The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
"Discard [Library] Books … That Reflect Gender, Family, Ethnic, or Racial Bias"
Professional librarian sources seem split on viewpoint-based book removals: some firmly call for viewpoint neutrality, while others say that books should be evaluated for "biased viewpoints."
[1.] Next week, the entire en banc Fifth Circuit will be hearing Little v. Llano County, a case involving allegations of viewpoint-based book removals in a public library. As I've noted before, the Supreme Court has never resolved whether such removals are unconstitutional. Pico v. Bd. of Ed. (1982), which considered the matter as to public school libraries, split 4-4 on the subject, with the ninth Justice, Justice White, expressly declining to resolve the substantive question. (The Pico Justices generally agreed that schools could remove some material as age-inappropriate because of its vulgar or sexual content; the debate was about viewpoint-based removals.)
U.S. v. American Library Ass'n (2003), which dealt with the related question of Internet filtering in public libraries generally, was also a splintered decision, and didn't resolve the broader question, either. A 1995 Fifth Circuit panel decision had generally precluded such viewpoint-based removals, but the Fifth Circuit en banc court will need to consider whether that decision should stand: Rehearing by the full en banc court is the normal way that federal appellate courts reconsider whether three-judge panel decisions should be overruled.
I'm not sure what the answer here should be. I tentatively think a public school is entitled to decide which viewpoints to promote through its own library: School authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc., essentially as supplements to the school curriculum (over which the school has broad authority). The process of selecting library books is part of the government's own judgment about what views it wishes to promote. And the ability to reconsider selection decisions—including in response to pressure from the public, which is to say from the ultimate governors of the public schools—should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they're not unconstitutional.
But this doesn't necessarily resolve the question of how librarians should administer non-school public libraries, which aren't the adjunct to any sort of school curriculum. Libraries are much more about giving more options to readers, rather than about teaching particular skills and attitudes to students. The case for viewpoint neutrality is therefore stronger there—though not, I think, open and shut. (Note also that even the challengers in this case leave open the possibility that courts shouldn't scrutinize book acquisition decisions to decide whether they are viewpoint-based, but only book removal decisions. See Appellees' En Banc Brief at 43-44 & n.13, 50.)
In any case, that's the big picture; here, I want to talk about a particular twist in the dispute, which can be particularly well seen in a friend-of-the-court brief filed by the Freedom to Read Foundation, the Texas Library Association, and American Library Association. The passage, and the sources it cites, refer to the necessity to remove books on some criteria—this is called "weeding," and some sources suggest that each year a public library would generally weed out 5% of its stock—and discuss which criteria are proper:
Today in Supreme Court History: September 19, 1907
9/19/1907: Justice Lewis Powell's birthday.
Blocking Dissenters from School System's "StaffPride" Twitter Account May Have Violated First Amendment
From yesterday's opinion by Judge Paula Xinis (D. Md.) in Foldi v. Bd. of Ed. for Montgomery County:
Foldi and Mandel live in Montgomery County, Maryland. Foldi writes for a news magazine, The Spectator, and Mandel is a columnist for several national publications and has written extensively on education and parental rights. Id. In October 2022, the School Board announced the introduction of LGBTQIA+-themed books into the MCPS [Montgomery County Public Schools] curriculum. In response, several parents sought permission from MCPS for their children to "opt out" of any classroom instruction involving these books.
At first, it appeared that MCPS would permit this opt-out alternative. On March 22, 2023, MCPS confirmed that parents could choose to have their children read other material in lieu of the LGBTQIA+ books. But the next day, the School Board reversed course and informed parents that no such opt-out alternative would be available, nor would MCPS notify parents when classroom instruction would involve LGBTQIA+-themed materials….
The question of LGBTQIA+-inclusive reading materials became a hot button issue for MCPS. At a March 2023 School Board meeting for example, one parent vocally opposed the Board's refusal to provide an opt-out alternative to parents on behalf of their children. In response, Board Member Harris challenged the protestor, publicly announcing that the parent's position "is just telling that kid, 'here's another reason to hate another person.'"
Over the next few months, the debate over the propriety of the opt-out alternative intensified, and in advance of a June 6, 2023, School Board meeting, "scores of parents and community members" gathered in peaceful protest outside of the MCPS Carver Educational Services Center ("Carver Center"), where the meeting was being held. Also at the June 6th meeting, a female Muslim student attested to her discomfort with being made to read LGBTQIA+ books that ran contrary to her religious beliefs, to which Board Member Harris said she "felt kind of sorry" for the student, and opined about whether the student was "parroting [the] dogma" of her parents.
