The Honorable Jo Perini-Abbott

 

There are bigger electoral fish to fry tonight, but I do want to give a congratulations to my friend and colleague Jo Perini-Abbott, who looks set to win a seat on the Multnomah County Circuit Court. While we'll be sad to be losing her at Lewis & Clark, she will make a fine addition to the bench.

I also want to give a quick shoutout to her opponent, John Casalino. By all accounts (including Jo's), he is a fine attorney and also would have made a solid judge. While I supported Jo, I cannot tell you how nice it is to fill out a ballot when the race isn't "Norma Reasonabola versus Dixie McRapist in a nail-biter!" There are three other local contested judicial elections this cycle, and in at least two of them there were a multitude of really strong candidates to choose from (those two races are heading to a run-off). 

The third race is a bit of an odd duck with an incumbent facing controversy (it's ... a long story), but the challenge to her doesn't seem especially ideologically-motivated. The incumbent, Judge Adrian Brown, has clashed with our local DA, but her challenger is a public defender who suggested that frustration with Judge Brown is present on all sides of the bar. In any event, Brown appears to be losing by a very wide margin.

But I don't want to focus on that. I want to focus on a great candidate notching a win, in an election that speaks to the depth of respected and diligent public servants we have in our community. How lucky I am to live in such a place.

Congratulations!

Shocked To Find Antisemitism in this Establishment

The decision of the Heritage Foundation to defend platforming an unabashed and unrepentant antisemite like Nick Fuentes has caused a burbling unease over the presence of antisemitism in conservative spaces to crash into the mainstream. It is evident that what might once have been labeled "far-right" antisemitism no longer is especially "far" at all; it is wholly mainstream and incorporated into the most prominent factions of contemporary American conservatism.

We are already seeing evidence of a crackup. Heritage's leadership is thus far standing by its position, perhaps cognizant of the substantial following Fuentes and his band of neo-Nazis have amongst younger GOP apparatchiks (one conservative commentator estimated that "30 to 40 percent of DC GOP staffers under the age of 30 are Groypers."). And they've gotten backup from none other than Donald Trump himself. But others prominent conservatives have dissented, announcing their resignation from Heritage or delivering impassioned speeches criticizing the growth of antisemitism in conservative spaces.

I don't want to denigrate the persons in the latter camp. Truly, I don't. They're speaking up, and that's good. But I do wish they would recognize how the overt antisemitism they're critiquing now is downstream from the slightly more covert antisemitism these same actors had been pushing if not justifying for years.

Consider today's big news story about a wild dissent from Fifth Circuit Judge Jerry Smith in the Texas gerrymandering case, where Judge Smith delivered lurid and histrionic conspiracy theories claiming that the entire litigation is being done at the behest of and to the benefit of George Soros. This sort of raving is simultaneously a clear antecedent of Groyper-ism and also effectively unremarkable in conservative circles save that one rarely sees it emanate from a federal judge. You push the "shadowy Jewish financiers are responsible for everything unholy and wrong in society" as your conservative-mobilization button often enough, and it just can't surprise you when the next generation of conservatives mobilizes around viewing Jews as the problem.

This isn't even the first brush the Fifth Circuit has had with antisemitic allusions in recent years -- I flagged in my "Liberal Jews and Religious Liberty" article an opinion where Judge James Ho complained that corporations have been so overtaken by "woke" ideology that they no longer care about the bottom-line, and concluded by asserting that we live in the era of "the Goldman Rule  .... The guys with the gold get to make the rules." As I noted in my article, several Jewish commentators "flagged this passage—substituting the Jewish-coded name 'Goldman' for 'Golden' to speak of wealthy elites' ability to manipulate and control the rules to the detriment of ordinary Americans—as at least raising the specter of antisemitism."

Judge Smith's opinion is, I think, far more explicitly problematic than Judge Ho's was. But the broader point is that, when I read stories about FedSoc organizing a panel of federal judges to speak out on the growing scourge of antisemitism, I need them to realize that the call is coming from inside the house.

What Penalty For the Judicial Intern Who Used Generative AI?

The contagion of AI-generated hallucinations in law has reached the federal judiciary. Two district court judges have admitted that opinions released from their chambers have included cases hallucinated by generative AI. One of the two judges specifically said that a legal intern (i.e., a current law student working in his chambers) used ChatGPT "without authorization, without disclosure, and contrary to not only chambers policy but also the relevant law school policy."

A judge is ultimately responsible for anything that goes out from their chambers, and I don't want to be misread into thinking that the judges here shouldn't be held responsible for this egregious failure. But certainly the intern who used generative AI has to be held responsible too -- a supervisor's failure to oversee and catch an abuse like this is serious, but the person who actually did the thing remains the primary wrongdoer. And so I'm curious what people's intuitions are regarding what the sanction on the intern should be.

For me, I admit, my instincts here are extremely punitive -- punitive to an extent that's surprising myself. I'm normally a pretty tolerant guy, recognizing that people make mistakes, and that we should give wrongdoers (where they take responsibility and otherwise demonstrate a credible willingness to change course) the opportunity to grow and move forward.

Yet in this case -- boy howdy. My gut instinct thoughts were, right off the bat, that of course they get fired, immediately, from the internship, and get zero credit for it. But it didn't stop there. Should they also be expelled? I'd consider it. Should they be admitted to the bar if they do graduate? I'm not sure they should be. To be blunt, I kind of think this person's legal career should be over, period, full stop, after this.

Part of my reflected rage here is that the person who uses generative AI in this way isn't just hurting themselves, they're wrecking the reputation of someone else -- the judge, someone who gave them a rare and privileged opportunity by having them work in their chambers. How dare they? Nobody will know or remember who this intern is. But the damage to the judge's reputation will follow them forever. 

And the degree to which this falls upon the head of the judge, who trusted them and gave them this opportunity, doesn't really have a parallel in other domains of law. Even in the case of an attorney whose GenAI misconduct leads to sanctions that cripple their client's case, at least the client might be able to sue for malpractice. There's nothing the judge can do to recover from the intern.

I also fail to see any serious excuse or mitigation. I flatly do not believe any law student today does not know of the risk of AI hallucination, and in any event there was in this case a clear policy against AI use that the intern apparently flouted. Were they overworked? Did they panic? Well, what's going to happen the next time they're overworked and panicked? How can anyone trust them again? How can anyone imagine handing over a client to them?

One of my stalwart beliefs about legal education, and why it must be rigorous and hold to high standards even where it's hard or stressful or puts a heavy load on students, is that bad lawyering destroys lives. Law being one's dream or passion or family expectation or ticket to financial stability is not as important as good representation of client interests, and someone who can't be relied upon to provide that should not be a lawyer, period.

But again, I'm surprised at how strong I'm feeling about this. So I invite comments that walk me off the ledge (or which vindicate my instincts).

The Columbia-Boycotting Judges Should Recuse from Columbia-Related Cases

A Seventh Circuit panel has dismissed a judicial ethics complaint levied against one of the judges who announced a boycott of Columbia University graduates in his clerkship hiring.

This was, I think, the correct decision, and I have no substantive quarrel with the panel's analysis. Moreover, the complainant, who "is serving a sentence in a state prison after a jury found him guilty of arson, terrorism, and other crimes stemming from his role in firebombing and vandalizing Jewish houses of worship" and who loaded up his complaints with spurious conspiracies of foreign influence and control, is hardly the ideal party to raise concerns about judicial behavior in this context.

