Eugene Volokh's Blog, page 228

[Eugene Volokh] Journal of Free Speech Law: "Corporate Speech and Corporate Purpose: A Theory of Corporate First Amendment Rights," by Sean J. Griffith

The article is here; the Introduction:

Every spring, hot button issues of social policy are debated on the pages of corporate proxy statements. Recent examples include abortion rights, climate activism, discrimination against racial and religious groups, and transgenderism. In these debates, the affirmative side is taken by a shareholder putting forward a resolution for reform—a "shareholder proposal"—while the negative side is taken by the company, which seeks to persuade its shareholders to reject the proposal. The company publishes and disseminates the resolution along with the arguments of both sides in its annual proxy materials.

Shareholders submitted 889 proposed resolutions in 2023. A substantial majority of these (582 or 65%) raised questions of social policy. Of the social policy proposals, 188 (32%) urged action relating to climate change and greenhouse gas emissions. Meanwhile, 394 (68%) focused on other social issues, such as racial equity audits and diversity, equity, and inclusion (DEI) initiatives. Slightly more than half of all the shareholder proposals received by corporations in 2023 were ultimately voted upon. In some cases, proposals failed to reach the ballot because corporations successfully excluded them. More often, proposals were withdrawn in connection with a negotiated settlement in which the corporation agreed to some of the proponent's requests. Of the 483 shareholder proposals that went to a vote in 2023, 25 (5%) passed.

Why do American companies become laboratories of democracy during proxy season? Is it that managers sense some competitive advantage in turning their attention from the product market to the marketplace of ideas? Or is it that investors are more likely to subscribe to public offerings if the company promises them an opportunity to speak their mind on social issues? Neither is the case. While it may be true that some corporations have chosen to lean in to the culture wars, it is equally certain that many corporations would prefer to lean out and avoid such issues altogether, fearing distraction or backlash. But companies cannot opt out of shareholder proposals. Their participation is compelled by the government.

Companies publish and distribute shareholder proposals because Rule 14a-8 of the Securities and Exchange Commission compels them to do so. Subject to a set of exceptions and exceptions-to-the-exceptions, the shareholder proposal rule requires corporations to include shareholder resolutions and supporting statements of up to 500 words in the company's own proxy materials. Publication of proposals raising controversial social issues are compelled either (1) under an exception to the "relevance" exemption, requiring companies to include proposals that "raise issues of broad social or ethical concern related to the company's business" even if they are not quantitatively relevant to corporate revenues or assets, or (2) under an exception to the "ordinary business matter" exemption, requiring companies to include proposals that "raise[] issues with a broad societal impact, such that they transcend the ordinary business of the company." These exceptions have swallowed the rule to the point that the majority of shareholder proposals now raise controversial issues of social policy.

But government compulsions to speak are constitutionally suspect. The First Amendment of the U.S. Constitution prohibits the government from "abridging the freedom of speech," and Supreme Court doctrine has long held that speech is abridged both when it is restricted and when it is compelled. Rule 14a-8 compels speech. Through it the SEC, an agency of the government, compels corporations to speak on social controversies. While the government does not choose the words spoken—the matters are put forward by shareholders, not the government—the government compels speech by requiring companies to publish shareholder proposals that comply with the SEC rule. Moreover, the structure of the rule and the choices made by the SEC in applying it regulate the content of speech in a way that is not "content-neutral." This raises the question: Does Rule 14a-8 violate the First Amendment?

If Rule 14a-8 is unconstitutional, it is because corporations' negative speech rights—that is, the right to refrain from speaking—have been violated. But do corporations have negative speech rights? This framing of the question exposes two lacunae in First Amendment doctrine. The first is the extent to which the speech rights of corporations, as opposed to natural persons, are protected. Although it is now clear that corporate speech enjoys some protection under the First Amendment, it is by no means clear that these rights are fully coequal with those of natural persons. The second lacuna is the extent to which the First Amendment protects negative speech—that is, silence—as opposed to the positive freedom to speak. While natural persons have both rights, the foundations of the two are not the same. In particular, it has been unclear whether negative speech rights extend to corporations.

The Free Speech Clause has been justified as "both as an end and as a means," having both intrinsic and instrumental rationales. The intrinsic rationale protects the natural right of citizens to autonomy in thought and expression. The instrumental rationale promotes the production of information and opinion beneficial to democratic self-governance. The intrinsic and the instrumental bases for the freedom of speech are united in natural persons, for whom each rationale supports the other. More information in public debate improves individual opinion, which, when expressed, improves public debate, and so on.

The situation with corporations, however, is different. Although corporations are "legal persons" with rights protected by the Constitution, corporate speech rights are justified primarily by the instrumental rationale. Corporations can produce information and opinion as well as any individual—better, in fact, than many. As a result, the instrumental rationale would seem to support the protection of at least some corporate speech. However, because the intrinsic rationale is based upon the natural right to autonomy in thought and speech, it is of doubtful applicability to corporations, which are artificial, not natural persons.

The intrinsic rationale is especially critical in the context of negative speech rights. A person who refrains from speaking expresses no idea, and silence does nothing to improve the quality of democratic deliberation. For this reason, the First Amendment protection of negative speech rights has been wholly grounded upon the intrinsic rationale and, more specifically, rooted in the integrity of "conscience"—a concept that, as variously formulated by the Court, seems to refer to the interior life, intellectual or spiritual, of natural persons. As artificial entities, corporations do not have interior lives and are, as the saying goes, as bereft of conscience as they are of body and soul. Unless corporations can somehow draw upon the intrinsic rationale, there would seem to be no basis for negative corporate speech rights.

A starting point for locating a basis for corporate speech rights is to focus not on the corporate entity but on the natural persons who form it and whose interests it represents. Corporations are, in their essence, associations of natural persons who, in coming together to form artificial entities, do not abandon their natural rights. An intrinsic justification for corporate speech rights thus can be derived from the people for whom it exists—that is, its shareholders. However, corporate law teaches that shareholder rights are transformed by the corporate form. Although shareholders retain individual rights to liberty and property, as shareholders they can neither command corporate action—to pay a dividend, for example—nor sell corporate property. We might therefore expect that any intrinsic justification for corporate speech rights based upon shareholders' natural rights will be similarly transformed by the corporate form.

This article offers a theory of corporate speech that connects "conscience" to "purpose" and, in doing so, implies a basis for protecting corporations' negative speech rights. Starting from the premise that any intrinsic foundation for speech rights must be derived from shareholders, this article draws upon basic corporate law principles to show how the corporate form modifies shareholder rights. The extent of this modification depends, fundamentally, on the potential for conflict among shareholders' interests and objectives. Sole shareholder corporations, in which the entity is the "alter ego" of its owner, demonstrate perfect alignment between the interests of the shareholder and of the corporation. In such cases, corporations have the full speech rights of their owner. Likewise, closely held family firms where there is relatively little conflict among the shareholder base may also feature broad speech rights. The difficult case is the publicly traded corporation.

