Eugene Volokh's Blog, page 207

[Eugene Volokh] Pro-Israel Jewish Students Suing Haverford College for Hostile Environment Harassment Can Proceed Pseudonymously

From today's decision by Judge Gerald Austin McHugh (E.D. Pa.) in Landau v. Haverford College:

On May 13, 2024, Plaintiff "Jews at Haverford," which purports to be an association of individuals associated with Haverford College, initiated this Title VI action against Defendant Haverford College. An amended complaint followed, adding Haverford Alumni Ally Landau and current students "HJSB" and "HJSC" as individual plaintiffs to the lawsuit. Plaintiffs generally contend that Haverford College both enables and perpetuates a hostile educational environment for its Jewish students and faculty who support the state of Israel, in violation of Title VI and assorted contractual promises between the school and its students.

Plaintiffs HJSB and HJSC now move to proceed under pseudonym in this case. Haverford, to its credit, does not oppose the Plaintiffs' request to proceed under pseudonym in all public-facing filings.

But Haverford's consent does not end the inquiry, because open courts are a cornerstone of the U.S. judiciary. Since pseudonyms interfere with the public's right to access judicial proceedings, such motions must only be granted in exceptional circumstances….

The court concluded that this case involves such an exceptional circumstance, but not just because of fear of "purely social and reputational harms":

Plaintiffs first allege that if they were to reveal their identities, they would be subject to social ostracism. Plaintiffs state that they have already been shunned by peers who are aware of their beliefs about Israel, and fear that this isolation would only intensify.

Plaintiffs next allege that their academic performance is in jeopardy. Plaintiffs contend that most classes at Haverford are "communal," where students are "expected to work together." Plaintiffs allege that if the anonymous students' identities were known, it is likely that their classmates would refuse to engage with them, detrimentally impacting the anonymous students' academic experiences.

Further, Plaintiffs allege that certain members of Haverford's faculty may penalize the students should they become aware of the students' beliefs about Israel. For example, Plaintiffs allege that one professor expressed that that he "would not provide any recommendations for students seeking to study either in Israel or about anything related to Judaism." This same professor purportedly referred to Jewish students who oppose his views and support the state of Israel as "racist genocidaires." This professor has allegedly not faced any penalty for these remarks. If these allegations are true, and if Plaintiffs were aware of these remarks, their ability to participate fully in their coursework could well be hindered by significant self-censorship and anxiety.

Courts in this Circuit do not recognize purely social and reputational harms, without more, as valid bases to prevail on this factor. See Doe v. Princeton Univ. (D.N.J. 2020) (A plaintiff's "fear of social stigmatization, loss of employment opportunity, or loss of educational opportunity are insufficient to support a plaintiff's request for anonymity."); see also Doe v. Univ. of Pennsylvania (3d Cir. 2024) (interlocutory appeal) (Plaintiff's allegation that proceeding under her true identity would limit her ability to be accepted to medical school or secure future employment was insufficient to show a threat of "severe harm."); cf. Doe v. Weintraub (E.D. Pa. 2023) (a threat of severe harm existed where Plaintiff risked criminal prosecution if his identity were revealed during litigation.).

Rather, the court pointed to risk of physical harm:

Here, in addition to the social and reputational fears alleged, Plaintiffs also express fear for their physical safety. In support, Plaintiffs reference an alleged incident where rowdy protestors disrupted a presentation on campus by the Anti-Defamation League entitled "Antisemitism 101." According to Plaintiffs, the night before the presentation, protestors snuck into the room and zip tied all the blinds in the up position "to better intimidate those who assembled." Plaintiffs further allege that during the presentation, a "mob" formed outside the presentation room, "screaming at the tops of their lungs, using bullhorns, banging on pots and pans, and pounding on the windows."

Inside the presentation room, several masked students ripped off their sweatshirts and read messages from a prepared script, refusing to stop when confronted by John McKnight, Dean of the College. Multiple staffers allegedly ran around the room in an effort to address the chaos, and the disrupting students were escorted out by campus security.

For better or worse, confrontational and disruptive protests are a hallmark of much campus activism. That said, several factors here lend credence to Plaintiff's allegations of fear. First, the topic of the presentation, antisemitism, was on its face not political, focusing on attitudes towards Jews, not the nation of Israel.

Second, the presenter, the Anti-Defamation League, is a respected nonpartisan, nonprofit, with a mission to combat hate and promote tolerance. Admittedly, that mission sometimes requires the League to take positions about Israel. Its stated position, however, is that criticism of Israel is an important component of public discourse, and it does not seek to forestall such criticism unless it deems it antisemitic. Stated differently, in objective terms, the League is by no means an alter ego of the Netanyahu administration, and efforts to block a presentation on antisemitism have an overtone that is personal, rather than political in nature.

Finally, the presence of masked protesters in the room, who defied the authority of Haverford administrators and had to be removed by campus security, with a chanting group of protestors outside, would reasonably be viewed as a form of intimidation going far beyond the "normal" chaos of a confrontational campus protest.

