Month: June 2022

OK, Justice Barrett, I “read the opinion” in Netchoice LLC v. Paxton

In April, Justice Barrett urged everyone to “read the opinion.” I did so with Netchoice LLC v. Paxton, and so can you. It will only take about fifteen seconds. Indeed, my prefatory remarks here are longer than the opinion itself. Ready, here goes!

The application to vacate stay presented to JUSTICE ALITO and by him referred to the Court is granted. The May 11, 2022 order of the United States Court of Appeals for the Fifth Circuit staying the district court’s preliminary injunction is vacated.

Why was the stay granted who knows? The shadow docket works in mysterious ways. Indeed, in Doe v. Mills, Justice Barrett laid out an intricate framework to explain when the Court should grant emergency relief. Does the Netchoice case meet that standard? Who knows? Barrett was silent. Alas, there is no opinion to read. Indeed, Barrett has been silent in many cases on the shadow docket. By my count, since Tandon v. Newsom in April 2021, Barrett has ruled against every single religious liberty claimant on the shadow docket. Swipe right for big tech, swipe left for the Becket Fund.

The “read the opinion” line illustrates one of my ongoing concerns with Justice Barrett. In her brief tenure on the Court, she has made several unforced errors in public speeches. You can’t tell people to “read the opinion” when you don’t write an opinion on the shadow docket. It is such an obvious sinkhole that she fell into. Likewise, her “partisan hacks” line at the McConnell Center, of all places, was tone deaf. Both of these lines came during Q&A, so they were not part of her prepared remarks. Yet, she exercised poor discretion. But more importantly, she created wedges from which people can criticize her, and pressure her to adhere to certain positions.

Even before these two statements, I was extremely worried about the risks of Barrett’s lucrative book deal. In April 2021, I wrote:

Second, my greatest fear for this book is that Justice Barrett will set lofty standards for judging that her detractors will use to criticize, and even pressure her. Let’s say she praises the importance of stare decisis. What better way is there to keep feelings out of law than to stand by precedent? She may even cite her decision not to overrule Smith in Fulton. (She very conspicuously signaled that position during oral argument). Forevermore, if Justice Barrett wishes to overrule some precedent, her book can be used against her. . . . Justice Barrett’s job is too damn important to make unnecessary concessions in a book. Anything that can be used to exert influence over her in the future is an unforced error. Why? Why write this book now? Why give Justice Kagan ammunition to cow you into submission?

Why is Justice Barrett making these errors. I have my own theories. Quickly peruse then-Professor Barrett’s Senate Judiciary Committee questionnaire from 2017. Section 12.e asks the nominee to “List all interviews you have given to newspapers, magazines or other publications, or radio or television stations.” At that time, Barrett was a professor for approximately fifteen years. Barrett lists 13 items. Most of entries are internal Notre Dame media sources. Barrett had only three interviews on national media. She was on NPR’s On Point in 2005 and 2015, and appeared on CBS News in 2016. Section 12.a asks the candidate to list all “letters to the editor” and “editorial pieces.” Barrett has none, though she does list comments she left on Prawfsblawg in 2008.

By contrast, then-Professor Stephanos Bibas, who was a professor for roughly the same period, had more than thirteen pages of media hits. Indeed, his questionnaire is nearly three times as long as Barrett’s.

I’ve long worried about Barrett’s lack of media experience. It is not a skill that comes naturally. (Over the years, I’ve worked very hard on my press chops; there is a reason reporters keep calling me back.) And on at two prominent occasions, Barrett blundered. Twice, she made a tone-deaf statement that would be instantly turned around against her, and pin her into taking certain actions. She treats these discussions like she is still a law professor–open and frank high-minded discourse without much concern for the consequences. Alas, that life of near-anonymous intellectual curiosity must be relegated to her past. Take a page from Justice Kagan’s CV, and focus on the job at hand.

Barrett should keep these lessons in her mind for future public events, and for certain when writing this book. Then again, Barrett said at Notre Dame that she has “a policy of trying not to read any coverage that addresses” her. So this message may never make it to her.

The post OK, Justice Barrett, I "read the opinion" in Netchoice LLC v. Paxton appeared first on Reason.com.

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OK, Justice Barrett, I “read the opinion” in Netchoice LLC v. Paxton

In April, Justice Barrett urged everyone to “read the opinion.” I did so with Netchoice LLC v. Paxton, and so can you. It will only take about fifteen seconds. Indeed, my prefatory remarks here are longer than the opinion itself. Ready, here goes!

