Eugene Volokh's Blog, page 303

[Josh Blackman] Rahimi and NetChoice: Why Is The Facial Challenge Bar Lowered For The First Amendment and Not The Second Amendment?

[The right to keep and bear arms remains a second-class right.]

This past term, the Court found that litigants failed to mount a proper facial challenge in two cases involving the Bill of Rights. In Rahimi, the Court refused to dismiss a criminal indictment because, under Salerno, the defendant could not show that there was "no set of circumstances" in which Section 922(g)(8) was constitutional. And in NetChoice, the Court found that the tech organization failed to bring a proper facial challenge. But the standard was different, and easier to satisfy.

Justice Kagan's NetChoice majority opinion explained this lower bar:

This Court has therefore made facial challenges hard to win.

That is true even when a facial suit is based on the First Amendment, although then a different standard applies. In other cases, a plaintiff cannot succeed on a facial challenge unless he "establish[es] that no set of circumstances exists under which the [law] would be valid," or he shows that the law lacks a "plainly legitimate sweep." United States v. Salerno, 481 U. S. 739, 745 (1987); Washington State Grange, 552 U. S., at 449. In First Amendment cases, however, this Court has lowered that very high bar. To "provide[] breathing room for free expression," we have substituted a less demanding though still rigorous standard. United States v. Hansen, 599 U. S. 762, 769 (2023). The question is whether "a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Americans for Prosperity Foundation v. Bonta, 594 U. S. 595, 615 (2021); see Hansen, 599 U. S., at 770 (likewise asking whether the law "prohibits a substantial amount of protected speech relative to its plainly legitimate sweep"). So in this singular context, even a law with"a plainly legitimate sweep" may be struck down in its entirety. But that is so only if the law's unconstitutional applications substantially outweigh its constitutional ones.

Why does the Court lower the bar for the First Amendment, but not the Second Amendment? Why does free speech require "breathing room" but self-defense does not? Did anyone in the Rahimi majority even notice this disparate treatment? The cases were decided a week apart, so both issues were in their minds.

In case after case, a different set of rules applies to the First and Second Amendments. With free speech, the Court's progressives makes up doctrine willy-nilly without any concern for originalism. But for the Second Amendment, the Court's progressives insist on a rigorous application of history, with a framework that exudes deference to the government at every step.

Nearly two decades after Heller, the Second Amendment remains a second-class right.

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[Josh Blackman] Mission to Israel Part V: There Is No "Apartheid"

[When I tell Israelis that American students think they are like South Africa, they are shocked.]

[This is the fifth post in my series on my mission to Israel. You can read Parts I, II, III, and IV.]

Perhaps one of the most effective marketing campaigns against Israel has been to dub the nation as an "Apartheid State." Apartheid, like Jim Crow, is something that students learn is evil and must not be repeated. When I tell Israelis that American students think they are like South Africa, they are shocked.

Here, let me run through several things that I learned during my trip.

First, on my United flight from Newark to Tel Aviv, I estimated that about 30% of the passengers were speaking Arabic. Muslim women wearing hijabs, were sitting next to Jewish men wearing yarmulkas. And no one batted an eye. When you arrive at customs in Ben Gurion Airport, people with passports from the United States and the Palestinian Authority wait on the same line. (In line, I was behind a mom and college-age son with Palestinian Authority passports.) Despite what you may have learned at an encampment teach-in, there is no separate-but-equal treatment.

Second, every sign in Israel is printed in three languages: Hebrew, English, and Arabic. Believe it or not, there are many Arabs living within Israel. They have full citizenship and can vote in all elections. They are allowed to intermarry, and can hold any job.  learned that a very large percentage of doctors and pharmacists are Arabs. Yes, Jewish patients receive medical treatment from Arab doctors. This is not Jim Crow. There is a slight exception to this rule for Arabs living in the area known as East Jerusalem. They are not "citizens" but are "residents." They cannot vote in national elections, but can vote in municipal elections for Jerusalem. But they are able to attend universities, including Hebrew University which is located on Mount Scopus in East Jerusalem. I understand this status is extremely complicated. [Update: Co-blogger David Bernstein provides a slight correction in the comments below, which I share here: Arabs living in East Jerusalem are by default Jordanian citizens, and Israeli permanent residents. However, they can apply for Israeli citizenship, and if they pass security screenings, they become citizens. About 10% of East Jerusalem Arabs have become citizens. The vast majority of the rest have not applied, either for nationalistic reasons or out of fear that if East Jerusalem is returned to Arab control in the future, they will be targeted as traitors.]

Third, many of the Arabs in Israel support Israel's actions in Gaza. I learned this support is not monolithic, and many Arabs are hesitant to speak out in support of Gaza publicly. I can tell you that in my week in Israel, I did not see a single Palestinian flag. (Other than watching the horrific surveillance footage of Hamas terrorists murdering Israelis–they wore Palestinian flags with as much pride as a Columbia liberal arts major.)

Fourth, Israeli universities implement various forms of affirmative action for Arab students. The Dean of a law faculty explained that they create a special "bootcamp" program for Arab students to help them prepare for, and adjust to, a law program in Hebrew. The Dean vigorously rejected the label "affirmative action," but it is a race-based preference. I think DEI translates into Hebrew as Dallet-Aleph-Ayen (דאע). I was told that some Israeli universities impose actual quotas for Arab students. Not a plus factor–quotas. The rationale behind these programs is fascinating. The hope is that if Arabs are exposed to Israeli-western culture, they can become integrated into the body politic, and serve as examples of how Arabs and Israelis can co-exist. Whether it is working or not, I will let others decide. But these policies have been in place for some time.