I conclude that Plaintiffs' fears regarding their physical safety, when aggregated with their social and academic concerns, narrowly satisfy the threshold showing of a threat of severe harm. { In Doe v. Triangle Donuts, Judge Leeson of this court considered a transgender plaintiff's allegations of past threats of violence, verbal harassment from fellow employees, and the background of "widespread discrimination" against transgender individuals to determine that the plaintiff had sufficiently demonstrated a reasonable fear of "severe harm."} And given the volatility of the Israeli-Palestinian conflict on campuses nationwide, I deem these fears reasonable.

Consequently, this factor weighs in favor of anonymity, albeit only slightly….

[Given all the factors relevant to the pseudonymity analysis,] the balance is extremely close, with [the factor discussed above] only narrowly tipping the scale toward allowing the use of pseudonyms. Despite the closeness of the issue, I place some weight on the uniquely volatile backdrop of this case as described in my analysis of factor two above. Due to the particularly contentious and identity-bound nature of the Israel-Palestine conflict in this moment of international reckoning, I am convinced that Plaintiffs may unnecessarily pay a price if forced to reveal their identities, a result to be avoided where the issue is one of civil rights….

The court, however, made clear that plaintiffs' identities would have to be disclosed to defendant Haverford:

Permission to proceed under pseudonym … does not undermine the fundamental premise that parties must know against whom they are litigating to thoroughly understand the claims asserted and properly defend themselves. Here, Plaintiffs' identities are extremely relevant to salient factual questions even at this early stage of litigation. For example, without knowledge of Plaintiffs' identities, Haverford has no way to discern what each student personally experienced, whether each student provided notice of alleged harassment to any Haverford employees, or whether the anonymous students were individually aware of other alleged harassment elsewhere on campus.

Plaintiffs encourage the Court to fill in the gaps and simply presume that because Haverford is, compared to some institutions, a small campus, everything is common knowledge. But this approach is untenable for a discrimination claim based upon a hostile environment theory, which hinges on proof of widespread harassment, and, where claims are aggregated as Plaintiffs seek to do here, on individual knowledge of the conduct alleged to have created that environment….

For different results in similar cases, see the posts titled No Pseudonymity for Israeli Suing Intel Over Layoff Allegedly Prompted by Complaints Over Boss's Allegedly Pro-Hamas Statements and Court Rejects Pseudonymity in Lawsuit Over "Liberated Ethnic Studies Model Curriculum", though one can argue whether the factual record in this case showed more likelihood of physical harm than in those cases. For more on this general issue, see pp. 1412-14 of The Law of Pseudonymous Litigation.

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[Jonathan H. Adler] Supreme Court Adds Two Potentially Significant Cases to OT2024 Docket

Today the Supreme Court granted certiorari in two potentially significant cases, one concerning-church-state relations and other Article III standing.

First up is Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, in which the petition for certiorari posed the questions presented as follows:

Wisconsin exempts from its state unemployment tax system certain religious organizations that are "operated, supervised, controlled, or principally supported by a church or convention or association of churches" and that are also "operated primarily for religious purposes."

Petitioners are Catholic Charities of the Diocese of Superior and several sub-entities. Although all agree Catholic Charities is controlled by a church—the Diocese of Superior—the Wisconsin Supreme Court held that Catholic Charities is not "operated primarily for religious purposes" and thus does not qualify for the tax exemption.  Specifically, the court held that Catholic Charities' activities are not "typical" religious activities because Catholic Charities serves and employs non-Catholics, Catholic Charities does not "attempt to imbue program participants with the Catholic faith," and its services to the poor and needy could also be provided by secular organizations.

The questions presented are:

1. Does a state violate the First Amendment's Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state's criteria for religious behavior?

2. In addressing federal constitutional challenges, may state courts require proof of unconstitutionality "beyond a reasonable doubt?"

The second grant came in Diamond Alternative Energy LLC v. Environmental Protection Agency, in which the petitioners are challenging the EPA's grant of a waiver of preemption to California's low-emission vehicle regulations. Here the Court limited the grant to the standing question raised in the petition. With that noted, here is how the petitioners framed the questions presented.

Section 209(a) of the Clean Air Act generally preempts States from adopting emission standards for new motor vehicles. 42 U.S.C. § 7543(a). But under Section 209(b) of that Act, EPA may grant California—and only California—a waiver from federal  preemption to set its own vehicle-emission standards. Before granting a preemption waiver, EPA must find that California "need[s]" its own emission standards "to meet compelling and extraordinary conditions." Id. § 7543(b)(1)(B).

In 2022, EPA granted California a waiver to set its own standards for greenhouse-gas emissions and to adopt a zero-emission-vehicle mandate, both expressly intended to address global climate change by reducing California vehicles' consumption of liquid fuel. Fuel producers challenged EPA's waiver as contrary to the text of Section 209(b). The D.C. Circuit rejected the challenge without reaching the merits, concluding that fuel producers' injuries were not redressable because they had not established that  vacating EPA's waiver would have any effect on automakers.

The questions presented are:

1. Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties.

2. Whether EPA's preemption waiver for California's greenhouse-gas emission standards and zero-emission-vehicle mandate is unlawful.

