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When Anthony Kennedy retired from the U.S. Supreme Court in 2018, he enjoyed the distinction of having been denounced by every major political faction in the country. For conservatives, Kennedy was the activist judge who “invented” a right to gay marriage. For progressives, he was the corporate shill who authored Citizens United. For libertarians, he was guilty of both enabling eminent domain abuse and squashing the rights of local medical marijuana users in favor of a national drug control scheme. At one point or another, everybody had cause to hate him.

Is John Roberts the new Kennedy? As the Supreme Court’s 2019–2020 term came to its dramatic close in July, the current chief justice not only solidified his role as a swing voter in highly charged cases but managed to annoy practically everybody along the way.

Will the religious right ever forgive Roberts for siding with the Court’s Democratic appointees to strike down an anti-abortion law? In Whole Woman’s Health v. Hellerstedt (2016), the chief justice dissented when the Court overturned a Texas statute that required abortion providers to have admitting privileges at local hospitals. But in this last term’s June Medical Services v. Russo, Roberts did the opposite, concurring in a decision that voided a nearly identical abortion regulation from Louisiana.

“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote in a lone concurrence. However, “stare decisis requires us, absent special circumstances, to treat like cases alike,” he continued. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”

Plenty of progressives praised Roberts for that. But their cheers turned to jeers when he delivered a huge victory just one day later for both school choice and religious liberty advocates. “A State need not subsidize private education,” Roberts wrote in Espinoza v. Montana Department of Revenue. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The Court has “long recognized the rights of parents to direct ‘the religious upbringing’ of their children,” he observed. “Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution.”

And then there was Seila Law v. Consumer Financial Protection Bureau, in which the chief justice led the Court in declaring the single-director structure of the Consumer Financial Protection Bureau (CFPB) to be unconstitutional. “The CFPB Director has no boss, peers, or voters to report to,” Roberts pointed out. “Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy. The question before us is whether this arrangement violates the Constitution’s separation of powers.” Roberts held that it did. Not exactly a happy outcome for supporters of the administrative state.

Libertarians, of course, were criticizing Roberts before it was cool. In 2012’s National Federation of Independent Business v. Sebelius, Roberts characterized his vote to uphold the Affordable Care Act as a demonstration of conservative judicial restraint. “It is not our job to protect the people from the consequences of their political choices,” he wrote, invoking as a role model the early 20th century jurist Oliver Wendell Holmes Jr., who once declared, “If my fellow citizens want to go to Hell I will help them. It’s my job.” That deferential approach is the antithesis of the libertarian legal movement’s vision of the judiciary as a strong bulwark against overreaching government.

On many of the biggest and most contentious legal issues of our time, the chief justice stands at the center of the SCOTUS storm. Like it or not, this is the Roberts Court now.

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Officials at Long Island, New York’s William Floyd High School had senior Maverick Stow arrested for criminal trespass after he showed up for school three days in a row. Under the hybrid learning model adopted by the school, Stow was supposed to be learning online at home. The school says hybrid learning is necessary to reduce the spread of the coronavirus, but Stow says in-person learning is better and worth the risk. The school threatened to move to online education only if Stow persists in returning to school.

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The Trump Administration’s rewrite of regulations governing federal agency compliance with the National Environmental Policy Act (NEPA) took effect today. Many business groups and conservative office-holders cheered this move. Multiple environmentalist groups and blue states have already rushed to court seeking to overturn the rules. What should a libertarian think?

NEPA is relatively unique among federal environmental laws in that it imposes no regulatory restrictions on private economic activity, as such. Indeed, NEPA does not impose any substantive environmental restrictions at all. Rather, NEPA requires that federal agencies conduct environmental impact statements of major agency actions that are likely to have significant environmental effects, and disclose these assessments to the general public.

The underlying idea of NEPA—that federal agencies should consider the full range of likely consequences of major actions—is akin to basis for requiring cost-beneift analyses. In both cases, the idea is that requiring agencies to consider the likely positive and negative effects of their actions will improve agency decision-making, and that disclosing the outcomes of such analyses will help hold agencies accountable for bad decisions.

NEPA further embodies the idea that it is particularly appropriate to hold the federal government to stringent environmental standards. This is a common sense idea. After all, it does not make sense for the federal government to spend tax dollars creating or exacerbating environmental problems that it will then have to spend more tax dollars (or regulate private conduct) in order to clean up. Adopting a general principle that the federal government should “first, do no harm” to the environment (at least whenever this is possible) requires that government agencies consider the likely environmental consequences of their actions before they act. It is also appropriate to impose this particular burden on government agencies because governmental entities are not subject to the same competitive and other pressures that (at least sometimes) serve to constrain environmentally destructive behavior by private firms.

