PrawfsBlawg

I’m reading through the Senate’s Report on the 1968 Omnibus Crime Act. One part of this law purported to set aside Miranda in federal criminal cases. (This was held invalid by the Court in 2000). Another portion imposed various gun control measures. Here was the Report’s punchline about the 2nd Amendment:

“It is clear, for example, that a State law prohibiting the carrying of revolvers without a license, or forbidding possession of concealed weapons, does not violate either the Federal or that State’s constitution. And it is clear that no body of citizens other than the organized State militia, or other military organization provided for by law, may be said to have a constitutional right to bear arms.”

The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Aderson Bellegarde François & Helen Hershkoff, Pennoyer, Due Process, and the End of Reconstruction, __ N.Y.U. L. Rev. __ (forthcoming), which places Pennoyer in the jurisprudential and constitutional debates of the late 1870s.

I started listening to the oral argument in Frontiero v. Richardson. In those days, the argument audio picked up some of the chit-chat among the Justices on the bench. At the start, you can clearly hear someone (most likely Chief Justice Burger) saying “short skirt” repeatedly. Here is the link

I can’t say for sure to what or who this comment refers. But Ruth Bader Ginsburg was sitting at counsel’s table and would soon make her argument. In any event, it’s a rather odd kickoff to an argument on sex discrimination.

The Sixth Circuit affirmed an injunction prohibiting Tennessee from enforcing a law prohibiting “recruiting” minors (i.e., providing truthful information about how) to obtain lawful abortions outside of Tennessee. The majority affirmed a universal injunction for two reasons–the law was overbroad and it raised concerns of interstate federalism (one state infringing on the power of another) rather than horizontal separation of powers as in CASA. Chief Judge Sutton dissented on the merits (he argued that plaintiffs’ speech does not violate the law, properly construed) and on scope..

Unsurprisingly, I believe Sutton (pp. 69-72) has the better of the exchange than the majority (pp. 40-45)

Adopting universal (rather than nationwide) recognizes that party particularity and complete relief apply to all injunctions in constitutional cases, not only challenges to federal law. Universality captures all beyond-the-plaintiff injunctions, with variance only in the size of the universe. But the principle of party particularity should not vary with the targeted law. I am amazed a court could go a different direction on this point in the face of CASA‘s categorical language.

Overbreadth goes to the merits. It allows a party to prevail on a First Amendment challenge to a law even where the party’s speech is unprotected where the law regulates a wide range of other people’s protected speech. And it may create binding precedent that makes obvious the outcome of future enforcement efforts. But the remedy–stopping enforcement of the law–remains particularized to the plaintiff. That should be obvious from United States v. Stevens (which the majority emphasized in discussing overbreadth); although Stevens’ animal-crush videos might have been unprotected, he could get the Court to rule that the law was constitutionally invalid because it could have reached other people’s hunting videos. But the remedy was singular to Stevens–dismissing his prosecution. The rest was a matter of precedent applied to future enforcement efforts.

Here’s another way in which the “ceremonial civic space” has shrunk. The Vice-President used to be someone who did very little. He was therefore useful for presiding at formal events or (in the cliche) representing the United States at funerals.

This came to an end with Richard Nixon and/or the Cold War. Since then, Vice-Presidents have been important partisan and administrative officials.

Complete information here. For those who graduated law school between 2023-2028. Sponsored by Judicature and the Bolch Judicial Institute.

In October 1972, Birch Bayh published an article in the Notre Dame Law Review entitled “The Need For the Equal Rights Amendment.” Note the date. This was after the ERA was sent to the states for ratification but before Roe and Frontiero. What you see through this window is a different view of what constitutional law could have looked like.

While Senator Bayh repeated many of the standard arguments for the ERA, he made two points that startled me. Here is #1:

“[A] law which bases legal consequences on a characteristic unique to only one sex (e.g., the ability to bear children) would be fully constitutional.”

This was saying that state abortion bans would be valid under the ERA, though Bayh never used the word “abortion” in the article. T

#2 involved “the rights to privacy established in Griswold v. Connecticut. As the House and Senate Committee Reports on the Amendment both stated, ‘[T]his right [to privacy] would . . . permit a separation of the sexes with respect to such places as public toilets, as well as sleeping quarters of public institutions.”

This right to privacy is very different from the one that we learned in school. Abortion is not included, but other issues that are still considered valid sex distinctions (bathrooms in public buildings) are. It’s not hard to see how Roe pulled the rug out from under Bayh’s arguments. I don’t know, though, to what extent he anticipated Roe. The Bayh Subcommittee did hold many hearings on that case (more than on any other, which is telling) but the ERA rarely came up.

A side note to my prior posts on the unitary executive. The Senate is our only institution that has a different ceremonial and functional head. The Majority Leader runs the Senate. But the President Pro Tempore is the leader who is mentioned multiple times in the Constitution. (The Majority leader is not mentioned). The President Pro Tempore is now just the most senior Senator in the majority, though that isn’t always how the post worked.

What does the President Pro Tempore do? Receive special communications (say, under the Twenty-Fifth Amendment). Preside over the Senate for some ceremonies when the VP cannot or will not. And so on.

