The multifactor test appears to date to the middle of the twentieth century. An article by Mitchell Johnston suggests the 1960s was the key date for the emergence of multifactor tests that have a series of steps. I found a similar phenomenon with the four-factor test for the preliminary injunction (p. 827 here). And now they are everywhere, in substantive law, procedural law, and remedial law. Like the great article title by Gary Lawson, we seem to be faced with “the rise and rise” of multifactor tests.

But there is something odd about this apparent success of multifactor tests—success, that is, in a Darwinian sense. What does the existence of the multiple factors actually do?

The plaintiff says that all the factors favor her. And the defendant says that all the factor favor her. By itself, that polarized pairing might not seem so odd, but then there’s this: the court decides the case, concluding that all the factors favor one party or the other. Sure, there are occasional exceptions. But they are rare. Usually all the factors line up. Yet the factors are supposed to have some independence, or else what’s the point of having a multifactor test?

In trademark law, two decades ago Barton Beebe found that “judges stampede specific factor outcomes to conform to or support the overall test outcome. The data suggest that judges determine the test outcome based on a limited number of core factors and then adjust the rest of the factor outcomes to accord with that result.” Thus, in Beebe’s telling, “This represents strong evidence of coherence-based reasoning in the courts.”

Two decades earlier still, Dick Fallon offered a “constructivist coherence theory” for interpreting the Constitution. He noted the phenomenon that for an interpreter of the Constitution in any particular instance, all of the familiar kinds of constitutional argument—text, framers’ intent, larger purpose, precedent, and justice or social policy—will tend to point in the same direction.1 As Fallon put it, “within our legal culture, it is the rare judicial opinion, the anomalous brief, the unusual scholarly analysis that describes the relevant kinds of arguments as pointing in different directions.” To be sure, Fallon was not describing a multifactor test per se—rather, a set of multiple kinds of argument, which do not have a clear order of operations. Even the most dominant argument, the argument from constitutional text—the one argument on which every successful constitutional litigant must at least fight to a draw—does not have to be the first one considered by a court.

More recently, I have diagnosed a collapse of the preliminary injunction test, with the single factor of the prediction of the merits often deciding whether a preliminary injunction will or will not be granted (see here and here). Which is not good, since the point of the PI is not to decide the merits, but to preserve the court’s ability to later decide the merits. To be sure, however, that collapse has not been total, and there are decisions from the Supreme Court that emphasize the provisional and jurisdiction-saving quality of the preliminary injunction (see, e.g., Lackey v. Stinnie).

So we seem to be in a long phase of multifactor decadence, where multifactor tests and their fellow travelers seem to be everywhere and nowhere; they seem to be formally present but not really doing much operational work. (I reserve judgment on how much multifactor tests used to do work; I will say that for preliminary injunctions, the equities used to be more important than the merits prediction.)

This seems to be an existential failure: it’s supposed to be multifactor, but it turns out to be a kind of unifactor test. What’s happening?

One answer is that the factors are analytically interconnected, and that the reasoning process is iterative, with the factors gradually converging in a deliberative equilibrium. This is Fallon’s account, and he emphasizes the interconnectedness of the types of constitutional argument with respect to values.

Although there is force to Fallon’s argument, I don’t think it is a full explanation. For one thing, the relative strength of the different constitutional arguments has shifted since the 1980s, and arguments drawing on history have waxed as some others have waned. An article describing our practice of constitutional interpretation today would probably not, as Fallon’s article did, use cognates of value 255 times.

For another thing, a lot of multifactor tests don’t seem to rely on an iterated process of interpretive deliberation. When Fallon wrote his article on constructivist coherence interpretation, it was thirty years before the shadow/interim docket became so central to the Court’s work. Criticisms of that docket will fault, among other things, the lack of deliberation. Whenever someone endorses a particular action by the Court on the interim docket, the argument tends to be not that there’s been so much deliberation, but rather that an emergency situation called for the Court to act without the ordinary deliberation. Justified or not, any particular action by the Court on the interim docket does not look much like Fallon’s process of consideration and reconsideration, with reciprocal influence of the arguments and iterated reassessment of their force. At a minimum, Fallon’s analysis does not fit what is happening with stays of preliminary injunctions.

Amid this multifactor malaise, perhaps there is another way to think about what multifactor tests do. In our adversarial system, the plaintiff needs to tell a story and the defendant needs to tell a story. What the multifactor test does is establish what plot points the story must contain. Tell your story and make sure you hit all these points. You can’t leave any of them out. But it is the story that persuades the judge or doesn’t persuade the judge. That is, the persuasion happens at the level of the story as a whole, not the plot point. And then, persuaded by one story or the other, the judge then writes out that story, hitting all the same plot points required by the multifactor test.

I don’t mean to suggest this is how all multifactor tests work all the time. Nor do I mean to suggest an unvarying approval or unvarying disapproval of this kind of narratival function for the multifactor test. But I am suggesting, descriptively, that the tests can work this way.

Even when this narrative explanation fits, we still don’t want stories with just a single plot point. If the multifactor test is going to do any work, the plot points should not collapse together. But then, even when the plot points are independent, it shouldn’t be surprising when courts usually find that all the factors wind up pointing in the same direction.

Prosecuting Contempt, by Sam Bray and Aditya Bamzai. A defense of the judicial appointment of prosecutors for contempt as part of the judicial power — contrary to the growing revisionist take. (With a rethinking of the criminal/civil contempt distinction along the way.)

In Search of University Democracy, by Daniel Hemel and David Pozen. This is not how I would want my university to be run, but anything co-authored by these two is worth reading asap.

We are joined by guest co-host Professor Pam Karlan at the American Law Institute Annual Meeting for the last live show of season 6. We work through a busy stretch of the interim docket: the Alabama GVR in Allen v. Caster and what Callais has done to Section 2; the denied stay in the Virginia redistricting fight, Scott v. McDougle; and the mifepristone cases, Danco and GenBioPro v. Louisiana, where Thomas rides the Comstock Act alone and Alito takes it personally. Then a turn to executive power and the term's looming merits decisions—birthright citizenship, the Federal Reserve, Humphrey's Executor—before audience questions on state voting rights acts, fixing the single-member-district statute, and whether you can wish yourself more wishes.

As always, feel free to post your thoughts below!

The Good: Strangely, since we are supposedly living in the age of textualism, I have not seen that much written about whether Callais provides a plausible or even good account of the text of Section Two. In my view, this is actually one of the strongest points for the opinion.

Here is the text of Section Two:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

That is a big wall of text. But some key phrases that emerge are that this is a test based on the “results” of the state voting law (rather than its intent), where "results” are then specified to ask whether the processes leading to the primary or election are “equally open to participation by members of a class of citizens protected by subsection (a).” And equal-openness is in turn specified as asking whether members of that class “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

So this is a comparative results test — there is some baseline opportunity to participate and elect chosen representatives, and the statute requires protected groups to have at least those same opportunities.

Of course, comparative results tests always prompt the question: what is the baseline? It is a famous critique of such tests that there is no a priori, naturally-given baseline. A baseline must be chosen and defended.

One possible baseline would be proportional representation — members of a protected class should presumptively elect candidates in proportion to their population in the state. This may be somewhat intuitive, but it does run into the final proviso: "That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”

Now there are still ways to try to reconcile the provision and the proportionality principle (for instance the proviso speaks about the race of the elected officials rather than the race of the voters), but in any event it is worth asking whether there are other sensible baselines.