The application to vacate stay presented to JUSTICE ALITO and by him referred to the Court is granted. The May 11, 2022 order of the United States Court of Appeals for the Fifth Circuit staying the district court’s preliminary injunction is vacated.

Why was the stay granted who knows? The shadow docket works in mysterious ways. Indeed, in Doe v. Mills, Justice Barrett laid out an intricate framework to explain when the Court should grant emergency relief. Does the Netchoice case meet that standard? Who knows? Barrett was silent. Alas, there is no opinion to read. Indeed, Barrett has been silent in many cases on the shadow docket. By my count, since Tandon v. Newsom in April 2021, Barrett has ruled against every single religious liberty claimant on the shadow docket. Swipe right for big tech, swipe left for the Becket Fund.

The “read the opinion” line illustrates one of my ongoing concerns with Justice Barrett. In her brief tenure on the Court, she has made several unforced errors in public speeches. You can’t tell people to “read the opinion” when you don’t write an opinion on the shadow docket. It is such an obvious sinkhole that she fell into. Likewise, her “partisan hacks” line at the McConnell Center, of all places, was tone deaf. Both of these lines came during Q&A, so they were not part of her prepared remarks. Yet, she exercised poor discretion. But more importantly, she created wedges from which people can criticize her, and pressure her to adhere to certain positions.

Even before these two statements, I was extremely worried about the risks of Barrett’s lucrative book deal. In April 2021, I wrote:

Second, my greatest fear for this book is that Justice Barrett will set lofty standards for judging that her detractors will use to criticize, and even pressure her. Let’s say she praises the importance of stare decisis. What better way is there to keep feelings out of law than to stand by precedent? She may even cite her decision not to overrule Smith in Fulton. (She very conspicuously signaled that position during oral argument). Forevermore, if Justice Barrett wishes to overrule some precedent, her book can be used against her. . . . Justice Barrett’s job is too damn important to make unnecessary concessions in a book. Anything that can be used to exert influence over her in the future is an unforced error. Why? Why write this book now? Why give Justice Kagan ammunition to cow you into submission?

Why is Justice Barrett making these errors. I have my own theories. Quickly peruse then-Professor Barrett’s Senate Judiciary Committee questionnaire from 2017. Section 12.e asks the nominee to “List all interviews you have given to newspapers, magazines or other publications, or radio or television stations.” At that time, Barrett was a professor for approximately fifteen years. Barrett lists 13 items. Most of entries are internal Notre Dame media sources. Barrett had only three interviews on national media. She was on NPR’s On Point in 2005 and 2015, and appeared on CBS News in 2016. Section 12.a asks the candidate to list all “letters to the editor” and “editorial pieces.” Barrett has none, though she does list comments she left on Prawfsblawg in 2008.

By contrast, then-Professor Stephanos Bibas, who was a professor for roughly the same period, had more than thirteen pages of media hits. Indeed, his questionnaire is nearly three times as long as Barrett’s.

I’ve long worried about Barrett’s lack of media experience. It is not a skill that comes naturally. (Over the years, I’ve worked very hard on my press chops; there is a reason reporters keep calling me back.) And on at two prominent occasions, Barrett blundered. Twice, she made a tone-deaf statement that would be instantly turned around against her, and pin her into taking certain actions. She treats these discussions like she is still a law professor–open and frank high-minded discourse without much concern for the consequences. Alas, that life of near-anonymous intellectual curiosity must be relegated to her past. Take a page from Justice Kagan’s CV, and focus on the job at hand.

Barrett should keep these lessons in her mind for future public events, and for certain when writing this book. Then again, Barrett said at Notre Dame that she has “a policy of trying not to read any coverage that addresses” her. So this message may never make it to her.

The post OK, Justice Barrett, I "read the opinion" in Netchoice LLC v. Paxton appeared first on Reason.com.

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Politicians Should Resist the Urge To ‘Do Anything’ in Response to School Shootings


Uvalde-shooting-memorial

After a gunman murdered 19 children and two adults at an elementary school in Uvalde, Texas, last week, politicians responded as they always do to such shocking crimes. Democrats pushed gun control policies ranging from the symbolic to the flagrantly irrelevant, while Republicans emphasized improvements to school security.