This post is not meant to be a complete discussion of how Arabs are treated in Israel, but should, at a minimum, disabuse people of this notion that Israel is some sort of Apartheid state. Critics, no doubt will ask about the status of Gaza and the West Bank. Critics will maintain that both territories are "occupied" by Israel. Israel completely withdrew from Gaza nearly two decades ago, which has a border controlled by Egypt. And Israel maintains that it does not "occupy" the West Bank, and I think that case is compelling. The Palestinian Authority has its own government, even if it does not have statehood. But, course, elite lawyers disagree.

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[Josh Blackman] Today in Supreme Court History: July 18, 1942

7/18/1942: Justice George Sutherland dies.

Justice George Sutherland

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[Orin S. Kerr] The Populist GOP and its Yale Law and Harvard Law Leaders

[A notable dynamic, and one worth trying to explain.]

The nomination of J.D. Vance as the Republican party's Vice-Presidential candidate in the upcoming election brings up an interesting contrast.  On one hand, today's GOP embraces a heavy dose of populism.  It's pretty standard for Republican politicians to rail against elites who are against the average Joe. On the other hand, if you look at the younger generation of GOP leaders, the politicians who are likely to lead the party in coming years, there sure are a lot of Harvard Law School and Yale Law School graduates.

J.D. Vance is one example. He's a graduate of Yale Law School, Class of 2013.  But think of other possible future GOP Presidential candidates.  There's Senator Joshua Hawley, Yale Law Class of 2006.  And lots of Harvard Law grads are in the mix. We have Florida Governor Ron DeSantis, Harvard Law Class of 2005 (sort of a crossover, as he went to Yale for college).  And Senator Ted Cruz, Harvard Law Class of 1995, where he went after college at Princeton. And there's also Senator Tom Cotton, Harvard Law Class of 2002.  I'm probably forgetting others.

It seems worth asking, how is it that the GOP has embraced both populism and a set of prominent figures, at least among the younger generation, who are Harvard Law and Yale Law graduates?  Or maybe more specifically, why is it that going to an elite law school seems to be a significant advantage within the GOP?

One answer might be that this is not a story specifically about the GOP at all.  There are certainly lots of Democratic leaders who went to these places!  It's kinda barfy, if you think about it. If you look at the last eight Presidential elections, six of the eight Democratic Presidential nominees went to Harvard Law or Yale Law. (If you're wondering: Harvard Law's Michael Dukakis was the unsuccessful nominee in 1988; Yale Law's Bill Clinton was the successful nominee in 1992 and 1996; Harvard Law's Barack Obama was the successful nominee in 2008 and 2012; and Yale Law's Hillary Clinton was the unsuccessful nominee in 2016. As I said, kinda barfy.) So maybe this is bipartisan.  Maybe the advantages that flow to elite law school grads in politics cover both parties equally. Or maybe smart and ambitious youngsters plotting a political career know that and aim for those kinds of schools.

Maybe.

But I suspect there's something else at work, too.  What's striking to me is that Harvard, Yale, and other "top" law schools have only a very small number of conservatives.  It's one thing for schools where Democrats vastly outnumber Republicans to generate a lot of future Democratic leaders. It's another for them to generate so many future Republican leaders.  The odds of a politically ambitious conservative at an elite law school actually becoming a big deal in American politics is unusually high, it seems to me—all the more striking given the GOP's populist turn.

What might explain that?   I don't know.  I'm curious about what explanations you might have.  But let me offer three possibilities, just to get the conversation started:

(1) There's an inside lawyer track that works in GOP politics (Examples: Cruz and Cotton).  In some of the cases, the individuals seem to have taken a role as elite lawyers within the party before running for office— using that legal role as a key conservative credential for later political campaigns.

Ted Cruz did this.  He clerked at the Supreme Court, served in the Bush Administration, and practiced in DC before he was appointed Solicitor General of his home state of Texas by then-Attorney-General Greg Abbott in 2003—just 8 years after Cruz graduated from law school.  He then argued a bunch of Supreme Court cases as state Solicitor General in which, representing Texas, he was on the conservative side.  Ted then used his lawyering before the Supreme Court as his key conservative credential to run for the Senate in 2012.

Josh Hawley's path to the Senate was in the same ballpark. After clerking at the Supreme Court and practicing a bit, Hawley returned to his home state of Missouri to be a law professor at the University of Missouri—while also helping to litigate Supreme Court cases on the conservative side.  From there, he ran for state Attorney General, winning that race just 10 years after he graduated from law school.  And then after just two years as state Attorney General, he won his Senate seat.  In both Cruz's and Hawley's cases, they used their academic credentials and legal experience as a key argument for their candidacies.  Their legal efforts on behalf of conservative causes at the U.S. Supreme Court apparently resonated with a lot of voters.

(2) Elite law school graduates come off as battle-hardened.  Another explanation, more specifically about populism, is that populist conservative voters are fine with voting for conservative graduates of elite law schools because having attended those school affords conservative politicians a sort of veteran status of its own.  The politicians running for GOP office don't speak fondly of their time at these schools. Instead, they present their time at Harvard Law or Yale Law as a difficult test of strength that they passed. They spent three years in the trenches of liberalism and they emerged victorious. They are now battle-hardened and ready to fight the liberals while in political office.  From that perspective, graduating from these schools isn't a problem. Instead,  like a medal on a military uniform, it's a credential.

