Eugene Volokh's Blog, page 70

[David Kopel] Negating Democratic Consent

[How the Colorado Supreme Court has nullified Colorado constitutional limits on taxes, debt, and corporate privilege.]

Colorado's 1876 Constitution is replete with provisions to prohibit corporate welfare, special privileges for government-favored big business, and government debt without voter consent. The protections have been fortified and extended by constitutional amendment, most notably in the 1992 Taxpayer's Bill of Rights. Yet for the past century, the Colorado Supreme Court, usually in cooperation with the other two branches, has nullified the taxpayer protections of the Colorado Constitution. This sad story is told in my new article for the Denver University Law Review's annual Tenth Circuit Symposium, Negating Democratic Consent: How the Colorado Supreme Court has Nullified Colorado Constitutional Limits on Taxes, Debt, and Corporate Privilege, 102 Denver Univ. Law Review 449 (2025). (The symposium includes states law articles on 10th Circuit states.)

For example, Colorado Constitution article XI, section 1, forbids government debt on behalf of corporations in the most comprehensive language possible:

Neither the state, nor any county, city, town, township or school district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to, or in aid of, any person, company or corporation, public or private, for any amount, or for any purpose whatever; or become responsible for any debt, contract or liability of any person, company or corporation, public or private, in or out of the state.

The next section of the Constitution, article XI, section 2, also uses the broadest language possible to outlaw government aid to corporations:

Neither the state, nor any county, city, town, township, or school district shall make any donation or grant to, or in aid of, or become a subscriber to, or shareholder in any corporation or company or a joint owner with any person, company, or corporation, public or private, in or out of the state . . .

The statutory text contains certain narrow exceptions. For example, a government might acquire ownership of a corporation by forfeiture or escheat. By constitutional amendment, the people have created other exceptions, allowing for a government student loan programs and for government investment in energy industries.

The Colorado Supreme Court, however, has usurped for itself the power of constitutional amendment. Today, the Court does not enforce the text of the anti-corporate welfare sections of the Colorado Constitution, with their blanket language such as "directly or indirectly, in any manner to, or in aid of." Instead, according to the court, all corporate welfare is permissible whenever the legislature rationally believes that the welfare might have some beneficial effects. The plain text of the Colorado Constitution has in effect been replaced by the court's lawless imposition of a rational basis test that legalizes precisely what the Colorado Constitution was enacted to forbid.

A similar tale of judicial nullification can be told about the other Colorado Constitution prohibitions against special privileges:

article V, section 25 (no special legislation),article II, section 11 (no laws granting special irrevocable privileges)article II, section 28 (no extra compensation to officers, employees, or contractors),article II, section 34 (no appropriations to private institutions).

The same is true for all of article XI's limitations on government debt:

sections 3 (public debt of the state),section 4 (debt may be no longer than 15 years),section 5 (vote on debt for public buildings), andsection 6 (local government debt limits).

Likewise, the Colorado Supreme Court has ranged far and wide in nullifying the 1992 Taxpayer's Bill of Rights (TABOR), article X, section 20:

TABOR's text provides its own standard of review: the "preferred interpretation shall reasonably restrain most the growth of government."But the Colorado Supreme Court has replaced the constitutional text with its own test, requiring that a violation of TABOR be proven beyond a reasonable doubt -- a standard that means the government always wins.While TABOR applies to taxes (such as sales taxes) but not to "fees" (such as towel rental at a recreation center), the Colorado Supreme Court has ruled that the government can call a sales tax or any other tax a "fee" and thereby dispense with the need for voter approval.TABOR applies to all government units, except for "enterprises"; enterprises support themselves by selling services, rather than being dependent on tax revenue. For example, if a municipal recreation center does not need taxpayer support because it earns enough to support itself by charging fees to persons who exercise at the recreation center, the center can set its own prices. The Colorado Supreme Court, however, has allowed the "enterprise" exemption to be applied to fictitious entities that receive all of their income from Colorado tax revenue, with no connection between the persons who are taxed to support the "enterprise" and the benefits provided by the enterprise.According to TABOR, tax policy changes that increase net government revenue require voter approval. So does repeal of any of the pre-TABOR prior limits on taxes and spending. Yet the courts have nullified both of these protections by inventing a rule that they do not apply as long as the tax and spending increases do not cause the government to exceed TABOR's revenue caps.TABOR's main means of enforcement is citizen lawsuits, but these are hampered by the supreme court's interpretation that attorney fees for victorious plaintiffs are optional, not mandatory.While TABOR provides that local governments have the authority to opt out of some state government mandates, the supreme court has held that counties may never opt out.Finally, TABOR authorizes voters to allow four-year waivers on tax and spending limits. The courts, though have held that waivers are permanent, even when they were expressly presented to the voters as temporary.In fact, ballot measures that expressly promised no increase in mill levies for property taxes have been implausibly construed as voter permission for increases in mill levies, resulting in the largest property tax increase in state history being imposed without a vote of the people.

Here is the abstract of the article:

The Constitution of the State of Colorado strictly limits the Colorado government's power to impose taxes and incur debt, including by requiring voter approval of higher taxes and new debt. Government debt must be approved by taxpayers and is subject to a debt cap, with a time limit of fifteen years for construction debt. The Colorado constitution also forbids governments to grant special privileges to businesses. For example, governments may not pledge their credit to benefit corporations, may not otherwise go into business with corporations, may not enact special laws forthe benefit of a particular business, may not give extra uncontracted benefits to state employees or contractors, may not appropriate taxpayer funds to private businesses, and may not grant businesses irrevocable privileges. The Colorado constitution also includes the Taxpayer's Bill of Rights, which requires voter approval tax increases and for spending increases that  exceed the rate of inflation plus population growth. However, every one of these restrictions has been effectively nullified, usually with the blessing of the Colorado Supreme Court. Rather than the fair, equal, and democratic state created by the Colorado constitution, Colorado has been turned into a welfare state for the politically powerful, intentionally operating to ignore the constitutional mechanisms for the consent of the governed.

As enacted by the people, the Colorado Constitution"protected the inarticulate against machinators," in the words of dissenting Justice Hilliard in a 1934 case on government debt. Johnson v. McDonald, 49 P.2d 1017, 1034 (Colo. 1935) (Hilliard, J., dissenting). However, the Colorado Supreme Court in fiscal matters protects the machinators against the people.

The post Negating Democratic Consent appeared first on Reason.com.

[Josh Blackman] Arkes: Is Skrmetti "The Best That Conservative Jurisprudence Can Really Serve Up Now, A Concurring Opinion in Buck v Bell?"

[The conservatives "thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution."]