Note that since the Court only granted the first question presented, this means the Court is not reviewing the substance of the lower court decision rejecting challenges to EPA's grant of the waiver. Some early news reports have gotten this wrong. Should the petitioners prevail in this case, at most this would entitle them to press their merits claims against the waiver grant on remand. It would also make it easier to challenge future EPA waiver grants, perhaps including a potentially forthcoming waiver that would effectively allow California to ban the sale of gasoline-fueled vehicles by 2035.

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[John Ross] Short Circuit: A Roundup of Recent Federal Appeals 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 cert petition: Midland County, Tex. hired a prosecutor to secretly moonlight as a paid law clerk for nearly two decades, helping judges decide his and his colleagues' cases—an "utterly bonkers" due-process violation and a "DEFCON 1 legal scandal." But over the "emphatic[]" dissent of six judges, who asked the Supreme Court to step in and resolve a "deep and enduring circuit split," the Fifth Circuit ruled this year that victim and IJ client Erma Wilson can't vindicate her federal constitutional right to a conflict-free trial until she first exhausts possible state-law remedies. Click here to learn more.

New on the Short Circuit podcast: There's something rotten in the Ohio Attorney General's office but the Sixth Circuit won't do anything about it (for now).

Rhode Island's legislature decided to pay for maintenance on 13 bridges by charging tolls, but only on tractor-trailers and with a daily cap. That meant that 97 percent of vehicles did not pay the tolls. Further, only 19 percent of the tractor-trailers are registered in the state George Washington said "baffled all calculation." Is that a dormant Commerce Clause problem? First Circuit: The tolls themselves are constitutional, but the daily cap is evidence of protectionism in favor of local interests. And it is severable. So now all tractor-trailers pay unlimited tolls! (Something no party asked for.) Luke's family farmed water. Pinkie Pie's raised rocks. Well, another clan is trying to harness the inorganic resource of wind, 14 miles due south of Martha's Vineyard and Nantucket. Trouble is, some fishing folk don't like Vineyard Wind's operations and sued to shut 'er down under a smorgasbord of environmental protection laws. Can an old farmer catch a break? District court: The fishermen lose. First Circuit: Affirmed. In 2022, Connecticut adopted an attorney ethics rule based on ABA Model Rule 8.4(g), prohibiting lawyers from "[e]ngag[ing] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law." Lawyers who claim the rule chills their speech sue. District court: I don't think any of the speech you want to engage in actually violates the rule, so you lack standing. Second Circuit: The test is whether it arguably violates the rule, so they have standing. In 2021, New Jersey enacted a statute prohibiting employers from refusing to hire job applicants based on cannabis use. Under that statute, does a job applicant have an implied remedy to sue Walmart for rescinding his job offer based on cannabis use? Third Circuit: Rights without remedies may have been a "monstrous absurdity" to our forebears but such monsters roam freely today. Dismissal affirmed. Dissent: I bet that the New Jersey Supreme Court (whose approach to implied remedies controls here) disagrees—we should have certified the question. If life were fair, something called Just Puppies v. Brown would be a rollicking animated adventure that teaches an important lesson about friendship at the end, but it is instead this Fourth Circuit case holding that Maryland's ban on dog sales from retail stores is neither preempted by federal law nor unconstitutional. In late 2020, Nasdaq proposed rule changes requiring each company listed on its stock exchange to (1) disclose its board members' gender, race, and LGBTQ+ status, and (2) have, or explain why it does not have, at least two members of its board who self-identify as female, an underrepresented minority, or LGBTQ+. The SEC approved the proposed rules. But the en banc Fifth Circuit (by a 9-8 vote) says they're a no go: The SEC can't approve rules unless they are designed to prevent fraud, protect investors, etc., and there's no evidence the diversity requirement has anything to do with that. Dissent: The SEC's rule-vetoing authority is much more limited. Nasdaq is a private company, and if its rules are no good, the market will figure that out. Do nonprofits whose members live, work, and recreate near an Exxon facility in Texas have a sufficient "personal stake" in curtailing Exxon's illegal emissions to bring a suit under the Clean Air Act, seeking civil penalties payable to the U.S. Treasury? Fifth Circuit (en banc): We granted en banc review 18 months ago to provide an answer and we still can't agree. So I guess we'll just un-en-banc this one and affirm the judgment below. Now here's 170 pages of us fighting. Street preacher leaves city-designated protest zone to better share the gospel with Brandon, Miss. concertgoers. But the chief of police gets out his handcuffs and orders her back. She complies. (Two members of her group are arrested.) City: So she doesn't have standing to challenge the protest-zone ordinance. Who knows if the chief was serious or if he'd decide not to enforce the ordinance in the future? Fifth Circuit: She has standing, but the ordinance is probably constitutional. [N.B.: Readers may remember another member of plaintiff's group, who is barred from challenging the ordinance because he's previously been convicted of violating it.] Rosenberg, Tex. officer stops elderly man taking a stroll through a residential neighborhood—not to arrest him, but to inform him of the importance of walking on the correct side of the road, which lacks sidewalks. The man tells the officer he's done nothing wrong and begins to turn away. The officer slams him to the concrete and arrests him. Man: I wasn't even on the