On its face, “hardening” schools so they are less vulnerable to attacks seems more logical than banning “assault weapons” defined by functionally unimportant features or expanding the federal background-check requirement for gun buyers, which is ill-suited to deterring mass shooters because they typically do not have disqualifying criminal or psychiatric records. But the approach favored by Republicans has pitfalls that legislators should not ignore in their rush to “do something” about crimes that are horrifying but rare.

To start with the obvious: Even sensible precautions do not work if they are not properly implemented. Although the Uvalde school district had a policy of keeping school entrances and classroom doors locked “at all times,” the shooter apparently entered through an unlocked rear door; the door to the adjoining classrooms where he killed children and teachers was likewise unlocked.

The school district also had the “good guys with guns” who are supposed to thwart this sort of attack: its own police force and armed guards, plus local cops and members of a Border Patrol unit with “an immediate-response capability” for “emergent and high-risk incidents requiring specialized skills and tactics.” Yet it took police more than an hour to confront and kill the gunman—an egregious failure that Uvalde Mayor Don McLaughlin has asked the Justice Department to investigate.

Beyond those specific lapses, we know surprisingly little about the cost-effectiveness of school security measures. “Whatever evidence does exist on this front is mixed, at best,” notes a 2021 RAND Corporation report.

Although safeguards such as metal detectors and surveillance cameras have been widely adopted, the report says, “these technologies’ actual effects on detection and deterrence are unclear or mixed.” A 2016 RAND review of the literature found that surveillance cameras are “more effective at preventing or minimizing property crimes (e.g., vandalism) than at preventing school violence or other crimes at school.”

The evidence concerning “school resource officers” (SROs) is “similarly mixed,” the 2021 report says. “Although some studies suggest that having an SRO present can be an effective approach to reducing school violence,” RAND notes, “others show that an SRO’s presence can degrade students’ perceptions of safety.”

That is not surprising, since conspicuous security measures like SROs may create the impression that students face greater dangers in school than they actually do. There is also a risk that SROs will transform relatively minor disciplinary issues into criminal matters, sometimes with appalling consequences.

“Active shooter” drills raise similar issues. There is little evidence that they enhance safety but ample reason to think they make students feel less safe.

Even strategies that look promising can be prohibitively expensive. In 2019, The Texas Tribune reports, a Texas school district estimated that adding two secure lobbies to a junior high school would cost $345,000.

Before concluding that the answer is more money, policy makers should take a breath and consider the magnitude of the danger they are trying to address. Since 2013, Northeastern University criminologist James Alan Fox reports, “77 students in grades K-12 have been killed in 11 school mass shootings,” defined as attacks that injured at least four victims and killed at least one student.

In a country with more than 130,000 K-12 schools, the risk that any particular school will experience such an attack is infinitesimal. As Fox notes, 40 times as many children die in pool drownings each year than are killed with firearms in schools, which remain one of the safest environments for children.

“We beg you,” a group of current and former school principals say in a recent open letter. “Do something. Do anything.” While that impulse is understandable, it can lead to policies that do more harm than good.

© Copyright 2022 by Creators Syndicate Inc.

The post Politicians Should Resist the Urge To 'Do Anything' in Response to School Shootings appeared first on Reason.com.

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Politicians Should Resist the Urge To ‘Do Anything’ in Response to School Shootings


Uvalde-shooting-memorial

After a gunman murdered 19 children and two adults at an elementary school in Uvalde, Texas, last week, politicians responded as they always do to such shocking crimes. Democrats pushed gun control policies ranging from the symbolic to the flagrantly irrelevant, while Republicans emphasized improvements to school security.

On its face, “hardening” schools so they are less vulnerable to attacks seems more logical than banning “assault weapons” defined by functionally unimportant features or expanding the federal background-check requirement for gun buyers, which is ill-suited to deterring mass shooters because they typically do not have disqualifying criminal or psychiatric records. But the approach favored by Republicans has pitfalls that legislators should not ignore in their rush to “do something” about crimes that are horrifying but rare.

To start with the obvious: Even sensible precautions do not work if they are not properly implemented. Although the Uvalde school district had a policy of keeping school entrances and classroom doors locked “at all times,” the shooter apparently entered through an unlocked rear door; the door to the adjoining classrooms where he killed children and teachers was likewise unlocked.

