Eugene Volokh's Blog, page 64

[Josh Blackman] SCOTUS Puts Skrmetti SDP Case Out Of Its Misery

[The ACLU's cert petition is denied, and several other petitions are GVR'd.]

Last week I speculated what would happen to the ACLU's cert petition in Skrmetti that raised the Due Process issue. I wondered if the Court would GVR the parental rights issue in light of Mahmoud.

Today's order list denied review in L.W. v. Skrmetti. There were no recorded dissents. It seems the Due Process claim is now dead. The Tennessee law, and others like it, will now go into effect.

Indeed, the Court GVR'd several related cases. First, West Virginia excluded treatment for gender dysphoria from Medicaid. The Fourth Circuit held this exclusion violated the Equal Protection Clause. Second, North Carolina excluded treatment for gender dysphoria from the state employee health plan. The Fourth Circuit likewise ruled against the state. Third, Idaho denied Medicaid coverage for sex-reassignment surgery. After Skrmetti was argued, the Ninth Circuit found this exclusion was unlawful.

These issues will bubble back to the Court in a year or so. Let's see if the Fourth Circuit can see the writing on the wall. Speaking of which, guess which Circuit was the "Biggest Loser" at the Court this term? No, it was not my beloved Fifth Circuit.

David Lat explains (based on Adam Feldman's Stat Pack):

Some circuits got reversed a lot. Subjectively and anecdotally, it felt to me that the Fifth Circuit took it on the chin this Term in terms of reversals. But if you look at reversals in percentage terms, the First, Fourth, Ninth, and Tenth Circuits were the most reversed, all with a 100 percent reversal rate—based on two, eight, four, and five cases decided by SCOTUS, respectively. So with a 0-8 record before the justices, the Fourth Circuit was the "biggest loser," in terms of the court with the highest reversal rate and the highest total number of cases. (The Ninth Circuit had three cases that were dismissed as improvidently granted.)

The Fifth Circuit didn't do that badly. The Fifth Circuit had the most total cases reversed (10), and some were high-profile—such as Bondi v. VanDerStock (a statutory-interpretation case about "ghost guns"), Kennedy v. Braidwood Management (an Appointments Clause challenge to an Affordable Care Act-created task force), and FCC v. Consumers Research (a nondelegation challenge to the FCC's "universal service" scheme). But the Fifth Circuit wound up with a 77 percent overall reversal rate, since it was also affirmed in three appeals—including the closely followed Free Speech Coalition, Inc. v. Paxton (a First Amendment challenge to an age restriction for pornography websites).

I think the reversal rate should include GVRs as well.

Stay tuned for more.

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[Josh Blackman] So What'd I Miss?

I apologize for my blog silence the past five days. I have just finished work on a major book deadline (much more about that soon), so was unable to opine on the Court's final decisions. I have some thoughts. So stay tuned.

The post So What'd I Miss? appeared first on Reason.com.

[Eugene Volokh] The Supreme Court, Martians, Justice Jackson, and Chief Justice Roberts

Justice Jackson's dissent in the universal injunction case (CASA, Inc. v. Trump) includes this line:

A Martian arriving here from another planet would see these circumstances and surely wonder: "what good is the Constitution, then?" What, really, is this system for protecting people's rights if it amounts to this—placing the onus on the victims to invoke the law's protection, and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to prevent the Government from violating it? "Those things Americans call constitutional rights seem hardly worth the paper they are written on!"

Some people have suggested there's something strange or inappropriate about bringing Martians into it, but it seems a pretty familiar locution. Here, for instance, is Chief Justice Roberts from Riley v. California (2014), which labels it familiar enough to be "proverbial":

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

Justice Thomas used a similar phrase in Foster v. Chatman (2016) and Justice O'Connor in Engle v. Isaac (1982), both quoting Judge Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 145 (1970):

The proverbial man from Mars would surely think we must consider our system of criminal justice terribly bad if we are willing to tolerate such efforts at undoing judgments of conviction.

The "proverbial man from Mars" refers to someone who looks at things afresh, without focusing on the social conventions or legal frameworks that (the speaker suggests) might blind us to what's actually going on. You can agree or disagree with Justice Jackson's substantive argument about universal injunctions, but judges and Justices have been using the Martian thought experiment for generations.

(The pedant in me does agree, though, that "Martian arriving here from another planet" is redundant, in a way that "proverbial visitor from Mars" is not. But that really is pedantry.)

