Eugene Volokh's Blog, page 291

[Eugene Volokh] Response to My Motion to Unseal Material in Pennsylvania Sen. Douglas Mastriano's Lawsuit Related to His Ph.D. Thesis

[Sen. Mastriano (who is running for reelection to the state senate, and who ran in 2022 for Governor) is suing for, among other things, libel—but trying to keep the allegedly libelous material under seal.]

I wrote last month about my motion to intervene and unseal in this case, and Sen. Mastriano's lawyer (former Maryland House of Delegates member and former gubernatorial candidate Daniel Cox) just filed the response to my motion to intervene and unseal. Some excerpts:

Memorandum of Law …

Volokh, whose half-million annual salary is funded by a California University caught receiving dark money,1 seeks intervention apparently with such funded support and for their behalf in order to supply his benefactors with an expected written product for financial return. Volokh has no Article III or Rule 24(b) standing to intervene. Instead, he seeks to apparently advance a scheme to support Defendants herein with his own third-party financial support and has no valid "limited" third-party interest….

1 "Stanford's Settlement with the Justice Department Shows Just How Deep China Has Its Claws in Our Universities." Moore, Paul. The Hill news online, October 11, 2023. "Fudan University is a prominent Chinese research institution, and Stanford's ties with it are extensive. Stanford codirects the Fudan-Stanford Institute for China Financial Technology and Risk Analytics, and its Graduate School of Business partners with the Fudan School of Management. In 2019, Fudan University altered its charter by promising its adherence "to the leadership of the Chinese Communist Party (CCP)" and "the party's educational policy." The CCP's dominance of Fudan University assures that research developed there may be fully utilized in the CCP's military-civil fusion efforts that compose a critical part of China's efforts to eclipse the military and economic capabilities of the U.S. and its allies by 2025. Despite this, Stanford's ties with Fudan remain undiminished. Stanford failed to report more than $64 million in Chinese donor identities — disclosure failures that coincided with Stanford's unprecedented expansion of its Chinese operations." https://thehill.com/opinion/national-... (accessed August 6, 2024 at 5:50 p.m.)….

Memorandum of Law

I. Volokh has no Article III standing to intervene.

While Volokh avers his own interest in intervention pro se, he does so speciously on behalf of the State of California-funded Stanford University (a University in partnership with the People's Republic of China, CCP2), and Reason Magazine. Volokh Mot. Interv. Pg. 1, ¶ 2. He does so using his Stanford University e-mail, funded in part by the taxpayers who pay his half-million annual salary. He seeks to intervene in order to not only advance his stated entities' economic interests, but his own economic interests.

2 Colonel Mastriano is a former USA officer supporting NATO's mission. NATO recently issued a stern warning to the PRC, stating: "26. The PRC has become a decisive enabler of Russia's war against Ukraine through its so-called "no limits" partnership…27. The PRC continues to pose systemic challenges to Euro-Atlantic security. We have seen sustained malicious cyber and hybrid activities, including disinformation, stemming from the PRC." https://www.nato.int/cps/en/natohq/of... (accessed August 7, 2024)….

V. Plaintiff's Public Official Status Is Irrelevant to Volokh and his Public Interest Argument.

Volokh, a resident of California, turns finally to Plaintiff's status as an elected official in Pennsylvania to claim a lessened standard for him to seal a record, allowing unsealing of records under the district case in Parson v. Farley, 352 F. Supp. 3d 1141 (N.D. Okla. 2018). Volokh Mot. Unseal at 9. Yet this is a Volokh red herring on at least two grounds. First, government officials are not protected less under law than others and do not give up their rights to question malicious libel, otherwise society could merely make up outrageous false accusations or use such as extortion against every person running for office they dislike without repercussion, or to obtain their votes or obedience to another official, or even a to foreign power such as the one sponsoring Volokh's university that pays his salary. More less considering the fact that Volokh has no relation to, or possible stake in, a Pennsylvania election, nor does his California and federally funded employer….

The response also makes various substantive arguments, though I don't think they're particularly strong. In the Western District of Oklahoma, "Reply briefs are optional and not encouraged," and I'm not sure whether there's anything in those substantive arguments that really requires a reply. But I'd love to hear what our readers think.

The post Response to My Motion to Unseal Material in Pennsylvania Sen. Douglas Mastriano's Lawsuit Related to His Ph.D. Thesis appeared first on Reason.com.

[Eugene Volokh] VP Candidate Tim Walz on "There's No Guarantee to Free Speech on Misinformation or Hate Speech, and Especially Around Our Democracy"

Robby Soave at Reason writes about this 2022 quote from Walz (MSNBC):

[MARIA TERESA KUMAR, MNSBC HOST]: … I want to talk about what you just mentioned about misinformation, because, oftentimes before, in previous political chapters, disinformation, telling people were to vote the wrong way, that was kind of—these were called—considered shenanigans.

But it's becoming more ominous. Can you talk a little bit about that…

WALZ: Oh, yes.

KUMAR: … and what you will do to ensure that there are penalties for that?

WALZ: Yes.

Years ago, it was the little things, telling people to vote the day after the election. And we kind of brushed them off. Now we know it's intimidation at the ballot box. It's undermining the idea that mail-in ballots aren't legal.

I think we need to push back on this. There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who's able to be there….

Two thoughts:

[1.] Walz was quite wrong in saying that "There's no guarantee to free speech" as to "hate speech." The Supreme Court has made clear that there is no "hate speech" exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label "hateful" as much as it protects other views.

[2.] As to "misinformation," the matter is much more complicated. Sometimes misinformation, especially deliberate misinformation, is constitutionally punishable: Consider libel, false state­ments to government investigators, fraudulent charitable fundraising, and more. (For more details on all these points, and citations, see When Are Lies Constitutionally Protected?.) But sometimes even deliberate lies are constitutionally protected. In New York Times v. Sullivan (1964), the Court held that even deliberate lies (said with "actual malice") about the government are constitutionally protected. And in United States v. Alvarez (2012), five of the justices agreed that lies "about philosophy, religion, history, the social sciences, the arts, and the like" are generally protected.

The Supreme Court hasn't explained where the line is drawn, and that leaves unclear where important areas of controversy should fall. As to punishing deliberate misinformation in an election campaign generally, some pre-Alvarez Some older cases that were decided before United States v. Alvarez, which cast doubt on government power to restrict lies, have upheld such election lie statutes. In re Chmura, 608 N.W.2d 31 (Mich. 2000); State v. Davis, 27 Ohio App. 3d 65 (1985). But more recent decisions conclude that, on balance, allowing prosecutions for such lies is too dangerous. Grimmett v. Freeman, 59 F.4th 689, 694–96 (4th Cir. 2023); Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016); Commonwealth v. Lucas, 472 Mass. 387 (2015); 281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014); State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998).

Walz, however, seems to be talking about a particular kind of election misinformation: Lies about the where, when, how, and who of voting. Some states already generally ban lies about such election mechanics. David S. Ardia & Evan Ringel's First Amendment Limits on State Laws Targeting Election Misinformation summarizes this:

Thirteen states have statutes that prohibit false statements about voting requirements or procedures. Statutes within this category prohibit statements about what is required to vote or register, who can vote, when to vote, or how to vote…. California, Maryland, Minnesota, Oklahoma, Tennessee, and Virginia prohibit false information about voter registration or qualifications, targeting misrepresentations about a prospective voter's eligibility to vote in an election. Hawaii, Minnesota, Tennessee, and Virginia prohibit false information regarding the time, place, or manner of an election…. Missouri, Montana, and New Mexico prohibit false information about voting instructions or election procedures, while Connecticut and Rhode Island prohibit false or misleading instructions regarding the use of voting machinery that would cause a voter to either lose or incorrectly register his or her vote. Connecticut also prohibits any misrepresentation of the eligibility requirements for voting by absentee ballot …. itself.

