Eugene Volokh's Blog, page 190

[Jonathan H. Adler] Supreme Court Grants Certiorari in Becerra v. Braidwood Management

Most Supreme Court watchers today were focused on the oral argument in the TikTok case, but that's not all that was going on at One First Street.

Today the Supreme Court granted certiorari in three cases: , , and . The first two of these are grants from the U.S. Court of Appeals for the Fifth Circuit, and the first may be particularly significant.

In Becerra v. Braidwood Management, the Court will consider yet another constitutional challenge to an element of the Affordable Care Act, in particular the manner in which the government identifies preventative treatments that must be covered by health insurers without cost to the insured. The specific question presented is:

Whether the U.S. Court of Appeals for the 5th Circuit erred in holding that the structure of the U.S. Preventive Services Task Force violates the Constitution's appointments clause and in declining to sever the statutory provision that it found to unduly insulate the task force from the Health & Human Services secretary's supervision.

Of note, the Court took no action the in this case, which had raised a different (but no less interesting) question presented:

Whether the Affordable Care Act violates the nondelegation doctrine by empowering agencies to unilaterally decree the preventive care that private health insurers must cover, while failing to provide an "intelligible principle" to guide the discretion of those agencies.

Once again, the Court appears to be showing that, however much it likes administrative law cases that raise separation of powers questions, it is not particularly eager to confront nondelegation arguments. On the other hand, the Court could simply be holding this question for resolution of the FCC universal service fee case, which also raises nondelegation issues.

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[Josh Blackman] Can New York Enter A Final Criminal Judgment Against Trump While The Federal Removal Action Is Still Pending?

Today Judge Merchan issued a sentence against President-Elect Trump, and presumably created a final appealable judgment. But could he?

President Trump has tried to remove this case to federal court under the federal officer removal statute. I wrote about the statute here, and Tillman and I explained why the case could not be removed here. The District Court denied Trump's motion to remove the case to federal court. But unlike with the usual federal question removal statute, where there is no appeal, the federal officer removal statute permits an appeal. This case is currently on appeal to the Second Circuit (Docket No. 24-2299). Judge Merchan noted as much in his decision:

As for the alleged misrepresentations by DANY in connection with the Removal proceedings, this Court is not aware of such misrepresentations. Thus far, Defendant's efforts to remove the case to federal jurisdiction have been rejected. What remains is Defendant's appeal of Judge Hellerstein's denial of his motion for leave to move for removal a second time.

Given this posture, could Judge Merchan issue a final judgment?

28 U.S.C. § 1455(b)(3) provides:

(3)The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.

It seems that a final judgment cannot be entered until the case is remanded back to state court.

As I understand things, the case has not yet been remanded back to the state court. Can a final judgment of conviction be issued before the case is remanded? I don't know. But this issue may warrant some further thought.

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[Josh Blackman] Can New York Enter A Final Criminal Judgement Against Trump While The Federal Removal Action Is Still Pending?

Today Judge Merchan issued a sentence against President-Elect Trump, and presumably created a final appealable judgment. But could he?

President Trump has tried to remove this case to federal court under the federal officer removal statute. I wrote about the statute here, and Tillman and I explained why the case could not be removed here. The District Court denied Trump's motion to remand the case to state court. But unlike with the usual federal question removal statute, where there is no appeal, the federal officer removal statute permits an appeal. This case is currently on appeal to the Second Circuit (Docket No. 24-2299). Judge Merchan noted as much in his decision:

As for the alleged misrepresentations by DANY in connection with the Removal proceedings, this Court is not aware of such misrepresentations. Thus far, Defendant's efforts to remove the case to federal jurisdiction have been rejected. What remains is Defendant's appeal of Judge Hellerstein's denial of his motion for leave to move for removal a second time.

Given this posture, could Judge Merchan issue a final judgment?

28 U.S.C. § 1455(b)(3) provides:

(3)The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.

It seems that a final judgment cannot be entered until the case is remanded back to state court.

As I understand things, the case has not yet been remanded back to the state court. Can a final judgment of conviction be issued before the case is remanded? I don't know. But this issue may warrant some further thought.

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Major Questions about the SEC and dirt sampling without a warrant.