The school district also had the “good guys with guns” who are supposed to thwart this sort of attack: its own police force and armed guards, plus local cops and members of a Border Patrol unit with “an immediate-response capability” for “emergent and high-risk incidents requiring specialized skills and tactics.” Yet it took police more than an hour to confront and kill the gunman—an egregious failure that Uvalde Mayor Don McLaughlin has asked the Justice Department to investigate.

Beyond those specific lapses, we know surprisingly little about the cost-effectiveness of school security measures. “Whatever evidence does exist on this front is mixed, at best,” notes a 2021 RAND Corporation report.

Although safeguards such as metal detectors and surveillance cameras have been widely adopted, the report says, “these technologies’ actual effects on detection and deterrence are unclear or mixed.” A 2016 RAND review of the literature found that surveillance cameras are “more effective at preventing or minimizing property crimes (e.g., vandalism) than at preventing school violence or other crimes at school.”

The evidence concerning “school resource officers” (SROs) is “similarly mixed,” the 2021 report says. “Although some studies suggest that having an SRO present can be an effective approach to reducing school violence,” RAND notes, “others show that an SRO’s presence can degrade students’ perceptions of safety.”

That is not surprising, since conspicuous security measures like SROs may create the impression that students face greater dangers in school than they actually do. There is also a risk that SROs will transform relatively minor disciplinary issues into criminal matters, sometimes with appalling consequences.

“Active shooter” drills raise similar issues. There is little evidence that they enhance safety but ample reason to think they make students feel less safe.

Even strategies that look promising can be prohibitively expensive. In 2019, The Texas Tribune reports, a Texas school district estimated that adding two secure lobbies to a junior high school would cost $345,000.

Before concluding that the answer is more money, policy makers should take a breath and consider the magnitude of the danger they are trying to address. Since 2013, Northeastern University criminologist James Alan Fox reports, “77 students in grades K-12 have been killed in 11 school mass shootings,” defined as attacks that injured at least four victims and killed at least one student.

In a country with more than 130,000 K-12 schools, the risk that any particular school will experience such an attack is infinitesimal. As Fox notes, 40 times as many children die in pool drownings each year than are killed with firearms in schools, which remain one of the safest environments for children.

“We beg you,” a group of current and former school principals say in a recent open letter. “Do something. Do anything.” While that impulse is understandable, it can lead to policies that do more harm than good.

© Copyright 2022 by Creators Syndicate Inc.

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Luongo: The Big Questions We Should All Be Asking Geopolitically

Luongo: The Big Questions We Should All Be Asking Geopolitically

Authored by Tom Luongo via Gold, Goats, ‘n Guns blog,

To say that current events are ‘messy’ today would be the height of understatement. Everyday the headlines blare at us some new set of contradictory data points convincing us of some lie that serves someone’s purpose.

No matter how hard we try to keep up with things, cutting out the extraneous to find the nuggets of signal from the jungle of noise is more than a full-time job.

Sometimes, however, it’s best to take a few steps back, fall back on first principles and remind ourselves who the players are, what they want and then ask the big question of each of them… are they succeeding?

But to even ask that question we have to ask ourselves honestly the following question:

“What will they be willing to do to survive under present circumstances?”

This is the most uncomfortable question you can ever ask anyone. What would you do to survive? To protect your family? Your position? Your conception of yourself?

Everyone’s morality has limits. Everyone. Everyone has a shadow, a dark side, a place where they retreat to their Hobbesian self and see the world purely in terms of ‘a war of all against all.’ Anyone who refuses to admit this to themselves is someone you should run screaming from.

Those that always claim the moral high ground, who are always “the goodies!” are those without limits on their behavior. As the great H.L. Mencken proclaimed nearly 70 years ago:

The urge to save humanity is almost always only a false-face for the urge to rule it. Power is what all messiahs really seek: not the chance to serve. This is true even of the pious brethren who carry the gospel to foreign parts.

This is the context in which we have to ask that question, “What will they do?”

Of course, the answer is, “Whatever they have to.”

This is why I never rule anything out in my analysis. It’s why I’m always willing to leap five or six steps ahead to the big move, because that’s the limit of the behavior of the group under study. Today it may be Davos, tomorrow it may be The Fed, the day after it’s Russia.

They all have a preferred end-state, a solution to their personal equation, with their own set of input variables. For me I see this as a set of differential equations to be solved. We all want them to reduce to a set of outcomes which will leave someone closer to their preferred outcome.