Standards of Appellate Review, Pseudonymous Litigation, and the Need for the Supreme Court to Step in
As I mentioned earlier this week, I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ., which deals with when parties can litigate as John or Jane Does. This closing Part explains why the Supreme Court's review is especially important in light of how appellate courts review district court decisions in this area.
[III.] If this Court does not act, inconsistent pseudonymity determinations will continue
The inconsistency among district court decisions is unlikely to be solved by the circuit courts, particularly because the circuits review the trial court's conclusion only for abuse of discretion. See, e.g., MIT, 46 F.4th at 66 (1st Cir); Pilcher, 950 F.3d at 41-42 (2d Cir.); Megless, 654 F.3d at 407 (3d Cir.); Doe v. Sidar, 93 F.4th 241, 247-48 (4th Cir. 2024); Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001); D.E. v. John Doe, 834 F.3d 723, 728 (6th Cir. 2016); Pet. 8a, 10a (7th Cir.); Cajune v. Indep. Sch. Dist. 194, 105 F.4th 1070, 1078 (8th Cir. 2024); Doe v. Kamehameha Sch., 596 F.3d 1036, 1046 (9th Cir. 2010); M.M. v. Zavaras, 139 F.3d 798, 804 (10th Cir. 1998); Frank, 951 F.2d at 323 (11th Cir.); In re Sealed Case, 931 F.3d at 96 (D.C. Cir.).
Because of the lack of de novo review in such cases, there is little opportunity for the "evolutionary process of common-law adjudication" that "give[s] meaning" to legal rules, Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 502 (1984). Instead of marking out two zones—where pseudonymity should be granted and when it should be denied—an abuse of discretion standard leads the Courts of Appeals to mark out three areas: (1) pseudonymity requests that any reasonable judge would grant; (2) pseudonymity requests that any reasonable judge would deny; and (3) pseudonymity requests on which reasonable judges could disagree.
Court Upholds Ban on Knowing Falsehoods About Voting Mechanics and Voter Eligibility Aimed at Preventing Voting
Minnesota Voters Alliance v. Ellison, decided yesterday by Judge Nancy Brasel (D. Minn.), upheld this new Minnesota statute:
(a) No person may, within 60 days of an election, cause information to be transmitted by any means that the person:
- intends to impede or prevent another person from exercising the right to vote; and
- knows to be materially false.
(b) The prohibition in this subdivision includes but is not limited to information regarding the time, place, or manner of holding an election; the qualifications for or restrictions on voter eligibility at an election; and threats to physical safety associated with casting a ballot.
An excerpt of the analysis:
Today in Supreme Court History: September 18, 1857
9/18/1857: Justice John Hessin Clarke's birthday.
Tuesday Media Recommendations: Science Fiction and Fantasy Books
Post your recommendations in the comments; other weeks, there'll be other posts for other genres and other formats.
Snowflake Justice Court
No, not a dispute resolution center for campus microaggressions. It's actually an Arizona trial court for dealing with misdemeanors, unlawful detainer lawsuits, protection orders, and small claims in the town of Snowflake (population 6,500).
Pharmacy Student's First Amendment Lawsuit Based on (Reversed) Expulsion for Twitter Sex Talk Can Proceed
From today's opinion in Diei v. Boyd, written by Judge Chad Readler and joined by Judges Joan Larsen and Stephanie Davis:
Kimberly Diei enrolled at the University of Tennessee Health Science Center College of Pharmacy to pursue a doctorate in pharmacy. At the time, Diei maintained social media accounts under the pseudonym "KimmyKasi," where she posted about song lyrics, fashion, and sexuality. According to Diei, her social media posts neither identified her "as a College of Pharmacy student" nor "indicated any affiliation with the University of Tennessee." Those accounts would nevertheless put Diei at the center of a school investigation.
Just a month into her studies, Diei was informed by Christa George, Chair of the College's Professional Conduct Committee, that the Committee had received an anonymous complaint regarding Diei's social media activity. George explained that the Committee would review the posts to decide whether they violated the "Standards for Student Professionalism Conduct," requirements Diei asserts she was never provided. Following an investigation, the Committee unanimously held that Diei's postings were "sexual," "crude," and "vulgar" in nature, and thereby violated the College's professionalism standards. The Committee, however, did not vote to expel Diei.