Going in the other direction from most states, in 2023, Virginia legislators outlawed certain products containing THC that are actually legal under federal law per Congress's 2018 "hemp" reform. Does that reform, or the dormant Commerce Clause, nullify the new state legislation? Fourth Circuit: No standing for some aspects of the challenge but likely to lose on the rest anyway. No preliminary injunction. To receive certain assistance from the Small Business Administration one must be economically and socially disadvantaged. Members of certain racial groups have a "presumption" that they are socially disadvantaged. Disabled vet business owner is twice denied assistance. He sues on the grounds that he wouldn't have been but for his race. District court: A speedier litigant has already obtained an injunction in another circuit, so this case is moot. Fourth Circuit: But that case isn't final yet, so this case is not moot. Except it doesn't really matter because the complaint fails to allege standing. Allegation: Raleigh, N.C. high schooler runs for junior class VP. Three other Black students run for sophomore rep. Mysterious Twitter accounts then surface promoting the election but not mentioning these Black candidates. Plus, the Black candidates' campaign materials are defaced around the school. Once the ballot appears the Black candidates aren't on it. Because of this and various other fiascos the election is delayed and redone, but of the four Black candidates only the prospective VP runs again. The delay leads to cyberbullying of her, various rumors, and bomb threats. The student newspaper has a cartoon of a cockroach saying its kind is underrepresented. School officials don't do much to address all this. The VP candidate loses the election and continues to suffer harassment. District court: I don't see anything here to support your Title VI and equal protection claims and I won't let you amend your complaint either. Fourth Circuit: The claims are supported and she can amend her complaint. Virginia nurse says she can't take the COVID-19 vaccine based on her study of the Bible and personal direction from God. She asks her employer for a religious exemption. It's denied. She claims other employees received religious exemptions who had more "conventional beliefs." District court: Saying your body is a temple ain't enough. Fourth Circuit: If that's what you sincerely believe, then—at this stage of the case—it is. Undismissed. But who knows if she'll win on remand. The sole basis for a Baltimore man's murder conviction is the testimony of a 12-year-old—who later recants, saying that police threatened to take him away from his mother forever and refused to let him leave until he identified the man as the shooter. State court (1999): Nah, the recantation isn't believable. State court (2018): He's consistently recanted since becoming an adult. New trial. Without witnesses or evidence, the state frees the man after 31 years behind bars and gives him $3 mil. District court: But he can't sue the police for any misconduct thanks to that first state court decision. Fourth Circuit: Yes, he can, thanks to the second state court decision and because it would be unfair to prevent him from litigating these civil claims. Plus, here's the rare case where an intentional infliction of emotional distress claim can go forward. San Benito, Tex. officer opens closed gate, enters quinquagenarian man's fenced front yard, and arrests him. Fifth Circuit (2023): Could be false arrest. Even if there was probable cause to arrest him for something (the man had been making rude comments and gestures to neighbors), a warrant was needed to enter the curtilage. Fifth Circuit (2025): But a reasonable officer might not have known that. The prior case is about a fenced back yard without a gate. Qualified immunity. Clinton, Iowa man has a ruff day. First, he's pulled over for driving a car with overly tinted windows, then he's arrested when a drug dog alerts, and then his clothes and house are searched, revealing drugs and guns. Woof; he's sentenced to 17.5 years. Eighth Circuit: The stop was pawsitively fine. Police didn't prolong the stop for the dog sniff, the dog completed bone-a-fied certification programs, and the alert was sufficiently reliable. But remand for new sentencing given intervening caselaw. Eighth Circuit: A regulation that says you can't build a house without paying to connect to the city's water system doesn't deprive you of the ability to build a house. It just forces you to connect to the city's water system. Ninth Circuit: There are interesting questions about when the Seventh Amendment requires a jury trial, but one time it absolutely does not is when a defendant explicitly waives its right to a jury trial in writing, like you guys did in this case. Concurrence: Also, our circuit has gotten some of those interesting questions wrong, which we should fix when we get a chance. Oregon law prohibits unannounced recordings of oral conversations unless the recording is of a conversation during a felony that endangers human life or a conversation in which a law enforcement officer is a participant, if other conditions are met. Project Veritas—which has made a name for itself through hidden-camera recordings—challenges the law as a content-based restriction on speech. Ninth Circuit (2023): Quite right. Ninth Circuit (en banc, over a dissent): Quite wrong. In 2019, a Tulsa, Okla. activist digs up years-old memes posted on Facebook by newly hired Tulsa police officer. One, for instance, depicts Donald Trump riding a lion with a Confederate flag in the background. And when the police dept. starts receiving calls from upset citizens, it immediately fires the officer. He sues for First Amendment retaliation. Tenth Circuit: And his claim should go forward. You generally can't resolve these cases at the motion-to-dismiss stage.