In Civitas Outlook, I discussed how the Skrmetti majority refused to even acknowledge the right of the people to govern based on morality. Instead, the Court hid behind technical and legal formalisms. Hadley Arkes states the issue far better than I ever could. Here is a snippet:

The truth that dares not speak its name here is that this wide array of gender-affirming therapies and surgeries is simply predicated on a falsehood. And yet those are the words that the conservative justices apparently see themselves as barred from speaking. Something in conservative jurisprudence holds them back from appealing to the inescapable and objective truth that lies at the heart of these cases. But without it, what were these accomplished jurists able to explain here? What was their ground of justification in overriding the judgments of those parents who were absorbed in the grief and confusion that seized their children? . . . .

The only "instruction" that would be relevant, Justice Thomas, is the unyielding fact that the child is in a state of confusion: he is not occupying some body apart from his own; his sex was not "assigned" at birth but marked inescapably in the organs of reproduction, in the arrangement of his body. His sex is immutable and printed plainly upon him.

Those were the words that Chief Justice Roberts and five colleagues could not move themselves to speak. Or they thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution—even on the question of what is a human being, the bearer of rights, and when does that "human person" begin? . . .

Without those points in place, the judgment of the Court simply dissolves into a chain of ipse dixits. Why was it not legitimate for the parents of stricken youngsters to order the procedures that might relieve their "gender dysphoria?" Answer: The legislature of Tennessee did not think it a legitimate medical remedy to choose—even though the children and the parents did not share that judgment and were willing to take their risks. One judgment had to prevail, and it was the judgment backed by the power of the State. To put a high finish on it, that "power" represented the authority of a people to govern itself through elected representatives. But when the people speak through their representatives, and override the judgments of parents about their children, they are still obliged to say something more than "we have brute the power to impose this judgment through brute enactment of the law."

Hadley closes by comparing Chief Justice Roberts's decision to Justice Holmes's majority decision in Buck v. Bell.

Unless the Court can explain the grounds that truly compelled its judgment in this case, conservative jurisprudence falls back, as it ever has, on nothing more, as Justice Holmes had it, than the power of the majority to rule and get its way.

Roberts is fond of citing Holmes's Lochner dissent. I don't think the Chief will appreciate the apt comparison to one of Holmes's other decisions that did not age so well.

We should recall that Holmes's grand opinion quickly drew the accolades of the academy and the educated class, quite as enthralled with the romance of euthanasia, as their latter-day counterparts have been about climate change. And all of the ingredients are now again in place: a "controversial medical" procedure, along with people with medical degrees more than eager to show just how they do it; and the case for it seems compelling enough to be enacted into law by those educated people, often with law degrees, who fill out the legislature. But might we not be forgiven for asking: Is this the best that conservative jurisprudence can really serve up now, a concurring opinion in Buck v Bell?

I think my piece, Arkes's piece, and some other emails I've received, reflect a growing awareness of the current Court's deficiency. Since Justice Scalia's passing, I think the Court has lost its way. The fixation on installing Justices who will overrule Chevron has neglected moral foundation that Justice Scalia brought to the Court. Well, Chevron is gone and Roe is overruled. What's next? I think the answer is letting the people govern themselves once again. I do not think it is necessary for the Justices to themselves judge based on any sense of natural law. Unlike Arkes, I do not consider myself a natural law theorist--though I am JWI-curious. Rather, it is enough for judges to be comfortable letting the people govern based on these principles--even when laws might offend modern sensibilities of individual autonomy. I'll admit my views on this topic have changed over the years. I was always persuaded by Scalia over Kennedy as a legal matter, but I didn't quite fully understand why till I read Skrmetti. Now, with the emptiness of Chief Justice Robert's decision, things seem far clearer.

The Court seems open to that end in the Establishment Clause context, such as in Kennedy v. Bremerton and Carson v. Maikin. But the Court is still living in Justice Kennedy's shadow with regard to the Due Process and Equal Protection Clauses. Current discussions about overruling Obergefell miss the point. If the people wish to maintain same-sex marriage, they can make that choice. But, the Court should allow the people to make that choice. As Scalia wrote in Obergefell, the Court disregarded "the freedom [of the people] to govern themselves."

I'll keep writing on this subject.

The post Arkes: Is Skrmetti "The Best That Conservative Jurisprudence Can Really Serve Up Now, A Concurring Opinion in Buck v Bell?" appeared first on Reason.com.

[Ilya Somin] The 20th Anniversary of Kelo v. City of New London

[On this anniversary, I have posted two new articles related to one of the Supreme Court's most controversial decisions.]

Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name (Institute for Justice). (Institute for Justice.)

 

Today is the 20th anniversary of Kelo v. City of New London, perhaps the most controversial property rights decisions in the history of the Supreme Court. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. Building on earlier decisions such as Berman v. Parker (1954), a closely divided 5-4 majority ruled that virtually any potential benefit to the public qualifies as a "public use." The development project for which the property was taken failed so miserably that, for many years, the condemned land was used only by feral cats.

Feral cat on the site of one of the properties condemned in the Kelo case, 2011 (photo by Jackson Kuhl).

 

In my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, and in other writings, I have argued that Kelo was wrongly decided from the standpoint of prominent versions of both originalism and living constitution theory. On the occasion of the twentieth anniversary, I would like to highlight two new articles I have written about this subject.

The first is an article at the Brennan Center State Court Report website, assessing the massive state reaction against Kelo. Many states enacted stronger protection for property rights, but it is not an fully adequate substitute for systematic nationwide enforcement of the Fifth Amendment Public Use Clause:

Twenty years ago today, the Supreme Court decided the controversial case Kelo v. City of New London, which held that private "economic development" is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." Kelo generated a massive political and judicial backlash, with 45 states enacting eminent domain reform laws in response and several state supreme courts repudiating Kelo as a guide to interpreting their state constitutions.

This reaction highlights potential synergies between litigation and political action, and the valuable role of state constitutions in protecting important individual rights when federal courts fail. But it also shows how uneven state protection of rights is not a fully adequate substitute for rigorous nationwide enforcement of the federal Constitution….

Kelo provoked a broader backlash than virtually any other modern Supreme Court ruling. The public overwhelmingly sympathized with property owners who had their homes taken for a dubious project, rather than with the city government and the private organization that took over the land. Polls showed that over 80 percent of the public disapproved of the ruling. It was widely condemned on both right and left, including by figures as varied as then-Rep. Bernie Sanders (D-VT) on the far left and radio talk show host Rush Limbaugh on the far right. Over the next few years, 45 states enacted eminent domain reform laws in reaction to the decision — the most widespread state legislative response to a Supreme Court decision in American history….

In a famous 1977 article, Supreme Court Justice William Brennan emphasized that state constitutions can often provide stronger protections for individual rights than they get under the Supreme Court's interpretation of the federal Constitution. The backlash against Kelo is in many ways a vindication of his thesis.

