Eugene Volokh's Blog, page 35

[Keith E. Whittington] On the Status of Judicial Independence in the American Constitutional Order

[My new paper on judicial independence as a constitutional construction.]

I have posted a new paper on "Judicial Independence as a Constitutional Construction."

The paper builds on the notion of constitutional construction and the role constructions play in our constitutional politics and in structuring the workings of our constitutional system. It focuses on the specific context of judicial independence and contestation over how valuable that ideal actually is and how it should be realized in practice. Current proposals to reform the courts might unsettle long-established understandings of how the judiciary should operate, but such efforts to unsettle and reform established constitutional practices and understandings have happened before.

From the abstract:

An independent judiciary, in the American context, might best be understood as a constitutional construction. That is, it is a politically constructed set of practices, institutions, and norms that extend but do not contradict the legal requirements of the formal constitution. As such, judicial independence has come to occupy a fundamental status within our inherited constitutional order. But importantly, it is mutable. Our inherited practice of judicial independence has been built up, and fought over, across time, and within the contours of the written constitution can be significantly reconstructed.

The example of judicial independence can serve as a useful illustration of the significance of unwritten practices to our constitutional order. This also provides an opportunity to examine how judicial independence was constructed, and contested, across American history. As current activists and politicians raise questions anew about the future of judicial independence in America, these current debates can be situated within a long history of debates about the proper role, composition, and structure of American courts. This Article reviews those debates regarding federal courts in the Jeffersonian era, state courts in the Jacksonian era, and the Supreme Court in the New Deal era.

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[Eugene Volokh] Saudi Activist's Claims Against Alleged Hackers for UAE Government Can Go Forward

From Judge Karin Immergut (D. Or.) yesterday in Alhathloul v. DarkMatter Group:

This case involves allegedly unlawful actions by Defendant DarkMatter Group ("DarkMatter"), a software company based in the United Arab Emirates, and three of its former senior executives, Marc Baier, Ryan Adams, and Daniel Gericke (the "individual Defendants" and, together with DarkMatter, the "Defendants"). Plaintiff Loujain Alhathloul, a prominent Saudi women's rights activist, alleges the Defendants hacked her iPhone, surveilled her movements, and exfiltrated her private data. Plaintiff alleges the hack facilitated her arrest in the United Arab Emirates and rendition to Saudi Arabia, where she alleges she was imprisoned and tortured. Plaintiff alleges all Defendants violated the Computer Fraud and Abuse Act ("CFAA"), and conspired together and with Emirati officials to violate the CFAA. She also alleges the individual Defendants' actions constitute a crime against humanity actionable under the Alien Tort Statute ("ATS").

This Court concludes Plaintiff's FAC makes a prima facie showing of specific personal jurisdiction over all Defendants. Plaintiff's allegations that Defendants committed an intentional tort while Plaintiff was in the U.S., together with Defendants' other forum-related contacts, establish minimum contacts that arise out of Plaintiff's claims, and Defendants have failed to establish that exercising jurisdiction would be unreasonable. The motion to dismiss for lack of personal jurisdiction is therefore denied.

This Court also denies Defendants' motion to dismiss Plaintiff's CFAA and CFAA conspiracy claims. Finally, this Court declines to recognize Plaintiff's alleged tort of discriminatory persecution under the ATS and accordingly grants the individual Defendants' motion to dismiss that claim for lack of subject-matter jurisdiction….

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[Josh Blackman] SCOTUS Redesigns The Docket Page

SupremeCourt.gov got a redesign recently. The docket page previously looked like this. With the , all of the counsel were listed at the bottom of the page. There is a lot of wasted white space.

The has a different color scheme. The brown color is now a silver color. And the sharp edges are now rounded. The biggest change is that counsel are listed on the left side column. The new design is far more elegant, and has far less wasted space.

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[Jonathan H. Adler] Are Opinions Respecting En Banc Denials "Offensive to Our System of Panel Adjudication"?