(3) Adding elite law school credentials to military service creates a powerful combination (Examples: Vance, DeSantis, Cotton).  I'm less confident of this one, so maybe this is totally wrong. But speaking of military uniforms, it's hard not to notice that several of these politicians are also veterans. JD Vance served in the Marines from 2003 to 2007, acting, as I understand it, primarily in the role of a journalist and public affairs specialist.  Tom Cotton served on active duty as an officer in the Army from 2005 to 2009, where among other things he led an air assault infantry platoon in Iraq. Ron DeSantis joined the Navy in 2004 and was a lawyer for the Navy until his discharge in 2010.

These days, the combination of military service and attending top law schools is (unfortunately) pretty rare.  But it's possible that this combination is part of the political appeal here.  Maybe adding elite law school credentials to military service works really well together, especially in a GOP primary. It combines patriotism and bookishness, brawn and brains.  Not sure about this, but maybe the combination is at least part of what's politically powerful.

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[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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[Orin S. Kerr] Internet Preservation and the Fourth Amendment—Case Updates, Part I

[The first of two rulings, and why I find it unpersuasive. ]

It is a common practice among criminal investigators to "preserve" Internet accounts without cause.  When an investigator learns that a suspect has a Facebook or email account, the investigator will direct the provider to run off and save a copy of the suspect's entire account and to hold it for the government.  If, weeks or months later, the investigator can eventually develop probable cause, the investigator can come back with a warrant and order the provider to hand over the previously-preserved account files.  And if the investigator never develops probable cause, the provider will usually realize eventually that the government isn't coming back, and it will usually then delete the extra government-ordered account records.  This procedure is called "Internet preservation," and it's done in the name of a provision of the Stored Communications Act, 18 U.S.C. § 2703(f).

As regular readers know, I think the Fourth Amendment imposes limits on Internet preservation.  First, the government ordering the provider to act makes the provider's act on the government's behalf state action, triggering the Fourth Amendment.  Second, copying the account contents is a "seizure" of the account contents.  And third, that warrantless seizure has to be justified as "reasonable" by having initial suspicion (typically probable cause) to justify the initial seizure and then the seizure occurring for only a reasonable period before a warrant is obtained.  So I argued in my article, The Fourth Amendment Limits of Internet Preservation.  And I backed up that article with a model brief for defense attorneys to file.

I'm pleased to say that at least a handful of motions to suppress have been filed based on my model brief. In several of  those cases, the government avoided the merits by eschewing reliance on the preservation copy of the account.  That is, instead of relying on a copy of the account that was only available when the preservation was made, the prosecution relied instead on files that were in the account when the government came to the provider with a warrant.

In at least two cases, however, courts have issued merits rulings. Unfortunately, the two courts that have issued merits rulings held that the Fourth Amendment was not violated.  I want to discuss those rulings, and to explain why I see them as so unpersuasive. This post will discuss the first case, United States v. Dallmann (D. Nev. May 25, 2024).  A second post, which I'll plan to put up in a few days, will cover United States v. Colbert (D. Kan. May 9, 2024).

Dallmann holds that Internet preservation raises no Fourth Amendment issues because Internet providers acting on the government's behalf to preserve accounts for the government are private actors not regulated by the Fourth Amendment at all. In Dallman, the government ordered Google to preserve a copy of the defendant's gmail account.  Later, the government came back with a warrant and ordered Google to hand over the previously-preserved account files.

Here's the court's reasoning for why Google was not a government actor when it preserved the account for the government:

The Ninth Circuit addressed a similar issue in United States v. Rosenow. 50 F.4th 715 (9th Cir. 2022). In that case, the defendant argued that federal regulation of electronic service provider searches and disclosures triggers the Fourth Amendment because the two relevant federal statutes authorized warrantless searches and required private parties to report evidence derived from those searches. The court found this argument unconvincing. The first statute, The Stored Communications Act, "did not authorize the service providers to do anything more than access information already contain on their servers." Id. at 730. The second statute, the Protect Our Children Act, only authorized mandatory searching, not mandatory reporting. Id.

Here, similarly as in Rosenow, the Government made a request for preservation pursuant to 18 U.S.C. § 2703(f). This statute "did not authorize the service providers to do anything more than access information already contain on their servers." Id. at 730. Google complied with a federal statute mandating preservation of records. Importantly, the Court finds that Google did not search the content of its records for evidence of a crime—as government agent would. It merely preserved existing records. The Ninth Circuit emphasized that a private actor does not become a government agent simply by complying with a mandatory reporting statute. Id. (referencing Mueller v. Auker, 700 F.3d 1180, 1191-92 (9th Cir. 2012)). Google would then not be a government agent by merely preserving information already in its possession.

The Court finds that Google was not a government agent, and the Defendant did not meet its burden of showing that the search was governmental action. See United States v. Rosenow, 50 F.4th 715, 728 (9th Cir. 2022). "[E]ven if the Fourth Amendment protects files stored with an [E]SP, the [E]SP can search through all of the stored files on its server and disclose them to the government without violating the Fourth Amendment." Id. (quoting Orin Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1212 (2004)).

Hence, the Fourth Amendment was not implicated by Google's actions. Accordingly, the Court determines that the Government did not unlawfully seize Mr. Dallmann's email accounts through its preservation request.