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[Josh Blackman] President-Elect Trump's New White Paper on Conflicts of Interest

In January 2017, President-Elect Trump held a press conference and released a conflict of interest policy. In what feels like a lifetime ago, many people learned for the first time about the Emoluments Clause. The paper, produced by Morgan Lewis, offered this analysis:

From President Washington to Vice President Rockefeller to President-Elect Trump, many of this Nation's leaders have been extraordinarily successful businessmen. Neither the Constitution nor federal law prohibits the President or Vice President from owning or operating businesses independent of their official duties, as a careful textual and historical analysis shows. Generally speaking, federal conflict-of-interest laws prohibit "officers" or "employees" of the United States from taking positions against the country's interests, maintaining outside employment, receiving an outside salary for official duties, or taking official acts that affect their personal financial interests.2 But these laws have historically not applied to the President or Vice President. As then-Assistant Attorney General Antonin Scalia observed in an Office of Legal Counsel memorandum, the term "officer" typically includes neither the President nor Vice President.3 And since 1989, Congress has approved this tradition by expressly excluding the President and Vice President—along with Members of Congress and federal judges—from most conflict-of-interest laws.4 The Office of Government Ethics has recently re-affirmed that these conflict-of-interest laws do not apply to the President.5 Though Congress has long exempted the President and Vice President from federal conflict-of-interest laws, consistent with a tradition extending back to the Founding, many of these public servants have nevertheless sought to provide extra assurances that their undivided commitment is to the good of the country. For example, Presidents Johnson and Carter voluntarily stepped away from their broadcasting stations and peanut farms.6

1 Authored by: Sheri Dillon, Fred F. Fielding, Allyson N. Ho, Michael E. Kenneally, William F. Nelson, and Judd Stone.

2 See generally 18 U.S.C. §§ 203, 205, 207-09.

3 Memorandum from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, to Kenneth A. Lazarus, Associate Counsel to the President, Applicability of 3 C.F.R. Part 100 to the President and Vice President (Dec. 1974).

4 18 U.S.C. § 202(c) (stating that, unless otherwise provided, "officer" and "employee" do not include President or Vice President).

5 Letter from Walter M. Shaub, Jr., Director, Office of Government Ethics, to Senator Thomas R. Carper, at 2 (Dec. 12, 2016) ("[T]he primary criminal conflicts of interest statute, 18 U.S.C. § 208, is inapplicable to the President[.]").

6 See Megan J. Ballard, The Shortsightedness of Blind Trusts, 56 KAN. L. REV. 43, 54-56 (2007).

As I recall, Seth Barrett Tillman was the first person to raise the Scalia opinion in late December 2016. I've also subsequently researched the Johnson and Carter business interests; the facts are not so clear.

Today, amidst everything else going on, as evidence of the President Elect's "responsibilities," Trump has issued a new white paper. The analysis is a bit more in depth.

First, the memo repeats that federal statutory restrictions ought not to apply to the President:

While federal conflict-of-interest laws expressly prohibit "officers" or " employees" of the United States government from taking positions against the country's interests,² the terms "officer" and "employee" in these statutes expressly exclude the President of the United States (along with the Vice President, Members of Congress and Federal judges).³

This analysis also extends to officer-language in the Constitution.

Second, the memo offers the narrow definition of "emolument," citing the corpus linguistics analysis published by James Phillips and Sarah White in the South Texas Law Review:

Similarly, although the Emoluments Clauses prevent federal officers from accepting gifts or other "emolument" from foreign, federal or state governments or government officials,4 the Emoluments Clauses do not prohibit ordinary and customary private business transactions untethered to the President's official duties such as the payment of ordinary fees for a hotel room, or a round of golf at market prices, or a market fee for services or other business interests.5