[The judges on the U.S. Court of Appeals for the Sixth Circuit split over whether they should write about the reasons for their splitting over en banc review.]

Today the U.S. Court of Appeals for the Sixth Circuit denied rehearing en banc in Mitchell v. City of Benton Harbor, a case in which a divided panel concluded that Benton Harbor residents could sue the city and city officials for violating their substantive-due-process right to bodily integrity for failing to mitigate and adequately address lead contamination in the local water system. Judge Moore wrote the original panel opinion, joined by Judge Cole. Judge Larsen wrote separately, concurring in part and dissenting in part.

Today, Judge Larsen dissented from the courts denial of a petition for rehearing en banc, joined by Judges Kethledge, Thapar, Bush, Nalbandian, Readler, and Murphy. This dissent prompted a statement from Judge Moore, decrying the growing practice of dissents and other opinions or statements respecting en banc denials. (In this regard, Judge Moore echoed some concerns raised by Judge Wynn on the Fourth Circuit several years ago.) Judge Moore's opinion, in turn, prompted a second dissent from the en banc rehearing denial by Judge Readler, joined by Judge Bush, expressly addressing the question of whether there are two many opinions respecting the denial of rehearing en banc. (Answer: No.).

Judge Larsen's dissent begins:

The court concludes that several City of Benton Harbor officials plausibly violated city residents' clearly established substantive due process right to bodily integrity. How? Each official is alleged to have engaged in slightly different conduct. But to take one, consider the case of Mayor Marcus Muhammad. At a press conference, he informed residents that the water in some city homes had dangerous levels of lead, and he advised them that they could work with the City to test their water. He also urged them not to panic; and that, according to the court, crossed a clearly established constitutional line because it "undermined" the rest of the message. Mitchell v. City of Benton Harbor, 137 F.4th 420, 437 (6th Cir. 2025). In other words, the court strips Muhammad of qualified immunity for not delivering the warning with the (now) constitutionally required tone of alarm.

Muhammad's failure to speak with sufficient alarm is in no way "conscience shocking"
behavior that violates the Constitution. And until today, no case has come close to holding that it is. Accordingly, Muhammad is entitled to qualified immunity.

The court's conclusion to the contrary brazenly defies Supreme Court precedent, which
alone merits en banc review. And the importance of the question at issue—the constitutional liability of government officials responding to naturally occurring environmental crises—deepens the need for the full court's consideration of this case. I thus respectfully dissent from the denial of rehearing en banc.

Judge Moore's opinion concurring in the denial (and responding to Judge Larsen) begins:

There is a rising trend in our circuit of publishing separate statements when rehearing is denied after a poll of the en banc court. I have serious concerns about this practice. In this case, the opinions of the majority and the dissent have already been fully and carefully explained. Drafting CliffsNotes versions of our views is not only unnecessary, but it is also offensive to our system of panel adjudication. "The trust implicit in delegating authority to three-judge panels to resolve cases as they see them would not mean much if the delegation lasted only as long as they resolved those cases correctly as others see them." Issa v. Bradshaw, 910 F.3d 872, 877–78 (6th Cir. 2018) (Sutton, J., concurring in the denial of rehearing en banc). By accumulating votes for or against the positions articulated in the panel opinions, we cast doubt on circuit precedent, erode our faith in the panel system, and give rise to our own "shadow docket." But when, as here, the dissenting judge accuses the panel majority of "brazenly def[ying] Supreme Court precedent," Principal Dissental at 10, I cannot allow that accusation to go unanswered. See United States v. New York, New Haven & Hartford R.R., 276 F.2d 525, 553–54 (2d Cir. 1960) (statement of Friendly, J.), overruled in part, Chappell & Co. v. Frankel, 367 F.2d 197 (2d Cir. 1966). So, I write in response to re-explain the panel majority's reasoning.

