alito states the test much as Justice Ginsburg did in Timbs, using "or." And so does Chief Justice Rehnquist in Glucksberg, the case that originated the test by drawing together its branches from prior Due Process precedents.

Conjunction disjunction at the Supreme Court.

When the Office of Management and Budget first created in the 1970s the racial and ethnic classifications that are used across the government and became standard throughout American society, Native Hawaiians were included in the "Asian and Pacific Islanders" classification.

As sociologist Michael Omi explained 2001 article, this wound up not sitting well with Native Hawaiians:

Senator Daniel K. Akaka (D-Hawaii) initiated a discussion and subsequent lobbying effort to move Native Hawaiians out of the Asian/Pacific Islander category beginning in the early 1990s. Senator Akaka's office had been receiving phone calls from students and alumni of Kamehameha High School complaining of the difficulty of convincing mainland colleges and universities to consider Native Hawaiian admissions and scholarship decisions separately from those of Asian Americans.

Senator Akaka proceeded to do the logical thing, which is to propose that OMB "create a new indigenous category of 'Native American,' that would group Native Hawaiians together with American Indians and Alaskan Natives." OMB did not like this suggestion, "fearing that the move would open up the contentious and unresolved issue of Native Hawaiian sovereignty." And while Omi does not say so, I have read elsewhere that Native American groups also opposed such a change, not wanting Native Hawaiians to become eligible for various programs geared to American Indians.

OMB's Sally Katzen therefore proposed a compromise: "Why not put Hawaiians and Pacific Islanders together into a separate category? The proposal became official on October 30, 1997, when the Asian or Pacific Islander category was disaggregated into two categories.

And author's note: If you find this sort of thing interesting, why not preorder Classified: The Untold Story of Racial Classifications in America? It's now available on Kindle for only $9.99.

If you log onto NYTimes.com now, and check above the fold, you will see a lovely story about the Jurassic Park cast and Kelly Clarkson's performance. If you scroll down, down, down, down, down, you will find a story about the attempted assassination of a Justice. By my count, the Kavanaugh assassination attempt is perhaps the sixteenth most important news item of the day! Oh, and according to the Washington Post, Kavanaugh and his family were home last night.

I agree with Nate Silver.

I don't agree at all with blaming the leak for it, but yeah it's sort of crazy that it's not being treated as a bigger story (NYT homepage screenshot presented for posterity). There's often more bias in which stories are deemed to be salient than how they're written about. pic.twitter.com/aNJZAdmUG8

— Nate Silver (@NateSilver538) June 8, 2022

More details have been released about the attempted assassination of Justice Kavanaugh. From the Washington Post:

A man with a gun and a knife was detained by police early Wednesday morning near Brett M. Kavanaugh's Maryland home after making threats against the Supreme Court justice, according to federal officials.

According to a criminal complaint charging Nicholas John Roske with attempted murder of a federal judge, two U.S. Deputy Marshals spotted Roske get out of a cab in front of Kavanaugh's home at approximately 1:05 a.m. He looked at the marshals and then walked down the street. Not long after, Montgomery County got the call from Roske saying he was suicidal and came to kill Kavanaugh.
Montgomery County Police Department officers were dispatched and arrested Roske without incident while he was still on the phone with 911, according to the affidavit. In his suitcase and backpack were a Glock 17 with two magazines and ammunition, pepper spray, a tactical knife, a hammer, a screwdriver, a crow bar, zip ties and duct tape, along with other gear.

After his arrest, according to the affidavit, Roske told police he was upset over the leaked draft of an opinion that would overturn the constitutional right to abortion and also over the recent school shooting in Uvalde, Tex. He thought Kavanaugh would support looser gun laws. He decided to kill Kavanaugh and then himself, according to the police officer, thinking it would give his life purpose.

A reporter has also posted a copy of the criminal complaint:

NEW: Here's the federal affidavit against the man accused of trying to kill Justice Brett Kavanaugh.

Nicholas Roske allegedly flew from CA to DC. He took a taxi to Kavanaugh's Chevy Chase, Md. home.

Roske was found with a pistol, pepper spray, hammer, screwdriver, crow bar, etc pic.twitter.com/XJd5ZMWwrn

— Kevin Across America (@KevinLewisNomad) June 8, 2022

Here are screenshots:

From this complaint, it seems that the defendant wanted to kill Kavanaugh to prevent him from casting decisive votes in Dobbs and NYS Rifle & Pistol.

ROSKE then told the detective that he was upset about the Supreme Court draft decision regarding the right to abortion as well as the recent school shooting in Uvalde, Texas. ROSKE indicated that he believed the Justice that he intended to kill would side with Second Amendment decisions that would loosen gun control laws. Roske stated that he began thinking about how to give his life a purpose and decided that he would kill the Supreme Court Justice after finding the Justice's Montgomery County address on the internet. ROSKE further indicated that he had purchased the Glock pistol and other items for purpose of breaking into the Justice's residence and killing the Justice as well as himself.