The state reaction to Kelo is also a dramatic example of how litigation and political action can be mutually reinforcing. Before Kelo, most Americans had little idea that eminent domain abuse was a significant problem or that it could be used to displace people from their homes in order to transfer the land to private interests….

It took the publicity surrounding Kelo to focus public attention on this dismaying reality. The resulting backlash — combined with forceful dissenting opinions by Justices Sandra Day O'Connor and Clarence Thomas — also helped lead many legal elites to rethink "public use," breaking the seeming consensus established by Berman. State court decisions rejecting Kelo as a guide to their state constitutions are an example of that trend…

But for all its successes, the political and judicial reaction against Kelo fell far short of ending the problem of abusive condemnations for transfer to private interests. As described in my book, about half of the new state laws provide little or no meaningful new protection for property owners against private "economic development" takings. They give the appearance of reform, but not the reality. In most cases, this sleight-of-hand was achieved by banning takings for "economic development" while at the same time still allowing condemnation of "blighted" property under a definition of "blight" so broad that virtually any property could be declared blighted…..

As a result, abusive takings continue in many states, ranging from a condemnation for purposes of building a pipeline that may never get built, to efforts to suppress construction of affordable housing, and even a plan to condemn a church to build pickleball courts. In much of the country, protection for property rights is much stronger than it was before Kelo. But state-by-state protections for constitutional rights are not a fully adequate substitute for systematic enforcement of the federal floor established by the Bill of Rights….

Some argue that leaving the issue to state and local governments promotes local diversity. But we can achieve even greater localism and diversity by letting each property owner determine for themselves how their land should be used. Protecting constitutional property rights is the ultimate localism.

As noted in the Brennan Center article, there is a real chance the Supreme Court might overturn Kelo, but earlier this year the justices passed up a case that would have been excellent opportunity to do just that:

Four current Supreme Court justices have expressed interest in revisiting or overruling Kelo. But the Court has so far refused to take a case raising that issue. Earlier this year, the justices chose not to review Bowers v. Oneida County Industrial Development Agency, a case brought by the Institute for Justice, the same public interest group that had represented the property owners in Kelo. I and many other property rights advocates believed Bowers to be an ideal vehicle for this issue.

The second article is part of a forthcoming Yale Journal on Regulation symposium on the 20th anniversary of the case. My contribution, entitled "Public Use, Exclusionary Zoning, and Democracy," is  available for free download on SSRN. Here is the abstract:

The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the "public use" issue at stake in that case, and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. In the twenty years since Kelo, exclusionary zoning and the housing crisis it has caused have emerged as major issues in public policy and legal debate. Kelo famously ruled that the Fifth Amendment requirement that takings must be for a "public use" does not bar the employment of eminent domain to take homes for privately owned "economic development." The Court endorsed a broad definition of "public use" that included almost any disposition of condemned property that might benefit the public in some way. Exclusionary zoning – defined here as regulatory restrictions on the types of housing that can be built in a given area - is a major factor in the national housing crisis, that has increased housing costs, prevented millions of people from "moving to opportunity," and impaired economic growth and innovation. opportunities. There are striking and largely unnoticed parallels between the "public use" question decided in Kelo and the constitutional issues raised by exclusionary zoning.

Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question – private-to-private condemnations in one case, exclusionary zoning in the other – violate the property rights provisions of the Fifth Amendment. The former violates the requirement that the use of eminent domain be for a "public use;" the latter that severe restrictions on owners' rights to use their land require "just compensation" under the Takings Clause. But, in both cases, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal-era skepticism of property rights. That skepticism was in large part driven by concerns that judicial protection for property rights is undemocratic, inhibits government planning, and tends to benefit the rich at the expense of the poor and disadvantaged.

Part II outlines ways in which the traditional conventional wisdom on these two issues is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further "representation-reinforcement" in two ways: by giving voice to groups excluded from the political process, and by empowering them to "vote with their feet."

Part III briefly highlights some synergies between judicial enforcement of public use limitations on eminent domain, and enforcement of restrictions on exclusionary zoning. Both help empower people to live where they wish. Striking down exclusionary zoning would make it harder for local governments to keep people out; Reversing Kelo would make it harder for them to expel those already living in the area. Opponents of exclusionary zoning could also potentially learn useful lessons from the Kelo experience on how litigation can be effectively combined with political action.

The article builds in part on my book The Grasping Hand, and also on my recent article "The Constitutional Case Against Exclusionary Zoning," 103 Texas Law Review 1 (2024) (with Joshua Braver). It has already secured the much-coveted "highly recommended" rating on Prof. Larry Solum's Legal Theory Blog.

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[Eugene Volokh] Did Elected Officials Violate First Amendment by Orchestrating Public Criticism of (and Racism Allegations Against) Their Critic?

["[P]ublic condemnations, op-eds, and official complaints ... through proxies are independent constitutional violations" if the officials "engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity."]

Jack Lipton was a prominent professor and administrator at Michigan State University, and in 2023-24 "he served as the Faculty Senate Chair," "the liaison between the MSU faculty" and the MSU Board of Trustees, which is elected statewide. He got into a dispute with two members of the BOT, Chair Rema Vassar and member Dennis Denno. Here's the backstory, from the May 28 decision by Chief Judge Hala Jarbou (W.D. Mich.) in Lipton v. Mich. State Univ. Bd. of Trustees (appeal pending):

[According to the Complaint, on] October 20, 2023 (the early days of Lipton's tenure as the Faculty Senate Chair), [BOT member Brianna] Scott sent an open letter to her fellow BOT members. The letter accused BOT Chair Vassar of ethical violations and called for Vassar's resignation. A week later, on October 27, 2023, the BOT held a highly attended meeting to discuss Vassar's alleged misconduct and whether she should resign. Lipton spoke at this meeting in his capacity as Faculty Senate Chair, reading a resolution the Faculty Senate passed that called for Vassar's resignation.

According to the amended complaint, the meeting was contentious and chaotic, and whenever "any meeting attendee spoke in support of holding Vassar accountable for her actions as outlined in Scott's letter, Vassar supporters interrupted and jeered them and attempted to prevent them from completing their statements." The typical rules regarding permission to speak were ignored, and the BOT Secretary was pressured to allow nonregistered speakers to voice their support for Vassar. There was a lack of order, culminating in police officers escorting at least one attendee from the meeting.

After the meeting, a reporter asked Lipton whether he thought the faculty's concerns, and the general allegations against Vassar, had been sufficiently addressed. Lipton, clarifying that "he would speak [to the reporter] as a private individual and not on behalf of the Faculty Senate," said: "The board meeting yesterday, filled with Chair Vassar supporters, demonstrated Trustee Scott's charges of intimidation and bullying in action. The chaos brought and disrespect shown by her supporters could have been stopped by a single statement from Chair Vassar, yet she elected to let the mob rule the room."

