Category: reason

Twitter Sues Texas Attorney General Ken Paxton, Accusing Him of Retaliating Against the Company for Banning Donald Trump

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Twitter sues to stop Texas’ top cop from violating the First Amendment. Twitter claims Texas Attorney General Ken Paxton is only investigating the company as payback for it banning former President Donald Trump’s account. “Paxton made clear that he will use the full weight of his office, including his expansive investigatory powers, to retaliate against Twitter for having made editorial decisions with which he disagrees,” Twitter says in its federal lawsuit, filed Monday in the U.S. District Court for the Northern District of California.

Paxton launched the investigation into Twitter and several other tech companies on January 13—just five days after Twitter’s suspension of Trump from its platform—decrying “the seemingly coordinated de-platforming of the President of the United States.”

But private companies are allowed to deplatform public officials as they see fit. The First Amendment doesn’t just protect the right of private individuals and corporations to speak freely without censorship from the government but to resist serving as a mandatory forum for government speech, too.

With the new lawsuit, Twitter “seeks to stop AG Paxton from unlawfully abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights,” it states. The suit continues:

The rights of free speech and of the press afforded Twitter under the First Amendment of the U.S. Constitution include the right to make decisions about what content to disseminate through its platform. This right specifically includes the discretion to remove or otherwise restrict access to Tweets, profiles, or other content posted to Twitter. AG Paxton may not compel Twitter to publish such content over its objection, and he may not penalize Twitter for exercising its right to exclude such content from its platform.

You can read the whole complaint here.

FREE MINDS

Iowa is cracking down on early voting, as part of Republicans’ ongoing charade that the 2020 election was rife with election fraud. “Republicans said the new rules were needed to guard against voting fraud, though they noted Iowa has no history of election irregularities and that November’s election saw record turnout with no hint of problems in the state,” notes NBC News. More:

The law shortens the early voting period to 20 days from the current 29, just three years after Republicans reduced the period from 40 days. It also requires most mail ballots to be received by Election Day, rather than counting votes postmarked by Election Day that arrive by noon on the Monday following the election.

Georgia yesterday also passed a bill restricting absentee voting:

FREE MARKETS

A new vision for antitrust law. Asheesh Agarwal, deputy general counsel at TechFreedom, lays out some of the popular, problematic, and woefully bipartisan proposals to give the U.S. government more control over private businesses and counters with a “positive antitrust agenda” that draws on existing laws and concepts:

In recent months, antitrust activists have defined the debate with very aggressive proposals that break from the bipartisan consensus of the past 40 years. These ideas, popular in Europe, include: abandoning the venerable consumer welfare standard to encompass amorphous concepts such as “democratic ideals”; calling for structural separation of large companies; and adopting a “guilty until proven innocent” presumption for many common business practices, such as small acquisitions.

Rather than simply oppose these ideas, antitrust traditionalists — people on both sides of the aisle who believe in settled antitrust concepts and have concerns about upending decades of law and practice — should promote their own, alternate agenda. Tim Muris, one of the Federal Trade Commission’s most successful chairmen ever, developed and implemented a “positive antitrust agenda” to show people that established antitrust concepts could address competitive concerns.

More on what a less extreme antitrust agenda might look like here.

QUICK HITS

• Another U.S. sex trafficking “rescue” group turns out to be a bunch of loons:

• The Centers for Disease Control and Prevention (CDC) now says that fully vaccinated people can “visit with other fully vaccinated people indoors without wearing masks or physical distancing,” “visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing,” and “refrain from quarantine and testing following a known exposure if asymptomatic.”

• It looks more and more likely that COVID-19 did originate in Wuhan, China, but not at an open-air market there.

• A record number of migrant children are being held in U.S. detention facilities. “More than 3,200 migrant children were stuck in Border Patrol facilities on Monday, with nearly half held beyond a three-day legal limit,” says CBS News.

• “A Michigan State Police trooper has been charged in an incident in which he set his dog on a driver and kept the biting animal on the man for nearly four minutes even though the driver was pleading for help,” reports NBC News.

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Overbroad Injunctions Against Speech: Narrower but Still Overbroad

(For the full PDF, with footnotes and an Appendix listing the cases I’m discussing, see here. All the posts in this series will be available here.)