Release both opinions, right away. Do not delay another day.

Today, the Supreme Court decided Egbert v. Boule. Justice Thomas's majority opinion reversed the Ninth Circuit's decision, which approved Bivens claims under the First and Fourth Amendments. The Court applied something of a rational-basis test to determine whether a new Bivens cause of action should be implied.

The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to "weigh the costs and benefits of allowing a damages action to proceed." Ziglar, 582 U. S., at ___ (slip op., at 12).

Here, the Court expands on Ziglar v. Abbasi. This 2018 decision split 4-2. Justices Sotomayor, Kagan, and Gorsuch were recused. Still, Justice Kennedy's plurality opinion largely closed the door on Bivens claims. But now, Egbert, with six votes strong, slams that door shut. And Justice Gorsuch would shred the door in a wood chipper.

https://www.youtube.com/watch?v=Cs3kl3vfX0Q

Justice Sotomayor dissented in part, joined by Justices Breyer and Kagan. She criticized the Court for departing from Ziglar. And she does so in a very personal fashion:

If the legal standard the Court articulates to reject Boule's Fourth Amendment claim sounds unfamiliar, that is because it is. Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases. "

There are two separate barbs there. First, she charges that the reason why the Ziglar standard was "refashioned" was because of the "newly constituted Court." That is, Justices Kennedy and Ginsburg were replaced by Justices Kavanaugh and Barrett. This claim brings to mind Justice Steven's dissent from Citizens United:

In the end, the Court's rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court.

Second, Sotomayor charged that her new colleagues are young and "restless." Still this personalized rhetoric from Justice Sotomayor, especially at this time, is misplaced. Bivens has been subject to withering criticisms for decades. And Hernandez sent a very, very clear message that Courts should be really, really cautious about Bivens claims. Yet the Ninth Circuit did not get the memo. Now, the Supreme Court was compelled to say, "We really, really mean it" in language that not even the ghost of Stephen Reinhardt could ignore. This Court is not "restless."

Ultimately, this decision was not terribly surprising. And Justice Thomas's opinion leaves open the question of whether Bivens will be overruled entirely in an appropriate case:

And, more recently, we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution. See Ziglar, 582 U. S., at ___ (slip op., at 11). But, to decide the case before us, we need not reconsider Bivens itself. Accordingly, we reverse the judgment of the Court ofAppeals.

I think the vehicle would have to present the same exact claim present in Bivens or a related case, rather than a question about extension.

At 1:50 am this morning, an armed man with burglary tools was arrested near Justice Kavanuagh's home in Maryland. He told the police that he wanted to murder the Justice. Fortunately, someone tipped off the police, and the man did not make it onto Kavanaugh's property. The police stopped him nearby. According to the Washington Post, the would-be-assassin was angry about the leaked opinion in Dobbs. We should all pray for the safety of Justice Kavanaugh, as well as the other Justices.

Every day that goes by, and Dobbs remains undecided, is a day that the lives of the Justices and their families are at risk. Immediately after the leak, I wrote that the Court should issue a one-sentence per curiam opinion, with a reasoned decision to follow--follow the path of Ex Parte Quirin. Lurking in the back of mind was the risk that a Justice could be assassinated. Now, that risk looks so much more real.

Why, then, has the Court not issued a decision in Dobbs yet? We know the majority opinion was finished in February. Yet, at least in May, the Chief Justice still had not circulated his much-vaunted concurrence. My cynical take was that "circulating the draft opinion at the latest possible juncture creates chaos, and makes it more likely that things can move around without sufficient deliberation."

Or maybe there is a less cynical, but equally dangerous explanation. Shortly after the leak of the Dobbs opinion, Chief Justice Roberts proclaimed, "The work of the Court will not be affected in any way." Perhaps Roberts thinks that by deviating from the normal course, the Court would be sending a signal that the leak did affect the Court's business. If so, Roberts continues to live in a different reality than the rest of us. Justice Kavanaugh nearly faced an assassination attempt. A group bearing the name of Ruth Bader Ginsburg advertises nightly protests outside of his home. Similar protests are scheduled outside of the homes of other Justices. Their lives have been turned upside down. All of the other Justices are at similar risk. The way to ensure that the Court "will not be affected in any way" is to decide a case as soon as it is ready, and remove the threat that someone will try to deprive the majority of the fifth vote.

Why is there a delay? So Roberts can take yet another ill-fated attempt to pick off one or two votes? A real leader would have put aside his quixotical quest for balance. Every day that passes, as the Chief haggles over votes, a target remains on the backs of his colleagues.

The Dobbs 5 should immediately issue an unsigned per curiam order, with an opinion to follow, even over the Chief Justice's objection. The Justices should send a clear and unequivocal message that they will not be intimidated by these acts of violence.