In the wake of Lipton's comment, Vassar and her BOT colleague Denno allegedly began a retaliation campaign against Lipton. Vassar and Denno met with MSU students, encouraging them to publicly condemn Lipton and file complaints of racial discrimination against him. Vassar's supporters and associates published statements and op-eds calling Lipton racist, anti-Palestinian, and anti-Muslim, citing his use of the term "mob" to describe the crowd. According to a third-party investigator that MSU hired, Vassar and Denno advised students and supporters on how to attack Lipton for his statement, coordinating with them on the phrasing of these public condemnations and complaints.

The BOT met for its next scheduled meeting on December 15, 2023, however it was held virtually due to security concerns from the October meeting. Vassar and Denno attended this meeting in their official capacities while in a room filled with MSU students, and during the meeting's public comment period, these students spoke out against Lipton. Vassar and Denno invited these students to participate in the meeting with them. Lipton spoke at the meeting—per his responsibilities as Faculty Senate Chair—apologizing for his comment, explaining his intent behind it, and continuing to criticize Vassar and Denno for their actions as BOT members.

After the third-party investigation detailed Vassar and Denno's coordination with students to publicly condemn Lipton for his comment, the BOT voted to censure Vassar and Denno.

Lipton sued, claiming (among other things) that Vassar's and Denno's actions constituted unconstitutional retaliation against his speech to the reporter. The court concluded that Lipton had adequately alleged that the speech was presumptively protected by the First Amendment, because he adequately alleged that he engaged in it as a private citizen, that it was on a matter of public concern, and that it didn't unduly "interfere with the efficient performance of MSU's public services nor the BOT's functions."

But then the court went on to what strikes me as the more unusual holding—that Lipton had adequately alleged that Vassar's and Denno's actions, which basically involved organizing public criticism of Linton, were unconstitutional retaliation.:

{"Any adverse actions, other than 'those that create only de minimis negative consequences,' can 'offend the Constitution.'"} "An adverse action in the First Amendment retaliation context is an action that 'would chill or silence a person of ordinary firmness from future First Amendment activities.'" …

Lipton adequately alleges that … Vassar and Denno used their positions as BOT members to attack Lipton for the comment he made as a private citizen. They made these attacks as BOT members and at BOT meetings. Additionally, Vassar and Denno used their BOT pulpit to funnel adverse action towards Lipton via proxies, leveraging their BOT membership to speak through students, supporters, and members of the public.

These attacks (i.e., public condemnations, op-eds, and official complaints) through proxies are independent constitutional violations so long as it is clear that the defendants engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity. Lipton alleges facts that illustrate the affirmative actions Vassar and Denno took—while acting as BOT members—that were motivated by Lipton's speech and would chill First Amendment activity of a person of ordinary firmness.

Vassar and Denno crafted the language that others would use to attack Lipton. They pushed students to file complaints. And while engaging in their official responsibilities at the December 15, 2023 BOT meeting, they coordinated with students to raise attacks against Lipton due to his protected speech. Public officials cannot insulate themselves from violating the First Amendment's protections by simply manipulating others to engage in retaliatory conduct—particularly when they leverage their public positions to do so….

Defendants argue that Lipton faced no real adverse action. They note that he was promoted to Associate Dean for Research Analytics after these coordinated attacks on his character. However, according to "an executive search firm associate," Vassar and Denno's alleged coordinated attack against Lipton hindered his employment opportunities outside MSU. "The 'power to substantially affect' a public employee's livelihood could be enough to establish an adverse action.'" And "actions 'designed to threaten' a person's 'economic livelihood' are likely to deter a person of ordinary firmness from engaging in protected speech."

From the allegations, it is reasonable to infer that Vassar and Denno sought to jeopardize Lipton's career and economic opportunities in an effort to change his behavior and prevent continued statements against Vassar's conduct on the BOT. The public condemnations and official complaints by students would chill the speech of a person of ordinary firmness.

Additionally, "campaigns of harassment, when considered as a whole, may amount to adverse action." Looking to the totality of Vassar and Denno's campaign of harassment, both in its scope (public comments at BOT meeting, statements, complaints, etc.) and content (condemnation as a racist), Vassar and Denno's conduct constituted adverse action against Lipton, and it was motivated by his protected speech….

What about Vassar's and Denno's own ability to speak, as elected political officials? Here's what the court had to say:

Vassar and Denno, along with others who spoke out against Lipton, are entitled to take issue with Lipton's phrasing. But the allegations suggest that Vassar and Denno sought to attack Lipton to protect their positions on the BOT; they told students "to help us," a call to action seeking to silence Lipton for his statement that questioned Vassar's conduct on the BOT, not to discuss the implications of a faculty member using what some may have perceived as racially charged language.

"An act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper." Lipton has plausibly alleged that Vassar and Denno were motivated by retaliation, not a desire to raise concerns in the marketplace of ideas. As Lipton's supervisors, Vassar and Denno crossed the line into conduct the First Amendment forbids, using their positions of public authority to take adverse action against Lipton due to his protected speech.

I appreciate the court's reasoning: People, especially government employees (even tenured ones), may well feel chilled from speaking by these sorts of campaigns of public vituperation. At the same time, elected officials have their own rights to speak (see, e.g., Bond v. Floyd(1966) and the currently pending Libby v. Fecteau). Those rights include the right to associate with others to speak, which would include the right to privately encourage others to speak.

Nor do I see how the law can distinguish "a desire to raise concerns in the marketplace of ideas" from being "motivated by retaliation."

To use an up-to-date example, say, for instance, that an elected trustee is criticized by a pro-Palestinian activist, and she thinks that the activist is actually motivated by anti-Semitism. She therefore publicly condemns him, gets her allies to accuse him of anti-Semitism, and gets students to file complaints based on his speech.

The trustee may well both desire to raise concerns about the activist (and others like him) in the marketplace of ideas and be motivated by "retaliation" in the sense of thinking that the activist's speech merits public blowback. Indeed, the motivations two may be practically impossible to tease apart. And of course, the same would apply if an elected trustee is criticized by a pro-Israel activist, and she thinks that the activist is actually motivated by anti-Palestinian prejudice.

In any event, I thought I'd blog about the opinion, and ask readers what they thought about it. Elizabeth K. Abdnour and Coriann Gastol (Abdnour Weiker LLP) represent plaintiff.

The post Did Elected Officials Violate First Amendment by Orchestrating Public Criticism of (and Racism Allegations Against) Their Critic? appeared first on Reason.com.

[Josh Blackman] "What Skrmetti Should Have Said"

["Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic."]