Publicly traded corporations, whose defining characteristic is a large number of widely dispersed investors, possess a broad diversity of interests and objectives in their shareholder base. This breeds conflict. Lest the conflicts in the shareholder base render the firm ungovernable, corporate law provides managers with a presumptive purpose: wealth maximization. Shareholders may specify other purposes in their governing documents, but in the absence of such an election, corporate law presumes the company to be managed for the purpose of shareholder wealth maximization. This presumption provides a basis for corporate speech rights.

The wealth-maximation norm serves as the coherent internal core of the corporation. For lack of a better word, its conscience. When corporations are compelled to speak in a manner that is consistent with wealth maximization—for example, when mandatory disclosure rules prompt disclosures that financially motivated investors would ordinarily demand—the compulsion is unobjectionable. However, when corporations are compelled to address issues that are not consistent with wealth maximization, they violate the integrity principle underlying the compelled speech cases. Violation of the integrity principle triggers First Amendment protection.

Rule 14a-8 provides the ideal context in which to study these issues. First, unlike other First Amendment cases involving sole shareholder firms or closely-held family businesses, the rule applies only to those firms where First Amendment rights are most problematic—that is, publicly-traded corporations. Second, because the rule involves a compulsion to speak, rather than a restriction on the content of speech, it highlights the context of negative speech rights. Third, because the majority of shareholder proposals under the rule involve matters of social policy invoking either the ordinary business or relevance exemptions, Rule 14a-8 presents a context in which the content of the disclosure violates the integrity principle. Thus, although corporate and securities lawyers sometimes dismiss Rule 14a-8 as a minor annoyance, in fact the rule is the ideal instrument for probing the limits of the speech rights of corporations.

From this introduction, the article proceeds as follows. Part I focuses on Rule 14a-8, first describing the origin and evolution of the rule, then reviewing the existing literature on the rule in order to understand how the rule has been approached by other scholars. It finds that the current rule, which is essentially the inverse of the original rule, is justified only by instrumental reasons, all of which are highly questionable on their own terms, and none of which provide any support for the rule's constitutionality.

Part II focuses on First Amendment doctrine. It begins by investigating the first doctrinal problem—the constitutional basis of corporate speech rights. After analyzing the applicability of both the intrinsic and instrumental rationales to different forms of corporate communications, it argues for a conception of intrinsic corporate speech rights based upon the wealth maximization norm. Part III then proceeds to the second doctrinal problem—the question of negative speech rights. After combing through the court's compelled speech cases for a coherent theory of the protected interest underlying negative speech rights, it puts the two pieces together, articulating an intrinsic rationale for corporate speech rights based on the principle of integrity. The intrinsic rationale supports the right of corporations not to be made to speak for reasons other than wealth maximization. Part IV argues that these principles reveal that Rule 14a-8, at least insofar as it mandates controversial disclosures on matters of social policy, violates the First Amendment rights of corporations.

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[Eugene Volokh] Court Rejects Claim That Columbia Improperly Suspended Students for Justice in Palestine Chapter

From last week's decision by trial court judge Nicholas Moyne in Columbia Students for Justice in Palestine v. Trustees of Columbia Univ.:

After reviewing the record, the Court finds that Columbia University's decision to temporarily suspend the petitioners from their status as recognized student groups was neither arbitrary or capricious, irrational or in violation of clearly established University policies. Accordingly, the petition is denied and the cross-motion to dismiss the petition is granted.

All students and student groups at Columbia are subject to and required to comply with Columbia's Special Events Policies which govern, inter alia, when, where and how events on campus, including protests and demonstrations, may be held and what notice needs to be given to university officials prior to the commencement of any student group events, demonstrations or protests. Following the horrific events of October 7 and the intense divisions and controversies that occurred in their aftermath, Colombia University amended its policies because, in its words, the "University has an obligation to ensure that all members of our community can participate in their academic pursuits without fear for their safety."

The Special Events Policies has previously required that only recognized student groups can organize events and that they must work with administrators in advance to reserve space and secure approval for campus events. After October 7, changes were made to the policies concerning the consequences of non-compliance. For example, a new provision was added to the University Event Policy on October 24, 2023 to provide that "University groups … who proceed with Special Events, Vigils or Demonstrations that have not been approved … will be subject to discipline and sanctions," expressly warning that "[s]tudent groups proceeding without approval may lose the right to sponsor events and/or become ineligible for University recognition or funding."

Similar language was added to the Student Group Event Policy and Procedure, cautioning that: If a recognized student organization fails to follow the event approval process, proceeds with an unauthorized event, promotes or markets an event on social media that has not yet been approved, promotes or markets an approved event in a manner otherwise inconsistent with University policies, or does not follow the designated parameters (e.g., location, time, etc.) of an approved event, the organization may be subject to sanctions … The updated Student Group Event Policy and Procedure explicitly stated that "[i]t is within the University administration's sole discretion to determine whether there has been a violation of the Event Policy and Procedure and what the appropriate sanctions shall be and the duration of such sanction. Sanctions made under this policy are final and not appealable."

These updated policies are clear and under the circumstances more than reasonable in their attempt to strike a balance between public safety and protecting students right to express their views while on campus. There is little if any dispute that the petitioners violated these policies.

This Court does not have the power to conduct a full-scale review of the subject policies. Private universities, such as Colombia, are entitled to great deference from the judicial branch in reviewing their determinations, particularly those involving public safety and the safety and well-being of their students. A disciplinary determination will only be disturbed when the university acts arbitrarily and not in the exercise of its honest discretion, when it fails to substantially comply with its own rules, or when the penalty is so excessive that one's sense of fairness is shocked. Perfect adherence to every procedural requirement is not required to demonstrate substantial compliance. Students at private universities are not afforded a full panoply of due process rights absent state action. This restricted review applies no matter what stage of the disciplinary process is being challenged. {Additionally, private universities such as Colombia are not subject to constitutional claims, such as claims that a student's First Amendment rights to free speech and expression have been violated, since a private university and its employees are not considered state actors for the purpose of constitutional claims.}

As stated above, there can be little dispute that the student groups were aware of the Special Events Policies and that they violated those policies on at least one and perhaps multiple occasions. This is not disputed in the record. The petitioners also have failed to show that Colombia deviated from these policies in any substantial or meaningful way.

While the petitioners claim that they were singled out for punishment because of their pro-Palestinian views and/or their expressions of opinion concerning the conflict in the Middle East, they have not provided any evidence in support of that claim. Colombia maintains, and the petitioners have not disputed the fact, that other student groups with similar viewpoints were able to protest and/or hold events on campus without serious incident, and while remaining in compliance with the university policies. Finally, the record shows that the University gave them numerous warnings about their failure to comply with the Special Events Policies and the potential sanctions and consequences that could arise because of their lack of compliance.