To quote an amicus brief that I signed in U.S. v. Mackey,

[S]tatutes that narrowly and clearly forbid "easily verifiable" false statements about objective facts—even those made in the political context—raise fewer First Amendment concerns because they are less likely to lead to arbitrary enforcement or curtail valuable speech. Alvarez, 567 U.S. at 732 (Breyer, J.). In Minnesota Voters Alliance v. Mansky, for example, the Supreme Court observed that it "d[id] not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures." 138 S. Ct. 1876, 1889 n.4 (2018). {This was said in a case involving restrictions on speech in a government-controlled nonpublic forum, but the Court did not expressly include any such limitation in that statement.}

And courts have upheld statutes regulating specifically defined knowing lies in elections, even after Alvarez. See Linert v. MacDonald, 901 N.W.2d 664, 667, 670 (Minn. Ct. App. 2017) ("knowingly mak[ing] … a false claim stating or implying that a candidate or ballot question has the support or endorsement of a major political party"); Schmitt v. McLaughlin, 275 N.W.2d 587, 590-91 (Minn. 1979) (falsely claiming support or endorsement by a political party); Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446, 447, 449 (Mich. Ct. App. 1986) (falsely claiming that one is the incumbent); see also Tomei v. Finley, 512 F. Supp. 695, 696, 698 (N.D. Ill. 1981) (misrepresenting party affiliation); Ohio Democratic Party v. Ohio Elections Comm'n, 2008 WL 3878364, at *5 (Ohio Ct. App. Aug. 21, 2008) (falsely claiming to hold a particular office).

These cases suggest that government restrictions on knowing lies concerning certain objectively verifiable matters, such as the time and place of an election, that are made to confuse voters, survive First Amendment scrutiny. Assuming someone is deceived, such falsehoods work a "legally cognizable" or "specific harm," satisfying the Supreme Court's concern that statutes criminalize more than simple false speech. See Alvarez, 567 U.S. at 719 (plurality op.); id. at 734 (Breyer, J.). Intentional lies about when polls close, where one can vote, whether one can vote online, and who is eligible to vote can generally be narrowly defined by statute and will often be "easily verifiable" for a court, mitigating concerns about vagueness and overbreadth, id. at 732 (Breyer, J.), and reducing the potential for "argu[ments] about interpretation or shades of meaning" to lead to selective prosecution, id. at 716 (plurality op.). Counterspeech is also less likely to be effective in the days immediately before an election, when election officials, candidates, and the media may not have time to rebut the lie. See Linert, 901 N.W.2d at 670. And the government's interest in preventing fraud "carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 349 (1995); 281 Care Comm., 766 F.3d at 785-86 (the state "indisputably has a compelling interest in preserving the integrity of its election process"); Lucas, 34 N.E.3d at 1252 (similar).

So on the misinformation point, if limited to the context that Walz seemed to have been describing—in the Court's words, "messages intended to mislead voters about voting requirements and procedures"—Walz may well be correct.

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[Eugene Volokh] When Is Fighting Back Against a Police Dog Animal Abuse?

[Detached reflection cannot be demanded in the presence of an open maw.]

From Evans v. Commonwealth, decided Monday by the Virginia Court of Appeals, in an opinion by Judge Kimberley Slayton White, joined by Judges Daniel Ortiz and Frank Friedman:

Once Knox was in the home and Officer Reed was positioned in the door frame, the officer commanded the dog to apprehend Evans as the officer could no longer see Evans. Knox bit Evans's upper left leg. Evans repeatedly punched Knox in the head with a closed fist and then used both of his hands to pry Knox's jaws apart. {Officer Reed testified that he observed Evans punch Knox three to four times in the head with a closed fist. Officer Reed commanded Evans not to harm the dog.} Once the dog released his leg, Evans put one hand over Knox's nose causing Knox to gag. Officer Reed testified that the noise on the video was Knox gagging, or "back breathing," because he was being suffocated. Officer Reed then struck Evans thrice rendering Evans unconscious; Knox bit Evans's bicep and took him to the floor. Officer Reed stated that he struck Evans because Knox was struggling to breathe, and Evans was continuing to hit the dog. Evans was then handcuffed while face-down on the ground, unconscious….

After the incident, Officer Reed observed a small laceration that appeared to be new below Knox's bottom left canine tooth. Knox had no observable injuries before the incident, but Officer Reed admitted he had not evaluated Knox before the shift began. Evans himself received injuries that were enough to require hospital admission….

Evans challenges his conviction for animal cruelty because there was no evidence that Knox [the police dog ] was injured during the incident. He notes that although there was a laceration on the dog's gum, there was no testimony that Knox needed medical attention or was in pain. He argues that the evidence presented is not enough to sustain a conviction for animal cruelty.

To obtain a felony conviction for animal cruelty, the Commonwealth was required to prove the defendant "torture[d] any animal, willfully inflict[ed] inhumane injury or pain not connected with bona fide scientific or medical experimentation on any animal, or cruelly or unnecessarily beat[ ], maim[ed], mutilate[d], or kill[ed] any animal." "The Commonwealth can establish that a defendant willfully inflicted inhumane injury on an animal if it can present evidence that the defendant 'voluntarily acted with a consciousness that "inhumane injury or pain" would result.'"

This Court has struggled over the years to define and describe what it is to "willfully inflict inhumane injury" to an animal. "A voluntary act becomes willful, in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong." "The act [or omission] done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury." …

Here, Evans struck Knox on the head after the dog began biting Evans's leg. This voluntary act of striking Knox does not rise to animal cruelty because Evans did not "willfully inflict inhumane injury" as defined under Virginia law. Evans's reflexive punches thrown at the dog were not intended to harm Knox and did not rise to the level of "willful." When deciding if an action is willful, we look at not only the circumstances surrounding the action, but the intent behind it.

Punching and kicking a police dog has been found to be sufficient to rise to animal cruelty. Blankenship v. Commonwealth (Va. Ct. App. 2020). However the distinction is that in prior cases the police dog suffered severe injuries after a prolonged, repeated beating. Knox, at the very worst, suffered a small laceration on the inside of his mouth. In comparison, the dog in Blankenship received a "digestive injury" to the point where it stopped eating and was lethargic. Not only is the small laceration not a serious injury, there is no way to confirm it was a result of the punches thrown by Evans, as Officer Reed did not evaluate Knox before their shift.

Evans's actions were an in-the-moment response to being attacked in his own home by a police dog. There was no "conscious wrong or evil purpose" behind his actions as he merely did enough to get the dog to release his leg. When looking at the surrounding circumstances, it cannot be said that Evans intended to cause harm to Knox in a way punishable under Virginia law. Therefore, the trial court erred in denying the motion to strike and finding Evans guilty of animal cruelty.

