5/17/1954: Brown v. Board of Education and Bolling v. Sharpe are decided.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
An end to end-to-end encryption?
Episode 407 of the Cyberlaw Podcast
Is the European Union (EU) about to save the FBI from Going Dark by essentially outlawing end-to-end encryption? Jamil Jaffer and Nate Jones tell us that a new directive aimed at preventing child sex abuse might just do the trick. That view is backed by people who've been fighting the bureau on encryption for years.
The Biden administration is prepping to impose some of the toughest sanctions ever on Chinese camera maker Hikvision, Jordan Schneider reports. No one wants to defend Hikvision's role in enabling China's Uyghur policy, but I'm skeptical that we should spend all that ammo on a company that is far from the greatest national security threat we face. Jamil is more comfortable with the measure, and Jordan reminds me that China's economy is shaky enough that it may not pick a fight to save Hikvision. Speaking of which, Jordan schools me on the likelihood that Xi Jin Ping's hold on power will be loosened even by a combination of the Chinese tech downturn, harsh pandemic lockdowns, and the grim lesson provided by Putin's ability to move without check from tactical error to strategic blunder and then to historic disaster.
Speaking of products with more serious national security impact than Hikvision, Nate and I try to figure out why the effort to get Kaspersky software out of U.S. infrastructure is still stalled. I argue that the Commerce Department should take the blame.
In a rare triumph of common sense and science, the wave of dumb laws attacking face recognition may be receding as lawmakers finally notice what's been obvious for five years: The claim that face recognition is "racist" is false. Virginia, fresh off GOP electoral gains, has revamped its law on face recognition so it now more or less makes sense. In related news, I puzzle over why Clearview AI accepted a settlement of the ACLU's lawsuit under Illinois's biometric law.
Nate and I debate how much authority Cyber Command should have to launch actions and intrude on third country networks without going through the interagency process. A Biden White House review of that question seems to have split the difference between the laissez-faire spirit of the Trump administration and the analysis-paralysis of the Obama years.
Quelle surprise! Jamil concludes that the EU's regulation of cybersecurity is an overambitious and questionable expansion of the U.S. approach.
The EU may not be alone. Jordan notes the Defense Department's effort to keep small businesses who take its money from decamping to China once they start to succeed. Jordan and I fear that the cure may be worse than the disease.
I get to say I told you so about the unpersuasive and cursory opinion issued by United States District Judge Robert Pitman, when he enjoined Texas' social media law. The Fifth Circuit has overturned his injunction, so the bill will take effect, at least for a while. In my view some of the provisions are constitutional and others are a stretch; but Judge Pitman's refusal to do a serious severability analysis means that all of them will get a try-out over the next few weeks.
Jamil and I debate geofenced search warrants and the reasons why companies like Google, Microsoft and Yahoo want them restricted.
In quick hits,
- Jamil and I trade views on whether the Biden White House has effectively managed the lagging implementation of its landmark cybersecurity executive order.
- I note the important new protocol for implementing the Budapest Convention. On the principle that you can judge a policy by its enemies, this protocol is looking pretty good.
- Jamil highlights a study – by Europeans, no less – that suggests that General Data Protection Regulation (GDPR) is killing innovation in the Android app market.
- Jamil also flags a new study of the Chinese Offensive Cyber Landscape.
- And I suggest that the event with the biggest tech policy impact last week may have been none of these things; the real policy driver may turn out to be the meltdown in tech stocks generally and in cryptocurrency values in particular.
Download the 407th Episode (mp3)
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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
Roberts Can Still Write
My criticism of the Chief Justice is virtually unflagging, but I must give credit where it's due: Roberts is still the strongest writer on the Court. Look no further than his self-assigned majority opinion 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.
Perfection.
The best standup routines will often include a joke at the beginning that establishes a theme. The comic will revisit that theme throughout the set. And then, for the very last line, he will come back to the opining theme to a standing ovation. This sort of delivery requires skill, patience, and craft.
Today, judges often attempt humor with one-liners and zingers that are over as soon as they begin. These barbs seldom leave a mark but often miss the mark. In Cruz, the Chief plants the seed, builds up to it, then pays it off subtly. You know some thought went into this argument. Well done. (One of the reasons why I am so hard on Roberts's jurisprudential sophistry is because I know he knows better.)
Then, from rabbit holes to mouse holes, we get this line from Justice Gorsuch's dissent in Patel v. Garland:
Often this Court rejects as implausible statutory interpretations that seek to squeeze elephants into mouse holes. See, e.g., Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Today's interpretation seeks to cram a veritable legislative zoo into one clause of one subparagraph of one subsection of our Nation's vast immigration laws.
Unsolicited advice for West Virginia v. EPA: retire all future analogies about mouse holes. Justice Scalia penned a classic line twenty years ago. Now we're just beating a dead elephant.