Another possible baseline would be a “similarly-situated” analysis. It would ask whether members of the protected class have the same opportunities as other citizens who share similar characteristics except for race. If so, then any negative “results” would not be “on account of” race, but on some other account.

An analysis like this is especially potent because people vote for the losing side in elections all the time — sometimes quite persistently — and sometimes for reasons that do not make their losses unlawful. It might be that the person has an unpopular view like libertarianism; it might be that the view is popular but that other people who share the view are distributed or concentrated in various ways; and so on. The question is how to read the VRA to isolate whether being on the losing side is the result of race.

A version of this baseline was described almost twenty years ago in a Seventh Circuit opinion written by Judge Frank Easterbrook. And it is a version of this baseline that the Court seems to adopt in Callais. And it seems to me to be a natural way to understand the text of Section Two of the VRA.

The best objection to this bottom line, I think, comes not from the text of the VRA but from the four decades of precedents interpreting it. Stare decisis in such areas is always fraught, but throughout those four decades other areas of the Court’s public law jurisprudence have been trending more and more towards a general principle of government colorblindness. Indeed, election law scholars have pointed out for decades that election law was anomalous in being an exception to this general principle. Callais goes some distance toward resolving the anomaly.

The Bad: Despite the defensible textual interpretation at the heart of Callais, the opinion is quite confusingly and strangely drafted in many other respects. To name just a few:

• The opinion implausibly and confusingly claims not to overrule Allen v. Milligan, even though more or less the same basic claim was made in that case, just in a much more confusing fashion. The subsequent GVR in Allen v. Caster exacerbates this problem.

• The opinion can be read to say that the discriminatory results test is really just a way of looking for an ultimate form of discriminatory intent. It can also be read not to say that. In the part of the opinion that responds to this charge from the dissent, the Court is so ambiguous that I suspect the ambiguity is intentional.

• The opinion is confusing in its gloss of the Shaw v. Reno standard. The cases had previously said that race discrimination in redistricting provoked strict scrutiny only if it “predominated.” Callais is ambiguous about whether it retains the predominance test.

• The opinion is also somewhat confusing in its treatment of the question of whether adherence to Section Two of the VRA constitutes a compelling interest that can justify race discrimination. It says several times that in previous cases this interest was assumed and that in this case they will finally have to decide whether it is a compelling interest. But it is hard to find the part of the opinion that actually does decide it, although the opinion says it decides it.

• Finally, this is the least of the issues, but the opinion is also somewhat confusing in its gloss on the strict scrutiny precedents. As of Students for Fair Admissions, the Court said that there were three compelling interests that could justify race discrimination under strict scrutiny — diversity in higher-education, remediating specific instances of illegal discrimination, and avoiding imminent risks to human safety. In Callais the Court reduced this list to the last two (remediation and safety) before adding adherence to the (properly interpreted) VRA. This would make sense if SFFA had held that diversity in higher education is not a compelling interest and that Grutter, Fisher, etc. were thereby overruled. But SFFA did not say that, at least in so many words. It would also make sense if one thinks that SFFA must be read to say that implicitly, and thus the Court is now making explicit what SFFA left implicit. But Callais simply does not address this, making it unclear whether it is implicitly endorsing this implicit reading, or just unaware of the ambiguities in the case law.

None of these points necessarily undermines the core textual analysis in Callais, but on the other hand, none of them is necessary to Callais’s holding either. They seem like unforced errors.

The Ugly: But in my view the most troubling thing about Callais is none of the above. It is the Court’s treatment of the role of partisanship in districting, and of the ability of avowed partisan gerrymandering to defeat any claim of racial gerrymandering. It is one thing to say that one must control for compactness, geographic distribution, etc. in deciding whether there has been a discriminatory effect under the VRA. But to say that one must also control for partisan goals may allow the dismantling of every blue majority-minority district in a red state.

There are many varieties of partisan gerrymandering — some focus on incumbent protection, some protect seats with a high margin of safety, some accept a lower margin of safety in exchange for a chance at more seats. This gives gerrymanderers many degrees of freedom in justifying a map against a VRA challenge. Additionally, many have pointed out that voters choose parties in part for reasons related to race. This makes the opposition of partisan gerrymandering to racial effect potentially artificial.

To be sure, there is some logic to Callais’s treatment of partisan gerrymandering. If districting for partisan purposes is just as permissible and just as legal as districting for any other traditional purpose, then the similarly-situated analysis would seem to extend to partisanship. And Rucho v. Common Cause famously (or infamously) eliminated constitutional claims against partisan gerrymandering.

But Rucho did not quite say that districting for partisan purposes is just as permissible and just as legal as districting for any other traditional purposes. It held that there were no justiciable objections to those partisan purposes — which is not the same thing as saying that they are totally cool and totally lawful. The slide from saying that partisan gerrymandering is non-justiciable to saying that it can defeat other justiciable challenges is seemingly technical, but it supercharges the effect of Callais.

Now that slide may have been an inevitable consequence of Rucho. There is not an easy space in constitutional doctrine for the category: “this purpose in no way invalidates legislative action but cannot be used to justify legislative action.” And the slide did not begin with Callais — Justice Alito’s 2024 opinion for the Court in Alexander v SC NAACP began with a similar claim about the lawfulness of partisan gerrymandering and its ability to rebut claims of racial gerrymandering.

So while there is something very disquieting about extending Rucho in this way, maybe there is no alternative if Rucho is correct. It does highlight, perhaps, the appeal of the old regime managed by Justice Kennedy under Vieth, in which partisan gerrymandering claims would never in practice succeed, but were never ruled out in theory. While intellectually unsatisfying and maddeningly uncertain, that regime had the advantage of keeping partisan gerrymandering in the “not-invalidating-but-not-justifying” box.

One other alternative to the current combination would have been to say that while partisan gerrymandering is not a forbidden criteria, it also does not count as a “traditional” districting criterion under the gerrymandering cases. Note, for example, that the Easterbrook opinion linked above, written pre-Rucho, did not describe partisan gerrymandering as one of the possible districting criteria one should control for. The summary-affirmance in Cox v. Larios could also be read to stand for the not-justifying-even-if-not-forbidden proposition.

It could be that the combination of Callais and supercharged partisan gerrymandering is legally correct. But it is not a pretty sight.

A Functional Theory of State Action, by Garrett West. “The state-action doctrine is a functional tool to manage the interaction between constitutional and subconstitutional law, … which suggests that constitutional interpretation must integrate theories about the other legal regimes that it sometimes preserves and sometimes displaces.” Very intriguing, even to a formalist.

Judicial Appointments Before Vacancies, by Vasan Kesavan. Speaking of formalism! A defense of nominating and confirming candidates to not-yet-existing vacancies, so long as they are not commissioned. The click-bait title would have been “Is Justice Jackson constitutional?”

Writing for the Holmes Devise, by Robert Post — Post explains and defends his choices in writing the Taft volumes for the Oliver Wendells Holmes Devise History of the Supreme Court (against this critique/self-explanation by Mark Tushnet)

Popular Conceptions of Fourth Amendment Curtilage, by Orin Kerr and Matthew Kugler. “This Article presents the results of three empirical studies, involving 600 participants each, in which members of the public were asked what places count as curtilage and what visits to homes are covered by implied license. . . . We found that the courts have curtilage wrong but implied license right.” I am not sure Fourth Amendment doctrine should depend on surveys, but I am always happy to see the open fields doctrine questioned. Anyway, a great collaboration.