The court also reversed Evans' conviction for disorderly conduct, which was based on Evans' telling police officers "You get your fucking piece of shit ass out of here, alright," and shouting other profanities:

This Court has adopted the position that "the fighting words doctrine may be limited in the case of communications addressed to properly trained police officers because police officers are expected to exercise greater restraint in their response than the average citizen." … Not only did [Evans] not verbally or physically threaten the officers, but all remarks were made while he was either standing on his front porch, from his door jamb, or from inside the residence and did not incite any bystanders or neighbors. While Evans's remarks are surely rude and unseemly, telling the officers to leave and to get off his property, even when laced with profanity, were not actions established by the facts in this case that would have a "direct tendency" to cause a violent reaction from a reasonably trained police officer. In fact, the record contains no testimony that either officer felt threatened by the remarks.

And the court reversed Evans' conviction for resisting arrest, for state law reasons that you can read here. Here are more of the facts:

During daylight hours on April 3, 2022, Lynchburg Police Officers S.C. Reed and Williams responded to a "disorderly call." Both officers wore their police uniforms and displayed their badges of authority. Officer Reed arrived first with his police dog, Knox. Knox was trained to bite and hold a suspect even if a suspect resisted. Knox wore a bullet proof vest with "police" on one side and "K-9" on the other.

Footage from Officer Reed's body worn camera showed him arriving at a residence, exiting his patrol vehicle, and approaching a home while leaving Knox in the police vehicle. There was no one outside when Officer Reed arrived. As the officer walked across the lawn, Evans slammed his front door shut. From the lawn, Officer Reed announced that he was a police officer. Evans opened the door, stepped onto the front porch and appeared "very amped up, very angry, and very aggressive." Officer Reed inquired, "you ok?" Evans stated, "ya, I'm fine. How you doing?" Officer Reed stated, "Good. What's going on?" As Evans re-entered his home he yelled, "ain't no fucking thing going on, get the fuck out of here." Evans also repeatedly slammed his door and banged loudly on his windows while the officers were outside his residence.

Officer Reed acknowledged Evans's request to leave and told Evans not to come outside because he did not want to arrest Evans. Nonetheless, Evans reappeared and asked what Officer Reed had said. Officer Reed repeated his warning and explained that the police department had received calls complaining about Evans's behavior outside of his home. Evans replied [while] {standing on the door jamb}, "I'm not inside [sic] motherfucker, leave." Officer Reed acknowledged Evans's second request to depart and began to walk back to his vehicle.

As Officer Reed turned to leave, Evans opened the door again, and from the door jamb stated, "You get your fucking piece of shit ass out of here, alright." Officer Evans responded, "Sir you need to go inside." Evans continued, "you can leave. Get the fuck back in the car LPD and leave, alright." Officer Reed again acknowledged Evans's request but ordered him to "stay inside."

As Officer Reed walked back to his patrol vehicle, Evans continued to yell at him from inside of the residence. Officer Reed ordered Evans to remain in his home or he would be arrested for disorderly conduct. Evans continued to shout profanities that could be heard outside his residence.

At this juncture, Officer Reed determined that he would arrest Evans for disorderly conduct. Officer Reed noted that, based on his training and experience, he believed that Evans was under the influence of narcotics. Consequently, Officer Reed retrieved Knox from his patrol vehicle. Officer Reed noted that Knox was to be a deterrent to any aggression and was to be a way to protect both himself and Officer Williams, who arrived at the scene as he was retrieving the dog. While Officer Reed was in the road next to his police car, he warned Evans that he would "g[o] to jail for disorderly conduct" if he exited the residence again. Nevertheless, Evans continued to slam the door and scream profanities. The officer could hear Evans yelling at him from inside the residence.

When Officer Reed returned to the residence with Knox on a leash and Officer Williams with him both the storm door and front door were closed. Officer Reed told Officer Williams that he was going to arrest Evans for disorderly conduct and that Evans had "already been outside, so we've got him." Evans, from inside of the residence continued to yell profanities at the officers. Evans briefly opened the doors but then secured the storm door before Officer Reed informed him that he was under arrest and gestured for Evans to step out of the residence. Evans began to slam the front door. Officer Reed then opened the storm door and kicked the front door open before it latched, and Knox went inside. As Knox entered the home, Evans attempted to slam the door shut again and the door's handle struck Knox's head and body….

At no time during the entire encounter was anyone observed outside of the residence except for the officers and Evans. Evans was either on his front porch, at his front door jamb, or inside his residence during any interactions with the officers. The residence is surrounded by other houses and is situated at the corner of two public streets….

Kelsey Bulger, Senior Appellate Attorney at the Virginia Indigent Defense Commission, represents Evans.

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[Josh Blackman] Reconsidering United States v. Nixon

[Maybe the Roberts Court was right and the Burger Court was wrong.]

Fifty years ago today, President Richard Nixon resigned. His resignation came shortly after the Supreme Court unanimously decided United States v. Nixon. This decision is often held up as an exemplar of Supreme Court jurisprudence at its best. Justice Kavanaugh, for example, often stresses that Nixon was joined by three Nixon appointees. (Justice Rehnquist recused because former Attorney General John Mitchell, one of the defendants, had been Rehnquist's boss.)

But I'm not sure Nixon has stood the test of time. The argument that the Court had jurisdiction to resolve what was, in effect, a dispute within the executive branch, never persuaded me. This theory led inexorably to the concept of the independent counsel, an anathema to the separation of powers. Moreover, to the extent that Nixon said anything at all about the Appointments Clause, that analysis has been overcome by Buckley v. Valeo, Bowsher v. Synar, and other cases. (Seth Barrett Tillman and I explain why the holding of Nixon, whatever it is, was limited to some "unique" facts—which is precisely what the decision repeatedly stated.) I've long seen Nixon v. Fitzgerald as a something of a correction to Nixon. Fitzgerald was decided nearly a decade after Nixon during a more sober time.

There's more. Today's Wall Street Journal includes an Op-Ed by Kenneth L. Khachigian, who served as an aide to President Nixon. He argues, provocatively, that Nixon should not have resigned, and that he could have survived an impeachment vote–or at least that he should have taken a principled stand and forced Congress to impeach him. But more relevant for my purposes are behind-the-scene machinations. Khachigian speaks to some of the questionable legal issues lurking in the background:

I hope new generations are open to some different thinking—or at least a balanced treatment that goes beyond the story of bungling burglars and political damage control. It must include how the "Watergate affair" was also the culmination of Nixon's political opponents' long-yearned-for goal of destroying him. Nixon had a political target on his back from his congressional days of vanquishing the communist Alger Hiss, a favorite of Washington's intellectual left. Through his entire presidency, Congress was controlled by opposition Democrats, with confrontation aggravated further by Nixon's determination to end the Vietnam War he had inherited from the Kennedy and Johnson administration planners at the State and Defense departments.

Sen. Edward Kennedy set up the Senate Watergate Committee. Three months later John F. Kennedy's 1960 campaign director of opposition research against Nixon, Archibald Cox, was hired as Watergate special prosecutor with a staff seeded from the ranks of Robert F. Kennedy's Justice Department. The subsequent special prosecutor, Leon Jaworski, expressed concern in an internal memorandum that his chief deputy reflected "an attitude I discussed with you before—the subjective conviction that the president must be reached at all cost."

Watergate scholar Geoff Shepard has unearthed further damning evidence that the special prosecutors had several unethical private meetings with Judge John Sirica in the absence of attorneys for Nixon and Watergate defendants—each violating the most basic legal protections. Nixon's adversaries weren't looking only for the truth. They were looking for a scalp.

I didn't know these things. Did you?