As such the Court cannot find that the University deviated from its stated policies in any significant way. The Court has no discretion to set aside these policies, regardless of whether the Court thinks they are appropriate or sound.

Petitioners' real argument is that these policies are invalid, were promulgated in violation of university rules and unfairly curtailed their rights to free expression on campus. It should be noted that the main arguments the petitioners put forth to challenge the propriety of the amendments to the Special Events Policy are referenced only in the Reply Brief. Petitioners have failed to establish that the amendments to the Special Events Policy were not authorized by prior university rules and procedures, particularly given the amount of discretion a private university has in regulating the time, place and manner of campus expression.

Given this record, the only review this Court can make is the limited review cited above as to whether Colombia University substantially complied with its own rules. There is no evidence that they did not. Of course, not everyone agrees that these policies have had their stated intended effect of balancing the competing concerns of safety and freedom of speech and expression on campus. And there will undoubtedly be suggestions and recommendations as to how Colombia's policies could be changed or improved. But it is not the role of this Court or any court to wade into that difficult policy discussion.,…

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[David Post] Who We Are

Well, we (see below) did it!  We elected the guy who had tried to overthrow the duly elected government of the United States to be our President. Like a lot of people, I'm trying to understand what that means, both for the moment and going forward.

Bret Stephens, in a NY Times essay Eugene referred to in an earlier post, chides Harris supporters who rationalize their loss to a man "they saw as a twice-impeached former president, a felon, a fascist, a bigot, a buffoon, a demented old man …" by adopting the theory that "a nation prone to racism, sexism, xenophobia and rank stupidity fell prey to the type of demagoguery that once beguiled Germany into electing Adolf Hitler."  This, Stephens asserts, illustrates the "broad inability of liberals to understand Trump's political appeal except in terms flattering to their beliefs, [which] is itself part of the explanation for his historic, and entirely avoidable, comeback."

OK, fine. Let's have that conversation. Let's put aside all talk of racism, sexism, xenophobia, homophobia, or stupidity. What happened on Tuesday was not about any of that; it was about taxes and trade, and/or the overall state of the economy, and/or the rights of trans people, and/or immigration policy, and/or access to abortions, and/or vaccine mandates, and/or any of all of the many other issues on which Harris and Trump had vastly differing views.

My problem with that is that I can't get past the threshold. As I've said before, for me,  involvement in, or overt support for, an attempt to subvert the peaceful transfer of executive power through unconstitutional extra-judicial means is absolutely disqualifying in a presidential candidate.

[I should add that I am not talking about a legally-enforceable disqualification, such as the one enacted as part of the 14th Amendment, or criminal liability, or anything of that nature. I'm talking about my vote – my personal determination of who I think is fit to lead the country.]

I had always thought, to the extent I had occasion to think about it, that pretty much everyone felt pretty much the same way.  There's not much, in our system of government, more fundamental than the idea that we get to choose those who govern us, and that our choice, whatever it may be, will be respected. We can throw the bums out, as needed.  We express our choice(s) through the ballot box.  We have a process, worked out over the last 200+ years, to count up the votes and to declare a winner and a loser, at which point the losers make way and the winners take over. It's pretty basic and pretty straightforward, no?

Obviously, not everyone feels the same way. Many of my fellow-citizens—perhaps even a majority—disagree with me.  I'm trying to understand how that can be true. Just as a matter of logic, it must be that either (a) they don't think that Trump was a participant in the scheme to overturn the 2020 election results, or (b) they don't think that participation in such a scheme is disqualifying in this sense.

Precisely because the American people are not stupid, I rule out (a).  I mean, come on.  It's not like Trump has backtracked, disavowed the scheme, apologized, or, as far as I can recall, said a single critical thing about the members of the armed mob that broke into the Capitol (reserving his  criticism for those who refused to carry out their parts in the scheme, like Mike Pence and Brian Kerr). He was with them in spirit—the pressure on Pence, the fake electors, the phone calls to State election officials, the failure to step in for four hours after the Capitol perimeter was breached, . . . Everybody gets what was going on, right? He did what he did, and he's proud of it.

So it must be (b).

That, I admit, makes me pretty nervous. I don't know what kind of country we have if we no longer have a shared vision of the inviolability of our election results. I guess I'm about to find out.

Is this a case of "trying to understand Trump's appeal in terms that are flattering to my beliefs," in Stephens' terms?  Maybe. I'll let you decide.

So that's the "it" in "we did it." Let me say a few words about the "we."

Americans are proud—justifiably—of living in a place where "we, the people," get to decide who our rulers are going to be.  We weren't the first to come up with the idea, but we were the first to implement it on a large geographic scale, and the processes we have developed to do that, imperfect though it surely is, has stood us in reasonably good stead for over 200 years.  We get, more or less, the government we want, and we resolve our differences about precisely what it is that we want through the ballot box.

Obviously, I didn't elect him.  But he didn't steal the election (though I strongly suspect that he would have tried, as he tried before, had he needed to). He didn't even need the built-in small-state bias of the Electoral College.  As far as I can tell, he won, fair and square.

So that's who we are: The kind of people who would elect this guy to be our President. He speaks now for all of us, including those of us who can't stand him and didn't vote for him. That's the way it works.

So I suppose that means that I can't really complain if he brings about the kind of change he talked about: imposing high tariffs on imported goods, deporting large numbers of undocumented immigrants (and policies designed to stanch the flow of new immigrants into the country), dismantling Obamacare, no new restrictions on armed weaponry, elimination of the child tax credit, relaxation of environmental standards across-the-board, dismantling the federal civil service and the Department of Education, . . . That's what we want, so it's going to be hard to complain if/when he tries to give it to us—at least, not if he does so via legal and constitutional means.

To my way of thinking, it's a nightmare scenario. But it's apparently what we want, and it might well be what we get. I don't think the American people will like living in that country. I could be wrong about that, but I'm already looking forward to the 2026 midterms.

The post Who We Are appeared first on Reason.com.

[Eugene Volokh] What Happens When Someone Is Denied Gun Based on Long-Ago Criminal Case, and the Underlying Court Records are Missing?

From Zundel v. City of Jamestown, handed down Thursday by the North Dakota Supreme Court (opinion by Justice Jerod Tufte):

… Thomas Zundel attempted to buy a firearm, but the purchase was denied when a background check using the National Instant Criminal Background Check System (NICS) revealed a 1990 simple assault charge in Jamestown Municipal Court. NICS showed the charge was continued for a year and Zundel was ordered to participate in counseling. NICS failed to confirm a conviction. Zundel filed a voluntary appeal of the NICS denial with the FBI. The FBI determined the 1990 case was a "potential prohibitor" and told Zundel to contact the Jamestown Police Department to obtain the missing information on the charge within 88 days or the file could not be processed.