That said, while I agree that there is no ethics violation to be found in the Columbia boycott, I do think that the signatories to the boycott letter are obligated to recuse themselves from any Columbia-related cases -- including cases where a party is represented by a Columbia attorney who matriculated in the targeted time period. An academic boycott of this sort necessarily signals bias against persons under the umbrella of the targeted institution, and both the university and its graduates can fairly wonder if they will be treated fairly in the courtroom of a judge who participates in this boycott.

To understand why, it's important to be clear about what a boycott is. One point that is often emphasized in this conversation is that judges have extremely wide latitude in deciding who their clerks will be and on what criteria they will be selected. For example, the panel here wrote:

Except to the extent prohibited by these regulations and guidelines, judges have wide discretion to establish their own screening and selection criteria in appointing law clerks. This latitude permits judges to make distinctions among applicants based on their own determinations of the relevant criteria or qualifications, including where the applicants were educated. Some judges only hire graduates of certain law schools. Some tailor their preferences to the specific needs of their court or chambers—for example, by looking for candidates from law schools with excellent writing or trial advocacy programs or strong core curricula in relevant subject areas. Relatedly, some judges only consider candidates with a GPA in the top 10 or 20 percent of their law-school class (or some other academic cutoff). Some require membership in the law review or moot court team. Others prioritize candidates from law schools in their state or circuit.

This is quite right. But then they continue to say that "[i]n the same way, a judge may refuse to hire law clerks from a law school or university that has, in the judge’s view, failed to foster important aspects of higher education like civility in discourse, respect for freedom of speech, and viewpoint nondiscrimination."

I don't think these are the same. And one hint that they're not the same is that you would never hear any of the examples cited in the first paragraph described as a "boycott". A judge who will only hire (or more likely, strongly prefers to hire) applicants for law schools in their state would not characterize herself as "boycotting" the other 49 states. A judge who only hires students in the top 20% of their class would not say he is "boycotting" the bottom 80%. A "boycott" by its nature is different from the ordinary and normal processes of selection that judges (and all of us) do on a daily basis. And -- more to the point -- one calls what one is doing a "boycott" precisely in order to draw that distinction and to signal that one is departing from the normal and unremarkable exercise of discretionary selection.

Consider another example: there are many restaurants in Portland. In deciding where I go to eat, there is a wide range of screening and selection criteria I might use, from taste to price to convenience. Even with those criteria, the vast majority of restaurants I never have and never will eat at -- but nobody would say I am "boycotting" them. In other cases I have eaten at them, but decided that (for example) the food was bad and so will not return. Again, under ordinary usage nobody would call that a "boycott". 

If I announced I was boycotting a given restaurant, the ordinary listener would understand that I am doing something different than identifying the place as among the many, many restaurants I don't eat at for "normal" reasons. A boycott, rather, is a decision to not patronize or transact with a given establishment, based on reasons that lie outside the normal evaluative criteria one typically uses to select a restaurant and in order to effectuate some change in behavior that also lies outside the normal bases one uses to select where to dine (one might say, with respect to the restaurants I no longer visit because the food is bad, that my non-patronage is an attempt to "pressure" them to improve their menus and I won't return until my demands are met, but this would again be highly idiosyncratic usage). The expressive meaning of a boycott -- what makes it a boycott as opposed to an unremarkable decision not to patronize -- is a declaration that "I will not transact with you even if you do meet the criteria I normally use."

This highlights another feature of boycotts: by their nature and by design, they stand in opposition to individualized consideration of a candidate on his or her merits. Return to the law school example. Contra the above paragraph, I actually think it is quite rare for a judge to have a flat rule -- as opposed to a strong preference -- to only hire clerks from a certain state or with a certain GPA or possessing a certain academic background (the repeated use of language like "preferences" and "prioritizes" is again a hint here). They would not reject on principle an oddball candidate who doesn't meet one of the normal screens but for whatever reason still stands out to the judge as extraordinary. Now, it may be that, given the surplus of qualified candidates, in practice no such "oddballs" ever emerge; there are always enough candidates who fill the normal criteria and are also deemed extraordinary. But again, the point of a boycott is precisely that it entails refusing, in advance and without exception, to even consider the applicant no matter what their merits might be. One refuses to dine at the boycotted restaurant no matter how tasty one of its dishes may be. One refuses to hire from the boycotted school no matter how superb one of its graduates may be.

And this is where the issue of bias does creep in. The putative justification for the blanket boycott of Columbia is that the university is so suffused in antisemitism and broader censorialism that all of its graduates are indelibly tainted -- so much so that the judges are outright refusing to engage in any individualized consideration or assessment of any members of the community. I've observed before and I'll observe again that not only are the nominal victims here -- Columbia's Jews and/or conservatives --covered by the boycott, they are in fact its most likely targets (those harassing Jews on campus were not likely to be applying to the judges in question in the first place). Assessed as individuals, it would be weird to impute the sins of Columbia writ large onto their heads. But the entire point of the boycott is that substitutes collectivist grievance for individualized consideration:

[T]he point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho [or other signatories to the boycott letter] declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

I recognize, of course, that at some level there is no such thing as truly "individualized" consideration and there is inevitable mushiness around terms like "normal evaluative criteria" (I recognize that; I wish the courts understood it better in the context of affirmative action). But my position is that the very invocation of the term "boycott" is a declaration and a concession to that point: one says one is boycotting because one wants to express that you're not just doing the ordinary work of meritocratic selection. 

To put it starkly: the core, distilled message the signatories of the Columbia boycott are sending vis-a-vis Columbia students is "because of your association with Columbia, we will not assess you as individuals or on your merits. Your association is enough to render you irrebuttably tainted in our eyes." 

Given that, could an attorney who matriculated at Columbia in the relevant time period feel confident that one of these judges would abide by their judicial duty -- will assess their arguments, behavior, and comportment based on their individual performance and "on their merits"? I don't think they can have that confidence, and I think those fears are reasonable.

None of this constitutes an ethics violation -- a judge does not commit an ethics violation simply by engaging in conduct which would, given the right parties or circumstances, compel a recusal. But I do think that any judge who announces an academic boycott of a given law school, in circumstances where that necessarily entails an announced refusal to judge that school's community members as individuals and on their individual merits, can reasonably have their impartiality questioned when later asked to assess the merits and demerits of that school or its graduates.

(There's one other element of the boycott that I haven't heard talked about much: the extent to whether it crosses over from permitted "jawboning" to impermissible government efforts to censor speech. The boycott imposes official sanctions on Columbia unless it makes various alterations to its school speech and disciplinary policies to the satisfaction of the boycotting judges. Obviously, Columbia has no First Amendment right to, for example, violate Title VI. But while it can, as a private university, suppress antisemitic speech, it is not obligated to; and the government cannot compel it to. Less obviously, but perhaps more importantly, as a private university Columbia is not required to abide by any commitment to viewpoint neutrality or "evenhanded" treatment of different types of protesters. While I doubt Columbia would concede the premise that it does engage in any sort of biased behavior -- and my recollection is that the letter was in fact purely speculative on this point -- the point is that Columbia's choices as to what views it does or does not favor are an exercise of its free speech and associational rights, and official efforts to punish the university for expressing itself incorrectly seem to raise significant First Amendment problems).

Republicans Against Democracy, Parts 53258 and 53259

Today, a North Carolina appellate court issued a decision that would effectively steal a tightly contested State Supreme Court race won by Democratic incumbent Allison Riggs, retroactively invalidating thousands of ballots that the state board of elections deemed lawfully cast. The court gave some of the voters in question fifteen days to "cure" alleged defects, but few believe that the pell-mell scramble the decision has unleashed will enable all the voters in question to avoid being disenfranchised. In other cases, the court peremptorily declared that an entire class of voters that long been permitted to vote in North Carolina elections must be excluded after the fact. The decision is norm-shattering in retroactively -- after the election has occurred and ballots have already been cast -- deciding that certain votes by eligible voters will not be counted.