Civitas Outlook has published my new essay, titled What Skrmetti Should Have Said. It begins:

I often ask students two questions inspired by Justice Antonin Scalia: identify a decision where you disagree with the outcome, but agree with the reasoning, and identify a decision where you agree with the outcome, but disagree with the reasoning. These questions serve as a gut-check to ensure that their reasoning does not simply follow their policy preferences. Students generally answer the first question with ease. Justice Scalia, for example, often cited his vote to protect a protester's First Amendment right to burn an American flag. But students have a much tougher time with the second question. Usually, if they agree with the bottom line of an opinion, they find a way to accept the reasoning, even if not perfectly.

For me, United States v. Skrmetti falls into the second category. The Court, by a 6-3 vote, held that Tennessee can ban doctors from "transitioning" minors to the opposite sex. This holding would have seemed so obvious only a generation ago. Yet, in a short span, elite opinion shifted such that lower court judges and members of the Supreme Court came to believe this law was clearly unconstitutional. The majority opinion by Chief Justice John Roberts, as well as concurrences by Justices Clarence Thomas, Amy Coney Barrett, and Samuel Alito, got the bottom line correct. But upon reflection, I have doubts they had the best legal argument. Justice Sonia Sotomayor's dissent proved more persuasive than I expected–not a sentence I write very often. In short, Tennessee denied certain medical treatment to minors in large part based on their biological sex, and under longstanding precedent, sex-based classifications are reviewed more stringently.

That doesn't mean the Tennessee law was unconstitutional. Indeed, I think the state has such a strong interest in protecting children — especially from harm by their parents and doctors — that the law would still pass constitutional muster. But the majority opinion, and to a lesser extent the concurrences, engaged in hyper-technical readings of the statute that distracted from the real legal issues. To hear Chief Justice Roberts tell it, Tennessee simply issued a mundane regulation about which medical treatments are available for minors. But this approach ignored the real reason why Tennessee and so many other states have enacted such laws: the legislatures morally disapprove of transgenderism for minors, and sought to prevent children from medically transitioning to another sex. Full stop.

Here, I think, is the key paragraph:

Dobbs v. Jackson Women's Health Organization (2022) rightly overruled Roe and Casey. This decision returned the question of abortion to the elected branches. Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic. Indeed, Justice Barrett paid homage to Justice Kennedy. She wrote, "an individual law 'inexplicable by anything but animus' is unconstitutional." This was the essence of the line of cases stretching from Romer to Obergefell. It is dispiriting that a former Scalia clerk has abandoned her old boss's mantle and taken up with his jurisprudential nemesis. And I cannot fathom why Justice Thomas signed onto Barrett's concurrence. (There is still time for him to change his vote before the opinion is officially reported.) The right answer, as Thomas and Scalia argued for decades, is that unless the Constitution expressly protects a constitutional right or class, a law motivated by moral disapproval is valid.

I hope this essay will stimulate discussion about how the Court--an even apparently Justice Thomas--has lost its way since Justice Scalia's passing.

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[Eugene Volokh] Names You Might Not Want to Call a Judge in Court

[Django Unchained: An enjoyable movie, but not always the best source of references in the courtroom.]

Sunday's Judicial Notice (David Lat) reminds us that lawyers shouldn't call the judge "honey." But there are other names you might also want to avoid—perhaps even more so—as we learn from Tuesday's opinion by Connecticut Supreme Court Chief Justice Raheem Mullins in Johnson v. Superior Court:

As a self-represented party, the plaintiff filed a petition for a writ of habeas corpus, alleging issues with his medical treatment while in the custody of the respondent, the Commissioner of Correction. After it addressed various pretrial motions, the trial court conducted the first day of the habeas trial on April 4, 2023.

On May 4, 2023, the trial court resumed the plaintiff's habeas trial. The hearing was held virtually, with the plaintiff, counsel and the witnesses all appearing onscreen. Several witnesses were present virtually and were prepared to testify. After the court asked the parties to identify themselves, the plaintiff identified himself as "Gregory Johnson, man. Everybody know[s] who I am. I don't got time for that." Thereafter, the following colloquy occurred:

"The Court: Mr. Johnson, I'm going to tell you right now. You've been here. You know you need to identify yourself.
"The [Plaintiff]: I identified myself (indiscernible).
"The Court: Just do what you need to do, Mr. Johnson.
"The [Plaintiff]: I identified myself already, man. I ain't got time for that….
"The Court: All right. Mr. Johnson, one more, and the hearing is over for the day. You understand? You're not at—
"The [Plaintiff]: I don't care.
"The Court: You're not out in the yard, Mr. Johnson—
"The [Plaintiff]: I don't care.
"The Court: —with your buddies….
"The Court: [The plaintiff], clearly, has forgotten the decorum of the courtroom. It's a regular context with [the plaintiff's] believing he is talking to one of his friends in the yard as opposed to the court.

"The [Plaintiff]: I'm talking to Stephen—
"The Court: The matter is canceled.
"The [Plaintiff]: —a house nigger.
"The Court: The matter is canceled for today. I will ask the caseflow coordinator to reschedule the next day of this matter in ninety days.
"The [Plaintiff]: Care about you. You're a house nigger.
"The Court: Maybe [the plaintiff] will remember his decorum in the court. I'm sorry.
"The [Plaintiff]: You're a house nigger.
"The Court: What was that, Mr. Johnson? You got something to say?
"The [Plaintiff]: You are Stephen from—
"[The Respondent's Attorney]: Oh my God.
"The [Plaintiff]: You are Stephen from the movie Django. I am [going to] go [to] the Department of Justice [to] investigate. You are corrupt. You can kiss my ass.
"The Court: Okay. Mr. Johnson—
"The [Plaintiff]: Fuck out of here.
"The Court: —just got yourself held in criminal contempt of court.
"The [Plaintiff]: I don't care.
"The Court: Would you like counsel?
"The [Plaintiff]: I'm doing life….
"The Court: Sir, would you like counsel?
"The [Plaintiff]: Fuck out of here.
"The Correctional Officer: Johnson.
"The [Plaintiff]: Let's go. Kiss my ass.
"The Court: [The plaintiff], would you—don't—do not … remove him from the room.
"The Correctional Officer: Copy that, Your Honor.
"The Court: Would you like counsel appointed to represent you, Mr. Johnson? You face six months [of] incarceration … and [a] $100 fine. Would you like counsel?
"The [Plaintiff]: Yeah.
"The Court: I'm sorry?
"The [Plaintiff]: Have the state pay. Yeah."

The judge found defendant guilty of contempt of court (though query just what practical effect that would have on a defendant serving a life term), and the Connecticut Supreme Court unsurprisingly agreed; among other things, it rejected plaintiff's argument that recusal was constitutionally required:

We also reject the plaintiff's claim that the trial court should have deferred the contempt proceeding because the court had become personally embroiled. "[In] Mayberry v. Pennsylvania [(1971)], [the United States Supreme Court] held … that the fair administration of justice disqualifies a judge from sitting in judgment on a contempt charge if he [or she] has become so personally embroiled with a contemnor that it is unlikely for [the judge] to maintain that calm detachment necessary for fair adjudication….