And the scary part for all of us should be realizing that not only is there no single set of outcomes here where everyone is maximized, there isn’t even a ‘win/lose,’ condition here.

There are only losers, us.

Because the first rule of any organization is self-survival. Throw the mission statements, corporate bloviating and HR virtue signaling into the dumpster fire. At the end of the day all that matters is survival. Only when that is as secure as it can be can an organization begin thinking beyond its collective lizard brain.

No different than you or me. And at this point every major faction has been reduced to this, their event horizon is just out of reach, striving for it almost half…. There!

But, like Xeno’s paradox never reaching it because it was never attainable in the first place.

What I fear more than anything else, what I see from too many people analyzing the intersection of geopolitics, markets and ideology, is complacency. There is a stunning amount of normalcy bias in the punditocracy, too much ‘cooler heads will prevail’ and not enough ‘everyone’s got a plan until they’re punched in the mouth.’

So when thinking about Davos and their stated goals for the Great Reset and saving the world from Climate Change do you really think there’s a limit to their behavior?

Do you really believe they wouldn’t start a nuclear war, unleash a virulent plague, engineer a cure that’s worse than the disease, create a false flag mass shooting at a school or leak a Supreme Court opinion?

When thinking about the Federal Reserve in the context of an unprecedented assault on its autonomy and the commercial banking interests it was created to protect, do you really think today, at this point in time, they wouldn’t engender an economic collapse to save themselves from another group (say Davos) from destroying it?

So, everyone pontificating about how the Fed only has one or two more rate hikes in them because that’s what the models say, that’s what the Fed’s past behavior supposedly tells them, what will you tell your clients when the Fed hikes that fourth time by 50 basis points. Or accelerates the run rate of QT to $125 billion per month and allows the US 10-year note to rise to 6%? 8%? 10%?

Are you going to shrug and say, “Uh, sorry my bad.”

When faced with the prospect of a nuclear re-armed Ukraine in bed with Neoconservative ideologues in Congress and the U.S. State Department committed to a singular vision of hegemony for the planet, would Russia not fight a vicious war of attrition using World War II artillery tactics to grind their adversaries into paste while grimly pledging itself to their eradication?

What about the terminally corrupt and morally bankrupt Congressional leaders on Capitol Hill who have gotten personally rich and weaved an immense web of bullshit so vast and encumbering we can barely keep track of even the surface level details?

Would they not do anything to protect their malfeasance from breaking free from the containment of plausible deniability which is the true coin of the realm in D.C.?

Today newly-confirmed FOMC Chair Jerome Powell was summoned by President Select Biden to the White House to have a chat about the economy. Biden and the Democrats are scared to death of this fall. Biden obviously wants Powell to stop hiking rates. The Democrats only want to lose 40 seats in the House in November.

That’s all the vote fraud infrastructure George Soros’ money pays for.

Powell’s barely even begun the tightening cycle and these people are shamelessly, after holding up his confirmation for a year, after playing the most egregious power politics in the Fed’s history, summoning Powell like a dog to the White House and say, “Don’t hurt our chances this fall.”

If I’m Powell I’m smiling like the Cheshire Cat before vanishing into the bowels of the Marriner-Eccles building, and considering a 75 basis point hike just for the lulz.

Or he could see his shadow, get spooked and cut a deal. But at this point with who? Who do you cut a deal with? Bond-holders? Davos? Biden? Who?

Seriously, this is what our politics is reduced to by these venal Davos-controlled halfwits? And there are people out there still engaging in one-sigma thinking?

I’ve been telling you for a year that no one is asking the right questions about what the Fed is willing to do, not just to save itself, but possibly the much larger goal of breaking the people who are intentionally breaking the world for their benefit.

Too many can’t get past the budget or tax receipt numbers. The bond markets? Stocks? The Fed couldn’t possibly burn all of that down, could they? Those unwilling to ask that question seriously are those that keep looking away from the Abyss because the Abyss stares back.

They refuse to contemplate what happens when the board state is so screwed up, when the Jenga tower that fragile, that the only winning move is to nudge the table and watch it all come crashing down.

The Fed has looked into this Abyss in the past and they’ve always shied away, but that was when there was still time. But Davos has pushed us to the brink of societal collapse across the West, it has refused to even contemplate they are the Abyss and because of that the Fed may be staring at the heroic choice of jumping in and letting us pick up the pieces.