Zundel attempted to obtain records from the Stutsman County Clerk of Court and the Jamestown Municipal Clerk of Court, but both responded that they had no records relating to his arrest or conviction or any other records of a court case. He also requested records from the Jamestown Police Department, Jamestown City Attorney, North Dakota BCI, and FBI. None had any records beyond the criminal background check reflecting a 1990 arrest by the Jamestown Police Department for simple assault annotated as "CONTINUED FOR 1 YR PENDING COUNSELING OUTCOME." Zundel explained to the FBI that his search for records had failed and requested a favorable adjudication.

The FBI denied the appeal, holding the absence of a final disposition meant the potentially prohibiting record could not be nullified.

The court refused to just close the assault case outright in a way that would restore Zundel's rights:

Zundel … argues this Court should declare he was not convicted of domestic violence in relation to his November 1990 simple assault charge and his right to possess a firearm was not legally impaired…. Zundel asks us to resolve whether the facts underlying the Jamestown Municipal Court simple assault case from November 1990, or the nature of any resulting conviction, involved domestic violence without any evidence in the record on which we could make such a finding.

But it orders the lower courts to search and, if necessary, supplement the records:

The courts of this state have a fundamental obligation to maintain accurate records of their proceedings. These records serve as the cornerstone of an open and accountable judicial system. This duty is not a matter of mere administrative convenience—it plays a crucial role in upholding the principles of due process and the rule of law. By accurately documenting court proceedings, decisions, and the rationale behind them, courts create an accessible record that allows for public scrutiny, facilitates appellate review, and ensures consistency in the application of law. Accurate and complete court records are essential for background checks for security clearances and sensitive employment positions, ensuring that decision-makers have a comprehensive understanding of an individual's legal history. In criminal proceedings, these records provide crucial information for sentencing decisions and can be used to assess the credibility of witnesses. Furthermore, in family law matters, court records play a pivotal role in informing decisions about parenting time and visitation rights, directly affecting the well-being of children and families

Here, the right to keep and bear arms is implicated; in other situations, the right to vote or restrictions on participation in federal benefits and other programs may be affected. Beyond these examples, court records can also be critical in immigration proceedings, professional licensing decisions, and even in protecting individuals from identity theft or mistaken identity in legal matters. Ultimately, the careful maintenance of court records is essential to the integrity of the judicial system by fostering public trust and safeguarding the rights of all individuals who come before the court, while also serving as a vital resource for personal, professional, and legal decisions that extend far beyond the courtroom….

According to the FBI report attached as an exhibit to this petition, Zundel was arrested by the Jamestown Police Department for simple assault on November 2, 1990. If it had been retained, the missing record of actions for this case would inform Zundel and the public of the disposition of any court case filed as a result of his 1990 arrest. A register of actions containing the disposition of this case should have been indefinitely retained, but the record apparently does not exist….

Courts, as keepers of the record, have an inherent power to restore or substitute lost or destroyed records. "Given the inherent powers of the court to restore its own records, statutory methods for supplying lost records may not be the exclusive method of doing so." A court, including the municipal court here, has a duty to replace or reconstruct the record. Absent a statutory procedure to do so, the court has discretion how to restore the record.

The first logical step is for the custodian to thoroughly search its records in an attempt to locate the record. If the record cannot be located, then a reasonable attempt to reconstruct the record must be made. Reasonable attempts may include seeking copies from other public agencies, litigants, or others likely to have retained copies, or by examining any available related documents. See, e.g., Haney v. Haney (Minn. 1925) (accepting an affidavit made by counsel wherein he detailed the contents of a missing record and explaining "statute authorizes the court to permit a copy to be filed and used instead of a lost file"). The parties may submit their own affidavits or documentary support. See, e.g., N.D.R.App.P. 10(f) (party may prepare a statement of the proceedings from the "best available means" including his own recollection, and opposing party may submit objections to the statement).

Upon request, the court may schedule a hearing to address any missing record to allow interested persons to present any documents or testimony relevant to the inquiry. Ultimately, the court may make findings and enter an order regarding the missing record, detailing the steps taken to locate or reconstruct the missing record and stating the outcome of that effort. That order must be kept as a substitute for the missing record.

We grant the petition in part and order the Jamestown Municipal Court to conduct further proceedings consistent with this opinion….

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[Eugene Volokh] No Gag Order Against Sean Combs Accusers (and Other Prospective Criminal Trial Witnesses)

From Judge Arun Subramanian's opinion Friday in U.S. v. Combs (S.D.N.Y.):

On October 20, 2024, defendant Sean Combs moved for an order prohibiting prospective witnesses and their attorneys from making extrajudicial statements that he argues will substantially interfere with his right to a fair trial. In terms of who those "prospective witnesses" are, Combs clarified that the category includes "all those who claim to be victims." …

Combs's authorities don't support a gag order applicable not only to trial participants, but also to any alleged victim and their lawyer. Local Rule 23.1 doesn't authorize this kind of relief. The limitations of that rule don't even apply to witnesses, let alone prospective ones that haven't yet been identified. They certainly don't apply broadly to any alleged victims and their lawyers.

Even Local Rule 23.1(h), which allows the Court to issue "special order[s]" related to extrajudicial statements, only applies to "parties and witnesses." And to impose a special order, the Court must consider whether it "will be necessary to ensure an impartial jury and must find that other, less extreme available remedies, singly or collectively, are not feasible or would not effectively mitigate the pretrial publicity and bring about a fair trial." Among the remedies that the Court is required to consider are "a searching voir dire, emphatic jury instructions, and sequestration of jurors," matters that Combs hasn't addressed. A "gag order" under Rule 23.1(h) is an extreme remedy "to be issued only as a last resort." What Combs seeks goes even further.

Combs's Sixth Amendment authorities don't support his proposed order either. In Sheppard v. Maxwell (1966), the Supreme Court observed that the "trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters," but it did not indicate that blanket restrictions on potential witnesses, or even more broadly, all alleged victims, would be appropriate. In Neb. Press. Ass'n v. Stuart (1976), the Court only suggested that "trial courts [could] in appropriate cases limit what the contending lawyers, the police, and witnesses may say to anyone."

Combs's other cited authorities are similarly unhelpful. Each allows some restriction on trial participants or the press but says nothing about potential witnesses. See Gentile v. State Bar of Nev. (1991) (upholding restrictions on statements by attorneys); In re Application of Dow Jones & Co. (2d Cir. 1988) (holding that the "district court was justified in considering the imposition of a 'gag' order on trial participants"); Skilling v. United States (2010) (summarizing generally the conditions under which press coverage can interfere with the right to a fair trial).

