Tag: hit&run

See the concurring opinions of Judges Jane B. Stranch and Amul Thapar, in Wilson v. Safelite Group, Inc. (For an earlier example of such a debate in a judicial decision, see here; for guest posts by Justice Thomas Lee and Stephen Mouritsen explaining and defending the use of corpus linguistics in law, see here.)

From Judge Thapar:

I agree with the majority’s textual analysis and concur to the extent the majority rests on that analysis. Because the text of 29 U.S.C. § 1002(2)(A)(ii) is clear, we should go no further. And the text is clear, as many tried-and-true tools of interpretation confirm. But so does one more: corpus linguistics. Courts should consider adding this tool to their belts….

[Corpus linguistics] draws on the common knowledge of the lay person by showing us the ordinary uses of words in our common language. How does it work? Corpus linguistics allows lawyers to use a searchable database to find specific examples of how a word was used at any given time. State v. Rasabout, 356 P.3d 1258, 1275–76, 1289 (Utah 2015) (Lee, A.C.J., concurring in part and concurring in the judgment). These databases, available mostly online, contain millions of examples of everyday word usage (taken from spoken words, works of fiction, magazines, newspapers, and academic works). See, e.g., Corpus of Contemporary American English, BYU, https://ift.tt/2XCRzML (listing types of sources); Corpus of Historical American English, BYU, http://www.english-corpora.org/coha/. Lawyers can search these databases for the ordinary meaning of statutory language like “results in.” The corresponding search results will yield a broader and more empirically-based understanding of the ordinary meaning of a word or phrase by giving us different situations in which the word or phrase was used across a wide variety of common usages.  See Lee & Mouritsen, supra, at  831 (“Linguistic corpora can perform a variety of tasks that cannot be performed by human linguistic intuition alone.”). In short, corpus linguistics is a powerful tool for discerning how the public would have understood a statute’s text at the time it was enacted.

Of course, corpus linguistics is one tool—new to lawyers and continuing to develop—but not the whole toolbox. Its foremost value may come in those difficult cases where statutes split and dictionaries diverge. In those cases, corpus linguistics can serve as a cross-check on established methods of interpretation (and vice versa). See Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 BYU L. Rev. 1621, 1669–70 (2017) (“[C]orpus linguistics allows for rigorous intersubjective validation of individual subjective judgments about word meaning.”); see also Clark D. Cunningham et al., Plain Meaning and Hard Cases, 103 Yale L.J. 1561, 1566 (1994) (book review) (arguing that empirical methods may assist judges in hard cases of ordinary meaning). This cross-check can provide both judges and parties with greater certainty about the meaning of words in a statute….

Judge Stranch’s response:

I write separately to express some concerns about the concurrence’s endorsement of “corpus linguistics,” a proposed method of statutory interpretation described in a handful of recent state court opinions [mostly from Utah]. This tool invites judges to perform the same kind of subjective decision making that the concurrence otherwise cautions us to avoid. There are  several reasons why we should decline this invitation.

The first is a practical problem. A keyword search using a corpus linguistics database  will likely result in dozens, if not hundreds or thousands, of examples of a term’s usage. How should courts make sense of all this information? First, we could count the number of times a term is used in the database (assuming appropriately selected parameters) and then decide that the most frequently used meaning is the ordinary meaning. But that approach would risk privileging the most newsworthy connotations of a term over its ordinary meaning. See, e.g., Carissa Byrne Hessick, Corpus Linguistics and the Criminal Law, 2017 B.Y.U. L. Rev. 1503, 1509 (“[A] corpus analysis may demonstrate that seventy percent of all mentions of the word ‘flood’ occur in the context of [] superstorms. But that does not tell us whether the average American would understand the statutory term ‘flood’ to include three inches of water in a homeowner’s basement after a neighboring water main burst.”). It would also fail to cull irrelevant results. If we use the database to determine the meaning of “results in” during the 1960s and 1970s (the era closest to when ERISA was drafted), we find examples of this term’s usage in contexts that bear no relationship to our own. Does it matter, for purposes of deciding whether ERISA applies to Wilson’s deferred compensation plan, how “results in” was used in a book about farm animal management in 1976, or in an article from Sports Illustrated about New York’s cool spring weather in 1964? I think it does not. And even if consulting this overinclusive data set might help judges “to avoid basing conclusions on a few speakers’ idiosyncrasies,” it is “the ‘idiosyncrasies’ of [Congress that] constitute the rule of law in this [country]. And the only way to identify those idiosyncrasies is through the text of the [U.S.] Code, which is wholly absent from [the corpus linguistics] data set.” State v. Rasabout, 356 P.3d 1258, 1266 (Utah 2015) (call numbers and internal quotation marks omitted)). This suggests to me a disconnect between corpus linguistics and the judicial work of statutory interpretation.

Another approach would require the court to perform this culling process itself. For example, we could assume that the drafters employed popular, as opposed to technical or legal, language and decide which uses of “results in” during the 1960s and 1970s should be included in our analysis and which should not. But by what metric would we make that choice? Perhaps most could agree that a book about farm animal management is not relevant here. But what  about an article reporting a union strike? Or one about federal tax penalties?3 Such choices  would require highly subjective, case-by-case determinations about the import and relevance of a given source. Textualists have long advised us to forgo that interpretive method. See, e.g., Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in the judgment) (“The legislative history of [this] Act contains a variety of diverse personages, a selected few of whom—its ‘friends’—the Court has introduced to us in support of its result. But there are many other faces in the crowd, most of which, I think, are set against today’s result.”). Legislative history tells us, at a minimum, how some of the statute’s authors understood a term; corpus linguistics does not offer even that insight.

In part because of these practical problems, the use of corpus linguistics is a difficult and complex exercise. That is why, for centuries, we have left this task to the trained lexicographers who author the tool we already employ—a dictionary. [Judge Thapar’s] concurrence describes much of what lexicographers do every day.

Lexicographers engage in “research, but also decisionmaking: the primary job of the lexicographer in creating a dictionary is to determine meanings of words, and to determine what different meanings a word might have.” Rubin, supra at 181. And because “[t]he line between one meaning and another is seldom clear,” this process “leaves much of the final determination to the experienced judgment of the editorial staff.” Id. The other concurrence argues that, notwithstanding their training, these experts sometimes select outdated or otherwise unreliable meanings for disputed terms. But I would not substitute the ad hoc selection process of individual judges for the “experienced judgment” of these trained scholars. Doing so would convert judges into armchair lexicographers, attempting the same work that dictionary authors have been performing for centuries. But unlike those experts, judges would shoulder this task without the specialized training necessary to make a reliable and neutral judgment call. Encouraging litigants to take on that same role would make the problem worse, not better.