There is also the entire fever pitch of the time. Every element of government was focused on getting Nixon out of office. And from what I've researched, we still have no idea what the burglars were looking for in the Watergate Hotel. Nixon had no role in, or even knowledge of, the break-in before it happened. But he later became aware of the break-in. My sense is that Nixon did the sorts of things that  many of his predecessors had done, and gotten away with, but Nixon was recorded. I was not alive at the time, but I have to imagine that Watergate felt something like the resistance to the Trump Presidency.

After half a century, perhaps the members of the Trump v. United States majority have come to second-guess the Nixon majority. The immunity case, I've written, culminated from years of lawfare against Trump. James Piereson makes this point at City Journal:

Pushback against the Watergate legacy is evident in efforts to curtail independent prosecutors and partisan "lawfare," conservative attacks on the politics of the nation's capital, and Trump's current presidential campaign, supported in great part by voters who believe that they have been shut out of influence in Washington and (inferentially) that Watergate promoted political rules that reward insiders. The Supreme Court recently broke new ground in ruling that a president is immune from criminal prosecution for acts undertaken while carrying out the core powers of the presidential office. That opinion may partly reflect a recognition of the lawfare that a Democratic administration is waging against its Republican opponent. It is, in addition, an opinion that works against Watergate sensibilities in regard to presidential conduct and accountability. It's a worthy question whether the current justices would have ruled as their predecessors did in 1974's United States v. Nixon regarding the White House tapes. Today's Court might have permitted Nixon to keep those tapes, in the belief that Watergate represented a form of lawfare against an elected president.

Maybe the Roberts Court was right and the Burger Court was wrong.

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[Eugene Volokh] "XY Athletes in Women's Olympic Boxing: The Paris 2024 Controversy Explained"

["The historical, political, and medical context of the Imane Khelif and Lin Yu-ting cases."]

An interesting and informative Quillette article by Duke Law School Prof. Doriane Coleman, who has guest-blogged here on gender and sports. An excerpt from the introduction and the conclusion:

With the return of the Olympics, it's time for another predictable global uproar about XY athletes competing in the female category. This is now a century-old problem in elite sport that we've somehow not yet managed to solve in a uniform way. The Paris 2024 iteration of this debate is arguably the most explosive ever due to a confluence of at least three factors:

This time around, the athletes are boxers not runners, which means they're going to be punching their competitors. Physical safety and gender norms, not just competitive fairness, are front-and-centre in people's minds. After the debates about Lia Thomas and Caster Semenya (which I discussed in an essay for Quillette in 2019), the public knows a lot more—though still not enough—about the two categories of XY athletes who might be included in female competition: transwomen like Thomas and people like Semenya with disorders or differences of sex development (DSD). DSD are also sometimes called intersex conditions or sex variations by those who prefer non-medical terms. The domestic culture wars around sex and gender have since heated up significantly to become a global battle, with LGBTQI-rights organisations and their allies in the international human-rights community arguing that sex isn't real or doesn't matter—either at all or as much as gender identity. Authoritarian regimes led by the Kremlin, meanwhile, describe gender diversity as a harbinger of the end of Western civilisation.

…

I will close by reiterating the three basic points that I and other experts in girls' and women's sport have been making for a long time.

First, the female category in elite sport has no raison d'être apart from the biological sex differences that lead to sex differences in performance and the gap between the top male and female athletes. The suggestion that we could choose to rationalise the category differently—for instance, on the basis of self-declared gender identity—or that we could make increasingly numerous exceptions in the interests of inclusion (as the IOC seems to have done to allow Khelif and Lin to compete in Paris) has no legs outside of certain progressive enclaves.

Second, any eligibility standard—like the IOC's framework—that denies or disregards sex-linked biology is necessarily category-defeating.

Finally, federations that are committed to the female category and to one-for-one equality for their female athletes must step up and do two things. They must craft evidence-based rules and then stick to them consistently. And they must seriously embrace other opportunities to welcome gender diversity within their sports.

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[Josh Blackman] Today in Supreme Court History: August 8, 2009

8/8/2009: Justice Sonia Sotomayor takes oath.

Justice Sonia Sotomayor

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[Josh Blackman] Judge Ezra's Worrying Behavior in the Buoy Case

[Judge Ezra boasted about knowing the judges on the Fifth Circuit, being sworn into the Texas Bar by the Chief Judge's husband, and threatened to have the Deputy Solicitor General's lawyer removed from the courtroom.]

On Tuesday, July 30, the en banc Fifth Circuit vacated the preliminary injunction that Judge David Ezra had entered in the buoy case. (Ilya wrote about the case here.) To date, the Fifth Circuit has not yet issued the mandate in that case, which remains before the court of appeals. What has happened over the past eight days is weird–so strange that I worry about Judge Ezra. I will lay out the chronology as best as I can, and offer some commentary along the way. I apologize for the length of this post, but there is much ground to cover.

7/31/2024—Texas Files a Petition for Writ of Mandamus

The 5th Circuit's en banc decision vacated Judge Ezra's issuance of a preliminary injunction. But even if the PI is vacated, the case could still proceed to a trial on the merits. Remember, the "emergency" docket is just a prelude to a final judgment. Texas requested a jury trial. Judge Ezra ruled that this sort of case is not tried before a jury. And Judge Ezra had set a bench trial date of August 6. On July 31, 2024, the day after the en banc court ruled on the PI, Texas sought a petition for a writ of mandamus to postpone the pending trial so the court of appeals could resolve the jury trial issue:

Initially without reading—let alone ruling on—Texas's motion to dismiss, and with full knowledge that this Court was debating what legal standard should govern, the district court set this case for trial on March 19 and then re-set it for August 6. When the district court finally did rule on that motion, Texas timely answered, invoking its right under the Seventh Amendment to a trial by jury. Late last week, less than two weeks before trial, the district court struck that demand. Texas now asks this Court to vindicate its Seventh Amendment rights by issuing a writ of mandamus.

Before the United States could even respond to the mandamus petition, Judge Ezra issued an "advisement" to an unknown "panel" of the Fifth Circuit.

8/1/2024—Judge Ezra's First "Advisement"

On Thursday, August 1, 2024, Judge Ezra issued what he styled as an "Advisement to the Appropriate Panel of the United States Court of Appeals for the Fifth Circuit." I've never seen such a document issued by the court. The closest I can think of is when a district court judge responds to a mandamus petition. I find that practice bizarre, but it happens. Here, Judge Ezra sua sponte issued this advisement, without even know what action, if any, the Fifth Circuit would take.

Judge Ezra wrote that he was "inclined to grant [Texas's] Motion for Continuance so that the Fifth Circuit mandamus Panel may have sufficient time to address the merits of Texas's petition for writ of mandamus with the input of the United States." In a footnote, Judge Ezra referenced the possibility of the Fifth Circuit issuing an "administrative stay." Then, the "Advisement" included an entire page of reasoning for why Texas might not be entitled to a jury trial. This document reads like a brief from a District Court judge to the Fifth Circuit.