This case concerns a lead-water crisis in Benton Harbor, Michigan, which played out in the wake of the highly publicized water crisis in Flint, Michigan. In October 2018, routine water testing revealed that Benton Harbor's municipal water supply was tainted with dangerous quantities of lead. See Mitchell v. City of Benton Harbor, 137 F.4th 420, 425 (6th Cir. 2025). As is well known, lead is a toxic metal that is particularly hazardous to children. Id. Even low-level exposure can cause lifelong consequences. Id. Despite these serious risks, and with the situation in Flint barely in the rearview mirror, Plaintiffs allege that Benton Harbor City officials encouraged residents to drink water that they knew was contaminated with lead, leading hundreds of children to be exposed to lead and suffer symptoms of lead poisoning. See id. at 428–29, 437–38. Because this would clearly violate those individuals' constitutional right to bodily integrity, the panel majority allowed the case against the City officials to proceed in the district court past a motion to dismiss. I concur in the court's decision to deny rehearing en banc.

Judge Moore's opinion prompted a response from Judge Readler:

I join fully in Judge Larsen's dissent. Our concurring colleague's broader concern over separate writings at the en banc stage, Concurring Op. 3, ironically enough, prompts me to add one more writing to the mix.

Our colleague has "serious concerns" over what she sees as the "rising trend in our circuit of publishing separate statements when rehearing is denied" by the en banc court. Id. If past practice is any indicator, our colleague's distaste for separate writings, dissents from the denial of rehearing en banc in particular, appears to be a very recent phenomenon. [Lengthy string cite omitted.] It is also difficult to reconcile with the current arc of legal discourse.

Debate over weighty issues is the heart and soul of the legal profession. In nearly all respects, we encourage the exchange of ideas. For lawyers and litigants, their efforts benefit from legal analysis by peers and judges alike, all of which helps shape legal practice and strategy going forward. See Georgia v. Public.Resource.Org., Inc., 590 U.S. 255, 288 (2020) (Thomas, J., dissenting) (explaining that the existence of multiple opinions helps readers "understand[] the reasoning that animates the rule" and thus "provides pivotal insight into how the law will likely be applied in future judicial opinions"). The same is true for judges, whose "legal analysis" is likewise "elevate[d]" by "healthy and respectful discussion about important ideas." United States v. Boler, 115 F.4th 316, 333 (4th Cir. 2024) (Quattlebaum, J., dissenting). After all, in ultimately
resolving the difficult legal questions put before us, we customarily are aided by more thought and inspection, not less.

That is what separate writings—concurrences, dissents, concurrals, dissentals, and the like—aim to achieve. They flesh out legal issues beyond what prior opinions have done, either reinforcing earlier conclusions or raising questions over them. These writings thus "serve an important function and," for that reason, "are taken seriously by courts, the public, the academy, and the legal profession." Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale. L.J. Online 601, 607 (2012). Indeed, contrary to our colleague's concern about "erod[ing] faith in the panel system," Concurring Op. 1, the practice of writing at the en banc stage in fact increases our Court's legitimacy: "It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals." Kozinski & Burnham, supra, at 612. Few jurists would understand all of this better than our concurring colleague, who has contributed as much to the legal discourse in our Circuit as has anyone over the last three decades.

True, in some instances an en banc–stage writing may reiterate points in an underlying panel opinion. See Concurring Op. 1 (critiquing separate writings that are "CliffNotes versions" of panel opinions). . . . Yet even then, the writing serves an important function: it allows other judges apart from those randomly assigned to the panel to join in the effort, which further informs issues in the current case, to say nothing of the next one. See Kozinski & Burnham, supra, at 604 (defending the legitimacy of
"off-panel judge[s]" writing at the en banc stage). The esteemed Judge J. Harvie Wilkinson summed up the en banc process exactly this way. "Judges vote on th[e] [en banc] poll, and judges are entitled to explain their reasons for that vote. Giving reasons is what we do. Reasoning adds to judicial transparency; it does not detract from it. And debate on issues of legal and public importance is to be welcomed, not disapproved." Doe v. Fairfax Cnty. Sch. Bd., 10 F.4th 406, 414 (4th Cir. 2021) (order) (Wilkinson, J., dissenting from denial of en banc rehearing).