I do not suggest that corpus linguistics can never assist judges in the difficult project of statutory interpretation. But, in the unusual case where such a tool might prove useful, I would leave this task to qualified experts, not to untrained judges and lawyers. See, e.g., Brief for Professor Clark D. Cunningham, et al. as Amicus Curiae on Behalf of Neither Party, In Re: Donald J. Trump, President of the United States of America, No. 18-2486 (4th Cir. Jan. 29, 2019) (discussing use of corpus linguistics by professor of applied linguistics to help determine the meaning of “emoluments” during the founding era). And before we add corpus linguistics to our judicial toolkit, we should first remind ourselves what our toolkit is for. I agree with the concurrence that statutes ought to give “ordinary people fair warning about what the law demands of them.” United States v. Davis, 139 S. Ct. 2319, 2323 (2019). But that is the responsibility of legislators, not judges. Once the torch passes from Congress to the courts, our duty as judges is simply to determine what our elected members of Congress meant when they passed the statute—even  if that is  not  the meaning we or the public might  routinely employ.  In most cases, adding corpus linguistics to our judicial toolkit would make it harder to focus on that narrow duty. This case underscores why.  Our task here is to decide what Congress meant  by “results in” and “extending to” when it defined the universe of employee pension benefit plans covered by ERISA. The other concurrence proposes that we divine that meaning not by considering ERISA’s statutory framework or legislative history, but by looking to the language of an article from Sports Illustrated and a book about farm animal management. I struggle to see why those sources would tell us as much as, for example, what the legislature told us about the structure and purpose of ERISA when it drafted the statute.

Underlying these practical usage issues is my concern with the implicit suggestion that corpus linguistics is a simple, objective tool capable of providing answers to the puzzle of statutory interpretation. The use of corpus linguistics brings us no closer to an objective method of statutory interpretation. Instead, it encourages judges to stray even further from our historic and common-sense considerations—including the “text, structure, history, and purpose” of a statute, Maracich v. Spears, 570 U.S. 48, 76 (2013) (citation omitted)—that ought to guide our analysis.

Judge Thapar’s reply:

The other concurring opinion argues that we should not add corpus linguistics to the judicial toolkit for several reasons. The first is methodological—corpora are not representative because of their sources. For instance, a corpus search for “flood” may lead to an overinclusion of newspaper articles talking about giant flood waters rather than basements flooding. But the entire practice of law—and certainly the practice of interpretation—involves judgment calls about whether a particular source is relevant. And, at least with corpus linguistics, those calls  can be vetted by the public in a more transparent way. Cf. Muscarello v. United States, 524 U.S. 125, 142–43 (1998) (Ginsburg, J., dissenting) (criticizing the majority opinion for selective and non-transparent examples of word use). That is more than can be said of the alternative, which, as Justice Lee has thoughtfully noted, is for a judge to use his or her intuition—something far less representative and frankly far less “democratic.” See Rasabout, 356 P.3d at 1274–75 (Lee, A.C.J., concurring in part and concurring in the judgment). Plus, the danger of judges relying upon their own intuition is that we introduce other risks, like confirmation bias. Id. at 1274. Judges may unintentionally give greater weight to those definitions that match up with their preconceived notions of a word’s meaning. We cannot get away from confirmation bias altogether, but we can surely check our intuition against additional sources of a word’s meaning. The corpus allows us to do this.

Second, the other concurring opinion argues that the use of corpus linguistics will descend into mere rote frequency analysis; judges will simply pick the use of the word that shows up the most. Yet judges who use corpora do not become automatons of algorithms. They will still need to exercise judgment consistent with the use of the other tools of statutory interpretation. Sometimes the most frequent use of a word will line up with its ordinary meaning as used in a statute. Sometimes it will not. The data from the corpus will provide a helpful set of information in making that interpretive decision. But the judge must make the ultimate decision after considering multiple tools.

Third, the other concurring opinion suggests that corpus linguistics is redundant when compared with another tool—dictionaries. Expert lexicographers already do corpus linguistics when compiling dictionaries, so, the argument goes, when judges use corpus linguistics, they become unnecessary and unhelpful armchair lexicographers. But the use of corpus linguistics improves upon dictionaries by helping pinpoint the ordinary uses of a word at the time a statute was enacted. For example, when a court considers a dictionary definition, it looks at a dictionary from that time period. See New Prime, 139 S. Ct. at 539–40 & n.1. But the usage examples in those dictionaries  often  come  from  a  time  before  the  dictionary  was  published.  See  Lee  & Mouritsen, supra, at 808–09; Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1190 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994) (“An unabridged dictionary is simply a[] historical record, not necessarily all-inclusive, of the meanings which words in fact have borne, in the judgment of the editors, in the writings of reputable authors.”); see also id. at 1375–76. So the dictionary definition may actually tell us the ordinary meaning at a time long before Congress enacted the statute. See Lee & Mouritsen, supra, at 809; Scalia & Garner, supra, Appendix A at 419 (noting that dictionaries lag behind the times). And in many cases (like the ones discussed below), both the majority and dissent will point to dictionaries without any clear resolution. Instead of relying on just a few sample sentences in the dictionary, the corpus develops a broader picture of how words were actually used when Congress passed the statute.

Plus, “[w]e judges are experts on one thing—interpreting the law.” Rasabout, 356 P.3d  at 1285 (Lee, A.C.J., concurring in part and concurring in the judgment) (emphasis omitted). Corpus linguistics is just one variation on a very old theme in this field of expertise. Judges  often consider the context of words—both within and beyond the text of the statute in dispute. See Scalia & Garner, supra, § 31 (detailing the “noscitur a sociis” canon of interpretation); see also Caleb Nelson, What is Textualism?, 91 Va. L. Rev. 347, 355 (2005). Judges look to contemporaneous judicial decisions. See, e.g., New Prime, 139 S. Ct. at 540. They look to seemingly common phrases. See, e.g., FCC v. AT&T, Inc., 562 U.S. 397, 403–04 (2011) (considering how the word “personal” is used in “personal life” and “personal expenses”). And, for constitutional cases, they look to word use in the Anti-Federalist and Federalist Papers. See, e.g., United States v. Lopez, 514 U.S. 549, 586 (1995) (Thomas, J., concurring). While sometimes this “enterprise may implicate disciplines or fields of study on which we lack expertise, [it] is no reason to raise the white flag” and forgo considering corpus linguistics. Rasabout, 356 P.3d at 1285 (Lee, A.C.J., concurring in part and concurring in the judgment).