In general, in order to determine whether a judge was required to recuse him or herself due to personal embroilment, we must appraise both the conduct of the contemnor and the reaction of the judge. [Although] personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge's response, if the judge has become visibly involved in a running controversy with the contemnor.

[T]he inquiry must be … whether there was such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused…. Consequently, judicial recusal is necessary only in the unusual case [in which] the apparent effect of the contemnor's conduct on the judge against whom the contemptuous conduct was levied is such as to indicate that the judge's impartiality or objectivity reasonably may be called into question."

We have explained "that significant evidence of personal embroilment would constitute an appropriate situation for deferred adjudication or deferred sentencing before a different judge." See, e.g., Sandstrom v. Butterworth (11th Cir. 1984) (Concluding that the trial judge was personally embroiled, such that imposition of contempt should have been deferred, when the evidence showed that, "[a]t different points during the trial, the judge referred to the petitioner as 'rude and nasty,' and as 'acting like an animal;' the judge repeatedly said he was 'sick of' the petitioner. He referred to [the] petitioner's law partner as a 'little creep,' and said that he was 'sick of' him. Shortly before finding [the] petitioner guilty of contempt and sentencing him, the trial judge said that for ten years the petitioner had had a 'nauseating effect' [on] him and every other [judge] in the courthouse."); see also, e.g.,  A.B.A., Standards for Criminal Justice ("[t]he judge before whom courtroom misconduct occurs may impose appropriate sanctions, including punishment for contempt, but should refer the matter to another judge if the original judge's conduct was so integrated with the contempt so as to have contributed to it or was otherwise involved, or if the original judge's objectivity can reasonably be questioned").

Our review of the record persuades us that the plaintiff has failed to present significant evidence that the trial court was so personally embroiled in a running controversy with the plaintiff that disqualification was required. A review of the transcript and the audio recording of the hearing reveals that, although the plaintiff repeatedly directed racial slurs and other profanity at the trial court, the court responded to the plaintiff with a calm demeanor, gave repeated warnings to the plaintiff, which he ignored, and offered the plaintiff the opportunity to speak to his counsel privately.

Furthermore, the trial court's initial response to the plaintiff's wilful resistance to identify himself for the record was appropriate. When the plaintiff continued to engage in disrespectful behavior, the court repeatedly instructed the plaintiff to stop talking. Despite the plaintiff's repeated refusal to heed the court's warnings and instructions, the court afforded him an opportunity to speak to counsel and to make a statement before sentencing him. Nonetheless, the plaintiff persisted in defying the court's orders and insisted on referring to the court using racial slurs and other profanity. The record demonstrates that, despite the plaintiff's extreme behavior, the court's response was calm and professional throughout the proceeding.

The plaintiff suggests that the fact that he used racial slurs and other profanities directed at the trial court demonstrates that the court was personally embroiled in the conduct. Not so.

Evidence of personal attacks against the court is not, standing alone, sufficient to demonstrate embroilment. Instead, this court has explained that, "[although] personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge's response …."

We cannot agree that a plaintiff can demonstrate embroilment merely by providing evidence that he or she had made personal attacks against a trial judge. Indeed, adopting such a position would enable the plaintiff to benefit from his own wilful and extreme misbehavior, which we do not countenance.

As the United States Supreme Court has explained, "we do not say that the more vicious the attack on the judge the less qualified he is to act. A judge cannot be driven out of a case." In the present case, our review reveals that, despite the plaintiff's repeated personal attacks on the trial court, the court did not become so personally embroiled in an ongoing controversy with the plaintiff that recusal was necessary to safeguard the plaintiff's due process rights….

From the details offered in the opinion, Johnson's initial 1998 conviction appears to be the one described here.

Raynald A. Carre and Deann Varunes represent the state.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Josh Blackman] Grading The Controversial Florida Seminar Paper

Earlier today I wrote about the New York Times expose concerning the grading of a student seminar paper at the University of Florida. I've now had a chance to read the paper.

First, from a technical perspective, the paper is very well done. The writing is easy to understand. The footnotes are expertly bluebooked. The sentences are bit too long for my taste, but many law professors like long sentences with many clauses. I don't have the rubric, but I would imagine the student would receive full credit, or near-full-credit for these technical elements.

Second, the author also presents a fairly detailed analysis of modern originalist scholarship. He accurately describes the views of McGinnis and Rappaport, Randy Barnett, and Adrien Vermeule. The author brings in discussion of the Federalist Papers, records from the Constitutional Convention, and early congressional debates over slavery. Again, I don't have the rubric, but I would imagine the student would receive full credit, or near-full-credit for the literature/background information section.

Third, I'll turn to the substance. The basic argument is that under what the author describes as National Constitutionalism, the Constitution should be understood to protect the sovereignty of "the People." And, following Verdugo-Urquidez and Heller, "the People" are Americans, and not aliens. But the author doesn't stop there. Citing records from the early republic, he concludes that the founding generation sought to discourage immigration from non-White countries. He quotes Professors Gabriel Chin and Paul Finkelman who wrote, "whether or not they supported slavery, a majority of [the Founders] unambiguously conceived of the United States as a White country." (I'm not sure anyone would disagree with this point.)

This analysis leads the author to three conclusions. First, the author would read Article IV, Section 4 to permit the states to play a role to prevent the "invasion" of migrants. (This section more-or-less tracks Judge Ho's concurrence, and arguments advanced by the Trump DOJ.) Second, the author would allow the courts to strictly scrutinize immigration policies that would "dissolve the people and elect another." Third, the author would subject discrimination against aliens to mere rational basis review. He would also overrule Plyler v. Doe and Wong Kim Ark. The author recognizes that his positions are in tension with the Fourteenth and Fifteenth Amendments. But he cites the longstanding debates about whether these amendments were properly ratified, and whether they are substantive unconstitutional. If these amendments were not ratified, then we are left with the Constitution without the Reconstruction Amendments.

Here is my assessment. The article is laid out backwards. At the very end, the author contends that the Fourteenth and Fifteenth Amendments may have never been properly ratified. And his conception of National Constitutionalism is premised on those two amendments never changing the constitutional order. Or alternatively, he contends that the Fourteenth and Fifteenth Amendment should have no bearing on how immigration policy is understood. But if these points are wrong, then many of his points would not follow.

Were I to have advised the student on the paper, I would have had him reverse the entire theme. At the outset, the author would have the reader assume--at least for purposes of a thought experiment--that the Reconstruction Amendments were never ratified. Then, the reader would imagine that Congress adopted twentieth-century style open immigration laws. Would those laws violate the original Constitution? If the federal government failed to stop the flow of migrants, would the states then have the power under Article IV to repel the invasion? Could courts declare those laws as unconstitutional?

