Eugene Volokh's Blog, page 265

[Eugene Volokh] The Importance of Decisions About Whether to Permit Pseudonymity

I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ. This Part explains why the question is important, which is part of the reason why we think the Court should take its time to review the matter; other Parts, which I'll blog shortly, explain how and why the decisions below are in conflict and therefore need the Court's attention.

Many of our readers may already be familiar with the arguments I lay out below, but this is my attempt to relatively crisply put them together.

[I.] Decisions about whether to permit pseudonymity are important to the public, to litigants, and to the justice system

[A.] Such decisions are important to the public

Public access to information about civil cases "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988). This access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and the Judiciary's "institutional integrity." Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir. 2014). "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).

"[A]nonymous litigation" thus "runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." Doe v. Village of Deerfield, 819 F.3d 372, 377 (7th Cir. 2016). "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997).

Party names often offer the best clue for discovering further information about the case. Consider journalists who write about civil litigation. Without party names, they are limited to what they can glean from the filings and what the pseudonymous parties' lawyers are willing to reveal.

But armed with the names, they can investigate further. They can contact the parties' coworkers, business associates, or acquaintances. They can search court records in other cases to determine whether the fact pattern in this case had led to other litigation. They can more generally see what other cases have been filed by the plaintiff or against the defendant and see whether the parties have been found to be credible or not credible in the past. They can determine whether the parties might have ulterior motives for litigating. See Volokh, The Law of Pseudonymous Litigation, at 1370-72.

Pseudonymity also tends to lead to additional restrictions on public access as a case unfolds. Because filed documents will often contain information that indirectly identify a pseudonymous party, courts may need to outright seal other case information or enjoin a party from publicly revealing the pseudonymous party's name (or other details of the lawsuit) in order to maintain effective pseudonymity. See id. at 1372-76.

And allowing pseudonymity in one case invites pseudonymization of all other cases that raise similar concerns, "open[ing] the door to parties proceeding pseudonymously in an incalculable number of lawsuits" of that kind. Doe v. Moreland, No. 18-cv-800, 2019 WL 2336435, *2 (D.D.C. Feb. 21, 2019); see also Doe v. Fedcap Rehab. Servs., Inc., No. 17-cv-08220, 2018 WL 2021588, *3 (S.D.N.Y. Apr. 27, 2018) ("At bottom, Plaintiff wants what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it."); Volokh, supra, at 1451-56.

Courts have therefore treated litigating under a pseudonym as implicating the right of public access to judicial proceedings. See, e.g., In re Sealed Case, 931 F.3d 92, 96 (D.C. Cir. 2019); Pub. Citizen, 749 F.3d at 274; Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001). And, because of this, all "circuit courts that have considered the matter have recognized a strong presumption against the use of pseudonyms in civil litigation." Does 1-3 v. Mills, 39 F.4th 20, 25 (1st Cir. 2022).

[B.] Decisions about whether to permit pseudonymity are important to enforcement of legal rules

At the same time, denying pseudonymity can also undermine the public policy that the civil causes of action are aimed to serve. Plaintiffs faced with the prospect of being publicly identified might choose not to litigate, and might thus forgo the remedies that civil causes of action exist to provide.

Likewise, defendants who cannot litigate pseudo­nymously might settle before complaints are filed, even if they have sound legal or factual defenses. The underlying causes of action (or defenses) may end up being underenforced, and useful precedent may end up being underproduced. Sometimes courts allow pseudo­nymity in part to avoid this deterrent effect, reasoning, for instance, that

[D]enying plaintiff the use of a pseudonym[] may deter other people who are suffering from mental illnesses from suing in order to vindicate their rights, merely because they fear that they will be stigmatized in their community if they are forced to bring suit under their true identity. Indeed, unscrupulous insurance companies may be encouraged to deny valid claims with the expectation that these individuals will not pursue their rights in court.

Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 468 (E.D. Pa. 1997); see also, e.g., Doe v. Lund's Fisheries, Inc., No. 20-cv-11306, 2020 WL 6749972, *3 (D.N.J. Nov. 17, 2020) (sexual assault case); Doe v. Oshrin, 299 F.R.D. 100, 104 (D.N.J. 2014) (child pornography case); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1073 (9th Cir. 2000) (employee rights case); Doe v. Innovative Enters., Inc., No. 20-cv-00107, 4-5 (E.D. Va. Aug. 25, 2020) (LEXIS, Dockets) (case alleging wrongful disclosure of expunged criminal records).

Courts sometimes allow pseudonymity based on such concerns and sometimes reject it despite such concerns. But the point for purposes of this petition is that the question of when to allow pseudonymity is important to our civil justice system.

[C.] Pseudonymity can be unfair to the non-pseudonymous party

[1.] Pseudonymity can create a "risk of unfairness to the opposing party," even when the defendant knows the plaintiff's identity. In re Sealed Case, 931 F.3d at 97. "Fundamental fairness suggests that defendants are prejudiced when required to defend themselves publicly before a jury while plaintiffs make accusations from behind a cloak of anonymity." Rapp v. Fowler [Kevin Spacey], 537 F. Supp. 3d 521, 531-32 (S.D.N.Y. 2021) (cleaned up). "[Plaintiff] has denied [defendant] the shelter of anonymity—yet it is [defendant], and not the plaintiff, who faces disgrace if the complaint's allegations can be substantiated. And if the complaint's allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability." Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005); see also Volokh, supra, at 1448-51 (citing dozens of cases where courts raise this concern).

[2.] This risk exists because plaintiffs' complaints that publicly identify defendants may draw attention from the media, defendants' business partners, and others. Defendants might find their reputations sharply undermined by the allegations alone, long before the allegations are ultimately adjudicated. Normally, defendants can respond by arguing why plaintiff's claims are unreliable. But if the plaintiff is pseudonymous, such public self-defense may become much harder:

The defendants … have a powerful interest in being able to respond publicly to defend their reputations [against plaintiff's allegations] … in … situations where the claims in the lawsuit may be of interest to those with whom the defendants have business or other dealings. Part of that defense will ordinarily include direct challenges to the plaintiff's credibility, which may well be affected by the facts plaintiff prefers to keep secret here: his history of mental health problems and his history of substance abuse. Those may be sensitive subjects, but they are at the heart of plaintiff's credibility in making the serious accusations he has made here. He cannot use his privacy interests as a shelter from which he can safely hurl these accusations without subjecting himself to public scrutiny, even if that public scrutiny includes scorn and criticism.