Members of the Supreme Court understandably hew to this same practice. At the certiorari stage, justices will sometimes craft separate opinions expressing their views on why a case should (or should not) have been accepted for review, views that often inform related cases going forward. . . . see also Eugene Gressman et al., Supreme Court Practice § 5.5, at 330–31 (9th ed. 2007) (noting, nearly two decades ago, the rise in "the practice of publicly recording dissents from the denial of certiorari" and cataloguing the "[m]any different purposes" these writings serve, including providing "signals to the bar" or "to the litigants").

But there is one more reason why these writings are valued: The Supreme Court relies on them in overseeing our legal system. The Supreme Court faces a daunting task. Among all of the cases in the federal courts, it must select the most deserving for review. See Sup. Ct. R. 10 ("A petition for a writ of certiorari will be granted only for compelling reasons."). To do so, it relies on the development of legal opinions across the "inferior courts." U.S. CONST., art. III, § 1. As cases "percolate[]" in those courts, jurists add their "independent evaluation" of the issues presented, meaning that when the Supreme Court eventually is asked to review those issues, it "has the benefit of the experience of those lower courts." See Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681, 716 (1984). And that percolation process, it is well understood, informs the Supreme Court's decisionmaking, both which cases to decide, and how to decide them. . . .

Separate writings in the courts of appeals, including at the en banc stage, are critical pieces to this puzzle. In case after case, the Supreme Court has cited those writings and explained how they informed the Supreme Court's review process. Examples from just the last two Supreme Court terms abound. . . .

In so doing, the Supreme Court often highlights the number of judges who joined the
writing, which I take to reflect the weight justices place upon these efforts in the appeals courts. . . . A notable example on this front is the Supreme Court's recent opinion in Grants Pass, which lays out in detail how the Supreme Court views separate writings at an appeals court's en banc stage:

The city sought rehearing en banc, which the court denied over the objection of 17 judges who joined five separate opinions. Judge O'Scannlain, joined by 14 judges, criticized Martin's "jurisprudential experiment" as "egregiously flawed and deeply damaging—at war with constitutional text, history, and tradition." Judge Bress, joined by 11 judges, contended that Martin has "add[ed] enormous and unjustified complication to an already extremely complicated set of circumstances." And Judge Smith, joined by several others, described in painstaking detail the ways in which, in his view, Martin had thwarted good-faith attempts by cities across the West, from Phoenix to Sacramento, to address homelessness.

144 S. Ct. at 2214 (citations omitted). In particular, the separate en banc–stage writings of our colleagues on the Ninth Circuit highlighted both the repeat-player legal doctrines commonly at issue in that circuit and the damaging practical consequences flowing from those doctrines, all of which likely informed the Supreme Court's ultimate resolution of the case. As this and other cases reflect, "the jurisprudential benefits that come with" writing separately at the en banc stage "more than merit a continuing and vibrant community of dissental writing." Diarmuid F. O'Scannlain, A Decade of Reversal: The Ninth Circuit's Record in the Supreme Court Through October Term 2010, 87 Notre Dame L. Rev. 2165, 2178 (2012).

Much more could be said on the topic, but the point seems easy enough to understand. Most of us welcome, indeed encourage, the exchange of ideas, the Supreme Court included. Perhaps one who does not want a panel opinion placed in the spotlight might bristle at colleagues adding their dissenting voices, as a collection of judges, led by Judge Larsen, have done here. See Jonathan H. Adler, Are There Too Many Dissents from Denial of En Banc Petitions?, Volokh Conspiracy (Aug. 31, 2021), https://perma.cc/228V-E5TX ("I get that judges do not like to be criticized, and they like even less to be overruled. And if a judge's overall judicial philosophy is out-of-step with that of the Supreme Court, such reversals may be more common. Yet if such reversals are a problem, it seems the better course would be for circuit courts to decide cases in accord with prevailing legal principles than to complain about dissents from denial of en banc review."); see also Kozinski & Burnham, supra, at 604 (describing the practice of limiting nonpanel participation at the en banc stage as "the judicial  equivalent of the fox guarding the henhouse"). Happily, that sentiment appears to be a minority one in our Circuit.

