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Livestreamed Oral Arguments Will Continue at SCOTUS

This morning, the Supreme Court issued the following announcement about oral arguments for the October sitting:

The Court will hear all oral arguments scheduled for the October session by telephone conference, following the same format used for the May teleconference arguments. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The Court building remains open for official business only and closed to the public until further notice. The Court will continue to closely monitor public health guidance in determining plans for the November and December argument sessions.

The Court will provide a live audio feed of the October oral arguments to a media pool as it did for the May arguments. The pool participants will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for live public access. The oral argument audio and a transcript of the oral arguments will also be posted on the Court’s website following oral argument each day.

Additional details regarding media pool distribution will be provided in the coming weeks.

The schedule of arguments for the October term can be seen here.

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Judicial Supremacy: Not So Bad

At the Law & Liberty site today, I have a review of Louis Fisher’s new book on judicial supremacy, Reconsidering Judicial Finality. Contra Fisher, I argue in favor of judicial supremacy, properly understood as a rebuttable presumption that Court rulings are binding on other political actors and the people as a whole. Here’s an excerpt:

But the better view, and the one most scholars would take, is that Court judgments are presumptively binding in this broader sense. In the great sweep of our constitutional history, resistance to Court rulings has been comparatively rare. The strength of this presumption is impossible to state in categorical terms. Richard Fallon offers a good way to think about it. Judicial supremacy means that “judicial rulings must be obeyed as long as they are intra rather than ultra vires”—that is, as long as they are plausibly “within a court’s authority to render”—and “not unreasonable as judged from the perspective of the President and a majority of the American people.” If our constitutional democracy is tolerably functional, occasions for resisting Court rulings will arise relatively infrequently.

Note that, on a proper view of judicial supremacy, the Court remains free to change its mind and rule differently in subsequent cases. And political actors, as well as the public at large, remain free to try to persuade the Court to do so. After all, unless some litigant brings a challenge, the Court will never have an opportunity to revisit an earlier decision. Lincoln put it well in responding to the Court’s disastrous ruling in the Dred Scott case (1857), in which the Court held that the Constitution did not allow African-Americans to be citizens or Congress to outlaw slavery in federal territories. The Court’s decisions on constitutional questions, Lincoln conceded, “should control, not only the particular cases decided, but the general policy of the country.” Nevertheless, “[w]e know the Court . . . has often overruled its own decisions, and we shall do what we can to have it overrule this.” . . .

Fisher is unfortunately dismissive of arguments in favor of judicial supremacy. “No matter what evidence is presented,” he writes, “some scholars and courts will continue to rely on and promote the doctrine of judicial finality.” But it is not simply obstinance. Good arguments exist for judicial supremacy, including the desirability of settling legal questions and promoting reliance on the part of citizens, who need to know what the law requires at any particular time. Besides, the logic of judicial review itself suggests some sort of judicial supremacy. The Constitution is not simply what the Court says it is; but if the Court’s decisions are not broadly authoritative, constitutional impasses will occur much more frequently—not the end of the world, but not the best situation, either.

You can read the whole review here.

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New FCC Nominee Has Already Been Helping Trump Try To Censor Social Media

zumaamericastwentyeight161347

Trump nominates Nathan Simington to Federal Communications Commission (FCC). When both presidential contenders—incumbent President Donald Trump and Democratic nominee Joe Biden—want to repeal Section 230 of federal communications law, it’s perhaps the best indicator that doing so is a bad idea. As First Amendment lawyer and law professor Eric Goldman put it earlier this summer: “Turns out that censorship is a bipartisan objective.”

The popularity among politicians for destroying this free speech-protective law proves yet again how appealing censorship is to both Republicans and Democrats. It seems like every week in 2020, we get a new and devastating reminder of this unfortunate fact. Today, it comes in the form of Trump’s new nominee for Federal Communications Commission commissioner: Nathan Simington.

The first sign that this is no good for social media and the internet is that Simington is a veteran telecom lawyer. But he’s not just any telecom lawyer. “Simington, a senior adviser at the National Telecommunications and Information Administration (NTIA), played a significant role in drafting a petition required under the Trump administration’s social media executive order issued over the summer,” reports The Verge. That NTIA petition was central to Trump’s gambit to get the FCC to reinterpret Section 230. (Read more about Trump’s overreaching and yet also relatively toothless order here.)