Finally, Justice Kagan's dissent in FEC v. Cruz missed an obvious, and inappropriate joke:
By contrast, when a campaign uses a donation to repay the candidate's loan, every dollar given goes straight into the candidate's pocket. With each such contribution, his assets increase; he can now buy a car or make tuition payments or join a country club—all with his donors' dollars.
Cruz could have bought a return plane ticket from Cancun!
Total COVID-Related Closure of Trial and Suppression Hearing (With Public Audio But Not Video) Was Unconstitutional
From today's opinion in U.S. v. Allen, written by Judge Sandra Ikuta and joined by Judge Lawrence VanDyke and Tenth Circuit Judge Carlos Lucero; seems generally right to me:
At the height of the coronavirus pandemic in 2020, the district court here prohibited members of the public from attending the defendant's suppression hearing and trial and rejected the defendant's request for video-streaming of the proceedings. This appeal raises the question whether the court's order violated the defendant's Sixth Amendment right to a public trial.
We conclude that the district court's order was not narrowly tailored, in part because courts throughout the country, facing the same need to balance public health issues against a defendant's public trial right, consistently developed COVID protocols that allowed some sort of visual access to trial proceedings. Accordingly, we conclude that the court's COVID protocols in this case violated the defendant's public trial right, and he is entitled to a new suppression hearing and trial….
The court's protocol for Allen's pretrial hearings and trial precluded members of the public from entering the courtroom, and gave them access to the proceedings only by streaming audio over the internet.
Allen objected to this protocol as violating his Sixth Amendment right to a public trial. At a hearing to consider this and other pretrial issues, Allen's counsel argued that while neither audio nor video streaming of the trial was equivalent to an in-person trial, Allen would accept video as "an adequate substitute" for public access because it "comes closer to recapturing that in-person experience more so than telephone."
According to counsel, "the ability to have the courtroom open is not simply to hear the witnesses but to see the witnesses, to see the jury, to see the defendant, to see the attorneys, see the court," as well as "to see the exhibits … and have as close to a re-creation of that ability to walk into the courthouse." By contrast, counsel asserted, telephone access was not an adequate substitute because "you miss all of that flavor." Counsel argued that this factual difference adds up to "a constitutional legal difference." …
The [district] court ruled that there was no basis "for concluding that there's a constitutional difference between audio and video." It then rejected the counsel's proposed alternative of video-streaming the trial. According to the court, it would be improper to live-stream the proceedings over the internet because the court would be unable to prevent viewers from recording the trial. And the court concluded that live-streaming the video to a different room in the courthouse would not meet the objectives of closing the courthouse and curbing the spread of COVID, because it would not limit the number of persons in the courthouse.
Why the Texas Social Media Law is a Menace to Freedom of Speech
The law forces social media firms to host and promote speech they oppose, and would set a dangerous precedent if upheld by the courts.
In December, federal district court Judge Robert Pitman ruled against HB 20, Texas' sweeping new social media law that bars social media firms from engaging in almost any moderation of the content that can appear on their sites. Not only are they forbidden to completely exclude content they disapprove of; they are also not allowed to treat it differently on the site (such as by flagging it as possibly unreliable "misinformation" or reducing its prominence relative to other speech on the same platform).
Last week, the US Court of Appeals for the Fifth Circuit issued a 2-1 ruling imposing a stay on the injunction against enforcement of the law issued by the trial court. The Fifth Circuit ruling is purely procedural, and is not accompanied by any opinion explaining the court's reasoning. So it's hard to say whether the stay is based on purely technical procedural considerations, or signals that the majority believes the law is actually constitutional.
On Friday, the tech firms challenging the law asked the Supreme Court to lift the Fifth Circuit's stay, in a brief drafted by a virtual Who's Who of prominent conservative appellate lawyers, including "super-lawyer" Paul Clement (former Bush administration Solicitor General), and former Texas Solicitor General Scott Keller.
I will not try to assess the purely procedural issues involved in the fight over the stay. But I completely agree with the brief's discussion of the substantive free speech question. HB 20 is blatantly unconstitutional because it compels speech, forbids the exercise of editorial discretion by social media firms, and is meant to target firms the Texas state government believes are hostile to "conservative" speech specifically.
HB 20 is an extreme version of proposals to treat social media firms as "common carriers" who have a legal duty to accept all or virtually all would-be customers. I criticized such proposals in detail here. Most of the points I make are relevant to the present case:
Let's start with first principles. Eugene Volokh asks "Whose rules should govern how Americans speak with other Americans?"…..
Th[e] answer is that each American should be able to decide for himself, with extremely rare exceptions. But each person should also be able to decide what kinds of speech are permitted on their property. And that applies to media corporations no less than individuals. Thus, I should be able to advocate virtually any viewpoint I want. But Fox News and the New York Times should be equally free to refuse to broadcast or publish my views.