Also of note, today the SIxth Circuit also denied rehearing en banc in C.S. v. McCrumb. Judge Clay authored an opinion concurring in the denial, joined by Judge Stranch; Judge Gibbons concurred in the denial of panel rehearing and a statement respecting the denial of rehearing en banc; and Judge Readler delivered a separate statement respecting the denial of the petition for rehearing en banc, joined by Judges Thapar and Bush.

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[Eugene Volokh] "Reporters Without Borders' Stance on US-Brazil Policy Undermines Press Freedom"

From Jacob Mchangama (The Bedrock Principle), a leading scholar of free speech history and of international speech restrictions:

Last week, Reporters Without Borders (RSF) issued one of the more remarkable statements I've seen from a group dedicated to press freedom. It criticized the Trump administration for imposing 50% tariffs on Brazil in response to what the U.S. called the Brazilian government and judiciary's "unprecedented actions to tyrannically and arbitrarily coerce U.S. companies to censor political speech."

To be clear, there are fair reasons to question the administration's sincerity and its focus on Brazil. Why, for instance, isn't the U.S. going after Russia, which has long banned U.S. tech companies for spreading "illegal content" and fined Google $360 million in 2022 and $78 million this year for failing to remove "prohibited material"? Meanwhile, the administration's own record on speech and press freedom at home severely undermines its credibility when criticizing wrongdoings abroad.

But these were not RSF's objections. Instead, one of the world's best-known press-freedom organizations effectively endorsed Brazil's approach:

"Using free speech as a pretext for trade sanctions is both cynical and misleading. Freedom of expression does not excuse disinformation, and it is not a shield for corporate influence. Brazil must not back off legitimate regulatory efforts designed to strengthen the right to reliable information and protect democratic debate online. Initiatives to counter disinformation, hate speech, and online harm are essential to protect journalism and democratic debate."

According to RSF, prohibiting "disinformation" is not only legitimate but necessary—and it strengthens, rather than weakens, journalism and democratic debate. That's an unusual stance for a press-freedom group….

Much worth reading in its entirety.

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[Eugene Volokh] Arkansas Ban on Youth Gender Transition Procedures Upheld, Including Restriction on Referrals for Such Procedures

[But the restriction appears to cover only referrals for illegal in-state procedures, and not referrals for legal out-of-state procedures.]

Today's en banc Eighth Circuit opinion in Brandt v. Griffin, written by Judge Duane Benton, held—largely relying on the Supreme Court's decision this Summer in U.S. v. Skrmetti—that the Act doesn't involve a presumptively unconstitutional sex classification or a transgender status classification. It also held that the Act doesn't violate parents' "right to provide appropriate medical care for their children," for much the same reasons given by panels in the Tenth Circuit and Sixth Circuit. And the court said this as to the prohibition on referrals:

[T]he Supreme Court recognizes that the First Amendment "does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." National Inst. of Family & Life Advocates v. Becerra (2018). "States may regulate professional conduct, even though that conduct incidentally involves speech." In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld a provision compelling physicians to provide information to patients about the risks of abortion. The plurality opinion recognized that the requirement "implicated" a physician's First Amendment rights, "but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." Planned Parenthood of Southeastern Pa. v. Casey (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.), overruled on other grounds by Dobbs.