wrong side of the road. I was legally crossing an intersection. Fifth Circuit (over a dissent): You can't just walk away from an officer. Qualified immunity. Some of you may think you have already learned all you care to know about the history of bricks or the definition of the word "collapse." For the rest of you, those with the souls of poets and scholars, we offer this (unpublished) Sixth Circuit opinion. According to the Sixth Circuit, the "canard" that a "foolish consistency is the hobgoblin of little minds" may have been fine and dandy for Ralph Waldo Emerson, but it "has no place in legal reasoning." What that means in this case is that Kentucky's lawsuit against the EPA concerning ozone standards won't be transferred to the D.C. Circuit and the EPA was arbitrary and capricious. Man and his minor son are touring a home with their realtor. Yikes! Wyoming, Mich. police order them out of the house at gunpoint and handcuff them. Turns out a neighbor confused the realtor with a different "young, Black man" that had been arrested for trespassing at the home a week before. District court: Qualified immunity all around. Sixth Circuit (unpublished): Reversed as to one officer, who knew right away the realtor was not the trespasser. Partial dissent: There shouldn't be QI on the gun pointing thing either. It is clearly established that officers shouldn't point guns at compliant suspects. State environmental agency sues Bay County, Mich. landowner for allegedly messing with wetlands on his property. State court preliminarily enjoins said messing and authorizes the agency to conduct inspections of the property. Agency officials do so, and take some water and soil samples. Landowner: Which was an unconstitutional seizure under the Fourth Amendment! Sixth Circuit (unpublished): Younger abstention! Take it up with the state courts. And no, it doesn't matter that a recent Michigan Supreme Court decision (an IJ case) means you probably can't actually get the relief you want in the state courts. #OurFederalism Eighth Circuit: Even if an arrestee is intensely annoying, officers must not punch, choke, or slap him—and certainly don't bash his head into a squad car—once he's been subdued. Grant of QI reversed. As fellow LAPD officers urge him to "hold up," officer shoots man, who'd been rampaging around a store attacking customers with a bike lock, in the back, killing him. One round goes through a wall and kills a 14-year-old girl. Ninth Circuit (unpublished): A reasonable jury might have a look at the video and decide that shooting the man was unreasonable. Denial of QI affirmed. Las Vegas police officers respond to reports of a man walking around a residential neighborhood with a machete late at night. When he refuses to follow their directions and advances towards them, the officers shoot and kill him—only to discover the "machete" was a handmade toy plastic sword. His parents sue. Ninth Circuit: Officers acted reasonably under the circumstances. Qualified immunity. Concurrence: The parents' substantive-due-process claim for companionship of a child also fails because that doctrine doesn't extend to a 44-year-old adult son. Dissent: I think a jury could find that this mentally impaired man wasn't a threat and shooting him was unreasonable. Father alleges that Douglas County, Colo. caseworker unconstitutionally took his 14-year-old son based on false and unsupported allegations. District court: Your complaint references one of the caseworker's affidavits, which makes the affidavit part of your complaint. And because according to the affidavit, everything was done by the book, you lose! Tenth Circuit: Hold up. That's some incorporation-by-reference jiu-jitsu, since the father referenced the caseworkers' affidavit because he was alleging that there were literal inaccuracies in the affidavit. Case undismissed. Florida woman sues Publix supermarkets after she allegedly slips and falls on "chicken juice" near the refrigerated section. Insurance investigators deny the claim and police later arrest her for criminal offenses including communications fraud. After the charges are dropped, she sues. Was there probable cause for the arrest? Eleventh Circuit (unpublished): Let's go to the video tape! Which shows the woman "suspiciously looking down at the floor, standing over a liquid, sliding her foot forwards and backwards through the liquid, looking around at other customers, and placing her right hand on the edge of the coolers before stepping forward, as if to brace herself for the fall she was staging." And in en banc news, the Ninth Circuit will not reconsider a panel opinion holding that a California death-row inmate stated a plausible due process claim that state officials violated his rights by failing to appoint postconviction relief counsel as required by California law. While the petition for rehearing en banc was pending, the inmate died. Though the case was now moot, the panel declined to vacate the opinion. Seven dissenting judges would grant review to vacate the panel's opinion—mootness notwithstanding—calling the opinion "plainly wrong" and "an affront to the principles of federalism."

Friends, have you ever dreamed of opening a restaurant in Philadelphia? Well, you're in luck, we've just produced a flow chart detailing all the questions you need to answer and the little pitfalls you might face. Have a look! Yikes! But there's good news. This week, IJ and the Philly mayor's office announced a partnership to identify and scrap regulatory barriers to entrepreneurship that aren't doing anybody any good. It's a part of IJ's Cities Work initiative wherein our team partners up with cities—completely free of charge—to make it cheaper, faster, and simpler to start a small business. Longtime readers may recall we've been a tad harsh on Philadelphia governance in the past, but we're always happy to provide robust policy recommendations and work with officials who want to do the right thing. Click here to learn more.

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[Josh Blackman] New Essay: "What is the Future of the Federalist Society?"

