Category: reason

From the Indiana Commission on Judicial Qualifications, Indiana Judicial Ethics Advisory Opinion # 1-20, just posted on Westlaw; recall that Indiana judges, like the judges in most states, run in elections:

In light of recent events, a number of judicial officers have sought advice about whether, consistent with their ethical obligations under the Code of Judicial Conduct, they may attend and participate in marches, demonstrations, vigils, protests, and other public events aimed at addressing various social issues….

When judicial officers seek to speak out publicly by participating in demonstrations, vigils, protests, or marches, two countervailing interests are at play: the First Amendment rights of the judge versus the state’s interest in preserving the independence, integrity, and impartiality of the judiciary. As this Commission recognized in Public Admonition of Letsinger (Ind. 1997):

“Judges are not forbidden from making public comments; in fact, they should be encouraged to engage in temperate and judicious speech on any subject, so long as the speech does not compromise the high ethical standards by which judges, unlike other citizens, are held. Judges do not lose entirely their rights to free speech, but it is well established that the preservation of the integrity and of the public perception of the judiciary justifies certain infringements on a judge’s right to speak out (emphasis added).”

Similarly, preservation of the independence and impartiality of the judiciary equally justifies certain infringements on a judge’s right to speak out publicly….

• Rule 1.2 requires judges to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary. Comments 4 and 6 to this Rule encourage judges to participate in activities that, among other things, promote access to justice for all and to engage in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice.
• Rule 1.3 prohibits judges from using the prestige of office to advance the personal interests of the judge or others, or to allow others to do so.
• Rule 2.10(A) prohibits judges from making public statements that might reasonably be expected to affect the outcome or impair the fairness of a pending or impending matter in any court. Subsection (B) prohibits judges from making pledges, promises, or commitments that are inconsistent with the impartial performance of a judge’s adjudicative duties in relation to cases, controversies, or issues likely to come before the court.
• Rule 2.11(A)(5) specifically requires judges to disqualify if they have made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in a proceeding or controversy. Further, Rule 2.11(A) generally requires judges to disqualify any time the judge’s impartiality might reasonably be questioned.
• Rule 3.1 generally permits judges to engage in extrajudicial activities as long as participation: 1) will not interfere with the proper performance of judicial duties; 2) will not lead to frequent disqualification of the judge; 3) would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality; 4) would not appear to a reasonable person to be coercive; and 5) does not involve the use of court premises or resources, except for incidental use.
• Rule 3.7(A)(4) prohibits judges from being the featured speaker or guest of honor at events sponsored by educational, religious, charitable, fraternal, or civic organizations if the event serves a fundraising purpose.
• Rule 4.1(A) prohibits judges from engaging in various political activities (i.e., endorsing or opposing candidates for public office) when not in their election cycle….

Political Organizations

Advisory commissions have remarked that judges should not participate in social-issue marches sponsored by or affiliated with a political organization or in marches supporting or opposing a political party or candidate. See Arizona Advisory Opinion 2018-6; New York Advisory Opinion 2017-38. If the primary purpose of the event is aimed at influencing the actions of a political candidate or party—even when the activity is sponsored by a nonpartisan group—the judge should not participate. See, e.g., Massachusetts CJE Opinion 2016-10 (A judge should not participate in the Women’s March on Washington scheduled the day after the presidential inauguration, as the public and media are “likely to focus on the timing of the event and the organizers’ announced desire to ‘send a message’ to the new President on his first day of office”).

Supporting or Protesting Matters in Active or Likely Litigation

Advisory committees also have warned judges about participating in marches or demonstrations about matters currently the subject of litigation (even if the matter is not in the judge’s court) or that are likely to become a subject of litigation before the judge. See New York Advisory Opinion 2017-38 (A judge may not participate, even without speaking, in a local rally, march, or demonstration sponsored by a grassroots organization in opposition to the “”Trump Muslim Ban,” noting that the event clearly “involves great public controversy, which is also the subject of litigation”); see also Arizona Advisory Opinion 2018-6.

