Leaks, Legal Realism, and Private Deliberations

by Michael C. Dorf

My latest Verdict column discusses a four-part series on the Roberts Court by reporter and judicial biographer Joan Biskupic, which appeared on CNN.com last week. Although I express admiration and respect for Biskupic (whom I have known for many years), I criticize the entire genre of behind-the-scenes reporting on the Supreme Court. My point is not that the Court should be shrouded in glorifying secrecy but that the revelations by Biskupic and others are invariably duds. They provide virtually no insight into the Court's workings that is not apparent from reasonably careful study of its public product.

Here I'll elaborate a bit further on how the revelations fail to illuminate in order to confirm my conclusion that the reporting has virtually no public benefit. I'll then describe the cost of leaks of what ought to be private deliberations. Although I don't think the cost is very large, it is large enough to outweigh the nonexistent benefit.

The Tender Feelings of Factory Farmers as a Window into Two Types of Conservative Hypocrisy

by Neil H. Buchanan

Back in college, a friend who was a pre-med student landed an internship in a research laboratory.  She left for her first day on the job with great excitement, but she returned looking distraught.  Why?  It turned out that her job was to handle animals (including, as I recall, even domesticated animals like cats) that were going to be the subject of experiments, after which they would be killed -- by my friend.  (The passive voice can hide very pointed realities, indeed.)

When I asked her whether she would quit, she said that she was planning to finish the semester as planned, even though it would be emotionally draining.  She then offered this: "I'm telling myself that at least I'll do what I can to make the lives of these doomed creatures as comfortable as possible while they're still alive."  I never spoke with her about that subject again, and I assume that she is now a successful physician who tries to be good to animals.

This memory came back to me recently as I wrote my 2020 veganniversary column, in which I quoted extensively from a New York Times piece by Jonathan Safran Foer.  (Safran Foer's piece is admirably forceful, but it is worth noting that he has a history of being rather evasive about veganism -- and that is putting it kindly.  I have updated my column to add that clarification.). One surprising aspect of his piece was this paragraph, which followed a description of the Covid-19 outbreaks at meat processing plants:

"Sick workers mean plant shutdowns, which has led to a backlog of animals. Some farmers are injecting pregnant sows to cause abortions. Others are forced to euthanize their animals, often by gassing or shooting them. It’s gotten bad enough that Senator Chuck Grassley, an Iowa Republican, has asked the Trump administration to provide mental health resources to hog farmers."

Here, I will discuss two ways in which Grassley's request highlights Republicans' fundamental hypocrisy.

The "Mosaic Theory" and the Aftermath of Carpenter

by Matthew Tokson

Recently, Orin Kerr has raised some interesting questions about how lower courts are using the "mosaic theory" of the Fourth Amendment after Carpenter v. United States. The mosaic theory generally refers to the idea that courts should look at police surveillance in the aggregate, rather than examining each instance of surveillance in isolation. So tracking someone's car for 3 months might require a warrant, even if tracking them for 3 minutes would not. 

Kerr notes that some lower courts have accepted the mosaic theory while others reject it, and wonders how many there are of each. As it happens, I have a coded database of every available decision citing Carpenter (for another project), and can speak to some of these questions. After doing so, I'll offer a suggestion for distinguishing two conceptions of the mosaic theory to make sense of what the lower courts have been doing.

A Preview of SCOTUS Term Review: Theocracy Edition

by Michael C. Dorf

On Monday of next week, I shall participate in the Practicing Law Institute (PLI)'s 22nd Annual Supreme Court Review (as I have done each year since it began). Although the day's activities will be entirely online due to the pandemic, I look forward to seeing old friends, and once again the faculty is a star-studded cast: joining co-chairs (Berkeley Law Dean) Erwin Chemerinsky and (Touro Law Emeritus Professor) Martin Schwartz will be Professors Sherry Colb (Cornell), Leon Friedman (Hofstra), Melissa Murray (NYU), Burt Neuborne (NYU), Cristina Rodriguez (Yale), and Ted Shaw (North Carolina), as well as prominent attorneys Miguel Estrada (Gibson Dunn), Judson Littleton (Sullivan & Cromwell), and Janai Nelson (NAACP LDEF), with journalist Joan Biskupic (CNN) and me rounding out the group.