Instead, judges should do what they have always done—”summon all our faculties as best we can” and take advantage of adversarial briefing. See id.

In sum, I agree that corpus linguistics is not the only tool we should use, but it is an important tool that can assist us in figuring out the meaning of a term.

Thanks to Howard Bashman (How Appealing) for the pointer.

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But regrettably, it turns out that the Institute, at Penn State, is just named after two famous writers named Rock. Rats.

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Malcolm Gladwell recently released a two–part podcast series on legal education that is focused on the LSAT.  Gladwell’s basic argument, inspired by a 2004 law review article by Bill Henderson, is that LSATs (and many law school exams) unfairly penalize those who are tortoises instead of hares.  Hares work very quickly, while tortoises need more time.  Law schools need to give applicants more time, Gladwell suggests, to have a more fair system.

I found Gladwell’s podcast entertaining.  But I also found it pretty frustrating.  I thought I would explain my frustrations in this post.

I. What is Gladwell’s Argument?

My first problem was trying to figure out exactly what Gladwell finds objectionable. I tried to summarize Gladwell’s take above.  But it was no easy task, as Gladwell’s concerns seem to have an accordion-like quality. At times he objects just to the LSAT, and his concerns seemed narrow.  For example, Gladwell was very worked up about the fact that the LSAT is broken into sections and test-takers are not permitted to work on other sections during the test window.  His big proposed reform at another point was giving test-takers an additional 25% of time to take the LSAT.

And at other times, Gladwell’s objections seemed quite broad. At some points he seemed concerned with time-pressured in-class law school exams, and at times he seems to object to timed exams more broadly.  Near the end, his main objection expands to the hierarchical nature of legal education generally. Gladwell is offended by the idea that the top-ranked law schools are very selective, and that therefore there must be some means to distinguish students in a competitive admissions process.  It’s unfair to have an admissions hierarchy based on schools, Gladwell suggests. We shouldn’t have a system where a test determines where you go to law school and therefore what job prospects you have.

I’m open to any or all of these arguments.  But they’re different arguments, I think, and they need to be treated separately.  I found it frustrating that these arguments were too often mixed together.

II.  The Pieces Didn’t Quite Fit

A second problem I had with the podcast was that the pieces didn’t seem to fit together well.

Consider the question of Gladwell’s own LSAT performance.  (Spoiler alert: Skip the next three paragraphs if you don’t want to know more.) The hook in the first episode is that Gladwell and his assistant Camille both take the LSAT at the same time to see how they do.  The chief difference between them, we hear, is that Camille is a young hare and Gladwell is an old tortoise.  Camille does very well under quick time pressure, while Gladwell flails about under pressure and desperately needs more time.  The idea is that Gladwell’s poor performance relative to Camille demonstrates just how unfair the LSAT is.

I appreciate the idea of humanizing the argument by having Gladwell struggle with the biased test himself. It makes for good listening.

But then it runs into a problem: At the end of the second episode, Camille and Gladwell get their scores back and they had identical scores.  Wait, if they had the same score, doesn’t that suggest that Gladwell’s personal complaints might have been misplaced?  The podcast doesn’t go there, though.  Instead, it ends on Gladwell’s happy reaction that he didn’t do worse than Camille.

I was also puzzled by the discussion in the second episode about law firm performance.  Gladwell discusses an apparent study in which a consultant found that, among lawyers at a firm, the law school the lawyer attended had no influence on the chances that the lawyer would be a “rainmaker” —  someone who brought in a lot of business.  Gladwell takes this as proof that it’s irrelevant where someone went to law school.  He suggests that law firms should ignore the school a person attended, as it’s just irrelevant to how good that lawyer might be.

But I was confused by the study, assuming I understood it correctly.  Even assuming that firms are looking primarily to identify future rainmakers, it’s problematic to draw lessons from the performance of the lawyers a firm actually hired to draw lessons to figure out who the firm should have hired. If a law firm hires from the top 50% of the class at top school A, but only the top 10% of the class at regional school B, the ones who are hired aren’t random selections from schools A and B.

I was also not sure what to make of Jeff Sutton’s example.  This was the most fun part of the podcast for me: Judge Jeff Sutton makes an appearance!  Judge Sutton is used as an example of a tortoise that the law sadly overlooked.  We learn in the podcast that Sutton applied to Michigan and Ohio State for law school.  Sutton wanted to go to Michigan, but they turned him down.  So Sutton went to Ohio State, graduated first in his class, and then became one of the legal world’s star advocates, a top judge, and a leading figure in the law.  Gladwell takes the lesson to be that the LSAT is a failure.  If Sutton didn’t get into Michigan, it must have been because his LSAT score didn’t recognize his talents.  The LSAT therefore needs reform.

Maybe, but maybe not.  A single example can help make a broader point.  But here we don’t know the details of the example.  Maybe Judge Sutton just had a bad day.  Every test is flawed.  Is the existing LSAT more flawed than the alternatives?  And we also don’t know why Sutton did less well on the LSAT (assuming that was the case) when he then did extremely well on other tests that require quick thinking like law school exams (remember, he graduated 1st in his class) and Supreme Court arguments (where he was a distinguished advocate).  Maybe the speed of the LSAT was the problem.  But there are a lot of other possible explanations.

To be clear, I’m not defending the LSAT.  I think there are big problems with it.  As I have written before, I think the “analytical reasoning” section (aka “games”) should be eliminated. And I think law schools rely on the LSAT in a problematic way, fueled in large part by the U.S. News rankings.

But some proxies are needed, and no proxies are perfect.  The U.S. legal market is massive.  Every law firm can’t hire every law student in the country for a spell, test them out, and rank order them to see who the firms want to hire.  Instead employers rely on proxies like law school and law school grades, and the schools in term rely on proxies like LSAT scores and college grades. The proxies are imperfect, and we always need better proxies. But there are complex choices and dynamics, with no ideal answer.  Gladwell’s impressionistic approach seemed to glide over the difficulties in a way that wasn’t as illuminating as I hoped.

III.  The Broader Question of Exam Timing

A final thought is about the broader question of law school test timing.   I think it’s a difficult question for a few reasons.