Public Events Sponsored by Frequent Litigants or Advocacy Groups

When an event is sponsored or held by an organization that regularly appears before the judge or that holds an advocacy role within the courts, advisory committees have reached contrary results when interpreting Rules 3.1 and 1.2. Some committees have advised against attending, reasoning that attendance at these events may lead to frequent requests for disqualification as “the judge’s presence and participation ‘create[s] an appearance of particular sympathy toward one side in court’ and necessarily cast[s] doubt on the judge’s ability to be impartial.” New York Advisory Opinion 2017-108 (A judge may not participate in a “Call to Service and Compassion Workshop” to honor child abuse victims and survivors hosted by a local child advocacy center); see also New York Advisory Opinions 2010-59 and 2004-91 (advising judges against appearing at candlelight vigils for those affected by domestic violence and on behalf of victims of crime); see also New Jersey Advisory Opinion 2008-1 (Judges may not participate in a candlelight vigil celebrating the one millionth child served by CASA programs across the country).

Other advisory commissions have taken a more permissive approach, advising judges that they may attend public events sponsored by an advocacy group, if the event serves a nonadvocacy purpose and the judge behaves at the event in a manner that does not cast doubt upon the judge’s impartiality. See Washington Advisory Opinion 1996-16 (A judge may attend a “Day of Remembrance” ceremony to honor victims of domestic violence, but should take care that his or her mannerisms, actions, or speech do not cast doubt upon the judge’s impartiality and should not act as an advocate or in any manner that indicates a predisposition as to how he or she might rule in a domestic violence case); Florida Advisory Opinion 1995-41 (A judge may attend a Mothers Against Drunk Driving candlelight vigil because the event merely recognizes the victims of impaired drivers and does not call for changes in the law); Florida Advisory Opinion 1992-34 (A judge may attend ceremonies held by law enforcement agencies to honor officers killed in the line of duty); see also Massachusetts CJE Opinion 2016-06 (A judge may serve as a guest speaker at a Community Family Day event held by a neighborhood civic association even though a large number of law enforcement agencies are sponsors, but commission set forth several cautions “designed to prevent [the judge] from unintentionally conveying to the public any erosion or blurring of the line of demarcation between law enforcement agencies and the judiciary”).

Conduct Highlighting Judge

Advisory commissions also have warned judges to consider what role the judge is expected to play at an event. The Arizona Advisory Committee cautioned that, “Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.” Arizona Advisory Opinion 2018-6.

A recent advisory opinion issued from Connecticut highlights concerns when a judge is asked to take a featured role in a protest or demonstration. Connecticut Informal Opinion 2020-3. A judicial official from Connecticut sought advice on whether he could participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting the marchers at the steps of the Connecticut Supreme Court and reading Article First, Sec. 2 of the Connecticut Constitution (which sets forth that all political power is inherent in the people) if he is not introduced at the event, does not identify himself by name or title or wear court- affiliated attire, does not permit his name or title to be used in any advertising, does not interpret the constitutional provision he is reading, and does not speak with the media. The invitation to the event indicated that protest signs in support of the cause are welcome, supporters would be distributing “We Can’t Breathe” buttons and voter registrations cards at the event, and marchers are strongly urged to wear all black with black sunglasses to lend support to the message.

The Connecticut Advisory Committee opined that, given the specific facts, the judicial official should not participate in the event because: 1) the judicial official’s participation would unnecessarily insert him into a public controversy in violation of Rule 1.2; 2) although the judicial official’s name and title would not be used, his identity likely could be ascertained since he would be the only male supporter speaking on the steps of the Connecticut Supreme Court and, thus, could undermine the public’s confidence in the independence and impartiality of the judiciary; and 3) the judicial official might be called upon to rule on claims of police brutality or abuse, and his participation in the event might appear to reasonable persons to undermine his independence and impartiality in violation of Rule 3.1.

Injudicious Remarks

Even when judges have spoken on appropriate matters of public concern, advisory commissions have cautioned judges to be circumspect in their remarks; and judicial conduct commissions have pursued discipline when judges have made injudicious remarks that undermine the independence, integrity, and impartiality of the judiciary. See Public Admonition of Letsinger (Ind. 1997) (judge admonished for intemperate remarks about investigation into missing probation funds); Mississippi Commission on Judicial Performance v. Wilkerson (Miss. 2004) (judge disciplined for anti- homosexual remarks he made to newspaper when commenting on states that had extended right to sue for homosexual partners); Disciplinary Counsel v. Ferrari (Ohio 1999) (judge disciplined for derogatory remarks made in newspaper about juvenile detention center staff and judicial officials); In re Conduct of Schenck (Oregon 1994) (judge disciplined for writing letters to newspaper criticizing district attorney); But cf. In re Inquiry Concerning Gridley (Fla. 1982) (judge’s letters to editor expressing views against capital punishment protected by First Amendment).