Speaking of Fourth Amendment revisionism, let me also flag the IJ cert petition and Sacharoff amicus brief in Mendenhall v. Denver, which asks the Supreme Court to revive the original meaning of the oath-or-affirmation clause (“no Warrants shall issue, but upon probable cause, supported by Oath or affirmation”).

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In my view Boerne is right about a couple of high-level points. Congress’s Section Five power is to “enforce” the rest of the Fourteenth Amendment; and the power to enforce, even under the broad sweep of McCulloch v. Maryland, is not the same as the power to alter, revise, or change. So the Section Five power is limited to the power to enforce the Constitution, not the power to change it.

Boerne is wrong, however, to the extent that it equates the meaning of the Constitution with the Court’s understanding of the Constitution. The Constitution and the Supreme Court are not the same thing. Still, under the standard departmentalist view, while Congress is entitled to interpret the Constitution in the exercise of its own powers, the Court is entitled to interpret the Constitution in the exercise of its own powers, so judicial review of Section Five legislation would still proceed from the Court’s view about what the Constitution means.

These are two of the building blocks of Boerne. But even if one accepts the basic distinction between defining a congressional power versus carrying into effect, I think there are several subsequent issues that Boerne does not handle well.

One is how to think about doctrines that expound a general right in more specific terms -- i.e. what we might call decision procedures, implementing rules, or doctrinal specifications. Courts expound such things all the time, and that may be fine, even for originalists. But even if courts have authority to do this, congressional legislation need not expound the doctrine in the same way, nor is it necessarily invalid because it fails to do so. We’d need to know more about the doctrine in question.

Additionally, in many cases the courts’ doctrine is specifically based on separation of powers concerns that courts should avoid certain kinds of line-drawing or decisionmaking; in those cases it would be especially unlikely that Congress should have to follow the same doctrine. That is at the core of the McConnell critique of Boerne. And since so much of Section One of the Fourteenth Amendment is abstract, this is a ubiquitous problem.

A second issue with Boerne is how to think about enforcement legislation. Boerne seems to say that even for legislation that is in the enforcement category rather than the interpretive category, the Court still gets to review the scope and nature of the enforcement quite substantially. That is part of congruence and proportionality. But that seems to be significantly stricter than the McCulloch standard, or than the 1868 gloss on the McCulloch standard.

Third there is the issue of certainty and clarity. When deciding whether a state has violated Section One, courts regularly give the state at least a little bit of a presumption of constitutionality, especially once we get beyond race discrimination and violations of the bill of rights to other kinds of discrimination and to unenumerated rights. But the states should not get the same kind of presumption once there is a statute enacted under Section Five. Indeed, if anything the presumption of constitutionality should now point in the other direction, leading courts to defer to Congress under Section Five just as they would have deferred to the states under Section One. This is Chris Green’s critique.

Now if one thinks all constitutional questions should be decided with zero presumption in favor of legislative or executive action, maybe this issue would disappear, but Boerne does not state such a rule and the Court certainly does not employ one in all Fourteenth Amendment cases.

Perhaps one could supply an account of all three of these problems in which there would still be substantial judicial review of Congress’s enforcement power. But I don’t think I’ve read one, and I don’t think the results would look that much like Boerne.

Finally, it is also worth thinking about the lesson of the Thirteenth Amendment’s enforcement power. Many of the proponents of the Fourteenth Amendment thought that the Thirteenth Amendment justified the Civil Rights Act of 1866. (Not all, of course — importantly, both Andrew Johnson and John Bingham did not think so, which is one reason we ended up with Sections One and Five of the Fourteenth Amendment.) For the Thirteenth-Amendment-Civil-Rights-Act position to be even plausible, let alone correct, one would need a broader view of the Thirteenth Amendment enforcement power than the view taken in Boerne. And the Fourteenth Amendment’s is written the same way.

Now, it may well be that the Thirteenth-Amendment-Civil-Rights-Act position was not right, and it might even be that it was not plausible. David Currie reports that the arguments for broad enforcement power under the Thirteenth Amendment were made only after the ink was dry on the Amendment, and suggests that they were post hoc rationalizations rather than the meaning of the Amendment as it was ratified. But even if that is true, these Thirteenth Amendment arguments were made before the Fourteenth Amendment was passed. So even if the arguments came too late to convince us of the scope of the Thirteenth Amendment, they might still inform the meaning of the Fourteenth.

Merits Positions and Supreme Court Voting on Stays and Injunctions, by Greg Goelzhauser (also the author of The Applications Docket). “This paper presents empirical evidence that Supreme Court voting on stays and injunctions is associated with justices' expected preferences for resolving the merits. This result is especially pronounced when the merits remain pending before a lower court.”

The Interim Docket, by me. My take on the transformation of the Shadow Docket, both in name and substance, with some suggestions about what has been lost and might be recovered. Still waiting on SSRN approval, but you can download the PDF here.

The Court’s latest Voting Rights Act decision, Louisiana v. Callais, narrows Section 2 in a way that could reshape redistricting, weaken majority-minority districts, and intensify the fight over how race and partisanship interact in elections. … We walk through the statutory text, the long-running collision between the Voting Rights Act and the Court’s racial gerrymandering cases, and the practical consequences for future election-law litigation. … The conversation also covers the Court’s emergency procedural move after judgment, Justice Kagan’s forceful dissent, and the broader question of whether the decision is likely to help one party more than the other in the short run.

Comments welcome!

What explains the difficulty of converging on a name for this, well, unnamable docket? And what does the answer to that question tell us about how best to proceed in the naming wars? These questions strike at some of the central difficulties in our legal system at present – difficulties that are more cultural than procedural, and that stretch far beyond the marble palace at One First Street.

I. Explanations

The key question is descriptive: Why in fact is it so hard to agree on a name for this docket or set of judicial practices?

1. Different practices

Part of the difficulty is that we are trying to apply a single name to an evolving set of practices. When Will Baude coined the term “shadow docket” in 2015, he was talking primarily about summary reversals, which at the time were a significant if somewhat obscure feature of the justices’ work. These relatively marginal rulings typically involved a short opinion published without briefing or oral argument on the court’s “orders list.”

Although focused on summary reversals, Baude defined “shadow docket” very broadly, essentially encompassing anything other than plenary (full) review, even including certiorari denials. And so, that broad term came to cover an emergent set of practices over the last decade that it is worth disaggregating. There may be a need for more than a few names; the relevant docket, we might say, is a “they” not an “it.”

Before splitting the bundle, we might start with what could unify the set of practices to which these terms often refer. One potentially unifying characteristic is speed. Sometimes the justices have to act within days or even hours or lose jurisdiction, making the “emergency docket” seem apt; “lightning docket” or “expedited docket” have been used when the justices rush to decide the merits of the case before full proceedings. (Rocket docket is, regrettably, taken).

But speed alone fails to meaningfully capture some portion of what the court is doing. For one thing, not all the decisions on the docket are equally fast: the stay ruling in Trump v. CASA, which limited courts’ abilities to issue nationwide injunctions, involved oral argument and opinion-writing (though still no regular briefing). For another, focusing on speed alone misses important substantive dimensions of the court’s practice. Stay decisions, for instance, are doing something qualitatively different, not just faster than, the plenary docket – as evidenced by their distinctive standards of review and unclear precedential effect.