The Civitas Institute as the University of Texas at Austin has launched a new online journal called Civitas Outlook. The initial slate includes essays by co-blogger Jon Adler, Richard Epstein, and others. My entry is titled What is the Future of the Federalist Society?

Here is an excerpt:

Over the past four decades, the Federalist Society (FedSoc) has climbed from an obscure organization to the apex of influence. What started as a group of students criticizing the liberal legal order has now become the embodiment of the prevailing conservative jurisprudence. The recent National Lawyers Convention provided an opportunity to toast the FedSoc's successes, and there is much to celebrate. But this moment also presents something of an inflection point. For nearly half a century, FedSoc has followed the same playbook under the same leadership: a debating society that does not take any position on legal issues. But Eugene Meyer, the society's stalwart and venerated President, plans to step down soon. As the leadership search continues, the conservative legal movement should take stock of what the future portends for FedSoc. . . .

Yet, there are headwinds. First, there is a long-simmering tension between social conservatives and the libertarian wings of the movement. For example, in the leadup to the landmark Dobbs decision, which overruled Roe v. Wade, FedSoc's national convention largely ignored the abortion issue. To this day, many social conservatives still feel slighted. Second, FedSoc has long favored a strong deregulatory focus, which was a priority of the Reagan Administration. However, the Trumpism of the Republican party seeks to use government power to promote conservative goals. Third, FedSoc has long favored the lowercase-c approach to conservatism: moderation and restraint. This jurisprudence was a natural choice when originalism and conservatism were minority viewpoints on the Supreme Court. But now, and for the foreseeable future, the roles have reversed. Judges with courage have more cache than those seeking passive restraint.

…

I have been a devoted member of FedSoc since my first year of law school in 2006. I deeply hope that FedSoc maintains its relevance and influence for another four decades. But I worry that the celebrated approach that worked to climb the sunrise side of the mountain may lead to its decline on the other side. What is that new approach? I do not know, and it should be, as is true to FedSoc's core, a matter of debate. However, maintaining the status quo is not sustainable.

I suspect this piece will stimulate some discussion and debate.

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[Josh Blackman] Today in Supreme Court History: December 13, 1873

12/13/1873: Justice Samuel Nelson died.

Justice Samuel Nelson

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[Paul Cassell] Is Judge Newman Entitled to Her Day in Court to Challenge Her "Stealth Impeachment"?

My co-blogger, Josh Blackman, has previously written an excellent post about what might be viewed as the "stealth impeachment" of Judge Newman in the Federal Circuit. Judge Newman has been suspended due to her alleged failure to "cooperate" with a Special Committee appointed by the Chief Judge of the Federal Circuit, which was investigating Judge Newman's capacity to perform her work. Judge Newman has sought federal judicial review of whether this lengthy suspension violates her constitutional rights. But, thus far, she has been denied any judicial review.

Yesterday, I joined former judges Susan Braden, Janice Rogers Brown, Randall Rader, and Thomas Vanaskie in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman's claims be reviewed on their merits. Here's the opening of our brief explaining why Judge Newman is entitled to her day in court:

Judge Pauline Newman has served with distinction on the United States Court of Appeals for the Federal Circuit since its creation in 1984. Her many dissents may on occasion irritate some of her judicial colleagues, but those opinions have routinely been vindicated by the U.S. Supreme Court—including as recently as this year. Doctors who have examined her recently have all concluded that she remains cognitively sharp, an opinion shared by many who have witnessed her recent public appearances. There has been no finding that Judge Newman is disabled or otherwise incapable of performing her judicial duties.

Judge Newman has nonetheless been effectively removed from office by Appellees [e.g., the Chief Judge of the Federal Circuit et al.]. In response to her decision to decline a medical examination by doctors of their choice, Appellees suspended her from all judicial activities—including hearing cases, writing opinions, and voting on petitions to hear cases en banc. The original order imposed a one-year suspension, but Appellees later renewed the suspension for another year and made clear that the suspension would continue indefinitely until Judge Newman acquiesced to their examination demand. She responded by filing suit in district court, alleging that she has been removed from office in violation of her constitutional rights. But rather than addressing the merits of those constitutional issues, the district court largely dismissed Judge Newman's claims on the ground that judicial review was precluded.

That holding cuts against the strong presumption that litigants are entitled to have their federal constitutional claims heard in a federal court. The presumption can be overcome only by clear and convincing evidence that Congress meant to foreclose review, and there is no such evidence in this case. Judge Newman is entitled to her day in court.

Moreover, the facts alleged by Judge Newman state a valid claim. The Constitution assigns to the U.S. Senate alone the power to remove Article III judges from office. By suspending Judge Newman for an indefinite period and thereby effectively removing her from office, Appellees are usurping that power. That usurpation represents a serious challenge to the independence of federal judges that the Framers sought to preserve.

For Judge Newman to be removed from judicial service for an indefinite period of time violates clearly established separation-of-powers principles. As we explain in our brief:

Judge Newman alleges that Appellees are seeking to remove her from office. The uncontested facts demonstrate that: (1) on September 20, 2023, the Judicial Council suspended her for one year from hearing any cases at the panel or en banc level, based on her refusal to cooperate with the Special Committee's investigation (e.g., her refusal to submit to medical examination by doctors chosen by the Judicial Council); (2) on September 6, 2024, the Judicial Counsel renewed its suspension for a second year; (3) in recommending the September 2024 extension of Judge Newman's suspension, the Special Committee stated that the suspension is "subject to renewal if the refusal to cooperate here continues after" completion of the second year of suspension.