Some injunctions are narrower, but still aren’t limited to unprotected categories of speech (such as threats or libel).

[1.] Negative/derogatory/disparaging speech

Some injunctions ban “negative,” “critical,” “derogatory,” “degrading,” “demean[ing],” “offensive,” or “disparag[ing]” material. Yet such negative but not defamatory material is generally fully protected by the First Amendment, as cases such as Hustler v. Falwell and Snyder v. Phelps make clear.

[2.] Speech interfering with business relationships

One injunction banned a disgruntled ex-tenant from “directly or indirectly interfering  … via any  … material posted … in any media with [the ex-landlords’] advantageous or contractual business relationships.” This provision deliberately went beyond defamation; indeed, a separate provision of the injunction already banned speech “calculated to defame.” Other courts have issued similar injunctions. Several more injunctions have barred disgruntled ex-clients from posting reviews of particular businesses or professionals, again without any limitation to false and defamatory factual claims.

Yet speech that interferes with business relationships, for instance by urging someone not to deal with a company, is generally fully protected, unless it’s defamatory. The tort of intentional interference with business relations is subject to the same First Amendment constraints as is the tort of defamation, which would include the requirement that liability only be imposed on a finding that the speaker’s statements included factual falsehoods.

Other injunctions have barred a defendant from contacting plaintiff’s clients or prospective clients; the injunctions applied to all statements, whether false and defamatory, true, or expressions of opinion. These too are unconstitutional: An injunction “which prohibits [defendant] generally ‘from contacting past or present clients of [plaintiff]'” is overbroad to the extent that it “is not supported by the district court’s findings of fact or conclusions of law regarding defamation.”

A similar injunction barred defendant from contacting plaintiff’s employer or prospective employers. Indeed, a Tennessee statute requires courts in all divorce cases to issue orders “restraining both parties … from making disparaging remarks about the other … to either party’s employer.” But that too is unconstitutional, for the reasons given above.

[3.] Specific accusations of misconduct (but with no finding of libel)

Still other injunctions forbid a speaker from making specific allegations of misconduct against plaintiff—but without any finding that the allegations are libelous:

  • In Stark v. Stark, for instance, Memphis Police Department Sergeant Joe Stark got a court order requiring his ex-wife, Pamela Stark, to take down a Facebook page that was critical of him (she had accused him of abusing her) and of the Police Department (which she had accused of not suitably investigating her claims of abuse).
  • Another order restrained a newspaper, the Daily Iberian, “from publishing or posting on its website any article or story in which plaintiff David W. Groner is accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter.”
  • A plaintiff got a pretrial injunction against defendant’s “[c]ontacting or communicating with people or entities in Idaho or on the internet concerning the criminal history of the Plaintiff(s)” or “any allegations of wrongdoing by Plaintiffs.”
  • Another speaker was barred from “characteriz[ing] Plaintiffs as unfit in their business and profession, cast[ing] serious doubt upon their honesty and integrity, and stat[ing] that Plaintiffs have committed or are currently committing a crime or other defamatory allegation.” This is not limited to false and defamatory future allegations; it applies even if defendants learn things that do cast serious doubt on plaintiffs’ honesty and integrity.
  • Another speaker was barred from making statements “suggesting that Plaintiff was not deployed overseas, was not in combat, was not injured while serving in the United States Military, and/or did not earn the medals he claims to have earned,” though the court expressly held that the evidence does “not confirm, one way, or another, without further investigation,” the accuracy or inaccuracy of those statements).
  • A parent whose child’s body had been prepared at a funeral home, and who was upset that a convicted sex offender was working there, was “restrained from speaking, delivering, publishing, emailing or disseminating information in any manner regarding [the employee’s] sex offender status, his address and employment status to anyone any­where.”
  • Some speakers have been enjoined from accusing plaintiffs of crimes, even without a finding that such accusations are false.
  • Some speakers have been enjoined from expressing pejorative opinions about plaintiffs, including ones that would be seen under libel law as pure opinions and therefore as constitutionally protected (e.g., references to plaintiff as a “bully” or “unprofessional”).