Recommendations for Judges Who Wish to Participate in Public Events Aimed at Addressing Social Issues …

[T]he Indiana Commission on Judicial Qualifications is of the opinion that, pursuant to Rule 3.1 of the Code of Judicial Conduct, a judge may participate in many public events aimed at addressing social issues if the judge can do so in a manner that does not impinge upon the independence, integrity, and impartiality of the judiciary. When deciding whether attendance and participation at a particular event may impair the judge’s independence, integrity, or impartiality, the Commission notes that the determination often will be fact sensitive and encourages judges to consult with Commission staff to evaluate the wisdom of participating in certain events. Nonetheless, there are several guiding principles/factors that a judge should consider in his/her evaluation:

• The title of the event—The more provocative or advocacy-oriented the title of the event is in promotional materials, the more likely the judge should abstain. See Rules 1.2, 3.1(C).
• The purpose of the event—If the event primarily serves an advocacy or political purpose or is a fundraiser (and the judge is a featured speaker), the judge should not participate due to concerns regarding frequent subsequent disqualification requests of the judge and concerns about the appearance of partiality. See Rules 1.2, 3.1(B), (C), 3.7(A)(4), and 4.1(A). Also, if the event touches upon a pending matter currently before the judge, then the judge should not attend (i.e., the protest/march is aimed at raising awareness about police practices, and the judge currently has a civil lawsuit on his/her docket regarding the city’s response to excessive force incidents). See Rule 2.10(A), (B).
• The organizers and sponsors of the event—If the event primarily is sponsored or affiliated with a political party or candidate or seeks to influence the actions of a particular political official, the judge should not participate due to impartiality and independence concerns. See Rule 4.1(A). If the event is held by an advocacy group or a frequent litigant in the judge’s court, the judge should carefully weigh the purpose of the event. If it is for a nonadvocacy purpose and the judge can participate in a manner that will not raise public concern about the judge’s impartiality, then the judge may participate. See Rule 3.1. For instance, a judge could attend a march raising awareness about issues with the death penalty (as long as the judge maintains his/her ability to follow the law), but posing in a coffin for the media as part of an anti-death penalty protest¹ would raise concerns about the judge’s ability to remain impartial in future cases. See Rules 1.2, 2.10(A), 2.11(A)(5), and 3.1(C).
• The details about the event—If the event is being held in a time, place, or manner where participants likely will violate the law (i.e., by not following imposed curfews or by becoming violent), then a judge should not participate. See Rule 1.2. For instance, if there has been a past history of violent eruptions at an event, a judge would be well advised to avoid attendance.
• The potential role of the judge at the event—If a judge is requested to be afeatured speaker or guest of honor at an event, the judge should carefully review all invitational materials to determine whether his/her featured presence may cause frequent disqualification or might subject the judge to concerns that the judge is improperly using the prestige of judicial office to further the organization’s goals. See Rules 1.3, 3.1(C). If the matter does not specifically involve matters concerning the law, the legal system, or the administration of justice, the judge should not allow his/her legal title to be referenced during the event and should not wear any clothing identifying him/her with the judiciary.

If a judge determines after reviewing invitational/promotional materials that attendance at the event will not impair the independence, integrity, or impartiality of the judiciary, the judge should still consider the following while at the event:

• Change in circumstances—If circumstances change at the event that cause the judge to believe the judge’s integrity or the impartiality of the judiciary might later be questioned (i.e., the majority of protesters are carrying signs supporting/opposing a political candidate), then the judge should be prepared to immediately leave the event.
• Temperate and judicious conduct—The judge should be careful to act at all times at the event in a manner that is temperate and judicious.

Conclusion

A judge may participate in public events aimed at addressing social issues if the judge can do so in a manner that does not impinge upon the independence, integrity, and impartiality of the judiciary. Judges are encouraged to consult with Commission staff to seek guidance on the wisdom of attending and participating in specific events.