Because the race was so close and most of the challenged ballots are from Democrat-heavy constituencies, most observers believe the ruling will be enough to allow the losing Republican candidate to prevail by ex post facto judicial fiat. The decision will be appealed to the North Carolina supreme court (which has a Republican majority even without Riggs recusing, which she will); there is also a federal court case that is sitting in abeyance while the state challenges work their course.

Meanwhile, down in Texas, Republican Governor Greg Abbott is refusing to call a special election to fill the seat of deceased Houston-area Rep. Sylvester Turner (D). Abbott nominally justifies the delay on alleged "failures" in how Harris County administers elections; claims that county election officials have dismissed as "nonsense". The actual reason, nobody has any serious doubt, is to keep a Democratic seat empty and prop up the GOP's razor-thin House majority. Can't elect a Democrat if you don't hold an election in the first place!

Both of these atrocities are united by a common theme, which is that Republicans fundamentally do not believe in democratic elections (January 6 was proof enough of that; the pardons of the insurrectionists just gilds the lily). And I fully endorse Scott Lemieux's point that these decisions lie downstream of the Supreme Court's abominable Rucho decision: once you validate contempt for the democratic process in the form of extreme partisan gerrymanders, you encourage further contempt in all sorts of other domains.

Justice Jackson on "Giving Up" in the Face of Tyranny

When I teach the Steel Seizure Case, the Supreme Court's seminal decision on domestic executive power during wartime, I tell my students that while Justice Black may have written the lead opinion, it's Justice Jackson's concurrence that they really need to study. I also tell them that while being a Supreme Court Justice is more than enough to earn one's Wikipedia page, Justice Jackson has another entry in the annals of history: lead prosecutor during the Nuremberg War Crimes trials following World War II. It was evident, I say, that Justice Jackson had this experience in mind when considering the question of permitting runaway executive power justified on the basis of a wartime "emergency."

With that background in place, I draw my students' attention to how Justice Jackson concludes his opinion; in particular, his recognition of the potential futility of the judicial branch trying to stand alone against a truly unbounded executive claiming emergency powers, and why that potential failure should not license judges to simply accept the ascendance of a tyrant:

I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems.... We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no man's leave, underneath the law"—to be governed by those impersonal forces which we call law.... The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

The other day, J. Michael Luttig -- former Fourth Circuit Judge and conservative darling turned sharp Trump critic -- published an essay in the New York Times insisting that Trump's war on the judiciary "won't end well for Trump." To this, Josh Blackman unsurprisingly argued the opposite, suggesting it is the courts that will lose this battle and that they should bend the knee to Trump and spare themselves the inevitable humiliation.

For my part, I don't know who will win this showdown (if a showdown there is to be). History does not inspire unalloyed confidence in either direction. 

But I do know that the courts must not surrender in advance.

Justice Jackson was right: it may be that the institutions that undergird our democratic experiment are destined to pass away. But the courts must be the last, not the first, to give them up.

Judge Ho's Politics of Collectivist Grievance

Last week, the Fifth Circuit refused to rehear en banc its bombshell ruling that states are, in most circumstances, forbidden from counting ballots that are submitted before election day but received after election day -- even where the practice is expressly authorized by state law. Permitting ballots postmarked by election day, but received sometime afterwards, is a common practice in many states across the country, and Congress has said nothing on the subject. But the Fifth Circuit -- channeling the recent partisan right attacks on mail-in voting nationwide -- decided that congressional silence demanded prohibition of this longstanding electoral practice.

I'm not going to write on the substantive question of this case though (Election Law Blog collects coverage here). Rather, I want to flag Judge Ho's two-page concurring 4chan post opinion, where he takes aim at his dissenting colleague Judge Higginson for noting the powerful critique of the panel decision by a "topflight" lawyer unaffiliated with the parties and who urged that it be addressed by the court.

Judge Ho is unimpressed. He says that this attorney's intervention doesn't offer any useful information to the court -- indeed, he doesn't address it at all. Rather, it "may just reflect the institutional bias at many of the nation’s largest law firms."

At one level, given the timing of this opinion, it is hard not to see Judge Ho's attack on national law firms as intentionally aligning itself with the Trump administration's crackdown on these same firms (also putatively because of their "bias" towards liberal causes). One major clue that is Ho's angle is a gratuitous shot he takes at BigLaw DEI practices, which has nothing to do with either the case at hand or law firms' alleged preference for liberal causes in their pro bono case selection, but of course looms large in Trump's own assault on the American legal citadel.

But it also is reflective of a broader pattern in Judge Ho's judicial temperament (or lack thereof) -- a pattern of grievance where, upon identifying broad classes of enemy groups, he defiantly abandons any pretense of judging individuals as individuals or on their individual merits.

Judge Ho's jeremiad in this opinion is against the practices of law firms. As a class, Ho alleges, these firms exhibit "institutional bias", these firms "are falling short of 'the great traditions of the profession,'", the firms "have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases that they’re willing to take on," and consequently the firms should not "be surprised when others take notice that they are no longer abiding by the principles of the profession, and react accordingly."

All of these attacks on large law firms elides the fact that Judge Higginson did not ever appeal to, or even mention, the august reputation of large law firms. He rather flagged the critique of one particular "topflight" lawyer -- Adam Unikowsky. Unikowsky is indeed a partner at the BigLaw firm Jenner & Block, he also as it happens is a former clerk for Justice Scalia. I don't know what types of cases either he or Jenner more broadly typically takes on pro bono. I do know in this case he made a highly-publicized critique of the panel decision, one that many legal observers found compelling, on an issue he otherwise had no connection to. But note that the whole point of Ho's fusillade against what law firms, as a collective, are allegedly doing is to justify his peremptory refusal to even entertain the substantive arguments made by Unikowsky, as an individual. He is lumped into this broad bloc of "large law firms", and from there he can be summarily dismissed as doing what "they" do: "motivated lawyering designed to reach a predetermined result." And here -- well before any engagement with Unikowsky's actual arguments, solely on basis of collective associations -- the thinking ends.

This is not novel behavior by Judge Ho. Ho has been a leading figure promoting academic boycotts of both Yale and Columbia Law Schools, refusing to hire as clerks graduates from either institution on the grounds that both universities allegedly discriminate against conservatives (for Columbia, he also cited alleged antisemitism). Here, too, the point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

The MAGA right pretends (though less and less often) that its objection to "DEI" is that it fails to respect people as individuals or judge them on their individual merits. In reality, there are few more avid practitioners of anti-meritocratic politics than contemporary conservatives, for whom everything is filtered through a lens of identity and grievance. And that's all the more reason to state clearly what has become obvious: Judge Ho's politics (and he is nothing if not a political judge) are fundamentally collectivist in nature. He is constantly looking for excuses to refuse to evaluate individuals as individuals if they belong to the wrong group. The only thing that matters to him is whether you fall in the friend or the enemy camp. For the former, everything; for the latter, the law(lessness).

Here, too, every accusation is a confession. When it comes to group-based grievance politics that deny Americans' right to be judged based on the content of their character, there are few more flagrant abusers that Judge James Ho.

Roberts to Trump: The Bottle is in the Warmer

It's taken less than two months for Donald Trump to start demanding impeachments of judges who issue rulings he doesn't like. This remarkably fast turnaround prompted Chief Justice Roberts to rebuke the president, stating that the proper mechanism for expressing disagreement with a lower court decision is an appeal, not an impeachment threat.