“Simington’s nomination marks a significant break in the Trump administration’s former FCC nominations,” notes The Verge‘s Makena Kelly. “Previously, the administration has nominated Republican commissioners in favor of light-touch telecommunications and technology policy.” And “if Simington’s nomination is approved in the Senate, the FCC would have two Republican commissioners likely in favor of voting to approve the administration’s social media order,” Kelly points out.

Simington would take the place of FCC Commissioner Mike O’Rielly, who describes himself as “extremely dedicated to First Amendment” and—unlike some of his colleagues—has declined to be a total Trump bootlicker. Trump had nominated O’Rielly for a third term as an FCC commissioner until O’Rielly gave a speech critical of Trump administration tech and speech policy in July. The White House promptly announced that it was pulling O’Rielly’s nomination.

“In other words, the White House is being a petty asshole, again, and firing anyone for not being in lockstep with the President’s ridiculous unconstitutional whims,” commented Mike Masnick at Techdirt.

Sen. Ron Wyden (D–Ore.), one of the co-authors of Section 230, told The Verge that Trump’s order is wrong about how Section 230 works (and so are politicians like Sens. Josh Hawley of Missouri and Ted Cruz of Texas). “What Chris Cox and I tried to do in Section 230, I think it’s still valid today, is we wanted to empower free speech and moderation. These other ideas have one thing in common. They would restrict free speech in order to force moderation,” said Wyden in August. Asked then to speculate on who Trump would nominate to replace O’Rielly, he said:

So my guess is that the president will insist on somebody who’s going to push the policy that Twitter should have to publish his lies and somehow twist and turn the FCC into a forum that unravels Section 230 and basically kind of forfeit any sense of independence. And I’ve got a track record of fighting that kind of nominee, and we’ll certainly have tough questions to ask in any kind of confirmation process.

I’ve got to think that a nominee to the Federal Communications Commission from the Trump administration is somebody who basically is prepared to carry out every dotted I and every crossed T of the president’s anti-230 policy. I think the bottom line is basically about working the refs, bullying the tech companies, and forcing Twitter and other platforms to print his lies.

FREE MINDS

America’s global prestige continues to drop. “Since Donald Trump took office as president, the image of the United States has suffered across many regions of the globe,” says the Pew Research Center, reporting on a new survey of people in 13 countries that explores how “America’s reputation has declined further over the past year among many key allies and partners.”

“In several countries, the share of the public with a favorable view of the U.S. is as low as it has been at any point since the Center began polling on this topic nearly two decades ago,” the nonprofit, nonpartisan polling organization notes:

For instance, just 41% in the United Kingdom express a favorable opinion of the U.S., the lowest percentage registered in any Pew Research Center survey there. In France, only 31% see the U.S. positively, matching the grim ratings from March 2003, at the height of U.S.-France tensions over the Iraq War. Germans give the U.S. particularly low marks on the survey: 26% rate the U.S. favorably, similar to the 25% in the same March 2003 poll.

Read more findings from Pew’s new survey here.

FREE MARKETS

Black people account for nearly 90 percent of marijuana arrests in Washington, D.C., where decriminalization of marijuana possession was supposed to help ease racial discrimination in policing and disparities in drug arrests. But “five years after the city enacted reforms that proponents hoped would end racial disparities in enforcement,” D.C. cops are still “far more likely to arrest Blacks than Whites for marijuana-related offenses,” according to The Washington Post:

Although marijuana arrests have declined by more than half, African Americans still account for just under 90 percent of those arrested on all pot-related charges, according to a Washington Post analysis, even as they make up 45 percent of the city’s population.

And while studies show that marijuana use is equally prevalent among Blacks and Whites, 84 percent of more than 900 people arrested for public consumption in the nation’s capital were African American in the four years after legalization.

More here.