[4.] Accusations of misconduct sent to government authorities

Some courts have barred defendants from submitting complaints about plaintiffs to the police or to government agencies. A Tennessee statute, noted above, requires courts in all divorce cases to issue orders “restraining both parties … from making disparaging remarks about the other … to either party’s employer”; when one spouse works for the police department, these orders forbid the other spouse from filing a complaint with the police, or with higher-ups in local government.

[5.] Information about the underlying lawsuit

Some cases have barred the parties from speaking about the court order itself, or about filings in the case, e.g., “All parties are enjoined from disseminating this order to the public.”

[6.] Pictures of plaintiff

Some other injunctions ban posts that include pictures of the plaintiff: Businessman John Textor, for instance, got a court order barring his billionaire business rival Alki David from “posting any tweets” or “any images  … directed at John Textor without a legitimate purpose.” Community activist Clarence Moriwaki got an order barring a political critic, Richard Rynearson from “us[ing] the photograph of [Moriwaki] to create memes, posters, or other online uses.” I cite several more such cases in the Appendix.

Yet the First Amendment includes the right to illustrate one’s criticisms or comments about people using their photographs. Newspapers and TV stations routinely exercise that right, and other speakers are entitled to do the same.

[7.] Using plaintiff’s name in title or domain name

The Moriwaki v. Rynearson injunction barred Rynearson from posting sites or pages “that use the name or personal identifying information of [Moriwaki] in the title or domain name,” even when the pages made clear that they were criticizing Moriwaki rather than being authored or endorsed by him.

[8.] Other speech

  • In Brummer v. Wey, plaintiff—a prominent law professor who had been unsuccessfully nominated by President Obama to be on the Commodities Futures Trading Commission—got an injunction restricting an online tabloid from displaying any pictures of lynchings associated with his name. The tabloid had accused Prof. Brummer (who was himself black) of having perpetrated a figurative “lynching” of two black stockbrokers by being on an arbitration panel that permanently banned them from their profession. The images were accusations that Brummer was the lyncher, not threats that Brummer would himself be lynched, but the order nonetheless banned such images.
  • In Catlett v. Teel, plaintiff got an injunction barring her ex-boyfriend from posting public records that he had obtained about her, including ones that had mentioned her past arrests for harassment and domestic assault.

 

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Overbroad Injunctions Against Speech: Narrower but Still Overbroad

(For the full PDF, with footnotes and an Appendix listing the cases I’m discussing, see here. All the posts in this series will be available here.)

Some injunctions are narrower, but still aren’t limited to unprotected categories of speech (such as threats or libel).

[1.] Negative/derogatory/disparaging speech

Some injunctions ban “negative,” “critical,” “derogatory,” “degrading,” “demean[ing],” “offensive,” or “disparag[ing]” material. Yet such negative but not defamatory material is generally fully protected by the First Amendment, as cases such as Hustler v. Falwell and Snyder v. Phelps make clear.

[2.] Speech interfering with business relationships

One injunction banned a disgruntled ex-tenant from “directly or indirectly interfering  … via any  … material posted … in any media with [the ex-landlords’] advantageous or contractual business relationships.” This provision deliberately went beyond defamation; indeed, a separate provision of the injunction already banned speech “calculated to defame.” Other courts have issued similar injunctions. Several more injunctions have barred disgruntled ex-clients from posting reviews of particular businesses or professionals, again without any limitation to false and defamatory factual claims.

Yet speech that interferes with business relationships, for instance by urging someone not to deal with a company, is generally fully protected, unless it’s defamatory. The tort of intentional interference with business relations is subject to the same First Amendment constraints as is the tort of defamation, which would include the requirement that liability only be imposed on a finding that the speaker’s statements included factual falsehoods.

Other injunctions have barred a defendant from contacting plaintiff’s clients or prospective clients; the injunctions applied to all statements, whether false and defamatory, true, or expressions of opinion. These too are unconstitutional: An injunction “which prohibits [defendant] generally ‘from contacting past or present clients of [plaintiff]'” is overbroad to the extent that it “is not supported by the district court’s findings of fact or conclusions of law regarding defamation.”

A similar injunction barred defendant from contacting plaintiff’s employer or prospective employers. Indeed, a Tennessee statute requires courts in all divorce cases to issue orders “restraining both parties … from making disparaging remarks about the other … to either party’s employer.” But that too is unconstitutional, for the reasons given above.