5 See Morgan, Lewis, and Blockius LLP, White Paper: Conflicts ofInterest and the President (Jan 11, 2017); see also, e.g., Hoyt v. United States, 51 U.S. 109, 135 (1850) (describing an emolument as "every species of compensation or pecuniary profit derived from a discharge of the duties of the office"); see also James C. Phillips & Sara White, The Meaning of the Three Emoluments Clauses in the U.S. Constitution : A Corpus Linguistic Analysis ofAmerican English from 1760-1799, 59 S. Tex. L. Rev. 181 at 223-30 (2017); Barclay's A Complete and Universal English Dictionary on a New Plan (1774) (defining the term "emolument" to mean "profit arising from an office or employ") ; Oxford UniversityPress, Emolument, OED Online (Dec. 2016) (defining "emolument" as a "[p] rofit or gain arising from station, office, or employment; dues; reward, remuneration, salary") ; Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) ("We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion.") ; but see In re Trump, 958 F.3d at 286-287 ("Respondents assert that emoluments include ' all profits and other benefits [accepted from a foreign or domestic government] that [ the President] accepts through the businesses he owns.' Respondents point us to several Executive Branch and Comptroller General legal opinions that have arguably interpreted the term consistently with their definition, not the President's. And multiple amici have submitted briefs in this and the companion case, No. 18-2488, urging still different understandings of the term emolument. Finally, within the Executive Branch, officials have acknowledged there is considerable debate about this issue ." ) ( internal citations omitted).

Third, the memorandum looks to past practices of Presidents:

Indeed, there are multiple examples of former Presidents and other high ranking government officials who continued private business ventures while in office.6

6 Examples of former Presidents and government officials who have maintain businesses while in office include George Washington whose private business exported flour and cornmeal to foreign countries (Ten Facts about the Gristmill, George Washington's Mount Vernon, Fact 9, http://www.mountvernon.org/the-estate... (last visited September 29, 2017; National Register of Historic Places Registration Form, George Washington's Gristmill, 8, at 9 (2003), Thomas Jefferson who maintained his farm and nail factory and exported his tobacco crop to Great Britain (Letter from Thomas Jefferson to William A. Burwell (Nov. 22, 1808), in 11 The Works of Thomas Jefferson 75-76 (Paul Leicester Ford ed., 1905)) and, more recently, former Vice President Nelson Rockefeller who continued to hold stock during his term in office in Standard Oil (founded by his which did business worldwide, including, with foreign governments and former Secretary of Commerce Penny Pritzker who continued to retain considerable holding in her family's business, Hyatt Hotels.

There will be more Emoluments Clause litigation. The Lawfare will resume just where it left off.

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[Josh Blackman] Instant Analysis of the TikTok Oral Argument

A few moments ago, the Supreme Court wrapped oral argument in the TikTok case. It stretched nearly three hours, but could have easily been finished in one.

I do not think the Court can settle this matter one way or another in the next nine days. There are simply too many issues. Let me start with perhaps the most relevant question asked at the end: Justice Alito asked whether the Court could grant an administrative stay, that did not turn on the likelihood of success on the merits. That is precisely what I proposed last week. Solicitor General Prelogar groused, but would not say the Court lacked the power to issue such an administrative stay. And that's all Alito needed to hear.

A few members asked about President Trump's brief. I know that elites widely ridiculed it, but Sauer's submission was effective for precisely the reason I suggested: it gives the Court an out to not have to decide this case that could set a sweeping precedent. And that ties in directly with the purpose of the administrative stay.

On the merits, there are four votes clearly in support of the government. Chief Justice Roberts is squarely in support of the law. He asked many questions about the ability of China to inspect data on American devices. I told you this threat was on his mind in the year-end report. Justice Kavanaugh also asked several question along similar lines about national security. Justice Thomas did not see at all how TikTok has any speech interest here. And Justice Alito did now show any inclination that TikTok could prevail.

Justice Gorsuch was wearing his libertarian hat today, and was really worried about the precedent that could be set. He also asked a lot of factual questions, which suggests he would be uncomfortable allowing the law to go into effect. Justice Barrett seemed convinced there is some First Amendment interest at play, but couldn't settle on the appropriate standard of scrutiny. She kept saying "Let's assume I agree with you the First Amendment applies, what is the right test…" When ACB asks the lawyer to assume something, that means it is what she thinks. I think Barrett is finding the right way to rule against TikTok but isn't sure.

Justice Kagan seemed a bit fluid. I've written before that her primary goal is to influence Justice Barrett. At one point, Justice Kagan tried to suggest what Justice Barrett was thinking, then stopped herself, and told us what she is thinking. I think she forgot which role she was playing.

Justice Sotomayor seemed squarely in support of TikTok, but wasn't quite sure how to cobble together a majority. And Justice Jackson was a bit all over the place.