The question I have for you then is simple, “What are you prepared to become if that happens?”

We already know what the big players are doing.

*  *  *

Join My Patreon if you are sure of what you are capable of

Tyler Durden
Tue, 05/31/2022 – 23:40

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China Prepares Launch Of Most Advanced Aircraft Carrier On ‘Dragon Boat Festival’

China Prepares Launch Of Most Advanced Aircraft Carrier On ‘Dragon Boat Festival’

China is preparing to launch the country’s third aircraft carrier, called the Type 003, amid increasing fears of conflict in the Taiwan Strait. 

Last week, the Maritime Safety Administration announced a notice requesting that berths at the Jiangnan Shipyard on Changxing Island, where Type 003 has been under construction since 2017, be cleared, according to South China Morning Post (SCMP).

SCMP spoke with Lu Li-shih, a former instructor at the Taiwanese Naval Academy, who said the launch would end dry dock work and then begin tests and equipment installations for sea trials.   

A military insider suggested the launch of the new aircraft carrier could be seen as soon as this Friday, coinciding with Dragon Boat Festival

“The aircraft carrier needs to go into sea trials as soon as possible – it may take several years to achieve initial operational capability,” said the insider. 

Beijing-based naval expert Li Jie explained that “time is precious” for Type 003, adding, “the installation of all of the weapon systems and the activation of its propulsion system will only start after the hull is proven to have no leaks once it goes into the water.”

Type 003 was supposed to be launched last month to commemorate the 73rd anniversary of the Chinese Navy, but the event was postponed due to the widespread outbreak of COVID in Shanghai. 

At 320 meters long, the new carrier will be outfitted with a high-tech electromagnetic catapult system, launching China’s stealth fighters with heavier weapon loads and more fuel. Here’s how the new aircraft carrier compares with others: 

Sea trials and installation of equipment could take at least two years. The Pentagon doesn’t expect the carrier to become operational until 2024. 

China is modernizing and expanding its maritime capabilities for dominance in the Indo-Pacific region and, more specifically, in the Taiwan Strait. 

News of Type 003 about to launch comes as Beijing sent a massive group of fighters into Taiwan’s Air Defense Identification Zone on Monday. 

Meanwhile, the People’s Liberation Army’s Eastern Command recently denounced “collusion” between Taiwan and the US after President Biden pledged the West would defend Taiwan if under attack by Chinese forces; however, the White House was quick to follow by saying there’s been no change in the One China policy or its approach of “strategic ambiguity.” 

And now, there will be three Chinese aircraft carriers the West and allies have to worry about. There are plans for a fourth carrier that could be nuclear-powered. This is an attempt by Beijing to project power and dominate the Indo-Pacific region as Thucydides Trap between China and the US inches closer. 

Tyler Durden
Tue, 05/31/2022 – 23:20

via ZeroHedge News https://ift.tt/m9pRyhH Tyler Durden

A Few Orders, But Where Are the Opinions?

The Supreme Court issued orders today, denying certiorari in a raft of cases, temporarily staying the mandate of a Third Circuit decision in a Pennsylvania election dispute, denying a petition for a stay to prevent Texas legislators from having to testify in a voting rights suit, and (perhaps most notably) vacating the Fifth Circuit’s stay of a district court order enjoining Texas’s social media law, 5-4, in NetChoice, LLC v. Paxton (about which Eugene and Will have posts below). Yet somewhat unusually for the day after Memorial Day, the Court issued no opinions.

Despite the relatively spare docket, the Supreme Court has issued opinions in argued cases at the slowest rate in at least a decade. Eight months into the term the Court has issued only 29 opinions in argued cases. There is one month left (assuming the Court sticks to its traditional schedule), and there are thirty-three argued cases to go.

Normally the Court tries to finish up its work by the end of June, but that is looking ever less likely this year. It would be quite something for the Court to average over eight cases per week between now and July 1, but I doubt we can expect that. There are only twenty-one potential opinion days in June, and yet no such days have yet been announced.

What accounts for the delay? Perhaps the Court is still somewhat slowed by Covid. Perhaps justices and their clerks have been diverted by the high volume of applications and orders on the “shadow docket.” Perhaps the high number of contentious high-profile cases has slowed things down.  Some have speculated that the recent mass shootings in Buffalo and Uvalde prompted rewrites in the much-awaited gun rights case. Perhaps there are shifting coalitions in one or more cases that have slowed things down.