People are reading Roberts' statement as him recognizing Trump's increasingly lawless posturing and pushing back (albeit in a sort of "Dr. Frankenstein realizes his monster is a problem" sort of way). I must confess, I read it more like me trying to calm my screaming baby while his bottle is in the warmer: "If you could just wait five minutes I promise I'll give you what you want."

I guess we'll see who's right.

Falling on the Reputational Grenade, Part II

The other day, I had the thought that, sometime in the next four years, we will likely see the first legal filing by a government lawyer that will include some AI-hallucinated citations. Leaving aside that this is already happening with private firms (including sizeable ones) and so it only seems a matter of time, we also are entering the realm of overconfident and underqualified tech bros ransacking their way through Washington. AI-generated legal briefs are exactly the sort of "optimization" I can imagine Musk and his DOGE youth pushing out onto the bureaucracy, with predictably farcical results.

Generally, courts have responded rather mercilessly to lawyers who've submitted AI-generated hallucinated cases. Their reputations are ruined, and the underlying case is permanently discredited. And that thought got me thinking -- what would happen if an enterprising government lawyer decided to sabotage their own case by deliberately inserting AI-hallucinations into it?

Imagine the birthright citizenship case -- already viewed as a legal non-starter, with the usual conservative guns-for-hire flailing about trying and failing to whip up an even halfway plausible mechanism for circumventing the constitution's clear text and history. In court, the DOJ files a brief citing some late 19th century caselaw that seems to endorse a narrower view of the citizenship clause than currently prevails ... but it turns out that the citations are all made up.

Such a move would detonate the Department's credibility. As a form of internal sabotage, it would be devastatingly effective -- but (in here's the rub) only if the public didn't know it was sabotage. If the ruse was revealed, the plan doesn't work (having one's own attorney deliberately sabotage your case is not the sort of thing held against the client). But if the public remains unaware, the attorney who made the "mistake" would have committed career suicide twice over -- first, in putting his name on a defense of whatever neo-fascist Trump policy is before the court, and then second being a public laughingstock by "defending" it via inept use of generative AI.

During the first Trump administration, I wrote about actors who were knowingly wrecking their reputation by working in the Oval Office on the (probably correct) theory that if they didn't do it, someone worse would. They knew that history would view them as a villain, and accepted that judgment in order to avert greater evil. The above example is a perhaps even more extreme case -- a sort of reputational suicide bomber. The attorney would sabotage some great evil, but at the cost of everyone for all time thinking of him as Trump's most incompetent lickspittle.

We saw recently a longtime DOJ attorney, Ed Sullivan, agree to file a motion to dismiss the Eric Adams indictment, reportedly to avert a complete and total purge of the Public Integrity Unit by one of Trump's cronies. The order to dismiss the Adams case had already led to widespread resignations over what was transparent quid-pro-quo corruption -- trading non-prosecution in exchange for Adams' cooperation in enforcing Trumpist immigration policies. Sullivan reportedly agreed to fall on the grenade so as to spare his colleagues; this has in turn generated a roaring debate over whether Sullivan was right to do so or should have forced Trump's lackey to fully reenact the Saturday Night Massacre. I don't here make any judgment on which side of that debate got things right. But we're going to see more difficult questions as those on the inside consider how to resist abuse and forestall catastrophe. And while we like to imagine that the "right" choice at least comes with the perk of being viewed heroically, the more interesting choices may be ones where it is precisely one's reputation that must be sacrificed in order to truly avert the greatest evil.

A Lawsuit is Not a Press Release

If I were a judge, I think I'd be a lot more sanctions-happy than most judges.

Bad legal arguments bother me. And more specifically, lawsuits that are filed not because there's an actual colorable legal claim, but as a form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive. Many defamation suits fit this profile (who needs SLAPP when there's Rule 11?), but there are others. And too often I see people cheer these suits (at least when they fit the right ideological profile), and I hate to see it -- these lawsuits serve no purpose other than to allow gloryhounds to chest-thump their virtue while wasting time and resources, not just of the judiciary, but of the very social movement they claim to be advocating for.

One example is the "class action" lawsuit recently filed against two Bay Area Democratic Representatives claiming that their votes in favor of aid to Israel caused emotional distress to constituents who believe that Israel's conduct in the Gaza war constitutes a genocide. As a matter of law, the suit is patently frivolous -- it is obviously foreclosed by the Speech and Debate Clause, and a moment's reflection should make anyone with half a brain recognize that enabling disappointed constituents to sue their representatives for their congressional votes is a capital-B Bad Idea. The suit has no chance of succeeding and serves no purpose other than to generate headlines, and that is not the purpose of the judiciary. I don't know if the named plaintiffs are willing participants in the charade or are genuinely deluded into thinking there is valid legal claim here, but if it's the latter, then they're being exploited in a terribly grotesque fashion. Either way, I hope the lawyers who filed it are sanctioned.

But lest anyone get too smug, this is not a sin with any particular ideological proclivity. A federal court in the Eastern District of Pennsylvania just dismissed a lawsuit filed against Haverford College alleging a hostile environment against Jews on campus. The dismissal was based on the fact that the pleadings were, in so many words, a sustained rant rather than an attempt to communicate a cohesive legal complaint.

At this stage, a court would typically review the relevant facts. I cannot cogently do so here due to the sprawling and disorganized character of Plaintiffs' Amended Complaint, which appears to detail every frustration and disagreement of Jewish students and faculty that has occurred at Haverford over the last year. It spills pages of ink on lengthy frolics about events on other college campuses and about ideological debates. Rather than isolating instances of harassment and logically relating them to the elements of a hostile environment claim, Plaintiffs set forth a running list of grievances that reads more as an opinion editorial than it does a legal complaint.

I am familiar with this sort of "legal" writing, and I am glad to see a judge call it for what it is. It's written by lawyers who forget that their job is to craft a legal complaint and instead view the courts as a suitably august forum for airing every point of grievance and riding every ideological hobbyhorse they've ever encountered. In some ways, the Haverford case is worse than that Bay Area one, because in the former the judge agreed that some of the allegations might have presented cognizable claims under Title VI but couldn't move forward on them because they were buried inside such an amalgam of irrelevant ranting that they failed to present an actionable complaint. The (potentially) valid grievances of the Jewish plaintiffs at Haverford were, in effect, sacrificed so that their lawyers could play soapbox orator. They treated the lawsuit as one big press release, and everybody -- their clients included -- is worse for it.

The lawyers suing Haverford aren't stupid, at least in the traditional sense (they attended Harvard and U. Chicago Law).* But they decided that this issue was too important for them to act as lawyers, and instead decided to act as demagogues. That's despicable. It's an abuse of the judicial process, it's unfair to Haverford College, and it disserves the Jewish community they nominally purport to defend.

* They literally just took down the link to the bios of all their attorneys,

Losing Your Chevrons

Somewhere, an environmentalist wished upon a star: "I hate big oil. It's a blight on the universe. If only Chevron would disappear forever!" and a monkey's paw curled once.

I was steeling myself to write about Loper Bright and my official welcome on behalf of the Con Law professoriate to the Admin Law professors joining the "burn all your lecture notes and start from scratch club", and then Trump v. United States came down. Even though the latter is a more immediate big deal and is closer to my expertise wheelhouse (I've fielded far more inquiries from former students asking "what is going on!" with respect to the Trump decision than any ruling in my entire career, Dobbs included), I really don't have all that much to say at this moment. That may change -- in fact, it almost certainly will, as I try to work this blog post into an essay -- but for now I'm going to lay off and just write what I planned to write about the demise of Chevron.