Coming off a fairly momentous Term, I expect that we will give the most attention to the following issues: the role of CJ Roberts in both dominating the Court and moving it to the center (with special focus on the DACA, Title VII, abortion, and Presidential subpoena cases); whether and to what extent the opinions by Justice Gorsuch in the Title VII cases and the Creek case against Oklahoma show that he is a principled textualist who goes where the law leads him; and how the Court's performance in the presidential financial records cases (in which all the Justices rejected the broadest claims of presidential immunity) will play out in the short and long terms. I expect that there will also be considerable interest in recent leaks about internal Court deliberations based on Ms. Biskupic's reporting (on the financial records cases, the Title VII cases, the DACA case and the Second Amendment, and Justice Kavanaugh's attempts to duck hard cases).

For my part, I expect to weigh in on all of those questions and more in my role as "panelist" in three of the first four sessions. Here I want to preview my remarks for the 10:30 am panel on free speech and religion, where I have responsibility as "speaker" on the religion cases. Before doing so, however, I'll add that it's not too late to register for the program--which is an entertaining and useful way for practicing lawyers to earn a whole lot of the CLE credit they need. (It's not exactly cheap, however. We panelists/speakers are volunteers, but PLI, which is a non-profit, has to recoup its production costs.)

The Trump Campaign as Protection Racket

by Neil H. Buchanan

With so many things going so horribly wrong in the world, this is not a good time for a politician to be running as an incumbent (at least one who is a member of the party in power).  Facing a daunting political environment, losing politicians can turn to a fairly standard set of desperate ploys to turn things around.

Donald Trump is in most ways not at all a standard politician -- and I continue to reject the idea that he has any grand strategies or actual political acumen -- but he most certainly is acting like a standard-issue political loser in the sense that he is flailing about, looking for scapegoats and trying to get out from under the weight of his own terrible decisions.

Much has already been written about Trump's "little green men" gambit -- sending untrained paramilitaries into Portland, Oregon -- but here I want to focus on how that leading-edge-of-fascism idea fits into the "legitimate" side (more on those scare quotes presently) of Trump's doomed reelection campaign.  He is, in fact, acting more like a mafia boss than a president.

Justice Kavanaugh's Calvary Chapel Dissent Misstates Free Exercise Law

by Michael C. Dorf

Late last week, in Calvary Chapel Dayton Valley v Sisolak, the Supreme Court denied a Nevada church's request for injunctive relief against state COVID-19 rules that limit in-person worship services to 50 people. The church pointed to Nevada rules that permit other places where people gather indoors for sustained periods of time--including casinos, bowling alleys, and restaurants--to be open at 50% capacity, even if their regular capacity greatly exceeds 100. The Court denied the request 5-4 without giving a reason, but it is relatively easy for readers to infer that the majority thought the case was sufficiently similar to its May 29, 2020 decision in South Bay United Pentecostal Church v. Newsom to warrant the same result.

In South Bay, a church complained that California was discriminating against religion by subjecting worship services to greater restrictions than some other facilities, such as grocery stores and marijuana dispensaries. Concurring in the order denying relief, Chief Justice Roberts rejected the church's analogy:

Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

The same four Justices who dissented in South Bay--Thomas, Alito, Gorsuch, and Kavanaugh--also dissented in Calvary Chapel, but they argued that even accepting South Bay's authority, the church in Calvary Chapel should win. In three dissents--one by Alito and joined by Thomas and Kavanaugh, as well as solo dissents by each of Gorsuch and Kavanaugh--they explained that, as Justice Alito put it, Nevada "specifically treats worship services differently from other activities that involve extended, indoor gatherings of large groups of people." Collectively, the dissents are quite persuasive that there is no good public health justification for the differential treatment. They also demonstrate that Nevada's reopening has proceeded recklessly and almost certainly led to avoidable illnesses and deaths.