Two other candidates – lack of visibility and deviation from normal practice – suffer from similar problems. While perhaps the unnamable docket was once shadowy and behind-the-scenes, some decisions – like CASA – involved publication of a full opinion in the U.S. Reporter and at least as much attention as any other ruling that term. And while deviation from normal practice led one of us to see appeal in “irregular docket,” are these practices really still irregular, as they have become increasingly commonplace?

These issues could be a sign that we need not one name, but varied names for diverse dockets. For example, the “interim docket” by its terms seems to apply only to interim relief such as stays, and so is a narrower category. Perhaps certiorari, summary review, and stay practice are three distinct categories, tracking different procedures. Along those lines, the “equity docket” might aptly describe cases, including CASA, in which parties are seeking equitable remedies like injunctions or stays. This narrower framing isolates a discrete doctrinal question: how the equitable principles governing the various actions within the docket have become unclear or have shifted, at least according to many of the docket’s critics.

2. Different inquiries

Different names have different framing effects, helping indicate what practices should or should not be tolerated. Of course, people have divergent prescriptive reasons to favor one frame or another.

For example, calling it the “emergency docket” may make us assume the existence of an emergency. Proponents of the court’s behavior have sometimes desired that favorable framing. Justice Samuel Alito promoted that label several years ago, prompting critics to argue that he was inappropriately helping himself to a legitimate-sounding name. Who, after all, could be against handling emergencies?

Recently, however, Justice Ketanji Brown Jackson, a staunch critic of the court’s practices, gave a speech using the “emergency docket” term and asserting that there is no such thing as an “interim docket.” Her aspirational use of the term “emergency docket” supported her claim that the justices should issue the relevant type of relief only when there is a true emergency – not simply to override lower courts.

Or again consider the “shadow docket.” To be connected with shadows sounds spooky, nefarious, and exciting. Indeed, Baude picked the name partly to connote those sorts of qualities. His originally planned title was “Paying Attention to the Orders List,” but savvy advice from fellow scholar Justin Driver moved him toward a zippier moniker. Alas, branding, even (or especially) when brilliant, can also be misleading. Or so critics, including Justice Alito, have complained.

The “interim docket” label aspires to be more clinical and precise. Certain modes of relief do indeed relate to interim orders, as contrasted with final judgments on the merits. But whether to adopt a bland or technical approach is itself controversial. Critics of that term object that supposedly “interim” relief can be effectively conclusive. And they may be averse to bloodless discussion of lamentable rulings.

3. Different goals

Finally, it is a truism that different commentators and legal practitioners have sharply different legal and political opinions about these practices. It is hard to get consensus on anything in a polarized environment, and the naming issue bears out that problem.

The term “supreme Court” appears in the Constitution and so has been settled for a long time. But if we had to identify a name for the Supreme Court today, could we come up with one by consensus? Or would many people complain that “supreme” is either inaccurate or inappropriately laudatory – and is it even really a “Court”?

Some people might want to organize political movements around one or another term. Use of language can then mark people as belonging to opposing camps. Think for example of the difference between “undocumented immigrant” and “illegal alien.” Even our vocabulary may divide us. And how can there be compromise or consensus when the divisions are built into the very terms of conversation?

Some people may also have professional, reputational, or commercial interests in preserving certain terms, or in unsettling those terms in favor of others. Here too the logic of branding comes into play.

These dynamics are perhaps most obvious in connection with the justices themselves, who have an interest in either defending (if they are in the majority) or criticizing (if not) the court’s own work. Some years ago, for example, Justice Elena Kagan got on and then off the “shadow docket” bandwagon. Alito opposed that term and favored “emergency docket.” Justice Brett Kavanaugh just last year began to push the “interim docket.” And Jackson has recently sided with Alito and against both Kagan and Kavanaugh by embracing “the emergency docket.”

Perhaps the justices will hold a vote on the proper terminology.

II. A modest proposal: vive la différence!

Is there anything actionable to do, now that we have a better grip on why this set of practices is in fact so hard to name?

Perhaps we should be resigned to unnameability. Nobody can “make fetch happen,” and language may be above any of our pay grades.

Yet the natural drift of language has special costs in this context. First, if the mere choice of term reinforces team or tribal allegiances, it can obscure common ground or shared interest in compromise. More generally, the costs of imprecision and tribalism here may be inhibiting our capacity to see like cases alike or to clearly identify aberrations. Can we assess how discrete features of Supreme Court practices and standards are changing if our data set is so muddled?

To address that concern, we might try to avoid linguistic indicators of tribal allegiance. That is, we might construe the various “docket” terms as nonredundant and specialized, such that the various options can and should be used by anyone. If we endeavor to use many terms to mean discrete things, then perhaps we can reduce the odds of tribal organization around the use of language.

Accuracy and precision likewise point toward nominal pluralism and even fluidity. As we have seen, the court is doing several distinct things, its practices are in flux, and its activities can be assessed according to different criteria. In this context, it makes sense to embrace terminological diversity and dynamism.

For instance, “the shadow docket” may still work for some purposes, but it does not make sense as the one and only label for what we are talking about. The biggest problem with that singular term, in other words, is that it implicitly claims exclusivity – and so invites competing claims to terminological hegemony. That problem dissipates if we can remember that there are several overlapping “dockets.”

We might say that there are shadow dockets – plural – pertaining to certiorari, stays, injunctions, and other matters. And that there are also equitable dockets pertaining to stays and injunctions. And also emergency dockets regarding capital cases, certain stays, certiorari before judgment, and plenary rulings issued on an expedited schedule. No one choice of labels is categorically right or wrong.

These different terms might also help us separate different aspects or dimensions of what we are interested in. Are we focused on a decision’s speed, lack of visibility, deviation from settled practice, legal effect, procedural demands, or precedential import? (Perhaps there are still other types of “docket” yet to be coined.)

True, we may sometimes want a catchall term, for expressive convenience if nothing else. And for those occasions, we should choose a phrase that is a bit unstable and a tad self-aware. How about – “the unnamable docket”?

Cross-posted from SCOTUSBlog.

How the Gentry Won: Property’s Law Embrace of Stasis, by Rick Hills and David Schleicher. A critique of the past half-century of land use law, through the lens of The Wire: “We used to make shit in this country, build shit.”

There is also of course my Abuse of Power in the Second Trump Administration, linked yesterday.

And Supreme Court’s Gutting of Voting Rights Provision Was a Long Time Coming: Rick Pildes on Louisiana v. Callais. Many fascinating claims in this piece, including that the success of post-2020 redistricting litigation was a catalyst for the SCOTUS backlash; that the long-term partisan consequences of Callais are hard to predict; and that the best Congressional response would be to move beyond "[t]he race-discrimination model” in favor of “the model of strong universal protection for the voting rights of all citizens.”

Here’s how the piece begins:

I’m going to begin with the question that Mike Paulsen asked me when he first invited me to this symposium: “Aren’t the law firm executive orders the most unconstitutional thing this administration has done so far?”

My immediate answer was “no, that’s the birthright citizenship executive order.” The birthright citizenship order directly contravenes an explicit provision of the Constitution—that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The order contravenes the original meaning of that Clause of the Fourteenth Amendment, and also liquidated constitutional practice. And it does so on a subject where the President has no authority anyway. The President has no authority over naturalization or over national jurisdiction.