Anyway, bottom line, I think the Court issues some sort of administrative stay (really an administrative injunction). All of the professors who scoffed at my proposal and said it was not proper, or inconsistent with the All Writs Act, will have to respond accordingly. Then let's see what kind of deal Trump can work out. Maybe China can trade TikTok for the Panama Canal.

Update: Shortly after I published this post, I stepped into the FedSoc faculty forum. About the last 15 minutes of the video involves discussion of the TikTok case. I offered some comments from the microphone:

Update 2: Here is the colloquy between Justice Alito and SG Prelogar about an administrative stay:

JUSTICE ALITO: At one point Mr. Francisco suggested that what we might want to do and what he would regard as certainly preferable to a decision affirming on the merits was --is to issue an injunction pending, I guess, consideration of what we now regard as the --as the cert petition that was filed here.

What do you think of that suggestion?

GENERAL PRELOGAR: So I think this Court doesn't have any basis to enter a temporary injunction, unless it thinks Petitioners are likely to succeed on the merits of the First Amendment claim. And to be honest, you know, I --I would --I think that there is no argument to be made that you should find that likelihood of success. This is an act of Congress. This isn't some unilateral action by the executive branch, but it actually was action in parallel between the Executive and Congress where Congress took action to close up a loophole in some of our laws. The Executive had tried to force divestiture of TikTok under the Trump administration, but that had gotten tied up in litigation about those authorities. So Congress came in and provided additional authority based on a substantial record, including with respect to the data harm. And I don't see any basis for this Court to displace the deadline that Congress set without finding that actually there is a potential First Amendment problem here.

JUSTICE ALITO: Do --do you think we have the authority to issue an administrative stay as we have done in --in other cases or do you think that the January 20 deadline prohibits us from doing that?

GENERAL PRELOGAR: I don't think this Court has a formal basis to not issue an administrative stay, if it believed that that was necessary to assist in the Court's own consideration of the case. And I would obviously defer to the Court and whether it has a sufficient time to resolve the case, but we are here ready to submit the case today. And I think it is in the interest of Congress's work and our national security to resolve the case and allow the statute to take effect.

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[Eugene Volokh] "Free Speech and Private Power"

I have a short essay with this title in the Harvard Law Review Forum, responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter. Here's the Introduction; I'll likely also post excerpts from the piece in coming days.

What may and what should courts and legislatures do about private restrictions on speech? This has long been a critically significant and contested question, both before the Court and elsewhere. This Term's cases—Moody v. NetChoice, LLC, Murthy v. Missouri, and, to a lesser degree, Lindke v. Freed—all considered the issue, but left it mostly undecided.

Professors Evelyn Douek and Genevieve Lakier have written important recent works on this general question, and their Lochner.com? is yet another major contribution on their part. I'd like to elaborate on some of the broader points that they discuss, and then turn to what the cases they focus on (Moody, Murthy, and Lindke) practically mean for the free speech/private power question going forward.

My general theme is that the question has defied, and continues to defy, any simple generalization—perhaps unsurprisingly, given that private power over speech is both dangerous and valuable. Our legal system has not concluded either that all private entities should be constrained by free speech principles, or that all private entities should be free to restrain speech on their property (or by their employees or students) as they prefer. Perhaps this is a problem that is, to borrow the late Professor Fred Schauer's words from a different First Amendment context, "too hard" for a comprehensive rule. At least, if a rule is indeed possible, it has yet to be discovered.

The new cases add to this complexity, by largely acting cautiously and incrementally, perhaps because of the difficulty of the private power problem and not just because of the novelty of social media technology. I hope the analysis below helps us consider how private power questions might be considered in light of those cases. Where Douek and Lakier evaluate and critique the new precedents, I generally ask a complementary question: What might judges, lawyers, legislators, and academics do in the world those cases create?

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[Eugene Volokh] No Pseudonymity and Sealing in Wrongful Death Lawsuit Over Man's Apparent Suicide, Despite …

From Wednesday's decision by Manhattan trial judge Hasa Kingo in C.D. v. City of New York:

Petitioner C.D. ("Petitioner"), as administrator of the estate of C.L. ("Decedent") … requests permission to proceed under a pseudonym and to seal this proceeding, citing the sensitive nature of the circumstances and the potential for undue harm to Decedent's surviving children should these matters become public. {Notably, two of Decedent's surviving children are adults, and a third child is fourteen years old.} … [T]he court … denies the motion to proceed anonymously and under seal….