Those facts demonstrate Appellees' intent to deprive Judge Newman of her judicial authority for an indefinite period of time—at least until such time as she abandons her contention that it is they and not she who are engaging in misconduct. Appellees' long-term deprivation of Judge Newman's judicial authority is impossible to distinguish from an outright removal from office given her advanced age. At age 97, Judge Newman has a short life expectancy, and a multi-year suspension can plausibly be interpreted as an effort to run out the clock on her life.

Based on the above, Judge Newman has stated a valid claim that Appellees have violated her rights under separation-of-powers provisions of the U.S. Constitution. Article III, Section 1 states that federal judges "shall hold their offices during good behavior," and they can be removed from office only through a vote of impeachment by the U.S. House of Representatives and a trial and conviction by the Senate. See Art. I, § 3, cl. 6 (stating that "The Senate shall have the sole power to try all Impeachments") (emphasis added). In other words, a Judicial Council effort to remove a judge from office violates the Constitution by impinging on powers delegated solely to the Senate.

At the very least, Judge Newman is entitled to reversal of the district court's dismissal of Counts II and III. Those counts plausibly allege that Appellees' actions have effected her de facto removal from the bench, and that the Constitution expressly prohibit anyone other than the U.S. Senate from taking those actions. And unless Appellees can supply the Court with substantial evidence that Judge Newman is not actually subject to an indefinite suspension, it should grant her motion for injunctive relief and enter judgment in her favor on Counts II and III.

The Special Committee asserts that Judge Newman's refusal to acquiesce to its medical demands constitutes "a serious form of continuing misconduct." But that assertion cannot justify Appellees' decision to suspend Judge Newman indefinitely—a suspension which currently stands at two years and which Appellees threaten to lengthen unless Judge Newman acquiesces to their demands.

If Appellees consider the alleged misconduct sufficiently serious to warrant removal from office, their proper course is to refer the matter to Congress for possible impeachment and trial. What they may not do is take it upon themselves to effectively remove Judge Newman from office by suspending her indefinitely.

Perhaps the key point in our brief is the threat to judicial independent posed by the effective impeachment of Judge Newman by colleagues with whom she has sometimes  disagreed with in numerous dissenting opinions:

Amici are particularly concerned by the threat to judicial independence posed by Appellees' alleged actions. Throughout her career, Judge Newman has demonstrated a willingness to express her views without regard to how those views will be perceived by her judicial colleagues. Her hundreds of dissenting opinions have no doubt exasperated some of those colleagues at times, but the law has benefitted from her willingness to express those dissenting views unabashedly. If the Federal Circuit Judicial Council succeeds in shutting down Judge Newman without going through the constitutionally prescribed process for removing Article III judges from office, other judges may conclude that they should hesitate to act boldly in defense of justice for gear of the adverse consequences of doing so.

I hope that the D.C. Circuit agrees with our position that only adhering to the constitutionally prescribed impeachment process for allegations of judicial misconduct will ensure that Article III judges can feel confident that their rulings will not endanger their job security.

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[Josh Blackman] DEI Still Has An Anti-Semitism Problem

In the wake of October 7, college students across the country responded by praising the resistance against settler colonialism. These elites accused Jewish people of being Zionist oppressors. And leading thinkers justified acts of violence against Jewish students as a proportional response to "genocide" in Gaza.

Should any of these reactions have been surprising? No. These principles have been espoused in CRT and DEI ideologies for decades. Students were merely implementing what they were taught.

When Judge Kyle Duncan was shouted down in the most vile terms at Stanford, Tirien Steinbach, the DEI apparatchik, asked whether his juice was worth the squeeze. But Steinbach was not acting out of turn. She was following DEI teachings. Indeed, two years earlier, DEI programs at Stanford espoused overt anti-semitism.

Through its DEI committee, weekly seminars and racially segregated affinity groups, the CAPS DEI program has maligned and marginalized Jews on the basis of religion, race and ethnic identity by castigating Jews as white, powerful and privileged members of society who contribute to systemic racism and denying and attempting to erase Jewish ancestral identity. In addition, the DEI program has denigrated the concept of Jewish victimhood and deliberately excluded anti-Semitism from the program's agenda.

Again, this sort of dogma is at the center of DEI intersectionality. As I wrote in 2023, such teaching are not outliers; they are the rotten core of college campuses. I have no doubt there are well-meaning DEI officials who are not anti-semitic. But the entire enterprise is irreparably tainted by these teachings.

Perhaps now DEI officials are laying low and staying quiet. Across the country, DEI programs are being rebranded to eliminate references to diversity, equity, and inclusion. But when no one is listening, they can speak their minds.

The New York Times offers this report from the University of Michigan:

The University of Michigan is considering firing an administrator who works on diversity initiatives over accusations that she made antisemitic comments, according to her lawyer.