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[Eugene Volokh] No Qualified Immunity for School District Police Officer Who Seized Home-Schooled 14-Year-Old from Home

[The child, and her 12-year-old brother, were left under the supervision of a neighbor by the mother, who left town for six days for a foreign job interview.]

From McMurry v. Weaver, decided Friday by the Fifth Circuit (Judge Carolyn Dineen King, joined by Judge Jim Ho and Irma Carrillo Ramirez):

In October 2018, Plaintiff-Appellee Megan McMurry resided in a gated apartment complex in Midland, Texas with her daughter, Plaintiff-Appellee J.M., (then age fourteen) and son C.M. (then age twelve). J.M. took classes virtually from home, C.M. attended Abell Junior High School (Abell), part of the Midland Independent School District (MISD), and Ms. McMurry taught at Abell. Ms. McMurry's husband and the children's father, Plaintiff-Appellee Seth Adam McMurry, was deployed to the Middle East with the National Guard. To explore a job opportunity that would allow the family to move closer to Mr. McMurry, Ms. McMurry planned a trip to Kuwait from Thursday, October 25 to Tuesday, October 30.

Before leaving, Ms. McMurry arranged for a neighbor, Vanessa Vallejos, to check in on J.M. and C.M., and for coworkers to take C.M. to school. J.M. often babysat Ms. Vallejos's son, and Ms. McMurry had arranged for Ms. Vallejos to watch J.M. and C.M. while she was out of town in the past.

On the morning of October 26, 2018, Defendant-Appellant Alexandra Weaver, a police officer with MISD, received a text from a counselor who was supposed to take C.M. to school that day. Weaver already knew that Ms. McMurry was out of the country because Ms. McMurry had emailed all Abell campus employees including Weaver a few days earlier. Upon receiving the text, she became concerned that J.M. and C.M. were without adult supervision, and informed her supervisor, Officer Kevin Brunner, of her concerns.

Weaver and Brunner then proceeded to meet with three of Ms. McMurry's coworkers and learned that (1) Ms. McMurry was traveling for a job interview; (2) C.M. was at school; (3) a neighbor, whose son J.M. often babysat, was checking on the children daily; and (4) J.M. was homeschooled. Weaver and Brunner then went to the McMurrys' apartment to conduct a welfare check on J.M.

Weaver and Brunner arrived at the apartment at around 10 a.m. that morning. J.M. answered the door and confirmed that her mother was overseas, and a neighbor was checking on her and C.M. J.M. also told the officers that the neighbor had last checked on her that morning and offered to share the neighbor's phone number for the officers to call. Brunner then instructed J.M. to "go get some warm clothes on … then come visit with me outside." Brunner asked if Weaver could accompany her into the apartment while she did so. J.M. responded "Mm-hmm," then burst into tears and said "I'm scared."

Inside the apartment, Weaver told J.M. not to contact her mother. While J.M. changed clothes in her room, Weaver "looked around the living room and kitchen, peeking into the pantry and opening the refrigerator and freezer doors." The pantry was "stocked with food." "Weaver's body camera footage reveals no signs of a dangerous or abusive environment or any other exigent circumstances." Nor does the footage reveal anything "that sounds or looks like" J.M. giving Weaver consent to search the apartment. The interaction lasted about five minutes.

Weaver and Brunner then questioned J.M. in the apartment complex's conference room. "J.M. asked to call her father but was not allowed to do so." After about fifteen minutes, Weaver and Brunner drove to Abell, with J.M. in the backseat of their police car. Brunner instructed J.M. not to respond to her father's attempts to contact her and "recommended" she not contact Ms. Vallejos. Brunner also called CPS to tell them he was taking the children to Abell around this time.

At the school, Brunner placed J.M. in a private office. When Ms. Vallejos and her husband arrived, they told Brunner they were checking on C.M. and J.M. and had last seen the children the night before. Ms. Vallejos was then permitted to see J.M. and the two FaceTimed Mr. McMurry. By that afternoon, CPS had concluded that the situation did not meet the criteria for abuse and neglect and sent the children home with Ms. Vallejos and her husband.

Afterward, Brunner continued criminally investigating Ms. McMurry, and ultimately filed two probable cause affidavits to arrest and charge Ms. McMurry with abandoning or endangering her children. In January 2020, a jury acquitted Ms. McMurry of all charges.