First, there’s the question of what set of skills best signal the quality of a top lawyer.  What schools test for should match the skills the best lawyers have, right?  Gladwell discusses this very briefly, but not nearly enough, and I was underwhelmed with his take on it.  He interviews a former Supreme Court law clerk who says that when she read briefs as a clerk, she read them very slowly and carefully.  Voila!, Gladwell says, working slowly and carefully is critical to being a great lawyer.  But there’s so much more here, and it seemed a lost opportunity to reflect on what mix of skills lawyers need and how to test for them.

Second, there’s the interesting question of whether having a long time to study for a short exam is testing long-term skills, short-term skills, or both.  Consider a law school in-class exam.  Yes, it is very time-pressured.  It rewards speed.  But the weeks and months of time before the exam also reward long-term effort.  You need to spend weeks of learning to be able to quickly see the legal significance of a problem.  I think that’s testing both being a tortoise and being a hare. Maybe it’s the wrong mix, see point one above.  But I don’t think you can only look to the time it takes to complete the exam to see what skills are being tested by it.

One last thought about one specific timing objection Gladwell makes.  Gladwell strongly objects to the rule that LSAT takers can’t work on other sections.  That’s bizarre and unrealistic, he points out.  In the real world, you can distribute your allotted time as best you see fit.  I can see that, and at first that seemed like a very good argument.  But if I heard the podcast correctly, I think Gladwell may have cut off the LSAC employee as she started on a plausible explanation of why they structure the LSAT that way.

If I heard the employee’s argument correctly—a big “if,” as the explanation was garbled and cut off early on —  the problem is that the LSAT has one experimental section that is not graded and is being used to test the quality of questions for future exams.   Applicants don’t know which section is experimental.  But different test-takers are taking different experimental sections with different questions.  Some of the experimental questions are easy.  Some are hard. And some are problematic and will never be used.  (That’s why they’re just experimental.)

This means that different students are taking different exams, and giving the students the full exam at once might be problematic.  To see why, imagine the full exam were given at one shot and say you have two applicants to consider.  One applicant has a particularly easy experimental section, while the second has a particularly hard one.  In a time-pressured exam environment, the applicant with the easy experimental section may finish quickly and have more time to spend on other sections.  The applicant with the hard experimental section may take a lot of time and have less time for the rest of the exam.  That would be pretty unfair.

In contrast, if each section is given individually, with no room to work on other sections, it can lessen the unfairness.  The ease or difficulty of applicants’ experimental sections may give their confidence a boost or hit, and that’s no small matter.  But it won’t impact the time they spend on the parts of the LSAT that are actually graded.

I don’t know if that justifies the current system.  But it’s a plausible argument, and I would have like to see it considered.

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Members of the World Cup champion U.S. Women’s National Soccer Team are agitating for better pay—equal to what the men on the U.S. team earn—after winning their second consecutive World Cup and their fourth overall. They were feted with a ticker-tape parade through Manhattan on Wednesday.

If pay exclusively reflected performance, there would be no doubt that Megan Rapinoe, Alex Morgan, Rose LaVelle, Julie Ertz, and the rest of the U.S. women’s team deserve far more than what the men earn. The U.S. men’s team, you may recall, failed to even qualify for last year’s World Cup in Russia, and has not progressed beyond the tournament’s quarterfinal round since the inaugural World Cup in 1930.

So it’s easy to sympathize with the women’s team when they demand better compensation—as they, and their fans, did during the trophy presentation on Sunday morning, shouting “equal pay, equal pay!” Presidential hopefuls have quickly judged which direction the wind is blowing and jumped aboard the cause. Sens. Elizabeth Warren (D–Mass.) and Kamala Harris (D–Calif.) have tweeted their support for equal pay on the soccer pitch, and New York Mayor Bill de Blasio on Wednesday said he would pay female athletes equally if elected president. Hillary Clinton has chimed in.

This debate is not happening only on the campaign trail, in New York’s Canyon of Heroes, or on Twitter. The members of the U.S. women’s team are suing their employer, the United States Soccer Federation, and the two sides have agreed to mediate the dispute out of court. That is important background for understanding why the women’s team is trying to ramp up political and social pressure on the federation.

But, really, the debate over whether the U.S. women’s team should be better compensated is about two related and overlapping issues. One is a matter of accounting and the other is about economics—specifically, about the importance of markets and about how workers are harmed when they do not exist.

Writing at Commentary, Christine Rosen dives deeply into the first argument. She notes that last year’s American-less World Cup in Russia generated $6 billion in revenue, while the women’s event in France this summer is expected to earn about $131 million. As a percentage of total revenue, FIFA (the body that governs international soccer and runs the World Cup) actually pays out larger prizes to the women’s teams than to the men.

But what about the pay disparity between the American men’s and women’s teams, outside of prize money in major tournaments? The Wall Street Journal reports that the U.S. men’s and women’s teams have generated about the same amount of revenue from games played since 2015, although those totals account for only about half of U.S. Soccer’s annual income. Yet, as Rosen again points out, the women’s team continues to get shortchanged when it comes to the percentage of the federation’s budget spent on “advertising and P.R., travel and training budgets, and…per diems for food.”

U.S. Soccer has no good reason to feed the women’s team less than the men’s, or to make them sleep in subpar accommodations. Those inequalities should be addressed.

Beyond that, though, it’s difficult to argue that the pay gap is unfair or sexist. It’s largely the result of different pay structures that both teams have collectively bargained with the U.S. Soccer Federation.

Again, Rosen has the best explanation I’ve seen for the gap:

The women’s team collectively bargained for and won a pay structure that guarantees them salaries, severance pay, medical benefits, and some performance-based bonuses. The women’s team wanted the security of salary-based pay rather than purely performance-based pay, and they wanted to guarantee a salary even for players who were on the roster but didn’t play.

By contrast, the men are strictly pay-for-play. They do not receive a salary or additional benefits like health insurance or severance pay. Their pay structure is performance-based.

Because of the different pay structures, a straightforward comparison is difficult. The U.S. women earn a base salary of $100,000 annually, while the men are paid $5,000 per game, with bonuses for winning.

Why would the women agree to a different pay structure? In part, that probably has to do with how much players are earning elsewhere.

Professional soccer players are also paid by privately owned club teams. Megan Rapinoe, for example, plays for Seattle Reign FC, one of nine teams in the National Women’s Soccer League (NWSL). Player’s salaries in the NWSL range from about $16,000 to $46,000 annually, according to NPR. That’s not a lot, and it’s certainly less than even the lowest-paid players in Major League Soccer (MLS; the top North American men’s pro soccer league), who earn a mandatory minimum salary of $60,000.