My short version take is this: in many, many cases, we'll see little difference between before and after. This prediction, however, should not be confused with sanguinity. Rather, it is a recognition that judges are human, with the normal assortment of human interests, talents, and vices. 

In most deep-weeds administrative law cases, where judges neither know nor care about the difference between, say, nitrogen oxide and nitrous oxide, they aren't going to actually do a deep dive review of the law from scratch. These issues are hard enough for a team of subject-matter experts with Ph.Ds in the hard sciences grinding away for months. For a judge with a J.D. from Hofstra who last took a statistics class in 11th grade? Forget about it. In practice, no matter what the doctrine purports to demand or what they claim to be doing on the opinion pages, judges will end up deferring to reasonable agency interpretations of the law unless they're howlingly off-base -- which, of course, is why we ended up with Chevron in the first place. Any objective observer of courts sees this sort of thing from judges all the time -- there are all sorts of cases where nominal "de novo" review is the furthest thing from, because judges simply find the topic boring, repetitive, or impenetrable (you can usually spot these cases by their use of the phrase "after careful review ....").

This will be what happens for many if not most cases on obscure rules in unremarkable issue areas. What will change is in those administrative rules on hot button issues of high-salience. Here, Loper Bright doesn't make judges any smarter, but does give them a green light to start substituting their judgment for expert agencies who at least have some measure of accountability to the political process. In other words, Loper Bright won't universally result in the substitution of inexpert judicial policymaking for the judgments of administrative agencies; rather, it will result in that substitution on an ad hoc and arbitrary basis whenever the judge who happens to be draw the case has an idiosyncratic or ideological hobbyhorse to ride. The administrative state will be able to carry on, with a cutaway for partisan judges to meddle more openly whenever partisan proclivities instigate an urge.

So there's your consolation about the end of Chevron. Feeling better? I thought so.

Birthday Month Roundup

It's February, which is Black History Month, or as it's better known around some parts, "Why Isn't There a White History Month" Month. It's also my birthday month! To celebrate the august occasion, here's a roundup!

* * *

The Biden administration announces sanctions against named Israelis implicated in radical settler violence. And while it starts with four people, it lays the foundation for much more sweeping action. People say Tom Friedman is the Biden administration's external "whisper", but maybe he's listening to me?

Speaking of Friedman, I'd love it if his proposed "Biden doctrine" became a reality. It might be wishcasting, but then, it might not (see, e.g., the above entry).

A very interesting conversation between Joshua Leifer and some Israeli leftists, including Standing Together's Sally Abed (and credit where it's due on the hat tip). I particularly appreciate Abed completing a circle that often is left unconnected: "Palestinian liberation necessitates Jewish safety, and vice versa. And I say it to both sides. You’re pro-Israel? You need to liberate Palestinians. You’re pro-Palestinian? You need to talk about Jewish safety." As another conversant observed, it's very obvious "that Hamas went for everyone—that they weren’t just trying to kill Jews," and that acknowledgment is part of -- not a distraction from -- their calls for a ceasefire.

And speaking of Standing Together, the BDS movement is currently targeting them for a boycott as a "normalizing" op. For the most part, this smacks of jealousy -- Standing Together has been getting a bunch of good press as the first significant Israeli organization actively calling for a ceasefire in Gaza (while also stressing the importance of returning Israeli hostages), and if there's one thing BDS activists cannot abide, it's the notion that Israelis are valid contributors to the creation of a just future for Israelis and Palestinians. In my endless search for silver linings, however, I will say that probably the fastest way for Standing Together to gain credibility with more centrist-y Israeli and diaspora Jews is to be publicly hated by BDS. Great heroes need great villains, after all.

I'm on the record as supporting the right and utility of judges offering their extra-legal "moral" opinion on issues that come before them, so long as this opinion does not displace the formal legal analysis. Opinions like, say, Justice Stewart's in Griswold, which both characterized Connecticut's anti-contraception law as "uncommonly silly" (a moral judgment) while nonetheless concluding it was constitutionally permitted (a legal judgment) are valuable contributors to public conversation. On that note, Judge Jeffrey White's just-released opinion dismissing on political question grounds a claim that the Biden administration's support for Israel is violating its duties under the Genocide Convention (a ruling which is I think indisputably correct on the law), while also making evident his personal sympathy with the plaintiff's substantive arguments, is -- regardless of whether one agrees with said moral judgment -- exactly how opinions like this should go. Some judges on the Northern District of Texas would do well to take notes. (For what it's worth, Judge White is a George W. Bush appointee and now a senior judge in the Northern District of California).

Oregon Republicans in the state legislature have a tendency of just refusing to show up to work to sabotage our state's legislative agenda. Oregon voters got tired of it and passed a constitutional amendment barring legislators from running for reelection if they miss too many session. Oregon Republicans kept doing it. And now those Oregon Republicans are barred from running for reelection.

The Sunset of Women's Rights

Going off my post from yesterday, I'm quoted in today's Bloomsburg Law article about Judge Ho's wild opinion in the mifepristone case -- particularly his ruminations on the "aesthetic injury" pro-life doctors endure from women being allowed to control their own reproduction.

“I absolutely get and agree with the idea that there is something degrading about treating women as, you know, akin to kind of the natural splendor of a sunset,” David Schraub, an constitutional law professor at Lewis & Clark Law School, said noting the criticism Ho’s argument has gotten on social media.

[....] 

Schraub said Ho is “a standard-bearer for a new generation of conservative jurists” who recognize and believe in the judiciary as a vanguard for right-wing social change. This generation, he said, isn’t afraid to attack in bold language anyone who’s advocating for a more constrained, traditional view of the judicial role.

Ho “likes the bombast and it’s a very, very common feature of the opinions he writes,” Schraub said. 

Not quite sure how I became the mifepristone guy, but here we are. 

Debate Me, You Cowards

The other day, the Wisconsin Supreme Court (two weeks away from Janet Protasiewicz taking her seat on the bench and flipping the court's 4-3 majority) denied a request by the Wisconsin Bar to create a CLE category for DEIA (diversity, equity, inclusion, and access) credit. "DEIA courses would address “the subject of diversity, equity, inclusion, access, or recognition of bias, which includes topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias."

The court's denial, joined by the conservative faction, was a short per curiam opinion. The liberal coalition's dissent was likewise short, focusing on the Court declining to give the matter even a hearing which, under the Court's standard rules, should have been offered assuming the petition had "arguable merit". Since many states have DEI CLE credit akin to what the Bar was proposing in Wisconsin, the petition clearly had at least "arguable merit" and should have gotten a hearing.

(Underneath all of this is the imminent change in the Court's partisan composition. Scheduling a hearing would have pushed the decision back past the point where Judge Protasiewicz will join the court; a factor which no doubt encouraged the majority to try and slam through this lame-duck decision without giving it normal consideration. It also seems highly likely that the new majority will revisit the question in the near future).

However, aside from the short per curiam, and the short dissent, there was a very not-short concurrence from Justice Rebecca Grassl Bradley* (last seen engaging in election-denierism while comparing the use of ballot drop boxes to North Korean autocracy). The concurrence is little more than a Townhall-style rant against the dangers of diversity initiatives. It is replete with bitter buzzwords more commonly found in the recesses of social media: claiming that the "very point of mandating DEIA CLE would be to create a 'goose-stepping brigade[]' of attorneys," accusing the Bar of trying to "virtue signal," and railing against "the predictable and petty slanders of the cancel culture crowd." She even contorts the unanimous support of the Wisconsin Bar for this initiative as illustrative of a "grave illness in our society" that can only be explained by the way DEI supporters "demoniz[e] dissenters."