I would not be at all surprised if the unprecedented leak of a draft opinion concerning the future of abortion rights in Dobbs is part of the reason for the Court’s slow pace. The disclosure of Justice Alito’s Dobbs draft almost certainly shattered trust among and between the justices and their respective chambers. The draft’s disclosure, followed by the continued leaks of information from within the Court, has likely made the justice more reticent about sharing drafts, distributing memos, or trying to negotiate changes in opinions.  What justice wants to propose a compromise that might end up in the Wall Street Journal? Who wants to distribute a path-breaking opinion if a rough draft will be fly-specked on Twitter?

One would expect a breakdown of trust within the institution to affect the Court’s internal functioning and deliberation, so it may have contributed to the Court’s slow pace. Add to that, the justices and their clerks are also now subject to investigation, leaving less time and attention for the Court’s work.

Whatever the cause, the Court has been unusually slow to issue opinions this term. There are many important cases left to decide, and not much time before the Court’s traditional summer break.

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“Texas should not be required to seek preclearance from the federal courts before its laws go into effect”

Critics often accuse the Texas Attorney General of improper forum shopping–picking certain district courts in Texas where there are extremely high odds of drawing a specific judge. This criticism should be directed at Congress, which creates single-member districts. (Chief Justice Roberts made this point in his end-of-year message.) The Attorney General, like any other litigant, should select the forum that is best suited for his case. And forum shopping is rational. Moreover, it is unfair to criticize the judges who receive these forum-shopped cases. They do not have control over their dockets–unless the Chief Judge randomly takes a certain percentage of their cases, which does happen.

Still, conservatives are not the only litigants who forum shop in Texas. Progressive groups have found their court of choice. No, it is not in Brownsville or Amarillo or Victoria or Tyler or Lubbock or Galveston or Fort Worth. It is the U.S. District Court for the Western District of Texas, Austin Division. By my count, virtually every high-profile litigation brought against the state of Texas begins in that division. The division has two active district court judges, one appointed by President Obama and one appointed by President George W. Bush. And there is one senior judge appointed by President George H. W. Bush. On paper at least, the bench looks balanced, perhaps even with a slight conservative tilt. But in reality, the Austin division is the Wichita Falls for progressives. This forum selection appears neutral–sue the Governor and Attorney General in the state capital–but the choice is quite strategic.

I’ve lost count of how many high-profile Texas laws and policies were preliminary enjoined in that division. Consider a few: the Texas Israeli boycott law, the Texas social media law, the S.B. 8 fetal heartbeat law, the Texas ban on masks in schools, a limitation on ballot drop-off locations, restrictions on abortion during the pandemic, law concerning fetal remains, the abortion law at issue in Whole Woman’s Health v. Hellerstedt, Planned Parenthood’s ability to participate in Medicaid, and so on and so on. (I’ve also had my fair share of losses in that division–which we selected–and I’ve always felt like I had a fair shake.) Invariably, most of these injunctions are stayed in the Fifth Circuit.

This history brings me to Netchoice, LLC v. Paxton. Once again, a high-profile Texas law was challenged in the Austin Division. And once again it was preliminary enjoined.  And once again, the Fifth Circuit stayed that injunction. The Plaintiffs filed an emergency application with the Supreme Court. And, on the shadow docket, the Court ruled for the Plaintiffs. Here, I wish to flag one line that rings true for Texas court watchers:

While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.

Or at least preclearance from the U.S. District Court for the Western District of Texas, Austin Division.

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A Few Orders, But Where Are the Opinions?

The Supreme Court issued orders today, denying certiorari in a raft of cases, temporarily staying the mandate of a Third Circuit decision in a Pennsylvania election dispute, denying a petition for a stay to prevent Texas legislators from having to testify in a voting rights suit, and (perhaps most notably) vacating the Fifth Circuit’s stay of a district court order enjoining Texas’s social media law, 5-4, in NetChoice, LLC v. Paxton (about which Eugene and Will have posts below). Yet somewhat unusually for the day after Memorial Day, the Court issued no opinions.

Despite the relatively spare docket, the Supreme Court has issued opinions in argued cases at the slowest rate in at least a decade. Eight months into the term the Court has issued only 29 opinions in argued cases. There is one month left (assuming the Court sticks to its traditional schedule), and there are thirty-three argued cases to go.