That pay gap isn’t the result of sexism. It’s what the market allows. Major League Soccer teams drew an average of 21,000 fans last year, while NWSL games drew about 6,000. The TV contract MLS has with ESPN and other broadcasters generates $90 million a year. While neither league discloses revenue figures, it’s a safe bet MLS earns considerably more—and, thus, its players do too.

If that changes, women’s salaries will increase—and, really, that’s the best way to make sure your favorite World Cup players earn bigger bucks, as Rapinoe acknowledged during an appearance on Rachel Maddow’s show this week.

“Fans can come to games,” Rapinoe said. “Obviously, the national team games will be a hot ticket, but we have nine teams in the NWSL. You can go to your league games, you can support that way. You can buy players’ jerseys, you can lend support in that way, you can tell your friends about it, you can become season ticket-holders.”

She’s absolutely right. For all the attention that the World Cup generates, club teams are always going to be where soccer players make their money. And those club teams are beholden to the same rules that govern private businesses everywhere: requiring the Seattle Reign to pay every player as much as the MLS’ Seattle Sounders would bankrupt the women’s team.

That brings us to the second part of the debate. Part of the problem facing the U.S. women is the fact that there are no markets in international soccer.

What I mean by that is that there is no ability for the U.S. women to demand better treatment by taking their talents elsewhere. Even if a player does qualify to play on multiple national teams (in the event they had parents from two different countries, for example), under FIFA rules she is locked in place once she makes a single appearance on the field for a national team.

Think about it like this: If Rapinoe is unhappy with her contract with Reign FC, she can field offers from the other eight teams in the NWSL. She could even take offers from women’s teams in other countries—Sunday’s World Cup finale was held in Lyon instead of Paris in part because the local club team, Olympique Lyonnais, has a reputation for paying high salaries to female players and, not surprisingly, attracting the world’s top talent.

Even with markets, there would still be obvious financial constraints. The popularity of women’s soccer and the revenue generated by individual clubs may not allow teams to offer Rapinoe or Morgan the amount of money those players feel they are worth.

When it comes to dealing with the national federation, though, the players have considerably less leverage. That’s why even the most egregious inequalities between the treatment of the U.S. men’s and women’s teams are difficult to correct.

Above all, it’s certainly not wrong for successful employees to demand better compensation, regardless of gender. But because international soccer lacks the market mechanisms that would otherwise help members of the U.S. Women’s National Team achieve that goal, they are forced to resort to other, less efficient means. That’s why they have to turn this into a public relations issue, and a legal matter.

Lacking any better economic incentive to get the federation to change its behavior, publicly shaming U.S. Soccer over the disparity between how the men’s and women’s teams are treated might be the best lever for fixing the supposed pay gap.

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President Donald Trump will convene a “social media summit” at the White House on Thursday to discuss the influence of big tech and what he perceives as censorship of right-leaning voices. Republican lawmakers and social media figures—including Rep. Matt Gaetz (R–Fla.), Turning Point USA founder Charlie Kirk, and the Twitter personality “CarpeDonktum”—will reportedly be in attendance.

Noticeably absent from the list are executives from the tech giants themselves, who were not invited.

Trump’s call to arms comes as some elected officials—many of whom accuse social media platforms of kowtowing to liberals and unfairly scrutinizing conservative perspectives—issue a rallying cry to police online companies, including Facebook, Twitter, and Google. Sen. Josh Hawley (R–Mo.) introduced a bill in June that would require the tech behemoths to verify their political neutrality with the Federal Trade Commission every two years. If they failed to do so, they would lose protections under Section 230 of the Communications Decency Act, which, in turn, would leave them to face greater criminal and civil liability for every post published on their platforms.

Although Hawley says his bill is intended to protect free speech, it would likely have the opposite effect, as social media companies would be forced to crack down on posts that could land them in court absent Section 230 protections.

Few lawmakers expressed support for the proposal in its current form. But Hawley isn’t alone in his desire to crack down on online platforms. Sen. Ted Cruz (R–Texas), once a lover of limited government, grilled Google User Experience Director Maggie Stanphill during a congressional hearing last month over whether the company’s leaders had voted or donated to Trump. While the answer to the former was inconclusive, the response to the latter was “no.” That’s evidence of internal bias, Cruz said, and possibly grounds for government intervention.

Sen. Marsha Blackburn (R–Tenn.) agrees. During a similar congressional hearing in April—a testament to how hot a topic this has become among Senate Republicans—she compared social media to a “town square,” one which needs a sheriff to stop the suppression of conservative thought.

These claims are overblown. Conservative media companies have proven quite adept at leveraging online algorithms to send their stories on a viral streak, using the likes of both Facebook and Twitter to do so. A study released today concludes that a large swath of the popular stories about current Democratic presidential contenders are coming not from “the liberal media,” but from right-wing publications. In regards to Kamala Harris (D–Calif.), Sen. Cory Booker (D–N.J.), and former Housing and Urban Development Secretary Julian Castro, four out of the five most popular articles about each over the past several weeks were published by conservative sources such as Breitbart, TheBlaze, and Fox News.

That likely won’t sway many conservative figures who feel they’ve been unduly targeted by liberal content moderators. Project Veritas founder James O’Keefe, who also made the cut for Trump’s summit, drew headlines in June after he publicly decried YouTube’s decision to remove a video he posted that appeared to paint Google as politically biased against Republicans. (It’s worth noting that O’Keefe has a history of doctoring videos, and the executive at the center of the video, Jen Gennai, says this is no exception.) Charlie Kirk, the social media giant who has gained over one million Twitter followers in his pursuit of “owning the libs,” has been another vocal opponent of social media censorship. “Conservatives being censored on social media is on [sic] the most important issues heading into 2020!” he tweeted in May. “WE WILL NOT BE SILENCED,” he continued.

It is true that online figures of a similar (although perhaps more incendiary) ilk—such as right-leaning provocateurs Milo Yiannopoulos and Alex Jones and the left-leaning black nationalist Louis Farrakhan—have been subject to near-complete online exile amid allegations of organized hate. But social media platforms are private companies who can promote whatever values they so choose—an argument that, to a degree, resonates with the TPUSA founder.

“I think there will be some form of equilibrium” between social media companies and conservative Americans, Kirk tells the Associated Press. “Hopefully these companies can self-correct.”