8/1/2024—The First 28(j) Letter to the Fifth Circuit

That same day, Lanora Pettit, the Texas Principal Deputy Solicitor General submitted a 28(j) letter, apprising the Fifth Circuit of Judge Ezra's "Advisement." Pettit explained that the United States no longer opposed a motion to postpone the trial. But rather than granting that motion, the District Court scheduled a status conference on the day the trial was to begin. Pettit also points out that the "Advisement" offered new arguments that were "nowhere found in the court's prior orders."Again, the mandate had not issued by the en banc court, so the bouy case still remained on the Fifth Circuit's docket. Pettit closed:

Because the district court refused to rule on the federal government's unopposed motion for a continuance of next week's trial and—in any event—has indicated that it still "expect[s] to begin trial on October 8, 2024," Texas urges the Court to promptly issue an administrative stay of the trial and then a stay pending this Court's consideration of Texas's mandamus petition. These orders will remove any ambiguity regarding the pendency of next week's bench trial and preserve this Court's prerogative to set its own schedule to resolve Texas's petition.

This letter would bother Judge Ezra.

8/2/2024—Judge Ezra's Second "Advisement"

On Friday,  August 2, Judge Ezra issued a "second advisement" to the "appropriate panel" of the Fifth Circuit. He provided notice that he granted Texas's unopposed motion to continue the trial for ninety days. After this order, the Fifth Circuit denied Texas's emergency petition as moot. But Texas's mandamus petition on the jury trial issue was still pending.

8/2/2024—The Second 28(j) Letter to the Fifth Circuit

Principal Deputy SG Pettit submitted another 28(j) letter to the Fifth Circuit, noting that the District Court cannot set a 90 day "artificial deadline" for the court of appeals to resolve the mandamus petition:

As this Court rightly recognized in this afternoon's order denying the emergency motions as moot, the district court's sudden change does obviate the need to rule on Texas's stay motion in an emergency posture. But for the reasons I explained yesterday, this Court should still stay the trial proceedings pending full consideration of the mandamus petition, rather than allow the district court to set artificial deadlines for this Court's own deliberative process.

This letter would bother Judge Ezra even more.

8/6/2024—The First Status Conference

A lot happened on Tuesday, August 6. That morning, starting around 9 a.m., Judge Ezra held a status conference. From the outset, things were, to use the word of the zeitgeist, weird. Judge Ezra asked James Sullivan, Governor Abbott's general counsel, to make an appearance, even though he was not seated at counsel table, and has not made an entry in this case. Ezra, talking to Sullivan, "And my buddy back there in the courtroom, good to see you. You want to make your appearance?" At various junctures, Judge Ezra would ask Sullivan, who again is not a lawyer in this case, to make arguments.

Judge Ezra then went on a lengthy discussion about how the en banc majority opinion may not be precedential. He went to painful ends to repeat over and over again that he had not yet made up his mind. But he was signaling as loud as he could how he was reading the en banc court's majority opinion. Ezra referred to a statement made by Governor Abbott, who he described as a "very bright man." Ezra then went on a long tangent about how four of his cases got to the Supreme Court, and he "did okay at the Supreme Court except in bump stock." (Yes, I pointed those out here.) And he predicted the buoy case would "end up" before the Supreme Court. (It has already been to the shadow docket.)

Ezra didn't understand why "Texas would actually want a jury in his case . . . unless it was just a way to delay the case." Ezra seemed to cast doubt on Texas's motivation, and said "a lot of people have been shaking their heads on that one." Who these people are, Judge Ezra does not say (here at least). If Texas is correct, then it has a Seventh Amendment right to a jury. Judges usually don't question why people seek to exercise their constitutional rights. Would Judge Ezra ask a criminal defendant why he sought to exercise his right to counsel?

Ezra then returned to the en banc vote, and referenced "chatter" from "law professors" and "judges."

Yeah. I want to make it very clear that I am personally not saying there is a definitive split here. What I'm saying is that has—that is the chatter, okay? There are law professors and judges who have said that Judge Willett's opinion is not precedential. Now, I'm not saying that. I want to make that very, very clear.

Later in the hearing, he referred to "voices" who were talking about the case.

Huh? Is Judge Ezra merely being a passive vessel, reading what law professors are writing? He obviously reads this blog, which is why he felt compelled to email me about my post. If any judge tells you they do not read the press, they are not telling you the truth. Judges get to their positions by profoundly caring what people write about them, and they consistently act accordingly.

I have not read all of the blog commentary on the en banc decision, but I have yet to see anything questioning whether Judge Willett's opinion is precedential. Please email me if I've missed anything. Again, I found it unexpected that Judge Ezra had contacted me about one of my posts. Perhaps he has communications with other law professors about the case? I don't know. Ezra also references other judges. But who are these judges? Is he talking about this pending case with other judges? The answer is yes, apparently, which he would make clear at the August 7 hearing.

Judge Ezra then faulted Texas for asking the Fifth Circuit to rule on a motion by a particular time.

And I don't want to put you in the same kind of squeeze play the State likes to put me in. By the way, I think that's a bad practice. If I were you, I would not continue—I would talk to whoever is in charge of that and not do these letters to the judge saying, if you don't rule by tomorrow at I'm doing this. It kind of sounds like a threat, and federal judges don't do threats well. I think it's not a good idea to do that. have never in my entire 35, almost 36 years, on the bench had it done to me, except by the State of Texas twice now

The United States Solicitor General does this quite often–it announces that if a lower court does not rule on a motion by a certain date, it will go to the Supreme Court for emergency relief. The transcript went on to discuss some other matters.

Onto the next item.

8/6/2024—The Order for Further Status Conference

After the August 6 hearing concluded, the court ordered another status conference for August 7. And Judge Ezra made a particular request:

It is requested that Lanora C. Pettit, Principle Deputy Solicitor General be present at the scheduled conference.

The Principal Deputy SG had not made an appearance in Judge Ezra's court. Like in the federal system, SG lawyers generally appear in appellate matters. Judge Ezra did not say why Pettit had to appear before him. But the Court did not request that lawyer from DOJ should appear:

In the event that lead counsel for the United States have returned to Washington DC, it is acceptable that a local representative from the United States Attorneys Office be present.

8/6/2024—The Third 28(j) Letter to the Fifth Circuit

Later in the day on August 6, Pettit submitted another 28(j) letter to the Fifth Circuit to "notify the Court of developments during today's status conference of which the Court may wish to be aware before it issues its forthcoming mandate." Here is Pettit's summary of the proceeding:

Without prompting from either party, the district court raised the possibility that Judge Willett's opinion for the en banc Court "might not be precedential," based on unspecified "voices" and "chatter" the district court had either heard or read from ex parte sources who suggested that the opinion was "not entirely clear." Although undersigned was not present, the district court reportedly opined that "[w]e have a 9-9 split" because Chief Judge Richman "did not agree with the majority," and the separate opinion by Judge Ho "did not say anything at all."

Accordingly, the district court ordered the parties to file additional briefs no later than September 20, 2024, addressing the impact of this Court's en banc decision. In the process, the district court provided citations to decisions that neither party had previously raised, and which he suggested either party might consider citing in support of an argument that the district court need not follow Judge Willett's opinion in this case.

Again, the Fifth Circuit had not yet issued its mandate. My understanding is that any one judge on the court can withhold the mandate. And, as should be clear in this post, there may be very good reason why the Fifth Circuit would give some more thought before returning this case to Judge Ezra.

This letter would really, really bother Judge Ezra.

8/7/2024—The Second Status Conference

On Wednesday, August 7, Judge Ezra held a status conference that lasted about an hour. This hearing transcript, is unlike any other I've ever reviewed. It must have been even weirder in person.