The McMurrys and J.M. sued Weaver, and the court allowed the case to go forward, holding that Weaver wasn't entitled to qualified immunity:

Weaver first challenges the district court's denial of qualified immunity on the Fourth Amendment unreasonable search claim…. Here, the parties do not dispute that Weaver searched the refrigerator without a court order or consent. {The district court found that J.M. consented to Weaver entering the apartment and dismissed the unreasonable search claim to the extent it relied on Weaver's entry. That ruling is not challenged on appeal.} To comply with the Fourth Amendment, the search must be justified by exigent circumstances. But Weaver does not argue that there were exigent circumstances, and the district court found that there were none. Instead, Weaver relies on a "special needs" or "community caretaking" exception to the warrant requirement. Neither applies here.

A warrant may not be required where there is a "special need" that is "divorced from the State's general interest in law enforcement," such as a principal's search of a student's purse for drugs in school. Similarly, different standards may apply when the police perform "community caretaking functions" that are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Child welfare investigations are not sufficiently divorced from general law enforcement, or the violation of a criminal statute, to support the application of either exception….

To the extent Weaver intended to argue the search was justified by exigent circumstances, the summary judgment evidence does not establish that J.M. faced any "immediate danger." Moreover, it is difficult to see how viewing a refrigerator's contents could guard against any immediate danger, especially given Weaver could see food in the pantry….

Weaver next challenges the district court's denial of qualified immunity on J.M.'s Fourth Amendment unreasonable seizure claim. "[T]he Fourth Amendment … applies to the seizure of children from their homes." The same standard governs: "[T]he government may not seize a child from his or her parents absent a court order, parental consent, or exigent circumstances." "Exigent circumstances in this context means that, based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger … if [s]he remains in h[er] home." … Again, Weaver does not argue there were exigent circumstances, and a jury could find that Weaver did not have reasonable cause to believe that fourteen-year-old J.M. faced any "immediate danger" at home alone in a gated apartment complex in the middle of the day.

The Due Process Clause of the Fourteenth Amendment "does not just provide parents with substantive protection from interference with their liberty interest in the care, custody, and management of their children." "It also requires that the state follow certain procedures before encroaching on those parental rights." A parent's procedural due process claim premised on the seizure of her child is governed by the same standard that governs the child's underlying Fourth Amendment claim for unreasonable seizure. "The rule is this: A child cannot be removed 'without a court order or exigent circumstances.'" … [T]he McMurrys have established a constitutional violation sufficient to survive summary judgment for the same reasons [as for the Fourth Amendment unreasonable seizure claim]: J.M. was seized without a court order or exigent circumstances.

Judge Ho concurred, adding this:

During oral argument, defense counsel put forth a remarkable legal theory that should alarm anyone who believes in the privacy of the home—as well as the basic right of every parent to raise their own children:

There's … another area where the law isn't clearly established. And that is: Was she taken from an apartment or was she taken from her school?

The reason I say that is because she was attending virtual school at the time … she was in class, so to speak, doing her work on her computer.

There's no case law whatsoever that establishes that an apartment stays an apartment when you're going to school. We have a whole new area of law that's going to emerge because we have homeschooling…. We don't have any cases whatsoever….

There was no clearly established law to violate….Because it's not clear that a home is a home… when it's being used at the time for virtual school.

This is obviously wrong as a matter of rudimentary constitutional principle. The Fourth Amendment expressly assures every one of us—including families who homeschool—that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." … To justify intrusions on this bedrock liberty based on the educational choices parents make for their children does not evade the constitutional objection—it exacerbates it….

So I'm grateful that the majority denies qualified immunity—and does so by summarily dismissing counsel's defense theory. After all, it's precisely because counsel's theory is so obviously wrong that the McMurrys shouldn't have to identify specific governing precedent to avoid qualified immunity. The Supreme Court has repeatedly denied qualified immunity where it found the constitutional violation so "obvious" that it didn't require the plaintiff to identify factually indistinguishable case law….

Judge Ho goes on to criticize some of the Fifth Circuit's qualified immunity precedents, and argues for a narrower version of qualified immunity more broadly; more on that here.

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[Eugene Volokh] Parental Rights and Youth Gender Medicine

[The Supreme Court just declined this morning to consider this issue, but here's how a noted lower court judge analyzed the matter.]