 

 

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I encourage everyone to read Joan Biskupic’s report for CNN. It reveals secrets from “behind closed doors” about the Supreme Court’s term. She relies on “multiple sources familiar with the inner workings of the Court.” This report has become something of an annual tradition for Biskupic. Last September, she provided a peak behind the curtain for the Census Case, and a few other matters. At the time, I asked why sources leaked internal deliberations to CNN.

Why was this information leaked? What is the potentially self-serving purpose for revealing this information?

I pose the same questions here. Why were these specific facts leaked. Let’s take the reports one at a time.

DACA

First, Biskupic tells a very specific narrative about DHS v. Regents. Unlike the Obamacare case and the Census case, Roberts’s vote did not change in the DACA case. From Biskupic’s telling, Roberts cast his vote at conference in November.

She wrote:

Roberts’ June decision saving the Obama-era Deferred Action for Childhood Arrivals program surprised advocates on both sides and even took some colleagues aback when he had first cast his vote many months earlier in private session, sources told CNN. … But the new reporting reveals that unlike Roberts’ 2012 move to uphold Obamacare and separate 2019 action to ensure no citizenship question on the 2020 census, Roberts’ action on DACA was not a late vote switch. He put his cards on the table soon after November oral arguments in the case and did not waver, sources told CNN. Roberts believed the administration had not sufficiently justified the rescission of the program benefiting some 700,000 young people and had then developed after-the-fact rationalizations.

This seems like a Pro-Roberts leak. It rebuffs the charge from last term with the Census case, that he changed his vote at the last minute. Don’t forget that there was a full Court press on the Chief to consider how rescinding DACA would effect health-care workers during the pandemic. Biskupic reports that Roberts circulated his draft in late March, after the COVID-19 crisis blew up. That means it took him nearly four months to prepare it. (He was distracted a bit with the impeachment trial).

But by the time Covid-19 concerns were at the fore, Roberts was already writing an opinion that would protect DACA beneficiaries for now. He finished his first draft in late March.

Biskupic reports that Justices Ginsburg, Breyer, and Kagan were happy to join the draft opinion.

Three of the liberals responded enthusiastically to the draft opinion, CNN has learned, and asked for only minor changes.

The specifics were not nearly as important as the outcome. Though if the progressives held together, they could have created a 4-1-4 split that would have left DACA in place without a single rationale. And that fractured ruling would have made it harder for future DACA challenges to proceed on remand. I wonder if the Chief would have retaliated from such a plurality by flipping sides? Does he demand obedience if anyone threatens to write separately? In the end, the troika was willing to don the proverbial paper bag.

Biskupic also confirms that Justice Sotomayor was not so eager to join the Chief’s majority.

The fourth, Justice Sonia Sotomayor, held off somewhat. She said she would join Roberts on much of the 5-4 judgment but expressed dismay that the chief had foreclosed a possible equal protection violation based on Trump’s racist comments about Mexican immigrants. She soon sent around a draft opinion concurring in part and dissenting in part.

Finally, Biskupic reveals that Roberts voted to declare DAPA unlawful in 2016. That case split 4-4.

Roberts had generally supported Trump’s immigration policies, and in 2016 had privately voted against a related program for parents, rather than children, who had come to the US without papers, sources said. (That case, United States v. Texas, produced a 4-4 vote behind the scenes, after the death of Justice Antonin Scalia, and no resolution on the merits.)

I had long suspected this vote, but now it is more-or-less confirmed. To reach that result, Roberts thought Texas had standing, that DAPA was subject to APA review (consistent with Regents), and that DAPA was unlawful (also consistent with Regents).

If Roberts still holds these view (who knows?) then Texas’s challenge to DACA has a greater chance of success than I expected. Morever, the reliance interests at play in the Texas case are different. There is no injunction. (And Jonathan Adler observed that Roberts does not like injunctions). This case would appeal from a motion for summary judgment. Stay tuned.

Public Resource

Biskupic provides insights into a fairly minor case on the Court’s docket: Georgia v. Public.Resource.Org Inc. The Court held that annotations to the Georgia Code could not be copyrighted. The 5-4 vote in this case was very unusual. Chief Justice Roberts wrote the majority opinion, which was joined by Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Thomas dissented, joined by Justice Alito, and joined in part by Justice Breyer. Justice Ginsburg wrote a separate dissent, which Justice Breyer joined in full. This case nearly split along Gen-X/Boomer axis.