I appreciate the cite, but I son't think that can be right.  The legal issue addressed in Rosenow was whether the mere existence of the Stored Communications Act and Protect Our Children Act turned everything the Internet provider did into government action. Rosenow ruled that the statute's existence did not have that effect.  That seems clearly correct; a statute imposing some limits on provider action doesn't mean that every provider action is government action.

But the legal issue here is very different: When the government orders a private company to act on its behalf, and the private company acts solely in response to the government and solely on its behalf — literally copying the files and setting them aside just for the government — are they government actors?

It seems obvious to me that they are.  True, the provider is "compl[ying] with a federal statute mandating preservation of records." But that's part of what makes it government action. If a statute requires you to do what the government tells you to do, the fact that Congress is forcing you to comply doesn't make your action less imposed by government.  It just makes it what it sounds like: Government-imposed action, exactly what the Fourth Amendment addresses.

As I argued in my article:

Content preservation in response to a § 2703(f) letter readily satisfies the Fourth Amendment test for state action. When the government makes a § 2703(f) request, the government is directly compelling the private party to act. "[U]pon the request of a governmental entity," the law states, the provider "shall take all necessary steps to preserve records and other evidence" in its possession. The records "shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity." The government directs, and the law requires the provider to act as the government's agent.

Commonwealth v. Gumkowski shows how provider preservation under this scheme counts as state action. In Gumkowski, the service provider Sprint was approached by a state trooper who requested emergency assistance in a murder investigation. The state trooper asked Sprint to disclose a suspect's cell-site location records without a warrant. The SCA permits a provider to disclose records to the government at its discretion if, "in good faith," it "believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." Sprint opted to reveal the records under that standard. The Massachusetts Supreme Judicial Court later ruled that Sprint's response to the state trooper's request was Fourth Amendment state action: "if law enforcement instigates the search by contacting the cell phone company to request information, there is State action. That Sprint could have refused to provide records in response to [the state trooper's] request does not change the fact that he instigated the search."

Caselaw from the physical world advances the point. In United States v. Hardin, the government asked an apartment building manager to enter a specific apartment in his building to see if the defendant, who had a warrant out for his arrest, was inside.  The apartment manager agreed, and he went to that apartment and used his key to enter. After entering the apartment, the manager confirmed the defendant was inside and relayed that information to the police. The Sixth Circuit ruled that the apartment manager was a state actor for Fourth Amendment purposes. "[T]he manager was acting as an agent of the government" under the Fourth Amendment, according to the court, "because the officers urged the apartment manager to investigate and enter the apartment, and the manager, independent of his interaction with the officers, had no reason or duty to enter the apartment."

Under Gumkowski and Hardin, Internet providers following § 2703(f) will count as state actors Like Sprint in Gumkowski, and the building manager in Hardin, an Internet provider that receives a preservation notice is acting to help the government. The government instigates the process, and the provider follows the government's direction. Of course, a provider (or a building manager) can act on its own and remain a private actor. But when the government approaches a provider and asks it to act for the government, a complying provider is a state actor. If anything, the case for state action is clearer with preservation because § 2703(f) is mandatory. The provider in Gumkowski and the manager in Hardin volunteered to follow the government's request. It was their choice. In contrast, § 2703(f) gives providers no choice but to comply. Although the remedy for violations is unclear, the statute is phrased as a direct command: the provider "shall take all necessary steps to preserve records and other evidence" for the government.

So that's why I don't find Dallmann persuasive.  More in a few days, when I'll explain why I'm not persuaded by Colbert, either.

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[Ilya Somin] Biden to Propose Supreme Court Reforms

[The proposals are likely to include term limits for Supreme Court justices, a binding ethics code, and a constitutional amendment limiting the president's and other officials' immunity from prosecution.]

The Supreme Court. (Joe Ravi/Wikimedia/CC-BY-SA 3.0)

 

If media reports are accurate, President Biden will soon put forward a package of judicial reforms for Congress to enact. The Washington Post summarizes their likely content:

President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.

He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.

On the policy merits, these are all actually good ideas, subject to the important caveat that there may be devils residing in the details. However, the term limits proposal cannot be enacted by ordinary legislation, but requires a constitutional amendment.

Term limits for Supreme Court justices (usually taking the form of 18-year terms) is an idea that enjoys widespread support from both experts and the general public.  It brings together numerous legal scholars on different sides of the political spectrum, such as Sanford Levinson on the left, and Steve Calabresi on the right. Term limits attracted broader support than any other proposal considered by Biden's 2021 Commission on Supreme Court reform. A 2022 AP/NORC poll found that 67% of the public supports the idea, including 82% of Democrats and 57% of Republicans. I myself also support 18 year terms for justices, though I have warned this idea is unlikely to put an end to ideological and partisan conflict over the Court.

The problem with Biden's potential proposal is that he apparently wants Congress to enact the idea by statute, rather than through a constitutional amendment. Along with most other legal scholars, I think that's wrong as a matter of constitutional law. It would also set a dangerous precedent, if the president and Congress succeeded in getting it enacted, and courts did not strike it down as unconstutional. I explained why in a 2020 post:

If Congress can impose an 18 year term limit, they can also impose much shorter ones, such as a five year limit or a two year limit. That would make it easy for any party that controls both Congress and the White House to get rid of justices whose rulings they dislike, and replace them with more supportive jurists. And if Congress can impose term limits on all justices, they can also selectively impose them on specific justices it especially wants to get rid of, while leaving the others alone. For example, if a Democratic Congress wished to get rid of Gorsuch, Kavanaugh, or Amy Coney Barrett…, they could pass a law imposing very short terms on justices appointed in 2017, 2018, and 2020, respectively. Republicans could use similar tactics to target liberal justices who might otherwise become thorns in their side.