ELECTION 2020 

Biden has a significant lead in the latest polls from some key Midwestern states:

QUICK HITS

  • Department of Homeland Security whistleblower Brian Murphy claims that (perhaps illegitimate) acting secretary of the department, Chad Wolf, told him “to cease providing intelligence assessments on the threat of Russian interference in the United States, and instead start reporting on interference activities by China and Iran.”
  • A judge in Pennsylvania set bail for people arrested on riot charges at a recent protest at $1 million apiece.
  • “Four years ago I was a ‘Never Trump’ voter,” writes longtime libertarian Walter Olson, a senior fellow at the Cato Institute, in the Wall Street Journal. “Now, I’m more set than ever in that view: No Trump, doubled. That’s even though I far prefer his economic policies to those of the Democrats.”
  • “The recent case of a young teen with autism who was shot by the police in a Salt Lake City suburb, after his mother called the police while he was in crisis, raises some serious questions,” writes Mathieu Vaillancourt. “Considering that close to 1% of the population in the U.S. is on the autistic spectrum, perhaps it’s time for police in the United States and elsewhere in the world to start having better procedures in order to deal with crises that do not require using potentially lethal force.”

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Judicial Supremacy: Not So Bad

At the Law & Liberty site today, I have a review of Louis Fisher’s new book on judicial supremacy, Reconsidering Judicial Finality. Contra Fisher, I argue in favor of judicial supremacy, properly understood as a rebuttable presumption that Court rulings are binding on other political actors and the people as a whole. Here’s an excerpt:

But the better view, and the one most scholars would take, is that Court judgments are presumptively binding in this broader sense. In the great sweep of our constitutional history, resistance to Court rulings has been comparatively rare. The strength of this presumption is impossible to state in categorical terms. Richard Fallon offers a good way to think about it. Judicial supremacy means that “judicial rulings must be obeyed as long as they are intra rather than ultra vires”—that is, as long as they are plausibly “within a court’s authority to render”—and “not unreasonable as judged from the perspective of the President and a majority of the American people.” If our constitutional democracy is tolerably functional, occasions for resisting Court rulings will arise relatively infrequently.

Note that, on a proper view of judicial supremacy, the Court remains free to change its mind and rule differently in subsequent cases. And political actors, as well as the public at large, remain free to try to persuade the Court to do so. After all, unless some litigant brings a challenge, the Court will never have an opportunity to revisit an earlier decision. Lincoln put it well in responding to the Court’s disastrous ruling in the Dred Scott case (1857), in which the Court held that the Constitution did not allow African-Americans to be citizens or Congress to outlaw slavery in federal territories. The Court’s decisions on constitutional questions, Lincoln conceded, “should control, not only the particular cases decided, but the general policy of the country.” Nevertheless, “[w]e know the Court . . . has often overruled its own decisions, and we shall do what we can to have it overrule this.” . . .

Fisher is unfortunately dismissive of arguments in favor of judicial supremacy. “No matter what evidence is presented,” he writes, “some scholars and courts will continue to rely on and promote the doctrine of judicial finality.” But it is not simply obstinance. Good arguments exist for judicial supremacy, including the desirability of settling legal questions and promoting reliance on the part of citizens, who need to know what the law requires at any particular time. Besides, the logic of judicial review itself suggests some sort of judicial supremacy. The Constitution is not simply what the Court says it is; but if the Court’s decisions are not broadly authoritative, constitutional impasses will occur much more frequently—not the end of the world, but not the best situation, either.

You can read the whole review here.

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New FCC Nominee Has Already Been Helping Trump Try To Censor Social Media

zumaamericastwentyeight161347

Trump nominates Nathan Simington to Federal Communications Commission (FCC). When both presidential contenders—incumbent President Donald Trump and Democratic nominee Joe Biden—want to repeal Section 230 of federal communications law, it’s perhaps the best indicator that doing so is a bad idea. As First Amendment lawyer and law professor Eric Goldman put it earlier this summer: “Turns out that censorship is a bipartisan objective.”

The popularity among politicians for destroying this free speech-protective law proves yet again how appealing censorship is to both Republicans and Democrats. It seems like every week in 2020, we get a new and devastating reminder of this unfortunate fact. Today, it comes in the form of Trump’s new nominee for Federal Communications Commission commissioner: Nathan Simington.