The following school year, George notified Diei that the Committee had received a second complaint similar to the first. After a hearing, the Committee informed Diei that the content of the newly complained-of posts also violated the College's professionalism standards. The Committee deemed Diei's social media activity "a serious breach of the norms and expectations of the profession[]," and concluded that Diei did not "meet the threshold of professional behavior or the requirements of the Technical Standards for students." Accordingly, the Committee voted unanimously to dismiss Diei from the College. Diei appealed that decision to the school's Dean. Roughly three weeks later, the Dean reversed the Committee's decision.
Diei sued, claiming the original decision violated the First Amendment, and the Sixth Circuit held that her case could go forward:
Firearms Law Textbook 2024 Supplement Now Available
For free -- 566 pages
I'm pleased to announce the publication of the 2024 Annual Supplement for the textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The supplement is available here as a PDF.
The base textbook was published in October 2021, and is coauthored by Nicholas J. Johnson (Fordham), George A. Mocsary (Wyoming), E. Gregory Wallace (Campbell), Donald Kilmer (Lincoln), and me. The book's public website is here, and the Aspen Publishers page for the book is here. The 2024 Supplement is a guide to Bruen and the significant post-Bruen litigation.
While the 2024 Supplement discusses a large variety of cases, including state court cases involving state constitutional law, here are some of the major items:
- A long excerpt of Bruen, with many Notes and Questions, which point readers to leading pro/con scholarship about the case.
- A long excerpt of Rahimi.
- Updates on the latest social science and data.
- A long excerpt of Cargill v. Garland, on bump stocks, as well as updates on everything else about the National Firearms Act.
- A detailed essay by George Mason Prof. Robert Leider explaining the complexities of the major 2022 federal gun control statute.
- Analysis by attorney Johanna Reeves of ATF's "Frame or Receiver Rule."
- Cases summaries and excerpts on all the major issues being litigated under the Bruen framework, including prohibited persons, right to carry, bans on types of arms, and many other types of restrictions.
- And lots more!
But wait, that's not all. The base textbook is available in print, and (from the publisher's website for students and faculty) as an e-book. There are also seven free supplemental chapters available online, from the book's public website. These cover: Firearms Policy and Status; International Law; Comparative Law; In-Depth Explanation of Firearms and Ammunition; Antecedents of the Second Amendment; Arms Rights, Arms Duties, and Arms Control in the United Kingdom; and The Evolution of Firearms Technology from the Sixteenth Century to the Twenty-First Century.
Among the things you will find in the online chapters are 25 pages of in-depth research on the role of gun control and armed resistance in the Turkish genocide of Armenians and other Christians in the early twentieth century, a hundred pages about gun control and armed resistance in Communist China and Tibet; ancient Greek, Roman, and Chinese law and philosophy about arms; United Nations gun control; modern law about arms on Native American reservations; and many other topics.
We hope that in the 2024 Supplement and in the online chapters, students writing Notes and professors writing Articles may find interesting issues for further exploration. We also hope that judges, clerks, and litigators will find the 2024 Supplement to be a helpful guide to the post-Bruen legal environment, and that the two online chapters about firearms mechanics (how modern firearms operate; and the history of firearms development) may also be useful.
Alliance for Hippocratic Medicine on Remand—Still Struggling with Standing
No, the U.S. Court of Appeals for the Fifth Circuit's initial standing rulings were not faithful applications of Supreme Court precedent.
Yesterday, on remand from the Supreme Court, the U.S. Court of Appeals for the Fifth Circuit remanded Alliance for Hippocratic Medicine v. FDA (the mifepristone case) to the district court. As readers likely recall, a unanimous Supreme Court concluded that AHM lacked standing to sue the FDA for loosening the rules governing mifepristone. Indeed, it was not a particularly close call.
As Josh Blackman notes in a post below, Judge James Ho wrote a separate concurrence defending the panel's initial decision as a faithful application of applicable Supreme Court precedent that relied upon the federal government's prior representations about whether federal conscience laws protect doctors from having to perform abortions where doing so would violate their consciences. I accept that the Solicitor General offered the Court a more robust reading of federal conscience protections than may have been provided in other cases, and that this argument provided the Court with a basis for concluding that the plaintiffs lacked standing, but this concession by the SG was not necessary to resolve the case.