Or perhaps I could have said the executive suspension of the TikTok Ban. There the administration announced the suspension of a law passed by bipartisan majorities of Congress and upheld as constitutional by the U.S. Supreme Court. Without even purporting to find that the law is unconstitutional, the administration announced that it just wasn’t going to enforce it, which violated the constitutional obligation to “take care that the laws be faithfully executed.” And worse, the administration also promised that nobody could be penalized or held liable for their actions during the period of the purported suspension. While there is plenty of debate about the scope of enforcement discretion generally, and federal enforcement discretion specifically, a categorical and prospective waiver of a civil law, accompanied by get-out-of-penalty-free cards is the opposite of the constitutional obligation.

The law firm executive orders are in important respects not like the birthright citizenship order or the TikTok Ban suspension. They involve the use – and abuse – of real executive powers, rather than the assertion of non-existent powers. And in this sense they are more emblematic, more representative, of the constitutional questions raised by this administration.

Indeed, one of the distinctive patterns of the Trump Administration is the use – and abuse – of a broad range of constitutional and statutory powers to reward the friends and punish the enemies of the regime. . . .

You can read the whole (short) thing here.

We open with reporting on leaked internal Supreme Court memoranda related to the 2016 stay of the Clean Power Plan, including what the documents may reveal, why the leak itself is so unusual, and whether timing and incomplete records change the story. We also discuss Justice Sotomayor’s public apology after comments about Justice Kavanaugh, and what that moment says about judicial professionalism and public exchange.

From there, we turn to some shadow docket happenings: a one-line summary reversal in a Texas redistricting case and a Fourth Amendment summary reversal out of the D.C. courts. Finally, we move to the merits docket and consider Hencely v. Fluor Corporation (24-924), a case involving federal contractor preemption and a terrorist attack in Afghanistan, where the Court narrows a (possibly infamous) Scalia opinion.

As always, comments welcome!

Here is American Fragmentation and American Law, some timely remarks by Sam Bray: “This paper considers whether cultural and moral fragmentation in American society is a challenge for American law, and it advances three theses. First, the United States is morally fragmented, but that is tolerable, because a liberal legal order can exist without a consensus about moral norms. Second, there are two preconditions for a liberal legal order that are fading in the United States: a culture of persuasion and a shared expectation of our society as a going concern. Third, we have been here before, and sometimes it ended well.“

And continuing (and perhaps winding down) the conversation on the Clean Power Plan memos, I was in the New York Times on Friday titled Don’t Blame John Roberts for the Shadow Docket. (I was hoping for “the shadow docket has put the conflicts on superspeed.”) Meanwhile, Michael McConnell is in the Washington Post, with The Supreme Court’s not-so-sinister shadow docket.

I. Irreparable Injury and the Government’s Interests

Several eminent commentators have made the criticism that the memos reflect a specific instance of hypocrisy: Whereas the Court now routinely affords the government automatic irreparable injury when its laws or policies are obstructed by court order, that precept went unmentioned in the leaked memos.

The problem with criticisms like these is that they conflate two different legal doctrines. The Court has stated a rule that the government faces irreparable injury when its policies are blocked. But that is a rule that applies to the moving party. That is, when the government seeks to have a lower court order lifted, it is almost axiomatic that the lower court order injures the government, so the Court focuses on other factors, such as the merits of the case.

This rule had no application in the Clean Power Plan case because the Obama Administration was not the moving party. Instead, the challengers to Clean Power Plan were the moving party: they were the ones seeking a stay.

Now one could instead make a different, more nuanced and less doctrinal claim, that regardless of the technical doctrines at issue, the Court should exhibit a consistent level of concern for the interests of the federal executive branch. The Court should not favor the interests of preferred presidents or executive branch policies. This is, we emphasize, a different point. And it would have been much harder for critics to show that the Court failed to live up to that standard in the Clean Power Plan case.

For instance, the Chief Justice’s memo did explicitly consider it appropriate, based on case law, to balance the equities, but only if the case were close. Presumably consideration of the government’s interest could come into play at that stage. However, he argued in effect that the case was not relevantly close. Additionally, it is hard to compare the various cases across administrations without considering the way they are driven – perhaps appropriately – by the justices’ views of the merits.

The Court’s critics could of course argue for doctrinal reform. Perhaps the standards for interim and preliminary relief should be less merits-focused, or less focused on the movant’s injury and more focused on a more general form of equitable balancing. In a recent lecture, Justice Jackson argued for something like this kind of reform—though even she asked rhetorically in the Q&A (at 1:09): “How could you be harmed from being stopped from doing something you’re not allowed to do?”

We might favor some related reforms ourselves. But that possibility provides little reason to criticize the by-the-book treatment of the issue in the leaked memos; and still less reason for confusing the public about how this area of the law works.

2. The Overall Standard of Review

Another criticism is that the Chief Justice’s memo clearly applied the wrong standard of review. Here, too, the critics are at best overstating their case. The factors applied by the Chief Justice were sensible ones drawn from prior cases and the briefing before the Court.

And, notably, for all of the internal pushback from the dissenting justices, they did not push back on the standard of review. Perhaps this is because the details of the standard of review do not matter so much. In a somewhat novel case, any relevant substantive points can be channeled into the plausible alternative standards of review as well.

In our view, the proper legal analysis for cases like this one is not entirely clear—either at the time that the Court decided or today. Even the relevant legal authority for the Court’s action is unclear. Is it the All Writs Act? The stay provision of the Administrative Procedure Act? Something else?

Some authorities indicate that the test ought to be indisputable clarity. But it is not clear, so to speak, that the Court had adopted that test, and the justices had already seemed to dispense with it in an earlier ruling. One of us wrote a blog post on this topic back in 2014; and the other of us repeated the point in a 2015 article (called … “The Supreme Court’s Shadow Docket”)—both published well before the Clean Power Plan ruling in 2016.

Instead, the Court applied its normal equitable inquiry, citing both the general standard for a stay pending appeal and the standard for stays of administrative action set out in Nken v. Holder. These two standards are really applications of the same underlying principles. Both standards focus on a likelihood of success (which in this context includes an assessment of certworthiness) and irreparable injury to the moving party. The Chief Justice squarely addressed those critical points. When the government is a party, these standards also allow consideration of the balance of the equities in close cases. And the Chief Justice not only noted that point, but also had a clear view as to how it applied, particularly given the threat that he perceived to the Court’s authority.

If anything, the fact that the applicable standard of review was not entirely clear probably supported the justices’ decision not to publish their opinion. As often happens, the justices were still working out legal questions. That circumstance frequently counsels caution about elaborating seemingly firm legal principles or conclusions.

Perhaps the Court was wrong to rely so much on the likelihood of success, especially at such an early stage of the proceedings, and to be so concerned about the executive branch’s efforts to circumvent the judiciary. At the same time, those considerations are hardly unique to the Clean Power Plan case and they have reemerged when the justices faced other cases of fast-moving executive branch overreach. Take AARP v. Trump or the Illinois National Guard case.

Or perhaps critics simply disagree with the ultimate judgments the majority reached. That is fine, but a very different point from whether the memos reveal basic doctrinal errors or hypocrisies, which we doubt.

* * *

There is plenty of fodder to criticize in the Court’s shadow docket rulings over time and even the ultimate result as to the Clean Power Plan application. But what we learned from the memos was some insight into the Justices’ reasoning in this specific case, and frankly, that reasoning makes the Court look better than many of its critics.