To be clear, Lanora Pettit was not counsel in this matter before the District Court. Judge Ezra did not indicate why he was requesting her presence. When I reviewed the order on August 6, I wondered if he would hold Pettit in contempt of court. Reasonably, Pettit brought counsel to represent her: Joseph Mazzara, a special counsel to the Attorney General. I always tell my students that the most important rule of lawyer is that the lawyer should never go to jail. And Mazzara was there to represent Pettit's personal interests.

At the outset of the hearing, Judge Ezra opined, "I had invited, but had not ordered, Ms. Pettit to be here. Is she here today?" Mazzara spoke up. "Yes, Your Honor. She's here, and I'm representing her. I'm her counsel, Joseph Mazzara, for the purposes of this hearing today." Judge Ezra responded, and asked if Mazzara was licensed in the Western District of Texas. He was not. Ezra said, "Now, if you're not licensed, technically, you cannot argue." Mazzara replied that given the compressed timeline, "putting in a pro hac vice application didn't seem to be feasible."

In a normal courtroom, a judge in an emergency posture could have sua sponte granted a pro hac vice application. In the 3D-printed gun litigation, where I had to defend against several emergency TROs in many courts where I was not admitted, including the Essex County Chancery Court, every judge readily granted my ability to argue without filing the necessary paperwork. But Judge Ezra took the other path.

Judge Ezra said he would not sanction Pettit:

I am not sanctioning Ms. Pettit. I am not mad at Ms. Pettit. I am not going to be criticizing Ms. Pettit personally. I am concerned about the filing that was made, and I'm going to be questioning her about that filing. But I am not in any way, shape, or form going to be doing anything to her that she would require an attorney.

Mazzara explained that Pettit did need an attorney because the judge would be "questioning her." Judge Ezra said she did make an appearance in this case. Mazzara corrected him, she made an appearance "In the appellate court." Judge Ezra replied:

It doesn't matter. We are one federal court, sir.

Ummmmm, no. There is not "one federal court." Some inferior courts are more inferior than others. And as a practical matter, a lawyer admitted in the Western District of Texas bar is not admitted to the Fifth Circuit bar, and vice versa. Judge Ezra had just finished beating up Mazzara on the fact that he was not admitted to WDTX.

Judge Ezra then asked Pettit to "come forward." Mazzara asked if he was "asking her to appear as a witness." Judge Ezra replied:

I'm not asking her to appear as a witness. She wrote a letter which addressed my comments in this court, and I'm trying to find out the basis for what she said, number one.

I have no idea what this statement means. Pettit is clearly a fact witness. She is not a lawyer before this court. But worse still, Judge Ezra is asking about material that is pretty clearly privileged. Another attorney for the AG's office pointed out the obvious:

I'm sure the Court understands that we—no one here will be able to talk about any of the internal deliberations within the Attorney General's Office or with our clients about the motivation or decisions to file this letter to the Fifth Circuit.

Mazzara added that "any questions regarding the letter would fall under any number of privileges." Ezra disagreed, and said the letter was "publicly filed." Mazzara tried one more time:

MR. MAZZARA: Not the letter. It's not the words, the text of the letter itself, but any mental impressions she had or any thought she had that went into —

Judge Ezra interrupted Mazzara mid-sentence, and told him to sit down:

THE COURT: I have every right and obligation to address the matters that are in the letter, so you may be seated, sir.

Judge Ezra then goes through, line-by-line, the August 6 28(j) letter. In the process, he makes another clear error of law. Judge Ezra said the "case is essentially closed." Pettit replied that the "opinion had been issued but not the mandate." After some back-and-forth, Judge Ezra said the "only issue" pending before the Fifth Circuit was the mandamus petition over the jury trial." The following exchange should make every federal courts student in the country cringe:

MS. PETTIT: Respectfully, Your Honor, the mandate has not issued in the primary case.

THE COURT: It doesn't matter whether the mandate has issued or not.

MS. PETTIT: The Court retains jurisdiction until the mandate does.

THE COURT: It doesn't matter. There's no litigation going on.

Judge Ezra is so, so very wrong. Until the mandate issues, nothing has changed. Courts write opinions, but speak in judgments. Tomorrow, the Fifth Circuit could issue a modified en banc opinion, and that would be procedurally proper. At one point, Judge Ezra name-checked his law clerk. (I can only recall one other instance where a judge referenced his law clerk in a judicial proceeding.) He should check the clerk's copy of Hart & Wechsler. Or he can check with Judge Chutkun, who sat on her hands until the Supreme Court mandate issued, and then moved into swift action. (SCOTUS did not issue the mandate in the immunity case "forthwith," thereby making it even more difficult for a pre-election trial to occur. Judge Chutkun, like Judge Ezra, is quite eager to bring a case to trial as soon as possible.

Judge Ezra continues to grill Pettit. He describes her as "kind of a volunteer" who wrote this letter without any attachment to his case. Mazzara stands up, and Judge Ezra barks at him, "No. Sit down. No, sir. Not yet." Mazzara lodged an "objection to this line of questioning." Judge Ezra then threatened to remove Pettit's counsel from the court:

THE COURT: Counsel, listen. If you don't listen to me, I'm going to have to ask you to step outside. I told you I would give you plenty of opportunity to address the court, and you will have that opportunity and I respect your opportunity to do so. But I can't have you jumping up like a jack-in-the-box every two minutes. You're not even a member of this court. You're lucky that I'm even letting you say anything here.

Wow. This passage will be reviewed in some future judicial misconduct proceeding.

Things get weirder. Judge Ezra continues to parse through the 28(j) letter. He addresses the "chatter" and "Ex parte sources."

First of all, you make a big deal out of the fact that, without prompting from either party, the District Court raised the possibility that Judge Willett's opinion from the en banc court might not be precedential based on unspecified voices and chatter 4 the District Court had heard or read from ex parte sources who suggested that the opinion was not entirely clear. That is absolutely true. That is true. I will agree with you. I did raise it. The implication here is that the court did so for the purpose of attempting to encourage or announce its belief that Judge Willett's opinion was not precedential or that I did not have the authority or the right to raise it ex parte.

I'm not entirely sure what Judge Ezra admits is "absolutely" true. Did he in fact have ex parte conversations about the case?

Judge Ezra also speculates that it was Texas's "intent" to influence Judge Ho:

But there is an issue, and that issue needs to be briefed. Here's the reason: This case is not going to end with the Fifth Circuit. If by sending this letter it was your intent to alert Judge Ho that he had not written on this issue and to try to get him to amend his opinion, that might work. I don't know. It wouldn't look good, but it might work. . .  .This is an argument trying to get the Fifth Circuit, either Judge Willett to rewrite his opinion or to get Judge Ho to change his opinion or to get judge—Chief Judge Richman to somehow change her opinion. That's what—I mean, it's pretty obvious. . . .

What I do know is that Judge Ho did not opine at all on the issue. He took a totally different tack. He felt that the case should be dismissed out of hand for jurisdictional reasons. So he partially dissented,  actually. And we do know that Chief Judge Richman did not agree with the majority, in part. She joined in judgment, but she did not agree with the majority's reasoning that the way you—on the way that you judge navigation, which was a hallmark of Judge Willett's opinion. We know she didn't agree with that. So that leaves—that leaves us with some uncertainty.

…

But my concern is this. My concern is this: Somebody—and I don't think it's really Ms. Pettit. But somebody seems to think that by sending a letter like this in to the Fifth Circuit, they are in a position to influence the Fifth Circuit to do something they might not otherwise do. Why else would the letter be sent?