[3.] Specific accusations of misconduct (but with no finding of libel)

Still other injunctions forbid a speaker from making specific allegations of misconduct against plaintiff—but without any finding that the allegations are libelous:

  • In Stark v. Stark, for instance, Memphis Police Department Sergeant Joe Stark got a court order requiring his ex-wife, Pamela Stark, to take down a Facebook page that was critical of him (she had accused him of abusing her) and of the Police Department (which she had accused of not suitably investigating her claims of abuse).
  • Another order restrained a newspaper, the Daily Iberian, “from publishing or posting on its website any article or story in which plaintiff David W. Groner is accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter.”
  • A plaintiff got a pretrial injunction against defendant’s “[c]ontacting or communicating with people or entities in Idaho or on the internet concerning the criminal history of the Plaintiff(s)” or “any allegations of wrongdoing by Plaintiffs.”
  • Another speaker was barred from “characteriz[ing] Plaintiffs as unfit in their business and profession, cast[ing] serious doubt upon their honesty and integrity, and stat[ing] that Plaintiffs have committed or are currently committing a crime or other defamatory allegation.” This is not limited to false and defamatory future allegations; it applies even if defendants learn things that do cast serious doubt on plaintiffs’ honesty and integrity.
  • Another speaker was barred from making statements “suggesting that Plaintiff was not deployed overseas, was not in combat, was not injured while serving in the United States Military, and/or did not earn the medals he claims to have earned,” though the court expressly held that the evidence does “not confirm, one way, or another, without further investigation,” the accuracy or inaccuracy of those statements).
  • A parent whose child’s body had been prepared at a funeral home, and who was upset that a convicted sex offender was working there, was “restrained from speaking, delivering, publishing, emailing or disseminating information in any manner regarding [the employee’s] sex offender status, his address and employment status to anyone any­where.”
  • Some speakers have been enjoined from accusing plaintiffs of crimes, even without a finding that such accusations are false.
  • Some speakers have been enjoined from expressing pejorative opinions about plaintiffs, including ones that would be seen under libel law as pure opinions and therefore as constitutionally protected (e.g., references to plaintiff as a “bully” or “unprofessional”).

[4.] Accusations of misconduct sent to government authorities

Some courts have barred defendants from submitting complaints about plaintiffs to the police or to government agencies. A Tennessee statute, noted above, requires courts in all divorce cases to issue orders “restraining both parties … from making disparaging remarks about the other … to either party’s employer”; when one spouse works for the police department, these orders forbid the other spouse from filing a complaint with the police, or with higher-ups in local government.

[5.] Information about the underlying lawsuit

Some cases have barred the parties from speaking about the court order itself, or about filings in the case, e.g., “All parties are enjoined from disseminating this order to the public.”

[6.] Pictures of plaintiff

Some other injunctions ban posts that include pictures of the plaintiff: Businessman John Textor, for instance, got a court order barring his billionaire business rival Alki David from “posting any tweets” or “any images  … directed at John Textor without a legitimate purpose.” Community activist Clarence Moriwaki got an order barring a political critic, Richard Rynearson from “us[ing] the photograph of [Moriwaki] to create memes, posters, or other online uses.” I cite several more such cases in the Appendix.

Yet the First Amendment includes the right to illustrate one’s criticisms or comments about people using their photographs. Newspapers and TV stations routinely exercise that right, and other speakers are entitled to do the same.

[7.] Using plaintiff’s name in title or domain name

The Moriwaki v. Rynearson injunction barred Rynearson from posting sites or pages “that use the name or personal identifying information of [Moriwaki] in the title or domain name,” even when the pages made clear that they were criticizing Moriwaki rather than being authored or endorsed by him.

[8.] Other speech

  • In Brummer v. Wey, plaintiff—a prominent law professor who had been unsuccessfully nominated by President Obama to be on the Commodities Futures Trading Commission—got an injunction restricting an online tabloid from displaying any pictures of lynchings associated with his name. The tabloid had accused Prof. Brummer (who was himself black) of having perpetrated a figurative “lynching” of two black stockbrokers by being on an arbitration panel that permanently banned them from their profession. The images were accusations that Brummer was the lyncher, not threats that Brummer would himself be lynched, but the order nonetheless banned such images.
  • In Catlett v. Teel, plaintiff got an injunction barring her ex-boyfriend from posting public records that he had obtained about her, including ones that had mentioned her past arrests for harassment and domestic assault.