Both the right to free expression and the right to refuse a platform to speech you disapprove of are vital elements of freedom of speech. If Fox were forced to broadcast left-wing views they object to and the Times had to give space to right-wing ones its editors would prefer to avoid, it would be an obvious violation of their rights. Moreover, in the long run, such policies would actually reduce the quantity and quality of expression overall, as people would be less likely to establish TV stations and newspapers in the first place, if the cost of doing so was being forced to give a platform to your adversaries' views….
Thus, there should be a very strong presumption against forcing people to provide platforms for views they object to. Can proposals for common carrier regulation of social media overcome that objection? The answer should be a firm "no."
The standard rationale for common carrier regulation is that the the firms in question have some kind of monopoly power….
The reality is very much otherwise. Recent survey data compiled by the Pew Research Foundation finds that many more Americans get news by means other than social media than use the latter. For example, 68% of Americans indicated they regularly get news from media websites and apps, 68% from television, and only 53% from social media sites. Among the overwhelming majority (about 96% of the total sample) who use more than one type of media to get news, 35% preferred TV, 26% preferred news websites and apps, and only 11% said they preferred social media. The same study also found that, on average, Americans trust news from social media sources less than that from television and news websites.
What is true of news is also true of opinion and commentary about political and social issues in the news…..
To the extent we are specifically concerned with access for conservative viewpoints, there are large right of center players in both TV media and online news and opinion. These include such major outlets as Fox News, the Wall Street Journal editorial page, the Washington Times, the New York Post, and others.
In sum, social media sites have nothing approaching a monopoly over the market for political information generally, or even over its distribution online.
One measure of Big Tech social media's inability to control political discourse is their utter failure to prevent the rise of widespread attacks on Big Tech itself! Real monopolists worthy of the name should be able to at least suppress speech that directly threatens their own interests.
Moreover, as I explained in a January [2021] op ed in USA Today (itself one of the many alternatives to social media!), the big social media sites don't even command a true monopoly over social media, narrowly defined. Rival sites with different (and often much looser) moderation rules can and do compete with them….. If they aren't as popular as Facebook and Twitter, it's not because of lack of competition, but because fewer consumers like them. Facebook and Twitter themselves challenged previous, supposedly dominant incumbents. If they annoy enough consumers, or if someone develops a more appealing competing platform, today's supposedly unassailable "giants" will suffer the same fate…..
Other rationales for imposing common carrier rules on social media firms are even weaker than the monopoly theory….. [this part of my piece critiques analogies between social media and phone lines and mail delivery services].
The potential imminent takeover of Twitter by Elon Musk - who promises to greatly reduce content moderation - is a further sign that the market is fully capable of generating competition for platforms with restrictive moderation of policies.
I also explained why, if courts accept the HB 20 or "common carrier" approach to regulating social media, it would set a dangerous precedent for government control over other media:
In addition to banning content moderation rules that many consumers like, common carrier restrictions also create serious slippery slope risks. If the monopoly rationale for imposing common carrier rules on social media platforms is accepted, it could just as easily justify the imposition of similar requirements on many types of traditional media.
Even if Twitter and Facebook don't actually monopolize the market for political information, it's certainly true they reach various potential audiences that are difficult or impossible to reach in other ways. But, if that justifies forcing them to abjure restrictions on content, the same theory would rationalize imposing the same requirements on other types of media. Fox News, the New York Times, the Wall Street Journal, and a variety of other major broadcast and print media outlets also reach large audiences that can't always be easily reached in other ways. By that rationale, they too can be forced to be common carriers!
Perhaps the problem is not that social media giants monopolize any audience in some economic sense, but that they have too much influence over political discourse relative to some egalitarian baseline. Why should Mark Zuckerberg's views have any more clout than those of the average American? But we can make exactly the same argument for the owners and editors of Fox News, the New York Times, and any other outlet with a large audience. They too have vastly more influence over public discourse than the average American does. And it's not clear that they are any more worthy of their influence than Zuckerberg is.
Giving government a free hand to impose common carrier restrictions on any website or media outlet that "monopolizes" a particular audience or otherwise has "too much" influence is a power that can and will be abused. Call it "common carrier creep!"
The party in power will have obvious incentives to use it to neuter media that oppose them. Even if conservatives are comfortable with giving such discretion to GOP politicians, are they equally at ease with giving it to Joe Biden, Kamala Harris, or Elizabeth Warren? How about the bureaucrats Democratic presidents are likely to appoint to federal regulatory agencies tasked with implementing such common carrier regulations (and deciding which firms should be subject to them)?
Liberal advocates of social media regulation (of whom Warren is a prominent example) should ask themselves whether they would be willing to entrust such regulatory authority to the likes of Donald Trump or Josh Hawley. Given the chance, those guys would be happy to make social media great again - under their definition of greatness, of course.