Let me unpack what is going on here. Judge Ho found that the Invasion Clause presents a political question, so the court lacks jurisdiction. He did not join Judge Willett's majority opinion on the statutory issue. I think Judge Ezra is worried that Judge Ho might amend his opinion to explain that, assuming the court had jurisdiction, he agrees with the majority's statutory analysis. Ezra said as much:

But there is an issue. We have a deeply divided opinion. And it is in Judge—and it's a fact that Judge Ho did not weigh in on this issue. Maybe he will now. Maybe he'll file some sort of an amended opinion now that he's gotten your letter. I don't know. But he could do that at any time. Maybe that was the purpose of it. I don't know. I hope not. Or maybe Judge Willett will file—I have no idea.

Such an amended opinion would then create a clear and unmistakeable majority opinion that does not turn on the scope of Chief Judge Richman's concurrence. Judge Ezra would mention Judge Ho several other times. Judge Ezra has some weird fixation on Judge Ho. But he went out of his way to explain how he is friends with other Fifth Circuit judges. But not with Judge Ho.

I love the State of Texas, actually. I didn't have to become a member of the Texas Bar, but I did. Why? Because I'm proud to be a member of the Texas Bar. That's why. And my good friend, the Chief Justice, swore me in his office. And I'm very proud of that, too. . . . Look. I am very good friends with many of the those judges. I don't know all of them well, but I know  most of them. And I have a wonderful relationship with—even like Judge Willett and I have a good relationship. He's a great judge. Judge Elrod and I are very good friends, very good friends. Judge—Chief Judge Richman and I are very good friends. Judge Oldham and I are friends

For those who may not know, Chief Justice Nathan Hecht is married to Chief Judge Richman. Ezra stated further that he has a connection with Judges Willett and Elrod because of Baylor football:

They go to Baylor games like me. Judge Willett's a big Baylor fan, as is Judge Elrod and I. That's our connection. And Judge Richman, by the way, Chief Judge Richman.

And Judge Ezra repeated for the umpteenth time that he was appointed by President Reagan.

And President Ronald Reagan wasn't known for appointing left-wing radical jurists, and I don't think I've ever proven to be one

He made the same point to me in our email exchange. Ezra was appointed to the District of Hawaii in 1988. That year, Hawaii had two democratic senators, Spark Matsunaga and Daniel Inouye. At that time, both Senators retained a blue slip. President Reagan was extremely deferential on district court nominees in states with two democratic senators. Remember George H.W. Bush nominated Sonia Sotomayor to the District Court and David Souter to the Supreme Court. Reagan's nomination of Judge Ezra says nothing at all about his conservative bona fides. And, if I had to pick a bone, many of Reagan's circuit nominees left a lot to be desired.

Judge Ezra also made a bizarre comment about people thinking that Texas has the Fifth Circuit "in their back pocket."

You know, I'll tell you what the worst part of this is. And I don't think it's true. I really don't think it's true. It could leave somebody with the impression that the State of Texas thinks they've got the Fifth Circuit in their back pocket. Now, I don't think you believe that. I really don't think the Attorney General's Office believes that they have the State of Texas in their back pocket and they can just file anything they want, prejudice the Court against this Court, and get a successful ruling. I do not believe the Attorney General's Office believes that. If I did, you would know it.

MS. PETTIT: Your Honor, for the record, we definitely do not.

THE COURT: You don't have to tell me that. I already said I don't believe that you do. But somebody who just read this and would say why did they send this in? What was purpose of it? What is the big, important issue here? I don't know. I don't know why it was sent in. It was ill-advised.

Tell me how you really feel, David Ezra.

Judge Ezra apparently is talking about this case with other judges–"conservative" ones at that! And he heard some more "chatter."

And maybe I'm just naive. No judge that I've raised this with and talked to about this, just asked them if this is a policy or if they've ever seen it, nobody had ever seen it. And we're talking about conservative judges now that I talked to. Nobody had ever seen it or heard of it. . . . But then I heard some chatter.

To date, Texas has not made a motion to remove Judge Ezra from the case. Yet Judge Ezra is clearly thinking about the issue and brought it up himself:

It appears the State of Texas has some idea in its head—from where, I don't know—that I am not the right judge for this case because I've already made up my mind. I haven't. Or that I am prejudiced against the State of Texas. I am not. . . . In my entire career as a federal judge, all the cases I've handled, all the circuits that have heard my appeals, I have never to my knowledge been removed—or my recollection—from a case for bias or for any other reason.

There is a first time for everything.

At the end of the hearing, Judge Ezra reached out to talk to a reporter from the Austin American Statesman, who made an appearance!

All right. Again, I want to thank all of you for being here. And, by the way, if you don't think—this is the really odd part of it. There's a reporter for The Statesman who I've never personally met, who happens to be an excellent reporter. What is his name again? He's already got an article out on this. . . .Is it Jeremy?

THE CLERK: I don't think so. I don't have Internet.

THE COURT: What is his name? Are you out here? What is your name, sir.

MR. MORITZ: Your Honor, I'm John Moritz with the Austin American-Statesman.

THE COURT: There you go. Mr. Moritz. Mr. Moritz is an excellent reporter. I read his articles many times. He generally gets it absolutely right, which is not something that happens often. And he's already written an article on this, and he has brought out the facts in that article. Do you think that these Fifth Circuit judges live in some sort of a bubble and they don't read the newspaper? They do. We don't all live in a bubble. They read the newspapers.

Ezra said that Mortiz would write an article today about the hearing:

Okay. And he'll write another article today maybe. I don't know. But he is a good reporter.

Moritz did, and mentioned absolutely none of this worrying conduct.

***

There are radical federal judges in Texas, but they are not Matthew Kacsmaryk and Reed O'Connor. They are Judge David Ezra, and I would add, Judge Janice Jack, who should be removed from her absolute control of the Texas foster care system. These judges behave as interested parties in the case, and cannot even see how out-of-bounds they are. It is a problem. I still believe the judiciary can regulate itself, but there is some room for introspection here.

The post Judge Ezra's Worrying Behavior in the Buoy Case appeared first on Reason.com.

[Eugene Volokh] Scooby Dooby Doo, Whose Are You?

In Roger v. Keller, decided earlier this month by Waterbury, Connecticut trial court judge Robert D'Andrea, plaintiffs had a pit bull named Scooby; they kept him with defendants (who were apparently, to oversimplify, plaintiffs' family members) for three years, despite defendants' insistence that plaintiffs take them back. Eventually, defendants gave him away (the opinion is unclear on to whom), and plaintiffs sued, claiming this violated plaintiffs' property rights:

Plaintiff Roger filed an affidavit attesting that on or about November 9, 2019, he found the pit bull abandoned in Waterbury and took possession of it that day. However, the plaintiffs, rather than taking the pit bull to their own apartment, brought the pit bull to 25 Linden Street, Oakville, Connecticut, the home of defendants Deborah Roger and Phil Roger (collectively "Rogers"). The plaintiffs asked the Rogers to take care of the pit bull for a few weeks, then for a few months, then for a few more months, and so on. The plaintiffs did not live at 25 Linden Street, but the plaintiffs rented in the Waterbury/Watertown/Oakville area property which prohibited animals. The pit bull resided with the defendants in Oakville from approximately November 9, 2019 through June 28, 2022, or about two years and eight months.

