Eugene Volokh's Blog, page 294

[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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[Paul Cassell] 737 MAX Crashes Victims' Families Object to Boeing's "Sweetheart" Plea Deal

[My motion for the victims' families asks the district court to reject the proposed plea agreement because of its deceptive factual premises, its inaccurate Sentencing Guidelines foundation, and its inadequate accounting for the deaths Boeing caused. ]

Earlier today, I filed a motion for the Boeing 737 MAX crashes victims' families, asking the district judge to reject the plea deal that the Justice Department and Boeing have negotiated. I argue that the proposed plea agreement is a "sweetheart" deal that is an inadequate response to the deadliest corporate crime in U.S. history. Because the motion raises interesting issues of crime victims' rights and corporate accountability, I wanted to post the motion here and highlight the arguments it contains.

As noted in earlier posts here, here, here, and here, I have been working with other lawyers (pro bono) for about two-and-half years now, representing some of the families who lost loved ones in the crashes of the two Boeing 737 MAX aircraft.  To quickly recap where things stand, after two deadly crashes in 2018 and 2019, in January 2021, Boeing admitted that it concealed safety issues with the 737 MAX from the FAA. Boeing swiftly and secretly negotiated a deferred prosecution agreement (DPA) with the Department, apparently resolving its criminal liability for its deadly conspiracy to defraud the FAA.

But since then, in October 2022, the district judge handling the case (Judge Reed O'Connor in the Northern District of Texas) concluded that the 346 families who lost family members in the crashes represent "crime victims" and that their Crime Victims' Rights Act (CVRA) rights were violated by the Department covertly negotiating the DPA. And then, while issues of how to remedy that rights violations were being debated, in May of this year, the Justice Department concluded that Boeing had breached its DPA commitment to improve safety at the company. Following that breach determination, Boeing was subject to prosecution for the charge of conspiring to defraud the FAA that had been filed against it. And last week, the Department and Boeing announced the specific terms of the plea agreement they had reached to resolve the prosecution.

It is often assumed that once the parties in a criminal case (the prosecutors and defense) reach a plea, that's the end of things. But under the federal rules, a district judge must approve the plea agreement under what is essentially a public interest standard.  And my brief for the victims' families argues strenuously that this plea deal is not in the public interest.  From the introduction (some citations omitted):

Boeing's lies to the FAA directly and proximately killed 346 people, as this Court has previously found. And yet, when the Government's and Boeing's skilled legal teams sat down behind closed doors to negotiate a plea deal, that tragic fact somehow escaped mention. Instead, what emerged from the negotiations was a plea agreement treating Boeing's deadly crime as another run-of-the-mill corporate compliance problem. The plea agreement rests on the premise that the appropriate outcome here is a modest fine and a corporate monitor focused on the "effectiveness of the Company's compliance program and internal controls, record-keeping, policies, and procedures …." And as a justification for such lenient treatment, the plea agreement relies on an incomplete and deceptive statement of facts that obscures Boeing's true culpability.

The families object, as the Crime Victims' Rights Act gives them the right to do. The families respectfully ask the Court not to lend its imprimatur to such an inappropriate outcome. Indeed, the families' first objection is that the Court would not be allowed to make its own determination about the appropriate sentence for Boeing but merely to rubber stamp what the parties propose through a "binding" plea deal under Fed. R. Crim. P. 11(c)(1)(C).

In the pages that follow, the families provide eight substantial objections to the proposed plea, including its deceptive factual premises, its inaccurate Sentencing Guidelines foundation, and its inadequate accounting for the deaths Boeing caused. This Court has previously stated that when it has authority "to ensure that justice is done," then "it would not hesitate." This proposed agreement is not justice. The Court should not hesitate to reject it.

My motion advances eight different and independent arguments about why the district judge should reject the plea, specifically:

The proposed Rule 11(c)(1)(C) binding plea agreement destroys the judge's ability to craft a Fair and Just Sentence; The Parties have "swallowed the gun" by hiding relevant facts About Boeing's true culpability; The proposed plea agreement unfairly allows Boeing to escape accountability for directly and proximately causing 346 deaths; The proposed plea agreement surreptitiously and unfairly exonerates Boeing's then-senior leadership for their involvment in the conspiracy; The proposed $243 million fine to be imposed is inadequate under recognized general principles of sentencing; The proposed compliance monitor provision is inadequate because it creates unenforcable obligations; The plea agreements provisions requiring Boeing to make new investments in compliance, quality, and safety programs is also essentially unenforcable; and The agreement's restitution provision is misleading and unfairly allows Boeing to tie Up restitution awards through extensive litigation and appeals.