The only decision Combs identifies that appears to involve a bar on speech by all potential witnesses is United States v. Brown (5th Cir. 2000). In that case, the district court imposed a "gag order prohibiting parties, lawyers, and potential witnesses" from making extrajudicial statements. While the Fifth Circuit upheld this order, it described the order as only affecting "attorneys, parties, [and] witnesses," and its discussion of the constitutional considerations at stake characterized the order as a "restriction on the extrajudicial speech of all trial participants." The Brown court certainly did not address the sweeping First Amendment implications posed by a gag order applying to all alleged victims and their lawyers.

But the Fourth Circuit in In re Murphy-Brown, LLC (4th Cir. 2018), did. That case dealt with an order very similar to what Combs seeks here. Given the "unclear yet extraordinary reach of the phrase 'potential witness,'" which "cannot help but impair legitimate news gathering activities that in and of themselves underlie the proper function of the First Amendment" and "assume[s] all covered individuals [are] identically situated vis-à-vis pending and future litigation," the court rejected the order as "exceed[ing] what would be 'essential to the preservation of a fair trial.'" The Fourth Circuit was also skeptical of how the order would impact "more than twenty cases that will be tried over a period of years," and how it "treated lawyers no differently from parties, who in turn were treated the same as potential witnesses." Just as in Murphy-Brown, the requested order here is incredibly broad, treats potential witnesses identically to their lawyers, and impacts a series of ongoing cases.

The Court has an "affirmative constitutional duty" to ensure that Combs receives a fair trial. Gannett Co., Inc. v. DePasquale (1979). But this essential Sixth Amendment requirement must be balanced with the protections the First Amendment affords to those claiming to be Combs's victims, especially because "prior restraints on speech … are the most serious and the least tolerable infringement on First Amendment rights." "The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights," but the caselaw gives clues as to how to mediate between them when they come into conflict.

For example, those who actively participate in a litigation may legitimately be subject to limitations on their speech, but the Supreme Court treats as significant the "distinction between participants in the litigation and strangers to it." Not all alleged victims will be participants in this case, and a blanket restriction on their speech will silence individuals who may never have anything to do with the proceedings here.

And in any event, less restrictive alternatives must be considered and rejected before imposing a restraint on speech. See Dow Jones ("[B]efore entering an injunction against speech," "other available remedies" like "change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors" must be considered). The sheer reach of Combs's requested order would also necessarily impact the numerous ongoing civil cases involving Combs. See Bellamy v. McMickens (S.D.N.Y. 1988) (refusing to impose a gag order because "[t]he parties [the movant] wishes to silence are not parties to this [lawsuit]" and "[t]he proceedings discussed in the press are not those before this court," and directing the movant to "make a similar request before [the other] tribunal," as "this court [could] not grant him the relief he seeks").

{In addition, the motion requests that the Court "direct these potential witnesses and their counsel to remove all online postings under their control that would offend the Local Rule [23.1]." For the same reasons Combs's proposed gag order is rejected, this further request is denied. Combs also seeks an order "direct[ing] the [G]overnment to disclose" communications in which it allegedly "directed or authorized … extrajudicial statements." The Court expects the Government to adhere to its Brady obligations. As forecasted at the last hearing, the Court will inquire into how the Government has done so at the next hearing. Further relief is unwarranted at this juncture.}

To the extent Combs has a particular concern regarding statements made by attorneys for grand jury witnesses, the Court reminds counsel that the Local Rules clearly state: "With respect to a grand jury or other pending investigation of any criminal matter, a lawyer participating in or associated with the investigation (including … lawyers for targets, subjects, and witnesses in the investigation) shall refrain from making any extrajudicial statement" if "there is a substantial likelihood that the dissemination [of that statement] will interfere with a fair trial or otherwise prejudice the administration of justice." As to statements by grand jury witnesses themselves, under Fed. R. Crim. P. 6(e)(2) "any grand jury witness may disclose publicly anything that occurred therein, including the questions asked of the witness and the answers given." Courts do have discretion to "impos[e] a reasonable obligation of secrecy on grand jury witnesses in an appropriate case." But Combs has only raised statements in the media from a single grand jury witness. He hasn't made an adequate showing why a blanket gag order on all grand jury witnesses is warranted.

"[W]hen [a] case is a 'sensational' one tensions develop between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment." But "[p]rominence does not necessarily produce prejudice," and the Sixth Amendment "does not require ignorance."

Balancing the interests at stake, the Court has already taken steps to limit what can be said publicly, including issuing an order underscoring the requirements of Fed. R. Crim. P. 6(e) and Local Rule 23.1 and further requiring the Government to make those requirements clear to anyone involved in this case. As the Court stated in that order, it will take appropriate action for violations of the rules or this Court's order. The Court is open to other tailored proposals that will help ensure a fair trial.

As to the mounting civil cases against Combs, there are further steps that he can take, including seeking relief in particular cases if the parties or their lawyers have made prejudicial statements to the press, or moving to stay those cases pending the resolution of this one, just to give two examples. However, the unprecedented relief that Combs seeks on this motion is unwarranted.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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[Stephen E. Sachs] In Praise of Ignoring Facts: A Review of Jack Balkin's "Memory and Authority"

Recently I posted a new paper on SSRN, "In Praise of Ignoring Facts." It's a critical review of Jack Balkin's book Memory and Authority: The Uses of History in Constitutional Interpretation, part of a symposium on the book organized by the William & Mary Bill of Rights Journal. Here's the abstract:

Lawyers and judges invoke history for lots of reasons, some of them purely rhetorical or instrumental. That's why we academics have to hold their feet to the fire, sifting through their arguments for the implicit theories that treat some historical facts as more significant than others. Yet much modern con-law literature takes precisely the opposite tack, criticizing this effort at theoretical abstraction and parsimony as a form of intellectual blinders.

Jack Balkin's Memory and Authority offers an admirable account of how American lawyers make use of history. But treating every use of history, including every instrumental use, as equally authoritative for the law is fatal to any theoretical project. That includes Balkin's own "thin" theory of constitutional law, which stretches itself past the breaking point to accommodate the changing winds of social movements or modern demands for legitimacy. Instead, constitutional theory needs more theory: less court- or lawyer-watching and more effort to distinguish the content of the law from everything else that shapes what courts and lawyers do.

And from the introduction:

Contracts students may remember the old chestnut of Cotnam v. Wisdom, in which a Mr. A. M. Harrison "was thrown from a street car" and, while unconscious, treated by doctors who couldn't revive him. The Arkansas courts saw the case as one of quasi-contract, asking whether the doctors were due a reasonable fee, and also whether their award should be reduced for their lack of success or increased given the estate's ability to pay. When my wife and I were in law school, though, a classmate of hers raised a different question: whether Harrison, rather than having been "thrown" from the car, might actually have committed suicide. Rather well-insured for a bachelor, might he have leapt from the car on purpose, hoping his nieces and nephews might benefit by his death?