At the time, there was some speculation that Justice Thomas lost the majority opinion, and that Chief Justice Roberts flipped his dissent to a majority opinion. Biskupic confirms this scuttlebutt:

Roberts’ winning streak extended to a Georgia copyright dilemma, heard in December, when he was able to turn his dissenting opinion into the prevailing view during the drafting process. He captured the majority from Thomas, who had initially taken control of the case once votes were cast in their private session after oral arguments.

The Georgia case decided in April, testing whether a state can copyright its annotated legal code, was not a high-profile one. But it offered an example of the rare but consequential vote-shifting that can occur behind the scenes and make a difference in the outcome of a case and law nationwide.

The court ruled that federal copyright protections do not cover annotations in a state’s code, based on the general principle, Roberts wrote, “that no one can own the law.”

Biskupic does not tell us who flipped. My money is on Kagan. This seemed like a prudent move to make the Chief feel more powerful on a case that didn’t really matter. In any event, another pro-Roberts leak.

Second Amendment

Biskupic also provides some insights into the Court’s Second Amendment cases this term. In April, the Court issued a per curiam decision in NYS Rifle & Pistol. That opinion held the controversy was moot. Biskupic reveals that Kavanaugh wrote this opinion, but not by himself.

CNN has learned that resolution of that case took many twists and multiple draft opinions. Guided by Roberts, Justice Brett Kavanaugh crafted much of what turned out to be an unsigned “per curiam” opinion — joined by six justices, including Roberts—returning the case to lower court judges.

Wow! “Guided by” As if Roberts was Kavanaugh’s “sherpa.” How demeaning of the Junior Justice? Whoever leaked this fact was trying to make Roberts look powerful, and Kavanaugh look weak. And that “guided by” line looks even worse in light of Kavanaugh’s separate concurrence:

Kavanaugh also wrote a separate statement—this one he signed—suggesting it was time for the justices to resolve conflicting interpretations of Second Amendment rights.
Challenges to other firearms regulations were pending and conservatives who had wanted to clarify the scope of the Second Amendment had to consider whether to bring the issue back to the justices.

In that concurrence, Kavanaugh wrote:

And I share Justice ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.

At the time, I read Kavanaugh’s concurrence as a signal that there were the votes to grant another Second Amendment case. Kavanaugh is savvy enough, and would not have written what he wrote unless he thought the Court would pick up another case. I was optimistic.

In hindsight, Kavanaugh was wrong. Biskupic reports that at the conference, Roberts signaled that he would vote to uphold the gun control laws:

Roberts also sent enough signals during internal deliberations on firearms restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights.

It takes four votes to accept a case and five to rule on it, and sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts, who had in 2008 and 2010 voted for milestone gun-rights rulings but more recently seemed to balk at the fractious issue.

Finally, on Blue Monday, the Court denied review in 10 Second Amendment petitions.

In mid-June, the high court turned down petitions from 10 challenges to state laws limiting the availability of firearms and when they can be carried in public.

Justice Thomas dissented from the denial of cert. Justice Kavanaugh joined part of Thomas’s dissent. In hindsight, it seems Chief Justice Roberts played Justice Kavanaugh. Kavanaugh thought there were four votes to grant cert, and five votes to reverse. He was wrong. I sensed some hostility from Kavanaugh towards Roberts later in the term–especially in South Bay and Calvary Chapel. There may be some built-up resentment.

Once again, this leak makes Roberts look powerful, and his colleagues meek.

Public Charge Rule

Biskupic’s final substantive report concerns the so-called Public Charge rule.

In January, the same five-justice Roberts majority permitted the administration to proceed with a new income-related test for immigrants seeking green cards. The “public charge” rule denies permanent legal status to those applicants who even occasionally apply for Medicaid, food stamps or certain other public assistance.

In mid-April, the Petitioners asked the Court to lift the stay in light of the COVID-19 outbreak. On April 24, the Court issued  two orders denying the requests. There were no recorded dissents. But both orders included the same concluding sentence:

This order does not preclude a filing in the District Court as counsel considers appropriate.