You can read the entire motion and incorporated memorandum here. And, in connection with the families' argument that the parties have deceptively concealed the facts surrounding the conspiracy, the families have prepared a more complete and expansive statement of facts–found here.

The Justice Department and Boeing now get two weeks to respond, and I get five days to reply. After that, the issue of whether to approve the plea will be in the hands of Judge O'Connor.

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[Ilya Somin] En Banc Fifth Circuit Rules for Texas in Water Buoy Case, but Doesn't Resolve Issue of Whether Illegal Migration Qualifies as "Invasion"

[The invasion argument is still being litigated in another case.]

(Illustration: Lex Villena; Free Speech Coalition)

Yesterday, in United States v. Abbott, the en banc US Court of Appeals for the Fifth Circuit ruled in favor of Texas in a case where the federal government is suing the state for installing floating buoy barriers in the Rio Grande River to block migration and drug smuggling, thereby creating safety hazards and possibly impeding navigation. The Biden Administration claimed this violates the Rivers and Harbors Act of 1899.

Texas argues the federal government incorrectly interpreted the statute, but also asserts that one of the "invasion" clauses of the Constitution gives it the power to install the buoys even if federal law forbids it. Article I, Section 10, Clause 3 of the Constitution states that "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in defiance of federal statues, and even in the absence of congressional authorization for war.

In an 11-7 decision largely divided along ideological lines (with more conservative judges in the majority), the en banc Fifth Circuit overturned appellate panel and trial court decisions that had ruled in favor of the federal government.

The majority decision is based on statutory arguments, concluding that the relevant stretch of the Rio Grande is not covered by the Rivers and Harbors Act because it isn't "navigable." On that issue, I think both sides have some good arguments, and I will leave it to analysts with greater interest and expertise. Significantly, the majority does not address Texas's "invasion" argument, thereby not overturning the panel and trial court rulings against Texas on that issue.

Texas has also advanced the "invasion" argument in another case, one dealing with the legality of the states SB 4 law, giving law enforcement broad powers to detain and expel undocumented migrants. So far, both the district court and a Fifth Circuit panel have ruled against the state on that point.

In a recent Lawfare article and an amicus brief in this case, I have explained why illegal migration and drug smuggling do not qualify as "invasion" under the text and original meaning of the Constitution. An "invasion" is an organized armed attack. In addition, I outline the dangerous implications of Texas's argument. If accepted by courts, it would give states nearly unlimited power to start wars without congressional authorization, and give the federal government a similar blank check to suspend the writ of habeas corpus (thereby allowing it to detain people, including US citizens, without charges).

In a concurring opinion in the en banc court, prominent conservative Judge James Ho argues that the court should have addressed the invasion argument. He contends that the meaning of "invasion" is a "political question" that the judiciary is not permitted to address. Other courts that have ruled that invasion is a political question have simultaneously concluded that the matter is left up to the federal government (while, in several cases, also simultaneously concluding that illegal migration does not qualify as invasion). Judge Ho, however, argues that courts must defer to the Texas governor's assertion that there is an invasion, at least so long as the governor is acting in "good faith."

This theory has breathtakingly awful implications. It implies a state governor can declare the existence of an "invasion" virtually any time he or she wants, and then "engage in war" in response—even without authorization from Congress. Moreover, Ho argues the governor can continue military action indefinitely, even if the federal government has had time to consider the situation, and opposes the state's actions.

The "good faith" restriction is not much of a constraint. Political partisans can persuade themselves that almost any interaction with  foreigners they find threatening qualifies as an "invasion." If illegal migration and drug smuggling qualify, why not economic competition (many "national conservatives" view imports as a national security threat)? Why not supposedly harmful cross-border cultural influences (dangerous foreign ideas and art forms are "invading" our people's minds!)? And that list can easily be extended.

If this conclusion were required by the text and original meaning of the Constitution, perhaps there would be no way around it. But that isn't so. As explained in my article and amicus brief, historical and textual evidence overwhelming demonstrate that only an organized armed attack qualifies as an "invasion." As James Madison put it, invasion is "an operation of war." Nor is there any original meaning evidence indicating that courts must defer to state governments on this issue.