Court Overturns Ban on Ex-Spouse's "Making Disparaging Comments" About Ex to "Anyone"
In Israel v. Israel, decided today by the Indiana Court of Appeals (Judge Mark Bailey, joined by Judge Edward Najam and Chief Judge Cale Bradford), the trial court had issued a divorce decree that provided, among other things,
The parties shall refrain from making disparaging comments about the other in writing or conversation to or in the presence of [Child], friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone. Disparaging remarks include[e], but are not limited to, negative statements, criticisms, critiques, insults[,] or other defamatory comments. The parties shall not say or do anything or allow a third party to say or do anything about the other party in [Child's] presence that may estrange [Child] from the other party or impair his regard for the other party. The parties shall not involve [Child] in matters that are adult matters and that solely involve the parents or the other parent.
Unconstitutional, the appellate court held:
Grandmother of Dead Child May Post Child Protection Services Documents That Are Confidential Under State Law,
but that she received from the lawyers for the man accused of killing him.
From Schrader v. Sunday, decided today by Judge Jennifer P. Wilson (M.D. Pa.):
This is an action seeking injunctive relief filed by Plaintiff Victoria Schrader … against David W. Sunday, Jr., the District Attorney of York County … and Josh Shapiro, the Attorney General of Pennsylvania …. According to the complaint, on December 20, 2018, the Commonwealth of Pennsylvania charged Tyree M. Bowie … with the murder of Dante Mullinix … a two-year old child. {The criminal case against Bowie remains pending ….}
Schrader is Dante's grandmother, who believes that the York County Office of Children and Youth Services … "failed to protect Dante and prevent his death." Similarly, Sarah Mercado …, Dante's aunt and Schrader's daughter, believes that York County CYS failed Dante and that Bowie is innocent of Dante's murder. {Mercado has two cases pending with the court seeking relief similar to that requested in the instant case ….} To advocate for these beliefs, Mercado maintains a Facebook group entitled "Justice for Dante" on which she posts her belief that Bowie is innocent, and that York County CYS was the party responsible for failing Dante, rather than Bowie.
During the course of discovery in his criminal case, Bowie received various documents concerning investigations into Dante's death, including documents from CYS. Before Dante's death, Mercado made a report to CYS expressing concern for Dante's wellbeing. Mercado's report, and the documents associated with the investigation stemming therefrom, were part of the documents available to Bowie in his ongoing criminal case. After Bowie received these documents, he sent them to Mercado, who posted them to the Justice for Dante Facebook page as additional evidence of CYS's alleged failings surrounding Dante's death.
CUNY Law Graduation Speaker is Recently-Named "Antisemite of the Year"
I accidentally posted a link a few minutes ago that I meant to post elsewhere, but you can find the basic story here.
The student in question is best-known for pulling out a lighter, lighting it, and then threatening to set someone's Israel Defense Forces shirt on fire--while he was wearing it. CUNY Law School responded with a statement denouncing antisemitism and then, remarkably, "CUNY Law dean Mary Lu Bilek withdrew the condemnation and issued a statement apologizing and stating that Kiswami 'exercised her First Amendment right to express her opinion.'" Please note, that, while that is the incident she is best-known for, it's hardly the only "highlight" of her activist career.
"Are Jews a Race Under U.S. Law?
A new article of mine in Tablet magazine, which begins:
Is being Jewish a race? A national origin? An ethnicity? A religion? All four?
The answer is: It's complicated.
Now Justice Barrett Uses "Noncitizen" Instead of "Alien"
"Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States."
Justice Barrett's majority opinion in Patel v. Garland begins:
Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances.
Yet, Congress does not use the word "noncitizen." The immigration laws use the word "alien."
Now, Justice Barrett has joined Justice Kavanaugh, Justice Sotomayor, the Solicitor General, and others, with swapping out "alien" for "noncitizen." The lower courts—including the Eleventh Circuit—continue to squabble over this issue.
Fortunately, Justice Barrett did not expurgate the word "alien" from quotations, like Justice Sotomayor did.
Section 1182(a)(6)(C)(ii)(I) renders inadmissible an "alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under" state or federal law.
In Guerrero-Lasprilla v. Barr, 589 U. S. ___ (2020), we had to decide whether subparagraph (C)—which bars review of "any final order of removal against an alien who is removable by reason of having committed" certain criminal offenses—prohibits review of how a legal standard applies to undisputed facts.
Meanwhile, Justice Gorsuch's dissent that ruled for Patel, which was joined by the Court's progressives, used the word "alien" repeatedly.