The author does repeatedly refer to a preference for White people, and blocking non-White immigrants. At least in this paper, the Author frames this preference in terms of how the Framers would have understood immigration--I think he accurately describes that history. Now, with the benefit of hindsight, we know that the author was in fact also articulating his own policy preferences. But based on the paper, the author was presenting this thesis as a matter of scholarship.

Where does this leave us? Is this the best student note I've ever read? No. Was it executed well from a technical perspective? Yes. Was it thoroughly researched? Yes. Did it present a coherent thesis based on history? Yes. Was it well organized? Not really. The article under-developed the core obstacle--the ratification of the Reconstruction Amendments--and doesn't explain how the Supreme Court would overrule certain landmark precedents. But these sorts of shortcomings are typical of law student papers. What would I give the paper, having never met the student or heard his presentation? Probably a B+ or maybe an A- if I was feeling generous. Then again, I didn't read any of the other papers in the class, so it is tough to compare. And remember, under the syllabus, the final paper is worth only 65% of the final score, so we do not know what other elements the student contributed. A final grade of A or A+ is well within the bounds of reasonable grading.

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[Ilya Somin] Trump's Iran Air Strikes and the Constitution

[The strikes violate both the Constitution and the 1973 War Powers Act. Whether they are good policy is a more difficult question. This could turn out to be a rare instance where one of Trump's illegal actions has beneficial results.]

B-2 Bomber (Northrop Grumman).

 

Yesterday, US warplanes struck three Iranian nuclear sites. President Trump did not make any effort to get advance congressional authorization for this action, or even to consult with Congress. It is, therefore, a violation of both the Constitution and the 1973 War Powers Act. But it is possible this will turn out to be a rare instance where one of Trump's illegal actions has beneficial consequences.

Michael Ramsey, prominent conservative legal scholar and war powers expert has an excellent explanation of why Trump's air strikes violate the Constitution:

My longstanding view, developed in a series of articles, is that the Constitution's original meaning requires Congress to approve any material initiation of military hostilities by the United States.  As explained at length in Textualism and War Powers, that conclusion rests principally on two points:

(1) the original meaning of "declare" war includes both formal announcements of the initiation of a state of war and the use of military force in a way that creates a state of war.  In the eighteenth-century sense, war could be "declared" by words or by actions (and indeed, wars in the eighteenth century and earlier were often not begun with formal announcements but simply by launching military action -- a point noted by Hamilton in The Federalist).

As a result, the Constitution's assignment to Congress of the power to "declare" war gave Congress power over the decision to go to war, whether through formal announcement or by the use of force.  A wide range of leading members of the founding generation -- including Washington, Hamilton, Madison, and James Wilson -- described Congress' power to declare war as exclusive (that is, that it was a power of Congress and therefore not a power of the President).

(2) the original meaning of "war" broadly included most uses of sovereign military force, including ones with limited scope and objectives.  An early Supreme Court case, Bas v. Tingy, recognized that there could be general war or limited war -- both of which came within Congress' war power.  The Bas case involved the so-called "Quasi-War" between the U.S. and France in the late 1790s, which consisted only of naval engagements.  Notably, essentially everyone at the time -- including advocates of presidential power such as Hamilton and President John Adams -- thought the U.S. actions in the Quasi-War needed to be authorized by Congress (which they were).

Applied to the U.S. airstrikes on Iran, this reading seems to require congressional approval.  The U.S. strikes constitute war in the original constitutional sense of the term: they are a use of force against a foreign sovereign adversary to compel an outcome.  Although their objectives may be limited to forcing Iran to end its nuclear program, such a limited military objective still constitutes a war (albeit a limited war).  And initiation of war, whether general or limited, and whether done by formal announcement or simply by the use of force, requires Congress' approval under the Constitution's declare war clause.

As Ramsey notes, there is an argument that relatively small-scale military actions don't qualify as wars and therefore are exempt from the requirement of congressional authorization. Even if that argument is correct in some situations, it doesn't apply here. The objective of these strikes - dismantling Iran's nuclear program, and the potential scale of the fighting (Iran is a major regional power and has substantial retaliatory capabilities) differentiates this situation from very narrow one-off strikes, such as Ronald Reagan's 1986 air strike against Libya.

Ramsey also has a compelling response to the argument that this action is legally justified by Iran's earlier support of terrorist attacks.

Unlike many of Trump's egregious abuses of emergency powers, this action is far from unprecedented. Previous presidents have also violated the Constitution in this way. Most notably, as Ramsey points out, Barack Obama, in 2011, waged a lengthy air campaign against Libya, intended to help overthrow that country's dictator, Moammar Gaddafi. For those keeping score, I condemned Obama's action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Obama's illegal actions don't justify Trump's (and vice versa).

Ramsey's analysis is based on originalism. He suggests there might be a "living constitution" case for justifying such actions, based on "the speed of modern warfare and the exigencies of terrorism and potential nuclear attack." I disagree. Modern warfare is indeed faster than that of the eighteenth century. But Congress can move faster, too. Under modern conditions, Congress can be swiftly convened even if it is not in session (which, today, it almost always is). In this instance, Trump had ample opportunity to seek congressional authorization. He just chose not to.

In addition to violating the Constitution, the air strikes also violate the War Powers Act. Section 3 of that legislation requires that "[t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." There was no such advance consultation here, even though it was obviously "possible" to do it (US strikes against Iran have been under consideration since Israel began its air campaign on June 13, if not before).

The War Powers Act also requires withdrawal of US forces from "hostilities" after 90 days, unless Congress has authorized further involvement. Obama ultimately violated this requirement in the Libya conflict; we'll see if Trump ends up doing so here.

Legal scholars and commentators have to be open to the possibility that an illegal action might nonetheless have beneficial results. Like Michael Ramsey, I acknowledge that could be the case here.

If the US air strikes (combined with earlier and ongoing Israeli actions) really do severely damage Iran's nuclear program, that would be a good thing. If they succeed in overthrowing Iran's brutal regime, that would be better still. Since coming to power in 1979, Iran's theocratic dictatorship has sponsored numerous terrorist attacks (including some against the US), supported brutal terrorist groups around the Middle East (including Hamas, Hezbollah, and the Houthis), and brutally oppressed its own people, including by repressing women and minority ethnic and religious groups. Almost any plausible alternative government would be better. There is no contradiction between recognizing all of that, while also condemning Trump's many abuses of power and authoritarian tendencies.

I left the field of security studies many years ago, and therefore must be cognizant of the limits of my expertise. Thus, I will not try to give any definitive assessment of the policy merits of this campaign. I will limit myself to just a few tentative points.