The "political questions" doctrine is a judicial invention, not something embedded in text and original meaning itself. I am skeptical that the doctrine makes much sense at all. Even if it should be used in some contexts, there is no reason to think the meaning of "invasion" is the kind of issue that courts cannot or should not resolve. The meaning of that term is at least as clear as that of many other words in the Constitution that courts routinely interpret.  At the very least, the political question doctrine should not be interpreted to mandate the absurd consequence that a single state can start a war virtually anytime it wants—since there is virtually always some substantial amount of illegal migration and cross-border smuggling, at least so long as we have drug prohibition and severe migration restrictions.

Judge Ho also argues that actions by nongovernmental groups can qualify as "invasion." This may be true in some situations, as in the case of attacks by insurgents or terrorist groups. It does not follow that illegal migration, drug smuggling, or other ordinary criminal activity qualify.

Moreover, most of the evidence he cites relates to a situation in the 1870s where the governor of Texas used state militia to combat large-scale cross-border banditry from Mexico. This episode—occurring almost a century of the enactment of the Invasion Clause—sheds little light on the text and original meaning. In a recent opinion, Supreme Court Justice Amy Coney Barrett rightly cautions against  reliance on "[h]istory (or tradition) that long postdates ratification." This is the kind of thing she had in mind.

In addition, the 1870s history doesn't really support Judge Ho's position. In an 1874 letter to the Attorney General (which Judge Ho helpfully reprints in an appendix to is opinion), Texas Governor Richard Coke argued that the Mexican bandits had gone beyond ordinary criminality, and "were making war on the people of Texas and their property." He also stressed that Texas state forces were "not authorized to cross the river for purposes of retaliation, nor to make war on the territory or any of the people of Mexico, but only to pursue marauders going out of Texas, and take from them and bring back property found in their possession belonging in Texas." This stops short of claiming a right to "engage in war." Perhaps most important, the Governor acknowledged that "the officers of the United States Government… have the power to prevent… enforcement" of his order to the Texas troops, and that he will withdraw the order if the federal government requests it. That's a far cry from the claim of virtually unlimited power to declare an "invasion" and engage in war in response claimed by Governor Abbott today.

The dissenting opinion by Judge Dana Douglas has additional criticisms of Ho's opinion on the "invasion" issue. I don't agree with all of her arguments. But she's right to point out that Texas's position "would enable Governor Abbott to engage in acts of war in perpetuity."

In a concurring opinion, Judge Andrew Oldham (another prominent conservative jurist), contends that Judge Ho is wrong to argue the majority was required to address the invasion issue. I think Judge Oldham is probably right about that question, but will leave it to commentators with greater expertise on civil procedure.

Yesterday's ruling is not a final resolution of the buoy case. Technically, it only lifts the preliminary injunction against the buoys issued by the district court. However, the majority's analysis makes clear that the trial court will have to resolve the case in favor of Texas on the issue of "navigability." If so, the invasion question need not be addressed, since the en banc majority signaled it does not have to be.

However, the invasion argument is still in play in the SB 4 case, and Texas—and perhaps other states—are likely to continue making it in the future. So long as they persist in doing so, I will keep on explaining why that argument is dangerously wrong.

UPDATE: In the original version of this post, I indicated that the vote in the en banc Fifth Circuit was 11-6, rather than the correct figure of 11-7. I apologize for the mistake, which has now been corrected.

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[Josh Blackman] Biskupic Part III Confirms What We Already Knew: Justice Alito Lost Majority Opinions in NetChoice and Trevino.

[There is little here that can't be gleaned from the docket and the split opinions.]

On July 1, the Court decided Moody v. NetChoice. Later that day, I speculated that Justice Alito was assigned, and lost, the majority opinion. I had no inside information. I do not have any leaks. Rather, I was able to track the Court's assignments in each sitting, observe that Alito was short an assignment, and realize that Alito's separate opinion read very much like a majority opinion. Indeed, Alito signaled as much with this fourth-wall-breaking jab:

For these reasons, I am therefore compelled to provide a more complete discussion of those matters than is customary in an opinion that concurs only in the judgment.