Some proposals put forward by Democrats would create a kind of rotation system, limiting the roles of longer-serving justices, rather than removing them from the Court entirely. These ideas have much the same constitutional flaws as more conventional statutory term limits. And they also pose a similar threat to judicial independence. Legally, the key point is that the Constitution provides for filling the "office" of a judge of the "supreme court." As Michael Ramsey pointed out in a critique of an earlier rotation proposal:

Necessarily, holding the "Office" of judge of the supreme Court means acting in a judicial capacity as a member of the supreme Court, not simply having the title and filling in occasionally. This constitutionally defined office can't be redefined by statute to mean the office of acting in a judicial capacity as a member of the supreme Court for a while and then doing something else for the balance of one's tenure. (Otherwise, Congress could define the "Office" of Supreme Court Justice as serving as a Justice for 5 years and then serving as dogcatcher in East Outback, Alaska, for the rest of the time)

Ultimately, if enacted, statutory term limits would likely be challenged in court, and the justices would probably rule against them.

Unlike in the case of term limits, Congress has broad (though not unlimited) power to enact ethics rules for the justices. Justice Alito was wrong to suggest the legislature has no authority to regulate the Court. As a policy matter, I think it would be desirable to limit the extent of gifts justices can receive from private parties, thereby banning the kinds of very large gifts that Justice Thomas, among others, has gotten. I think these kinds of gifts are already now forbidden by the Justices' voluntary ethics code, adopted last year. But there's no harm, and likely some benefit, in making such rules mandatory.

I have little sympathy for arguments that the justices need to be able to accept large gifts in order to supplement their supposedly inadequate salaries. Currently, the Chief Justice gets an annual salary of $312,200 and associate justices get $298,500. That seems more than enough to live very well, even in the admittedly expensive Washington, DC area (whose costs are familiar to me, because I live there myself).

Yes, I know that big law firm partners make much more than this. But the power and prestige of being a Supreme Court justice provide extremely valuable nonpecuniary income. Plus, justices don't have to work as many hours as most elite private sector lawyers, and they get to take much longer summer vacations, if they want to.

At the same time, there is no evidence that any modern justice ever changed a vote or opinion in exchange for gifts. So anyone who expects this kind of reform to lead to changes in the Court's jurisprudence is likely to be disappointed.

In addition to gift limits, an ethics code might also include recusal rules, and perhaps other provisions. I would have to see the details before passing any kind of judgment on them.

Finally, I am very much in favor of a constitutional amendment stripping presidents and other high officials of immunity from criminal prosecution for actions taken while in office. The Supreme Court's recent ruling in Trump v. United States goes too far in granting such immunity to the president, though the exact scope of what they have given him is often vague. On balance, I think the danger of giving presidents and other high officials impunity for criminal abuses of power is a far greater danger than the problem of excessive prosecution by partisan enemies. The latter, moreover, could be curtailed by giving the president statutory immunity for various petty charges (which I would hope any constitutional amendment would still allow the legislature to do).

Obviously, as with almost any meaningful amendment, the odds of enacting this one are extremely low. It seems to me highly unlikely that any immunity-constraining amendment could get the necessary two-thirds support in both houses of Congress, plus ratification by three-fourths the states.

A term limits amendment would have a better chance of passing, because of the broad bipartisan support for the idea, among both experts and the public. But it would still be an uphill struggle. Moreover, the drafters would need to find ways to address the issue of how to deal with current justices. Exempting them would likely anger the political left. Not doing so risks losing support on the right.

The President's motive for putting forward these ideas now is likely at least partly political. The Supreme Court has become highly unpopular. Currently, it only has an approval rating of about 36% in the 538 average of recent polls, with about 56% disapproving. Targeting the Court might be good politics, and could help bolster Biden's flagging campaign. Moreover, if reports about the proposals are correct, Biden has focused on ideas that are generally popular, such as term limits, while avoiding much less popular (and very dangerous) idea of court-packing.

As noted above, purely statutory term limits would set a dangerous precedent. But swing voters (most of whom don't follow policy issues closely, and know little about them), may not grasp that.

When and if Biden actually puts forward these proposals, we will learn more about how good or bad they are, and whether they have any political effect. Stay tuned!

UPDATE: I suppose I should make the relatively obvious point that any Supreme Court reform statutes are unlikely to pass before the November election, given that the GOP-controlled House probably would not put them up for a vote.

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[Eugene Volokh] Pseudonymity Allowed in Case Challenging NCAA's Rules Allowing Transgender Contestants in Women's Sports

Monday's decision in Gaines v. NCAA by Judge Mark Cohen (N.D. Ga.), allows two plaintiffs in a challenge to NCAA's transgender eligibility policies to proceed pseudonymously:

Although [federal law] creates a "strong presumption in favor of parties proceeding in their own names …, the rule is not absolute. A party may proceed anonymously by establishing 'a substantial privacy right which outweighs the 'customary and constitutionally embedded presumption of openness in judicial proceedings.'" …

[T]he Court finds that the allegations in this case concern matters of personal beliefs and positions that could subject the Doe Plaintiffs to stigmatization, ostracization, retaliation, and violence. Specifically, Plaintiffs take the viewpoint that transgender women "have inherent physical advantages" over cisgender women and should not be allowed to compete in single-gender athletic contests "as a matter of fairness." Because this lawsuit involves personally held beliefs regarding gender identity, the Court finds that disclosure of the Doe Plaintiffs' identities would be tantamount to compelling them to "disclose information of utmost intimacy."