Now why not have the Majority Leader do this? The Senate could, of course, make the President Pro Tempore the Majority Leader. Presumably they think that there is some value in separating these roles in a way that the House and the Executive do not. (The House could, of course, follow the British tradition and make the Speaker someone who is not in the party leadership, but we’ve never really done that.)

What about the Chief Justice and the Supreme Court? That’s another post.

I noted earlier this week that the American Constitution is an outlier in not separating the head of state from the head of government. If that’s a serious flaw, then how did we manage that problem for so long?

The answers largely sound in political customs that gave the President the appearance of being above politics in some sense. These include:

1. George Washington and some of his successors stayed above the fray and emphasized their ceremonial role.
2. Presidents and presidential candidates did not campaign for that office until the end of the 19th century. It was seen as undignified or gauche.
3. Presidents did not campaign for another candidates. When Andrew Johnson did this in 1866, his efforts were widely panned and he was impeached, in part, for acting in a way that was beneath the dignity of the office. The taboo held until (I would say) 1948 and Truman’s attack on the “Do-Nothing” Congress.
4. When party conventions became the way of choosing candidates, those vying for the nomination typically did not appear at the convention and did not give an acceptance speech. This custom started eroding toward the end of the 19th century but did not end until 1944.
5. Party bosses were seen (or blamed for) the mechanics of the party. They chose the President and had significant independence from him. The thought that the President was the party boss did not emerge until after World War II.
6. The Cold War gave post-World II presidents an aura of sorts as the “leader of the free world.”

The end of the Cold War left the head of state fiction on shaky ground, which finally collapsed in 2016. Is there anything that can bring it back? I’ll explore that issue another time.

Folks should watch Furious (Hulu), a great show about a female FBI agent hunting a female serial killer targeting men who trafficked her. (I do not believe this involves spoilers).

The end-game (no spoilers, since this is not a mystery) revolves around the agent allowing the serial killer to go to the home of the “main” trafficker (a not-subtle Jeffrey Epstein analogue) so police can arrest her at the guy’s house and search the entire house as a search-incident-to-lawful-arrest (which, they hoped, would turn up CSAM).

Here is my question: That cannot be legally accurate, can it? Can law enforcement use SILA to conduct a broad search of property belonging to someone other than the arrestee (and, in this case, belonging to the person the arrestee was trying to kill)?

We may be heading towards a reckoning over Younger and its bad-faith exception.

I wrote about this case. Florida AG James Uthmeier pursued state-law consumer-protection charges against against medical organizations over their support and policies over gender-affirming care, an action that likely violates the First Amendment. The organizations filed a § 1983 action in Illinois, seeking to enjoin the state-court proceeding. The district court refused to abstain under Younger, citing the bad-faith exception; a Seventh Circuit panel refused to stay the injunction, agreeing the bad-faith exception applied. The full court vacated the panel order, stayed the injunction, and ordered initial en banc review. The medical organizations dismissed their action, the district court vacated the PI, and the Seventh Circuit dismissed the appeal as moot.

That triggered an exchange of separate opinions about the scope of Younger and of the bad-faith exception. The competing views nicely frame the coming debate.

Judges Hamilton and Jackson-Akiwumi emphasize the serious First Amendment issues at stake in these cases, such as the bad-faith exception cannot be a null set. This maps onto Judge Rosenbaum’s (11th Cir) 2024 concurrence highlighting Younger‘s negative First Amendment consequences.

Judge Kolar attempts to balance federalism and constitutional rights. He questioned what to make of the fact that SCOTUS had applied the bad-faith exception once,¹ which could mean it is “withering on the vine” as doctrine or remains available when bad-faith prosecutions arise. In Part III, Kolar cites Robert Jackson’s statement about the power of the prosecutor. He then highlights the availability and increased use of civil (rather than criminal) enforcement and the increase in allegations of bad-faith, with the possibility that state prosecutors have changed how they operate, making the bad-faith concern more salient.

[ED: That last point is important and may drive the conversation that follows. We are seeing something different: Independently elected attorneys general (not local prosecutors and police) with political ambitions and agendas are pursuing specious civil investigations on hot-button culture-war issues using laws (consumer protection) not intended for the targeted conduct and in a way that raises serious First Amendment problems with (under current doctrine) obvious results.

Judges Scudder, Brennan, St. Eve, and Kirsch dance on the federalism issue. He argues for parity and argues for the sufficiency of defensive nullification in state court as a mechanism for vindicating First Amendment rights.

1. And saying that is something of a cheat. Dombrowski v. Pfister came five years before Younger; the Court enjoined that prosecution without discussing “Our Federalism” because “Our Federalism” did not exist. Dombrowski became a bad-faith case as we tried to reconcile that case with Younger‘s bar. ↩︎

The recent discussion about access to the Justices’s papers misses an important point. They may be worried about not receiving candid advice from their clerks and protecting them in their future careers.

Think about it. Justice X will be dead when his or her papers are released. But most of the clerks will be alive and mid-career. Maybe they will be under consideration as future judges or running for office. Disclosure of memos they wrote when young could be highly embarrassing. Or concern about that could cause them to pull their punches when they write a bench memo to their boss.

I wonder, for example, what I would think of the bench memos that I wrote if I saw them now. Probably I’d think they were terrible, but who knows.