The above are reasons why even those who are generally skeptical of federal regulation might support fairly stringent NEPA requirements. But there’s more to the story.

NEPA’s requirements apply to a wide range of federal activities that implicate (and in some cases control) private economic activity, including federal infrastructure projects and permitting programs. This means that NEPA sometimes serves to increase the time and costs of private economic activity that requires governmental permission or cooperation. Given the breadth of federal permitting requirements and federal funding of major economic projects, this means NEPA’s effects are not limited to government actions.

So what to make of the Trump reforms? I have not studied the reforms in sufficient detail to have reached a firm conclusion, but I have sense of how I feel about the trade-offs involved. Insofar as the regulatory reforms seek to streamline or accelerate the NEPA review process, this seems like a good idea. But insofar as these reforms will enable federal agencies to escape detailing and disclosing the likely environmental effects of their actions, that seems like a step backwards. Insofar as NEPA unduly constraints private economic activity, it seems to me that the focus should be upon lessening the federal government’s stranglehold on such activity, rather than on short-circuiting environmental reviews. This is another way of saying that (at its worst) NEPA exacerbates the negative consequences of over-extending federal influence and control over what should be local resource and land-use decisions. Solve that problem, such as by decentralizing more of such decision-making, and even a stringent NEPA would not seem so bad.

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Judge Sheryl Lipman is not a fan of the federal sentencing guidelines, nor the way the guidelines are interpreted and applied by the U.S. Court of Appeals for the Sixth Circuit. Nonetheless, as a district court judge, she is obligated to follow applicable precedent and the law of the circuit. She also has an obligation to follow the Sixth Circuit’s instructions on remand. Yet that’s not what she did in the case of Dane Schrank, and the Sixth Circuit is not amused.

Today, in U.S. v. Schrank, the Sixth Circuit reversed Judge Lipman for the second time for the same mistake: Imposing a substantively unreasonable sentence. To ensure this does not happen again, the panel sua sponte reassigned the case to another district court judge on remand.

Judge Thapar’s (incredibly brief) opinion for the Court begins:

We have seen this case before. Dane Schrank visited the dark web and downloaded “nearly 1,000 images of babies and toddlers being forcibly, violently, and sadistically penetrated.” United States v. Schrank, 768 F. App’x 512, 515 (6th Cir. 2019). After a government investigation identified Schrank, he confessed and pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

The Sentencing Guidelines called for a sentence of 97 to 120 months in prison. Yet the district court imposed a noncustodial sentence of just 12 months’ home confinement. The government appealed, and we vacated the sentence because it was substantively unreasonable. It both “ignored or minimized the severity of the offense” and “failed to account for general deterrence.” Schrank, 768 F. App’x at 515. Yet on remand, the district court imposed the same sentence. The district judge criticized our court for “second-guess[ing]” her sentence and said that she refused to impose a sentence that “does not make sense.” R. 47, Page ID 249, 271. But the district judge didn’t stop there. She also found time to criticize the “sophistication of the judges on the Sixth Circuit when it comes to computers” and said that Schrank’s misconduct—accessing the dark web over the course of five days and downloading nearly 1,000 images of children being raped—was “much less exaggerated” than “the Sixth Circuit judges realize.” Id. at 250. She concluded by noting, “maybe the Sixth Circuit will reverse me again.” Id. at 271.

We now do just that. Because Schrank’s sentence remains substantively unreasonable, we vacate it and remand for resentencing. And given the district judge’s conduct, we order that the case be reassigned on remand.

A bit more from the opinion:

we have repeatedly held that sentences are substantively unreasonable in child pornography cases when they require little or no jail time. . . . Indeed, in this very case we held that Schrank’s noncustodial sentence was substantively
unreasonable given his misconduct.

Because the district court imposed the same sentence on remand, the sentence remains substantively unreasonable for the reasons set forth in our earlier opinion. . . .

To be sure, district judges have considerable discretion when imposing sentences. . . . But that discretion is not unfettered. And when a district court abuses its discretion by imposing a fundamentally unjust sentence—as occurred here—we must reverse. For our job is to review sentences, not rubber stamp them. Since Schrank’s punishment does not fit his very serious crime, we once again vacate his sentence and remand for resentencing. . . .

And here’s Judge Thapar’s explanation of the reassignment on remand:

On remand, we order this case be reassigned to another district court judge for resentencing. This court has a duty to supervise district courts to ensure “proper judicial administration in the federal system.” . . . Although the government did not request reassignment, appellate courts may sua sponte order reassignment on remand. . . .