The first sign that this is no good for social media and the internet is that Simington is a veteran telecom lawyer. But he’s not just any telecom lawyer. “Simington, a senior adviser at the National Telecommunications and Information Administration (NTIA), played a significant role in drafting a petition required under the Trump administration’s social media executive order issued over the summer,” reports The Verge. That NTIA petition was central to Trump’s gambit to get the FCC to reinterpret Section 230. (Read more about Trump’s overreaching and yet also relatively toothless order here.)

“Simington’s nomination marks a significant break in the Trump administration’s former FCC nominations,” notes The Verge‘s Makena Kelly. “Previously, the administration has nominated Republican commissioners in favor of light-touch telecommunications and technology policy.” And “if Simington’s nomination is approved in the Senate, the FCC would have two Republican commissioners likely in favor of voting to approve the administration’s social media order,” Kelly points out.

Simington would take the place of FCC Commissioner Mike O’Rielly, who describes himself as “extremely dedicated to First Amendment” and—unlike some of his colleagues—has declined to be a total Trump bootlicker. Trump had nominated O’Rielly for a third term as an FCC commissioner until O’Rielly gave a speech critical of Trump administration tech and speech policy in July. The White House promptly announced that it was pulling O’Rielly’s nomination.

“In other words, the White House is being a petty asshole, again, and firing anyone for not being in lockstep with the President’s ridiculous unconstitutional whims,” commented Mike Masnick at Techdirt.

Sen. Ron Wyden (D–Ore.), one of the co-authors of Section 230, told The Verge that Trump’s order is wrong about how Section 230 works (and so are politicians like Sens. Josh Hawley of Missouri and Ted Cruz of Texas). “What Chris Cox and I tried to do in Section 230, I think it’s still valid today, is we wanted to empower free speech and moderation. These other ideas have one thing in common. They would restrict free speech in order to force moderation,” said Wyden in August. Asked then to speculate on who Trump would nominate to replace O’Rielly, he said:

So my guess is that the president will insist on somebody who’s going to push the policy that Twitter should have to publish his lies and somehow twist and turn the FCC into a forum that unravels Section 230 and basically kind of forfeit any sense of independence. And I’ve got a track record of fighting that kind of nominee, and we’ll certainly have tough questions to ask in any kind of confirmation process.

I’ve got to think that a nominee to the Federal Communications Commission from the Trump administration is somebody who basically is prepared to carry out every dotted I and every crossed T of the president’s anti-230 policy. I think the bottom line is basically about working the refs, bullying the tech companies, and forcing Twitter and other platforms to print his lies.

FREE MINDS

America’s global prestige continues to drop. “Since Donald Trump took office as president, the image of the United States has suffered across many regions of the globe,” says the Pew Research Center, reporting on a new survey of people in 13 countries that explores how “America’s reputation has declined further over the past year among many key allies and partners.”

“In several countries, the share of the public with a favorable view of the U.S. is as low as it has been at any point since the Center began polling on this topic nearly two decades ago,” the nonprofit, nonpartisan polling organization notes:

For instance, just 41% in the United Kingdom express a favorable opinion of the U.S., the lowest percentage registered in any Pew Research Center survey there. In France, only 31% see the U.S. positively, matching the grim ratings from March 2003, at the height of U.S.-France tensions over the Iraq War. Germans give the U.S. particularly low marks on the survey: 26% rate the U.S. favorably, similar to the 25% in the same March 2003 poll.

Read more findings from Pew’s new survey here.

FREE MARKETS

Black people account for nearly 90 percent of marijuana arrests in Washington, D.C., where decriminalization of marijuana possession was supposed to help ease racial discrimination in policing and disparities in drug arrests. But “five years after the city enacted reforms that proponents hoped would end racial disparities in enforcement,” D.C. cops are still “far more likely to arrest Blacks than Whites for marijuana-related offenses,” according to The Washington Post:

Although marijuana arrests have declined by more than half, African Americans still account for just under 90 percent of those arrested on all pot-related charges, according to a Washington Post analysis, even as they make up 45 percent of the city’s population.