What action the tech giants could take to please conservative critics remains unclear. Regardless, Kirk and company would do well to remember that limited government means just that—even when you don’t like the outcome.

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The horseshoe theory of politics might be true after all. Today, self-described “democratic socialist” Rep. Alexandria Ocasio-Cortez (D–N.Y.) endorsed an idea long advocated by free-market libertarians: abolition of the Department of Homeland Security (DHS).

During a Tuesday taping of The New Yorker Radio Hour, Ocasio-Cortez told host David Remnick that DHS has been a definitive failure that should probably go the way of the dinosaurs.

“I feel like we are, at a very, it’s a very qualified and supported position, at least in terms of evidence, and in terms of being able to make the argument that we never should’ve created DHS in the early 2000s,” said Ocasio-Cortez.

When asked flatly if she would get rid of the department, Ocasio-Cortez said “I think so,” while re-upping her slightly less radical proposal to get rid of U.S. Immigration and Customs Enforcement (ICE), which is a department within DHS.

Should Ocasio-Cortez want to seriously pursue axing DHS, she’d find a ready ally in libertarian policy wonks, who’ve long called for breaking up the department and either spinning off or shuttering the numerous federal agencies in its portfolio.

Congress created DHS in 2002 by merging 22 disparate federal agencies responsible for everything from immigration enforcement to disaster relief. President George W. Bush promised at the time that the new department would “improve efficiency without growing government.”

However, “the lean and efficient DHS that the president promised did not materialize,” the Cato Institute’s Chris Edwards wrote in a 2014 paper that argued for the abolition of DHS. Instead of the well-oiled machine we were promised, “DHS agencies are some of the most poorly managed in the federal government.”

The largest of DHS’s charges is the scandal-plagued Federal Emergency Management Agency (FEMA), which spent about a third of DHS’s $60 billion budget this fiscal year.

Often remembered for its impotent response to Hurricane Katrina, FEMA has also been on the receiving end of more recent, scathing reports and audits.

In December, Politico reported that staff shortages during the 2017 hurricane season saw the agency promote people beyond what their abilities or skills would merit, resulting in some 38 percent of FEMA staff being in a position for which they were not qualified.

A 2016 DHS Inspector General’s audit of the agency’s spending during fiscal years 2014 and 2015 concluded that “of the $1.55 billion in disaster relief funds we audited, we found $457 million in questionable costs, such as duplicate payments, unsupported costs, improper contract costs, and unauthorized expenditures.”

In September of 2018, FEMA Director Brock Long was found to have spent $151,00 of the taxpayers’ money on unauthorized private travel.

It’s not just FEMA. Undercover performance audits of the Transportation Security Administration (TSA) found that TSA screeners miss anywhere from 70 to 95 percent of contraband moving through its checkpoints.

This general incompetence is exacerbated by individual episodes of TSA agents harassing and abusing the flying public. Perhaps unsurprisingly, the agency has some of the highest turnover rates and lowest levels of job satisfaction in the federal government.

Obviously, the thing driving Ocasio-Cortez and other progressives’ animus toward DHS isn’t TSA or FEMA, but the departments’ immigration agencies, which include ICE and Customs and Border Protection (CBP), which runs Border Patrol.

These two agencies have been making headlines recently for the deplorable conditions in their migrant detention facilities. Ocasio-Cortez made a recent well-publicized visit to one such facility and was reportedly appalled by the conditions she found there.

A recent ProPublica investigation found that thousands of Border Patrol agents were members of secret Facebook groups where racist and sexist memes were frequently posted.

That’s far from an exhaustive list of either agencies’ scandals and misdeeds. Even when acting well within the letter of the law, their treatment of immigrants is enough to shock the conscience.

Really, the only DHS department that appears to be in not horrible standing is the Coast Guard.

The abysmal track record of DHS’s various divisions—many of which have very different missions from each other—suggest that the department should be broken up altogether, Cato’s Edwards wrote.

Functions like disaster relief should be delegated to the states, he suggests, while the TSA should be privatized altogether. Liberalized immigration policies that both progressives and libertarians could endorse would reduce the need for agencies like CBP and ICE. The later agency could probably be gotten rid of altogether.

It’s questionable how much of this specific reform platform Ocasio-Cortez would support. That she openly acknowledges the abject failure of DHS puts her far closer to libertarians on this issue than most of her congressional colleagues.

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Yesterday, on the same day that the U.S. Court of Appeals for the 2nd Circuit ruled that Donald Trump cannot constitutionally block Twitter users whose views offend him, two critics of Rep. Alexandria Ocasio-Cortez (D-N.Y.) filed lawsuits arguing that the same rule should apply to her. “Just today, the 2nd Circuit Court of Appeals affirmed a ruling that elected officials cannot block individuals from their Twitter accounts,” one of the plaintiffs, former New York state legislator Dov Hikind, told Fox News.

While that is not quite what the 2nd Circuit held, Hikind’s complaint, filed in the U.S. District Court for the Eastern District of New York, makes a plausible case that Ocasio-Cortez’s main Twitter account, @AOC, functions in a way similar to the president’s @realDonaldTrump account. While both Trump and Ocasio-Cortez established their accounts before they were elected, they both use them for what seem to be official government purposes. And while both also have “official” accounts (@POTUS and @repAOC, respectively), their ostensibly personal accounts are much more popular as forums for discussing policy and politics (with 26 million vs. 62 million followers in Trump’s case and 4.7 million vs. 172,000 in Ocasio-Cortez’s).

Ocasio-Cortez’s account, like Trump’s, identifies her by her government title and features photographs related to her official work. Hikind says @AOC is “the account to which AOC regularly posts and engages in…political speech” and “advocates for her positions.” He argues that “AOC uses Twitter as an important public forum for speech,” noting that she “uses Twitter to make formal announcements, opine on a range of social matters both domestic and abroad, endorse candidates, engage with follow[er]s of her account, [and] promote Defendant’s agenda.” Her recent tweets, for example, include posts about her Green New Deal, her questions about unemployment during a congressional hearing, criminal justice reform, border enforcement, Republican sexism, her pursuit of “environmental justice,” and various pieces of legislation she has sponsored.

Ocasio-Cortez, like Trump, generally makes the “interactive space” associated with her account available to all comers. But she makes exceptions for certain Twitter users, such as Hikind and Republican congressional candidate Joseph Saladino (the plaintiff in the other Twitter blocking lawsuit filed against Ocasio-Cortez yesterday), whose opinions annoy her. “The manner in which AOC uses the @AOC Twitter account makes it a public forum under the First Amendment,” Hikind argues. “Plaintiff respectfully ask[s] that this Court declare that the viewpoint-based exclusion occurring here violates the First Amendment, order the Defendant to restore Mr. Hikind’s access, and bar Defendant from blocking access to her twitter account.”