Two weeks earlier, I speculated that Justice Alito lost the majority opinion in Gonzales v. Trevino. The per curiam majority was unusual. I wrote:

Why is this a per curiam opinion? It is possible that Justice Alito was assigned the majority opinion, but lost it, and the Chief came in to salvage the majority with a narrow per curiam. At present, Alito does not have any assignments from the March sitting.

Again, I had no inside information. I only need to read and to count.

Now, Joan Biskupic's exclusive third installment confirms what we already knew: Justice Alito lost the majority opinions in NetChoice and Trevino.

Here is Biskupic's lede.

The hardline approach Supreme Court Justice Samuel Alito takes usually gets him what he wants.

This year it backfired.

Behind the scenes, the conservative justice sought to put a thumb on the scale for states trying to restrict how social media companies filter content. His tactics could have led to a major change in how platforms operate.

CNN has learned, however, that Alito went too far for two justices – Amy Coney Barrett and Ketanji Brown Jackson – who abandoned the precarious 5-4 majority and left Alito on the losing side.

As a result, the final 6-3 ruling led by Justice Elena Kagan backed the First Amendment rights of social media companies

It is rare that a justice tapped to write the majority opinion loses it in ensuing weeks, but sources tell CNN that it happened twice this year to Alito. He also lost the majority as he was writing the decision in the case of a Texas councilwoman who said she was arrested in retaliation for criticizing the city manager.

And to be clear that Alito was not a source, Biskupic includes this disclaimer:

Alito declined CNN requests for an interview.

At conference, it seems that Justices Barrett and Jackson were more amenable to Judge Oldham's analysis in the Fifth Circuit. Remember, Justice Jackson has signaled that she will be the most hostile member of the Court to free speech claims.

A few days later, as the justices met in private on the dispute, they all agreed that NetChoice's sweeping claims of unconstitutionality had fallen short and that the two cases should be sent back to the lower courts for further hearings.

The justices, however, split over which lower court largely had the better approach to the First Amendment and what guidance should be offered for lower courts' further proceedings.

Alito, while receptive to the 5th Circuit's opinion minimizing the companies' speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservatives Clarence Thomas and Neil Gorsuch and, to some extent, Barrett and Jackson.

This is the key insight that Biskupic provides here: that Barrett and Jackson formed the majority at conference. I speculated as much, but Biskupic states it with some degree of confidence.

But Justice Kagan, the old-school liberal, favored a more robust conception of free speech:

On the other side was Kagan, leaning toward the 11th Circuit's approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by their users. She was generally joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.

If Biskupic's accounting is right, then Justice Thomas would have assigned the majority to Justice Alito:

Alito began writing the court's opinion for the dominant five-member bloc, and Kagan for the remaining four.

But then what happened? Surprise, surprise, Justice Barrett changed her mind. Or, if I had to speculate, she was never much settled on the issue in the first place. She was all over the map at oral argument. She had already stayed the Fifth Circuit's ruling a year earlier, so had been thinking about the case for some time. Yet, there was still no clarity. Justice Barrett, as I've written many times before, is figuring things out as she goes along. Law professors perhaps champion that virtue as one of open-mindedness and reasonableness. But the risk is that she can be unduly influenced. And Biskupic suggests it was Kagan who, once again, won Barrett over. As I presumed.

But when Alito sent his draft opinion around to colleagues several weeks later, his majority began to crumble. He questioned whether any of the platforms' content-moderation could be considered "expressive" activity under the First Amendment.

Barrett, a crucial vote as the case played out, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying types of algorithms platforms use.

Please remember that every word that Elena Kagan writes and utters in public is designed to curry Justice Barrett's vote. And we can only presume similar conversations occur behind the scenes. Never forget that. Going forward, no majority opinion with Barrett as the fifth vote is safe. Chief Justice Roberts for all of his warts in the past, has been a stalwart of late. If I was looking to hire a lateral professor to teach Federal Courts and Legislation, Professor Barrett would be on the short list. But for the Supreme Court? No way. Please don't let anyone blur this distinction.

Biskupic hints that once Barrett flipped, Jackson joined part of Kagan's majority to make the vote 6-3 rather than 5-4. It would have taken a stand for Justice Jackson to stay with Justice Alito. It was a free vote. But she wrote separately.

Jackson then joined much of Kagan's analysis as well, including that a private company's collection of third-party content for its platform could itself be expressive and therefore subject to First Amendment considerations when a state attempts to regulate.