There's more in that vein, all bolstered by a bevy of citations to a range of right-wing shock jocks. But I don't want to parse Justice Bradley's concurrence. Rather, I want to flag how the dissent addresses it -- or rather, quite consciously declined to address it -- in its concluding footnote:

I choose not to respond to the substance of the concurrence, which is hostile, divisive, and disrespectful. This political rhetoric has no place in an order of the court. We should instead engage earnestly with opposing perspectives by granting a hearing on the petition, which is what our ordinary process requires.

Perfectly appropriate under the circumstances. Not only was Justice Bradley's concurrence not worth the dissent's time, it's not germane to the dissent's point; namely, that if these debates are to be had, they should occur through the normal process of granting a hearing and engaging earnestly with the various perspectives on the issue.

And that mature response by the dissent caused an already rage-filled Justice Bradley to truly go ballistic:

Proving well that many proponents of DEIA orthodoxy demonize its critics, the dissenting justices "choose not to respond" to this concurrence, instead dismissing it with a headline-grabbing caricature as "hostile, divisive, and disrespectful" "political rhetoric[.]" Dissent, ¶46 n.4. This concurrence cites more than a dozen United States Supreme Court decisions, multiple state supreme court decisions, Frederick Douglass, Martin Luther King Jr., Thurgood Marshall, Clarence Thomas, James Madison, Montesquieu, and at least an additional dozen legal scholars, authors, and professors. Of course, the real reason for the dissenters' refusal to engage with the substance of an opinion spanning more than 30 pages is the imminent change in court membership. The new majority will reverse this court's order at its first opportunity.

The dissenters borrow a rhetorical tactic from the modern political sphere increasingly employed by justices of this court in lieu of legal argument. See, e.g., Jane Doe 4 v. Madison Metro. Sch. Dist., Nos. 2022AP2042, 2023AP305 & 2023AP306, unpublished order, at 3 n.1 (Wis. May 19 2023, amended June 14, 2023) (Hagedorn, J., concurring) ("I also do not respond to this supplemental writing because of its abandonment of basic judicial decorum."). When lawyers decline to respond to legal arguments advanced in a case, the court considers the point conceded.

If ever there was a time for applying "I'm not mad" to a legal opinion, this is it. Note, incidentally, the final shot at Justice Hagedorn, who is actually a member of the Court's conservative faction but has generally refrained from joining the more fever-like portions of the Court's analysis (he didn't join Bradley's concurrence, for instance, though he joined the majority here). As is so often the case, the most immediate targets of conservative legal grievance posturing in defense of "ideological diversity" are other conservatives who don't want to engage in conservative legal grievance posturing.

In any event, it's tough to imagine a better example of conservative legal grievance culture than writing a 30-page 4chan post accusing the other side of being dishonest, virtue-signaling goose-steppers and then stomping your feet with "debate me, cowards!" (and accusing them of "demonization") when your colleagues don't deign to jump in the mud pit with you.

As I've written before, the Wisconsin Supreme Court has been a national embarrassment for years, and Justice Bradley certainly has played a large role in that. One can only hope that the new majority will restore some desperately-needed sanity and decorum to the circus-show.

* There are actually two Justice Bradley's on the Court -- Rebecca Grassl Bradley, who is among the conservatives, and Ann Walsh Bradley, who is one of the liberals. The latter Justice Bradley joined, but did not write, the liberal dissent, so throughout this post all references to "Justice Bradley" refer to Rebecca Grassl Bradley.

Wisconsin is a Failed State

Folks are cackling at a line-item veto Gov. Tony Evers (D-WI) made which took a one-year increase to the school budget and, though some clever deletions, turned it into a four-hundred year increase. The veto goes "for the 2023-24 school year and the 2024-25 school year, add $325." The new version reads: "for 2023-2425, add $325."

Obviously, this is hilarious and, as trolling goes, it's trolling for good. And there's nothing new about this in Wisconsin either -- when I teach about the line-item veto, I show an example from former Wisconsin Gov. Tommy Thompson, who similarly vetoed individual bits and bobs from an enacted law to create a brand new spending program where none previously existed.

But still, it's fair to say that this is not how a functioning government should proceed.

Meanwhile, Wisconsin Republicans have blocked a proposal to require schoolchildren be vaccinated against meningitis. It's become increasingly clear that the anti-vaxx takeover of the GOP no longer has anything to do with COVID, and has become a general opposition to public health initiatives of all stripes. While this isn't Wisconsin specific, it is another instance of the state's ludicrously-gerrymandered legislature drinking fully and deeply of the waters of the death cult.

Finally, I'd be remiss if I didn't talk about the chaos that has afflicted the Wisconsin Supreme Court in recent years. Of course, we all remember when one justice on that august court tried to choke out his esteemed colleague. More recently, members of that Court have repeatedly flirted with 2020 election denialism. One former member compared affirmative action to slavery. And while it may be the single funniest thing I've ever witnessed, having the Court's liberal faction celebrate the victory of a progressive challenger by marching into a watch party room to "it's bad bitch o'clock" also probably isn't exactly the sign of a perfectly healthy judicial body.

So yeah, Wisconsin isn't in great shape. Maybe folks should try Minnesota instead?

Keeping Perspective on July 4th

As you may have seen, a federal judge in Louisiana has issued a sweeping injunction prohibiting all manner of communications between the Biden administration and social media companies which seek to tamp down on misinformation and conspiracies. In the first paragraph of a sprawling opinion, Judge Terry Doughty, a Trump appointee with a history of indulging the most extreme right-wing Republican theories, characterized the allegations as "arguably involv[ing] the most massive attack against free speech in United States' history."

Since it is the Fourth of July, I feel compelled to observe that we used to have in this nation laws which prohibited teaching Black people how to read. These prohibitions existed side-by-side with laws forbidding anti-slavery advocacy. I daresay that such laws represent a more "massive" assault on free speech than government efforts to convince social media outlets not to promote dangerous misinformation in the heart of a deadly pandemic (or, for that matter, seeking to persuade media outlets not to publish classified material they come to possess -- notwithstanding their clear First Amendment right to do so under the Pentagon Papers precedent. Which is to say, government tries to convince media actors not to publish things all the time, and absent actual coercion it is of no First Amendment concern).

The little King Georges who now dot the federal judiciary would do well to learn a little history (if such history can still lawfully be taught in Louisiana) and keep a sense of perspective.

Loose Cannon

Judge Aileen Cannon has been assigned to oversee the criminal prosecution of Donald Trump.

I've seen enough high-profile political cases to be familiar with a very specific script that gets written about the judge assigned to the case. Pretty much without fail, you'll get a passage that reads something like the following:

Judge Smith is a veteran judge who ascended to the bench after fifteen years in the U.S. Attorney's office. He has a reputation for being no-nonsense and demanding a tight ship at trial that includes rigorous questioning of attorneys on both sides.

"He doesn't tolerate a lot of guff," said one attorney who had practiced before him for many years. "You won't agree with all of his rulings, but he's universally respected."

This template is so common I've begun to wonder if it's reflex (not every judge can be "no-nonsense"!). Which makes it all the more striking that nobody -- nobody -- is writing lines like this about Judge Cannon. They weren't writing them even before she went 100% YOLO in trying to block the Mar-a-Lago investigation; they certainly aren't writing them now.

Since the news broke, I heard folks suggest that Cannon was only assigned to the preliminary aspects of the case, which appears untrue. Then I heard other folks assert that Cannon likely will be forced to recuse herself from the case. And honestly, I'm dubious about that too. 