 

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The Great Vaccine Fiasco

topicsscience

Like so much of the government response to COVID-19, the rollout of vaccines has been beset by poor planning and bad management.

While vaccine distribution is underway, federal predictions that 20 million Americans would be vaccinated by the end of 2020 were off by an order of magnitude; the actual number was a bit more than 2 million. Eleven days into 2021, the Centers for Disease Control and Prevention (CDC) reported that only 9 million or so Americans had received their first doses. “It was a planning error, and I am responsible,” U.S. Army General Gustave F. Perna, chief operations officer for the Trump administration’s Operation Warp Speed vaccine program, said in December.

Perna was responding to state officials who complained that the federal government was slow to deliver vaccines and that they had nowhere else to turn. By pre-purchasing hundreds of millions of doses, the feds arguably stimulated production, but they also bypassed normal channels. That left them with a virtual monopoly, and they demonstrated all the speed and care characteristic of the U.S. Postal Service and the Veterans Affairs Department.

“Pfizer is not having any production issues with our COVID-19 vaccine, and no shipments containing the vaccine are on hold or delayed,” the pharmaceutical company announced on December 17, as criticism mounted. “This week, we successfully shipped all 2.9 million doses that we were asked to ship by the U.S. Government to the locations specified by them. We have millions more doses sitting in our warehouse but, as of now, we have not received any shipment instructions for additional doses.”

To be fair, there was plenty of blame to be shared by state and local officials. New York’s Democratic governor, Andrew Cuomo, threatened providers with huge fines and loss of their licenses if they bypassed government criteria for prioritizing vaccine recipients. When, inevitably, providers dumped doses rather than face penalties for letting people jump the list, he threatened new consequences. As Reason‘s Billy Binion noted, “Cuomo presented area hospitals with a double bind: Fail to use all of your vaccines and be fined up to $100,000, or vaccinate people out of order and be fined $1,000,000.”

In Florida, state and county online reservation systems crashed and phone lines booted those who sought to make vaccination appointments. “Due to overwhelming demand, we have reached capacity with our COVID-19 vaccination for the community,” the Broward County Board of Health announced on December 30. “Scheduling will resume in the coming weeks.”

Of course, it wouldn’t be a government program if unsavory political considerations didn’t enter at some point. “In one of the most shocking moral misjudgments by a public body I have ever seen, the CDC invoked considerations of ‘social justice’ to recommend providing vaccinations to essential workers before older Americans even though this would, according to its own models, lead to a much greater death toll,” wrote Yascha Mounk, a professor of political science at Johns Hopkins University. “The CDC was effectively about to recommend that a greater number of African-Americans die so that the share of African-Americans who receive the vaccine is slightly higher.”

That proposal ultimately was rejected, again thanks to political considerations. “Governors are under enormous pressure from their constituents—especially older people, who vote in great numbers and face the highest risk of dying from the virus—to get the doses they receive into arms swiftly,” The New York Times noted.

In mid-January, Health and Human Services Secretary Alex Azar announced accelerated vaccine distribution through “more than 40,000 pharmacy locations from 19 chains and associations across the country.” It seemed a logical move, given that pharmacies regularly administer vaccines and many have small medical clinics. Perhaps they should have played a larger role from the beginning?

Government red tape still threatens to hobble distribution. At a New York facility attempting to comply with vaccine requirements, USA Today reported, “it took 52 clicks on each person’s digital medical record before the patient was ready to receive a shot.” A spokeswoman for Virginia’s Chesapeake Health Department noted that “the additional burden of the system, process, paperwork, policies, CDC, and budget is overwhelming” for many vaccine providers.

Once again, government planning has proven to be less a cure and more a competing disease.

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The Great Vaccine Fiasco

topicsscience

Like so much of the government response to COVID-19, the rollout of vaccines has been beset by poor planning and bad management.