Contrary to what Hikind implied on Fox News, the 2nd Circuit did not say that any government official with a Twitter account has to let all users follow him, no matter how irksome they are. But it did outline criteria for determining when blocked users have a legitimate constitutional beef.

“Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry,” the appeals court said. “The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.”

When government officials use their Twitter accounts for personal purposes and do not present them as extensions of their jobs, they can block whomever they want. But when they use their Twitter accounts to communicate with constituents, brag about their legislative accomplishments, promote their policy agendas, and respond to criticism of their positions and work, they are inviting this sort of lawsuit.

Assuming that Hikind and Saladino are successful, the burden imposed on Ocasio-Cortez would be slight. As the 2nd Circuit emphasized, politicians who use Twitter for public purposes do not have to listen to their critics; they only have to let them participate in the debate they are inviting on the same terms as their supporters. If Ocasio-Cortez wanted to avoid any offense or discomfort caused by critical comments, she could still mute Twitter users such as Hikind and Saladino, so she would never even have to see what they are saying about her, while they would still be free to engage with all the other people reacting to her tweets. That does not seem like too much to demand from elected officials who use social media as part of their government work.

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A New Orleans warehouse owner may keep up a mural featuring an artist’s interpretation of an infamously profane Donald Trump quote about grabbing women “by the pussy,” a federal judge ruled Tuesday.

The lawsuit pit local warehouse owner (and regular Reason reader) Neal Morris against the City of New Orleans over the city’s nebulous regulations of signs and artwork. In 2018, Morris permitted a street artist to paint a mural on his property featuring Trump’s quote, recorded by Access Hollywood and released to the public during the 2016 campaign. The artwork (shown above) was mostly a direct quote, with a few of Trump’s words—”tits,” “bitch,” “star,” and “pussy”—replaced with pictograms.

Morris went to the city to request information about permitting before putting up the mural, but the city was unable to explain the process of getting authorization. So Morris went ahead and let the artist do his work.

Then the mural got media attention. In response, the City of New Orleans started sending letters to Morris, telling him the mural violated city zoning laws and threatening him with fines and possible jail time. With the assistance of the American Civil Liberties Union (ACLU), Morris fought back, arguing that the mural was protected free speech and that the city’s review process for getting a mural approved amounted to inadmissible content-based prior restraint.

Reason first noted the lawsuit in March 2018. In the past year, the City of New Orleans has attempted to amend its regulations to separate artistic expression from commercial speech and advertising. But the new rules still obligated people to submit their mural plans to the city, which would determine if the proposal was actually a “work of art.” Morris and the ACLU argued that these new regulations still counted as prior restraint and were unconstitutionally vague about what counted as artistic expression, thus violating Morris’ First and Fourteenth Amendment rights.

On Tuesday, U.S. District Judge Martin Feldman of the Eastern District of Louisiana agreed, granting Morris’ motion for a judgment declaring the city’s mural ordinance unconstitutional and blocking them from enforcing it.

Morris provided a copy of Feldman’s ruling to Reason and clarified the conflict with the city in a brief phone interview. He noted (as did a city employee’s testimony included in the judge’s ruling) that the city had a practice of not enforcing any sort of mural regulations unless somebody complained. Morris figures that a neighbor complained, which prompted the media coverage and the city’s response.

“If you only enforce [these regulations] when there are complaints what you end up with is a heckler’s veto,” Morris says. “There was a complaint about the pictogram of the boobs and a pussy hat. From what the artist was going for, I get it. Why is it okay for the president to say it and do these things, but if you quote it with a pictogram, that becomes obscene?”

As for the reason that he fought the city: “It’s really about government restriction of speech in the age of Trump,” Morris says. “Now more than ever we want to be careful about any encroachment on speech, even when well-meaning. What happens when it’s not your friends in power?”

Morris agreed to cover the mural with canvas during the legal fight. Now that he’s won, Morris says he actually hasn’t decided whether he’ll take the cover down.

“I may just paint over it,” he says. “The artist got his message out and its purpose has been served.”

Read the judge’s ruling here: 2019.07.09 Feldman Order MSJ Morris v. New Orleans

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A New Hampshire doctor recently got into trouble with state regulators because of the way he treated a pain patient. But in a refreshing twist that suggests state officials are beginning to recognize the harm caused by restricting access to pain medication, the New Hampshire Board of Medicine reprimanded and fined the doctor not for prescribing opioids but for refusing to do so.

In May, the New Hampshire Union Leader reports, Joshua Greenspan, a Portsmouth physician certified in pain management and anesthesiology, signed a settlement agreement with the state medical board that included a reprimand, a $1,000 fine, and “at least 12 hours of education in prescribing opioids for pain management and in pain management record-keeping.” The settlement stems from a June 2018 complaint in which a patient reported that Greenspan, “after treating him for years and prescribing the same dosages of pain medication, suddenly reduced his medications, which led to increased pain and anxiety, and suicidal ideations.”

A previous doctor had prescribed the patient two 80-milligram tablets of OxyContin, an extended-release formulation of oxycodone, plus four 30-milligram tablets of immediate-release oxycodone, per day. Greenspan initially continued those prescriptions, but in April 2018 he informed the patient that the Centers for Medicare and Medicaid Services (CMS) had imposed a cap on opioid prescriptions of 90 morphine milligram equivalents (MME) per day. Based on the conversion factor used by CMS, the patient was receiving more than four times that amount: 420 MME per day.

But as the medical board noted, that 90-MME rule, which did not actually take effect until the beginning of this year, is not a hard ceiling. Instead the CME requires pharmacists to consult with prescribing doctors before filling prescriptions that total 90 MME or more per day. Greenspan’s confusion is understandable, however, since CME initially proposed a stricter limit, from which it retreated in response to strong objections from doctors and patients.

The 90-MME threshold is based on 2016 prescribing guidelines from the U.S. Centers for Disease Control and Prevention (CDC) that have been widely misinterpreted as requiring dose reductions for patients who already exceed that arbitrary cutoff, even if they have been functioning well on those doses for years. That perception has led to involuntary dose reductions and patient abandonment across the country. The CDC belatedly repudiated that misunderstanding of its advice in a statement and a journal article last April, three years after issuing the guidelines and one year after Greenspan erroneously told his patient that the federal government was demanding dose reductions.