Furthermore, Plaintiffs have also offered declarations of Plaintiffs Riley Gaines and Lily Mullens, as well as members of faculty and administration at various universities, testifying to the retaliation, threats, and stigmatization they experienced as a result of voicing their opinions on the transgender-athlete controversy. See, e.g., Decl. of Riley Gaines (averring that she was trapped in a small office for three hours while protestors yelled profanities at her, including calling her transphobic). The Court finds that Plaintiffs have submitted sufficient evidence that the Doe Plaintiffs would likely face adverse reactions in their communities should they be required to disclose their identities at this time. While the Court is mindful that "personal embarrassment alone is not enough for leave to proceed anonymously," "the Court recognizes the unique sensitivities that exist within the current political climate and social context," and finds that leave to proceed pseudonymously is appropriate in this case….

Of course, defendants would be entitled to learn pseudonymous plaintiffs' names, under a protective order, since otherwise they would be unable to effectively defend the case; the ruling is aimed at protecting the pseudonymous plaintiffs from being identified to the public.

The court also allowed the plaintiffs' declarations to be substantially redacted to protect their pseudonymity:

Plaintiffs contend that, although they "desire to provide the Court with predicate facts" to support their Pseudonym Motion, the information provided in the declarations, including the Doe Plaintiffs' colleges, teams, coaches, teammates, athletic directors, and events that occurred on their campuses "could potentially lead to the discovery of their identity if made publicly available." For the reasons addressed above with respect to Plaintiffs' Pseudonym Motion, including the intimate nature of Plaintiffs' personally held beliefs and the fear of stigmatization, academic and professional retaliation, and violence, the Court finds that Plaintiffs have a legitimate privacy interest in protecting the information, and that this interest outweighs any common-law right of access the public may have in this information. Accordingly, the Court finds good cause exists to seal the unredacted versions of the Declarations of Swimmer A and Track Athlete A.

Whether plaintiffs' desire to avoid political hostility, ostracism, and possible blacklisting suffices to justify pseudonymity is an unsettled question (as is so much in the law of pseudonymous litigation). Here's what I wrote about this in May:

Generally speaking, plaintiffs who want to use the civil justice system must sue in their own names, even when that might damage their reputations and professional prospects. Someone suing an ex-employer, for instance, may worry that future employers might not want to hire a known litigious employee; or he may expect that the employer will argue that he was fired for sexual harassment, theft, incompetence, etc., allegations that will then be connected with his name (even as he argues that they are false and that the real reason for firing was, say, race discrimination). Likewise, a libel plaintiff may worry that the lawsuit will just further amplify the libelous allegations. But that usually doesn't suffice for pseudonymity, unless the plaintiff can show a serious (more than merely speculative) risk of physical harm stemming from being identified, or the case involves a purely legal rather than a factual challenge.

But when the case involves controversial topics that might arouse public disapproval, cases are split. For instance, a recent case rejected pseudonymity where plaintiff argued that his challenge to Twitter policies might draw attacks on his children from "unbalanced people in the world" who "hate President Trump supporters." Another rejected pseudonymity for plaintiffs objecting to a school's "Black Lives Matter" posters. [UPDATE: That decision has since been affirmed by the Eighth Circuit.] But other cases allowed pseudonymity for challenges to school board policies on teaching views associated with Critical Race Theory, or on gender identity. And cases are split as to whether challenges to vaccine mandates may proceed pseudonymously.

Now let's throw in another factor: What if the case is a challenge to a university disciplinary proceeding? When it comes to challenges to sexual misconduct findings under Title IX, most courts have allowed pseudonymity (see Appendices 4a & 4b of The Law of Pseudonymous Litigation), though the Seventh Circuit has just strongly disagreed with that majority view. Should pseudonymity be more broadly allowed in all university disciplinary proceedings, whether or not they involve sexual misconduct?

One past case had indeed allowed pseudonymity where university students had sued over having been disciplined for engaging in actions that were supposedly "racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities." And now we see something similar in a high-profile case arising out of the anti-Israel protests, Doe v. Columbia Univ. (S.D.N.Y.).

For more on the court's tentative grant of pseudonymity in Doe v. Columbia Univ. (also known as the "wet farts" case), see here.

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[Josh Blackman] Preserving the Issue of Whether Morrison v. Olson Should Be Overruled

[The Special Counsel is squarely on notice that the question of whether Morrison’s holding should be preserved or overruled is at issue.]

Justice Scalia's dissent in Morrison v. Olson is the cornerstone of conservative legal thought. Every year I teach it, I gain new insights into the separation of powers. Nearly four decades later, the opinion gets better with time. (Justice Kagan said that, or at least something like that.) Alas, Chief Justice Rehnquist's majority opinion remains controlling law. The Court had no occasion to overrule Morrison, but it has been eroded in cases like Seila Law and Arthrex. However, Special Counsel Jack Smith's prosecution of Donald Trump presents just that opportunity for Morrison to be overruled. And I personally made sure of it.

During oral argument in Judge Cannon's court, I preserved the issue of whether Morrison should be overruled by the Supreme Court. It was the very last thing I said before I sat down.