Sometimes a case is meta. The Fifth Circuit’s recent Ten Commandments case, Nathan v. Alamo Heights Independent School District, aptly captures how deep into the wilderness our religious liberty doctrine is—out of the unpredictability and incoherence of the three-part Lemon v. Kurtzman test and the one-size-fits-all stricture of Employment Division v. Smith, but not yet into the promised land of doctrinal clarity. Unfortunately, the Fifth Circuit chose a path that leads to religious conformity. This is especially ironic since one of the principal critiques of Lemon and Smith was that they stacked the deck against freedom of conscience and religious pluralism. Hopefully the Supreme Court will use the case as an opportunity to reaffirm the historical principle that the First Amendment forbids coerced instruction in piety.

In Nathan v. Alamo Heights Independent School District, the court upheld a Texas law that requires every public school classroom to display the Ten Commandments on a poster at least 16 x 20” in size. The parents challenging the law are from an array of religious traditions, many holding the Ten Commandments sacred but disagreeing about their religious meaning. They argued that the displays violate the Establishment and Free Exercise Clauses of the First Amendment. The doctrines for both clauses are in flux, but the strongest claims under either rely on the same feature of the Texas law: it coerces children into an instructional setting that includes the Ten Commandments alongside other instructional materials. The walls of school classrooms are festooned with “stuff we expect you to learn,” like the state capitals, the cursive alphabet, the periodic table, and, in Texas, the Ten Commandments.

The fact that there is no “generic” or religiously de minimis version of the Ten Commandments—unlike, say, “In God We Trust” on U.S. coins--compounds the problem. The first five commandments require honoring a particular God. The version adopted by Texas is the one most frequently acceptable to Protestants, for they have used its prohibition on graven images to denounce Catholic and Orthodox iconography and Marian devotion. Similarly, the presentation is shorn from the narrative context so vital to Jews. As a Protestant, it is precisely because I consider the Ten Commandments to be sacred that I would strongly object to my children being daily exposed to a version that does not fully identify the God to be worshipped, especially when it is entrusted to the instructional authority of a replacement-level third-grade teacher.

How did the Fifth Circuit lose the plot? The court said it was following the Supreme Court’s instruction to apply the “historical practices and understanding” of religious liberty, but its reasoning is inconsistent not only with that history but also with the Supreme Court’s most recent decisions on point. Rightly eschewing Lemon’s three-part test, the Court first considered whether the law is tantamount to a founding-era “hallmark” of a religious establishment. One such hallmark, the court acknowledges, was “legal compulsion to attend church or engage in a formal religious exercise.” Op. 22 (quotation marks omitted). There is no question that students are compelled to attend public school; that schools ordinarily put instructional materials on the wall of public school classrooms; that the Ten Commandments, without a contextual framework that effectively objectifies them, instructs people in a particular form of religious piety; that one of the chief activities in Founding-era churches (as now) was instruction in religious piety; that the Ten Commandments were frequently posted on the wall of Founding-era churches—for the purpose of pious instruction. It does not take a logical guru to conclude that the law enjoins compulsory instruction in religious piety akin to the compulsory church attendance and religious exercise plainly forbidden by the original understanding of the Establishment Clause.

There are perhaps two counter-arguments. The first is that the posters are not instructional. This is where the Fifth Circuit judges’ imagination failed them. If not instructional, what are they, exactly? The other is that compulsory instruction in religious piety was only one feature of compelled religious exercise at the founding. Does that mean that compulsory baptism—without more—would not violate the clause? Really?

But the Fifth Circuit needn’t have gone back to first principles for this insight. The Supreme Court’s non-Lemon precedent captures it well. As recently as Kennedy v. Bremerton School District, in which the Court (finally?) abandoned Lemon, it simultaneously cited cases holding that prayer that is attributable to a public school violates the Establishment Clause because it pressures students into conforming. Furthermore, Kennedy carefully avoided addressing the constitutionality of the prayers offered by the football coach before the school district had disavowed them, tacitly suggesting that some members of the majority, at least, were (rightly) worried about their coerciveness. In short, all of the Court’s prayer and bible reading-in-school cases are good law, and for good reason: they protect against the government’s use of force to impose religious conformity.

But unlike a prayer, one might say, the Ten Commandments are just a passive symbol, one that features in many government buildings, including the frieze of the U.S. Supreme Court. That isn’t quite right. The image on the walls of Texas schoolrooms is not a portrayal of two tablets held by a berobed, hirsute fellow dodging lightning bolts. It is just a list of ten rules, the first five of which are blatantly religious. It isn’t a symbol, it’s a text. This is the feature of the law the Fifth Circuit somehow overlooked: the rules on a wall of a public school classroom are no less the commands of the state than the words out of a teacher’s mouth. The Ten Commandments are commands to religious piety, delivered to an audience made captive by threat of punishment.

This makes it easy to understand why the law also violates the Free Exercise Clause. Just last year, the Supreme Court held in Mahmoud v. Taylor that a public school could not oblige students to hear a teacher read pro-LGBT books contrary to their parents’ religious beliefs. A burden on a parent’s right to control the religious education of children, the Court held, is always subject to strict scrutiny. It is difficult to see how the state’s posting of the Ten Commandments in every classroom would not burden an objecting parent’s religious exercise. Unlike Mahmoud, kids can’t opt out because the poster will follow them into every room in the school. Would the Fifth Circuit really conclude that the Free Exercise Clause forbids the readings in Mahmoud but would permit City of Austin to require all public school classrooms to display a 16 x 20” poster of a same-sex couple exchanging vows? Or a large poster declaring in simple, straightforward prose the wholesomeness of gender fluidity?

The Fifth Circuit faced a test of constitutional judgment. After decades of turmoil, religious liberty doctrine is starting to settle into steady grooves, but cases like Kennedy have left some questions unanswered. Lemon no longer supplies the answer, but that does not mean that all the cases that relied on or anticipated Lemon were wrongly decided. The Fifth Circuit was right to turn to history, but wrong to so badly misread what the Texas law is all about: religious conformity. The decision is a step in the opposite direction of the original understanding of equal religious liberty toward which the Supreme Court has, however fitfully and controversially, been headed for the past generation.

Here, I would like to remark on one specific feature of the commentary—namely, the idea that the justices didn’t devote enough of their decisional resources to this case.

Different NYT articles maintain that the leaked documents reflected “nothing like the court’s usual painstaking work” and that they contain a “blizzard of memos” spanning five days and authored by six justices. These descriptions are in tension with one another, and they also fail to acknowledge that important judicial decisions are frequently made under a wide range of procedures and circumstances.

Start with the memos themselves. Even some Supreme Court opinions on the plenary merits docket are shorter than the total of the published memos, see eg here, and such opinions often issue without the internal circulation of significant legal correspondence.

In addition, the memos hardly represent the sum of the justices’ deliberations. We do not even know that we have all the memos. And surely there were additional conversations, internal chambers memos, and so forth. There was also substantial, high-quality briefing before the justices, as the Chief Justice noted.

The deliberations must also be considered in light of the conspicuous fact that the Court declined to issue a precedential opinion. Much of the effort that goes into judging involves the crafting of precedent, especially at the Supreme Court. That work does not arise when there is no published opinion.

By declining to issue an explanatory opinion, the justices reduced the importance and even the meaning of what they had done. They left themselves more room for changing course or doubling back. And they made it harder for litigants or lower courts to invoke the Court’s ruling.