Doe v. Ind. Black Expo., Inc., 923 F. Supp. 137, 142 (S.D. Ind. 1996); see also Volokh, supra, at 1380-81 (citing other cases making this argument).

Sometimes pseudonymity orders are backed by gag orders that expressly forbid defendants from naming their accusers, and thus forbid defendants from effectively defending themselves against the accusations. See, e.g., Doe v. Mast, No. 3:22-cv-00049, 2024 WL 3850450, *10 n.12 (W.D. Va. Aug. 16, 2024) (endorsing such gag orders); Volokh, supra, at 1375-76 (discussing them). But even where there is no gag order, few defendants would likely feel safe publicly identifying a plaintiff in whose favor the judge had issued a pseudonymity order. See Volokh, supra, at 1381.

[3.] When parties have litigated pseudonymously in past cases, this makes it harder for their current adversaries to uncover relevant information, such as statements that are inconsistent with their claims in a later case, especially ones that could be viewed as judicial admissions, cf., e.g., Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 456 n.1 (W.D.N.Y. 2011) ("Having successfully persuaded a different federal district court that his domicile … was New York, [Facebook founder Mark] Zuckerberg would be judicially estopped from denying otherwise now."). And sometimes litigant history is helpful to get a general sense of a party's credibility and behavior. See, e.g., Bormuth v. County of Jackson, 870 F.3d 494, 524 (6th Cir. 2017) (en banc) (Sutton, J., concurring) ("[L]ower court decisions … show why the council members became frustrated with Mr. Bormuth and confirm that this frustration had little to do with his religious beliefs and more to do with his methods of advocacy. This was not his first legal grievance, to put it mildly.").

[4.] Permitting pseudonymity can also alter settlement values. "While a publicly accused defendant might be eager to settle in order to get its name out of the public eye, a pseudonymous plaintiff might hold out for a larger settlement because they face no such reputational risk." Fedcap Rehab. Servs., 2018 WL 2021588, *2. This is one reason some courts are reluctant to permit plaintiffs to be pseudonymous when they have named the defendants. See Volokh, supra, 1381-82 (collecting cases).

To be sure, sometimes this alteration might lead to more just results: In some cases, the plaintiff may risk serious reputational or privacy damage if he or she must be identified, but the defendant does not face such risk. If that is so, then the defendant might be able to get away with an unfairly low settlement, and plaintiff pseudonymity might correct that. But in either case, the decision whether to permit pseudonymity is important to the parties.

[D.] Pseudonymity can reduce risk of physical, privacy, reputational, and economic harm

While permitting pseudonymity can be unfairly harmful, forbidding it can be as well. Sometimes a party may face the risk of physical harm if the party's identity is disclosed. See Volokh, supra, at 1397-99. That is often considered for plaintiffs, but may also apply to defendants, for instance if the defendant is accused of a serious offense—sexual assault of a child, fraud against vulnerable clients, and the like—and faces vigilante attacks if identified.

Going forward under one's own name could sometimes require the party to disclose highly private information, such as mental illness, physical illness, sexual orientation, or the fact of a past sexual assault. See id. at 1406, 1409-11.

And going forward under one's own name often jeopardizes a party's reputation and economic prospects. Named defendants accused of fraud or malpractice might face financial ruin because of lost business, even if they are eventually vindicated in court. This is particularly clear for defendants such as celebrities or politicians, since allegations against them may make the news. But it also applies even for ordinary people, given the modern tendency to do online searches to investigate prospective employees or service providers.

Named plaintiffs who sue their ex-employers might be viewed as litigious employees by potential future employers. Named plaintiffs who sue universities over alleged wrongful sexual assault findings in Title IX proceedings will be publicly identified as alleged rapists and may lose job opportunities even if they ultimately win their cases. See id. at 1416-23. Named plaintiffs bringing controversial claims may face viral Internet shaming. Ressler, #WorstPlaintiffEver, at 781-83.

To be sure, pseudonymity is not always allowed in such cases. Loosely speaking, courts generally allow pseudonymity to avoid serious risk of physical harm, sometimes allow it to avoid privacy harm, and rarely allow it to avoid reputational or economic harm (except in Title IX wrongful discipline cases). But again, the point here is that the law of pseudonymity can be tremendously important to litigants' lives.

[E.] Pseudonymity can affect the accuracy and efficiency of the judicial process

Pseudonymity can also affect the accuracy of factfinding.

[1.] A named witness, including a party acting as a witness, "may feel more inhibited than a pseudonymous witness from fabricating or embellishing an account." Doe v. Delta Airlines Inc., 310 F.R.D. 222, 225 (S.D.N.Y. 2015), aff'd, 672 F. App'x 48 (2d Cir. 2016). And if the party witness is not telling the truth, "there is certainly a countervailing public interest in knowing the [witness's] identity." Roe v. Does 1-11, No. 20-cv-3788, 2020 WL 6152174, *5 (E.D.N.Y. Oct. 14, 2020).

[2.] Pseudonymity may also alienate potential witnesses. Asking a witness questions about the plaintiff requires mentioning the plaintiff's name. But if the court wants to maintain pseudonymity, then the witness would have to be put under a protective order. See Volokh, supra, at 1385 n.151 (collecting examples). Many people, however, are likely to resist becoming witnesses if that means agreeing to a protective order—especially when the obligation relates to an acquaintance. See, e.g., S.Y. v. Choice Hotels Int'l, Inc., No. 20-cv-118, 2021 WL 4167677, *4-5 (M.D. Fla. Sept. 14, 2021) (rejecting witness gag orders to avoid "a situation where an acquaintance or family member … would need to sign an agreement prohibiting them from ever revealing information related to plaintiff's identity, thus making it impracticable and likely to deter witnesses").