To be clear: Judge Cannon absolutely should recuse. Her conduct in the Mar-a-Lago case suggests that she's so completely in the tank for Trump that there's no possibility that she'll be perceived as impartial. But if she was the sort of person who could be shamed into recusing just because it's the right thing to do, it wouldn't be as much of a problem if she didn't recuse.

The fact is our judicial system is not well-equipped to handle a problem like Cannon. The problem is not that she was nominated by Trump -- two of the three 11th Circuit judges who bench-slapped her Mar-a-Lago catastrophe into oblivion were Trump appointees. The problem is that Cannon, specifically, is a complete hack who's decided that her job as federal judge is to be Donald Trump's offensive line.

For very good reason, our judicial system starts with a healthy presumption of impartiality on the part of its judges. We don't let either party force out a judge just because they don't like their lean. Recusals are easiest to justify when the judge has a direct financial stake in a given controversy, or when they're close personal friends or associates with a party. These sorts of connections give everyone a face-saving option -- the problem isn't actual bias, but the appearance thereof; one could be as pure as driven snow and still agree that it is a sound policy to not preside over a case where your best buddy is being charged with a serious crime.

Unfortunately, other than the fact of her nomination Judge Cannon doesn't have those concrete ties to any party here, which means that there's no hiding the actual issue on the table. Judge Cannon needs to recuse because Judge Cannon is, in relevant respects, incompetent. I say incompetent not to suggest that her mistakes stem from ignorance rather than malice; rather, an important part of Judge Cannon's job is to administer the law fairly and impartially, and she has demonstrated herself to lack competency in that dimension of the judicial role. Hence, she cannot be trusted and is not qualified to preside over a trial like this one, with a defendant for whom she's already shown herself to be incapable of adjudicating impartially.

But once again, if Judge Cannon was the sort of person capable of recognizing that shortcoming, she likely wouldn't have it. There's no clear face-saving out where one can disclaim actual bias but recuse for prudence's sake, and there's no universe in which Judge Cannon agrees "I was so egregiously wrong in the Mar-a-Lago case that one can't help but infer I was biased." Which means it is up to an appellate court to make that determination for her, and needless to say, that's a very awkward proposition which appellate courts are going to be loathe to undertake. 

Appellate courts are not prone to saying "this case must be stripped from this district court judge because this judge is in general too biased to handle it." The closest one sees to that sort of ruling is when a case is stripped from a lower judge after repeated obstinance in refusing to implement appellate orders, and that is exceedingly rare. Even assuming that the Mar-a-Lago reversal should count towards such a showing in the criminal case, the problem with Judge Cannon's ruling there wasn't really that of repeated lower court disobedience of superior court mandates. It instead stands out because of Judge Cannon's absolute, rancid lawlessness. But again, our system is not well-built to account for the possibility that an Article III judge might as a general matter -- not due to financial stakes or personal connections, but purely as a matter of ideology -- be congenitally incapable of ruling in accordance with the law.

It's a similar problem to the situation with those single-division Texas judges. The thing everybody knows and everybody is thinking -- that the problem is that these judges are utterly and completely in the ideological tank such that law simply doesn't matter for them anymore -- can't be uttered out loud, at least not in a formal proceeding. On the outside, everyone knows that's the problem. But in a filing, you can't come out and say "judge, our basis for recusal is that you're a lawless hack." And since that is, at the end of the day, the problem, whatever alternative basis you try to hang your hat on will ultimately be a poor fit that probably won't end up justifying recusal. The structure of Article III life tenure means that placing a hack like Cannon on the federal bench is an irreversible mistake.

So count me skeptical that Judge Cannon will recuse herself, and count me skeptical that any superior court will force her recusal, at least immediately. Unfortunately, the reality is we're likely stuck with Judge Cannon and whatever hijinks she comes up with to justify torpedoing this case -- at least for the foreseeable future.

The Lawlessness is the Point, Part II

The panel of Fifth Circuit judges who will hear the appeal of the bonkers Texas decision that purported to outlaw mifepristone has been announced. Judges Jennifer Walker Elrod, James Ho, and Cory Wilson will hear the case. (In case you're a bit confused: the Supreme Court put the district court decision on hold while the appeals process played out, but did not issue a final ruling; hence why we're still getting a stage before the Fifth Circuit).

From the vantage point of reproductive rights defenders, it's tough to imagine a worse panel draw than this -- and that's saying something, given that there aren't a lot of good panels to be drawn on the Fifth Circuit. But Judges Elrod, Ho, and Wilson are all right-wing reactionaries and anti-abortion extremists who made no pretenses at respecting rule of law in this subject even when Roe still was the law of the land. And without even the presence of a more moderate voice on the panel who could act as a break, we're likely to see a runaway train of ideological one-ups-manship where all three judges push each other to be as aggressive and extreme as possible.

So what will happen here? One possibility is that the panel will accept the signal offered by the Supreme Court in its stay, and reverse the decision (that is, preserve mifepristone's legality). This strikes me as highly unlikely. One enduring quality of the Fifth Circuit in general and these judges in particular is that they do not hesitate to shoot their shot. Their philosophy has consistently been to throw up the most radical, results-oriented conservative fantasy decisions they possibly can, and then dare the Supreme Court to reverse them. Given the composition of the Supreme Court, after all, it's hardly a bad bet. And hey -- you miss 100% of the shots you don't take!

Okay, so "dutifully obeying the law" is probably out. What else? Basically, I think there are two realistic options for what we might see. Possibility one is that the judges try to "write the brief" to the Supreme Court to convince (at least five of) them to ban mifepristone. This could include filing off some of the rougher edges of Judge Kacsmaryk's original opinion, maybe soft-playing some of the more radical insinuations (like with the Comstock Act), purport to address the lower court ruling's disdain for administrative law or standing principles while functionally just replanting it, and basically try to create a fig leaf that, with time and distance, five members of the right-wing supermajority on the Court think  will be large enough to shield the obvious fact that they're imposing their policy preferences and calling it law.

Possibility two is that the judges will not even try to reframe the issues in a way that looks more palatable or reasonable. Forget the fig leaf; they're let it all hang out in naked splendor -- a "eugenics" references here, a twee comparison of President Biden and/or the FDA to King George III there -- and just completely bulldoze any semblance of adherence to the governing legal rules and precedents that govern this case. Wild theories of standing or administrative law review will be asserted with not a care in the world for how they interact with past precedents or the judges' own putatively-held legal principles. The opinion will be a flat "because we can" declaration of unfettered judicial might.

One might think the former choice is more likely. There's a real opportunity here for conservative judges to further shear off the rights of women over their own bodies -- a huge priority for them -- that's more likely to meet with success if they don't let their eyes get bigger than their stomachs. Don't oversell, trim the sails back a bit, and take what would still be a huge W for them (and a huge L for women).

But I think the latter is more probable, and it goes back to the theme I've been hitting on in prior posts: the lawlessness is the point. Critical to the practice of conservative judges in this era is openly asserting and living out the proposition that they are unbound by law. That a given judicial opinion reads as lawless is not a problem, it is a feature; it is a means of demonstrating this freedom from constraint. It is precisely because Judge Kacsmaryk's decision was so universally panned by legal experts that it needs to be affirmed and, if anything, expanded upon -- judges (or at least these judges) assert their power and legitimacy as far as they demonstrate they are not bound by the strictures of professional norms or public commentary. The more one deviates from the professional consensus, the more one demonstrates judicial supremacy. And bizarrely, I don't think being reversed by the Supreme Court really upsets them. What matters, oddly enough, isn't the tangible outcome of the case. What matters is showing that they, personally, have flamboyantly demonstrated how they soar above the mewlings of their lessers.