Of course, this sentence states the obvious. The parties can always seek relief in the District Court. And indeed, the New York Attorney General announced she would seek emergency relief in the District Court. (I am not aware of whether that relief was granted).

Biskupic provides some insights into the internal deliberations:

Three months later, amid a new dilemma over the rules arising from the Covid-19 virus, Roberts took the lead against immigrant interests yet mollified liberals poised to dissent publicly, CNN has learned….

According to sources, liberal justices believed the pandemic had transformed the situation and wanted the administration to clarify its rules to help places like New York hit hard by the virus in the spring. Roberts was unmoved and believed administration guidance was clear that immigrants could obtain Covid-19 care without consequence to their green-card applications. Other conservative justices agreed.

In other words, there were still five votes to leave the stay in place. The liberals considered whether to publicly dissent:

Liberal justices wrestled with how far to go with their contrary view and whether to publicly dissent, CNN has learned from inside accounts. Some justices also worried that if the request were rejected, the high court would appear to be unconcerned about people getting sick from the coronavirus. As liberal justices were again losing the argument, they wanted to offer some signal to the New York challengers that they could keep making their case in a lower court even as the Supreme Court ruled against them.

The Chief Justice wanted to avoid a dissent. So he added the single sentence to mollify the liberals:

Roberts resisted, CNN has learned. But the chief justice had an interest in tamping down the tensions and agreed to a modest compromise that sent the signal the liberals sought in the court’s order and ensured that the challengers were not prevented from pressing ahead.

Again, that sentence didn’t really add that much. It stated the obvious.

And once again, this leak is designed to make the Chief Justice look benevolent but firm.

Telephonic Oral Arguments

Biskupic also sheds some lights on the Court’s proceedings after the COVID-19 shutdown. First, Roberts refused to use Zoom, even for internal meetings.

Roberts’ power over their internal operations increased, too, as the justices were relegated to telephone and email communications. The court declined to use any Zoom-like option for its meetings, according to sources, so for the past four months the justices have not seen one another, even virtually.

And the Chief unilaterally decided that oral arguments would be held over telephone:

Roberts decided they would conduct arguments by phone when in-courtroom arguments were canceled because of the coronavirus pandemic.

And Roberts also decided on the format, based on the approach used by the D.C. Circuits. his colleagues vented their “grumbling[s]” to Biskupic’s sources.

That decision caused some internal grumbling, CNN has learned, about the format and over how much time each justice would get to question a lawyer. Roberts ended up allowing each justice three minutes. Roberts carefully outlined the timing for the advocates and justices who would be connected by telephone. The plan was similar to an arrangement used a week earlier by a US appeals court in Washington for a nine-judge hearing.

Indeed, Roberts encouraged his colleagues to be “brief.”

The chief justice thought there would even be sufficient time after justices had taken their turns for a round of open questioning. For that final round, he said, if anyone wanted to ask a question, he or she could try to break in. He encouraged them to be brief. The chief recognized that several justices might jump in at once. If that happened, he said, he would call on one of them to speak. If he mistakenly called on a justice who was not trying to break in, he had a fix for his colleagues: Try to ask a question anyway.

This final leak does not make Roberts look powerful. It makes him look petty, and unconcerned for his colleagues. He made these decisions unilaterally, without taking into consideration the views of the other Justices.

***

I suspect some of the leaks come from the Justices themselves; for example, the grumbling about the format for oral arguments. These topics seem much safer to carp about, and do not concern internal case deliberations. The leaks about the cases may come from Justices, or they may come from law clerks authorized to talk by the Justices. And the tenor of the leaks this term are all consistent with a great and powerful Chief Justice–like Oz! The DACA leak suggests that Roberts was in control from the beginning. The Public.Resource leak suggests Roberts can persuade colleagues to flip. The Second Amendment leak suggests that Roberts played Kavanaugh. And the Public Charge leak suggests Roberts is willing to throw crumbs to his liberal colleagues when he is ready to.

We all find these leaks scintillating. Indeed, I speculated on possible leaks after Bostock. But they need to stop. These internal deliberations should remain private.

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One silver lining (if one can call it that) to the surging number of COVID-19 cases in the United States is that it provides plenty of scope for testing the many new vaccines that are being warp speeded through development and deployment.