[3.] When this Court recognized a public right of access to criminal trials, Justice Brennan noted that such publicity can cause otherwise unknown witnesses to come forward. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596-97 (1980) (Brennan, J., concurring). The same might be true in civil cases: "It is conceivable that witnesses, upon the disclosure of Doe's name, will 'step forward [at trial] with valuable information about the events or the credibility of witnesses." Delta Airlines, 310 F.R.D. at 225 (citation omitted). But if one side is pseudonymous, "information about only [the other] side may thus come to light." Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y. 2006). But see Doe v. Purdue Univ., No. 18-cv-72, 2019 WL 1960261, *4 (N.D. Ind. Apr. 30, 2019) (rejecting this concern as too speculative).

[4.] Pseudonymity may also prejudice the jury by "risk[ing] … giving [the party's] claim greater stature or dignity," Lawson v. Rubin, No. 17-cv-6404, 2019 WL 5291205, *3 (E.D.N.Y. Oct. 18, 2019) (quotation marks omitted), or by implicitly "tarnish[ing]" a defendant by conveying to the jury "the unsupported contention that the [defendant] will seek to retaliate against [the plaintiff]." Tolton v. Day, No. 19-cv-945, 2019 WL 4305789, *4 (D.D.C. Sept. 11, 2019). "[T]he very knowledge by the jury that pseudonyms were being used would convey a message to the fact-finder that the court thought there was merit to the plaintiffs' claims of intangible harms." James v. Jacobson, 6 F.3d 233, 240-41 (4th Cir. 1993).

[5.] Pseudonymity can also confuse the jury. "[W]itnesses, who know Plaintiff by her true name, may come across as less credible if they are struggling to remember to use Plaintiff's pseudonym." Doe v. Elson S Floyd Coll. of Med. at Wash. State Univ., No. 20-cv-00145, 2021 WL 4197366, *3 (E.D. Wash. Mar. 24, 2021). And "[i]n the event a witness inadvertently testified to a plaintiff's real name, the Court would have to immediately excuse the jury in the middle of critical testimony, admonish the witness, and provide a limiting instruction, which may signal to the jury that either the attorney or the witness acted improperly." Lawson, 2019 WL 5291205, *3.

[6.] Pseudonymity also impedes courts' ability to identify vexatious litigants by concealing a party's litigation history. See, e.g., O.L. v. Jara, No. 21-55740, 2022 WL 1499656, *3 n.1 (9th Cir. May 12, 2022) (noting that "O.L. makes it difficult to track her cases because she uses initials or pseudonyms," and warning that "[f]lagrant abuse of the judicial process" through such tactics "cannot be tolerated" (citation omitted)); Volokh, supra, at 1388-90 (giving more examples).

[7.] The inability to easily find a party's past pseudonymous cases can make it more difficult to "apply legal principles of res judicata and collateral estoppel." Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000); see also Volokh, supra, at 1389 n.171 (detailing cases where courts expressed this concern).

Lower courts have of course allowed pseudonymity in certain cases despite those arguments. Among other things, for instance, courts sometimes allow pseudonymity before trial but state that the parties will have to be identified at trial, thus avoiding possibly confusing or prejudicing jurors. See Volokh, supra, at 1391. But these considerations again help show the importance of decisions about when pseudonymity should be allowed.

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[David Bernstein] The Justice Department is Failing American Jews

[Hamasnik protestors are violating various federal laws, and the Justice Department is doing nothing about it]

[Cross-posted with my Times of Israel blog]

As Times of Israel readers are well-aware, since October 7, anti-Israel groups have launched widespread assaults on the rights of Jewish Americans, especially but not exclusively on college campuses.

I regularly tweet (@ProfDBernstein) about these incidents and comment, "Where is the Justice Department? Where is the FBI?"

I often get responses like, "isn't the Department of Education investigating some of these colleges? What can the feds really do?"

The answer is that "the feds," and the Department of Justice in particular, could do a lot to protect American Jews, and they are doing little to none of it.

Here are some examples.

(1) The Ku Klux Klan Act prohibits conspiracies to deprive Americans of their civil rights. This Act could be invoked against student groups that are blocking Jewish students from traversing their campuses, as at UCLA, and against groups that blockade public roads, depriving people of their right to travel. The Act has been invoked in private lawsuits, but the Justice Department has not brought a single case.

(2) The FACE Act prohibits "the use of physical force, threat of physical force, or physical obstruction to intentionally injure, intimidate, interfere with or attempt to injure, intimidate or interfere with any person who is exercising or trying to exercise their First Amendment right of religious freedom at a place of religious worship." Hillel buildings serve as houses of worship, and various campuses have seen acts of intimidation of and interference with those students trying to enter or exit Hillel buildings. No one involved in these incidents has been charged under the act.

(3) Various complaints and lawsuits against universities have documented threats and assaults against Jewish students in violation of their civil rights. The Justice Department has not brought any criminal or civil charges against the perpetrators, with the exception of a Cornell student who threatened to kill Jewish students. Lower-level and less well-publicized threats, harassment, and assaults have not attracted Justice Department intervention.

(4) American intelligence officials have revealed that anti-Israel protesters are getting money from Iran, in violation of US sanctions laws. Despite this public revelation, no one has been indicted for receiving or serving as a conduit for this money. [Indeed, I wonder whether this information was released precisely because the intelligence folks are frustrated that Justice hasn't done anything about it.]

(5) For political reasons, police departments in cities including DC, Philadelphia, and Baltimore have refused requests by university officials to clear illegal, antisemitic campus encampments. This inaction violates the Fourteenth Amendment's guarantee of equal protection of the law. More narrowly, this abuse of police discretion violates the conditions on which cities receive billions of dollars in federal funds. The Justice Department seems entirely quiescent in the face of this malfeasance. Similarly, local prosecutors across Virginia and elsewhere have told police that they will not prosecute Hamasnik protesters who violate state laws by wearing masks to intimidate the public. Again, no intervention against discriminatory law enforcement from the Justice Department.