On November 8, 2024, C.L. experienced a mental health crisis and was transported by an EMS ambulance to Bellevue Hospital. He was admitted and passed away less than 24 hours later on November 9, 2024. The petition alleges that Respondents departed from accepted medical standards, resulting in C.L.'s death. Petitioner, Decedent's widow and proposed administrator of his estate, asserts claims of medical malpractice and wrongful death….

New York law strongly presumes that court proceedings should be open to the public, reflecting a fundamental principle of judicial transparency and accountability…. "Confidentiality is clearly the exception, not the rule, and the party seeking to seal court records has the burden to demonstrate compelling circumstances." This presumption ensures that the judicial process is conducted fairly and efficiently, while fostering public trust in the legal system.

Petitioner's request for anonymity and sealing is predicated on concerns about public embarrassment and potential harm to Decedent's surviving children. While the court is deeply sympathetic to the family's loss, such sympathy cannot supplant the rigorous legal standards required to justify sealing or anonymity….

[A] plaintiff seeking to proceed under a pseudonym must establish that their privacy interest outweighs the presumption of openness and that disclosure will result in specific, identifiable harm. Petitioner has not satisfied this burden.

The sensitive nature of the allegations, coupled with Decedent's professional status, does not constitute "compelling circumstances" under prevailing case law. Courts have consistently held that embarrassment, damage to reputation, or general privacy concerns are insufficient to warrant sealing court records. The claim that anonymity is necessary to shield the children from ridicule by classmates is speculative and unsubstantiated. Moreover, as potential deponents during the forthcoming litigation, Decedent's children are obligated to testify truthfully under oath, irrespective of whether the proceedings are sealed.

This case is distinguishable from actions involving allegations of sexual abuse or highly stigmatizing conduct, where courts have permitted anonymity to protect vulnerable parties. The allegations here—medical malpractice and wrongful death—do not carry the same societal stigma that would justify shielding Petitioner's identity and sealing the case file.

Furthermore, Petitioner's argument that anonymity will encourage candor from Decedent's children is unpersuasive. As noted, the obligation to testify truthfully under oath exists regardless of whether proceedings are public or private. Speculative claims about potential harm or embarrassment cannot override the public's right to access judicial proceedings.

Petitioner's subjective proposition—that Decedent's potential act of self-harm should be shielded and sealed to spare the sensitivities of his surviving children—rests on no discernible foundation within the framework of existing legal precedent. Rather, it reflects a normative judgment, rooted in personal sentiment, as to what a court ought to permit. Such a view, untethered to the rule of law, is inherently malleable, subject to fluctuation depending on the identities, circumstances, or sensibilities of the parties before the court.

This is precisely why the judiciary eschews reliance on subjective, individualized assessments. Justice demands constancy—an unyielding adherence to enduring legal standards that transcend the particularities of the litigants and the caprices of public opinion. To allow otherwise would risk eroding the very bedrock of equality under the law, substituting impartial adjudication with the uncertainty of personal attitudes. It is this steadfast commitment to impartiality that ensures justice is not only done but is seen to be done, without regard to the divergent positions or stations of those who seek it. To be sure, "[t]he ladder of law has no top and no bottom" (Bob Dylan, "The Lonesome Death of Hattie Carroll").

The judiciary has long resisted such subjective evaluations precisely to uphold the principle of enduring and impartial standards. Courts are not arbiters of individualized sensibilities but are instead tasked with ensuring that justice is administered evenly and consistently, irrespective of the differing opinions, social positions, or emotional responses of those appearing before them. This commitment to equality under the law is the cornerstone of a fair and impartial judicial system. This is precisely why the speculative reactions of Decedent's surviving children can neither compel nor permit this court to disregard the foundational principle of openness in judicial proceedings, save for the rarest of circumstances.

In sum, while the court acknowledges the difficult circumstances faced by Decedent's family, these considerations do not meet the exacting standard for granting anonymity and sealing. Openness in judicial proceedings remains a cornerstone of our legal system, ensuring accountability and fostering public confidence in the judiciary….