To normal people actually concerned with these actual events, this question might seem far more interesting. Even lawyers (a distinct category) might in their spare time enjoy looking beyond the casebooks to find out what really happened. But when they're "on the job," so to speak, a question like this might seem the worst sort of irrelevance—illuminating nothing of importance, neither the measure of damages owed nor the general principles of quasi-contract. Among weirdos like us, who cares whether Harry James Tompkins lied about being struck by something protruding from an Erie Railroad car, if we can instead argue about when federal judges should defer to state court opinions? Who cares about the unfairness to a defendant that the light was actually green, once a properly instructed jury, on sufficient evidence, has returned a verdict that it was red?

This ordinary-person's sense of priorities is part of what we brutally beat out of first-year law students in training them to "think like a lawyer": not (or not just) for the reproduction of hierarchy, but because the particular corner of human culture known as law cares more about some facts than others. "Quasi-contract," "corporation," "collateral estoppel," and all our other rules and doctrines are designed to produce a simplified, machine-readable picture of the world, a picture that can sometimes treat like cases alike only because it little resembles the tangled way the world really is. And a fundamental part of lawyering is knowing which of these facts matter when—practically or legally, in the conference room or the courtroom, before the jury or the bench, at trial or on appeal.

So one might expect lawyers and legal theorists to appreciate efforts at theoretical clarity, attaching significance to certain facts over others and defending these choices on straightforward theoretical grounds. Yet much modern con-law literature takes precisely the opposite tack—treating the very act of throwing away information as suspicious and criticizing the abstraction necessary for clear thought as a form of intellectual blinders.

To Jack Balkin, to whose book Memory and Authority this Symposium is dedicated, "[c]onservative originalism is a practice of erasure," so stingy in its use of historical facts that it "finds large portions of the American experience (and the American population) irrelevant" to the Constitution's proper understanding. Its focus on Founding-era law treats "all other uses of history, all other periods of history, and, indeed, all of the other places on Earth where history occurred" as "of limited importance." Its "bounded conception of constitutional memory" ignores features of the past "not relevant to its theoretical claims," "stiff-arming historians" and "setting boundaries on how other lawyers should use history." Indeed, "conservative" originalism risks not just inaccuracy but injustice, entrenching the past exclusion of women, ethnic minorities, and other "groups shut out of formal constitution-making."

None of this might matter if originalism could defend its choice of emphasis and pay its own way. But rather than "debat[e] the pros and cons of originalism" at level of theory, Balkin suggests, we'll learn more if we "focus instead on how people actually make constitutional claims." Memory and Authority offers an account of "how people use history when they interpret the Constitution," employing "modalities" or "forms of argument" to gain "authority" for their own claims and to "undermine[]" those of others. That's the right focus, the book contends, because "[t]he structure of legal rhetoric reflects the structure of legal reasoning."

This last argument is a step too far, for not all legal rhetoric is created equal. As a study of rhetoric, Memory and Authority establishes that lawyers, judges, and others in our legal system use history for a variety of rhetorical purposes. But while it accepts that every form of argument is backed by an "implicit theory" of which facts matter, the book refuses to judge these forms of legal rhetoric by how plausible their implicit theories might be—and, what's more, criticizes others for doing so. Instead, on its telling, any attempt to corral the rhetorical use of history is necessarily doomed, because lawyers "interested in endless disputation" will always "want to persuade audiences and win arguments with their opponents," searching "for ever new historical sources and approaches" whether their underlying theories are sensible or not.

In other words, Memory and Authority sees American lawyers as using history the way Tonya Harding might use a crowbar, to kneecap their opponents whenever they think they can get away with it. But just as the attack on Nancy Kerrigan served only as indirect and limited evidence of the rules of United States Figure Skating, lawyers' rhetorical use of history serves only as indirect and limited evidence of the content of American law.

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to Balkin's own "thin" theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates' rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of what American constitutional law provides ought to be responsible to a theory of what American law provides, which in turn ought to be responsible to a theory of legal content more generally. Or, to put it in slogan form, constitutional theory needs more theory—less court- or lawyer-watching and more concern about distinguishing the content of the law from the many other law-adjacent phenomena in a complex society like ours.

This approach sometimes goes under the bad name of "the methodological autonomy of law"—as if law were made in a vacuum, without any involvement from politics, economics, or real-life human beings. But methodological autonomy is part of how we learn things about a complex and interrelated world. Our social world is chock-full of different and overlapping systems of norms, principles, rules, and standards; understanding them often means sorting through all of them and attributing different practices, criticisms, or evaluations to different systems. We might need to distinguish, say, norms of etiquette from norms of fashion, even as a guest's wearing a long white dress to a wedding offends against both. Or we might need to separate legal norms (like the rule against perpetuities) from the many nonlegal customs of lawyers, such as wearing morning coats, opening arguments with "May it please the Court," or adopting certain styles of historical rhetoric. To refuse to draw these distinctions simply because they all affect us in practice—because we human beings have to act under all of them at once—makes our analysis less sophisticated rather than more so; it flattens, rather than enhances, our understanding of the social world.

As they say, read the whole thing!

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[Josh Blackman] Part VII: Expanding the Scope of the Due Process Clause

Lochner v. New York (1905)

"Economic" Liberty in the Progressive Era Muller v. Oregon (1908)
Buchanan v. Warley (1917)
Adkins v. Children's Hospital (1923)

"Personal" Liberty in the Progressive Era Meyer v. Nebraska (1923)
Pierce v. Society of Sisters (1925)
Buck v. Bell (1927)

"Economic" Liberty Through the New Deal O'Gorman & Young, Inc. v. Hartford Fire Insurance Co. (1931) Nebbia v. New York (1933) West Coast Hotel v. Parrish (1937)

"Economic" Liberty After the New Deal United States v. Carolene Products (1938)
Williamson v. Lee Optical (1955)

 

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[Josh Blackman] An Interview with Judge James C. Ho

Q: Judge Amul Thapar of the Sixth Circuit recently criticized the law clerk hiring boycott that you and others launched earlier this year against Columbia. Judge Kevin Newsom of the Eleventh Circuit made similar criticisms on a podcast hosted by The Dispatch . On the other hand, Judge Matthew Solomson of the Court of Federal Claims has been quite vocal in defending your efforts, including an extended interview with me here . Other than joining the judges' letter, I don't think you've said anything publicly about Columbia to date. Would you like to say anything here, just as Judge Solomson did?