(6) There are strong indications that antisemitic groups like American Muslims for Palestine and National Students for Justice in Palestine have illegal ties to Hamas. Several state attorney generals, most prominently Virginia's Jason Miyares, are investigating these ties. There are also civil lawsuits pending against these organizations for material support for terrorism that has killed Americans. There is no indication that the Justice Department is seriously investigating.

(7) Jewish-owned businesses have been vandalized in New York and other cities. No federal civil rights charges have been filed against the vandals.

(8) Universities such as Yale have illegally failed to disclose massive donations from Qatar, Hamas's ally. The legal consequences of this failure have been minimal.

(9) Finally, while the Department of Education has been investigating allegations of universities discriminating against Jewish students via a hostile environment, double standards, or otherwise, every one of these complaints has been filed by a private party, giving the Department of Education a legal obligation to investigate. The department does not appear to have opened a single investigation of its own, nor has it referred even the most egregious cases to the Justice Department for potential civil litigation. Every lawsuit that has been filed has been the product of private rather than government efforts.

One can speculate as to why the Justice Department has been so quiescent in the face of the largest outbreak of antisemitism in the United States in decades, failing to use existing legal tools when the antisemitism turns illegal. But what we can say for sure is that despite Attorney General Merrick Garland's stated commitment to protecting the American Jewish community from hate crimes, his Justice Department has been an almost complete failure in combating such crimes inspired or committed by anti-Israel activists.

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[Josh Blackman] Today in Supreme Court History: September 16, 1787

9/16/1787: The Constitutional Convention finalizes Constitution.

The Constitution

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Ilya Somin] A Modest Revelation About Trump v. Anderson

[Recent New York Times reporting about the Court's deliberations on the case modestly reinforces the view that the Court ruled that disqualification from office-holding under Section 3 requires congressional legislation.]

The Supreme Court Justices. (Pool/ABACA/Newscom)

 

Today's much-discussed New York Times article by Jodi Kantor and Adam Liptak includes many details about the inner workings of the Supreme Court's deliberations on several key cases decided this year. For the most part, I think the revelations aren't enormously surprising. Chief Justice John Roberts maneuvered for consensus on some key cases. But, in two important ones involving Trump—Trump v. Anderson (the Section 3 disqualification case) and Trump v. United States  (the presidential immunity case) –  he ultimately sided with a bloc of four conservative justices when full consensus proved elusive. That is fairly evident from the opinions in the cases themselves.

But the reporting does shed a little light on one issue regarding Trump v. Anderson. In my forthcoming article criticizing that ruling, I argue that the majority ruled that people can only be disqualified from holding office under Section 3 of Fourteenth Amendment pursuant to special congressional legislation under Section 5 of the same Amendment (which gives Congress the power to enact "appropriate" enforcement legislation). In legal parlance, they held that Section 3 is not "self-executing." That is also what the concurring opinions by Justice Amy Coney Barrett and the three liberal justices assume (both opinions differ with the majority on that issue). But some other commentators—most notably Will Baude and Michael Paulsen—disagree, arguing that  majority only concluded that states cannot disqualify a candidate like Trump.

The New York Times article suggested the justices themselves interpret the ruling much as I do:

While all nine justices agreed that Mr. Trump should remain on state ballots, four of the conservatives were pushing to go beyond that and rule that the Constitution's prohibition would require congressional action to take effect. Such a decision would provide greater protection for Mr. Trump: To prevent him from taking office if he won re-election, Congress would have to vote to enforce the insurrectionist ban.

That left the chief justice in control of the outcome. He lingered over the choice, those familiar with the process said. Ultimately, he sided with the four conservatives in an opinion that he wrote but that was issued unsigned [emphasis added]. Justice Amy Coney Barrett and the three liberals wrote concurrences saying the majority had gone too far.

Although the judgment was 9 to 0, the justices had not reached true agreement.

If Kantor and Liptak's sources are accurate, four conservative justices (Alito, Gorsuch, Kavanaugh, and Thomas) wanted a ruling holding that congressional legislation is required and Roberts ultimately "sided" with them. If so, that means all nine justices interpret the ruling as requiring such legislation (we know Barrett and the liberals did, based on what they say in their concurring opinions).

Various caveats apply. Most obviously, it is the text of the ruling that is binding, not the subjective intentions of the justices who joined it. Perhaps the majority justices intended to rule that Section 3 isn't self-executing, but failed to actually incorporate that idea in the opinion. In my view, the text of the opinion points in the same direction (see pp. 9-10 of my draft article); but it's not completely definitive. In addition, it's possible that Kantor and Liptak's sources are somehow dissembling or misinformed.

Still, if the story is correct, the revelation has some significance, because it may prefigure what the Court would do if Section 3 disqualification issues come before it again.

Ultimately, the big flaws in the Court's decision are that the majority reached a poorly reasoned decision on self-execution, and all nine justices greatly overstated the threat posed by a "patchwork" of state rulings on disqualification, while ignoring the danger of allowing insurrectionists to return to power—especially to the most powerful office in the land. I go into these and other issues in greater detail in my article. Because that article will officially be in print tomorrow, it's too late for me to incorporate the New York Times revelation. But I don't think it would alter any of my conclusions.

The excellent Baude-Paulsen critique of the Court's ruling also was posted too late for me to consider it in my own article. I agree with most of their criticisms of the decision, but—as noted above—differ somewhat with their assessment of its scope.

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[Josh Blackman] The Trump Leaks Are Far Worse Than The Dobbs Leak.

[Knives are out for Chief Justice Roberts, and poor Justice Alito. ]

A short while ago, I published a lengthy post detailing the New York Times's latest reporting on the three Trump cases: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Here, I will offer several big-picture observations.