The biotechnology company Moderna just launched the first Phase 3 clinical trial of a coronavirus vaccine in the United States today. In the Phase 1 trial the vaccine was generally well-tolerated by the volunteers and induced an immune response in all of them. The new clinical trial will test for efficacy and safety by enrolling about 30,000 volunteers of whom about half will be injected with the vaccine while the other receive placebo. Both groups will will be tracked to see if those injected with the vaccine were much less likely to get the disease than those in the placebo group.

Moderna’s vaccine is based on a novel technology that uses messenger RNA (mRNA) to trick the bodies of vaccinated persons into making viral proteins that mobilize their immune systems to prevent coronavirus infections. Moderna has received nearly $1 billion in backing from the U.S. Health and Human Services (HHS) Department. If all goes well, the company could deliver 100 million doses by early fall.

Another mRNA candidate vaccine is being developed by the German company BionTech in partnership with the American pharmaceutical manufacturer Pfizer. The companies announced earlier this month that the vaccine induced a strong immune response among the volunteers in their Phase 1/2 clinical trial in Germany. They will launch their Phase 3 trial for the vaccine by the end of July. They plan to seek regulatory review as early as October 2020. The U.S. government has agreed to pay the companies $1.95 billion upon the receipt of the first 100 million doses, following FDA authorization or approval. The U.S. government also can acquire up to an additional 500 million doses.

The pharmaceutical giant AstraZeneca has teamed up with researchers at Oxford University to test and manufacture their COVID-19 vaccine. The Oxford vaccine genetically engineers a mild cold virus to include proteins from the COVID-19 coronavirus that will induce an immune defense against the disease virus. The technique has previously been used to develop vaccines that successfully protect against other pathogens, such as the viruses that cause flu, Zika, and Chikungunya.

The Lancet reported last week that the Oxford COVID-19 vaccine proved safe and effective in a Phase 1/2 trial. The Phase 3 trial for the vaccine has already begun in the United Kingdom, Brazil and South Africa. AstraZeneca has a $1.2 billion contract with HHS  produce about 400 million doses of the vaccine and the firm has contracted with the British government to produce up to 100 million doses, adding that 30 million may be ready for citizens in the U.K. by September.

Lagging somewhat behind in the COVID-19 vaccine race is the American company Novavax which plans to roll out its Phase 3 trial in October for its vaccine made by sticking viral proteins onto proprietary nanoparticles. The company has not yet reported the results from its Phase 1/2 trials, but has nevertheless teamed up with drug manufacturer Fujifilm Diosynth Biotechnologies to scale up vaccination production to 100 million doses by the end of 2020 using a $1.6 billion warp speed grant from HHS. President Donald Trump visited the Fujifilm factory in North Carolina earlier today where he announced an additional $265 million contract with the company to manufacture the Novavax vaccine.

These are just the four front runners in the race to develop and deploy vaccines against the COVID-19 pandemic The urgency of defeating the coronavirus scourge has finally jumpstarted the cavalierly lethargic regulators at the Food and Drug Administration into action. Shrinking development times for vaccines from more than a decade to perhaps less than a year could save hundreds of thousands of lives.

Full disclosure: I have signed up to be a volunteer in one of the Phase 3 COVID-19 vaccine trials. I have not yet been picked to participate.

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Garrett Foster, an AK-47-carrying libertarian who joined Black Lives Matter protesters against police abuse, was shot and killed in Austin, Texas, Saturday night after an altercation with a motorist. The facts of the case are murky and disputed, but one overall snapshot of America is clear: Just past the midpoint of this annus horribilis, summer in too many cities is devolving into riots, police crackdowns, and the politics of violence.

All of these trace their origins to local, state, national government failures. The local police and city halls have given up on protecting property; the federal government has given up on law-enforcement federalism; officials have failed to accomplish such basics as enabling speedy test results for a deadly virus.

So argues today’s Reason Roundtable podcast, featuring Peter Suderman, Matt Welch, and special guest stars Stephanie Slade and Zach Weissmueller. The gang discusses teachers unions that want to keep schools closed and competition stifled, politicians and partisans who want to keep conflicts escalating, polls that show Joe Biden stomping Donald Trump, and whether Iron Man 2 is the most libertarian movie in the Marvel Cinematic Universe.

