In the comments to Josh Blackman’s post at VC, Molly Godiva called it “constitutional Calvinball.” Josh contrasts two shadow docket decisions to raise the question of whether, and to what extent, they create “clearly established” law for the purposes of qualified immunity.

The Supreme Court’s emergency docket ruling in Mirabelli and denial of certiorari in Foote will send conflicting signals. On the one hand, the Court blocked California’s policy on the shadow docket. On the other hand, the Court allowed a similar policy from Massachusetts to go into effect.

A question arises. Would this school district retain qualified immunity? Does Mirabelli, as an emergency docket ruling, create “clearly established” law? I know the Supreme Court has told us that emergency docket rulings are precedential. But is the law “clearly established”? Would this sort of ruling be clearly established by the Supreme Court for purposes of AEDPA?

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At Volokh Conspiracy, Stephen Sachs, the Scalia Prawf at Harvard Law School, posits a curious take on the New York Times article about the leaked memos revealing the shift in how the Supreme Court dealt with the shadow docket. The premise is that one of the writers, Adam Liptak, is a lawyer as well as journalist, such that his involvement in either obtaining the confidential memos or writing about them violates attorney disciplinary rules.

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.

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Without providing any clue how they got their hands on 16 internal Supreme Court memos, the New York Times posits that almost a week’s worth of the justices’ correspondence, from February 5th to the 9th, 2016, changed the Shadow Docket forever.

For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.

But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama’s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan’s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning.

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After Judge Leon issued a preliminary injunction against Trump’s construction of the monstrously huge, yet tastelessly gaudy, ballroom, Trump took to the tube to explain that the judge’s allowance of construction limited to national security meant he could build anything he wanted.

Carving out a narrow exception, Judge Leon wrote in his order that “actions strictly necessary to ensure the safety and security of the White House” could continue, to prevent any risks from an open work site next to the president’s residence.

The problem, as Judge Leon saw it, was that the White House now had a gaping hole where once the East Wing stood, and it was not unreasonable to allow construction to secure that hole. But give Trump an inch and he takes whatever he wants. Continue reading →

I’m not a gambler. Sure, I’ve been to casinos and played games of chance. Sure, I played in the longest running floating poker game on the Long Island Railroad. But that was just to kill time, not to win money. I haven’t been to a casino in years and have no desire to go. I don’t have a gambling app on my Jitterbug. I tell you this not to demonstrate my virtue, but rather my bias. If gambling ceased to exist, it would not cost me a moment’s sleep.

Yet, David French strays down a slippery slope here.

What is the problem? We are making virtue more difficult and vice easier to access. By the time young men enter adulthood, they’ve been conditioned by a world that makes it ever easier to place a bet and harder to go to college. It’s easier to watch porn and more difficult to form real relationships. And the social results of this gigantic national experiment are exactly what you’d expect them to be.

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Two of the the three judge panel, both appointed by Trump, decided that their efforts were better put toward the painful parsing of Judge James Boasberg’s words than upholding the duty to comply with the order of the court. Writing for the majority, Judge Neomi Rao held that Judge Boasberg’s pursuit of criminal contempt was a “clear abuse of discretion.”

The widening gyre of the district court’s investigation again calls for the extraordinary remedy of mandamus to halt the judicial “impairment of another branch in the performance of its constitutional duties.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 390 (2004) (cleaned up). The district court proposes to probe high-level Executive Branch deliberations about matters of national security and diplomacy. These proceedings are a clear abuse of discretion, as the district court’s order said nothing about transferring custody of the plaintiffs and therefore lacks the clarity to support criminal contempt based on the transfer of custody. Moreover, the government has already provided the name of the responsible official, so further judicial investigation is unnecessary and therefore improper. In these circumstances, mandamus is appropriate to prevent the district court from assuming an antagonistic jurisdiction that encroaches on the autonomy of the Executive Branch.

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Who could have possibly guessed that Trump’s defamation suit against that radical left lunatic rag, the Wall Street Journal (not to mention my old pal, Joe Palazzolo, one-time author of the WSJ Law Blog), for a whopping $10 billion over Trump’s “fake hoax” Epstein birthday book note would end up getting tossed?

The Complaint also alleges that President Trump told Defendants that the Letter was a fake before they ran the Article. President Trump argues that this allegation shows that Defendants acted with serious doubts about the truth of their reporting and, therefore, with actual malice. The Court disagrees. To establish actual malice, “a plaintiff must show the defendant deliberately avoided investigating the veracity of the statement in order to evade learning the truth.” Continue reading →

Over the past few years, judges have increasingly indulged in cutesy, gratuitous and inflammatory rhetoric in their rulings. It’s not just about using exclamation marks like a rebellious teeny-bopper, but bluntly calling out the government’s failures, from compliance with orders to factual assertions that were facial lies.

I’ve been critical of the methods, on occasion, but whether such writing is appropriately done is a separate matter from whether it’s ethically proper for a judge to do so, whether you like the rhetoric or not. Renowned ethics prawf Stephen Gillers argues that not only is this ethically proper, but it’s ethically encouraged. Continue reading →

The en banc opinions of the Fourth Circuit in AFSCME v. Social Security Administration, dealing with the Temporary Restraining Order issued by the district judge against the SSA providing DOGE with unfettered access to the personal, non-anonymized information of pretty much everyone in America for no particularly good reason, was ultimately stayed by the Supreme Court for no particularly good reason.  It is an exercise in legal masturbation in its purest form.

The majority, in an opinion by Judge Toby Heytens, with three concurrences and a partial concurrence and a dissent, took the position that there was no new irreparable harm, warranting a TRO, and that any harm could be cured by compensation, and therefore wasn’t irreparable. Continue reading →

It was an unusual sight, the First Lady of the United States striding up to a lectern with the presidential seal affixed, the scene oddly reminiscent of the president mere days before. Melania Trump, The Donald’s fraught third attempt at monogamy, then gave a speech denying her relationship with Jeffrey Epstein and his “accomplice,” Ghislaine Maxell.

Perhaps there was someone, somewhere, pointing a crooked finger at Melania, but if so, it eluded most of us. So why doth she protest too much? Continue reading →