The administrator, Rachel Dawson, is director of the university's office of academic multicultural initiatives. She was accused of saying in a conversation at a conference in March that the university was "controlled by wealthy Jews," according to documents obtained by The New York Times through a freedom of information request.

She was also accused of saying that Jewish students were "wealthy and privileged" and not in need of her office's diversity services, and that "Jewish people have no genetic DNA that would connect them to the land of Israel," according to the documents, which were part of a complaint from the Anti-Defamation League of Michigan.

Dawson has a different recollection:

According to the Covington & Burling memo, Ms. Dawson confirmed that she spoke to the two professors, but she gave a different version of the conversation. Rather than claiming Jews had no ancestral claim to Israel, for example, she said she had pointed out that Jews and Palestinians shared an ancestral connection to the region.

If Dawson made the alleged comments, it would be utterly unsurprising. This is exactly the sort of pablum that has been taught at DEI programs for decades.

Dawson has a JD. (I am not sure if she is an active member of the bar). Had these comments been made at a legal conference, would they trigger liability under ABA Model Rule 8.4(g)? Would a DEI official "reasonably know" that these comments could constitute "harassment" in "conduct related to the practice of law"?  Here is more reporting from the Times:

The allegations arose in March at a diversity conference in Philadelphia, sponsored by the American Association of Colleges and Universities. Two professors who attended the event, Naomi Yavneh Klos, who teaches at Loyola University New Orleans, and another Jewish professor said they had heard about the "negative experience" of a University of Michigan Jewish student, Dr. Yavneh Klos said in an interview.

When they learned that a Michigan D.E.I. administrator was at the conference, they decided to approach her, Dr. Yavneh Klos said.

"I think my colleague wanted to know, 'Does the D.E.I. office work with these students?'" Dr. Yavneh Klos said. "'Should the student go to the D.E.I. office?' She said no. Jewish students are all rich. They don't need us. That was the gist of what she said. It was really horrifying."

She said she was so upset after the conversation that she called a friend who works for the Anti-Defamation League, who encouraged her to file a report, which Dr. Yavneh Klos did that same day.

Conservatives have long worried that Rule 8.4(g) could be weaponized against conservative speech. Progressives should have similar worries. Good thing the Second Circuit allowed a challenge to Connecticut's rule go forward.

Dr. Klos worries that DEI does not protect Jewish students:

Dr. Yavneh Klos said she was a "tremendous advocate for D.E.I." But one of her frustrations with colleges, she added, was that "the current D.E.I. narrative very often excludes Jews" even as "antisemitism is still very much present."

"D.E.I. offices very frequently fail to serve the needs of Jewish students, and don't really recognize Jewish students as under their purview," she said.

We don't need their help. Jewish students should recognize that DEI offices at places like Michigan and Stanford are not their allies. And the Department of Education should respond accordingly.

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[David Kopel] Firearms Law Works-in-Progress Conference 2025

This June, the University of Wyoming Firearms Research Center and the Duke Center for Firearms Law will host their seventh annual joint Works-in-Progress Conference. These two Centers are the only firearms law/policy centers in the United States that are open to and that publish papers from diverse viewpoints. I am a Senior Fellow at the Wyoming Center

If your paper is accepted for the Wyoming/Duke Conference, you are of course free to eventually publish it in any journal you want; however, there is an expectation that you will write a summary of the paper for publication on the blogs of the Wyoming and Duke Centers.

To present a paper, you do not need to be a professor. Past conferences have included, from example, some fine presentations from practicing lawyers. (Or muggles, as law professors secretly call them.)

The conference is also an excellent opportunity for friendly interactions with scholars from other disciplines, and with diverse viewpoints on arms issues. At last year's conference, Minnesota Law prof. Megan Walsh publicly humiliated me by presenting me in a Minnesota Timberwolves jersey, to commemorate Minnesota's defeat of the reigning champion Denver Nuggets in the NBA Conference semifinals, including a 115-70 obliteration in game 6.

Below is the call for papers:

DATE: June 5-6, 2025

LOCATION: Laramie, WY

ABSTRACTS DUE: February 17, 2025

The University of Wyoming Firearms Research Center and the Duke Center for Firearms Law invite applications to participate in the seventh annual Firearms Law Works-in-Progress Conference. The conference will be held at the University of Wyoming College of Law in Laramie, Wyoming, on June 5 & 6, 2025. We ask all those interested in presenting a paper at the conference to submit an abstract by February 17, 2025.

At the Firearms WIP Conference, scholars and practitioners present and discuss works-in-progress related to firearms law and policy broadly defined, including Second Amendment history and doctrine, federal and state gun regulation, and the intersection between firearms law and other areas of law. The Firearms WIP Conference is the only legal works-in-progress event specifically focused on firearms law and policy. Summaries of past conferences, including paper titles and attendees, are available here: 2019, 2020, 2021, 2022, 2023, and 2024.

Conference sessions are lively discussions among authors, discussants, and participants. Each accepted paper is assigned to a panel of three to four scholars with a moderator who will summarize the papers and then lead a discussion. Sessions run from Thursday afternoon through Friday afternoon. There will be a casual dinner and social event Thursday evening following the afternoon session. All conference participants are expected to read the papers in advance and to attend the entire conference.