And while studies show that marijuana use is equally prevalent among Blacks and Whites, 84 percent of more than 900 people arrested for public consumption in the nation’s capital were African American in the four years after legalization.

More here.

ELECTION 2020 

Biden has a significant lead in the latest polls from some key Midwestern states:

QUICK HITS

  • Department of Homeland Security whistleblower Brian Murphy claims that (perhaps illegitimate) acting secretary of the department, Chad Wolf, told him “to cease providing intelligence assessments on the threat of Russian interference in the United States, and instead start reporting on interference activities by China and Iran.”
  • A judge in Pennsylvania set bail for people arrested on riot charges at a recent protest at $1 million apiece.
  • “Four years ago I was a ‘Never Trump’ voter,” writes longtime libertarian Walter Olson, a senior fellow at the Cato Institute, in the Wall Street Journal. “Now, I’m more set than ever in that view: No Trump, doubled. That’s even though I far prefer his economic policies to those of the Democrats.”
  • “The recent case of a young teen with autism who was shot by the police in a Salt Lake City suburb, after his mother called the police while he was in crisis, raises some serious questions,” writes Mathieu Vaillancourt. “Considering that close to 1% of the population in the U.S. is on the autistic spectrum, perhaps it’s time for police in the United States and elsewhere in the world to start having better procedures in order to deal with crises that do not require using potentially lethal force.”

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There’s Some “Hate Speech” for You

A reader passes along this item, which led to his account being locked (for 30 days, apparently) on “hate speech” grounds by Facebook (I’ve redacted his name below):

Why exactly is that “hate speech“? I posed the question to some law professors. Some thought it was because it was “blatant misogyny,” because of the word “bitch” or perhaps the phrase “bitch slap.” Someone added that the “grow a pair of balls” may be further evidence of “misogyny.” (I’m skeptical of that theory, but this is what I was told.) The Facebook “hate speech” policy gives “bitch” as an example of a word that’s forbidden, though only when “targeting a person or group of people on the basis of their protected characteristic(s),” and it’s pretty clear that this meme doesn’t target people based on sex.

Someone else suggested that it might be “direct attack on people based on what we call protected characteristics,” namely “national origin”—i.e., Americans. My friend and coauthor Mark Lemley reported,

Whether for ideological reasons or to show even-handedness, Facebook has been blocking posts viewed as “anti-American.”  I had a post blocked (and the block upheld on appeal) for saying “Americans are idiots” to caption a picture that showed Americans being, well, idiots.

OK, but “hate speech”?

Now Facebook is a private company, and is legally entitled to block what it wants. And it’s hard to say that there’s real damage in its blocking memes like this, or any real chilling effect on speech, at least speech by private individuals: How much do you really lose from having your post deleted and your Facebook account blocked? (Some say you gain from it.)

Yet instances such as this help show, I think, the danger of attempts to restrict “hate speech,” whether through broadly applicable laws or through campus speech codes and the like—situations where people might be much more worried about punishment. “Hate speech” is always either defined very vaguely, or defined more precisely (as Facebook is trying to do) but in a way that ends up being ridiculously broad.

Such attempts to suppress “hate speech” always start with people talking about how of course we need to stop Nazis and racial epithets and calls for genocide. But they don’t seem likely to end with that.

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If Proposition 16 Passes, California’s Future Might Look Like This

Here are statistics from the University of Michigan in 2005 (before Michigan passed its version of Proposition 209, but after the twin Supreme Court cases against the University of Michigan in 2003).  If Proposition 16 passes, perhaps the University of California will look similar.

Median total SAT scores of admittees by race/ethnicity:

1160 – Black

1260 – Hispanic

1350 – White

1400 – Asian

Median high school GPA of admittees by race/ethnicity:

3.4 – Black

3.6 – Hispanic

3.9 – White

3.8 – Asian

Admission rates by race/ethnicity:

71%—Black

79%—Hispanic

62%—White

54%—Asian

The message here is if you thought race preferences in college and university admissions were just a gentle thumb on the scale in otherwise close cases, you thought wrong. And if you thought that the Supreme Court’s decisions in Gratz v. Bollinger and Grutter v. Bollinger would cause the University of Michigan to decrease the size of preferences, you thought wrong about that too. Preferences got larger instead.