After Greenspan cut the patient’s daily dose by 40 milligrams (60 MME), the patient found that his pain was no longer well-controlled. The Union Leader describes what happened next:

That’s when the doctor told the patient he was no longer comfortable prescribing opioids for him and would no longer treat him. He also “reported his concerns about (the patient’s) well-being” to the local police department and the man’s primary care doctor, according to the settlement. He also sent a prescription for an opioid withdrawal drug to the patient’s pharmacy.

That conclusion highlights how concerns about the “opioid crisis,” reinforced by real or perceived demands from the government, have perverted the doctor-patient relationship, making physicians agents of the war on drugs, which is inconsistent with their professional duties. The medical board’s decision suggests that New Hampshire regulators understand the dangers of those conflicting priorities. Perhaps not coincidentally, New Hampshire is also fighting the Drug Enforcement Administration’s demands for warrantless access to prescription records.

Bill Murphy, a local pain treatment activist, told the Union Leader the resolution of the complaint against Greenspan “sends the right message to physicians in New Hampshire,” who need to understand that “the guidelines are just that—guidelines—and not hard-and-fast rules.” At the same time, Murphy expressed sympathy for doctors who feel pressured to reduce opioid prescriptions and worry that they could lose their licenses, livelihoods, and even their liberty if they are identified as outliers. “I think in the end they do want to help people,” he said. “They feel like they’re caught between a rock and a hard place.”

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The census citizenship question case (New York et al. v Dep’t of Commerce, back in the SDNY after remand from the Supreme Court in June) has taken a strange new turn. On Monday, the DOJ submitted a motion to withdraw en masse the DOJ lawyers who had been working on the case over the past year and to substitute other DOJ lawyers in their stead.

It might surprise people who are not lawyers (as it surprised me, when I first learned about it in my law school “Professional Responsibility” class) that a lawyer can’t simply drop a client whom he/she has been representing in court, the way an ordinary business can decide not to do any further business with a client. SDNY’s Local Rule 1.4 (typical of the genre), a lawyer “who has appeared as attorney of record for a party … may not withdraw from a case without leave of the Court,” which shall be granted only if the lawyer (a) provides “satisfactory reasons for withdrawal” and (b) explains “the impact of the withdrawal on the timing of the proceeding.”

The DOJ’s motion provided neither (a) nor (b), and yesterday—unsurprisingly, and correctly—Judge Furman denied the motion.

Defendants’ motion is patently deficient. Defendants provide no reasons, let alone “satisfactory reasons,” for the substitution of counsel. And as to the second factor, Defendants’ mere “expect[ation] that withdrawal of current counsel will [not] cause any disruption” is not good enough, particularly given the circumstances of this case: Defendants’ opposition to Plaintiffs’ most recent motion is due in just three days; Defendants’ opposition to Plaintiffs’ anticipated motion for sanctions is due later this month; and, in the event that Defendants seek to add the citizenship question to the 2020 census questionnaire based upon a “new rationale,” time would plainly be of the essence in any further litigation relating to that decision. As this Court observed many months ago, this case has been litigated on the premise — based “in no small part” on Defendants’ own “insist[ence]” — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance.

[Judge Furman did grant the motion to withdraw with respect to two DOJ lawyers who did have a “satisfactory reason” for withdrawal, having recently left the DOJ].

What happens now**?  It’s an interesting question. For the moment, at least, the original team from DOJ continues to represent the Commerce Department in the case.  Judge Furman’s denial of the DOJ’s motion was “without prejudice,” meaning that the DOJ can resubmit its motion for withdrawal/substitution, but the Court specifically noted that “any new motions to withdraw shall be supported by a signed and sworn affidavit from each counsel seeking to withdraw stating ‘satisfactory reasons’ for withdrawing at this stage of the litigation,” along with “unequivocal assurances … that the substitution of counsel will not delay further litigation of this case.”

So this could get interesting. One possibility: The government could resubmit the withdrawal motion and provide the hitherto-unrevealed reasons for withdrawal.

Whether the DOJ takes this route may depend on what those reasons are.  Why are these attorneys—the entire team that worked on the case!—being withdrawn, and will the DOJ be willing to set those reasons out in writing?

I don’t know the answers to those questions, but here’s my guess.  The attorneys involved in the case made representations to the district court and the Supreme Court about the need for “expeditious resolution”—in particular, that June 30 was the drop-dead date for including a citizenship question with the other census questions. If they were to come into court now bearing a request for the court to examine the government’s “new rationale” for the citizenship question, the court is going to stop them and look them in the eye and ask:  “Didn’t you tell me—in a court filing that you signed—that June 30 was the drop dead date?  Wasn’t that how you got me, and the Supreme Court, to hear this case on an expedited schedule?  You weren’t lying to the courts about that, were you?”

A second possibility is that the government foregoes this route, drops its request to substitute new counsel, and simply continues to use the same lawyers it has been using—ordering them, as DOJ employees, to keep working on the case. But if I’m right about their reasons for seeking withdrawal, that puts the lawyers in a very, very difficult spot; courts understandably don’t like to be intentionally misled by attorneys appearing before them, and there are potentially serious sanctions that can be applied to those who do so.

The third possibility—and I think this exhausts the list of possibilities—is that the government could throw up its hands and agree to comply with the Supreme Court’s decision and eliminate the citizenship question.

An interesting and unusual denouement, whichever one of the three directions it goes.

** We should not pass over President Trump’s response to this decision—a tweet in which he asserted that “the Obama appointed judge on the Census case … won’t let the Justice Department use the lawyers that it wants to use.”  Though we have grown used to Trump’s references to “Obama appointed judge[s],” we should not let that become the new normal, and we should renew our outrage each time he does it.  It is part of the campaign to peck away, tweet by tweet, at the legitimacy of the federal courts; it is straight out of the Authoritarian’s Playbook and needs to be resisted at all costs. Chief Justice Roberts took the very unusual step last year of publicly admonishing Trump for these attacks—”We do not have Obama judges or Trump judges, Bush judges or Clinton judges”—and I, for one, continue to find them appalling and destructive. And it is a particularly pathetic response in this case—a case in which the governing Rule requires presentation of “satisfactory reasons for withdrawal” and where the DOJ actually submitted no reasons at all, and where it’s hard to imagine any judge in his/her right mind who could possibly have ruled any differently.

 

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