I reject Judge Ho's claim that the Fifth Circuit (and district court) "applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit." For reasons I explained in multiple posts (see listing below), even if one assumes that federal laws would not have protected members of AHM from having to perform abortions in emergency settings, AHM still failed to satisfy the requirements of Article III standing under existing doctrine.
As the Supreme Court explained in its AHM decision, in order to establish standing the plaintiff doctors would have to establish that the FDA's loosening of restrictions on mifepristone was "likely" to "cause them to provide medical treatment against their consciences." Even without the protection of federal conscience laws, this was a showing none of the plaintiffs could make, and this was doubly so once the case was limited to the FDA's loosening of the restrictions on mifepristone, and no longer encompassed the decision to approve mifepristone for sale in the first place. So narrowed, it was entirely speculative that any member of AHM would ever even witness an emergency room visit occasioned by the FDA's less stringent regulation of mifepristone, let alone that one would have been threatened with having to violate his or her conscience.
Judges' Boycott of Columbia in Clerk Hiring Is Permissible Under Judicial Ethics Rules (II)
From an order by Eleventh Circuit Judge William Pryor, affirmed by the Eleventh Circuit Judicial Council Aug. 12 but apparently just recently made public (see also this similar Fifth Circuit decision):
The Complaint stems from a letter from multiple federal judges, including the Subject Judges, addressed to the president of a university and copied to the dean of the university's law school. The letter … states:
Since the October 7 terrorist attacks by Hamas, [] University has become ground zero for the explosion of student disruptions, anti-semitism, and hatred for diverse viewpoints on campuses across the Nation. Disruptors have threatened violence, committed assaults, and destroyed property. As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in [the university] as an institution of higher education. [The university] has instead become an incubator of bigotry. As a result, [the university] has disqualified itself from educating the future leaders of our country.
The letter sets out the following three steps the university would take if it was "serious about reclaiming its once-distinguished reputation": (1) "Serious consequences for students and faculty who have participated in campus disruptions and violated established rules concerning the use of university facilities and public spaces and threats against fellow members of the university community"; (2) "Neutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct"; and (3) "Viewpoint diversity on the faculty and across the administration—including the admissions office."
In discussing item 1, the letter states that universities should identify students who violate established rules or threaten others, and that, "If not, employers are forced to assume the risk that anyone they hire from [the university] may be one of these disruptive and hateful students."
Lower Court Decisions on Pseudonymity Are Chaotically Split
I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ. This Part explains how badly split lower court decisions are. (Recall that one of the main reasons the Court steps in to resolve lower court cases is to resolve inconsistencies that would lead to different results in similar cases throughout the country.)
[A.] This Court has not given lower courts guidance
This Court has never decided when pseudonymity should be allowed. When parties have requested this Court's permission to file a writ of certiorari pseudonymously, this Court has granted or denied that request without explanation. See, e.g., Doe v. Mich. Att'y Grievance Comm'n, 519 U.S. 946 (1996) (denying); Foe v. Cuomo, 498 U.S. 892 (1990) (granting). This Court has sometimes reviewed pseudonymous cases (Roe v. Wade is a famous example), but in doing so it has never discussed in any detail when pseudonymity should be allowed.
This Court has recognized the common-law public right of access to judicial records, Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-99 (1978), and the First Amendment right to attend criminal trials, Richmond Newspapers, 448 U.S. at 580. But while those rights are connected to the public's right to know the names of parties in civil cases, see supra Part I.A, this Court's precedents do not set forth any meaningful guidance on when the interests favoring pseudonymity can overcome that right.
Nor do the Federal Rules of Civil Procedure give much guidance (except by mandating pseudonymity for minors, Rule 5.2(a)(3)). Many courts have inferred a presumption against pseudonymity from Rule 10(a) ("The title of the complaint must name all the parties") and Rule 17(a) ("An action must be prosecuted in the name of the real party in interest"). See, e.g., Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992). But the Rules say nothing about when pseudonymity is nonetheless permissible. The lower court cases allowing pseudonymity in some situations have thus proceeded without either this Court's or the Rules' guidance.
[B.] The circuits are split into three groups on pseudonymity
The petition accurately summarizes the circuit split:
- The Seventh Circuit allows pseudonymity in narrow circumstances, seemingly limited to situations where the litigant "is a minor, is at risk of physical harm, or faces improper retaliation (that is, private responses unjustified by the facts as determined in court)." Pet. 10a.