I think this case fits well with the American legal norm of pseudonymity. At the same time, even here the cases are divided. See, for example, C.R.M. v. United States (E.D. Va. Apr. 13, 2020), which allowed pseudonymity based on the deaths of plaintiff's three prematurely born children, and miscarriage of two fetuses at nineteen weeks of pregnancy. I wrote about that,

Anyone would sympathize with the plaintiff's desire "'to preserve privacy in a matter of sensitive and highly personal nature'—a soul shattering family tragedy," see [the Apr. 10, 2020 Motion in that case]. But it is hard to meaningfully distinguish this plaintiff from almost any wrongful death plaintiff, since all such cases stem from family tragedies that can be "soul shattering" in their own ways; yet wrongful death litigation routinely happens under the plaintiff's real name, and it seems unlikely that the decision in C.R.M. would be applied evenhandedly to other such cases.

Philip Lamson Sutter and Natalie Socorro represent the hospital defendants.

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[Josh Blackman] The Court Splits 5-4 on Docket Number 666

Trump's emergency application to stay his sentencing has the docket number . Sometimes, the truth is stranger than fiction.

The Court denied the application by a 5-4 vote. Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application. Based on the math, we know that Chief Justice Roberts and Justice Barrett voted to deny the application. In the past, I've described the current composition as a 3-3-3 Court on the shadow docket. But for the emergency docket, I think we now have a 5-4 court. I think Justice Kavanaugh has shifted a bit. This same-split arose in the razor wire case last year. Justice Barrett is opposed to granting emergency relief (unless the case comes from the Fifth Circuit), while Justice Kavanaugh recognizes the importance of emergency relief. Going forward, I think Roberts and Barrett will consistently vote against Trump on the emergency docket, even if they might rule for Trump on the merits docket.

To the majority's credit, there is a brief explanation why the stay was denied. Two reason are offered.

Application (24A666) for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons. First, the alleged evidentiary violations at President-Elect Trump's state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect's responsibilities is relatively insubstantial in light of the trial court's stated intent to impose a sentence of "unconditional discharge" after a brief virtual hearing. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.

I think Barrett, the former evidence and federal courts professor, wrote the first point. It is short, to the point, and says all the things that Barrett thinks. Indeed, in Trump v. United States, Justice Barrett disagreed with the majority's ruling that the court could not admit "immune" actions as evidence in the trial. She would have allowed the admission of that evidence.  Barrett seemed to think the trial court could weight the admissibility issues. Also, Barrett opposed the doctrine of immunity (which allows for interlocutory review), and instead said that immunity could be raised as a defense, and then be "addressed in the ordinary course on appeal." This sentence is ACB in a nutshell.

The second point is John Roberts at his core. He asks, what are the burdens? Trump has to sit through a "brief virtual hearing." He doesn't even have to pay attention! Judge Merchan will impose a sentence without any actual punishment. And what is the effect of those burdens? A "relatively insubstantial" impact on "the President-Elect's responsibilities." What are those responsibilities? And "relative" to what? Has there ever any experience in the history of the republic that is even remotely comparable?  Roberts does not answer any of these questions. On the other side of the ledger, what are the benefits of allowing the sentencing to go forward? Roberts does not say. Nothing about the importance of finality, or letting justice be done, or anything like that. And that's the tell. Roberts sees no actual benefit to having Trump sentenced to no time. There is not a real balancing test because Roberts doesn't really balance the burdens against anything. He only says the burdens are not that bad, so suck it up. This is just make-weight to deny the application.

I know the Court felt compared to rush out some stuff about why the application was being denied. Critics demand an explanation on the "shadow" docket. But this explanation was quite unsatisfactory. I would have preferred a one sentence dismissal rather than trying to parse what are the "President-Elect's responsibilities" under the Constitution.

The post The Court Splits 5-4 on Docket Number 666 appeared first on Reason.com.

[Josh Blackman] More on the Phone Call Between Trump and Alito

On Wednesday, I wrote about the ABC News Story on Trump's phone call with Justice Alito. On Thursday, the New York Times offered a far more in-depth, and frankly confounding story. No, not confounding for the reasons you might think. I was confounded that multiple people in Trump's orbit are leaking information to the New York Times to sabotage an Alito clerk from a position in the administration, and in the process creating problems for the Justice.

The story begins:

Justice Samuel A. Alito Jr. received a call on his cellphone Tuesday. It was President-elect Donald J. Trump, calling from Florida. . . .

Justice Alito said in a statement on Wednesday that the pending filing never came up in his conversation with Mr. Trump and that he was not aware, at the time of the call, that the Trump team planned to file it. People familiar with the call confirmed his account. . . .