Biskupic suggests that the votes were in flux till the very end of the term:

The give and take among the justices in the social media cases took until the very last day of the term.

One wonders if the Court had its last day in June, rather than July, would the bottom line have been different? Onto the next case.

Trevino was decided on June 21. Biskupic writes that the majority in that case fell apart a few weeks before:

A few weeks before then [NetChoice being decided on July 1], the separate majority Alito had tentatively won in the dispute over an alleged retaliatory arrest in Texas fell apart because of how extensively he wanted the court to rule.

At conference, the Court agreed to reverse the Fifth Circuit:

When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.

But Alito tried to go too far:

But as he began writing, he went further than the other justices in his review of Gonzalez's case. Alito and his colleagues realized he couldn't "hold five," as the expression goes, for a majority.

A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit's reasoning, the Supreme Court said the 5th Circuit had applied an "overly cramped view" of the court's precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.

Biskupic does not tell us the question I raised: who wrote the per curiam? Was it Roberts? Or Kagan? She refers obliquely to "a new majority."

Biskupic also hinted that Alito's absence from the handdown was related to this friction:

On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito's chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.

Justices sometimes skip one of these final days of the annual session, but usually there's an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.

Alito returned for the final four announcement days of the term, yet sometimes appeared preoccupied. On the last day, when Kagan announced the decision in the NetChoice case, Alito was reading through material he had brought along to the bench.

I made a similar observation, querying why Chief Justice Roberts announced the per curiam opinion.

***

Like with her first and second installments, we don't learn much new, and we are left wanting to know what actually happened–something Biskupic does not know. Moreover, Justice Kavanaugh is entirely invisible in these stories. I think Team Kavanaugh has cut off Biskupic. She has nothing on him.

Yesterday I mused to myself that Part III would be about NetChoice. My prediction is Part IV will about Rahimi. Biskupic will tell us about how Justices Kavanaugh and Barrett split on the history-and-tradition test, and how Justice Gorsuch struggled with the as-applied issue. Plus there will be an aside on Vidal v. Elster. And Part V will be about Trump v. Anderson, and how Roberts cobbled together a majority. I hope there is some insight into the Barrett-Kagan dispute, which I still can't make heads-or-tails of. I don't have any inside information. Those were my observations from simply reading the opinion.

The post Biskupic Part III Confirms What We Already Knew: Justice Alito Lost Majority Opinions in NetChoice and Trevino. appeared first on Reason.com.

[Keith E. Whittington] On the Biden/Harris Court "Reforms"

[So much for constitutional norms]

New from me in The Dispatch is a breakdown of the administration's newly announced "reforms" for the U.S. Supreme Court. The announcement is remarkably light on details, and there are better and worse directions that the Democrats could go with this. So far the Biden/Harris team has declined to endorse the progressives' most favored proposal of expanding the size of the Supreme Court, but even this is a big shift to the left by the White House as we head into the 2024 elections and a clear signal that radical attacks on the Court will be on the agenda if the Democrats manage to claim both Congress and the White House.

Yet another reminder that for those who care about constitutional government, there are no good choices on the ballot this year.

From the piece:

As a matter of constitutional norms, a statutory term of service under current circumstances would in fact be a serious challenge to judicial independence. The current White House is not shying away from saying that it wants to shuffle justices off the court because it is unhappy with the substance of its decisions. Perhaps there could be a neutral rationale for setting a mandatory retirement age to avoid the problem of infirm judges—but there is nothing politically neutral about current proposals. They recall how a leader of the Jeffersonian senators once told John Quincy Adams that Federalist judges needed to be impeached because, "we want your offices, for the purposes of giving them to men who will fill them better."

Read the whole thing here.

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[Josh Blackman] Congratulations to Brady Kelly, Back-to-Back Chief Justice of FantasySCOTUS for OT 2022 and 2023

The October 2023 Term of FantasySCOTUS finally came to a close. This term, Chief Justice Roberts cemented himself as the Court's center, as Justice Barrett continues to separate herself from the other Trump appointees. On the whole, this term was more predictable than some recent years. And the FantasySCOTUS prediction market did quite well. In the aggregate, our crowd predicted 83.05% of the cases accurately, up from 75% last term, and 81% the term before.