These figures come from a report by Dr. Althea Nagai at the Center of Equality Opportunity.

Nagai reports that “[c]ontrolling for other factors, odds ratios showed Michigan awarding a great deal of preference to black over white applicants (70 to 1) and to Hispanics over whites (roughly 46 to 1).” On the other hand, Michigan “gave whites a small preference over Asians.” She calculated the Asian to white odds ratio at 0.69 to 1.

By contrast, controlling for race and other factors, the odds ratio of in-state over out-of-state applicants was 1.05 to 1 (which was not statistically significant).

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There’s Some “Hate Speech” for You

A reader passes along this item, which led to his account being locked (for 30 days, apparently) on “hate speech” grounds by Facebook (I’ve redacted his name below):

Why exactly is that “hate speech“? I posed the question to some law professors. Some thought it was because it was “blatant misogyny,” because of the word “bitch” or perhaps the phrase “bitch slap.” Someone added that the “grow a pair of balls” may be further evidence of “misogyny.” (I’m skeptical of that theory, but this is what I was told.) The Facebook “hate speech” policy gives “bitch” as an example of a word that’s forbidden, though only when “targeting a person or group of people on the basis of their protected characteristic(s),” and it’s pretty clear that this meme doesn’t target people based on sex.

Someone else suggested that it might be “direct attack on people based on what we call protected characteristics,” namely “national origin”—i.e., Americans. My friend and coauthor Mark Lemley reported,

Whether for ideological reasons or to show even-handedness, Facebook has been blocking posts viewed as “anti-American.”  I had a post blocked (and the block upheld on appeal) for saying “Americans are idiots” to caption a picture that showed Americans being, well, idiots.

OK, but “hate speech”?

Now Facebook is a private company, and is legally entitled to block what it wants. And it’s hard to say that there’s real damage in its blocking memes like this, or any real chilling effect on speech, at least speech by private individuals: How much do you really lose from having your post deleted and your Facebook account blocked? (Some say you gain from it.)

Yet instances such as this help show, I think, the danger of attempts to restrict “hate speech,” whether through broadly applicable laws or through campus speech codes and the like—situations where people might be much more worried about punishment. “Hate speech” is always either defined very vaguely, or defined more precisely (as Facebook is trying to do) but in a way that ends up being ridiculously broad.

Such attempts to suppress “hate speech” always start with people talking about how of course we need to stop Nazis and racial epithets and calls for genocide. But they don’t seem likely to end with that.

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via IFTTT

If Proposition 16 Passes, California’s Future Might Look Like This

Here are statistics from the University of Michigan in 2005 (before Michigan passed its version of Proposition 209, but after the twin Supreme Court cases against the University of Michigan in 2003).  If Proposition 16 passes, perhaps the University of California will look similar.

Median total SAT scores of admittees by race/ethnicity:

1160 – Black

1260 – Hispanic

1350 – White

1400 – Asian

Median high school GPA of admittees by race/ethnicity:

3.4 – Black

3.6 – Hispanic

3.9 – White

3.8 – Asian

Admission rates by race/ethnicity:

71%—Black

79%—Hispanic

62%—White

54%—Asian

The message here is if you thought race preferences in college and university admissions were just a gentle thumb on the scale in otherwise close cases, you thought wrong. And if you thought that the Supreme Court’s decisions in Gratz v. Bollinger and Grutter v. Bollinger would cause the University of Michigan to decrease the size of preferences, you thought wrong about that too. Preferences got larger instead.

These figures come from a report by Dr. Althea Nagai at the Center of Equality Opportunity.

Nagai reports that “[c]ontrolling for other factors, odds ratios showed Michigan awarding a great deal of preference to black over white applicants (70 to 1) and to Hispanics over whites (roughly 46 to 1).” On the other hand, Michigan “gave whites a small preference over Asians.” She calculated the Asian to white odds ratio at 0.69 to 1.

By contrast, controlling for race and other factors, the odds ratio of in-state over out-of-state applicants was 1.05 to 1 (which was not statistically significant).

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