Some people have asked: Why aren't state statutes limiting youth gender medicine treatments violations of parental rights (given that they apply even when the parents ask for the treatment for their children)? The answer, I think, is that the Court hasn't generally recognized a constitutional right to get forbidden medical procedures for oneself, much less a right to get them for one's children. I think Sixth Circuit Judge Jeffrey Sutton correctly summarized the legal rules in L.W. v. Skrmetti (which the Supreme Court just declined to review):

There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe.

Washington v. Glucksberg puts a face on these points…. The Court reasoned that there was no "deeply rooted" tradition of permitting individuals or their doctors to override contrary state medical laws. The right to refuse medical treatment in some settings, it reasoned, cannot be "transmuted" into a right to obtain treatment, even if both involved "personal and profound" decisions….

Abigail Alliance hews to this path. The claimant was a public interest group that maintained that terminally ill patients had a constitutional right to use experimental drugs that the FDA had not yet deemed safe and effective. As these "terminally ill patients and their supporters" saw it, the Constitution gave them the right to use experimental drugs in the face of a grim health prognosis. How, they claimed, could the FDA override the liberty of a patient and doctor to make the cost-benefit analysis of using a drug for themselves given the stark odds of survival the patient already faced? In a thoughtful en banc decision, the D.C. Circuit rejected the claim. The decision invoked our country's long history of regulating drugs and medical treatments, concluding that substantive due process has no role to play….

As in these cases, so in this one, indeed more so in this one. "The state's authority over children's activities is broader than over like actions of adults." A parent's right to make decisions for a child does not sweep more broadly than an adult's right to make decisions for herself….

Parental rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children. Plaintiffs counter that, as parents, they have a substantive due process right "to make decisions concerning the care, custody, and control of their children." At one level of generality, they are right. Parents usually do know what's best for their children and in most matters (where to live, how to live, what to eat, how to learn, when to be exposed to mature subject matter) their decisions govern until the child reaches 18. But becoming a parent does not create a right to reject democratically enacted laws. The key problem is that the claimants overstate the parental right by climbing up the ladder of generality to a perch—in which parents control all drug and other medical treatments for their children—that the case law and our traditions simply do not support. Level of generality is everything in constitutional law, which is why the Court requires "a 'careful description' of the asserted fundamental liberty interest."

So described, no such tradition exists. The government has the power to reasonably limit the use of drugs, as just shown. If that's true for adults, it's assuredly true for their children, as also just shown. This country does not have a custom of permitting parents to obtain banned medical treatments for their children and to override contrary legislative policy judgments in the process. Any other approach would not work. If parents could veto legislative and regulatory policies about drugs and surgeries permitted for children, every such regulation—there must be thousands—would come with a springing easement: It would be good law until one parent in the country opposed it. At that point, either the parent would take charge of the regulation or the courts would. And all of this in an arena—the care of our children—where sound medical policies are indispensable and most in need of responsiveness to the democratic process.

I have argued that there should be a constitutional right to choose certain medical treatments for oneself in narrow circumstances (basically when the person is terminally ill, and seeks a possibly life-saving though unproven treatment). But even if I'm right, that would be quite a narrow right; and in any event, the Abigail Alliance en banc opinion, described in the excerpt above, rejected even that narrow argument.

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[Eugene Volokh] Liability for Suicide When Student Is Upset by Misconduct Investigation, and Resulting "Community Pressure"

In a decision June 20 in Bruno v. Mills, R.I. Superior Court Judge Richard Licht affirmed a verdict in favor of plaintiff, whose 15-year-old son Nathan committed suicide as a result of an investigation at school. The investigation started with the son's prank calls to a teacher (Mr. Moniz) and then led into an attempt to pressure the son into disclosing the names of two accomplices. The opinion is over 26,000 words long, so here's just a very short excerpt. I'm particularly interested in what this means more generally for investigations, whether at high schools, in college, or even in law schools—for instance, investigations into alleged sexual misconduct, racist comments, plagiarism, other cheating, and more:

[W]hether sufficient evidence was presented that Mr. Moniz breached a standard of care as to Nathan in large part depends on the substance of Dr. Leonard's testimony…. Dr. Leonard adequately explained the duties and conduct expected of school personnel and addressed how Mr. Moniz's specific conduct constituted a breach thereof.