No Pseudonymity for Lawyer Who Wants to Conceal Litigation Against Government from Future Clients
From Chief Judge Beryl Howell's opinion in Doe v. U.S. Dep't of Homeland Security (D.D.C. Mar. 14, 2022):
Plaintiff, an attorney, has moved to proceed pseudonymously as he litigates his instant claim under the Freedom of Information Act seeking information from various government agencies about a January 2021 incident, during which plaintiff was stopped at an international airport while attempting to reenter the United States and subjected to an interrogation "about legal representation he has provided and continues to provide." …
Plaintiff, an attorney licensed in Texas, represents "individuals in U.S. Immigration and Naturalization matters" and "criminal and national security investigations," including clients "who are under investigation by the FBI." … In 2021, plaintiff "was attempting to reenter the United States … through a Global Entry kiosk" at an international airport located in Dallas, Texas. He was "rejected entry at the kiosk and transferred to an in-person primary inspection, and then to a secondary inspection area," where he was "separately interrogated" by a CBP officer and two Department of Homeland Security ("DHS") employees "about his law practice, personal life, parents, and his personal U.S. immigration history."
One of the officers then asked him to "unlock his iPhone so that the digital contents … could be inspected," to which request plaintiff responded "he could not consent" because "the iPhone contained extensive privileged information and allowed for the accessing of privileged information that is stored remotely." In the face of plaintiff's denial of the request for access to his iPhone, the officer "informed Plaintiff that DHS was seizing the iPhone and that the digital contents would be searched" and "physically assaulted" plaintiff. Thereafter, plaintiff "submitted FOIA requests for documents, records and videos pertaining to the Plaintiff and the January 3, 2021, incident" to each of the defendant agencies.
Due to the defendants' alleged failure timely to comply with plaintiff's FOIA requests, plaintiff brings this suit challenging their denials and inaction under FOIA. He seeks to proceed under pseudonym because of "safety concerns for Plaintiff and his family given that part of this litigation involves an assault that occurred by an employee" of one of the defendants, and because "third parties associated with Plaintiff could be negatively impacted or harmed by the nature of this litigation."
The court noted the strong presumption against pseudonymity, and held it wasn't rebutted in this case; here's an excerpt from the reasoning: Read More
Akhil Amar on the Draft Dobbs Opinion
A prominent progressive law professor challenges some of the prevailing orthodoxy on Roe, Dobbs, and Supreme Court precedent.
Over the weekend, Yale law professor Akhil Amar had a substantial essay in the Wall Street Journal discussing the leaked draft opinion in Dobbs by Justice Alito that would overturn Roe v. Wade. Professor Amar is one of the nation's most prominent constitutional law professors. He is fairly progressive, but also considers himself an originalist. As a consequence, he sometimes breaks with prevailing academic sentiments, and he did so here, arguing there is "nothing radical, illegitimate or improperly political in what Justice Alito has written."
While some commentators have claimed the Dobbs draft would represent a dramatic break from the Court's prior treatment of precedent, Professor Amar claims there was not "anything unusual" in the draft's treatment of precedent.
Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. Over the last century, the Court has overruled itself about twice a year—roughly the same rate at which the Court has overturned acts of Congress.
Precedents fall for many reasons. Sometimes the world changes in ways that mock the logic and expectations of the old ruling. Sometimes opposing lines of cases evolve and clash, and something must give. Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.
Amar could have added that, since John Roberts has been Chief Justice, the Supreme Court has overturned precedents (and invalidated federal statutes) at a measurably lower rate than did the Rehnquist, Burger, and Warren Courts. This could well change in the years ahead given the Court's current composition, but it has not yet. Overruling Roe would be quite significant--and would almost certainly be the most consequential overturning of a precedent to date in this century--but it would not represent a dramatic departure from the Court's recent approach to precedent.
Unlike most of his colleagues on the Left, Amar believes that Roe should be overturned (or at least substantially rethought). He writes:
Today, the Supreme Court's 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft. (Full disclosure: The draft cites me and several others as constitutional scholars who oppose Roe but personally support abortion rights.) Even the late Justice Ruth Bader Ginsburg was sharply critical of the decision.
Professor Amar also disputes some of the fear-mongering about what overturning Roe would mean for other constitutional rights. As he also noted in a recent episode of his podcast, many of these claims are quite unfounded.
Does Justice Alito's draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court's precedents on contraception and interracial marriage?
It does not. In fact, the Dobbs draft reinforces these iconic opinions by explaining why they were right—namely, because the freedoms recognized in these cases were "deeply rooted in the Nation's history and tradition." These watershed rulings were once controversial in conservative constitutional circles, thanks to the influential work of Robert Bork, but now they are safe.
Amar goes on to explain how the draft opinion provides a ready basis to distinguish cases like Griswold v. Connecticut and Loving v. Virginia. Unlike abortion, rights related to marriage are "deeply rooted in the Nation's history and tradition," and there is no widespread political movement seeking the reversal of the precedents. Loving also rests on an Equal Protection rationale that, if anything, has become stronger over time. The current Court is arguably even more hostile to explicit race-based classifications than its predecessors.