I am happy to announce that the Chief Justice is Brady Kelly. Brady has now won the competition two years in a row. Players receive ten points for each correct prediction of a Justice's vote. We recorded 59 merits cases (DIGs do not count). A perfect score would have been 5,900 points. Brady scored 4,950 points. Bill Corteal, who was the champion in OT 2021, was the runner-up with 4,750 points.

Here is the Top 10:

Brady Kelly

I profiled Brady last year in this post. This year, I asked him to provide some more detail on how he makes predictions. Here are his comments:

This term, I changed approaches and put in a prediction for every case prior to oral arguments. I changed as needed after oral arguments, but I appreciated A) being able to form an opinion prior to seeing potentially misleading headlines, and B) the ability to (separately) hold myself accountable to predictions without the benefit of oral arguments. Interestingly, Justice Gorsuch had my least accurate predictions pre-oral arguments and my most accurate ones post-oral arguments. In terms of the most difficult cases, I found FBI v. Fikre challenging, and found Moore v. U.S. the hardest to wrap my head around. But honestly, I'm just glad there wasn't another habeas corpus case. There were a few cases where I guessed the outcome about right but guessed incorrectly how it would be counted (e.g. Devillier v. Texas), and then others where I didn't think it was terribly difficult but nonetheless got it very very wrong (e.g. Snyder v. U.S.). I felt the easiest three to predict were NRA v. Vullo, LePage Bakeries, and Sheetz (at least the QP itself). It seems like there are some really difficult questions waiting to come up in a future Sheetz-type case.

Congratulations to Brady, and everyone else who participated. The 16th season of FantasySCOTUS will launch on the first Monday in October.

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[Josh Blackman] Today in Supreme Court History: July 31, 2018

7/31/2018: Justice Anthony Kennedy retired.

Justice Anthony Kennedy

 

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[Jonathan H. Adler] Struggling with Standing

[The Supreme Court's conservatives are not cutting conservative litigants any slack (and that's a good thing). ]

Conservative litigants have lost quite a few cases on standing grounds in recent years. I have an article discussing this in the September issue of National Review (titled "Standing Up" in the print edition). Here's a taste:

FDA v. Alliance for Hippocratic Medicine is one of several cases in recent years brought by conservative plaintiffs advancing conservative causes to the Court, only to founder on the shoals of standing. Also this term, in Murthy v. Missouri, the Court concluded that social-media users lacked standing to seek an injunction barring federal officials from pressuring social-media platforms to suppress or deplatform unpopular speech as "disinformation." Whatever improper conduct officials had engaged in to suppress speech in the past, Justice Amy Coney Barrett explained, no plaintiff could show the imminent threat of government action necessary to justify an injunction.

AHM and Murthy are not aberrations. In recent years the Court has turned away conservative challenges to the Indian Child Welfare Act, the Affordable Care Act, and Biden-administration immigration policies as well, all on standing grounds. If some hoped (or feared) that a conservative Supreme Court would loosen the standing barrier against policy-oriented litigation, they were sorely mistaken.

That a conservative Supreme Court insists on enforcing traditional rules of standing should be no surprise. Stringent standing rules have been a core element of conservative jurisprudence for decades. Current doctrine was shaped by the late justice Antonin Scalia as much as by anyone else, and it has also been a priority of Chief Justice Roberts, who sees it as a way of preventing political activists from using the courts to fight policy battles that belong in Congress or at the ballot box.

The idea of standing is grounded in Article III of the Constitution, which limits federal-court jurisdiction to "cases" and "controversies." The idea is that an individual litigant should have a sufficient stake in the outcome of a legal dispute to justify the exercise of federal jurisdiction over his claim. "In more pedestrian terms," as then-judge Antonin Scalia explained in a 1983 law-review article, "it is an answer to the very first question that is sometimes rudely asked when one person complains of another's actions: 'What's it to you?'" It is not enough to care deeply about a particular question. One has to have a sufficiently tangible stake if one wants one's arguments heard in a federal court.

In the article I also discuss some of the recent complaints about standing doctrine from the Right, including those put forward by Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit. I engage the latter quite extensively in my Wake Forest Law Review article, "Standing without Injury."

The complaints about standing from the Right, combined with continuing concerns about third-party standing, associational standing, and state standing, make standing doctrine poised for revision, and potentially in ways that do not easily conform to ideological priors or even to linear characterization (e.g. "easier"/"harder").  I suspect standing could become easier in some contexts, but more difficult in others. The question then will be whether standing's current critics will be happy with the end result. I have my doubts.