Sure, but let me start by explaining why I haven't been speaking about the boycott. I gave my speech about Yale in 2022, and about Stanford in 2023. At that time, Judge Solomson publicly stated that he didn't agree with the boycott. Then, earlier this year, as conditions at Columbia worsened following October 7, he called me out of the blue and asked if I would consider extending the boycott to Columbia. I responded that, if he wanted to lead such an effort, of course I would support him.

I've been very happy for Judge Solomson to take the lead. He has demonstrated inspiring leadership. There's absolutely nothing wrong with people changing their minds. Indeed, I applaud and admire him for doing it—just as I deeply admire Judge Lisa Branch of the Eleventh Circuit for being the first to jump in. I sincerely hope others will do the same.

It's in that spirit that I wish to warmly welcome Judge Thapar to the conversation. He's made clear that it's absolutely appropriate for judges to be troubled about what's happening on campus, and to want to do something about it. We're just negotiating over terms at this point.

He proposes to have donors and legislators do the heavy lifting of divesting from intolerant institutions. I'm delighted, of course, for any citizen to take action to protect our country against the bigotry and intolerance being spread by certain institutions.

What I'm not interested in doing, however, is passing the buck. Why shouldn't judges stand up and take responsibility as well? Why can't we do both?

My colleagues say they worry about the impact of a boycott on individual law students. I'll confess that I have never understood this argument. Because it's a losing attitude. We should have a winning attitude. If we only focus on losses if a boycott fails, then no one would ever boycott. That's not how rational people make decisions. Rational people look at the benefits of success as well as the costs of failure. They also consider the probability of success vs. failure. As I tell my law clerks, there are two types of people in the legal profession—fighters and climbers. Fighters always assume that we have a chance to win. And smart fighters make rational, intelligent decisions about when to fight.

So imagine this: If a dozen or two dozen federal circuit judges all took this action, how would these schools respond? Would they say, well, that's okay, our students will just go to law firms, they'll find other places to work. Or will they care about clerkships?

I'd submit that it should cost essentially nothing to take this action. Enough of us would have a major impact. Schools would stop the intolerance to regain the prestige. And there would be no cost to anyone as a result. Indeed, Lisa and I have both heard from a number of folks—at Yale and elsewhere—who say that just the two of us have made a meaningful impact.

For many years, Justice Brennan hired exclusively from Harvard. Then he boycotted Harvard (for far less publicly spirited reasons—e.g., he didn't like how Harvard professors treated him and his work). After boycotting for three years, he eventually got what he wanted from Harvard (public displays of respect). So he went back to hiring from Harvard (although much less frequently). See Stephen Wermiel, Justice Brennan and His Law Clerks, 98 Marquette L. Rev. 367, 372 (2014); Owen Fiss, Pillars of Justice 46 (2017); Seth Stern & Stephen Wermiel, Justice Brennan 204-5, 276-77 (2010).

Justice Brennan isn't the only Justice to view law clerk hiring as a means to a broader end. During oral argument in the Harvard case, Justice Kagan noted that many judges make special efforts to hire racially diverse law clerks out of a desire to further social change. Surely other judges can adopt hiring policies out of a desire to combat antisemitism and religious bigotry at certain colleges and universities.

Look, let's not pretend that every federal judge looks at clerkship applicants without regard to which law school they went to. Justice Scalia said publicly that he would never hire a law clerk from Ohio State—even though he personally knows extraordinarily well qualified students who graduated from Ohio State.

The only question is which schools we choose to favor or disfavor, and why. Countless judges hire only from certain schools, or have a strong preference for their alma mater, or prefer schools in their geographic region. I hire from a broader range of law schools than many of my colleagues. But I'm not excited about hiring from law schools that welcome intolerance.

Q: Speaking of academia: You recently said that, "in the six years that I've been a judge, I've come to an understanding about academic commentary about the Supreme Court: Too many academics regard the views of half the country as garbage." Would you like to explain?

Law professors today behave much more politically, and less intellectually, than when I was in law school. Law professors today frequently condemn anyone who disagrees with cultural elites on any issue. We're unacceptable and unwelcome in polite society. I don't have any grand theories about why that is, although I assume one cause is technology and media. Law professors today know that, if they engage in a certain kind of commentary, they'll be cheered by elites, quoted by the media, featured on television, and invited to climb the academic prestige ladder.

Whatever the cause, I think the effect is obvious. We can look at specific issues—like the absurd ethics attacks on the Supreme Court, or on single judge divisions. I've spoken and written about each of those topics and won't belabor them here. But I think we also need to zoom out and see the bigger picture.

Because the overall message coming from the legal academy as well as the mainstream media is simply this: The judiciary is not to be trusted.

But that gets things entirely backwards. I think the real message we should draw is that the academy and the mainstream media are no longer to be trusted to talk about the judiciary.

Because an originalist judiciary is nothing to be afraid of. An originalist judiciary simply does what society tells it to do—through the Constitution that is beloved by the people, and through the laws that are enacted by legislators chosen by the people.

An originalist judiciary is not a sword—it's a mirror. If you believe in democracy, then you should believe in originalism. So if you don't like having an originalist judiciary, perhaps it's because you don't like America.

That's why I've said that, in the six years that I've been a judge, I've come to an understanding about academic commentary about the Supreme Court: Too many academics regard the views of half the country as garbage. Too many of them believe that any judge who follows the written Constitution, rather than a woke constitution, deserves to be trashed.

Q: One of your opinions that has been recently trashed by academics concerns the states having the power to declare illegal immigration as an invasion. Some critics have charged you with being hostile to immigrants. This criticism is a bit rich, considering you are yourself an immigrant. And you've argued in support of constitutional birthright citizenship —a topic that I agree with you on . Is the criticism of your invasion opinion the kind of academic commentary that you were thinking of?

I'm not going to talk about any pending case, of course. But anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion. Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn't apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can't imagine what the legal argument for that would be. It's like the debate over unlawful combatants after 9/11. Everyone agrees that birthright citizenship doesn't apply to the children of lawful combatants. And it's hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.

Q: I've given talks about the Fifth Circuit. I've analyzed en banc votes and cautioned audiences to ignore the critics and recognize that judges are not monolithic, but can be quite different from one another. Were you surprised that no one joined your opinion about invasion , or your opinion about in-state college tuition discounts for illegal aliens?

Well, we are certainly not monolithic. I don't know of any group of passionate Americans that is. And you're certainly right that the critics largely don't know what they're talking about—and what's more, I don't think they care. I have a saying in my chambers—nobody reads.

We're not monolithic at all. But each of us loves our families, cares for our friends, and believes in public service. I love this country, and they do, too. I wasn't born in this country. So I didn't come into this world as an American. But I thank God every day that I will leave this world as an American. If I may return briefly to the topic of the boycott for a moment, we need to recommit ourselves to teaching the next generation of citizens and leaders that we're going to disagree on issues, and that's okay—in fact, that's what makes our country the most successful in human history—that we can take over 300 million passionate Americans and accept that we're going to disagree on every issue under the sun, yet still work together, because there is far more than unites us than divides us.