Amar concedes that "the draft's logic could be seen to undermine the Obergefell decision" recognizing a right to same-sex marriage, but does not think that decision is under threat either. He notes the increasing spread and acceptance of same-sex marriage and that marriages implicate more substantial reliance interests (as that concept has been traditionally understood in the law) than does a right to abortion.
Amar closes with some broader points about the Court, and persistent progressive attacks on it.
Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh's nomination to the Court, remains true: "Americans generally and with good reason view today's Court more favorably than today's Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today's President and Congress say the same?"
In short, I am a Democrat who supports abortion rights but opposes Roe. The Court's ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I'm wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.
Today in Supreme Court History: May 16, 1918
Today in Supreme Court History: May 15, 2000
5/15/2000: U.S. v. Morrison is decided.
Linking Fired Women's Gymnastics Coach to Sex Abuser Larry Nassar Could Be "Libel by Implication"
So the Michigan Court of Appeals held Thursday, in a case brought by the former head women's gymnastics coach at Central Michigan University.
From Reighard v. ESPN, decided by Chief Judge Mark Boonstra and Judges Michael J. Kelly & Brock Swartzle (Presiding Judge Boonstra also concurred separately to agree with Justices Thomas and Gorsuch's recent criticisms of the U.S. Supreme Court's libel jurisprudence, and with Justice White's past criticisms):
For 35 years, [Jerry] Reighard was the head women's gymnastics coach at Central Michigan University (CMU). On February 20, 2019, CMU announced that it had placed Reighard on paid administrative leave pending an investigation. No details regarding the investigation were disclosed in that announcement. However, citing confirmation by CMU's athletic director, multiple news articles reported on that date that the investigation had "nothing to do with [former gymnastics physician] Larry Nassar's case or sexual misconduct of any kind" or "Title IX."
Defendant Daniel Murphy is a reporter for defendant ESPN, Inc. In that capacity, Murphy had previously reported on issues relating to gymnastics, including coverage of Nassar's sexual abuse of gymnasts and John Geddert's reported physical and mental abuse of gymnasts…. On February 21, 2019, Murphy posted on Twitter consecutive tweets about two public announcements concerning women's gymnastics coaches in Michigan. The first tweet referred to an announcement by the Michigan attorney general:
Michigan's attorney general announced today her office is taking over an investigation of John Geddert, the 2012 Olympic team head coach and close friend of Larry Nassar. Several gymnasts have publicly abused [sic] Geddert of physically and mentally harming them.
The second tweet—which was posted within a minute of the first tweet—addressed CMU's announcement concerning Reighard:
On the same day as the AG's announcement, Central Michigan said it was putting longtime gymnastics coach Jerry Reighard on leave amid an internal review. No details of the review were shared, but Reighard has a long personal and professional relationship with Geddert.
Reighard requested a retraction of the tweets. Murphy then searched for and discovered the earlier reporting in which CMU had confirmed that its investigation of Reighard had nothing to do with Nassar or Title IX. Murphy also then spoke directly with a CMU representative, who again confirmed to Murphy that the investigation had nothing to do with Nassar or Title IX, and that by "Title IX," he meant "sexual misconduct."
Following that conversation, Murphy concluded that a retraction was unnecessary because there was nothing factually incorrect in the tweets. Instead, on March 11, 2021, he posted an additional tweet—which he testified was not meant as a retraction, but instead was intended to "add more information to [his] reporting"—on Twitter:
Central Michigan hopes to have its internal investigation of Jerry Reighard completed by the end of the semester. An athletic dept. spokesman confirmed today Reighard remains on paid leave and the investigation is not connected to the Larry Nassar scandal or sexual misconduct.
Criminal Libel Arrest for Criticism of Police Officer Was Unconstitutional
Louisiana's criminal libel law was repealed in 2021, but even before that it had been held unconstitutional as to prosecutions for libels of public officials, and more broadly as to prosecutions for libels on matters of public concern. Judge Jane Triche Milazzo's opinion yesterday in Rogers v. Smith (E.D. La.) held that an arrest for allegedly libeling a police officer violated the Fourth Amendment (and also allowed a First Amendment retaliation claim and some other claims to move forward):
This case arises out of the arrest of Plaintiff Jerry Rogers for criminal defamation. Defendants are St. Tammany Parish Sheriff Randy Smith, Chief Danny Culpeper, and Sergeant Keith Canizaro in their individual and official capacities. Plaintiff alleges that he worked for the St. Tammany Parish Sheriff's Office ("STPSO") from 1998 to 2009 before leaving for other employment. On July 14, 2017, Nanette Krentel was murdered in St. Tammany Parish, and her murder remains unsolved. Plaintiff followed the news coverage of the murder investigation and, based on his personal experience, became critical of some of the actions taken by the STPSO. He began communicating with Krentel's family members by email about his concerns. Specifically, Plaintiff was critical of the lead investigator, Detective Daniel Buckner.