Judges Elrod, Ho, and Wilson are among the prime instigators of this style of judging on the Fifth Circuit -- jurists completely drunk on their own power, who revel in demonstrating that what was thought to be law will in no way binds them from imposing their will. I predict that their decision in the mifepristone case will be another venue for them to make this point. Yes, it will be lawless. And yes, that's the point.

The Lawlessness is the Point: On Alito and Judicial Illegitimacy

"The Supreme Court," the old saw goes, "is not higher because it is right. It is right solely because it is higher."

The idea behind this aphorism is simple: while practically speaking we must have some actor with buck-stops-here final authority to interpret the law, that the nine justices of the Supreme Court occupy that position in no way suggests that they have some special insight or knowledge about the law that goes beyond that held by the average J.D.-holding-Joe. It is mostly a matter of happenstance that the sputtering machine of our constitutional order happened to spit out these nine in particular. There are any number of lawyers and legal professionals who could do as well or better at the task. 

When Ilya Shapiro infamously said that any nomination short of Sri Srinivasan to the Supreme Court would necessarily be one given to a "lesser Black woman" he was -- beyond the obvious racism -- making this mistake. The idea that there is some unified ordinal ranking we can give of all lawyers and judges, such that we can say with confidence this person is the "best" candidate to be a Supreme Court Justice, is fanciful. The idea that if such a ranking were possible, these nine individuals would rank #1-9 is even more facile.

I thought about this when reading an interview Justice Alito recently did with the Wall Street Journal, which broadly tackled the question of the Supreme Court's declining legitimacy, framed around the cavalcade of unpopular right-wing rulings that have been de rigueur for the Supreme Court over the past few years. In his inimitable style -- nobody can match his combination of sneer and self-pity -- Justice Alito laid blame for the Supreme Court's legitimacy crisis on everybody but him and his faction. It's the media, it's the Democrats, it's the legal community writ large. It has nothing to do with the content of the decisions. It's a wide-ranging conspiracy depriving them of their just public adulation.

At one level, this is little more than Alito reflecting the ideology of his tribe. Nothing unites the contemporary right more than the complete abdication of personal responsibility. It's always someone else's fault. They are but helpless atoms, involuntarily reacting to the jostlings of the universe.

But I particularly want to zero in on his complaint that the broader community is not coming to the Court's defense:

"And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense." Instead, "if anything, they've participated to some degree in these attacks."

This discussion, again, is framed around the Court issuing repeated unpopular decisions. Certainly, it is the case that sometimes judges are obligated to hand down rulings they know will be unpopular. An unpopular ruling is not, on its own, a marker of illegitimacy. That said, in my Sadomasochistic Judging article I observed that it's too easy for judges to swing out to the other extreme, and begin viewing their unpopularity as a marker of legitimacy -- they know they're right by how much they're hated. If good judges sometimes have to do unpopular things, then a judge who's always doing unpopular things must be a great judge! Who can argue with that logic?

Nonetheless, I don't disagree that among the duties of the bar is, where appropriate, to remind the public that judges sometimes have to issue decisions that they know will be unpopular but which are legally correct. And, as Justice Alito alludes to, historically, the bar has fulfilled that obligation and offered those explanations.

Which might be taken to suggest that, if these defenses are not on offer today, it's because the bar today does not see what's going on at the Supreme Court as unfair attacks stemming from a few unpopular rulings.

Indeed, it's noticeable that the criticism of the behavior of the judiciary isn't just stemming from the highest-profile, hot-button issues. There are increasingly dire complaints from specialists in the more "boring" sectors of law -- administrative law, standing doctrine, remedies -- that things are getting out of control, that the Supreme Court (and some lower court wannabes) are blowing past longstanding doctrinal principles in service of results-oriented judging in service of right-wing extremism. The era of conservative legal formalism is over. The stampede of cases come from every quarter and every issue -- guns, abortion, voting rights, religious freedom, gerrymandering, racism, environmental protection. And what unifies the conservative faction's voting pattern in those cases isn't textualism, or originalism, or precedent, or prudence, or deference to democracy, or professional consensus. The best -- not perfect, but best -- way to predict what the Court will do in nearly any legal arena is to ask "what do Republicans want."

The legal community, as Justice Alito says, may be obligated to defend the Court from unfair attacks. It is under no similar obligation to defend the Court from attacks it thinks are entirely fair.  The most consilient explanation for why the bar is withholding defenses it has historically proffered in circumstances of mere political unpopularity is that it does not identify the problem as political unpopularity; it has judged that the Court really is deviating increasingly sharply from basic rule of law principles in service of sloppy, results-oriented right-wing caprice.

A modest Court would take this reaction from the bar as a warning. Recognizing that it does not have a monopoly on, or even a superior vantage towards, legal truth, it would take very seriously indications that its peers in the legal community think it is going astray. By design, the Court has few formal guardrails that prevent it from simply becoming a blunt instrument of factional caprice. The collective feedback of the legal community is an informal mechanism for assessing the risk. When the bar is generally saying "look, we understand people might disagree with this decision, but sometimes unpopular decisions are part of a functioning legal system", that's a sign things are healthy. When the bar no longer feels capable of credibly making that apologia, that's a sign of rot. And in that register -- the register of professional assessment -- the Court cannot lay claim to special prerogatives because it is "higher". The Court is not necessarily right just because it is higher, and should take a long and deep pause if its professional peers are increasingly emphatic about how wrong it is.

But this Court is not modest. If the bar no longer has confidence in judicial legitimacy, then it's the bar children who are wrong. 

One can, of course, explain all of this away by deciding that the entirety of the federal bar has suddenly and en masse decided to abandon its historic commitment to American legal institutions in favor of blinkered ideological partisanship. But every bit of political theory and common sense we possess suggests that we're seeing the natural results of six individuals with life tenure and virtually nothing in the way of formal checks on their authority becoming power-drunk. 

It is among the prerogatives of that drunken, unfettered power that Justice Alito does not need to be "popular" to continue to impose his personal will onto society. Formally speaking, the bar can scream as loud as it wants that what he's doing is not normal, and is not compatible with the professional consensus on what the law is. Indeed, at one level, I think that -- protestations notwithstanding -- the lawlessness is the point. Judges are specialists masquerading as generalists; there might be a few issues where they really do know more than the rest of us, but most legal cases turn on doctrines that judges know virtually nothing about until the minute they open the first brief. But if one holds the legal community in the sort of open contempt that Justice Alito clearly does, there is a sort of thrill in defying of them -- of making it painfully clear that you do not care and it does not matter what the legal community say the rules are in a given case. L'etat, c'est moi. I decide what the law is.

It is the hallmark of an abuser, though, that they simultaneously thrill in degrading their victims and demand their victims consent to the abuse. For all that he enjoys gleefully soaring beyond the confines of legal professionalism, Justice Alito also insists that the legal profession owes him supplication. It's not enough to obey if we don't also recognize that he's right to do what he does to us. In this way, the aforementioned "thrill" is something of a lie Alito tells to himself. He does care and it does matter that the legal community thinks that he's a hack. I'm not saying it'd be better if he truly didn't care. But he does care. He's livid about it.

What Justice Alito wants is a contradiction -- he wants to bludgeon the legal community into freely accepting his preeminence. It's not enough for them to recognize him as higher, they have to recognize that he's right, and the beatings will continue until the morale improves. But this sort of "consent" -- recognition that the Court is right in what it says -- is not one the Court is entitled merely because it is "higher". The people -- whether the people of the United States as a whole or the legal community in particular -- may have to obey the Supreme Court. We do not have to like the Supreme Court. And if it is to be viewed as more than the capricious whims of six radical in robes, that is a public perception it must earn; it is not an entitlement.