First, this leak is far worse than the Dobbs leak. In Dobbs, one or more people exfiltrated a draft opinion from inside the Court, and somehow that opinion made its way to Politico. (Maybe Jodi Kantor can tell us how that happened!) It was devastating for the draft decision to become public, and it nearly led to the assassination of Justice Kavanaugh. But the aftermath of the leak was swift and overwhelming: the Court was placed on lockdown, and a sweeping investigation was launched to find the culprit(s). But the Trump leaks are systematic and thorough. We have insights of confidential memoranda, detailed conversations at conferences, KBJ's changed vote, Justice Alito losing the Fischer majority, and information about many Roberts clerks were working on the case. This tapestry would require insights from so many different people. Moreover, all of this comes after the Dobbs leak when Chief Justice Roberts (apparently) put strict limitations on access to Court information. What did all of those measures accomplish? Apparently not much.

Second, and I alluded to this point in my earlier post, Justice Kagan is absent from this reporting. There is absolutely nothing about what she thought or did during these deliberations. There are insights into all of the other eight Justices, but nothing on Kagan. This isn't new. Back in the day when Biskupic got the scoops, Kagan was also largely absent. I think it likely that Kagan, or at least Kagan surrogates, are behind these leaks. If Kagan is willing to publicly undermine her colleagues in a speech at the Ninth Circuit, why would she do any less off-the-record? Moreover, this entire story is consistent with Kagan's MO, and describing the Court as bending over backwards for Trump. On that point, I would be willing to place a bet that the three Trump appointees rule against Trump in any election case that comes to the high court. Like in the tax return cases, Justices Gorsuch, Kavanaugh, and Barrett will gladly knock Trump off the scene and declare their independence. Would you take the opposite bet?

Third, I am still flummoxed how Fischer was simply taken away from Justice Alito. Was this reassignment voluntary? Or was this like a scene in the Godfather, where Roberts made an offer that Alito could not refuse? It is difficult to imagine how difficult this term was for Alito. Barely two years ago, he was on top of the world, holding together a five-member bloc in Dobbs. Now he had only four majority opinions, and lost three! Roberts had seven signed opinions, and authored Anderson!

Fourth, I am still struck by the granular reporting that all four of Roberts's clerks were working on the opinion till the last minute. Was this some effort to heap praise on them, for shuttling back-and-forth between chambers? Or was it some attempt to place blame on them. For those who keep track of such things, here are the four:

1. Jason Bell (Harvard 2021 / Kovner (E.D.N.Y.) / Higginson)
2. Alexander Cave (Harvard 2020 / Srinivasan)
3. Benjamin Daus (Yale 2021 / Kovner (E.D.N.Y.) / Thapar)
4. Sakina Haji (Chicago 2021 / Newsom)

Fifth, we do not get much insights into Justice Barrett, other than that she frustrates her conservative colleagues. She is non-commital at conference, and then decides to break out on her own, with Justice Kagan as the wind beneath her wings. Justice Barrett continues to learn on the job, and figure things out as she goes along.

Sixth, Justice Jackson comes across as a savvy operator. She was in the majority for Fisher, as a way to get the Court to remand the case to Judge Chutkun. And I think she was poised to join the majority in Anderson on the "officer" stuff. Something happened there, but Kantor does not tell us. She is playing the game quite well.

I will close by renewing my call for Chief Justice Roberts to resign. He will never be John Marshall, or Fred Vinson for that matter. Historians will judge him harshly as a failed chief justice who kept digging his hole deeper and deeper, completely oblivious to how he is actually perceived. The only path forward is for him to stop caring about "institutionalism" and decide each case as a judge would decide the case. This game will never work.

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[Josh Blackman] NY Times Big Reveals On Deliberations In Three Trump Cases

[How did Roberts come to write Trump v. Anderson, Fischer v. United States, and Trump v. United States?]

The front page of today's New York Times blares the headline "How Roberts Shaped Trump's Supreme Court Winning Streak." The piece by Jodi Kantor and Adam Liptak delivers on providing the inside scoop of the three Trump cases: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Like with Joan Biskupic's reporting (1, 2, 3, 4), much of what Kantor and Liptak report can be deduced from the opinion assignments and the final work product. But the Times offers some new insights that could not be inferred. Indeed, it seems clear that they have several high-ranking sources. Though, I will place one note at the outset: they offer inside information about eight of the nine Justices. But there is nothing about the thinking of Justice Kagan. Her fingerprints are wiped clean–like with a cloth.

Trump v. Anderson

Kantor and Liptak report on the deliberations in Trump v. Anderson.

So could Colorado kick Mr. Trump off the ballot in its Republican primary, creating an obstacle for his presidential campaign?

From the start of the justices' private discussions of the case, Trump v. Anderson, it was clear that the court was going to say no, according to several people at the court familiar with the conversations.

This outcome should not been surprising based on the tenor of the oral argument. And, it seems that Roberts made extremely conciliatory efforts to craft a majority opinion, in the spirt of Chief Justice Warren with Brown v. Board of Education:

This time, Chief Justice Roberts told his colleagues he wanted the decision to be unanimous and unsigned. In any politically charged case, agreement among the justices made the decision more authoritative. He even said he would consult individually with everyone to discuss what they would accept — a rare step.

I think this justice-by-justice consultation resulted in an opinion that was so narrow and specific that it failed to resolve much beyond the bottom line issue. In this regard, there are indeed some similarities between Trump v. Anderson and Brown v. Board of Education. Alas, Chief Justice Roberts's efforts to obtain unanimity on all grounds failed. We learn that four conservatives were pushing Roberts to go further:

While all nine justices agreed that Mr. Trump should remain on state ballots, four of the conservatives were pushing to go beyond that and rule that the Constitution's prohibition would require congressional action to take effect. Such a decision would provide greater protection for Mr. Trump: To prevent him from taking office if he won re-election, Congress would have to vote to enforce the insurrectionist ban.