So yes, we can each have our different positions and approaches, and still respect and work with each other as fellow citizens, neighbors, friends, and co-workers. Everyone comes to their views through their own process. For me, I'm an originalist. Of course, a lot of people say that, and mean different things. So I'll say a bit more. I try my very best to faithfully follow the text and original understanding of whatever provision is before me, to the maximum extent permitted by governing precedent—without regard to either public pressure or personal preference.

But make no mistake: Cultural elites in our country are firmly committed to pressuring judges to reach results that they want. And they do it because it works. That's a common theme of some of my past speeches—what I call "fair-weather originalism." I firmly believe that we should either embrace the pressure, or pursue another line of work. Because pressure is part of the job. So if you see pressure as a problem, then this is not the job for you. If you're going to do this job, you need to see pressure as a privilege, not as a problem. I'm deeply privileged to serve on the U.S. Court of Appeals for the Fifth Circuit with each and every one of my colleagues, whether we agree on every case or not.

And we Texans are deeply privileged to be represented by such dedicated jurists on the Fifth Circuit, whether we agree with every case or not. Thank you Judge Ho.

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[Josh Blackman] President Elect Trump's Tweet About Recess Appointments

We are only a few days removed from Trump's victory in the 2024 election, and his social media is already causing consternation about constitutional clauses.

Today, Trump tweeted:

Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner. Sometimes the votes can take two years, or more. This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY! Additionally, no Judges should be approved during this period of time because the Democrats are looking to ram through their Judges as the Republicans fight over Leadership. THIS IS NOT ACCEPTABLE. THANK YOU!

As could be expected, the Washington Post completely misconstrued the argument here:

Trump, who last year promised that he will be dictator "for Day One" of his presidency and has repeatedly expressed admiration for authoritarian leaders, insisted that the next Senate Republican leader make it possible for him to fast-track his nominations over any opposition.

Writing on Truth Social on Sunday, Trump said: "Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner."

In April 2020, frustrated with the Senate's speed in confirming his nominees, then-President Trump threated [sic] to take the unprecedented step of unilaterally adjourning Congress to make recess appointments. Next year, Republicans are on track to have at least 53 senators, a comfortable majority to approve nominations, but Trump seemed to indicate that wasn't sufficient for his choices for federal jobs and judicial vacancies.

There are so many things wrong with this reporting.

First, there is no longer a judicial filibuster for executive branch appointments. Nothing would stop the majority party from confirming Trump's nominees with at least fifty votes, plus Vice President Vance's tie-breaking vote if needed. The reason why there may be delays would be due to Senate Democrats. As always, the minority party can use a range of procedural blocks to slow down the process, even if they cannot block the nomination outright. Trump's reference to votes taking up to two years reflects this sort of gridlock. The Recess Appointment Clause would only allow Trump to expedite appointing people if the minority party is throwing up roadblocks.

Second, in order for the President to make a recess appointment, the Senate must adjourn for (presumptively) ten days. I say presumptively, because Justice Breyer in Noel Canning couldn't have been bothered to provide a bright line rule. What does it take for the Senate to adjourn for ten days? The House would also have to agree for an adjournment of that length. Remember, one House cannot adjourn for more than three days without the consent of the other House. In other words, it would take a majority vote in the Senate, and a majority vote in the House, to create a recess of the requisite length. The Senate cannot allow Trump to make a recess appointment unilaterally. While confirming a nominee with fifty votes allows Senate Democrats to throw up procedural roadblocks, requiring the House's consent to adjourn creates even more opportunities for House Democrats to throw up procedural roadblocks. And the Republicans will likely have a razor-thin majority in the House. The Recess Appointment route does not seem that much simpler. More likely than not, if the House and Senate are an extended recess during the Summer or Christmas break, there would be no pro forma sessions, and Trump could make some recess appointments.

Third, there is nothing dictatorial about the the President and Senate using a process spelled out in the Constitution. The Recess Appointment Clause appears in Article II. If there is a recess of ten days, the President can make a recess appointment. Much fault lies with the Obama Administration, which attempted to make a recess appointment during the three-day breaks between pro forma sessions. That move was rejected 9-0 in Noel Canning. If President Trump makes an appointment during a ten-day break, he will have complied with Noel Canning. He would not be a dictator. Moreover, the Adjournment Clause is also in the Constitution. And Justice Scalia's Noel Canning concurrence cited that provision as a mechanism for the President to deal with congressional intransigence:

The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, §3 ("[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper"). Moreover, the President and Senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view.

Scalia is right. The adjournment clause has never been invoked. I wrote about Trump's consideration of using it in April 2020. And in December 2020, a prominent progressive professor said Biden should use it. Hardball, as they say. Of course, the Court can revisit Justice Scalia's, and hold (correctly) that the vacancy must arise during the recess of the Senate. But until then, Trump is entitled to rely on the same Supreme Court precedents that all presidents can rely upon.

I look forward to four more years of outrage based on misunderstandings of the Constitution.

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[Jonathan H. Adler] Federal Judge Rescinds Decision to Take Senior Status

In October 2023, Judge Algenon Marbley of the Southern District of Ohio announced his intention to assume senior status upon the confirmation of his successor. The White House never nominated someone to fill Marbley's seat, however. Senators Sherrod Brown and J.D. Vance could not agree on a suitable replacement, so no pick was named.

Last week, Judge Marbley informed the White House of a change of plans. Judge Marbley no longer intends to take senior status, presumably because he does not want Donald Trump to nominate his replacement.

Judge Marbley's decision means that Trump will have one less federal judicial vacancy to fill—and there are likely to be fewer judicial vacancies in the next four years than there were over the past four years or during Trump's first term.

Will Judge Marbley be the only judge to rescind a previously announced intention to go senior? We will see. According to the Administrative Office of the U.S. Courts, there are eight additional federal judges who have announced an intention to go senior and retire, but for which no potential replacement has been nominated. Some have identified a date certain upon which they expect to leave active service, others have not. There are an additional eleven judges who have announced an intent to leave active service for which the Biden White House has nominated a replacement.

In 1968 Chief Justice Earl Warren announced his intention to retire upon the confirmation of his successor, thinking that President Johnson would name his replacement, but it was not to be. The Senate refused to elevate Associate Justice Abe Fortas to Chief Justice, and so Homer Thornberry was not confirmed to the Court before the election. There is little doubt Chief Justice Warren was displeased that newly elected President Richard Nixon would name his successor, but he apparently thought it would be inappropriate to rescind his retirement announcement due to election results, lest his decisions appear too political. This gave Nixon the opportunity to appoint Warren Burger as Chief Justice, and the rest is history.

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