Remedial Collapse in Portland

By Matthew Tokson

Last week in Portland, federal officers seized at least two protesters without probable cause, threw them in unmarked vans, and interrogated them inside a federal courthouse. There is little question that these seizures violated the Fourth Amendment. But whether there will be any meaningful legal remedy for these wrongs remains in doubt. 

As anticipated by Michael, Judge Mosman of the US District Court for Oregon ruled on Friday that Oregon lacked standing to challenge the federal government's seizures of its citizens. The decision turned on parens patriae doctrine, which allows a state to sue on behalf of its citizens when it has an interest apart from the interests of the private parties and a "quasi-sovereign interest" that has been violated. Judge Mosman ruled that Oregon lacked a quasi-sovereign interest in preventing its citizens from being arrested without probable cause, at least where only two citizens have been unlawfully seized so far. Also, as in Lyons v. City of Los Angeles, the state lacked standing to seek an injunction against further unlawful seizures, because it could not prove those seizures will occur in the future. Finally, the state couldn't assert its citizens' rights to be free from chilling effects on their speech, because citizens can "bring indivdual lawsuits to vindicate those rights." 

This last argument is especially troubling. So far, no citizen seized without probable cause, thrown in a van, and interrogated in a federal courthouse has filed a lawsuit. Why not? There are several potential deterrents to individual lawsuits. When suing a federal officer for constitutional violations, plaintiffs typically cannot recover attorney's fees, under 28 U.S.C. 2412. Compensatory damages are likely to be limited in these cases, and the Supreme Court has generally limited punitive damages to a maximum of ten times compensatory damages. And qualified immunity, where officers can only be held liable for violating clearly established law, may bar recovery in this case. Many courts have treated qualified immunity as a sort of "one bite rule" for constitutional violations, allowing plaintiffs to recover only when the exact factual scenario at issue has arisen in a previous case. In Portland, although the government's actions plainly violated the Fourth Amendment, it is unlikely that courts have previously ruled on the precise fact pattern of a seizure without probable cause in the context of an ongoing protest plus travel in a van plus interrogation in a courthouse followed by release within 20 minutes. Courts applying the ultra-fact-specific version of qualified immunity might find that it applies here. On the other hand, some courts have been a bit more flexible in finding law clearly established, especially in cases involving First Amendment expression. But the prospects for substantial financial recovery for individuals are poor overall.

June Medical and How to Talk About Abortion Part III

By Eric Segall

In the fall and winter of 2014, I published two posts on this blog lamenting how we talk, argue, and litigate about abortion. Those posts generated as much attention as any I have written over the last six years in terms of substantive feedback. My main sentiment was that "we don’t need to live in a zero-sum world when it comes to abortion and that name calling and misleading labels do not advance the debate or the politics surrounding the debate. Although compromise and civility might be hard to achieve, I argued we should at least try to do better (on both sides)."

I also cautiously suggested that compromise would be more likely if the Supreme Court returned this issue to the political process. This term, of course, the Court decided June Medical, which effectively held that lower courts must determine whether a regulation of abortion places an undue burden or substantial obstacle in the way of women seeking abortions without the court addressing the law's benefits if any (Chief Justices Roberts' concurring opinion is the controlling one). This holding all but guarantees more expensive, lengthy litigation across the United States because red states will continue to pass laws targeting abortion providers as well as women seeking to terminate their pregnancies.

Last week I had the pleasure of having on my Supreme Myths podcast Professor Mary Ziegler, an expert on abortion, reproductive rights, and family and constitutional law. She has written three books on abortion including her new one, Abortion and the Law in America: Roe v. Wade to the Present, which I strongly recommend. Among many other important contributions, Professor Ziegler has built a reputation as someone who is fair to both sides of the abortion debate.  Her new book and her views as stated on our podcast definitely provide measured, open-minded perspectives on this highly divisive issue, Reading her book and interviewing her made me want to revisit the question of how we talk about abortion.