At some point, the STPSO became aware of the emails and began investigating their source. Plaintiff alleges that upon discovering that Plaintiff was the author of the emails, the STPSO sought the advice from the district attorney's office ("the DA") and was advised that Louisiana's criminal defamation law, Louisiana Revised Statutes § 14:47, had been declared unconstitutional as to public officials and therefore charges against Plaintiff would be unconstitutional. Despite this, Defendants arrested Plaintiff for criminal defamation anyway.
Today in Supreme Court History: May 14, 1973
5/14/1973: Frontiero v. Richardson decided.
Justice Thomas on SCOTUS Leak: "You begin to look over your shoulder"
Thomas on the Rehnquist Court: “We may have been a dysfunctional family, but we were a family.”
On Friday, Justice Thomas was interviewed by John Yoo, his former law clerk, at an event in Dallas. A recording is available here. (Update: the video link no longer works.) I've transcribed parts of the video through Otter, and will post some of the highlights here.
First, Yoo asked Thomas if there is "anything going on at the Court these days." Thomas let out a booming laugh. A few moments later, he got to the question:
The whole idea that your point about institutions, I think we are in danger of destroying the institutions that are required for a free society. You can't have a civil society, a free society, without a stable legal system. You can't have one without stability and things like property or interpretation and impartial judiciary. And I've been in this business long enough to know just how fragile it is.
Now when Chief Justice Roberts speaks of the Court as an "institution," he approaches that concept from a PR perspective--5-4 decisions are bad, incoherent 9-0 decisions are good. Thomas could not care what final votes are. Rather, he worries about attacks on the Court by the political branches, and more recently, from within. Next, Thomas turned to the leak.
And the institution that I'm a part of, if someone said that one line of one opinion would be leaked by anyone in you would say that, 'Oh, that's impossible. No one would ever do that.' There was such a belief in the rule of law, belief in the court, a belief in what we were doing, that that was verboten. It was beyond anyone's understanding, or at least anyone's imagination, that someone would do that. And look where we are, where now that trust or that belief is gone forever. When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally. You begin to look over your shoulder. It's like kind of an infidelity that you can explain it but you can't undo it.
This quote is quite revealing. Thomas now seems to think there are members of his own Court he cannot trust. We can put to rest the notion that a conservative clerk leaked this information. If a Thomas clerk or an Alito clerk or a Gorsuch clerk gave the opinion to Politico, Thomas would not be looking over his shoulder.
Second, a member of the audience asked Thomas to define stare decisis:
I think there was a word that was used today. That was really interesting, because I think it's a central word, and it's 'courage.' The way that Walter Williams did it in one of his books from the 1980s is 'All It Takes Is Guts.' And I think a lot of people lack courage, like they know what is right, and they're scared to death of doing it. And then they come up with all these excuses for not doing it.
In several recent decisions, Justice Thomas and the other conservatives have alleged that Chief Justice Roberts and Justices Barrett and Kavanuagh lack "courage." I've written about this theme in my essay, Judicial Courage. Is Thomas here talking about Dobbs? Or speaking more broadly about stare decisis? Next, Thomas analogizes "stare decisis" to waving a white flag:
So even with stare decisis, you will see in a lot of those instances where people start, they run out of arguments. I always say when someone uses stare decisis, that means they're out of arguments. And now they're just sort of waving the white flag. And then that's I just keep going then. I think if you have an argument, you make it, but I'm not going to go along with something. If you buy that argument then Plessy should never have been overruled. I mean, you cannot overrule Plessy and when you raise that with them, then they don't they well, they give you err, ahh, err, ahh, err, ahh.
Third, a member of the audience remarked that Justices Scalia and Ginsburg got along well. He asked how society "can we foster that same type of relationship within Congress and within the general population." Thomas did not answer that question, but instead went right back to his Court. And he explained that the Court has changed since 2005.
Well, I'm just worried about keeping it at the court now. This is not the court of that era. I sat with Ruth Ginsburg for almost 30 years. And she was actually an easy colleague for me. You knew where she was and she was a nice person to deal with Sandra Day O'Connor you can say the same thing, David Souter, I can go on down the list. Nino was, he could be agitated but then he forgot he was agitated. But it was it was a the court that was together 11 years was a fabulous court. It was one you look forward to being a part of. What you I go back to the point I made about the institutions. What you've got to be concerned about is just like you see the law clerks--Remember the last four appointees of the courts, including the newest one I knew as law clerks. These law clerks with these attitudes--
At that point, John Yoo interrupted Thomas and said, "I'm available by the way if you're looking for more." Thomas replied that Yoo would have some confirmation problems. I'm irked that Yoo interrupted Thomas at this juncture, because Thomas was about to say something concerning the attitudes of Justices Gorsuch, Kavanaugh, Barrett, and (Justice in waiting) Jackson--four Justices whom he knew as law clerks. What is Thomas saying here? Why are his new colleagues so different? And what difference does it make that they were law clerks?