The question here is whether the Act regulates speech, conduct, or both. "While drawing the line between speech and conduct can be difficult," the precedents of the Supreme Court have long drawn that line. The district court interpreted "refer" in the Act to include "informing their patients where gender transition treatment may be available." … [But] this court should read "refer" according to its medical definition: "to send or direct for diagnosis or treatment." The whole of the Act supports this reading. The Act makes "unprofessional conduct" any "referral for or provision of" gender transition procedures for minors. This language supports that "refer" in Section 1502(b) means a formal "referral for" treatment, not merely informing patients about the availability of procedures.

Whether the Act "proscribes speech, conduct, or both depends on the particular activity in which an actor seeks to engage." A referral for treatment is not part of the "speech process." Rather, a referral is part of the treatment process for gender transition procedures.

The Act does not focus on whether a healthcare professional is "speaking about a particular topic." Instead, the Act prohibits a "healthcare professional" from providing gender transition procedures to minors. It also prohibits a "healthcare professional" from referring minors to "any health care professional for gender transition procedures." The Act defines "healthcare professional" as "a person who is licensed, certified, or otherwise authorized by the laws of this state to administer health care in the ordinary course of the practice of his or her profession." Thus, the Act prohibits a healthcare professional from referring minors to healthcare professionals for procedures that the Act prohibits them from providing. See United States v. Hansen (2023) ("Speech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected."). To the extent the Act regulates speech, it does so only as an incidental effect of prohibiting the provision of gender transition procedures to minors. See Giboney v. Empire Storage & Ice Co. (1949) (emphasizing that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed").

The healthcare professional invokes National Institute of Family and Life Advocates v. Becerra. There, the Supreme Court held that requiring healthcare professionals to provide information about contraception and abortion services provided by the state was a content-based regulation of speech. But there, unlike in Casey, the compelled speech was not part of a medical procedure.

By contrast, a referral for treatment is "part of the practice of medicine." Becerra is not helpful to the healthcare professionals, because the Act does not regulate "speech as speech." This is not a case where "the only conduct which the State sought to punish was the fact of communication." Rather, the Act seeks to prohibit the conduct of providing gender transition procedures to minors. True, a referral includes "elements of speech," such as writing, typing, or verbal communication. But any restriction on speech is "plainly incidental" to the Act's regulation of conduct….

Judge Jane Kelly, joined by Judge James Loken, concurred as to the First Amendment, though noted that she read the Court's First Amendment ruling "as narrow":

The Court concludes only that a ban on formal medical referrals does not directly implicate the First Amendment. Under the Court's interpretation of Act 626, healthcare professionals remain free to discuss the possible treatments for gender dysphoria with their patients, as well as where such treatments are offered. Additionally, as the Court suggests, Slip Op. 23, the Act does not appear to prohibit doctors from referring patients to out-of-state providers for gender affirming care. See Ark. Code. Ann. § 20-9-1502(b) (prohibiting "[a] physician or other healthcare professional" from referring minors "to any healthcare professional for gender transition procedures"); id. § 20-9-1501(8) (defining a "[h]ealthcare professional" as "a person who is licensed, certified, or otherwise authorized by the laws of this state").

She argued, though, that the court should "remand for the district court to assess whether the Act survives rational basis review" under the Equal Protection Clause, reasoning that the district court's factual findings suggest that the law is irrational. For the full (long) opinions, see here.

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[Josh Blackman] The Supreme Court (Finally) Posts The October and November Calendars

After an unusually long delay, the Court has posted the calendars for October and November. The Voting Rights Act case has been consolidated for a single hour on October 15.

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[Paul Cassell] Judge Wilson Denies the Justice Department's Motion to Dismiss a Police Excessive Force Conviction

[Judge Wilson from the Central District of California rejects the Department's breathtakingly sweeping position that "what the Government says is the public interest in this courtroom."]

Last week I blogged about the Justice Department's effort to vacate a police officer's conviction for using excessive force. On behalf of the victim, co-counsel Caree Harper and I objected. And earlier today, the judge agreed with our arguments and denied the motion to dismiss. The found the proposed dismissal would be "contrary to the public interest" because it was designed to interfere with judicial sentencing authority. The ruling is an important step in protecting judicial review of the appropriateness of dismissals proposed by federal prosecutors.