The circumstances were extraordinary for another reason: Justice Alito was being drawn into a highly personalized effort by some Trump aides to blackball Republicans deemed insufficiently loyal to Mr. Trump from entering the administration, according to six people with knowledge of the situation, who spoke on the condition of anonymity to describe private conversations.

I had to read that last sentence three times to figure out what was going on. (I am a fast writer but a slow reader.) Six people (six!) in Trump's orbit spoke to the New York Times (of all publications!) about an effort to block an Alito clerk from obtaining a high-level appointment. Six is a stunning number. Articles usually cite "several" unnamed sources, but I can't recall seeing a specific number, especially one that was so high. But in the process of talking to New York Times about this internal squabble, these conservatives dragged poor Justice Alito into the maelstrom. Why? Why? Why?

The article continues to describe the situation of William Levi, who clerked for Justice Alito and has a sterling resume:

The phone call centered on William Levi, a former law clerk of Justice Alito's who seemingly has impeccable conservative legal credentials. But in the eyes of the Trump team, Mr. Levi has a black mark against his name. In the first Trump administration, he served as the chief of staff to Attorney General William P. Barr, who is now viewed as a "traitor" by Mr. Trump for refusing to go along with his efforts to overturn his loss in the 2020 election.

Mr. Levi has been under consideration for several jobs in the new administration, including Pentagon general counsel. He has also been working for the Trump transition on issues related to the Justice Department. But his bid for a permanent position has been stymied by Mr. Trump's advisers who are vetting personnel for loyalty, according to three of the people with knowledge of the situation.

Again, the sourcing here is very precise. Six people spoke about the "totally perfect" phone call. And three of those six were aware of Levi's employment situation.

As Mr. Trump puts together his second administration, Mr. Barr is among a handful of prominent Republicans who are viewed with such suspicion that others associated with them are presumptively not to be given jobs in the administration, according to people familiar with the dynamic. Republicans in that category include Mr. Trump's former secretary of state Mike Pompeo and his former U.N. ambassador Nikki Haley. To be called a "Pompeo guy" or a "Haley person" is considered a kiss of death in Mr. Trump's inner circle. Resistance to such people can usually be overcome only if Mr. Trump himself signs off on their hiring.

This last part is important. The reason why President Trump, and not a subordinate had to make the call, is that Trump himself had to personally sign off on the hiring. The ethical guidelines provide that "there would be no impropriety in a judge answering an inquiry from a screening committee or appointing authority with respect to the judge's knowledge concerning the qualifications and other relevant factors of a nominee for appointment to any public office." Trump was the "appointing authority" so Justice Alito was allowed to receive the call from him. If Trump was not the final decision maker, I'm not sure that he could have made the call.

People on Team Trump said that Alito requested the call. But Alito said Levi facilitated the call:

Tuesday's phone call took place against that backdrop. Several people close to the Trump transition team on Thursday said their understanding was that Justice Alito had requested the call. But a statement from Justice Alito framed the matter as the justice passively agreeing to take a call at the behest of his former clerk.

The disconnect appeared to stem from Mr. Levi's role in laying the groundwork for the call in both directions. It was not clear whether someone on the transition team had suggested he propose the call.

This path seems probable. Levi told his former boss about what was going on. Alito said he would be willing to talk to Trump. But Alito did not reach out to Trump. Instead, Levi suggested to Trump that Alito was open to a call from him. And Trump called Alito. This part the sources think "was not clear."

The story continues:

During the call, according to multiple people briefed on it, Mr. Trump initially seemed confused about why he was talking to Justice Alito, seemingly thinking that he was returning Justice Alito's call. The justice, two of the people said, told the president-elect that he understood that Mr. Trump wanted to talk about Mr. Levi, and Mr. Trump then got on track and the two discussed him.

Trump, apparently, was a bit confused about what was going on. Maybe he was affected by the "relatively insubstantial" burdens imposed by Judge Merchan on what Chief Justice Roberts and Justice Barrett referred to as "the President-Elect's responsibilities." Yes, Trump has a lot legal proceedings this week, on top of President Carter's funeral and changing the Gulf of Mexico to the Gulf of America. I think we can cut him just a bit of slack if he was confused.

Nothing about this story makes sense to me.

The post More on the Phone Call Between Trump and Alito appeared first on Reason.com.