If I had to guess, the four were Justices Thomas, Alito, Gorsuch, and Kavanaugh. For sure, Barrett was not among them, as she would tell us in her concurrence. They knew full well how important it was to settle this issue, and not let it linger till January. But these four left Roberts with a choice. If Roberts did not address the role of Congress, then the conservative quartet may have written separately, depriving the Court of a unified decision. But if Roberts addressed these issues, then Sotomayor, Kagan, and Jackson would fracture off, as would Barrett. What would Roberts choose? He joined the conservatives.

That left the chief justice in control of the outcome. He lingered over the choice, those familiar with the process said. Ultimately, he sided with the four conservatives in an opinion that he wrote but that was issued unsigned. Justice Amy Coney Barrett and the three liberals wrote concurrences saying the majority had gone too far. Although the judgment was 9 to 0, the justices had not reached true agreement.

Contra Will Baude and Michael Stokes Paulsen in the Harvard Law Review, I think there is much to praise in the per curiam decision. Roberts had an almost impossible task, and he had to shepherd a decision on a compressed timeline before the Colorado primary. All things considered, Chief Justice Roberts did about as well as he could in this case.

I regret, though, that Kantor does not have any insights into whether Justice Sotomayor's opinion was originally styled as a dissent, and why it seems to respond to portions of the majority that were not there. Likewise, what to make of Justice Barrett's concurrence calling out the majority for strident language, while chastising the dissent in strident langauge.

Alito lost the majority in Fischer

At the end of each term, I try to offer predictions of which Justice will write majority opinions in each case. Based solely on counting, I surmised that Alito lost majority opinions in the NetChoice cases as well as Gonzales v. Trevino. Joan Biskupic's reporting confirmed my speculation.

There was one other prediction, however, that I never quite figured out. On the last week of the term, I predicted that Justice Gorsuch had the majority opinion in Fischer. But it turned out Roberts had the Fischer majority and Gorsuch had Grant's Pass. According to Kantor and Liptak, Alito in fact lost Fischer, yet another majority opinion. And the authors tie the switch to the flag flap:

After oral arguments in April, a majority of the court, including the chief justice, privately concluded that prosecutors had erred. It appeared that the result would narrow, overturn or prevent convictions of some Capitol rioters. It also seemed poised to imperil some of the charges against Mr. Trump, which included obstructing Congress's certification of the 2020 election.

The chief justice assigned the opinion to Justice Alito, according to several court insiders. But a month later, Chief Justice Roberts updated the court: Justice Alito was no longer the author. The chief justice was taking over the opinion.

Outside the court, the switch went undetected. Inside, it caused surprise. To change authors without the judgment itself shifting was a break from court procedure, several court insiders said.

If this reporting is correct, Alito lost majority opinions in NetChoice, Trevino, and Fischer. Has any Justice ever had such a term, where he lost so many majority opinions? I can't recall any.

Kantor and Liptak suggest the change was related to the flag flag, but they do not know for certain.

The chief justice and Justice Alito did not respond to inquiries from The Times about the reason for the change. But the date of the new assignment, May 20, offers a possible clue. Four days earlier, The Times had reported on the upside-down flag that flew at the Alitos' Virginia home soon after the Jan. 6 insurrection at the Capitol.

Did Roberts not want the optics of an Alito majority opinion helping Trump on a January 6 case? Did Roberts want to at least give Alito the space to recuse, without disturbing the majority, if more allegations came out? Was Alito complicit here, or was he forced to abandon the opinion? What a remarkable turn of events.

KBJ Flipped Her Vote in Fischer

We know that the final vote in Fischer was 6-3. Justice Jackson joined the four conservatives, and Justice Barrett wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Jackson's vote raised some eyebrows, especially since it could help Trump. Likewise, Jackson set out her independence by her vigorous questioning during oral argument in the insurrection case.

Kantor and Liptak related that KBJ switched her vote after Chief Justice Roberts took authorship of the majority opinion:

The change in authorship wasn't the last shift in the case. Soon after, Justice Ketanji Brown Jackson deployed her vote to change the outcome.

As in the Colorado case, the vote did not fall along strictly partisan lines. Justice Barrett, along with Justices Sotomayor and Elena Kagan, felt that prosecutors were entitled to charge rioters under the obstruction law. It appeared that Justice Jackson would stand alone. She agreed with the majority that the law had been applied too broadly, according to several court insiders. But she thought the others were going too far by reversing the lower court's judgment, tossing out the charge in the case before them and undermining many others.

Her intermediate position gave her leverage. She said she would join the majority if they would send the cases back to the lower courts to be reconsidered. The conservatives said yes. The final vote was 6 to 3, with Justice Barrett siding with the liberals and Justice Jackson with the conservatives.

Jackson's play here was powerful. Had she not gotten that concession, the majority would have simply resolved which issues are subject to immunity. But the majority, as a price of getting her vote, let Judge Nichols decide in the first instance how to resolve these issues. [Update: I previously wrote that Judge Chutkan had the remand; she has the immunity case.] During her much-discussed sit-down on The View, Justice Jackson commented on the "power" of her position. Yes, there is power when her vote is in play. And KBJ will use that power.

The Trump v. United States Memo

The biggest reveal is that Chief Justice Roberts sent his colleagues a confidential memo on February 22 about the immunity case, urging the Court to grant review on the case. Justices generally do not discuss a case before the conference, but here it seems that Roberts was getting ahead of the issue.

It is not clear that Kantor and Liptak have a copy of the memo, but instead cite "several people from the court who saw the document." This could mean a Justice or a clerk. I can't imagine who else in the building would have access to the document, especially after the heightened post-Dobbs security protocols. The memo "radiated frustration and certainty." Roberts "offered a scathing critique" of the D.C. Circuit's ruling, "calling it inadequate and poorly reasoned." Roberts charged that the panel "failed to grapple with the most difficult questions altogether." Roberts predicted that "we will view the separation of powers analysis differently."