I've previously described the facts of the case, involving a take-down by police of J.H. When she began recording the officer on her phone, he responded by slamming her to the ground and pepper spraying her. You can see for yourself: the relevant events were captured on video. The Justice Department filed a civil rights charge against the officer and, following a jury trial in February, he was convicted. But then the Department moved to reduce the charge down to a misdemeanor and asked the judge (Stephen Wilson, a Reagan appointee) for a sentence of probation. The judge reduced the charge to a misdemeanor, but rejected the Government's proposed probationary sentence as too lenient. The judge instead imposed a sentence of four-months in prison, in light of the officer's clear betrayal of the public trust. The Department then moved to dismiss the entire case, under Fed. R. Crim. P. 48(a). (I have discussed the history of Rule 48(a) at greater length in an earlier post in connection with the Eric Adams case.)

On behalf of the victim, Ms. Harper and I objected to the dismissal motion, urging the judge to reject it. Our argument was the Government was trying to control sentencing:

The Government's purported reasons for the dismissal are after-the-fact, pretextual, and unpersuasive. At bottom, the Government relies only on the fact that it is not inclined to defend the conviction on appeal. But it would be clearly contrary to the manifest public interest for the Court to dismiss this case on such flimsy grounds. Indeed, it appears that the Government's true basis for the dismissal motion is that it objects to the Court's prison sentence. The Court should not allow the Government to subvert a duly imposed sentence for a serious crime.

Today, Judge Wilson agreed with our position, denying the motion to dismiss. The judge concluded that "the record reflects that the Government's newest Rule 48(a) motion is  motivated not by the discovery of new evidence or reconsideration of the case, but by disagreement with the Court's decision to sentence Defendant to four months in prison." The judge also noted that nothing had changed since the Government filed its earlier motion in the case asking for a sentence of probation—except that the court had sentenced the officer to a prison term.

Against this backdrop, Judge Wilson held that the Department's dismissal motion was contrary to the public's interest in protecting judicial sentencing authority:

The motion is a direct attempt to override the Court's decision to sentence Defendant to four months in prison. Indeed, after the Court rejected its request for probation and imposed a custodial sentence, the Government responded by seeking to dismiss all  charges—ensuring Defendant serves no time at all. Put simply, the Government disagrees  with the Court's sentencing decision and is using Rule 48(a) to erase it. It has even  acknowledged that this is its reason for seeking dismissal.

Judge Wilson also rejected the Department's claim that it was entitled to determine by itself whether the court's sentence was fair:

The Government seems to argue that, regardless of its motives, its prosecutorial discretion  alone is enough to justify granting a Rule 48(a) motion under any  circumstances, especially if the Defendant consents. When pressed to reconcile that view with the appellate courts' requirement that Rule 48(a) dismissals not be contrary to the "public interest," the Government argued that the public interest is "what the government says is the public interest in this courtroom." The Government is wrong—at this stage, it does not have unbounded discretion to dismiss cases. The history of Rule 48(a) makes that clear (emphasis added).

Judge Wilson concluded that denial of the motion to dismiss was required to protect separation of powers principles:

In sum, even considering the significant discretion afforded to prosecutors to decide  whether to bring or maintain a case, the Court may deny a Rule 48(a) motion when  dismissal is clearly contrary to the public interest. This is such a case. The record shows  that the Government filed this motion to overturn the Court's four-month prison sentence for Defendant. A post-sentence Rule 48(a) motion aimed at undermining the Judiciary's sentencing authority violates separation of powers principles, and, for that reason, is contrary to the public interest.

This case now moves to the Ninth Circuit, to which the defendant has already appealed. And I have already filed a motion there, asking for Ms. Harper and me to be appointed to defend the judgment below—i.e., to defend the conviction and four-month prison sentence in Judge Wilson's judgment. Such an appointment seems to be the standard practice of courts in considering appeals where the parties are no longer adversarial.