The Court’s lack of explanation, in other words, is self-empowering in some ways but self-disempowering in other ways. Here is another example of that duality: by withholding reasons, the justices made it harder to pick apart their rationale; but they also ceded to critics the ability to characterize a salient ruling.

A serious effort at criticizing the Court’s decision would consider unexplained interim decisions that cut in favor of different policy preferences. Did injunctions against the second Trump administration always exhibit a superior deliberative process? Stays in capital cases? Orders to block deportations? Consider for example that the justices acted in an even more rapid fashion last year in A.A.R.P v. Trump.

To push that comparison a bit further, critical commentators ought to grapple with perhaps the central point that motivated the Court’s action. As the memos relate, Obama administration officials at least arguably stated that, in both this case and a prior case, the executive branch was moving too fast for the justices to stop them. Today, in the era of Trump 2.0, how many people would seriously deny that that consideration is powerful?

* * *

There are at least two theories under which Liptak may have violated the ethics rules.

First, Liptak may have violated Rule 8.4(f) of Professional Conduct, which provides that a “lawyer or law firm shall not * * * knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” If a Supreme Court employee provided memoranda to the Times in the hope of making them public, and if Liptak assisted in that effort—both questions of fact, which would have to be answered through a careful inquiry—he may have violated this provision. Section 320, Canon 3.D.3, of the Judicial Conference’s Code of Conduct for Judicial Employees provides that a current or former judicial employee “should never disclose any confidential information received in the course of official duties except as required in the performance of such duties.” That Code doesn’t apply to “employees of the United States Supreme Court,” id. § 310.10(a), but it’s widely known that the Court has adopted similar rules that do.

Or, if the memoranda had been provided to the Times by one of the Justices themselves, Liptak’s assistance with that effort might have violated Rule 8.4(f), which extends to rules violations by “a judge.” Canon 2.A of the Code of Conduct for Justices of the Supreme Court of the United States provides that “[a] Justice should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” And Canon 4.D.4, though placed in a section devoted to financial activities, states generally that “[a] Justice should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the Justice’s official duties”—which disclosing internal memoranda to the Times would plainly be.

Or, if Liptak didn’t play any role in obtaining the memos directly, he might still have assisted the leaker’s violation by taking part in the process of making them public—aiding and abetting that effort, and violating the Rules “through the acts of another” per Rule 8.4(a). Commenting on now-public memos, the way that Adler, Blackman, Baude, and Goldsmith have, is very different from playing a role in making them public—akin to the difference between an attorney’s advising a defendant who has already committed a crime and an attorney advising a client on how to commit a crime without detection. An attorney who coauthored Closed Chambers with the infamous ex-Supreme-Court-clerk Edward Lazarus could hardly claim that the nonpublic information printed in the book was all Lazarus’s fault, and that all he did was help write it. According to Jodi Kantor, the article’s coauthor, she and Liptak “spent many weeks anticipating your reactions to these memos, which allow us to hear what the justices sound like in private”—suggesting active participation in the publication process on Liptak’s part. In any case, this is something a disciplinary investigation could clear up.

(Note: Last night I sent a draft version of this post to Liptak for his comments or corrections, asking for any “facts about your role that would cast the analysis below in a different light.” Today I received the following statement from a Times spokesperson: “The New York Times’s reporting on the Supreme Court, including the recent article by Jodi Kantor and Adam Liptak on the court’s ‘shadow docket’ rulings on presidential power, brings to light vital information for the public to understand how the court carries out its duties in governing the lives of millions of Americans. We are confident that Adam Liptak acted consistently with his professional obligations both as a lawyer and a journalist.”)

Second, regardless of how the Times obtained the memos, Liptak may also have violated Rule 8.4(d), which forbids a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Courts may act in public—releasing their judgments and opinions as a matter of routine—but judges have to think in private. And multimember courts can’t deliberate effectively, much less administer justice effectively, if their judges can’t write anything down for fear of seeing it in the next day’s Times. As a 2022 discussion in the New York State Bar Journal suggested, releasing nonpublic information—in that case, a draft opinion—”is prejudicial to the administration of justice, as it compromises and disrupts the deliberative process, the most essential function of the court. The sanctity of the deliberative process is the cornerstone of the judicial system and such a violation can lead to a host of problems.” If the administration of justice is prejudiced by an attorney’s refusing to cooperate in individual discipline proceedings (as per Rule 8.4 cmt. 3), how much more so would it be prejudiced by the public release of judges’ nonpublic deliberations?

* * *

Nothing about this analysis is changed by Liptak’s role at the Times.

Claims about there being a public interest in the memos, for example, don’t make their publication any less prejudicial to the administration of justice. Judges don’t run for reelection, and they’re supposed to operate without outside political pressure, so the argument that “the public needs to know” is at its minimum. If the public interest really requires disclosure of internal memoranda from the Supreme Court (or, for that matter, internal memoranda from the New York Supreme Court, Appellate Division, First Judicial Department), then those courts can revise their rules, officially releasing their internal memoranda for public review. But if those courts choose instead to keep some of their confidential deliberations confidential—as indeed they have, and as the proper functioning of a court usually requires—then no individual employee or officer of the court, whether the leaker or Liptak, can claim the power to overrule that decision on his or her own. The public interest isn’t advanced by releasing only those memoranda that individual leakers choose to release for their own purposes.

Nor does it matter that Liptak is a journalist as well as an attorney. For example, if a Times journalist were also a licensed New York social worker, he might be required to act as a mandatory reporter and to inform the Office of Children and Family Services of suspected child abuse discovered in his professional capacity—even if he might prefer to keep that information confidential and to develop a source for news articles about the abuse instead. The additional role carries with it additional duties (even conflicting duties), whether they involve communicating information or keeping it confidential.

Nor does Liptak necessarily have any First Amendment right to violate the Rules of Professional Conduct. If, for example, the nonpublic material described in the article had arrived at the Times unsolicited, it’s possible that the First Amendment (as construed in Bartnicki v. Vopper) would restrict state interference with its publication. But attorneys are often under confidentiality obligations that the First Amendment doesn’t impose on others. (A lawyer who receives unsolicited material accidentally produced by the other side sometimes has to give it back.) And were an investigation to show that Liptak solicited or took part in soliciting a violation of court-imposed confidentiality rules, that solicitation wouldn’t be protected by the First Amendment, any more than any other speech that serves as an “integral part of conduct in violation of a valid” legal-ethics rule. Either way, a First Amendment defense on Liptak’s part requires a fact-intensive inquiry, which the First Department’s Attorney Grievance Committee could conduct.

More importantly, the First Amendment isn’t reserved for professional journalists—applying equally to the “lone pamphleteer[] or street corner orator[] in the Tom Paine mold” or to “someone who spends substantial amounts of money in order to communicate [his] political ideas through sophisticated means.” If an attorney were to hand out sealed filings on the street corner, if a current law clerk were to publish draft opinions on Instagram, or if I were to post smuggled memoranda on this blog or on my personal X account, each of us would be no less entitled to First Amendment protection—and no less subject to professional discipline—than those attorneys fortunate enough to have jobs at the New York Times. Either the professional conduct rules restrict the violation of court-imposed confidentiality requirements or they don’t.