MR. BLACKMAN: I will make just one last point, Your Honor, and then I'll sit down. Morrison v. Olson, of course, is precedent. I don't know that the defendants have asked to preserve the issue over whether Morrison should be overruled. Maybe I can. I will. But I think this is a precedent that has been chipped away by Seila Law and other cases. And I think it's at least fair to acknowledge that this stands on a shaky foundation.

THE COURT: All right. Thank you very much. I appreciate your assistance.

MR. BLACKMAN: Thank you, Your Honor.

[ECF No. 647, p. 112.]

During rebuttal, James Pearce, the lawyer for the Special Counsel, referenced my remark, though I don't think he quite got what I was trying to do.

MR. PEARCE: Now, I want to spend just a moment, if I could, on the difference between "employee" and "officer." I think that was the thrust of what I understood the Tillman amicus brief and Mr. Blackman—although Mr. Blackman was wide-ranging, I think he asked this Court to overrule Morrison v. Olson, which I don't think is in any way presented. But I want to focus on what the brief was about. [ECF No. 647, p. 155 (bold added).]

But Judge Cannon understood exactly what I said. Her opinion expressly referenced the preservation of this issue in Footnote 54:

Post-Edmond, the viability of Morrison has been called into question. See, e.g., N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 315 (2017) (Thomas, J., concurring) ("Although we did not explicitly overrule Morrison in Edmond, it is difficult to see how Morrison's nebulous approach survived our opinion in Edmond. Edmond is also consistent with the Constitution's original meaning and therefore should guide our view of the principal-inferior distinction."); Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 617 & n.8 (citing cases and scholarship). Nonetheless, because it has not been overruled, the Court proceeds to apply the Morrison test alongside Edmond. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stressing the Supreme Court's "prerogative of overruling its own decisions"). Defendants have not argued for the overruling of Morrison in this court, although the matter was raised at argument by the Landmark Legal amici. [Tr. of Oral Argument (June 21, 2024)] ECF No. 647 p. 112; ECF No. 364-1 (criticizing Morrison). [slip op. 71 n.54 (bold added).]

A few hours after my oral argument concluded, I wrote about Mapp v. Ohio. In that case, the ACLU as amicus asked the Supreme Court to overrule Wolf v. Colorado. And the Supreme Court did just that. I wrote, with some degree of self-awareness, that it would be even better for the issue to have been raised by an amicus in the lower courts:

More relevant to the present day, the holding of Mapp suggests that an Amicus who is invited to participate can ask the Supreme Court to overrule a precedent, and the issue is not waived. Indeed, the Amicus was allowed to make this request for the first time before the Supreme Court, even where it was not raised in the lower court litigation. The Supreme Court apparently did not see any problem with waiver or the party presentation rule here. If what the ACLU did was proper, it stands to reason that a similar request could be made by an amicus who is invited to participate in the lower courts, if only to put everyone on notice that a precedent is in doubt, and to preserve the issue for review by the Supreme Court.

Another relevant precedent is Teague v. Lane (1988). In that case, the plurality, per Justice O'Connor, addressed a retroactivity issue that was only pressed by amicus:

The question of retroactivity with regard to petitioner's fair cross-section claim has been raised only in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. See Brief for Petitioner 21-32; Brief for Respondent 31-38. Moreover, our sua sponte consideration of retroactivity is far from novel. In Allen v. Hardy, we addressed the retroactivity of Batson even though that question had not been presented by the petition for certiorari or addressed by the lower courts. See 478 U.S. at 478 U. S. 261-262 (MARSHALL, J., dissenting). See also Mapp v. Ohio, 367 U. S. 643, 367 U. S. 646, n. 3 (1961) (applying exclusionary rule to the States even although such a course of action was urged only by amicus curiae).

In dissent, Justices Brennan and Marshall expressed astonishment that the plurality reached this issue based on the representation of an amicus:

Astonishingly, the plurality adopts this novel precondition to habeas review without benefit of oral argument on the question, and with no more guidance from the litigants than a three-page discussion in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24.

But such is the law of issue preservation before the Supreme Court. Unless a different set of law applies nowadays. 

Given Mapp and Teague, from my vantage point, the issue of whether Morrison v. Olson should be overruled has been preserved. And the Special Counsel is squarely on notice that the question of whether Morrison's holding should be preserved or overruled is at issue.

With the benefit of hindsight, Attorney General Merrick Garland's decision to appoint Smith may become one of the greatest blunders in DOJ history. Or, from a different vantage point, his decision may lead to the greatest strengthening of the President's Article II power in Supreme Court history. First, the investigation led to the sweeping immunity ruling in Trump v. United States. Second, the prosecution may lead to the special counsel regulations being called into question by the Supreme Court, if not the overruling of Morrison. Third, none of these cases yielded a trial, let alone a conviction, before the election. Fourth, despite everything that has happened over the past four years, Trump is still leading in many polls, and may still be reelected. What good did any of these proceedings accomplish? Garland would have been better off indicting Trump in January 2021, or doing nothing at all.

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[Eugene Volokh] Calling Someone an "Amateur" May Sometimes Be Defamatory

[“This Court rejects Defendants’ argument an ordinary person could find ‘amateur,’ in this circumstance, to refer to ‘one who engages in a pursuit, study, science, or sport as a pastime rather than a profession’ or a ‘devotee, [or] admirer,’ given the surrounding context and circumstance.”]