The post Struggling with Standing appeared first on Reason.com.

[Josh Blackman] Biskupic's Second Installment on Trump Immunity

[We learn very little new: Roberts made no efforts to appeal to the left, as he sought to reclaim his Court.]

It looks like Joan Biskupic will have a multi-part series. Maybe five parts, like in the bad 'ol days when the Supreme Court had more leaks than the Titanic. Part I was on Moyle. Part II turns to Trump immunity.

Frankly, there is not much insight here. Almost everything she wrote could have been deduced from simply reading the opinions. Again, I wonder how much of what Joan comes from sources with actual inside info, versus people who have informed speculation. Let's break things down chronologically.

First, a note on sourcing. Biskupic expressly states that Roberts "declined to comment."

Roberts declined to respond to CNN's questions about the recent term and this case.

I don't remember seeing a similar denial in past Biskupic pieces. I think Roberts wanted to make painfully clear that he was not a source for Biskupic. I understand this was an issue with Biskupic's book on Roberts, where certain things were said on background that were attributed to the Chief Justice. There are no doubts here.

Second, we learn there was broad consensus to reject Jack Smith's petition for certiorari before judgment:

The immunity case first arrived at the justices' door in December. Seeking to move the prosecution along, Smith had tried to persuade the court to take early review of the case, before US appellate court action. After the US appellate court ruled, Smith urged them to let the decision – which had spurned the Trump claim of immunity – stand.

Both efforts by the special counsel were in vain. Sources told CNN that there was broad understanding among the justices that they would need to decide the matter themselves, and only after the usual appellate court hearing.

No one dissented from the Court's order. That suggests there was consensus. But if sources confirm it, then it must be true! With the benefit of hindsight, would the Justices have had such a consensus if they knew how long the D.C. Circuit panel decision would take? I doubt it.

Relatedly, Smith has not yet moved to expedited his Eleventh Circuit appeal–something Seth Barrett Tillman wrote should not be granted. Smith may simply be willing to let this case litigate in the normal process, and hope no broad precedent is set on the special counsel regulations.

Third, after oral argument, the Chief Justice assigned the opinion to himself, and made no efforts to forge any compromise with the Court's left wing:

Sources familiar with the negotiations told CNN there was an immediate and clear 6-3 split, as the justices met in private in the oak-paneled conference room that adjoins the chief justice's chambers.

Roberts made no serious effort to entice the three liberal justices for even a modicum of the cross-ideological agreement that distinguished such presidential-powers cases in the past. He believed he could persuade people to look beyond Trump. . . .

Roberts may also have sensed that the liberals were simply not going to accept any version of his sweeping presidential immunity.

This case was not about this President, or any other President. It was about the presidency.

Sources familiar with the internal debate told CNN that Roberts believed that he could assert the large and lasting significance of the case and steer attention away from Trump. As he ended up writing in his opinion, "unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies."

Rather, Roberts would only negotiate an agreement with the Court's conservative members:

In their private session on the case the next day, however, the votes on the core issue lacked any ambiguity and Roberts was ready to write with bold strokes that a former president is entitled to presumptive, if not absolute, immunity for all official acts. Further, Roberts' construction of official acts, as opposed to private ones, was extensive.

The sharp divide between liberals and conservatives meant that virtually all of Roberts' negotiating would be among his people on the right.

Roberts was content to have a 6-3 majority, or if needed a 5-4 majority, with Justice Barrett peeling off.

That brings us to Justice Barrett

Third, for the second consecutive piece, Barrett comes off looking like a glowing, consensus-making moderate.

Barrett was the lone justice on the right-wing who tried to close the gap with dissenting justices.

It isn't clear that Biskupic has any inside information about what Barrett did. Everything written here is entirely deducible from the published decision. Like this part. Is this Biskupic's speculation or inside info?

Barrett, in general, may have been trying to situate herself in the middle. On several occasions throughout the annual session Barrett separated herself from her conservative brethren. Notably, she fully broke from them in the Fischer case, when the Roberts majority narrowed the reach of a federal obstruction statute that had been used against scores of January 6 defendants.

I would have liked to see some discussion about whether the liberals even considered joining Barrett's concurrence, to perhaps flip the majority. But we learn nothing.