To start, Dr. Leonard explained that when a student is subject to a criminal investigation involving a school educator, the standard of care owed by school personnel includes informing the student's at-school support system and parents of all developments and limiting discussion among other students to prevent interference with the police investigation. Even though Mr. Moniz was neither Nathan's coach nor his gym teacher, Dr. Leonard still found Mr. Moniz to have breached a standard of care as to Nathan because, despite handing off the prank texts/calls situation to the Jamestown Police, Mr. Moniz continued to pursue his own investigation into Nathan.

To start, Dr. Leonard found that Mr. Moniz ran afoul of his duty to keep the criminal investigation away from the student body by meeting with the football team on February 6, 2018 in which he dangled his resignation as football coach over the players' heads unless Nathan's two coconspirators were identified. Dr. Leonard also found that Mr. Moniz ran afoul of his duty as a member of the school's staff to apprise Plaintiff of various developments involving his child, including his request that Nathan be switched from his gym class for the next trimester, and his ongoing discussions with Mr. Amaral about meeting with Nathan on February 6, 2018 to elicit further information on who else was involved.

Although Mr. Moniz did not directly interact with Nathan in engaging in this conduct, Dr. Leonard noted that Mr. Moniz knew as an educator the importance of peer support but nonetheless engaged in conduct that stripped Nathan of his support system and made him feel cornered and alone. Moreover, Mr. Moniz's actions in threatening to quit absent the other involved players coming forward inappropriately subjected Nathan to a great deal of community pressure as shown by several football players feeling the need to visit him at his home on the afternoon of February 6, 2018 to communicate what Mr. Moniz had threatened at the meeting earlier that day.

Again, while not communicated directly to Nathan, Dr. Leonard found Mr. Moniz's tactic of putting Nathan "on the clock" to be highly inappropriate in that it left Nathan feeling that resolve was not possible absent him turning on those close to him. ["On the clock" appears to refer to this: "Plaintiff argues that Mr. Moniz breached his duty to Nathan as an educator by 'putting him on the clock' through a series of conduct aimed at manipulating Nathan, either directly or through those around him, to divulge the names of the other two football players involved in the prank texts/calls situation."] …

Given the facts Dr. Leonard relied upon and her evaluation of these facts through the scope of her expertise, there was ample evidence upon which the jury could find that Mr. Moniz did indeed owe a duty to Nathan and that such a duty was breached by way of Mr. Moniz's handling of the prank texts/calls situation….

Even with adult students, an investigation can be extremely traumatic, raising the prospect of "community pressure," family shame, and professional ruin. Some of the investigations will inevitably involve other students learning of the matter during the investigation, but even when that doesn't happen, the target may feel extremely upset, especially if the target had some emotional difficulties at the outset. And I take it that different experts will have different views of what the standard of care is for such investigations. I'm curious what educational institutions, again whether schools, universities, or law schools, can feel legally safe doing in such situations.

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[David Bernstein] The Supreme Court, Education, and the KKK in the 1920s

My new article, The Supreme Court, Education, and the KKK in the 1920s, is about to be published in Western Legal History. The abstract is below, you can download the article here.

Meyer v. Nebraska and Pierce v. Society of Sisters present historians with a puzzle. The Court had refused previous opportunities to initiate a due process jurisprudence that expanded beyond freedom of contract and property rights. Why did the Court suddenly adopt a more aggressive understanding of the Due Process Clause in Meyer and Pierce?

As has been discussed elsewhere, there are several plausible and non-exclusive explanations. This article focuses on the Justices' hostility to the Ku Klux Klan. The Klan had been a leading force behind laws regulating or banning private education, and the Court's decisions in Meyer and Pierce likely in part reflected a pushback against the Klan's agenda.

Part I of this Article discusses the Klan's resurgence in the early 1920s and its role in sponsoring legislation targeting private schools. This included the Oregon compulsory public education law invalidated by the Court in Pierce.

Part II discusses the Court's hostility to the Klan. This section discusses a significant anti-Klan ruling that has received little scholarly attention, the 1928 case of Bryant v. Zimmerman. In Zimmerman, the Court upheld a New York law requiring certain membership organizations, including the Ku Klux Klan, to register their membership lists with the state. The Court held that this requirement did not violate constitutional rights, particularly freedom of association or due process. Importantly, the Court's holding was not based on a rejection of the notion that the Fourteenth Amendment protects the freedoms of private membership organizations. Rather, the Court focused on the malevolent nature of the Klan.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Eugene Volokh] "The Clear Winner in Trump v. CASA: The Supreme Court"

["Lower courts lost, and the executive branch got mixed results."]