First, war is inherently dynamic. What the great German military theorist Carl von Clausewitz called "friction" is ubiquitous, making prediction difficult. As he also put it, in On War, "everything in war is very simple, but the simplest thing is difficult." Much depends on how Iran reacts to these strikes, and how the US and Israel respond in turn.

Second, I have little faith in this administration's ability to conduct any prolonged conflict competently. Among other things, Pete Hegseth is not a competent secretary of defense, and Tulsi Gabbard is not a competent head of the intelligence community. Trump himself is notorious for his ignorance and poor judgment. That doesn't guarantee a bad outcome. But it certainly reduces the odds of success.

Finally, even if the military action here turns out to be successful, waging another war without proper congressional authorization is still a dangerous precedent. There is good reason for that constitutional requirement, and we eroded it at our peril. See my 2021 Washington Post article on this subject, for some of the reasons why:

The constitutional requirement of congressional authorization is more than just a legal technicality. Not only does it prevent dubious conflicts begun at the behest of a single man; it also increases the chances of success if we do enter a conflict. If the president is required to get congressional authorization for war, he will be forced to build up a broad political consensus behind his decision; that increases the likelihood that we will stay the course until victory is achieved, as opposed to bailing out when difficulties arise.

If such a consensus is absent, it is usually best to avoid the conflict entirely. The failure of Obama's 2011 military intervention in Libya, — he called the lack of planning for the aftermath of that conflict his "worst mistake" as president — was partly caused by his decision to forgo building the necessary political consensus for congressional authorization.

Although U.S. airstrikes against Libya lasted for some seven months, and helped bring about the overthrow of the regime of Libyan dictator Moammar Gaddafi, the Obama administration claimed there was no need for congressional authorization for its actions, on the dubious ground that it did not involve a genuine war, or even "armed hostilities" under the War Powers Act. Subsequently, the country descended into chaos and ISIS-aligned groups and other dangerous organizations took over substantial parts of its territory; the United States largely walked away.

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[Josh Blackman] The New York Times Launches An Unfair Attack On Judge Badalamenti

[The paper of record tars the reputation a former federal defender as part of a broader attack on originalism.]

Yesterday, Richard Fausset of the New York Times published an article "A White Nationalist Wrote a Law School Paper Promoting Racist Views. It Won Him an Award." This article represents the worst of modern-day advocacy journalism. Fausset obviously has no idea how law school seminars are graded, and made no effort to learn. Moreover, it is pretty clear here that there is an ongoing disciplinary proceeding against the student, so no one at the law school is able to comment. Fausset uses that silence to further sully the reputation of everyone involved.

I'll start with a personal disclosure. The course in question was co-taught by Judge John Badalamenti. You may not know Judge Badalamenti, but you are probably familiar with a case he argued: Yates v. United States (2014). Yes, Badalamenti, as a federal public defender, successfully argued the fish case before the Supreme Court. I've known Badalamenti since then, and have chatted with him over the years. Last fall, I spoke at the originalism conference he organized, which hosted the entire Florida Supreme Court, several members of the Eleventh Circuit, and scholars from across the ideological spectrum. I include these facts to show the high regard that Badalamenti is held in by his community.

In the Fall of 2024, Judge Badalamenti taught a seminar at the University of Florida, titled ADVANCED CONSTITUTIONAL INTERPRETATION: ORIGINALISM AND ITS FOES. The syllabus is available online. (It is not clear if Fausset ever bothered checking it.) The syllabus explains how grades are assigned:

Grades will be based 25% on class participation, 10% on reflection papers, and 65% on final papers.

The paper in question was certainly a large chunk of the final grade, but was not the only factor. As I understand the policy at the University of Florida, the awarding of a "book prize" is not discretionary. It is automatically given to the student with the highest score. And in a small seminar with roughly a dozen students, this book prize is not particularly significant. It is not like a law school wide prize. Howard Wasserman, who teaches at nearby Florida International University, explained:

To people unfamiliar with law school, the phrase "book award" sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition.

The fact that a student received a high grade in a small seminar is not worthy of a New York Times expose. Aren't there actual problems to write about?

On the merits, the argument that the Constitution, as originally written, favors white people stretches back to the founding, and was articulated by William Lloyd Garrison and others. I, for one, favor the Frederick Douglass and Lysander Spooner approach, but there is a scholarly debate in this area.

The entire premise of the NY Times article is that Judge Badalamenti gave a distinguished prize to an avowed white supremacist. But the timeline undermines the narrative. Again, the class concluded in December 2024. But the student's relevant social media posts did not arise until February 2025, and the most egregious statements were made in March 2025. Does Fausset bother explaining whether Badalementi was even aware of the student's comments during the class? No, it is all left to insinuation.

Faussett writes that Badalementi "has earned praise from both liberals and conservatives over the course of his career." The linked article includes this passage:

The federal judge in Florida overseeing a conservative group's lawsuit against Target's LGBTQ+ Pride marketing is a Trump appointee and a member of the Federalist Society, which champions individual liberty and traditional values.

These facts describing US District Judge John Badalamenti, presented against a highly politicized backdrop, suggest a particular political leaning that could influence the way he will rule in the case. What people may not know is that the 49-year-old jurist has liberal supporters, came from a humble upbringing and considers political motivations incompatible with his role as a judge. But defying expectations and challenging assumptions is nothing new for him.

. . . .

The diagnosis shortly after becoming a federal judge was devastating to hear, Badalamenti said. But he found a friend and mentor in another former public defender and US district judge at the time, who later joined the Supreme Court: Justice Ketanji Brown Jackson.

"She mentored me through these difficult times and continues to be a tremendous friend and source of positivity," Badalamenti said in a follow-up email.

Jackson, whom President Joe Biden appointed to the Supreme Court in 2022, declined to comment through a spokesperson, but the representative confirmed the justice's friendship with Badalamenti.

Yes, Judge Badalementi is friends with KBJ. And as a federal defender, he spent his career defending people of color. A quick google search shows that he is on the board of Gentlemen's Quest. This group helps high risk high school students gain entry to college. A quick review suggests that Judge Badalamenti is the only white person on the board. Moreover, the Senate Judiciary Committee questionnaire states that he "served as a volunteer mentor for inner city middle school students in the Tampa community."  This is not a white supremacist. Did Fausset even ask Chat GPT about Badalamenti?

These hits on conservatives are so predictable and unfortunate. They slander a good judge who spent his career fighting for the rights of all people, all in service of an attack on originalism. Look at Fausett's biography:

I write about conservative culture and gun issues, as well as the ongoing election interference case against former President Trump and some of his allies in Fulton County, Ga.

Fausset was asked to investigate only one side of the spectrum. This is not journalism. As Rush would say, these are activists with bylines.

Update: I attempted to grade the paper here.

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