From yesterday's decision by Judge Frank Whitney (W.D.N.C.) in McBride v. Sacks:

Plaintiff Ty McBride … is the manager of [co-plaintiff] Mason Lane Entertainment LLC …. Sacks is an employee or agent of [the companies] Partisan … [and] Selmona ….

McBride has, for years, "operated music concerts" in the Charlotte area, responsible for attracting talent and scheduling events for venues around the city. McBride performs these services through Mason Lane. Prior to the initiation of this litigation, Plaintiffs were approached by representatives of then-unopened outdoor amphitheater AMP Ballantyne ("AMP"), its management company NOW Amphitheater Management LLC ("NOW"), and its primary investor … seeking McBride's expertise in venue management.

The five parties entered into a partnership wherein Plaintiffs "expended considerable time and provided extensive services" to prepare AMP Ballantyne for its launch. According to McBride, services rendered were uncompensated, and performed under the partnership agreement in expectation of future gain. Around June 2023, NOW entered into an Amphitheater Event Management Agreement ("AEMA") with Mason Lane under which Plaintiffs would provide various specialized services, including "securing entertainment for AMP Ballantyne events and setting up and running the food and beverage program for AMP Ballantyne events," in return for a portion of revenue generated through ticket, food and drink, merchandise, and parking sales.

In July 2023, McBride initiated discussions with Sacks to secure a Big Head Todd and the Monsters ("Big Head") concert at AMP. McBride and Sacks failed to agree on terms, after which Sacks reportedly "became angry and called McBride an amateur." Sacks then cancelled a band previously scheduled to perform at AMP, which McBride concludes occurred "because [Sacks] was angry with McBride about the Big Head Todd situation." McBride alleges Sacks, during a phone conversation with AMP promoter Bobby Hendrix ("Hendrix"), stated he did not trust AMP to schedule shows with Partisan because of McBride, telling Hendrix "AMP Ballantyne was not vetting its promotors or working with seasoned people," purportedly in reference to McBride. Sacks also stated to Hendrix, among other unspecified accusations, "McBride did not know what he was doing and was an amateur," and "Partisan Arts would not schedule further concerts for Partisan Arts's artists at the AMP Ballantyne if McBride continued to be associated with the venue."

Plaintiffs contend NOW opted to terminate the AEMA and inform McBride it could not move forward with any future commercial partnerships because of Sacks' threat to sever ties with the AMP parties if they continued to associate with McBride….

The court allowed plaintiffs' defamation claim to go forward for various reasons, including:

As alleged, Sacks stated he "didn't trust AMP Ballantyne to schedule shows with Partisan Arts's artists because of McBride," "AMP Ballantyne was not vetting its promoters or working with seasoned people," and "McBride did not know what he was doing and was an amateur." This Court rejects Defendants' argument an ordinary person could find "amateur," in this circumstance, to refer to "one who engages in a pursuit, study, science, or sport as a pastime rather than a profession" or a "devotee, [or] admirer," given the surrounding context and circumstance. {"[A]mateur," in this context, could only be interpreted by the reasonable person to mean "one lacking in experience and competence in an art or science."} While true "amateur" is not universally synonymous with "incompetent," it would be unreasonable to interpret it in any other manner. Because these statements, uttered in connection with a business relation, "touch Plaintiff[s] in [their] profession and would be injurious to Plaintiff[s]' business," Plaintiffs have sufficiently alleged facts that give rise to a claim for defamation per se.

Defendants also maintain Sacks' statements were "opinion rather than provable fact," and are therefore not actionable as defamatory. This Court finds, however, that whether an individual is "seasoned," may "not know what he [is] doing," or whether one is an "amateur," in the context given, represent statements of mixed opinion and fact. The facts underlying the claim McBride was an "amateur" or "did not know" what he was doing are (1) McBride has a lack of experience or competence in his position, and, as a result, (2) McBride cannot perform his duties at the level expected of an individual in his position. Accusations of a lack of experience, competence, or capacity are not mere insults or opinions, but assertions one is factually unfit for his duties, and are actionable as defamatory statements….

As to the interference with contract claim, the court ruled:

Defendants contend Sacks never intentionally induced the AMP parties to terminate their agreement with Plaintiffs, and that the Amended Complaint offers no allegations Sacks made any purposeful request the AEMA be terminated…. Defendants correctly … underscore North Carolina courts interpret "induce" as "to move by persuasion or influence[;]" (2) "to call forth or bring about by influence or stimulation [;]" and (3) "to cause the formation of … [t]he act or process of enticing or persuading another person to take a certain course of action … active persuasion, request, or petition." Here, Plaintiffs allege Sacks contacted AMP agents and informed them "Partisan Arts would not schedule further concerts for Partisan Arts's artists at the AMP Ballantyne if McBride continued to be associated with the venue." While thin, these allegations are sufficient to infer intent in inducing termination of the agreement….

While this Court recognizes "competition in business constitutes justifiable interference with another's business relations and is not actionable if carried out in one's own interests and by means that are lawful," that does not suggest one may engage in conduct that seeks to destroy the interests of another party…. "[T]he privilege [to interfere] is conditional; that is, it is lost if exercised for a wrong purpose. In general, a wrong purpose exists where the act is done other than as a reasonable and bonafide attempt to protect the interest of the defendant which is involved."

The Amended Complaint plausibly alleges Defendants' actions were not merely an attempt to protect their own interests; rather, Plaintiffs sufficiently allege Defendant Sacks actively sought to sabotage the agreement and destroy Plaintiffs' relationship with the AMP parties….

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