We accept papers on a wide array of topics related to firearms, including from scholars who are new to the field and interested in exploring the interaction between firearms law and other disciplines. Although participation at the conference is by invitation only, we welcome paper proposals from scholars and practitioners all over the world. Please feel free to share this call for submissions widely.

Submission Details

Titles and abstracts of papers should be submitted electronically to frc@uwyo.edu no later than February 17, 2025. Abstracts should be no longer than one page, and should be submitted as a PDF file saved under the file name "[last name, first name] – [paper title]." Please use the subject line "WIP Paper Submission" in your email. Authors will be informed whether their paper has been accepted no later than March 10, 2025. Workshop versions of accepted papers will be due in mid-May, so that they can be circulated to moderators and other conference participants in advance of the conference.

We expect that participants' home institutions will cover travel expenses to the extent possible. However, the Wyoming FRC and Duke CFL are able to cover some costs of lodging and travel expenses for authors who would not otherwise be able to attend. This support is intended to encourage submissions from junior faculty, especially those who are new to the field.

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[Eugene Volokh] Silencers Aren't "Arms" Protected by Second Amendment, Fourth Circuit Holds

From U.S. v. Saleem, decided today by Judges J. Harvie Wilkinson, Steven Agee, and Allison Rushing:

The Supreme Court in Heller defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." Therefore, "the Second Amendment extends … to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." While a silencer may be a firearm accessory, it is not a "bearable arm" that is capable of casting a bullet.

Moreover, while silencers may serve a safety purpose to dampen sounds and protect the hearing of a firearm user or nearby bystanders, it fails to serve a core purpose in the arm's function. A firearm will still be useful and functional without a silencer attached, and a silencer is not a key item for the arm's upkeep and use like cleaning materials and bullets. Thus, a silencer does not fall within the scope of the Second Amendment's protection.

Julia K. Wood represents the government.

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[Jonathan H. Adler] Congress Passes Legislation to Create Needed Judgeships, but Biden May Veto

The Judicial Conference has called for the creation of additional judgeships -- primarily district court seats in parts of the country plagued by judicial backlogs. The Federal Bar Association has joined the call for more judgeships, and endorsed the JUDGES Act, which would authorize 66 new district court judgeships over the next decade, staggered so as to spread the nominations across presidential administrations.

The Senate passed the JUDGES Act earlier this year, before the August recess. Some hoped it would pass before the election, when it was still unknown who would get the first opportunity to fill new seats, but that did not happen.

Earlier this week, the FBA and Federal Judges Association issued a statement urging adoption of the JUDGES Act. It reads in part:

Our federal courts observed over 30 percent growth in their caseloads since the last comprehensive judgeship legislation three decades ago and the lack of new judgeships has contributed to profound delays in the resolution of cases and serious access to justice concerns. It is the litigants and residents of the Nation who suffer when there is a delay in deciding cases, and the enactment of the JUDGES Act would have a substantial positive impact on the efficient administration of justice for all Americans.

Now, more than ever, our judicial system needs enactment of the JUDGES Act. It adds judges in a non-partisan manner and through its creative staggered approach to creating these new judgeships, offers the best chance in three decades for addressing the increasing judicial caseload crisis. Failure to enact the JUDGES Act will condemn our judicial system to more years of unnecessary delays and will deprive parties in the most impacted districts from obtaining appropriate justice and timely relief under the rule of law.

The statement is signed by FBA President Glenn McMurry and FJA President Judge Michelle Childs (a Biden appointee to the U.S. Court of Appeals for the D.C. Circuit).

Today, the House passed the JUDGES Act with bipartisan support, 236-173.

The White House, however, is threatening to veto the bill, claiming that additional judgeships are unnecessary, even though the Judicial Conference and FBA claim otherwise.

According to the National Law Journal, judges are discouraged by the White House veto threat, with one Obama appointee calling it "really deflating." From that report:

Federal judges must prioritize criminal matters, and as a result of heavy caseloads, civil cases in particular can drag on. According to the Administrative Office of the U.S. Courts, the number of civil cases pending more than three years rose from 18,280 to 81,617 over the last 20 years.

Chief U.S. District Judge Marcia Morales Howard of the Middle District of Florida said the court's Ocala division currently has no judges assigned there and has the busiest docket in the district.

At least six senior judges and one active judge take on the division's docket, she said. But she said many aging senior judges are beginning to roll back the number of cases they take on, which could pose a problem.

"The Middle Florida is huge. It's 35 of the 67 counties in the state. It's 60% of the population of the state," said Howard, a George W. Bush appointee. "So we desperately need these judgeships."

Howard said the bill would add five judges to the court over a decade: one in 2025, one in 2027, one in 2031, one in 2033, one in 2035.

There is no question that partisans prefer to authorize new judgeships when they know a president of their own party will get to fill the seats. That is one reason the JUDGES Act staggers vacancies over the next decade. The reality remains that more district court judgeships are needed, and it would be unfortunate if partisan concerns prevented these seats from being created.

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