- Ten circuits apply different non-exhaustive, multifactor tests. See, e.g., United States v. Pilcher, 950 F.3d 39, 42 (2d Cir. 2020) (ten factors); Femedeer, 227 F.3d at 1246 (10th Cir.) (four factors).
- The First Circuit rejects both a multifactor test and "sharp, categorial exceptions to the strong presumption against pseudonymity," and instead identifies "four general categories of exceptional cases in which party anonymity ordinarily will be warranted." Doe v. Mass. Inst. of Tech., 46 F.4th 61, 70-72 (1st Cir. 2022).
But beyond this formally visible circuit split, lower courts that adopt various multifactor tests disagree on how to interpret each factor, generally without acknowledging the disagreement.
[1.] Consider, for instance, a recurring question: Does risk of reputational, economic, or professional harm suffice to let a litigant proceed pseudonymously? Most courts generally say no: "That a plaintiff may suffer embarrassment or economic harm is not enough." Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011); Volokh, supra, at 1420-23, 1457-60 (citing many cases that take this view).
Hall-of-Famer Brett Favre's Defamation Lawsuit Against Hall-of-Famer Shannon Sharpe Thrown Out
From yesterday's Fifth Circuit decision in Favre v. Sharpe, by Judge Leslie Southwick, joined by Judge Kyle Duncan and Judge Jeremy Kernodle (E.D. Tex.):
Brett Favre … was named three times as the NFL's Most Valuable Player, had a Super Bowl victory, and was selected for the NFL Hall of Fame. Much more recently, his public image has been somewhat tarnished by his connection to individuals who were convicted for the misuse of government welfare funds and his alleged receipt of some of those funds….
In October 2021, the Mississippi State Auditor's Office determined more than $77 million in federal Temporary Assistance for Needy Families ("TANF") funds intended to help impoverished Mississippians were used for illegal purposes across the state. To date, six individuals have pled guilty to state and federal felony charges related to their involvement in this scandal. Favre has not been criminally charged. Mississippi's Department of Human Services ("MDHS") filed a civil suit in May 2022 against Favre and numerous persons, seeking to recover TANF funds that were unlawfully diverted between 2016 and 2019.
Today in Supreme Court History: September 17, 1787
9/17/1787: The Constitution is signed.
Happy Constitution Day!
Alliance for Hippocratic Medicine On Remand
"But the Government switched positions before the Supreme Court."
Last week I wrote about the Fifth Circuit's decision in United States v. Rahimi, on remand from the Supreme Court. The panel explained that the Supreme Court "modified" Bruen. Though the Supreme Court reversed the Fifth Circuit, in candor, the Fifth Circuit should not be faulted for faithfully applying the precedent that existed at the time.
Yesterday, the Fifth Circuit decided another case on remand from the Supreme Court: Alliance for Hippocratic Medicine v. FDA. The panel remanded the case back to the district court. I know this is another case that is scored as a reversal for the Fifth Circuit. But here the Solicitor General altered the government's position, so the Supreme Court resolved a different dispute than the one faced by the Fifth Circuit. Specifically, SG Prelogar made very specific representations in AHM, as well as in Moyle, that federal conscience law would protect doctors. And with those concessions, the Court unanimously reversed. I wrote about Prelogar's switch in time that saved nine here.
Judge Ho wrote a concurrence which explained, in some detail, how the case changed on appeal.
First, Ho explained that the Fifth Circuit faithfully applied Supreme Court precedent to the case, as it existed at the time:
That's exactly what happened here. Both the district court and this court applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit. We all agreed that they do. No member of this court disagreed—not on the motions panel, the merits panel, or the en banc court.
Second, Ho demonstrates that the Court's decision was premised on the Solicitor General's flipped position:
The Court reversed, but only because, "as the Government explains, federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences." Id. (emphasis added). There's a simple reason why our court—unlike the Supreme Court— was uncomfortable trusting federal conscience laws to protect doctors: The Government has taken precisely the opposite position on federal conscience laws in other cases and in other courts—including ours.