More broadly, Judge Wilson's ruling makes clear that courts possess authority to reject Rule 48(a) dismissal motions from federal prosecutors based on considerations of the public interest. And, contra to the Government's sweeping claim, the "public interest" does not automatically equate with the Government's interest. Judge Wilson's ruling could be persuasive to other judges who are considering similar questions about dismissal motions in other cases, such as my U.S. v. Boeing case where the Department has also filed a dubious motion to dismiss.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] The University Presidents Who Want to Fix Universities Before They Get Fixed

[University Presidents are divided on how to respond to pressure from the Trump Administration. Are their concerns too little, too late?]

For well over a decade I have been of the view that universities need to fix themselves, or they will get fixed--and that getting fixed is likely to be more destructive than restorative. Until recently, I held this view with regard to public universities in red and purple states, but I probably underestimated the extent to which universities had alienated large portions of the public and undermined their own reservoirs of political support--and did not anticipate the focus with which some Trump Administration officials would target universities. To be sure, the Supreme Court's SFFA decision, which effectively declared the de facto admissions policies at most elite universities to be illegal, and the wave of campus anti-Semitism only made universities more vulnerable.

The Atlantic has an interesting article on the growing divide among some university presidents about how to respond to the Trump Administration and current political pressures. On one side are folks like Princeton's Chris Eisgruber, who seem to think there is nothing wrong and that universities can and should ride out the storm. (Those we might call the ostriches of academia.) On the other are those like Daniel Diermeier of Vanderbilt and Andrew Martin of Washington University, who recognize that universities need to reform themselves. The latter camp accept the charge made by folks like Michael Clune that universities have brought much of their current trouble upon themselves.

This is how the article describes the "reformers":

The Reformists believed that higher education had a problem even before Trump was reelected. They watched as conservative speakers were shouted down or disinvited from campuses. They saw professional organizations publicly commit themselves to positions that sounded more like activism than scholarship. (The academics who make up the American Anthropological Association, to cite one example, announced in 2020 that their "research, scholarship, and practice" should be placed "in service of dismantling institutions of colonization and helping to redress histories of oppression and exploitation.") After the Hamas invasion of southern Israel on October 7, 2023, the reformists watched as anti-Israel protesters on other campuses occupied buildings, erected encampments, and, in some cases, engaged in overt anti-Semitism. "You can't look at what happened on many university campuses last academic year and conclude that everything is just fine," Martin told me.

Early last year, Martin and Diermeier began working on a Statement of Principles for higher education. "If research universities are to pursue the truth wherever it lies, they cannot have a political ideology or pursue a particular vision of social change," they wrote. Their university boards adopted the principles as official policy in the fall of 2024, before the presidential election. "Our view was, we have to proactively work on the reform of education, which meant most importantly to be firmly committed to knowledge creation and transmission," Diermeier, who previously served as provost of the University of Chicago, told me.

Note that Martin and Diermeier (like Clune) expressed this view before the Trump Administration took office -- but that the Trump Administration's efforts make reform even more urgent.

The reformers think the resistance presidents are delusional for believing that their problems will go away when Trump does. They see the president's attacks as symptomatic of a larger issue. Polling shows that confidence in American higher education has cratered in recent years, especially among Republicans. "The fundamental fact here is that we have never been in worse shape in my lifetime," Diermeier told me. The reformer presidents, who tend to be in red or purple states, think the resistance leaders are trapped in liberal echo chambers. "It's clear that the bipartisan support has eroded," Martin told me. "It's really misguided to think that what's happening in higher education is a blip and that we're going to return to where we were before."

He and his allies believe that universities should have started cleaning up their act years ago. Now they're playing catch-up, and can't expect to stop just because Trump will someday leave office. . . .

The post The University Presidents Who Want to Fix Universities Before They Get Fixed appeared first on Reason.com.