* * *

Enforcing state rules of professional conduct against attorney-journalists won’t end leaks like this. Maybe some attorneys in Liptak’s position would rather just be journalists, giving up their licenses to practice law; and maybe other journalists who aren’t attorneys (perhaps including Kantor) will end up being the ones to publish such leaks instead. Courts don’t have the same tools to regulate the conduct of those who don’t claim a right to practice before them. But publications like the Times use licensed attorneys as journalists for a reason, namely to have the benefit of their practical expertise. You don’t have to be a lawyer to work for the Times; but those who want to keep the right to practice law—and to keep the status of an officer of the court—have to shoulder its responsibilities too.

Regardless of what one thinks of the “emergency docket” or the Clean Power Plan, leaking confidential court materials poses a real danger to the integrity of the justice system. That’s why licensed attorneys usually fear to touch such leaks with a ten-foot pole. The leak of a draft opinion in Dobbs, for example, led directly to an assassination attempt on Justice Brett Kavanaugh, aimed at preventing that draft opinion from obtaining his vote for the necessary majority. It’s only a longstanding culture of respect, fidelity, and trust among attorneys and court personnel that prevents these leaks from becoming a daily occurrence—and that allows courts to deliberate effectively on the law. It can only undermine that culture further for the disciplinary system to overlook a decision by a licensed attorney and officer of the court to make these leaks more effective weapons against any judge with whom the leaker disagrees.

For all I know, Liptak is otherwise an upstanding guy, and he’s well thought of by people I trust. But we don’t want a world where every internal judicial memo serves as a potential weapon in a political fight, one available to whoever’s willing to violate the ethics rules first. And one way to help forestall that world is for the discipline system to treat with seriousness the lawyers and judicial employees whose actions would otherwise speed its arrival.

(Cross-posted at The Volokh Conspiracy.)

Why Courts Should Not Discipline Trump’s Lawyers, by Rebecca Roiphe. The other side of the coin, in some ways: “This Article draws on [John] Eastman's case to argue that disciplinary charges in politically charged cases are often unconstitutional and even when they are not, they are unwise and counterproductive because they chill useful advocacy and threaten democratic values.” I have conflicted feelings about this, but “unwise and counterproductive” might well be right! See also Some Thoughts on John Eastman’s Disbarment by Brad Wendel.

The Presidential Records Act is Constitutional, by Chris Fonzone, a critique of the shocking recent OLC memo on the unconstitutionality of the Act. I find the memo’s Necessary and Proper arguments ambitious and tricky, but Fonzone’s point about the need to discuss the Property Clause seems very important — the counter argument would be that the papers are not in fact government property, but the question is whether that is right and how the Property Clause affects Congress’s ability to answer it.

The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma, by Judge Andrew Oldham, Adam Steene, and John Tienken. “The Ex parte Young cause of action would not have been recognized at the Founding and was instead the product of a gradually developing equitable common law. What’s more, the Article argues, Young fits uncomfortably with modern federal courts jurisprudence, which tends to view non-statutory causes of action (like the one announced by the Young Court) with considerable skepticism.” An important piece of Ex Parte Young criticism, especially for anybody who has read their Bray and their Harrison.

The Military Officer’s Oath to Disobey Lawful But Unethical Orders, by Joshua Braver. For several years I have been wondering, what are the explicit or implicit theories of constitutional authority held by our soldiers? If you ultimately believe, per John Harrison, that constitutional power comes from the barrel of a gun, this could be (or become) a foundational question of our constitutional law. Enter Braver, with “a six-month ethnography at a military college, interviews with writers of Army doctrine, a first-person account from an Army officer who defied an order regarding transgender service members, and an analysis of conflicts between Donald Trump and the Chairman of the Joint Chiefs of Staff.” I still need to ponder the results of this analysis, but I am so glad to read a study of this. Great research project.

First, it’s true that the Clean Power Plan stay was something of a big deal at the time, and that with the benefit of hindsight it can be seen as something of an inflection point for the shadow docket. This is partly for boring technical reasons (the difference between staying an executive action directly versus staying a lower court decision), partly because the Clean Power Plan was a consequential policy, and partly because as things turned out, the Court did not end up ruling directly on the merits of the Obama Administration plan, so the stay ended up being the last word. But we basically knew all of this at the time. Here’s Lisa Heinzerling in 2016, The Supreme Court’s Clean-Power Power Grab.

Second, the Court’s reasoning — while perfectly debatable — is basically what the parties and others had argued at the time. The Court thought the administration’s legal interpretation was implausible, especially in light of the novelty and magnitude of the executive action at issue. It was also troubled by the fact that its earlier ruling in Michigan v. EPA had proved to be largely ineffective because the Court had waited too long to rule. Again, my memory is this is what careful observers believed was happening at the time.

It is somewhat interesting to have it confirmed and see exactly what the Justices said, and again there is plenty of room to argue that the major questions doctrine is wrong, that the Court should have been more passive, etc. (I don’t necessarily disagree.) But it doesn’t seem to me that we’ve acquired much new information, and nothing new that is especially troubling.

Third, some people seem to be scandalized somehow by Chief Justice Roberts’s role in this. But he is the circuit justice for the D.C. Circuit, so he would normally be the first person to circulate his views about the application and propose a resolution. And we have already known for over a decade that the Chief Justice supported granting the application. The fact that he wrote a memo saying so, for the somewhat obvious reasons, isn’t that much of a revelation.

Relatedly, while everybody likes to describe Chief Justice Roberts as a committed “institutionalist,” I think people regularly overread their own label, or at least misunderstand what it means. Institutionalism does not necessarily mean foregoing one’s own view of the law, and it certainly does not mean adopting the readers’ and the critics’ views instead of one’s own. And in any event, surely acting on the concern that the executive branch is openly circumventing the federal courts should count as institutionalist.

Fourth, it is worth remembering that this all happened ten years ago, and that the authors of the memos did not have the benefit of our hindsight. When the Clean Power Plan memos were written, Antonin Scalia was alive, Barack Obama was President, and the last two years of the Obama administration seemed as if they had marked an unprecedented rise in unilateral executive lawmaking which the Court was responding to. We now know that First Trump Administration, Biden Administration, and Second Trump Administration would each make the late Obama years look placid in comparison. We now know that the federal courts would get sucked (or willingly jump) into a cycle of litigation against the executive branch, for better or worse. But it is unclear whether all of this was foreseen or foreseeable in February 2016.

Fifth, the biggest scandal here is in fact the leaks themselves. Supreme Court leaks like these — including copies of confidential work product — are becoming more common. In my view, this is a bad thing. It will damage the institutional culture of the Court and do little good. But Jodi Kantor is a super-powered investigative reporter, determined to break through some of the Court’s norms of confidentiality, and I would bet on her succeeding. If so, we will have to become skilled at figuring out what these documents really tell us, and what they do not.

The Fugitive Slave Act of 1850: A Public-Rights Paradox, by Scott Jones. Another interesting student note. (But I should clarify that I think there were quite plausible arguments that the Fugitive Slave Act of 1850 violated Article III, as I noted in Adjudication Outside Article III p. 1555).

Epistemic Discovery, Psychedelic Drugs, and the First Amendment, by Jeremy Kessler and David Pozen. Is this a doctrinal exploration of the constitutional right to freedom of thought, or a paper about the constitutional right to take psychedelics? Very interesting.

What Really Happens on the Emergency Docket, by Taraleigh Davis. A deep dive into the emergency/interim docket proceedings in Wisconsin v. Moeck in 2005. Very much worth reading as a 20-year-old case study, but I don’t think we can be confident in the post’s claim that “there is no reason to believe this process has changed significantly” since then. I just don’t think we know that much about the modern internal process.