Normally the Court tries to finish up its work by the end of June, but that is looking ever less likely this year. It would be quite something for the Court to average over eight cases per week between now and July 1, but I doubt we can expect that. There are only twenty-one potential opinion days in June, and yet no such days have yet been announced.

What accounts for the delay? Perhaps the Court is still somewhat slowed by Covid. Perhaps justices and their clerks have been diverted by the high volume of applications and orders on the “shadow docket.” Perhaps the high number of contentious high-profile cases has slowed things down.  Some have speculated that the recent mass shootings in Buffalo and Uvalde prompted rewrites in the much-awaited gun rights case. Perhaps there are shifting coalitions in one or more cases that have slowed things down.

I would not be at all surprised if the unprecedented leak of a draft opinion concerning the future of abortion rights in Dobbs is part of the reason for the Court’s slow pace. The disclosure of Justice Alito’s Dobbs draft almost certainly shattered trust among and between the justices and their respective chambers. The draft’s disclosure, followed by the continued leaks of information from within the Court, has likely made the justice more reticent about sharing drafts, distributing memos, or trying to negotiate changes in opinions.  What justice wants to propose a compromise that might end up in the Wall Street Journal? Who wants to distribute a path-breaking opinion if a rough draft will be fly-specked on Twitter?

One would expect a breakdown of trust within the institution to affect the Court’s internal functioning and deliberation, so it may have contributed to the Court’s slow pace. Add to that, the justices and their clerks are also now subject to investigation, leaving less time and attention for the Court’s work.

Whatever the cause, the Court has been unusually slow to issue opinions this term. There are many important cases left to decide, and not much time before the Court’s traditional summer break.

The post A Few Orders, But Where Are the Opinions? appeared first on Reason.com.

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“Texas should not be required to seek preclearance from the federal courts before its laws go into effect”

Critics often accuse the Texas Attorney General of improper forum shopping–picking certain district courts in Texas where there are extremely high odds of drawing a specific judge. This criticism should be directed at Congress, which creates single-member districts. (Chief Justice Roberts made this point in his end-of-year message.) The Attorney General, like any other litigant, should select the forum that is best suited for his case. And forum shopping is rational. Moreover, it is unfair to criticize the judges who receive these forum-shopped cases. They do not have control over their dockets–unless the Chief Judge randomly takes a certain percentage of their cases, which does happen.

Still, conservatives are not the only litigants who forum shop in Texas. Progressive groups have found their court of choice. No, it is not in Brownsville or Amarillo or Victoria or Tyler or Lubbock or Galveston or Fort Worth. It is the U.S. District Court for the Western District of Texas, Austin Division. By my count, virtually every high-profile litigation brought against the state of Texas begins in that division. The division has two active district court judges, one appointed by President Obama and one appointed by President George W. Bush. And there is one senior judge appointed by President George H. W. Bush. On paper at least, the bench looks balanced, perhaps even with a slight conservative tilt. But in reality, the Austin division is the Wichita Falls for progressives. This forum selection appears neutral–sue the Governor and Attorney General in the state capital–but the choice is quite strategic.

I’ve lost count of how many high-profile Texas laws and policies were preliminary enjoined in that division. Consider a few: the Texas Israeli boycott law, the Texas social media law, the S.B. 8 fetal heartbeat law, the Texas ban on masks in schools, a limitation on ballot drop-off locations, restrictions on abortion during the pandemic, law concerning fetal remains, the abortion law at issue in Whole Woman’s Health v. Hellerstedt, Planned Parenthood’s ability to participate in Medicaid, and so on and so on. (I’ve also had my fair share of losses in that division–which we selected–and I’ve always felt like I had a fair shake.) Invariably, most of these injunctions are stayed in the Fifth Circuit.

This history brings me to Netchoice, LLC v. Paxton. Once again, a high-profile Texas law was challenged in the Austin Division. And once again it was preliminary enjoined.  And once again, the Fifth Circuit stayed that injunction. The Plaintiffs filed an emergency application with the Supreme Court. And, on the shadow docket, the Court ruled for the Plaintiffs. Here, I wish to flag one line that rings true for Texas court watchers:

While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.

Or at least preclearance from the U.S. District Court for the Western District of Texas, Austin Division.

The post "Texas should not be required to seek preclearance from the federal courts before its laws go into effect" appeared first on Reason.com.

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