Audio production by Ian Keyser and Regan Taylor.

Relevant links from the show:

“The Feds Are Still the Jackbooted Thugs We Were Warned About,” by J.D. Tuccille

“‘CARES’ Package Part Two Is Coming, to the Tune of at Least $1 Trillion,” by Elizabeth Nolan Brown

“Dispatch From Portland: The Morning Crew,” by Nancy Rommelmann

“The Media Wants To Guilt-Trip Parents Over School ‘Pods,’” by Matt Welch

“Portland Protesters Get the Immigrant Treatment,” by Shikha Dalmia

“Where’s Republican Federalism During Trump’s Urban Invasions?” by J.D. Tuccille

“Dispatch From Portland: The Fire Next Time,” by Nancy Rommelmann

“What It’s Like To Work in the Portland Jail During the George Floyd Protests,” by Nancy Rommelmann

“Trump’s Political Opportunism Has Shredded Federalism,” by Shikha Dalmia

“Trump Administration Justifies Federal Police Surge With Fake News,” by Elizabeth Nolan Brown

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Garrett Foster, a libertarian activist, was killed on Saturday while attending a Black Lives Matter (BLM) protest in Austin. While the events surrounding his death are still being investigated, libertarians who recognize the importance of being involved in the anti-police brutality protests have expressed their sadness for his loss, and are reminding others that libertarians have both an opportunity and a duty to participate in the current debate on American policing. 

Foster attended a BLM protest with his fiancée, Whitney Mitchell. The pair met when they were teenagers and moved to Austin a few years ago. Foster was lauded by his family and several others for the care he provided for Mitchell, a quadruple amputee. Foster and Mitchell were actively involved in local BLM protests following the death of George Floyd at the hands of a Minneapolis police officer.

There is some dispute between the Austin Police Department (APD) and numerous witnesses over details in the official story, Intelligencer reports.

On Saturday, Foster was exercising his right to open-carry an AK-47 rifle, as allowed by Texas state law, and marching alongside fellow protesters. Just before 10 p.m., the protesters crossed the intersection of Fourth Street and Congress Avenue. That’s when a driver, who remains unidentified by the APD, aggressively accelerated his car towards the crowd of protesters. The protesters, including Foster, who was pushing Mitchell through the intersection, approached the vehicle in an attempt to get the driver to stop.

Both witnesses on the scene and the APD confirm that the driver fatally shot Foster from the vehicle and that Foster did not discharge his weapon during the encounter. Another member of the crowd returned fire. The APD says both shooters had licenses to carry.

The fact in dispute is whether Foster pointed his weapon at the driver. Austin Police Chief Brian Manley said on Sunday that the driver maintained Foster had aimed his gun towards him, leading him to shoot. Several witnesses say the opposite is true. They maintain that Foster’s rifle was pointed downward. The APD has asked for video and pictures from the scene.

While Foster’s loved ones grieve, libertarians also honor Foster’s life and his commitment to principle. Foster was very vocal about his support for Libertarian Party presidential candidate Jo Jorgensen and vice-presidential candidate Spike Cohen.

Cohen tells Reason that he was “honored” to have someone like Foster in the movement and that Foster will be “greatly missed” by his loved ones and those in the Libertarian Party.

“Garrett Foster understood that libertarianism was about speaking on behalf of those who are the most acutely affected by the abuses perpetrated by an overly aggressive and unaccountable government,” Cohen says.

Cohen notes that libertarians “can stand back and allow this movement to be co-opted by authoritarians who push for even worse policies or,” like Foster, “we can take our natural place within this movement, which is largely espousing and advocating for policies that we’ve been advocating for since we were founded in 1971.”

Libertarian National Committee Chair Joe Bishop-Henchman tells Reason, “Garrett joined the [Libertarian Party] in 2017, and while I never got to meet him, his enthusiasm for a better world and the Jorgensen/Cohen campaign was evident. Libertarians across the country are mourning his loss.”

Bishop-Henchman adds that libertarians are “joining efforts” to work towards criminal justice and policing reforms, “which have been consistent positions of ours for decades.”

“We bow our head at the passing of Libertarian Garrett Foster,” the Libertarian National Party tweeted on Sunday.

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