In the Fifth Circuit, and other courts, the government vigorously argued that conscience laws would not exempt doctors from offering abortion care:
In our court, the Government insisted that federal law "requires doctors to offer abortion care to individuals when that care is necessary stabilizing treatment for an emergency medical condition." Brief for Appellants, Texas v. Becerra, 2023 WL 3345254, *25 (5th Cir. 2023) (emphasis added). "When pregnant women come to a Medicare-funded hospital with an emergency medical condition, EMTALA obligates the treating physician to provide stabilizing treatment, including abortion care." Id. at *27 (emphasis added). "[P]ermitting physicians to refuse to provide care that they deemed 'medically or ethically inappropriate' directly conflicted with EMTALA's stabilization requirement." Id. at *26 (citing In re Baby K, 16 F.3d 590, 597 (4th Cir. 1994)).
But before the Supreme Court, SG Prelogar did a 180.
But the Government switched positions before the Supreme Court. It "disclaimed that reading of EMTALA." Alliance, 602 U.S. at 389 (emphasis added). It now believes that "EMTALA does not 'override an individual's doctor's conscience objections.'" Id. (emphasis added). It now agrees that "'[h]ospitals must accommodate doctors'" who have "conscience objections." Id. Moreover, a representation by the Solicitor General to the Supreme Court carries greater weight than a statement by Government counsel before the inferior courts.
You cannot fault a lower court for relying on the argument the government presented. The Fifth Circuit cannot anticipate how the Biden Administration would try to salvage the case before the Supreme Court. All of these lists of reversal rates truly fail to consider how the Fifth Circuit is treated on appeal.
Third, Judge Ho explains that the government also reversed its position in Moyle (which I discussed here):
So the Court reversed because the Government reversed.[FN1]
[FN1] The Government also reversed itself in Moyle v. United States, 603 U.S. _ (2024). In the district court, the Government insisted that EMTALA "requires a physician to offer an abortion." Reply Memorandum in Support of Motion for a Preliminary Injunction at 6, United States v. Idaho, 623 F. Supp. 3d 1096 (D. Idaho 2022) (No: 1:22-cv-00329). But the Government again switched positions before the Supreme Court. See Brief for the Respondent, Moyle v. United States, 2024 WL 1298046, *17 (2024) ("EMTALA's stabilization obligation is imposed on 'hospitals,' not on 'individual providers'") (quotations omitted).
Fourth, there is another ground to criticize the majority opinion. The Court failed to consider one theory of standing on which Judge Ho relied: aesthetic injury standing.
Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.
This argument truly made people lose their minds. But it was an argument in favor of jurisdiction, and it was grounded in fairly well-established environmental law.
Judge Ho explains that the AHM Court favorably cited several decisions about aesthetic injury in the context of environment law, but ignored the aesthetic injury argument.
Second, the Court also reaffirmed its longstanding directive to inferior courts to address novel questions of standing by analogizing the Court's precedents in other areas of the law—including environmental law.
Before the Court dismisses a case for lack of jurisdiction, it has the responsibility to at least consider all the grounds for standing expressed below. And this argument was simply ignored by Justice Kavanaugh's majority opinion, and Justice Thomas as well.
***
I know it is en vogue to criticize Judge Ho–I've lost count of the number of "profiles" about him by the media. But Judge Ho is one of the few members of the federal judiciary who is willing to point out where the Supreme Court errs. It is true he is an inferior court judge, but inferiority does not demand subordination. Lower court judges can, and should, identify Supreme Court precedents that have been eroded by more recent decisions. Lower court judges can, and should, identify where the Supreme Court has quietly eroded its own decisions. And lower court judges can, and should, point out when the Supreme Court failed to consider all of the claims that were properly presented, including jurisdictional arguments. These three responsibilities are especially apt when the Supreme Court purports to reverse a lower court, which in fact faithfully applied precedent as it existed at the time.
We're still not quite done with remands. Let's see what the Fifth Circuit panel does on remand in NetChoice v. Paxton. The Supreme Court's "facial" analysis in that decision left much to be desired.
Final Published Version of My Article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson"
It is now available on SSRN. The article critiques the Supreme Court's decision in the Trump Section 3 disqualification case.
The final published version of my article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson" (Cato Supreme Court Review) is now up on SSRN, and available for downloading. Here is the abstract:
In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the majority ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy. And even the unanimity is undermined by four justices' rejection of key parts of the majority's reasoning.
Section 3 states that "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.
In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for "insurrection." Part III considers the question of whether the January 6 attack qualifies as an "insurrection," and—more briefly—whether Trump "engaged" in it. The answers to both questions are "yes," though the second is a closer call than the first. Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court's effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.