While vaccine distribution is underway, federal predictions that 20 million Americans would be vaccinated by the end of 2020 were off by an order of magnitude; the actual number was a bit more than 2 million. Eleven days into 2021, the Centers for Disease Control and Prevention (CDC) reported that only 9 million or so Americans had received their first doses. “It was a planning error, and I am responsible,” U.S. Army General Gustave F. Perna, chief operations officer for the Trump administration’s Operation Warp Speed vaccine program, said in December.

Perna was responding to state officials who complained that the federal government was slow to deliver vaccines and that they had nowhere else to turn. By pre-purchasing hundreds of millions of doses, the feds arguably stimulated production, but they also bypassed normal channels. That left them with a virtual monopoly, and they demonstrated all the speed and care characteristic of the U.S. Postal Service and the Veterans Affairs Department.

“Pfizer is not having any production issues with our COVID-19 vaccine, and no shipments containing the vaccine are on hold or delayed,” the pharmaceutical company announced on December 17, as criticism mounted. “This week, we successfully shipped all 2.9 million doses that we were asked to ship by the U.S. Government to the locations specified by them. We have millions more doses sitting in our warehouse but, as of now, we have not received any shipment instructions for additional doses.”

To be fair, there was plenty of blame to be shared by state and local officials. New York’s Democratic governor, Andrew Cuomo, threatened providers with huge fines and loss of their licenses if they bypassed government criteria for prioritizing vaccine recipients. When, inevitably, providers dumped doses rather than face penalties for letting people jump the list, he threatened new consequences. As Reason‘s Billy Binion noted, “Cuomo presented area hospitals with a double bind: Fail to use all of your vaccines and be fined up to $100,000, or vaccinate people out of order and be fined $1,000,000.”

In Florida, state and county online reservation systems crashed and phone lines booted those who sought to make vaccination appointments. “Due to overwhelming demand, we have reached capacity with our COVID-19 vaccination for the community,” the Broward County Board of Health announced on December 30. “Scheduling will resume in the coming weeks.”

Of course, it wouldn’t be a government program if unsavory political considerations didn’t enter at some point. “In one of the most shocking moral misjudgments by a public body I have ever seen, the CDC invoked considerations of ‘social justice’ to recommend providing vaccinations to essential workers before older Americans even though this would, according to its own models, lead to a much greater death toll,” wrote Yascha Mounk, a professor of political science at Johns Hopkins University. “The CDC was effectively about to recommend that a greater number of African-Americans die so that the share of African-Americans who receive the vaccine is slightly higher.”

That proposal ultimately was rejected, again thanks to political considerations. “Governors are under enormous pressure from their constituents—especially older people, who vote in great numbers and face the highest risk of dying from the virus—to get the doses they receive into arms swiftly,” The New York Times noted.

In mid-January, Health and Human Services Secretary Alex Azar announced accelerated vaccine distribution through “more than 40,000 pharmacy locations from 19 chains and associations across the country.” It seemed a logical move, given that pharmacies regularly administer vaccines and many have small medical clinics. Perhaps they should have played a larger role from the beginning?

Government red tape still threatens to hobble distribution. At a New York facility attempting to comply with vaccine requirements, USA Today reported, “it took 52 clicks on each person’s digital medical record before the patient was ready to receive a shot.” A spokeswoman for Virginia’s Chesapeake Health Department noted that “the additional burden of the system, process, paperwork, policies, CDC, and budget is overwhelming” for many vaccine providers.

Once again, government planning has proven to be less a cure and more a competing disease.

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Brickbat: That Burns

housefire_1161x653

Former Laurel, Maryland, police chief David Crawford is facing numerous charges of attempted murder, arson and malicious burning in connection with a dozen fires in multiple counties across the state. The fires took place between 2011 and 2020, and officials eventually established that all of the victims had professional or personal ties to Crawford. Police say when they searched his home, they found a “target list.” They also say his Internet search history included searches for the victims’ addresses and that Crawford had a burn scar on his leg. His targets included his stepson, former co-workers, his chiropractor and a woman with whom he had a disagreement about school redistricting. Crawford had opposed a school redistricting proposal, saying in a public forum he was concerned about immigrants bringing crime.