From the start, and for the entirety of the nearly three years Scooby lived with them, the Rogers claim that they repeatedly asked the plaintiffs to take back possession of Scooby citing physical and financial circumstances; and although the plaintiffs had numerous opportunities to do so, they repeatedly failed to take action. Following a major back surgery, defendant Deborah Roger asserts that she demanded that the plaintiffs take possession of Scooby or else it would be rehomed. Defendant Deborah Roger further warned the plaintiff Roger that Scooby would be rehomed should the plaintiff Roger be arrested or incarcerated. Once again, the defendants assert that the plaintiffs had numerous opportunities to take possession but repeatedly failed to do so.

The defendants Rogers and their family, with the exception of the plaintiffs, were the sole providers for the pit bull during the nearly three-year period it lived with them in Oakville. The defendants Roger, not the plaintiffs, provided Scooby food, water, shelter, entertainment, and exercise. The defendant Rogers, not the plaintiffs, let Scooby outside and cleaned up after it. The defendants Roger, not the plaintiffs, incurred the cost associated with its care. The plaintiffs occasionally took Scooby for an overnight stay at their rental properties but otherwise left it with the Rogers in Oakville and bought several bags of food over the nearly three-year period. At no point did the plaintiffs take possession of Scooby, provide for it, or offer compensation to the defendants Roger for the cost they incurred. The plaintiffs simply expected the defendants Roger to take care of Scooby indefinitely.

Some time during 2021, the plaintiff Roger moved in with the defendant Rogers at 25 Linden Street while plaintiff Rizzo returned to her parents' home in Morris, Connecticut. There was no lease, verbal or written, for the plaintiff Roger's stay with the defendants Rogers, and he did not pay rent or utilities. Notwithstanding that plaintiff Roger lived with Scooby, the Rogers continued to be the exclusive providers for Scooby. The defendant Rogers continued to incur the cost of its care. Attached to the defendants' affidavit is defendant Deborah Roger's order history from Chewy.com, an online vendor which delivered food and toys for Scooby.

Some time between May and June 2022, plaintiff Roger learned of a warrant for his arrest, and he fled the defendant Rogers' home, leaving all personal property, including Scooby. In addition to his flight and attempt to evade the warrant, the plaintiff Roger provided his defense attorney fabricated documents indicating he was killed in action in Ukraine. Attached as Exhibit B is a transcript of State v. Roger, Docket No. U04W-CR16-0436674-S, in which counsel and the court (Papastavros, J.) discuss and attempt to verify said totally fabricated documentation. None of the defendants are currently in possession of the pit bull….

Here's a quick summary of the legal analysis, though the opinion is quite long:

Here, Scooby was left with the defendants for care …. The defendant Rogers …, demanded the plaintiffs take possession of the pit bull, as demonstrated by their sworn affidavit. The plaintiffs' failure to take action in response to the defendants' demands … evinces their intent to abandon Scooby….

[I]t is the defendant Rogers, not the plaintiffs, who have the requisite superior possessory interest. It defies common sense to leave your pet with others and requiring them to provide food, shelter, medical care and other pet-related needs, while attempting to avoid the long arm of the law by going "underground." The defendant Rogers' possessory interest in Scooby precludes the plaintiffs from establishing the elements required to maintain an action for replevin, or for that matter, conversion, as they cannot demonstrate that they have a superior possessory right to Scooby….

Additionally, the plaintiffs have asked this court to return Scooby to the defendants Rogers' home in Oakville because the plaintiffs are physically unable to take possession. This court cannot create a dog-related form of "indentured servitude" by requiring the defendant Rogers to again take continued unwanted possession of Scooby, and continue with care, pay all expenses, medical, food or otherwise for an indefinite period of time until either plaintiff Rizzo moves to a residence that would allow her to take possession of pets, or until plaintiff Roger is released from the Department of Correction detention and relocates to a suitable residence that will permit him to take possession of Scooby. For this court order the defendant Rogers to house, feed, provide medical care, and provide multiple daily bathroom duty for Scooby, for which they have no time, desire, or ability, would constitute a grave injustice to the defendant Rogers….

The post Scooby Dooby Doo, Whose Are You? appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 7, 2010

8/7/2010: Justice Elena Kagan takes oath.

Justice Elena Kagan

 

The post Today in Supreme Court History: August 7, 2010 appeared first on Reason.com.

[Jonathan H. Adler] Supreme Court Rejects Missouri's Attempt to Sue New York Over Trump Prosecution

[Insofar as the justices split, it was due to long-standing disagreement over the nature of the Court's original jurisdiction. ]

This morning, as expected, the Supreme Court rejected the state of Missouri's attempt to sue the state of New York over the prosecution of Donald Trump and the imposition of a gag order during the pendency of appeals. Missouri had filed a motion for leave to file a bill of complaint against New York in the Court's original jurisdiction. To call the underyling legal theory aggressive would be an understatement (something about how the state law prosecution of a presidential candidate unconstitutionally inhibits the ability of Missouri voters and electors to support the candidate of their choice). Missouri invoked the Court's original jurisdiction by styling this as a dispute between one state and another, and thus sought to bring this suit, in the first instance, in the Supreme Court.

The justices are not having it. The order reads in full:

Missouri's motion for leave to file a bill of complaint is denied, and its motion for preliminary relief or a stay is dismissed as moot. Justice Thomas and Justice Alito would grant the motion for leave to file the bill of complaint but would not grant other relief.

This means the Court split 7-2 over whether Missouri should be allowed to file its bill of complaint, but was unanimous in rejecting Missouri's request for relief in this case. (In other words, Justices Alito and Thomas would let Missouri make their case, but would not grant any of Missouri's requested relief, which included enjoining the gag order imposed on Trump by New York courts.)

No doubt some commentators will read this order as an indication that Justices Alito and Thomas believe that Missouri's filing had merit. Those that do so will show they know very little about the Supreme Court's original jurisdiction and the long-standing debate over whether the Court has jurisdiction to reject bills of complaint filed by states against other states.

The reason that Justices Thomas and Alito dissented form the denial of Missouri's motion for leave to file the bill of complaint is because they believe that when a state seeks to invoke the Court's original and exclusive jurisdiction, the Court is obligated to hear the case. This is also not a new view. See, for instance, this dissent by Justice Thomas, joined by Justice Alito, in Arizona v. California. It reads in relevant part:

The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, "[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction." §2, cl. 2 (emphasis added). In this circumstance, "[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

Our original jurisdiction in suits between two States is also "exclusive." §1251(a). As I have previously explained, "[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief." Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion  dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable.

The Court has provided scant justification for reading "shall" to mean "may." It has invoked its "increasing duties with the appellate docket," Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (internal quotation marks omitted), and its "structur[e] . . . as an appellate tribunal," Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 498 (1971). But the Court has failed to provide any analysis of the Constitution's text to justify our discretionary approach.

Justice Thomas raised this concern when Nebraska and Oklahoma sought to file a bill of complaint against Colorado over marijuana legalization too.

As I have noted before, Justice Thomas is making a serious argument, and one which I suspect may be correct. Note that this would not mean that the Court has to actually hear oral argument. Rather it would mean that the Court has to accept the bill of complaint and resolve it on the merits—something that would be quite easy to do in a case like this, but might be more difficult in other contexts (e.g. the dormant commerce clause). I suspect the justices do not want to open this door lest they invite other filings in the sorts of cases they prefer to see percolate up through the lower courts, but it is not clear to me the Constitution gives the Court that choice.

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