And shortly after the memo, Justice Kavanaugh signed on board:

Just after the chief justice sent his Feb. 22 memo, showing that he was sympathetic to Mr. Trump's arguments, his position became stronger. Justice Kavanaugh responded the next morning, agreeing with the chief's logic, according to insiders who knew of the exchange. The three most conservative justices were presumably on board, and with two of the justices at the court's ideological center in agreement, the direction was clear.

When would Trump v. United States  be argued?

The other major question, however, is when the case should be heard. In the normal case, a petition granted in March 2024 would likely be heard in October of November 2024, with a decision by June 2025. Of course, this timeline would make it impossible to resolve the immunity issues before the election. Indeed, if Trump prevailed, the Court would never have to decide the case. In February, I speculated that the Court might take a slow approach, and avoid ever having to write the opinion for the ages.

The Court's liberals wanted to move with all deliberate speed

At the justices' private conference meeting that day, Justice Sotomayor protested that she did not see how the court could reverse the appellate decision. It would look like the Supreme Court was being used to delay the trial, she said, according to someone with knowledge of the proceedings.

So she and the other liberal justices focused on the crucial question of timing. Every day that the court waited to hear the case was a benefit to Mr. Trump, diminishing the possibility of a trial before the Nov. 5 election. At the meeting, some of the court's most conservative members said they did not want to hear the case until the start of the next term in October, according to several court insiders.

But the conservatives did not want to hear the case in April:

Justice Thomas, who favored scheduling the arguments in October, told colleagues that he did not want to see the court dragged into political battles.

Justice Gorsuch agreed. The matter was too important to rush, he said, and lawyers on the case would need time to prepare their strongest arguments.

On that schedule, the Supreme Court would not decide the immunity question until after the presidential contest. If Mr. Trump won, he could have the criminal case dismissed.

If I had to guess, Thomas was not trying to avoid being "dragged into political battles." Instead, Thomas likely said that the argument to rush the case was political. In other words, the only reason to hear oral argument in April was to have the decision before voters go to the ballot. Seth Barrett Tillman and I made a similar point about efforts to rush the special counsel case.

Here, at least, Roberts sided with the Court's liberals to hear the case in April:

During the February discussions of the immunity case, the most consequential of the three, some of the conservative justices wanted to schedule it for the next term. That would have deferred oral arguments until October and almost certainly pushed a decision until after the election. But Chief Justice Roberts provided crucial support for hearing the historic case earlier, siding with the liberals.

…

Once again, the chief justice's position prevailed: He preferred to hear the case in the current term, and Justice Kavanaugh was amenable. Oral arguments were set for two months later. While relatively fast by the court's usual standards, that timing frustrated many Democrats.

The Vote at Conference was 6-3

The final vote was 6-3-ish. To this day, I do not fully understand which portions of the majority opinion that Justice Barrett's joined.

Kantor and Liptak relate that the vote was 6-3 at conference, but Justice Sotomayor sought a compromise:

When the justices met in private shortly after the arguments, the six conservatives voted in favor of Mr. Trump and greatly expanding presidential immunity. The three liberals voted against. After the chief justice circulated a draft on June 1, and Justice Sotomayor responded that she would consider a partial compromise, her invitation appeared to go nowhere.

Kantor and Liptak provide some insights into the differences between Chief Justice Roberts and Justice Barrett, though much is unclear:

That left the chief justice with plenty of requests for changes from members of his own majority, but only one main challenger: Justice Barrett. After he filed his draft majority opinion, she seemed somewhat skeptical, saying she intended to vote with him, but could not join on three points, according to people familiar with the discussions.

What were those three points? At least one of them was about the evidentiary issue. I would need to give some more thought to the other two issues.

Kantor and Liptak offer a somewhat unusual observation–that all four of Roberts's law clerks were working on the case:

Inside the chief's chambers, all four of his clerks participated in a furious rewriting effort. Later, others at the court wondered if the chief justice had taken on too much. The writing of a majority opinion requires responding to suggestions and edits from other justices, addressing any dissents, and crafting an analysis to withstand scrutiny. He had assigned himself seven majority opinions over the term, five of them blockbuster cases.

I can't recall ever seeing such granular observations about how the clerks were working. It could be that the clerks were engaged in shuttle diplomacy with other chambers, so their workflow became widely known. But for Roberts, this was truly a term for the ages

Roberts did not consult with liberals in Trump v. United States

In June, I observed that the Chief Justice has shifted his strategy from the Dobbs term. In OT 2021, he was on the oustide, look in, and had lost functional control of his court. But in OT 2023, he was in the driver's seat, pushing his Court to the right in the Trump immunity case, as well as Loper Bright.  If you can't beat them, join them, I wrote.

Kantor and Liptak make a similar observation:

Two years earlier, as the other conservative justices overturned Roe v. Wade, the chief justice had been sidelined as he sought a middle ground that would restrict but not eliminate the constitutional right to abortion. In failing to persuade a single colleague to adopt his approach, he appeared to lose control of the court. This term he seemed determined to regain it.

Kantor and Liptak confirm my read of the opinon: Roberts had five solid votes, and made no efforts to seek the votes of the liberals:

Then he froze them out. After he circulated his draft opinion in June, Justice Sonia Sotomayor, the senior liberal, signaled a willingness to agree on some points in hopes of moderating the opinion, according to those familiar with the proceedings. Though the chief justice often favors consensus, he did not take the opening. As the court split 6 to 3, conservatives versus liberals, Justice Sotomayor started work on a five-alarm dissent warning of danger to democracy.

But Kantor reports that Roberts received fawning praise from Justices Kavanaugh and Gorsuch:

 Two days after the chief justice circulated his first draft in June, Justice Brett M. Kavanaugh responded to what he called an "extraordinary opinion."

In a final flourish, he wrote, "Thank you again for your exceptional work."

Soon afterward, Justice Neil M. Gorsuch added another superlative: "I join Brett in thanking you for your remarkable work."

Justice Frankfurter wrote Chief Justice Warren a similar note after Brown v. Board of Education. He said it was a day that would live in "glory."