I can speculate. For most SCOTUS clerks, their careers peak when they are in their late 20s. They achieve the pinnacle of their power. And they spend the rest of their lives pining for that moment of glory, hoping, dreaming to once again taste the nectar and ambrosia on Olympus. Indeed, some of those former clerks spend their every waking moment trying to get back on the Supreme Court--the Little Supremes! Now, at least four of those clerks, plus Kagan, made it back to the peak. Thomas was suggesting that the attitude these former clerks bring is problematic. I really, really wish Yoo did not interrupt the boss here.
Thomas returned to the "attitude" point, but his point wasn't entirely clear. It seems he thought better of what he was saying, and changed direction.
I just think that they [the law clerks] bring--that anybody who would, for example, have an attitude to leak documents. That general attitude is your future on the bench. And you need to be concerned about that.
Again, I did not fully understand the point, but it was something negative about former clerks becoming Justices. Thomas once again said the old Rehnquist Court was different than the current Roberts Court.
And we never had that before. We actually trusted--it was we may have been a dysfunctional family. But we were a family. And we loved it. I mean, you trusted each other. You laughed together. You went to lunch together every day. And I can only hope you can keep it. So it's what was it Ben Franklin that said, we gave you a republic if you can keep it. And I think that you have a court and you hope you can keep it.
Mind you, this was the Bush v. Gore Court! And that was more functional than the current Court.
Fourth, Yoo asked about what "changed between that court and the current one?"
I think what's changed in society, modernity of post modernity. I think attitudes have changed. I think when I got to the court you still had World War Two veterans on the court. You still had people like John Stevens who was a nice man. You had Byron White, who was a Rhodes Scholar when Rhodes Scholars were real athletes and number one in their class, NFL football player, Navy veteran. And you had Sandra Day O'Connor. That's a different generation and we were living off the sort of the treasures of that generation. That generation has gone. I'm the only member of the court ever to have been born in 1940s. Okay, everybody else is subsequent to that now. And the other ones I got to the court they were born in the 1930s and the 1920s. And we're now dealing with post World War two generation. And as you see it play out in society, I think you're going to see play out in the institution. So what's the difference? It's a different set of people who grew up in a different era. And I don't know what where that's gonna lead you but we know it's different.
This answer had something of a "get off my lawn" vibe to it. I'm not exactly sure what point he is making, other than that the Baby Boomers and Gen Exers are culturally different than the Greatest Generation. This Simpson's clip comes to mind--fast-forward to 1:51.
Grandpa Simpson said it best: "Every generation stinks but ours."
I do not think that Thomas was suggesting that Roberts was at fault. But Roberts's leadership has not contributed to a functional institution. Quite the opposite. Unlike Justice Ginsburg, no one knows where Chief Justice Roberts is. To quote Aaron Burr, "Talk less; smile more; don't let them know what you're against or what you're for." NFIB v. Sebelius may have saved the ACA, but the controlling opinion destroyed the Supreme Court as we know it. The anonymous conservative told Politico:
"There is a price to be paid for what he did. Everybody remembers it,"
Roberts won the battle, but lost the war. Now Thomas is making this point explicitly.
Next, an audience member asked about Senator Jack Danforth, for whom Thomas worked. Danforth said that conservatives should never do to liberals what liberals did to Justice Thomas. Thomas jumped in:
You [conservatives] would never visit Supreme Court Justice house's when things didn't go our way. We didn't throw temper tantrums. It is incumbent on us to always act appropriately and not to repay tit for tat.
Another audience member asked if conservatives are treating liberals better than liberals treated conservatives. Thomas jumped into the Garland and Kavanaugh nominations:
Well, I think everybody you can find an exception to every generalization, but I think if you look around you will see that they [conservatives] have never trashed a Supreme Court nominee. The most they can point to is that Garland did not get a hearing, but he was not trashed. And it was a rule that Joe Biden introduced by the way, which is you get no hearing in the last year of an administration. That was not the rule before then. But at any rate with that aside, I'm sure you can find--you can quibble, but you will not see the utter destruction of a single nominee. You will also not see people going to other people's houses, attacking them at dinner at a restaurant.
We also learn that during the Kavanaugh fiasco, protestors mistakenly attacked the cars of Justices Kagan and Ginsburg. (Those cars presumably pulled out of the garage at the back of the Court.)
Throwing things on them, which we had when Brett Kavanaugh was confirmed. They were throwing things they didn't realize it was Justice Ginsburg and Justice Kagan. They were throwing stuff on the car that when they left, and you hear very little that they were banging at the door of the Supreme Court. Like it was storming the Bastille or something and but you hear very little of that and that's under reported. I don't think that I can tell you that everybody has been perfect, but I've seen no conduct that match them. And perhaps you have and if you did I stand corrected.
You should watch the entire speech. It is our best insight to date about the sentiments inside the Court.