In two prior cases involving nearly identical facts . . . our court has ordered reassignment because the record showed that the “original judge would reasonably be expected . . . to have substantial difficulty in putting out of [her] mind previously-expressed views or findings.” Bistline, 720 F.3d at 634 (quotation marks omitted) . . . That same rationale compels reassignment here.

The district court began the resentencing hearing by stating, “I disagree with the Sixth Circuit.” . . . The district court then imposed the same substantively
unreasonable sentence. And at one point during the hearing, the district court even acknowledged, “maybe the Sixth Circuit will reverse me again, but I can’t impose a sentence on Mr. Schrank that otherwise does not make sense to me.”  . . . Thus, despite our binding holding, the district judge refused to follow the law and impose an appropriate sentence.

Schrank’s sentence is vacated, and the case remanded for reassignment and resentencing.

Update: For Judge Lipman’s perspective, here is the transcript of the proceedings below. Judge Lipman explains her reasoning at pages 27-30.

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My coauthor Cassandra Burke Robertson and I previously published “(Un)Civil Denaturalization” and “Litigating Citizenship” on (mainly procedural) issues surrounding loss of citizenship. The third article in this trilogy, “Inalienable Citizenship“, is now forthcoming in the North Carolina Law Review. The abstract is here:

Over the last decade, citizenship in the United States has become increasingly precarious. Denaturalization cases increased under President Obama and skyrocketed under President Trump. No number of years spent in the United States protects individuals against sudden accusations that they procured citizenship fraudulently or were never eligible for citizenship to begin with. Moreover, the government has challenged the citizenship status even of some individuals—largely from ethnic and religious minority communities—that the government had previously recognized as citizens for decades.

If the U.S. justice system is committed to the values of reliance and finality, how can it permit citizenship to be challenged without any time limit? American courts currently do not recognize a statute of limitations for civil denaturalization or apply the traditional doctrines of equitable estoppel or laches to this context. This state of affairs is partly based on judicial misunderstanding of the property-like features of citizenship and of the punitive nature of removing it. We argue that this must change. Denaturalization and citizenship denial undermine the foundation of our democratic system by tolerating second-class citizenship and promoting chilling effects against free speech and political participation. The time has come for the legislative and judicial branches to recognize that delayed citizenship challenges violate constitutional due-process protections. Security of citizenship is an essential bedrock of our constitutional order.

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Over the past few months, I have written several blog posts about how the courts have approached the 1st, 2nd, and 14th Amendments during the pandemic. Those posts will serve as the basis for a lengthy article. I should be able to post it to SSRN by the end of this month. It is comprehensive.

For now, I will flag a portion of Judge Stickman’s decision in the Pennsylvania lockdown case. (Eugene flagged it earlier). He accurately stated the place Jacobson occupies in our constitutional canon.

Jacobson was decided over a century ago. Since that time, there has been substantial development of federal constitutional law in the area of civil liberties. As a general matter, this development has seen a jurisprudential shift whereby federal courts have given greater deference to considerations of individual liberties, as weighed against the exercise of state police powers. That century of development has seen the creation of tiered levels of scrutiny for constitutional claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some modern courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential developments.

In Bayley’s Campground, Inc. v. Mills, _ F. Supp. 3d _, 2020 WL 2791797 (D. Me. May 29, 2020), a district court examined whether the governor of Maine’s emergency order requiring, inter alia, visitors from out of state to self-quarantine, was constitutional. As here, before proceeding to its analysis of the substantive legal issues, the court examined how it should weigh the issues—according to a very deferential analysis purportedly consistent with Jacobson, as advocated by the governor, or under “regular” levels of scrutiny advocated by the plaintiffs. The district court examined Jacobson and, specifically, whether it warranted the application of a looser, more deferential, standard than the “regular” tiered scrutiny used on constitutional challenges. It observed: “[i]n the eleven decades since Jacobson, the Supreme Court refined its approach for the review of state action that burdens constitutional rights.” Id. at *8 (citing Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992)). See also Planned Parenthood, 505 U.S. at 857 (citing Jacobson, 197 U.S. 24-30) (affirming that “a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims.”). The district court declined to apply a standard below those of the established tiered levels of scrutiny. It stated:

[T]he permissive Jacobson rule floats about in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties, free from the inconvenience of meaningful judicial review. This may help explain why the Supreme Court established the traditional tiers of scrutiny in the course of the 100 years since Jacobson was decided. Bayley’s Campground, at *8.

Judge Strickman is exactly right. Jacobson, on its own terms, does not apply to these sorts of COVID-19 cases. Now that we have moved from the early days of the pandemic, I hope courts can approach these unprecedented lockdown measures with more consideration.

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