I think that Gorsuch, for sure, did not anticipate the blowback the decision would receive. He was very defensive about the case on his press tour.

***

There is much more to consider her. I would also surmise that the torch of inside SCOTUS reporting has been passed from Biskupic to Kantor. I was critical of Kantor's "fringe" theory about the flag flag (1, 2, 3, 4) but she got the goods on Dobbs, Bruen, and now the Trump cases. Biskupic's latest reporting has fizzled out.

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[Jonathan H. Adler] A Conversation with Solicitor General Elizabeth Prelogar

[One of the nation's finest oral advocates discusses representing the United States in the Supreme Court and other topics.]

Earlier this month, the Case Western Reserve University School of Law hosted a conversation with U.S. Solicitor General Elizabeth Prelogar for the 2024 Sumner Canary Lecture.

The hour-long discussion covered a range of issues, from the responsibilities of the Solicitor General's office, preparing for oral argument, the "emergency docket," and (of particular importance to some of us) whether the Administrative Procedure Act should be understood to authorize nationwide vacatur.

The National Law Journal and CWRU Observer both covered the event. Video is below.

A list of prior Canary lectures, including video of remarks by (then judges) Neil Gorsuch, Brett Kavanaugh, and Amy Barrett can be found here.

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[Josh Blackman] Today in Supreme Court History: September 15, 1857

9/15/1857: Chief Justice William Howard Taft's birthday.

Chief Justice William Howard Taft

 

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[Ilya Somin] New Study on How to Address Public Ignorance About Housing Policy

[New data shows that "housing supply skeptics" can be persuaded by evidence showing that allowing more construction reduces prices. But not clear this is a good road map for addressing the problem of public ignorance in the real world.]

(Andrii Yalanskyi/Dreamstime.com)

Exclusionary zoning regulations that severely restrict housing construction are a major cause of the housing shortages besetting large parts of the United States. The standard explanation for why these rules persist is self-interested voting and lobbying by NIMBY ("not in my backyard") homeowners who want to keep housing prices high in order to protect the value of their own property. But evidence increasingly indicates that much of the political support for exclusionary zoning actually comes from people—both renters and homeowners—who simply don't understand basic economics and therefore do not realize that increasing housing construction is likely to reduce housing costs. Such people are suspicious of developers and tend to believe that additional construction will just benefit only the developers themselves or other wealthy people.

In a just-posted article, legal scholar Chris Elmendorf and political scientists Clayton Nall and Stan Oklobdzija (ENO) provide valuable evidence on the extent to which this kind of public ignorance can be overcome by presenting "housing supply skeptics" with countervailing evidence. ENO are also the authors of two important previous studies on public opinion about housing issues, which I considered here and here. Below is the abstract for their latest article:

Recent research finds that most people want lower housing prices but, contrary to expert consensus, do not believe that more supply would lower prices. This study tests the effects of four informational interventions on Americans' beliefs about housing markets and associated policy preferences and political actions (writing to state lawmakers). Several of the interventions significantly and positively affected economic understanding and support for land-use liberalization, with standardized effect sizes of 0.15 − 0.3. The most impactful treatment—an educational video from an advocacy group—had effects 2-3 times larger than typical economics-information or political-messaging treatments. Learning about housing markets increased support for development among homeowners as much as renters, contrary to the "homevoter hypothesis." The treatments did not significantly affect the probability of writing to lawmakers, but an off-plan analysis suggests that the advocacy video increased the number of messages asking for more market-rate housing.

The new ENO study has several important findings. Most obviously, they show that new information can have a big impact in changing supply skeptics' minds about housing deregulation. When shown a short educational video explaining how liberalization can reduce housing prices, many become much more supportive of cutting back on zoning restrictions. As ENO explain, this makes housing policy different from issues on which voters have more deeply rooted attitudes, and therefore tend to ignore or dismiss opposing evidence.

It is also notable that homeowners were just as likely to change their minds in response to the video as renters (possibly even slightly more so). This further undermines the argument that opposition to zoning reform is primarily rooted in the narrow self-interest of NIMBYs. If the self-interest story were valid, realizing that liberalization would lead to lower housing prices should actually lead homeowners to oppose it even more. Yet ENO find the opposite effect.

So far, ENO's results seem very optimistic. We can spread the gospel of YIMBYism simply by showing people simple videos! But I would add some cautionary notes.

First, as a practical matter, most voters are unlikely to take the time to watch even a short video about a policy issue they have relatively interest in. Most people are "rationally ignorant" about politics and public policy, and devote only very limited time to learning about the issues. Second, even if they do watch a video, in the real world they probably won't pay as careful attention as in an experimental setting.

Finally, while ENO have performed a valuable service by showing that most opposition to zoning deregulation is driven by ignorance rather than narrow self-interest, we should not discount self-interested NIMBYism entirely. Such people clearly do exist, and often have disproportionate influence over local politics. They're often the people most likely to show up at zoning board meetings, for example.

On balance, I think YIMBYism can make better progress by resorting to appealing rhetoric, than by expecting large numbers of people to watch videos or study other educational materials. Past studies, including some of ENO's previous work, suggests that people are more sympathetic to YIMBYism if it is described as giving property owners the freedom use their land as they wish, than if we refer to developers and business interests. It also helps to emphasize that reform can lower prices and enable people to live closer to offices, stores, and other locations they want easy access to. Of course studies also show that the NIMBY side also has effective rhetorical ploys, usually focused on the role of business interests, and claims that only the wealthy will benefit from liberalization.

Ultimately, YIMBYs should pursue a strategy of combining political action with constitutional litigation.  Josh Braver and I have made the case that most exclusionary zoning violates the Takings Clause on both originalist and living constitution grounds. Past successful constitutional reform movements have usually pursued a two-track strategy, rather than relying on one method alone.

In sum, the new ENO paper is an excellent contribution to the literature, and should give some hope to YIMBYs. But changing minds in the real world is likely to be much harder than in a laboratory setting.

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