Jack Goldsmith (Executive Functions) is always worth reading, and his article today on the universal injunctions especially so; an excerpt:

Supreme Court "Supremacy" Vis-a-Vis the Executive Branch

Charlie Savage maintained that Trump v. CASA "diminish[ed] judicial authority as a potential counterweight to exercises of presidential power." Ruth Marcus made a similar claim in a piece entitled "The Supreme Court Sides With Trump Against the Judiciary."

These propositions are true only of the lower federal courts. Trump v. CASA did not diminish the Supreme Court's authority vis-a-vis the presidency. The Court held at least that lower courts lacked authority to issue universal injunctions. The Court was ambiguous about whether it could issue universal relief via injunctions. But it made clear in ways that it never has before that it expects executive branch compliance with its opinions and judgments on a universal basis.

Begin with the last sentence of the opinion. At oral argument, Sauer "concede[d] that the 30-day ramp-up period that the executive order itself calls for never started" and that "there should be a 30-day ramp-up period" for the administration to provide guidance. The Court in the last sentence stated: "Consistent with the Solicitor General's representation, §2 of the Executive Order"—which implements the birthright citizenship ban—"shall not take effect until 30 days after the date of this opinion." That sure sounds like a universal injunction! The Court never explains how Sauer's concession got translated into a judicial command, presumably under the All Writs Act. The command is especially unusual since it is directed at a presidential order.

If this were a lower-court injunction and it were closer to January 20, the Trump administration might skirt the injunction by replacing (or amending) the executive order to allow a shorter ramp-up period. Or it might argue that the injunction applied only to the parties to the interim order application. But Sauer's reputation and the Trump administration's credibility before the Court are on the line. I expect the Trump administration to comply with this 30-day universal injunction. And if it doesn't I expect a quick intervention by the Court.

But there was a much greater concession by Sauer at oral argument with much greater significance for relations between the Court and the executive branch. As I explained last month, Sauer pledged to five different Justices that the government would, as Sauer put it to Justice Barrett, "respect the opinions and the judgments of the Supreme Court." When she asked whether he was "hedging at all with respect to the precedent of this Court," Sauer said he was not. Sauer similarly told Justice Kagan that a Supreme Court decision on a matter "would be a nationwide precedent that the government would respect." And he made analogous statements to other Justices….

Read the rest J">here.

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[Jonathan H. Adler] Federal Courts May Not Be Denny's, But They Are Open 24/7/365

[Justice Kavanaugh's Trump v. CASA concurrence appears to reply to Judge Ho.]

On remand in A.A.R.P. v. Trump, Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit suggested it was unreasonable to expect federal district courts to be open and available to respond to emergency pleadings at all hours of the night. He wrote:

We seem to have forgotten that this is a district court—not a Denny's. This is the first time I've ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion. If this is going to become the norm, then we should say so: District judges are hereby expected to be available 24 hours a day—and the Judicial Conference of the United States and the Administrative Office of the U.S. Courts should secure from Congress the resources and staffing necessary to ensure 24-hour operations in every district court across the country.

Whether or not the Judicial Conference and Administrative Office have provided the relevant resources, federal law already requires the federal courts to be open for business around the clock. Justice Kavanaugh makes this point in his Trump v. CASA concurrence, in which he writes:

Some might object that this Court is not well equipped to make those significant decisions—namely, decisions about the interim status of a major new federal statute or executive action—on an expedited basis. But district courts and courts of appeals are likewise not perfectly equipped to make expedited preliminary judgments on important matters of this kind. Yet they have to do so, and so do we. By law, federal courts are open and can receive and review applications for relief 24/7/365. See 28 U. S. C. §452 ("All courts of the United States shall be deemed always open for the purpose of filing proper papers . . . and making motions and orders").

As it happens, judges (and justices) are often expected to be available throughout the night, such as when there is a pending execution and last-minute stay requests or other filings can be expected. Granting of such requests can also prompt middle-of-the-night responses (as occurred here). If such proceedings are expected in the context of capital sentences, it is not altogether clear why they should not be expected where the government is preparing to permanently remove someone from the United States and send them to a foreign prison, particularly if there are reasons to believe the government is racing to act before courts can intervene. Regardless, whether we should expect late-night proceedings in the context of deportation, federal law deems federal courts are "always open," even if most filings do not need to be considered on anything remotely approaching an expedited basis.

So while a district court may not be a Denny's, it is formally open to hear business 24/7/365.

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