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Brickbat: That Burns

housefire_1161x653

Former Laurel, Maryland, police chief David Crawford is facing numerous charges of attempted murder, arson and malicious burning in connection with a dozen fires in multiple counties across the state. The fires took place between 2011 and 2020, and officials eventually established that all of the victims had professional or personal ties to Crawford. Police say when they searched his home, they found a “target list.” They also say his Internet search history included searches for the victims’ addresses and that Crawford had a burn scar on his leg. His targets included his stepson, former co-workers, his chiropractor and a woman with whom he had a disagreement about school redistricting. Crawford had opposed a school redistricting proposal, saying in a public forum he was concerned about immigrants bringing crime.

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When the Chief Stands Alone

On Monday, the Supreme Court decided Uzuegbunam v. Preczewski. The Justices split 8-1. Justice Thomas assigned himself the majority opinion. And Chief Justice was the lone dissenter. Never before had Roberts been the lone dissenter in an 8-1 decision. Indeed, since Roberts joined the Court in 2005, he has only written four solo dissents. Three of them have been in the past four months. After a term at the pinnacle of his power, the Chief stands alone.

First, Roberts wrote a solo dissent in United States v. Windsor (2013). That case split 5-4. Remember this prescient observation from the Chief’s dissent?

The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” ante, at 2692, may continue to utilize the traditional definition of marriage.

ObergefeLOL.

Roberts would not write another solo dissent again until November 2020. Roman Catholic Diocese v. Cuomo split 5-4 a few days after Justice Barrett joined the bench. Of course, that decision reversed Roberts’s super-duper South Bay precedent. Roberts’s third solo dissent came in Agudath Israel v. Cuomo, the companion case to Roman Catholic Diocese. And the fourth solo dissent came in Uzuegbunam.

Over the past 15 years, the Chief has rarely stood alone. Going forward, as the Court shifts to Roberts’s right, I think we will see more and more solo Roberts dissents. The liberals no longer have any incentive to join his idiosyncratic approach. Four does not make five.

Robert’s predecessor, and former boss, wrote far more lone dissents. By my count, Rehnquist had five in two decades. Four of these lone dissents came shortly after Rehnquist became Chief: (1) Hobbie v. Unemployment Appeals Com’n of Florida (1987);  (2) Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988); (3) Tulsa Professional Collection Services, Inc. v. Pope (1988); and (4) Penson v. Ohio (1988). Rehnquist’s fifth lone dissent came four years later in Chemical Waste Management, Inc. v. Hunt (1992). Five more years would elapse before the sixth lone dissent in Chandler v. Miller (1997). Rehnquist’s final lone dissent came in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton (2002).

One final observation about Roberts’s dissent. He really, really likes citing Chief Justice Jay’s famous “Correspondences of the Justices.” Here is the passage from Uzuegbunam:

Five years after Hamilton wrote Federalist No. 78, Secretary of State Thomas Jefferson sent a letter on behalf of President George Washington to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for advice about the Nation’s rights and obligations regarding the ongoing war in Europe. Washington’s request must have struck him as reasonable enough, since English sovereigns regularly sought advice from their courts. Yet the Justices declined the entreaty, citing “the lines of separation drawn by the Constitution between the three departments of the government.” 3 Correspondence and PublicPapers of John Jay 488 (H. Johnston ed. 1891). For over two centuries, the Correspondence of the Justices has stood as a reminder that federal courts cannot give answers simply because someone asks. 

Roberts included the same citation in his dissent from Campbell-Ewald Co. v. Gomez (2016):

In 1793, President George Washington sent a letter to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for the opinion of the Court on the rights and obligations of the United States with respect to the war between Great Britain and France. The Supreme Court politely—but firmly—refused the request, concluding that “the lines of separation drawn by the Constitution between the three departments of the government” prohibit the federal courts from issuing such advisory opinions. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1890–1893).

And Roberts included the same citation in U.S. v. Windsor (2013):

In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.'” That is why, in 1793, we politely declined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit.

In case you were wondering, Roberts managed to cite John Marshall twice. Once as a member of Congress:

As John Marshall emphasized during his one term in the House of Representatives, “[i]f the judicial power extended to every question under the constitution” or “to every question under the laws and treaties of the United States,” then “[t]he division of power [among the branches of Government] could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984) (quoted in Daimler Chrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006)) [Roberts, J.]. 

And of course, Marbury.

The Judiciary is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret the rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added). Today’s decision abandons that principle. 

The Chief is nothing if not predictable.

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