Fourth, Biskupic writes that Roberts abandoned his traditional institutionalism this term.

The chief justice, now 69 and about to begin his 20th term, appears to have abandoned his usual institutional concerns. . . .

All told, Roberts appears to have reached a turning point.  His vision for the high court became more aggressive, and he has perhaps shed the aura of ineffectualness that permeated some public commentary in recent years.

He kept the most important cases for himself, including one that reversed a 1984 precedent giving federal regulators considerable power over health care, food and drug safety, the environment and consumer affairs. (As chief, Roberts makes most opinion-writing assignments; he regularly keeps important cases, but in the past has shared more and evened out assignments among the eight associate justices.)

And it seems the conservative Justices are more agreeable with Roberts--unsurprising because he is agreeable with them.

At the same time, his dealings with his conservative colleagues were more agreeable.

People close to justices on the far-right told CNN those justices were heartened by Roberts, after years of suspicions about his efforts at the center of the bench, most famously with his switched vote in 2012 that upheld the Affordable Care Act.

Biskupic also suggests that Roberts was feeling embittered after standing alone in Dobbs.

Not this year, so very unlike 2022, when Thomas and other conservatives pushed through the Dobbs ruling and Roberts stood alone between embittered factions. The chief justice chided his colleagues on both sides for displaying "a relentless freedom from doubt on the legal issue."

This year, he stepped to the right, and he displayed no doubt.

I made a very similar point after Loper Bright was decided:

And why did Roberts pull the trigger in Loper Bright–especially after he stopped short in Kisor? I think Roberts was personally humiliated that he couldn't broker a compromise in Dobbs, and was stuck on the outside looking in. It was position of weakness for the Chief Justice to be. Once Roberts realized there were five votes to overrule Chevron, he did not want to be left in the cold. If you can't beat 'em, join 'em.

I don't know how long this Roberts rapprochement will last. Let's see who wins the election.

Finally, we get this charming vignette hat doesn't really advance any narrative:

As the justices were drafting opinions, the court hewed to age-old routines. Law clerks arranged their traditional end-of-term skit for late June. Roberts and Justice Clarence Thomas continued with their planned reunions of former law clerks. And Roberts, for the first time in several years, readied to teach in a summer program abroad sponsored by New England Law Boston in Galway, Ireland.

To continue the theme, the Court really is like a reality show, with shifting alliances, though no one can get voted off the island.

The post Biskupic's Second Installment on Trump Immunity appeared first on Reason.com.

[David Bernstein] Kamala Harris's Indian Background Was Once a More Prominent Part of Her Curated Image

I was looking through some online archives available through my university's library, and noticed that there was a time in her political career that Kamala Harris talked a lot more about her Indian heritage.

For example, from 2009 (this was reprinted online in 2020): "One of the most influential people in my life, in addition to my mother, was my grandfather (TV Gopalan), who actually held a post in India that was like the secretary of state position in this country. My grandfather was one of the original independence fighters in India and some of my fondest memories from childhood were walking along the beach with him after he retired and lived in Besant Nagar in Madras." I take it that she was exaggerating both his contribution to Indian independence and the post he held …

From a 2003 profile (similar to one available here):

A product of two cultures, Harris delights in her multiculturalism. Her grandfather was an Indian diplomat who served in posts in Delhi and Zambia, and an aunt, an obstetrician in Chandigarh, is so beloved by her patients that they often leave baskets of fruit on her doorstep after she delivers their babies. In the 1940's, Harris told the San Francisco Examiner recently, her grandmother drove around India in a VW bug, urging village women through a bullhorn to use birth control. "Even though my grandma had an arranged marriage when she was 12, she and my grandfather were very open-minded people," she said. [Though they were initially "not too happy" when her mother declined an arranged marriage and married a black man she had fallen in love with instead.]

By 2019, the Los Angeles Times reported: "She seldom delves into her Indian heritage, reflecting a broader reticence to share personal stories beyond a handful of well-worn anecdotes."

I don't think any of this is damning in any way, but it's interesting to see how ambitious public figures curate their image over time. At some point in Harris' political career, for example, she thought talking about her grandmother's arranged marriage at age 12 and how that didn't stop the grandmother from being an outspoken feminist was helpful, and at some point she decided it wasn't.

The post Kamala Harris's Indian Background Was Once a More Prominent Part of Her Curated Image appeared first on Reason.com.